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View Full Version : Domestic Violence threats (verbal) and arrest and confiscation of firearms???


dieselcarpenter
02-03-2011, 1:02 PM
Let me preface this by saying that this is not a freind of mine nor do I have any personal contact witht the person of interest, the local grapevine brought this to my attention so it is what it is. I am merely looking for info "FMI" I am not seeking CGF action just info.



A local man in a bitter divorce custody battle recently was pushed to the edge over a custody dispute, and texted a threat of bodily harm to his ex. To my knowledge no protection order was in place.

The ex calls police, the police text him back on her phone to set up a meet to "work it out" in a pulbic location, the police are lying in wait. He is arrested. Then shortly there after the police empty the mans safe from his hom,e and the word through the grape vine is he will never get any guns back. Some of the guns were stored for other people and they are supposedly up a creek as well.

I know domestics are different in some respects, but the only crime was verbal threats "Ill kill you", bad I know but confiscation worthy?

Does it change if there if was a protection order in place?

What is the law in a situation like this? What would be the recourse for retreival assuming either conviction or dismissal of the charges?

Can the police take his guns if he is arrested away from the home and no gun violence was threatend nor perpatrated? Can they take them on suspission that he might do it, in a case like this?

I am curious because it seems like they were quick to empty the safe when he wasnt even on the premises when he has caught.

And I am not sure if verbal threats fall into felony territory that would bar from future purchases and ownership.

I await the discussion!

Again I say this is grapevine and I do not know this person nor do I have the full facts of the case other than what I have asked about here so this is really a hypothetical scenario.

Untamed1972
02-03-2011, 1:53 PM
Issuing such a threat, whether in a domestic dispute or otherwise, would prolly be charged as a "terroistic threat" (PC417 I think it is) which is a felony, which could explain the confiscation of the guns. If convicted he'd be a prohibited felon for life, not to mention any possible DV charges as well.


Never ceases to amaze me the stupid stuff people with put on record via text message and email. People need to wise up and learn to control their mouths and electronic communications.

ETA: Yep...PC422...I stand corrected....they say with age the mind is the first thing to go, but I dont remember who said that. LOL

Falconis
02-03-2011, 2:21 PM
Sounds like he's screwed. The other people should be able to get their weapons back. It's going to take a while, but I see no reason why they can't get them back.

Kukuforguns
02-03-2011, 2:42 PM
Umm, stupid is as stupid does. Texting a death threat is intended to intimidate and the police would be properly criticized had they done nothing. That being said, there is no way this rocket scientist is going to be convicted of a felony. No prosecutor is going to expend the necessary resources. The prosecutor will offer a lowered charge (likely a prohibiting misdemeanor) and captain courageous will be sorely tempted to accept the plea bargain to avoid the crushing legal fees that come with defending one's self from the awesome power of the state. This guy's goal should be to negotiate a plea bargain which does not result in the conviction of a prohibitory offense.

stix213
02-03-2011, 2:46 PM
If it went to trial I doubt he would get convicted of anything, but that doesn't mean he won't be charged. After everything is all done with, and assuming he doesn't get convicted of any prohibited crimes, I would think he could get his guns back.

That is only if he isn't stupid and pleads to some lesser charge that bans firearms.

This is a good lesson though not to store guns at anyone's house who is having wife/gf problems.

Quser.619
02-03-2011, 2:54 PM
This is a good lesson though not to store guns at anyone's house who is having wife/gf problems.

This

liketoshoot
02-03-2011, 3:06 PM
when he was arrested was he carrying anything? Knife, gun, handcuffs, ductape?
He maybe able to argue his frustration over her not working with him, and say he just wanted to talk, and how sorry he was to cause all the trouble.
who knows.............

anthonyca
02-03-2011, 3:12 PM
If you are having problems with a woman over custody or are going through a divorce, don't @&$:)9! talk to her or text her! Don't respond to ANYTHING! NOTHING good can ever come of speaking to or texting her! I would bet she, her friends, and her lawyer planned this.

753X0
02-03-2011, 3:29 PM
Issuing such a threat, whether in a domestic dispute or otherwise, would prolly be charged as a "terroistic threat" (PC417 I think it is) which is a felony, which could explain the confiscation of the guns. If convicted he'd be a prohibited felon for life, not to mention any possible DV charges as well.


