Who's Gonna Protect You
When They're the Police?
by Jerry Phillips, 22 Aug 00
I'll call the man "Joe," because he
could be almost any common man (or woman) in California. He insists that
he is an upstanding citizen. His name is changed to protect the innocent.
The name of the jurisdiction is not changed. I had to question Joe to get
the relevant facts. He was totally baffled by the situation and was unable
just to volunteer them. So I'm confident his story is true because he
didn't understand the facts well enough to fabricate them.
On a day late in January of 2000, Joe was at
his home in Ventura, CA, and was having a loud argument with his sister. A
neighbor heard some of the "loud" and called 911. Joe's sister
left the house.
Joe's phone rang. Joe later said it was
the "911" operator, and it probably was. She asked if he had any
weapons in the home, to which he answered that he did. She told him the
police would like him to come out of the house and talk to them. When he
stepped out of the house, he was "greeted" by eight officers with guns
drawn, plus 2 attack dogs. They put him through the drill of hands interlaced
on the back of the head, back toward them, then down on knees. They
handcuffed him, patted him down, and explained to him--but not the
neighbors--that he was "only" being detained, not
Joe was put in a police car and asked where his
guns were. All of his guns were put away and out of sight. He told
the police where the guns were, and they went into the house and brought them
out. Joe asked why they were taking his guns, to which the officer
explained that, under domestic violence law, the police will take the weapons
for 15 days and the owner can pick them up from the police department if they're
legal. Most reassuring he was. Joe told the officer there had been
no violence or even a threat of violence. The officer, said something
like, "We would rather be safe."
At this point, let us digress from the story
and look at what the laws say. California Penal Code Section
(p.c.)12028.5(b) (year 2000 version) says that a "peace" or law
"at the scene of a domestic violence
incident involving a threat to human life or a physical assault, shall
take temporary custody of any firearm or other deadly weapon in plain sight
or discovered pursuant to a consensual search as necessary for
protection of the peace officer or other persons present."
Note that, in Joe's case, there was no threat
to human life, or any assault. His guns were not in plain sight and he did
not give permission to search. It is possible that the police may have
given themselves a superficially plausible excuse for searching under p.c.
12028.5 by obtaining what they could claim to be permission to search from a
person who had no authority over the home. Joe's mother was there at the
time, and quite upset at the police presence. She doesn't remember if one
of them asked or if she said yes or no.
Note too that the standard of the law is not
"erring so as to be on the safe side" in the mind of the police
officer. The standard is that there was a threat or assault, and as
necessary to protect people.
Further along in the same subdivision (b), the
"Except as provided in subdivision (e),
[about unclaimed guns being sold or destroyed under penal code 12028] if a
firearm or other deadly weapon is not retained for use as evidence related to
criminal charges brought as a result of the domestic violence incident or is
not retained because it was illegally possessed, the firearm or other deadly
weapon shall be made available to the owner or person who was in lawful
possession 48 hours after the seizure or as soon thereafter as possible,
but no later than 72 hours after the seizure."
Note that the police officer's statement about
15 days was untrue in relation to the domestic violence law (p.c. 12028.5).
Joe wasn't worried. He trusted that
government is good. It takes care of us. Laws are good. Police
are here to protect us. He expected that, after the situation was
clarified for the authorities, he would just go down and get his guns. He
was so unworried that when the police were finished stealing his guns and had
missed one, he brought it to their attention! They went back in and stole the
short, black home-defense shotgun.
The police didn't just release Joe when they
were finished stealing his guns, even though he "wasn't under arrest."
They took him to a mental health care facility for a "72 hour
evaluation" under California Welfare and Institutions Code (W&I) 5150.
After the police turned Joe over to the facility, Joe was there less than 24
hours when a mental health professional released him, saying "You don't
belong here" and thereby attesting under the law that there was not cause
to believe Joe was probably a danger to himself or others.
Let's look at the law (Welfare and Institutions
Code) about this.
