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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #41  
Old 09-05-2015, 8:27 PM
sarabellum sarabellum is offline
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Originally Posted by FABIO GETS GOOSED!!! View Post
The question is what is the extent of her interest in the firearms, which are subject to an order that says that it's ok for the PD to confiscate them and not give them back? She didn't have anything resembling full blown title (where you have an unconditional right to possess the firearms and do the same things with them as gun owners whose guns haven't been confiscated can do) before, and filing the 33850 application doesn't somehow restore that to her now.
Her community property interest is inviolable. Unless, you can cite any part of the Court of Appeals decision to the contrary, this is a dead issue. If you re-read the Court of Appeals decision, once the DOJ admitted that Lori may possess a firearm, she satisfied the sole requirement for return of the firearms under PC §33850 and as cited above, ""Lori has not provided any authority for the proposition that trial court proceedings on a section 8102 petition preclude a person who claims title to the confiscated firearms from seeking their return under Penal Code section 33850 et seq. Moreover, we believe that the record on appeal shows that the procedure provided by section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori."

Simply asking "what is Lori's property interest" repeatedly will not alter her community property interest in those firearms. All property acquired during marriage and before separation, other than by gift or inheritance (Ca Fam § 770(a)(2)), is presumptively community property. Ca Fam §§ 760, 771(a). At this point, Lori need not even show a marriage certificate since the Court made a factual determination 1) of the marriage, 2) Lori is the wife, and 3) those arms were acquired during the 20 year marriage. This case is closed, and Lori gets her firearms back.

Last edited by sarabellum; 09-05-2015 at 8:32 PM..
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  #42  
Old 09-05-2015, 8:47 PM
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Originally Posted by sarabellum View Post
Her community property interest is inviolable. Unless, you can cite any part of the Court of Appeals decision to the contrary, this is a dead issue. If you re-read the Court of Appeals decision, once the DOJ admitted that Lori may possess a firearm, she satisfied the sole requirement for return of the firearms under PC §33850 and as cited above, ""Lori has not provided any authority for the proposition that trial court proceedings on a section 8102 petition preclude a person who claims title to the confiscated firearms from seeking their return under Penal Code section 33850 et seq. Moreover, we believe that the record on appeal shows that the procedure provided by section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori."

Simply asking "what is Lori's property interest" repeatedly will not alter her community property interest in those firearms. All property acquired during marriage and before separation, other than by gift or inheritance (Ca Fam § 770(a)(2)), is presumptively community property. Ca Fam §§ 760, 771(a). At this point, Lori need not even show a marriage certificate since the Court made a factual determination 1) of the marriage, 2) Lori is the wife, and 3) those arms were acquired during the 20 year marriage. This case is closed, and Lori gets her firearms back.

If it was so, then why does she not have them already?
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  #43  
Old 09-05-2015, 9:12 PM
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"If it was so, then why does she not have them already?"
For levity I will nominate that someone with the capacity to return them thinks the City of San Jose has far to much cash on hand, and in the extreme thinks it has far to many employees who are not currently incarcerated.
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  #44  
Old 09-06-2015, 7:50 AM
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Originally Posted by RipVanWinkle View Post
"It is the responsibility of the court or law enforcement agency with custody or control of the firearm to verify that the applicant is the lawful owner or possessor of the firearm." Did the court actually say that Lori wasn't a lawful owner or possessor? Clearly Edward isn't because of the psychiatric hold. On the other hand Lori can lawfully possess or acquire firearms, just not the particular ones that were confiscated?
We don't know what exactly the trial court order says...it would be nice to see it lol...but we do know that the plaintiff asked for her guns back and in the course of granting the city's motion for disposition of the firearms specifically refused to order them released to her. If your property has been forfeited, whatever ownership interest you may have your right to possession is not what it used to be. Custody and control of the firearm is now in the hands of the PD by the authority of the W&I Code and the trial court order, which was resoundingly validated by the state appellate court. Filing 33850 papers doesn't change that so if the plaintiff waltzes into the PD with her 33850 papers demanding unconditional return of the firerms, the PD has the prerogative and authority to say no, we are holding the firearms under a court order and not you. Even though we haven't seen the trial court order we know that it says at least that much, and that the PD is in the driver's seat as far as the ultimate disposition of the fireams.
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  #45  
Old 09-06-2015, 8:27 AM
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Originally Posted by sarabellum View Post
Her community property interest is inviolable.
Maybe you can locate the exact point during the 33850 application process where the PD lost its court-ordered authority to retain custody and determine disposition of the firearms?

