NEAL I. SANDERS
Attorney at Law

Gun Rights

Gun Rights & Criminal Law

The area of law dealing with the right to possess a firearm in California is quite technical. This is to my way of thinking odd, since the right of citizens to bear arms is enshrined in our Federal Constitution.

California state law limits the types of firearms that may be possessed and how lawful guns can be carried and transported outside one's property, but I will not attempt to discuss those limitations here. This article will discuss the impact of an arrest, restraining order or criminal conviction on one's ability to possess a lawful firearm in California.

Guns Taken by Law Enforcement at the Time of Arrest

Anytime officers are allowed by a judge to search a residence they are generally allowed by the judge to seize all firearms or other weapons they find.

If officers have a search warrant that allows them to search your home and property they will generally take any firearms that they find. Also, if officers make an arrest without a search warrant many times they will search you and your belongings. If they find any firearms they will generally seize them.

The legality of these searches and seizures can be challenged in court. You should never try to challenge the officer's conduct at the time they are doing their search other than simply stating you do not consent to the search and that you need to talk to your attorney prior to talking to them.

Law enforcement will hold any weapons that are seized until the conclusion of the case and/or until they no longer need them for investigative purposes. The procedure for return of any legal weapons to their lawful owners is discussed at the end of this article.

Gun Restrictions for Restraining Orders

The issuance of any restraining order (sometimes called protective order) generally requires that all firearms belonging to the restrained person be sold or surrendered to law enforcement within 24 hours and prohibits handling or having access to any firearm, no matter whom it belongs to. Prohibited firearms include handguns, long guns, rifles and shotguns.

In cases dealing with assaultive or aggressive conduct an emergency restraining order may be obtained by law enforcement, especially in domestic violence cases. An emergency restraining order is generally valid for five days and is served on the accused shortly after their arrest.

If you have been arrested for something then during the time your case is in the court system, the district attorney can request a restraining order if claims are made that intimidation or threats have been made. Again, if a restraining order issues at any time, you will lose your right to possess a firearm until the restraining order is withdrawn by the court, which is generally at the conclusion of the case.

A temporary restraining order (TRO) can also be ordered by the court when there are claims by an individual of fear, intimidation or of potential for future harm.

After an emergency restraining order or a TRO has been issued, the court of first appearance may issue a criminal protective order or a more permanent restraining order. A criminal protective order is often requested by the district attorney when there are allegations of domestic violence. Non-temporary restraining orders last however long the court orders. A typical restraining order remains in effect for three years.

If you have been required to get rid of your guns, and you have turned them over to law enforcement, you can get them returned to you after the conclusion of your case if at that time you are allowed to possess weapons. The procedure for return of any legal weapons to their lawful owners is discussed at the end of this article.

If at the conclusion of your case, you cannot possess guns, you can arrange to sell them through a licensed firearms dealer.

Gun Restrictions for Criminal Conviction

If you have been arrested, whether or not there was a restraining order in effect during your court process, at the conclusion of your case, if you plead guilty to certain offenses or if you are found guilty after trial you may lose your right to possess a weapon.

If you are convicted of a felony you will never be able to own or possess a firearm as long as that felony stays on your record.

Felony Convictions

Any guns you owned that were seized by law enforcement will be destroyed 30 days after the conclusion of your case unless the court allows you to sell them, which must be accomplished through a licensed firearms dealer in cooperation with the law enforcement agency that is holding your weapons.

If firearms were seized at the time of your arrest that belong to other people, the prosecutor or the court may allow return of those weapons to their rightful owners as long as ownership can be established and those individuals follow the procedure outlined below under "Return of Firearms Seized by Law Enforcement."

There is a procedure where if you are granted probation on a felony and do extremely well while on felony probation, your attorney can request that the felony be reduced to a misdemeanor. This can only occur for certain types of felonies and only after you have successfully completed the full term of your probation. Doing this may restore gun rights for individuals with certain types of non-violent felony convictions. For others, only a governor's pardon will restore their right to bear arms.

Having a felony reduced to a misdemeanor and then dismissed is the first step toward applying for a governor's pardon.

Misdemeanor Convictions

If you are convicted of certain types of misdemeanors you will lose your gun rights for 10 years from the date of your conviction. The list of misdemeanors that cause loss of gun rights is long and would need to be consulted prior to your plea to any misdemeanor charge, but generally they involve violence or the threat of violence.

