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mbrown
04-22-2010, 6:43 AM
My brother is separated from his wife. Yesterday he was served with a restraining order, which surprised him. My understanding is that the whole order is based on: "he has guns and it scares me that he might use them." I believe the order states that there have been no verbal or physical threats made against her. Can they, will they take his guns away based on this? Where should he go for advice or defense?

NiteQwill
04-22-2010, 6:48 AM
The whole TRO thing is crazy stupid. Now your brother cannot have access to firearms AFAIK.

bodger
04-22-2010, 8:51 AM
Seems like all anyone (especially a woman) has to do these days is claim that she's afraid of someone, and POOF! Instant TRO.
And I think the poster above is correct, no more guns. They have to be transferred out of the person's name who has the TRO against them in something like 48 hours.
I'm sure someone will come along and correct any inaccuracies to my post.

Casual_Shooter
04-22-2010, 8:56 AM
I'll assume he was served with a TRO (Temporary Restraining Order).

It's purpose is to get immediate protection for the person requesting it. Then a hearing is held to determine whether or not there is a valid reason to issue a Restraining Order with some sort of time frame attached to it. i.e. 3 years etc.

My understanding is that even with a TRO, the person on the receiving end must turn any firearms within their possession, control etc to a local law enforcement agency or transfer them to a dealer. I've read where people transfer them to friends, but I have not seen wording on a TRO that allows for that option.

Unless there have been other issues, I don't think just because one has guns will not be enough to grant a Restraining Order at the hearing.

Contacting a lawyer would be the first step. If you are in San Diego, I can refer you to one.

tgriffin
04-22-2010, 9:04 AM
OK here is the deal.

He MUST sell or transfer all firearms, ammunition, and while not legally necessary, I'd move EVERYTHING firearms related to another location NOT under his control. This has to happen ASAP.

Have him transfer all firearms and ammunition to you or a trusted family member now for $1.

He can not have access to them at all.

They take TRO's very seriously. When they say no contact, they mean no contact. He should not accept ANY calls or emails. Anything and everything should go through an attorney.

Good luck. This is a very unfair and a VERY biased process favoring the woman.

GrizzlyGuy
04-22-2010, 9:09 AM
Here is the statute, California Code Of Civil Procedure 527.9 (http://law.onecle.com/california/civil-procedure/527.9.html):

(a) A person subject to a temporary restraining order or
injunction issued pursuant to Section 527.6 or 527.8 of the Code of
Civil Procedure, or subject to a restraining order issued pursuant to
Section 136.2 of the Penal Code, or Section 15657.03 of the Welfare
and Institutions Code, shall relinquish the firearm pursuant to this
section...

Like tgriffin said, this truly must happen ASAP (within 24 hours, read the rest of the law).

Big Jake
04-22-2010, 9:16 AM
Pathetic!

Sinixstar
04-22-2010, 9:48 AM
Worst case - would it be possible to Pawn the guns for safe keeping?
I've heard of people doing this in northern states for safe storage before making a day trip up to Canada.

I just don't know if pawning would be considered transfer...

Casual_Shooter
04-22-2010, 10:28 AM
I think it would depend on the wording of the TRO and how closely one would want to follow it.

My personal experience with them showed that there was no option for pawning (unless it's a gun dealer) or loaning/ transferring to a friend.

Untamed1972
04-22-2010, 10:29 AM
GD!!! When is someone gonna challenge this crap law that strips a person of their property with ZERO due process.

Perhaps if incorporation comes about and 2A is a fundamental right then it can be challenged.

Here is a better idea.....instead of the person having 48hrs to dispose of guns w/o any due process......why not require that the hearing be held within 48 hours to determine the validity of the complaint. And bare, unfounded fear on the part of one party should not be enough to sustain a TRO.

Or instead of a TRO......grant the party in fear the right to a one time purchase of a gun which waives the 10day wait.

If it can be proved the TRO was sought simply for malicisious purposes then the filing partyy should be held liable for civil damages to the other party for loss of property, cost of transfers and so on.

Untamed1972
04-22-2010, 10:30 AM
I think it would depend on the wording of the TRO and how closely one would want to follow it.

My personal experience with them showed that there was no option for pawning (unless it's a gun dealer) or loaning/ transferring to a friend.


