California: "Gun Violence Restraining Orders"

[JimDandy]

OK, KyJim, now what is short and temporary? A traffic stop is certainly short. Is the 20 days (or whatever this restraining order is good for) short in comparison to other temporary seizures that don't provide a hearing where the "victim of the seizure" (for lack of a better word or technical term) would have a voice?

The other issues raised- what if someone misses something, or especially the California doesn't return seized firearms- seem a bit seperate and secondary to me. For example, California seizing and not returning firearms or their fair value isn't limited to this restraining order and should be dealt with as it's own issue- probably on the Taking's clause right?

What bothers me about this is that it appears the State is taking action against an individual without the input/knowledge/participation of the individual. While I realize it's not always possible to wait for the individual to participate- Failure to Appear, appointing guardians for coma patients, and so on where an individual either physically/mentally can't or has chosen not to- they was still some opportunity.

 

[tyme]

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...

Really?

Anything can be shown to be reasonable or "clear and convincing evidence" in an ex parte proceeding. That's the reason we have an adversarial system, because hearing one side is virtually guaranteed to be biased.

The standard sounds a lot like probable cause or preponderance of the evidence, which is the same standard used by grand juries (who also only hear one side)... and as the saying goes, grand juries will indict a ham sandwich.

Creating a new type of court order to deprive someone of property based on 51% proof in an ex parte proceeding seems like just another in the litany of legislative abuses by legislators eager to save the children, or spouses, or to appear tough on crime (particularly gun crime).

While I think the concept of this is abhorrent, I don't know how much of a change this is from the status quo. Doesn't a domestic violence restraining order already technically prevent the recipient (temporarily) from possessing firearms? And aren't domestic violence restraining orders already commonly issued from ex parte proceedings? So, how much does this new type of restraining order change things, other than allowing police to do the same thing in a scenario not involving domestic violence? In other words, is this simply the camel following its nose into a tent?

 

[KyJim]

Both of these points are related:

OK, KyJim, now what is short and temporary?

Anything can be shown to be reasonable or "clear and convincing evidence" in an ex parte proceeding.

I used the term "short and temporary" to describe general legal principles. I am not saying 21 days meets due process. In my state, you can get an ex parte order committing one to a hospital for mental evaluation for up to 72 hours. That is where the legislature struck the balance between the danger to one's self or to another against the deprivation of the individual's rights.

As far as it being an ex parte proceeding, how else would you expect such an action to proceed? Notify the individual and give him a chance to commit suicide or prompt him to go on a shooting spree? The remedy is in the availability of a prompt hearing. These sort of after-the-fact hearings are not unusual.

I mentioned the involuntary hospital commitment. In some circumstances, creditors may use court process to seize property before a judgment is entered provided there is some sort of special circumstances such as evidence the debtor will conceal the property, the creditor posts sufficient bond, and the debtor has the opportunity for a prompt pre-trial hearing.

 

[JimDandy]

I used the term "short and temporary" to describe general legal principles. I am not saying 21 days meets due process. In my state, you can get an ex parte order committing one to a hospital for mental evaluation for up to 72 hours. That is where the legislature struck the balance between the danger to one's self or to another against the deprivation of the individual's rights.

As far as it being an ex parte proceeding, how else would you expect such an action to proceed? Notify the individual and give him a chance to commit suicide or prompt him to go on a shooting spree? The remedy is in the availability of a prompt hearing. These sort of after-the-fact hearings are not unusual.

That brings up another interesting question- if this person is so dangerous, why aren't they placed on a 72 hour hold? Doesn't this notify the individual that they're a hearing away from involuntary commitment and they better find a tall building, or length of rope pretty quick? For the more destructive, some fertilizer, or a car and a farmer's market ala George Russell Weller?

How would I expect such a State action to proceed? The same way as the 72 hour hold. Evaluations until the first possible chance to get in front of a judge for a hearing. If an individual is such a danger they can't be trusted with firearms, they can't be trusted with freedom of movement and/or association for these 72 hours prior to their hearing either.

 

[TDL]

That brings up another interesting question- if this person is so dangerous, why aren't they placed on a 72 hour hold? Doesn't this notify the individual that they're a hearing away from involuntary commitment and they better find a tall building, or length of rope pretty quick? For the more destructive, some fertilizer, or a car and a farmer's market ala George Russell Weller?

I agree wholeheartedly with your point. The Santa Barbara killer killed half his victims (the young adult male ones -- and all in one location) with a knife and bludgeoning even though most of the news overage still says he shot six to death, which is false.

We only think gun suicide is more common and more efficacious because of determining standards among Medical Examiners and Coroners, with self inflicted gunshot absent other evidence virtually always ruled suicide and more common self inflicted drug overdose, absent other evidence almost always ruled accident.

This seems to me to be another blaming of the gun, and gun owners. If there is "clear and convincing evidence" of danger to one self or others why on earth would the person not be temporarily put into custody?

And again what this does is additionally open gun owners to what is known to be very often baseless leverage in contentious family cases.

 

[KyJim]

This seems to me to be another blaming of the gun, and gun owners. If there is "clear and convincing evidence" of danger to one self or others why on earth would the person not be temporarily put into custody?

