“California courts ordered people to temporarily give up possession of their firearms 86 times last year,” sacbee.com reports. “A new law, which took effect in 2016, allows family members or law enforcement officers to seek a “gun violence restraining order” against someone they believe poses an ‘immediate and present danger’ of harming themselves or others.” As we’ve reported . . .
Gun violence restraining orders are prima facie unconstitutional. Under the law, a judge can order government agents to confiscate the firearms of the accused in a closed-door hearing, without the accused being present.
Fortunately, a GVRO is a temporary order.
In California, the orders expire in 21 days — after which time the state must return the accused’s guns. Unless the court sees fit to extend the confiscation period in a hearing where the accused is actually present (yay!).
“In 10 cases last year, the judge held a hearing and extended the order to one year because they determined the individual was still a substantial threat,” sacbee.com reports.
Looking at that stat, you could say that California judges decided that the original GVRO was a good thing in only 12 percent of the cases. Or that the GVRO was unjustified 88 percent of the time.
But we don’t know how many of the 86 Californians subjected to a GVRO were put into protective care or incarcerated during those “first” 21 days of confiscation. Which would make them, by definition, prohibited persons, removing their ability to keep and bear arms (or any other dangerous object) without the need for a GVRO extension.
The whole thing is stupid. Not to mention unconstitutional.
Why in the world would a judge think that confiscating firearms from someone who poses a “substantial threat” would prevent them from later obtaining a firearm illegally — or by some other means carrying out a violent attack or committing suicide? In that sense, isn’t a GVRO something of a distraction from the real danger of letting adjudged loonies (sorry) run loose?
GVRO’s are security theater, folks. Meant to show that someone is doing something. Like all such examples of the breed, they breed stupidity, government overreach and the loss of liberty.
Yep. It all rests on the opinion of one judge who probably doesn’t like guns.
According to such a judge, you shouldn’t have a gun if you’re mentally unstable, but you’d have to be unstable to own one: the old catch-22.
On the ither hand, in Idaho, the feds tried to confiscate guns from a senior on social security disability, but they relented when they got there and found his neighbors standing on the front lawn with rifles.
Now that is a neighborhood watch! Of course if more folks started doing that sort of thing, the feds would just show up at 2 AM with a SWAT team, and shoot his dog, and maybe the senior for good measure along with kicking in his door and stealing his property.
That’s when we’d have to start showing up on the feds’ front lawns.
Don’t forget the flash bangs that ‘accidentally’ set the poor SoB’s house on fire, burning the house, and the man, to the ground. Shows him to have people stand in the way of Justice(tm).
The “‘immediate and present danger’ of harming themselves or others” standard is also the standard for a 5150 hold. So why just focus on the guns? If a person is really in that bad of a way, they should be institutionalized, which will get them treatment and also act to separate them from their guns, as well as all of the other objects that could be used for self-harm or harm to others.
But no, because guns.
Because sometimes the “subject” is very clever and is able to convince a responding police officer that he or she is just fine, thank you very much, such that the police officer declines to act. The law in California was at (least nominally) the result of a mass shooting in Santa Barbara by a young man who slit his roommates throats and then went on a shooting spree, killing two (as I recall) and wounding five before taking his own life when police were able to stop his vehicle. The murderer had been in and out of therapy for much of his teen and adult life, and his parents (who did not live in Santa Barbara) had sought unsuccessfully to have him committed under 5150. The officers did not find probable cause to take him into custody.
I said “at least nominally” for a reason. The parents were oblivious to the fact that their son owned firearms. Further, the sponsoring legislator had written the law a year earlier–and this case presented a perfect opportunity to get it passed.
GVROs are not “prima facie” unconstitutional, your nonlegal opinion to the contrary. Further, much as I suspected, these orders are not often sought; if a person is really that bad off, the police or other medical personnel will impose a 72 hour involuntary hold pursuant to Welfare & Institutions code section 5150 if “there is probable cause to believe that the person is an immediate threat of serious bodily injury to himself or others.” Probable cause is usually established by an affidavit under penalty of perjury, just like GVROs–but without the need to go before a judge to get an order to effectuate the detention. Under California law, this involuntary commitment for “evaluation” results in a 5 year firearms prohibition. (Only if the hold results in a hold-over for treatment order under 5152 does the federal lifetime ban attach, but such an order requires a judicial hearing. These are usually avoided if the person agrees to a voluntary commitment.)
GVROs have a limited utility when the police refuse to act. Much more common here are voluntary or involuntary commitments as described above. If the issue is not mental illness but domestic violence, which based on my experience are QUITE common,the law here–as I suspect elsewhere–provides for domestic violence TROs–which have essentially the same issuance and adjudication guidelines as GVROs and have been upheld against constitutional due process attack.
Mark N.,
I trust that your statements accurately reflect the current legal process in California and opinions of the U.S. Supreme Court. And many will say that that both are grossly unjust.
As you stated, all it takes is one person’s affidavit to commit another person against their will for 72 hours. And that involuntary commitment means they cannot legally possess firearms for FIVE YEARS.