I'm pretty sure you could only pawn a gun to a pawn broker who is also a dealer.....otherwise the pawn broker would be dealing guns w/o a license.

SteveH
04-22-2010, 10:31 AM
While under the TRO he cannot own or possess firearms or ammunition.


Its a broken system where men lose their rights of property ownership and self defense without due process. Hopefully someday the denial of rights without due process will be addressed by the courts.

Sinixstar
04-22-2010, 10:37 AM
I think it would depend on the wording of the TRO and how closely one would want to follow it.

My personal experience with them showed that there was no option for pawning (unless it's a gun dealer) or loaning/ transferring to a friend.

I thought that was kind of a given. You wouldn't have the option of pawning in the first place, unless that shop was also an FFL. Something about federal laws...

RandyD
04-22-2010, 10:49 AM
It seems that this issue arises on this board every other month. Your brother needs to retain a competent and experienced attorney who understands restraining orders and the subsequent consequences.

If a party prevails in obtaining a permanent restraining order, most likely the restrained party will have supervised visits with their children and will be prevented from having custody. This includes not being able to have a say in determining issues regarding the children's health, education and welfare. The restrained party will also pay more child support because of the reduced amount of time with the children. Last of all domestic violence is a factor the court must consider in awarding spousal support to the victim.

Basically, your sister-in-law declared nuclear war in the divorce case. Don't let your brother sit on his rights or wait too long to respond.

I am a family law attorney in San Diego. You can PM me and I'll provide you with my phone number for your brother to call. I'll give him a no cost, no obligation telephone consultation regardless if he lives outside San Diego County.

Randy

JSilvoso
04-22-2010, 11:29 AM
He has two options: Sell the firearms to a dealer or turn them into law enforcement for safekeeping. He should have received a form that must be signed by either the dealer or the LEO to prove that he complied with the requirements. That form must be turned into the court with 48 hrs of being served with the TRO.

Cal Code Civ Proc 527.9 Relinquishment of firearm by person subject to temporary restraining order or injunction; Storage; Fee; Employment exemption; Sale


(a) A person subject to a temporary restraining order or injunction issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, or subject to a restraining order issued pursuant to Section 136.2 of the Penal Code, or Section 15657.03 of the Welfare and Institutions Code, shall relinquish the firearm pursuant to this section.

(b) Upon the issuance of a protective order pursuant to subdivision (a), the court shall order the person to relinquish any firearm in that person's immediate possession or control, or subject to that person's immediate possession or control, within 24 hours of being served with the order, either by surrendering the firearm to the control of local law enforcement officials, or by selling the firearm to a licensed gun dealer, as specified in Section 12071 of the Penal Code. A person ordered to relinquish any firearm pursuant to this subdivision shall file with the court a receipt showing the firearm was surrendered to the local law enforcement agency or sold to a licensed gun dealer within 48 hours after receiving the order. In the event that it is necessary to continue the date of any hearing due to a request for a relinquishment order pursuant to this section, the court shall ensure that all applicable protective orders described in Section 6218 of the Family Code remain in effect or bifurcate the issues and grant the permanent restraining order pending the date of the hearing.

(e) The restraining order requiring a person to relinquish a firearm pursuant to subdivision (b) shall prohibit the person from possessing or controlling any firearm for the duration of the order. At the expiration of the order, the local law enforcement agency shall return possession of any surrendered firearm to the respondent, within five days after the expiration of the relinquishment order, unless the local law enforcement agency determines that (1) the firearm has been stolen, (2) the respondent is prohibited from possessing a firearm because the respondent is in any prohibited class for the possession of firearms, as defined in Sections 12021 and 12021.1 of the Penal Code and Sections 8100 and 8103 of the Welfare and Institutions Code, or (3) another successive restraining order is used against the respondent under this section. If the local law enforcement agency determines that the respondent is the legal owner of any firearm deposited with the local law enforcement agency and is prohibited from possessing any firearm, the respondent shall be entitled to sell or transfer the firearm to a licensed dealer as defined in Section 12071 of the Penal Code. If the firearm has been stolen, the firearm shall be restored to the lawful owner upon his or her identification of the firearm and proof of ownership.

mbrown
04-22-2010, 11:39 AM
Thank you for all your answers. I believe in the rule of law, but am stunned that someone can make an accusation which can then be used to summarily strip citizens of basic rights. Yikes.