The only answer I have to that is that an involuntary hospitalization requires proof of mental illness. The gun violence restraining order doesn't.

 

[44 AMP]

an involuntary hospitalization requires proof of mental illness.

point of order:

I don't think "proof" is the right word. A 72hr hold requires evidence (you did, or said something most would think shows you are crazy), which is different from "proof", particularly in legal matters.

The new gun violence restraining order seems to me to be one more law to "fix" something other laws failed to fix, and will likely be just as effective as they were.

The trap is how the law will be used and mis used against people who are really not a threat to themselves or others, but have been painted as being such.

There are people who will be sincere and honest telling a judge how dangerous a person they believe you are, because you have guns!

Normal, safe, sane people, in their worldview, don't have guns!!!
It is going to happen. Count on it.

 

[TimSr]

The secret to erroding the 2nd amendment is to do it in small increments with measures that sound reasonable, titled with words that everyone supports, while the actual effect take on a totally different result than those stated in its title. Sometimes it's due to good intentions with faulty logic. Other times is by design to gain support of the ignorant who judge legislation by its title instead of its results.

Nobody wants a person who is actually danger to themsleves or others to possess a firearm. Gun owners are concerned about who decides, as the anti-gun crowd believes that all individuals who possess firearms are a danger to themselves and others. I don't want a single judge deciding whether I should retain my constitutional rights. I want a jury of my peers and a "beyond a reasonable doubt" standard.

 

[KyJim]

I don't think "proof" is the right word. A 72hr hold requires evidence (you did, or said something most would think shows you are crazy), which is different from "proof", particularly in legal matters.

"Proof" in legal matters is often synonymous with "evidence." Most lawyers I know talk about putting on proof, not putting on evidence. BTW, in my state (and I think in many states), a court can order the 72-hour involuntary hospitalization simply on certification of a physician. Longer commitments require formal hearings.

 

[Metal god]

If there is "clear and convincing evidence" of danger to one self or others why on earth would the person not be temporarily put into custody?

if this person is so dangerous, why aren't they placed on a 72 hour hold?

I don't see how any reasonable person , judge or panel would not feel the same way . Oops , you know other then the CA legislature

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...

At first I was thinking the same thing . It's not that bad and It would have been nice if the mother or others of the Sandy Hook or Colorado shooters could have just went in to court and said " hey these guys needs help " . I'm assuming the Sandy Hook and Colorado theater shootings are what this law is there to prevent . After reading these quotes I think "DUA" If the person is so likely to use there firearms to harm them selves or others . How is that not grounds to be able to place them on a 72hr hold . Maybe you take there guns till they are released . They should not be released if they are still a danger so there is no need for them to have there firearms while locked up . How ever as soon as they're released they should be handed there firearms at the door as they walk out .

 

[TDL]

I'm assuming the Sandy Hook and Colorado theater shootings are what this law is there to prevent

The impetus for this was Santa Barbara where in fact half the homicides were by knife.

I have not seen any evidence that the majority of killings by the mentally ill are in fact with a gun.

I also don't see any evidence even from the extreme and statically gun murder trivial outliers such as sandy hook or Aurora where this would have done an iota of good.

Sandy hook shooter owned no guns. Are we now talking about removing all guns from any relative and person domiciled as well? Domiciled with an autism spectrum disorder?

Aurora shooter Holmes was already under psychiatric care of a psychotherapist leading up to the shooting, and had been under care of two other mental health professionals. This guy was patently psychotic and represented a danger even without guns. He left the school due to academic issues, the mental health professionals otherwise thought it was ok for him to be there.

I don't see this law as having any prophylactic effect against gun homicide, and like most gun control it a) scapegoats, b) provides an avenue for abuse c) distracts from the real causes of violence

 

[62coltnavy]

Actually, the impetus of the law had nothing to do with the Santa Barbara crime spree--rather that was the incident that was used to sell it so that it could get passed. The law had been in the works for a year already, and furthermore, the parents of Mr. Rogers were oblivious to the fact that he owned any firearms, as apparently were the officers who interviewed him at the parents' request. Thus, this law would have done nothing to prevent those attacks. In fact, the officers were there to do an evaluation under California Welfare & Institutions Code 5150, the section that allows a 72-hour hold "for evaluation and treatment"based upon probable cause to believe that the person is an immediate threat of harm to himself or others." Rogers passed. [Parenthetically, the parents of the Aurora, Co. shooter were also unaware that he had been purchasing firearms and ammunition.] A 72-hour hold does not engender a lifetime ban, because it is not a commitment within the meaning of the Lautenberg amendment, unless the involuntary commitment is extended beyond the 72-hours based upon the referral of a licensed health care professional. However such a hold does entail a ten year ban on the ownership of firearms (previously five years but recently extended). Since this new GVRO does not entail a commitment, it would not appear to lead to a lifetime ban, but presumably other actions could be taken against the respondent that could lead to that result.

 

[TDL]

Impetus is the force which makes something that exists move, or something happen more quickly.

The impetus for the law was santa Barbara. The original proposal existed, as do thousands of gun laws not passes,but the force making it a law vs just a proposal was, in my opinion, santa Barbara; just as the Washington state referendum existed before the High School shootings by Freyberg, but that event I believe was the impetus for it becoming law