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Josey Wales
03-30-2010, 7:42 PM
I know I'm new to the forum and wished I had found it before the incident transpired. Long story short, I was booked for DV and my firearm was confiscated. Before I get jumped on...NO, it was not related/part of/with in arms reach/in another room down stairs. As I was escorted to the police car, I see an officer with my firearm, that I keep for home protection, place it in the trunk of his vehicle. My question is what basis does the officer have for taking it? He does not even tell me about it taking it. He does ask for the combo to my safe to which I did not give.

hoffmang
03-30-2010, 7:48 PM
DV does prohibit you until it's dealt with. You need to contact a personal lawyer ASAP.

-Gene

Josey Wales
03-30-2010, 7:54 PM
Gene,

Council was retained. My question is and still why was private property seized without notification.

Josey

cntrolsguy
03-30-2010, 8:00 PM
Gene,

Council was retained. My question is and still why was private property seized without notification.

Josey

Should there not at least be some sort of receipt of items confiscated?

Josey Wales
03-30-2010, 8:12 PM
I never received a receipt nor notification that my firearm was being taken. Fortunately, I was acquainted with the OOD when I was booked and spoke with him at a later date voicing my concern.

anthonyca
03-30-2010, 8:30 PM
Do much research on DV if you have not already. Be in formed that any plea or conviction will take away your gun rights FOR LIFE under the federal lautenberg amendment. The charge you plead to does not have to be called DV, don't plead to anything where ANY touching or perceived threats could be in that law. Google US vs Hayes.

If you are innocent, fight this like it is the fight of your life, because it is. Trust me, this will fallow you for the rest of your life in ways you have never even thought of. Jobs, business dealings, contracting jobs ect. People will find out, I have seen it many times.

Doheny
03-30-2010, 8:32 PM
Look up penal code section 12028.5 (b).

In a nutshell, it says:

[Any peace officer] who is at the scene of a domestic violence
incident involving a threat to human life or a physical assault,
shall take temporary custody of any firearm or other deadly weapon in
plain sight or discovered pursuant to a consensual or other lawful
search as necessary for the protection of the peace officer or other
persons present. <snip> That's why they took it.

.

chris10
03-30-2010, 8:56 PM
Look up penal code section 12028.5 (b).

In a nutshell, it says:

That's why they took it.

.

Yup, they are commanded to take them. Usually the first things out of their mouths are: how many people are in the house and are there any weapons, when they respond to a DV.

BigDogatPlay
03-30-2010, 9:31 PM
The operative words in the section...

... shall take ...

leaves precious little wiggle room for the responding LEOs. They pretty much have to take firearms from a DV scene. I did it as a LEO, and in every case (of mine anyway) it was the right thing to do.

Hopefully counsel will be able to get the OP out of it if the beef was marginal.

hoffmang
03-30-2010, 9:35 PM
However, there should have been a receipt given.

-Gene

cntrolsguy
03-30-2010, 9:39 PM
However, there should have been a receipt given.

-Gene


That's exactly what I was eluding to. There should be some sort of paper trail.

GuyW
03-30-2010, 9:39 PM
My question is and still why was private property seized without notification.




Because CA has no regard for any part of the Constitution.

.

Dr. Peter Venkman
03-30-2010, 9:43 PM
However, there should have been a receipt given.

-Gene

It will be listed in the police report he will receive anyways during discovery.

AndrewMendez
03-30-2010, 9:47 PM
Best of luck to you, in what I am assuming will be a long pain staking process. Anyone in your family you can transfer the guns to that does not live with you? Better they have them then someone else.

SVT-40
03-30-2010, 9:59 PM
Because the items (firearms) were "seized" they will be listed in the report as Seized pursuant to :

Penal Code
12028.5 (b).



Quote:
[Any peace officer] who is at the scene of a domestic violence
incident involving a threat to human life or a physical assault,
shall take temporary custody of any firearm or other deadly weapon in
plain sight or discovered pursuant to a consensual or other lawful
search as necessary for the protection of the peace officer or other
persons present. <snip>

Usually no "receipt" is given when an item is seized upon the command of law. Every agency is slightly different and most MAY leave a notice of items held as evidence, But they are under no obligation to leave a "receipt" for items held as evidence or seized.