Never ceases to amaze me the stupid stuff people with put on record via text message and email. People need to wise up and learn to control their mouths and electronic communications.

417 is brandishing. 422 is threats. Felony, IIRC.

RandyD
02-03-2011, 3:55 PM
I agree with some of the posts above. He was most likely charged with making a terrrostic threat. That is a felony that may eventually be plead down depending upon other facts and circumstances.

Being a family law attorney, I can't stress enough to people that they need to exercise self control when dealing with their spouse or ex-significant other when a domestic case is anticipated or pending. If your conduct, (what you say, write and do), is less than admirable, you can count on your actions being brought to the attention of the court. You may want to review Family Code Section 6200 and 6300 et. seq. to give yourself an understanding of how little it takes for a judge to impose a Domestic Violence Restraining Order upon you. I was in court yesterday when the judge imposed a permanent DVRO on a party for just damaging the cord on a cell-phone charger, and the judge made findings that there was no violence or threats of violence.

JJ_
02-03-2011, 4:00 PM
Wow...I was told by SDSD a few years ago, after being threatened by a known gang member, that he was going to kill me in front of 3 witness that he could not do anything as it falls within free speech. I asked if he could charged under PC 422....Nope (Free Speech). PC 415...Nope. How about PC 602 (n)(2)...nope. how about 602.5...nope.

However, I was told to be careful, as this person was a known drug dealer and had over 8 priors for violent acts involving dangerous weapons. :confused:

renzoku
02-03-2011, 4:39 PM
Wow...I was told by SDSD a few years ago, after being threatened by a known gang member, that he was going to kill me in front of 3 witness that he could not do anything as it falls within free speech. I asked if he could charged under PC 422....Nope (Free Speech). PC 415...Nope. How about PC 602 (n)(2)...nope. how about 602.5...nope.

However, I was told to be careful, as this person was a known drug dealer and had over 8 priors for violent acts involving dangerous weapons. :confused:

O.O

So, uh, death threats no longer constitute assault?

I know if I'm at work (security guard) and some 'banger says he's going to smoke/kill/blast/etc. me, I'm going to immediately draw whatever weapons I'm permitted to by the force continuum (assailant alone + unarmed= OC spray/taser, 2+ assailants or deadly weapon=firearm), order them to the ground and inform them they're under arrest for P.C. 240 Assault. 1st Amendment protections do not allow you to threaten the life of another person. Never have, and by our founding fathers it never shall.

You've got one life pal; some idiot threatens it? They've got three options: jail, hospital, or morgue.

Beelzy
02-03-2011, 4:41 PM
He roasted himself by showing up to the "Meet"......That showed intent to carry out the threat.

Put a fork in him, he's done.

Ripon83
02-03-2011, 5:02 PM
Well when a safe full of firearms are at risk STFU. By that I mean when they read you the rights take them. It was probably allowable investigation for the officer or even the "EX" to ask "did you send me that." If he told the officer he did, or the EX that he did and they recorded it - then he's probably hosed. Otherwise a text from "your" phone does not mean anything if someone else had access to "your" phone. Hell might have been a co worker hoping to stir the pop, get with the EX, or who knows what. Like someone said - they probably could not convict unless he admitted to it.

Then the questions of the guns comes in to play. Let it be a lesson to all those with guns - protect them - don't be stupid even when you are mad.

RickD427
02-03-2011, 5:19 PM
There’s not really enough info in your posting to give a really good answer, but here’s a few points that might help:

It sounds like the subject of your post was arrested for a violation of Penal Code section 422. That section covers the making of criminal threats. It requires that the violator do two things – They have to make a specific threat of death or great bodily injury and the threat has to place the victim in sustained fear that the threat will be carried out. A great many threats fail to meet the 422 criteria because of the second element. Before I’ve ever arrested someone for 422, I would always ask the victim – “What are you doing because of this threat?” If the response was minimal, no one got arrested (remember the element of "sustained fear"). If the victim said something like, I met with my lawyer, got my will in order, and I paid up on the burial plot, then someone went to jail. Simply saying “I’m going to kill you” isn’t a crime. The law is very respectful of the First Amendment, but only up to point.

I concur with the previous posters concerning the lack of wisdom of your friend's actions in texting. Even if the charge is dropped to a misdemeanor, the Lautenburg amendment is likely to produce a lifetime firearms prohibition if a conviction results.

