A man with a history bipolar episodes has a breakdown, threatens his sister and father, the police are called and the man says he killed a pimp and so the police sweep the house and confiscate a whole bunch of guns and knives. Some of this stuff belongs to the father. But the father doesn’t get involved in the criminal proceedings and so he loses his chance to claim his rights to the guns and/or their sale proceeds.

EDWARD A. BARSCH, Plaintiff,
v.
MICHAEL O’TOOLE, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C 07-00615 SI
2007 U.S. Dist. LEXIS 80648

Decided October 31, 2007, in Opinion by District Judge Susan Illson:

Pro se plaintiff Edward Barsch is the father of Jean and Wayne Barsch. On January 31, 2006, Jean contacted the Hayward Police Department (HPD) and told the police that her brother, Wayne, had threatened to kill her. Complaint P 19; see also Luevano Decl. Ex. A (Hayward Police Department reports). A statement signed by Jean Barsch for the Hayward Police Department states,

I have been storing my brother, Wayne’s guns since about 1997. Wayne was 5150’d and the guns were confiscated from him. Wayne has been calling me over the years, harassing me about wanting the guns back. I finally got tired of Wayne calling me and threatening me over the guns so on Sunday, 01-29-2006, I took all of the guns to my dad’s house in Hayward. I did not want to deal with Wayne anymore.

In the past, Wayne has made threats to slice an apple on my mother’s throat with the Samurai sword that I had in storage. Wayne wanted to prove that he is a true Ninja. I knew I would never give him the sword because I did not feel it was safe to do so. The sword is actually my father’s property. Wayne thinks my father gave it to him, but he never did.

The police arrest Wayne, he tells them a bizarre (apparently fictional) story about how he killed a pimp the night before, the police search Wayne’s home and confiscate a lot of weapons.

Wayne was criminally prosecuted for possession of assault weapons, criminal threats, violation of a court order, and being a convicted felon in possession of a firearm. See May 4, 2007 Hom Decl. Ex. B at 000063-73. Following his conviction, the seized weapons were sold or destroyed pursuant to court orders issued by the Alameda Superior Court. Id. at 000074-85. The complaint alleges that at the time of the sale, the “estimated value” of the weapons collection was more than $ 30,000, but that “proceeds from the police sale as returned to Wayne Barsch was $ 4714.” Complaint at 6:30-31

This case is after the criminal case and is filed by the Wayne’s father regarding those weapons.

Plaintiff filed this lawsuit on January 30, 2007, alleging claims under 42 U.S.C. § 1983 for violations of the First, Second, Fourth, and Fifth Amendments of the United States Constitution, and various claims under California law. 5 Plaintiff has sued eleven Hayward Police Department officers, the Hayward City Attorney, the Alameda County District Attorney, and the Alameda County Assistant District Attorney. Under his Fourth Amendment claim, plaintiff challenges the warrantless search of his residence, alleging that he never gave police permission to enter his home (contrary to the statement in the Hayward Police Department Incident Report), and also that “[i]f indeed there was a dead whore or pimp in plaintiff’s house then there is no time exigency and the police would have had sufficient time to get a legitimate search warrant and act legally.” Id. at 9:24-26. Plaintiff also alleges that when the police officers were in his home confiscating weapons, he requested an inventory of the seized property, and that officers refused his request. Id. at 5:28-29.

The Court dismisses claims under the Fourth amendments and finding no collateral estoppel issue,

the Court finds it necessary to reach the merits of plaintiff’s due process claim. The Court directs the parties to provide supplemental briefs, with supporting declarations and evidence as is appropriate, regarding whether the procedures followed by defendants violated the Due Process Clause of the Fourteenth Amendment, including whether plaintiff had an opportunity to be heard regarding his claim that he owned some of the seized weapons. See generally Zimmerman v. City of Oakland, 255 F.3d 734 (9th Cir. 2001); Conner v. City of Santa Ana, 897 F.2d 1487 (9th Cir. 1990).

After supplemental briefs, the plaintiff lost, November 26, 2007. And again later on appeal to the Ninth Circuit, before Circuit Judges Beezer, Fenandez and Fletcher, February 18, 2009:

The district court correctly determined that Barsch’s Fourth Amendment rights were not violated when police officers entered his house in conducting a protective sweep based on reports of multiple guns on this premises in the possession of Barsch’s bipolar son, who reportedly was not taking his medication, making death threats, and saying that he had stabbed someone the night before. See Maryland v. Buie, 494 U.S. 325, 327 (1990) (holding that officers are not required to obtain a warrant for a protective sweep if it is “a quick and limited search of the premises” and done to protect the safety of the officers and others).

The district court also correctly determined that Barsch’s Fourteenth Amendment due process rights were not violated by the sale/destruction of the weapons found in his house, because Barsch knew that the weapons were seized in connection with his son’s criminal case, that they were subject to being sold or destroyed, and yet he failed to intervene in his son’s criminal proceedings to explain any claim that he had to the seized weapons. See Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th Cir. 1998) (“The base requirement of the Due Process Clause is that a person deprived of property be given an opportunity to be heard at a meaningful time and in a meaningful manner.” (citation and internal quotations omitted)).

Writ of cert to the Supreme Court denied.

See also this 2009 article Gun Collection Confiscated that claims the father is an 82 year old world war 2 veteran who lost a very valuable custom rifle in this incident and feels disillusioned by an intrusive police search based on his son’s fabricated story of a “dead prostitute”. It says Wayne did seven months and was released.

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