1. law, govt and politics

GUN VIOLENCE RESTRAINING ORDERS
AGuide for Judges, Prosecutors, Attorneys, Police and Gun Owners
Distributed by
California Rifle & Pistol Association
*~
CALIFORNIA
RIFLE &PISTOL ASSOCIATION
www.CRPA.ag
Produced by
Michel & 1lssociates, P.C.
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Gun Violence Restraining Orders:
A Guide j(Jr fudges, Prosecutors, Attorneys, Police and Gun Owners
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Table of Contents
INTRODUCTION ........................................................................... 1
WHO CAN REQUEST A "GUN VIOLENCE RESTRAINING
ORDER"? ...................................................................................... 3
WHAT KINDS OF "GUN VIOLENCE RESTRAINING
ORDERS" ARE THERE? ............................................................. 4
A. What is a Temporary Emergency "Gun Violence
Restraining Order"? .................................................................... 4
i. When Can a Court Issue a Temporary Emergency
"Gun Violence Restraining Order''? ...................................... 5
a. "Danger to Himself or Herself, or to Another''
Element ........................................................................ 5
b. "Availability of Less Restrictive Alternatives"
Element ......................................................................... 7
ii. What Happens After a Court Issues a Temporary
Emergency "Gun Violence Restraining Order"? ................. 9
B. What is an Ex Parte "Gun Violence Restraining
Order"? ..................................................................................... 10
i. When Can a Court Issue an Ex Parte "Gun Violence
Restraining Order"? ............................................................ 10
ii. What Happens After a Court Issues an Ex Parte
"Gun Violence Restraining Order"? ................................... 12
iii. What Happens if the Court Does Not Hold A Hearing
Within Twenty-One Days After a Person Receives an
Ex Parte "Gun Violence Restraining Order"? ..................... 13
C. What Is a "Gun Violence Restraining Order" Issued
After Notice and a Hearing? .................................................... 14
i.
When Can a Court Issue a "Gun Violence Re!)training
Order" After Notice and Hearing ..................-..................... 14
ii.
What Happens After a Court Issues a "Gun Violence
Restraining Order" After Notice and a Hearing? ................ 17
iii. Renewing a "Gun Violence Restraining Order" Issued
After Notice and a Hearing ................................................. 18
iv. Early Termination of a "Gun Violence Restraining Order''
Issued After Notice and a Hearing ..................................... 19
WHAT IS THE PUNISHMENT FOR VIOLATING A "GUN
VIOLENCE RESTRAINING ORDER"? ...................................... 20
WHAT SHOULD A GUN OWNER DO WITH HIS OR HER
FIREARMS & AMMUNITION AFTER RECEIVING A "GUN
VIOLENCE RESTRAINING ORDER"? ...................................... 20
WHEN CAN LAW ENFORCEMENT SEIZE A GUN
OWNER'S FIREARMS AND AMMUNITION? ............................ 22
A. The "Failed to Relinquish His or Her Firearms"
Requirement ................................... :........................................ 23
B. Can Law Enforcement Seize a Roommate's
Firearms? ................................................................................... 23
C. Can Law Enforcement Open a Roommate's Gun
Safe? ....................................................................................... 24
WHAT ARE THE REPORTING REQUIREMENTS FOR
"GUN VIOLENCE RESTRAINING ORDERS"? ......................... 25
ARE THERE CIVIL OR CRIMINAL PENALTIES FOR
SOMEONE WHO FILES A FALSE PETITION FOR A
"GUN VIOLENCE RESTRAINING ORDER?" ............................ 25
A. Criminal Prosecutions ............................................................... 25
B. Civil Actions .............................................................................. 26
ARE "GUN VIOLENCE RESTRAINING ORDERS"
CONSTITUTIONAL? ................................................................... 27
CONCLUSION ................... ~ .. ;.................................................... 29
INTRODUCTION
I1
INTRODUCTION
Beginning January 1, 2016, the new "Gun Violence Restraining Order"
law permits a law enforcement officer or "immediate family member" to
seek a "gun violence restraining order" (GYRO). If issued by a court, a
GYRO prohibits firearms owners from owning and possessing firearms
and ammunition for up to one year (and possibly longer).
This new law was created in the 2014 legislative session by California Assembly Bill (AB) 1014. AB 1014, the first law of its exact kind in
the United States, was hastily introduc;:ed in the wake of the "Isla Vista
Shooting" 1 that took place in Santa Barbara, California. In the context
of the high emotional response to the Isla Vista Shooting, the California Legislature ultimately passed AB 1014, and Governor Jerry Brown
signed it into law.
As this booklet explains, while AB 1014 sounds good in theory, it
does nothing new under California law to take guns away from dangerous people. Pre-existing laws already made, and still make, that possible.
Police just need to use them. But AB 1014 does set up another mechanism that can be abused, and used against those who choose to own a
gun for self-defense or sport.
Soon after it was introduced, AB 1014 drew sharp criticism from
gun rights activists for being overbroad and susceptible to exploitation
and abuse. Exemplifying this, as originally drafted, AB 1014 would have
allowed "anyone" to ask a court to issue a GVRO against a person he or.
she believed (or just claimed) was a danger to themselves or another. In
other words, this bill would have given anyone (including people with
ulterior motives) the power to ask a court to strip a gun owner of his
or her right to own and possess firearms and ammunition Fortunately,
AB 1014 was amended to narrow the class of individuals who can seek
aGVRO.
As passed, AB 1014 creates a mechanism that can be misused by vindictive individuals as a legal weapon to hurt those who choose to own
a gun to defend themselves and their families. In fact, AB 1014 can be
used as a legal weapon against law-abiding gun owners because it gives
people - who harbor ulterior motives, grudges, or anti-gun owner bias
(e.g., a divorcing or ex-spouse, significant other, roommates, or in-laws)
- a tool to gain an advantage in legal proceedings or to impose their
1
As many may remember, the "Isla Vista Shooting" involved a mentally unstable twenty-two-yearold college student who went on a killing spree in the small college town of Isla Vista. During this
killing spree, the unstable young man injured and fatally wounded a number of people. See Ralph
Ellis & Sara Sidner, Deadly California Rampage: Chilling Video, But No Match for Reality, CNN (May
27, 2014), http://www.cnn.com/2014/05/24/justice/ california-shooting-deaths/.
2
I GUN VIOLENCE RESTRAINING ORDERS
beliefs on others. Similar legal procedures, such as standard temporary
restraining orders and "stay-away" orders, are already being misused to
gain advantages in divorce proceedings and child custody disputes. The
abuse of these orders is so pronounced that California Bar groups have
called for reform.
This guide was written to help judges, prosecutors, attorneys, police,
and gun owners understand how the GVRO system works so we can all
work together to prevent its abuse and overuse.
Important Takeaways About GVROs
• Beginning January 1, 2016, a law enforcement officer or an "immediate
family member" can seek a GVRO to prohibit a person from owning
and possessing firearms and ammunition for up to one year (or longer
if renewed).
• The definition of an "immediate family member" is actually much more
expansive than most people realize. In fact, the definition of this phrase
would not only allow "immediate family members" to seek a GVRO, but
also a roommate, long-term guest, and even a person's in-laws.
• There are three types of GVROs: (1) temporary emergency GVROs, (2)
ex parte GVROs, and (3) GVROs issued after notice and a hearing.
• Any person who owns or possesses firearms or ammunition with the
knowledge that he or she is prohibited from doing so due to a GVRO is
guilty of a misdemeanor.
• It is also a misdemeanor for a person to file a petition for a GVRO with
the intent to harass or knowing that the information in the petition is
· false.
• Unlike other types of California restraining orders, there is no express
limit to the number of times a GVRO can be renewed.
• Surprisingly, there are a few, narrow provisions that protect those living with persons subject to GVROs. Under specific circumstances, these
provisions prevent law enforcement officers from searching a non-restraineq person's gun safe and from seizing firearms found in residences
occupied by more than one person.
• Ex parte restrainling orders are court orders that can be issued on the
application of one party, and without providing notice to or hearing an
argument from the person whom the restraining order is sought against.
Similar to many of the other types· of ex parte restraining orders issued
under California law, 'a person must divest themselves of their lawfully
owned firearms once an ex parte GVRO takes effect. Given that an ex
parte restraining order can be issued against a person without providing
him or her with notice or a hearing, these types of restraining orders
likely violate the Due Process Clause.
WHO CAN REQUEST A "GUN VIOl£NCE RESTRAINING ORDER"'
I3
Who Can Request a "Gun Violence Restraining Order"?
A "gun violence restraining order" (GVRQ) is a signed court order that
prohibits a person from owning, purchasing, possessing, receiving, or
controlling firearms and ammunition. 2 These orders are meant to be
issued when a person is found to be a danger to themselves or others
by having firearms and ammunition in their custody or control.3
A law enforcement officer or "immediate family·member" can request a GVRO. Although it may appear from this phrase that only a
limited number of people can request the restraining order, it actually
includes a wider range of individuals.
