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blackrazor
05-20-2012, 6:28 AM
Deleted

BucDan
05-20-2012, 6:31 AM
Good question...

Swatter911
05-20-2012, 6:45 AM
DOJ will come to your house and politely ask you to surrender it. If you say no, they have a signed search warrant in their back pocket.

ETA: return is the same as any other firearm after the RO is dismissed. LEGR is required.

erik_26
05-20-2012, 9:07 AM
Are you legally required to surrender your guns?

I thought I read on here a while back that someone was going through a divorce and the ex-wife's scum bag lawyer had her file a restraining order (just for the heck of it) and the guy wrote a letter to the judge that his guns have never hurt and anyone and weren't a threat and he was not turning them in (or something in that effect) and the judge waived it all off?

CAL.BAR
05-20-2012, 9:30 AM
Normally with RO's we have the clients move them (PPT) to relatives. Can't do this with a RAW. Once you transfer it out of state, you can't bring it back. You're only hope might be to turn it into the police and pray you can get the DV case resolved before they destroy it and that you can get it back. (no guarantees on this one though)

bigcalidave
05-20-2012, 9:31 AM
If you can get to the judge in time to avoid it, but that is unlikely with the booked up courts these days. As for the RAW, you can't really sell it, and if you did you can't buy it back. The only option would be to surrender it and hope for the best outcome and later release.

freonr22
05-20-2012, 9:33 AM
Can you give to your lawyer ?

The Gleam
05-20-2012, 9:36 AM
Couldn't you seek out an RAW approve/licensed dealer to have them handle/hold it for you just like any other guns?

tommyid1
05-20-2012, 9:38 AM
What if for instance it happens to be at the manufacturer or an FFL with a aw permit for repairs????? Technically not in your possession...

njineermike
05-20-2012, 9:44 AM
I thought once a RAW was transferred out of your possession, unless you were an FFL, you weren't getting it back.

ALSystems
05-20-2012, 10:05 AM
What if you send a RAW for repair out of state until the restraining order is resolved?

Librarian
05-20-2012, 10:34 AM
The OP is, indeed, an interesting question, but most of the respondents keep trying to ignore the plain language of the law.

Once the RO/TRO has been served, law says sold to an FFL or surrendered to PD. PC 29825 - (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.

Yes, a few lawyers have posted success in getting a judge to go along with doing something different, once in a while.

In this case, it looks like surrender of a RAW to PD might be the only way to legally get a RAW back. Maybe. CA is, of course, entirely irrational on the topic of 'assault weapons'.

ptoguy2002
05-20-2012, 10:47 AM
Interesting scenario...
Thinking about it, if it were me, I'd have a RAW licensed FLL in Cali ship it to an out of state FFL for "repair" as one of the above people suggested. That should satisfy the criteria, transferred via FFL, and it SHOULD be able to come back to you after the TRO is dismissed.
Think that would work?
ETA: just read librarian's post, wouldn't work... "sold"

njineermike
05-20-2012, 10:50 AM
Seems an FFL with a "hold" policy could make a few bucks by buying said weapons under a "will hold" agreement until either the order has expired and the items are repurchased by the original holder or the order is upheld and they are available for resale. Nothing in the law states the items MUST be available for resale by any other party or that they cannot be sold back to the original owner once the order has expired.


Not sure how a RAW fits into that, though.

clutchy
05-20-2012, 11:31 AM
I guess i'm confused as to how someone can file a RO against you and strip you of due process.... how does that make sense?

huntercf
05-20-2012, 12:35 PM
I guess i'm confused as to how someone can file a RO against you and strip you of due process.... how does that make sense?

IANAL but from what I have seen and experienced all they have to do is file the paperwork saying they are afraid you are going to hurt them. The judge will most likely grant a TRO unless you can show evidence that it is bogus. Once you are served with the paperwork you have 48 hours to give to local PD or sell to a FFL (if it is a RAW it would need to be a FFL with a RAW license, I think). I don't think the FFL can sell it back to you because they are non-transferable.

