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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 01-11-2010, 2:52 PM
45DAVID1 45DAVID1 is offline
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Default DAY 2 FINAL UPDATE IN POST 1..Restraining orders/general divorce gun questions

I goto my divorce trial this Wednesday. The opposing side is a sworn deputy Sherrif. My soon to be ex and her counsel are requesting these orders:

RESTRAINING ORDERS

1. That each of the parties be enjoined and restrained from threatening, injuring, annoying, harassing, striking, assaulting, or otherwise interferering with the liberty of the other.

2. That each of the parties be ordered to sign the documents and pay... etc... blah blah blah..

So the question is; will the request and or granting of the restraining order prevent my ownership of firearms? If so would the same order prevent her from being able to own firearms as a Peace Officer? Are these types of restraining orders normal in divorce proceedings?

UPDATE 1 So, I'm being hounded by my ex;s attorney from my city job to my military job. He can't seen to understand the concept that active duty is not always available and that UTA/DRILL pay is different from active duty pay with regards to BAH, BAS, BAQ, etc... He seems to think I committed fraud on my court documents about how much I have actually made when he has the W-2's from DFAS right in front of him. So he asks me a question I give him and answer. He says thats not what I asked (knowing he just wants me to give him the answer he wants). This goes back and forth about 6 times until he finally gives up and moves on to something else. Although divorce sucks, this testifying on the stand is rather interesting knowing that I am getting the best of her lawyer with pure frustrations.

UPDATE 2. LOL, I screwed up my ex's entire case. I Told the Judge that I do not want any of the community property, She can enroll him into any school she desires (private), foots the entire bill for it, and participate with equal amount of driving time. The look on her lawyers face was like he just sharted down his entire leg. I also said I do not want the $4,000 owed to me or any of her retirement or 401K plans. We had two community cars. She crashed one and I still have mine. I said they can have it as long as they give me 3 months to get a suitable vehicle. They denied and told me to keep the vehicle. All that is left to discuss is the house, 2nd mortagage and custody. I told the judge I don't want the house and the second will be whatever is ordered due to it being tied into the First mortgage. Short stoy, house to be sold. As far as custody goes. I will get Friday 2pm until Monday morning at 8am. She will get our son on my military weekends. However, I will get the majority of time during holiday breaks, and summer vacations. All in all.... Who's your daddy biotch!???

UPDATE 1 DAY 2.

Divorce is all done. No restraining orders in effect. She got the house and the 2nd mortgage. We both kept our respective bank accounts/retirements/vehicles/debt, etc. The judge ordered the divorce FINAL today, no waiting the stupid 6 months. Imma party tonite like a F'n rockstar! I walked away with a great amount of time with my boy without any restrictions on who can watch him. Got zero $$$ from her but didnt want any of it. I can start off from scratch. Gots me my new POF and starting paperwork to get back my mini-14 in PD custody!

Last edited by 45DAVID1; 01-14-2010 at 2:25 PM..
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  #2  
Old 01-11-2010, 3:09 PM
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You would think it would appy to her as well. Good luck, I have been there before.
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Old 01-11-2010, 3:14 PM
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The judge can grant her a specific exemption to the firearms restriction of the restraining order for work gun(s).

You need a good lawyer and you need to fight this.
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Old 01-11-2010, 3:15 PM
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Opposing side: ex-wife-to-be, or there's another party to the proceedings? Sorry, kind of ignorant of divorce procedures here.
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Old 01-11-2010, 3:20 PM
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Originally Posted by SteveH View Post
The judge can grant her a specific exemption to the firearms restriction of the restraining order for work gun(s).

