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Accused of DV and arrested

J

Josey Wales

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, California, USA
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marshaul wrote:
What about your bodily arms? Surely they didn't leave you with those, capable of committing DV another day!
Click to expand...
I was allowed the retain them so as long as I did not use the in a dangerous manner.
 
marshaul

marshaul

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Indeed.

And, yet, while you were necessarily left with your bodily deadly weapons, you were deprived of those weapons which are most ideally suited to self-defense.

Seems kind of pointless. I'm sure lots of DV victims are saved that way. :quirky

Too much focus on guns, dontcha think?
 
H

Horoscope Fish

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New guy here, first post... So yeah, hi all.

Not a thread jack, but about two years ago I was the VICTIM in a domestic violence situation (psycho ex-wife don't ya know (I'll spare you the details)).

Long story short, SHE was the one hauled off in cuffs and charged with the DV and yet MY handguns were confiscated. Not only that but once we got through the court proceedings I had to pay for (what I'm assuming was) a NICS check before I could get them back.

Had I known then I what I know now, I might have lied to Officer Friendly when he asked if there were any firearms in the home. Talk about a kick in the pants.
 
J

Josey Wales

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Horoscope Fish wrote:
New guy here, first post... So yeah, hi all.
Click to expand...
Long story short, SHE was the one hauled off in cuffs and charged with the DV and yet MY handguns were confiscated. Not only that but once we got through the court proceedings I had to pay for (what I'm assuming was) a NICS check before I could get them back.
Click to expand...

Welcome to the forum!

What reason did they give for the confiscation? Did they write a receipt for the firearms? Did you use the DOJ form to have yourweapons released? How long did it take to take possession of said firearms? What section of the state are you from?
 
H

Horoscope Fish

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Josey Wales wrote:
Welcome to the forum!

What reason did they give for the confiscation? Did they write a receipt for the firearms? Did you use the DOJ form to have yourweapons released? How long did it take to take possession of said firearms? What section of the state are you from?
Click to expand...
Thank you.

Bear in mind this was some time ago, but to paraphrase Officer Friendly… In the case of a DV all firearms have to be removed from the premises. Period. I was not given any further explanation. I was only provided with a "receipt" in the broadest sense of the word, and only after I politely demanded one. I was in pretty rough shape and frankly, not as mentally sharp (lol) as I usually am.

At any rate, said officer scratched out something to the effect of a Bill of Sale using a page from the little spiral-bound notebook he took from his shirt pocket; there was nothing even remotely "official" used. I got names, the date, serial numbers and make/model numbers recorded on what amounted to a scrap of paper and remember having a deeply sinking feeling in my gut as he walked away with every pistol I own dangling from his fingers (which were inserted into the trigger-guards). I even remember offering to allow him to use soft-cases because they were banging against one another. I still cringe at the thought of that sight…

It was roughly three months before I was able to take possession of my property again. I was informed by mail that I could pick up my pistols from the local Police Station. When I arrived to claim my pistols I was told that due to a recent change in the law, effective January 1st, I would have to "apply" (their word) to take possession of my firearms. This meant a NICS check from what I could tell. I can't say with absolute certainty that it was the same DoJ form used for a new firearms purchase, but I’m 99% sure it was.

More to the point, the real issue quickly became that while the crime had taken place in November - hence prior to this new law taking effect - my pick-up letter was dated sometime mid-February and so after the new law had taken effect. This confusion took some days to figure out and it was decided that the forms would be required. With that cleared up I was told that each form was good for up to two firearms, so I had to fill out two forms AND pay two fees. I can’t recall if it was another ten-days after that that I was allowed to take physical custody of my property or not but I believe it was.

I live in northern San Diego county.
 
PincheOgro1

PincheOgro1

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Horoscope Fish wrote:
Josey Wales wrote:
Welcome to the forum!

What reason did they give for the confiscation? Did they write a receipt for the firearms? Did you use the DOJ form to have yourweapons released? How long did it take to take possession of said firearms? What section of the state are you from?
Click to expand...
Thank you.

Bear in mind this was some time ago, but to paraphrase Officer Friendly… In the case of a DV all firearms have to be removed from the premises. Period. I was not given any further explanation. I was only provided with a "receipt" in the broadest sense of the word, and only after I politely demanded one. I was in pretty rough shape and frankly, not as mentally sharp (lol) as I usually am.

