Legal Alerts Jul 31, 2019

City’s Ability to Keep Firearms Away From Dangerous Individuals Affirmed

Ninth Circuit Determines City Did Not Have to Return guns to Wife Because Husband Posed Threat

City’s Ability to Keep Firearms Away From Dangerous Individuals Affirmed

A city’s ability to protect public safety by preventing dangerous individuals from accessing firearms was affirmed last week by the Ninth Circuit U.S. Court of Appeals. When requiring a person to forfeit their firearms after being taken into custody for a welfare check, the government must provide due process to any person who has an ownership interest in those firearms. Once due process is afforded and the firearms are forfeited, a city is likely under no obligation to return the firearms to people related to or associated with the dangerous individual.
In Lori Rodriguez et al. v. City of San Jose, the Ninth Circuit, in a partially published memorandum of decision, affirmed the City’s decision not to return firearms to the wife of a dangerous individual after due process was provided to the husband and wife. In this case, the husband was taken into custody for a welfare check because he was deemed a threat to himself and others. When the husband was taken into custody, the police seized the couple’s 12 firearms that were in the home. Eleven of the firearms were either owned jointly by the husband and wife or just by the husband. One firearm was owned solely by the wife. The City then filed a petition to have the firearms forfeited because it would be too dangerous to return them to the couple. The wife challenged this petition, but ultimately lost with the guns forfeited to the City. After the firearms were forfeited, the wife registered all 12 firearms solely in her name. When the City still refused to return the firearms, she filed an action alleging a number of civil rights violations, including a violation of her right to due process and that the forfeiture was a taking of her personal property without just compensation.
The Ninth Circuit ruled that neither of these rights were violated. Regarding her due process rights, the court concluded that the wife was afforded due process because she appeared at the hearing to determine whether the firearms should be forfeited. The fact that the firearms were later registered solely in her name did not change the fact that she already had due process. Regarding the takings issue, while the wife did not have physical possession of the firearms, under California law, she still had title to the firearms and could dispose of them or sell them if she wished. Therefore, this was not a taking of her personal property.
This decision affirms a city’s ability to remove firearms from dangerous people. The importance of this decision was that it keeps the firearms away from the husband. At the time the wife tried to get the firearms back, she still lived with her husband — who still posed a potential threat to society. Additionally, as long as those with an ownership interest in the firearm are afforded due process when it is first forfeited, a city is likely under no obligation to return the firearm just because one of the original owners changed who formally owns the weapon.
For more information about this decision and its impact on your agency, contact the author of this Legal Alert listed at the right in the firm’s Municipal Law practice group or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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