During a Virginia civil eviction, what should the sheriff do with a tenant's firearm that gets left behind? Can the sheriff seize it, check its serial number against criminal databases, or hold it for safekeeping?

Subject

Law enforcement may take custody of or confiscate a firearm that was removed pursuant to an eviction proceeding if it is determined that the firearm is stolen, the landlord is legally prohibited from possessing a firearm, or the landlord requests that law enforcement take possession of the firearm.

Plain-English summary

When a Virginia tenant is evicted, the sheriff oversees removal of the tenant's belongings. Va. Code § 55.1-1255 governs what happens next: property goes to the public way and the tenant has 24 hours to claim it, or the landlord can store the property somewhere designated (often the dwelling itself) and the tenant has 24 hours to retrieve it. After 24 hours, the property is the landlord's to do with as they see fit.

Lynchburg's Sheriff asked the Attorney General how all of this applies when one of the items left behind is a firearm. The statute doesn't single out firearms.

The AG broke the analysis into four pieces.

First, the sheriff does not have general authority to confiscate a firearm during the standard eviction process. The statute gives the sheriff a supervisory role over removal and storage. The "shall oversee" language is directory, not a confiscation power. The 2002 AG opinion that allowed sheriffs to inspect and unload weapons before storage didn't bless seizure.

Second, the sheriff can run the firearm's serial number through VCIN (Virginia Criminal Information Network) during the 24-hour post-eviction window. Neither tenant nor landlord has a reasonable expectation of privacy in the firearm at that stage. If the firearm comes back stolen, the sheriff has authority to seize it.

Third, the sheriff has no legal obligation to check the landlord's criminal history before leaving the firearm with the landlord, but may do so for criminal justice purposes. If the landlord is legally barred from possession (convicted felon, under a protective order, etc.), the sheriff has authority to seize the firearm and not return it to the landlord.

Fourth, where the sheriff does take custody (storage at landlord request, stolen firearm, or prohibited landlord), the disposal procedure follows § 15.2-1719 (general unclaimed property) and § 15.2-1721 (unclaimed firearms specifically).

What this means for you

For Virginia sheriffs supervising evictions

The opinion holds that § 55.1-1255 gives the sheriff a supervisory role over the removal and storage of tenant property but no general authority to confiscate a firearm during eviction. It holds the sheriff may take custody only in three situations: the firearm is stolen, the landlord is legally prohibited from possessing it, or the landlord requests that the sheriff store it during the 24-hour period. It holds the sheriff may run the firearm's serial number through VCIN during the removal and storage process, because neither tenant nor landlord has a reasonable expectation of privacy in the firearm at that stage, and that where the sheriff retains a firearm after the 24-hour period, disposal follows § 15.2-1719 and the firearm-specific § 15.2-1721.

For landlords supervising evictions

The opinion holds that a landlord may ask the sheriff to store a tenant's firearm during the 24-hour post-eviction period, and that absent stolen-firearm or prohibited-possessor issues the firearm reverts to the landlord after that window like other tenant property. It holds that a landlord who is legally prohibited from possessing a firearm will not have it returned; the sheriff retains it.

For tenants who have been evicted

The opinion holds that a tenant has 24 hours after eviction to retrieve personal property, including a firearm, from the landlord's designated storage area. After that window, the firearm reverts to the landlord, or, if it is seized because it is stolen or the landlord is prohibited, stays with the sheriff and is disposed of under § 15.2-1719 / 15.2-1721.

For housing advocates and civil rights attorneys

The opinion holds that the sheriff's role under § 55.1-1255 is supervisory and that seizure of a tenant's firearm requires one of the three specific triggers; the statute does not authorize confiscation outside those circumstances.

Common questions

Can a sheriff confiscate any firearm during a Virginia eviction?
No. Only if the firearm is stolen, the landlord is barred from firearm possession, or the landlord asks the sheriff to take custody for safekeeping.

