In California right now, a “concerned family member” can call the police and claim that a law abiding gun owner is really a psychotic murderer bent on taking out a bus load of children. They they can watch gleefully as the police bust down that gun owner’s door and confiscate their firearms. The gun owner has no recourse available — there’s no contesting a “gun violence restraining order” until after the firearms have already been confiscated. Involved in a contentious divorce? There’s not much to stop your spouse from falsely claiming you’re a wannabe Elliot Rodger as filing a false report is only a misdemeanor, roughly the same as a parking ticket. It’s a nightmare inducing situation, one that a Republican senator is trying to fix . . .
California Assembly Member Melissa Melendez introduced AB225, a bill designed to re-write the “gun violence restraining order” statute, making knowingly filing a false report a felony in California, giving it more force and stiffening the penalties. It has only one section, and here are the meat and potatoes:
SECTION 1. Section 18200 of the Penal Code is amended to read:
18200. (a) Every person who files a petition for an ex parte gun violence restraining order pursuant to Chapter 3 (commencing with Section 18150) or a gun violence restraining order issued after notice and a hearing pursuant to Chapter 4 (commencing with Section 18170),
knowing the information in the petition to be false orwith the intent to harass, is guilty of a misdemeanor.
(b) Every person who files a petition for an ex parte gun violence restraining order pursuant to Chapter 3 (commencing with Section 18150) or a gun violence restraining order issued after notice and a hearing pursuant to Chapter 4 (commencing with Section 18170), knowing the information in the petition to be false, is guilty of perjury and punishable pursuant to Section 126.
It’s a common sense change, and Sen. Melendez is fired up about getting it done. She had the following to say via Facebook:
I didn’t enact the law, but I’m awfully happy to be the one to undo it. Law abiding gun owners should NEVER have to fear their rights can be stripped away because and angry Ex or neighbor wants to get even.
Gun control activists don’t care about what happens to gun owners. People like Shannon Watts applaud beating gun owners without reason. To them, that’s just #gunsense. So it’s no surprise that they want to be able to SWAT law abiding gun owners, causing them multiple thousands of dollars in legal fees, and possibly endangering their lives. Because they’re on the “right” side, and gun owners are — as we all know — “evil.”
Well it’s a start… I’ll give her that.
Although I honestly don’t think this will pass simply because of the fact California is institutionally against the RKBA. And this is a law that’s made to help preserve it.
I also applaud and think her for her efforts, but even if it passes, I don’t think it will do much good.
I can see local DAs having no passion to charge violations of this law, and even if charged, time/funding for investigative efforts to convict on this charge will be nonexistent. Basically, the same thing that happens right now with many obviously false rape reports; they just drop it with no charges or investigation of the person who made the false report.
Also, proving intentional harassment vs. “I was just concerned that he might do something violent” will be impossible, unless the perp is stupid enough to talk about it openly/publicly.
Yes, this. Selective enforcement is their MO, since they view their personal opinions as a higher authority than the law. They write laws only to constrain their opponents. Which is why, for instance, they are generally willing to sign off on spending increases in exchange for later tax cuts, or amnesty in exchange for later increased in border security. They are happy to agree since they have no intention of making good on their side of the bargain.
Love the idea. It will never pass. The fools that made that “law” would never want anything to impact it, or show it to be as silly as it is.
“Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.” – Ayn Rand ‘Atlas Shrugged’
I will be shocked and amazed! if she gets this one passed. The Democraps n the PRCA are all n favor of people filing false reports on their gun-owning neighbors. “If we can save just one child while the SWAT teams kill every gun owner in the People’s Republic, it will be worth it. Heck, it will be worth it even if we don’t save one child.”
Common sense ‘gun control’ control…
That’s funny, I don’t ‘feel’ evil!
Evil or not it’s still my constitutionally protected, God-given right. Does that mean God is evil? (Wow, philosophical brain freeze!)
Still doesn’t fix the problem, a flawed solution is not the answer to a real problem.
All or nothing all at once attitude will likely lead to defeat.
The goal is to win the ‘war.’ That generally takes winning a few ‘battles’ along the way.
The other side figured this out a long time ago. That why they don’t put forward an amendment to overturn the 2nd. Instead they nibble away at our rights every chance they can.
Flawed fixes are not winning small battles. In fact they are losing the small battles. As other poster already noted, this is how you lose incrementally. There is a name for this exact process, it’s called Hegelian dialect, but that’s probably too esoteric for this forum, but look it up if you’re inclined.
Disagreement with no real substance to bolster the argument: Check
Weak attempt at insulting the intelligence of those that disagree: Check
Someone else agrees with me so I must be correct: Check
You are consistent. I’ll give you that.
