I will never understand the authoritarian mind. Here’s one from the mid-nineties. The laws have changed since then, but . . .
My client got into verbal argument with his neighbor in the street of his mobile home park. The neighbor felt offended and called the cops and said my client was crazy and had guns. So the cops came and took him into custody on a “5150” and transported him for an involuntary 48-hour evaluation at the local mental health facility. Of course, they confiscated all of his firearms. The mental health facility observed him for two hours and concluded there was nothing wrong with him and released him. So there was no hint of a legal inference that he was a danger to himself or others, and the incident with his neighbors had nothing to do with guns, so now they have to give him his guns back, right? Not in his county.
He followed all of the procedures to get his guns back. He filed the right documents; he went through the background check. He paid all the necessary fees. But, you see, there’s this police department policy regarding return of firearms. Honestly, the only way I can describe that policy is “Fuck you.” So they still wouldn’t give him his guns back. He had to get a court order, they said. So he went to the courthouse and filed the right papers and the clerk set it for a hearing. But when he got to the hearing, his case wasn’t called. So, after waiting for two hours, he finally got the judge’s attention and asked about his case. Oh, sorry, he didn’t follow the rules of the “Law and Motion Calendar.” He was supposed to call in and find out what the “tentative ruling” was the day before. The tentative ruling was that his request was denied because the police department filed papers opposing him and he didn’t file any response. If you disagree with the ruling, you have to call everybody and ask to be heard in person. He didn’t know to call, so the tentative ruling became the final ruling so too bad. What can he do now? Sorry, the judge can’t give you legal advice. Tough luck.
I figured out what to do. The matter was actually a “Special Proceeding” that required an evidentiary hearing and didn’t belong on the Law and Motion Calendar. Somehow they had been doing this for years and I seemed to have been the only lawyer to ever point it out. So I got the order set aside and set for a real hearing. Now all I had to do was serve official notice of the hearing and subpoena the confiscating officers. Apparently that pissed the department off.
I got the notice and subpoena issued by the court clerk. The law says you have to serve police officers by leaving the papers at their place of business – the police department. (Nobody wants cops being chased around on the street by process servers.) Now, normally there is a deposit for their time required in order to subpoena a police officer in a civil case. But that doesn’t apply when the officer is an actual party to the case – the actual person you are suing. That’s what caused the fun. I kinda saw it coming.
I had just hired a new secretary and it was her first day. I asked her to come with me and just watch. We went to the front counter at the police department. She was nervous. Maybe I should have been. I told the deputy at the desk if this was where I served subpoenas on officers. She said yes, and there would be a $300 deposit. I pointed out that it was not that kind of subpoena because the officers were parties; that I just wanted to be sure this was the right place. She said she wouldn’t “accept” it without the deposit. I told her that it wasn’t necessary for her to “accept” it. She said I wouldn’t “be permitted” to leave the documents without the deposit. I explained to her that I wasn’t asking her permission and laid them on the counter.
At this point, the Lieutenant, who had been listening from the next room, came out from behind the counter walked up to me nose to nose and said “You aren’t listening. She told you. You can’t leave the documents here without a deposit?” I told the Lieutenant that I had already served the papers and that I was going to leave now. He said “You are directed to pick up those papers and take them with you.” “Directed!” Wow! I told him I was sorry he didn’t understand, but the papers were legally served. He demanded that I “comply” with his “order” to take the papers back. “Comply!” Wow! Where have I heard that before? I said I was not going to argue with him and I was simply going to leave.
So the Lieutenant went over to the counter, picked up the papers, walked over to the shredder and fed them in! We left. My new secretary was shaking all over.
Now, I have said it a thousand times: Never attempt to avoid service of process. If you do, the probable result will be that you have been legally served and won’t know what you have been served with. Your lawyer’s worst nightmare. What the Lieutenant did was just plain stupid. But he sure showed me who was boss!
So I decided to have a little fun. I called the County Counsel who was representing the cops and the department. A good and reasonable guy. I told him that I served papers on his officers but the Lieutenant shredded them, and he could read all about it in my declaration attached to my Proof of Service filed with the court, which would be the last thing filed so the first thing the judge saw. He cursed under his breath. I asked what was in it for me if I gave him a copy of papers. He asked me nicely, so I took copies to him. I told him that under the circumstances I was going to ask for a contempt of court citation against the officers and the Lieutenant.
A couple of hours later I got a call back from County Counsel. They would agree to an order returning my client’s guns. He also told me that this was the only time, apparently in recorded history, that this police department was forced to return confiscated firearms.
I invite anyone to come up with an explanation for the Lieutenant’s behavior. I am at a loss to understand what was going through his mind. The papers were a legal notice of a court hearing and a court order to appear. I was an attorney duly authorized by law to serve papers in cases in which I am attorney of record. “Officer of the Court” is usually an overblown concept, but in this case I truly was one. It’s a crime to interfere with a process server. It’s a contempt of court (and a crime) to disobey a court order, like a subpoena. Even if he was right, didn’t he know that all he had to do was give the papers to County Counsel who would file a motion to quash my subpoena. Did his sense of importance cloud his mind? Was he that ignorant? Did he think only police officers can issue orders? Did he see himself above the law? Why did he care? I still don’t get it. But I know what I am up against.
Postscript: I am a “trained professional” [cough]. Don’t try this on your own. Judges have ruled that you must obey a cop’s orders even if that order appears to be illegal. Judges have also ruled that you don’t have to obey an illegal order and if you do that’s your own damn fault. Which is it? The answer: The one that means you lose and the cops win. That’s a story for another day.