These items are then listed in the report as noted above.

As to how the officer obtained the firearms....If you did not tell him.... your spouse provided the information to him. No other way he could find out.

Your firearms should be the least of your worries now. Getting your relationship repaired (if you can, or want to) and dealing with the charges should be the primary focus of your energies.

Bottom line at minimum the firearms will NOT be available to you until AFTER all the DV issues and charges are dealt with.

Good luck in your efforts.

Josey Wales
03-31-2010, 5:41 AM
[QUOTE=SVT-40;4044378]Because the items (firearms) were "seized" they will be listed in the report as Seized pursuant to :

Penal Code
12028.5 (b).

As to how the officer obtained the firearms....If you did not tell him.... your spouse provided the information to him. No other way he could find out.

Your firearms should be the least of your worries now. Getting your relationship repaired (if you can, or want to) and dealing with the charges should be the primary focus of your energies.

Bottom line at minimum the firearms will NOT be available to you until AFTER all the DV issues and charges are dealt with.


SVT-40,

Thanks for the info. You are correct that my spouse informed them where it was located.
Our relationship has been repaired and I am completing the required diversion program. Once that is over, I will address the PO that is in effect.

Josey Wales
03-31-2010, 6:30 AM
Gene,

I contacted my attorney this morning to have him review the police report and see if the firearm was mentioned.

JSilvoso
03-31-2010, 9:02 AM
Usually no "receipt" is given when an item is seized upon the command of law. Every agency is slightly different and most MAY leave a notice of items held as evidence, But they are under no obligation to leave a "receipt" for items held as evidence or seized.

These items are then listed in the report as noted above.

Not really.


Cal Pen 12028.7. Receipt for firearm taken into custody

(a) When a firearm is taken into custody by a law enforcement officer, the officer shall issue the person who possessed the firearm a receipt describing the firearm, and listing any serial number or other identification on the firearm.

(b) The receipt shall indicate where the firearm may be recovered, any applicable time limit for recovery, and the date after which the owner or possessor may recover the firearm pursuant to Section 12021.3.

(c) Nothing in this section is intended to displace any existing law regarding the seizure or return of firearms.


This code section is often ignored.

SVT-40
03-31-2010, 10:17 AM
Not really.


Cal Pen 12028.7. Receipt for firearm taken into custody

(a) When a firearm is taken into custody by a law enforcement officer, the officer shall issue the person who possessed the firearm a receipt describing the firearm, and listing any serial number or other identification on the firearm.

(b) The receipt shall indicate where the firearm may be recovered, any applicable time limit for recovery, and the date after which the owner or possessor may recover the firearm pursuant to Section 12021.3.

(c) Nothing in this section is intended to displace any existing law regarding the seizure or return of firearms.


This code section is often ignored.

You are correct. Except there in no time limit in which the notice may be given. Since the LEO's have no idea when the firearms could be returned They must wait for this info until either there is no filing or the case is adjudicated.

It could be months until the DA decides on the case and even years if the case goes to trial.

Josey Wales
03-31-2010, 11:19 AM
My case was placed on hold upon completion of a diversion program. Once the course is done I should be free and clear with charges dismissed. This will be in three months. I still wonder about the receipt, though, because it has been over year since the seizure.

BigDogatPlay
03-31-2010, 12:25 PM
Be very careful that the conditional dismissal expunges the action completely. Your attorney should absolutely be certain with that for you. If any sniff of a misdemeanor DV or battery conviction remains on your record, you will have a minimum ten year prohibition from firearms ownership.

SteveH
03-31-2010, 12:29 PM
"[Any peace officer] who is at the scene of a domestic violence
incident involving a threat to human life or a physical assault,
shall take temporary custody of any firearm or other deadly weapon in
plain sight or discovered pursuant to a consensual or other lawful
search as necessary for the protection of the peace officer or other
persons present."

Note that it says Shall, not may or should. Shall. Meaning must.

Josey Wales
03-31-2010, 1:14 PM
Be very careful that the conditional dismissal expunges the action completely. Your attorney should absolutely be certain with that for you. If any sniff of a misdemeanor DV or battery conviction remains on your record, you will have a minimum ten year prohibition from firearms ownership.

