On September 30, 2014, California became the first state empowering immediate relatives and police to petition a court for removal of a dangerous person’s firearms by a “Gun Violence Restraining Order” law.
The new law comes on the heels of the May 2014 mass murder of six people, wounding of another 13 and suicide by a mentally unstable man near U. C. Santa Barbara campus, despite warnings to police from Eliot Rodger’s immediate family more than 3 weeks before his rampage. According to news reports, gunfire from one or more of Rodger’s 3 semi-automatic handguns was responsible for 4 of the deaths and 8 of the other injuries.
Deemed an extension of existing laws temporarily prohibiting the possession of firearms by the subjects of domestic violence restraining orders, the new law provides for a temporary ex parte order for up to 21 days, an order for up to 1 year after hearing, and 1-year extensions.
To obtain an “ex parte” (without the subject’s participation) order, a member of the subject’s immediate family or a member of law enforcement must file a petition and supporting proof with the county Superior Court proving there is reasonable cause to believe that the subject “possess an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another” If the judicial officer finds reasonable cause, he/she may issue a temporary emergency gun violence restraining order effective for up to 21 days. The order and a notice of hearing must be personally served upon the subject, if he/she can be found, and he/she must surrender specified firearms to police. If he/she cannot be found or will not surrender the firearms, the police are empowered to search for and seize the firearms.
A hearing must be held within 21 days of the ex parte order’s issuance to determine whether the order should be extended for up to 1 year. At that hearing, the petitioner must prove by clear and convincing evidence that the subject possesses a significant danger “of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.” If the judicial officer by clear and convincing proof that the subject poses a significant danger, he/she will issue a gun violence restraining order effective for 1 year. In addition, the order may be renewed in 1-year increments. The subject may request one hearing to terminate the order during the effective period of the initial order and in each renewal period.
Though celebrated by some as a sane approach to insane gun violence, the law is also criticized by others as an infringement on the 2nd Amendment right to bear arms and as unnecessary because there are already sufficient laws for these circumstances. The first of its kind, the law will surely be challenged on Constitutional grounds by the NRA, individual gun owners and/or the ACLU.
Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.