In 2014, California passed a new law hoping to reduce the skyrocketing number of mass shootings nationwide. The original so-called “red flag law,” allowed concerned family members or law enforcement agents to request a judge to issue a restraining order that would allow the police or sheriff’s department to seize the firearms of a person believed to be a threat to themselves or others. Since then, California expanded the law to include other people such as employers, co-workers and teachers.
What’s the Point of Red Flag Laws?
The point of these laws is to allow the people that are close to someone to preemptively speak up and hopefully help stop a crime by getting that person away from guns. Proponents of these types of gun laws claim that they help prevent suicides, murders, domestic violence cases and other crimes that involve firearms while opponents believe they infringe on someone’s right to own a firearm simply because of a misunderstanding or emotional situation between two people.
Who Can File a Petition?
At its most basic, this law covers family, roommates, co-workers, employers and teachers. But because “family” can be such a vague term, the law specifies exactly what relationship a person may have to the individual -a second cousin, twice removed doesn’t quite cut it. The only family members permitted to request a gun violence restraining order in California state are:
- Spouses and domestic partners
- Children, step-children and grandchildren
- Parents, in-laws and grandparents
Of course, those who are not as closely related by blood may still be eligible to file a petition if they regularly live in the same household or have lived there within the last six months.
As for co-workers, these people must regularly interact with the person for at least a year and have the employer’s permission to make such a request. Similarly, teachers must be at a school where the person was working for at least six months and must have approval from school administrators first.
People who do not fit into the above categories can still contact the police and notify them of their concerns. A law enforcement agency may initiate an emergency temporary gun violence restraining order. Alternatively someone who feels they may be at risk of violence from the person in question can file for a traditional restraining order to protect themselves. This will also result in the individual losing their right to possess firearms as long as the restraining order is in place.
It’s important to mention that just because these people can file for a gun violence restraining order doesn’t meant they have to file for one. Even if that person goes on a mass shooting spree and it later seems obvious that their loved ones should have done something before the incident, those close to the person are not legally responsible for failing to act.
Domestic Violence and Gun Violence Restraining Orders
In San Diego Courts, the City Attorney routinely seeks a gun violence restraining order against those arrested on domestic violence charges who possess guns. Even if no guns were used in a domestic violence crime, prosecutors still seek removal of guns. This is often duplicative since those convicted of domestic violence cannot possess firearms either.
How to Request a Gun Violence Restraining Order
Anyone eligible to request this type of restraining order can start the process by filing out a petition and file it with the county clerk’s office where the person lives. Within 24 hours, the judge will either deny your request or issue a temporary gun violence restraining order. To make his decision, the judge will question you and any other witnesses or written affidavits you or the other witnesses signed under oath. You must provide specific, detailed information to support proof that the order is necessary. If you are found to be lying later on, you could face a misdemeanor perjury charge.
If the restraining order is issued, a local law enforcement agency will serve it and remove any firearms and ammunition from the individual. You will then need to file a form requesting a final gun violence restraining order since this initial one is only temporary, meaning it only lasts 21 days.
Defending Yourself From a Gun Violence Restraining Order
Those who may be subject to these types of restraining orders won’t be notified until a temporary order is in place or until they are notified of the court hearing, which will be scheduled within 21 days regardless of the judge’s decision on the temporary restraining order.
The person who submitted this petition and witnesses must be present at this court hearing or the temporary order will expire. If this occurs the whole matter is over and if the petitioner wishes to file another restraining order, then she will need to start the process over again.
At this hearing, the petitioner and person who will be subjected to the restraining order can both present evidence on their behalf. Either party may work with an attorney as well and the judge may ask questions of both parties and any witnesses. For the judge to issue a permanent gun violence restraining order, he must be convinced that the individual presents a danger to themselves or others and that alternate measures have failed or aren’t appropriate for the situation.
If the judge decides to make the temporary restraining order permanent, it will last for one year, but it can be renewed on an annual basis for up to five years. Aside from taking the individual’s firearms, the restraining order also prohibits him from purchasing or using a gun throughout the duration of the order.
Coronavirus and Gun Violence Restraining Orders
It’s worth noting that there have been some changes to how these orders are implemented right now due to coronavirus. Now, rather than the 21 day period normally applied to the temporary order, these orders can now be extended for an additional period of time for the court to arrange for a hearing, up to 90 days.
If you are facing a gun violence restraining order or have any questions about these red flag laws, please call attorney Peter M. Liss at (760) 643-4050.