For instance, the term "immediate family member" includes:
(1) A spouse (whether by marriage or not); and
(2) A domestic partner; and
(3) Parents; and
(4) Children; and
(5) Any person related by consangum1ty or affinity within
the second degree (e.g., your grandparents, cousins, or in laws); and
(6) Any person who you reside with; and
(7) Any person who regularly resided in your household within
the past six months. 4
Under this expansive definition, an angry in-law, disgruntled roommate, or even a long-term houseguest could seek a GVRO to prohibit a
firearm owner from owning or possessing firearms or ammunition for a
significant amount of time. In other words, the breadth of this definition
has essentially opened up the door to potential abuse from a number of
people who may use the system to settle grudges, take vengeance, or use
this gun confiscation mechanism for other improper purposes.
To make matters worse, despite the fact that the term "law enforcement officer" is used repeatedly throughout the code sections of this law,
this term is not actually defined for purposes of GVROs. In other words,
it is impossible lell who is classified as a "law enforcement officer" because the Legislature failed to provide any definition of the term.
2
CAL. PENAL CODE§ 18100 (effective January I., 2016).
'See CAL. PENAL CODE§§ 18125(a), 18150(b), 18175(b).
'CAL. PENAL CODE§§ 422.4, 18150(a)(2) (effective January 1, 2016).
4
I GUN VIOLENCE RESTRAINING ORDERS
Typically, when the Legislature refers to law enforcement, it uses the
term "peace officers:' This is because the tenn "peace officer" has a specific definition under the California Penal Code. 5 But, oddly, the California Legislature did not use this term in the code sections that cover
GVROs, and instead chose to leave it open to speculation as to who can
request a GVRO under the undefined term "law enforcement officer:'
What Kinds of "Gun Violence Restraining Orders" Are
There?
There are three types of GYROs:
(1) Temporary emergency GYROs; and
(2) Ex parte GYROs; and
(3) GYROs issued after notice and a hearing.
Each type of GYRO will be explained in further detail below. However, note that the some of the information about the GYRO system is
still unknown as the California Judicial Council must still promulgate
any rules of court that it finds necessary to implement the GYRO process and prescribe the forms for the petitions, order, and any other court
documents related to GVROs (e.g., the search warrant form). 6
A. What is a Temporary Emergency "Gun Violence Restraining
Order"?
Only a law enforcement officer can seek a temporary emergency GVR0.7 This is generally because emergency restraining orders are meant
to be used in urgent situations where a law enforcement officer is at the
5
See CAL PENAL CODE §§ 830-832.9.
CAL. PENAL CoDE § 18105. Members of the public and originations can submit proposals for the
rules, standards, or forms directly to the Judicial Council under California Rules of Court 10.21.
This process can (and should) be used to submit proposed forms to the Judicial Council that relate
to the GVRO search warrant and GVRO forms. The search warrant form should contain a statement that explicitly outlines the restrictions on seizing firearms :md ammunition owned by another
cohabitant to apprise law enforcement of this exception, and the form for the petition should contain a strong warning language to apprise people that lying on the petition is a misdemeanor crime.
Searches based on GVROs and lying on petitions for GVROs will be discussed in further detail
later in this bopklet.
7
CAL. PENAL CODE§§ 18125(a), 18130 (effective January 1, 2016). However, law enforcement agencies and law enforcement officers are not required to seek a "gun violence restraining order" in
every case, including in a case in which the agency or officer concludes, after an investigation, that
the criteria for issuance of a "gun violence restraining order" is not satisfied. CAL. PENAL CODE §
18109 (effective January 1, 2016).
6
WHAT KINDS OF "GUN VIOLENCE RESTRAINING ORDERS" ARE THERE?
I5
scene of an incident and believes that the person is an immediate danger
to themselves or to others. 8
A law enforcement officer can request a temporary emergency
GYRO by submitting a written petition to a court or by calling a judicial
officer and orally requesting the order. 9 This can be done at any time of
day or night. In the petition (whether made in writing or orally), the law
enforcement officer must describe '"the number, types, and locations of
any firearms and ammunition that" he or she believes are presently in
the possession or control of the person whom the restraining order is
sought against. 10
.
.
When Can a Court Issue a Temporary Emergency "Gun Violence
Restraining Order''?
i.
A court may issue the restraining order ex parte 11 if the law enforcement
officer asserts, and the court finds,, that there is "reasqnable cause" to
believe both of the following:
( 1) The person whom the restraining order is sought against
poses an immediate and present danger of causing personal
injury to himself or herself, or to another by having in his or
her custody or control, owning, purchasing, possessing, or
receiving firearms 12 ; and
(2) A temporary emergency restraining order is necessary to
prevent the person from injuring himself or herself, or
another because less restrictive alternatives have either been
tried and found to be ineffective, or have been determined to
be inadequate or inappropriate for the circumstances. 13
a.
"Danger to Himself or Herself, or to Another" Element
The requirement that a person must pose a present danger to himself or
herself or to another is not unusual under California law. Most notably,
' Oddly, in these types of situations, a police officer could also choose to take the person to a mental
health facility for evaluation and treatment under California Health & Safety Code section 5150,
which is likely the better choice because it would actually help the person with their mental health
disorder instead of just taking their firearms away and leaving them to their own devices.
9
CAL. PENAL CooE § 18145(a) (effective January 1, 2016). However, a law enforcement officer can
only call a judicial officer and make an oral petition when the "time and circumstances do not permit the submission of a written pehtion." Cal. Penal Code§ 18145(a)(2) (effective January 1, 2016).
10
CAL. PENAL CooE § 18107 (effective January 1, 2016).
"Ex parte" is a Latin term that means "(o]n or from one party only ... without notice to or argument from the adverse part( BLACK'S LAW DICTIONARY (9TH Eo. 2009) .
11
12
•
13
determined by the factors listed in California Penal Code section 18155.
CAL. PENAL CooE § 18125(a).
AJ;
6
I GUN VIOLENCE RESTRAINING ORDERS
California Welfare & Institutions Code section 5150(a) uses the same
language. Specifically, it states:
"When a person, as a result of a mental health disorder, is a
danger to others, or to himse[f or herself, or gravely disabled;' a
peace officer or medical healthcare provider "may, upon probable cause, take, or cause to be taken, the person into custody .
for a period of up to 72 hours for assessment, evaluation, and
crisis intervention, or placement for evaluation and treatment
in a facility ... :' 14
Given the similar requirements between these two laws, it begs the
question as to why the GYRO process is necessary at all. A commitment
under California 1Nelfare & Institutions Code section 5150 has the same
effect as a GYRO. Moreover, a commitment under Section 5150 actually
does more to help the person's underlying mental condition. Specifically,
California Welfilfe & Institutions Code section 5150 allows a peace officer or medical health care provider to take a person - whom they believe
is a danger to him or herself, or to another - into custody for up to 72
hours so that he or she can be evaluated and treated for his or her mental health condition. 15 The moment a person is committed (even is for
a short amount of time), he or she is prohibited from owning and possessing firearms and ammunition for a period of five years. 16 Compare
that process to a GYRO, which only requires at-risk persons to divest
themselves of their firearms for a short amount of time and does nothing
to prevent them from potentially hurting themselves or another person.
Some commentators have argued that had law enforcement 1=ommitted the young man responsible for the "Isla Vista Shooting" under
California Welfare & Institutions Code sec ti on 5150 when they first did
a welfare check on him, the tragic event could have been avoided altogether. In fact, the young man's parents notified law enforcement that
they had concerns about his mental condition, and there were reports
that the shooter had a history of confrontations going back to 2011. 17 In
other words, the pirocesses that were in place before the passage of AB
1014 would have been sufficient to curtail the danger .that GVROs are
meant to prevent (;i.e., removing firearms from those who are a danger
to themselves or to others).
14
CAL. WELF. & INST. CODIE§
15
CAL. WELF. & INST. CODE§
5150(a).
5150.
16
CAL. WEL & INST. CODE§ 8103(f).
17
Alan Duke, Tzmeline to "Retribution": Isla Vista Attacks Planned Over Years, CNN (May 27, 2014);
http://www.cnn.com/2014/ 05/26/justice/califomia-elliot-rodger-timeline.
- WHAT KINDS OF"GUN VIOLENCE RESTRAINING ORDERS" ARE THERE?
b.
I7
"Availability of Less Restrictive Alternatives" Element
Notice that before issuing a temporary emergency GVRO (or any type
of GVRO for that matter), a court must find that "less restrictive alternatives has been tried and found to be ineffective, or have been determined
to be inadequate or inappropriate for the circumstances of the subject
of the petition:' 18 The potential problem here is that taking a person
into custody for a mental health evaluation under California Welfare
& Institutions Code section 5150 may be considered a "less restrictive
alternative:' However, if that is the case, then there would be no need to
issue a temporary emergency GVRO because the person would already
be prohibited from owning and possessing firearms. 19
18
CAL. PENAL CODE§ 18125(a).
19
CAL. WEL
&
INST. CODE§, 8103(f).
8
I GUN VIOLENCE RESTRAINING ORDERS
Unanswered Questions
The requirement that a law enforcement officer must describe the number, types, and locations of any firearms and ammunition that he or she
believes are in the possession or control of the person subject to the order
begs a number of different questions. For example:
( 1)
How will a law enforcement officer determine which firearms the
person possesses, much less the number, type, or locations of the
firearms 20
(2)
Other than making a guess or assumption, how would a law
enforcement officer know where a person's firearms are being
stored? Presumably, this would tie in with an officer's ability to
obtain a search warrant; without substantiating information or
"probable cause" to believe the firearms are in a person's residence, how would a search warrant be issued?
