Civil Forfeiture in Wyoming: Firearms Seizures Raise Second Amendment Concerns and Will Test the State’s New “Red Flag” Seizure Prohibition

by Steve Klein 

The most recent reports from the Wyoming Attorney General to the Legislature that I discussed in a recent post paint a detailed but incomplete picture of cash seizures under the Wyoming Controlled Substances Act from 2018 through 2022. This is part of a practice called civil forfeiture, which permits the government to seize and keep property that is allegedly related to crime. Wyoming law has been improved with some notable reforms to the practice in the last decade, but the government may still go after property without convicting or even charging the owner criminally. So, it's important to keep an eye on the practice until, hopefully, it is replaced with criminal forfeiture and property is kept safe until the owner is convicted. The attorney general's reports also indicate a problem with civil forfeiture in addition to concerns about due process and property rights: firearm seizures under the law can violate the Second Amendment and are sure to test Wyoming's recent prohibition of "red flag" gun seizures.

Forfeiture efforts in Wyoming focus largely on narcotics themselves, which the state destroys after seizure (keeping only a small amount in evidence for prosecution), and cash that is allegedly related to the drug trade, which the state tries to permanently keep (that is, forfeit) after it is seized. But the law does not stop there. It permits seizure and forfeiture of "[a]ll raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substances in violation of this act[.]" Wyo. Stat. Ann. § 35-7-1049(a)(ii) (emphasis added). That includes property like vehicles and firearms.

Firearm seizures and forfeitures under the state drug laws are infrequent in Wyoming. These are the official numbers reported from 2018-2022:

Importantly, forfeiture cases can take more than a year, and often overlap from one year to another. That's one reason why many firearms can be seized in one year and then neither forfeited nor returned in that same year. But even a glance at the numbers here suggests that there's either a good deal of missing information or the government is holding onto a lot of seized firearms without any disposition of the forfeiture action. I believe it's mostly the simpler answer, a disclosure problem similar to the one I discussed in my last post regarding cash forfeitures. Because the attorney general's 2021 report only presents forfeiture data from cases that began and ended that year, the reports don't disclose the outcome of many cases from 2019 and 2020:

(The question marks at points are where a report shows the firearm was forfeited but does not provide a date.)

Though incomplete, the recent reports provide some important insights. Most seized firearms are pistols, followed by rifles and a few shotguns. Seldom are the rifles AR15s or other models fed by detachable magazines, which tends to weigh (at least a little) against the rhetoric of gun control proponents. I've redacted the names of property owners above, but there are many cases where multiple firearms were taken from the same owner. For example, 47 of the 89 firearms seized in 2019 were from one owner, what I suspect was the inventory of a pawn shop that was used as part of a methamphetamine ring in Sweetwater County. The owner was convicted and sentenced to prison. Plenty of firearms are seized incident to an arrest—that is, where the suspected drug dealer is allegedly carrying a firearm as part of the trade. But while it seems a stretch to claim an owner's entire collection is "used" or "intended for use" in the delivery of drugs, that is nevertheless how the law works.

With criminal prosecution in mind, after a felony drug conviction occurs the forfeiture of a firearm is going to happen one way or another: one cannot, of course, possess a firearm while incarcerated and federal law (and, though narrower, Wyoming law) prohibit a felon from possessing a firearm upon release unless he has his civil rights restored. But that does not mean that the government should get to keep the firearm instead of permitting the owner to sell it or transfer it to a family member or friend. And how a criminal case ends puts the cart before the horse: can firearms really be seized and held for months or a year before the owner is convicted of a crime?

Nothing illustrates the problem better than the one instance in which the state returned firearms in the five-year period. Those five firearms (of a total of 212 seized) also belonged to one owner. The story was well documented, though I do not believe the firearms seizure was discussed publicly until now. The Wyoming Division of Criminal Investigation, which acts under the authority of the attorney general, seized the firearms when it raided a farm in Laramie County in November, 2019. The agency, and local prosecutor, claimed that 700 pounds of hemp seized in the raid was, in fact, marijuana, owing to a THC level of 0.6% in some samples. Technically, under Wyoming law, this made that hemp marijuana, but most of the samples were at or below the legal limit of 0.3% THC. The case was dismissed in August, 2020, the prosecutor was censured by the Wyoming Supreme Court for misconduct during the case, and the landowner is suing the DCI agent and the agency over the matter. The government's whole effort seems laughable in light of concerns with marijuana and other items loaded with THC. The firearms were finally returned in October, 2020, having been in the custody of the state for nearly a year.

This hemp case was, of course, atypical. As I noted in my last post it seems recent cash forfeiture actions under the drug law are paralleling criminal prosecutions of major drug crimes, many that are dealing with methamphetamine and fentanyl distribution. But in any case, if a gun owner is not a felon or otherwise constitutionally restricted from firearm possession, outside of a temporary seizure of firearms on one's person during an arrest the act of seizing someone's firearms before conviction—or without any criminal charge at all, as the law permits—likely violates the Second Amendment. Such seizures are far outside of the plain text of the right to keep and bear arms and our nation's historical tradition of firearm regulation. Though the Supreme Court's affirmation of Second Amendment rights in the Bruen case a few years ago continues to be applied unevenly across the country, the legal framework for gun seizures under the Controlled Substances Act cannot hold up for a lot of people prior to conviction.

It is possible that gun seizures under Wyoming's drug law are prohibited following the passage of the "Prohibit Red Flag Gun Seizure Act" in the last legislative session, but this is unfortunately not certain. The law reads mostly well: it prohibits "any [state] agency … from enforcing … any state statute … that would enforce a red flag gun seizure order against or upon a resident of Wyoming." A red flag gun seizure includes "any state statute … that … [o]rders the removal or requires the surrender of a firearm, ammunition or related accessories from a person unless the person has been convicted of a felony crime" or is otherwise lawfully prohibited from possessing a firearm, such when one has been dishonorably discharged from the military. The law specifically "preempt[s] any … law, ordinance or regulation that may conflict with the provision of this act." If only that were the end of it.

The Red Flag law contains a nebulous exception: "Nothing in this act shall be construed to prohibit or prevent a firearm, firearm accessory or ammunition from being seized as evidence or collected by law enforcement in the course of a lawful investigation." The word "collected" was inserted at the suggestion of a police lobbyist, who claimed in testimony that the concern relates to letting citizens turn in lost firearms that they find. On one hand, it seems obvious that firearms are not "seized as evidence" under drug laws. Or are they? That aside, are they "collected … in the course of a lawful investigation"? When asked about the word "collected", the same law enforcement lobbyist commented "I wouldn't attempt to say what it legally means." Whether this preempts gun seizures under the Wyoming Controlled Substances Act prior to conviction is thus an open question. Hopefully judges will give the Second Amendment more deference than the wording of the exception.

The attorney general's office should redo its 2021 forfeiture report. If broader reform for criminal forfeiture cannot happen in the coming sessions, the Legislature should consider amending the drug forfeiture law to specifically conform to the red flag seizure prohibition and prohibit seizures of firearms without conviction of a drug crime. In the meantime, it will be interesting to see if and how Wyoming courts will apply the new red flag prohibition.

Steve Klein is a partner with the law firm Barr & Klein PLLC in Washington, DC and a lobbyist for the Wyoming Liberty Group.