California Welfare and Institutions Code section 8102 Return of Firearms Petition
July 28, 2011 Leave a comment
By Michael Reiter, Attorney at Law.
One of the more unusual procedures that sets Municipal Law from the ordinary practice of law is the petition process set forth in Section 8102 of the California Welfare and Institutions Code. This procedure has to do with the return or destruction of firearms seized from people subject to a Welfare and Institutions Code section 5150 hold. These are commonly called Return of Firearms Petitions. California Welfare and Institutions Code section 8102 reads in pertinent part:
(b) Upon confiscation of any firearm or other deadly weapon from a person who has been detained or apprehended for examination of his or her mental condition, the peace officer or law enforcement agency shall notify the person of the procedure for the return of any firearm or other deadly weapon which has been confiscated.
Where the person is released, the professional person in charge of the facility, or his or her designee, shall notify the person of the procedure for the return of any firearm or other deadly weapon which may have been confiscated.
Health facility personnel shall notify the confiscating law enforcement agency upon release of the detained person, and shall make a notation to the effect that the facility provided the required notice to the person regarding the procedure to obtain return of any confiscated firearm.(c) Upon the release of a person as described in subdivision (b), the confiscating law enforcement agency shall have 30 days to initiate a petition in the superior court for a hearing to determine whether the return of a firearm or other deadly weapon would be likely to result in endangering the person or others, and to send a notice advising the person of his or her right to a hearing on this issue. The law enforcement agency may make an ex parte application stating good cause for an order extending the time to file a petition. Including any extension of time granted in response to an ex parte request, a petition must be filed within 60 days of the release of the person from a health facility.(d) If the law enforcement agency does not initiate proceedings within the 30-day period, or the period of time authorized by the court in an ex parte order issued pursuant to subdivision (c), it shall make the weapon available for return.(e) The law enforcement agency shall inform the person that he or she has 30 days to respond to the court clerk to confirm his or her desire for a hearing, and that the failure to respond will result in a default order forfeiting the confiscated firearm or weapon. For the purpose of this subdivision, the person’s last known address shall be the address provided to the law enforcement officer by the person at the time of the person’s detention or apprehension.(f) If the person responds and requests a hearing, the court clerk shall set a hearing, no later than 30 days from receipt of the request. The court clerk shall notify the person and the district attorney of the date, time, and place of the hearing.(g) If the person does not respond within 30 days of the notice, the law enforcement agency may file a petition for order of default.
That’s basically the procedure. Each entity and court implements the section a little differently. In the City of San Bernardino, the petition is in the name of the Chief of Police and filed by the City Attorney’s Office. Section 8102(f) states that the Clerk shall notify the person and the district attorney, which suggests that the District Attorney can file the petition.
For example, here is the minute order from a petition wherein the City of San Bernardino sought a judicial determination on the return of weapons:
ACTION CAME ON FOR STATUS HEARING ON PETITION SEEKING JUDICIAL DETERMINATION RE: RETURN OF
FIREARMS OR DEADLY WEAPONS (W&I SECTION 8102).
–
THE COURT FINDS THAT NO ANSWER HAS BEEN FILED; THAT THE RESPONDENT HAS NOT CONTACTED THE CITY
ATTORNEY; AND THAT THE RESPONDENT DID NOT APPEAR IN COURT TODAY.
–
THE COURT ORDERS A DEFAULT JUDGMENT ENTERED ON BEHALF OF THE PETITIONER, CITY OF SAN
BERNARDINO, AND AGAINST THE RESPONDENT, [Omitted]
–
THE COURT FURTHER ORDERS WEAPON(S) DESTROYED PURSUANT TO THE LAW.
STAGE AT DISPOSITION: ALL OTHER JUDGMENTS BEFORE TRIAL.
CASE DISPOSITIONED BY JUDGMENT
ACTION – COMPLETE
In this case, the petitioner did not respond, and the court ordered the weapon(s) destroyed pursuant to law. You can find the City of San Bernardino’s cases by searching for the name of the police chief or past police chiefs.
In Redlands, when I was Assistant City Attorney, this situation only came up once when the Police Department, in the name of the People of the State of California, tried to do it by themselves, and brought it to the City Attorney’s Office when the respondent responded.
The City of Ontario does it a little differently. Those cases are filed in the name of the Ontario Police Department versus the gun owner. The District Attorney is added as a third party, but the petition is prosecuted by the City Attorney.
Here is an example of a minute order in a similar default hearing involving the Ontario Police Department:
THE SAID DEADLY WEAPON IS SUBJECT TO DISPOSITION PURSUANT TO SECTIONS 12028 AND 12032 OF THE
PENAL CODE.
STAGE AT DISPOSITION: ENTRY OF JUDGMENT – DEFAULT JUDGMENT BY COURT BEFORE TRIAL (CIV)
DISPOSITION: ENTRY 0F JUDGMENT DEFAULT BY COURT BEFORE TRIAL
Even in San Bernardino County and San Bernardino County Superior Court, you can see there are different ways that the courts handle these petitions, and different ways that city attorneys, and others, file these petitions.
The appeals courts give other variations of this theme. In the People of the State of California v. One Ruger .22-Caliber Pistol (2000) 84 Cal.App.4th 310, the Ventura County District Attorney’s Office filed the petition in the name of the People, and sued the property in question like in an asset forfeiture case.
The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.
About Michael Reiter, Attorney at Law
Michael Reiter, Municipal Attorney. Partner with Cole Huber, LLP in Ontario, Roseville California 