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Attorneys

California’s “Red Flag” Laws Can Help Prevent Tragedies Like Stoneman Douglas

February 28 2018

By Jessica Rankin Corpuz

As we struggle to come to grips with the recent tragedy at Marjory Stoneman Douglas High School, many have bemoaned the lack of response by law enforcement prior to the attack. News outlets state that the shooter was reported to the FBI twice in the months prior to the attack, and that his mother, teachers, and fellow students had discussed or reported unnerving incidents in the months leading up to the shooting. The failures of law enforcement remain to be investigated, but many have argued that passing a “red flag” law in Florida may have prevented the attack entirely by allowing citizens to take matters into their own hands.

A “red flag” law gives family members a right to seek a temporary restraining order if they believe a person poses a danger to themselves or others. California’s “red flag” law was passed in response to the 2014 deaths of six people at the hands of Elliot Rodger near U.C. Santa Barbara. Rodger’s parents had contacted police with concerns about his behavior, which unfortunately went ignored.

California therefore established a Gun Violence Restraining Order, which is specifically tailored to allow family members to ask a judge to take away a person’s firearms. If granted, it forbids the individual from obtaining any firearms, and compels the individual to immediately surrender all firearms and ammunition in their custody, and file a receipt proving their surrender to the Court. Any law enforcement officer can enforce the order, and any violation of the order means that the person may not possess firearms or ammunition for five years, even after the restraining order’s expiration.

Crucially, there is no requirement that the perpetrator commit any act in order for the victim to obtain a restraining order. The court can remove their access to weapons based on the threat of violence alone.
Further, the restraining order is entirely free to the person filing it, and the Sheriff’s department will handle any service required, also for free.

The forms are easy to use, and California courts provide free legal assistance for those seeking a restraining order. The forms, instructions, and information about legal assistance can be found here:
http://www.courts.ca.gov/33961.htm

Initially, the courts will issue a temporary restraining order. These are given top priority in courthouses and are usually granted within a day of filing the forms. The temporary restraining order includes the firearms and ammunitions prohibition, meaning that there is an immediate impact.

The court will also set a date for a hearing for a full restraining order. These usually take place 2-4 weeks from the date the temporary restraining order is issued. The court will hear from both sides and make a determination as to whether the individual should be prevented from having access to firearms and ammunition. Once the full restraining order is issued, it will last up to one year, and can be extended upon its expiration. It will prohibit the individual from possessing any firearms or ammunition while it is in effect.

It is important to remember that the possession of firearms and ammunition is the only effect of the Gun Violence Restraining Order. It does not require the individual to stay away from any person or area, and it does not prevent them from contacting anyone. Its only purpose is to remove their access to weapons.

This may have prevented the Stoneman Douglas shooting, the U.C. Santa Barbara shooting, and countless others. If these had happened today in California, the perpetrator’s parents would have been able to take away their child’s firearms and ammunition, and lives could have been saved.

California also has other restraining orders which can similarly prohibit individuals from possessing weapons in certain circumstances.
Domestic Violence Restraining Orders can be found here:
http://www.courts.ca.gov/selfhelp-domesticviolence.html

These protect family members, romantic partners (past or present), and those living together from abuse – both physical and emotional abuse, whether actual or threatened. These are more flexible, but can include stay-away orders, orders not to contact the victim, and can also prevent the abuser from possessing any firearms.
Workplace Violence Restraining Orders can be found here:
http://www.courts.ca.gov/1045.htm

These protect coworkers and employers from threats and harassment on the job. These can protect the coworkers or bosses individually, their families, or the whole business. It is also flexible, and can also include stay-away orders, orders not to contact all or some of the employees of a business, and can also prevent the possession of firearms.

General Civil Harassment Restraining Orders can be found here:
http://www.courts.ca.gov/1044.htm

These are catch-all restraining orders that cover circumstances where the person threatened is not a family member, romantic partner, coworker or employer. Like the above, these can include stay-away orders, orders not to contact all or some of the employees of a business, and can also prevent the possession of firearms.

This would have applied to the students and teachers at Stoneman Douglas, who would have had the right to file for a Civil Harassment Restraining Order, had they been in California.

The procedure for all of the different restraining orders is similar – first a temporary restraining order, then a hearing, then a permanent restraining order. All of the steps are laid out in the websites listed above.
Of course, in the best-case scenario, law enforcement would respond to every threat and act to block those with mental health issues, domestic abusers, and harassers of any kind from access to firearms. Unfortunately, law enforcement is not always willing or able to do so.

California law now provides a way for family members, loved ones, coworkers, and anyone else who feels threatened to receive protection from the courts. It gives victims rapid protection, even where the perpetrator has not yet committed any crime.

If you feel threatened, call 911 first. If law enforcement can’t make you or your loved ones completely safe, please know that you have other legal options at your disposal.