View Full Version : Health & Welfare Code 8102 help
05-09-2012, 1:54 PM
I've never started a thread, so forgive me.
In mid January I was put on a 72 hour hold for calling a VA help line. I was looking for help, basically. Things grew out of hand and I was hauled off to the VA Mental Healt Facility, and my guns were taken from me.
I have already been to court to fight 8103, prohibiting me from owning a gun for 5 years, and I was found not subject to the 5 year prohibition. And I currently attend regular PTSD classes, take Disulfiram (anti-abuse for alcohol), and have a letter from my Psychiatrist stating these facts. Now the local attorney has filed under code 8102, keeping my guns and destroying them.
I don't have the funds to hire an attorney, so I am on this one alone. Does anybody know where I can find old cases that have beaten this code? Or some other literature I can read prior to my hearing date? The attorney is quoting a case "Rupf v Yan" where the defendant "refused to seek counseling or help for his depression". This is not me, I am not a harm to myself, my family, or anybody else. I had a bad day, got drunk, and now I'm paying for it. I've already checked, I can purchase a new handgun at anytime.
Thanks in advance for your help.
05-09-2012, 2:20 PM
contact calguns foundation
05-09-2012, 2:29 PM
Did you file a LEGR form?
Did the attorney properly file the 8102 within 30 days Of being noticed that you were eligible to have the firearms returned per 8103?
I guess the first thingyou should do is notify the clerk of the court that you are contesting the 8102 as well. Then it would seem the fact that you were found ok to purchase new firearms should be quite persuasive to the court.
05-09-2012, 3:06 PM
I guess I should have explained a little more. The attorney did not file the 8102 within the 30 days, but the judge allowed her to do so since there is an additional 30 days to file if they screw up. Go figure. I went to that hearing and expressed myself to no avail.
I have received the hearing date which is tomorrow. I didn't think about writting hear until this morning when I was getting things together. What is a LEGR form? I should have done this a few weeks ago. . .
05-09-2012, 3:19 PM
Now the local attorney has filed under code 8102, keeping my guns and destroying them.
1. Who is the "local attorney" representing? I assume the attorney is the district attorney, but your post is unclear.
2. When was the 8102 petition filed?
3. Have your guns already been destroyed?
4. When were you released?
5. When was your 8103 hearing?
6. When were you advised of the result of the 8103 hearing?
7. Was your 8103 motion contested?
8. What evidence was presented at the 8103 hearing?
9. Did the police agency obtain an extension of time to file an 8102 petition?
Based on the facts as you have presented them, your best bet would be to argue that the police department's 8102 motion is untimely. A police agency has 30 days, beginning from release, to file a petition to find that you are a danger to yourself or others (i.e., to hold onto your guns). The police agency can request additional time to file such a petition, but the petition must be filed no later than 60 days from release.
Assuming you were released on January 20, this means that the police agency was required to file its petition by no later than March 22 or so. If the petition was filed more than 60 days from your release, the petition is facially defective. The petition also is defective if the police did not obtain an extension and filed the petition more than 30 days after your release. You need to determine if the police agency obtained an extension of time. You need to determine when the petition was filed.
The police agency is then required to advise the property owner that the owner has 30 days to request a hearing to oppose the petition. Which would mean you should already have notified the court of your intention to oppose the petition.
The court is then required to set a hearing date within 30 days of the request for a hearing, and then give notice to the owner and the district attorney of the hearing.
If the police agency's peitition was timely, then you have a more difficult path. The history of 8102 indicates that trial court's are willing to grant the police agency's petition even when the mental health professionals state the owner is not a threat to the owner or others.
You state that you won an 8103 hearing. If that motion was opposed, then that court already found -- based on the evidence presented -- that you were not a danger to yourself or others. Accordingly, if no additional evidence is presented at the 8102 hearing, you can argue that the court is bound by the prior court's decision by stare decisis (star-ay dee-sigh-sis). In fact, if your 8103 motion was opposed, you can raise the stare decisis argument even if new evidence is introduced. Stare decisis simply means that the issue has already been decided. The issue here is whether you are a danger to yourself or others. The issue was the same at your 8103 hearing. The parties are going to be the same. In fact, you can even argue that stare decisis applies even if your 8103 motion was not opposed. You will have to argue that the district attorney had the opportunity to oppose your motion, that the district attorney chose not to oppose the motion, and that the issues are the same.
