What is your interpretation of 12028.5

[Calm Down]

I had a call recently involving a 243(e)(1)/ 245(a)(1). We took the suspect into custody and took his 13 guns pursuant to 12028.5. The girlfriend owned a pistol and her son, not the biological son of the suspect, had a shotgun and pistol in the residence. I was not the primary deputy for the call but I assisted. We argued amongst ourselves about taking the firearms belonging to the victim and son. Myself and another deputy interpreted 12028.5 as being able to leave the victim and son with the firearms but take the suspects guns. Other deputies disagreed citing that 12028.5 states we SHALL take firearms. My argument was that though an EPO was granted, it’s just a piece of paper and if the suspect wanted to come home after he bailed, she should have some means of defending herself. 12028.5 also states the confiscation of the firearms is for the safety of the peace officer and victim. I felt safe, so should she. The end result was that all firearms were taken and the victim wants hers back ASAP. I spoke with a Deputy DA and she also stated the county might by liable if a firearm was left at the residence but stated the victim could borrow a firearm from a friend if she felt she needed it. What are your thoughts? I imagine thoughts on this forum may be scewed in my favor, but I want to hear them anyway.

Text of law:

Penal Code
12028.5. (a) As used in this section, the following definitions shall apply:

(1) ”Abuse” means any of the following:

(A) Intentionally or recklessly to cause or attempt to cause bodily injury.

(B) Sexual assault.

(C) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

(D) To molest, attack, strike, stalk, destroy personal property, or violate the terms of a domestic violence protective order issued pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code.

(2) ”Domestic violence” means abuse perpetrated against any of the following persons:

(A) A spouse or former spouse.

(B) A cohabitant or former cohabitant, as defined in Section 6209 of the Family Code.

(C) A person with whom the respondent is having or has had a dating or engagement relationship.

(D) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code).

(E) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.

(F) Any other person related by consanguinity or affinity within the second degree.

(3) ”Deadly weapon” means any weapon, the possession or concealed carrying of which is prohibited by Section 12020.

(b) A sheriff, undersheriff, deputy sheriff, marshal, deputy marshal, or police officer of a city, as defined in subdivision (a) of Section 830.1, a peace officer of the Department of the California Highway Patrol, as defined in subdivision (a) of Section 830.2, a member of the University of California Police Department, as defined in subdivision (b) of Section 830.2, an officer listed in Section 830.6 while acting in the course and scope of his or her employment as a peace officer, a member of a California State University Police Department, as defined in subdivision (c) of Section 830.2, a peace officer of the Department of Parks and Recreation, as defined in subdivision (f) of Section 830.2, a peace officer, as defined in subdivision (d) of Section 830.31, a peace officer, as defined in subdivisions (a) and (b) of Section 830.32, and a peace officer, as defined in Section 830.5, who is 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 or other lawful search as necessary for the protection of the peace officer or other persons present. Upon taking custody of a firearm or other deadly weapon, the officer shall give the owner or person who possessed the firearm a receipt. The receipt shall describe the firearm or other deadly weapon and list any identification or serial number on the firearm. The receipt shall indicate where the firearm or other deadly weapon can be recovered, the time limit for recovery as required by this section, and the date after which the owner or possessor can recover the firearm or other deadly weapon. No firearm or other deadly weapon shall be held less than 48 hours. Except as provided in subdivision (f), 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 Section 12021.3. In any civil action or proceeding for the return of firearms or ammunition or other deadly weapon seized by any state or local law enforcement agency and not returned within five business days following the initial seizure, except as provided in subdivision (d), the court shall allow reasonable attorney’s fees to the prevailing party.

(c) Any peace officer, as defined in subdivisions (a) and (b) of Section 830.32, who takes custody of a firearm or deadly weapon pursuant to this section shall deliver the firearm within 24 hours to the city police department or county sheriff’s office in the jurisdiction where the college or school is located.

(d) Any firearm or other deadly weapon that has been taken into custody that has been stolen shall be restored to the lawful owner, as soon as its use for evidence has been served, upon his or her identification of the firearm or other deadly weapon and proof of ownership, and after the law enforcement agency has complied with Section 12021.3.



(k) The law enforcement agency, or the individual law enforcement officer, shall not be liable for any act in the good faith exercise of this section.

[CavTrooper]

Its a shame that the officers are relived of personal responsibility in these situations.

Everyone should be held accountable for thier actions.