Why can the sheriff run the serial number through VCIN without a warrant?
Because at the 24-hour post-eviction stage, neither the tenant (lawfully removed from the residence) nor the landlord (merely storing the tenant's property) has a reasonable expectation of privacy in the firearm.

Must the sheriff check the landlord's criminal history?
No. There's no statutory mandate. But the sheriff may do so for criminal-justice purposes under § 19.2-389(A)(1).

What happens to a firearm the sheriff takes custody of for storage?
The tenant has 24 hours to retrieve it. If unclaimed, the firearm goes back to the landlord unless the landlord is barred from possession or the firearm is stolen. If it stays with the sheriff after the 24-hour window, follow § 15.2-1721 for disposal.

Can the landlord later sell or destroy a firearm left behind?
After the 24-hour window, the landlord can dispose of the tenant's remaining property as the landlord sees fit. But the landlord must comply with applicable firearm laws (transfer restrictions, etc.). And if the landlord is legally prohibited from possession, the firearm should never have been left with them.

Does this opinion apply to writs of possession in unlawful detainer cases?
Yes. Section 55.1-1255 covers personal property removed "pursuant to an action of unlawful detainer or ejectment, or pursuant to any other action in which personal property is removed from the dwelling unit in order to restore the dwelling unit to the person entitled."

Background and statutory framework

Section 55.1-1255 governs the disposition of tenant property after eviction. The sheriff "shall oversee the removal" of personal property to the public way. The tenant has 24 hours to retrieve. After that, the landlord can dispose of it. At the landlord's request, the property can be stored somewhere else (often the dwelling), with the same 24-hour retrieval window for the tenant.

The Virginia Supreme Court has held that "shall," when applied to a public official's actions, is directory rather than mandatory unless the statute clearly says otherwise (Jamborsky v. Baskins, 247 Va. 506, 511 (1994)). That principle limited the AG's read of "shall oversee" to a supervisory role.

The Fourth Amendment analysis (no reasonable expectation of privacy after eviction) traces a strong line of authority: McCoy v. Commonwealth, 2 Va. App. 309, 312 (1986) (factors for expectation of privacy); Woodson v. Commonwealth, 25 Va. App. 621 (1997) (no expectation in apartment from which person was lawfully banned); and federal cases including United States v. Curlin, 638 F.3d 562 (7th Cir. 2011), and Byrd v. United States, 138 S. Ct. 1518 (2018).

For unclaimed firearm disposal, § 15.2-1719 sets the general framework for unclaimed property held by law enforcement, and § 15.2-1721 imposes firearm-specific procedures.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 8.01-470 (eviction process)
• Va. Code § 15.2-1719 (unclaimed property held by law enforcement)
• Va. Code § 15.2-1721 (unclaimed firearms held by law enforcement)
• Va. Code § 18.2-308.1:1 et seq. (firearm possession by prohibited persons)
• Va. Code § 18.2-308.2 et seq. (firearm transfer/sale offenses)
• Va. Code § 19.2-389(A)(1) (criminal history record dissemination)
• Va. Code § 55.1-1245 (landlord remedies, termination of rental agreement)
• Va. Code § 55.1-1255 (disposition of tenant property after eviction)
• Jamborsky v. Baskins, 247 Va. 506 (1994)
• McCoy v. Commonwealth, 2 Va. App. 309 (1986)
• Woodson v. Commonwealth, 25 Va. App. 621 (1997)
• Josephs v. Commonwealth, 10 Va. App. 87 (1990)
• Byrd v. United States, 138 S. Ct. 1518 (2018)
• United States v. Curlin, 638 F.3d 562 (7th Cir. 2011)
• People v. McCullum, 70 N.Y.S.3d 222 (2018), aff'd, 138 N.E.3d 502 (N.Y. 2019)
• State v. Hinton, 78 A.3d 533 (N.J. 2013)
• Laney v. State, 842 A.2d 773 (Md. 2004)
• 1984-1985 Op. Va. Att'y Gen. 73
• 2002 Op. Va. Att'y Gen. 264

