COVID-19 has spawned various crises. Throughout the country, over the last couple of months there has been an extreme surge in gun purchases and gun violence as a result fears of the societal impact of the virus. Retailers sold more than 2.5 million firearms in March, or an increase of 85% from the previous year. There has also been an increase in domestic violence and gun violence due to the stresses of social distancing. A rise in gun ownership along with a rise in domestic violence is a deadly combination. According to research published in American Journal of Preventive Medicine, higher rates of gun ownership are associated with higher rates of gun deaths involving an intimate partner or family member.
Fortunately, prior to COVID-19, California joined 16 states in enacting laws allowing for and strengthening Gun Violence Restraining Orders, in response to a series of high profile shooting sprees such as what took place in Isla Vista, California and Thousand Oaks, California. When the “red flag” laws became effective in 2016, they allowed for the police, family and household members to obtain Gun Violence Restraining Orders to remove and/or prevent persons from buying firearms when there are warning signs that he/she is a threat to self or others. In October 2019 new legislation was enacted to expand the laws to allow employers, co-workers and teachers to seek Gun Violence Restraining Orders, however this does not take effect until September 1, 2020.
Unfortunately, Gun Violence Restraining Orders have not yet been widely used in California, except for San Diego where there have been concerted efforts by the City Attorney’s office and law enforcement to implement them.
Gun Violence Restraining Orders can be obtained by immediate family or household members by filing an ex parte or emergency request with the court, without notice or opportunity to be heard by the subject, showing a substantial likelihood 1) that the subject poses a “significant danger, in the near future, of causing personal injury” to self or others by having, owning, purchasing, possessing or receiving a firearm and 2) that less restrictive alternatives have been tried and are inadequate or inappropriate. Penal Code section 18150(b).
In determining whether a person poses a significant danger, the court must consider 6 factors, including recent threats or acts of violence to self or others; violations of protective orders; unlawful or reckless use, displaying or brandishing of a firearm; use or threatened use of physical force against another; the recent acquisition of firearms, ammunition or other deadly weapons; or documented evidence of ongoing substance abuse. Penal Code section 18155(b)
An ex parte Gun Violence Restraining Order lasts 21 days and police may require that firearms be surrendered immediately upon service of the Gun Violence Restraining Order.
Police can obtain emergency Gun Violence Restraining Orders under a slightly lower standard, by a showing of probable cause. Penal Code section 18125.
A permanent Gun Violence Restraining Order can last up to 1 year, which has been extended to 5 years under the expanded law. A permanent Gun Violence Restraining Order can only be obtained by family, household members, or police after a noticed hearing within 21 days, and supported by clear and convincing evidence. This burden of proof is higher than most civil cases, but lower than criminal cases.
Gun Violence Restraining Orders are different from Domestic Violence Restraining Orders, which also require firearms to be surrendered, in that they do not include orders that the subject to stay away from or not contact the victim or to move out of a residence. Domestic Violence Restraining Orders, which are obtained by victims, may be issued based on a much less threatening range of conduct such as harassment and disturbing the peace and require a lower burden of proof.
Given the current environment of fear stress and uncertainty, along with the dramatic increase in gun ownership it is important that Californians be aware that there is a tool available to them that may save lives. If you have any questions or need assistance in obtaining Gun Violence Restraining Order, please do not hesitate to contact Skolnick Family Law.