[p7m8jg]

It gives the on-scene law enforcement officers discretion to take "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. " It's really up to the guys or gals on scene to decide what "as necessary" means.

Your discussion amongst yourselves was absolutely dead-on. You had differing opinions and you talked them out. A decision was made. You did your duty.

In my day, if there was any doubt, we took them all and let the DA sort it out later when the mother and son demand their personal firearms back. But having a rigid policy of taking everything regardless of the situation is not really using your discretion.

You'll never have all the information necessary to make the absolutely perfect call. But if you take all the guns for now, there's no way anyone is going to get shot if there's another confrontation. They called the first time, they'll call again if he gets out and comes back.

Either action taken was still doing the right thing. Good job.

[1911su16b870]

OP nailed it with (b) above: "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."

Ownership didn't matter. LEOs found them and are obligated, due to the Domestic, remove them. IMO the other option did not exist.

[proudamerican831]

deleted

[Musclemom]

If I were the victim in this case, I sure wouldn't be calling the police for help the next time. There is no help in disarming her. "As necessary for the protection of the peace officer or other persons present," so I can understand securing ALL firearms until the situation is under control. If in fact she was not the aggressor in any way, she (and her firearms) pose no threat to the officers and her personally owned firearms should be returned to her before officers leave the scene. I'd recommend for her to get an attorney and sue, as it's what I'd do if put in that position. Being the victim of a crime does not strip you of your rights.

[Triad]

Put in a similar situation myself, took all guns including victims. Guns were released to victim at a later date. I was/am of the mind, based on my experience, that he will probably bail, come back...she will take him back in and the cycle will continue. Call it proactive prevention, or whatever else you want but I'd rather explain that in court than why I didn't take them.

[fullrearview]

Originally Posted by CavTrooper

Its a shame that the officers are relived of personal responsibility in these situations.

Everyone should be held accountable for thier actions.

held accountable for laws that don't make sense????

damned if you do, damned if you don't!!

[tyrist]

You take all the guns out of the residence no matter who they belong to...as well as any billy clubs, knives, and other weapons.

[Musclemom]

Honestly, this thread scares me. This is just one of several reasons why I gave up law enforcement when I moved to this state. It's not just the gun laws that are different than most "other" places.

I'll run along now, as I'm not a LEO. Just wanted to give my two cents as someone who's been in the field. The differences in CA LEO and those from other state never ceases to amaze me. I fully believe most of it results from the laws and politics of this state, but it's still sad.

[El Gato]

This whole section of law needs to be litigated in light of heller...
the sad thing is the victims can't get their guns back by the Sheriff just giving them back... they have to go through with the whole "law enforcement gun release" process which takes, often, many months...

http://ag.ca.gov/firearms/forms/pdf/legr.pdf

which will cost money to the AG and the Sheriff is entitled to charge a fee... all to exercise the victims 2nd ammendment rights....

Personally, I would be cautious on this one... having had to do an arrest similarly, I left the guns with the female and took the male... having made the determination that the males shotgun was necessary for me to take and her 44 mag handgun was not necessary for me to seize... and how long is temporary... I seize them, unload them for my protection, then leave them for the lawful owners.... In my mind, there is discretion available to the on-scene officer... what is necessary and how long is temporary... the law says 48 hours.... and does involve me taking them from the scene and is taking them from the scene a violation of anyones constitutional rights?

Tough call...

[CaliTheKid]

Call for the watch sergeant and let them make the call. CYA.

[Ron-Solo]

Originally Posted by CavTrooper

Its a shame that the officers are relived of personal responsibility in these situations.

Everyone should be held accountable for thier actions.

It's obvious you're not working the field. How often do you make life or death decisions? I make them every day, often several times a day, just like THOUSANDS of other cops. We do a good job, so get off our asses! Nothing said we aren't held accountable for our actions if we don't follow the law. It says we are covered if we are acting in GOOD FAITH.

[sac550]

You can't search for guns unless you have consent. You can only take guns in plain view. If you had a suspect tell you has 10 guns in his bedroom closet and refuses to give you consent you can't take them. You have to leave them or face a 4th amend violation. And there is no authority in 1524 to author a search warrant.

[Tillers_Rule]

Originally Posted by Calm Down

I spoke with a Deputy DA and she also stated the county might by liable if a firearm was left at the residence but stated the victim could borrow a firearm from a friend if she felt she needed it.

WOW, that's some complete BS. You mentioned the county could be liable if you left guns at the residence. Is the county also liable if the guy comes back and kills the two occupants because they couldn't defend themselves?