You need a good lawyer and you need to fight this.
I do have a good lawyer. I also work for a PD and deal with weapons on a daily basis. So, basically both parties can get a firearm exemption?
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Old 01-11-2010, 3:28 PM
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It would seem so, since it appears to be a general "don't harass" order with no stipulation of maintaining any specific distance, but I would certainly make sure that your lawyer gets a firearms exemption in there.
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Old 01-11-2010, 3:31 PM
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Quote:
Originally Posted by SteveH View Post
The judge can grant her a specific exemption to the firearms restriction of the restraining order for work gun(s).
no, he can't that is the one thing the judge has no discretion in.. IMO strike first, go down and file a TRO against her in the morning.. or you will have 24 hours to either sell your guns to a 01FFL or give them to the police who will either destroy them or facilitate you in selling them as required by state law

either way, for the duration of the RO, you will not be allowed to posses or control a fire arm in the state of California
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Old 01-11-2010, 3:33 PM
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If, as you stated, your soon-to-be-ex's attorney is requesting the RO, you can be damn sure he'll put a firearms exemption in it for her.

ETA: Maybe not then, according to FiveFive Six.

Why would her attorney request something for both parties that has a negative effect on his or her client?

Last edited by bodger; 01-11-2010 at 3:35 PM..
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Old 01-11-2010, 3:37 PM
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Restraining orders are covered by 527.9:

Quote:
(a) A person subject to a temporary restraining order or
injunction issued pursuant to Section 527.6 or 527.8 of the Code of
Civil Procedure, 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...
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Old 01-11-2010, 3:43 PM
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the bute of it is that you can't even PPT your firearms... once you have been served.. LEO or FFL03 within 24 hrs, and believe me, when the LEO finds out you have 24 hos to off load your guns... let's just say you are not going to get top dollar

the other thing I would do is PPT ALL your firearms today to a trusted friend pro-actively. once you have been served, your options are very limited
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Dude give it up. The election is was months ago. Hillary is toast. Her political career is over.

Or do you just hate her so much you can't let go?
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Old 01-11-2010, 3:46 PM
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This does not sound like a restraining order of the form that goes into the California Law Enforcement System (CLETS). This sounds like a typical non-CLETs order which is in the form of a stipulation. You sign it, you're bound to it. You break it, you're be back in court. The same as if you don't pay your spousal support.

Question 1. Do you have a lawyer?
Question 2. Why are you going to trial? Are you sure this is a trial or is it a meeting with a court appointed facilitator who while try and encourage you come together on a marriage settlement agreement?

My advice is to get a lawyer and not sign anything until you do. There are some standard formulas for calculating spousal support etc. and unless there is something complicated like custody of children, there should not be too much to argue about.

Last edited by Dont Tread on Me; 01-12-2010 at 8:06 AM..
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Old 01-11-2010, 3:48 PM
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Originally Posted by 45DAVID1 View Post
I do have a good lawyer. I also work for a PD and deal with weapons on a daily basis. So, basically both parties can get a firearm exemption?
The judge can do so if he/she choses to. Read CPC 166(d)(2)

Last edited by SteveH; 01-11-2010 at 3:51 PM..
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Old 01-11-2010, 3:50 PM
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Originally Posted by five.five-six View Post
no, he can't that is the one thing the judge has no discretion in..
Better break open your penal code and look again.

Start with CPC 166(d)(2) allow specific firearm to, from and during work.
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Old 01-11-2010, 3:58 PM
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Originally Posted by bodger View Post
If, as you stated, your soon-to-be-ex's attorney is requesting the RO, you can be damn sure he'll put a firearms exemption in it for her.
no need, the restrainer is not prohibited, only the restrainee, also, the generally will not allow a reciprocal RO, so if you get one against her, she pretty much cant get one against you
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Dude give it up. The election is was months ago. Hillary is toast. Her political career is over.

Or do you just hate her so much you can't let go?

Last edited by five.five-six; 01-11-2010 at 4:03 PM..
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  #15  
Old 01-11-2010, 4:01 PM
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What a nightmare. If you get served out of the blue with an RO, I guess you're screwed as far as your guns go.
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Originally Posted by five.five-six View Post
the bute of it is that you can't even PPT your firearms... once you have been served.. LEO or FFL03 within 24 hrs, and believe me, when the LEO finds out you have 24 hos to off load your guns... let's just say you are not going to get top dollar

the other thing I would do is PPT ALL your firearms today to a trusted friend pro-actively. once you have been served, your options are very limited
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Old 01-11-2010, 4:05 PM
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^ yup
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Dude give it up. The election is was months ago. Hillary is toast. Her political career is over.

