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Who's Gonna Protect You From Thieves...
When They're the Police?

by Jerry Phillips, 22 Aug 00
http://www.GunsAndCrime.org

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 "arrested."

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 enforcement officer

"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 law says,

"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 facility....

"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 hypothetical person.

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."

CONCLUSION:

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 power.

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