(3)
What about privacy concerns? GVROs are public documents,
which means that they woul? ·reveal otherwise private information to the public and potentially endanger individuals.
(4)
If AB 1014's purpose was truly disarmament, what happens when
a law enforcement officer runs a report under the Automated
Firearm System (AFS) and no firearms are discovered to be registered in that person's name? At that point, why would a GYRO be
needed to prohibit a person from owning and possessing firearms?
(5)
If the person does not own or possess firearms, and therefore
does not turn anything in once a GYRO is issued, would a law
enforcement officer nonetheless seek a warrant to search the
person's home?
(6)
Because the AFS is a notoriously inaccurate database, could a
warrant be issued using that information alone? 21
'° Although law enforcement could check the Automated Firearms System (AFS), which has a record of some of the firearms registered to people in California, this system is notoriously inaccurate.
21
This same situation arises with data obtained from the Armed Prohibited Person System (APPS),
which uses the AFS. Generally, law enforcement officers cannot obtai~ a warrant based solely on the
information contained in APPS because the AFS has proven to be so unreliable and the information
can be outdated.
WHATKINDSOF"GUNVIOLENCERESTRAININGORDERS" ARE THERE?
ii.
I9
What Happens After a Court Issues ·a Temporary Emergency "Gun
Violence Restraining Order"?
If issued, a temporary emergency GVRO is effective for twenty-one
days.22 During this time, the person subject to the order is prohibited
from having in his or her custody or control, owning, purchasing, possessing, and receiving, or attempting to purch,ase or receive, a firearm
and ammunition. 23
After the emergency order is issued, it must be served on the restrained person by a law enforcement officer if he or she can be reasonably located. 24 Moreover, the following information must be included on
the face of the order:
( 1) A statement of the grounds supporting the issuance of the
order; and
(2) The date and time the order expires; and
(3) The address of the superior court for the county in which the
restrained person resides; and
(4) The following statement: "To the restrained person: This
order will last until the date and time noted above. You are
required to surrender all firearms and ammunition that you
own or possess in accordance with Section 18120 of the Penal Code and 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.
However, a more permanent gun violence restraining order
may be obtained from the court. You may seek the advice of ·
an attorney as to any matter connected with the order. The
attorney should be consulted promptly so that the attorney
may assist you in any matter connected with the order:' 25
After the expiration of the temporary emergency order, a law en forcement officer or an "immediate family member" can seek a more
permanent GVRO (i.e., one issued after notice. and a hearing), which
will be explained in further detail later.
22
CAL. PENAL CODE§ 18125{b) (effective January 1, 2016).
23
CAL. PENAL CODE§§ 18120{a), 18l25(b) (effei:tive January 1, 2016).
24
CAL. PENAL CODE§§ 18140(a) (effective January 1, 2016).
25
CAL. PENAL CoDE § 18135 {effective fanuary 1, 2016).
10
I GUN VIOLENCE RESTRAINING ORDERS
B. Wh3:t is an Ex Parte "Gun Violence Restraining Order"?
.
Ex parte restraining orders are court orders that can be issued on the application of one party, and without providing notice to or hearir'ig an ar~
gument from the person whom the restraining order is sought against. 26
Unlike temporary emergency GYROs, both law enforcement officers
and "immediate family m.-embers" can seek an ex parte GYR0. 27
To request the order, a law enforcement officer or "immediate family member" must submit a petition, under oath, with the court. The
petition may be supported by affidavit, or an oral statement, 28 and any
other additional information to help the court determine whether there
is enough evidence to grant the order. 29 However, the petition must describe "the number, types, and locations of any firearms and ammunition that" the law enforcement officer or "immediate family member"
believes are presently in the possession or control of the person whom
the restraining order is sought against. 30
i.
When Can a Court Issue an Ex Parte "Gun Violence Restraining Order''?
After a law enforcement officer or "immediate family member" submits
a petition for an ex parte GYRO, it must be reviewed by the court and
granted or denied the same day it is submitted, unless it is too late in the
day for effective review, in which case it must be reviewed and granted
or denied on the next judicial business day. 11
A court may issue an ex parte GYRO if it finds that there is a "substantial likelihood" 32 that both of the following are true:
( 1) The person whom the restraining order is being sought
against poses a danger in the near future of personal injury to
himself, herself, or another by having in his or her custody or
control, owning, purchasing, possessing, or_ receiving a firearm33; and
(2) The order is necessary to prevent the person from injuring
himself, herself, or another because less restrictive alterna See Ex PARTE, BLACK'S LAW DICTIONARY (9th ed. 2009).
CAL PENAL CoDE § 18150(a)(l) (effective January 1, 2016).
28
The oral statement must be taken in accordance with California Penal Code section 18155(a).
29
CAL. PENAL CODE§ 18150(b) (effective January 1, 2016).
30
CAL PENAL CODE§ 18107 (effective January 1, 2016).
31
CAL. PENAL CODE§ 18150(d) (effective January I, 2016).
32
One of the major issues with ex parte GYRO is that the evidentiary standard of a "substa-!ltial
likelihood" is nowhere defined, and it is unclear as to what exactly the standard would be.
33
As determined by the factors listed in California Penal Code section 18155.
26
27
WHAT KINDS OF "GUN VIOLENCT RESTRAINING ORDERS" ARE THERE'
I 11
tives either have been tried and found to be ineffective, or are
inadequate or inappropriate for the circumstances. 34
Before issuing an ex parte GVRO, the court must examine the person who filed the petition for the GVRO and any witnesses he or she
may produce, or the court may require them to submit written affida vits signed under oath. 35 Moreover, in determining whether there are
grounds to issue the ex parte order, the court must consider whether the
person whom the order is being sought against has:
( 1) Made a recent threat of violence or performed an act of
violence to another person; and
(2) Made a recent threat of violence or performed an act of
violence to himself or herself; and
(3) Recently violated an emergency protective order36 that is in
effect at the time the court is considering the petition for the
order; and
( 4) Recently violated an unexpired protective order37 ; and
(5) Been convicted of an offense listed in California Penal Code
section 29805; and
( 6) Engaged in a pattern of violent acts or violent threats within
·the past twelve months. 38
The court may also consider any other evidence of an increased risk
of violence, including, but not limited to, any evidence that the person
against whom the order is being sought has:
( 1) Unlawfully and recklessly used, displayed, or brandished a
firearm; or
(2) A history of using, attempting to use, or threatening to use
·
physical force against another person; or
(3) Been arrested for other felony offenses; or
( 4) A history of violating protective orders 39 ; or
34
CAL. PENAL Com:§ !8150(b) (effective January l, 2016).
35
CAL. PENAL CODE§ 18155(a) (effective January l, 2016).
36
The emergency protective order must have been issued under California Code of Civil Procedure
section 646.91 or Part 3 (commencing with section 6240) of Division 10 of the California Family
Code. CAL. PENAL CooE § 18!55(b)(l)(C) (effective January 1, 2016).
37
The protective order must have been issued under Part 4 (commencing with section 6300) of
Division 10 of the Family Code; California Penal Code"sections 136.2; California Code of Civil
Procedure section 527.6; or California Welfare & Institutions Code section 213.5 or 15657.03. CAL.
PENAL CoDE § 18155(b)(l)(D) (effective January l, 2016).
38
39
CAL. PENAL CODE§ 18155(a) (effective January l, 2016).
Issued under Part 4 (commencing with section 6300) of Division 10 of the Family Code; California Penal Code sections 136.2; California Code of Civil Procedure section 527.6; or California
12
I GUN VIOLENCE RESTRAINING ORDERS
(5) Either recent criminal offenses involving controlled substances or alcohol or ongoing abuse of a controlled substance or alcohol, as documented in evidence including, but not limited
to, police reports and records of conviction; or
(6) Recently acquired firearms. 40
ii.
What Happens After a Court Issues an Ex Parte "Gun Violence
Restraining Order"?
Once a court issues an ex parte GVRO, the order must be personally
served on the restrained person by a law enforcement officer, or by any
other person who is at least eighteen -years-old and is not a party to the
action, if the restrained person can be reasonably located. 41 When the
order is personally served by a law enforcement officer, the officer must
inform the restrained person about the hearing that has been sdieduled
for a permanent GVRO (i.e., an order issued after notice and a hearing).
The following information must also be included on the face of the
order:
(I) A statement of the grounds supporting the issuance of the
order; and
(2) 1he date and time the order expires; and
(3) The address of the superior court in which any responsive
pleading should be filed; and
(4) The date and time of the scheduled hearing; and
(5) The following statement: "To the restrained person: This order is valid until the expiration date and time noted above.