Librarian
05-20-2012, 1:37 PM
No new info, but since this has come up fairly frequently in the last month or so, added a wiki article with summary info.

http://wiki.calgunsfoundation.org/Protective_or_Restraining_orders

Note carefully the first sentence: Generally, if one is served a protective or restraining order, one needs legal representation immediately.

RandyD
05-20-2012, 1:41 PM
The OP is, indeed, an interesting question, but most of the respondents keep trying to ignore the plain language of the law.

Once the RO/TRO has been served, law says sold to an FFL or surrendered to PD. PC 29825 -

Yes, a few lawyers have posted success in getting a judge to go along with doing something different, once in a while.

In this case, it looks like surrender of a RAW to PD might be the only way to legally get a RAW back. Maybe. CA is, of course, entirely irrational on the topic of 'assault weapons'.

Attorney here. What Librarian wrote is 100% correct. This topic has been discussed numerous times on this site, and the thoughts and suggestions in this thread on how to do something more to your liking, surprises me. If you get served a TRO, you only have two choices which are exactly what Librarian stated above. Anything else is a violation of a valid court order and subjects you to a contempt charge which could result in a monetary fine, imprisonment or both.

blakdawg
05-20-2012, 2:07 PM
IANAL but from what I have seen and experienced all they have to do is file the paperwork saying they are afraid you are going to hurt them. The judge will most likely grant a TRO unless you can show evidence that it is bogus. Once you are served with the paperwork you have 48 hours to give to local PD or sell to a FFL (if it is a RAW it would need to be a FFL with a RAW license, I think). I don't think the FFL can sell it back to you because they are non-transferable.

The application for the RO must describe specific acts constituting abuse which have occurred in the past to justify the issue of a TRO. Without that, the requesting party can still ask for a hearing on a "permanent" RO (which really means 3 years, in most cases) but there's no TRO in place before the hearing, and the responding party can keep their guns (for a few more weeks).

blakdawg
05-20-2012, 2:11 PM
Can you give to your lawyer ?

Only if they're a CA-AW licensed FFL.

In smaller counties this might work anyway; but you're creating an on-the-record transcript of noncompliance with the law, which could turn out badly for the litigant, the attorney, and the judge if the other side wants to make an issue out of it.

DRM6000
05-20-2012, 5:52 PM
What about firearms in trusts?

Librarian
05-20-2012, 6:53 PM
What about firearms in trusts?

If there were just one trustee, and that trustee were served with an order, there Could Be Complications. With more than one trustee, it seems likely the served-trustee could surrender possession to the other trustee(s) and follow the court-required conditions.

Trust law is properly left to specialists, I think. I sure don't know much about it.

bwiese
05-20-2012, 6:55 PM
Normally with RO's we have the clients move them (PPT) to relatives. Can't do this with a RAW. Once you transfer it out of state, you can't bring it back. You're only hope might be to turn it into the police and pray you can get the DV case resolved before they destroy it and that you can get it back. (no guarantees on this one though)


There are profound issues about local judges demanding return of guns *stored* in other states.

I seem to recall Don Kilmer somehow involved in such a case, and the net result was no turn ins of out of state guns. The judge sputtered and fumed but did not have authority to prevent ownership in, say, AZ.

taperxz
05-20-2012, 7:06 PM
If you do surrender it or have to i would strip it down to nothing, surrender the stripped lower only.

gunnerstuff
05-20-2012, 7:47 PM
If you do surrender it or have to i would strip it down to nothing, surrender the stripped lower only.

Beat me to it. That was my question, can you not strip everything down to only the registered part (lower) and turn in only that item, since legally that is what makes the firearm?

In case the police want to distroy the weapon, you are not out everything, and can just replace the lower (you'd loose the RAW status, of course).

But could you do this to all your weapons?

mrdd
05-20-2012, 7:52 PM
What about firearms in trusts?

