As of January 1, 2016 a landmark California gun seizure law has taken effect known as the ‘Gun Violence Restraining Order’ law. This law gives the police, or immediate family members, the option to petition the courts to have guns and ammunition seized from someone they believe poses a threat to themselves or others. This is the first law of its kind in the country. Despite going into effect the law has proven controversial with concerns being raised from pro-gun groups and lawmakers alike about civil liberties and how effective the law will really be.
The Gun Violence Restraining Order law is modeled after firearms prohibitions found in domestic violence restraining orders. The statue allows for law enforcement or immediate family members to ask a judge to issue a restraining order if they feel that someone is a danger to themselves or a danger to others. In addition, the order would prevent the person from being able to purchase a firearm by having them placed on California’s do-not-buy list.
What is considered an “immediate family member”?
The term “immediate family member” includes a range of relatives whether blood relatives or not. It also includes anyone who has regularly resided with the subject in question within the last six months, in the same household. However, court documents state that even if you do not have the necessary “immediate family” relationship you can still notify law enforcement of a potential problem. This allows an officer to investigate the situation and file a petition for the order if necessary.
Requesting a firearms restraining order
In order to request a firearms restraining order you must petition the court with information regarding why you believe someone poses a danger to themselves or others due to the fact that they are in possession of, or intend to obtain, a firearm. As part of this explanation the petitioner must also explain why they feel a restraining order is necessary to keep the subject in question from harming anyone.
After the judge has been petitioned they will determine whether or not the restraining order should be granted. If the restraining order is granted the judge can order a temporary restraining order within a period of 24 hours. Once the order is granted the subject will be served with the restraining order and would have to surrender their guns and ammunition within 24 hours as well.
Prior to the restraining order expiring a judge will determine, at a hearing which is attended by both parties, whether to terminate the restraining order or to extend it for a year. The judge will review evidence which may include witness testimony, photos, damaged property, and threatening messages. If the restraining order is terminated the subject’s firearms and ammunition will be returned. However, if the restraining order is extended for a period of one year the subject (gun owner) may petition the courts once in an effort to get their weapons and ammunition returned during that time. Following that they may petition again if the restraining order is renewed for a second year.
The law was designed to help people get the police involved quickly if they feel that a person they are concerned about is making credible threats of violence to themselves or others. While some fear that the law is not fair it is important to understand that there is still due process. In other words, if a restraining order is requested the subject is allowed to demonstrate that they are not really a threat or that they are not at risk. This is in place to help avoid situations in which a subject may be reported falsely or maliciously. If it is determined that the subject is not a risk they can get their weapons back in a pretty quick period of time.
Evidence in firearms restraining orders
Because the law is so new it is not quite clear what evidence will be used in determining if a restraining order should be issued. However, as more petitions begin to flow through California courts the evidence required in obtaining a temporary firearms restraining order should become clearer.