When the state appellate court said that 33850 "remains available," it was deciding whether the plaintiff had exhausted her administrative remedies before making her 2A claim. She hadn't made a 33850 application, so according to the court she hadn't exhausted her administrative remedies, which was one of several reasons why the court ruled she had no 2A claim. This shouldn't be misinterpreted as the court saying the PD would have to give the guns back if the plaintiff made a 33850 application, although that is how the plaintiffs are trying to parlay this into something in federal court lol. As I said before this is kind of a chickensh*t ruling because the appellate court must have known that the PD wouldn't give the guns back based on the court's own ruling validating the trial court order.
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  #46  
Old 09-06-2015, 11:34 AM
RipVanWinkle RipVanWinkle is offline
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If your property has been forfeited, whatever ownership interest you may have your right to possession is not what it used to be. Custody and control of the firearm is now in the hands of the PD by the authority of the W&I Code and the trial court order, which was resoundingly validated by the state appellate court.
I’ll agree that “whatever ownership interest you may have your right to possession is “not what it used to be. “ But Lori must still have some sort of ownership interest. Doesn’t the appellate court agree? Otherwise why would they cite her failure to go through the 38350 process as one of the reasons for dismissing her 2A claim, since the 38350 process strictly “is to be used only by the owner of a firearm which is in the custody or control of a law enforcement agency or court”? That seems to be a tacit admission that Lori retains an ownership interest, even if it’s not what it used to be, whatever that means.

Likewise, the DOJ didn’t reject her 38350 application outright on the basis that she has no ownership interest in the firearms. I’m not just trying to be argumentative here, Fabio, I’m trying to figure out what’s going on! The closest I can come to what’s happened is that once the firearms were confiscated her ownership interest was diminished to some unspecified degree. By virtue of the trial and appellate court’s decisions her ownership interest was further diminished and those decisions precluded her attempt to restore her full ownership interests through the 38350 process.

So far, so good. Now, correct me if I’m wrong, I think the only ownership interest that she retains is the right to have the confiscated firearms sold through an FFL, and receive some portion of the proceeds.
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  #47  
Old 09-06-2015, 12:40 PM
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Now, correct me if I’m wrong, I think the only ownership interest that she retains is the right to have the confiscated firearms sold through an FFL, and receive some portion of the proceeds.
We're pretty much on the same page (I think). Sale of the firearms or storage elsewhere were two options on the table. Note that those options were something offered up by the PD (as opposed to ordered by the court on its own initiative), but yes, I think her interest is such that she can hold the PD to its offer. The problem is the "sale or storage elsewhere" options are not acceptable; rather, she wants the guns returned outright and seems to think that the 33850 application gives her the right to demand that and somehow trumped the forfeiture order.
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  #48  
Old 09-06-2015, 1:12 PM
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Originally Posted by RipVanWinkle View Post
By virtue of the trial and appellate court’s decisions her ownership interest was further diminished and those decisions precluded her attempt to restore her full ownership interests through the 38350 process.
At the risk of belaboring the point I've been making, there is no mechanism within 33850 by which anyone can obtain "restoration of full ownership interest" in a firearm in the first place. 33850 is nothing more than an eligibility check. What appears to have happened here is the plaintiff filled out and presented a "Report of Operation of Law or Intra-Familial Firearm Transaction" and a "Law Enforcement Gun Release Application" to DoJ, the firearms got entered into AFS in the plaintiff's name when the former was processed, which facilitated the processing of the LEGR application (i.e., the firearms were recorded in the system in the applicant's name). So for the DoJ's limited purposes all the paperwork was in order and the LEGR application was processed and eligibility check completed. I doubt the forfeiture order was before the DoJ and even if it were, DoJ would not have had discretion to do anything other than process the application and issue the eligibility determination. At no point in the process here was the forfeiture order affected, superseded, amended, nullified, whatever, as it was not within the DoJ's power or authority to do that.
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  #49  
Old 09-06-2015, 3:25 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
At the risk of belaboring the point I've been making, there is no mechanism within 33850 by which anyone can obtain "restoration of full ownership interest" in a firearm in the first place. 33850 is nothing more than an eligibility check. What appears to have happened here is the plaintiff filled out and presented a "Report of Operation of Law or Intra-Familial Firearm Transaction" and a "Law Enforcement Gun Release Application" to DoJ, the firearms got entered into AFS in the plaintiff's name when the former was processed, which facilitated the processing of the LEGR application (i.e., the firearms were recorded in the system in the applicant's name). So for the DoJ's limited purposes all the paperwork was in order and the LEGR application was processed and eligibility check completed. I doubt the forfeiture order was before the DoJ and even if it were, DoJ would not have had discretion to do anything other than process the application and issue the eligibility determination. At no point in the process here was the forfeiture order affected, superseded, amended, nullified, whatever, as it was not within the DoJ's power or authority to do that.
Sorry if that sentence was misleading. I was just trying to quantify the "ownership interest not what it was before the confiscation" issue through the course of events. The DoJ has no authority with respect to the forfeiture order. Realistically, Lori's (and presumably Edward's) ownership stake was reduced to the options offered by the PD after the trial court decision and affirmed by the appellate court: sell or store off premises.

