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mxadam579
05-03-2012, 8:06 PM
well guys i had to turn in my guns and ammo to the police department. I was served a cho civil restraining order last night and had 24hrs to do it. all from a incident that happended back in jan of 2012 were no police report was made or even called. She stated i was threating her and was gonna hurt her inside of olive garden.............

NiteQwill
05-03-2012, 8:07 PM
You turned them over? Why didn't you sell them to a friend for nothing? It will not be a pleasant experience trying to get them back.

Full Clip
05-03-2012, 8:08 PM
Sorry man. That's awful.

WTSGDYBBR
05-03-2012, 8:10 PM
Yes you screwed up big time . You could have dross all long guns to just one guy. Hell you could have got family to take away the handguns.

HowardW56
05-03-2012, 8:12 PM
How soon is the hearing? GET A LAWYER!!

Don't go to court without representation.

mxadam579
05-03-2012, 8:12 PM
i got a court date on 5-18-12 im hoping it will b dropped due to lack of evidence u know the process of gettin them back

joelogic
05-03-2012, 8:14 PM
Threatening her in an Olive Garden = Pursuant to California Code of Civil Procedure section 527.6(b), in order to justify a CHO, the harassment must be "such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the victim." ?

http://en.wikipedia.org/wiki/Civil_Harassment_Restraining_Order

w55
05-03-2012, 8:17 PM
That sucks, hope things work out for you.

HowardW56
05-03-2012, 8:18 PM
i got a court date on 5-18-12 im hoping it will b dropped due to lack of evidence u know the process of gettin them back

Once the restraining order is gone, you need to send this form (http://oag.ca.gov/sites/all/files/pdfs/firearms/forms/legr.pdf?) to DOJ and get a release letter. You will want to get a copy of the order extinguishing the TRO. I don't know if you need to send a copy to DOJ with the release application, but it can't hurt...

http://oag.ca.gov/sites/all/files/pdfs/firearms/forms/legr.pdf?

mxadam579
05-03-2012, 8:20 PM
thanx for all the quik responses guys

winnre
05-03-2012, 8:32 PM
Yep I am sure most any of us would have bought your guns for a buck apiece and then you can buy them back later. Good to know!

Ron-Solo
05-03-2012, 8:33 PM
Make sure you keep copies of your surrender paperwork and as soon as you get the R/O lifted, file a LEGR. The LEA will not be able to release the guns to you without the LEGR. Also, get certified copies of any court documents indicating the release of the R/O. Periodically, make contact with the property custodian at the PD to maintain a good relationship with them. Remember, it is not their fault the laws are the way they are in this state. They will know that you are not being unreasonable, and want to retrieve your property at the earliest possible time.

When I was a Watch Commander at a station, our property custodians only worked business hours. They would often leave property in the Watch Commander's safe with the necessary release forms for after hours pickup. I released a lot of stuff, including firearms to their owners in the middle of the night. Many people get frustrated dealing with the bureaucracy that involves government agencies, but if you work within the system, it will work for you.

A few months back a member was having difficulties getting a firearm returned. I gave him a few pointers and suggestions, and he was able to get his gun back a few days after he received his LEGR.

The first step is to get the restraining order lifted. I DO NOT recommend that you try this without legal counsel. This is too important. It may cost you some money, but you have a better chance of succeeding.

Good luck!


*** EDIT*** The day you get the restraining order lifted, send a certified letter to the PD informing them of your intention to recover your firearms as soon as you receive the LEGR from DOJ. This will put them on notice legally an hopefully avert any misunderstanding that could cause the guns to be destroyed by mistake. Also, when you contact the property custodian find ou all of the documentation that you will need. That will give you time to gather what you need.

HowardW56
05-03-2012, 8:40 PM
The first step is to get the restraining order lifted. I DO NOT recommend that you try this without legal counsel. This is too important. It may cost you some money, but you have a better chance of succeeding.

Good luck!

ABSOLUTELY CORRECT!

I referred an acquaintance to a lawyer that I have known for years… For a fee, he went to court with him on a TRO, and was able to get it dismissed. But the lawyer had work for it…

This is not to be taken lightly!

RandyD
05-03-2012, 8:41 PM
i got a court date on 5-18-12 im hoping it will b dropped due to lack of evidence u know the process of gettin them back

For the last two years, I have commented on all threads about restraining orders, and it appears you have not read them. Your "hope" that the restraining order will be dropped due to a lack of evidence is a fantasy. The court issued the temporary restraining order because there was sufficient evidence. In simple terms, unless you present an adequate defense, to over come the evidence presented to obtain the TRO, the court will issue a permanent restraining order for up to three years.

This is not the time to wish, hope or bury your head in the sand. You need an aggressive, experienced and competent attorney. I have discussed these situations with numerous members and friends of members on the telephone, and many of them decided not to hire an attorney and EVERYONE OF THEM GOT A PERMANENT RESTRAINING ORDER IMPOSED ON THEM.

mxadam579
05-03-2012, 8:43 PM
i live in anaheim calif anybody know a lawyer around here thanks

HowardW56
05-03-2012, 8:45 PM
For the last two years, I have commented on all threads about restraining orders, and it appears you have not read them. Your "hope" that the restraining order will be dropped due to a lack of evidence is a fantasy. The court issued the temporary restraining order because there was sufficient evidence. In simple terms, unless you present an adequate defense, to over come the evidence presented to obtain the TRO, the court will issue a permanent restraining order for up to three years.

This is not the time to wish, hope or bury your head in the sand. You need an aggressive, experienced and competent attorney. I have discussed these situations with numerous members and friends of members on the telephone, and many of them decided not to hire an attorney and EVERYONE OF THEM GOT A PERMANENT RESTRAINING ORDER IMPOSED ON THEM.

This can't be repeated too many times. You need a lawyer!