You are required to surrender all firearms and ammunition
that you own or possess in accordance with Section 18120
of the Penal Code and 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. A hearing will be held on the date and at the time
noted above to determine if a more permanent gun violence
restraining order should be issued. Failure to appear at that
hearing may result in a court making an order against you
that is valid for a year. You may seek the advice of an attorney as to any matter connected with the order. 1he attorney
should be consulted promptly so that the attorney may assist
Welfare & Institutions Code section 213.5 or 15657.03. CAL. PENAL CoDE § 18155(b)(l)(D). (ef·
fective January I, 2016).
4
°CAL. PENAL CODE§ 18155(b)(2) (effective J<muary I, 2016).
41
CAL. PENAL CODE§ 18160(b)(l) (effective January I, 2016).
WHAT KINDS OF ''.GUN VIOLENCE RESTRAINING ORDERS" ARE THERE?
I 13
you in any matter connected with the order:' 42
An ex parte GVRO can last for up to twenty-one days. Within those
twenty-one days, the court must hold a hearing to determine if a more
permanent GVRO (i.e., one issued after notice and a hearing) should be
issued (discussed below). However, this hearing can be postponed or
continued to a later date on a showing of good cause. 43 But, the ex parte restraining order will stay in effect until the hearing is held, thereby
stripping a person of his or her right to own and possess firearms until
the later hearing date or for an indefinite period of time if the hearing
isn't scheduled.
While subject to an ex parte GVRO, the restrained person is
prohibited from having in their custody or control, owning, possessing,
purchasing, receiving, or attempting to purchase or receive firearms and
ammunition while the restraining order is in effect. 44 Any person who
knowingly violates this restriction is guilty of a misdemeanor. 45
iii. What Happens if the Court Does Not Hold A Hearing Within Twenty·
One Days After a Person Receives an Ex Parte "Gun Violence
Restraining Order"?
As explained in the last section, the court must hold a hearing to determine whether a permanent GVRO (i.e., one issued after notice and
a hearing) should be issued within twenty-one (21) days of issuing the
order. Although the court can postpone or continue the hearing to a
later date, 46 there may be times where a court does not postpone or grant
a continuance, but nonetheless schedules the hearing for a date past the
required twenty-one day period. In such a case, there may be an argument that the court does not have the authority to issue the permanent
GVRO because it would be acting in excess of its jurisdictionY
A court generally acts in excess of its jurisdiction when "the court
has jurisdiction over the subject matter and the parties in the fundamental sense, [but] it has no 'jurisdiction' (or power) to act except in
a particular manner, or to give certain kinds of relief, or to act without
the occurrence of certain procedural prerequisites." 48 Given that the court
"CAL. PENAL CODE§ 18160(a) (effective January 1, 2016).
"CAL. PENAL CODE§ 18195 (effective January 1, 2016).
44
CAL. PENAL CODE§ 18120(a) (effective January 1, 2016).
45
CAL. PENAL CODE§ 18205 (effective January 1, 2016).
46
CAL. PENAL CODE§ 18195 (effective January 1, 2016).
47
See McDonald v. Sup. Ct. of Sierra Cnty., 18 Cal. App. 2d 652 (1987); Dotto v. Buller, No. A097164,
2002 WL 31268296, at *5 (Cal. Ct. App. Oct. 10, 2002).
" Conservatorship of O'Connor, 48 Cal. App. 4th 1076, 1087-1088 (1996) (citing Law Offices of
Stanley J. Bell v. Shine, Browne & Diamond, 36 Cal. App. 4th 1011, 1022 (1995)) (emphasis added).
14 \ GtJNVIOLENCE RESTRAINING ORDERS
is required to provide a person with a hearing within the twenty-one
day period, it would likely be exceeding its jurisdiction - and therefore
would have no power to grant a more permanent GYRO - if the court
held the hearing at a time beyond the twenty-one day period without
lawfully postponing or continuing the hearing to a later date. 49 However,
keep in mind that this would also not preclude a person from filing for
another GVRO.
C. What Is a "Gun Violence Restraining Order'' Issued After Notice
and a Hearing?
Law enforcement officers and "immediate family members" can request
that a court issue a GVRO, after notice and a hearing,5° that would prohibit a person from owning and possessing firearms and ammunition
for one year. 51
To request this type of GYRO, a law enforcement officer or "immediate family member" must submit a petitiQn to the court that describes
the number, types, and locations of any firearms and ammunition that
are believed to be in the person's possession or control. 52 Although law
enforcement officers and "immediate family members" can request this
type of GV RO individually in a petition, they are more likely to simultaneously request both an ex parte GVRO and this more permanent
GYRO, issued after notice and a hearing, in the same petition.
i.
When Can a Court Issue a "Gun Violence Restraining Order" After
Notice and Hearing
Before a court can issue a permanent G VRO, it must hold a hearing
to determine whether the order should be issued. At the hearing, the
person who requested the order has the burden of proving by "clear and
convincing" 53 evidence that both of_the following are true:
( 1) The person whom the restraining order is being sought against
poses a significant danger of personal injury to himself, her49
Keep in mind, however, that this does not preclude the party from re-filing for another GVRO.
Notice that an ex parte (;VRO discussed eadier, a court did not have to give notice or a hearing
before it could issue an order prohibiting the restrained individual from owning firearms and ammunition. Remember, a court can issue temporary emergency and ex parte orders without providing notice or a hearing to the person who is sought to be restrained.
51
CAL. PENAL CODE§ l8170(a) (effective January l, 2016).
52
CAL. PENAL CooE § 18170(a) (effective January 1, 2016).
50
53
"Clear and convincing" evidence is a higher evidentiary bar than a "substantial likelihood.'' It
requires a "finding of high probability, or evidence so clear as to leave no substantial doubt; proof
must be sufficiently strong to command the unhesitating assent of every reasonable mind.'' In re
Michael G., 63 Cal. App. 4th 700, 709 n.6 (1998) (internal citations omitted).
WHAT KINDS OF "GUN VIOLENCE RESTRAINING ORDERS" ARE THERE?
I 15
self, or another by having in his or her custody or control,
owning, purchasing, possessing, or receiving firearms; and
(2) The order is necessary to prevent the person from injuring
himself, herself, or another because less restrictive alternatives either have been tried and found to be ineffective, or are
inadequate or inappropriate for the circumstances. 54
In determining whether there are grounds to issue the GYRO, the
court must consider whether the person whom the order is being sought
against has:·
( l) Made a recent threat of violence or performed an act of
violence to another person; and ·
(2) Made a recent threat of violence or performed an act of
violence to himself or herself; and
(3) Recently violated an emergency protective order55 that is in
effect at the time the court is considering the present petition
for the GYRO; and
.
(4) Recently violated an unexpired protective order56 ; and
(5) Been convicted of an offense listed in California Penal Code
section 29805; and
(6) Engaged in a pattern of violent acts or violent threats within
the past twelve months. 57
The court may also consider any other evidence of an increased risk
of violence, including, but not limited to, any evidence that the person
against whom the order is being sought has:
( 1) Unlawfully and recklessly used, displayed, or brandished a
firearm; or
(2) A history of using, attempting to use, or threatened to use
physical force against another person; or
(3) Been arrested for other felony offenses; or
(4) A history of violating protective orders 58 ; or
54
CAL. PENAL CODE§ 18175(b) (effective January 1, 2016).
The emergency protective order must have been issued under California Code of Civil Procedure
section 646.91 or Part 3 (commencing with section 6240) of Division 10 of the California Family
Code. CAL. PENAL CODE§ 18155(b)(l)(C) (effective January l, 2016).
55
"!he protective order must have been issued under Part 4 (commencing with section 6300) of
Division 10 of the Family Code; California Penal Code sections 136.2; California Code of Civil
Procedure section 527.6; or California Welfare & Institutions Code section 213.5 or 15657.03. CAL.
PENAL Com§ 18155(b)(l)(D) (effective January 1, 2016).
56
57
CAL. PENAL CODE§ 18155(a) (effective January 1, 2016).
Issued under Part 4 (commencing with section 6300) of Division 10 of the Family Code; California Penal Code sections 136.2; California Code of Civil Procedure section 527.6; or California
58
16 / GUN VIOLENCE RESTRAINING ORDERS
(5) Either recent criminal offenses involving controlled substances or alcohol or ongoing abuse of a controlled substance or alcohol, as documented in evidence including, but not limited
to, police reports and records of conviction; or
(6) Either recent criminal offenses involving controlled substances or alcohol or ongoing abuse of a controlled substance or alcohol, as documented in evidence including, but _not limited
to, police reports and records of conviction;
(7) Recently acquired firearms. 59
If the court finds that there is "clear and convincing evidence:' then
it must issue the GYR0. 61 Otherwise, the request must be denied, and
any previously issued emergency or ex parte GYRO must be dissolved. 62
Should You Hire An Attorney To
Represent You at the Hearing?
In California, the court system allows laypersons to seek restraining orders and represent themselves in court. In a vast majority of cases
where a layperson requests a restraining order, both the plaintiff (i.e., the
person that initiated the suit) and the defendant (i.e., the person against
whom the restraining order is being sought against) will typically represent themselves in court, usually for monetary reasons. 60
A problem arises, however, when a law enforcement officer is the party
who is requesting the GVRO. This is generally because a law enforcement
officer will not represent himself or· herself at the hearing. Instead, of-
ficers will be represented by either a city attorney, county counsel, or a • · I
district attorney. That means that private parties who choose to represent
themselves at a GYRO hearing will likely be outmatched by a government
attorney who is better trained on the ins~and-outs of the court system.
