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sac550
11-10-2008, 10:17 AM
If a person's firearms are lawfully seized by the police and no charges are filed by DA. Does the gun owner (prohibited person for ten years) have a right to have those firearms transfered to a FFL for sale to a private party? Or can LE destroy the firearms? Lets assume the firearms are in the name of the prohibited person and there is no question the prohibited person legally purchased the firearms.

sorensen440
11-10-2008, 10:19 AM
Was this person a prohibited person when said firearms were seized?

sac550
11-10-2008, 10:23 AM
Yes, prohibited for ten years at the time the guns were seized.

sorensen440
11-10-2008, 10:26 AM
I doubt it then
and if I were this person I would be thankful I wasn't charged for having them.

JDay
11-10-2008, 10:31 AM
If a person's firearms are lawfully seized by the police and no charges are filed by DA. Does the gun owner (prohibited person for ten years) have a right to have those firearms transfered to a FFL for sale to a private party? Or can LE destroy the firearms? Lets assume the firearms are in the name of the prohibited person and there is no question the prohibited person legally purchased the firearms.

Prohibited for 10 years because of a conviction that happened after the lawful purchase of said firearms? I think you have the option to transfer them to a family member or sell them in that case. Your best bet is to contact a lawyer.

halifax
11-10-2008, 10:32 AM
I believe the firearms can be released to an FFL for legal transfer.

I did it once for a guy that had them shipped to his son out-of-state. Extra paperwork and notary service was required but generally went OK.

ohsmily
11-10-2008, 10:36 AM
If a person's firearms are lawfully seized by the police and no charges are filed by DA. Does the gun owner (prohibited person for ten years) have a right to have those firearms transfered to a FFL for sale to a private party? Or can LE destroy the firearms? Lets assume the firearms are in the name of the prohibited person and there is no question the prohibited person legally purchased the firearms.

We need more information before we can help you.

When did the prohibiting conviction occur? When were the guns seized?

If you are convicted of a prohibiting offense, you have a short period of time to divest yourself of ownership of those guns by selling them to an FFL or otherwise getting rid of them. Usually, as a condition of release on bail, they will require that you divest yourself of possession of those guns while the case is pending.

If said prohibiting conviction occurred a while ago, and you are outside the time that you had to get rid of them, then there is NO WAY you are going to get those guns back. For example, you had a DV conviction 2 years ago and recently were arrested for something else and the guns were confiscated, you would be screwed. Furthermore, you can be charged with felonies in state court and worse, you could be charged in FEDERAL court. In general, you can be looking at 5-10 years if convicted in federal court for being a felon in possession. It is ridiculous that the penalty is so severe, but it is. I know this for a fact. Do NOT possess firearms if you are a prohibited person...it isn't worth the risk.

PM me if you want more information.

sac550
11-10-2008, 10:40 AM
I know they can be released if the Sheriff wants to, but are they required to by law to release to a FFL if no charges were filed and there is no court order that they be destroyed.

What if no charges were filed because it was an illegal search, does that make a difference.

JDay
11-10-2008, 10:57 AM
If the search was illegal but you were prohibited they will not release the weapons to you however they cannot be used as evidence.

Hoop
11-10-2008, 11:00 AM
If the search was illegal but you were prohibited they will not release the weapons to you however they cannot be used as evidence.

Probably why his friend wasn't charged.

Like everyone else said, talk to a lawyer.

ohsmily
11-10-2008, 11:31 AM
Like everyone else said, talk to a lawyer.

I have some time today if the OP wants to give me a call. PM me first.

hoffmang
11-10-2008, 12:55 PM
A prohibited person is only barred from possession - not ownership. As such there is a specific section of the Penal Code that allows seized firearms to be released to an FFL for resale with the funds coming back to the former, now prohibited owner. The section is right next to the LEGR section in the Penal Code but I don't have time to run the search.

-Gene

ohsmily
11-10-2008, 1:14 PM
A prohibited person is only barred from possession - not ownership. As such there is a specific section of the Penal Code that allows seized firearms to be released to an FFL for resale with the funds coming back to the former, now prohibited owner. The section is right next to the LEGR section in the Penal Code but I don't have time to run the search.

-Gene

It is PC 12021. It is next to 12021.3 (the LEGR section).

Section 12021(d)(2) outlines what should happen if you are convicted of a prohibited offense:
(2) For any person who is subject to subdivision (a), (b), or (c),
the court shall, at the time judgment is imposed, provide on a form
supplied by the Department of Justice, a notice to the defendant
prohibited by this section from owning, purchasing, receiving,
possessing or having under his or her custody or control, any
firearm. The notice shall inform the defendant of the prohibition
regarding firearms and include a form to facilitate the transfer of
firearms. Failure to provide the notice shall not be a defense to a
violation of this section.

If you are convicted of a prohibiting offense, you are supposed to "immediately" divest yourself of possession by designating a third person (non prohibited person) who will then transfer the guns, sell them, or surrender them. I suppose you could immediately drive them to the police station for surrender as well (bad idea).
Here is the requisite form with the pertinent information. http://www.mendocino.courts.ca.gov/forms/FirearmPowerAttyFD110.pdf

Rumpled
11-10-2008, 6:38 PM
Aren't there cases where you could be prohibited from buying firearms, but could still own them?

ohsmily
11-10-2008, 7:49 PM
Aren't there cases where you could be prohibited from buying firearms, but could still own them?

Yes. If you are under an information or under indictment but have not yet been convicted, you may be legally allowed to possess the guns but the DOJ will deny a DROS and will not allow any guns to be transferred to you. This does not apply to all offenses. For example, if you are charged with DV, you can't be in possession.

The situation you describe above won't be a permanent situation. It will only be true while the case is pending. Once it is resolved, you will either become a prohibited person or your rights will be restored (dismissal or exoneration).

sac550
11-11-2008, 7:14 PM
A prohibited person is only barred from possession - not ownership. As such there is a specific section of the Penal Code that allows seized firearms to be released to an FFL for resale with the funds coming back to the former, now prohibited owner. The section is right next to the LEGR section in the Penal Code but I don't have time to run the search.

-Gene

If you are prohibited you can not own any firearm.


12021:(a) (1) Any person who has been convicted of a felony under
the laws of the United States, the State of California, or any other
state, government, or country or of an offense enumerated in
subdivision (a), (b), or (d) of Section 12001.6, or who is addicted
to the use of any narcotic drug, and who owns, purchases, receives,
or has in his or her possession or under his or her custody or
control any firearm is guilty of a felony.

hoffmang
11-11-2008, 7:34 PM
If you are prohibited you can not own any firearm.


12021:(a) (1) Any person who has been convicted of a felony under
the laws of the United States, the State of California, or any other
state, government, or country or of an offense enumerated in
subdivision (a), (b), or (d) of Section 12001.6, or who is addicted
to the use of any narcotic drug, and who owns, purchases, receives,
or has in his or her possession or under his or her custody or
control any firearm is guilty of a felony.

On chattels, possession is loosely linked to ownership. That said the point is this. Absent an actual court order of rescission of the weapon, the newly minted felon has a pecuniary interest in the proceeds of the firearm. To keep the recently prohibited from having a property claim against the state, the state allows the felon to sell and transfer seized firearms to an FFL.

-Gene