"5150. When any person, as a result
of mental disorder, is a danger to others, or to himself or herself, or
gravely disabled, a peace officer.....may, upon probable cause, take,
or cause to be taken, the person into custody and place him or her in a
"Such facility shall require an
application in writing....stating that the officer.....has probable cause
to believe that the person is, as a result of mental disorder, a danger
to others, or to himself or herself, or is gravely disabled....."
The law does not define "mental
disorder" but the police were probably pretty sure that Joe fit the bill.
Why else would anyone trust them, tell them where his guns were, and then tell
them when they missed one? The law doesn't say "may be" a
danger. It says, in effect, the officer must have cause to believe the
person probably is a danger. No officer with any sense could have
thought that Joe was probably a danger to himself or others because of his crazy
trust of police and "the system." So, why did the police think
they needed to take Joe to the facility for a mental check?
Enter Welfare and Institutions Code 8102:
"(a) Whenever a person, who has been
detained or apprehended for examination of his or her mental condition..... is
found to own, [or] have in his or her possession or under his or her control,
any firearm whatsoever, ... the firearm.... shall be confiscated by any law
enforcement agency or peace officer, who shall retain custody of the firearm
or other deadly weapon."
By taking Joe for a mental evaluation even
though they did not have the required probable cause, they made
themselves a plausible excuse for searching without a warrant under W&I
8102. Although the police mentioned only "domestic violence"
when they explained to Joe why they were seizing his guns, they were no doubt
already intending to railroad him using the "72 hour mental hold."
A couple of weeks later, rather than getting
his guns back, Joe received a copy of a police department petition to the court
to permanently steal Joe's guns. [No, they don't put it just like that.]
The petition claimed that return of his weapons "would be likely to cause
harm to himself or others" and told Joe that he had 30 days to inform the
court clerk whether he wanted to have a court hearing or would just let the
police steal the guns. Joe got an attorney.
If this were truly a "domestic
violence" case, the law on this would be back in penal code section
12028.5, subdivision (f):
"(f) In those [domestic violence] cases
where a law enforcement agency has reasonable cause to believe that the
return of a firearm or other deadly weapon would be likely to result in
endangering the victim or the person reporting the assault or threat,
the agency shall advise the owner of the firearm or other deadly weapon, and
within 10 days of the seizure, initiate a petition in superior court to
determine if the firearm or other deadly weapon should be returned."
Senate Bill 2052 has just now passed the
legislature and is (8/18) heading to the governor to increase the 10 days to 60
days, and to increase a 30 day limit in W&I 8102 to 60 days. This was
based upon a reasonable request since some police are having to work too hard to
steal firearms under the 10 day notice requirement.
Note that the domestic violence law requires a
claim that the person is likely to endanger the victim of the domestic
violence (that didn't exist in this case) or the person reporting the assault
or threat (neither of which existed). It does not provide for opposing
return just because the person might be a danger to self or some
But, by taking Joe in for the 72 hour mental
evaluation without the proper cause to do so, the police had converted the case
from a domestic violence case (p.c. 12028.5) to one of "mental
disorder" under W&I 8102, which says, in part:
"(c) Upon the release of a person .... the
confiscating ... agency shall have 30 days ... to initiate a petition .... for
a hearing to determine whether the return of a firearm.... would be likely
to result in endangering the person or others..... "
Note that the standard for being able to steal
the citizen's guns under W&I 8102 is so low as to be almost nonexistent.
"Likely" could mean "remotely possible." So, by
converting the case illegally to a mental disorder case, the police made it much
easier for them to later steal Joe's guns. Had the case remained one of
"domestic violence," the standard for stealing his guns would have
been in subdivision (h) of p.c. 12078:
"Unless it is shown by clear and
convincing evidence that the return of the firearm or other deadly weapon would
result in endangering the victim or the person reporting the assault or threat,
the court shall order the return of the firearm ....."
