California gun repo men?

[Frank Ettin]

Forgive me if I'm off base here but in cases where the husband is denied the rights to have a firearms but the wife is legal to own a firearm, I fail to see how California can take the wifes firearms from a legal firearms owner...

1. This is not necessarily a California issue. It is also a federal law issue. See post 6.
   
   
2. It's not an ownership issue. It's a possession issue. And possession isn't about ownership. It's about access and the ability to exercise control over the firearm.
   
   
3. It's not just that a prohibited person may not own a gun. Under federal law (as well as the laws of many States) a prohibited person may not possess a gun, i. e., hold one in his hands or have access to, and the ability to exercise control over, a gun.
   
   
4. While a non-prohibited person may own and possess a gun, if he lets a prohibited person handle it or allows a prohibited person assess to, and the ability to exercise control over, the gun, the non-prohibited person could be charged with the crime of aiding and abetting the unlawful possession of a gun by a prohibited person. The gun would be subject to seizure as evidence of that crime.
   
   
5. That is simply the current state of federal law, and in some cases state law.

...Wouldn't that be an issue of equal protection? Also, on mandating locks/safes ect.. I thought that was delt with in the Heller case, the SCOTUS ruled that it was Unconstitutional to mandate trigger locks since it would not allow for immediate used to defend yourself? If the firearm must be locked up at all times the husband is home, then isn't her right to defend harth and home being denied without due process of law?..

No, Heller presented different issues. For one thing the law at issue in Heller required certain security of a gun even in the absence of anyone other than the lawful owner who might have access to it.

Here the issue is preventing someone who may not lawfully have possession of a gun, but who is regularly present, from being able to exercise control over the gun. There may be a variety of ways the lawful gun owner might do that without impairing his ability to use the gun for self defense.

He could, for example, keep the gun on his person. And when not on his person, the gun could be kept one of several types of lock-boxes which would prevent unauthorized access while keeping the almost as handy as simply keeping it unsecured in a drawer.

 

[bandaid1]

Thank you for the reply, I understand the competing interests/issues. Whoever I remember a courageous 15 y/o boy that used his fathers AR15 to shoot a robber in Texas defending his 12 y/o sister. Isn't it illegal for a 12y/o and/or a 15 y/o to have access to (posses) a firearm without the parent/adult present under federal law? Because I thought that a Minor was defined as under the age of eighteen for long guns and the age of twenty-one for handguns, with the exception of Vermont, eligible at age sixteen.

If the wife in Cali is legal to own and posses the firearm, it seems that requiring her to lock it up when her husband(a person not allowed to own/posses/have access to a firearm) is home, would violate her right to have the firearm for self defense. I mean she can't sleep with it strapped to her hip at night, right? What's her choice if she has a long rifle?

I think this confiscation thing is on shakey grounds. I don't see how they can confiscate anything without a warrent. Sounds like a witchhunt to me. I fail to see why she would be required to forfiet her rights when she has not broken any laws. Felons aren't require to have a background check before they handle a firearm in a gun store. Isn't a FFL violating the same law should that happen?

 

[bandaid1]

In U.S. vs Huet, in reading the 3rd circuits ruling, it said that the female KNOWINGLY allowed the male convict to have access to her SKS. That was the key part the issue. That is the part that was not disputed by the female.
"Huet indicated that she was angry that Hall had been showing off an SKS assault rifle. Huet said that if it happened again, she would take it "back" to Morgan. Huet further elaborated that she was worried that if Hall "gets in trouble with that, I get in trouble too. Cause it's in my name, and he's got it."

So she knew he was a convict, knew he could not have access, knew he had access, and knew it was wrong and did nothing to stop him.

 

[Frank Ettin]

...Whoever I remember a courageous 15 y/o boy that used his fathers AR15 to shoot a robber in Texas defending his 12 y/o sister. Isn't it illegal for a 12y/o and/or a 15 y/o to have access to (posses) a firearm without the parent/adult present under federal law?...

That's not exactly right. There can be criminal liability under federal (or the laws of some States) if a person leaves a loaded gun unsecured, a minor gets access and hurts someone. But justified use of force in self defense would be a good defense to any such charge.

...If the wife in Cali is legal to own and posses the firearm, it seems that requiring her to lock it up when her husband(a person not allowed to own/posses/have access to a firearm) is home, would violate her right to have the firearm for self defense...

Nonetheless, under current federal law (and the laws of many States) it would be a crime to aid and abet a prohibited person have possession of a gun.

...I don't see how they can confiscate anything without a warrent.

Then you don't understand search and seizure law. The Fourth Amendment protects against unreasonable search and seizure. There are many circumstances under which the courts have sustained the seizure of evidence or contraband without a warrant.

...I fail to see why she would be required to forfiet her rights when she has not broken any laws....

Among other things, if someone has aided and abetted a prohibited person to have possession of a gun, he has violated the law.

...Felons aren't require to have a background check before they handle a firearm in a gun store. Isn't a FFL violating the same law should that happen?

First, the felon himself is violating the law. Second the FFL is violating the law if he knows or has reasonable cause to believe that the person he's showing the gun to is a prohibited person.

...So she knew he was a convict, knew he could not have access...

Knowing or having reasonable cause to believe is an element. Of course in the situation described in the OP it appears likely that the husband knew or had reasonable cause to believe that his wife could not possess a firearm.

In such circumstance it would appear that the police would be able to articulate probable cause to seize the guns. It might work out that the case against the husband will ultimately fail, and the husband might have a chance to get his guns back (if he can keep them secure). But the first step in the process would be for the authorities to take custody of the guns pending going through the legal process.