HowardW56
05-03-2012, 8:47 PM
i live in anaheim calif anybody know a lawyer around here thanks

Jason Davis (www.calgunlawyers.com)

There may be other recommendations...

monk
05-03-2012, 8:54 PM
Sorry to hear this OP. I have a question though about what other members are saying about transferring firearms. Couldn't the court see this as an attempt to save his guns and smack him for it? I seem to remember this being done at least one with the court being non too pleased.

HowardW56
05-03-2012, 9:01 PM
Sorry to hear this OP. I have a question though about what other members are saying about transferring firearms. Couldn't the court see this as an attempt to save his guns and smack him for it? I seem to remember this being done at least one with the court being non too pleased.

I think you are correct there. I believe you either have to surrender the guns to law enforcement or sell them to a FFL... I don't think the law provides any other options...

stix213
05-03-2012, 9:03 PM
Yes you screwed up big time . You could have dross all long guns to just one guy. Hell you could have got family to take away the handguns.

If I recall the only two options are turn them over to the police or sell them to an FFL. Someone correct me if I'm wrong. If he saw this coming ahead of time he would have had more options.

tonelar
05-03-2012, 9:08 PM
Sorry to hear this OP. I have a question though about what other members are saying about transferring firearms. Couldn't the court see this as an attempt to save his guns and smack him for it? I seem to remember this being done at least one with the court being non too pleased.

I think you are correct there. I believe you either have to surrender the guns to law enforcement or sell them to a FFL... I don't think the law provides any other options...

Police officers recomended my brother leave his collection with me after his wife filed for a TRO. Then again, the rank and file in SFPD is pretty Pro 2A.

USMCM16A2
05-03-2012, 9:10 PM
Bud,



You need an attorney quick, Jason Davis. Great guy, top notch legal counsel, Good luck A2

freonr22
05-03-2012, 9:27 PM
If he gives power of attorney to a family member..Like this..

http://oag.ca.gov/sites/all/files/pdfs/firearms/forms/sb950frm1107.pdf

In the 24 hour period, does that change the clock?

Edit: I guess not,
However, this form does not transfer ownership of the firearm(s), or confer any rights or privileges other than the right to temporarily possess firearms for the purpose of relinquishment, sale or disposal of those firearms. Both the owner of the firearm(s) and the person who is granted Power of Attorney for Firearms Relinquishment, Sale or Disposal are obligated to comply with state law regarding the sale and transfer of firearm(s), such as the requirement to transfer ownership of firearm(s) through a licensed firearms dealer. (See Pen. Code, §§ 26500-26590.)
A person who is subject to a protective order (as defined in Family Code section 6218) is subject to special rules. Such a person must do both of the following:
1) Within 24 hours of being served with notice of the protective order, surrender all firearms to the control of local law enforcement officials, or sell the firearm(s) to a licensed gun dealer: but immediately surrender the firearm(s) to a law enforcement officer upon an officer's request. (Fam. Code, § 6389, subd. (c)(2).)
2) Within 48 hours of receiving the order, provide proof to the court that issued the order that all firearms have been relinquished.
NOTE: A person who has Power of Attorney for Firearms Relinquishment, Sale or Disposal in a case where a protective order is issued must surrender the firearm(s) to the control of local law enforcement officials, or sell the firearm(s) to a licensed gun dealer on behalf of the gun owner within the times set forth above so that the gun owner is able to comply with the law.

Librarian
05-03-2012, 9:35 PM
I think you are correct there. I believe you either have to surrender the guns to law enforcement or sell them to a FFL... I don't think the law provides any other options...

If I recall the only two options are turn them over to the police or sell them to an FFL. Someone correct me if I'm wrong. If he saw this coming ahead of time he would have had more options.

Exactly so - those two options are all that the law allows once the order has been served, and the court requires a receipt.

PC 29825(d) (d) The Judicial Council shall provide notice on all protective orders that the respondent is prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive a firearm while the protective order is in effect.

The order shall also state that the firearm

shall be relinquished to the local law enforcement agency for that jurisdiction or

sold to a licensed gun dealer,

and that proof of surrender or sale shall be filed within a specified time of receipt of the order.

The order shall state the penalties for a violation of the prohibition. The order shall also state on its face the expiration date for relinquishment.

tbhracing
05-03-2012, 9:52 PM
OP- Sorry about this, what a nightmare.

Suggestion- Do what I once did in another type of legal situation- Counter file. Yep, file RO on back her and maybe she will reconsider and even drop it. No one likes living in a vice, so counter fire back at her!

mag360
05-03-2012, 9:57 PM
RandyD is a lawyer that deals in specifically restraining orders IIRC.

Randy, is that correct?

Gunlawyer
05-03-2012, 10:27 PM
I would recommend that you immediately RETAIN (contact many and interview them and sign fee agreement and retain them in writing) a lawyer experienced in CHOs in your area. I would recommend you contact the Orange County Bar Associations Lawyer Referral Service and ask for a criminal defense attorney experienced in defending civil restraining orders. They can be reached at 949-440-6747.

flyinverted
05-03-2012, 10:35 PM
So you gave the PD just the "firearms" and kept the trigger assemblies, barrels, slides, magazines, etc?

Ron-Solo
05-04-2012, 12:23 AM
OP, I hope you see a common thought here, from members that comprise a broad spectrum of philosophies.

LAWYER, LAWYER, LAWYER

I worked in many courthouses over the years. People who came in for restraining order hearings did not fare well at least 95% of the time.

bigcasino
05-04-2012, 1:00 AM
I have been thru this before so I know. First off I hope you didnt turn in your ammo? you dont have to only guns. 2nd get a lawyer. for me it cost me about $2K but was well worth it. I had a ex that wanted to get back at me for saying some nasty things to her ( nothing threating) and filed for a RO just to mess with me. we got to court she tells her sob story about how bad I am the judge ask her if I hurt her she says NO judge says did he threaten you? she says OH NO HE WOULD NEVER DO THAT then judge ask if she feels scared of me she says NO... my lawyer then asks if she can question her judge says no need there is no reason for the RO tells us we should both stay away from each other and its done. I go back to RCSD they give me the the forms for CA DOJ firearms release I sent in all docs I had and filled out forms got my letters to release them in about 2 months and went in and picked them all up with no problems.

