Protective or Restraining orders
Protective or restraining orders
Generally, if one is served a protective or restraining order, one needs legal representation immediately.
Many such orders, whether temporary or permanent, include a prohibition on owning, possessing, receiving, or attempting to purchase or receive, any firearm.
Further, such an order will include the direction to dispose of all firearms; they must be surrendered
to the local law enforcement agency for that jurisdiction or sold to a licensed gun dealer
At that point, there is no option to give any firearms to a friend or family member or sell them to anyone except a 'licensed gun dealer'. (Code of Civil Procedure 527.9(b))
Beginning Jan 1, 2014, a person subject to an order that has an expiration date may store his firearms with an FFL, rather than transfer them. (AB 539)
29830. (a) Any person who is prohibited from owning or possessing a firearm pursuant to this article, or who is prohibited from owning or possessing a firearm pursuant to any other law, may transfer or cause to be transferred, any firearm or firearms in his or her possession, or of which he or she is the owner, to a firearms dealer licensed pursuant to Section 26700 to 26915, inclusive, for storage during the duration of the prohibition, if the prohibition on owning or possessing the firearm will expire on a date specified in the court order. (b) A firearms dealer who stores a firearm or firearms pursuant to subdivision (a), may charge the owner a fee for the storage of the firearm or firearms.
Once notified of the order, attempts to buy or receive a firearm are punishable
by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.
Continuing ownership or possession is punishable
by imprisonment in a county jail not exceeding one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.
The Penal Code is Section 29825.
Once the issue is resolved and the order is removed, recovery of the firearms is complicated. LEO experienced in the process suggest these steps to recover one's guns from law enforcement:
- send a certified letter to the agency announcing your intention to recover your guns
- contact the property custodian at the agency to get the information on the process
- get certified copies from the court of all paperwork showing the order has been lifted
- file a Law Enforcement Gun Release Application
NOTE: Under current law (Penal Code 33865(d)) handguns must be registered to the owner before they may be returned. This is a problem for antiques and older handguns, since the last transfer may have occurred before use of a California licensed gun dealer was required (1991). A lawsuit challenging this requirement, Churchill, et. al. v. Harris, et al., was filed in May, 2012. See the Calguns discussion thread on the suit.
Gun Violence Restraining Orders
Penal Code 18100 establishes Gun Violence Restraining Orders, effective January 1, 2016.
A gun violence restraining order is an order, in writing, signed by the court, prohibiting and enjoining a named person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition. ...
One subject to such an order needs a lawyer just as much as one subject to other orders requiring that the restrained person have no access to firearms. The required process is described at Penal Code 18120. Penalties are described at Penal Code 18205: Summary - misdemeanor PLUS 5-year prohibition from possessing firearms or ammunition.