Today the U.S. Fifth Circuit Court of Appeal vacated its earlier opinion and ruled that Erroll Houston is entitled to a hearing to secure the return of his firearm, seized and held by the New Orleans Police Department even though no criminal charges have been pursued against him.
Erroll Houston, Jr., a New Orleans resident and painting contractor, is licensed to carry a gun which he sometimes keeps to protect himself against crime in his neighborhood. On July 5, 2008, he was arrested. At the time of his arrest, the police confiscated his firearm. About a month later, the District Attorney refused the charges, at which time Mr. Houston attempted to get his firearm back. Despite repeated requests, the District Attorney and New Orleans Police Department have refused to return it to Mr. Houston, citing a policy prohibiting the return of firearms after the arrest of the owner. No charges have ever been pursued against Mr. Houston.
In 2009 the ACLU of Louisiana sued the City of New Orleans seeking the return of Mr. Houston's firearm. Although the courts initially ruled that government officials may retain his property until the statute of limitations has passed, today the U.S. Fifth Circuit reversed both its earlier decision and the decision of the district court, holding that the City of New Orleans now must justify its continued retention of Houston's firearm or face serious constitutional questions about the right of the government to deprive individuals of property – whether that property is a firearm or otherwise – without continued need. The Court further expressed skepticism about the City's need to retain Houston's gun nearly three years after charges against him were dropped.
"The law is clear that the government cannot retain an individual's property without a legitimate need," said ACLU of Louisiana Executive Director Marjorie R. Esman. "Erroll Houston has waited four years for the return of his firearm. The City of New Orleans has so far been unable to justfy why it needs to keep his property. It's high time for him to get it back."
The case will now return to the District Court for further proceedings. Erroll Houston is represented by Justin Harrison, Staff Attorney for the ACLU of Louisiana, and by Craig Freeman of Baton Rouge.