I know this is scary and really sucks but get a lawyer ASAP!!!, follow the law, do the right thing, and try not to talk about it to anyone other than your lawyer till its over. The reason I say that is if you post something on this board or tell a friend it may get back to her or come back to hurt you later. Good luck with it all

edit: Funny side note, she called me 3 weeks after court and I never answer, then like 4 months later she calls me I pick up and she invites me to lunch. WTH Hell knows no furey as a women scorned!!!!!

wildhawker
05-04-2012, 1:19 AM
Call Jason Davis. End thread.

-Brandon

RandyD
05-04-2012, 4:41 AM
RandyD is a lawyer that deals in specifically restraining orders IIRC.

Randy, is that correct?

Yes, I have represented members on this site in restraining order cases, with a 100% success rate.

2009_gunner
05-04-2012, 5:10 AM
After reading all the horror stories here, I started audio recording all time with her when the relationship went south... hard drive space is cheap.

mxadam579
05-04-2012, 6:17 AM
thanx everybody randy msged me so im gonna call him

southernsnowshoe
05-04-2012, 7:19 AM
Wait a minute....Turn in what guns your honor?............how does anyone know what guns you do and don't have?........unless its a registered AR.

dantodd
05-04-2012, 8:07 AM
Wait a minute....Turn in what guns your honor?............how does anyone know what guns you do and don't have?........unless its a registered AR.

Why does someone always have to post something like this? Is there no honor left in society that people think it is fine to just lie in court?


And from a more practical point of view. "the guns your wife testified to in her request for a TRO." There's also "All the handguns that are registered in your name according to AFS.


Play stupid games win stupid prizes

monk
05-04-2012, 8:12 AM
After reading all the horror stories here, I started audio recording all time with her when the relationship went south... hard drive space is cheap.

Doesn't CA law state that both parties need to have knowledge of being recorded?

ElvenSoul
05-04-2012, 8:16 AM
Never! Never turn into Police. Find a family member or friend to hold your guns. How long is the order? I hate these things. :(

AAShooter
05-04-2012, 8:23 AM
Call Jason Davis. End thread.

-Brandon

Who is Jason Davis?

monk
05-04-2012, 8:56 AM
Never! Never turn into Police. Find a family member or friend to hold your guns. How long is the order? I hate these things. :(

As Librarian has posted the PC, he can't just have a family member hold it. He either needs to sell it to a dealer or turn it into police. There is no third option.

jimx
05-04-2012, 8:58 AM
For the last two years, I have commented on all threads about restraining orders, and it appears you have not read them. Your "hope" that the restraining order will be dropped due to a lack of evidence is a fantasy. The court issued the temporary restraining order because there was sufficient evidence. In simple terms, unless you present an adequate defense, to over come the evidence presented to obtain the TRO, the court will issue a permanent restraining order for up to three years.

This is not the time to wish, hope or bury your head in the sand. You need an aggressive, experienced and competent attorney. I have discussed these situations with numerous members and friends of members on the telephone, and many of them decided not to hire an attorney and EVERYONE OF THEM GOT A PERMANENT RESTRAINING ORDER IMPOSED ON THEM.

TRO's come up a lot here. The above should be made into a sticky.

HowardW56
05-04-2012, 9:17 AM
Jason Davis (www.calgunlawyers.com)

There may be other recommendations...

Bud,



You need an attorney quick, Jason Davis. Great guy, top notch legal counsel, Good luck A2

Call Jason Davis. End thread.

-Brandon

Who is Jason Davis?

Jason Davis (http://www.calgunlawyers.com/)

viet4lifeOC
05-04-2012, 9:38 AM
Does a person need proof that a threat was made or is the restraining order given just because she/he said it was made?

Is it that easy to get a restraining order on someone?

so---turning over the guns to LEO or selling them to an FFL. Does this include selling your guns to a family member AT an FFL dealer?

After being served a restraining order...can you "gift" the guns to family or friends?

Before the restraining order is served to you...do you get prior warning that it's going to happen so you can have more options (ie sell guns to family, friends, etc).

goldfinger
05-04-2012, 9:53 AM
This happened to me last year with my ex, sold all 13 firearms to a gunshop. I had my ex's brother in law (a very close friend) kept 2 uppers, 3 expensive scopes and like 5,000 rounds of ammunition. Spent money on a lawyer, the case was dismissed and I'm now the custodial parent of our 4 wonderful kids.
If I knew well that time, I should have just sold the receivers, minus everything. Just remember OP, get a lawyer! Don't go there alone, the judge or whoever is in charge will hang you upside down. Especially if the judge is a female.

RandyD
05-04-2012, 10:05 AM
Does a person need proof that a threat was made or is the restraining order given just because she/he said it was made?

Is it that easy to get a restraining order on someone?

so---turning over the guns to LEO or selling them to an FFL. Does this include selling your guns to a family member AT an FFL dealer?

After being served a restraining order...can you "gift" the guns to family or friends?

Before the restraining order is served to you...do you get prior warning that it's going to happen so you can have more options (ie sell guns to family, friends, etc).

Many temporary restraining orders are issued on only sworn statements. The courts have recognized that many of the perpetrators engage in passive aggressive behavior, and a sworn statement is the only proof in existence.

Upon being served a temporary restraining order, the restrained person has two options; sell the firearms to a FFL holder or surrender the firearms to the police. Gifting or selling the firearms to another person is not an option and could be construed as violation of the court order.