Or do you just hate her so much you can't let go?
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Old 01-11-2010, 4:15 PM
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Originally Posted by five.five-six View Post
no need, the restrainer is not prohibited, only the restrainee, also, the generally will not allow a reciprocal RO, so if you get one against her, she pretty much cant get one against you
Then she will probably get one on him as soon as the one on her expires. People do petty crap like this all the time and this is how people get killed. I am so glad I am not married.
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Old 01-11-2010, 4:18 PM
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Do you have a copy of the actual order?

Quote:
Originally Posted by 45DAVID1 View Post
I goto my divorce trial this Wednesday. The opposing side is a sworn deputy Sherrif. My soon to be ex and her counsel are requesting these orders:

RESTRAINING ORDERS

1. That each of the parties be enjoined and restrained from threatening, injuring, annoying, harassing, striking, assaulting, or otherwise interferering with the liberty of the other.

2. That each of the parties be ordered to sign the documents and pay... etc... blah blah blah..

So the question is; will the request and or granting of the restraining order prevent my ownership of firearms? If so would the same order prevent her from being able to own firearms as a Peace Officer? Are these types of restraining orders normal in divorce proceedings?
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Old 01-11-2010, 4:20 PM
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Originally Posted by five.five-six View Post
no, he can't that is the one thing the judge has no discretion in.. IMO strike first, go down and file a TRO against her in the morning.. or you will have 24 hours to either sell your guns to a 01FFL or give them to the police who will either destroy them or facilitate you in selling them as required by state law

either way, for the duration of the RO, you will not be allowed to posses or control a fire arm in the state of California
^This
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Old 01-11-2010, 4:25 PM
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Get a lawyer. 99.99999% of what has been posted is inaccurate.
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Old 01-11-2010, 4:33 PM
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Originally Posted by Ron-Solo View Post
Get a lawyer. 99.99999% of what has been posted is inaccurate.
+1. The original poster is really getting what he paid for in the quality of the information in this thread.
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Old 01-11-2010, 6:48 PM
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Quote:
Originally Posted by Ron-Solo View Post
Get a lawyer. 99.99999% of what has been posted is inaccurate.
kinda not true, but thanks for making stuff up.

I did hire 2 lawyers, they were both about as good on restraining orders as you average gun-store employee is on gun laws

I "interviewed" several others recommended by the OC bar and they were all pretty clueless on restraining orders, most notably with respect to gun laws

make sure your lawyer specializes in restraining orders if you hire one for that

the one guy I talked to that had any idea what he was talking about was $3500 retainer and still didn't quite understand the whole gun thing
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Dude give it up. The election is was months ago. Hillary is toast. Her political career is over.

Or do you just hate her so much you can't let go?
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Old 01-11-2010, 7:10 PM
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Default Good Luck

Good luck on Wed. I go to divorce court tomorrow. And have already been to the lovely child support court, it's amazing that they worry about money before custody. I'm hoping that I don't have to pull out the rest of my hair, as she's been reasonable as of late after good discussions.

I hope for the best of luck to you, and to not get bent over by the legal system.
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Old 01-11-2010, 7:27 PM
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Originally Posted by Ron-Solo View Post
Get a lawyer. 99.99999% of what has been posted is inaccurate.
I joined the proud ranks of divorced men over 5 years ago. This stipulation never prohibited me from owning firearms and it does not get filed in CLETS. Get the best lawyer you can afford and ask for an extension to do so. Any reasonable judge will not deny you this. Good luck with the nightmare. Learn your lesson and stay single!

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Old 01-11-2010, 7:54 PM
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There used to be Non-CLETS restraining orders and they are a thing of the past. Feel free to PM me, I am a Family Law attorney in San Diego. If you can scan the stipulation and email it to me, I'll take a look at it and give you my thoughts.
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Old 01-11-2010, 7:55 PM
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I joined the proud ranks of divorced men over 5 years ago. This stipulation never prohibited me from owning firearms and it does not get filed in CLETS. Get the best lawyer you can afford and ask for an extension to do so. Any reasonable judge will not deny you this. Good luck with the nightmare. Learn your lesson and stay single!

