Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat from the Blue to Gold studio on the legal authority to seize a gun during a suicide or mental health call. The question comes from an officer in Jefferson County, Colorado. Anthony walks through the three ways the government gets to seize property, why Caniglia v. Strom keeps community caretaking out of the home, and two federal cases that let officers hold a firearm for safekeeping while the person is evaluated.

The question comes from an officer in Jeff Co, Colorado. Jefferson County, Colorado. He’s talking about the legal authority to seize a firearm during an attempted suicide call.

So you imagine you get to the scene, you arrive, and this person has tried to take their life with a firearm. Well, if they actually did shoot themselves and they lived, they’re going to obviously go to the hospital, and concurrently they’re also going to be mentally evaluated. But let’s say that they didn’t actually use the firearm. This is just discussing it with other people. I’m going to kill myself. They’re sending text messages to their family, to their ex-girlfriend, and so forth. Well, what about there? Can we seize a firearm there?

When is the government allowed to seize property?

So, generally speaking, the government is allowed to seize property under three broad categories. There’s more categories than this, but generally speaking, in the law enforcement world, it’s three broad categories.

Number one is that it’s forfeited. This is where, like, you use a car to deliver drugs, and the government wants to forfeit your car because it’s been used in the act of a crime. Okay, that doesn’t apply here.

The next one is the item relates to a crime. It is evidence of a crime. It is the fruits or instrumentalities of a crime. Well, that doesn’t apply here either, because, generally speaking, trying to commit suicide in and of itself is not a crime. You may have other crimes. Maybe the possession of the firearm is unlawful because the person is a prohibited person. But the actual act of committing suicide is not a crime that I’m aware of in any state. I could be wrong.

And then the final one is under community caretaking. Community caretaking is when law enforcement officers are trying to do those things that do not neatly fit within criminal investigations. This is your inventory searches. This is your disabled vehicles and helping somebody out. This is your medical calls and so forth. This is generally community caretaking.

Does community caretaking apply to vehicles and to homes?

Now, we do know that community caretaking has applied to vehicles for many, many years, and to people outside of their homes. The case is Cady v. Dombrowski, U.S. Supreme Court, 1973. That was where Dombrowski allegedly had a firearm in his vehicle after he was arrested for a DWI, and the officers went into the car to recover it under community caretaking, and they found evidence of a murder.

Now we also have Caniglia v. Strom. This is where Edward Caniglia was talking about suicidal stuff, telling his wife, why don’t you put me out of my misery and shoot me, and so forth, after they were verbally arguing. The police showed up. They got him to consensually go to the hospital to get checked out. They then went into the home after he was gone. And according to the facts of the case, the officers went to the home primarily to seize his firearm, without any kind of judicial order, without any kind of consent. What did they call it? They called it community caretaking.

Well, the U.S. Supreme Court made it very clear that community caretaking does not get us into homes. You need the emergency aid exception. You need objective reasons to believe that an emergency exists.

Can community caretaking apply once you are lawfully inside a home?

Now, once you’re in a home, community caretaking can apply. I’ll give you a great example. You’re inside of a home because of a suicidal issue, and the guy goes to the hospital, either voluntarily or involuntarily. Let’s just say involuntarily, to make our case a little harder. And you think that there’s a candle lit in the back bedroom. So you go into the back bedroom to blow out the candle, so you don’t have this lighted candle while the guy is gone. You don’t want any kind of fire hazards and so forth. And while back there, you see drugs in plain view. The point is, that would be community caretaking. You’re going back there to help secure this person’s home from damage, and securing it from theft and so forth. Locking the doors and so forth. That’s community caretaking.

Can you seize the firearm while the person is taken for evaluation?

Now, back to the issue at hand. We’re inside of a home. We’re there lawfully because we have some exigency, and the guy is going to go to the hospital involuntarily, let’s say. Can you seize the firearm? Well, generally speaking, the answer is probably. Probably. Some people are going to disagree with me on this, and that’s totally fine. Well, one thing we won’t disagree on, though, is if you are going to seize a firearm, you should have a really good reason.

A lot of these cases are pre-Caniglia, so they don’t talk about that. And that’s important, because in the old days, many, many courts used to believe that community caretaking is actually what was the doctrine that got you into homes. The problem with community caretaking is that it does not require any exigency. It just requires, hey, I’m just trying to help people, protect their property, and so forth. So we know, though, from Strom that we actually need exigency to get into a home. So a lot of these cases talk about entering homes to go grab firearms. We can’t do that, unless you have a judicial order or some kind of exigency or some kind of consent. But the actual act of seizing the firearm would still fall under community caretaking if you had lawful access.

What did Rodriguez v. City of San Jose say about seizing guns from someone in a mental health crisis?

A case from 2019 that’s instructive on this is Rodriguez v. City of San Jose. It’s a Ninth Circuit case from 2019. What the court said: a seizure of a firearm in the possession or control of a person who has been detained because of an acute mental health episode likewise responds to an immediate threat to community safety.