The only notice that a restrained person receives of a TRO is at the moment of service of process. I have been involved in cases where a protected person told the restrained person that a TRO had been issued. In those scenarios, the restrained person could legally dispose of their firearms in any manner they choose, as long as it was accomplished prior to being served.

littlejake
05-04-2012, 10:17 AM
Who is Jason Davis?

You don't have a Davis and Associates business card in your wallet? Neat card with a tear off tab. They'll send you two on request.

I do. Plus, have the firm on speed dial on all phones.

We need to work on change for how guns can be put in limbo during a TRO. The option of selling to an FFL or turning them over to police is unfair.
It's easy to file a TRO and difficult to defend; as courts prefer to err on side of safety of the alleged victim.

Reform in this area should be somewhere on the CGF priority list -- I'll let folks smarter than I decide where it fits in the grand scheme of priorities.

BTW -- what's a CHO????? Got it!

45DAVID1
05-04-2012, 10:38 AM
Here is an alt scenario in getting your guns back (or at least into a friends hands).


Contact the PD and ask for the case agent. That is the person assigned to your case based off the police report number. Most likely there will not be an assigned person since you turned your guns in and they were not physically confiscated. Either way ask for a case agent and you will get sent to the detectives receptionist. Ask that person for the detective or civilian who is authorized to create a disposition/release for for firearms. Dont ask for the property custodian since they do not authorize releases, they only release when given authorization from a detective or case agent.

When you get in touch with the case agent ask if a FFL can retrieve your weapons to sell them for you. Dont give up who you want the guns to go to (friends, family, etc.), its not their business. If the case agent says it would be okay find a FFL near you who would be willing to do this. Explain the situtation to the FFL and maybe the two of you can reach an agreement. If you come to an agreement you would basically be doing a consignment sale, meaning the FFL would need to make some money for his time. That is where your agreement comes into play.

99% of the time PD's are okay with this scenario. The guns get out of their custody and it frees storage space. The guns will get out of your name (looks good when you go into court with FFL paperwork stating you own zero guns and sold em). Your buddy or whoever can now keep em and sell em back to you for $1 when the TRO is dropped. In the long run you save on LEGR fees, wait time, and possible damage to them. On top of the above, some agencies will test fire your guns before release to enter the bullets and casings into IBIS.

PM me if you have more questions.

viet4lifeOC
05-04-2012, 11:02 AM
Tango78,

After getting served...and never having given your guns over to LEO. Couldn't one call an FFL...tell him your situation and have the FFL sell the guns to family/friend at $1 a piece?

viet4lifeOC
05-04-2012, 11:03 AM
sorry double post.

So...a person could get a TRO simply based on their word that you made a threat to them? It's that easy? Truly frightening. I agree with another poster that this should be on top of many pro 2A groups agenda.

45DAVID1
05-04-2012, 11:23 AM
Tango78,

After getting served...and never having given your guns over to LEO. Couldn't one call an FFL...tell him your situation and have the FFL sell the guns to family/friend at $1 a piece?

If the served orders state sell to a FFL as an option the $1 deal could be done as long as you are selling to the FFL and not doing a standard PPT/interfamiliar transfer. However, a receipt for $1 turned into the courts as proof might look fishy to a judge.

RandyD
05-04-2012, 11:59 AM
We need to work on change for how guns can be put in limbo during a TRO. The option of selling to an FFL or turning them over to police is unfair.
It's easy to file a TRO and difficult to defend; as courts prefer to err on side of safety of the alleged victim.

Reform in this area should be somewhere on the CGF priority list -- I'll let folks smarter than I decide where it fits in the grand scheme of priorities.


As I see it, when a court orders a citizen to sell their property, the government is depriving people of their property rights without due process. The option of turning firearms into the police, is not so much of a deprivation of property rights, but we would need statistics and specific examples of police not relinquishing firearms after the court has dismissed the TRO. I know of a few examples where the police gave people the run around about returning their firearms.

glockman19
05-04-2012, 11:59 AM
TRO's in CA state:

"You cannot own, have, posess, buy or try to buy, recieve or try to recieve, or otherwise get guns, other firearms, or ammunition while this order is in effect. If you do, you can go to jail and pay a $1,000 fine. You must sell to a licensed gun dealer or turn in to a law enforcement agency any guns or other firearms that you have or control as stated in item 9 above. The court will require you to prove that you did so."

9) NO Guns or Other Firearms or Ammunition
a) You can not own, possess, have, buy or try to buy, recieve or try to recieve, or in any other way get guns, other firearms, or ammunition.
b) You must:
* Sell to a licensed gun dealer or turn in to a law enforcement agency any guns or other firearms within your immediate posession or control. This must be done within 24 hours of being served with this order.
* File a reciept with the court within 48 hours of resieving this order that proves guns have been turned in or sold.
So...what if your firearms are out of state or in the posession of another? Not in Immediate posession?

I would personally Never, Ever, hand over my firearms to LE...under any circumstances. So much for "Innocent until proven guilty".

We need "shall not be infringed" to be defined by the SCOTUS. How can you be denied your "Inalieable 2A rights" when innocent?

RandyD
05-04-2012, 12:06 PM
So...what if your firearms are out of state or in the posession of another? Not in Immediate posession?

I had a case with this factual scenario and wrote about this in another thread. My client was restrained and his firearms were in the State of Montana and had been there for years. The judge was emphatic that my client was failing to comply with a court order. I argued that it was unreasonable for the court to expect my client to travel 1000 miles to comply with a court order especially in light of the fact that my client was complying with the apparent purpose of the court order, which was to limit a restrained person's access to a firearm. The judge finally gave up and did not require my client to do anything further.

bwiese
05-04-2012, 12:17 PM
I had a case with this factual scenario and wrote about this in another thread. My client was restrained and his firearms were in the State of Montana and had been there for years. The judge was emphatic that my client was failing to comply with a court order. I argued that it was unreasonable for the court to expect my client to travel 1000 miles to comply with a court order especially in light of the fact that my client was complying with the apparent purpose of the court order, which was to limit a restrained person's access to a firearm. The judge finally gave up and did not require my client to do anything further.


