June 27, 2014 By Wallin & Klarich

Prompted by the recent shooting rampage that claimed the lives of seven residents of Isla Vista near the campus of UC Santa Barbara, lawmakers in Sacramento are considering whether to adopt a statewide measure to temporarily restrict the gun rights of individuals who pose a potential risk of violence.Brandishing%20a%20Weapon%20-%20California%20Gun%20Laws%20-%20PC%20417.jpg

The family of Elliot Rodger, the young man suspected in the Isla Vista killings, had notified the police about his mental state. However, sheriff’s deputies took no action even after paying Rodger a visit during a welfare check in April.

Rodger would go on to post a YouTube video entitled “Elliot Rodger’s Retribution,” in which he described in detail his intent to seek vengeance against women whom he felt had rejected him sexually. On May 23, Rodger carried out his threats, stabbing his three college roommates to death before going on a drive-by shooting spree throughout the student community of Isla Vista. He shot and killed three others before crashing his car during an officer-involved shootout, ultimately committing suicide.

Assembly Bill 1014, co-authored by Assemblymember Nancy Skinner, is a firearms bill that would create a “gun violence restraining order” using the same process as domestic violence restraining orders. The bill would allow a person to petition the courts to impose an order prohibiting gun ownership and purchases of firearms to individuals suspected of posing a threat to themselves or others.

Skinner says the recent tragedy illustrates a disconnect between California’s gun control laws and state policy regarding the mentally ill. “Here we had a situation where a mother was aware that her son was a danger to himself and others. She tried to intervene,” Skinner said.

What Would the New Law Do?

According to the California Legislative Counsel’s Digest, the bill would “establish a procedure to obtain a gun violence restraining order and, when applicable, a firearm seizure warrant, when a person poses a significant risk of personal injury to himself or herself or others by possessing a firearm.”

If the bill is passed, grounds the court would need to consider when deciding whether to impose a gun violence restraining order against you include:

  • A recent threat or act of violence;
  • A recent violation of a California protective order; and
  • A conviction for certain crimes of violence listed under Penal Code section 29805.
  • Other factors a judge could consider when deciding whether to impose a gun violence restraining order against you include:
  • You recklessly use, display, or brandish a firearm;
  • You have a history of threats or physical force against others;
  • Your prior felony arrests;
  • Evidence of your alcohol and/or drug abuse; and
  • Evidence of your recent acquisition of firearms or other deadly weapons.

The state would be required to produce clear and convincing evidence that you pose a significant risk of injury to yourself or another person by owning or possessing a firearm.

If ordered, a gun violence restraining order could require law enforcement to seize the firearm within 14 days of executing the restraining order, for a period up to one year.

Additionally, the law would make ownership, possession, purchase or receipt of a firearm a misdemeanor crime. The court would also be required to notify the Department of Justice of the imposed order.

Why Does California Need a Gun Violence Restraining Order?

Our country has suffered through too many mass killing sprees involving dangerous weapons in the hands of mentally disturbed individuals. Adopting a gun violence restraining order in California will help protect the public from future tragedies by allowing law enforcement to step in and take affirmative action when notified that a person may pose a risk of serious harm to himself or others.

We have laws on the books prohibiting individuals accused of committing acts of domestic violence and other violent crimes from possessing a gun while under a protective or restraining order. We should extend these protections so that potential future acts of violence can be avoided.

We need to be able to prevent those we suspect of suffering from mental illness from acting out irrationally. Getting the guns out of the hands of the mentally ill is a step in the right direction.

What’s Wrong with This Proposal?

The problem with the proposed legislation concerning a gun violence restraining order is that it is vague and over broad. As written, the new law would add section 18101 to the California Penal Code, which would permit “any person” to apply for a court order.
All that is required for the court to issue a gun violence restraining order is “an affidavit, signed by the applicant under oath, and any additional information” which satisfies the court that the named person “poses a significant risk of personal injury to himself or herself or others by possessing firearms.” (AB 1014). The affidavit needs only to provide facts “tending to establish the grounds of the application, or probable cause for believing that they exist.”

The proposed legislation contains no requirement that the person (or his or her family members) seeking application for the gun violence restraining order has been personally threatened or was subject to an act of violence by the named person.

All a person has to do to apply for a gun violence restraining order is to swear he or she suspects that a named person is dangerous. The court may consider circumstantial evidence and the state’s burden of proof is less than that required for a criminal conviction. Essentially, a named person can be found guilty of potentially posing a risk of committing a future violent crime.

This is a dangerous precedent to our concept of due process and may start a slide down a slippery slope towards further erosion of an individual’s constitutional rights.

Moreover, state and federal laws already prohibit persons convicted of any felony from owning, possessing, or purchasing a gun. Additionally, in California, Penal Code section 29805 imposes a 10-year firearm ban on any person convicted of specified misdemeanors involving abuse or violence.

The proposal, although well-intentioned, simply over reaches.

What Does Wallin & Klarich Think?

Our attorneys emphasize with the families of the victims recently slain in Santa Barbara, as we do with the loved ones of those who have been violently attacked or brutally murdered in the past at the hands of mentally unstable killers.

We believe that public policy must pay more attention to the plight of the mentally ill, which should include increased funding for treatment and violence prevention. Unfortunately, this bill provides little consideration of the underlying problem that the mentally ill are simply being ignored in our society.

We certainly don’t want guns to fall into the hands of unstable people prone to violence. However, this measure, currently only offers a temporary fix to a long term problem.

More worrisome, the proposed legislation may violate the rights of individuals who have yet to commit any crime.

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