If your 8103 motion was not opposed and you have to show that the district attorney does not have a preponderance of evidence that you are a danger to yourself or others, you may be at a disadvantage. As stated above, trial courts appear to be willing to grant the police agency's 8102 peitition even upon scant evidence. You will want testimony from any mental health professionals with whom you are treating. If you are attending church, have the minister provide testimony. If you have family, have them provide testimony. If you are employed, have your employer provide testimony. If you are in a relationship, have your s.o. provide testimony. If you can reach your C.O. from your time in the service, have your C.O. provide testimony. If you volunteer for any community service, have those people provide testimony on your behalf. Do you get the idea? Obtain as much evidence as you can that you are a responsible, balanced, contributing member of society. More is better. If the Court asks if you admit stating the things in the police report or in the mental health professionals report about being a danger to yourself, you should not admit them. You can even deny making the statements if the statements are not accurate with what you said at the time. Why in the world would you put on a public forum a statement that could be construed as supporting a conclusion that you are a threat to yourself. Edit your post. Now!
You can also argue that the situation reveals an oversight in the law. If you are allowed to purchase new guns, it makes no sense to allow the police agency to destroy your weapons. Frankly, this is a dangerous argument because the way 8102 is written, there is no time limit on when the police agency can confiscate your guns. If you buy new guns, the police agency could theoretically confiscate the new guns. There is no case law on this as far as I can tell.
Finally, you could also argue that in order to deprive you of your second amendment rights, the police agency's burden of proof must be more than a preponderance of evidence and that to the extent 8102 sets a lower threshold, the statute is unconstitutional.
You need an attorney. I am not your attorney. This is not legal advice. It would be absolute idiocy to accept legal advice from some stranger on the internet.
You need an attorney.
You need an attorney.
05-09-2012, 3:24 PM
Section 8102 only allows the court to grant an "extension" of time to file an 8102 petition. If the district attorney missed the deadline and then requested more time, the court cannot give them a second chance. It would no longer be an "extension." The word extension requires that the right still be viable.
You need an attorney.
I second the recommendation to contact Calguns.
If you do not have professional representation, there is a good chance you will get steamrolled.
Get an attorney.
05-09-2012, 3:50 PM
Mental Health Advocacy Services of Los Angeles. If Calguns cannot help you, contact this service.
If you are suffering from ptsd and it qualifies as a disability, contact this center.
This organization focuses on helping veterans, including veterans with mental health issues.
There are tons of ways to get free legal advice. Do the work, find an attorney.
05-09-2012, 3:50 PM
Thanks Kukuforguns. Answer to your questions: The City Attorney is filing not the District Attorney.
I was released in 72 hours, the 8103 was 30 days after that, and uncontested. I was given the order stating I was not subject to the 5 year prohibition 2 days later.
I am under the impression that they cannot destroy my guns until they have an order.
The City Attorney dropped the ball on filing within the 30 days, but was granted the extension per 8102(c) "good cause exists to extend the time to file the petition".
I'll contact Calguns. Hopefully I didn't screw this up by waiting.
05-09-2012, 4:19 PM
If you are in LA please call Jason Davis's office at 949.310.0817 before the end of work today. Hopefully he can get you an extension on the hearing. You cannot properly prepare in one day. The court will almost certainly not grant you an extension to put together a proper defense but they will likely grant one to an attorney. I know that you said you don't have the money for an attorney but sometimes you really have no choice.
05-09-2012, 4:20 PM
I'm up North near San Francisco. Thanks though.
05-09-2012, 4:21 PM
What is a LEGR form? I should have done this a few weeks ago. . .
A LEGR form is "Law Enforcement Gun Release" form. It is a document from the Attorney General that says you are now permitted to grieve your guns from the police. Yes you should have done all of this as soon as you were cleared to own after challenging your 5150 prohibition.
05-09-2012, 4:31 PM
If your hearing is tomorrow, call the City Attorney's office now. Ask them to agree to continue the hearing.
If the City Attorney refuses to continue the hearing, ask the court at the hearing to continue the hearing and state that you cannot afford an attorney and that you recently learned that there are attorneys who may be willing to represent you on a pro bono basis. Reference the services I identified earlier.
05-09-2012, 4:48 PM
Left a message and Emailed her. If all else fails, I will request it at the Hearing tomorrow, with those references. Thanks again for your knowledge. (Crossing my fingers)
05-09-2012, 5:18 PM
Arty, I'm putting together additional material. Make sure to check back later this evening.
05-09-2012, 6:27 PM
Disclaimer -- This is not legal advice. You need a lawyer. Relying on anything you learn from an anonymous yahoo on the internet is the very definition of foolhardiness. The information posted below is intended to act as a starting point for you to perform your own research. Use at your own peril.
Please grant me a continuance. I asked the City Attorney for a continuance yesterday, but was unable to directly reach her. I am unable to afford an attorney, but recently learned that there are organizations that will provide pro bono services. I am actively contacting them and need additional time to secure representation.
The City Attorney's petition was untimely. The City Attorney moved for more time only after the time to file a petition expired. Section 8102 only allows the court to extend the City Attorney's time to file, and its provisions are directory and limiting. Unless the Legislature clearly expresses a contrary intent, time limits are typically deemed directory.” (Allen, supra, 42 Cal.4th at p. 102, 64 Cal.Rptr.3d 124, 164 P.3d 557.)