Three months after the original incident Joe
got his day in court. His attorney had subpoenaed records from a
psychiatrist with whom Joe had had some kind of treatment. The
psychiatrist had misunderstood and actually showed up without records. He
assured Joe's attorney that Joe was not dangerous, so the attorney decided to
put him on the stand as a witness.
The psychiatrist testified that Joe was of no
danger to anyone. Then, the assistant DA gave the psychiatrist a copy of
the arrest report and had the doctor read it. Then, as though whatever is
in a police report must be true by definition, the psychiatrist discounted all
past psychiatric experience with Joe, changed his mind and said that he was now
concerned that Joe might do something dangerous. He apologized to
Joe on the way out, although Joe was too shocked by the betrayal to be much
comforted. Could the misunderstanding about subpoenaed records have sprung
from clandestine discussion with the DA?
The judge ordered that the guns be kept and
that Joe cannot possess or be in presence of a firearm for five years or he will
be guilty of a felony. Because Joe figures correctly that it would be
financially stupid to go to court again within 12 months, his guns will be
disposed of pursuant to p.c. 12028, which allows the police organization to
divert the firearms to their own use. The affair already cost Joe the
$1500 for the attorney and $520 in lost wages to try to get back $2800 worth of
guns (new value).
Joe blames the "anti-gun" DA.
The truth is that the police illegally used their power to search, to
seize his firearms, and to take him for mental evaluation without
probable cause. The truth is that it is the police who had to file
the petition to keep his guns, although they likely have a collaboration with
some assistant District Attorneys. This police department and DA have done
about the same in relation to stealing through asset forfeiture laws. The
DA is not legally given a choice in representing "the people" if the
police file the petition, although the DA could probably get out of it the way
they often do in other cases (since the law generally includes no penalty for a
DA that doesn't follow the law, and there's nobody to prosecute the DA).
Why did the police do this to someone who had
worked for the same employer for 19 years and had no trouble with the law?
They don't reveal their minds, but the shotgun and "assault" rifle
they stole are things they can use in their "work."
The police in this case relied upon Welfare and
Institutions Code 8102 because all it requires is an officer to claim on the
application to the mental care facility that he has probable cause to believe
the person is a danger to self or someone else, regardless of facts. This
route then permits the police to steal the firearms through the court because
all that's required in the hearing is "proof" that there is any likelihood
that the person would be such a danger.
Don't think for a moment that the kind of story
I've just told is about a rare event. It is happening every day somewhere
in our country. So, what can a person do to keep such things from
happening to themselves? I'm not an attorney, but here's my advice.
1. Oppose hurriedly considered or
supposedly well intended laws that are not simple and clear (unambiguous).
Fight laws that make it easy for police to steal while giving them incentive to
do so. Support organizations that fight such laws about guns. Vote
for candidates that believe that law should be the written law, not
judges' interpretations of ambiguous scribblings in law books. Vote for
those that believe people have an obligation and right to try to take care of
themselves and their families, including in defense against criminals, rather
than candidates who promote government and laws as being the protectors of
everyone and solutions or the sources of all good. Get involved in
fighting for your right to have and carry firearms.
2. Don't raise your voice, even in your
own home. Don't say anything the idiot next door, on the street, or even
in your own home might interpret as a threat. Try to keep yourself under
control at all times.
3. Tell your family members never to
authorize a search of your property, including motor vehicles, by police.
Explain why, including the fact that making the police get a search warrant
helps to secure your civil rights. Explain it until you get their
agreement. An uncooperative family can ruin you.
4. If you can, keep any unregistered guns
you have hidden or stored somewhere such that the police or kids or thieves
won't find them (besides locking them up).
5. If a police representative asks if you
have any weapons in your property, ask why they ask. If the person says
it's "for their safety," answer that there will be no need for them to
enter your home and that you will gladly step outside to talk to them. If
the person persists, answer that it doesn't matter since they will assume that
you have guns regardless of your answer.
