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Old September 30, 2014, 09:19 PM   #1
Tom Servo
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California: "Gun Violence Restraining Orders"

Governor Brown has signed AB-1014 into law. This was a reaction to the Elliot Rodger shooting four months back. Text of the law is here.

Quote:
DIVISION 3.2. Gun Violence Restraining Orders
CHAPTER 1. General
18100. A gun violence restraining order is an order, in writing, signed by the court, prohibiting and enjoining a named person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition. This division establishes a civil restraining order process to accomplish that purpose.
There doesn't appear to be a stipulation for appeal, nor is there a limit to how long such an order can be made to last.
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Old September 30, 2014, 09:42 PM   #2
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Another reason I would never live in California. If I did live there I would be working on a serious plan to leave. Fighting a fight you can't win is just silly...
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Old September 30, 2014, 09:48 PM   #3
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So they don't know about the 4th and 6th Amendments in Cali either?
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Old September 30, 2014, 10:46 PM   #4
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I've done a quick skim of the bill's provisions. There are two provisions for temporary ex parte restraining orders, one taken out on an emergency basis on application by a law enforcement officer and the other by an immediate family member. An application by an LEO requires "reasonable cause" to believe the person presents an immediate danger to that person or another. For family members, there must be "substantial likelihood" of that.

The emergency orders expire no later than 21 days after issuance and a "normal" order requires a hearing and proof by clear and convincing evidence and is good for a year. It can be terminated early on request and can be extended upon a proper showing.

This is a VERY brief summary. My point is that it is not that bad.

http://leginfo.legislature.ca.gov/fa...01320140AB1014
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Old September 30, 2014, 11:15 PM   #5
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Quote:
Originally Posted by KyJim
...There are two provisions for temporary ex parte restraining orders, one taken out on an emergency basis on application by a law enforcement officer and the other by an immediate family member. An application by an LEO requires "reasonable cause" to believe the person presents an immediate danger to that person or another. For family members, there must be "substantial likelihood" of that.

The emergency orders expire no later than 21 days after issuance and a "normal" order requires a hearing and proof by clear and convincing evidence and is good for a year. It can be terminated early on request and can be extended upon a proper showing.

This is a VERY brief summary. My point is that it is not that bad...
I've also only glanced at the law, but I tend to agree. A possible concern, and I haven't even begun to seriously look into it, is whether there would be anything about a restraining order under this law which might trigger a lifetime disqualification under federal law. If not, this could be a better solution for someone than a restraining order triggering a lifetime prohibition under Lautenburg or a "dangerous-to-self-or-others" psychiatric commitment, either of which would trigger a lifetime disqualification under federal law.

Quote:
Originally Posted by Jo6pak
So they don't know about the 4th and 6th Amendments in Cali either?
I really start to lose patience when folks who don't know what they are talking about toss around specious constitutional assertions like this.

The Fourth Amendment provides protection against unreasonable searches and seizures. There is a good deal of case law relating to when a search or seizure is, or is not, reasonable. A temporary seizure after due process is probably not going to be found unreasonable under the Fourth Amendment.

The Sixth Amendment guarantees a jury trial in a criminal case as well as other rights in connection with such trials. This California law is not a criminal matter. The Sixth Amendment is therefore irrelevant.
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Old October 1, 2014, 10:47 AM   #6
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Quote:
A possible concern, and I haven't even begun to seriously look into it, is whether there would be anything about a restraining order under this law which might trigger a lifetime disqualification under federal law.
I wouldn't be surprised if someone from the California delegation doesn't introduce a bill to include it in Lautenberg.
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Old October 1, 2014, 04:14 PM   #7
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And, of course, past history has shown that restraining orders and protective orders are 100 percent effective ...
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Old October 3, 2014, 03:24 PM   #8
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Id like to learn more about what is in place within this law to allow a challenge or appeal. What happens if someone is lying, exaggerating... say a spouse in a ugly divorce just wants to upset the other as much as possible... especially after a heated argument? What about a lying sibling that doesn't even live with you? What about an officer who might harass someone he pulls over and the person stands up for their rights? What about a wife whose been physically abused and threatened by her estranged husband whom she hasn't yet filed a restraining order on? What prevents the 21 day limit from not being extended under the same circumstances it was enacted?
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Old October 4, 2014, 09:43 AM   #9
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Quote:
This was a reaction to the Elliot Rodger shooting four months back
That was the guy that the police checked out, and didn't find a "threat" a few days before he went on his killing rampage, right?

