California: "Gun Violence Restraining Orders"

[Tom Servo]

Governor Brown has signed AB-1014 into law. This was a reaction to the Elliot Rodger shooting four months back. Text of the law is here.

DIVISION 3.2. Gun Violence Restraining Orders
CHAPTER 1. General
18100. A gun violence restraining order is an order, in writing, signed by the court, prohibiting and enjoining a named person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition. This division establishes a civil restraining order process to accomplish that purpose.

There doesn't appear to be a stipulation for appeal, nor is there a limit to how long such an order can be made to last.

 

[NGIB]

Another reason I would never live in California. If I did live there I would be working on a serious plan to leave. Fighting a fight you can't win is just silly...

 

[Jo6pak]

So they don't know about the 4th and 6th Amendments in Cali either?

 

[KyJim]

I've done a quick skim of the bill's provisions. There are two provisions for temporary ex parte restraining orders, one taken out on an emergency basis on application by a law enforcement officer and the other by an immediate family member. An application by an LEO requires "reasonable cause" to believe the person presents an immediate danger to that person or another. For family members, there must be "substantial likelihood" of that.

The emergency orders expire no later than 21 days after issuance and a "normal" order requires a hearing and proof by clear and convincing evidence and is good for a year. It can be terminated early on request and can be extended upon a proper showing.

This is a VERY brief summary. My point is that it is not that bad.

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1014

 

[Frank Ettin]

...There are two provisions for temporary ex parte restraining orders, one taken out on an emergency basis on application by a law enforcement officer and the other by an immediate family member. An application by an LEO requires "reasonable cause" to believe the person presents an immediate danger to that person or another. For family members, there must be "substantial likelihood" of that.

The emergency orders expire no later than 21 days after issuance and a "normal" order requires a hearing and proof by clear and convincing evidence and is good for a year. It can be terminated early on request and can be extended upon a proper showing.

This is a VERY brief summary. My point is that it is not that bad...

I've also only glanced at the law, but I tend to agree. A possible concern, and I haven't even begun to seriously look into it, is whether there would be anything about a restraining order under this law which might trigger a lifetime disqualification under federal law. If not, this could be a better solution for someone than a restraining order triggering a lifetime prohibition under Lautenburg or a "dangerous-to-self-or-others" psychiatric commitment, either of which would trigger a lifetime disqualification under federal law.

So they don't know about the 4th and 6th Amendments in Cali either?

I really start to lose patience when folks who don't know what they are talking about toss around specious constitutional assertions like this.

The Fourth Amendment provides protection against unreasonable searches and seizures. There is a good deal of case law relating to when a search or seizure is, or is not, reasonable. A temporary seizure after due process is probably not going to be found unreasonable under the Fourth Amendment.

The Sixth Amendment guarantees a jury trial in a criminal case as well as other rights in connection with such trials. This California law is not a criminal matter. The Sixth Amendment is therefore irrelevant.

 

[KyJim]

A possible concern, and I haven't even begun to seriously look into it, is whether there would be anything about a restraining order under this law which might trigger a lifetime disqualification under federal law.

I wouldn't be surprised if someone from the California delegation doesn't introduce a bill to include it in Lautenberg.

 

[Aguila Blanca]

And, of course, past history has shown that restraining orders and protective orders are 100 percent effective ...

 

[Koda94]

Id like to learn more about what is in place within this law to allow a challenge or appeal. What happens if someone is lying, exaggerating... say a spouse in a ugly divorce just wants to upset the other as much as possible... especially after a heated argument? What about a lying sibling that doesn't even live with you? What about an officer who might harass someone he pulls over and the person stands up for their rights? What about a wife whose been physically abused and threatened by her estranged husband whom she hasn't yet filed a restraining order on? What prevents the 21 day limit from not being extended under the same circumstances it was enacted?

 

[44 AMP]

This was a reaction to the Elliot Rodger shooting four months back

That was the guy that the police checked out, and didn't find a "threat" a few days before he went on his killing rampage, right?

Hmmmm......


One thing I'd be concerned about, what happens to your guns, AFTER such a temporary order expires?

I have heard, more than once, over the years, that some CA jurisdictions simply will not return seized firearms. Even court orders have not been able to get the guns returned, the jurisdiction merely cuts you a check for (their opinion) for the value of your property.

I find it entirely too possible that someone with a disgruntled spouse, or a "bad" cop in their life might lose an entire gun collection, forever, possibly only getting a pennies on the dollar "compensation" when it all said and done.

Also, how "deep" is the prohibition? Once the order is given, and you "voluntarily" surrender all your guns, and ammo, what then? DO the police seach ALL your property to ensure compliance? DO they come and take your guns and ammo?

Would you be at risk of jail or fines, if you happened to miss something? OR if THEY do??? Could a couple of rounds, lost for years, then found after you are subject to the order, and have surrendered "everything" be enough to get the book thrown at you?

scary stuff.

 

[Koda94]

The Sixth Amendment guarantees a jury trial in a criminal case as well as other rights in connection with such trials. This California law is not a criminal matter. The Sixth Amendment is therefore irrelevant.

yes, but doesn't this particular type of restraining order violate a constitutional right to bear arms? In order to lose a right, you have to be convicted first of a crime (criminal case)?

Side question for my reference: doesn't a regular restraining order require a crime against a person to take effect, or can one get a restraining order based on "suspicion" only, such as verbal threats?

 

[Frank Ettin]

...yes, but doesn't this particular type of restraining order violate a constitutional right to bear arms?...

Not until a court says so.

...In order to lose a right, you have to be convicted first of a crime (criminal case)?...