6. Whether or not police ask you for
permission to search, tell them they do not have permission to search
your property and that nobody else has authority to give them such permission.
Do not tell them what guns you have or where they are. They will
probably already know of any you have that are registered.
7. If police take any guns, assume that
they are already trying to steal them, because they very likely are.
Don't be misled by their calm assurances that you'll be able to get your guns
back later. Start preparing.
a. If they took your guns illegally, sue
them even before they give you a petition saying they want to steal your guns
from you (unless an attorney can explain to your satisfaction why the seizure
was legal). Try to fight the theft from the beginning. That is,
contest their illegally detaining you for a 72 hour mental evaluation, and for
illegally seizing your guns, even before they say you may be able to get them
back. Don't be lulled into thinking "it's over" when the mental
health facility releases you. The police took you there only to set the
stage for stealing from you later.
b. Notify representatives of some of
those organizations that you belong to that fight for the right to keep and bear
arms, and ask them for help even before the authorities file a petition to start
theft proceedings (because they've already begun the proceedings by putting you
in the 72 hour evaluation without cause). You don't belong to any of those
organizations? Shame on you, but change your ways and ask them for help
anyway, even though you've been a Whig so far.
c. Notify gun rights activists, including
on the internet. There is a powerful medium of communication there for
you, and it may be possible to embarrass the thieves into backing off if you get
some media exposure. Don't be embarrassed about it. You'll find that
something similar has happened to many innocent people. It is not you who
should be ashamed. These people and organizations may be able to connect
you with attorneys experienced with such cases, or even have their attorneys
represent you at no cost.
8. If you are taken to a mental health
facility for the "72 hour evaluation," stay cool. If you don't
enjoy the situation, the psychiatrist may think that you are emotionally upset
and violent. Think of the people there as being attorneys. Be
pleasant, but don't talk much. Answer whatever questions you're asked in
an interview. Think before speaking. Don't joke about violence.
You don't know if the people there have a sense of humor.
9. Don't just start off your court
dealings arguing that you are of no danger and that the guns should be returned
to you. This would let them get away with illegally seizing your guns to
start with. Fight initially the legality of them having taken you for the
72 hour evaluation and having taken the guns to start with. Remember that
the officer is supposed to have probably cause. If they're going to
steal from you, make them earn it. Bring the abuse to the attention of the
court and the abuse might stop (although it may not in your own case).
10. Be extremely wary of having any
medical professional testify for you. Most of them have been brainwashed
against guns and gun ownership, and consider it their duty to protect you and
others from your guns in spite of you. They know best what is best for
you. Be sure your attorney understands the risks of relying upon a medical
professional unless that professional has proven his lack of bias against guns.
11. Because of the costs of legal
representation, compared to the value of your firearms, consider representing
yourself if you can't get help from one of the organizations but are willing to
lose some work time and do a bit of work to learn about the applicable laws
yourself. You can get help from someone other than an attorney. Your
chances of winning your firearms back will be low, just as they probably will be
if you get an attorney without experience with the specific laws involved, but
at least it won't cost you a lot. It'll be an eye-opening experience too.
You will probably need to be able to speak reasonably well to a judge. You
can't count on the judge reading any written arguments you might submit, because
the criminal court judge will be too busy punishing criminals to care about
protecting your rights. Although the law requires the hearing to be in a
criminal court, the judge there will consider you and your case a nuisance.
12. Even if you feel it expedient to let
the police steal your guns, keep all the records you get in the case, make
notes, and tell people about the experience--especially people who care about
the situation and will determine what the laws are and how the authorities
"bend" the law. The public is oblivious to such "goings
on" mostly because the victims are embarrassed to let people know they've
"had a problem with the law." If the public begins to learn
about such things happening, the authorities will figure out some harder and
less visible way to pursue their agendas, or might even give up on some of them.
© 2000, Jerry F. Phillips. Permission is
granted to reproduce this article in its entirety for purposes of informing the
public of the hazards of laws blindly entrusting law enforcement with unbridled