NEW “GUN VIOLENCE RESTRAINING ORDER” IN EFFECT AS OF 1/1/16
As of January 1, 2016, AB 1014, the “Gun Violence Restraining Order” (“GVRO”) went into effect. This new law pertains to individuals who own/possess/have access to any firearm or any ammunition and, by a finding of a court, who pose an immediate threat to themselves or others.
The GVRO law acts in a similar way to the existing “Domestic Violence Protective Orders,” which prohibit a person who is the subject of a domestic violence restraining order from “owning or possessing a firearm while that order is in effect.”
The GVRO laws establish three means of acquiring a restraining order:
1. Temporary Emergency GVRO;
2. Ex-Parte GVRO;
3.
GVRO, issued after notice and a hearing.
As it applies to all of the GVRO’s, a petition will need to be executed by a party to initiate the process. In the case of a police officer executing a petition for a GVRO, he/she must describe in the document the number, types, and locations of any firearms and ammunition presently believed to be in the possession or control of the subject of the petition.
Aside from the court’s authority to issue a restraining order based on this petition, the court may also issue a warrant to search and remove all firearms and ammunition from a prohibited person based on the sworn affidavit of a police officer that the prohibited person has failed to comply with the GVRO.
TEMPORARY EMERGENCY GUN VIOLENCE RESTRAINING ORDER
Only a police officer is authorized to seek a temporary emergency GVRO by submitting a petition (written or telephonically) to a judge. This request for a restraining order may be made at any time of the day or night.
A temporary emergency GVRO may be issued if the officer asserts, and the judge finds, that there is reasonable cause to believe that a person poses an immediate and present danger of injury to him/herself or others by having a firearm in their possession and that less restrictive alternatives have been ineffective, inadequate, or inappropriate.
The temporary emergency GVRO is effective for 21 days from the date of issuance. Prior to the expiration of this temporary restraining order, an officer may bring a petition for either an Ex Parte GVRO or a GVRO (issued after notice and hearing) if he/she believes an extended restriction is warranted for the prohibited person.
EX PARTE GUN VIOLENCE RESTRAINING ORDER
The most significant change as a result of this law is that an immediate family member (as defined in CPC §422.4 – any spouse, whether by marriage or not; domestic partner; parent; child; any person related by consanguity or affinity within second degree; or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household) or police officer may request an Ex Parte GVRO. This petition may only be sought during normal business hours at any Superior Court.
Prior to an Ex Parte GVRO hearing being held, the court must verify that a thorough search of all available databases and records has been conducted to determine if the subject of the order owns a firearm.
The executed affidavit used in support of the petition for the order must set forth the facts establishing the grounds for the petition. Prior to issuing the order, the court may consider testimony from the petitioner and from any witness called on behalf of the petitioner. The new law specifically requires the court to consider the following types of evidence in making its determination as to whether to issue an Ex Parte GVRO:
· A recent (within the past six months) threat of violence or act of violence directed at another;
· A recent threat or act of violence directed toward himself or herself;
· Any recent violation of a protective order of any kind;
· Any conviction of a violent offense; and/or
· Any pattern of violent acts or threats within the past twelve months.
The law further states that the court may also consider any other evidence of an increased risk for violence, including, but not limited to, the following:
· The unlawful and reckless use, display, or brandishing of a firearm;
· Any history of use, attempted use, or threatened use of physical force against another person;
· Any prior arrest for a felony offense;
· Documentary evidence, including, but not limited to, police reports and records of convictions, of either recent criminal offenses that involve controlled substances or alcohol, or ongoing abuse of controlled substances or alcohol; and/or
· Any evidence of recent acquisition of firearms, ammunition, or other deadly weapons.
A court may issue an Ex Parte GVRO against a person if the petitioner shows good cause to believe there is a substantial likelihood that the subject of the petition will, in the near future, cause personal injury to self or others by owning or possessing a firearm, and that the Ex Parte GVRO is necessary to prevent such injury because less restrictive alternatives have been deemed ineffective, inadequate, or inappropriate.
An Ex Parte GVRO may be ordered without a hearing and the order will remain effective for 21 days after its issuance. The court must provide a hearing for the restrained person within this 21-day effective period to determine whether a more permanent GVRO is warranted or if the order is no longer necessary and the firearms should be returned to the subject of the order.
GUN VIOLENCE RESTRAINING ORDER AFTER NOTICE AND HEARING
Subsequent to the Ex Parte GVRO hearing, the court will schedule another hearing to determine whether there is a need to order a more “permanent” order or to terminate the Ex Parte restraining order. The prohibited person will receive notice of this hearing. During this proceeding, the court may hear from the restrained party seeking to terminate the order.