There are two avenues that would allow law enforcement to take weapons out of the safe. Penal Code section 12028.5 allows firearms and other deadly weapons to be taken into custody at the scene of a domestic violence incident if the weapons are in plain sight, or discovered pursuant to a lawful search. If your friend was still legally married to the victim, she would have the ability to consent to a search of their safe for their weapons (California is a community property state – there’s no “his” or “hers” in the vocabulary). That would include permitting forced access to the safe. On the other hand, 12028.5 has its limits. If she has no standing to get into the safe, officers are bound by the “plain view or lawful search” language of the section.

If a protective order that requires the surrender of firearms has been issued, and the weapons have not been surrendered, then Penal Code section 1524(a)(11) allows officers to get a search warrant to seize the weapons.

jtmkinsd
02-03-2011, 5:25 PM
Wow...I was told by SDSD a few years ago, after being threatened by a known gang member, that he was going to kill me in front of 3 witness that he could not do anything as it falls within free speech. I asked if he could charged under PC 422....Nope (Free Speech). PC 415...Nope. How about PC 602 (n)(2)...nope. how about 602.5...nope.

However, I was told to be careful, as this person was a known drug dealer and had over 8 priors for violent acts involving dangerous weapons. :confused:

This is nonsensical...I don't know of any situation where a threat to kill someone is considered free speech. I'm having great difficulty even believing the story. Quoting PC numbers? Really? And they just offered up a "be careful because he's a really bad dude with weapons?"

Sorry...just a little laughable IMHO

RandyD
02-03-2011, 5:35 PM
Wow...I was told by SDSD a few years ago, after being threatened by a known gang member, that he was going to kill me in front of 3 witness that he could not do anything as it falls within free speech. I asked if he could charged under PC 422....Nope (Free Speech). PC 415...Nope. How about PC 602 (n)(2)...nope. how about 602.5...nope.

However, I was told to be careful, as this person was a known drug dealer and had over 8 priors for violent acts involving dangerous weapons. :confused:

You obviously encountered someone who is ignorant and lazy and does not care to be professional in the execution of their sworn duties.

jtmkinsd
02-03-2011, 5:51 PM
Wow...I was told by SDSD a few years ago, after being threatened by a known gang member, that he was going to kill me in front of 3 witness that he could not do anything as it falls within free speech. I asked if he could charged under PC 422....Nope (Free Speech). PC 415...Nope. How about PC 602 (n)(2)...nope. how about 602.5...nope.

However, I was told to be careful, as this person was a known drug dealer and had over 8 priors for violent acts involving dangerous weapons. :confused:

I should say if anyone were to encounter an LEO who shrugged off an incident like this you would have the option of going to your nearest police station and personally signing a complaint against the individual. Then you could, and should sign a complaint against the officer.

SVT-40
02-03-2011, 5:59 PM
O.O

So, uh, death threats no longer constitute assault?

I know if I'm at work (security guard) and some 'banger says he's going to smoke/kill/blast/etc. me, I'm going to immediately draw whatever weapons I'm permitted to by the force continuum (assailant alone + unarmed= OC spray/taser, 2+ assailants or deadly weapon=firearm), order them to the ground and inform them they're under arrest for P.C. 240 Assault. 1st Amendment protections do not allow you to threaten the life of another person. Never have, and by our founding fathers it never shall.

You've got one life pal; some idiot threatens it? They've got three options: jail, hospital, or morgue.

Threats of any kind have never been an assault. You should read 422 PC very carefully. Mere threats are not a crime.

Criminal terrorist threats 422PC

422. Any person who willfully threatens to commit a crime which
will result in death or great bodily injury to another person, with
the specific intent that the statement, made verbally, in writing, or
by means of an electronic communication device, is to be taken as a
threat, even if there is no intent of actually carrying it out,
which, on its face and under the circumstances in which it is made,
is so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat, and thereby causes
that person reasonably to be in sustained fear for his or her own
safety or for his or her immediate family's safety, shall be punished
by imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison.
For the purposes of this section, "immediate family" means any
spouse, whether by marriage or not, parent, child, any person related
by consanguinity or affinity within the second degree, or any other
person who regularly resides in the household, or who, within the
prior six months, regularly resided in the household.
"Electronic communication device" includes, but is not limited to,
telephones, cellular telephones, computers, video recorders, fax
machines, or pagers. "Electronic communication" has the same meaning
as the term defined in Subsection 12 of Section 2510 of Title 18 of
the United States Code.