At any rate, said officer scratched out something to the effect of a Bill of Sale using a page from the little spiral-bound notebook he took from his shirt pocket; there was nothing even remotely "official" used. I got names, the date, serial numbers and make/model numbers recorded on what amounted to a scrap of paper and remember having a deeply sinking feeling in my gut as he walked away with every pistol I own dangling from his fingers (which were inserted into the trigger-guards). I even remember offering to allow him to use soft-cases because they were banging against one another. I still cringe at the thought of that sight…

It was roughly three months before I was able to take possession of my property again. I was informed by mail that I could pick up my pistols from the local Police Station. When I arrived to claim my pistols I was told that due to a recent change in the law, effective January 1st, I would have to "apply" (their word) to take possession of my firearms. This meant a NICS check from what I could tell. I can't say with absolute certainty that it was the same DoJ form used for a new firearms purchase, but I’m 99% sure it was.

More to the point, the real issue quickly became that while the crime had taken place in November - hence prior to this new law taking effect - my pick-up letter was dated sometime mid-February and so after the new law had taken effect. This confusion took some days to figure out and it was decided that the forms would be required. With that cleared up I was told that each form was good for up to two firearms, so I had to fill out two forms AND pay two fees. I can’t recall if it was another ten-days after that that I was allowed to take physical custody of my property or not but I believe it was.

I live in northern San Diego county.
Click to expand...
Claim the fees on your tax return. LOL. that'll teach 'em
 
M

MrsChewy352

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Horoscope Fish wrote:
Thank you.

Bear in mind this was some time ago, but to paraphrase Officer Friendly… In the case of a DV all firearms have to be removed from the premises. Period. I was not given any further explanation. I was only provided with a "receipt" in the broadest sense of the word, and only after I politely demanded one. I was in pretty rough shape and frankly, not as mentally sharp (lol) as I usually am.
Click to expand...


Hi gents... :dude:

The above was my experience as well. The local PD even came back a few days later to find the final unaccounted for revolver and remove it from the home. There were no formal DV charges but the PO was enough to keep the firearms locked up. My ex went through probate courts to try to get his sidearm back in particular but was unsuccessful. They ended up destroying two rifles, a revolver and a BE-A-U-TIFUL Sig because the case ran on too long in probate court. (This was all in Orange County btw.)

To OP:

So long story short, if you're going to fight for return of your weapons, move quickly and stay on the LEOs involved to get you through. Glad to hear you have a lawyer to work with since the CA legal system is so difficult to navigate.


*Edit - FYI... I believe the weapons were held up in probate because on top of the PO, he was held on a 3 day psychiatric hold at one point. Your situation probably wouldn't require you to go through probate.
 
J

Josey Wales

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Location
, California, USA
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MrsChewy352 wrote:
Hi gents... :dude:

The above was my experience as well. The local PD even came back a few days later to find the final unaccounted for revolver and remove it from the home. There were no formal DV charges but the PO was enough to keep the firearms locked up. My ex went through probate courts to try to get his sidearm back in particular but was unsuccessful. They ended up destroying two rifles, a revolver and a BE-A-U-TIFUL Sig because the case ran on too long in probate court. (This was all in Orange County btw.)

To OP:

So long story short, if you're going to fight for return of your weapons, move quickly and stay on the LEOs involved to get you through. Glad to hear you have a lawyer to work with since the CA legal system is so difficult to navigate.


*Edit - FYI... I believe the weapons were held up in probate because on top of the PO, he was held on a 3 day psychiatric hold at one point. Your situation probably wouldn't require you to go through probate.
Click to expand...
Arrest and confiscation in LA county were over a year ago. I did check in with Lt. on duty and asked what would I need to do to receive my Sig back. He informed me of the DOJ requirement and disposition of my case. Looks like I'll know more in June. Sorry for the loss of your Sig. Also, welcome to the forum.
 
J

Josey Wales

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, California, USA
Update:

Case has been dismissed! Judge order the return of my gun over the objection of the DA. She even had to admit she no legal standing to object. Next up is calling the PD and find out what their procedure is for the return. Thanks to eveyone here for their support and guidence.
 
C

ConsideringOC

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San Diego, California, USA
12028.5 pc

12028.5 PC Family Violence/Firearms Seizure

The police at the scene of family violence, involving a threat to human life or physical assault, may take temporary custody of any firearm or deadly weapon in plain sight or by consensual search for the protection of the peace officer or other persons present. The police may retain the weapons up to 72 hours unless the weapons were seized as evidence or for an additional crime.
 
