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jgraphix73
05-22-2012, 3:30 PM
Hi Everyone,
I'm a new member to Calguns.net but I'm a member of Gun Owners of America for a year now and I am a USMC vet.
I have a question to ask which seems I have been getting conflicting answers to.

My question:
I was served a TRO (Temporary Restraining Order) a week ago and in those orders, I was told to submit any firearms in my possession to either LE or to sell through a FFL dealer.
*My lawyer will show that her TRO was based on false claims.

The tricky part:
My ex-wife knows I have three firearms (a pistol, shotgun and a assault rifle), but legally own the pistol only and my father owns the shotgun and the assault rifle. I had him take back his two guns and I did a PPT of my pistol to a friend. So I do not own anymore firearms and do not have any within my reach or at my residence.
My lawyer insist that I have to submit the two firearms that belong to my father to LE, but I told her that I do not own those and rightfully returned them to the owner (my father). She is bent on me submitting those two firearms to LE, but I did not want to do that right away as I wanted to make sure I was doing the right thing.

The help: I was informed by a Gun employee that I do not legally own those two firearms and that I properly gave then to the rightful owner. And that I should get an affidavit, notarized, that my father has them in his possession.
DID I satisfy the language the court order asked me to do?
IS there a more specific language where I can read or refer to in case my lawyer ask for more information?

Any help is greatly appreciated and I do not want to give someones firearm away when it is not mine.

Thank you very much,
Richard

Decoligny
05-22-2012, 3:40 PM
If you want to be 100% in the clear, simply have your father submit an Operation of Law form for interfamilial transfer of firearms.

I am pretty sure that if you were in possession of the firearms for more than 30 days, it wasn't a loan, it was an undocumented transfer. There is nothing you can do to correct the oversight of your not filing the OpLaw form, but since you just gifted the firearms back to your father, he can file the forms to make it a legal transfer.

I am sure some of the more reknown experts will correct me if my off the cuff answer is incorrect in any way.

jgraphix73
05-22-2012, 3:43 PM
Thank you. I will research that right now.

FalconLair
05-22-2012, 3:46 PM
well, Richard, lol, my name is Richard too, you've come to a great forum for getting yourself a helluva good answer to your question...personally, I dont see how you could be required to turn in firearms that do not belong to you, and, quite simply, when asked, i think you would only be required to tell them that you were not the legal owner of said firearms and they are now back in the possession of the legal owner...you're lawyer may be just trying to "over protect" you by ensuring that part of the TRO is being complied with

im relatively new here myself, so maybe someone with a better and more thorough understanding of the laws pertaining to a TRO and its requirements can give you a much more definite response...i hope you and the courts can get this taken care of and help you get your firearms back

if you do get the TRO dismissed you will need to act quickly on getting any guns you do turn in returned to you...there are some forms that need to be filled out and turned in and it would be a good idea to inform whatever LE agency that takes possession of your guns of your intent of having them returned back to ya...good luck and semper fi :)

alfred1222
05-22-2012, 3:47 PM
If you want to be 100% in the clear, simply have your father submit an Operation of Law form for interfamilial transfer of firearms.

I am pretty sure that if you were in possession of the firearms for more than 30 days, it wasn't a loan, it was an undocumented transfer. There is nothing you can do to correct the oversight of your not filing the OpLaw form, but since you just gifted the firearms back to your father, he can file the forms to make it a legal transfer.

I am sure some of the more reknown experts will correct me if my off the cuff answer is incorrect in any way.

There is no undocumented transfers between father and son on a long gun. The dad hands them to the son, and it's his. The son hands them to the dad, and they're the dads. Simple. OP, you are in the clear, go take care of the TRO and get your guns back

jgraphix73
05-22-2012, 3:54 PM
@ FalconLair - I did a PPT of my only legally owned firearm to my buddy, I did not want LE to get a hold of them since I have heard some stories to how long they take to give it back to you. Thank you and Semper Fi!

@ alfred1222 - Thank you for that. It made me feel a bit better. Is there any legal wording that states that if I returned them back to my father, it is his now? I understand that my lawyer is over protecting me so I can have a smooth and clean case, but I am afraid she might now take me seriously if I do not have legal jargon stating it.

Librarian
05-22-2012, 4:02 PM
The bit of Penal Code is 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.

In my layperson's opinion, surrendering someone else's property to LE or selling it to an FFL would amount to theft or illegal conversion (http://en.wikipedia.org/wiki/Conversion_%28law%29). Things actually on loan should, in my opinion, be returned to the lender, and that should satisfy the requirement.

The question, as noted in other replies, would be the legitimacy of the 'loan'. That is, if the long guns were yours by intrafamilial transfer, no documentation required, then after having been served with the order, handing them back to your father does NOT satisfy the language.

