POLICE MAY IMMEDIATELY DESTROY MARIJUANA PLANTS

As originally reported by the Eureka Times-Standard, and reprinted by the Willits News, if a police officer in the field has probable cause to believe that your grow is outside of the law, he may yank the plants out of the ground and destroy them.  You cannot later sue the department or the officer for destroying your property, even if you show later that the grow was legal, or if the District Attorney refuses to file criminal charges.

In the case of Littlefield v. County of Humboldt, Roscoe Littlefield was found growing 200 marijuana plants, with a reported canopy of 6,000 square feet.  Mr. Littlefield had four medical marijuana recommendations posted on site.  He also had a loaded rifle with a 50 round magazine on the property.  The police estimated that the grow would yield about 1,500 pounds of pot, which of course is probably an overly-optimistic estimation all too typical with law enforcement “experts”.  The officers took a 10 pound sample, and five random sub-samples, and destroyed the rest.

The California Court of Appeal held that an officer should take several factors into consideration when determining if there is probable cause to believe that the marijuana grow is outside of the medical allowance.  In Mr. Littlefield’s case, the Court considered the size of the grow compared to the county guidelines, the presence of the rifle, the fact that all recommendations on site were from the same doctor, and for the same ailments, and the large amounts of marijuana prescribed to them.  Based on these factors, the Court held that the officers had probable cause to believe that Mr. Littlefield’s marijuana grow was illegal.

The article goes on to quote Dale Gieringer, California director the the National Organization for the Reform of Marijuana Laws (NORML), who said that he was not surprised by the holding, given the egregiousness of the case.  The true impact of this holding will probably not be known until cases involving more modest amounts of marijuana are decided.  The fear is that it will embolden officers in the field to destroy citizens’ property without any prior judicial oversight.

It will be as important as ever to closely monitor how the power given by this case is employed by law enforcement in California, particularly in the medical marijuana producing areas of Mendocino and Sonoma Counties.

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GETTING GUN RIGHTS BACK AFTER A 5150 HOLD

When a person is detained by law enforcement for a mental evaluation in California, it will usually trigger certain firearms prohibitions.  California Penal Code section 5150 states:

“When a person, as a result of mental disorder, is a danger to others, or to himself…a peace officer…may, upon probable cause, take…the person into custody and place him in a facility designated by the county…for 72-hour treatment or evaluation.”

These “5150 holds” often start with a person saying something that someone else interprets as a threat to others, or a threat to commit suicide.  Of course, these statements are often blown out of proportion or taken out of context.  Overreaction is often the result when people do not want to be held responsible for not taking a statement seriously if tragedy ensues.  A 5150 hold can even result when a person voluntarily admits himself to a mental facility.

Once a person is taken into custody for a 5150, assessed for a 5150, and admitted to a facility after being deemed a danger to himself or others, the facility is supposed to inform the California Department of Justice immediately.  The facility is then then supposed to inform the subject of the hold that he may not possess firearms or deadly weapons for five years.  Keep in mind, this infringement of a person’s right to possess firearms has been taken away without any prior oversight by a magistrate or judge!

If your gun rights have been taken away because of a 5150 hold, it may be possible to petition the court in your home county to reinstate your rights.  The facility should give you a form to request a hearing when they discharge you.  You may request this hearing anytime within the 5-year restriction, but you may only request it once.  The hearing must be set within 30 days, and may not be continued beyond 60 days.  The court will consider all evidence, including live testimony, written declarations, police reports, criminal history information (RAP sheets), and any other relevant evidence.  The district attorney shall bear the burden of showing that it is more likely than not that you would not be likely to use firearms in a safe and lawful manner.  The main difference between this hearing and one for a person certified for intensive mental treatment under 5250 is that for a 5150 the district attorney bears the burden of proof.  I will discuss 5250s in a later blog.

Getting firearms back that were confiscated following a 5150 hold is an entirely different processes.  The police are supposed to confiscate any firearms you have when they take you in for mental evaluation.  The agency may initiate a petition with the court to destroy your guns within 30 days on your release from the facility.  To get your guns back, you must file a response to the police’s petition with the court clerk within 30 days.  Failure to respond within that 30 days will result in the guns being automatically forfeited.  The police department (usually represented by the City Attorney or County Counsel) must show that return of the weapons would be likely to result in danger to yourself of others.