If there were just one trustee, and that trustee were served with an order, there Could Be Complications. With more than one trustee, it seems likely the served-trustee could surrender possession to the other trustee(s) and follow the court-required conditions.

Trust law is properly left to specialists, I think. I sure don't know much about it.

Another other issue is what happens if one of the grantors of the trust becomes prohibited. If it is a revocable trust, there could be problems because the grantor retains ultimate control over the assets of the trust (they can just take the property back). My suspicion is that a gun trust would need to be irrevocable to get around this problem.

kcbrown
05-20-2012, 7:53 PM
I was curious how this would work. Let's say someone, just to be vindictive, gets a temporary restraining order issued against you by making up some wild story. Sure, eventually the order will be dismissed, but in the mean time you have to surrender all your firearms. But what if you own registered assault weapons and/or .50 BMG rifles? Is there some problem getting those returned to you? Or is there some proactive measure you can take (e.g. giving them to somebody out of state) to ensure this doesn't end up being a problem?

What happens if you live in an anti-gun stronghold is that you are completely, totally, and utterly screwed if that happens to you. You can count on your RAW being destroyed or "lost" by the police, and thanks to the laws of this state, that will be an irreversible action. And you will not be able to buy it back from the FFL you sold it to, if you elect to go that route. It appears there are no other legal options on the table.

bohoki
05-20-2012, 9:16 PM
reminds me of that guy with the rolls royce who went to a pawn shop and pawned it for $100 then came back and paid the interest and took it back

said it was cheaper and safer than paying a garage

.358 Win
05-24-2012, 5:37 AM
reminds me of that guy with the rolls royce who went to a pawn shop and pawned it for $100 then came back and paid the interest and took it back

said it was cheaper and safer than paying a garage

:)

When we discussed how my family should protect ourselves against possible civil torts my attorney said, " The best protection/stall tactic is Mailing the IRS all your money. " I think he was joking.

kcbrown
05-24-2012, 9:45 PM
What if you gave it to a relative who lives out of state, and had him/her return it to you when the order was lifted? The registration doesn't go anywhere, even if the gun is removed from the state.

The law around the TRO doesn't give you that option. Your only options are to sell it to a FFL or to turn it into the police. No other options are legally available to you, and to attempt to do anything other than those two things is a violation of the law.

kcbrown
05-24-2012, 10:36 PM
This is impossible. What happens if you go and sell all your guns an hour after the TRO is issued? You can't turn anything into the police if you don't own it, it's no longer your property.

You didn't properly read what I said.

Selling it is an option, but it must be to a qualified FFL.

For normal guns, that's not a problem, because you can always buy them back after (though off-roster handguns would need to be converted to single-shot first).

But RAWs are different. Once you sell it, you cannot buy it back. There is no way to legally re-acquire a RAW.

And that is why you are completely screwed if you are slapped with a TRO in an anti-gun county and own a RAW. If that happens, your RAW is history, because the only option you have that would preserve your ownership of it is to turn it into the police, and there's no way the police would actually hold onto it for you in that case. It would be destroyed or "lost" by the time you were able to get it back.

kcbrown
05-25-2012, 2:05 AM
I don't know if this is true. I acquired my RAW around 2004 or so from a dealer, who sold it to me with the DOJ's blessing. It was OK'd by the DOJ since I was getting it to replace a damaged AR-15 receiver I had registered previously. So even if I gave my RAW to the police and they drilled a hole through the receiver I'm sure I could still get another one.


That's interesting. Do you or did you work in a law enforcement capacity at the time? Those things matter. I'm speaking in terms of what's likely to happen to an average gun owner in a rabidly anti-gun county.

In any case, good luck repeating that performance with Kamala Harris' DOJ...



But tell me exactly where I go afoul of the law with this plan:

1) I give my guns to an out-of-state relative, relinquishing any and all control I have over my firearms. Doesn't this satisfy the requirements of the law here in CA?


