How can a Mississippi community college dispose of confiscated firearms when ownership records are lost?

Plain-English summary

Itawamba Community College's campus police had 22 firearms it confiscated over the years from people who brought them on campus in violation of Section 97-37-17. The records connecting the firearms to specific individuals or court cases had been lost. ICC asked: can we just have them forfeited and auctioned?

The AG walked through the framework:

Section 97-37-3 (firearm forfeiture): Requires a conviction tied to the firearm. The 2014 Turnage opinion makes clear that without a conviction, the statute requires return of the firearm to the accused. Where conviction records can't be located, the statute doesn't authorize forfeiture.

Section 19-3-85 (county auction of lost property): Doesn't fit. ICC's firearms were confiscated, not lost. Confiscated property has different rules.

Unilateral declaration of abandonment: Not authorized. The 2019 Reynolds opinion is explicit: a public entity cannot unilaterally deem a firearm abandoned.

The proper path: File legal action seeking judicial determination of ownership and direction on disposal for each firearm. This is case-by-case. The court can determine the lawful owner (or that no owner can be identified) and direct appropriate disposition.

The 2014 Turnage opinion explains the "case-by-case" framework: "the court should consider each case based on the specific factual circumstances and attempt to apply the seizure laws to each individual case." The 2002 Lewis case (Judicial Performance Commission) made clear that improper handling of seized firearms can result in sanctions for judges.

The opinion does not specify the appropriate court (Circuit, Justice, etc.): that's a fact-specific inquiry the AG declined.

What this means for you

For community college and campus police attorneys

Under the opinion, ICC cannot use the two shortcuts it asked about. Forfeiture under Section 97-37-3 is "only allowed ... where there was a conviction that would require or allow forfeiture," and ICC lacks the conviction records that would support it. And ICC "does not have the authority to unilaterally declare firearms that were confiscated, as lost, stolen, abandoned, or misplaced," so Section 19-3-85's lost-property auction does not apply. The path the AG points to is to file legal action to determine the lawful owner of a firearm and request a judicial determination of the appropriate manner of disposal or sale, dealt with on a case-by-case basis. The opinion expressly does not say which court is appropriate, calling that "a fact-specific inquiry on which this office will not opine."

For district attorneys and judges

The opinion restates the rule from the Turnage opinion and Lewis: where there has been no conviction, "the statute unequivocally requires the weapon or weapons to be returned," and a judge can be sanctioned for failing to follow the proper procedure (in Lewis, the court held a judge was "clearly required ... to return the handgun"). Where convictions were obtained, the AG advises only that "the court should consider each case based on the specific factual circumstances and attempt to apply the seizure laws to each individual case." The opinion does not prescribe a destruction-or-transfer menu beyond that case-by-case judicial determination.

Common questions

Q: Can ICC have the firearms forfeited and auctioned under Section 97-37-3?
A: Not on these facts. The opinion holds forfeiture under Section 97-37-3 is allowed only where there was a conviction that would require or allow it. Because ICC has lost the records of the court cases, it cannot establish the convictions the statute requires.

Q: Can ICC just treat the confiscated firearms as lost or abandoned?
A: No. The opinion states ICC "does not have the authority to unilaterally declare firearms that were confiscated, as lost, stolen, abandoned, or misplaced," so the county lost-property auction under Section 19-3-85 does not apply.

Q: So what can ICC actually do?
A: The opinion suggests ICC file legal action to determine the lawful owner of each firearm and request a judicial determination of the appropriate manner of disposal or sale, handled case by case.

Q: Which court does ICC file in?
A: The opinion does not say. It states the appropriate court of competent jurisdiction is "a fact-specific inquiry on which this office will not opine."

Q: What is Section 97-37-17?
A: The statute prohibiting firearms on educational property; the opinion notes it is the violation for which ICC's campus police confiscated the firearms. (Campus police authority for community colleges comes from Section 37-29-275.)

Q: What happens if no owner can be identified?
A: The opinion treats unknown-owner situations as ones to be dealt with case by case through a judicial determination of the appropriate manner of disposal; it does not set out a specific notice procedure or outcome.

Background and statutory framework

Mississippi's framework for confiscated firearm disposition is layered:

Seizure context:

• Section 97-37-17: prohibits firearms on educational property (the basis for ICC's seizures)
• Section 37-29-275: community college campus police authority

Disposition framework:

• Section 97-37-3: firearm forfeiture and sale at auction, available only where there was a conviction that would require or allow forfeiture
• Section 19-3-85: county-level auction of lost property (doesn't apply to confiscated firearms)
• Common law and case authority: firearms must be returned to accused without conviction; abandonment requires judicial determination, not unilateral declaration

Key prior opinions:

• MS AG Op., Reynolds (Jan. 18, 2019): disposal method depends on how the firearm was acquired; public entity cannot unilaterally deem a firearm abandoned; case-by-case judicial determination required
• MS AG Op., Turnage (Feb. 28, 2014): without conviction, firearm must be returned to accused; differing factual situations require case-by-case analysis

Case authority:

• Mississippi Comm'n on Judicial Performance v. Lewis, 830 So. 2d 1138 (Miss. 2002): judge sanctioned for failing to follow proper procedure to forfeit handgun, "clearly required ... to return the handgun"

The opinion synthesizes the framework: ICC has 22 confiscated firearms with no records; the available statutory pathways either require records ICC doesn't have (Section 97-37-3) or don't fit the situation (Section 19-3-85 for lost property; unilateral abandonment); the only path is judicial determination on a case-by-case basis.