My nightmare has been going on for THREE years. Once again, THREE years. This "trial" is for the awarding of properties/assests as well as for custody. So far we have a 50/50 schedule. She wants me to be the weekend dad but I have refused to do so so that is why it has dragged on for THREE years. We even had a court ordered 730C (psychological evaluation) on both parties. The Psychiatrist even recommends the 50/50 schedule but the "mom" keeps changing lawyers when she doesn't get what she wants so the process starts all over again with her new lawyer basically beginning the process from step 1. Personally she can have it all. I don't want the house or any assests. All I want or have ever wanted is an equal amount of time with our son for both parents. I hope everything goes well. If not, what a waste of $30,000.
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Old 01-11-2010, 7:57 PM
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There used to be Non-CLETS restraining orders and they are a thing of the past. Feel free to PM me, I am a Family Law attorney in San Diego. If you can scan the stipulation and email it to me, I'll take a look at it and give you my thoughts.
This is what he needs!!

My case was about two years back. My lawyer explained that most judges (in San Fran area) would not even sign non-clets restraining orders at that time. Have things changed to do away with them all together?
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Old 01-11-2010, 7:58 PM
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PM me(for contact info), I went through hell myself and got full coustody of my children.
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Old 01-11-2010, 8:27 PM
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Quote:
Originally Posted by 45DAVID1 View Post
So the question is; will the request and or granting of the restraining order prevent my ownership of firearms?
Simple answer: yes, your restraining order will prohibit your owning, possessing, purchasing, or receiving a firearm for the duration of the restraining order. That is standard on all California restraining orders. Our state has a standardized restraining order form for domestic violence. You can read exactly what yours will look like (minus, of course, the specific details like your name, case number, etc.) here (page 2 has the firearms restriction):
http://www.courtinfo.ca.gov/forms/documents/dv110.pdf

This is the more general restraining order:
http://www.courtinfo.ca.gov/forms/documents/ch120.pdf

And this is the form you'll have to submit (as will your wife) when you turn in your firearms, should the protective orders be issued:
http://www.courtinfo.ca.gov/forms/documents/ch145.pdf

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Originally Posted by 45DAVID1 View Post
If so would the same order prevent her from being able to own firearms as a Peace Officer? Are these types of restraining orders normal in divorce proceedings?
The judge can make an exception for firearms that are necessary for her work. The same goes for you should it apply.

As for normal, usually there's some evidence of abuse for these to be granted. Judges do not tend to appreciate false claims of domestic violence or abuse (or lawyers who play hardball by using the threat of same as leverage).

On a personal note, I wish you the very best of luck. I cannot stand when parents use children as weapons against the other parent. Hopefully the judge will see through her chicanery and shut down her selfish attempts to screw up your relationship with your son.

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Originally Posted by five.five-six View Post
no, he can't that is the one thing the judge has no discretion in..
Completely incorrect. California Code Of Civil Procedure Section 527.9(f) states the following:
(f) The court may, as part of the relinquishment order, grant an
exemption from the relinquishment requirements of this section for a
particular firearm if the respondent can show that a particular
firearm is necessary as a condition of continued employment and that
the current employer is unable to reassign the respondent to another
position where a firearm is unnecessary.
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Originally Posted by five.five-six View Post
IMO strike first, go down and file a TRO against her in the morning.. or you will have 24 hours to either sell your guns to a 01FFL or give them to the police who will either destroy them or facilitate you in selling them as required by state law
Yet again, you are confused about the law. The guns are not automatically placed into a "sell these off or we'll melt 'em down" status.

In reality, when you surrender the firearms to the police or other local law enforcement, they *store* them. Cal. Civ. Proc. Code Section 529.9(b). They can charge for this (529.9(c)) and the owner can still sell them to a licensed gun dealer, whereupon the guns will be released to the dealer (529.9(f)).

Additionally, when and if the restraining order expires, they must be returned to the owner within five days of the expiration. Cal. Civ. Proc. Code Section 529.9(e).

