Criminal Law Elder Law Family Law Real Property Law

Getting a Gun Violence Restraining Order

According to an alarming 2014 FBI study, nearly 68% of homicides involved the use of ThinkstockPhotos-506101244firearms, with over a quarter of victims killed by a family member. From these numbers alone, it’s clear to see the urgency of a client’s situation if he or she says a family member may resort to violence. One way to protect your client is to seek a gun violence restraining order.

California’s new Gun Violence Restraining Order (GVRO) statutes (Pen C §§18100-18205) allow law enforcement officers and concerned family members to petition the court for an order prohibiting a person from purchasing or possessing firearms or ammunition.

The new law offers three types of restraining orders:

  1. Temporary Emergency GVRO. Only law enforcement officers may request a temporary emergency GVRO. Pen C §18125. The officer must show reasonable cause to believe that a person poses an immediate and present danger to self or others and that a less restrictive alternative would be inadequate. A temporary emergency GVRO lasts for 21 days, after which an officer may request a year-long GVRO under Pen C §18170.
  2. Ex Parte GVRO. Law enforcement officers and immediate family members may petition the court for an ex parte GVRO. Pen C §18150. Immediate family members include anyone who regularly resides in the household. Pen C §422.4. The court may issue the GVRO if the petitioner demonstrates good cause to believe that a person is substantially likely to injure self or others and that a less restrictive alternative would be inadequate. Pen C §18155. In making this determination, the court must consider a variety of factors, including recent threats or acts of violence, prior violent convictions, and violations of protective orders of any kind. The court may also consider additional factors, such as reckless use of a firearm or ongoing substance abuse. An ex parte GVRO is effective for 21 days, during which time the court must provide a hearing to determine whether a one-year GVRO should be issued or whether the ex parte order should be terminated. Pen C §18165.
  3. GVRO after Notice and Hearing. Before the hearing discussed above, a law enforcement officer or family member may request the court to issue a year-long GVRO. Pen C §18170. A GVRO after notice and hearing has the highest standard of proof, in which the petitioner must prove by clear and convincing evidence that the person subject to the ex parte GVRO remains a significant danger to self or others and that a less restrictive alternative would be inadequate. Pen C §18175. In making its final decision, the court will consider the same factors relevant to the issuance of an ex parte GVRO. Once the GVRO is issued, the person subject to the order may submit one written request during its effective period to terminate the order. Pen C §18185.

The Judicial Council has prescribed forms for the necessary petitions and court orders.

A person subject to a GVRO must immediately surrender any firearms or ammunition currently in his or her possession and can’t acquire new firearms or ammunition during the effective period. Pen C §§18120, 18160, 1880. The court may issue a search warrant for any firearms or ammunition in the person’s possession. Pen C §1524(a)(14).

Learn more about obtaining GVROS and other protective orders in CEB’s Neighbor Disputes: Law and Litigation, chap 10; Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chap 11; California Elder Law Litigation: An Advocate’s Guide, chap 8; and the California Judges Benchbook: Domestic Violence Cases in Criminal Court, published in conjunction with the California Center for Judicial Education and Research.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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