The Red Flag Law of California, also called the Gun Violence Restraining Order (GVRO), enables an individual to seek the court’s intervention against you if he/she believes you are dangerous to yourself or others. The individual can also write a petition asking the court to dispossess you of firearms, especially if you seem like a threat. The court will then consider the evidence provided, and if the court finds sufficient cause, it will grant an order that the firearms be seized for a certain period.
What is the procedure for red-flag laws? Who can request a red-flag order? How can I protect myself in the face of the GVRO? These are some of the questions the information below will answer. Keep on reading to better understand these laws.
An Overview of Red Flag Laws
Red flag laws aim at preventing gun violence by allowing the victim to act when someone shows signs of being a threat. Individuals who perceive someone as being a threat to another or have other disturbing tendencies can go to court and request that you, the perceived aggressor, surrender your guns for some time.
These laws allow people to act fast in conflict-filled situations to prevent them from escalating since these conflicts can turn tragic. The applicant to the GVRO has to present his/her concerns to a judge and give him/her evidence, after which the judge could issue an order to temporarily remove firearms. This approach enables the victim or applicant to deal with possible risks from the onset, thus minimizing the likelihood of serious incidents like fatalities or serious bodily injuries.
It would seem that granting a Gun Violence Restraining Order would violate your Second Amendment rights, the right to bear arms. However, red flag laws do not violate your rights since they help ensure everyone around you is safe. The orders are temporary and reversible through the court. This allows you to address the perceived threats while protecting your freedoms.
Concerns about the constitutionality of red flag laws are common. Some claim these laws compromise the Second Amendment and the Constitution's due process clause. The fear is that red flag laws could allow firearms to be taken away without adequate evidence and a fair trial, thus leading to unjust infringements on rights and unlawful seizure of property. On the other hand, the proponents argue that these laws are necessary to prevent danger in the near future. They point out that these laws include safeguards, like judicial review and the ability for individuals to contest the orders, to protect constitutional rights.
However, these constitutional issues do not mean that it is misguided for the state to guarantee temporary protection to endangered persons. Weapons pose a threat to human life, and red-flag laws are a necessary intervention for threats. These laws assist in preventing catastrophes, including suicides or other violent episodes, by allowing people displaying this behavior to be relieved of firearms for some time. The problem lies in the fact that there is always a conflict between the protection of people’s liberties and the need to avoid violence, and in this case, the protection of constitutionally guaranteed rights is also a priority.
Who Can Apply for a Gun Violence Restraining Order?
In California, different people can apply for a gun violence restraining order. These include the following:
- Spouses, domestic partners, parents, children, and other close relatives who think a particular relative is dangerous could apply.
- An employer can apply for an order if the employee exhibits threatening behavior.
- Police officers can petition based on observations of antisocial behavior that threatens society.
- People living in the same household, such as flatmates or partners, can apply for a GVRO if they observe egregious conduct.
- A school teacher or principal can apply for an order if the student seems dangerous. If granted, this order would remove all firearms from the minor’s home or an environment to which the child has access.
The red flag law addresses two main scenarios:
- When a person threatens to commit suicide or harm other people — In case of self-harm indicators, authorized persons can request the court to temporarily take away firearms.
- If a person uses abusive language or violent actions toward other people, the petitioner can apply for the temporary removal of the latter’s guns — The law in this situation would mitigate imminent risks by temporarily disarming persons who are considered dangerous and, in the process, increasing safety for oneself and others in society.
In California, the courts consider several factors to determine whether they should grant a Gun Violence Restraining Order. These factors help determine if you pose a serious threat, especially when you have firearms. These factors include:
- Evidence of a serious threat — In this case, the petitioner must provide compelling reasons to justify posing a threat of violence.
- Risk factors — The court considers several risk factors, like threats you have issued within the last year or more or any violent actions, severe mental illness, dangerous use of firearms, violence, or cruelty to animals.
- Detailed information on the threat — The petition must also provide details of the threat and why you should not have access to firearms. General or vague concerns do not generally qualify as legal concerns.
- The immediacy of the threat — The evidence must prove that the danger exists or is looming. The court needs evidence of past conduct, but there must be a clear and present danger.
- Connection to firearms — The court evaluates your interaction with firearms, whether you own, have, or have access to weapons, and how you have used the guns (are you a responsible gun owner?). This evaluation assists in determining the possible danger that comes with their firearm use.
If a judge grants a restraining order against you, they can impose several key restrictions, namely:
- You will not be allowed to possess any firearms at all
- You cannot have any gun in your possession or under your control
- You will be unable to purchase new firearms
- You are required not to have any guns on you
- You cannot possess or obtain firearms or ammunition in particular circumstances
Employer Liability for Gun Violence
Employers have a vital responsibility to maintain a safe workplace, especially regarding the risk of firearm-related incidents. If you possess credible evidence suggesting that an employee may commit firearm violence, you must seek a Gun Violence Restraining Order (GVRO). This obligation becomes even more urgent if an employee requests a restraining order due to concerns about another employee's behavior.
Negligence plays a significant role in these situations. If you fail to pursue a GVRO despite being aware of potential threats, your inaction can be viewed as negligent. This indicates that you did not fulfill your duty to ensure a safe work environment. In the unfortunate event of violence, where someone suffers injuries because of the employee in question, you could become legally accountable.
If an injured party decides to take legal action, they must prove that your negligence contributed to their injuries. Establishing this connection is crucial for the lawsuit's success. The injured party must demonstrate how your failure to seek a GVRO directly led to the harm they experienced. Only by proving this link can the individual seek compensation for their damages and hold you responsible for your role in the incident.