Hmmmm......


One thing I'd be concerned about, what happens to your guns, AFTER such a temporary order expires?

I have heard, more than once, over the years, that some CA jurisdictions simply will not return seized firearms. Even court orders have not been able to get the guns returned, the jurisdiction merely cuts you a check for (their opinion) for the value of your property.

I find it entirely too possible that someone with a disgruntled spouse, or a "bad" cop in their life might lose an entire gun collection, forever, possibly only getting a pennies on the dollar "compensation" when it all said and done.

Also, how "deep" is the prohibition? Once the order is given, and you "voluntarily" surrender all your guns, and ammo, what then? DO the police seach ALL your property to ensure compliance? DO they come and take your guns and ammo?

Would you be at risk of jail or fines, if you happened to miss something? OR if THEY do??? Could a couple of rounds, lost for years, then found after you are subject to the order, and have surrendered "everything" be enough to get the book thrown at you?

scary stuff.
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Old October 4, 2014, 12:19 PM   #10
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Quote:
Originally Posted by Frank Ettin
The Sixth Amendment guarantees a jury trial in a criminal case as well as other rights in connection with such trials. This California law is not a criminal matter. The Sixth Amendment is therefore irrelevant.
yes, but doesn't this particular type of restraining order violate a constitutional right to bear arms? In order to lose a right, you have to be convicted first of a crime (criminal case)?

Side question for my reference: doesn't a regular restraining order require a crime against a person to take effect, or can one get a restraining order based on "suspicion" only, such as verbal threats?
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Old October 4, 2014, 01:32 PM   #11
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Quote:
Originally Posted by Koda94
...yes, but doesn't this particular type of restraining order violate a constitutional right to bear arms?...
Not until a court says so.

Quote:
Originally Posted by Koda94
...In order to lose a right, you have to be convicted first of a crime (criminal case)?...
No.

Quote:
Originally Posted by Koda94
...doesn't a regular restraining order require a crime against a person to take effect,...
No.
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Old October 4, 2014, 10:41 PM   #12
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We strip citizens of their most basic human right to liberty without a criminal conviction if a court finds them a danger to themselves or others. They are restrained in a mental hospital for treatment.

Less common is civil restraint for certain classes of pedophiles (not everyone who commits a sexual offense). The seminal case on that is Kansas v. Hendricks, 521 U.S. 346 (1997, available at http://www.law.cornell.edu/supct/html/95-1649.ZO.html.

I'm not comparing someone subject to the gun violence restraining order to either of the above. I'm just pointing out that we do strip certain rights from persons in some circumstances.
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Old October 4, 2014, 11:33 PM   #13
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KyJim,

Thanks for posting some examples. I was rushed earlier.
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Old October 5, 2014, 11:11 PM   #14
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Frank, thank you for the replies.

Looks like there is a provision in the bill that makes it a misdemenor to "file a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass."

http://leginfo.legislature.ca.gov/fa...01320140AB1014
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Old October 6, 2014, 08:07 AM   #15
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Quote:
Originally Posted by Koda94
Looks like there is a provision in the bill that makes it a misdemenor to "file a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass."
That's better than nothing, but how do you prove that the complaint was knowingly false and intended to harass? And what's the penalty?

Then there's this:

Quote:
The bill would require a law enforcement officer to serve the order on the restrained person, if the restrained person can reasonably be located, file a copy of the order with the court, and have the order entered into the computer database system for protective and restraining orders maintained by the Department of Justice.
So what happens if the LEO can't/doesn't find the the "restrained person" and serve the order? Does said LEO still file a copy of the order and enter it in the database? He (or she) shouldn't, because then doing so would create the risk that the "restrained person" (who has not been restrained if he/she hasn't received the order) could be arrested for violating an oder he/she knows nothing about.

I realize that this is a synopsis and not the bill itself, but it does not seem to be a well-crafted piece of legislation. (However, most legislation today isn't well-crafted.)
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Old October 6, 2014, 11:54 AM   #16
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The off chance that you could prove the information false after a heated argument is small. At this point the bill is limited to LEO’s and immediate family members… but it paves the way to open it up further to others. This bill isnt going to stop crime. After a few years Cali will have another gun violence crime where the suspects friends wanted to file a gun restraining order but couldn’t and they’ll cite how ‘successful’ the current one is and expand it.



the way I read it, this bill means that if you’re a gun owner you better play reeeealllll nice to family who has an argument with you, even if that person is the one out of line. This includes someone who is bullying you, menacing or verbally harassing you or just even a simple argument from some narcissist anti gun estranged spouse who knows you’re a gun owner. If this bill is constitutional it reeks of gun control.
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Old October 6, 2014, 03:40 PM   #17
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Quote:
Looks like there is a provision in the bill that makes it a misdemenor to "file a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass."

