By Dean Weingarten
Arizona – -(Ammoland.com)- California, especially California cities, have had a bad reputation for decades, of legally stealing firearms. This was primarily done with police officers confiscating firearms that they came across, without any crime being committed. Department policy was then to refuse to return the firearm unless a court ordered them to do so. As the process of obtaining a court order would ordinarily be much more costly than the price of a firearm, most people who had their firearms stolen by police simply did not bother in attempting to obtain a court order.
The situation became so notorious that a law was passed in California to require police to return firearms without a court order, by following a procedure placed into California law. But a new twist was added by the California Department of Justice. They insisted that the owner of the firearm that was confiscated by the police, had to prove that the firearm belonged to them, before the firearm would be returned. This could be done by showing that the firearm was registered in California, or by receipts or other documented proof that the firearm was owned by the person who was asking for its return, normally, the person that it was confiscated from.
This is in direct contradiction of ordinary law, which acknowledges that “possession is 9/10s of the law”. A person in possession of property is presumed to be the lawful owner; it is up to the state to prove otherwise. Many firearms in California were never required to be or entered into the registration lists. Millions of firearms made before 1968 or made by private parties, do not have serial numbers. Litigation followed, and the Department of Justice was forced to admit that possession “could be” used as sufficient proof that the firearm was owned by the person that it was confiscated from (Churchill v. Harris, U.S.D.C.-N.D. Cal. No. 3:12-cv-01740-LB).
The well known law firm of Michel & Associates litigated the following case. The settlement with the Torrance Police Department shows a particularly egregious example of the police putting themselves above the law.
Michael Roberts voluntarily turned over 21 firearms to the Torrance police department as required by a temporary restraining order issued against him as a result of an argument with staff at his physician’s office. The temporary restraining order was resolved amicably.
Roberts then attempted to have his firearms returned from police custody. The Police refused to return his firearms, citing the California DOJ letter. Roberts had followed the required procedure in California law, three separate times. The Torrence police department continued to refuse to return Roberts’ property. Roberts then obtained two different court orders to the police department to return his private property, valued at $15,800, some of which were irreplaceable heirlooms. After the first court order, the police reluctantly returned four of Roberts’ handguns that were registered. Roberts obtained another court order requiring that the police return the remaining 17 firearms. The police refused to comply with that court order as well, scheduled the 17 firearms for destruction, and had them destroyed. The entire process took about three years.
Roberts then sued for relief under Violation of Federal Civil Rights Under Color of Law (42 U.S.C. Section 1983), in May of 2014. At the end of February, 2015, a settlement was reached. It is reported that the settlement was for $30,000 dollars, and included changes in the Torrance Police Department procedure and training. Parts of the training include the requirement that receipts be issued for all firearms that are taken into police custody; that all firearms taken into custody be checked to see if they were stolen; and that notice be given to legal owners of firearms before their property is destroyed. All of these requirements are based on existing law within California. From dailybreeze.com:
The Torrance Police Department failed to return 17 surrendered firearms worth $15,800 to their rightful owner, ignored two court orders to do so and then destroyed them after almost three years of illegally holding the weapons, according to a lawsuit against the city by gun advocacy groups.
As part of the settlement, the department was required to revise its written policy regarding seized and surrendered firearms, which groups such as the National Rifle Association and California Rifle and Pistol Association hope to use in a statewide effort to educate law enforcement agencies.
It boggles the mind that such basic procedures have to be included in a settlement of a Civil Rights lawsuit. A motive for the actions was alleged in the lawsuit:
The lawsuit alleged a “malicious motive” on the part of the department, which went a step further than simply misapplying a law by “willfully disobeying a judicial order in order to punish a firearms owner who wouldn’t yield to TPD’s unlawful registration policy.”
A post on calguns.net says that the case will be used to educate police departments all over California. From calguns.net:
NRA and CRPA provided much support in securing this CRPA victory will now be sending information to all California police departments educating these law enforcement agencies about the law governing the return of firearms, and correcting the bad advice in the DOJ’s eligibility letter. Agencies that follow the bad advice in the DOJ’s letter are violating state law and will face NRA/CRPA legal action.
When the police act lawlessly, based on illegal advice from a State Department of Justice, and go so far as to defy court orders, the rule of law is severely damaged. I hope that this case helps to continue the desperately needed restoration of the rule of law in California.
c2014 by Dean Weingarten: Permission to share is granted when this notice is included. Link to Gun Watch
About Dean Weingarten;
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.