If he turns his firearms in to law enforcement, what are the chances he will get them back?

johnthomas
04-22-2010, 11:59 AM
Thank you for all your answers. I believe in the rule of law, but am stunned that someone can make an accusation which can then be used to summarily strip citizens of basic rights. Yikes.

If he turns his firearms in to law enforcement, what are the chances he will get them back?

In an above post, Randy offered a free consultation. Have your brother call him. Do this soon. Write down any questions he may have and write down the answer to each question in order. This is a starting point, take advantage of this generous offer and do things right.

wildhawker
04-22-2010, 12:04 PM
Thank you for all your answers. I believe in the rule of law, but am stunned that someone can make an accusation which can then be used to summarily strip citizens of basic rights. Yikes.

Basic rights aren't yet rights in California. We're working on that.

If he turns his firearms in to law enforcement, what are the chances he will get them back?

Notwithstanding any other prohibitions or loss of rights, as long as the firearms are appropriately well-documented (see parts A-D here (http://ag.ca.gov/firearms/forms/pdf/legr.pdf))he should be able to simply complete the LEGR process. In which jurisdiction does he reside?

bluerider
04-22-2010, 12:24 PM
I am relatively new to trying to understand firearms laws as an avid shooter. with that in mind I was wondering how the firearms in question could be transfered to a dealer for safe keeping and then transfered back if any of the firearms in question are off roster handguns.

I was also wondering how it would be possible to transfer back ownership of the firearms in one transaction if there is more than one handgun in the original batch of firearms transfered to the dealer.

mbrown
04-22-2010, 12:24 PM
In an above post, Randy offered a free consultation. Have your brother call him. Do this soon. Write down any questions he may have and write down the answer to each question in order. This is a starting point, take advantage of this generous offer and do things right.

You are right, it was a generous offer and I have put my brother in contact with Randy. Thank you.

REH
04-22-2010, 12:48 PM
It is scary, and down right deplorable, that a person can have their second amendment rights taken away based on an opinion. “He scares me and has a bad temper”. Where is the due process?
How many times do you think someone has used this as a tool against the ex?

SgtDinosaur
04-22-2010, 1:46 PM
Thank you so much, O.J.

bodger
04-22-2010, 1:56 PM
Judges are spooked. If they deny the TRO because the grounds for it are weak and then some woman gets blown away, it comes back to the judge and makes him or her look somewhat responsible.
Ridiculous, and a lot of TROs are issued on false grounds by vindictive women, but that's what we have to live with in this state.
Most of these judges are either antis or don't care about anyone's right to self defense (except their own) anyway I'll bet.

odysseus
04-22-2010, 1:57 PM
TRO's are some of the most abused actions in a divorce. It is like common knowledge of how abused they are. Divorce attorneys (by coaching) are known to use them (even threaten to use it) against the husband (more often than not) often as a means to further add pressure and mentally demoralize him as the opposition in terms of negotiating cash\property settlements, alimony, and child custody.

I think that if there is a divorce already filed in the midst when a TRO is being asked for, that this needs review by a judge to ascertain the validity of it and give the accused a chance to have a voice.

Why that doesn't exist is a farce of the system of what really TROs are for. And that is without mentioning denying of a civil right (2nd Amendment) in the course of that, regardless if there is a divorce going on or not.

nick
04-22-2010, 2:00 PM
GD!!! When is someone gonna challenge this crap law that strips a person of their property with ZERO due process.


Welcome to family courts system. Judge's whim and intimidation is the due process there. It's for the children, of course.

Oh, and for the rest of your post... too much common sense, so don't ever try that in family court.

Nodaedul
04-22-2010, 2:01 PM
DONT TURN THEM INTO THE COPS!

I do not believe those are your only two options. You can also do an inter family transfer to get all your weapons transferd to someone in your immediate family. This is quick and easy to do and isn't even tracked for long guns. This is what I did when I was the victim of a TRO and it is also what my lawyer advised me to do at the time.

All guns went to my dad. My dad filled out the inter family transfer form for all the pistols, nothing filled out for the long guns, and sent paperwork and the fee to the ATF. I filled out a notice of no longer in posession form for all the pistols and rifles listing my dad as the new owner and sent it into the DOJ. The forms have dates to fill in for the sales. It may be smart to have sold them before you were served with the TRO. My lawyer then filed copies of all these documents with the court.