Consider these factors, they said. Number one, the public safety interest. Based on what they’re saying, like, hey, I’m going to kill everybody at my work. I got fired, I got the pink slip, I’m going to kill everybody at my work. Would there be maybe some community caretaking interest to kind of temporarily hold on to the firearm? Second, the urgency of that public interest. He’s been talking about it. He has a manifesto. He’s been telling everybody he’s going to kill people at work. And the individual property, liberty, and privacy interests. We don’t take this up lightly. We don’t take anybody’s property lightly. We want to make good case law. We want to do the right thing out there. It must be balanced based on all of the facts available to an objectively reasonable officer, when asking whether such a seizure of a firearm falls within an exception to the warrant requirement, which would be here community caretaking.

Do you have to give the gun back when the person is released?

Now, the issue, though, is giving the firearm back. So I’ve taught my officers, hey, look, you got this guy who’s really in a mental crisis, and he’s going to be involuntarily committed. Your law does not allow you to just seize firearms without a judicial order, to seize them and to not give them back unless he goes to court and so forth, some kind of ex parte motion and hearing. But you’re like, man, this guy really sounded very serious. I think he’s definitely a danger to himself or others. So I’m going to seize the firearm that’s right on the kitchen table. I’m inside the house. I’m going to seize it. It’s right on the kitchen table. You’re not searching for the firearms. You’re not looking under his bed. You’re not looking into his nightstand. You don’t have the authority to do that. But you’re simply trying to hold on to it while he’s going to get his evaluation.

And then you’re saying to yourself, a counterargument to this logic here is that, well, Anthony, hold on. If he gets out, then that means that the doctor has actually signed off on him being okay, right? Well, okay. So yes, I do believe he can come down to your police station and get his gun back. You’re not going to be able to just refuse to give him his gun back if he has been released and he’s not an unlawful possessor, unless you’re going to go through judicial process to disarm him.

Well, at the same time, though, the courts are going to give you some slack here. It’s still a very dangerous situation, based on what you see here. And this is one case that’s called Mora v. City of Gaithersburg, Maryland. This is a case from 2008 from the Fourth Circuit. They did say Mora possessed weapons that would render him capable of causing great harm to himself and the community once he returned from the hospital, and thus we decided to secure all weapons and ammunition for safekeeping, to protect Mr. Mora and the public. This public safety rationale was a sound basis for seizing Mora’s weapons, whether or not they were contraband or evidence.

But okay, if he’s released, that means he’s not a danger, right? Well, look, the Fourth Circuit did say: Mora argues that once he’s released, he must not be a danger to himself or others. This argument implies that once police transferred Mora to a psychiatrist, the responsibility for ensuring public safety passed to the psychiatrist as well. The officers could wash their hands of the situation, their job done. But protecting public safety is why police exist, and nothing in Maryland’s involuntary admission statute supports the remarkable suggestion that by handing Mora over to doctors, the officers relinquished authority over the thing for which they are under law chiefly responsible, public safety.

Should you seize the firearm every time?

Look, I’m not telling you that this should be done every single time. I’m not telling you that it should be done at all. I’m just saying, though, as a former law enforcement officer, there were definitely some situations where I was in that I thought to myself, man, this guy is going to hurt somebody, especially somebody else. Something is going on in his life that is so traumatic and stressful that he’s likely, once he gets out, yeah, he might try to play the doctors a little bit and get out of his involuntary commitment. I think he’s going to hurt somebody. And there are situations where I think that would be appropriate, to temporarily seize the firearm to try to cool the situation down a little bit. Make it a little bit harder for him to instantly get out of the hospital and then go do his deed.

But at the end of the day, though, if you really, truly believe that, you should also try to go to court and have a hearing on it, and disarm him while he’s going through his issues. It’s complicated. And that’s another reason why I think it’s fair. Whatever side you’re on in the equation here, you can tell that I’m an extremely avid Second Amendment supporter. Avid. I mean, it doesn’t get any more supportive than me, I don’t think. But at the end of the day, I’m also trying to do the things that just make sense, to help our community from the mass shootings and so forth. The people that really should be disarmed while they’re going through their mental crisis and so forth. So this is just one way to kind of help. It’s that temporary detention and seizure of the firearm, kind of like under safekeeping. But at the end of the day, I’m sure that you guys will have your different opinion on this. I respect it all. It’s a very tough situation, regardless.

The short version

  • The government seizes property under three broad categories: forfeiture, evidence of a crime, and community caretaking. Attempting suicide is not a crime that I’m aware of in any state, so it comes down to community caretaking.
  • Caniglia v. Strom made it very clear that community caretaking does not get us into homes. You need the emergency aid exception, objective reasons to believe an emergency exists.
  • Once you are lawfully inside, the actual act of seizing the firearm would still fall under community caretaking if you had lawful access. You’re not searching for firearms. You’re holding the one on the kitchen table while he gets his evaluation.
  • Rodriguez v. City of San Jose (9th Cir. 2019) and Mora v. City of Gaithersburg (4th Cir. 2008) both upheld seizing weapons for safekeeping from a person in an acute mental health episode.
  • If he is released and is not an unlawful possessor, he can come get his gun back, unless you go through judicial process to disarm him. If you really, truly believe he’s a danger, go to court and have a hearing on it.

Until next time, my friends, you stay safe.

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This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: EP#839