I have found that courts often require you to pay filing fees to request these hearings, sometimes amounting to more than the value of the property.  These fees should be contested, and if the clerk requires they be paid before allowing you to file, a refund should be sought from the court later.

The law involving 5150 gun restrictions and return of property is obviously very complicated.  The government will surely use an experience attorney to try to deny you your fundamental gun rights.  In order to give yourself the best shot at being successful, ensure that you hire an experienced firearms attorney as soon as possible.

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DOMESTIC VIOLENCE IMPACTS ON YOUR GUN RIGHTS

Many people facing charges for domestic violence in California do not realize the potential life-long consequences a conviction will have on their gun rights.  There are several potential impacts that a conviction for domestic violence can have.

First, if you plead guilty, or are found guilty of any felony offense, you will not be able to possess a firearm for life (or possibly until you get your charges reduced to a misdemeanor.  I will discuss that in a future blog post).  Felons are prohibited from possessing firearms under both California and Federal laws.  Even having your conviction expunged under Penal Code section 1203.4 will not restore your gun rights.

Second, if you plead guilty to a misdemeanor offense listed in Penal Code section 29805, including domestic violence battery, you will be prohibited under California law from possessing firearms or ammunition for 10 years.  Furthermore, if you are convicted, or even charged with a domestic violence related offense, the court will probably impose some sort of protective order on you.  You may not possess a firearm or ammunition if you are subject to a civil or criminal protective order.

The third restriction on your gun rights is potentially the most draconian, and unfortunately, the one most people are unaware of.  Under Federal law, it is a crime for any person “who has been convicted in any court of a misdemeanor crime of domestic violence, to…possess…any firearm or ammunition…” (18 U.S.C 922 (g)(9)).  Some may look to 18 U.S.C. 921, and think that it allows an expungement to restore their gun rights.  Subsection (ii) of that statute states:

“A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored…unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not…possess, or receive firearms.”

At first look, it would seem that a Penal Code section 1203.4 expungement would satisfy Subsection (ii), thus restoring one’s gun rights.  However, in 2007, the United States Court of Appeals for the Ninth Circuit (the Circuit Court that has jurisdiction over California) held that 1203.4 is not actually an expungement, and therefore does not restore one’s gun rights under 12 U.S.C 922(g)(9).  (Jennings v. Mukasey (2007) 511 F. 3d 894).  That leaves a pardon from the Governor as the only way to restore your gun rights after a misdemeanor conviction for domestic violence.  This federal prohibition applies even after your 10 year California prohibition lapses.

The firearms prohibitions following a domestic violence offense discussed above are certainly not all-inclusive.  Many other California and Federal statutes apply to individuals accused of domestic violence.  If you are concerned with how the law may effect your specific circumstances, consult a lawyer qualified in handling these cases immediately.

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Firearms Law

Have you been charged with a gun crime in the Bay Area or Mendocino County?  Possessing a firearm for self defense is a sacred right guaranteed by the United States Constitution.  Two recent Supreme Court cases have held that the 2nd Amendment gives the right to individuals to keep and bear arms.  Despite this, California has some of the most restrictive gun laws in the United States.  San Francisco is even more restrictive.  As a member of the National Rifle Association and the California Rifle and Pistol Association, James Harwood is committed to ensuring that your constitutional rights are not infringed.  He defends clients charged with crimes including:

  • Carrying concealed firearms
  • Carrying loaded or concealed firearms in cars
  • Possessing unregistered or unlicensed firearms
  • Possessing firearms by felons
  • Possessing firearms by minors
  • Negligent or unlawful discharge of firearms
  • Brandishing firearms
  • Assault with a deadly weapon
  • Possession of a machinegun or silencer
  • Possession of an “Assault Weapon” or “Assault Rifle”

Also, if your right to possess a firearm has been restricted due to a past felony conviction, James Harwood may be able to get your rights restored.  It may be possible to reduce your prior felony conviction down to a misdemeanor, thus allowing you to have a gun.  Talk to Mr. Harwood today to learn what remedies may be available to you.

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