Nov 02, 2019
A Civil Solution to Preventing Gun Violence
Nov 02, 2019
By Dori Ahana
What Is a Gun Violence Restraining Order?
The prevention of gun-related violence is a top priority for law enforcement. Accordingly, law enforcement agencies have begun to turn increasingly to the Gun Violence Restraining Order ("GVRO") as a tool to help avert tragedies resulting from gun violence. In California, GVROs are civil court orders that prohibit a person from owning, purchasing, possessing, receiving, or having in their custody or control, any firearms or ammunition. Because GVROs are civil, not criminal, orders, they do not require that a crime happen or that a crime be prosecuted for them to be issued. They offer a method to address situations where no alternative legal way exists to remove firearms from individuals who pose an immediate and present danger to themselves or others or to prevent their acquisition in the first place.
Initially, GVROs were sought primarily in family violence and stalking cases. They are now being obtained in situations involving substance abuse or an emotional crisis brought on by unforeseen circumstances (death of a loved one, divorce, etc.) where a person’s behavior indicates that the presence or availability of firearms creates a danger to that person or others. GVROs are also a useful tool in situations involving people suffering from mental health issues such as post-traumatic stress disorder or where dementia may cause an individual not to recognize a family member or caregiver and potentially use a firearm against them, thinking there is a stranger in their house. There is also a growing trend of GVROs being used to address potential workplace or school violence, often communicated through the use of social media.
Who Can Obtain a GVRO?
You don't have to be a victim of a crime to apply for a gun violence restraining order. Currently, law enforcement and immediate family or household members are the only individuals who can petition for these orders, although most if not all are usually sought by law enforcement. Immediate family or household members include: a spouse, domestic partner, parent, child, sibling, grandparent, grandchild, in-law, and any other person who for the previous six months lived in or regularly resided in the household.
Starting September 1, 2020, in recognition of the growing occurrences of workplace and school violence, employers and coworkers, secondary or post-secondary school employees, teachers, and administrators, may also apply for a GVRO. Once a GVRO is served, law enforcement can require immediate surrender of firearms and ammunition. If the restrained person does not comply, a search warrant can be obtained for seizure of the firearms and ammunition.
Types of GVROs
There are three types of gun violence restraining orders: temporary emergency, ex parte, and "permanent." For the most part, they have the same requirements for a court to issue them: 1) a person poses a danger of personal injury to self or others; 2) a GVRO is needed to prevent such harm; and 3) less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate. The primary differences between the three types of gun violence restraining orders are the legal standard by which the court makes its determination and the length of time the orders last.
Only law enforcement may obtain a temporary emergency GVRO, which a judge typically issues over the phone, followed by the law enforcement officer completing a judicial council form and submitting it to the court following service of the order. The officer must assert, and a judge must find, that there is reasonable cause to believe that a person poses an immediate and present danger of personal injury to self or others and the order is necessary to prevent injury to the person or others. This GVRO goes into effect immediately and expires after 21 days.
Law enforcement and immediate family or household members may obtain an ex parte GVRO. As noted above, effective September 1, 2020, those who can petition for these orders expands to include employers and coworkers and secondary or post-secondary school employees, teachers, and administrators. For the order to issue, the petitioner must state why the person may be dangerous and the court must determine that there is a substantial likelihood that the person poses a significant danger, in the near future, of personal injury to self or others, and the GVRO is necessary to prevent the injury. Ex parte GVROs are valid for up to 21 days.
The "permanent" GVRO may issue after notice and a hearing on a filed petition. A law enforcement or immediate family or household member must show by clear and convincing evidence that the person poses a significant danger, in the near future, of causing personal injury to self or others and the GVRO is necessary to prevent the injury. The GVRO issued after notice and hearing does not require that there be a prior emergency or temporary GVRO and can last up to one year. Effective September 1, 2020, GVROs issued after notice and hearing may last from one to five years, and who may apply for this GVRO expands to employers and coworkers or secondary or post-secondary school employees, teachers, and administrators.
Law enforcement and the District Attorney's office here in Marin have been trained on obtaining GVROs. The District Attorney's Office has also put on a county-wide presentation on GVROs to educate the community at large on this subject. The court forms for these petitions and orders can be accessed through the Marin County Superior Court website under “Restraining Orders – Other Types” (which simply takes you to the Judicial Council website) or through the Judicial Council of California website itself under the “Forms and Rules” tab (if the link does not work, choose "Gun Violence Prevention" from the dropdown list).
Gun Violence Restraining Orders will not end gun violence in America, but are an important tool to stop senseless tragedies before they happen.
Dori Ahana is the Chief Deputy District Attorney, Marin County District Attorney's Office.