No, it does not. The law clearly states that your only two options are to either sell the firearm(s) to a qualified FFL or to turn them into the police.

See California Civil Code of Procedure, Section 527.9. The first bit says:


(a) A person subject to a temporary restraining order or injunction issued pursuant to Section 527.6, 527.8, or 527.85 or subject to a restraining order issued pursuant to Section 136.2 of the Penal Code, or Section 15657.03 of the Welfare and Institutions Code, shall relinquish the firearm pursuant to this section.

(b) Upon the issuance of a protective order against a person pursuant to subdivision (a), the court shall order that person to relinquish any firearm in that person's immediate possession or control, or subject to that person's immediate possession or control, within 24 hours of being served with the order, either by surrendering the firearm to the control of local law enforcement officials, or by selling the firearm to a licensed gun dealer, as specified in Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2 of Division 6 of Title 4 of Part 6 of the Penal Code. A person ordered to relinquish any firearm pursuant to this subdivision shall file with the court a receipt showing the firearm was surrendered to the local law enforcement agency or sold to a licensed gun dealer within 48 hours after receiving the order. In the event that it is necessary to continue the date of any hearing due to a request for a relinquishment order pursuant to this section, the court shall ensure that all applicable protective orders described in Section 6218 of the Family Code remain in effect or bifurcate the issues and grant the permanent restraining order pending the date of the hearing.


There is more, but none of it gives you any alternative other than somehow getting an exemption from the relinquishment requirement for the firearm in question, and the conditions under which such an exemption can be granted are explicitly defined and do not include the permanent loss of the firearm.


(the irony of the abbreviation of the code being "CCCP" is not lost on me)



Also, why would a law enforcement agency "lose" or "destroy" my firearms?


You have to be kidding me. We're talking about a rabidly anti-gun county here. Their motivation for causing you to permanently lose your "assault weapon" (indeed, all your firearms) should be clear. Do you think it's an accident that CGF is having to sue San Francisco, Oakland, and the California DOJ for refusal to return firearms?



What's in it for them to get involved with such a legal hassle?


It's not their money they're playing with, it's yours and that of the rest of the residents in the county. They don't care anything about how much it "costs". The costs are a pittance to them, since the budget of most rabidly anti-gun counties is in the billions. Oh, and keep in mind, the judges are on their side, not yours.



Worst case scenario, it seems I can give my guns to ANY law enforcement agency in this state, not just the one in my count.


Nope, the law explicitly says you must surrender the weapon to local law enforcement officials.



edited to add: If you are so worried about them "losing" it, why not fit the gun's stock with a GPS or cellular tracking device?

That would be cool, but I'd bet money the battery would run out by the time all was said and done. The more interesting question would be what you'd be able to do about it if you located it.

mcisniper
05-25-2012, 7:53 AM
Had this happen a while ago. Surrendered my stuff to the PD and when it was all said and done; I got it all back. They were shocked that I was better armed and equipped than the PD. No issues but I don't have an RAW either. Call the PD and ask them. My local PD, was really professional about it and even helped my load up afterwords.


Don't play games with the law. You need to get this sorted quickly to ensure compliance.

my .02

Michael

kcbrown
05-25-2012, 2:32 PM
I understand where you're coming from, but the term "local", as used in "local law enforcement official" is not legally defined. Local could mean, to you, within 500 miles or so. There is NO WAY that you could be in legal trouble if you lived in southern CA and you gave your firearms to a law enforcement agency in Kern County.


You could try that, but I would expect most courts to take a dim view of that. I would expect them to interpret "local law enforcement" to mean the county or city law enforcement organization which is nearest your residence or which is nearest the court itself.



Also, here'a an idea. Technically, you have 24 hours to comply AFTER being served the order. If you know you've got a vindictive crazy out to get you with a TRO, it seems a good course of action would be to relinquish the firearms voluntarily until the heat blows over. That way, if at the time you are served you no longer have any control over your firearms, you can't sell them or give them over to law enforcement.


