Attorney Jeff Hammerschmidt Comments on California’s Gun Confiscation Program

Attorney, Jeffery T. Hammerschmidt, comments on California’s gun confiscation program in the following article by Eyewitness News:

“Eyewitness News Investigates a controversial state gun confiscation program that went online back in 2007.  It’s mission is to take guns away from criminals and those with severe mental illness.  Recently, the program launched a local man into the spotlight.

After taking a closer look at the program, we found several mistakes that have been made along the way, as well as flaws that have been documented by state officials.

In the quiet Southern California neighborhood of Upland, Lynette Phillips lives a quiet, ordinary life. But in the spring of 2013, it was interrupted by a loud knock on the door. Phillips was greeted by police officers.

Phillips says, “It was traumatizing.”

And shocking for the retired nurse, now a stay at home grandma, who’d never been in trouble before.

“My first thought was ‘oh no what did my kid do.’ ”

The officers were there for one thing.

“They were looking for the guns, because one was registered to me.”

Phillips didn’t know yet, but her name was listed in California’s Armed and Prohibited Persons Systems. She was now considered someone who wasn’t allowed to own, or be around, firearms.  So, all of her husband’s guns were confiscated, but not before being laid out on the front porch for neighbors to see.

“It was scary, embarrassing.”

Rewind to a night three months earlier.  Phillips, who tells us she suffers from depression and anxiety, had an adverse reaction while switching anti-depressant medications.  So, she checked herself into a local mental health hospital for some quick relief.

Phillips says, “The first thing I said to her is I just want you to know that I am not a threat to myself or to anyone, I just can’t stop crying. Then she started asking me some really bizarre questions.”

Like what she would do if she got into a car accident, which Phillips later found out the nurse used to deem her suicidal, writing this in her notes, “You stated that if you got into a car accident you wouldn’t care and you drive yourself off a cliff.”

Phillips says, “That was never said. That was false documentation.”

That is what landed Phillips on the “APPS” list.  It’s a database that as of December 2014, included 17,479 people, associated with nearly 34,868 firearms and 1,419 assault rifles.  So far, more than 3,000 guns have been seized.

The goal is to get guns out of the hands of dangerous, or potentially dangerous people.  That includes felons, people with any domestic violence charge and those placed on mental health holds after being involuntarily committed.

Local attorney Jeff Hammerschmidt says, “I think they need to be a lot more careful.”

Eyewitness News took a deeper look into the program, and found several cases where mistakes were made.  Michael Merritt of Bakersfield had 18 of his guns seized for a felony charge from the 1970’s that no longer exists.

Merritt says, “I almost fainted and passed out when they said they wanted all of my guns.”

His guns were later returned.

In November, Clovis business owner Albert Sheakalee had his names and 541 of his seized guns put on a big display by state agents.  The licensed gun dealer had previously been put on a mental health hold.  The state says Sheakalee had been committed involuntarily, but his attorney argues Sheakalee sought help on his own for a temporary crisis.

Sheakalee’s attorney Mark Coleman says, “He’s never bee adjudicated by the court as being dangerous, he’s never been adjudicated by a mental health professional as being dangerous.”

According to reports and audits dug up by Eyewitness News, problems with the APPS program run deep, especially in regards to mental health tracking.

State law requires all California mental health facilities to report to the Department of Justice if a person has been involuntarily committed.  But, according to a section of a 100-page state audit, 22 key facilities were missing from the DOJ list, meaning potentially dangerous people went unreported.  The report went on to say incorrect decisions were being made due to a lack of supervision.  But, Hammershmidt says even more alarming is the amount of time, in many cases, it takes for guns to be seized.  In Sheakalee’s case, the raid didn’t happen for six months.  For Phillips, it took three months.

“That doesn’t make sense.  If they’re that dangerous it should be a priority and it should be done right away. In three months someone could be dead,” says Hammerschmidt.

We contacted the Department of Justice, in hopes of an interview with attorney general Kamala Harris, who oversees the program.  Our request was denied.

The DOJ did answer our question regarding how many mistakes have been made, saying it takes extreme measures to confirm information before taking enforcement action, but says there have been rare instances in which firearms have been returned.

Phillips and her husband also got their guns back.  While she says the intent behind the apps program is good, she says the way it’s being carried out could also be potentially harmful.

“I’m afraid that’s going to happen to a lot of people, people who may need mental health attention mentally will not seek it out because of this,” says Phillips.

Sheakalee’s attorney also says he’s confident his client will get his guns back.”

Jeffrey T. Hammerschmidt is a Fresno County criminal defense attorney who represents men and women in criminal matters in state and federal courts. For more than 12 years Mr. Hammerschmidt worked as a Deputy District Attorney for the County of Fresno, where he served as President of the Fresno County Prosecutors Association. He also served as senior legal advisor to the Fresno Police Department, an agency of more than 800 officers, where he advised the Chief of Police’s executive staff on various legal issues. Mr. Hammerschmidt has a strong reputation in the Fresno community for his knowledge of the law. Primarily representing professionals including white collar, felony and misdemeanor DUI, workers’ compensation premium fraud, and federal and state drug cases. He has also been featured in prominent media publications and interviewed by Court TV for his role in prosecuting a high profile triple homicide case, People v. Dana Ewell. Mr. Hammerschmidt has appeared on American Justice, Court TV’s Forensic Files; Court TV’s Dominick Dunne’s Power, Privilege, and Justice; and most recently he was featured on The Discovery Channel’s Solved. Mr. Hammerschmidt has been named to the Northern California Super Lawyers List for the last six years and was honored with the distinction of Northern California Super Lawyers Top 100 List in 2015. Additionally, Mr. Hammerschmidt was appointed as the Chair to the California State Bar Criminal Law Advisory Commission in October of 2015, where he will serve for one year.