Check the bolded text. Especially this part

unequivocal, unconditional, immediate, and specific

So if it's a conditional threat no violation. Or if it's not immediate. No violation Ect

Assault 240 PC

240. An assault is an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.

jtmkinsd
02-03-2011, 6:08 PM
Check the bolded text. Especially this part

unequivocal, unconditional, immediate, and specific

So if it's a conditional threat no violation. Or if it's not immediate. No violation Ect


You guys have a supremely difficult job sometimes...but in an instance where someone says they are going to "kill you", wouldn't you at least want to have the DA make the decision on whether or not the bar was met?

Glock22Fan
02-03-2011, 6:31 PM
A friend of mine was begged by his ex to go around and change the oil in her car. He was extremely reluctant to do so, but eventually agreed.

While he was outside in her driveway doing the change, his kids came out and said she was inside phoning everyone and telling them he was standing in the driveway harrassing and intimidating her!

They had a custody hearing the following week, and she raised this "harrassment and intimidation" as proof he should not have any custody or visitation rights. The kids told the court what really happened -- she lost out.

Falconis
02-03-2011, 8:15 PM
Wow...I was told by SDSD a few years ago, after being threatened by a known gang member, that he was going to kill me in front of 3 witness that he could not do anything as it falls within free speech. I asked if he could charged under PC 422....Nope (Free Speech). PC 415...Nope. How about PC 602 (n)(2)...nope. how about 602.5...nope.

However, I was told to be careful, as this person was a known drug dealer and had over 8 priors for violent acts involving dangerous weapons. :confused:

uhhh that sounds wrong on soo many levels

Trigger Guard
02-03-2011, 8:27 PM
Wow...I was told by SDSD a few years ago, after being threatened by a known gang member, that he was going to kill me in front of 3 witness that he could not do anything as it falls within free speech. I asked if he could charged under PC 422....Nope (Free Speech). PC 415...Nope. How about PC 602 (n)(2)...nope. how about 602.5...nope.

However, I was told to be careful, as this person was a known drug dealer and had over 8 priors for violent acts involving dangerous weapons. :confused:
Yup!!! It is so much easier to go after law abiding citizens. Arresting criminals could be dangerous.

meaty-btz
02-03-2011, 8:56 PM
Yup!!! It is so much easier to go after law abiding citizens. Arresting criminals could be dangerous.

In this day and age, we are all of us just criminals waiting to be one. Seems things are more of everyone is a criminal and guilt or innocence is a matter of timing.

renzoku
02-03-2011, 10:01 PM
Threats of any kind have never been an assault. You should read 422 PC very carefully. Mere threats are not a crime.

Criminal terrorist threats 422PC

422. Any person who willfully threatens to commit a crime which
will result in death or great bodily injury to another person, with
the specific intent that the statement, made verbally, in writing, or
by means of an electronic communication device, is to be taken as a
threat, even if there is no intent of actually carrying it out,
which, on its face and under the circumstances in which it is made,
is so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat, and thereby causes
that person reasonably to be in sustained fear for his or her own
safety or for his or her immediate family's safety, shall be punished
by imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison.
For the purposes of this section, "immediate family" means any
spouse, whether by marriage or not, parent, child, any person related
by consanguinity or affinity within the second degree, or any other
person who regularly resides in the household, or who, within the
prior six months, regularly resided in the household.
"Electronic communication device" includes, but is not limited to,
telephones, cellular telephones, computers, video recorders, fax
machines, or pagers. "Electronic communication" has the same meaning
as the term defined in Subsection 12 of Section 2510 of Title 18 of
the United States Code.


Check the bolded text. Especially this part

unequivocal, unconditional, immediate, and specific

So if it's a conditional threat no violation. Or if it's not immediate. No violation Ect

Assault 240 PC

240. An assault is an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.

Fair enough, I suppose then I'd be arresting them for PC 422. Mah bad.

That said, if someone indicates they are going to kill me, I'd argue that's a specific threat. They're not saying "something bad may happen to you" they are indicating they are going to kill me, and yes, that will instill in me sustained fear for my life.