I later got 2 letters from someone in a prohibited persons with firearms department at either the DOJ or ATF, can't remember. One listed all the pistols and confirmed that they now knew I no longer owned them. The second one informed that there were no records for the rifles and thus there was nothing for them to do.

That was it. Total cost was like $20ish for the transfer. No risk to my firearms, no black helicopters, no swat team, no angry judge. I would imagine you just repeat this in reverse to reclaim your guns. My TRO was recently lifted but I haven't bothered reclaiming my guns yet.

He has two options: Sell the firearms to a dealer or turn them into law enforcement for safekeeping. He should have received a form that must be signed by either the dealer or the LEO to prove that he complied with the requirements. That form must be turned into the court with 48 hrs of being served with the TRO.

Cal Code Civ Proc 527.9 Relinquishment of firearm by person subject to temporary restraining order or injunction; Storage; Fee; Employment exemption; Sale


(a) A person subject to a temporary restraining order or injunction issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, or subject to a restraining order issued pursuant to Section 136.2 of the Penal Code, or Section 15657.03 of the Welfare and Institutions Code, shall relinquish the firearm pursuant to this section.

(b) Upon the issuance of a protective order pursuant to subdivision (a), the court shall order the person to relinquish any firearm in that person's immediate possession or control, or subject to that person's immediate possession or control, within 24 hours of being served with the order, either by surrendering the firearm to the control of local law enforcement officials, or by selling the firearm to a licensed gun dealer, as specified in Section 12071 of the Penal Code. A person ordered to relinquish any firearm pursuant to this subdivision shall file with the court a receipt showing the firearm was surrendered to the local law enforcement agency or sold to a licensed gun dealer within 48 hours after receiving the order. In the event that it is necessary to continue the date of any hearing due to a request for a relinquishment order pursuant to this section, the court shall ensure that all applicable protective orders described in Section 6218 of the Family Code remain in effect or bifurcate the issues and grant the permanent restraining order pending the date of the hearing.

(e) The restraining order requiring a person to relinquish a firearm pursuant to subdivision (b) shall prohibit the person from possessing or controlling any firearm for the duration of the order. At the expiration of the order, the local law enforcement agency shall return possession of any surrendered firearm to the respondent, within five days after the expiration of the relinquishment order, unless the local law enforcement agency determines that (1) the firearm has been stolen, (2) the respondent is prohibited from possessing a firearm because the respondent is in any prohibited class for the possession of firearms, as defined in Sections 12021 and 12021.1 of the Penal Code and Sections 8100 and 8103 of the Welfare and Institutions Code, or (3) another successive restraining order is used against the respondent under this section. If the local law enforcement agency determines that the respondent is the legal owner of any firearm deposited with the local law enforcement agency and is prohibited from possessing any firearm, the respondent shall be entitled to sell or transfer the firearm to a licensed dealer as defined in Section 12071 of the Penal Code. If the firearm has been stolen, the firearm shall be restored to the lawful owner upon his or her identification of the firearm and proof of ownership.

nick
04-22-2010, 2:06 PM
It seems that this issue arises on this board every other month. Your brother needs to retain a competent and experienced attorney who understands restraining orders and the subsequent consequences.

If a party prevails in obtaining a permanent restraining order, most likely the restrained party will have supervised visits with their children and will be prevented from having custody. This includes not being able to have a say in determining issues regarding the children's health, education and welfare. The restrained party will also pay more child support because of the reduced amount of time with the children. Last of all domestic violence is a factor the court must consider in awarding spousal support to the victim.
Basically, your sister-in-law declared nuclear war in the divorce case. Don't let your brother sit on his rights or wait too long to respond.

I am a family law attorney in San Diego. You can PM me and I'll provide you with my phone number for your brother to call. I'll give him a no cost, no obligation telephone consultation regardless if he lives outside San Diego County.

Randy

At least, that's how it works when it's obtained against the husband...

five.five-six
04-22-2010, 2:37 PM
this subject comes up way to often, perhaps I should write a FAQ

sbrady@Michel&Associates
04-22-2010, 2:55 PM
DONT TURN THEM INTO THE COPS!

