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Steve O
10-16-2009, 4:11 PM
A friend of mine's wife may receive a restraining order against her. My friend is thinking that if his spouse is under a restraining order, that he might have to surrender his firearms to the sheriff. I told him that doesn't sound right as the restraining order is not on him... but he thinks that because he lives with his wife, and that she could access them, that the sheriff might want them.

Meplat
10-16-2009, 4:38 PM
Get them into private off site storage, yesterday! Except of course The one you wear on your person at all times.

Steve O
10-16-2009, 7:40 PM
I'm sorry i don't understand?

He's under the impression that eather (A) the sheriff may knock on his door with a DROS list of firearms, and request them. or (B) The judge upon issuing the restrainorder will ask them to be surrendered.

Are you saying that he can simpily say "there in storage"

dantodd
10-16-2009, 11:04 PM
He may well need an attorney as the judge may ask for the firearms to be turned in. Don Kilmer is local and advertises here. A phone call to his office should give actual answers and he does a lot of gun and family law work so I'm sure he has experience with this exact situation and can give an answer without draining the bank account.

If it were me I'd start by moving them off-site.

The sheriff is very unlikely to come knocking out of the blue unless the firearms in question are part of the restraining order. As long as he moves them off-site his wife can truthfully tell the judge that she neither owns nor has access to any firearms. If the firearms are in the house she would reasonably have access to them; if they are not in the house and your friend is not on the RO there should be no reason for him to have to surrender his guns.

If he is required to surrender them he should sell them to a friend who is willing to transfer back or sell them to a dealer who will sell them back for some sort of fee. giving them to the police make recovery very unlikely and they WILL get beat up in storage. Also, if required to surrender his firearms, he will have 24 hours to do so which means it's important to have a plan in place NOW.

mmartin
10-16-2009, 11:50 PM
IANAL but based on some recent research and conversations with 2 lawyers on this subject, here's what I know.

typical languange I"ve seen in restraining orders says something like "shall not have possession of or access to" firearms and may include ammo.

technically that means if she's in the house where the guns are, she must not have access, they must be locked in a safe she doesn't have the combo or key to. not-so-technically, how are you going to prove she doesn't know the combo, and couldn't get access to the keys (say while he's sleeping)?

if they are off-site where she doesn't have access, that settles it quite nicely.

based on what you've said, there is no reason he should be required to surrender them, and I would say AVOID doing so... LE frequently makes it difficult to get them back, even though it should be uncomplicated, so don't count on it as a good solution.

he does not have to sell them.

if any are registered to her, she doesn't have to sell them either, just can't have access or possesion.

now if there is some judgement against her that says she can't OWN them, its a different thing. even then she is permitted to transfer them (say to her husband, parent, child, grandparent or grandchild) on an interfamilial tranfer, or sell them outright, but during that process she still can't have access or possesion. IIRC the law provides for her to dispose of them in any lawful manner.

if the guns are on-site and the sheriff DOES come to the door with a warrant, and they THINK she has access, they could confiscate. and from there it gets complicated to get them back, because they are now part of a separate crime (prohibited person in possesion) that they may or may not be able to prove in court.

remembering that IANAL.
megan

Steve O
10-17-2009, 12:42 AM
Ok. I get it. She just cannot have access to them.

It's also good to learn that she was served with the RO under her maiden name, so essentially my friend shouldn't be brought up in it...

And if they are moved off site, she can answer the question honestly...

mmartin
10-17-2009, 2:01 AM
Ok. I get it. She just cannot have access to them.

It's also good to learn that she was served with the RO under her maiden name, so essentially my friend shouldn't be brought up in it...

And if they are moved off site, she can answer the question honestly...

check the language of the restraining order carefully, if it says "access to or possesion of" that's what we're talking about here. if it says "own"... different deal.

might be worth a call to a lawyer just the same, I'm not one, I've just had reason to learn about these things.

megan

mmartin
10-17-2009, 2:03 AM
also know that if they have her ADDRESS they have his, and in theory they could come to his place looking for her and any guns unsecured in that location are at risk.
megan

GrizzlyGuy
10-17-2009, 7:52 AM
Here is the penal code section dealing with restraining orders and firearms:

http://law.onecle.com/california/civil-procedure/527.9.html

If she owns the firearms, she must surrender them to law enforcement within 24 hours and file the law enforcement receipt with the court within 48 hours (whether a sheriff's deputy comes to request them or not).

If your friend owns the firearms and not her, your friend is not required to surrender them. But your friend should store them in some manner so that she cannot possess or control them.

mmartin
10-20-2009, 1:30 AM
Married couples in CA. are subject to community property laws....so....that could mean his guns are her guns. And at the RO hearing the judge may ask if there are any firearms in house....and not specifically ask the wife if SHE owns any guns.

As I understand it, guns are not community property, they are always registered to an individual. they can be transfered between husband and wife without some of the legal hoop-jumping that other transfers require (intra-familial transfer) because of family law around the transfer of property within a marriage, but they belong to one or the other.

the question of her having access is another matter, she may have access to his guns, even if she doesn't own them. and that makes it an issue.

megan

Steve O
10-20-2009, 1:11 PM
Hey thanks everyone. I passed this link along to my friend.

BigBamBoo
10-20-2009, 1:43 PM
............