Last edited by andalusi; 01-11-2010 at 8:37 PM..
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Old 01-11-2010, 8:29 PM
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Originally Posted by RandyD View Post
There used to be Non-CLETS restraining orders and they are a thing of the past. Feel free to PM me, I am a Family Law attorney in San Diego. If you can scan the stipulation and email it to me, I'll take a look at it and give you my thoughts.
pages 9-12 kind of cover it

http://www.courtinfo.ca.gov/jc/docum...ncilreport.pdf
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Dude give it up. The election is was months ago. Hillary is toast. Her political career is over.

Or do you just hate her so much you can't let go?
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Old 01-11-2010, 8:40 PM
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Originally Posted by five.five-six View Post
the bute of it is that you can't even PPT your firearms... once you have been served.. LEO or FFL03 within 24 hrs, and believe me, when the LEO finds out you have 24 hos to off load your guns... let's just say you are not going to get top dollar

the other thing I would do is PPT ALL your firearms today to a trusted friend pro-actively. once you have been served, your options are very limited
But, you can do what's called a power of attorney and transfer the firearms over to a trusted relative or friend until the TRO matter is handled. Check the DOJ website for this form, it is on there. Also, if you have long guns, those are not registered, just have a buddy hold onto them. Handguns, you have to do the Power of Attorney thing or surrender to FFL or police. I have been through this myself. Stay cool and calm. Do not even speak to your ex or her atty. Remember, the other side has to prove to the Judge that you have been violent or threatening recently (6 months less is generally what judges wanna see). If your ex cannot prove through emails, texts or police reports/witnesses that you are violent or threatening then the request for the RO should be dismissed. They are not going to grant a permanant RO unless there is PROOF. She cannot simply say you are violent or stalking her without some proof. Again, stay cool and don't say crap to her. Also, dig up anything about her that PROVES she has threatend you as ammunition.

Last piece of advice, let your attorney handle everything. In court, don't show any expression on your face, don't roll your eyes, breathe heavy or sigh. Play it super cool.


Here is the link for the Power of Attorney for your guns:

http://ag.ca.gov/firearms/forms/pdf/sb950frm1107.pdf

Last edited by tazmanian devil dog; 01-11-2010 at 8:43 PM..
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Old 01-11-2010, 8:58 PM
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five.five-six five.five-six is offline
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Originally Posted by andalusi View Post

The judge can make an exception for firearms that are necessary for her work. The same goes for you should it apply.
was not aware of the LEO loophole but that does not surprise me

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Yet again, you are confused about the law. The guns are not automatically placed into a "sell these off or we'll melt 'em down" status.

In reality, when you surrender the firearms to the police or other local law enforcement, they *store* them. Cal. Civ. Proc. Code Section 529.9(b). They can charge for this (529.9(c)) and the owner can still sell them to a licensed gun dealer, whereupon the guns will be released to the dealer (529.9(f)).

Additionally, when and if the restraining order expires, they must be returned to the owner within five days of the expiration. Cal. Civ. Proc. Code Section 529.9(e).
you may want to read what I wrote, first. additionally, the law enforcement agency must facilitate the lawful sale of your firearms


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Originally Posted by five.five-six View Post
will have 24 hours to either sell your guns to a 01FFL or give them to the police who will either destroy them or facilitate you in selling them as required by state law

either way, for the duration of the RO, you will not be allowed to posses or control a fire arm in the state of California

I sure hope you don't do this sort of thing for a living. the law only requires the LEO to hang on to your property for 60 days, many agencies will work with you but I doubt they will store them for you for 3 years


this is why I recommended preemptively PPT them all to a trusted friend before you are served... solves a lot of problems
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Dude give it up. The election is was months ago. Hillary is toast. Her political career is over.

Or do you just hate her so much you can't let go?
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Old 01-11-2010, 9:01 PM
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five.five-six five.five-six is offline
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Originally Posted by tazmanian devil dog View Post
But, you can do what's called a power of attorney and transfer the firearms over to a trusted relative or friend until the TRO matter is handled.

easiest thing is a inter-family transfer if possible... your transfer may work too, i did not try that. the key is to get them out of your ownership before you are served. once you are served th rules change a lot... but the law can't order you do anything with someone else's property
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Dude give it up. The election is was months ago. Hillary is toast. Her political career is over.

