MEMO: California’s New Gun Violence Restraining Order Law

Posted on October 29, 2015

Introduction
On September 30, 2014, Governor Jerry Brown signed into law AB 1014, a bill to allow concerned family members or law enforcement officers to petition a court for a Gun Violence Restraining Order (GVRO). In situations where there is sufficient evidence for a judge to believe that an individual poses a danger to self or others, the GVRO will temporarily prohibit the individual from purchasing or possessing firearms or ammunition and allow law enforcement to remove any firearms or ammunition already in the individual’s possession. The new law, modeled after California’s existing domestic violence restraining order laws, goes into effect on January 1, 2016.1

AB1014 was introduced in response to the tragic shooting in Isla Vista in May 2014. The shooter there had exhibited warning signs of impending violence, yet no legal mechanism was available to his parents or law enforcement to take preventive action. Under California law, a variety of dangerous people are prohibited from purchasing or possessing firearms or ammunition, including domestic abusers, as well as persons who have been involuntarily committed to a mental health facility “as a result of a mental health disorder” which makes them a danger to themselves or others. AB 1014 expands these protections by restricting access to firearms or ammunition by persons who exhibit dangerous or threatening behaviors, but who are not otherwise prohibited from possessing them.

Overview of the Three Types of GVROs
AB 1014 establishes three types of GVRO: a temporary emergency GVRO, an ex parte GVRO and a GVRO issued after notice and hearing. The law requires the Judicial Council to prescribe the form of the petitions, orders, and other relevant documents, and promulgate instructions for applying for all GVROs. When bringing a petition for any type of GVRO, the petitioner must describe in the petition the number, types, and locations of any firearms and ammunition presently believed to be in the subject of the petition’s possession or control. When any GVRO is issued, the presiding court is authorized—but not required—to issue a warrant instructing law enforcement to search and remove all firearms in the individual’s possession.

  • Temporary Emergency GVRO: Only a law enforcement officer may seek a temporary emergency GVRO by submitting a written petition to or calling a judicial officer to request an order at any time of day or night.
    • Standard for Issuing a Temporary Emergency GVRO: A temporary emergency GVRO may be issued if a law enforcement officer asserts, and a judicial officer finds, there is reasonable cause to believe that a person poses an immediate and present danger of injury to self or others by having a firearm in his or her possession and less restrictive alternatives have been ineffective, inadequate, or inappropriate.
    • Duration of a Temporary Emergency GVRO:  A temporary emergency GVRO is effective for 21 days from the date of issuance. A law enforcement officer may bring a petition for either an ex parte GVRO or more permanent GVRO (issued after notice and hearing) if he or she believes an extended restriction on a person’s access to firearms and ammunition is warranted.
  • Ex Parte GVRO: An immediate family member2 or law enforcement officer may request an ex parte GVRO.  Unlike a temporary emergency GVRO, a petition for an ex parte GVRO may only be brought during normal court hours.
    • Search of Firearm Ownership Records: Before a hearing to issue an ex parte GVRO, the court must ensure that a search of available databases and records is conducted to determine if the subject of the order owns a firearm.
    • Evidence for the Court’s Determination:The affidavit supporting a petition for the order must set forth the facts establishing the grounds for the petition. The court may consider the testimony from the petitioner and any witness for the petitioner before issuing the ex parte order.The court must consider the following types of evidence to determine whether to issue an ex parte GVRO:
      • Recent3 threat of violence or act of violence directed at another
      • Recent threat or act of violence directed toward himself or herself
      • Recent violation of a protective order of any kind
      • A conviction of a violent offense
      • A pattern of violent acts or threats within the past 12 months
      A court may also consider any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the following:
      • The unlawful and reckless use, display, or brandishing of a firearm
      • The history of use, attempted use, or threatened use of physical force against another person
      • Any prior arrest for a felony offense
      • Any history of a violation of any protective order
      • Documentary evidence, including, but not limited to, police reports and records of convictions, of either recent criminal offenses that involve controlled substances or alcohol, or ongoing abuse of controlled substances or alcohol
      • Evidence of recent acquisition of firearms, ammunition, or other deadly weapons
    • Standard for Issuing an Ex Parte GVRO: A court may issue an ex parte GVRO against a person if the petitioner shows good cause to believe there is a substantial likelihood that the subject of the petition will, in the near future, cause personal injury to self or others by owning or possessing a firearm, and an ex parte GVRO is necessary to prevent such injury because less restrictive alternatives have been deemed ineffective, inadequate, or inappropriate.
    • Duration and Hearing for an Ex Parte GVRO: An ex parte GVRO may be ordered without a hearing and remains effective for 21 days. The court must provide a hearing for the restrained person within the 21-day effective period to determine whether a more permanent GVRO is warranted or if the order is no longer necessary and the firearms should be returned to the subject of the order.
  • GVRO after Notice and Hearing: At the hearing subsequent to issuing the ex parte GVRO, the court may consider further evidence and testimony from the restrained person seeking to terminate the order, the petitioner who sought the ex parte GVRO, and any witnesses produced by the petitioner to determine whether to issue a GVRO for one year. The evidentiary requirements and standard of review are similar to those required for an ex parte GVRO.
  • Surrender of Guns for all GVROs: A person who is served with a GVRO is required to immediately surrender all firearms and ammunition in his or her possession. If a law enforcement officer is serving the order, all firearms and ammunition in the restrained person’s possession must be immediately surrendered to the law enforcement officer. The law enforcement officer must also take custody of any firearm or other deadly weapon in plain sight. If someone other than a law enforcement officer is serving the order, the respondent must either surrender his or her firearms to the local law enforcement agency or sell them to a federally licensed firearms dealer within 24 hours of receiving the order.  A bill signed into law in 2015 also authorizes the respondent to opt to store his or her firearms and ammunition with a licensed dealer for the duration of the order, if the respondent pays any appropriate fees to store those weapons.
  • Search Warrant for all GVROs: A court issuing any kind of GVRO is authorized to issue a search warrant instructing law enforcement officers to perform a search for any firearms or ammunition in the person’s possession.
  • Reporting Requirements for all GVROs: The court must electronically notify the California Department of Justice (DOJ) and local district attorney within one court day of issuing a GVRO. The court must notify DOJ when the GVRO has been dissolved or terminated within five court days. DOJ must then note the updated status of any GVRO within fifteen days of receiving notice. The court must also notify the district attorney of the jurisdiction when a GVRO has been issued as well as when it has been dissolved or terminated.
  • Protections for Cohabitants:  Firearms and ammunition may not be seized pursuant to a warrant if they are owned by someone other than the subject of the GVRO and stored so that the subject doesn’t have access to them.  Also, a gun safe owned solely by someone else may not be searched without the owner’s consent.
  • Return of firearms after any GVRO Terminates or Expires: If the restrained person’s firearms are surrendered to law enforcement (instead of being sold to a dealer), law enforcement must retain the firearms or ammunition for the duration of the order and return them to the restrained person when the order expires, terminates, or dissolves.
  • Penalty for False Petitions:  The bill creates a misdemeanor penalty for any person who files a petition for a GVRO that contains statements the person knows are false, or with intent to harass the subject of the petition.