I'm still uncertain that the original forfeiture order pertained to only the firearms that were confiscated or to any firearms whatsoever. If the latter, would she have a 2A claim based directly on Heller: the right to have a handgun in the home for purposes of self defense? Sale or off premises storage seems to violate this. The appellate court says that she can have firearms in the home for self defense.

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We therefore determine that Lori has failed to show that the trial court’s September 30, 2013 order violates the Second Amendment by precluding her from keeping firearms for home protection.
Could she sell the confiscated firearms and use the proceeds to purchase the same models and keep them at home? Would the PD hold still for this?
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  #50  
Old 09-06-2015, 3:40 PM
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The order pertains only to the confiscated firearms. She could cooperate with the PD to sell them, and then purchase the same models and keep them at home, subject to whatever laws may be implicated when you live in the same home with a prohibited person.
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  #51  
Old 09-06-2015, 4:05 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The order pertains only to the confiscated firearms. She could cooperate with the PD to sell them, and then purchase the same models and keep them at home, subject to whatever laws may be implicated when you live in the same home with a prohibited person.
That's what I was afraid you'd say! Well, she already changed the locks on the safe. If I were she that's what I would do, in addition doubling down by applying for a CCW using "I share a home with a person adjudicated to be a danger to himself or others" as my good cause.
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  #52  
Old 09-07-2015, 9:17 PM
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Default Lori upon showing elibility under Penal Code §33850 gets them back under §18265

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If it was so, then why does she not have them already?
She hasn't asked for them to be returned via the administrative procedure set forth in Penal Code §33850. The Court of Appeals in Rodriguez v. San Diego determined that:
Finally, we consider whether the provisions of Penal Code section 33850 et seq. impact Lori’s Second Amendment claim. Lori has acknowledged that Penal Code section 33850 provides a procedure for the return of firearms in police custody to persons who claim ownership of the firearms.

******
In their supplemental briefing, the parties agree that the record does not indicate that Lori has sought return of the confiscated firearms under the procedure provided by Penal Code section 33850 et seq.

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Originally Posted by FABIO GETS GOOSED!!! View Post
At the risk of belaboring the point I've been making, there is no mechanism within 33850 by which anyone can obtain "restoration of full ownership interest" in a firearm in the first place. 33850 is nothing more than an eligibility check.
"Ownership interest" is not at issue. It is undisputed that Lori has a community property interest in the weapons, i.e. ownership, "Since the parties stipulated that Lori has standing in this matter, we will consider whether the trial court’s order granting City’s petition is supported by substantial evidence..." Thus, ownership is not at issue. Next, we turn to the procedure under Penal Code §33850.

The Court determined and explicitly instructed the parties as to the mechanism:
Under Penal Code section 33850, a “person who claims title to any firearm” in law enforcement custody may seek the return of that firearm. (Pen. Code, § 33850, subd. (a).) 8 The person seeking return of any firearms must file an application for a Penal Code section 33865 notification that specifies the make and model of the firearms that are being sought and provides detailed information about any handguns. (Pen. Code, §§ 33850, 33865, subd. (c)(3).) The firearms cannot be returned by a court or law enforcement agency unless the person seeking them obtains a Penal Code section 33865 notification that the person is eligible to possess a firearm...
Thus, this ruling by the Court of Appeals is clear- the procedure is to make the request. The enabling statute, Penal Code §18265, for the procedure is strict requiring return of a firearm within a fixed period of time, incorporating Penal Code §33850:
18265. (a) No firearm or other deadly weapon taken into custody pursuant to this division shall be held less than 48 hours.
(b) Except as provided in Section 18400, 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 five business days after the owner or person who was in lawful possession demonstrates compliance with Chapter 2 (commencing with Section 33850) of Division 11 of Title 4.
(c) In any civil action or proceeding for the return of any firearm...seized by any state or local law enforcement agency and not returned within five business days after the initial seizure...the court the court shall allow reasonable attorney's fees to the prevailing party.
(emphasis added)
Since the statute is drafted in the alternative, "civil action or proceeding," a person may immediately "petition," i.e. may file a Petition for Writ of Mandate under Civ. Code §1985, if the government does not return the firearms immediately, upon a showing of fitness to possess the firearms under Penal Code §33850. As stated above in http://www.calguns.net/calgunforum/s...2&postcount=36 http://www.calguns.net/calgunforum/s...7&postcount=41