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-051-Sloan-Issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

October 15, 2021

The Honorable Donald T. Sloan
City of Lynchburg Sheriff
907 Clay Street
Lynchburg, Virginia 24504

Dear Sheriff Sloan:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask several questions concerning the security of firearms during civil evictions. You first ask whether, when leaving the tenant's stored property in the control of the landlord, you may leave a firearm there for the landlord to dispose of or whether you should take custody of said firearm. You next inquire whether you have the authority to confiscate the firearm. You also ask whether you can check the serial number of the firearm through the Virginia Criminal Information Network (VCIN) to ensure it is not wanted in a criminal proceeding. You further ask whether you are required to check the criminal history of the landlord prior to leaving the firearm with the landlord to ensure the landlord is not a convicted felon or under the restrictions of a protective order. Should you take custody of the firearm, you ask what procedures you must follow in restoring the firearm to the possession of the tenant. Should you be unable to locate the rightful owner, you ask what authority you have to dispose of the firearm, and how long you must wait to dispose of the firearm.

Applicable Law and Discussion

I. Authority to Confiscate Firearms During Eviction Proceedings

Section 55.1-1255 provides for the disposition of tenant property following an eviction:

[W]hen personal property is removed from a dwelling unit, the premises, or any storage area provided by the landlord pursuant to an action of unlawful detainer or ejectment, or pursuant to any other action in which personal property is removed from the dwelling unit in order to restore the dwelling unit to the person entitled to such dwelling unit, the sheriff shall oversee the removal of such personal property to be placed into the public way. The tenant shall have the right to remove his personal property from the public way during the 24-hour period after eviction. Upon the expiration of the 24-hour period after eviction, the landlord shall remove, or dispose of, any such personal property remaining in the public way.

You advise that, should a landlord choose to remove abandoned property to the public way following an eviction, your Office notifies the landlord that certain items, to include weapons, may not be left on the public way. Therefore, the following provisions of § 55.1-1255 related to storage of personal property outside of the public way apply to your inquiry:

At the landlord's request, any personal property removed pursuant to this section shall be placed into a storage area designated by the landlord, which may be the dwelling unit. The tenant shall have the right to remove his personal property from the landlord's designated storage area at reasonable times during the 24 hours after eviction or at such other reasonable times until the landlord has disposed of the property as provided in this section. Any property remaining in the landlord's storage area upon the expiration of the 24-hour period after eviction may be disposed of by the landlord as the landlord sees fit or appropriate.

Section 55.1-1255 accordingly places the sheriff in a supervisory role over the removal and disposal of personal property following an eviction. Section 55.1-1255 provides that the sheriff "shall oversee the removal of such personal property . . . ." Virginia courts have repeatedly held that "the use of 'shall,' in a statute requiring action by a public official, is directory and not mandatory unless the statute manifests a contrary intent." Moreover, as noted by a 1985 Attorney General opinion, "[a]lthough a sheriff's powers and duties are limited to those prescribed by statute, he is free to discharge those powers and duties in a manner he deems appropriate."

A 2002 opinion of the Attorney General, addressing prior versions of § 55.1-1255, opined that a sheriff's office was acting in a manner consistent with the statute when choosing to inspect and unload all weapons prior to transport and storage. However, the present inquiry is distinguished from the facts in that opinion because the sheriff's office in the 2002 opinion did not intend to seize weapons, but merely to inspect and unload the firearms.