I counter with:
So, I guess all those people that have worked very hard over the last 20+ years to restore the level of CC we have now have “lost” for us, then, since we don’t have 50 states with true Constitutional Carry?
Nah. I don’t buy into your BS defeatist crap. Take the loser attitude somewhere else. Your suggestion of “Give me what I want right now!” is a decidedly immature one (a la any three year old’s tantrum) and gains us nothing.
A weak argument, presented with arrogance, is still a weak argument.
JR, the beauty is that you can hide from reality all you want, but you can’t hide from the consequences of avoiding reality. Your sanctimonious demeanor and self righteous indignation is laughable as you label me defeatist for attempting to point out the bigger picture. I couldn’t care care less if you agree or disagree with my opinions.
@JR, meant to add this, but you miss the whole point. And you’ll never win when you miss by a mile. Let me explain. I’ll use the analogy of treating cancer as an example, if you have a known highly carcinogenic substance, is it adequate to allow exposure and treat the sequelae and win some minor battles as the carcinogen leads long term to death? In my opinion a flawed solution is worse than no solution, as it allows the threat to remain intact and over time spread. This is the Hegelian dialect and I did not mean to be condescending when I mentioned it initially. It is a well documented method of making gradual social change. This is not defeatist, it is recognizing the scope of the problem.
Your analogy to cancer is not only incorrect (as an absolute) but it is also absolutely absurd.
By the thinking you suggest, if a house catches fire, one should not fight the fire to save what can be saved because the house itself will ultimately burn down with the available suppression effort. Pure nuts.
I’ll end with this. Good thing that you were not a military leader during the American Revolution or the War of 1812. Or hell, even WWII after Pearl Harbor and the first few months of 1942 in the Pacific. Or…I guess I could name many examples.
Here’s something to ponder: We will never have the “complete solution” in this war. The anti’s will never stop. If we define some complete utopian result as our goal, we are doomed to failure. Read and understand Homer…the journey is the important part. The fight today is the fight we have to win. Every step counts.
I’m truly sorry you fail to understand the profound importance of that.
JR, I was trying to take the high Road in response to what appeared to be a baby rant, with name calling in all. Anyway, let me simplify this as much as I can, this law is a FAIL, in every way possible. It does nothing to roll back an unconstitutional law, and by not doing so it gives it legitimacy. If you don’t see this, then there is really no use for any more comment.
Yes. it’s a good change and Assemblywoman Melendez knows what all us ordinary folks know, that there’s zero chance the current Democommiecrat Controlled State Assembly would do the right thing and repeal the Law. It may be doubtful she’ll get her change to it passed, but I give her credit and gratitude for trying.
I contacted her once when sending opposition e-mails to committee members who were hearing one of the oh so many anti-gun measures being pushed through the CA legislature. She was one of the very few who got back to me. Her point of view at that time was clearly supportive of 2A and gun owners.
Good to see her in some legislative action.
Word. It’s potentially a small victory, but still better than another defeat.
“Word”? Really? And no, you are wrong, letting this unconstitutional law stand is a FAIL all day, every day. Mitigating some of the effects of this law is no victory, in fact all it does is further legitimize the unconstitutional law to begin with.
“letting this unconstitutional law stand is a FAIL all day”
Who?? said anything about letting it stand??
Any legal challenge must wind it’s way through an often glacial court process. In the meantime any legislative effort to mitigate the GVRO’s negative affects is a plus, no matter how remote the likelihood of pushing such limiting legislation through this states overwhelming Democrat State House may be. Who knows, Sen. Melendez may know something we don’t.
If the GVRO statute is unconstitutional, it is still so even if sanctions for it’s fraudulent use are enhanced by Melendez’ bill.
Those of us in this rights free zone appreciate her efforts. I doubt Atkins and Steinberg will ever let this even see a vote.
When you’re a hammer, everything looks like a nail. When you’re a legislator, everything looks like a potential law.
I wish her (and CA) the best of luck.
She’s a handsome woman.
Yes! YES she is!
I was just thinking that. It’s not a flattering photo, but she still looks good in it.
Better than nothing… although I suspect that proving someone ‘knowingly’ filed a false report will be all but impossible unless they’re stupid enough to admit it.
Yup–typically, perjury is a very hard case to make, don’t know that I’ve ever seen it prosecuted.
We charged several women with filing false reports for claiming they were raped.
It takes a good bit of evidence. In one case, it was not all that hard; the claimed rapist/kidnapper was her boyfriend a rudimentary investigation revealed her claim of rape and kidnapping was because she did not want her friends to know who she was dating when she was seen with him.