Any Conviction

If you are convicted of any crime and the court grants you probation, a condition of that probation could be that you not own or possess any firearm. Generally, your attorney will be able to tell you prior to your pleading guilty to any crime whether such a condition of probation is likely.

If you are required to forfeit your firearms during probation, your right to possess a firearm will be restored after you have successfully completed probation, unless your crime was a felony or one of he listed misdemeanors discussed above. When your firearms are returned, law enforcement is allowed to charge you a storage fee to hold your guns. You will also be required to obtain clearance from the Department of Justice before your guns will be returned to you as discussed below.

Return of Firearms Seized by Law Enforcement

If your firearms were seized by law enforcement you generally will not be able to have them returned until your case and any related cases have concluded. When your case concludes you will need to have your attorney get an agreement from the district attorney (DA) that your property, including your guns, will be returned. If the prosecutor (DA) refuses to agree to having your property returned your attorney can file a motion with the court to have those items returned. Be aware that if the gun or guns were used in a crime, were stolen, or you are convicted of a felony or misdemeanor that prohibits your possession of a firearm, such a motion may not be worthwhile. Any type of weapon that is illegal to own will not be returned under any circumstances.

Assuming the court agrees that you should have your guns returned and issues an order for their return, that alone does not allow law enforcement to return any firearm. To get any firearm returned from the custody of law enforcement you or a licensed firearm dealer will need to obtain a clearance from the State of California Department of Justice (DOJ), confirming ownership and your right to own a firearm.

Once you have your court order or clearance from the DA it is a good idea to contact the property clerk for the agency holding your firearms prior to sending in any forms to DOJ and ask them what they will require for you to pick up your guns.

In addition to the court order or agreement by the district attorney and DOJ clearance, the agency holding the firearms must be able to establish rightful ownership electronically through DOJ before they can release any gun, which means handguns must be registered with DOJ before they can be released. Only the electronic (computer) record of gun registration will be accepted as proof of rightful ownership. A bill of sale or receipt of purchase will not be accepted as proof of ownership. There is no registration requirement for long guns, but occasionally ownership of a long gun will appear on the DOJ record, in which case ownership may need to be established for a particular long gun. With older handguns or handguns that have been passed down within a family, establishing ownership can sometimes be an issue. If the property clerk tells you a particular weapon is not registered to you, you will need to establish your rightful ownership prior to mailing in the DOJ gun release form.

If you have an older unregistered handgun that has not previously been reported lost or stolen then you can register that gun by submitting a Firearm Ownership Record to DOJ along with the necessary fee pursuant to the instructions that are included on page two of the form. This form will also establish your ownership if there was previously some clerical mistake when you purchased your firearm that

If you have an unregistered handgun that was handed down through your family that has not previously been reported lost or stolen then you can register that gun by submitting a Intra-Familial Handgun Transaction to DOJ along with the necessary fee pursuant to the instructions that are included on page two of the form.

When rightful ownership and registration have been established then clearance is obtained by submitting a Law Enforcement Gun Release Application along with the necessary fee to DOJ pursuant to the instructions that are included on page two of the form. After reviewing your record DOJ will simultaneously notify you and the law enforcement agency that is holding the firearms whether you have been cleared. It usually takes three to six weeks after the application is submitted to receive a notice back from DOJ.

Once you have your court order and your notice, if you don't arrange to pick up your firearms within 30 days from the date of the DOJ clearance notice, you will have to resubmit the form and pay the fees again. Guns can be released only to a licensed firearms dealer or to the owner in person. If you are not available to pick up your gun in person then only a licensed firearms dealer can pick it up for you.

As you can see by the above, there are fees involved and the process to get your guns back may take two months or more. As soon as you have a court order or the district attorney's release, it is a good idea to start the process by contacting with the property clerk at the agency that is holding your weapons to make sure there won't be any problem with legality of the weapons or ownership records before mailing in the release application.

Once you have all your ducks in a row and have received back authorization to pick up your weapons, it can save you time to call and make an appointment with the property clerk to pick up your guns. They will appreciate your courtesy and they will probably be glad to have a chance to give you any further instructions they need to, including letting you know what form of identification they will require when you come in and whether they need you to bring in copies of any of your paperwork.

Neal I. Sanders
Attorney at Law
320 I Street
Eureka, California 95501

PHONE: 707-442-4200
FAX: 707-442-1650
EMAIL: info@nsanders.com

 
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