What is Penal Code Section 18400?
Penal Code Section 18400 is a California law that outlines the procedure when law enforcement believes returning a seized firearm or deadly weapon (often from a domestic violence incident) could endanger the victim or reporting person.
It requires the agency to notify the owner and, within 60 days of seizure (extendable to 90 days with court approval), file a petition in superior court to decide if the weapon should be returned or retained/forfeited.
Under Penal Code § 18250 et seq., peace officers must seize firearms or deadly weapons that are in plain sight or discovered during a lawful search when responding to a domestic violence incident involving a threat to human life, a physical assault, or the service of a protective order.
Normally, the agency must make the weapon available for return within 5 business days (after a background check under § 33850 et seq.) unless it decides the return would create danger. Section 18400 authorizes—and requires—the agency to instead file a petition in superior court to prevent return when it has “reasonable cause to believe that the return … would be likely to result in endangering the victim or the person who reported the assault or threat.”
Key Provisions of § 18400
The agency must advise the owner (or person who had lawful possession) of its belief.
It must initiate a petition in superior court within 60 days of the seizure date.
It may file an ex parte application for an extension of time by showing good cause.
Even with an extension, the petition must be filed within 90 days of seizure (no further extensions are permitted).
This is not a criminal proceeding or a general gun-confiscation tool. It applies only to weapons seized under domestic violence seizure rules (not to 5150/W&I Code § 8102 mental health seizures or other situations). The goal is a judicial determination of whether the weapon should be returned or permanently withheld and disposed of.
Timeline Rules for the Petition, Response, and Hearing
The statute imposes strict deadlines on both the agency and the owner/possessor:
Agency’s Petition Filing Deadline (§ 18400): Within 60 days of seizure (extendable to 90 days via ex parte application for good cause). The agency must simultaneously advise the owner of its intent to petition.
Service/Notice of the Petition (§ 18405)
The agency sends notice by registered mail, return receipt requested, to the person’s last known address.
If the person no longer lives there, the agency must make a “diligent, good faith effort” to locate them.
The notice must inform the recipient they have 30 days from the date of receipt to respond to the court clerk to request a hearing.
Failure to respond results in a default order forfeiting the weapon.
Gun Owner’s Response Deadline (§ 18405 & § 18415)
The owner has 30 days from receipt of the registered mail notice to file a response or request for a hearing. If there is no response, the seizing agency may file for a default judgment and dispose of the weapon under §§ 18000 and 18005 (sale or destruction).
Hearing Scheduling (§ 18410)
If the owner requests a hearing, the court clerk must set the hearing no later than 30 days from receipt of that request. The clerk notifies the owner, the law enforcement agency, and the district attorney of the date, time, and place.
Second Hearing Option (§ 18420)
If the owner loses the first hearing, they may petition for a second hearing anytime within 12 months of the initial hearing date. Failure to file a second petition or a loss at the second hearing results in permanent forfeiture and disposal.
Burdens of Proof
The burdens are explicitly stated and shift between the first and second hearings:
First Hearing (§ 18410(c)): The law enforcement agency (petitioner) bears the burden to prove by a preponderance of the evidence (more likely than not) that returning the firearm or deadly weapon “would result in endangering the victim or the person reporting the assault or threat.” If the agency fails to meet this burden, the court must order the weapon returned and must award reasonable attorney’s fees to the prevailing party.
Second Hearing (§ 18420(b)): The agency’s burden rises to clear and convincing evidence (a higher standard, significantly more persuasive than a preponderance). Again, if unmet, the court orders the return of the weapon plus attorney’s fees to the prevailing party.
Defenses and Challenges
Changed Circumstances: The parties are separated/divorced, a permanent restraining order is in place with no violations, or the alleged victim no longer fears the owner.
Lack of Ongoing Threat: The incident was isolated, the reporter has recanted, or no further incidents have occurred.
Legal Entitlement: The item is not a “deadly weapon” under the applicable definition, or the owner has already cleared the required background check.
Illegal Search & Seizure: A Fourth Amendment challenge alleging that the police should not have possession of the weapons in the first place so no forfeiture is possible.
Procedural Defenses
Petition filed after the 60/90-day deadline.
Improper or missing notice under § 18405 (e.g., failure to use registered mail).
Failure to advise the owner promptly as required by § 18400.
Second Amendment Challenges to Section 18400
Bruen and Rahimi Framework
Bruen (NYSRPA v. Bruen, 597 U.S. 1 (2022)) replaced "means-end" scrutiny with a text-and-history test. The government must show a regulation is consistent with the Nation’s historical tradition of firearm regulation.
Rahimi (602 U.S. 680 (2024)) upheld the federal ban on gun possession for those subject to a domestic violence restraining order, but emphasized that the restriction was temporary and followed a judicial finding of a “credible threat.”
Why § 18400 is Constitutionally Vulnerable
Plain Text Coverage: The Second Amendment protects the right to “keep” arms. Section 18400 burdens this by authorizing permanent forfeiture even without a criminal conviction or a finding that the guns were actually used in an incident.
Lack of Historical Analogue: No historical tradition supports permanent civil forfeiture based solely on a law enforcement petition when there is no prior judicial finding of danger.
Permanent Effect: Unlike the temporary restrictions in Rahimi, § 18400 leads to the permanent destruction or sale of property. A challenger would argue this is an "outlier" law that our ancestors would never have accepted.
Facing a Penal Code § 18400 petition in California means your lawfully owned firearms are at risk of permanent forfeiture—even without any criminal conviction, without the guns being used in any incident, and based only on a law enforcement agency's civil claim that returning them "would likely result in endangering" a victim or reporter from a domestic violence call. The process is time-sensitive: strict 60-90 day filing windows for the agency, 30-day response deadlines for you after notice, and hearings that can lead to default forfeiture if missed. The burdens shift (preponderance at the first hearing, clear and convincing at a second), but the stakes are high—your Second Amendment-protected property can be destroyed or sold under §§ 18000/18005 if the agency prevails or you default.
Hire the Best PC 18400 Defense Attorney
Hiring an experienced attorney like Daniel Horowitz of the Law Office of Daniel Horowitz in Lafayette (Contra Costa County) is often a smart move in these cases. As a State Bar of California Board of Legal Specialization Certified Criminal Defense Specialist (a rare credential held by only a few hundred attorneys statewide after rigorous testing and peer review),
Horowitz has over 45 years of practice, more than 200 jury trials to verdict, and a track record handling complex, high-stakes matters. His firm explicitly advertises expertise in Second Amendment cases, defending gun owners in both criminal prosecutions and civil restrictions involving firearms, including those used legitimately for self-defense or protection.
What sets Horowitz apart for a § 18400 challenge is his constitutional focus—he "thinks out of the box and into the Constitution," particularly in firearm-related defenses. Post-Bruen (and Rahimi), these petitions invite strong arguments that the civil forfeiture scheme lacks historical analogues for permanent disarmament without conviction or proven misuse. Horowitz's background includes commentary and representation tied to gun rights issues (such as criticizing federal overreach in scandals like Fast and Furious), plus his libertarian-leaning approach to defending individual rights against government overreach.
In short, § 18400 cases blend civil procedure, firearms law, and emerging Second Amendment jurisprudence—areas where a generalist might miss nuances, but a trial-tested specialist like Horowitz, with proven emphasis on gun-owner defenses and constitutional arguments, is well-positioned to fight aggressively for return of your property and to protect your rights under the law. Contacting him promptly (his office is reachable at 925-291-5388.