I recall gun lawyer Don Kilmer (who also has a successful 'family law' practice) had a similar situation. I may well not be characterizing the situation properly from dim memory, but I believe the client moved the guns to AZ to safe storage [no ownership xfer] in response to (expected? issued?) RO, IIRC. Judge was furious but couldn't /didn't end up doing anything.

sakosf
05-04-2012, 12:17 PM
Does the FFL dealer have to actually buy the guns or can the dealer accept them as a consignment sale ?

viet4lifeOC
05-04-2012, 12:29 PM
Or how about using a pawn shop/FFL dealer to hold your guns until the TRO is lifted.

45DAVID1
05-04-2012, 12:55 PM
Or how about using a pawn shop/FFL dealer to hold your guns until the TRO is lifted.

That could be done but you would need to turn the guns over before the issue is ordered. That is the tricky part since how could you know you were about to be served? It all comes down to honesty. If I were served today how could a judge prove my weapons werent moved out of state prior to bring served? It all comes down to how honest are you.


Here is a good example from a different scenario I experienced.


I had firearm issues during my divorce. My ex told the family law judge I had illegal weapons. The judge made an order that i turn the weapons into LEO custody. The court paperwork my lawyer wrote and submitted stated I turned them in to be destroyed (this was never signed by a judge). The order was very non-specific and ONLY ordered it to be turned in. The actual order itself did not state they were to be destroyed. Once the divorce was done I did my LEGR and retrieved the weapons. The ex found out and complained to my employer (LEO agency) that I was in violation of a court order. This created a long drawn out Internal Affairs investigation of illegal AW possession as well as violating court orders.

In the end I was cleared of any wrong doing.

All in all judges will only go off what you tell them. All they do is want you to do exactly what they tell you to do. My court order stated all i needed to do was turn the weapons in. Regardless if I stated I wanted to destroy them i was afforded the ability to change my mind about destroying them, which I did.

Do what the order states then backtrack later to my earlier post about FFL consignments, etc.

sakosf
05-04-2012, 1:47 PM
You may not have time to shop around for a dealer who is actually willing to pay you up front your your firearms.....specially if you have a collection...It is easier to find a dealer that will accept the firearm/s on consignment and that way the dealer is does not have to pay you until he has sold them. Also, you can't reclaim the firearms from the dealer without going through the DROS process.

viet4lifeOC
05-04-2012, 1:58 PM
anyone familiar with any pro 2A groups that considers changing this law as being important enough?

Sorry, I've just begin learning this by reading 2-3 posts on the issue. It just strikes me as so unfair and the trampling of one's rights.

I'd love to see the 10 round mag limit, roster, 30 day wait period, etc to away, but THIS issue and CCW should be on top of the agenda IMO.

glockman19
05-04-2012, 2:14 PM
I had a case with this factual scenario and wrote about this in another thread. My client was restrained and his firearms were in the State of Montana and had been there for years. The judge was emphatic that my client was failing to comply with a court order. I argued that it was unreasonable for the court to expect my client to travel 1000 miles to comply with a court order especially in light of the fact that my client was complying with the apparent purpose of the court order, which was to limit a restrained person's access to a firearm. The judge finally gave up and did not require my client to do anything further.

I recall gun lawyer Don Kilmer (who also has a successful 'family law' practice) had a similar situation. I may well not be characterizing the situation properly from dim memory, but I believe the client moved the guns to AZ to safe storage [no ownership xfer] in response to (expected? issued?) RO, IIRC. Judge was furious but couldn't /didn't end up doing anything.

EXACTLY my point...CA has it's limitations.

If ever served with a TRO, take a drive out of state and store the guns and ammo there until you can retrieve them.

Most disconcerting is that your 2A can be "infringed" before due process finds you guilty of any crime.

tazmanian devil dog
05-04-2012, 2:38 PM
I went through this BS during my divorce. It's a pain in the A**!!!! But get a GOOD atty and for goodness sake, don't talk to anyone about this. Don't vent to anyone except maybe trusted family or friend. Keep cool and this should go away. Also, Ron-Solo is da man!! Listen to his advice on getting your guns back.

USMCM16A2
05-04-2012, 2:40 PM
Guys,



Another way your rights get taken away without due process is the 5150. You have to surrender your firearms then spend $1000's hiring an attorney who is competent in this legal area, and your are guilty of no crime. Damn shame. To the OP, best of luck, A2

JackRydden224
05-04-2012, 2:41 PM
Or how about using a pawn shop/FFL dealer to hold your guns until the TRO is lifted.

If he is going to "buy" it back he can only buy guns that are on the current roster. I've seen guns that just sit at local pawn shops because nobody can go and pick up off-roster guns. It kinda sucks for those stops.

repo4sales is a retired paralegal of some sort. Try to PM him for some advice.

Doheny
05-04-2012, 3:58 PM
...If you believe 100% that you didn't do anything wrong then representing yourself should be a no-brainer...

As Abe Lincoln said:

He who represents himself has a fool for a client.

Neil McCauley
05-04-2012, 4:12 PM
How do you do a TRO DROS on a rifle biult from an 80% completed receiver, same like you do on a handgun? Just curious, no I have never had a TRO filed on me.

sharxbyte
05-04-2012, 11:13 PM
Good luck and God bless!

cheapblaster
05-04-2012, 11:51 PM
I've read a lot of philosophy and a lot of "should have would have" in this thread. Too late, in OP's situation the turning over of firearms is a done deal. Yep I agree that sucks but that was reality. Let's think about that reality.