The court may also hear from the petitioner seeking the order and from any witnesses produced by the petitioner. After hearing all of the evidence, the court may extend the GVRO up to one year. The evidentiary requirements and standard of review for this order are similar to any Ex Parte restraining order.
AFTER THE GUN VIOLENCE RESTRAINING ORDER IS IN EFFECT
Surrender of guns and any ammunition for any type of GVRO: A person who is served with a GVRO is required to immediately surrender all firearms and ammunition in his or her possession. If a police officer is serving the order, all firearms and ammunition in the restrained person’s possession must be immediately surrendered to the officer. The law enforcement officer mustalso take custody of any firearm or other deadly weapon in plain sight.
If someone other than a law enforcement officer is serving the order, the respondent must either surrender his or her firearms to the local law enforcement agency or sell them to a federally licensed firearms dealer within 24 hours of receiving the order. However, the respondent may also opt to store his or her firearms and ammunition with a licensed dealer for the duration of the order.
Search Warrant for all GVROs: A court issuing any kind of GVRO is authorized to issue a search warrant instructing officers to perform a search for any firearms or ammunition in the person’s possession, but only after the prohibited party has been properly served with the notice of the restraining order being issued by a court.
Ownership of the Weapons: Firearms and ammunition may not be seized pursuant to a warrant if they are owned by someone other than the subject of the GVRO. These firearms and ammunition must be stored so that the prohibited person does not have access to them. Also, a gun safe owned solely by someone other than the prohibited person may not be searched without the owner’s consent or a properly executed search warrant.
Return of firearms and ammunition after any GVRO Terminates or Expires: If the restrained person’s firearms are surrendered to law enforcement (instead of being sold to a dealer), law enforcement must retain the firearms and/or ammunition for the duration of the order and return them to the restrained person when the order expires, terminates, or dissolves.
THE GUN VIOLENCE RESTRAINING ORDER SEARCH WARRANT
A court may authorize the execution of a search warrant pursuant to the GVRO laws. The search warrant may permit the search and seizure of all firearms and ammunition that are in the possession, under control, or has access to by the prohibited person. Prior to any search warrant being issued, the subject of the Gun Violence Restraining Order must:
1) be lawfully served with the restraining order; and
2) be given an opportunity to comply with that order (relinquish all firearms and ammunition).
As noted above, if a police officer is serving the GVRO, the person is required to immediately surrender all firearms and ammunition to the officer upon request. If no request is made by the officer, the prohibited person has within 24 hours to surrender all firearms and ammunition to the control of the local law enforcement or by selling all of the items to a licensed gun dealer.
The person may also make arrangements to have the items stored, pursuant to law, during the period of the order.
SERVING THE WARRANT
As in all cases, serving a search warrant can prove to be dangerous. This would be particularly true in the potentially volatile situation of serving a search warrant on an individual in possession of a firearm (GVRO Prohibited Person) and may be unstable. As noted above, a court must make certain determinations regarding justification for the Restraining Order based upon statements in the affidavit and/or additional evidence presented to the court.
If the court determines that the prohibited person is dangerous, officers may seek authorization to enter without any notice or announcement (“no-knock warrant”) in order to secure the weapons. Obviously, the supporting affidavit and/or other evidence must demonstrate reasonable suspicion to believe that, if there is any advance notification, there is a high probability of “violent resistance” by the occupant(s).
CRIMINAL PENALTIES
The GVRO laws have criminal penalties for violation of the restraining orders or for a false petition in support of the order.
Penalty for violation of the GVRO: Pen. Code § 18205. Every person who owns or possesses a firearm or ammunition with knowledge that he or she is prohibited from doing so by a temporary emergency gun violence restraining order, or a gun violence restraining order issued after notice and a hearing, is guilty of a misdemeanor and shall be prohibited from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a five-year period, to commence upon the expiration of the existing gun violence restraining order.
Penalty for False Petitions used in Support of the Restraining Order: Penal Code§18200. The law has a misdemeanor penalty for any person who files a petition for a GVRO that contains statements the person knows are false, or with intent to harass the subject of the petition for a GVRO.
HOW THIS AFFECTS YOUR AGENCY
This law is significant in that it now allows certain people to petition a court to issue a restraining order, and requires the subject to surrender weapons he/she possesses, based upon a statement that the subject may pose a threat to him/herself or another. The burden placed on law enforcement is that it also requires the officer to secure those weapons.
What happens if the person is served and, after the officer requests surrender of the weapons, the person refuses? The mere fact that the, now, prohibited person refuses to relinquish weapons, and is technically committing a misdemeanor, does not allow immediate entry to recover the weapons. The officer will first need to ask the court to issue a search warrant.
This is new law and requires training for officers. As such and as with all legal issues it is important to seek out and secure advice and guidance from your agency’s legal advisor.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 -1400 or via email at mjm@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.