Thank you. I made that point perfectly clear to my attorney BEFORE any deal would be accepted.

anthonyca
03-31-2010, 7:13 PM
Thank you. I made that point perfectly clear to my attorney BEFORE any deal would be accepted.

Joe Silvoso responded earlier in this thread. I suggest you contact him, he is an excellent attorney and very well versed in firearms and DV law. You would be shocked at how many attorneys know nothing about the reach of DV laws.

Did you plead to ANYTHING? Diversion program? Are you sure that is not just the mandatory 52 week program that is required even if you plead to some "minor" charge? Are you and your attorney aware of the federal lautenberg amendment and the case law? It may be too late, but you need to contact Joe Silvoso. If you value your gun rights you will never get a chance to fix this if it is done wrong the first time. Look up the Kim writ of error coram case. You may be able to withdraw your plea if done soon, there is a very short window. I am not a lawyer and don't know the facts of your case, I am just telling you what I have seen.

I saw MANY people loose their military career and pension back in the late 90s and early 2000s when this came out. They almost all sounded like you.

CavTrooper
03-31-2010, 7:30 PM
My case was placed on hold upon completion of a diversion program. Once the course is done I should be free and clear with charges dismissed. This will be in three months. I still wonder about the receipt, though, because it has been over year since the seizure.

A diversion program is what we call an "other adverse disposition", which basically means, for all intents and purposes, you were guilty and were punished.

It might not be a Lautenburg conviction, but it will effect you if you were ever planning on working anywhere that required a security clearence.

Josey Wales
03-31-2010, 7:43 PM
Joe Silvoso responded earlier in this thread. I suggest you contact him, he is an excellent attorney and very well versed in firearms and DV law. You would be shocked at how many attorneys know nothing about the reach of DV laws.

Did you plead to ANYTHING? Diversion program? Are you sure that is not just the mandatory 52 week program that is required even if you plead to some "minor" charge? Are you and your attorney aware of the federal lautenberg amendment and the case law? It may be too late, but you need to contact Joe Silvoso. If you value your gun rights you will never get a chance to fix this if it is done wrong the first time. Look up the Kim writ of error coram case. You may be able to withdraw your plea if done soon, there is a very short window. I am not a lawyer and don't know the facts of your case, I am just telling you what I have seen.

I saw MANY people loose their military career and pension back in the late 90s and early 2000s when this came out. They almost all sounded like you.

Quote from my attorney: "There has been no plea yet; thus, this matter is a DA diversion program that you are supposed to be taking part/attending and the judge wants to make sure you are."

Josey Wales
03-31-2010, 7:45 PM
A diversion program is what we call an "other adverse disposition", which basically means, for all intents and purposes, you were guilty and were punished.

It might not be a Lautenburg conviction, but it will effect you if you were ever planning on working anywhere that required a security clearence.

How will this affect a current clearance?

CavTrooper
03-31-2010, 7:47 PM
How will this affect a current clearance?

most likely... negatively.

Josey Wales
03-31-2010, 7:49 PM
most likely... negatively.

Even if security was notified of all aspects?

jasilva
03-31-2010, 7:54 PM
That's not true, it depends on the diversion program. I had 2 different misdemeanors that I went through diversion for in my early 20s(approx. 20 years ago). I have "All Access" clearances for 5 different airports, 2 major port's secure customs areas and CCW for NV and UT. Never a single hiccup getting clearances.

Josey Wales
03-31-2010, 8:11 PM
Joe Silvoso responded earlier in this thread. I suggest you contact him, he is an excellent attorney and very well versed in firearms and DV law. You would be shocked at how many attorneys know nothing about the reach of DV laws.

Did you plead to ANYTHING? Diversion program? Are you sure that is not just the mandatory 52 week program that is required even if you plead to some "minor" charge? Are you and your attorney aware of the federal lautenberg amendment and the case law? It may be too late, but you need to contact Joe Silvoso. If you value your gun rights you will never get a chance to fix this if it is done wrong the first time. Look up the Kim writ of error coram case. You may be able to withdraw your plea if done soon, there is a very short window. I am not a lawyer and don't know the facts of your case, I am just telling you what I have seen.