 

[JimmyR]

Jimmy, I was under the impression that in the single case referenced by the OP, the person who made the judgment which sent the woman of the house to a facility for two days was actually a nurse, unknown if she was a nurse practitioner, but I would expect that to invalidate the claim, or am I wrong? If some ER nurse with a grudge against fat old white prison guards decides to "have me committed" when I came in for a hangnail, well, I might have a real problem with that.

I can speak for how it works in Indiana: The most common way an involuntary admission is initiated is the person is evaluated in an ER/Dr's Office/Therapist's office/Nursing Home/ etc. In my state, this can be done by anyone with a Masters in Psychology/Social Work/Counseling or be a Registered Nurse. This person is often the initiator of an involuntary admission, and it STILL must be approved by an MD and a Judge/Magistrate.

To address your concern about being admitted by a grudge, I will say I have seen, initiated, and dealt with dozens or hundreds of EDOs (Indiana's involuntary admissions), and have only seen 1 that was done that way- a co-worker of a nurse (who had no relation to my facility) took it out based on very loose interpretations of the person's statements, and essentially lied to the Dr and Judge. This person was admitted, and discharged in under 24 hrs because it was clear this was inappropriate. There are also ways to have this expunged in each state, and I would assume this one was dealth with appropriately. (On a side note, our facility has since made our policies stricter concerning accepting EDO's from outside sources.)

 

[bandaid1]

Frank Ettin- Thank you for you reply. I have learned so much from this forum, I can't thank all of you enough. I guess my problem with this issue is that I do not see anyway that a person, that can legally own a firearm, can exercise their 2nd Amendment rights and live in a home with a prohibited person. It's impossible to comply with the law, as applied, unless the firearms are locked up 24/7. In the case the OP states, it appears that it would illegal for him to put a handgun in a bedside drawer "at the ready" or a shotgun under the bed, at night, while he slept - since she would then have access to it as well. Right? Yet under Heller, "mandating trigger locks" being unconstitutional, how can this not be a violation of his rights? I understand the Government can make laws on the manner of carry when in public, but this sounds like manner of ownership within ones home. Adding and abeting sounds like horse feathers unless someone confessed to it. Thank you in advance.

 

[Frank Ettin]

...I guess my problem with this issue is that I do not see anyway that a person, that can legally own a firearm, can exercise their 2nd Amendment rights and live in a home with a prohibited person...

Well, I've explained things as best I can. I guess you'll need to live with not understanding it. But current reality is as I've described. Whether as a result of future litigation courts clarify or modify the rules is impossible to say.

Certainly in Huet her Second Amendment attack on the indictment fails. In rejecting Huet's Second Amendment challenge the Third Circuit notes, United States v. Huet, 665 F.3d 588, at 601--602 (emphasis added):

...Huet argues that, as a person legally entitled to own a firearm, she is categorically different than a felon, and thus cannot be charged under § 922(g)(1) for possessing a firearm. This argument is flawed. Huet's status in relation to prohibited persons is irrelevant. She is correct that her circumstances distinguish her from “persons historically barred from Second Amendment protections”; she is not barred from Second Amendment protection at all. The Government readily concedes that Huet would not violate § 922(g)(1) simply by possessing a firearm. She would, however, violate § 922(g)(1) and § 2 by aiding and abetting a felon to possess a firearm. Count Three charges her with the latter. Thus, the fact that she is not within the class of persons prohibited from possessing a firearm is irrelevant; her right to possess a firearm is not implicated by the charges against her. Moreover, even if part of the conduct that allegedly aided and abetted Hall's possession involved possession of the firearm by Huet, the Second Amendment does not afford citizens a right to carry arms for “any purpose.” Heller, 554 U.S. at 595, 128 S.Ct. 2783. Huet's right to keep the SKS rifle in her home did not give her the right to facilitate Hall's possession of the weapon. Otherwise illegal conduct does not somehow become immunized because possession of a firearm is involved in the offense...

 

[bandaid1]

I see your point, and thank you for the clarification. I understand what the 3rd Circuit is saying, I also believe that she is in a catch 22. As I read the case, I couldn't help thinking that the court went to great lenths to explained how her actions could/did violated the law, but it didn't seem to explain how she could have exercised her right (to the fullest extent) and done so legally. Maybe thats not the courts job. I'm not a lawyer and many of these legal cases makes me wonder where we went wrong with our justice system. Common sense seems to be missing.

 

[Frank Ettin]

...I couldn't help thinking that the court went to great lenths to explained how her actions could/did violated the law, but it didn't seem to explain how she could have exercised her right (to the fullest extent) and done so legally. Maybe thats not the courts job...

That is correct; it's not the court's job. The court decides the case.

Because we have the doctrine of stare decisis how courts have decided past cases will give us clues as to how courts are likely to decide future, similar cases. When properly understood, that can help us conduct our affairs in ways that can avoid or minimize legal difficulties.

...I'm not a lawyer and many of these legal cases makes me wonder where we went wrong with our justice system...

I am, and in my experience most of the time people object to the way the system is working it seems to be primarily because they aren't getting what they want. But we live in a pluralistic Republic, and not everyone agrees that things ought to be the way you want them to be.

Whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests. There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.

 

[Nittespanker]

Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.

I concur and especially with the Supreme Court decisions. When the Supreme Court makes a ruling that's not popular you hear all kinds of complaints about it being unconstitutional when the court has ruled that it is.