Sometimes…it works out.
If this legislative step helps take the false teeth out of the stupid law, it’s a step. This is what the anti’s wanted, after all…for such a law to be used to manipulate and hurt innocent people.
I’m glad I didn’t stop reading the headline after the words “California Legislator.”
Good luck with this!
Wow what a law! Seems hard to believe that it hasn’t been used as part of an attack. If one wanted to “take out” a target in CA, just call the cops to have the target disarmed, leaving the attacker free to confidently stroll in the front door. The cops should really charge a convenience fee for such a service to attackers…
As I understand it, only a “close relative” can file one of these things.
Interesting–if the petition has to be sworn to in the first place, seems like knowingly filing a false one would already be perjury. If it doesn’t, then an easier fix might be to require the petition to be sworn to. But I’m kind of shooting in the dark, don’t know how Cali’s perjury statute reads (in Texas, we have both misdemeanor and felony perjury IIRC). At any rate, I figure the lady’s chances of success are about the same as my chances of wining the lottery–and I don’t buy lottery tickets. A real shame, it’s really not asking much to require, with some teeth, that the person that files these kinds of actions be telling the truth.
Think about this carefully, now. Even if MDA filed a GVRO on all gun owners in CA, they would still not be charged under this proposed statute. Even though such an action would be patently absurd, there would also be no doubt that most of their rank and file truly DO fear all gun owners, and truly DO suspect them of being prone to violence. It would boil down to having to explain to the court, “…yes, your honor, but we maintain that these beliefs are f***ing stupid.”
While it can be hard to prove “knowingly,” being told “you know, it’s a felony to falsely report someone, are you really sure you want to do this?” could help deter malicious or spiteful filings.
At any rate I don’t see how this can make things worse. (I know, I know … Famous last words!)
So now all we have to do is big down the system by filing to a of GVRO’s in other people’s names.
Oh, wait… Now all they have to do is file them in other people’s names…
Sadly, I doubt that the PRC (People’s Republic of Califa) will allow this to stand. Most Califa lawmakers are more likely to take pleasure at the thought of gun-owners—who after all, are the new Enemies Of The State— being targeted and harassed by the cops. Still, I applaud Melissa Melendez’s courage in speaking truth to power.
Would like to see them add somewhere that the court/municipality that issued the order pays the legal fees of the victim if it is found that the order was granted based on false accusations, or something to that effect so that judges start paying when they trample on due process.
Yep, forcing the DA/court to have a little “skin in the game” is probably a good thing, but I’d prefer it be personally-held resources, vs. public money.
Utter nonsense. What you are saying is that if someone lies to the judge to get a TRO, and it is LATER proved that that person lied to the judge, the judge should pay the legal fees of the persona against whom the order, facially valid, was issued? Who is the wrongdoer here–the liar or the judge? Obviously it is not the judge, so why would you punish him/her? But it does not matter–judges are absolutely immune for their judicial acts, as are DAs (the latter of whom, by the way, are not necessarily involved in the issuance of these orders).
JR_in_NC states that, “The goal is to win the ‘war.’ That generally takes winning a few ‘battles’ along the way.”
Well this is one of the many battles that will have to be fought in CA and in several other gun aversive states. One thing we all need to remember is that this will require the application of asymmetrical ‘political’ tactics. George Washington won very few battles, but won the war through the guerrilla warfare tactics employed by Nathanael Greene in the battles that led to the ultimate defeat of Cornwallis. Those of us who still honor the Constitution will have to accomplish a similar task within the political system. There will be many losses along the way but eventually we will be successful, provided we conduct ourselves according to the principles of the Constitution.
California Assembly Member Melissa Melendez has proposed common sense legislature that may loose given the political climate of CA. But she is trying to work within the system to right a ship that is listing to the port-side, left for those of you non-nautically inclined folks. I use the nautical terminology because Mrs. Melendez faithfully served this country in the U.S. Navy.
I for one applaud Mrs. Melendez for the effort she is making. CA has a truly gun aversive state legislature that has been able to restrict the rights of its citizens because no one has had the intestinal fortitude to challenge the left. Melissa Melendez is challenging the status-quo and even if this attempt is unsuccessful we hopefully will see others following her lead.
Yea except they haven’t “undone” anything. Instead of one person losing their guns, both get to lose their guns (felon). The best solution here is complete repeal of the “gun violence restraining order.” It is ridiculous to boot. Even if the person was violent or crazy, whatever, taking another person guns don’t guarantee the safety of the one requesting the “gun violence restraining order.” That person can kill them with a near infinite other ways. This is just “anti-gun” legislation – nothing more.
