How to get a gun violence restraining order in California
When a police officer called Santa Clara County deputy district attorney Marisa McKeown in July 2016 to inquire about getting a gun violence restraining order, her initial response was:
What on Earth are you talking about? I've never heard of such a thing.
The state law, which had taken effect six months before, allows family members and law enforcement to seek the temporary removal of firearms from someone they believe poses a danger to themselves or others.
The Campbell Police Department was looking for a way to stop a man they thought might be targeting local officers. His wife had just reported that he sent her threatening text messages referencing a recent sniper attack against police in Dallas, then loaded his guns into his car and set off.
McKeown first had to look up the gun violence restraining order on Google to find out what it was and how to obtain one. When she tried to file the request with the court, she found there was no process in place yet to handle it. But McKeown was able to get the order, and police served the man at his workplace, where they confiscated seven weapons, including a scoped rifle.
"It is our best tool in the state of California for responding to a threat of gun violence," McKeown said.
Since then, McKeown has been working to educate law enforcement agencies — which she and other supporters say remain largely unaware of the gun violence restraining order and its potential to help stop a crime before it has been committed.
Fewer than 200 orders were issued statewide throughout 2016 and 2017, according to data from the California Department of Justice, though some jurisdictions have used the law in more significant numbers.
There’s growing interest in the concept, however, following the February school massacre in Parkland, Fla., where police and the FBI were warned about the shooter and failed to act. A galvanized public and politicians are now calling for regulations to address not only mass shootings, but also the daily violence of homicides and even suicides, which made up nearly two-thirds of the 38,000 gun deaths in the United States in 2016.
Vice President Mike Pence mentioned California’s gun violence restraining order in a roundtable discussion on gun control with President Donald Trump and members of Congress last month. More than 20 states are now considering versions of their own, and a follow-up measure introduced this session in Sacramento would extend the law to co-workers and teachers.
Amanda Wilcox, California legislation and policy chair for the Brady Campaign to Prevent Gun Violence, said the bipartisan interest makes sense: “When people are very dangerous, they shouldn’t have guns. But instead of a broad prohibition, it’s targeted.”
“You can always give a gun back,” she added. “You can’t give a life back.”
California was the third state to adopt the gun violence restraining order, after Connecticut and Indiana, but the first to include family members.
The law passed in 2014, following the mass murder near the UC Santa Barbara campus in Isla Vista. Troubled by videos he posted online, the killer’s parents had called the local authorities to check on him, but they never searched his apartment, which was stocked with weapons.
Amid support from law enforcement and criticism from gun rights advocates worried about potential abuses, the measure was approved in the Democratic-controlled Legislature and then delayed for a year to allow the state time to figure out the procedure.
Two years into its existence, the gun violence restraining order is still not a familiar concept in California. There were 104 orders last year, up about 21 percent over 2016.
The Bee reached out to more than a dozen local police departments, county sheriff’s offices and county courts to get more information on the cases in their jurisdictions. Most said they did not track gun violence restraining orders specifically and would have to run a special inquiry to find the records; some declined to discuss the cases altogether, citing mental health and other exemptions.
“California has some of the most powerful gun laws on the books anywhere in the country, but because they’re misunderstood or not understood at all by law enforcement, they’re not put to use,” McKeown said.
Wilcox, who helped lead the lobbying effort in California, is not worried about the slow start for gun violence restraining orders, which she said should be seen as a “last resort.”
Her organization targeted its early educational campaign at families, before realizing they would likely be too overwhelmed in the moment to research the law. The group recently revamped an informational website and is now targeting its publicity at the figures whom people may turn to for help — from law enforcement to physicians and religious leaders.
“Who do families go to when they are in crisis? That’s who we need to reach out to,” Wilcox said.
There are three types of gun violence restraining orders: Law enforcement can request an emergency order from a judge orally or in writing at any time of day or night, while “immediate family members,” including anyone who lives at the same residence as the individual, can file with the court for a temporary order. Both last up to 21 days, during which time the individual served with the order must give up their firearms and ammunition, and is prohibited from buying any new ones. Then a hearing is held to determine whether to extend the order to a full year; the individual can attend and present their own evidence about why it should not be extended.
The circumstances in which the law has been used so far run the gamut.
In June 2016, the Santa Barbara County Sheriff’s Office obtained an order against a woman who struck her husband in the leg, poured soda on his head and began carrying her Glock handgun around the house after she discovered text messages and a partially nude photograph that another woman had sent to her husband’s phone.
Last May, the Roseville Police Department responded to a relative’s call about a man armed with a handgun and threatening suicide inside his home. When the officers could not convince him to come out of the house after several hours, they returned later with a gun violence restraining order, and he surrendered his firearms to the department.
Based on a tip from the FBI, the Fremont City Attorney’s Office in 2016 sought an order against a man they believed might be trying to purchase an assault weapon for an attack, thereby putting him on a list of individuals prevented from buying firearms.
Law enforcement in San Diego has recently begun pursuing gun violence restraining orders as part of its regular policing.
“What motivated me was that our federal government seemed completely stymied to do anything to keep our city safe from irresponsible gun owners,” said City Attorney Mara Elliott, who spearheaded the initiative.
Elliott said that when she was elected in December 2016, she assumed the city was already using the law and was surprised to discovered they had no policy. She reached out to other big California cities for guidance, but found there were no examples to replicate.
So began a months-long process of training the police department on when to seek the orders and setting up a line of communication with the court. Elliot’s office, which acts as an intermediary between officers in the field and the judge who can issue an order, finalized its procedure last December. By early March, it had already obtained 15 gun violence restraining orders.
They include a man who grabbed a revolver and fled his home after his family discovered he was molesting his grandchild; a senior citizen in the early stages of dementia who threatened to shoot his wife and a neighbor because he believed they were having an affair; and a man who, after his wife overheard him crying in the bathroom and cocking his pistol, threatened to kill himself, her and their young child if she left him.
“Most of us see gun control as a federal issue,” Elliott said. But this has been a “learning moment,” she said, about what can be done at the local level.
Alcohol or drugs are often involved in these cases. The first order Elliott’s office sought was against a man who had drunk three times the legal limit and was shooting recklessly at what he thought were rats and raccoons in his backyard, frightening his neighbors.
When the police arrived to take his firearms, the man acknowledged that he needed help and shouldn’t have access to guns, Elliott said. She was expecting anger, not relief. The man’s prohibition was recently extended to a year.
Elliott said she ultimately sees the gun violence restraining order as a hopeful tool, because gun owners have a path to getting their weapons back once it is safe again.
“There is something that has led these people to be irresponsible,” she said. “This is a really good opportunity. Sometimes you need a nudge.”