More Guns Liberated

A few months back, the Law Offices of Lieberman and Taormina got an interesting call.  A gentleman, by the name of Tony called me with a problem.

Back in January, he had needed the services of the police to deal with a domestic issue.  As often times is the case, the police “assisted” by simply arresting everyone in the home.

This is obviously problematic for a legally abiding citizen.  No one ever wants to go through the indignity of an arrest, even when there is virtually no chance that a prosecution will ever result from it.

When a gun is in the home, this creates an entirely different wrinkle in the equation.  Make the gun an “assault rifle” and be a “large capacity firearm” and baby… thats when things get really interesting!

I understand the basic public policy in separating volatile family members.  I even kinda, sort of understand the argument for taking the guns.  That being said, the argument is fundamentally flawed.

What if those guns are ultimately used to protect the owner from subsequent violent assault from the problem family member?

What if the owner needs to protect himself from the subsequent violent assault from the problem family member’s new beau?

Why stop just at firearms?  More people are violently attacked with knifes each year…. why shouldn’t the police raid the kitchen and take all the steak knives?  The Second Amendment recognizes an individuals right to keep and bear arms…. aren’t knives “arms”?

If the goal is to protect “everyone” of the parties from the sudden outburst of emotionally driven violence, why stop at guns and knives?  People run down other people with their cars all the time!  Let’s also confiscate the parties’ cars!… and their screwdrivers, their garden tools, sporting equipment,… you see the problem?

Well… that all not with standing, in this instance, Tony was “arrested” and all of his weapons were seized.  He does have a substantial collection of firearms.  All legally acquired, and most of them rarely shot.

After five days, the police began the process of returning the firearms.  Two were immediately at issue.  One was a IWI Tavor… the other a DP-12

The Tavor is a bull pup style rifle that… up until last year… made use of a bullet button to avoid the “assault weapons classification.  The DP-12 is a shotgun with two attached seven round magazines… giving it a grand total of fourteen rounds on board.

The police contacted the California DOJ, and essentially said, “Hey… can we return these guns to Tony?”

DOJ replied with “No”.

Nice.

Tony then called the National Rifle Association back in Fairfax Virginia, and they in turn referred them to the good offices of Lieberman & Taormina.

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When Tony came to our office, I explained to him that it would probably end up costing him more to get the guns back, then the guns were actually worth.

His response was to pull out a checkbook and say “How much?”

He was pissed!

As he should be.

The State had taken his firearms not as a consequence of breaking the law… but as a prophylactic measure.  Now that they had seized his property, they had no intention of returning it.  If you or I did this… it would be called burglary and possession of stolen property!

So… the race was now officially on.

We contacted the police and interestingly found out that they were basically on our side.  The property officer began the conversation by stating that before he is a cop, he is a patriot… and what was happening to Tony was a travesty of justice.  He provided me with some basic discovery and a copy of the official statement from DOJ.  This was not a DOJ attorney, this was a DOJ field rep that was essentially engaged in the unlicensed practice of law.

We ultimately had to file a motion for return of property and serve the police department.  With a court date set, the city attorney’s office was the winner of the “you must object to this!” award.  The City Attorney was himself not particularly thrilled to be on his side of the legal equation.  To make matters worse, DOJ rejected all requests to be brought into litigation.

Basically, they caused this problem… and now were refusing to participate in it’s clean up.

We went to court and argued our motion in chambers.  Our case turned on two theories for each of the guns.

On the Tavor we argued that Tony had been given a statutory opportunity to register his weapon as an assault rifle, or alternatively make it featureless or put a fixed magazine on it.  With the police refusing to return his property he was essentially estopped from performing the remedial actions necessary to make it California compliant.  The State cannot set the ground rules,  forcibly prevent you from satisfying the ground rules, then claim you are not in compliance.

The second theory rested on the DP-12.  We argued that the weapon was per se legal.  After July 1, it potentially could have become illegal, but for the ruling in Duncan v. Becerra.  (This was the ruling where Judge Benitez granted the plaintiffs a preliminary injunction against the large capacity magazine ban.  With this injunction in place the State was literally claiming a violation of law that under court order they were prevented from enforcing.)

Our judge evidentially agreed with us.

After returning to the courtroom, he called our case and granted our motion.  Armed with this, we contacted the police.

They were.. (frankly, as they had been from the beginning)… completely helpful.  They congratulated us and we set up a time to pick up the weapons.

With them now in our possession we began the process of returning them to Tony.  Another victory for Lieberman and Taormina… and two more guns liberated from the political prisons of California!