I have looked at the general restraining order code but my guess is it is already a misdemeanor to file knowing the petition to be false.


There seem to be quite a few quotes, including attributed in serious publications by serious family law attorneys on the subject assertion that large portions are majorities of filings are simply an abuse of the law and part of the arms war in divorce and custody cases.

WE all want people protected but by offering more and more penalties for low probative burden assertions we encourage abuse
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Old October 6, 2014, 05:24 PM   #18
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The gun violence restraining order can be appealed. From the bill, dated 30 September, 2014:

Quote:
18180.
(a) A gun violence restraining order issued pursuant to this chapter shall include all of the following:
(1) A statement of the grounds supporting the issuance of the order.

(2) The date and time the order expires.

(3) The address of the superior court for the county in which the restrained party resides.

(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 this order at any time during its effective period. You may seek the advice of an attorney as to any matter connected with the order.”

(b) When the court issues a gun violence restraining order under this chapter, the court shall inform the restrained person that he or she is entitled to one hearing to request a termination of the order, pursuant to Section 18185, and shall provide the restrained person with a form to request a hearing.




18185.
(a) A person subject to a gun violence restraining order issued under this chapter may submit one written request at any time during the effective period of the order for a hearing to terminate the order.


(b) If the court finds after the hearing that there is no longer clear and convincing evidence to believe that paragraphs (1) and (2) of subdivision (b) of Section 18175 are true, the court shall terminate the order.


18190.
(a) (1) An immediate family member of a restrained person or a law enforcement officer may request a renewal of a gun violence restraining order at any time within the three months before the expiration of a gun violence restraining order.

http://leginfo.legislature.ca.gov/fa...ryClient.xhtml
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Old October 7, 2014, 01:20 PM   #19
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Quote:
A temporary seizure after due process is probably not going to be found unreasonable under the Fourth Amendment.
How much process is due? The Cornell "dictionary" is pretty vague, so I imagine the final answer also is. The Matthews case discussed at the end opens the door for a pick your judge and roll the dice answer.

But the mention at the end of a list of due process elements ranked in order of importance suggest that notice of (2) an impartial hearing(1), where you can challenge the need for the restraining order (3) would hit the top 3.
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Old October 7, 2014, 05:07 PM   #20
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"Due process" is a bit like grabbing greased Jello, I'm afraid. You won't see a simple definition anywhere because it depends on the nature of the proceeding.

At a bare minimum for anything more than a short, temporary seizure, it requires an opportunity to be be heard, hear and contest the evidence, and present evidence of your own. The evidence may or may not have to be the type admissible in regular trials. Some pre-trial hearings allow hearsay, for example. I don't know California law so can't comment further on that. The statute requires "clear and convincing" evidence which is the second highest burden of proof we require. That standard is consistent with other important proceedings, such as termination of parental rights. Due process would also require a neutral judge.
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Old October 8, 2014, 08:32 AM   #21
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OK, KyJim, now what is short and temporary? A traffic stop is certainly short. Is the 20 days (or whatever this restraining order is good for) short in comparison to other temporary seizures that don't provide a hearing where the "victim of the seizure" (for lack of a better word or technical term) would have a voice?

The other issues raised- what if someone misses something, or especially the California doesn't return seized firearms- seem a bit seperate and secondary to me. For example, California seizing and not returning firearms or their fair value isn't limited to this restraining order and should be dealt with as it's own issue- probably on the Taking's clause right?

What bothers me about this is that it appears the State is taking action against an individual without the input/knowledge/participation of the individual. While I realize it's not always possible to wait for the individual to participate- Failure to Appear, appointing guardians for coma patients, and so on where an individual either physically/mentally can't or has chosen not to- they was still some opportunity.
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Old October 8, 2014, 11:51 AM   #22
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Quote:
Originally Posted by KyJim
An application by an LEO requires "reasonable cause" to believe the person presents an immediate danger to that person or another. For family members, there must be "substantial likelihood" of that.