Or do you just hate her so much you can't let go?
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Old 01-11-2010, 9:17 PM
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just to be on the safe side, I would start dissassembling my guns right now, if this happened to me, id be dropping off a box of stripped recievers, at least if you cant get the recievers back you have some parts to either sell to make up some of the difference, or to rebuild new guns. Also, Id look into working out a deal with a pawn shop that has an FFL, you might be able to work it out and pay them a monthy fee to hold your box of recievers.
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Old 01-11-2010, 9:53 PM
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Key thing here is DO NOT GIVE YOUR GUNS TO THE POLICE OR FFL!!!!!!! Do the intrafamilial transfer or the Power of attorney. If you give your guns to the Police (no offense to LEO's) you may not get them back, if you do you'll have to get a DOJ Firearms clearance letter for each and every firearm at a cost of I believe 20.00 per gun. Correct me on fees if I'm wrong. Same goes for an FFL, if you try to get your guns back you'll pay a DROS for every gun and it'll be expensive. Plus the FFL may charge you for storage.

Last piece of advice. Don't keep or stash any of your guns illegally thinking "she doesn't know about that rifle". Trust me she does and even if she doesn't, she may be evil enough to lie to local authorities in order to try to get you in trouble. IT ISN'T worth it!!!!! Don't give her the satisfaction. If I sound a little bitter, I have every right to. I have been there and done that. I have the attorney fees to prove it. Not to mention losing 30 days of work because I had to surrender my duty firearm resulting in my inability to work.
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Old 01-11-2010, 11:04 PM
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Can't you two deal with this like adults and not do a restraining order? I am just saying... Not being a punk but your both LEO right... Alot easier to work with no restrictions and having to ask for it to be ok for work only... GL on all that.
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Old 01-12-2010, 7:57 AM
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Originally Posted by five.five-six View Post
was not aware of the LEO loophole but that does not surprise me
And yet that exemption was written in plain English in the relevant statute.

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Originally Posted by five.five-six View Post
you may want to read what I wrote, first.
I did. You made a number of errors right from your very first post. For some reason, you still cling to some despite being presented with the actual law.

Quote:
Originally Posted by five.five-six View Post
additionally, the law enforcement agency must facilitate the lawful sale of your firearms
If the subject of the restraining order turns over the firearms to the police, then decides to sell all of them at once to a licensed firearms dealer(and that is the only option per the statute: he can't sell them piecemeal or to private parties), then the police are required to turn over the firearms to the purchasing dealer within five days of receiving the bill of sale.


Quote:
Originally Posted by five.five-six View Post
I sure hope you don't do this sort of thing for a living.
What, correct people who can't even be bothered to do a simple Google search to make sure they're not mistaking their imaginations for legal reality? Nah, that's completely free.

Pointing out the relevant statute is easy when you already know it, though I'll add that if you spent ten seconds doing Google research, you could have found it yourself easily. Seriously, almost all the stuff you've claimed is directly addressed in California Code Of Civil Procedure Section 527.9 and for the most part, the law directly contradicts your assertions.

Quote:
Originally Posted by five.five-six View Post
the law only requires the LEO to hang on to your property for 60 days, many agencies will work with you but I doubt they will store them for you for 3 years
Which statute limits this to sixty days? I haven't encountered any language to that effect in 527.9, so I imagine you have some other specific statute in mind.

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Originally Posted by five.five-six View Post
this is why I recommended preemptively PPT them all to a trusted friend before you are served... solves a lot of problems
That would work.
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Old 01-12-2010, 2:50 PM
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I don't know if this helps but a friend of mine got a felon moved all his gun over to his moms house. Redding PD asked why has'nt he sold his guns because they are all still in his name. He just keeps on telling RPD he sold them. They have yet to do anything

Good Luck tomorrow. -Hutch
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Old 01-12-2010, 4:16 PM
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was not aware of the LEO loophole but that does not surprise me


Work tools are generally protect in divorse law.
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Old 01-13-2010, 11:56 AM
45DAVID1 45DAVID1 is offline
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Day 1 Update... Been on the stand for 2 hours... lunchtime is now... update is in post 1
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