The Court of Appeals concluded that, based on the DOJ's determination that she may possess a firearm under Penal Code §33850, she should obtain the return of the firearms:
The parties’ supplemental briefing confirms that Lori has not sought return of the confiscated firearms under the procedure provided by Penal Code section 33850 et seq., although the firearms remain in the custody of law enforcement and Lori has obtained notification from the California Department of Justice Bureau of Firearms that she is eligible to both possess and purchase firearms. Lori has not provided any authority for the proposition that trial court proceedings on a section 8102 petition preclude a person who claims title to the confiscated firearms from seeking their return under Penal Code section 33850 et seq.
The statement Lori has no title or ownership to the firearms is incorrect and is a misunderstanding of community property law. As already stated in this post, Lori is a wife and has undisputed ownership of those weapons, has a determination from the DOJ regarding her fitness to possess firearms, and for all practical purposes will obtain return of those weapons under PC §§18265 and 33850. Lori will get her attorney's fees paid by the City of San Diego, if a) the City fails to return them, and b) she has to file another suit to get them back under PC §§18265 and 33850.

Last edited by sarabellum; 09-07-2015 at 9:27 PM..
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  #53  
Old 09-08-2015, 8:19 AM
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Head's up for sarabellum: you have the wrong "enabling statute" (in addition to not being up to speed on the facts, or on what in my posts are statements as opposed to questions). Under the actual "enabling statute," it has already been adjudicated conclusively that the plaintiff does not have the right to return of the firearms notwithstanding her community property interest. 33850 is procedural; with respect to the 8102 order, the plaintiff has no more coming out of the 33850 process than she did going into it. If you think otherwise, please feel free to locate where exactly in the 33850 process that the 8102 order was superseded, modified, trumped, etc.
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Old 09-08-2015, 8:27 AM
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Originally Posted by RipVanWinkle View Post
If I were she that's what I would do....
She could probably cooperate in the sale of the firearms, then re-purchase the same firearms from the buyer...but that would be too easy. lol.
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Old 09-08-2015, 8:46 AM
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She could probably cooperate in the sale of the firearms, then re-purchase the same firearms from the buyer...but that would be too easy. lol.
I thought of that, but maybe it comes too close to being a straw purchase!
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Old 09-08-2015, 8:58 AM
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I thought of that, but maybe it comes too close to being a straw purchase!
Under the code the sale would be to a licensed dealer so I don't think you'd have any straw purchase issues.
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Old 09-08-2015, 9:16 AM
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Originally Posted by sarabellum View Post
The statement Lori has no title or ownership to the firearms is incorrect and is a misunderstanding of community property law. As already stated in this post, Lori is a wife and has undisputed ownership of those weapons
I just have a question about this aspect. In the meantime Lori has done an "Intra-Familial Firearm Transaction" in which Edward transferred ownership of the firearms to Lori, presumably as a gift. Does this mean that Edward has relinquished any community property claims that he had, so that Lori is now the sole owner of the firearms? The DoJ has her listed as the owner in the AFS. Does any of this matter going forward?
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Old 09-08-2015, 10:25 AM
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Does this mean that Edward has relinquished any community property claims that he had, so that Lori is now the sole owner of the firearms?
No. Here's how the complaint describes it:

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Originally Posted by complaint
15. Prior to her marriage LORI acquired at least one firearm that was and is her separate property.

16. During the marriage, LORI and Edward acquired several firearms that were and are community property.

***

37. On June 1, 2015, LORI RODRIGUEZ received confirmation of the transfer of community property firearms to her name alone and release documents for the firearms in question from the California Department of Justice.
The complaint does not provide any details about the transfer from husband to wife, nor does it specify that the wife filed a "Report of Operation of Law or Intra-Familial Firearm Transaction" with DoJ, only that the DoJ confimed the transfer. But, that document is the only thing that makes sense to me given the facts presented: the wife submits the form, an eligibility check is conducted, and DOJ sends a confirmation letter. ("Once approved, you will receive a confirmation notice of your transaction.") The practical effect is that the firearms are now in the system in the wife's name only. Adding up the allegations in the complaint the firearms are and continue to be community property (other than the single firearm that is the wife's separate property), and whatever transfer occurred was for the limited purpose of putting the firearms in the wife's name only in AFS.
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Old 09-08-2015, 11:11 AM
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Default Lori gets her guns

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Originally Posted by FABIO GETS GOOSED!!! View Post
Head's up for sarabellum: you have the wrong "enabling statute" (in addition to not being up to speed on the facts, or on what in my posts are statements as opposed to questions). Under the actual "enabling statute," it has already been adjudicated conclusively that the plaintiff does not have the right to return of the firearms notwithstanding her community property interest. 33850 is procedural; with respect to the 8102 order, the plaintiff has no more coming out of the 33850 process than she did going into it. If you think otherwise, please feel free to locate where exactly in the 33850 process that the 8102 order was superseded, modified, trumped, etc.
The Court of Appeals in Rodriguez v. City of San Diego does not conclude that "it has already been adjudicated conclusively that the plaintiff does not have the right to return of the firearms notwithstanding her community property interest." You've failed to read the case, as the Court of Appeals explained that W&I Code §8102 proceeding and determination can only apply to Edward, "We begin by noting that section 8102 expressly provides the procedure for the return of firearms confiscated by a law enforcement agency only to the person who was detained under section 5150. Section 8102 is silent as to the return of the confiscated firearms to any other person." To the extent the trial court determined otherwise regarding Lori, it is an error that has been reversed by the Court of Appeals. Your trump issue is dead, as no order under W & I Code §8102 may reach a non- detained person's right to his/her property, i.e. Lori.