As my associate Mr. Silvoso stated previously, if you do not turn them into law enforcement, you MUST sell them to a licensed firearms dealer pursuant to Cal. Civ. Pro. section 527.9. If your attorney told you to do otherwise, he was incorrect and you were lucky.

five.five-six
04-22-2010, 2:59 PM
IIRC, it has to be an 01 ffl, 03 no good

anthonyca
04-22-2010, 3:38 PM
It is for the women and chiiiillldddren. It is not going away.

GD!!! When is someone gonna challenge this crap law that strips a person of their property with ZERO due process.

Perhaps if incorporation comes about and 2A is a fundamental right then it can be challenged.

Here is a better idea.....instead of the person having 48hrs to dispose of guns w/o any due process......why not require that the hearing be held within 48 hours to determine the validity of the complaint. And bare, unfounded fear on the part of one party should not be enough to sustain a TRO.

Or instead of a TRO......grant the party in fear the right to a one time purchase of a gun which waives the 10day wait.

If it can be proved the TRO was sought simply for malicisious purposes then the filing partyy should be held liable for civil damages to the other party for loss of property, cost of transfers and so on.

SteveH
04-22-2010, 4:24 PM
He has two options: Sell the firearms to a dealer or turn them into law enforcement for safekeeping. He should have received a form that must be signed by either the dealer or the LEO to prove that he complied with the requirements. That form must be turned into the court with 48 hrs of being served with the TRO.

Cal Code Civ Proc 527.9 Relinquishment of firearm by person subject to temporary restraining order or injunction; Storage; Fee; Employment exemption; Sale


(a) A person subject to a temporary restraining order or injunction issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, or subject to a restraining order issued pursuant to Section 136.2 of the Penal Code, or Section 15657.03 of the Welfare and Institutions Code, shall relinquish the firearm pursuant to this section.

(b) Upon the issuance of a protective order pursuant to subdivision (a), the court shall order the person to relinquish any firearm in that person's immediate possession or control, or subject to that person's immediate possession or control, within 24 hours of being served with the order, either by surrendering the firearm to the control of local law enforcement officials, or by selling the firearm to a licensed gun dealer, as specified in Section 12071 of the Penal Code. A person ordered to relinquish any firearm pursuant to this subdivision shall file with the court a receipt showing the firearm was surrendered to the local law enforcement agency or sold to a licensed gun dealer within 48 hours after receiving the order. In the event that it is necessary to continue the date of any hearing due to a request for a relinquishment order pursuant to this section, the court shall ensure that all applicable protective orders described in Section 6218 of the Family Code remain in effect or bifurcate the issues and grant the permanent restraining order pending the date of the hearing.

(e) The restraining order requiring a person to relinquish a firearm pursuant to subdivision (b) shall prohibit the person from possessing or controlling any firearm for the duration of the order. At the expiration of the order, the local law enforcement agency shall return possession of any surrendered firearm to the respondent, within five days after the expiration of the relinquishment order, unless the local law enforcement agency determines that (1) the firearm has been stolen, (2) the respondent is prohibited from possessing a firearm because the respondent is in any prohibited class for the possession of firearms, as defined in Sections 12021 and 12021.1 of the Penal Code and Sections 8100 and 8103 of the Welfare and Institutions Code, or (3) another successive restraining order is used against the respondent under this section. If the local law enforcement agency determines that the respondent is the legal owner of any firearm deposited with the local law enforcement agency and is prohibited from possessing any firearm, the respondent shall be entitled to sell or transfer the firearm to a licensed dealer as defined in Section 12071 of the Penal Code. If the firearm has been stolen, the firearm shall be restored to the lawful owner upon his or her identification of the firearm and proof of ownership.

This is a greater offense to our constitutional rights than handgun lists, magazine capacity restrictions or AW bans IMO.

SteveH
04-22-2010, 4:26 PM
How many times do you think someone has used this as a tool against the ex?

Thousands of times every single day acrossed the state.

REH
04-22-2010, 4:49 PM
Thousands of times every single day acrossed the state.

Sad indeed.......................

destro360
04-22-2010, 5:13 PM
in my experience with my EX and her claim of the same bs i was able to log my guns into my local gun smiths safe until the court hearing was up and decided. i hired an attorney who then handed her a** back to her with out me saying one word in court except "good morning your honor my name is X" way too many of these are put in place simply over a grudge or po'd woman/man.....

sarge1572
04-22-2010, 6:20 PM
He has two options: Sell the firearms to a dealer or turn them into law enforcement for safekeeping. He should have received a form that must be signed by either the dealer or the LEO to prove that he complied with the requirements. That form must be turned into the court with 48 hrs of being served with the TRO.