Yes, that will work, but it means you have to see the TRO coming.



Not necessarily. If you have the device designed to operate on a 10% duty cycle, it could last for many months. If the TRO is bogus and you get a good lawyer to go to work right away, that should be plenty of time.


Hmm...that's doable, although a 10% duty cycle is probably far too aggressive. One burst transmission per hour is probably sufficient. However, it only shows you where it went, not what condition it's in. I like this idea very much, though, at least on a theoretical basis. :43:

How are you going to get it to transmit its location with a strong enough signal that you'll be able to track it but not strong enough to violate FCC regulations? You'll have to use a frequency which is capable of transmitting through walls and other obstructions. If the thing is put in a safe, then there's essentially no chance you'll be able to see it -- a safe acts much like a Faraday Cage.


I would also turn in the firearms in the presence of a lawyer who makes it clear that we are all watching and documenting the actions of the department that is receiving the firearms.


Like I said, the people in the department aren't playing with their own money when it comes to legal consequences, so they don't care. You certainly should have a lawyer present at the time, but I don't think it'll make any difference in the outcome in a rabidly anti-gun jurisdiction.



I would work in tandem with the ATF to make sure they understand the consequences for "lost" firearms.


The ATF is an anti-gun organization! If anything, I would actually expect them to help with the "loss" of the firearm(s), not prevent their loss.



Lastly I would offer a significant financial award to one or two individuals in the department contingent on the firearms safe return at the end of the TRO ordeal.


That could work, though it could also work against you, in that it may be seen as bribery.



Also I wan't law enforcement at the time (nor have I ever been) when I did the AR-15 receiver replacement. There was a specific term for what I did, I believe it was referred to as a "variance", which effectively replaced my receiver with an identical unit, but with a new serial number. After the new receiver was verified as received/destroyed by the manufacturer, the new one's serial number was put on my registration form, at which point the FFL could release the new receiver to me. At the end of the day, I was actually surprised how smoothly everything went.

Well, in the case we're discussing, this might work if the PD verifies that the unit was destroyed, but if it is just "lost" then the above may not work. It raises an interesting question: what are your options if your RAW is stolen?

kcbrown
05-25-2012, 3:07 PM
If it's stolen, you're out of luck. Paying someone to do something they are legally required to do is never considered bribery. Bribery laws are pretty clear on this. However, there are no laws on what constitutes a "local" law enforcement agency, so if the court wants to take a "dim view" of me stowing my firearms at the sheriff's department in Kern, I don't care. What are they going to do about it?


It's a court. What are they going to do about it? Hold you in contempt, that's what. It won't be pretty.



And yes, the ATF may be anti gun, but in my past experience when you get two governmental bureaucracies involved with a legal issue that is covered by both organizations, things tend to get done quickly and very well. Works great when you get the ATF and the TSA involved with "lost luggage" that includes a firearm. :)

LOL!!

You've got a good point here. That strategy could work. Or it could backfire.

ATF versus TSA works well in a "lost luggage" situation because ATF will presume that a non-law-enforcement person stole it, and their goal is to get firearms out of the hands of ordinary citizens. But in the case of you turning your guns into the police, the ATF will know that someone in law enforcement, or someone that law enforcement likes, has it, even if illegally. I have a lot of trouble imagining they'd care in that case, and can easily see them actually favoring that situation.

It looks to me like the modern ATF is corrupt beyond words. Look at Fast and Furious, the gun records flap in Alaska, etc., if you don't believe me. And corrupt agencies work with other corrupt agencies when they share the same goal. In the scenario we're discussing, that goal is the same: to deprive you of your firearms.


If your RAW "disappears" as a result of having to surrender it, it will essentially be "stolen" and you will have no recourse with the DOJ for replacing it. I expect the same is true if it is destroyed without record of its destruction.