California gun repo men?

[Derius_T]

This is a snip and a link to the article. I hope I am posting this properly, if not mods please revise. This is the first I have heard of this actively going on. I know California was very unfriendly to firearms, but not to this level. What concerns me the most is the meaning and intentions behind this statement...

... at the ranch house in nearby Upland, where they seized the three guns from the home of a woman who’d been hospitalized for mental illness. One gun was registered to her, two to her husband. “The prohibited person can’t have access to a firearm,” regardless of who the registered owner is, says Michelle Gregory ...

Where is this headed? It seems to say that even if the guns legally belong to me, and I have a full legal right to own them, that they can be seized because someone in my home gets deemed "mentally ill" by some over zealous medical personnel, and suddenly I am stripped of my legal rights? Am I reading this wrong? Overreacting? Link to full article below:

http://www.businessweek.com/articles...ve-racking-job

[kilimanjaro]

Sure reads that way to me, if the guns are in the same home as the mentally ill person, they can be seized. It's about access, not ownership.

[Derius_T]

So can the argument be made that the person has no "access" to the firearms? As in the guns are locked in a safe where only owner has access? I doubt that would stop them. This is troubling.

[rebs]

Its all about control. When all guns are removed from the citizens then the gov has total control. This is what they want.

[Tom Servo]

It's about access, not ownership.

I don't know the California statutes, but access is usually a different thing than possession.

If dad keeps his booze in a liquor cabinet, his children have access to it, but they're not in possession of it just by living in the house.

[Frank Ettin]

Originally Posted by Derius_T

...Where is this headed? It seems to say that even if the guns legally belong to me, and I have a full legal right to own them, that they can be seized because someone in my home gets deemed "mentally ill" by some over zealous medical personnel, and suddenly I am stripped of my legal rights...

This is not new, novel, nor a California issue.

1. If someone may lawfully possess guns but is living with a prohibited person, he must secure his guns against access by the prohibited person.
   
   
2. When the Third Circuit (Pennsylvania) looked at the issue a while ago, it let stand an indictment for aiding and abetting the unlawful possession of a gun by a prohibited persons in a situation in which a gun owner had a cohabitant who was a prohibited person.
   
   The point in that case, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), was that the gun the prohibited person was charged with possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):

   ...on June 6, 2008, a valid search warrant (the “search warrant”) was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.
   
   Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession....

3. So the issue for a gun owner in any State living with a prohibited person will be to assure that the prohibited person not have access to the gun(s). This could probably be accomplished by (1) keeping the gun on his person under his control; and (2) when not on his person keeping the gun locked up in a safe/case to which the prohibited person doesn't have the combination or key.

[ClydeFrog]

I read a news item from a major CA paper, The San Francisco Chronicle, I think, that stated the CA state agency that enforces the gun laws & SOPs for state agents to confiscicate California felons guns. They claim they lack the funds, manpower & resources to get all the convicted felons weapons.


The news article is from www.SFgate.com date: 01/30/2013, the reporter is Wyatt Bucahan.
CF

[tulsamal]

(2) when not on his person keeping the gun locked up in a safe/case to which the prohibited person doesn't have the combination or key.

When my Dad decided to plead guilty to a non-violent felony... his lawyer told him to give up any ideas of "finessing" the law. My Dad had asked him about selling his guns to his wife and putting them all in a new safe and only the wife having the combination. The lawyer told Dad that nobody was going to believe that a husband in that situation wouldn't have knowledge of the combination. Or, for that matter, that the guns really belonged to the wife. He asked what would happen if a judge put Mom on the stand and started asking her specific questions about the guns, what kind of ammo, what kind of scope, when you last fired it, at what, etc? My Mom can't tell a .22 LR from a .44 Magnum so he had a point....

So I guess it depends on who you are and what your relationship is. I would consider guns locked in a safe to be "secure" from a rental roommate. But I can see what the lawyer was talking about... people that have been married for 50 years don't have secured areas from each other.

Gregg

[csmsss]

When my Dad decided to plead guilty to a non-violent felony... his lawyer told him to give up any ideas of "finessing" the law. My Dad had asked him about selling his guns to his wife and putting them all in a new safe and only the wife having the combination. The lawyer told Dad that nobody was going to believe that a husband in that situation wouldn't have knowledge of the combination. Or, for that matter, that the guns really belonged to the wife. He asked what would happen if a judge put Mom on the stand and started asking her specific questions about the guns, what kind of ammo, what kind of scope, when you last fired it, at what, etc? My Mom can't tell a .22 LR from a .44 Magnum so he had a point....

So I guess it depends on who you are and what your relationship is. I would consider guns locked in a safe to be "secure" from a rental roommate. But I can see what the lawyer was talking about... people that have been married for 50 years don't have secured areas from each other.