[BigDogatPlay]

Unfortunately I have to fall on the side of "'I'd take them all", that I see or could reasonably find in the course of making the scene safe. The liability issue is what command staff and lawyers will focus in on first and they will always err on the side of reducing liability to zero regardless of what may or may not happen down the road.

Yes, it blows that the victim would be left unarmed, and an EPO is little comfort knowing that the abuser is going to bail or OR eventually. But there is precious little discretion in the law. And local DA policy, as well as agency policy, can and will remove whatever shreds of discretion are left.

To the OPs note from the deputy DA that the victim could "borrow" a gun from a friend... that deputy DA needs to spend a little time getting more in touch with California firearms law, what constitutes a transfer and the timelines involved.

Originally Posted by sac550

You can't search for guns unless you have consent. You can only take guns in plain view. If you had a suspect tell you has 10 guns in his bedroom closet and refuses to give you consent you can't take them. You have to leave them or face a 4th amend violation. And there is no authority in 1524 to author a search warrant.

If it's a common area he doesn't have to give consent. A bedroom closet that they both share, she can give consent and there is nothing he can do about it. His guns go with me.

[El Gato]

consent searches are problematic from the start...the searchee can claim coercion really really easily....

we lost a gun/dope case recently on a consent search... we could have easily frozen the scene and done a warrant....someone was impatient... at the hearing the defendant's counsel accused the officers of threatening to go to the garage, get the plasma cutter and open the safe if the defendant didn't... the officer in question wouldn't know a plasma cutter from a cheese cutter...didn't matter, DA didn't object to the question... all of the stolen guns tabs of lsd etc... thrown out .... got him on the marijuana plants in the yard...as a misd.... frosts my shorts...I hate losing....

[SVT-40]

If the victims firearm was locked in a safe, and not in plain sight or obtained in a consensual or other lawful search then I would believe you could leave it there.

In other words I doubt a search warrant would be issued if a locked container was found in a victims residence, if the officer believed a firearm was inside and the victim refused entry into the container you would not be able to search it.

Clue, don't ask the victim about her personally owned firearms. It's not required under the law. What you don't know about you cannot be held responsible for.

[sac550]

Originally Posted by BigDogatPlay

Unfortunately I have to fall on the side of "'I'd take them all", that I see or could reasonably find in the course of making the scene safe. The liability issue is what command staff and lawyers will focus in on first and they will always err on the side of reducing liability to zero regardless of what may or may not happen down the road.

Yes, it blows that the victim would be left unarmed, and an EPO is little comfort knowing that the abuser is going to bail or OR eventually. But there is precious little discretion in the law. And local DA policy, as well as agency policy, can and will remove whatever shreds of discretion are left.

To the OPs note from the deputy DA that the victim could "borrow" a gun from a friend... that deputy DA needs to spend a little time getting more in touch with California firearms law, what constitutes a transfer and the timelines involved.



If it's a common area he doesn't have to give consent. A bedroom closet that they both share, she can give consent and there is nothing he can do about it. His guns go with me.

That may be the case with husband/wife. Not always the case with BF/GF. If my GF calls the police on a DV request and she doesn't live with me, have a key, etc, then she can't give consent because she doesn't have the authority to.I am just saying this section doesn't give officers to search for weapons. You must base any search on one of the lawful exceptions.

[yzErnie]

Originally Posted by CaliTheKid

Call for the watch sergeant and let them make the call. CYA.

Serious? Why?

[tyrist]

Originally Posted by El Gato

consent searches are problematic from the start...the searchee can claim coercion really really easily....

we lost a gun/dope case recently on a consent search... we could have easily frozen the scene and done a warrant....someone was impatient... at the hearing the defendant's counsel accused the officers of threatening to go to the garage, get the plasma cutter and open the safe if the defendant didn't... the officer in question wouldn't know a plasma cutter from a cheese cutter...didn't matter, DA didn't object to the question... all of the stolen guns tabs of lsd etc... thrown out .... got him on the marijuana plants in the yard...as a misd.... frosts my shorts...I hate losing....

How did they manage to bump down cultivation to a misdemeanor? Not all DA's are created equal that is for sure.

[NuGunner]

letter of the law vs spirit of the law...

[BigDogatPlay]

Hadn't you heard? Cultivation of a couple hundred plants in the garage or backyard is all covered by a pot card.

Just ask the grower, he'll tell you.