The recent shootings in El Paso, Dayton and Gilroy have generated new discussion about national and state red flag gun laws. Red flag laws permit law enforcement officers or immediate family members to petition a court to order the temporary removal of firearms and ammunition from someone who may present a danger to themselves or to others. California adopted a red flag law in 2015, though it is infrequently used. California is the third state to adopt a red flag gun law and the first state to allow family members to petition courts to take weapons from persons deemed a threat. California's law was adopted months after a gunman in 2014 in Isla Vista shot and killed six people and injured 14 others near UC Santa Barbara. Seventeen states and the District of Columbia have red flag gun laws, most adopted in the wake of 2018 mass shooting in Parkland, Florida. Other states are considering them. There is no federal red flag law.
This article describes the scope and the circumstances under which a court will issue a gun violence restraining order (GVRO). It also identifies several technical shortcomings with the existing laws.
There are two separate mechanisms for obtaining a temporary ex party GVRO, one available to immediate family members and two available to law enforcement officers. There is one mechanism for family members and law enforcement officers to obtain a one-year GVRO.
Temporary Emergency GVROs Available Only to Law Enforcement Officers
A GVRO is a written order signed by the court that prohibits and enjoins a person from owning, purchasing or possessing or even receiving a firearm or ammunition. Penal Code Section 18100. In 2018 the Legislature amended the GVRO statute to make clear that the definition of "ammunition" includes a "magazine" defined by PC 16890. PC 18100(b). PC 16890 defines a magazine as "any ammunition feeding device."
Although the GVRO statute is located within the Penal Code, the Legislature has provided that GRVOs are issued through a civil restraining order process. PC 18100(a).
To be valid, a temporary emergency GVRO must be in writing signed by a judicial officer. Hence, a minute order, unless signed, is not a valid GVRO. The order must make several findings, as described below.
A temporary emergency GVRO may be issued ex parte where a law enforcement officer asserts and a judicial officer finds:
1. The subject of the emergency order poses "an immediate and present danger of causing personal injury" to his or herself or to another by having custody or control, owning, purchasing, possessing or receiving a firearm or ammunition; and
2. A temporary emergency GRVO is needed to prevent personal injury to the subject of the petition or to another because less restrictive alternatives have been found to be ineffective or been determined to be inadequate or inappropriate for the subject of the petition. PC 18125.
These findings must be made in the order.
Until recently the underlying evidence from the law enforcement officer had to be presented to the judicial officer in writing before a temporary emergency GVRO could issue. PC 18130. Recent legislation allows a judicial officer to issue a temporary emergency GVRO based on oral evidence presented by a law enforcement officer. However, the officer who seeks the temporary emergency GVRO must sign a declaration under penalty of perjury setting for the oral statements made to the judicial officer and memorializing the order of the court.
The standard for issuing a temporary emergency GVRO is low. The bench officer need merely find probable cause that both prongs of the standard have been met. PC 18125(a).
A temporary emergency GVRO expires 21 days from the date that it is issued. PC 18125(b). Within 21 days from the date of issuance a court in the jurisdiction must hold a hearing on whether to issue a permanent GVRO. PC 18148. Temporary emergency GVROs can also be issued on an afterhours basis (PC 18145), presumably following the same procedure that emergency protective orders are issued after hours. Emergency protective orders and temporary emergency GVROs will, when appropriate, be issued at the same time, although emergency protective orders expire five court days after they are issued (Family Code 6256) while temporary emergency GVROs expire 21 calendar days after issuance. PC 18155(c).
Ex Parte GVROs Available both to Immediate Family Members and to Law Enforcement
There is a separate mechanism where immediate family members of a person (or law enforcement officers) can file an ex parte petition for a GVRO. PC 18150(a)(1). "Immediate family" is defined broadly in PC 422.4 and includes a spouse (whether married or domestic partner), parent, child or person related by consanguinity or affinity within the second degree or anyone who regularly resides in the household or within the last six months regularly lived in the same household. There does not appear to be a requirement that the domestic partnership be registered.
The standard for issuance of an ex parte gun violence restraining order is higher than it is for issuance of a temporary emergency GVRO. The petition must be supported by a written affidavit signed by the petitioner under oath or based upon oral testimony under oath of the petitioner and any witness the petitioner produces. PC 18150(b), 18155 (a)(2). The judicial officer must make both of the following findings:
1. That the subject of the petition poses "a significant danger, in the near future, of causing personal injury" to him or herself or to another by having a firearm in his or her custody or control, owning, purchasing, possessing or receiving it; and
2. That less restrictive alternatives have been tried and found to be ineffective or are inadequate or inappropriate for the subject of the petition. PC 18150(b).
An ex parte gun violence restraining order will only be issued on a "substantial likelihood" standard that both of the required findings have been satisfied. PC 18150(b). There is no requirement that a court have a mechanism to consider ex parte gun violence restraining orders after hours. However, the order must be considered on the day it is filed unless filed too late that day to be effectively reviewed, in which case it must be considered on the next court day early enough in the day that if the order is issued it can be filed with the clerk that same day. PC 18150(d). Unlike temporary emergency GVROs where the findings pertain to possession of firearms or ammunition, these findings only relate to firearms. Note also that a temporary emergency GRVO requirement is "an immediate and present danger of causing personal injury" while the ex parte GVRO requires there to be "a significant danger in the near future of causing personal injury." No cases analyze the differences between these two standards. The wording differences appear to be a Legislative oversight rather than an intentional difference.