Therefore, to stand a chance at the hearing, it is in your best interest to
contact an attorney when you receive notice that a law enforcement officer (or a layperson) has requested that a GVRO be issued against you.
Welfare & Institutions Code section 213.5 or 15657.03. CAL. PENAL CODE § 18155(b)(l)(D)_ (effective )anuary 1, 2016).
59
CAL. PENAL CODE§ 18155(b)(2) (effective January 1, 2016).
°Keep in mind that a person is not entitled to a public defender for this fype of hearing because
these are civil, and not criminal, actions.
61
CAL. PENAL CODE§ 18175(c)(l) (effective January 1, 2016)_
6
62
CAL. PENAL CODE§ 18175(c)(2) (effective January 1, 2016)_
WHAT KINDS OF "GUN VIOLENCE RESTRAINING ORDERS" ARE THERE?
ii.
I 17
What Happens After a Court Issues a "Gun Violence Restraining
Order" After Notice and a Hearing?
If issued, a GVRO after notice and a hearing is effective for one year. 63
During this time, the person subject to the order is prohibited from having in his or her custody or control, owning, purchasing, possessing,
and receiving, or attempting to purchase or receive, a firearm and am munition. 64
Generally, the person subject to the order will be (or at least should
be) present in court when the order is issued, in which case, he or she
should receive a copy of. the GVRO at the end of the hearing. However,
if they are not present in court at the time it was issued, then the order
must be personally served on the restrained person by a law enforcement officer or any person who is at least eighteen-years-old and not a
party to the action, if the restrained person can be reasonably located. 65
Either way, the order must include all of the following information:
(1) A statement of the grounds supporting the issuance of the
order; and
(2) The date and time the order expires; and
(3) The address of the superior court in which the restrained
party resides; and
(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 the order at any time during
its effective period. You may seek the advice of an attorney as
to any matter connected with this order:' 66
Moreover, anytime a court issues a GVRO after notice and a hearing, it must inform the restrained person that he or she is entitled to one
hearing to request that the order be terminated, and he or she must be
provided a form to request such a hearing. 67
63
CAL. PENAL CODE§ 18175(d) (effective January 1, 2016).
64
CAL. PENAL CODE§§ 18120(a), 18125(b) (effective January 1, 2016).
65
CAL. PENAL CODE§ 18197 (effective January I, 2016).
66
CAL. PENAL CODE§ 18180(a) (effective January I, 2016).
67
CAL. PENAL CODE§ 18180(b) (effective January I, 2016).
18
I GUN VIOLENCE RESTRAIN/NG ORDERS
iii. Renewing a "Gun Vi.olence Restraining Order" Issued After Notice and
a Hearing
A GYRO that was issued after notice and a hearing can be renewed by an
"immediate family member" of a restrained person or by a law enforcement officer any time within the last three months before the order expires.68 However, before the order can be renewed, the restrained person
must be provided notice and a hearing. 69
At the hearing for renewal, the person(s) who requested that the order has the burden of proving by "clear and convincing" evidence that:
( 1) The restrained person still poses a significant danger of personal injury to himself, herself, or another by having in his
or her custody or control, owning, purchasing, possessing, or
receiving firearms; and
(2) The order is s.till necessary to prevent the person from injur-
ing himself, herself, or another because less restrictive alternatives either have been tried and found to be ineffective, or
are inadequate or inappropriate for the circumstances. 70
If the court finds that there is "clear and convincing" evidence, it
must renew the GYRO for another year. 71 The renewed order must contain all of the following information:
( 1) A statement of the grounds supporting the issuance of the
order; and
(2) The date and time the order expires; and
(3) The address of the superior court in which any responsive
pleading should be filed; and
(4) The following statement: "To the restrained person: This order is valid until the expiration date and time noted above.
You are required to 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
68
CAL PENAL CODE§ 18190(a) (effective January l, 2016).
69
CAL PENAL CODE§ 18190(b) (effective January I, 2016).
7
° CAL. PENAL CoDE §§ 18175(b), 18190(b) (effective January 1, 2016).
71
CAL. PENAL CODE § 18!90(e)-(f). Note that when making this determination, the court must
consider evidence of the facts identified in California Penal Code section 181 SS(b )(I) and any other
evidence of an increased risk for violence, including, but not limited to, evidence of any facts identi·fied in California Penal Code section 1815S(b)(2).
WHAT KINDS OF "GUN VIOLENCE RESTRAINING ORDERS" ARE THERE7
I 19
period. You may seek the advice ~fan attorney as to any matter connected with the order:' 72
.'.
How Many Times Can a "Gun Violence
Restraining Ordern be Renewed?
Oddly, there is no restriction on the number of times that a GVRO issued after notice and a hearing can be renewed. In other words, it seems
that they can be renewed indefinitely. In theory, this means that the restrained person's Second Amendment rights can potentially be stripped
away indefinitely.
iv. Early Termination of a "Gun Violence Restraining Order" Issued
. After Notice and a Hearing
A perso~ who is subject to a GVRO issued after notice and a hearing
can submit one written request for a hearing to terminate the order at
any time the order is in effect. 73 The restrained person should be able
to make this request by using the form that should have been provided
when he or she received the original court order.
After the request has been submitted, the court must hold a hearing
to determine whether the order should be terminated. At the hearing,
the court must determine whether there is still "clear and convincing"
evidence to believe that:
(I) The restrained person still poses a significant danger of personal injury to himself, herself, or another by having in his
or her custody or control, owning, purchasing, possessing, or
receiving firearms; and
(2) The order is still necessary to prevent the person from injuring himself, herself, or another because less restrictive alternatives either have been tried and found to be ineffective, or
are inadequate or inappropriate for the circumstances. 74
If the court finds that there is no longer "clear and convincing" evidence after the hearing, then it must terminate the order, thereby restoring the restrained person's right to own and possess firearms and
ammunition. 75
72
CAL. PENAL CODE§§ 18180(a), l8190(g) (effective January 1, 2016).
73
CAL. PENAL CODE§ 18185 (effective January I, 2016).
74
CAL. PENAL CODE§§ l817S(b)(l)-(2), 1818S(b) (effective January 1, 2016).
75
CAL. PENAL CODE§ 1818S(b) (effective January 1, 2016).
20 \ GUN VIOLENCE RESTRAINING ORDERS
What is the Punishment for Violating a "Gun Violence
Restraining Order"?
Any person who has in his or her custody or control, owns, purchases,
possesses, or receives a firearm or ammunition while he or she is subject
to any type of GVRO is guilty of a misdemeanor. 76 Moreover, any person
convicted of this misdemeanor offense will be prohibited from owning
and possessing firearms and ammunition for five years after the restraining order has expired. 77
What Should a Gun Owner Do With His or Her Firearms
& Ammunition After Receiving a "Gun Violence
Restraining Order"?
Once a court issues a GVRO, it must order the restrained person to surrender all firearms and ammunition in his or her custody or control, or
that he or she possesses or owns to a local law enforcement agency. 78
However, depending on the circumstances, the restrained person may
be able to sell his or her firearms and ammunition to a licensed firearms
dealer instead of surrendering them to law enforcement.
Generally, a restrained person is only required to surrender his or
her firearms and ammunition to law enforcement when a law enforcement officer requests them. 79 In the event that the officer does not request the firearms when serving the order (or a person other than a law
enforcement officer serves the order), then the restrained person has the
option of either:
( 1) Surrendering his or her firearms and ammunition to a local
law enforcement agency; or
(2) Selling his or her firearms and ammunition to a licensed firearms dealer. 80
76
CAL. PENAL CODE§ 18205 (effective January l, 2016).
77
CAL. PENAL CODE§ 18205 (effective January 1, 2016).
78
CAL. PENAL CODE§ 18120(b)(l) (effective January 1, 2016). In the case of a GVRO issued after
notice and a hearing, the restrained person is still required to surrender or sell his or her firearms,
even if they failed to do so when they received an emergency or ex parte order. Cal. Penal Code §
18180(a)(4) (effective January 1, 2016).
79
CAL. PENAL CODE§ 18120(b)(2). A law enforcement officer must request the firearms whenever
he or she is serving a GVRO that indicates that the restrained person possess firearms and ammunition. CAL. PENAL CODE§ 18120(b)(2).
8
° CAL. PENAL CODE§
18120(b)(2).