While § 55.1-1255 assigns the sheriff a role in the removal and storage of a tenant's property for the 24-hour period following eviction, it does not grant any authority to confiscate said property. Rather, § 55.1-1255 specifically refers to actions "at the landlord's request" and indicates that any storage area for the property is to be designated by the landlord. Moreover, following the 24-hour period during which the tenant can retrieve his or her property, any property remaining unclaimed reverts to the landlord to dispose of as he or she sees fit. Therefore, it is my opinion that your Office does not have authority to confiscate a firearm during the process set forth in § 55.1-1255, absent exceptional circumstances as discussed below. However, should the landlord request assistance in storing the firearm during the 24-hour post-eviction period, as is authorized and envisioned by § 55.1-1255, your Office would be permitted to take custody of the firearm at the landlord's request. After the 24-hour period elapses, the firearm, and any other property being stored at the landlord's request, would be returned to the landlord pursuant to § 55.1-1255.

II. Authority to Run Firearm Serial Number Through VCIN

It is my opinion that neither the landlord nor the tenant has a reasonable expectation of privacy in a firearm located on the premises during the 24-hour period after eviction. Section 55.1-1255 makes clear that, during the 24-hour period after eviction, the landlord is merely storing the tenant's remaining personal property and, therefore, has no property interest in said property. Because the tenant has been lawfully evicted from the residence at this stage, and therefore no longer retains any legitimate possessory interest in the premises, the tenant similarly has no reasonable expectation of privacy in regards to any property contained therein. The absence of a protected property interest is further supported by the fact that the landlord's role at this stage coincides with the sheriff's statutorily-authorized supervisory role in the removal and storage of the tenant's personal property during this time period. Therefore, it is my opinion that your Office does have the authority to run the firearm's serial number through VCIN during the removal and storage process. Should your Office discover that the firearm is stolen, they have authority to confiscate the weapon.

III. Requirement to Check Landlord's Criminal History

You also ask whether you need to check the criminal history of the landlord should you choose to leave the firearm in his possession. I am unaware of any legal mandate requiring a law enforcement officer to check the criminal history of someone in possession of a firearm. There is no constitutional or statutory bar to a law enforcement officer reviewing an individual's criminal history, as long as the information is being used for criminal justice purposes. Section 19.2-389(A)(1) directs that "[c]riminal history record information shall be disseminated, whether directly or through an intermediary, only to . . . [a]uthorized officers or employees of criminal justice agencies . . . for purposes of the administration of criminal justice." It is my opinion that preventing the possession of firearms by prohibited persons falls under the administration of criminal justice. As is the case with a stolen firearm, law enforcement would have the authority to seize the firearm in the event it would be illegal for the landlord to be in possession of it.

IV. Procedure for Restoration of Firearm to Tenant or Disposal of Firearm

In light of the above, procedures for the return or disposal of a tenant's firearm would only be necessary in the following circumstances: 1) pursuant to § 55.1-1255, a landlord makes a request that your Office store the firearm for the 24-hour post-eviction period; 2) the firearm is found to be stolen property; and/or 3) the landlord is legally prohibited from possessing a firearm. In the first scenario, your Office should follow the procedure outlined in § 55.1-1255, which provides the tenant with a right to retrieve personal property at reasonable times during the 24-hour period following eviction. After this 24-hour period has elapsed, the firearm would be returned to the landlord pursuant to § 55.1-1255, unless the firearm is stolen or would be illegally possessed by the landlord. Should you discover that the firearm is stolen, your Office should proceed as it typically would in such a situation. Finally, should you discover that the landlord is legally prohibited from possessing a firearm, your office should retain possession of the firearm after the 24-hour period has elapsed. If the tenant has not claimed the firearm following the 24-hour period, your Office should follow the mandates of § 15.2-1719, which provides for the disposal of unclaimed property that has been acquired by a law-enforcement officer pursuant to his duties, and § 15.2-1721, which applies specifically to the disposal of unclaimed firearms or other weapons in the possession of law enforcement.

Conclusion

Accordingly, it is my opinion that law enforcement may take custody of or confiscate a firearm removed pursuant to an eviction proceeding if it is determined that the firearm is stolen, the landlord is legally prohibited from possessing a firearm, or the landlord requests that law enforcement take possession of the firearm.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General