W

Wc

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ConsideringOC said:
12028.5 PC Family Violence/Firearms Seizure

The police at the scene of family violence, involving a threat to human life or physical assault, may take temporary custody of any firearm or deadly weapon in plain sight or by consensual search for the protection of the peace officer or other persons present. The police may retain the weapons up to 72 hours unless the weapons were seized as evidence or for an additional crime.
Click to expand...

The police were not at the scene of case.
 
wewd

wewd

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Glad to see your case resolved. While I don't know the specifics of your case, I can't believe how many people I have run into who were arrested for felony DV and had a clear cut case in their favor (usually the girlfriend/wife was out of control and beating THEM up, but she had bruises on her from being restrained), but out of fear and ignorance, copped to misd DV to avoid jail and end up losing their gun rights for life. (Thanks, Senator Lautenberg!)
 
D

Dr. Blofeld

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COMMENT REMOVED BY MODERATOR: Personal attacks.

Word to the wise: On favorable disposition of dv case get judge to make a specific written order that requires the police to return the weapons forthwith. Makes things go much easier re: return of guns.
 
J

Josey Wales

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Dr. Blofeld said:
COMMENT REMOVED BY MODERATOR: Personal attacks.

Word to the wise: On favorable disposition of dv case get judge to make a specific written order that requires the police to return the weapons forthwith. Makes things go much easier re: return of guns.
Click to expand...

Written order was obtained. PD still wants a LEGR before my firearm is returned.
 
W

Wc

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Josey Wales said:
Written order was obtained. PD still wants a LEGR before my firearm is returned.
Click to expand...

Maybe the PD is wrong or maybe a error by judge. Did you by yourself or your lawyer? Must report to court clerk about this problem first.

California Penal Code Section 12021.3...
(b) No law enforcement agency or court that has taken custody of
any firearm may return the firearm to any individual unless the
following requirements are satisfied:
(1) That individual presents to the agency or court notification
of a determination by the department pursuant to subdivision (e) that
the person is eligible to possess firearms.
(2) If the agency or court has direct access to the Automated
Firearms System, the agency or court has verified that the firearm is
not listed as stolen pursuant to Section 11108, and that the firearm
has been recorded in the Automated Firearms System in the name of
the individual who seeks its return.
 
J

Josey Wales

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, California, USA
Wc said:
Maybe the PD is wrong or maybe a error by judge. Did you by yourself or your lawyer? Must report to court clerk about this problem first.

California Penal Code Section 12021.3...
(b) No law enforcement agency or court that has taken custody of
any firearm may return the firearm to any individual unless the
following requirements are satisfied:
(1) That individual presents to the agency or court notification
of a determination by the department pursuant to subdivision (e) that
the person is eligible to possess firearms.
(2) If the agency or court has direct access to the Automated
Firearms System, the agency or court has verified that the firearm is
not listed as stolen pursuant to Section 11108, and that the firearm
has been recorded in the Automated Firearms System in the name of
the individual who seeks its return.
Click to expand...

This is from the DOJ website:

LEGR Application Submission Process
Individuals seeking the return of a firearm(s) that is in the custody or control of a court or law enforcement agency must submit a LEGR Application along with the appropriate fees to the Department of Justice (DOJ). A firearms eligibility check will be conducted to determine if the applicant is lawfully eligible to possess firearms. A notice of the results will be sent to the applicant. The notice must be presented to the court or agency within thirty (30) days of the date of the notice. Failure to do so will result in the need to submit a new application and fees and undergo another firearms eligibility check.


Also,

I have the hand written minutes by the judge for the return of said gun, but PD still wants DOJ stamped eligibility form.
 
Last edited:
mjones

mjones

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I can't find it at the moment, but there is a code somewhere which puts an obligation on government agencies to determine if the recipient/returnee of a firearm is a prohibited posessor - hence the requirement for a LEGR from DoJ.

Duh, PC 12021.3 it was right there in front of me in this thread.

12021.3. (a) (1) Any person who claims title to any firearm that is
in the custody or control of a court or law enforcement agency and
who wishes to have the firearm returned to him or her shall make
application for a determination by the Department of Justice as to
whether he or she is eligible to possess a firearm. The application
shall include the following:
 
W

Wc

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Your choices

Josey Wales said:
I have the hand written minutes by the judge for the return of said gun, but PD still wants DOJ stamped eligibility form.
Click to expand...

CPC 12021.3... Be advised that any unclaimed firearm may be disposed of by an agency or court 180 days after the owner has been notified that the firearm is available for return.
 
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