Cal Code Civ Proc 527.9 Relinquishment of firearm by person subject to temporary restraining order or injunction; Storage; Fee; Employment exemption; Sale



(e) The restraining order requiring a person to relinquish a firearm pursuant to subdivision (b) shall prohibit the person from possessing or controlling any firearm for the duration of the order. At the expiration of the order, the local law enforcement agency shall return possession of any surrendered firearm to the respondent, within five days after the expiration of the relinquishment order, unless the local law enforcement agency determines that (1) the firearm has been stolen, (2) the respondent is prohibited from possessing a firearm because the respondent is in any prohibited class for the possession of firearms, as defined in Sections 12021 and 12021.1 of the Penal Code and Sections 8100 and 8103 of the Welfare and Institutions Code, or (3) another successive restraining order is used against the respondent under this section. If the local law enforcement agency determines that the respondent is the legal owner of any firearm deposited with the local law enforcement agency and is prohibited from possessing any firearm, the respondent shall be entitled to sell or transfer the firearm to a licensed dealer as defined in Section 12071 of the Penal Code. If the firearm has been stolen, the firearm shall be restored to the lawful owner upon his or her identification of the firearm and proof of ownership.

Aren't most TRO's a CheckBox format? Isn't there a box that says you can't buy/possess/own etc a firearm and another one that says You have 24 hours to sell or turn in any firearms in your possession.

Were these boxes checked? They aren't always. The author said TRO, but he DIDN'T say if it was for Domestic Violence. Was it? We ***-U-ME it is because you said "his wife", but is it? I'm surprised the attorney didn't ask that............

Good luck

He needs an attorney. Getting legal advise from a blog or forum is NOT a great idea, even if it's from an attorney.

five.five-six
04-22-2010, 8:01 PM
I don't remember the section, but for the last 10 or so years, that box is automatically checked

sarge1572
04-22-2010, 10:16 PM
but ONLY if it's for domestic violence, right? There are 4 categories of TRO's. Not all require the surrender of firearms.

blakdawg
04-22-2010, 10:16 PM
Restraining order forms and procedure have been simplified so that they're relatively easy to understand for non-lawyers.

The California Judicial Council's forms (including instructions/explanations) for domestic violence restraining orders are available at <http://www.courtinfo.ca.gov/cgi-bin/forms.cgi> - choose "Domestic Violence Prevention" in the drop-down box.

The form that explains what a restrained person is supposed to do is located at <http://www.courtinfo.ca.gov/forms/documents/dv810.pdf>.

The form that the restrained person is supposed to file with the court after the firearms have been relinquished is at <http://www.courtinfo.ca.gov/forms/fillable/dv800.pdf>.

It may be that in some cases, the court has been willing to accept some variation of "I left them at my brother's house" or "I drove them to Nevada" or "I left them with my gunsmith" - but that is not compliance with the letter of the law, and if you're facing an assertive attorney who's paying attention you should expect non-compliance to be used against you - and it will be raised at the hearing where a judge is deciding whether or not a temporary 3-week restraining order should be extended to last for potentially several years. That's not a good time to look to the judge like the sort of person who thinks they get to make up their own version of the law and then follow that instead of what the legislature wrote.

I am a lawyer and occasionally find myself requesting RO's on behalf of clients - I do elder law and trust/estate litigation, not family law, so it doesn't come up very often. I can tell you that in Santa Clara County, the judges do not hand TRO's out like candy; but they will issue them if the petitioner (or the petitioner's attorney) knows how to write up the request (and the facts warrant.)

"I'm scared of my ex-husband because he owns guns" won't work.

"I'm scared of my ex-husband because he owns guns and every time he gets drunk he says that if I ever leave him he'll kill me and the kids and himself and we'll all go to hell together" would probably work.

This is yet another good reason to never run your mouth about what a big tough guy (or girl) you are and how you'll make the world pay if someone crosses you - it sounds very brave when you say it, but it doesn't sound so great on a TRO application when it's written up by your soon-to-be-ex-wife's lawyer.