Gregg

Try thinking of it from a different perspective. Using your example above, your mom was convicted of no crime and should lose none of her rights, correct? So, why should she be prohibited from possessing the means to defend herself and her family? Her lack of firearm-specific knowledge is no different than that of many other citizens who own firearms legally. Your mom may be married to a felon, but she shouldn't be forced to divorce him or move out of the home in order to retain her constitutional rights.

[Plumbnut]

I guess we will have to watch and see what the courts decide and in the mean time write letters voicing your opinion on the subject and vote every chance you get.

[vranasaurus]

The marital privilege varies by state. Its not as simple as you cant be required to testify against your spouse.

Ownership and possession are two very different things. The law only prohibits possession by prohibited persons but they may still own guns.

[Frank Ettin]

Originally Posted by Plumbnut

...When your married all property is considered joint owned if acquired after the marriage. Also after a period of time,I think 10 years even property before the marriage becomes joint owned. Unless a prenuptial agreement was in place. I guess it varies by state possibly...

Wrong!

1. Yes, it does indeed vary considerably by State.
   
   
2. Marital property is automatically joint property only in States that have adopted a community property system of marital property. There are only nine such States.
   
   
3. Even in community property States not all property acquired after marriage is community property. All such States recognize exceptions such as property acquired by gift or bequest. In addition, spouses in community property States may agree that certain property acquired after marriage will be the separate property of one or the other, and such an agreement may be shown by conduct.
   
   
4. All other States use some variation of a common law marital property law system. In such system property acquired by either spouse during marriage remains his or her separate property unless they have in some way demonstrated an intent to treat the property as joint.
   
   
5. This is irrelevant anyway.
   
   
   1. The legal issue revolves around possession and access, not ownership.
      
      
   2. For example, in U.S. v. Casterline, 103 F.3d 76 (C.A.9 (Or.), 1996), the 9th Circuit set aside a conviction for being a felon in possession of a gun, because the conviction was based solely on evidence of ownership, but under the circumstances the defendant did not have access to or possession of the gun and ammunition.

[mehavey]

Originally Posted by Kilimanjarp

...reads that way to me, if the guns are in the same home as the
mentally ill person, they can be seized. It's about access, not ownership.

So noted.

And in consideration, this was exactly the situation in the Newtown school
shootings instance that put us all in the bind that we're in now. **



**
In that case, however, I don't believe there was a formalized "mentally-ill"
determination beforehand. (But I wish there had been)

[tulsamal]

The laws don't "vary by state" in my Dad's case. He pled guilty to a Federal felony. And it was the Feds who told him (along with his attorney and the judge) that he could no longer have guns in his house. Whether "the wife owned them" or they were in a safe or whatever. They actually told him that if there was a search of his house for any reason and they found so much as one round of .22 LR, he would go to jail. And since my Mom would be implicated as accessory... they said they would charge her as well. She's such a threat since she's never even had a parking ticket and she is 72 years old! Of course you could say the same thing about my 72 year old Dad who worked for DoD as a civilian for 40 years. With top secret classification. Actually "above" standard top secret since he was totally "in the black world." GS-17.

Don't get me started. It's a dark and twisty path when the Federal gov't decides to "make an example of you."

Gregg

[Frank Ettin]

No, federal law regarding possession of guns or ammunition does not vary by State. But marital property laws, which were brought up by Plumbnut, do vary by State.

[JimmyR]

OK, let's also settle a few other issues:

Originally Posted by Derius_T

Where is this headed? It seems to say that even if the guns legally belong to me, and I have a full legal right to own them, that they can be seized because someone in my home gets deemed "mentally ill" by some over zealous medical personnel, and suddenly I am stripped of my legal rights? Am I reading this wrong?

Yes, a little bit. From the article:

Originally Posted by Bloomberg Businesweek

The list of those no longer eligible to keep weapons is compiled by matching files on almost 1 million gun owners with databases of new criminal records and involuntary mental health commitments.

An involuntary commitment is an act in which a petitioner, a physician, and a judge/magistrate believe a person is an imminent threat to themselves or someone else. All three elements must be secured for an involuntary admission to take place. As a Mental Health Professional in Indiana, I have been forced to secure numerous Emergency Detention Orders (name varies by state) when evaluating someone arriving at an ER making suicidal or homicidal threats who is unable or unwilling to voluntarily get mental health treatment. In my work in a 100 bed psych hospital, normally only 4-7 are EDO admissions, often due to a dementia diagnosis in an elderly person who has no legal guardian who has been physically aggresisve to others in the home or nursing home. It is a serious process, and most of my colleagues take this very seriously. A simple mental health diagnosis is not, to my knowledge, reported to the state, due to HIPPA and the fact that the person is recieving treatment.