I cited the language in the enabling statute, Penal Code Penal Code §18265, verbatim, commanding the return of a firearm to the owner upon the DOJ's determination of a right to possess firearms under Penal Code §33850. You've cited no authority. At this point, Corwin and I are reading the opinion for you. Read the opinion carefully. The Court of Appeals in Rodriguez v. San Diego, twice explained and ruled that:
Lori has acknowledged that Penal Code section 33850 provides a procedure for the return of firearms in police custody to persons who claim ownership of the firearms.
***************
Lori has not sought return of the confiscated firearms under the procedure provided by Penal Code section 33850 et seq., although the firearms remain in the custody of law enforcement and Lori has obtained notification from the California Department of Justice Bureau of Firearms that she is eligible to both possess and purchase firearms. Lori has not provided any authority for the proposition that trial court proceedings on a section 8102 petition preclude a person who claims title to the confiscated firearms from seeking their return under Penal Code section 33850 et seq. Moreover, we believe that the record on appeal shows that the procedure provided by section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori.
Thus, the Court of Appeals determined that a forfeiture order under W&I Code §8102 does not prevent Lori from obtaining return of the firearms under PC §§18265, 33850. This is the form and step 1 of the procedure: https://oag.ca.gov/sites/all/files/a...orms/legr.pdf? Step 1 is finished, since the DOJ determined that Lori may lawfully possess the firearms. Step 2 is to submit her DOJ determination to the City of San Diego. Under Penal Code §18265, the City of San Diego has no choice but to return the firearms to her, "(b)...if a firearm or other deadly weapon is not retained for use as evidence...the firearm...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 five business days after the owner or person who was in lawful possession demonstrates compliance with Chapter 2 (commencing with Section 33850) of Division 11 of Title 4."

The decision by the Court of Appeals in Rodriguez v. San Diego is the law of the case. Morohoshi v. Pacific Home, 34 Cal. 4th 482, 491 (2004)(“The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.”). There is no argument or any other action that the City of San Diego can raise/take other than return the weapons to her, once the DOJ admitted that she was/is eligible to possess firearms under Penal Code §33850. The sole remedy available to the City of San Diego to prevent the return of the firearms to Lori Rodriguez was to file within 10 days a Petition to the California Supreme Court challenging the above determination of right to return of firearms under PC §33850 (filed on 4/2/15). http://www.courts.ca.gov/cms/rules/i...nkid=rule8_500 The City of San Diego did not do so.

At this point, you are arguing just to argue. Cite authority for your contentions. The elements of judicial decision are: Fact(s), Issue(s), Rule, Analysis, Holding, and Conclusion (FIRAHC).

Last edited by sarabellum; 09-08-2015 at 11:36 AM.. Reason: Typo
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Old 09-08-2015, 11:58 AM
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Originally Posted by sarabellum View Post
I cited the language in the statute, Penal Code Penal Code §18265, verbatim.
That's great, 18265 has nothing to do with this case lol.

Quote:
Thus, the Court of Appeals determined that a forfeiture order under Penal Code §8102 (applicable only to the detained person) does not prevent her from obtaining return of the firearms under PC §§18265, 33850.
Maybe you ought to follow your own advice about reading the opinion carefully: it says 8102 does not preclude her from from "seeking their return" by making a 33850 application. That's not the same as saying that if the wife sought return of the firearms using that procedure, the PD must give them back. The court was simply deciding that she could not make a 2A claim because she had not exhausted administrative remedies and that's as far as the opinion goes. If she had exhausted that procedure prior to the state court proceedings, there would have been only 3 reasons why she did not have a 2A claim instead of 4. Do you think every time a court says a litigant hasn't exhausted an administrative remedy that the court is saying that the litigant has a substantive entitlement to relief? Don't be silly.

Remember that it was the wife who was arguing that 8102 precluded her from seeking return of the confiscated firearms under 33850. She was trying to save her 2A claim by explaining why she did not have to exhaust administrative remedies. This particular ruling rejects that argument is actually and plainly adverse to the wife. The court was shutting her down her 2A claim as thoroughly as it possibly could; it was not giving her a magic wand to make the 8102 order go away lol.

