Thursday, December 17, 2015
Gun Violence Restraining Orders in California
On January 1, 2016, courts in California will begin issuing "Gun Violence Restraining Orders".
The procedures will be similar to those that already cover situations of domestic violence and civil harassment, with a few notable exceptions.
What is a Gun Violence Restraining Order?
As its name implies, a Gun Violence Restraining Order may prohibit a specific individual from owning or possession firearms and ammunition.
The person seeking the order is called the "Petitioner". The person who is subject to the order is called the "Respondent".
A judge will grant a Gun Violence Restraining Order if the petitioner can prove 2 things:
1) That the respondent poses a significant danger of personal injury to himself and / or others by having possession of a firearm, AND
2) That other, less-restrictive alternatives have been tried and found to be ineffective, or are inadequate and inappropriate for the circumstances.
If the order is granted, the subject must surrender all firearms and ammunition in his possession to the local police or he may sell them to a licensed firearms dealer within 24 hours.
Who may apply for a Gun Violence Restraining Order?
Immediate family members of the subject may petition the court for a gun violence restraining order. "Immediate family members" are defined as the subject's spouse, domestic partner, parent, child, sibling, household member, or person who had resided in the subject's household within the prior 6 months.
At the moment, the law does not allow for girlfriends, boyfriends, classmates, coworkers or other associates to petition for gun violence restraining orders if those people do not currently live with the subject and have not lived with the subject during the previous 6 months.
One area in which gun violence restraining orders differ from other types of restraining orders: Police may directly petition the civil court for an injunction against an individual. With other types of restraining orders, the person who has been the victim of harassment must petition the court on his or her own behalf.
What is the procedure for obtaining a Gun Violence Restraining Order?
A Gun Violence Restraining Order may be issued by a judge on a temporary emergency basis, ex parte, or after a duly-noticed hearing.
A judge may issue a temporary emergency Gun Violence Restraining Order if a police officer asserts, and the court finds, that "reasonable cause" exists to believe that the subject poses an immediate danger to himself or others, and that less-restrictive alternatives are inadequate. A temporary emergency order may remain in effect for up to 21 days.
The court may issue an ex parte order upon the application of a police officer or an immediate family member of the subject. At the hearing on an ex parte order, the petitioner makes his or her arguments to a judge, but the respondent has no legal right to any "notice" or opportunity to present his own argument. The ex parte order will remain in effect for up to 21 days, and may be extended for up to 1 year after a duly-noticed hearing.
Within 21 days of the issuance of an ex parte order, the respondent must be given an opportunity to appear in court and explain, excuse, justify or deny any of the allegations contained in the petition. At the hearing, the petitioner bears the burden of proving any allegations by "clear and convincing evidence".
What criteria will a judge consider at the hearing?
Section 18155 of the California Penal Code enumerates several criteria that a judge may consider in determining whether or not the respondent poses a "significant danger or personal injury to himself or others". Most of these criteria are pretty intuitive: the person has recently made threats of violence against himself or others, the person has engaged in a pattern of violent acts within the previous year, or has a history of recklessly brandishing weapons, etc.
Some of the criteria, though, make almost no sense. For example, PC 18155(b)(1)(G) says that a judge may consider evidence that the respondent has acquired firearms or ammunition within the previous 6 months as proof that the person poses a "significant danger". Think about that for a second: simply purchasing a firearm and / or ammo may be considered proof that a person should not be allowed to possess firearms and / or ammo.
This new package of laws hasn't taken effect yet, so courts haven't had a chance to reinterpret all of the nuances. I have a lot of questions about how this will play out in practice, but all we can do is wait and see right now.
Everybody likes the idea of taking guns away from bad guys, but nobody likes "big government" arbitrarily curtailing our Constitutional rights. Stay tuned to see how this plays out.
If you or a loved one has questions about Gun Violence Restraining Orders in California, call our office for a free consultation. (714) 505-2468. Ask for John.
Thanks for reading.