In determining whether to issue an ex parte gun violence restraining order, a court must, inter alia, consider six enumerated factors including recent threats or acts of violence by the subject of the petition directed towards themselves or another and violations of an emergency protective order or recent violations of a protective order. PC 18155(b)(1). The court is also authorized to consider other evidence of increased violence, including unlawful and reckless use, displaying or brandishing of a firearm, history of use, attempted use or threatened use of physical force against another person, acquisition within the past six months of firearms, ammunition or other deadly weapons or documentary evidence of ongoing abuse of alcohol or controlled substances.. PC 18155(b)(2).
A hearing on the issuance of a one-year GVRO must be held by the jurisdiction that issued the ex parte gun violence restraining order within twenty one days. PC 18165.
One-Year Gun Violence Restraining Orders
Immediate family members and law enforcement officers can obtain a one-year GVRO after notice and a hearing. There is no requirement that a temporary GVRO first be obtained. "Immediate family members" has the same definition as for the issuance of ex parte GVROs.
In determining whether to issue a one-year GVRO the court shall consider the same evidence as for issuance of an ex parte GVRO. PC 18155(b)(1) and (b)(2). The petitioner has the burden of proving by clear and convincing evidence:
1. That the subject of the petition (which could be the person subject to the ex parte GVRO) poses "a significant danger of causing personal injury" to him or herself or another by having a firearm or ammunition in his or her custody or control or owning, possessing, purchasing or receiving that firearm or ammunition; and
2. The GVRO is necessary to prevent personal injury because less restrictive alternatives have been tried and found to be ineffective or would be inadequate or inappropriate under the circumstances.
PC 18175(b). Note, the possession of ammunition is relevant to the issuance of a permanent GVRO even though it is not relevant for an ex parte restraining order. The exclusion of ammunition from the ex parte GVRO standard appears to be a legislative oversight.
A GVRO can be issued for one year and can be terminated early or renewed. PC 18175(d). GVROs can be renewed indefinitely at one-year intervals. PC 18190 (g). A renewal can only occur on evidence if the petitioner proves on clear and convincing evidence that the conditions from PC 18175(b) 1 and 2 continue to be true and any other evidence of increased violence. Hearings can be continued on a showing of a good cause, with the existing GVRO remaining in effect until the date of the continued hearing. PC 18195.
Knowing violation of a temporary emergency GVRO, an ex parte GVRO or a GVRO is a misdemeanor punishable by a five-year ban on owning, possessing, purchasing, receiving or having in their custody and control a firearm or ammunition. PC 18205. The five year ban begins after the underlying GVRO expires.
All GVROs are entered by court staff in to the California Department of Justice's Restraining and Protective Order System (CLETS database). The restrained person within 48 hours of being served with the order must:
A. Immediately surrender all firearms and ammunition to a local law enforcement agency or sell or transfer them to a licensed firearms dealer, and
B. File with the issuing court the original receipt showing that all firearms and ammunition have been surrendered and file a copy pf the receipt with the local law enforcement agency that served the GVRO. Failure to timely file these receipts shall constitute a violation of the restraining order.
In 2016 the Legislature amended the Penal Code to require that in serving either a temporary emergency GVRO or an ex parte GVRO the law enforcement officer must verbally ask the restrained person to identify any firearms, ammunition or magazines in their possession or control. PC 18135(a) and 18160(b)(3). This requirement does not extend to requiring law enforcement officers to make the same inquiry when serving a one-year GVRO although nothing precludes the law enforcement officer as a matter of best practices from making such an inquiry during service.
The Department of Justice has issued new regulations on the issuance of Certificates of Eligibility to possess firearms or ammunition to make sure before a certificate is issued that a determination has been made that the applicant does not have a GVRO issued against them. Cal. Code Regs. tit. 11, Secs. 4031-4032, 4036, 4041(2019).
Legislation is pending to strengthen GVROs. Assembly Bill 339, introduced by Assemblywoman Jacqui Irwin (D-Thousand Oaks), would require law enforcement agencies to standardize policies and training on confiscating of firearms and service of restraining orders. A second bill by Irwin would clarify and streamline how police relieve subjects of their weapons and expand the potential GVRO duration from one-year to five years. AB 61 from Assemblyman Phil Ting (D-San Francisco) would expand who can seek a GVRO. Others would expand the circumstances under which a GVRO could be issued.
Judicial challenges to red flag laws are based on the allegation that they infringe upon the individual right to due process and deny gun owners their Second Amendment rights. The number of judicial challenges are few. The author is not aware of any challenges to the California law. The most notable judicial challenge to a red flag gun law in another state was in Connecticut. An appellate court in Connecticut rebuffed a Second Amendment challenge to that state's firearm removal law, concluding that the law does not violate the Second Amendment because "it does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes." Hope v. State, 133 A. 3d 519 (2016). An Indiana appellate court similarly rejected a Second Amendment challenge to its red flag laws, concluding that the law neither violates the rights of its residents to maintain and to bear arms nor does it constitute an unconstitutional taking. Redington v. State, 992 N.E.2d 823 (Ind. Ct. App. 2013). To uphold the red flag gun laws, the courts use the reasoning from District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), "[T]he right secured by the Second Amendment is not unlimited" and does not contradict "prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Other judicial challenges are pending. A Colorado gun rights group, the Rocky Mountain Gun Owners, filed a challenge to Colorado's red flaw law in late April in Denver district court. The NRA describes red flag gun laws as infringing on the rights of gun owners.