Quote:
There is no argument or any other action that the City of San Diego [sic] can raise/take other than return the weapons to her, once the DOJ admitted that she was/is eligible to possess firearms under Penal Code §33850.
Well, actually the City of San Diego [sic] has a pretty good argument, which is that it has a now-unappealable order authorizing its retention / custody of the firearms and (presumably, I would bet 5$ it says this) the destruction of the firearms if the wife doesn't feel like cooperating with the City's sale or storage elsewhere proposals.
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Old 09-08-2015, 12:36 PM
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Time to circle back to my original post in the thread:

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
The court of appeal didn't say how the pd should deal with a 33850 application, only that the plaintiff hadn't made one, which was one reason why that court ruled there was no 2A violation. It was basically chickensh*t (like the pd would actually return the firearms if the application was submitted) but the plaintiffs are now in a different court trying to parlay that part of the appellate opinion into something. I wouldn't be surprised if the federal claims get tossed and the case goes back to state court to reconcile/interpret 33850 and 8102.
The PD may end up regretting that it argued that the wife hadn't exhausted administrative remedies, as it opened the door for a classic Calguns "gotcha," not that those are always (or ever) successful. The most that can be said at this point is that 33850 vs. 8102 is an open question. The constitutional claims are disposable and I don't see a federal judge having much interest in interpreting state law.
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Old 09-08-2015, 4:27 PM
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Originally Posted by sarabellum View Post
This is the form and step 1 of the procedure: https://oag.ca.gov/sites/all/files/a...orms/legr.pdf? Step 1 is finished, since the DOJ determined that Lori may lawfully possess the firearms. Step 2 is to submit her DOJ determination to the City of San Diego. Under Penal Code §18265, the City of San Diego has no choice but to return the firearms to her
I think Fabio is correct that the 33850 process does not require either the court or the PD to automatically do anything on completion of the LEGR and submission to the PD. From the LEGR form, my emphasis:

Quote:
This form is to be used only by the owner of a firearm which is in the custody or control of a law enforcement agency or court to redeem the firearm. It only establishes the applicant's eligibility to lawfully possess firearms at the time the application is processed. It cannot be used to transfer a firearm, or to prove ownership of a firearm
and:

Quote:
It is the responsibility of the court or law enforcement agency with custody or control of the firearm to verify that the applicant is the lawful owner or possessor of the firearm.
It specifically does not authorize transfer or possession of firearms and defaults to the PD and the court for that authority.
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Old 09-10-2015, 1:50 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
That's great, 18265 has nothing to do with this case lol.
Quote:
Originally Posted by RipVanWinkle View Post
...the 33850 process does not require either the court or the PD to automatically do anything on completion of the LEGR and submission to the PD.
Penal Code §18265 provides "(b)...if a firearm or other deadly weapon is not retained for use as evidence...the firearm...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 five business days after the owner or person who was in lawful possession demonstrates compliance with Chapter 2 (commencing with Section 33850) of Division 11 of Title 4." The Court in Rodriguez v. City of San Jose made the following factual determination and legal rule:
Lori has obtained notification from the California Department of Justice Bureau of Firearms that she is eligible to both possess and purchase firearms. Lori has not provided any authority for the proposition that trial court proceedings on a section 8102 petition preclude a person who claims title to the confiscated firearms from seeking their return under Penal Code section 33850 et seq. Moreover, we believe that the record on appeal shows that the procedure provided by section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori.
This case is done. Lori will get her guns back.

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Old 09-10-2015, 3:08 PM
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Let me repeat the hint I gave you: Penal Code 18265 has nothing to do this with case. Maybe you can at least try to figure out why?
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Old 09-10-2015, 3:18 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post


Let me repeat the hint I gave you: Penal Code 18265 has nothing to do this with case. Maybe you can at least try to figure out why?
"(b)...if a firearm or other deadly weapon is not retained for use as evidence...the firearm...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 five business days after the owner or person who was in lawful possession demonstrates compliance with Chapter 2 (commencing with Section 33850) of Division 11 of Title 4." Penal Code §18265.
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Old 09-10-2015, 3:26 PM
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Let me repeat the hint I gave you: Penal Code 18265 has nothing to do this with case. Maybe you can at least try to figure out why?
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Old 09-10-2015, 5:03 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Let me repeat the hint I gave you: Penal Code 18265 has nothing to do this with case. Maybe you can at least try to figure out why?
I'll take a guess at it. Edward wasn't detained under:

Quote:
18250. (a) If any of the following persons is at the scene of a
domestic violence incident involving a threat to human life or a
physical assault, is serving a protective order as defined in Section
6218 of the Family Code, or is serving a gun violence restraining
order issued pursuant to Division 3.2 (commencing with Section
18100), that person shall take temporary custody of any firearm or
other deadly weapon in plain sight or discovered pursuant to a
consensual or other lawful search as necessary for the protection of
the peace officer or other persons present:
So 18265 doesn't apply. AFAIK Edward was detained under 5150. There were no DV charges, protective order or restraining orders against him.
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Old 09-10-2015, 5:29 PM
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As a practical matter is there any reason this will survive the E&E conference?
Every time I get a case in Southern District that could concievably settle they send it to a early neutral evalutation conference. It feels like you are at Rikers in there. You are put in this small room like the ones they use for interrogation. The judge comes in every once in awhile and asks you are you sure you don't want to settle.

