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I was taken into custody (not Aarrested) on a 5150. The Sheriffs

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I was taken into custody (not Aarrested) on a 5150. The Sheriffs asked for the combo on my gun safe so they could confiscate the guns. They did, all 27 of them; mostly which were cowboy type rifles and pistols including a few 22's. I've contacted the sheriffs property evidence room and left message but they don't call back. I know I can't pick them up but can a family member that does not live with me pick them up? By the way they were all legal. The 2nd question I have is since my firearms prohibition is five years in the state of California can I legally have the firearm in Montana? I'm a 20 year military veteran with a perfect driving record and absolutely no arrest record ever. I just had the worst night of my life!

Hello and thanks so much for choosing this forum to pose your important legal question. I will do my best to give you some honest and accurate guidance as I answer your question.


  1. I am a licensed attorney, and I will be glad to try and answer your question. I hope that the following information will be helpful to you, but please just write back if you have any follow-up questions or need clarification on anything after reviewing the following information. I hope this matter gets resolved appropriately for you. Please allow me to take this opportunity say a sincere thanks for your military service to our nation.
  2. "I know I can't pick them up but can a family member that does not live with me pick them up?" Unfortunately, this answer out of necessity will not be definitive. What I mean by that statement is that this is a matter left to the discretion of the local law enforcement agency rather than being governed by state-wide statute. My best suggestion would be for you and/or the family member to continue trying to contact the sheriff's department, explain that the firearms are legal, would not be in your possession, and the relative would be willing to submit to a background check or whatever would be required for clearance. Since they have not returned your calls, I am afraid you may need to resort to a personal visit or correspondence by e-mail or letter. I wish things were different, but unfortunately such communication difficulties are not new territory when it comes to governmental agencies as I am sure you already know.
  3. "The 2nd question I have is since my firearms prohibition is five years in the state of California can I legally have the firearm in Montana?" As you likely are already aware, generally there would be a five-year restriction on possession/ownership in California unless you were granted an early termination. When it comes to Montana, the California Department of Justice will forward the mental health information. In other words, yes barring some oversight you will be listed in the National Instant Criminal Background Check System (NICS). Montana has just about the most liberal firearms ownership/possession laws in the land. However, the law does provide that the privilege of concealed carry be denied to one who, "has been adjudicated in a criminal or civil proceeding in any state or federal court to be mentally ill, mentally defective, or mentally disabled and is still subject to a disposition order of that court". Montana Code Annotated § 45-8-321. As to non-concealed carry permit situations, however, Montana law is notoriously permissive. There is simply no state-wide "possessor statute" as in most jurisdictions. Rather, the state preemption doctrine approach allows local governments to prohibit firearms possession among felons and what the law inartfully deems mental incompetents. Thus, the botXXXXX XXXXXne is you would need to contact the local law enforcement agency (sheriff) of where you would plan to reside in Montana and inquire as to their particular approach.
  4. I hope that makes sense, but please do not hesitate to write back if needed. I shall be signing off soon for the night. Please rest assured, however, that I will be sure to check for any updated posts from you when I return to this online forum.


I hope that this information has been helpful to you. If we can be of any further assistance please free to use our service again. Best wishes for a successful outcome.


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The information provided is general in nature only and should not be construed as legal advice. By using this forum, you acknowledge that no attorney-client relationship has been created between you and Benjamin M. Burt, Jr., Esq. You should always consult with a lawyer in your state.

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