People v. Lara, 48 Cal. 4th 216, 225, 226 P.3d 322, 328 (2010)
Moreover, California courts – including the Supreme Court – have long held that a party cannot obtain an extension once the party has defaulted:
"the trial court may extend time only for limited periods upon application made before the expiration of any prescribed time. It cannot grant relief from default."
Peebler v. Olds, 26 Cal. 2d 656, 659, 160 P.2d 545 (1945)It is also essential that any order extending the time shall be made before the party seeking such extension is in default. If he permits the time within which he may act to elapse without acting, any subsequent order giving him time to act will not avail to revive his right to do the act.
Freese v. Freese, 134 Cal. 48, 49, 66 P. 43, 43 (1901)Moreover, the Legislature clearly knows how to grant a court the power to relieve a party from default. See Code Civ. Pro. Section 473 (“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”). The doctrine of espresio unius est exclusio alterius, supports the conclusion that section 8102 does not give the Court authority to relieve the district attorney from his default.
The City Attorney’s petition is barred by the doctrine of res judicata. Section 1908 of the Code of Civil Procedure provides that
(a) The effect of a judgment or final order in an action or special proceeding before a court or judge of this state, or of the United States, having jurisdiction to pronounce the judgment or order, is as follows:
(1) In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a decedent, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title to the thing, the will, or administration, or the condition or relation of the person.
(2) In other cases, the judgment or order is, in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice, actual or constructive, of the pendency of the action or proceeding.
Section 1908 applies here because my prior 8103 motion determined that I was not a danger to myself or others. Moreover the State of California – which was a party to my 8103 motion – and the police agency have the same objectives of protecting the health of the public. The court which heard my 8103 motion determined that I was not a danger to myself or others. Matters adjudicated in proceedings under the Welfare and Institutions Code are entitled to res judicata effect. W. Mut. Ins. Co. v. Yamamoto, 29 Cal. App. 4th 1474, 1484-85, 35 Cal. Rptr. 2d 698, 704 (1994). The ruling on my 1803 motion – a copy of which I have here and can give to the court – is conclusive.
It would be inherently unfair to force citizens to prevail over the State (pursuant to section 8103) and the local police agency (pursuant to section 8102) to regain possession of lawful owned property. Sections 8102 and 8103 are meant to be complimentary, not alternative, statutes.
Moreover, my right to purchase firearms is unquestioned – I prevailed in my 8103 hearing. The police agency’s position is inherently contradictory and essentially boils down to, “We want to destroy these guns, despite the fact that Arty is legally allowed to own and buy guns.” Section 8102 is not meant to be a means to destroy guns – it is meant to protect the health of California’s public and another court has already determined I pose no threat to California.
Fifth ArgumentSection 8102 is unconstitutional to the extent it allows for the deprivation of property merely upon a showing of preponderance of evidence. The Second Amendment protects my right to own arms and the 14th Amendment protects my right to due process. McDonald v. Chicago. When “the government seeks to take unusual coercive action ... against an individual,” the clear and convincing evidence standard may be required. Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989). The clear and convincing evidence standard is appropriate “when necessary to protect important rights” (Conservatorship of Wendland, 26 Cal. 4th 519, 546 (2001)) or when the proceedings involve “ ‘a significant deprivation of liberty’ ” or “ ‘stigma.’ ” Santosky v. Kramer, 455 U.S. 745, 756 (1982)).
05-09-2012, 9:09 PM
Wow Kukuforguns, with that kind of knowledge one might think you are in the legal field. I'll take your disclaimer to heart, do some research tonight, and my best tomorrow. So glad I started this thread when I did.
05-10-2012, 9:35 AM
All that information, and I get an email from the city attorney this morning. She states the hearing was dropped from calendar. Called the Courthouse, the city filed ex parte and was granted their petition. I don't get it, but my guns are as good as gone by now.
05-10-2012, 10:17 AM
You can appeal the decision. The process of initiating an appeal is actually pretty easy. The California court system has pretty good help pages for people representing themself. Moreover, you can still ask calguns or another pro bono service to represent you on the appeal.
Your case does raise an interesting issue that might interest calguns or another firearms advocacy group, can the state and local police agency play tag team on a person by using 8102 and 8103 as a means to deprive you of your rights/property.
Obviously, it's up to you as to whether you want to appeal the decision. I hope that none of the seized guns had sentimental value to you.
Good luck. Stay sane. Keep moving forward.
There are many services for veterans that are underutilized. You served our country and you should take advantage of any services available to you as a result of your status as a veteran.
05-10-2012, 1:24 PM
Thanks Kukuforguns. I will appeal, and try to get some pro bono help. No sentimental value, just the point of having them taken from me.
I emailed calguns, but haven't heard back yet.
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