Then she goes to the other room and does the same routine to the other side.
I got told one time that we can be here until midnight if that's what it takes to get you guys to settle. I was like alright Marine Corps didn't put me through SEREs. No need to get the water board out.

Seriously I just don't see anything here that could not be settled. A small check and the guns back seems like it would do the trick. Is there any reason this case would make it to trial?
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Old 09-10-2015, 5:32 PM
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Congratulations RipVanWinkle you get the "I am a careful reader" prize. 18265 does not have a gun forfeiture provision like 8102 where the PD can obtain an order authorizing it to keep the gun. Which is a pretty good reason why 8102 has no provision similar to 18265 mandating return of the confiscated firearm if the owner complies with 33850.

Last edited by FABIO GETS GOOSED!!!; 09-10-2015 at 6:26 PM..
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Old 09-19-2015, 2:18 PM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
...
Well, actually the City of San Diego [sic] has a pretty good argument, which is that it has a now-unappealable order authorizing its retention / custody of the firearms and (presumably, I would bet 5$ it says this) the destruction of the firearms if the wife doesn't feel like cooperating with the City's sale or storage elsewhere proposals.
If the firearms are destroyed, do the plaintiffs get to file an amended complaint alleging irreparable harm?

Late edit: Is there any case law in this circuit explaining that the owner of the firearms does not have to have them stored elsewhere upon such a proposal? Because of the passage of AB-950, would the courts say that CA P.C. § § 18120 and 29830 is a tool for both parties to prevent destruction?

Erik.

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Old 09-20-2015, 12:49 AM
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Originally Posted by wolfwood View Post
As a practical matter is there any reason this will survive the E&E conference?
Every time I get a case in Southern District that could concievably settle they send it to a early neutral evalutation conference. It feels like you are at Rikers in there. You are put in this small room like the ones they use for interrogation. The judge comes in every once in awhile and asks you are you sure you don't want to settle.

Then she goes to the other room and does the same routine to the other side.
I got told one time that we can be here until midnight if that's what it takes to get you guys to settle. I was like alright Marine Corps didn't put me through SEREs. No need to get the water board out.

Seriously I just don't see anything here that could not be settled. A small check and the guns back seems like it would do the trick. Is there any reason this case would make it to trial?
Long ago a judge that nonsense on my mentor at a MSC. Attorneys were stacked up all over the place. My guy ordered pizza delivered to the court and let the judge know that he was prepared to stay as long as he had to be there, but there would be no settlement. It ticked old judge "Woody" off.

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Old 10-04-2015, 10:23 PM
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Originally Posted by Window_Seat View Post
If the firearms are destroyed, do the plaintiffs get to file an amended complaint alleging irreparable harm?

Late edit: Is there any case law in this circuit explaining that the owner of the firearms does not have to have them stored elsewhere upon such a proposal? Because of the passage of AB-950, would the courts say that CA P.C. § § 18120 and 29830 is a tool for both parties to prevent destruction?

Erik.
Generally, harm is not irreparable if their destruction can adequately be compensated by monetary damages.
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Old 10-10-2017, 1:05 PM
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Total loss on October 3rd.

Probably the flimsiest premise ever for any Calguns lawsuit, claiming that the state appellate court ordered the City to give the guns back:

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
When the state appellate court said that 33850 "remains available," it was deciding whether the plaintiff had exhausted her administrative remedies before making her 2A claim. She hadn't made a 33850 application, so according to the court she hadn't exhausted her administrative remedies, which was one of several reasons why the court ruled she had no 2A claim. This shouldn't be misinterpreted as the court saying the PD would have to give the guns back if the plaintiff made a 33850 application, although that is how the plaintiffs are trying to parlay this into something in federal court lol.
and

Quote:
Originally Posted by District Court
Plaintiffs clarify that they allege a procedural due process violation based on the City’s refusal to return the firearms following the Court of Appeals’ decision. Defendants cite the Court of Appeals’ statement that “the procedure provided by section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori.”