So, first of all, you need a lawyer to represent you in any proceedings about this restraining order. And yes, I am the next person in this chain to say this. The reason I am saying this is that you must successfully eliminate that RO before you can restore possession of your firearms. The two issues are tied together but until the RO is dealt with the firearm issue is a moot point.

Yep, that arrangement would pi$$ me off, too, but it is what you are up against.

I don't know Jason Davis but other members here seem to think he knows his stuff. Worth a call. .

Secondly, Ron Solo in post #12 outlined the paperwork process needed to recover your guns. Take his post seriously.

Third, best wishes too you!

viet4lifeOC
05-04-2012, 11:59 PM
Mods,

Can we get Ron Solo "his to get your firearms back" STICKY?

Thank you

epilepticninja
05-05-2012, 12:13 AM
Reading all this reminds me why I got divorced and became a hermit.

winnre
05-05-2012, 12:38 AM
Bruce Colodny. (http://gunlaw.com/)

eltee
05-05-2012, 11:28 AM
Police officers recomended my brother leave his collection with me after his wife filed for a TRO. Then again, the rank and file in SFPD is pretty Pro 2A.

+ 1 on all of the above.

AFAIK, "dumping" the guns by storing with an FFL, transferring (DROS) to a friend or relative, leaving them all at a licensed gunsmith for service, etc. are not violations. We had a police applicant who had a "felony" pop up during a background investigation. It was a juvenile wobbler, etc. and it got cleared up and he went on to pass background BUT when the hit came up he arranged for an FFL to take custody of his guns and they were put into the FFL's bound book. Transferred the guns back when NCIC and CII cleared the record.

On the issue of non-rostered handguns, PPT to a friend, PPT back when the smoke clears. Seems to be entirely legal and ethical.

Librarian
05-05-2012, 12:31 PM
+ 1 on all of the above.

AFAIK, "dumping" the guns by storing with an FFL, transferring (DROS) to a friend or relative, leaving them all at a licensed gunsmith for service, etc. are not violations. We had a police applicant who had a "felony" pop up during a background investigation. It was a juvenile wobbler, etc. and it got cleared up and he went on to pass background BUT when the hit came up he arranged for an FFL to take custody of his guns and they were put into the FFL's bound book. Transferred the guns back when NCIC and CII cleared the record.

On the issue of non-rostered handguns, PPT to a friend, PPT back when the smoke clears. Seems to be entirely legal and ethical.

Once the RO/TRO is served, the ONLY legal disposal methods are sell to FFL or surrender to police. PC has been quoted in this thread.

anthonyca
05-05-2012, 12:44 PM
Never! Never turn into Police. Find a family member or friend to hold your guns. How long is the order? I hate these things. :(

That is not an option. Turn into police or sell fo an FFL. I am not a lawyer but I have had a crazy GF and she cost me rights and many thousands of dollars. Truth goes out the window when some broad calls the cops to mess up your life.

It's been around 15 years and the crazy $&?! still randomly appears.

OP I feel your pain.

mxadam579
05-07-2012, 5:30 PM
funny how sum say never ever turn guns in to police but on the court order clearly states sale to a ffl or turn in to police dept.....

alfred1222
05-07-2012, 6:08 PM
Why does someone always have to post something like this? Is there no honor left in society that people think it is fine to just lie in court?


And from a more practical point of view. "the guns your wife testified to in her request for a TRO." There's also "All the handguns that are registered in your name according to AFS.


Play stupid games win stupid prizes

I agree, and thankfully someone said this!!!

funny how sum say never ever turn guns in to police but on the court order clearly states sale to a ffl or turn in to police dept.....


ya, you sell them to an FFL, tell them your situation, and hope that they hold the guns until your all good.

SilverTauron
05-07-2012, 8:23 PM
Would an NFA type trust alleviate this problem?

Such as the system is now your SO can deny your 2A rights at will. If the firearms are in the care of a trust, the TRO becomes meaningless as the guns technically don't belong to the person named in the TRO.

Unless,of course, I missed something.

SilverTauron
05-07-2012, 8:23 PM
Would an NFA type trust alleviate this problem?

Such as the system is now your SO can deny your 2A rights at will. If the firearms are in the care of a trust, the TRO becomes meaningless as the guns technically don't belong to the person named in the TRO.

Unless,of course, I missed something.

OpenYourEyes
05-07-2012, 11:54 PM
SilverTauron that's a good question that i was wondering as well. Anybody know?

Ron-Solo
05-08-2012, 1:14 AM
Having a restraining order is bad enough, don't make a bad situation worse by committing perjury, and asking another to commit a felony also.

Intra-Familial transfers can only be done parent to child or grandparent. You can NOT just transfer them to any family member.

boxcab
05-08-2012, 5:10 AM
Would an NFA type trust alleviate this problem?

Such as the system is now your SO can deny your 2A rights at will. If the firearms are in the care of a trust, the TRO becomes meaningless as the guns technically don't belong to the person named in the TRO.

Unless,of course, I missed something.

Good question, any legal types care to chime in?

Squid
05-08-2012, 7:52 AM
And this whole "Civil Harassment" sounds like another end-run around the Constitution, since it seems to allow court to restrict all sorts of fundamental rights without giving the accused an opportunity to confront witnesses or have council appointed, etc.

Shouldn't it be that the accused gets served papers to appear in court and be presented with the charges? And shouldn't it need to be an actual law(crime or civil) that the defendant has violated?

Doesn't CA need to pass a law against 'Civil Harassment', because that term seems to have just popped up in this RO business.

I'm feeling that this "Civil Harassment" along with Federal "no drugs with any guns or ammo" law could be used to grab guns anytime the Govt feels like it.

