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A California Emergency Protective Order (EPO) Does Not Permit the Police to Search Your Home!

law journal article with daniel horowitz and the brady case is discussed
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AN EPO DOES NOT JUSTIFY THE SEIZURE OF GUNS OR SEARCH OF YOUR HOME

An EPO (Emergency Protective Order) does not let the police seize your guns or search your property. Many police agencies misuse the EPO to violate your Fourth and Second Amendment rights. Recently law enforcement in California has been taking this illegal shortcut and have been seeking search warrants to seize guns of a person who has been arrested for domestic violence or elder abuse with violence.  Other agencies use the EPO as an excuse to seize lawfully held firearms.  This is improper.  Here is the law.

The proper method to seize guns is to obtain a “Gun Violence Restraining Order” pursuant to Penal Code §18120. This requires significant paperwork and judicial review. An EPO on the other hand is granted with little thought by most judges.

If an EPO is issued it will be issued under Family Code, § 6321. This means that no search warrant can issue. Family Code § 6389 applies to the surrender of firearms and that section does not provide for a search and seizure by law enforcement but instead requires that “the court shall order the respondent to relinquish any firearm”.

This means that the person who has been arrested is given the chance to turn over the firearms or otherwise dispose of them.

By statute there is no warrant involved. Any relinquishment of guns is accomplished by the person subject to the Order who must either immediately “surrender[ing] the firearm or ammunition in a safe manner, upon request of a law enforcement officer, to the control of the officer, after being served with the protective order” or “within 24 hours of being served with the order, by either surrendering the firearm or ammunition in a safe manner to the control of local law enforcement officials, or by selling, transferring, or relinquishing for storage”. (Fam. Code § 6389(2))

CASE LAW BARS USING A SEARCH WARRANT TO SEIZE GUNS PER AN EPO

The failure to comply with the above requirements and the use of an EPO to justify a seizure is improper. In People v. Superior Court (Corbett) 8 Cal.App.5th 670 (2017), the court highlighted the importance of providing adequate notice and an opportunity to comply with firearm relinquishment obligations to avoid due process violations.

In Corbett the found that a search was improper because “The People also have not shown that Corbett was given any opportunity to relinquish his firearms or arrange for their surrender before the police searched his home.” People v. Superior Court (Corbett) (2017) 8 Cal.App.5th 670, 691

Bottom line is this. If you are the subject of a gun restriction you need a criminal defense specialist to help you. Daniel Horowitz is a criminal defense specialist, certified by the State Bar of California Board of Legal Specialization. Call him at 925-283-1863 and schedule an initial appointment.