How you Can Lose Your Gun Rights : Understanding GVRO and ERPO’s

Many, not all (and there is no way to say definitively what percentage) of the psychopaths that commit mass shootings, show some predisposition toward violence before they pulled the trigger. If family members noticed these red flags, they could petition a court to demand the person forfeit all their firearms. The concept is based on restraining orders used in domestic incidents.

In 2014 California passed AB1014 which created the Gun Violence Restraining Order (GVRO). Since then 9 other states have passed similar laws, these include:

• California
• Illinois
• Maryland
• Massachusetts
• New Jersey
• Oregon
• Washington
• Florida
• Rhode Island
• Vermont

The laws vary from state to state, but let's look at California's law as an example. It was the predecessor of the others and has been implemented for the longest time.

California’s Gun Violence Restraining Order (GVRO)

The GVRO, known in other states as an Extreme Risk Protection Order (ERPO) allows someone to petition a judge, to prohibit a person from having in their possession, owning, purchasing or receiving a firearm or ammunition, because he/she believes the person:

“poses a significant danger, in the near future, 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.”

No responsible gun owner wants people in the above condition to possess firearms. But currently, there is a federal law prohibiting certain people from possessing/purchasing firearms. If you have ever purchased a gun, you filled out the ATF 4473 form. This form lists disqualifiers for people to possess a firearm.

I will use California’s GVRO law to explain why we must scrutinize these laws carefully.

Who Can File?
Penal Code 18150 (a) (1) An immediate family member of a person or a law enforcement officer (LEO) may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.

Seems reasonable that an immediate family member may notice something is not right, but who is considered an immediate family member?

PC 422.4(b)(3) … any spouse, whether by marriage or not, domestic partner, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

Highlighted is the fact that anyone who regularly resided in your home within the last six months is considered an immediate family member. This would include a vindictive roommate or ex-boyfriend/girlfriend. Domestic violence restraining orders and child custody hearings are abused regularly. This law is more likely to be abused if the standard of proof to file a claim is low.

The standard of Proof?

Penal Code 18150 (a)(1)(b) A court may issue an ex parte gun violence restraining order if the petition, supported by an affidavit made in writing and signed by the petitioner under oath, or an oral statement taken pursuant to subdivision (a) of Section 18155, and any additional information provided to the court shows that there is a substantial likelihood that both of the following are true:

(1) The subject of the petition poses a significant danger, in the near future, 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 as determined by considering the factors listed in Section 18155.

2) An ex parte 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 are inadequate or inappropriate for the circumstances of the subject of the petition.

To reach the ‘substantial likelihood’ bar, your claim merely has to be ‘pretty likely' that the person will harm himself or someone else.

Some argue this standard is good enough, and we should always err on the side of caution. It is this aspect that is troubling. When we build in ‘err on the side of caution’ it inevitably lowers the standard set in the legislation. When faced with a 50-50 decision, would anyone not err on the side of caution? Of course not.

The Process?

Penal Code 18150 (a) (1)  An immediate family member of a person or a law enforcement officer may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.

The two words, ex parte, are incredibly important, and likely glossed over by most. This means the petition can be filed and issued without hearing from both sides. This is bothersome as it circumvents important elements of our legal process.

Due process, the presumption of innocence, the right to face your accuser and present evidence in your defense are the hallmarks of freedom. So much so, that the founding fathers spelled it out twice in the Constitution. Once for the federal government in the Fifth Amendment, and again for the State Governments in the 14th Amendment.

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

How is it Served?

The order must be served by a law enforcement officer or someone over 18 years of age that is not a party in the action.

When served, the accused will be given a court date within 21 days. At this hearing, he/she can defend themselves. Of course, it will cost the person money in attorney fees and loss of work while they attempt to clear their name and restore their constitutional rights.

At this hearing, the Judge decides whether or not to enact the ban for one year. Now the evidentiary standard is higher. It is still not beyond reasonable doubt,  like what is needed to convict of a crime. Rather similar to probable cause, the standard LEO needs to detain you for a suspected offense. In other words, a little more than 51%.

If the accused doesn't appear on the hearing date, the temporary order automatically goes into effect for one year.

Defending Yourself?

Even proponents of these laws understand that stripping someone of a constitutional right without a hearing is difficult to sell. So they argue the person is only temporarily deprived of their 2nd Amendment right. Temporary is a relative term.

I have mentioned the 5th and 14th Amendments. You may say ‘what about the Second Amendment?' It is here that it is most applicable.

The Second Amendment:

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

We know that the 2A is not absolute. The US Supreme Court has ruled that various restrictions on firearm ownership is legal. But in District of Columbia v. Heller the Supreme Court of the United States (SCOTUS) decided that Second Amendment applies outside of (militia) purposes and to one's right to self-defense inside the home. 

So this ex parte order now not only has stripped the person of due process, and the presumption of innocence, but now the right to protect themselves or their family within their home.

Enforcement:

This section will make clear the ultimate goal and inevitable outcome of these orders.

The law demands the person surrender all firearms and ammunition immediately upon being served by an LEO or within 24 hours if served by a citizen. Simply saying someone must surrender their firearms and ammo, does not make it so. So how are the guns removed from the person’s possession?

Let's say a citizen serves the order. Actually, why would anyone send a citizen to serve a restraining order on someone who is unhinged, armed, and poses imminent danger others? If your friend asks you to serve one of these, they are not your friend. If law enforcement serves the order, it will require many officers and resources because of the potential for violence.

In either event, serving the order, be it by LEO or a citizen can produce an opposite effect than what was intended. It is the service of the restraining order that actually triggers violence.