No.

...doesn't a regular restraining order require a crime against a person to take effect,...

No.

 

[KyJim]

We strip citizens of their most basic human right to liberty without a criminal conviction if a court finds them a danger to themselves or others. They are restrained in a mental hospital for treatment.

Less common is civil restraint for certain classes of pedophiles (not everyone who commits a sexual offense). The seminal case on that is Kansas v. Hendricks, 521 U.S. 346 (1997, available at http://www.law.cornell.edu/supct/html/95-1649.ZO.html.

I'm not comparing someone subject to the gun violence restraining order to either of the above. I'm just pointing out that we do strip certain rights from persons in some circumstances.

 

[Frank Ettin]

KyJim,

Thanks for posting some examples. I was rushed earlier.

 

[Koda94]

Frank, thank you for the replies.

Looks like there is a provision in the bill that makes it a misdemenor to "file a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass."

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1014

 

[Aguila Blanca]

Looks like there is a provision in the bill that makes it a misdemenor to "file a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass."

That's better than nothing, but how do you prove that the complaint was knowingly false and intended to harass? And what's the penalty?

Then there's this:

The bill would require a law enforcement officer to serve the order on the restrained person, if the restrained person can reasonably be located, file a copy of the order with the court, and have the order entered into the computer database system for protective and restraining orders maintained by the Department of Justice.

So what happens if the LEO can't/doesn't find the the "restrained person" and serve the order? Does said LEO still file a copy of the order and enter it in the database? He (or she) shouldn't, because then doing so would create the risk that the "restrained person" (who has not been restrained if he/she hasn't received the order) could be arrested for violating an oder he/she knows nothing about.

I realize that this is a synopsis and not the bill itself, but it does not seem to be a well-crafted piece of legislation. (However, most legislation today isn't well-crafted.)

 

[Koda94]

The off chance that you could prove the information false after a heated argument is small. At this point the bill is limited to LEO’s and immediate family members… but it paves the way to open it up further to others. This bill isnt going to stop crime. After a few years Cali will have another gun violence crime where the suspects friends wanted to file a gun restraining order but couldn’t and they’ll cite how ‘successful’ the current one is and expand it.



the way I read it, this bill means that if you’re a gun owner you better play reeeealllll nice to family who has an argument with you, even if that person is the one out of line. This includes someone who is bullying you, menacing or verbally harassing you or just even a simple argument from some narcissist anti gun estranged spouse who knows you’re a gun owner. If this bill is constitutional it reeks of gun control.

 

[TDL]

Looks like there is a provision in the bill that makes it a misdemenor to "file a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass."

I have looked at the general restraining order code but my guess is it is already a misdemeanor to file knowing the petition to be false.


There seem to be quite a few quotes, including attributed in serious publications by serious family law attorneys on the subject assertion that large portions are majorities of filings are simply an abuse of the law and part of the arms war in divorce and custody cases.

WE all want people protected but by offering more and more penalties for low probative burden assertions we encourage abuse

 

[thallub]

The gun violence restraining order can be appealed. From the bill, dated 30 September, 2014:

18180.
(a) A gun violence restraining order issued pursuant to this chapter shall include all of the following:
(1) A statement of the grounds supporting the issuance of the order.

(2) The date and time the order expires.

(3) The address of the superior court for the county in which the restrained party resides.

(4) The following statement:


“To the restrained person: This order will last until the date and time noted above. If you have not done so already, you must surrender all firearms and ammunition that you own or possess in accordance with Section 18120 of the Penal Code. You may not have in your custody or control, own, purchase, possess, or receive, or attempt to purchase or receive a firearm or ammunition, while this order is in effect. Pursuant to Section 18185, you have the right to request one hearing to terminate this order at any time during its effective period. You may seek the advice of an attorney as to any matter connected with the order.”

(b) When the court issues a gun violence restraining order under this chapter, the court shall inform the restrained person that he or she is entitled to one hearing to request a termination of the order, pursuant to Section 18185, and shall provide the restrained person with a form to request a hearing.




18185.
(a) A person subject to a gun violence restraining order issued under this chapter may submit one written request at any time during the effective period of the order for a hearing to terminate the order.

(b) If the court finds after the hearing that there is no longer clear and convincing evidence to believe that paragraphs (1) and (2) of subdivision (b) of Section 18175 are true, the court shall terminate the order.


18190.
(a) (1) An immediate family member of a restrained person or a law enforcement officer may request a renewal of a gun violence restraining order at any time within the three months before the expiration of a gun violence restraining order.

http://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml

 

[JimDandy]

A temporary seizure after due process is probably not going to be found unreasonable under the Fourth Amendment.

How much process is due? The Cornell "dictionary" is pretty vague, so I imagine the final answer also is. The Matthews case discussed at the end opens the door for a pick your judge and roll the dice answer.

But the mention at the end of a list of due process elements ranked in order of importance suggest that notice of (2) an impartial hearing(1), where you can challenge the need for the restraining order (3) would hit the top 3.

 

[KyJim]

"Due process" is a bit like grabbing greased Jello, I'm afraid. You won't see a simple definition anywhere because it depends on the nature of the proceeding.

At a bare minimum for anything more than a short, temporary seizure, it requires an opportunity to be be heard, hear and contest the evidence, and present evidence of your own. The evidence may or may not have to be the type admissible in regular trials. Some pre-trial hearings allow hearsay, for example. I don't know California law so can't comment further on that. The statute requires "clear and convincing" evidence which is the second highest burden of proof we require. That standard is consistent with other important proceedings, such as termination of parental rights. Due process would also require a neutral judge.