View Full Version : An update to the Hayward man whose collection was seized and sold

03-10-2009, 9:09 PM
As an update to this thread (http://www.calguns.net/calgunforum/showthread.php?t=159455), there was a follow up story. I'm usually not one to judge, but the guy's story sounds like it's been complicated by only himself. First, who leaves guns unlocked when you have a convicted felon and mentally unstable son. Second, how could you not find a lawyer willing to accept this case? You most certainly can't expect to represent yourself in front of the 9th circuit. Third, how does a convicted felon co-own a firearm?

Link to the story (http://www.insidebayarea.com/search/ci_11882388?IADID=Search-www.insidebayarea.com-www.insidebayarea.com)
HAYWARD — Ed Barsch lost his guns, but he isn't ready to lose his fight.

When police confiscated the 82-year-old Hayward resident's firearm collection three years ago without providing him with compensation, Barsch filed a lawsuit against former City Attorney Michael O'Toole, police Lt. Bernard Licata, Capt. Darryl McAllister and several officers who entered his home.

On Nov. 27, 2007, U.S. District Court Judge Susan Illston tossed out the lawsuit. Barsch appealed, but on March 2 the Ninth Circuit Court of Appeals ruled against him.

"I can file a petition for a rehearing, which I'm doing," Barsch said Monday. He said he plans to file the petition before next week's deadline.

Barsch has been representing himself in court, explaining that he contacted civil rights attorneys but they told him, "You can't win a case with the police. Nobody would take the case."

Barsch contends that on Jan. 31, 2006, his gun collection, which he valued at between $33,000 and $36,000, was illegally taken from him during a police search of his home on Buchanan Way. Barsch had gone to police after his bipolar son threatened to kill him during a "psychotic episode."

Police arrived on the scene and arrested Barsch's adult son, Wayne Barsch, in front of the home. The son then reportedly told police he had solicited a prostitute at an Emeryville hotel the night before and had stabbed the prostitute's pimp — although this was never proven.
Police had also reportedly listened to death threats made by Wayne Barsch on his sister's answering machine. Under these circumstances, police decided to conduct a "protective sweep" of the Barsch home and confiscated 14 handguns, 17 rifles including an Uzi, three assault rifles, ammunition and three knives.

"Some of them were mine. Some of them were his. Some were owned by both of us," Ed Barsch said of the weapons that belonged to him and his son. "They took the knives, which aren't firearms. They took my air rifle."

Hayward Police Lt. Christine Orrey said the weapons were confiscated in the interest of safety.

"An emergency psychiatric evaluation hold allows us to seize weapons to be sure that they are not used to harm others," she said. "This was a classic example. You have someone within a reported mental disorder reported to be off his medication threatening his family. That's a recipe for disaster if we did not take action. We would have been negligent if we did not seize those weapons.

"When the officers conducted a protective sweep of the Barsch home, the firearms were in plain view in the living room," Orrey said. "They were not locked in a safe."

Assistant City Attorney Randy Hom said the court commanded the Hayward Police Department to sell or destroy the seized guns.

"The court further ordered that any proceeds from the sale would be paid to Barsch's son," Hom said.

Police destroyed or sold off the weapons, and Wayne Barsch was compensated $4,714. But Ed Barsch received nothing, even though he says he has bills of sale. There was no further explanation as to why Ed Barsch was not ordered to receive any compensation.

"We complied with orders of the court to destroy the assault weapons and to offer for sale at public auction to a properly licensed firearms dealer the firearms, which are legal to possess in California," Orrey said. "They were sold to a local firearms dealer via a public auction. The proceeds were given to Wayne Barsch from the dealer, pursuant to the original court order. It is my understanding that part of his appeal was an attempt to get the firearms back. The appellate court upheld the ruling of the lower court to sell and/or destroy the weapons."

Barsch, a World War II and Korean War veteran, said his interest in firearms stems from his time in the military.

"I'm an old Army guy," he said. "I was an ordnance repair supervisor. I could repair anything, from a pea shooter to the biggest thing they got to shoot. I've been captains of rifle teams. I'm a crack shot. It's just one of my interests that I like."

Barsch contends that the search and subsequent seizure of the weapons was a violation of his constitutional rights, and also claims the police report regarding the incident contains incorrect information, stating that he did not give police permission to search his home and that the police's contention that a dead pimp or prostitute might be inside was overblown and false.

However, Barsch said he is not confident that his petition for rehearing will be successful. "We don't live in a free country," he said. "But I think maybe if you go through the entire judicial system you might find an honest judge."

Wayne Barsch, a diesel mechanic in his 40s who has a history of bipolar disorder, was arrested and criminally prosecuted on several charges related to the January 2006 incident, including being a felon in possession of a firearm and making criminal threats. He served seven months at Santa Rita Jail in Dublin and was released. Ed Barsch said he has since had no contact with his son.

No information was available about Wayne Barsch's prior felony conviction.

nor whether the firearms he owned were purchased before or after the conviction.

03-11-2009, 7:12 AM
First, who leaves guns unlocked when you have a convicted felon and mentally unstable son. Second, how could you not find a lawyer willing to accept this case? You most certainly can't expect to represent yourself in front of the 9th circuit. Third, how does a convicted felon co-own a firearm?

Link to the story (http://www.insidebayarea.com/search/ci_11882388?IADID=Search-www.insidebayarea.com-www.insidebayarea.com)

My take - he's about 80 years old and practiced the habits from a different era where none of that was deemed necessary.

03-11-2009, 9:13 AM
exactly the guy is old school....things were diffrent when he was active in the gun community....

03-11-2009, 10:28 AM
His first problem was to try to hire the wrong lawyers and then decide to represent himself in court after no lawyers that he contact would take his case...

03-11-2009, 10:47 AM
bummer for him... a good lawyer could have made ALL the difference for sure...

Creeping Incrementalism
03-11-2009, 3:33 PM
bummer for him... a good lawyer could have made ALL the difference for sure...

When you consider the odds of winning and the cost of a good lawyer, it may not be worth it.

03-11-2009, 4:38 PM
Whether or not he was old school is irrelevant: when you've got a crazy guy in the house making threats to your daughter, you don't leave weapons out. That's negligent and dangerous, regardless of his experience.

And representing himself? That's just stupid. You should never, ever, under any circumstances, even if there is ample evidence on your side, represent yourself. NEVER.

And third, where is the NRA? You'd think they'd assist the guy, find him a lawyer, if only to protect the rights of legal gunowners, if some wrong has indeed been done. Yep, nowhere to be found, just like during Heller and now during something much smaller. Guess they don't want the bad publicity.

Anyway, sucks for the old timer, but if I were his neighbor I'd be nervous about a crazy son with unrestricted access to weapons.

It's amazing how much of this information was not revealed in the first thread which made it seem that he was the victim and the system had abused its powers.

03-11-2009, 5:17 PM
The seizure may be reasonable -- The lack of proper compensation is criminal --- perhaps the ACLU will help --