Legal Commentary

Father Must Remove All Guns from Home as Condition of Under-18-Year-Old Son?s Probation

By Eugene Volokh

An interesting decision, People v. Javier A. (Cal. Ct. App. May 24). Javier A. was on probation, so when he was detained on suspicion of another crime, the police searched his home; Javier?s father, Emilio A., told the police there were two guns in the home. It turned out that one had been kept ? apparently for just two days ? in the entertainment cabinet in the living room, which was the room Javier was sleeping in. Javier also ?told the officers that ?he recently checked the gun [in the living room entertainment cabinet] to see if it was loaded.?? Based on Javier?s having handled the gun, he was convicted of ?constructive possession? of the gun by a minor, in violation of Cal. Penal Code § 12101.

The prosecution had asked that Javier be placed in a juvenile ?camp,? ?placement in light of appellant?s gang involvement and prior history,? but the juvenile court sentenced Javier to probation and ?house arrest? but with a condition: ?I want no weapons anymore at your house. Dad, I?m sorry, no weapons, none.? (This apparently referred to ?guns or other deadly or dangerous weapons.?) And the Court of Appeal upheld this, on the grounds that this was ?reasonable in light of the facts that appellant was on probation at the time of the charged offense for possession of a firearm and had admitted to participating in gang activity.?

Note that the logic of this would apply not just to juveniles, but also to adults. Thus, if a husband is sentenced to probation, presumably the court could insist that his wife, with whom the husband lived, couldn?t keep guns at home, even in a locked case to which only she had access. Likewise, if an adult roommate is sentenced to probation, the court could insist that any roommates with whom he lives not keep guns in their house or apartment, even locked up in their own rooms. 

Of course I see the logic of such conditions, since locked doors are sometimes unlocked, others? keys might be available, and combinations could be shared. My point here is simply that the conditions end up burdening the self-defense rights of the other residents of the house and not just of the probationer. (For more on the related topic of how the statutory prohibitions on gun possession by some people, such as felons, might affect their spouses and other housemates, see PDF p. 57 of this article.)

The opinion does say that

Appellant also ignores the fact that the ?someone? on whose action appellant?s probation was dependent was not just anyone, but his father, who, as a parent, had various legal responsibilities in the disposition of the juvenile delinquency proceedings involving his minor child. These responsibilities certainly could include keeping weapons out of the home he provided for appellant.

But it seems to me that there?s no inherent reason why this would limit the logic of the rest of the opinion ? plus of course the probation order applied to all guns kept in the house, not just those owned by the father but also by the other adult occupants who did not have legal responsibilities for the child (here, the grandmother, sister, and brother-in-law).

Full post as published by The Volokh Conspiracy on May 26, 2010 (boomark / email).