Legal Issues

  • Second Amendment: The GVRO process does not violate the Second Amendment. In the landmark case District of Columbia v. Heller, the Supreme Court determined that the Second Amendment guarantees the right of law-abiding, responsible citizens to keep a firearm in the home for self-defense. 554 U.S. 570, 679 (2008). However, the Supreme Court stated that the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and  made clear that a variety of laws are permissible under the Second Amendment, including those prohibiting firearm possession by felons and the mentally ill. Id. at626.
      In California, the courts have specifically held that “the state may ensure that firearms are not in the hands of someone who may use them dangerously” and dangerous people may be prohibited from possessing firearms consistent with their Second Amendment rights, as long as they are afforded adequate due process.

See City of San Diego v. Boggess

      , 216 Cal. App. 4th 1494 (2013);

People v. Jason K.

      , 188 Cal. App. 4th 1545 (2010). In 2013, an Indiana Court of Appeals upheld a similar gun violence restraining order law against a Second Amendment challenge and ruled that the state may restrict access to firearms by dangerous persons in the interest of public safety and welfare.

Redington v. Indiana,

    992 N.E.2d 823 (Ind. Ct. App. 2013). AB 1014 provides a mechanism to do exactly that&mdsash;keep deadly firearms out of the hands of dangerous persons in the interest of public safety and welfare.
  • Due Process: The procedures for obtaining temporary emergency and ex parte GVROs provide sufficient due process to protect Californians’ important constitutional rights. The law provides for a temporary (21 day) or a more permanent GVRO, which is effective for one year. However, the more permanent (one year) GVRO will only be issued after a full hearing before a judge. At this hearing, the burden is on the person bringing the petition for the order to prove by clear and convincing evidence that the named person poses a substantial likelihood of causing harm to self or others by possessing firearms or ammunition. If this burden is not met, the person may then regain the right to possess firearms or ammunition. In addition, the named individual may seek another hearing to terminate the order during the one-year period of its duration. Similar procedures are in place in the domestic violence restraining order context and courts across the nation have uniformly upheld these procedures. See, e.g., Nollet v. Justices of the Trial Court, 83 F. Supp. 2d 204 (D.C. Mass. 2000); Blazel v. Bradley, 698 F. Supp. 756 (W.D. Wis. 1988); Baker v. Baker, 494 N.W.2d 282 (Minn. 1992).

 

Nothing contained in this document is intended as legal advice to any person or entity and should not be regarded as such. The Law Center to Prevent Gun Violence and its attorneys provide general information about gun laws to interested groups, individuals and legislators. Law Center attorneys do not represent clients and do not form attorney-client relationships. You should not consider communications with the Law Center or its attorneys to be confidential unless we have agreed to such confidentiality.

Copyright 2014 by the Law Center to Prevent Gun Violence.

All rights reserved. Unauthorized use or distribution is prohibited.

  1. Connecticut and Indiana have enacted similar laws; however, in those states, only law enforcement may seek to remove firearms from dangerous individuals. California is the first state to adopt a law enabling immediate family members to bring a petition for a GVRO. []
  2. “Immediate family member” is defined as “any spouse, whether by marriage or not, domestic partner, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.” Cal. Pen. Code § 422.4. []
  3. “Recent” is defined as within six months prior to the date the petition is filed. []