In response to gun violence and the increasing demand for gun law reforms, states across the country have amped up their “red flag” laws. Red flag laws attempt to prevent gun crimes by removing firearms from the possession of someone who is potentially dangerous. In California, the red flag laws allow a temporary gun violence restraining order, or GVRO, to confiscate firearms if someone is determined to be a possible threat to other people.
How Does a Gun Violence Restraining Order Work?
A request for a GVRO is filed as a petition in court. If the petition is made by someone who can validly request gun removal, a judge will assess the individual to determine if they are a current threat to themselves or others.
The judge needs to determine if there is convincing evidence of the individual’s danger. The judge then either grants or denies the petition based on their evaluation. If granted, a GVRO will order all of your firearms to be confiscated by law enforcement for a specific period of time. Once a GVRO is issued, you can petition to have it removed once every year. If the GVRO is terminated or expires, you will be able to regain possession of your firearms.
Who Can Request a Gun Violence Restraining Order?
The purpose of a GVRO is to avoid tragedies by removing guns from the possession of those that may cause harm. Therefore, California’s red flag law allows people in a position to assess someone’s current mental and emotional state to request a GVRO. Since 2014, law enforcement officials and close family members in California can petition for a GVRO.
More recently, California’s red flag laws were expanded so that the following people can also ask for a GVRO:
- An employer.
- A coworker who has frequently and substantially interacted with the individual for at least a year and has obtained their employer’s approval.
- Teachers if the individual has attended the teacher’s school for at least six months and the teacher receives a school administrator’s approval to file the petition.
The law is designed so that only people who know the individual’s typical demeanor and are in a position to see a dangerous change can request a GVRO. However, there is no mandate in California’s law requiring anyone to seek a GVRO, regardless of the circumstances. A petition for a GVRO is always optional.
Are Gun Violence Restraining Orders Constitutional?
The Second Amendment to the United States Constitution secures your individual right to bear arms. How then can California law enforcement force you to give up your personal guns?
The state has an interest in preventing violence and promoting safety amongst its residents. Most courts have found that because a judge rules that you are a threat before your guns are confiscated, a GVRO does not violate your due process rights.
It does not appear any legal challenges to California’s red flag laws are coming soon. However, unlike other states that limit removal to one year or less, California allows gun confiscation for longer timeframes. Since you can lose your guns for years all at once, this red flag law may exist on shakier constitutional grounds.
If you are being threatened with a gun violence restraining order in Garden Grove, California, you need an experienced criminal defense attorney to help defend your rights. Contact the Chambers Law firm at 714-760-4088 or dchambers@clfca.com today to schedule a free consultation with a member of our skilled legal team.
