Ruling on Return of Seized Weapons Criticized by Police

Times Staff Writers

Law enforcement officials in California say a recent decision by a San Diego appellate court threatens public safety by requiring police to return weapons confiscated from people who appear mentally disturbed.

Authorities say the decision by the 4th District Court of Appeal could force them to give back firearms and other weapons without first determining whether their owners--typically detained for psychological evaluations--are mentally fit.

If the January ruling withstands an appeal to the state Supreme Court, city attorneys from Chula Vista to Humbolt County predict that it will oblige police to rearm people who may pose a danger to themselves or the public at large.

“If I’m required to give back all the weapons confiscated from these people without knowing whether they’re OK, then to put it real blunt, it’s going to hit the fan one of these days,” San Diego Police Detective William Bird said. “It hasn’t happened yet, but we could see some crazy guy wiping out his family or a neighborhood.”


Despite such dire forecasts, others say the court’s decision properly abolished a system that stigmatized the weapon owners and made it costly and time-consuming for them to retrieve their property.

“The thrust of the other side’s argument is that this is wreaking havoc up and down the state. I have a hard time believing that,” said San Diego attorney Christopher Larsen, who handled the case that prompted the appellate court decision. “For one thing, once a person is released there is nothing to keep him from going down to the gun store and buying new weapons.”

For another, Larsen said, police can rely on other statutes that give them wide latitude to confiscate firearms.

Applicable Statute


At issue is a section of the California Welfare and Institution Code requiring police officers to confiscate any “deadly weapon” found in the possession of people they believe are mentally disturbed. Under the statute, those who wish to retrieve their weapons must first obtain a Superior Court order certifying they do not pose a danger to themselves or others.

Estimates of how frequently such cases arise vary widely. In Los Angeles, weapons were seized under the statute from 330 people in 1988. San Diego and San Francisco authorities could not produce such statistics but said they field requests for the return of confiscated firearms several times each month.

In 1987, a nurse whose six guns and dagger were impounded challenged the constitutionality of the statute after La Mesa police refused to release her weapons. A Superior Court judge rejected Kathleen Bryte’s arguments, but in a seven-page decision issued Jan. 27, the Court of Appeal sided with her and declared the law unconstitutional.

Unfair Burden

In an opinion written by Justice Charles Froehlich, the court said the statute violates state and federal due process rights and unfairly places the burden of retrieving the weapons on their owner.

The “requirement of affirmative action by the property owner, including the preparation of formal pleadings, the payment of a filing fee, and subsequent participation in all the formal procedural devices of a Superior Court action, must be deemed unreasonable,” Froehlich wrote.