August 27, 2008 By Wallin & Klarich

In the previous two installments, we discussed how the U.S. Supreme Court’s opinion in D.C. v. Heller left open many important questions concerning how the newly established “individual” right to “keep and bear arms” fits within present laws restricting an individual’s ability to exercise said right, and how, typically, a government seeking to restrict a person’s exercise of a “fundamental” right has to make a very strong showing as to why the person’s right should be restricted.

One area that could be subject to attack is the current state of the law concerning restraining orders and injunctions in California. Under California law, any person who has suffered “harassment” has the ability to petition the court for a protective order and an injunction. (Code Civ. Proc., § 527.6, subd. (a).) “Harassment” is defined as: “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.” (Code Civ. Proc, § 527.6, subd. (b).)

What happens in many cases is that the “plaintiff” i.e., the person alleging “harassment,” goes to court and files a petition and asks the court to grant a “temporary restraining order,” which the court will often do (many judges “rubber stamp” these orders). This “temporary restraining order” is almost always issued without any opportunity for the defendant to present his or her side of the story. (Code Civ. Proc., § 527.6, subd. (c).) This is called an “ex parte” proceeding. The temporary restraining order issued in the ex parte proceeding remains valid until a formal hearing can be held on the plaintiff’s petition within 15 days, at which time the defendant can finally present his or her side of the case to the court. (Code Civ. Proc., § 527.6, subd. (c).) thus, the defendant, once served with the temporary order, has had his or her liberty restrained without ever having a chance to present his or her side of the story to the court.

Significantly, the law provides that a person who is the subject of the temporary restraining order “shall not own, possess, purchase, receive, or attempt to purchase or receive a firearm while the protective order is in effect” and, furthermore, the Court is required to “order a person subject to a protective order … to relinquish any firearms he or she owns or possesses.” (Code Civ. Proc., § 527.6, subd. (k).) This means that a person can be deprived of his or her constitutional right to possess firearms without even having an opportunity to appear in court and tell his or her side of the story to the judge, simply on the bald assertions of the “plaintiff” and regardless of any action by a criminal record expungement lawyer on behalf of the defendant..

Furthermore, all proceedings are held by the court without a jury trial, and, if the judge finds by clear and convincing evidence that there has been “harassment” and issues an injunction, the court’s order prevents the defendant from being in possession of a firearm. (Code Civ. Proc., § 527.9, subd. (a).) The court’s order can remain in effect for up to three years, and, at any time within the last 90 days of the court’s order, the plaintiff can return to court and ask that the injunction be renewed, presumably for up to another three years. (Code Civ. Proc., § 527.6, subd. (d).)

Additionally, since the case is a “civil” case, the law does not allow for an attorney to be appointed for the defendant at government expense. (See Code Civ. Proc., § 527.6, subd. (e)[Permitting either party to be represented by “private counsel”].) This means that, if a defendant is indigent and cannot afford “private counsel,” the defendant must defend him or herself at the hearing – even if the “plaintiff” has a lawyer.

So, in the final analysis, we see that the Court in Heller found that the right to “keep and bear arms” is a right guaranteed by the U.S. Constitution and enjoyed by all individuals in America. That notwithstanding, under California law, the state can deprive an individual of that Constitutional right:

  1. Who has been convicted of no crime, and who has committed no act of physical violence at all (remember “alarming” conduct is “harassment”)
  2. Based upon the uncorroborated say so of one person without the right of the individual to respond in court
  3. In a proceeding where the individual has no right to an appointed attorney if he or she is indigent
  4. In a proceeding where the individual has no right to a trial by a jury of his or her peers
  5. Even if the judge, after the full hearing, believes that the person poses no future danger of committing any act of violence, the judge MUST take the individual’s “right to keep and bear arms” away.

It will be interesting to see how a Court, presented with a Second Amendment challenge to this statutory scheme, might rule.

If you have had your right to possess a firearm taken away from you, you need to call consult a California criminal defense attorney about cleaning up your criminal record. The experienced misdemeanor and felony defense lawyers at Wallin & Klarich can be reached at 888.280.6839. We will be there when you call.

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