WHAT SHO\JLD A GUN OWNER DO WITH HIS OR HER FIREARMS & AMMUNITION AITTR
RECTIVlNG A "GUN VIOLENCE RESTRAINING ORDER".,
I 21
Regardless of what option the restrained individual chooses, the restrained person must surrender or sell any and all firearms that he or she
owns or possesses within twenty-four (24) hours of being served with the
order.81 Moreover, within forty-eight (48) hours of being served with the
order, the restrained person must file an original receipt with the court
that shows that all of his or her firearms were surrenclered to a local law
enforcement agency or sold to a licensed firearms dealer. 82 The restrained
person must also file a receipt with the law enforcement agency that originally served the order. 83 Failing to provide a receipt to the court or the local
law enforcement agency constitutes a violation of the GYRO. 84
Law enforcement must retain any firearms or ammunition that are
surrendered to them for the duration of the order. 85 At the expiration of
the order, law enforcement must return any surrendered firearms or am munition back to the restrained person. 86
In the happenstance that you choose to surre.nder your firearms to a
local law enforcement agency or a law enforcement officer requests them,
keep in mind that a law enforcement agency can destroy your firearms
and ammunition if you do not claim them within '180 days from when
the order has ended. 87 Presumably, law enforcement would provide you
with notice before destroying your firearms as required under Cal}fornia
law, 88 but certain law enforcement agencies have been known to destroy
firearms without ever providing any kind of notice. So be careful, and
make sure you keep in contact with the law enforcement agency that is
storing your firearms.
81
CAL. PENAL CoDE § 18120(b)(2) (effective January 1, 2016). This requirement poses a significant
problem for firearms owners that have large, and often dispersed, firearms collections, as it may be
difficult for the restrained person to retrieve every firearm within twenty-four hours, especially if
some of the collection is stored outside of the state.
82
CAL. PENAL CoDE § 18120(b)(2)(A) (effective January 1, 2016). Except for a "domestic violence
restraining order;' most other restraining orders (e.g., civil harassment orders) do not require the
restrained person to show proof to the court that he or she divested themselves of their firearms.
83
CAL. PENAL CODE§ 18120(b)(2)(B) (effective January 1, 2016).
84
CAL. PENAL CODE§ 18120(b)(2)(A)-(B) (effective January I, 2016).
85
CAL. PENAL CODE§ 18120(c)(l) (effective January 1, 2016).
86
The firearms must be returned in accordance with Chapter 2 (commencing with California Penal
Code section 33850) of Division 11 of Title 4. CAL. PENAL CODE§ 18120(c)(I) (effective January
1, 2016).
87
See CAL. PENAL CODE § 34000.
"See CAL. PENAL CODE§ 34010.
22
I GUN VIOLENCE RESTRAINING ORDERS
Can You Store Your Firearm With a
Licensed Firearms Dealer?
Unfortunately, no. Those served with "gun violence restraining orders"
· must either surrender .or sell their firearms. They do not have the option
to store them with a licensed firearms dealer.
However, this requirement is completely at odds with California law. In
2013, the California Legislature passed a bill (AB 539) that allows people
who are restricted under certain temporary and permanent restraining
orders to store their firearms with a licensed dealer. This effectively gave
people an alternative to turning their firearms over to law enforcementas officers rarely handle surrendered firearms carefully, leaving valuable
antique firearms at a high risk of diminishing in value. Moreover, storing
firearms with a dealer avoids having to go through the long process of
getting surrendered firearms back from law enforcement. Despite these
benefits, however, California legislators chose not to include this option in
the current law for GVROs.
When Can Law Enforcement Seize a Gun Owner's
Firearms and Ammunition?
Law enforcement officers are allowed (and are actually required) to seize
any firearms or ammunition that are found in possession, custody, or
control of a person subject to a GVRO during a consensual or otherwise
lawful search. As a general matter, you have the right to say no to a law
enforcement officer if he or she asks to search your home, so make sure
to exercise this right, and always say no.
However, even if you do not consent to a search, a law enforcement
officer can request a search warrant from a court to enter your home to
seize your firearms and ammunition. The court may issue the search
warrant if:
(1) The property or things to be seized are firearms or ammuni-
tion; and
(2) The firearms or ammunition are owned by, in the possession
of, or in the custody or control of a person who is subject to a
GVRO (either emergency, temporary, or one issued after notice and a hearing); and
(3) The restrained person has been served with the order; and
WHEN CAN LAW tNFORCEMENT SEIZE A GUN OWNER'S FIREARMS AND AMMUl"llTION?
I 23
(4) The restrained person failed to relinquish his or her firearms, 89
Once a search warrant has been issued, law enforcement are allowed
to enter your home to search for the items named in the search warrant. Iflaw enforcement comes to your house 'with a search warrant, you
should step aside, keep quiet, and contact an attorney immediately.
A. The "Failed to Relinquish His or Her Firearms" Requirement
The requirement that a search warrant can only be issued if the restrained
person failed to relinquish his or her firearms creates an interesting (and
potentially dangerous) problem.
As explained above, when a law enforcement officer does not ask a
restrained person to surrender his or her firearms when serving a restraining order, the restrained person has twenty-four (24) hours to either surrender his firearms to law enforcement or sell them to a licensed
firearms dealer. This means that a law enforcement officer would not
be able to get a search warrant to confiscate the firearms from the restrained person until after the twenty-four hour period has expired, as
only at that point has the restrained person technically failed to relin quish his or her firearms as required by the law. 90
'lhis naturally creates a perplexing conundrum where law enforcement is not allowed to get a search warrant to seize a restrained person's
firearms, but nonetheless leave the restrained person - a person who the
court believes may be a danger to himself, herself, or another - with a
twenty-four hour window where he or she can use the firearms to commit whatever acts he or she is intended to be restrained from potentially
doing.
B. Can Law Enforcement Seize a Roommate's Firearms?
Under certain circumstances, law enforcement officers are not allowed
to seize firearms or ammunition that are found in a jointly occupied residence. Specifically, law enforcement officers are not allowed to seize any
firearms or ammunition that are found in the possession, custody, or
control, of the restrained person when:
89
CAL PENAL CODE§
1524(a)(l4) (effective January
° Certainly, a law enforcement agency who seizes
9
1,
2016).
firearms or ammunition pursuant to a search
warrant within the twenty-four hour relinquishment period could (and should) be challenged with
a motion to traverse the warrant. A "motion to traverse" is a motion that "mount[s] a subfacial challenge, i.e., attack[s] the underlying veracity of the statements made on the face of the search warrant
application." People v. Hobbs, 7 Cal. 4th 948, 97 4 (1994). In order to prevail on a motion to traverse,
the defendant must show: (1) the affidavit for the search warrant contained a false statement made
knowingly and intentionally, or with reckless disregard for the truth; and (2) that the false statement
was necessary to the finding of probable cause. People v. Hobbs, 7 Cal. 4th 948, 974 (1994).
24
I GUN VIOLENCE RESTRAINING ORDERS
( 1) The search is conducted pursuant to a search warrant; and
(2) The place being searched is a jointly occupied residern::e where
the restrained person and one or more other persons live; and
(3) The firearms or ammunition are owned by a person other
than the restrained person; and
(4) The firearms or ammunition are removed from the restrained
person's possession, custody, or control and stored in a manner where the restrained person does not have access to or
control of the firearms or am.vrnnition; and
(5) There is no evidence that owner of the firearms or ammuni-
tion is unlawfully possessing them. 91
C. Can Law Enforcement Open a Roommate's Gun Safe?
Moreover, law enforcement officers are not allowed to search the contents of a gun safe that is found during a search of a home pursuant to a
search warrant when:
( 1) The location being searched is a jointly occupied residence
where the restrained person and one or more other persons
live; and
(2) The gun safe is locked; and
(3) The gun safe is owned by someone other than the restrained
person. 92
'The contents of the gun safe, however, can be searched by law enforcement if: (l) the owner is actually present, and (2) either he or she
consents to the search, or (3) the officers have a valid warrant to search
the gun safe. 93
91
CAI.. PENAL CODE§ 1542.S(b)(J) (effective January 1, 2016).
92
CAI.. PENAL CODE§ 1542.5(b)(2) (effective January I, 2016).
93
CAI.. PENAL CODE§ 1542.5(b)(2) (effective January 1, 2016).
WHAT ARE THE REPORTING REQUIREMENTS FOR"GUN VIOLENCE RESTRAINING ORDER5"7
I 25
What Are the Reporting Requirements for "Gun Violence
Restraining Orders"?
After a court issues or renews a GYRO, it is required to electronically notify the California Department of Justice and the local district attorney
within one (1) court day. 94
On the other hand, when a court terminates or dissolves a GYRO
before it expires, it only has to notify the California Department of Justice (DOJ) within five (5) business days. 9 ~5 Moreover, the California Department of Justice has fifteen (15) days to enter the termination or dissolution into its computer system. 96 In other words, it could take up to
twenty (20) days for the entire system to process the fact that a person
is no longer prohibited from owning and possessing firearms and ammunition.
Are There Civil or Criminal Penalties for Someone
Who Files a False Petition for a "Gun Violence
Restraining Order?"
Yes. There are criminal and possibly civil penalties for filing false petitions for GYROs.
A. Criminal Prosecutions
Although there are a number of issues with AB l014, the bill does contain one bright spot: it makes it a misdemeanor for any person to file a
petition for an ex parte GV RO or a GYRO issued after notice and a hearing if he or she knows the information in the petition is false, or if he or
she filed it with the intent to harass. 97
Moreover, given that all petitions for temporary (i.e., emergency or
ex parte) and permanent (i.e., one issued after notice and a hearing),
GYROs must be signed under penalty of perjury before they are filed
with the court, a person could also be convicted of the felony of perjury
if he or she provides information on the petition that he or she knows
"CAL. PENAL CODE§ 181 lS(a) (effective January l, 2016).