Defendants appear to argue that this language requires the City to return the firearms to Lori. But Defendants misread the court’s decision: the court did not order the City to return the firearms to Lori; rather, it addressed Lori’s two challenges to the City’s petition—on the grounds (1) insufficiency of evidence and (2) violation of her Second Amendment rights—and noted that Lori had not yet chosen to pursue remedies under Penal Code § 33800. No procedural due process violation arises from the City’s decision not to return the guns to Lori, since the Court of Appeals did not require it to do so.
Another tid bit:

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
She could probably cooperate in the sale of the firearms, then re-purchase the same firearms from the buyer...but that would be too easy. lol.
and

Quote:
Originally Posted by District court
Lori could sell the firearms at issue to a licensed dealer under Cal. Penal Code § 33850(b) (“A person who owns a firearm that is in the custody of a court or law enforcement agency and who does not wish to obtain possession of the firearm, and the firearm is an otherwise legal firearm, and the person otherwise has right to title of the firearm, shall be entitled to sell or transfer title of the firearm to a licensed dealer.”) (emphasis added). Apparently, Lori could then purchase those guns from the dealer.
That would have been a lot easier lol.
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Old 10-10-2017, 4:15 PM
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Originally Posted by District court
Lori could sell the firearms at issue to a licensed dealer under Cal. Penal Code § 33850(b) (“A person who owns a firearm that is in the custody of a court or law enforcement agency and who does not wish to obtain possession of the firearm, and the firearm is an otherwise legal firearm, and the person otherwise has right to title of the firearm, shall be entitled to sell or transfer title of the firearm to a licensed dealer.”) (emphasis added). Apparently, Lori could then purchase those guns from the dealer.


Actually this is not quite possible if the inventory were handguns. She would be limited to one handgun every 30 days if the guns were part of dealers own inventory. Additionally, the handgun roster would apply which means she could not have purchased back any pistols not rostered or pre 2017 A-salt rifles.


If the firearms were on consignment, she could have done that but it's a person to person transfer which is what my store does for newly prohibited persons quite often. Still no pre 2017 A-salt rifles In this case, she would be buying the guns from her husband? Also paying a consignment fee to the store? Not to mention the store needs to hold the firearms for 30 days prior to selling them to her for her husband?

Last edited by taperxz; 10-10-2017 at 4:54 PM..
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Old 10-10-2017, 5:47 PM
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Originally Posted by pacrat View Post
Go Get Em, AGAIN.

How many of these illegal seizure [theft] incidents have to happen. Before immunity is removed, and those responsible have to face criminal charges?

When cops become nothing more than thieves. At the behest of the political agendas of the petty politicians. It is time for some serious legal repurcussions.

Every time this crap happens. It costs the taxpayers a lot of money, and the thieves that have law degrees and badges, get to keep their cushy jobs and fat pensions.

Time to make the thieves and law breakers pay, NOT the taxpayers.

JM2c
^^This. There are no negative consequences for these "public servants" so there are no incentives for them to change their behavior. The only way that this will change is if there are large punitive damages awarded and the municipalities crack down on the miscreants.
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Old 10-11-2017, 10:04 AM
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The city literally did everything by the book in accordance with all applicable laws and their actions were validated by the state trial and appellate courts and now federal court lol. "it's thievery!!!"
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Old 10-11-2017, 11:32 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The city literally did everything by the book in accordance with all applicable laws and their actions were validated by the state trial and appellate courts and now federal court lol. "it's thievery!!!"
Their premise that she could buy back the guns is not accurate though. (depending on what the firearms were of course)
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Old 10-11-2017, 12:04 PM
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Originally Posted by taperxz View Post
Their premise that she could buy back the guns is not accurate though. (depending on what the firearms were of course)
I can't recall who it was who made that assertion, the City or the plaintiff. I will try to look for it.
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Old 10-11-2017, 12:28 PM
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Quote:
Originally Posted by taperxz View Post
Their premise that she could buy back the guns is not accurate though. (depending on what the firearms were of course)
Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
I can't recall who it was who made that assertion, the City or the plaintiff. I will try to look for it.
It was the plaintiff, not the City. In state court the plaintiff was trying to get the firearms released and was arguing that it made no sense not to release the firearms because if the guns were sold through a gun dealer, then the plaintiff could just buy them back. From the state court hearing transcript:

Quote:
MR. KILMER: Okay. So what's to prevent — I mean,
Your Honor, how much sense does it make for you to order the
guns sold and they go on consignment sale in the gun store and
then she turns around and goes back and buys them?
THE COURT: Yeah. And I don't know the answer to that
question. ,
MR. KILMER: The answer is that you can't prevent
that.
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Old 10-11-2017, 1:26 PM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
It was the plaintiff, not the City. In state court the plaintiff was trying to get the firearms released and was arguing that it made no sense not to release the firearms because if the guns were sold through a gun dealer, then the plaintiff could just buy them back. From the state court hearing transcript:
Well, that was a mistake. Especially if there were any non rostered pistols involved since she could not have purchases those back from an FFL.

This idea should have been brought up in court in defense of the plaintiff.
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