There are multiple problems here. First of all, what professional training and experience does the law require of that person filing the affidavit to establish that they have any inkling of any ability to predict someone’s behavior? Second of all, what provisions does the law provide to prevent a single person with a selfish motive from creating an affidavit and screwing someone over? Finally, and this is the most egregious problem: a single person’s affidavit causes someone to lose their right to keep and bear arms in California for FIVE YEARS WITHOUT A JURY OF THEIR PEERS SIGNING OFF AND WITHOUT THE CHANCE FOR THE AFFECTED PERSON TO FACE THEIR ACCUSER.
Countless millions of people will agree with me that such a situation is not righteous, is not just, and is not “due process”.
I could possibly entertain a process where multiple accusers can request via affidavit — and a judge must sign-off — that local government involuntarily hold and evaluate someone for 24 hours maximum. And if that someone is released after that 24 hours, there are ZERO infringements of their rights thereafter. Also, when that someone is released, there must be a simple process whereby that someone can enforce sanctions against accusers who acted with malice. And another quick thought: regardless of whether there is any hint of impropriety or malice on the part of the accusers who filed the affidavit, all accusers must pay the person who was involuntarily confined/evaluated $400 if that person is released after the 24 hours.
Nothing says “Constitutional” like “I made this decision behind closed doors, without you able to defend yourself, and now the state can come take your property.”!!!!! Gee, I definitely can’t think of 3 or 4 guaranteed rights being broken there. You’ve convinced me MarkN
I’m going to go out on a limb here and suggest that we just go ahead and make it illegal to kill people, including oneself. .. oh, wait…
Also, I just wonder how many gang-bangers were automatically put on a GVRO list & how exactly, did that work out?
damn that was all well put. Kudos RF
its just another piece of evidence we use to come to the conclusion that people like these judges and legislatures have no fucking idea what they are doing or how to even approach the problem. Seeing as they are always trying to solve the wrong problems.
Bravo! Yes these orders are per se unconstitutional. This is a violation of due process and the takings clause. You can not deprive a man of life, liberty, or property without due process of law. Due process requires notice and and a hearing. Holding a hearing without him completely ignores the constitutionally required notice requirement. You may not like the Constitutional requirement, but it is the law. If you don’t like it, amend it, or shut up. Enough said.
As a retired California cop I can tell you with 99% certainty the guns taken were damaged. They are thrown into the back of vans or pickups and sometimes into patrol car trunks. They are then piled one on top of the other on shelves while the court decides. In a busy station or unit the guns are moved outside to storage like the local sheriff does here. You will end up with dings,scratches and dents all over the firearms. Believe me I have seen it time and time again and when I said something I was always ignored. If you have a collection where condition matters then expect to lose at a minimum 25% of the value because of the damage. In cold damp weather you can expect to see the start of rust. If the judge extends it for a year……….forget it. Many of the guns get “accidentally” sent out for destruction……..happens a lot. Then when you file a claim for damage they will demand the original receipt even for a gun in the family for 100 years and then the fun starts. At least a year in LA County trying to collect and jumping thru hoop after hoop. BTW they also send recovered stolen firearms out for destruction “accidentally having never notified the legal owner/reporting theft victim they were recovered. If they never notify you then you will think it was never recovered so you wont file a claim
“…because they determined the individual was still a substantial threat.”
But not so much a threat as to lock them up, or take away their car, or confiscate their knives and pointy sticks, or forbid them from buy gasoline in a can, or bind their hands, or, or ,or….
Can I just file one of these for the entire south side of Chicago?
GVROs are not security theater, they are another incremental step towards prohibiting firearms ownership.
How long before refusing to bake a gay themed wedding cake would be enough to seize a person’t firearms?
Like the European Model, firearms ownership would be allowed, just impossible to exercise.
“Looking at that stat, you could say that California judges decided that the original GVRO was a good thing in only 12 percent of the cases. Or that the GVRO was unjustified 88 percent of the time.”
I’m as pro-2nd amendment as they come, but I have to say the above statement is as weak as 99% of the BS arguments by the antis. Choosing not to extend an order is far from saying it was unjustified. Arguments like this actually weaken the much stronger points you are trying to make.
Do better, please.
Nate, I think you missed the real point. 🙂 Since there is zero justification for ANY of these star chamber exercises of infringement and confiscation, the % of these illegal and immoral “orders” not extended is completely irrelevant.
As a retired health care professional, with long experience dealing with mental and emotional problems in patients of all kinds, I can tell you that none of these “orders” can or will help any of the actual victims in any way. They can, however, be used by both courts and families to completely destroy the life of the patient/victim. I have no idea how many additional suicides, or even violent incidents result, but it is not an insignificant number.
Just as with the veterans, punishing them for PTSD and so forth simply drives them away from any rational treatment into hiding. Not a good idea.
I don’t disagree with you at all. I was simply pointing out that the particular statement/argument made in the article, as written, relied on flawed logic. After re-reading it’s pretty evident that the author knows that as well, hence the word “could” in italics. I missed that the first time.