Emergency vs. Non-Emergency Gun Violence Restraining Orders
Judges in California can issue two types of GVROs:
- The emergency GVRO and
- The non-emergency GVRO
Each type corresponds to the level of threat you pose if you have access to firearms, depending on the urgency and severity of the situation.
Emergency Gun Violence Restraining Orders
When there is an immediate and urgent danger, judges issue an emergency Gun Violence Restraining Order. The police usually request these orders when they believe you are a clear and present danger to yourself or others. Because of the urgency, judges can easily give you an emergency GVRO without your presence in an ex-parte hearing. These temporary orders usually take about 21 days, during which police officers take all your guns, if any.
This action is deemed necessary to avert a situation where the victim could suffer harm while simultaneously creating an opportunity to evaluate the incident more closely. Emergency GVROs work on short notice to prevent dangerous situations and ensure that firearms are removed from those who might become aggressive or reckless.
Non-Emergency Gun Violence Restraining Orders
Judges issue non-emergency GVROs whenever there is a threat to an individual's life, but the threat is not imminent. These orders are usually sought by family or household members or the police who have witnessed suspicious conduct. In non-emergency situations, the court sets up a hearing where you can attend and fight the issuance of the GVRO. The judge looks at the evidence presented and hears the arguments, then determines if there is a need to issue a GVRO.
If the judge approves the order, it can be valid for up to one year and can be renewed if the risk remains high. It also makes sure that the court avoids any violence while at the same time observing your rights to procedural justice.
Who is Responsible for Taking Possession of the Firearms?
A court that issues a protective order usually orders that law enforcement serve the order on the person named in it. The process ensures that you are officially informed of the restrictions. This procedure depends on law enforcement agencies, which do not charge fees for serving the order. It is a service that provides you with no cost, a means to get access to legal protections without putting you under a financial burden.
When the protective order is issued, you must immediately hand over any firearms you have to the police. This requirement is necessary to keep the protected party safe and to avoid the threat of violence or intimidation. The police must secure these firearms, and that is a critical aspect of enforcing the order.
If law enforcement cannot serve the protective order, you need to. If you must, you should sell or transfer your firearms to a licensed dealer or return them to the police. This usually has to happen within 24 hours. This helps keep firearms away from people who may be a danger and reaffirms the protective nature of the court's order. However, it is also a matter of public safety.
How to Challenge a Gun Violence Restraining Order
If you have a gun violence restraining order against you, you need to know that you have the right to contest it. You can best challenge the order when you follow the process below:
Learn More on the GVRO Issued Against You
When the court issues a Gun Violence Restraining Order (GVRO), it sends you a formal notice. It also serves several purposes. It clearly outlines the reasons for the order and helps you understand the circumstances that brought about this legal action. The notice also sets a time frame for the GVRO to remain in effect. Knowing how long the order lasts is essential because it tells you how long you are restricted in your rights.
The notice also describes the particular limitations on your ability to possess firearms. These limitations are significant because they dictate what you can no longer do. You must understand these restrictions. Any violation can have dire legal consequences. Reading the notice carefully allows you to review the evidence against you and your options going forward.
Attend the Court Hearing
The court will set a hearing date to decide whether the GVRO should remain in force. You have to be present at this hearing to defend yourself, to explain your version of events, to present the proof, and to deny the accusations. Your absence can result in the court extending the GVRO or making it permanent.
Collect Evidence to Support Your Claim
You can only challenge the order with convincing evidence that makes your case. Gather any material evidence, including character references, proof of sanity, and documents that will negate the allegations against you or any other witnesses who can attest to your conduct and character. Fact-based evidence will help you present a strong case in court.
Seek an Attorney’s Assistance
Choose a lawyer that specializes in firearms laws or restraining orders. An experienced attorney can explain your legal options, defend you in the hearing, and present a compelling case on your behalf. They can also help you collect evidence and develop an effective legal argument that can help you fight the Gun Violence Restraining Order.
Build a Persuasive Case
Be ready to provide adequate reasons why you are harmless to yourself and others and how the GVRO should not be in force in your case. Make sure that when presenting your case, you speak logically and calmly and present your case in a structured manner. Do not act emotionally or aggressively because this can hurt your credibility.
Request a Termination Hearing
You should seek a termination hearing if you think the GVRO was issued because of false information. This means that before the expiry of this order, you have a chance to persuade the court not to grant the order. In this hearing, however, you are supposed to provide sufficient reasons why the GVRO should be terminated early.
Comply With All Court Orders
When you are before the court to challenge the GVRO, you must observe all the conditions provided by the court. This entails giving up any weapons and not buying any more weapons. Contempt of court is a criminal offense, which is another reason why you should adhere to the court’s order. Failing to follow the court’s orders can result in criminal penalties, weakening your case.
Find a GVRO Defense Attorney Near Me
Being served with a gun violence restraining order can be pretty overwhelming, primarily if it is based on false information or comes from unexpected sources like family members. These situations can be very stressful, and it becomes difficult to remain calm and composed.
Preparing well for a GVRO hearing and having a sound strategy helps you make your case. An experienced attorney can be of great help in this process. Your attorney will review the evidence brought against you, identify any inaccuracies or false claims, and then develop a plan to address these issues effectively. This is important because disproving the false information can go a long way in changing the entire course of the case. In court, your attorney will represent you and work to tell your side of the story. He/she will argue your case and provide evidence to support your claims. An attorney’s efforts help ensure that your case is considered on its merit and not based on some emotional or procedural issues that may arise.
At Leah Legal, we strive to provide our Van Nuys clients with the best legal advice and representation. Our support will alleviate the stress of navigating the legal system alone. Call us at 818-484-1100 to speak to one of our team members for a free consultation.