Effective January 1, 2016, a new law went into effect that allows family members to ask a court to seize their family member’s guns temporarily. The bill was introduced in the California Legislature in 2014 after the Isla Vista massacre near Santa Barbara. Before six people tragically lost their lives, the shooter’s mother had noticed that he was increasingly agitated, and she had heard him make threats of violence.
The law places strict limits on judges who are presented with petitions to seize guns.
Temporary Emergency Gun Violence Restraining Orders
The new law authorizes a judge to issue a temporary order to prevent the possession of guns for 21 days when a petition is presented by an immediate family member or a law enforcement officer and the judge finds the following:
- There is reasonable cause to believe that the person presents an “immediate and present danger” of personal injury to another person or himself;
- By having, owning, purchasing, possessing, or receiving a firearm; and
- The order is needed to prevent personal injury to a specified person.
If the dangerous person can reasonably be found, a law enforcement officer must serve a copy of the order on him.
Ex Parte Gun Violence Restraining Orders
Probably the most controversial aspect of the new law is the power of a judge, in very narrow circumstances, to issue an order restraining a person from possessing a gun or ammunition without providing the person advance notice. This is known as an “ex parte” order. Before an ex parte order may be issued, the following criteria must be met:
- There is a “substantial likelihood” that the person poses a “significant danger of harm” to another person or himself;
- In the near future;
- By having, owning, purchasing, possessing, or receiving a firearm; and
- The order is needed to prevent personal injury to a specified person.
When these criteria are met, the judge may issue an order preventing the dangerous person from having firearms or ammunition in his custody or control. Ex parte orders have a limited shelf life: They cannot last longer than 21 days, and the judge must order a hearing within that 21-day period. At the hearing, the judge determines whether a one-year restraining order is warranted. Again, the person must be served with a copy of the order if he may reasonably be found.
One-Year Gun Violence Restraining Order
A longer term restraining order, up to one year, may be issued after the person receives notice and an opportunity to attend a hearing. Before a one-year order may be entered, the following must be shown by clear and convincing evidence:
- The person “poses a significant danger of personal injury to himself” or another;
- By having a firearm or ammunition;
- A restraining order is needed to prevent personal injury to the person or another; and
- Either less restrictive alternatives have been ineffective or they would be inappropriate.
The health and well-being of you and your children are important to the State of California. If you are concerned about your safety, do not hesitate. Call the attorneys at The Law Offices of Judy L. Burger today at (415) 293-8314. We have extensive experience in family law matters, including those involving family member violence and threats of violence.