Citations and references

Statutes:

• Miss. Code Ann. § 19-3-85, county auction of lost property
• Miss. Code Ann. § 37-29-275, community college campus police
• Miss. Code Ann. § 97-37-3, firearm forfeiture after conviction
• Miss. Code Ann. § 97-37-17, firearms on educational property

Cases cited:

• Mississippi Comm'n on Judicial Performance v. Lewis, 830 So. 2d 1138, 1142 (Miss. 2002), proper firearm disposition procedure

Prior AG opinions cited:

• MS AG Op., Reynolds (Jan. 18, 2019), case-by-case judicial determination; no unilateral abandonment
• MS AG Op., Turnage (Feb. 28, 2014), conviction required for forfeiture; case-by-case for unknown owners

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/05/W.BeasleyJr.-May-10-2022-Disposal-of-Firearms.pdf

Original opinion text

May 10, 2022

William M. Beasley, Jr., Esq.
Attorney for Itawamba Community College
Post Office Box 1220
Tupelo, Mississippi 38802-1220

Re: Disposal of Firearms

Dear Mr. Beasley:

The Office of the Attorney General has received your request for an official opinion.

Background Facts

In your request, you provide:

Itawamba Community College ("ICC") operates a campus police department in accordance with Mississippi Code Annotated Section 37-29-275. Over the years, the department has confiscated twenty-two firearms from students and other individuals who have brought them on campus in violation of Section 97-37-17. However, as time has passed, all information associated with the firearms, such as their owners and the status of the criminal or student disciplinary proceeding associated with them, has been lost. Therefore, ICC has no realistic means of finding the owners of the various firearms.

ICC would like to dispose of the firearms as contemplated by Section 97-37-3 but, as mentioned above, lacks any information concerning the court cases associated with the seizures and possesses no realistic way of acquiring such information.

Questions Presented

1. May ICC apply to the Circuit Court of Itawamba County for an order declaring the firearms forfeited to ICC's campus police department and directing they be sold at auction as provided by Section 97-37-3(2)?
2. If the answer to Question 1 is "no," can the Itawamba County Board of Supervisors have the firearms sold at public auction to the highest bidder in accordance with Section 19-3-85?
3. If the answer to question 2 is "yes," is ICC entitled to the proceeds from the auction?
4. If the answers to questions 1 and 2 are both "no," what procedure does authorize ICC to dispose of the firearms in its possession?

Brief Response

1. The manner in which a firearm was obtained dictates the procedure of disposal. Forfeiture of a firearm is only allowed under Section 97-37-3 where there was a conviction that would require or allow forfeiture. As ownership of a firearm should be dealt with on a case-by-case basis, ICC may wish to file legal action to determine the lawful owner of a firearm and request a judicial determination of the appropriate manner of disposal or sale. The appropriate court of competent jurisdiction is a fact-specific inquiry on which this office will not opine.
2. ICC does not have the authority to unilaterally declare firearms that were confiscated, as lost, stolen, abandoned, or misplaced.
3. Our response to Question 2 renders this question inapplicable.
4. See Response 1.

Applicable Law and Discussion

The manner in which a firearm should be disposed of depends upon the manner in which the firearm was acquired. MS AG Op., Reynolds (Jan. 18, 2019). In MS AG Op., Turnage (Feb. 28, 2014), this office was asked about a situation in which numerous firearms were seized over the years by local police; however, there was no conviction or an order that the weapons be forfeited. We opined that Section 97-37-3 expressly requires that the firearm must be returned to the accused where there is no conviction. Id. We further stated:

Depending on the number of weapons and cases involved there could be a multitude of differing factual situations that potentially could lead to different legal conclusions. Thus, any effort by the court to deal with the guns that have been seized but not forfeited would, in our estimation, have to be dealt with on a case-by-case basis. Where there has been no conviction, the statute unequivocally requires the weapon or weapons to be returned. With regard to other situations where convictions were obtained, we can only advise that the court should consider each case based on the specific factual circumstances and attempt to apply the seizure laws to each individual case. See Mississippi Com'n on Judicial Performance v. Lewis, 830 So.2d 1138, 1142 (Miss. 2002) (Holding that a judge was "clearly required ... to return the handgun" and imposing sanctions where the judge "did not follow the proper procedure to forfeit the handgun.") Id.

MS AG Op., Turnage at *2 (Feb. 28, 2014). In MS AG Op., Reynolds (Jan. 18, 2019), this office addressed multiple methods for a municipality to dispose of firearms. Your request specifically refers to Section 97-37-3, which applies to firearms seized as result of a crime. We noted in Reynolds that Section 97-37-3 does not authorize a public entity to unilaterally deem a firearm abandoned. As in Turnage, we stated in Reynolds that situations in which the lawful owner of the firearm is unknown should be dealt with on a case-by-case basis. We further suggested in Reynolds that the public entity file legal action to determine ownership of the firearm coupled with request for a judicial determination of the appropriate manner of disposal or sale. Id.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General