How could South Carolina police dispose of seized or recovered guns when the person claiming them was a convicted felon?

Plain-English summary

A Lancaster police firearms instructor asked how to dispose of two kinds of evidence-room guns: weapons seized from a suspect whose charge was later dropped but who was a convicted felon, and recovered stolen weapons whose original owner had since become a felon. The July 2001 informal opinion, mailed in August, said the answer depended on the firearm, the violation and how police acquired it. The office found no single statute that settled all such cases.

For pistols involved in specified handgun violations, earlier AG opinions said confiscation might be possible without a conviction, but recommended judicial guidance because the law was uncertain. For a weapon used in another crime under §16-23-405, the letter said conviction was a prerequisite; without it, the weapon should go to its rightful owner. It doubted a person legally barred from possessing a gun would qualify for return. For recovered stolen guns whose owner could not lawfully possess them, the letter pointed to §27-21-20’s disposition procedures, while advising consultation with city counsel or the circuit solicitor on specific facts.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Police evidence officers

The opinion distinguished possible no-conviction forfeiture under specific pistol provisions from conviction-required confiscation of weapons used in another crime. It described judicial guidance as the safer course for uncertain pistol cases.

People claiming recovered firearms

The letter questioned whether a person barred from possession could be the rightful owner entitled to return and identified confiscated-property procedures as a likely route. It did not adjudicate ownership in either hypothetical case.

Common questions

Did a dropped charge always require police to return a seized gun? A: No. The opinion said some pistol statutes might allow forfeiture without conviction; other weapon-confiscation authority required conviction.

Could police automatically give a recovered stolen gun back to a now-disqualified owner? A: The AG doubted that someone legally barred from possessing it qualified for return and pointed to statutory disposition procedures.

Did the letter give one final procedure for every gun?
A: No. It said the relevant statute and facts varied, and recommended case-specific discussion with local legal officials.

Background and statutory framework

The opinion discussed §16-23-50 and §23-31-190 for certain pistols, §16-23-405 for conviction-based confiscation of a weapon used in crime, and §27-21-20 for disposal of confiscated or stolen property. It emphasized uncertainty where no conviction had occurred.

Citations and references

• §16-23-50 and §23-31-190: pistol provisions discussed for possible forfeiture.
• §16-23-405: conviction prerequisite for a weapon used in crime.
• §27-21-20: disposition procedure for property police hold.

Official title

(mailed August 3, 2001) regarding firearms which are accumulating in your Department’s “Evidence Room.” Specifically, asking how to properly dispose of the following firearms.

Requester

Det. Sgt. Robert F. Rockholt, Senior Firearms Instructor, Lancaster Police Department

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-31-2001-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01aug3rockholt.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

July 31, 2001
(Mailed August 3, 2001)

Det. Sgt. Robert F. Rockholt
Senior Firearms Instructor
Lancaster Police Department
P.O. Box 1008
Lan~ast~r, South Carolina 29721
Re: Your Letter of March 26, 2001
Disposition of Firearms
Dear Det. Sgt. Rockholt:
In your above referenced letter, you request an opinion from this Office regarding firearms which are accumulating in your Department's "Evidence Room." Specifically, you state that: "We need an opinion on how to properly dispose of the following firearms. 1.

Firearms taken at time of arrest where the charges were later dropped by the solicitor in a plea bargain or another case, but the suspect is a convicted felon, unable own or possess firearms.

2.

Stolen firearms that have been recovered, but the owner has since become a convicted felon since the theft."

Unfortunately, your requests cannot be resolved in a simple fashion. Depending on the type of firearm and the way in which the Lancaster Police Department came into possession of the firearm, a number of different statutes may apply. I will address each question in tum.

Question 1
Under certain circumstances, it appears possible that a firearm seized as the result of a criminal charge may be forfeited despite the lack of conviction on the underlying charge. Whether

REMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA,

s.c. 29211 -1549

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T ELEPHONE : 803-734-3970

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FACSIMILE: 803-253 -6283

Det. Sgt. Robert F. Rockholt
August 3, 2001
Page 2

the fireann can be forfeited without conviction may depend on the type offireann involved and the violation charged.

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This Office has previously opined that S.C. Code Ann. §16-23-50 (penalty for violations of
§§ 16-23-20 & 30) and S.C. Code Ann. §23-31-190 (penalty for violations of §23-31-110 et seq.) do not expressly require a conviction before the pistol involved can be confiscated and disposed of. See OP. ATTY. GEN. (Dated June 13, 1995)(Copy enclosed). In that opinion, we stated that" ... a conviction is probably no longer necessary in order to authorize [the Sheriff] to dispose of the
[pistols] in the manner set forth in [§§16-23-SO(B) & 23-31-190] ... " We cautioned, however, that "[o ]wing to the uncertainty surrounding these guns, in that there has been no conviction ... the safer course would be to obtain judicial guidance and [this] would protect law enforcement agencies and officials." Accordingly, pistols which your Department has come into possession of as a result of a violation of§§ 16-23-20, 16-23-30 or 23-31-110 et seq. may be capable of forfeiture and disposal even though no conviction for the specific violation has been had. I would suggest that you discuss specific cases with your City Attorney. Fireanns, including rifles, shotguns, pistols, etc., which have been seized by law enforcement due to involvement in the commission of a crime other than the above violations may also be subject to confiscation. Section 16-23-405 provides that: "[a] person convicted of a crime, in addition to a penalty, shall have a weapon used in the commission or in furtherance of the crime confiscated. (Emphasis added)." Accordingly, a conviction would be a prerequisite to confiscation and disposal of a fireann pursuant to §16-23-405. Without such a conviction, the fireann should be returned to the rightful owner. To "own" something, like a fireann, is "to have good legal title ... to have a legal or rightful title to ... "Black's Law Dictionary 996 (5 1h ed.). Accordingly, it is doubtful that someone who is prevented by law from possessing a fireann could be considered the rightful owner and be entitled to the return of the fireann. In such a case, the disposal of the fireann should probably be done pursuant to S.C. Code Ann. §§27-21-10 et seq. (Disposition of Confiscated and Stolen Property).

Question 2
Generally, when a police department comes into possession of stolen property, the owner should be notified and the property returned. If the owner cannot be located, the property should be disposed of pursuant to S.C. Code Ann. §27-21-20. As discussed above, where a person is forbidden by law from possessing a firearm, such person would probably not be considered the rightful owner of the firearm. While not specifically addressed by statute, it would appear that §27-21-20(B) or (C) would provide the appropriate procedures for disposing of the firearm. See OP. ATTY. GEN. (Dated January 3, 1979)(absent statutory provision, §27-21-20 provides best method of disposition of stolen fireanns where owners are unable to be located.)(Copy enclosed).

Det. Sgt. Robert F. Rockholt
August 3, 2001
Page 3

Conclusion
As you can see, there is no clear statutory guidance with regard to your questions. I would suggest that you consult with your City Attorney or Circuit Solicitor concerning the disposition of firearms in specific cases.

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This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion.

David K. Avant
Assistant Attorney General

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