Maybe they should have these as well so they can cover all their bases:
knife and stabbing violence restraining order
blunt object violence restraining order
poisoning violence restraining order
vehicular homicidal/violence restraining order
Suffocation violence restraining order
drowning violence restraining order
Then they can come in and confiscate items such as the following:
Forks, kitchen knives, pens, pencils, letter openers, baking rollers, grilling forks, ice breakers, blenders, chairs, glass bottles, vases, all kitchen, garage, and cleaning chemicals, car keys, vehicles, plastic bags, pillows, trash bags, grocery bags, dry cleaning bags.
They can also install reinforced steel over toilets, sinks, bathtubs, and swimming pools for drowning prevention.
I keep waiting for them to develop and mandate the suicide, accident, and violence proof rooms we can all install in our homes to keep everyone safe.
Reduction ad absurdum? If a person is that suicidal, it would not be difficult at all to have him/her committed to a mental health facility under a “5150” hold. These orders may be used when the police/health worker decline to issue a 5150.
There is one other method that can be used in the case of false reporting that already exists. That would be to file a civil suit against the false accuser for actual and punitive damages. A few of these accusers losing their homes or personal property and that will be a deterrent to false reports.
I agree with DJ9 — even if this passes, Cali DAs won’t enforce it. It also needs a provision that allows aggrieved gun owners to sue and obtain compensatory and punitive damages for false reporting.
Yes, that would be necessary, since the claim would be a defamation–and in general, statements made in court proceedings, such as the required affidavits, are absolutely immune from a later civil suit. The only other avenue that I can conceive of at the moment is a malicious prosecution action, which requires that the person against whom the order was sought ultimately prevails, which claim would not require a change in the law. But this is a very difficult tort, in most circumstances, to prove.
Its a start. Its a common sense tweak.
Just like the pro-2A litigation that is working, slowly but surely in CA, you have to go at it brick by brick.
I agree that repealing or fixing in toto, the entire bill, is unlikely.
But going on record, and talking about it, establishes a milestone, for when more support is growing, to do it again. Rather than criticize or dismiss Assemblywoman Melendez effort, we should be applauding her, and spreading the word.
ACTION ITEM: as a story idea, but I bet there is someone out there who might have an interest in writing an article, or have anecdotal information to share,
on any stats for how how divorce attorneys have abused other restraining orders in CA.
Compare that to national stats or credible info, vs CA trends, and now we have a reason for change, that is real and measureable and uncontestable truth.
I know this:
CA Family law courts are overwhelmed, thanks to budget cuts, and I can tell you from seeing some of what happens in the related probate court, that there are gray areas and inconsistencies county by county. Judges are overwhelmed, and I dont think its going to get better, by demographics, and the political culture, until something breaks, or we can show that its about to break…
Read Divorcecorps: http://www.divorcecorp.com/
or watch the documentary. https://www.youtube.com/user/DivorceCorp
I sure hope this bill passes and becomes an effective deterrent to vindictive and frivolous reports. Last thing you’d want to see is one of these false targets turn around and exact retribution of their own upon the alarmist. Heavens to Betsy, what a dreadful thought.
Good luck in Commiefornia. Yeah it’s a start and I give her credit.
One other thought- when you look at the motivations of Sacramento Democrats, it helps to understand their own backgrounds, mostly lawyers, and where the money comes from- the lobbyists. After the CA Teachers Assn, and the Prison Guards, I believe its lawyers that give the most… or pretty high up.
So, anything that keeps the family law lawyers sucking blood out of their victims is good for them, and good for Sacramento.
Remember that the GVRO supposedly morphed from “mental health training to police, and more mental facilities funding” that Assmwymn Nancy Skinner had been working on, just prior to Elliot Rodgers rampage.
Or so said her backgrounder in the KPBS Santa Barbara radio show where she “debated” RF on what to do…
I recall listening and watching comments flow in on that website, and the most common and most detailed were social workers and mental health pro’s begging for that very thing.
Senate leader Darryl Steinberg jumped on the crisis, and that was transformed into another restraining order- admittedly slightly better, than the existing 72 hr hold, for people deemed a danger, by allowing a family member to make the call…
but no funding for the cops training, and no funding for mental health victims… so the people who REALLY need the help, and those who deal with them, the over-worked cops, and the emergency rooms that truly sick people get dumped in, because there is no place else to put them…and the Elliot Rodgers of the future, get no real help.
Lets see how the CA Democrats deal with the people who they claim to represent, the mental health victims…
and their family.
or if they continue to simply victimize law abiding citizens, by finding new ways to restrict their 2A rights.