I saw MANY people loose their military career and pension back in the late 90s and early 2000s when this came out. They almost all sounded like you.

Thank you and everyone on this thread for the EXTREMLY useful info. Though I'm not military, I'm still under their umbrella concerning access. I'll be giving Mr. Silvoso a call. Once again, much thanks.

Doheny
03-31-2010, 9:04 PM
Good luck to you. Stick around, since you appear to enjoy guns!

Josey Wales
04-08-2010, 7:26 PM
Good luck to you. Stick around, since you appear to enjoy guns!

I'd enjoy them better if I could get them back!

anthonyca
04-11-2010, 8:18 PM
Any news?

Josey Wales
04-13-2010, 11:52 AM
Any news?

I'll know more in July when my diversion course is complete. Thanks for asking. I'll keep you posted.

Josey Wales
05-05-2010, 1:03 PM
No news to report but still on track for completion of the diversion course in June/July time frame. I have a progress report date the fourth week of June. Any advice, questions I should ask, etc?

anthonyca
06-13-2010, 9:51 AM
I saw another thread where you posted positive news. Can you talk about what is going on yet?

Josey Wales
06-14-2010, 6:50 AM
I will know where I stand by the end of July/beginning of August. Right now I'm getting my paperwork in order. Thanks for asking. I will post when my case is concluded. I would like to take this time to says thanks to Atty Joe Silvoso for offering his knowledge and support to my current atty.

Josey Wales
07-30-2010, 9:15 AM
Gentlemen, I've just return from court and am glad to report all charges have been dismissed. The P.O. rescinded and bail removed. Judge even ordered the return of my firearm against, get this, "The wishes of the people". Prosecutor even had to admit she had no legal argument against the return.

Thank you to all who imparted the wisdom for me to get through this. It's been a long haul. Can't wait to retrieve my Sig.

dantodd
07-30-2010, 9:21 AM
Congrat!!!!!

glad to see you got your rights restored, I'm sorry that it cost money and time but happy to know there are good lawyers out there to help.

Munk
07-30-2010, 12:02 PM
Judge even ordered the return of my firearm against, get this, "The wishes of the people". Prosecutor even had to admit she had no legal argument against the return.

Good for you, and i'm glad the judge issued that order. I've read far too many horror stories here of people having guns just "dissappear" or get destroyed while they're in police custody.

Maltese Falcon
07-30-2010, 12:09 PM
Good outcome Sir....

If I could ask a question, whatever became of your refusal to supply the combo to your safe?

.

Window_Seat
07-30-2010, 12:20 PM
Glad to see that you have prevailed, and that your 2A rights have been returned to you. Hopefully this becomes the norm, and that AH Lautenburg Amendment eventually goes down in flames. :thumbsup:

Erik.

Josey Wales
07-30-2010, 12:23 PM
Maltese,

Safe stayed right where it was (without being opened) and was never asked about it again.

OleCuss
07-30-2010, 1:28 PM
I second the congratulations and the gratitude to the lawyers!

I'd also like to thank the OP and responders for the opportunity to learn a bit more about the issues.

pullnshoot25
07-30-2010, 1:44 PM
Good for you dude. This DV bullcrap needs to end.

Josey Wales
07-30-2010, 4:42 PM
I posted another thread about retrieving my gun but I didn't add the background details. Now I'm wondering if the judges' order will be sufficient to release my Sig or do I go the LEGR route. Thoughts?

yellowfin
07-30-2010, 6:30 PM
Be sure to sue the hell out of whoever did this to you.

SVT-40
07-30-2010, 6:51 PM
I posted another thread about retrieving my gun but I didn't add the background details. Now I'm wondering if the judges' order will be sufficient to release my Sig or do I go the LEGR route. Thoughts?

You will in all likelihood need a LEGR. That is the only legal way a dept or SO can release a firearm to an individual. I've helped a few guys here through the process. Drop me a P/M if you need any assistance.

Josey Wales
07-30-2010, 7:11 PM
SVT-40

PM sent

obeygiant
07-30-2010, 10:20 PM
Congratulations and thank you for posting the update.

Josey Wales
08-02-2010, 4:38 PM
Just sent my LEGR to DOJ. Keep you posted.