Little-Used State Laws in California Can Help Keep Weapons Off the Street - BB&K Attorney Laura Crane and Law Enforcement Specialist Paul Cappitelli Explain How Cities and Police Agencies Can Tap Into the Laws

by Best Best & Krieger LLP

Gun violence is rampant in the news. The Columbine High School massacre in Colorado that left 12 students and one teacher dead, set the scene for school shootings in 1999, and we have seen them continue through the Newtown, Connecticut tragedy last December. With the theater shooting in Aurora, Colorado that left 12 people dead and 58 injured by a gunman armed with multiple firearms and the shooting of U.S. Rep. Gabrielle Giffords and others at an Arizona strip mall, some citizens no longer feel safe to go about their daily lives.Calls for revised gun control laws have stalled in Congress. What people are failing to notice, however, is that there are already laws available, at least in California, that can help in preventing such tragedies.

News reports regarding the perpetrators of these mass shootings undoubtedly include storied tales of prior mental illness. Such was the case with Patrick Purdy, a mentally ill drifter who killed five school children and wounded 31 others at a Stockton elementary school in 1989. And with the Virginia Tech shooter, Seung-Hui Cho, who was detained overnight at a hospital prior to committing the nation’s deadliest school shooting that left 32 people dead in 2007. Cho was hospitalized after his roommate became concerned when Cho threatened to take his own life, which he ended up doing after his killing spree.

In California, local entities can use Welfare and Institutions Code section 8102 to protect their residents from those whose mental condition presents a danger to themselves or others. Most jurisdictions are familiar with that code, which is used to remove deadly weapons from persons whom law enforcement, using Welfare and Institutions Code section 5150, has determined present a danger to themselves or others. Most jurisdictions, however, are not using Section 8102 to its most beneficial use. Instead of using the provisions found in Section 8102 to obtain the permanent forfeiture of deadly weapons, many agencies simply return weapons seized during a 5150 detention.

Welfare and Institutions Code section 8102 allows law enforcement to seize weapons from persons found to be a danger to themselves or others. Its greatest secret, however, is that it also allows law enforcement agencies to seek a judicial determination that those weapons never be returned. If such a determination is made, the deadly weapons seized under Section 8102 are forfeited to the law enforcement agency to be destroyed and therefore removed from the streets forever. Even seasoned law enforcement officers may be unaware of this remedy, thinking that all they can do is hold their breath and hope that no one is harmed when a known violent person retains their weapons.

To take full advantage of Section 8102, law enforcement agencies need to initiate a petition with the appropriate Superior Court within 30 days of the detainee’s release from a mental institution. The detainee then has 30 days to request a hearing from the Superior Court.

If the detainee fails to request a hearing, then the law enforcement agency can obtain a default order forfeiting the weapons to the department to be destroyed. If the detainee requests a hearing, then a hearing must be set within 30 days of the request.

A hearing under Section 8102 is generally a simple matter. Typically, the officer who concluded that the detainee presented a danger to themselves or others will testify as to the events leading to this determination. The detainee’s medical records are usually presented to the court, and the detainee will generally offer the reasons why the weapons should be returned to them.

Regardless of the outcome, a hearing under Section 8102 is a win for the initiating law enforcement agency. If the court determines that returning the deadly weapons is likely to present a danger to the detained person or others, then the weapons are forfeited to the law enforcement agency for destruction – an obvious victory. On the other hand, if the court determines that returning the deadly weapons to the detained person is not likely to result in danger to that person or others, the law enforcement agency can indicate that it did everything it could to protect the public should an event occur following the court’s determination that the weapons should be returned.

A similar statutory scheme exists under the California Penal Code to obtain the permanent seizure of weapons taken from the scene of a domestic violence incident. Domestic violence incidents can turn deadly and often involve harm to the responding law enforcement officers. However, law enforcement agencies do not always use the tools available to their greatest benefit in these situations.

Similar to Welfare and Institutions Code section 8102, the majority of law enforcement agencies are seizing deadly weapons discovered when responding to a domestic violence incident involving a threat to human life or physical assault. However, many of these agencies may not be seeking the permanent forfeiture of these weapons as provided for under the Penal Code. Instead, they are returning the weapons to the streets presenting a potential source of harm to all involved, including law enforcement, in the future.

Penal Code section 18400 allows law enforcement agencies to seek a judicial determination of whether the deadly weapon(s) seized in a domestic violence incident should be returned. Unfortunately, this statutory scheme has a few differences from Welfare and Institutions Code section 8102 that make it somewhat less useful.

First, a petition can only be initiated under Penal Code section 18400 when “a law enforcement agency has reasonable cause to believe that the return of a firearm or other deadly weapon seized … would be likely to result in endangering the victim or the person who reported the assault or threat …” Thus, unlike with Section 8102, the law enforcement agency cannot simply make a policy decision to seek a judicial determination in every situation.

Second, Penal Code section 18410 requires that the court order the law enforcement agency to pay the other side’s attorneys’ fees should the law enforcement agency fail to show by a preponderance of the evidence that the return of the deadly weapon(s) would result in endangering the domestic violence victim or the person reporting the assault or threat. This requires a careful analysis of the evidence prior to putting the matter before the court.

These two under-utilized statutory schemes provide law enforcement agencies valuable tools to assist them in protecting citizens across California. Without using them to their full effect, law enforcement agencies and the public entities funding them, risk not being able to assure their citizens that they truly are doing everything they can to keep them safe from gun violence.

Laura L Crane is a trial lawyer in the Ontario office of Best Best & Krieger LLP, where she is a member of the law firm’s public safety and municipal law practice groups. Crane is the firm’s expert in weapon confiscations, having handled or supervised hundreds of weapon confiscation petitions. She can be reached at 

Paul A. Cappitelli is a law enforcement specialist at Best Best & Krieger LLP. Retired as a San Bernardino County sheriff’s captain after 29 years with the department, he served as executive director of the California Commission on Peace Officer Standards and Training, known as POST, from 2007 through 2012. He can be reached at

* This article was republished with permission from PublicCEO, May 14, 2013.

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