Reassuming Your Rights

Gun violence is one of the most highly publicized crime categories in California and for a good reason. Public outcry tends to influence policy, and so there are some situations in which the government can temporarily assume control (i.e. seize) of firearms. Typically, the purpose of the seizure is to give the firearm owner time to “cool off” to mitigate the risk of violence or to have the person psychologically evaluated to determine the risk to safety they pose. While there are benefits to gun seizure, it does violate the owner's rights. Many people ask how long law enforcement can hold firearms after a seizure. It can depend on a few factors, so let's look at some of the laws and policies on gun seizures in California.

Gun Violence Seizures

California law enforcement may seize an individual's firearms if there is a concern for safety. Typically, firearms are seized during domestic violence call responses or in connection with violent offenses such as assault or harassment. And, since the passage of a new law in 2015, courts can now issue gun violence restraining orders if law enforcement claims a person poses an immediate and present danger to him or herself or others. Family members may also come forward with such an assertion and request a restraining order be issued. These are temporary restraining orders and expire 21 days after their issuance. The court must hold a hearing within those 21 days to decide whether a longer (one-year) restraining order should be issued. Once served with the ex-parte order, the restrained person will be ordered to surrender firearms and ammunition in his or her possession, care, custody, or control. If the individual fails to do so, law enforcement may seize the firearms and ammunition.

Your firearms can be seized even if you are not convicted of a crime, but a seizure does not strip you of your legal rights to the firearm permanently. Typically, law enforcement cannot refuse to release your firearms if you are no longer prohibited from possessing them. As stated above, ex-parte temporary gun violence restraining orders expire after 21 days but can be extended for a period of one year or longer. Under domestic violence restraining orders, the restrained person is prohibited from owning or possessing firearms for the duration of the order, which can last up to three years.  

Law enforcement can also seize firearms in plain sight when and if there is a reason to believe the person possessing the firearm poses an immediate threat to him or herself or others. Seized firearms must be held for at least 48 hours. If there are no criminal charges associated with the seizure and the firearm was lawfully possessed, they must be relinquished to the owner after the 48 hours but no longer than five business days once he or she has been cleared with a background check. And, as stated above, when firearms are seized because of a restraining order, the firearms cannot be relinquished to the owner until he or she can lawfully possess them again, which is when the restraining order expires. Restrained individuals typically have the chance to turn their firearms in or sell them to a registered dealer first.

Firearms may also be seized as evidence in a criminal case. When a firearm becomes a piece of evidence, law enforcement will typically not release it until the case has resolved, and the rightful owner has been identified. Sometimes, but not always, the law enforcement agency might try to release the firearm to the registered owner, which may or may not be the current legal owner if the gun was never registered in the new owner's name. Though possession is enough to prove ownership, legal ownership can be difficult to ascertain if the gun was borrowed or stolen in conjunction with the crime.

If your firearm has been seized, you should speak with a criminal defense attorney. Whether or not you are facing criminal charges or subject to a restraining order, law enforcement can seize your firearm. If law enforcement will not relinquish your firearm to you, an attorney can help you establish you are not prohibited from possessing it. If you are subject to a gun violence or domestic violence restraining order, an attorney can explain the terms of the order so you do not violate them or even help you demonstrate to the court why the order isn't necessary.

Are you facing domestic violence charges or have questions about gun seizures? California attorney Christopher Martens knows California criminal defense and will help you fight for your rights. With over ten years of criminal defense experience, Mr. Martens has handled thousands of cases and has helped many Californians fight their charges. Serving the Visalia and Fresno areas, The Law Offices of Christopher Martens can provide expert criminal defense counsel. Call our office at 559-967-7386 or email us at [email protected] for a free consultation.