All they would need is one Barking Moon Bat to have his(or her) shrink testify that their client's condition (fear of guns) can only be cured if police seize all guns, otherwise the gun owners would be "Harassing" her and causing emotional harm.

Ron-Solo
05-08-2012, 12:40 PM
Squid,

LEGR means a "Law Enforcement Gun Release" which is a background check by DOJ before a law enforcement agency can legally release a firearm in its custody or control, regardless of the reason. Don't blame lae enforcement for it, blame the legislature. They make the laws.

Civil harassment is different than a criminal violation. It is not illegal until a judge issues an order telling the person not to do something. Once the order is issued, the act violates the order, and becomes a criminal violation. Most civil harassment cases involve neighbor disputes or business disputes where one party just won't back down.

You only get legal counsel appointed in criminal cases, not civil cases. If you intrepret the Constitution strictly, only Capitol crimes (death penalty) were originally guaranteed counsel. Since then, case law has expanded that right to any criminal offense that could result in incarceration. Traffic infraction do not guarantee legal counsel.

Someday, spend a little time in a civil harassment courtroom watching cases. They can be very interesting, and it will change your mind about the silliness of civil harassment orders.

ie_shooter
05-08-2012, 1:09 PM
Doesn't CA law state that both parties need to have knowledge of being recorded?

Yes. ALL parties in the conversation have to have knowledge that the conversation is being recorded. Penalty is up to $2500 fine and up to 1 year in jail - California Penal Code 631(a) (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=630-638)

gozuki
05-08-2012, 1:58 PM
Once the restraining order is gone, you need to send this form (http://oag.ca.gov/sites/all/files/pdfs/firearms/forms/legr.pdf?) to DOJ and get a release letter. You will want to get a copy of the order extinguishing the TRO. I don't know if you need to send a copy to DOJ with the release application, but it can't hurt...

http://oag.ca.gov/sites/all/files/pdfs/firearms/forms/legr.pdf?

In addition to a LEGR, a VOLREG or purchase receipt will be needed to provide ownership to release a long gun.

RandyD
05-08-2012, 3:00 PM
Someday, spend a little time in a civil harassment courtroom watching cases. They can be very interesting, and it will change your mind about the silliness of civil harassment orders.

Your comment is directly on point, and I have expounded on it below.

I have been in court several times a week for almost 19 years, and I have routinely been in departments that conduct restraining order hearings, so I have watched more of these cases than you can imagine. Many of these cases involve the most bizarre and dsyfunctional examples of human behavior, and this is not applicable to just the restrained persons but is also applicable to the protected persons. Part of what I do to hone my professional litigation skills, is to speak to both judges and the court personnel whenever I encounter them outside of the court rooms. Their perspectives and experiences from handling these cases and parties mostly results in a negative bias against people who are involved in restraining order cases.

blakdawg
05-08-2012, 5:41 PM
Would an NFA type trust alleviate this problem?

Such as the system is now your SO can deny your 2A rights at will. If the firearms are in the care of a trust, the TRO becomes meaningless as the guns technically don't belong to the person named in the TRO.

Unless,of course, I missed something.

No, an NFA trust will not help; the RO prohibits possession, not just ownership of firearms.

It might be possible to draft a trust that would work, assuming the restrained person relinquished possession of the firearms - but that would mean $ to draft the trust, $ to explain the trust to the judge who issued the RO, and there's still no guarantee of success.

If you have that much warning that this problem is coming, instead of spending $ on attorneys, get the other (crazy) person out of your life. If you are the crazy person, stop it.

SilverTauron
05-08-2012, 5:57 PM
No, an NFA trust will not help; the RO prohibits possession, not just ownership of firearms.

It might be possible to draft a trust that would work, assuming the restrained person relinquished possession of the firearms - but that would mean $ to draft the trust, $ to explain the trust to the judge who issued the RO, and there's still no guarantee of success.

If you have that much warning that this problem is coming, instead of spending $ on attorneys, get the other (crazy) person out of your life. If you are the crazy person, stop it.

My query assumes that the trust is established at the time the weapons were purchased , versus being drafted on the eve of being served or afterward.

I mention this point because a in a trust multiple people can be named as trustees, including the gun "purchaser". In the event of a TRO being served, the trustee(s) unaffected by the RO take ownership and de-list the served trustee. Since the guns are owned by the trust, and acess to the weapons are denied to the subject of the RO via revocation of the trustee, the authorities have no legal standing to physically confiscate the weapons. How can the police order the served subject to turn in arms that don't belong to them?

I realize a judge used to subjects just handing in guns to the police or being unarmed to begin with will give the plaintiff the stink eye, but why pay for a lawyer if you don't intend on using their services,no? Theoretically, this allows the subject of the RO to regain access to firearms without dealing with the bureaucratic nightmare of asking "Uncle Government" to pretty please to give back the guns.

blakdawg
05-08-2012, 8:59 PM
My query assumes that the trust is established at the time the weapons were purchased , versus being drafted on the eve of being served or afterward.

That seems like a good start, but I'm skeptical that people are willing to pay to PPT/DROS/(OPLAW?) all of their existing guns into a firearm trust, or that the average FFL is at all prepared to deal with that sort of thing.


I mention this point because a in a trust multiple people can be named as trustees, including the gun "purchaser". In the event of a TRO being served, the trustee(s) unaffected by the RO take ownership and de-list the served trustee.

There are three traditional roles that a person might play with respect to a trust - grantor, trustee, and beneficiary. I agree that it would be necessary to remove a person subject to a TRO as a trustee. It would also likely be necessary to remove them as a beneficiary; and it might even be necessary to make the trust irrevocable, to effectively eliminate any powers they might have retained as grantors. Those steps could have pretty big tax and practical consquences outside of the TRO issue.

Since the guns are owned by the trust, and access to the weapons are denied to the subject of the RO via revocation of the trustee, the authorities have no legal standing to physically confiscate the weapons. How can the police order the served subject to turn in arms that don't belong to them?