This, however I did a PPT of my pistol to a friendmost probably did NOT satisfy the requirement, if you made the transfer after being served with the order.

jgraphix73
05-22-2012, 4:15 PM
@ Librarian - Thank you for the info. The long guns are my fathers and were on loan, though I have had them in my possession for about a year now. We never did a intrafamilial transfer. If handing them back to my father was not correct, then do you suggest that I hand them to LE because I cannot sell them since they are not mine?

As for the PPT, I sold the gun to my friend after the TRO was served.
The court accepted the filing and the TargetMasters West informed me that I satisfied the language on the TRO.

Thanks for the information though. It's quite a challenge to get the actual and true facts of whats legal and what satisfies the language stated in the TRO.

Librarian
05-22-2012, 4:40 PM
If the court is OK with the PPT, then no problem.

No, if the guns were a loan, then giving them back seems to be the right thing, and gets them out of your possession.

stix213
05-22-2012, 6:01 PM
I think what Librarian is getting at with the PPT is when you are served with a TRO you are given only 2 options for how to deal with them.

1) Surrender them to the police
2) Sell them directly to an FFL

PPTing them to a friend is not in the list, so technically not in compliance with the TRO.

Also, you had an assault rifle? (assault rifles have select fire full auto or burst capability, otherwise it is not an assault rifle)

SilverTauron
05-22-2012, 6:16 PM
This depends on how the court-specifically the judge- interprets things.

Your lawyer may be correct in her counsel, with the respect that surrendering the weapons to LE or FFL sale will look a lot better in front of a judge than a PPT done AFTER the order was served. The guns may not legally belong to the OP, but once the Restraining Order was served the options were sell or surrender-period.The legal owner,Dad, could then jump through the hoops like a good citizen and file a LEGER request to release the weapons to his custody.

From the perspective of a pitiless judge , what the OP did could be interpreted as a last-ditch workaround to dodge the order in an attempt to retain access to firearms. Now the impression could be gained that the OP might be planning revenge despite the TRO. When dealing with court and legal matters, one is truly fighting in alien turf. If the attorney says its a good idea to surrender your dad's guns to LE, then id take that advice.

When it comes to TROs property rights with regard to guns essentially go out the window. Enforcement of the TRO can be very subjective;sometimes only weapons that belong to the TRO subject are seized, and on other occasions anything that launches a bullet is dragged out the door regardless of who owns what.


Edit:the OP should cease discussing this case through this forum.

jgraphix73
05-23-2012, 9:46 AM
@ SilverTauron - thank you for your input on all of this and especially for looking out on what should be discussed on this board. I appreciate, as I believe other members would also, the privacy issues.


Just wanted to let everyone know that this issue has been resolved.
I spoke with my local law enforcement in the city that I live in and we have discussed and solved this issue. If you are interested in what the outcome was, please PM me.

And thank you to everyone who gave their input on this matter.

Nodaedul
05-23-2012, 4:25 PM
I say this time and time again. Do an interfamial transfer of all your weapons to a family member BEFORE being served with a restraining order. That is what I did. Long guns are hands over without any paperwork and handguns have a sheet of paper that you and your immediate family member fill out and mail in. You fill in the date the transfer took place.

Even though you could easily do this after being served with the restraining order and just write a date on the transfer form from before being served and it would be impossible to prove otherwise unless you or your family member tells someone, I do not recommend doing that because that would be ilolegal.

mxadam579
05-23-2012, 5:31 PM
i just went threw this 3 weeks ago any questions pm me best thing is to turn them in dont try to pull a fast 1 when dealing with the courts people on here will say otherwise

Oceanbob
05-23-2012, 6:07 PM
On a side note I know people who were served a TRO; didn't do anything except show up at the 5 minute hearing, explain their position and have the TRO dismissed. No one mentioned anything about guns.

TROs automatically expire on the Court date. (unless they are made permanent by proof from the plaintive)

alfred1222
05-23-2012, 6:19 PM
On a side note I know people who were served a TRO; didn't do anything except show up at the 5 minute hearing, explain their position and have the TRO dismissed. No one mentioned anything about guns.

TROs automatically expire on the Court date. (unless they are made permanent by proof from the plaintive)

This has happened to someone I know, he had a TRO but was never served, went to court, told the judge that the woman (his former client) was an idiot,and the judge threw it out

jgraphix73
08-26-2013, 10:05 PM
Sorry for the late update, but here it is:

I sold my firearm to my friend (through an FFL), which meant I no longer had ownership of my pistol. As for my semi-automatic rifle (changed from assault rifle) and shotgun, they were returned to my father.
I spoke with the FFL dealer as he had quite a few of these matters go through him (he is a FFL dealer at a local gun shop) and I spoke to an officer from where my TRO was served from (explained to him also) and both say that I satisfied the language written on the TRO, and I also got his business card. I know they are now lawyers and their word will not hold up in court, and I took the risk, I would say, by not following what my lawyer advised me to do. But in the courtroom, the firearms surrender did come up and I showed them my sale slip and affidavit and that was it. Nothing more other than handing in my papers. I would assume that if the ex pursued it, I am sure it would have been different.