"CAL. PENAL CODE§ 18115(b) (effective January 1, 2016).
96
CAL. PENAL CODE§ 181\S(b) (effective January l, 2016).
97
CAL. PENAL CODE§ 18200 (effective January 1, 2016).
26
I GUN VIOLENCE RESTRAINING ORDERS
to be false. 98 Given that a felony conviction results in a steeper penalty
(and therefore a better deterrent), prosecutors should seek to convict
people of perjury if they file a false petition, instead of seeking the lesser
misdemeanor punishment o~tlined above.
B. Civil Actions
If an "immediate family member" files a false petition against a gun
owner, he or she may be entitled to civil damages. 99 Under the Victim's
Bill of Rights Act, which is located in the California Constitution, "[a]
11 persons who suffer losses as a result of criminal activity shall have the
right to seek and secure restitution from the person convicted of the
crimes causing the losses they suffer.... Restitution shall be ordered
from the convicted wrongdoer in every case, regardless of the sentence
or. disposition imposed, in which a crime victim suffers a loss:' 100 The
most common forms of restitution involve compensation for property
damage or medical expenses, but restitution may also include attorney's
fees and any other losses suffered as a result of the falsely filed GVR0. 101
If restitution is not available or insufficient, or if the individual filing the false GVRO was not charged or convicted of the crime, a person may be able to pursue another civil action to secure injunctive relief
or recover monetary damages for any losses suffered as a result of the
false filing. 102 Depending on the facts of a person's case, he or she may
also be able to pursue a claim of abuse of process, misrepresentation or
fraud, or even intentional infliction of emotional distress. 103 If you are
successful in advancing these claims, you may be able to recover your
economic losses as well as be compensated for emotional or mental suffering caused by the false GVR0. 104 Again,. the likelihood of success in
pursuing a civil action hinges on the particular facts of a person's case,
so it is best to speak with an experienced attorney before pursuing any
of these avenues.
98
CAL. PENAL CODE§§ 118-129.
See CAL. CONST., art. II, § 2.1 (A), cl. 8.
10
° CAL. CONST., art. I, § 28, cl. 13(A)-(B).
101
See generally, California Department of Corrections and Rehabilitation, A Victim's Guide to Restitution (December 2012), http://goo.gl/4sdqBg (last visited November 24, 2014).
102
See generally, The National Crime Victim Bar Association, Civil Justice for Victims of Crime in
California (2012 }, https:/ /www. victimsofcrime.orgldocs/NCVBA/ ca-cj- 2012. pdf?sfvrsn=2 (last
visited November 24, 2014).
10
' See generally, The National Crime Victim Bar Association, Civil Justice for Victims of Crime in
California (2012), https://www.victimsofcrime.org/docs/NCVBA/ca-cj-2012.pdf?sfvrsn=2 (last
visited November 24, 2014).
104
See generally, The National Crime Victim Bar Association, Civil Justice for Victims of Crime in
California (2012), https://www.victimsofcrime.org/docs/NCVBA/ca-cj-2012.pdf?sfvrsn=2 (last
·
visited November 24, 2014).
99
ARE "GUN VIOLENCT RESTRAINING ORDERS" CONSTITUTIONAL?
I 27
Are "Gun Violence Restraining Orders" Constitutional?
Although there will likely be a number of legal issues that will need to
be litigated in the courts, the most prominent issue with GVROs is that
they are likely unconstitutional under the Due Process Clause of the U.S.
Constitution.
The Due Process Clause guarantees that "'[n]o person shall ... be
deprived of life, liberty, or property, without due process of law:' 105 As
a general rule, a person "must receive notice and an opportunity to be
heard before the Government deprives them of property:' 106 AB 1014
violates this general rule.
As explained above, a court can issue an ex parte order depriving an
otherwise law-abiding citizen of his or her lawfully owned property (i.e.,
firearms and ammunition) without notice or a hearing, based simply on
the allegations of one person. Moreover, albeit the fact that a person must
be given notice and a hearing after an ex parte order has been issued,
the person will still have to wait up to twenty-one (21) days until he or
she can have an opportunity to defend himself or herself in court. While
waiting for this court date, the person must surrender his or her firearms
and ammunition to law enforcement or sell them to a licensed firearms
dealer, as he or she is legally prohibited from purchasing, possessing, or
owning firearms and ammunition for the time being. This process arguably does not provide sufficient due process to protect the constitutional
liberty interests that are lost as a result of receiving a GYRO.
Outside of the domestic violence context, courts have generally not
ruled on the constitutionality of ex parte restraining orders that require
citizens to surrender or sell their lawfully owned firearms and ammunition without notice and a hearing. Moreover, the courts that have ruled
on the constitutionality of ex parte domestic violence restraining orders
have all been outside of California - which means they are not binding
authority in California. And they are notably distinguishable, as the procedures for ex parte orders in those states require a court to give a person
notice and a hearing within (at the most) a week and a half. 107
105
U.S. CONST., amend.
v.
United States v. James Daniel Good Real Property, 510 U.S. 43, 48 (1993) (emphasis added).
107
Although each of these cases upheld their states ex parte domestic violence restraining order
procedures, a notable difference between these restraining orders and the ones listed above is when
a hearing must be given after issuance of the ex parte restraining order. See Nollet v. Justices of the
Trial Court, 83 F. Supp. 2d 204 (D.C. Mass. 2000) (requiring a hearing within ten days); Brazel v.
Bradley, 698 F. Supp. 756 CW.D. Wis. 1988) (requiring a hearing with seven days); Baker v. Baker,
494 N.W.2d 282 (Minn. 1992) (requiring a hearing within seven days).
106
28 [ GUN VIOLENCE RESTRAINING ORDERS
This is far different than the GYRO proce~s, which can deprive people of their lawftilly owned property, and leave them w:ithout the means
to protect their home and their family, for up to three whole weeks before they are given notice and a hearing.
CONQUSION
I 29
CONCLUSION
In order to protect themselves, California gun owners need to understand and follow California's firearms laws. And to protect the system
from abuse, judges, prosecutors, attorneys, and police do to. We hope
this guide helps.
While this guide can help you understand Jthe law, it is not meant to
replace the knowledge and expertise of an experienced attorney. If you
need a lawyer, or want to report abuses of the GYRO process, the attorneys at Michel & Associates, P.C., can help. Contact them tbrough www.
michellawyers.com or call them at (562) 216-4444.
~1HCHEL
& ASSOCIATES, P.C.
Attornev~
a
La
t
\Y
Helping Firearms Owners, Businesses,
Ranges and Clubs Nationwide
FIREARMS I ENVIRONMENTAL I LAND USE I
LABOR & EMPLOYMENT I CIVIL LITIGAUON
CIVIL RIGHTS ADVOCACY
I CRIMINAL DEFENSE
Michel &'. Associates, P.C. is a full-service law :]rm
representing businesses throughout the country. Owner
C.D. "Chuck" Michel leads a team of over a dozen highly
qualified and experienced attorneys with extensive
experience in a variety of legal specialties. The finn has
been litigating civil and criminal firearm cases since 1991
Some law firms undermine your right to keep and bear
arms by providing pro bona legal services to politicans
who would deprive you of your Second Amendment
rights. This pro bona work is subsidized through the legal
fees paid by business clients. Since it was formed Michel
&; Associates has provided over $3 million worth of
pro bona legal service to indigent gun owners, and to
the non-profit associations that protect your rignts.
Shop for your legal service provider carefully so you
don't inadvertently subsidize the gun ban lobby!
LEGAL FIREPOWER
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Range Protection & Development
As attorneys for the NRA, CRPA, firearm manufacturers,
Range Environmental Issues
wholesalers, and retailers, the lawyers at Michel ~It
Explosives & Destructive Devices
Associates have litigated thousands of cases involving
Entertainment Industry Props
civil rights issues, including Second Amendment
• & Much More
challenges, in both state and federal trial and appellate
courts. They have represented many clients in high
profile cases that have garnered national media attent:on,
Michel&: Associates, P.C
180 East Ocean Boulevard, Suite 200 and have appeared as spokespersons for the NRA and
CRPA
Long Beach, California 90802
(562) 216-4444
www.michellawyers.com
Mr. Michel is frequently quoted concerning Second
Amendment rights by the major daily newspapers, and
by television and radio stations. He is the autnor
of California Firearms Laws, A Guide to State and Federal Fireann
Regr1latio111 (available at CalGunLawsbook.com) j\,1r.
Michel has been honored and profiled in recognition of
his corporate and civil-rights work in multiple
periodicals and by the NRA, which awarded him its
prestigious Defender of Justice Award in 2013. Professor
Michel also teaches Fireanns Law and Law Practice
Management at Chapman University School of law.
Free Gun Law Info
www.calgunlaws.com
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When can you use deadly force?
When can you have a gun?
Where can you have a gun?
How must a gun be possessed?
*
*
*
Which guns are banned?
How do you get guns back from
police?
Can you get back your right to
own a gun?
Who can possess a gun?
California gun owners have lots of legal
responsibilities. There are now over
800 California statutes regulating the
manufacture, distribution, sale, possession,
and use of firearms and ammunition.
