John Brandstetter’s home was searched and his guns seized by Riverside police after he allowed a man with a warrant for his arrest to live there.
Brandstetter argues that the search warrant was illegally broad, and that the seizure of his weapons violated his rights to property and firearms.
His attorney, Donald Cook, argued his case Sept. 12 before the Ninth Circuit Court of Appeal, following a dismissal by California Central District Judge Fernando Aenlle-Rocha.
The circuit judge’s questions focused on the Second Amendment, and interrupted most of the attorneys’ prepared arguments.
Penal Code 33850, which became law in 2020, was central to the discussion: “(a) Any person who claims title to any firearm…that is in the custody or control of a…law enforcement agency and who wishes to have the firearm…returned shall make application for a determination by the Department of Justice as to whether the applicant is eligible to possess a firearm.”
Brandstetter did not file a form, despite being told he could do so 10 days after his guns were seized.
“Did (Riverside) know that (the guns) were not relevant to any investigation?” Ninth Circuit Judge Ryan Nelson asked.
“Yes, because they said, you can have them back, just go through that state law process,” Cook said.
“They told them that 10 days after this experience?” Nelson asked.
“Correct, so…” Cook said.
“Now you’re circling back to this initial question,” Nelson said.
“Yeah, I know, so why doesn’t he go through that process? Right? Well, the point is…” Cook said.
“You would, you’d rather sue. That’s the great American way,” Nelson said.
“Well, it’s more than that. As a practical matter, the police treat firearms as per se contraband…”
“I actually don’t disagree with you. And so I, I’m not criticizing you for doing it. But I think you could have done it both ways,” Nelson said, after holding up a hand.
Riverside city counsel Cecilia Rojas argued the city was just trying to follow the law.
“Can I ask you the practical question?” Nelson asked Rojas. “You’ve kept his firearms for four years. You know he is the legal owner. There is no indication, apparently, that these were involved in any crime. Why are you doing this? Why not just give him the firearms back?”
“Thank you for your question. It’s as simple as following the practices of Penal Code 33850. There’s no other mechanism for the city or RPD (Riverside Police Department) to return appellant his firearms,” Rojas said.
Nelson asked if Rojas’ opinion was based on the legality of the search warrant. Rojas said that, even if the search and seizure were found unconstitutional, they would be bound by Section 33850.
Circuit Judge Eric Miller also challenged Section 33850.
“How can any fee be justified? I mean, forget the Second Amendment: It’s his property; you took his property; you have no Fourth Amendment justification to hold his property. Don’t you have to give it back? How can you make him pay something to get it back?” Miller asked.
Rojas said that the attorney general would be a better respondent to the question, since they are the ones enforcing the Penal Code and processing Section 33850 forms.
“They’re the ones that are enforcing the Penal Code. We’re just following the Penal Code,” Rojas said.
Rojas argued that background checks have a legal tradition.
“These proper background checks, eligibility checks, are deeply rooted in history and tradition as (the 2020 Supreme Court case New York State Rifle & Pistol Association v. Bruen) were to say, and that’s why we would also argue that Bruen is not applicable to this,” Rojas said.
“I think that’s a pretty broad statement: to say that there is a history and tradition of requiring lawfully owned guns to go through another background check,” Nelson said.
“The purpose of Bruen is…,” Rojas said.
“The problem is, your arguments sort of play into his argument, which is that California and the cities in California don’t take the Second Amendment seriously. And that is the problem with this case. Just give him the guns back. I mean, what are you saying, the attorney general is going to come to you, and say you violated, and give you a violation citation?” Nelson said.
“Well, yeah, our argument is that we have no other mechanism to give him his firearms,” Rojas said.
“That’s not true. Here’s a mechanism: Get the guns out, take them to his house, and give them to him. That’s a mechanism. What’s going to happen?” Nelson said.
“The appellees (Riverside) will be violating the Penal Code,” Rojas said.
“And what’s going to happen? The attorney general is going to come and throw you in jail? They’re going to fine you?” Nelson said.
“It is not up to the appellees to not follow the law,” Rojas said.
“Look, we have two parties here who are both taking very frustrating positions. Because, I can’t give any credibility to your argument that you can’t do anything. I think you’re being very difficult in how you’re approaching this case,” Nelson said.
Rojas began her argument by saying that the court did not have proper jurisdiction.
The judges did not spend as much time addressing the search warrant issue.
“The overbroad search warrant, it’s a good issue. I know it hasn’t caught your attention like the Second Amendment, but it’s a good issue,” Cook said as he ended his argument.
Cook’s brief argues that Riverside police misled the judge who approved the search warrant. They implied that Kevin Gleason, the one with the warrant out for his arrest, was the sole resident of the house. They also did not inform the judge that Brandstetter was not involved in any criminal activity, his brief says.
“These omissions enabled defendants to obtain a warrant authorizing searching anywhere in Plaintiff’s home, and for seizing practically anything defendants found, as if Gleason was the sole resident and sole owner of all property, including firearms, vehicles, and electronic devices of any type, found at Plaintiff’s home,” his brief says.
The city’s reply brief argues that the search warrant application was not so recklessly designed as to break legal standards.
“Considering Gleason’s threats of violence, coupled with Victim’s statement that Gleason may have had access to several firearms show that there was probable cause to believe a crime had occurred, future crimes could occur, and that anyone at the Rosemead Residence could be involved in Gleason’s criminal activity. If Detective Turner’s affidavit had been supplemented with information about Appellant, his family, and his firearms, would the magistrate still have had a substantial basis that probable cause exists, as the Stanert standard requires? The answer remains yes. The various facts that Appellant asserts are actually not material for the purposes of establishing probable cause. ” the brief says.
Appellate Case No. 23-55739
Read the complaint here.
Read Aenlla-Rocha’s ruling to dismiss here.
Read Brandstetter’s brief here.
Read Riverside’s reply brief here.
Watch the oral argument here.
