I’ve seen a few bloggers link to this piece on a collector in California who had his guns seized from him and sold off by the police. What raised my interest was this:
“The city is pleased that the Ninth Circuit affirmed the entry of summary judgment in favor of its police officers,” Hom said.
Emphasis mine. Something seems wrong here. If the U.S. District Court threw the case out on a summary judgment, something would have to be legally wrong with his case, right? This would mean there are no issues of fact that need to be decided by trial. Sure enough, if you pull the actual decision from the case at U.S. District Court from 2007:
On this record, the Court concludes that plaintiff has not raised a triable issue of fact to defeat summary judgment on his due process claim. Plaintiff has not submitted any evidence suggesting that he did not have notice or an opportunity to be heard on his claim that he was the rightful owner of the seized weapons prior to their sale/destruction. Cf. Jordan v. City of Lake Oswego, 734 F.2d 1374, 1376Â (9th Cir. 1984) (“That he chose not to avail himself of this opportunity does not detract from our conclusion that the procedures utilized prior to his termination were sufficient to accord with the due process requirements of the federal Constitution.).
Looking for more information on this case, I found this wasn’t the first case Mr. Barsch has been a party to. In 1997, Barsch raised a Second Amendment claim in order to contest the seizure and destruction of a pistol in connection with a domestic violence issue, Ironically with the same defendant, Michael O’Toole. In that case, the appeals court said:
With respect to Barsch’s contention that his Second Amendment right to bear arms was violated, the district court did not err by dismissing this claim for lack of standing. See Hickman v. Block, 81 F.3d 98, 101 (9th Cir.), cert. denied, 117 S.Ct. 276 (1996) (“[T]he Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.”).
The district court also did not err by dismissing Barsch’s due process claims alleging that he was improperly denied the return of the handgun. Barsch was provided the opportunity to appear in state court to argue against the confiscation of the handgun. See United States v. Yochum (In re Yochum), 89 F.3d 661, 672 (9th Cir.1996).
Today, Heller would negate that argument, but this was in 1997. This is mere speculation on my part, but this whole thing screams “kook” to me. We know in the first case from 1997 he represented himself, because it mentions “Edward A. Barsch appeals pro se.” I’d bet money that he also represented himself pro se in this matter, made faulty and wrong legal arguments, and got a summary judgment against him.
If the authorities come into your house and take guns, the next call should be to a lawyer who’s experienced in practicing Second Amendment law if you ever want to see your guns again. I am not a fan of the asset forfeiture laws in this country, and there are many examples of people being truly railroaded by the system, but I don’t think this guy is among them. Some people are perfectly willing to give the authorities the rope with which they will hang them.