I live in the Peoples Republik of Kalifornia. Until I can leave for free America I am all for any changes that slow down this unconstitutional law. Due Process is a thing of the past in the golden state.
Well, Almost, keep studying. This law does not violate due process. By the way, what is an Esq.? It doesn’t mean “lawyer”, you know. It is just a stupid honorific invented by American lawyers to puff themselves up. I refuse to use it.
FIRST POINT OF CORRECTION: THIS LAW HAS BEEN PASSED BUT DOES NOT GO INTO EFFECT UNTIL JANUARY 1, 2016.
SECOND POINT OF CORRECTION: While the law does allow a concerned close family member to call the police, the police have to get a TRO issued by the Court, based on reasonable cause to believe that the elements of the statute are met. Until they get that order, they cannot come beating down your door:
18125. (a) A temporary emergency gun violence restraining order may be issued on an ex parte basis only if a law enforcement officer asserts, and a judicial officer finds, that there is reasonable cause to believe both of the following:
(1) The subject of the petition poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm.
(2) A temporary emergency gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or have been determined to be inadequate or inappropriate for the circumstances of the subject of the petition.
The police are not required, by statute, to act on the call unless they, upon investigation, determine that the elements are met. In the alternative, an “immediate family member” can go directly to court, and there file a petition under penalty of perjury seeking the same relief.
The following is the court’s burden prior to issuing an order:
18155. (a) (1) The court, before issuing an ex parte gun violence restraining order, shall examine on oath, the petitioner and any witness the petitioner may produce.
(2) In lieu of examining the petitioner and any witness the petitioner may produce, the court may require the petitioner and any witness to submit a written affidavit signed under oath.
(b) (1) In determining whether grounds for a gun violence restraining order exist, the court shall consider all evidence of the following:
(A) A recent threat of violence or act of violence by the subject of the petition directed toward another.
(B) A recent threat of violence or act of violence by the subject of the petition directed toward himself or herself.
(C) A violation of an emergency protective order issued pursuant to Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code that is in effect at the time the court is considering the petition.
(D) A recent violation of an unexpired protective order issued pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code, Section 136.2, Section 527.6 of the Code of Civil Procedure, or Section 213.5 or 15657.03 of the Welfare and Institutions Code.
(E) A conviction for any offense listed in Section 29805.
(F) A pattern of violent acts or violent threats within the past 12 months, including, but not limited to, threats of violence or acts of violence by the subject of the petition directed toward himself, herself, or another.
(2) In determining whether grounds for a gun violence restraining order exist, the court may consider any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the following:
(A) The unlawful and reckless use, display, or brandishing of a firearm by the subject of the petition.
(B) The history of use, attempted use, or threatened use of physical force by the subject of the petition against another person.
(C) Any prior arrest of the subject of the petition for a felony offense.
(D) Any history of a violation by the subject of the petition of an emergency protective order issued pursuant to Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code.
(E) Any history of a violation by the subject of the petition of a protective order issued pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code, Section 136.2, Section 527.6 of the Code of Civil Procedure, or Section 213.5 or 15657.03 of the Welfare and Institutions Code.
(F) Documentary evidence, including, but not limited to, police reports and records of convictions, of either recent criminal offenses by the subject of the petition that involve controlled substances or alcohol or ongoing abuse of controlled substances or alcohol by the subject of the petition.
(G) Evidence of recent acquisition of firearms, ammunition, or other deadly weapons.
(3) For the purposes of this subdivision, “recent” means within the six months prior to the date the petition was filed.
(c) If the court determines that there grounds to issue an ex parte gun violence restraining order exist, it shall issue an ex parte gun violence restraining order that prohibits the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition, and expires no later than 21 days from the date of the order.
LAST POINT OF CLARIFICATION These orders are unlikely to be sought by or issued on behalf of ex spouses for the simple reason that there is a far more invasive and effective remedy under the Family Code. Violation of a Family court TRO can get the subject of the order arrested. Under these GVROs, the only remedy is seizure of arms.
Thanks for the clarifications. If I read it right, the filings have to be made under oath if the petitioner is not examined under oath. So the Assembywoman’s bill really just puts things where they should be: lying under oath = perjury. Correct? Now the question: Does perjury in Cali always = felony?
Thanks for that, Mark.
Laws don’t matter once a populance has lost its’ moral compass. Good luck finding a jury in the land of fruits, flakes, and felons, to convict someone who framed family or friend with a bogus violent label.
Hey. Very informative article. I`ve learned a lot from it. Seems like I read something like this on https://www.nytimes.com