'fhen there are hundreds of administrative
regulations, local ordinances, and California
DO) Bureau of Firearms written and
unwritten policies. And there are thousands of
federal laws regulating firearms that apply in
California.
Not only does the 2015 Supplement contain
a number of case updates and technical
revisions, it also covers:
What's more is that nearly three-dozen new
gun-related bills were introduced during the
2014 legislative session. Even though many
of these bills failed, several gun -control bills
were signed into law and took dfcct January
• Changes in rhe ddinition and rcgularion of
"BB devices" and"imitation fire;mns"
• New bws on "gun violence restraining
orders" and rhc risks they pose
• Modificarion of rhe single-shot pistol
excmprion and how ir expands Calircir;1ic1\
rosrer of "unsafC" handguns
• How firearms acquired outside ofC,ilifornia
musr now be rransfcrred imo California
• '!he aurhoriry of city prosecutors to eviu anv
remer who ha.s been arrested for a firearms
offense
1, 2015.
To stay up-to-date on these new laws, buy
the Second Edition of California Gun Laws
and get a free copy of the 2015 Supplement
at www.CRPA.org!
To order, or for more information about this
comprehensive reference book and its author,
civil rights attorney CD. Michel, go to
www.CRPA.org or call
(800) 305-2772.
ISBN 978-0·9884602 1-8
520 pages, $ 22.00
The author of California Gun Laws, C.D. "Chuck" Michel has been litigating civil and
crh.ninal firearms cases since 1991. He has represented thousands of individuals charged
with violating California's confusing gun laws. As an attorney for the National Rifle
Association, California Rifle & Pistol Association, firearm manufacturers, wholesalers, and
retailers, he has litigated hun'dreds of civil and criminal cases involving firearms-law issues,
including Second Amendment challenges, in both state and federal trial and appellate
courts, Many of these cases attracted local _national.. and even worldwide media coverage,
Professor Michel has also taught classes in firearms law at Chapman University Dale E.
F.owler School of Law.
:·
,
www.CRPA.org
Get Informed and Involved in California!
Connect With, Like, Share, Follow: and Help Promote
California Second Amendment Connections
Arm yourself, with the facts! CRPA is expanding its work in California! CRPA members and
their friends can stay up to date on legislation, Second Amendment litigation, local issues, and
more. Now more than ever we need to build the audience of informed civil right activists in
California!
You can sign up for CRPA emails at www.crpa.org and California NRAs Stay Informed emails
at: www.nraila.org/get-involved-locally/secure/stay-informed.aspx. You don't have to be a CRPA
or NRA member to subscribe to either of these resources.
In addition to sending important email alerts that every Californian who believes in the right to
keep and bear arms should receive, the CRPA and NRA sponsor or promote several informative
websites, Facebook, Twitter, Linkedin and YouTube pages. These sites are devoted to keeping
you informed about critical California issues.
Through CRPA membership and these connections, you can be the first to know about important gun rights news, interact and connect with a growing online community of members,
followers, and supporters of the right to keep and bear arms, and take advantage of grassroots
activist tools to let California politicians know what you think of their efforts to take away your
rights.
It is it is critical that every eligible Second Amendment supporter register to vote to have your
voice heard! You can register to vote in CA at: http:/lregistertovote.ca.gov. For information on
how to vote-by-mail, go to: http://www.sos.ca.gov/elections/elections_m.htm.
Websites
Facebook Pages
California Rifle and Pistol Association (www.
CRPA.org): NRA's state association in CA.
California Rifle and Pistol Association (www.
facebook.com/CRPA.org)
NRA-ILA (www.nraila.org): NRA Institute for
Legislative Action.
NRA (www.facebook.com/Nationa!RifleAssociation)
NRA-ILA California (www.nraila.org/gun-laws/
state-laws/california.aspx): CA legislative updates.
CalGunLaws.com (www.facebook.com/MichelLawyers): Breaking California state and local news
about firearms law & Second Amendment civil
rights litigation.
CalNRA (www.calnra.com): California legislative
updates and grassroots action tools.
You Tube
CalGunLaws.com (www.calgunlaws.coin/): News,
biogs, & resources on California firearms law
issues.
California Rifle and Pistol Association (www.
youtube.com/CRPAVideos)
HuntforTruth.org (www.huntfortruth.org/):
Info and science about proposed lead ammo bans
harmful to hunters and shooting ranges.
NRA (www.youtube.com/user/NRAVideos)
NRAStandandFight.com (www.nrastandandfight.
com): Federal issues.
California Rifle and Pistol Association (www.twitter.com/CRPAnews).
NRAblog.com (www.nrablog.com/): NRA's blog.
CalN~ (www.twitter.com/calnra): California
specific breaking up to the minute news from
Sacramento.
NRAnews.com (www.nranews.com): NRA news ·
coverage with Cam & Co.
Linked In
NRA (www.linkedin.com/company/national-rifleassociation)
Twitter
CalGunLaws.com (www.twitter.com/MichelLawyers ): Receive the latest news on gun laws from
the attorneys on the cutting edge of gun law in
California.
NRA (www.twitter.com/nra).
About California Rifle and Pistol Association
Founded in 1875, the California Rifle and Pistol Association (CRPA) is an
organization of sportsmen dedicated to the preservation of our American heritage. In this age of constant political attacks on the rights of
law-abiding citizens to own and use firearms for legitimate purposes, the
CRPA is the state organization dedicated to protecting firearm freedoms
and promoting shooting sports solely in the State of California.
CRPA's lobbyist in Sacramento fights adverse firearms legislation and
advances laws that will protect your rights.
CRPA's Counsel for Litigation and Local Affairs files appropriate
litigation against the state or cities that pass unconstitutional or illegal
ill-conceived gun control laws, monitors local legislative efforts, and mobilizes CRPA's resources to oppose those efforts as necessary.
CRPA's bimonthly publication, The Firing Line and website keeps its
members abreast of current legislative and shooting news, as well as offering a public forum so members can express their views in print.
Though the CRPA is the official state association of the National Rifle
Association, the CRPA is a stand alone California non-profit corporation,
independently controlled by its own Board of Directors. CRPA's members
include: law enforcement officers, prosecutors, professionals, firearm
experts, the general public, and loving parents.
Historically, the CRPA has played an important role in promoting the
shooting sports by conducting state championship matches for adults
and young shooters, teaching firearms safety, and supporting state
teams to the national championships each year.
Every dollar that CRPA receives stays and works in California to support your hunting and Second Amendment rights.
*qID
CALIFORNIA
RIFLE &PISTOL ASSOCIATION
l
Why Join CRPA?
CRPA... _
1. Represents California firearms ownNs.
2. Defends the right to self-defense.
3. Educates gun owners & general public.
4. Promotes safe gun ownership & use.
5. Sanctions championship shooting competitions.
6. Protects the hunting and shooting sports.
7. Keeps you informed.
With Your Membership You Will:
•
Receive the informative bi-monthly magazine, The Firing Line. It's
timely, educational and has the information you've asked for, want
and need.
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Receive free educational material throughout the year.
Receive a CRPA Member decal and membership card.
Receive discounts on firearms, hunting, and self defense training.
Receive discounts on CRPA event admission.
Protect your right to keep and use firearms - for sports, hobby, arid
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Maintain your right to self-defense -- protect yourself when no one
else will.
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Honor America's firearms heritage-· It's your Constitutional legacy.
Fight firearms restrictions - Your voice does make a difference.
•
Participate in and support organized, competitive and recreational
shooting activities including state championships.
•
Be a part of a California-based gun owner's rights organization with
a full-time, salaried legislative advocate in Sacramento.
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Support youth firearm activities such as Training Camps, Junior State
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Help promote access to hunting and defend your rights to do so.
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To join CRPA, call 1 (800) 305-2772 or visit www.CRPA.org
California Rifle and Pistol Association, Inc.
*'®
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1714) 992:2772 FAX (714) 992-2%6 www.crpa.org
CALIFORNIA
lllfil 'PISTOi. ASSUClATIDN
SINCE 1875
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w! paoor copy of The Finng Lme
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H2
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w/ paper copy ol The Finng Uno
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w: p.aper copy or Ti;A Firmg l me
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NATIONAL RIFLE ASSOCIATION
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STEP SIX: Mail this application with payment to:
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CRPA in partnership with FMK will be offering a limited
edition FMK 9mm 9C1 G2 Pistol - made in California featuring the names of 13 famous Californians that helped
make a difference in the Second Amendment.
Only 140 of these will be produced in honor of the
California Rifle & Pistol Association's 140th Anniversary
in 2015.
Call CRPA today to purchase your limited edition
FMK and ask about the discounted rate for
becoming a CRPA life member!
(714) 992-27?2
YOU'LL PROTECT YOUR LIFE ...
A lot has changed in receni years. The firearms
industry is under more scrutiny than eyer before and
honest mistakes can cause big problems for your
business. There is no complacency in compliance,
take the proper measures to ensure your business
is secure, protected and around for many years to
come.
The lawyers and ATF compliance specialists at
FFLGuard have created a specifically tailored
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levels,
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WHY WOULDN'T YOU PROTECT YOUR LIVELIHOOD?