The emergency orders expire no later than 21 days after issuance and a "normal" order requires a hearing and proof by clear and convincing evidence and is good for a year. It can be terminated early on request and can be extended upon a proper showing.

This is a VERY brief summary. My point is that it is not that bad...
Really?

Anything can be shown to be reasonable or "clear and convincing evidence" in an ex parte proceeding. That's the reason we have an adversarial system, because hearing one side is virtually guaranteed to be biased.

The standard sounds a lot like probable cause or preponderance of the evidence, which is the same standard used by grand juries (who also only hear one side)... and as the saying goes, grand juries will indict a ham sandwich.

Creating a new type of court order to deprive someone of property based on 51% proof in an ex parte proceeding seems like just another in the litany of legislative abuses by legislators eager to save the children, or spouses, or to appear tough on crime (particularly gun crime).

While I think the concept of this is abhorrent, I don't know how much of a change this is from the status quo. Doesn't a domestic violence restraining order already technically prevent the recipient (temporarily) from possessing firearms? And aren't domestic violence restraining orders already commonly issued from ex parte proceedings? So, how much does this new type of restraining order change things, other than allowing police to do the same thing in a scenario not involving domestic violence? In other words, is this simply the camel following its nose into a tent?
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Old October 8, 2014, 12:33 PM   #23
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Both of these points are related:
Quote:
OK, KyJim, now what is short and temporary?
Quote:
Anything can be shown to be reasonable or "clear and convincing evidence" in an ex parte proceeding.
I used the term "short and temporary" to describe general legal principles. I am not saying 21 days meets due process. In my state, you can get an ex parte order committing one to a hospital for mental evaluation for up to 72 hours. That is where the legislature struck the balance between the danger to one's self or to another against the deprivation of the individual's rights.

As far as it being an ex parte proceeding, how else would you expect such an action to proceed? Notify the individual and give him a chance to commit suicide or prompt him to go on a shooting spree? The remedy is in the availability of a prompt hearing. These sort of after-the-fact hearings are not unusual.

I mentioned the involuntary hospital commitment. In some circumstances, creditors may use court process to seize property before a judgment is entered provided there is some sort of special circumstances such as evidence the debtor will conceal the property, the creditor posts sufficient bond, and the debtor has the opportunity for a prompt pre-trial hearing.
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Old October 8, 2014, 01:03 PM   #24
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Quote:
I used the term "short and temporary" to describe general legal principles. I am not saying 21 days meets due process. In my state, you can get an ex parte order committing one to a hospital for mental evaluation for up to 72 hours. That is where the legislature struck the balance between the danger to one's self or to another against the deprivation of the individual's rights.

As far as it being an ex parte proceeding, how else would you expect such an action to proceed? Notify the individual and give him a chance to commit suicide or prompt him to go on a shooting spree? The remedy is in the availability of a prompt hearing. These sort of after-the-fact hearings are not unusual.
That brings up another interesting question- if this person is so dangerous, why aren't they placed on a 72 hour hold? Doesn't this notify the individual that they're a hearing away from involuntary commitment and they better find a tall building, or length of rope pretty quick? For the more destructive, some fertilizer, or a car and a farmer's market ala George Russell Weller?

How would I expect such a State action to proceed? The same way as the 72 hour hold. Evaluations until the first possible chance to get in front of a judge for a hearing. If an individual is such a danger they can't be trusted with firearms, they can't be trusted with freedom of movement and/or association for these 72 hours prior to their hearing either.
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Old October 8, 2014, 09:33 PM   #25
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Quote:
That brings up another interesting question- if this person is so dangerous, why aren't they placed on a 72 hour hold? Doesn't this notify the individual that they're a hearing away from involuntary commitment and they better find a tall building, or length of rope pretty quick? For the more destructive, some fertilizer, or a car and a farmer's market ala George Russell Weller?
I agree wholeheartedly with your point. The Santa Barbara killer killed half his victims (the young adult male ones -- and all in one location) with a knife and bludgeoning even though most of the news overage still says he shot six to death, which is false.

We only think gun suicide is more common and more efficacious because of determining standards among Medical Examiners and Coroners, with self inflicted gunshot absent other evidence virtually always ruled suicide and more common self inflicted drug overdose, absent other evidence almost always ruled accident.

This seems to me to be another blaming of the gun, and gun owners. If there is "clear and convincing evidence" of danger to one self or others why on earth would the person not be temporarily put into custody?

And again what this does is additionally open gun owners to what is known to be very often baseless leverage in contentious family cases.
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