Headline: Cleveland settles federal lawsuit over confiscated gun, owner to get his .38-caliber back

by Chad D. Baus

The Cleveland Plain Dealer is reporting that the city of Cleveland will return concealed handgun license-holder Derrick Washington's .38-caliber Taurus as part a settlement in a federal court battle over the city's seizure of the weapon.

The article notes the gun was confiscated and never returned even after a city prosecutor refused to press charges, citing a lack of evidence.

From the article:

"This was a matter of principle," said Washington's attorney, J. Gary Seewald. "He could have bought a new gun for $500. But he wanted to go through with this. He wanted his gun."

Washington, of Cleveland, sued the city in August after it refused to give him back his weapon. He claimed his civil rights were violated in a case that has enraged guns-rights advocates. They say the city's law allowing police to hold onto the gun violates state statute. The city had challenged the lawsuit. It was pending in U.S. District Court before Magistrate Judge Kenneth McHargh.

Last week, a note on the court's docket indicated that a settlement had been reached. Seewald declined to go into all of the details, but he stressed that Washington would get his gun back.

Maureen Harper, a spokeswoman for the city of Cleveland, said the city "is going to wait until the agreement is finalized before speaking." The docket says that should be in a few weeks.

According to the Plain Dealer, Washington's problems with the city began at 2:09 a.m. Feb. 10, when he called police to report a shooting in the 2800 block of East 116th Street, according to city police reports. He later met with officers and told them that he had a gun in his car and a valid concealed carry license, which is his obligation under the law. He was not linked in any way to the shooting.

The reports indicate that Washington, who was not in his car at the time, also told the officers that he had two vodka drinks, something Seewald denies. He said Washington did not have a drink.

The officers later arrested Washington, accusing him of using weapons while intoxicated and illegally carrying a concealed weapon, according to police reports. The latter allegation stems from police accusing Washington of failing to tell officers immediately that he had a license to carry a concealed weapon. Seewald also denied the allegation, saying Washington told officers about his license as soon as he could.

Police brought him to jail, where he stayed for three days. An officer approached an assistant city prosecutor about the charges. The prosecutor, however, said there was not enough evidence and dropped the case. But while Washington was not charged, police would not return the gun because of a city law that allows officers to keep seized weapons until a "court of competent jurisdiction" decides the city must give them back.

Section 627.11 of the city's ordinances says that "in any situation where a deadly weapon is present and a person has been drinking or disturbing the peace, threatening bodily harm or causing or threatening a disturbance or violence and there is reasonable cause for the investigating police officer to believe that such deadly weapon may be used to cause bodily harm, such deadly weapon may be seized by the police and kept in the custody of the chief of police until released by an order of a court of competent jurisdiction."

In Washington's case, the weapon was in his car. His lawsuit claims police had no probable cause to search the car.

Gun-rights advocates say the city ordinance is trumped by state law regarding the possession of a firearm, which makes the city's law unconstitutional.

Seewald said the ordinance is wrong. He said Cleveland City Council needs to revoke it.

"If you own a gun (in Cleveland), you're a second-class citizen," Seewald said. "Any other type of item seized by police during an investigation in which no charges are filed, the item is returned. But not a gun."

David Noice, a civil rights advocate who focuses on Second Amendment issues, told the Plain Dealer he is glad to know that Washington will get his gun back, but he is concerned about the settlement.

"If there is no binding agreement in the settlement to prevent the city of Cleveland from doing this again, this is a loss, a horrible, horrible loss," he said.

Chad D. Baus is the Buckeye Firearms Association Secretary, and BFA PAC Vice Chairman.