I will still draw what I'm allowed to draw and order them to the ground. But thanks for clarifying which Penal Code I'll be arresting them for. I'll add it to my notes.

ironpegasus
02-04-2011, 6:20 AM
The standard of evidence used for arrest in "DV" cases is laughable. All it takes is mere allegation with no evidence in some counties and in come the sheriff deputies to kick down your door and haul you off in the middle of the night after proning you out at gunpoint in your own home. (This actually happened to me - however the county in question had to later drop charges and wound up paying for my car as a result of violating my civil rights - thank god I didn't own firearms at the time - I would have had to go and buy a whole new arsenal off the taxpayer's generosity). The text message threat more than meets the "standard" (depending on the county) for arrest and issuance of an EPRO that will get your firearms confiscated. Whether they'll convict or even press charges in the long run is debatable, but by that time, the damage is already done. I think that the current standard of evidence for a DV arrest ought to be challenged in court, and the double standard re: male vs female victims should also be addressed, but thanks to OJ, the law is what it is.

RandyD
02-04-2011, 7:50 AM
The standard of evidence used for arrest in "DV" cases is laughable. All it takes is mere allegation with no evidence in some counties and in come the sheriff deputies to kick down your door and haul you off in the middle of the night after proning you out at gunpoint in your own home. (This actually happened to me - however the county in question had to later drop charges and wound up paying for my car as a result of violating my civil rights - thank god I didn't own firearms at the time - I would have had to go and buy a whole new arsenal off the taxpayer's generosity). The text message threat more than meets the "standard" (depending on the county) for arrest and issuance of an EPRO that will get your firearms confiscated. Whether they'll convict or even press charges in the long run is debatable, but by that time, the damage is already done. I think that the current standard of evidence for a DV arrest ought to be challenged in court, and the double standard re: male vs female victims should also be addressed, but thanks to OJ, the law is what it is.

In my experience, I have seen what you wrote about. However, I believe DV laws are equally applied to both male and female when requested. The disparity that more men are caught up in this web has more to do with men not taking the steps to obtain DVTROs as much as women. The laws are dynamic, the legislature will change the laws after enough people demand a change.

Wherryj
02-04-2011, 8:09 AM
If it went to trial I doubt he would get convicted of anything, but that doesn't mean he won't be charged. After everything is all done with, and assuming he doesn't get convicted of any prohibited crimes, I would think he could get his guns back.

That is only if he isn't stupid and pleads to some lesser charge that bans firearms.

This is a good lesson though not to store guns at anyone's house who is having wife/gf problems.

Although given the nature of relationships, is it possible to know just when someone will have problems in that area?

violator22348
02-04-2011, 8:18 AM
Hey , she doesn't even need a text or email....an allegation is all it takes and the guns are gone. The cops will take them and keep them for themselves. That's precisely what happens in Burbank.

Wherryj
02-04-2011, 8:31 AM
If you are having problems with a woman over custody or are going through a divorce, don't @&$:)9! talk to her or text her! Don't respond to ANYTHING! NOTHING good can ever come of speaking to or texting her! I would bet she, her friends, and her lawyer planned this.

Also, never forget the golden rule: NEVER EVER committ anything to paper (or electrons).

bruss01
02-04-2011, 9:12 AM
What a maroon.

He issued a death threat, in writing, with a 3rd party witness (the phone company that carrried the text and no doubt has a copy of it burried somewhere in their systems).

Is it any surprise they would take guns away from a dangerous person like this? Sure, he may have been just venting, just let his temper get away for a moment, maybe he was even joking. We'll never know. But he did threaten her life in writing, and that's something we'd all be surprised if the cops DIDN'T act on. Can you imagine your wife or daughter receiving a text like that? You'd damn well want to know that the police were doing something about the situation.

POLICESTATE
02-04-2011, 9:15 AM
It's not verbal, he texted it, he wrote it. Same as if he'd sent her a snail mail letter saying he will kill her.

Potentially he could claim the phone was out of his control during the time the text was sent, don't think he'll get too far with that one though.

Untamed1972
02-04-2011, 9:20 AM
I was thinking about this post last night and was wondering if what the police did could constitute some kind of entrapment.

If the only reason he went to meet the ex was because the she (ie the police) suggested it, and he had no weapons on him or intent to cause any harm, then saying he met her to carry out his threat when the only reason he met her was because she asked him to kinda contradicts itself doesn't it?