Only law abiding people will pay any mind to these laws, to begin with. Its effectiveness rests on the absurd belief that a person who is bent on shooting up a mall will alter their course, and surrender all their firearms because their neighbor served them with a GVRO.

Restraining orders don’t offer actual protection, they merely give law enforcement another tool to arrest the violator when they could not, absent the order.

I must point out a painfully obvious point. If the person voluntarily turns in all firearms and ammo and is not taken into custody, are they not still able to inflict mass casualty using something other than a firearm? And please don't miss this point:

If the goal is to remove every firearm and every round of ammunition from the person named in the GVRO, the court must know what firearms and ammunition are registered to that person. Because if the officer is effective in removing 99 out of 100 guns from the deranged person, they have failed.

So how can law enforcement ensure they collect every firearm from the person? You got it, gun registration. Only when the government has access to a list of all firearms and ammunition you own, can enforcing the law make any sense.

States are not prohibited from creating gun registries. Washington DC and Hawaii require every firearm to be registered. In New York, you must register any handgun. In California and Maryland residents must ‘report’ their firearms, creating a defacto registration.

Had it not been for Rhode Island and Vermont’s law prohibiting a gun registration, that would have likely accompanied their GVRO laws.

The Outcome?

Gun control groups claim these laws have been used to stop shootings. But in the cases they mention, there were already laws that made it possible for law enforcement to arrest and stop the person from carrying out their plan. Headlines read ‘GVRO’s will save lives.' But these articles point to hypotheticals instead of facts.

Furthermore, many of the well documented, mass shootings occurred in states that already have these laws. And honest journalists admit that these laws would not have stopped the recent mass shootings.

And what of the cost to the person named in the petition, if it is found to be a bogus charge? Should we not consider this? Likely they spent money on attorney fees, court costs and missed work, and suffered irreversible damage to their reputation and standing.

The argument is that if you don't support these laws you want mentally ill people to possess firearms. Don't fall for this debate technique known as ‘false dilemma' where only two options are presented when many more exist. Of course there other alternatives besides GVRO's.

What is the Punishment for Not Surrendering your Firearms?

PC 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 issued pursuant to Chapter 2 (commencing with Section 18125), an ex parte gun violence restraining order issued pursuant to Chapter 3 (commencing with Section 18150), or a gun violence restraining order issued after notice and a hearing issued pursuant to Chapter 4 (commencing with Section 18170), 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.

Yeah, you read that correctly. The person who is planning a mass shooting is going to turn in their firearms because they don’t want to be arrested for a misdemeanor charge.

This is one of the many problems with trying to legislate morality. The people who are bent on the most heinous crimes are not deterred by legal consequences. In contrast, people who would be persuaded by a misdemeanor charge, are not likely the people we worry about.

What is the Punishment For Falsely Filing a GVRO?

PC 18200 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 or with the intent to harass, is guilty of a misdemeanor.

The punishment is merely a misdemeanor for knowingly issuing a statement that leads to a person's fundamental rights being unfairly stripped from them. That is if a prosecutor takes the case, and can prove it in court. There are also laws like this that allow prosecutors to charge people for filing a false police report. These cases are never taken up, for the fear that it will scare people from filing real police reports, so these are hollow threats.

In Summary:

GVRO’s and Extreme Risk Protection Orders (ERPO’s as other states refer to them) can be a tool for law enforcement, but only if we are clear on our expectations of what the legislation can do and if the law is written carefully and appropriately. Here’s why:

People must be realistic and accept that these laws will not eliminate all mass shootings or even the majority of shootings. It is actually dangerous to believe that because of these laws, you are somehow any safer than before. There is literally no empirical evidence that shows these laws reduce the number of mass shootings. To buy into this diverts attention from other, more effective ways of making our communities safer, and gives people a false sense of security.

Who is allowed to file the petition must be scrutinized. As mentioned, 10 states currently have laws similar to California’s in place. In seven states, California, Illinois, Maryland, Massachusetts, New Jersey, Oregon and Washington, immediate family or LEO’s may file a petition. In three, Florida, Rhode Island and Vermont, only Law enforcement may petition the judge. Only allowing LEO’s to file a petition, reduces the possibility of an order filed merely out of malice. It doesn’t remove all likelihood, but it is one deterrent. 

How long the time should be between the temporary (ex parte) hearing and the actual hearing that the accused can appear is tricky. California allows up to 21 days before one can defend themselves. Illinois, Florida, Rhode Island Vermont and Washington, 14 days. In New Jersey and Massachusetts, 10 days and Oregon 30 days.

In Maryland, the ex parte order is only good for 7 business days. All of the temporary orders become permanent if the accused does not appear on the hearing date. In cases where it is quick, it may be difficult for someone to appear. On the other hand, if it is too long, they could be waiting for weeks before being given the opportunity to defend themselves. Allowing the accused to set a date to appear gives them a chance to appear when most appropriate.

There must be serious punishment for anyone who files a false claim. Tough punishments should not dissuade an honest person from acting on their concerns. But in order to maintain the integrity of the system, falsely filing a petition must be harshly dealt with. Currently, laws exist in each state that makes knowingly filing a false petition a misdemeanor crime. Is this enough of a deterrent? Time will tell.

It's worth reiterating that the law requires gun registration to have any chance of being marginally effective. For quite obvious reasons, gun registration should be rebuked at every turn. Law abiding Americans need not be placed on a list, simply for choosing to own a legal firearm. All these concerns make the slippery slope argument more valid.

Citations for state laws:

California, New Jersey, Illinois, Oregon, Washington, Maryland, Massachusetts, Florida, Vermont, Vermont