Delaware County attorney C. Scott Shields says Mayor-elect Michael Nutter's "stop-and-frisk" proposal for getting illegal guns off Philadelphia's streets is a lawsuit waiting to happen.
Shields, the mayor of Rutledge Borough, plans to sue the city himself if Nutter implements the policy – just as soon as he gets done suing Upper Darby Township for what you might call its "take-and-keep" approach to gun control.
Shields is representing township resident Mary Welsch, who claims in a federal lawsuit before U.S. District Judge Juan R. Sanchez that police illegally took her deceased father's guns from her house, then refused to return them without a court order.
The township has agreed to give the 16 guns back to Welsch, her father's sole beneficiary, but she is pushing ahead with the civil rights suit in an attempt to have the department's gun-seizure policy declared unconstitutional.
If there is a ruling in the case, it could potentially set a precedent that impacts Philadelphia's ability to seize guns in certain situations, said Temple Law School professor David Kairys.
The lawsuit, filed in October, stems from an incident last summer, during which Upper Darby police cleared Welsch's Dennison Avenue home of firearms after her father shot himself to death with a revolver.
But, the suit states, police later refused to return the guns even though the death was ruled a suicide the next morning and the investigation was closed.
Ray Britt, a retired Upper Darby detective who served on the force from 1996 to 2004, said yesterday that uniformed cops were routinely instructed to seize legally owned guns when they responded to domestic disputes.
When the owners came to the station to get their guns back, Britt said, police typically told them that they needed to hire an attorney and get a court order. Some of those firearms were later resold to local gun shops, he said.
Police Superintendent Michael Chitwood Sr. said yesterday that his department will not return seized firearms without a court order or his personal approval. Those that aren't returned to the owners are destroyed.
The federal Bureau of Alcohol, Tobacco, Firearms and Explosives and the state attorney general's office are investigating aspects of the township's policy.
Those investigations are focused on activity that apparently predated Chitwood's arrival in 2005.
Upper Darby no longer resells guns to dealers. But its policy of confiscating firearms – sometimes solely for safety reasons – then requiring a court order before returning them could leave the township open to lawsuits from legal gun owners, said Widener Law School professor Wesley Oliver.
"It's very clear to me that her constitutional rights have been violated," Oliver said of Welsch. *