WHEN CAN THE GOVERNMENT TAKE AWAY YOUR GUNS?

In California, where in recent years lawmakers put a bunch of money into a program to seize guns from all the people who aren't supposed to have them, the program was ineffectual because there were too many guns to confiscate

By Brian Josephs

VICE News
March 8, 2016

Ralph Gilbertson, a 74-year-old living in Richfield, Minnesota, thinks the CIA is watching him. He thinks agents are impersonating his neighbors and the local cops, and he has sent letters out to the managers of his apartment building saying so. He also thinks that the cops' recent seizure of his guns is unconstitutional, and he's likely right.

His weapons—he has three handguns, which he's licensed to carry—were taken away by the police after his building managers called a city agency worried about the apparent combination of firearms and paranoia that he represented, reported the Star-Tribune on Sunday.

But Gilbertson is challenging the seizure of his weapons in a case that shows just how complicated it is to take away someone's guns in America.

While his disposition may make his neighbors nervous, Gilbertson isn't a convicted felon, hasn't been charged with domestic violence, and no court or psychiatrist has ruled he's a ticking time bomb. (He suffers from a mild form of bipolar disorder, but according to the Star-Tribune, "his psychiatrist sent a letter to the judge saying that Gilbertsen is compliant with his medications and poses no danger to himself or others.")

"He's not being charged with a crime," says Joseph Olson, emeritus professor at Minnesota's Mitchell Hamline School of Law. "He's eccentric—that's not a crime in America."

Guns-rights organizations and conservatives occasionally invoke the specter of a Democrat-and-UN-coordinated mass gun seizure effort, but the Second Amendment is pretty darn robust. In America, it's a lot easier to buy a gun than it is for the government to take that gun away.

For instance, though felons are generally barred from owning firearms, there are plenty of states where there are exceptions to that rule—even for people who have a history of violent crimes. And though it seems simple to say, "People who are mentally ill and potentially dangerous shouldn't have guns," in practice, creating databases of people too sick to own firearms is complicated and controversial.

And even when you aren't allowed to have guns, it's rare that officers will come to your door and pry them from your fingers. The exception is California, where in recent years lawmakers put a bunch of money into a program to seize guns from all the people who aren't supposed to have them. The results, reported the Washington Post last year, weren't promising, mostly because there were too many guns to confiscate:

"At the end of 2014, 17,479 people remained in the illegal gun owner database, down from 21,249 people at the year's start. About 34,868 registered firearms still are believed to be in the hands of people who are not allowed to own them... Last year, agents conducted 7,573 investigations and seized 3,286 firearms. At the same time, 7,031 gun owners were newly flagged."

In January, another gun-seizure law went into effect in California. Passed in 2014, the law allows immediate family members and law enforcement to ask a judge for a restraining order to seize an owner's guns and bar the person from buying guns in the state. The restraining order lasts 21 days but can be extended to a year.

The law was passed in response to Elliot Rodger's violent rampage in 2014; Rodger's parents said afterward they saw warning signs before the 22-year-old went on a killing spree.

Naturally, the idea that the cops could take away someone's guns like that has alarmed Second Amendment advocates, but there are reasons to doubt that the measure will have much of an effect. "It's only a rare case that a family member will have enough suspicion that they'll report it, the police act on it, and that they issue a court order," said Adam Winkler, a UCLA law professor and author of Gunfight: The Battle over the Right to Bear Arms in America.

California faces the same problems any state trying to enact gun control measures faces—namely that American gun laws are a patchwork of local and state regulations. California's neighbors Arizona and Nevada have some of the country's most relaxed gun laws; unlike California, they don't require require background checks in private sales.

Another problem is that there are over 300 million guns in America—even if everyone wanted to, how could you control a supply that large, especially when surreptitious person-to-person exchanges are also a liability.

"They control gun shows in California because they check on those, but if you're just a guy in a bar and I'm talking to you, and I say, 'I'm looking for a gun,' and you say, 'Well, my friend Jerry's got a gun, and he wants to sell. I'll call him up on my cell phone here and he'll bring it down. What are you willing to pay for it?'" said William Vizzard, professor emeritus at California State University, Sacramento, and author of Shots in the Dark: Policy Politics and Symbolism of Gun Control. "How do you control that?"

For the Minnesota cops dealing with Ralph Gilbertson, his guns, and his imaginary CIA agents, the problem is less abstract: What do you do when people are concerned about someone who has both guns and potential mental health issues?Police may have acted extra-judiciously in this case, but legally, they don't have many options.

"The street cops nowadays have to be psychologists," Lieutenant Mike Flaherty, a Richfield Police Department spokesman, told the Star-Tribune. "People don't wear nameplates saying 'paranoid schizophrenic.' So the police have to go in there and make judgment calls... Is he crazy dangerous, or is he the crazy uncle? We have to make that decision and let the legal system sort it out."

EDITOR’S NOTE: On Monday, California Attorney General Kamala Harris asked for an annual $4.7 million increase for the Armed and Prohibited Persons program.

“The Armed and Prohibited Persons List is extensive, and it grows every day,” Harris told Capital Public Radio. “It’s not just some list that sits there and we just chip away at it. Every day, names are added to that list. I need a lot more resources, frankly, to meet the challenge of — not only just reducing — but I want to eliminate that backlog.”