DV Tip of the Week

5 MIN READ

Do we really have to take these guns?

Shall or Should

Under California Penal Code Section 18250

If any of the following persons is at the scene of a domestic violence incident involving a threat to human life or a physical assault, is serving a protective order as defined in Section 6218 of the Family Code, or is serving a gun violence restraining order issued pursuant to Division 3.2 (commencing with Section 18100), that person shall take temporary custody of any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search as necessary for the protection of the peace officer or other persons present:

How does this work in practice?

You are at a residence, and you’ve just arrested the batterer for domestic violence involving physical assault. The victim shows you a gun that was used to threaten her. You take it, right?

What about if the victim tells you they have a gun, and they show it to you, do you take it?

Seriously? You want me to take her gun?

Here’s a little grammatical question. Does the as necessary for the protection of the peace officer or other person present language modify the phrase, “shall take temporary custody of any firearm or other deadly weapon?”

OR

Does the as necessary for the protection of the peace officer or other person present language modify the phrase “or discovered pursuant to a consensual or other lawful search?”

Let’s look at this deeper.

If it applied only to those weapons necessary for the protection of the peace officer or other persona present, you wouldn’t need the statute. Officer safety exception to warrants would allow for that temporary taking. Officers can already seize items in plain view as well. The language better follows the ability to take temporary custody of the items found not in plain view or by consensual search, but by other lawful search…such as a protective sweep, pat down, etc.

YES. Take the weapon.

What if the victim is a law enforcement officer?

If the victim is a law enforcement officer, there should be a notification to their agency. The firearm is seized and provided to the agency. Failure to comply with the section could subject you and your department to a lawsuit if something goes wrong.

Shall means shall. Take the weapon.

Email me: gfineman@dvtrainandconsult.com with any questions.

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