Unfortunately, even people who don't think/say/do that kind of crazy stuff can find themselves on the wrong end of those accusations if they're litigating against unscrupulous/unethical people.

It would be an interesting project to set up a nonprofit FFL whose purpose was to buy guns from people who are subject to TRO's while the RO's are pending, but hold the guns and then resell them to the original owner when the TRO has expired/been cancelled. The current state of the law pretty much forces people to put themelves at the mercy of whatever gun dealer they can find on short notice, or to deliver their guns to what is, in many cases, a 2nd amendment-hostile LE agency.

SVT-40
04-22-2010, 10:36 PM
As a retired LEO I can tell you don't "turn them into the police". It's not because I don't like the police. It's because most departments don't have the facilities so store many firearms, and even if they are real careful there will be some damage. In addition the fees for storage will be onerous.

(Plus most of the property clerks really hate having do deal with these silly TRO type weapons storage's)

As far a "selling" them to a FFL. This can be accomplished in many ways. Buying them for a nominal amount, then turning around and selling them to a friend of the seller for the same amount is not unheard of.

RandyD
04-23-2010, 6:54 AM
One of my clients when he was served a restraining order, disassembled his firearms and turned over only the stripped receiver to the police.

Casual_Shooter
04-23-2010, 8:39 AM
but ONLY if it's for domestic violence, right? There are 4 categories of TRO's. Not all require the surrender of firearms.

The restraining order I have experience with was not due to domestic violence and the person who was served the TRO had to turn in their firearms.

supersport
04-23-2010, 8:55 AM
Do not turn them over to the police, it is more then a nightmare to get them back.

Get a lawyer, without a lawyer no matter how innocent you believe you are. Its all about how the Judge feels that day, and they do tend to buy into the womans sob stories.

HokeySon
04-23-2010, 8:58 AM
Thank you for all your answers. I believe in the rule of law, but am stunned that someone can make an accusation which can then be used to summarily strip citizens of basic rights. Yikes.

If he turns his firearms in to law enforcement, what are the chances he will get them back?


The reasoning is that due process is satisfied by a subsequent hearing and exigent circumstances (threat of violence) requires immediate action. that's the theory ...

if the TRO is denied, he will get his guns back from LEO, but odds are against it being denied ...

Your guy needs a lawyer ASAP to orchestrate everything.

supersport
04-23-2010, 9:18 AM
The reasoning is that due process is satisfied by a subsequent hearing and exigent circumstances (threat of violence) requires immediate action. that's the theory ...

if the TRO is denied, he will get his guns back from LEO, but odds are against it being denied ...

Your guy needs a lawyer ASAP to orchestrate everything.

Sure he gets his guns back if the TRO is denied, but it can be and typically is a long, frustrating and costly process. Win or lose you will feel like you just got raped by the system.

Casual_Shooter
04-23-2010, 9:28 AM
but odds are against it being denied ...

.

My old neighbors tried many times to get RO's on each other to no avail.

In my situation, my lawyer said it was unlikely the RO would be issued (although he was wrong in my case)

So, for me, it would seem RO's are not that easy to get issued, but we do not know the whole story here either.

blakdawg
04-23-2010, 7:26 PM
There are 4 different kinds of harassment/personal conduct/"stay away" orders in California:

domestic violence
civil harassment
workplace harassment
elder abuse

It's also possible for a LE officer who learns of domestic abuse to request an immediate Emergency Protective Order ("EPO"), which is issued (and potentially served) on-the-spot after the LE officer talks to a duty judge (someone is available 24x7) via telephone/radio.

The EPO is intended as a short-term measure to provide protection until the victim can request a Temporary Restraining Order (TRO).

The TRO is issued after a visit to the courthouse - the victim/petitioner files papers describing elder or domestic abuse, and if the judge concludes from the papers that act(s) of domestic or elder abuse have occurred, the judge is required to issue a TRO which keeps the offender/respondent away from the victim/petitioner, and also temporarily suspends the respondent's firearm rights.

The TRO is only effective for 2-3 weeks - at the end of the TRO period, a full hearing is held to determine whether or not a "permanent" (which means for a few years' duration) restraining order will issue.

TRO's are not available in ordinary "civil harassment" (neighbor vs neighbor, for example) or "workplace harassment" (employer vs. employee's abusive ex- or stalker) cases - nothing happens in those cases until there's a full hearing.