[Dr Big Bird PhD]

This is wrong. I do not have anything else to say.

It's wrong, and the fear being driven down our throats is sad. Very sad.

[bandaid1]

Forgive me if I'm off base here but in cases where the husband is denied the rights to have a firearms but the wife is legal to own a firearm, I fail to see how California can take the wifes firearms from a legal firearms owner.

Wouldn't that be an issue of equal protection? Also, on mandating locks/safes ect.. I thought that was delt with in the Heller case, the SCOTUS ruled that it was Unconstitutional to mandate trigger locks since it would not allow for immediate used to defend yourself? If the firearm must be locked up at all times the husband is home, then isn't her right to defend harth and home being denied without due process of law?

Thanks in advance for your reply.

[armoredman]

Jimmy, I was under the impression that in the single case referenced by the OP, the person who made the judgment which sent the woman of the house to a facility for two days was actually a nurse, unknown if she was a nurse practitioner, but I would expect that to invalidate the claim, or am I wrong? If some ER nurse with a grudge against fat old white prison guards decides to "have me committed" when I came in for a hangnail, well, I might have a real problem with that.

[Doc Intrepid]

One of the more chilling aspects of this matter is the fact that, in many cases, mental health adjudications that describe varying degrees of mental health are not permanent in any respect.

A person can be "sane", come home from several tours in Afghanistan and have PTSD, go through treatment and recover, suffer the death of a parent and/or the end of a marriage and become depressed, go through therapy, and thereafter be mentally stable again.

Mental health can vary from period to period, throughout people's lives.

Laws such as this act as deterrents to people who may be suffering from PTSD or Depression, by preventing them from getting the help they need - for fear of being classified as mentally defective by the State and having their firearms seized.


In some cases, removing firearms from citizens suffering from PTSD or depression may be justifiable - but there should be some mechanism in place which recognizes that in many cases these conditions are successfully treated and resolved. In such cases, the citizen should be able to petition to get their firearms back.

This approach demonizes mental health issues, and over time will lead to people who need help not seeking it out of fear of being labled defective and losing their 2A rights.

[Frank Ettin]

Originally Posted by bandaid1

Forgive me if I'm off base here but in cases where the husband is denied the rights to have a firearms but the wife is legal to own a firearm, I fail to see how California can take the wifes firearms from a legal firearms owner...

1. This is not necessarily a California issue. It is also a federal law issue. See post 6.
   
   
2. It's not an ownership issue. It's a possession issue. And possession isn't about ownership. It's about access and the ability to exercise control over the firearm.
   
   
3. It's not just that a prohibited person may not own a gun. Under federal law (as well as the laws of many States) a prohibited person may not possess a gun, i. e., hold one in his hands or have access to, and the ability to exercise control over, a gun.
   
   
4. While a non-prohibited person may own and possess a gun, if he lets a prohibited person handle it or allows a prohibited person assess to, and the ability to exercise control over, the gun, the non-prohibited person could be charged with the crime of aiding and abetting the unlawful possession of a gun by a prohibited person. The gun would be subject to seizure as evidence of that crime.
   
   
5. That is simply the current state of federal law, and in some cases state law.

Originally Posted by bandaid1

...Wouldn't that be an issue of equal protection? Also, on mandating locks/safes ect.. I thought that was delt with in the Heller case, the SCOTUS ruled that it was Unconstitutional to mandate trigger locks since it would not allow for immediate used to defend yourself? If the firearm must be locked up at all times the husband is home, then isn't her right to defend harth and home being denied without due process of law?..

No, Heller presented different issues. For one thing the law at issue in Heller required certain security of a gun even in the absence of anyone other than the lawful owner who might have access to it.

Here the issue is preventing someone who may not lawfully have possession of a gun, but who is regularly present, from being able to exercise control over the gun. There may be a variety of ways the lawful gun owner might do that without impairing his ability to use the gun for self defense.

He could, for example, keep the gun on his person. And when not on his person, the gun could be kept one of several types of lock-boxes which would prevent unauthorized access while keeping the almost as handy as simply keeping it unsecured in a drawer.

[bandaid1]

Thank you for the reply, I understand the competing interests/issues. Whoever I remember a courageous 15 y/o boy that used his fathers AR15 to shoot a robber in Texas defending his 12 y/o sister. Isn't it illegal for a 12y/o and/or a 15 y/o to have access to (posses) a firearm without the parent/adult present under federal law? Because I thought that a Minor was defined as under the age of eighteen for long guns and the age of twenty-one for handguns, with the exception of Vermont, eligible at age sixteen.