This sort of issue is pretty familiar in the bankruptcy/asset protection arena - the argument you make is interesting, and might have traction, but it would depend on the terms of the trust, how the judge understands the terms of the trust, and how well the restrained person's attorney can explain the trust to the judge.

The problem is the judge may just say "that sounds like a lot of BS to me. Mr. Tauron, I'm continuing this hearing for 24 hours, if you're not here tomorrow afternoon with a receipt from a gun store or a LE agency showing they've received the guns, I'm putting your *** in jail for contempt."

And, sure, if you want to sit in jail while your attorney litigates the contempt issue, you can do that. Some litigants have sat in jail for years in asset protection cases while the attorneys fight about whether or not the person really has the power to compel the out-of-jurisdiction trustee to deliver assets.

I realize a judge used to subjects just handing in guns to the police or being unarmed to begin with will give the plaintiff the stink eye, but why pay for a lawyer if you don't intend on using their services,no?

Hey, as a certified specialist in trust law, I appreciate the sentiment, but from a practical point of view most people with NFA trusts think they've bought a Lamborghini if they spend $600 on a trust, and they're still not completely convinced that they couldn't have done just as well with a copy of a friend's trust with the names changed that some other guy extracted from a 10-year old copy of Quicken Willmaker.

In the world of real trusts and litigation, there are a couple of zeros missing from the end of that amount before you're thinking realistically about the costs involved.

Theoretically, this allows the subject of the RO to regain access to firearms without dealing with the bureaucratic nightmare of asking "Uncle Government" to pretty please to give back the guns.

And that's exactly the problem - the underlying statute is intended to create precisely that loss of access to firearms without Uncle Government's permission, so I'm not so confident that you'll find judges eager to go along with the trust approach, at least not without a lot of really solid support to protect them. And my hunch is that most judges are going to err on the side of taking the guns away - worst case, they get reversed by an appellate court. If they don't force the restrained person to relinquish the guns, and that guy goes on to kill some people, their name and picture are going to be all over the news as "that judge who let the murderer keep his guns".

Don't get me wrong, I think it's an interesting idea, and it'd be a lot of fun to work on it, but it's tough to put together a good test case because we don't know who's going to be subject to RO proceedings.

I think it'd be interesting to also explore the use of entities other than trusts (corps, LLC's) - the issues about ownership and control might be cleaner and easier to understand.

If I could do one thing to make the firearm aspects of RO's work better, it'd be to put together a list of friendly FFL's who are willing to accept immediate transfers of someone's gun collection, or who are prepared to collect guns from LEO agencies pursuant to CCP 527.9(g), together with some sort of model purchase agreement/bill of sale that would satisfy the legal requirements of 527.9 while not requiring the FFL to fork over a lot of cash for a collection that (hopefully) will be going back to the original owner in a few weeks, nor requiring the original owner to sell all of their guns at fire-sale prices.

It's worth keeping in mind that 527.9 requires that the firearms be sold to the dealer, not deposited for repair or consignment.

My impression is that in the real world, judges will often cut gun owners some slack by allowing transfers to friends/family or the repair/consignment trick, even though that's not what the law requires.

RandyD
05-08-2012, 10:27 PM
@Blakdawg, excellent analysis.

I like your idea of finding FFLs who will by contact, agree to purchase firearms, and sell them back to the person once the restraining order is dismissed. The consideration could be a nominal fee, and may create a lot of good will in the firearms community.

winnre
05-09-2012, 9:13 AM
With an 03FFL C&R will that be enough to so this with C&R guns for folks?

dantodd
05-09-2012, 9:48 AM
@Blakdawg, excellent analysis.

I like your idea of finding FFLs who will by contact, agree to purchase firearms, and sell them back to the person once the restraining order is dismissed. The consideration could be a nominal fee, and may create a lot of good will in the firearms community.

I believe that pawning the guns would qualify as I'm pretty sure the pawn broker has to enter the guns into his bound book. However, the costs associated with pawning and then redeeming the guns might make it a cost prohibitive option.

Librarian
05-09-2012, 2:22 PM
I believe that pawning the guns would qualify as I'm pretty sure the pawn broker has to enter the guns into his bound book. However, the costs associated with pawning and then redeeming the guns might make it a cost prohibitive option.

Is it the case that one who pawns an item still owns it, at least until the terms of the pawn have expired? That seems to be true; if I understand correctly, the person who pawns the item may still redeem it at the agreed price, up until some agreed time, at which the item may be sold by the broker.

PC says the restrained person may not 'own'.the respondent is prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive a firearm while the protective order is in effect.

But, maybe one could sell to a dealer with an option to re-purchase, exercisable within a certain time. Owning an option should be legal.

sakosf
05-09-2012, 4:16 PM
I don't think you could relaim your guns from a FFL pawn shop with out going through the DROS process. If you have a TRO against you, then you would be denied when the pawn shop ran your name.

dantodd
05-09-2012, 4:24 PM
Is it the case that one who pawns an item still owns it, at least until the terms of the pawn have expired? That seems to be true; if I understand correctly, the person who pawns the item may still redeem it at the agreed price, up until some agreed time, at which the item may be sold by the broker.

PC says the restrained person may not 'own'.

But, maybe one could sell to a dealer with an option to re-purchase, exercisable within a certain time. Owning an option should be legal.

I'm pretty sure that there is good case law, including one by Jason Davis, showing that as long as the guns are irretrievable it satisfies the TRO. Since a DROS is necessary to claim your guns from pawn they are inaccessible.

mxadam579
05-09-2012, 8:43 PM
well im glad i asked the plaintiff b4 i started recording is it ok if i redord this convo he said sure and u can see in the video which im not gonna post yet that he never tried to say i cant record or put his hands up