The bottom line is that if someone's served with either a TRO or notice of a hearing for a "permanent" RO, they shouldn't just give up - it's time to put up a big fight. It may also be possible to negotiate a non-"domestic violence" restraining order which would allow the other party to be "protected" without causing lasting damage to the respondent's gun rights.

KylaGWolf
04-23-2010, 11:00 PM
My brother is separated from his wife. Yesterday he was served with a restraining order, which surprised him. My understanding is that the whole order is based on: "he has guns and it scares me that he might use them." I believe the order states that there have been no verbal or physical threats made against her. Can they, will they take his guns away based on this? Where should he go for advice or defense?

In California it is automatic for both sides to be served a restraining order during a divorce proceeding. As to if they will take his guns they might and might now. Best bet is to see if your brother can turn them over to you for safe keeping for now.

KylaGWolf
04-23-2010, 11:02 PM
Seems like all anyone (especially a woman) has to do these days is claim that she's afraid of someone, and POOF! Instant TRO.
And I think the poster above is correct, no more guns. They have to be transferred out of the person's name who has the TRO against them in something like 48 hours.
I'm sure someone will come along and correct any inaccuracies to my post.

I wish it were that easy. As a woman I can say it is not always that easy. I have seen men get them pretty darn easy too. In some cases they are needed. Unfortunately in those cases that piece of paper won't stop a thing. :(

blakdawg
04-23-2010, 11:35 PM
In California it is automatic for both sides to be served a restraining order during a divorce proceeding. As to if they will take his guns they might and might now. Best bet is to see if your brother can turn them over to you for safe keeping for now.

The automatic restraining order that's part of the summons in a dissolution action has to do with transfers of money/property and removing minor children from the state, and does not affect firearm rights.

The automatic restraining order you mention is at Family Code 2040; the domestic violence restraining order that's of concern with respect to firearm rights is at Family Code 6200 (and in the CCP and the W&I code, and other places).

liberty08
04-24-2010, 6:26 AM
What a nightmare! Sounds like it would be a tough situation to be in. I mean.. how are you going to ask an FFL to store your inventory when yours contains more than his! That is not the case with me but I know a few people who have that many.

Casual_Shooter
04-24-2010, 10:11 AM
TRO's are not available in ordinary "civil harassment" (neighbor vs neighbor, for example) or "workplace harassment" (employer vs. employee's abusive ex- or stalker) cases - nothing happens in those cases until there's a full hearing.


We were able to get a TRO which turned into an RO against our neighbor.

RandyD
04-24-2010, 10:46 AM
There are 4 different kinds of harassment/personal conduct/"stay away" orders in California:

domestic violence
civil harassment
workplace harassment
elder abuse

It's also possible for a LE officer who learns of domestic abuse to request an immediate Emergency Protective Order ("EPO"), which is issued (and potentially served) on-the-spot after the LE officer talks to a duty judge (someone is available 24x7) via telephone/radio.

The EPO is intended as a short-term measure to provide protection until the victim can request a Temporary Restraining Order (TRO).

The TRO is issued after a visit to the courthouse - the victim/petitioner files papers describing elder or domestic abuse, and if the judge concludes from the papers that act(s) of domestic or elder abuse have occurred, the judge is required to issue a TRO which keeps the offender/respondent away from the victim/petitioner, and also temporarily suspends the respondent's firearm rights.

The TRO is only effective for 2-3 weeks - at the end of the TRO period, a full hearing is held to determine whether or not a "permanent" (which means for a few years' duration) restraining order will issue.

TRO's are not available in ordinary "civil harassment" (neighbor vs neighbor, for example) or "workplace harassment" (employer vs. employee's abusive ex- or stalker) cases - nothing happens in those cases until there's a full hearing.

The bottom line is that if someone's served with either a TRO or notice of a hearing for a "permanent" RO, they shouldn't just give up - it's time to put up a big fight. It may also be possible to negotiate a non-"domestic violence" restraining order which would allow the other party to be "protected" without causing lasting damage to the respondent's gun rights.

Blakdawg,

Well said and I agree with everything you wrote, however in San Diego County, when a party files an application for a Civil Harassment or Work Place Harassment Restraining Order the judge has the discretion to issue or not issue a TRO pending the hearing.