If the wife in Cali is legal to own and posses the firearm, it seems that requiring her to lock it up when her husband(a person not allowed to own/posses/have access to a firearm) is home, would violate her right to have the firearm for self defense. I mean she can't sleep with it strapped to her hip at night, right? What's her choice if she has a long rifle?

I think this confiscation thing is on shakey grounds. I don't see how they can confiscate anything without a warrent. Sounds like a witchhunt to me. I fail to see why she would be required to forfiet her rights when she has not broken any laws. Felons aren't require to have a background check before they handle a firearm in a gun store. Isn't a FFL violating the same law should that happen?

[bandaid1]

In U.S. vs Huet, in reading the 3rd circuits ruling, it said that the female KNOWINGLY allowed the male convict to have access to her SKS. That was the key part the issue. That is the part that was not disputed by the female.
"Huet indicated that she was angry that Hall had been showing off an SKS assault rifle. Huet said that if it happened again, she would take it "back" to Morgan. Huet further elaborated that she was worried that if Hall "gets in trouble with that, I get in trouble too. Cause it's in my name, and he's got it."

So she knew he was a convict, knew he could not have access, knew he had access, and knew it was wrong and did nothing to stop him.

[Frank Ettin]

Originally Posted by bandaid1

...Whoever I remember a courageous 15 y/o boy that used his fathers AR15 to shoot a robber in Texas defending his 12 y/o sister. Isn't it illegal for a 12y/o and/or a 15 y/o to have access to (posses) a firearm without the parent/adult present under federal law?...

That's not exactly right. There can be criminal liability under federal (or the laws of some States) if a person leaves a loaded gun unsecured, a minor gets access and hurts someone. But justified use of force in self defense would be a good defense to any such charge.

Originally Posted by bandaid1

...If the wife in Cali is legal to own and posses the firearm, it seems that requiring her to lock it up when her husband(a person not allowed to own/posses/have access to a firearm) is home, would violate her right to have the firearm for self defense...

Nonetheless, under current federal law (and the laws of many States) it would be a crime to aid and abet a prohibited person have possession of a gun.

Originally Posted by bandaid1

...I don't see how they can confiscate anything without a warrent.

Then you don't understand search and seizure law. The Fourth Amendment protects against unreasonable search and seizure. There are many circumstances under which the courts have sustained the seizure of evidence or contraband without a warrant.

Originally Posted by bandaid1

...I fail to see why she would be required to forfiet her rights when she has not broken any laws....

Among other things, if someone has aided and abetted a prohibited person to have possession of a gun, he has violated the law.

Originally Posted by bandaid1

...Felons aren't require to have a background check before they handle a firearm in a gun store. Isn't a FFL violating the same law should that happen?

First, the felon himself is violating the law. Second the FFL is violating the law if he knows or has reasonable cause to believe that the person he's showing the gun to is a prohibited person.

Originally Posted by bandaid1

...So she knew he was a convict, knew he could not have access...

Knowing or having reasonable cause to believe is an element. Of course in the situation described in the OP it appears likely that the husband knew or had reasonable cause to believe that his wife could not possess a firearm.

In such circumstance it would appear that the police would be able to articulate probable cause to seize the guns. It might work out that the case against the husband will ultimately fail, and the husband might have a chance to get his guns back (if he can keep them secure). But the first step in the process would be for the authorities to take custody of the guns pending going through the legal process.

[JimmyR]

Originally Posted by armoredman

Jimmy, I was under the impression that in the single case referenced by the OP, the person who made the judgment which sent the woman of the house to a facility for two days was actually a nurse, unknown if she was a nurse practitioner, but I would expect that to invalidate the claim, or am I wrong? If some ER nurse with a grudge against fat old white prison guards decides to "have me committed" when I came in for a hangnail, well, I might have a real problem with that.

I can speak for how it works in Indiana: The most common way an involuntary admission is initiated is the person is evaluated in an ER/Dr's Office/Therapist's office/Nursing Home/ etc. In my state, this can be done by anyone with a Masters in Psychology/Social Work/Counseling or be a Registered Nurse. This person is often the initiator of an involuntary admission, and it STILL must be approved by an MD and a Judge/Magistrate.

To address your concern about being admitted by a grudge, I will say I have seen, initiated, and dealt with dozens or hundreds of EDOs (Indiana's involuntary admissions), and have only seen 1 that was done that way- a co-worker of a nurse (who had no relation to my facility) took it out based on very loose interpretations of the person's statements, and essentially lied to the Dr and Judge. This person was admitted, and discharged in under 24 hrs because it was clear this was inappropriate. There are also ways to have this expunged in each state, and I would assume this one was dealth with appropriately. (On a side note, our facility has since made our policies stricter concerning accepting EDO's from outside sources.)