Capitol Alert

California gun restraining orders seek to balance public safety, ownership rights

Photographs of Christopher Martinez are displayed as part of a memorial in front of a IV Deli Mart, where part of a mass shooting took place by Elliot Rodger in Isla Vista in 2014.
Photographs of Christopher Martinez are displayed as part of a memorial in front of a IV Deli Mart, where part of a mass shooting took place by Elliot Rodger in Isla Vista in 2014. Associated Press file

For Richard Martinez it was his son, shot down in a rampage that made national headlines.

For Thomas Allman it was his brother, joining the unremarked thousands who end their lives with guns each year.

Losing troubled loved ones to firearms propelled both men into advocating for a new law that takes effect Jan. 1. Passed in response to the 2014 Isla Vista massacre that killed Martinez’s 20-year-old son, it will allow law enforcement or family members to seek restraining orders suspending gun ownership for people who pose a threat to themselves or others.

In the aftermath of the Isla Vista shooting, victims and authorities were haunted by the revelation that the family of killer Elliot Rodger had expressed concerns to mental health workers. Sheriff’s deputies dispatched to Rodger’s apartment departed without touching the three handguns he had legally obtained.

“In many instances – Isla Vista, Tucson, the Navy Yard – family members saw red flags which indicated their family member may be unstable,” Martinez said. The restraining orders “give families and law enforcement a tool they didn’t previously have in these situations where someone is mentally unstable and a substantial danger to others.”

The sheriff of rural Mendocino County, Allman considers himself a Second Amendment stalwart. He adamantly supports the right to carry concealed weapons. He still supports the new law, drawing on reasons both professional and personal.

“I don’t think a week can go by that we can’t attribute some type of gun violence to a mental health situation,” Allman said, adding of his brother’s death: “I don’t know if this specific bill would have prevented this from happening, but it certainly would have been an option for my family and I to consider.”

But while backers like Allman and Martinez call the restraining orders a safeguard against future tragedy, critics worry about stripping guns from people who have committed no crime. They say the law, which takes effect in January, could be abused to deprive people of a constitutional right.

“We just can’t be in people’s heads and know exactly what they’re going to do,” said Assemblywoman Melissa Melendez, R-Lake Elsinore, who voted against Assembly Bill 1014. “There are some who say we should just sacrifice the rights people have in an abundance of caution. I don’t think that’s the answer.”

California law already bars gun ownership for a variety of crimes and for people whom peace officers or health officials assess as hazards and admit to mental health facilities.

But the new orders can apply to people who, while they have not been convicted of a crime or committed under so-called 5150 holds, have still alarmed family members or authorities. Allman said the option would “patch a hole that’s been there as long as I’ve been in law enforcement.”

“There’s always a person who doesn’t meet the 5150 criteria and we don’t have the right to take their firearms,” Allman said. “Prior to this bill families were very restricted in what they could do.”

Family members will be on the front lines for the new restraining orders. Law enforcement officials anticipate hearing from concerned relatives in a process they liken to seeking a domestic violence restraining order, in which the threat of violence – not a conviction – is enough.

“Family members come to us more frequently for help, and therefore it will be another tool for us when a family member is concerned about someone’s behavior and they don’t want them arrested, don’t want them hurt but are concerned about their well-being,” said Capitola Police Chief Rudy Escalante, who oversees firearms policy for the California Police Chiefs Association. “A person may not be in imminent danger or threat but maybe a family can look at it over time and say the behavior has gotten more difficult, so we want to pursue this.”

In the Isla Vista case, Escalante added, “because (Rodger) legally possessed the firearms and had not committed a crime, there was nothing they could do.”

Law enforcement officers will also be able to seek the restraining orders. Santa Clara Superior Court Judge Sharon Chatman, who has studied the new law, said she expects the “vast majority of these petitions will be by law enforcement.”

In either case, the person at risk of losing their firearms will have a chance to contest the notion they shouldn’t possess guns. Judges will oversee the hearing and decide whether there’s merit to issue an order.

The law allows for an urgent restraining order that can be applied without the gun owner being present and lasts up to 21 days, after which the subject can contest it before it’s extended for a year. Another version permits the gun owner to protest during an initial hearing and, if a judge bars them from owning guns after that first hearing, once more during a yearlong prohibition.

Even so, gun rights advocates fear people will have their guns taken away without good cause, perhaps targeted by a family member with a grudge.

“Someone who’s requesting a restraining order of this magnitude – we’re talking about taking away someone’s civil rights – needs to understand the gravity of that,” said California Association of Federal Firearms Licensees president Brandon Combs, “and the judge needs to take it as serious as it is and truly require that a showing be made that the person is a likely danger to others or themselves.”

Pushing back on that skepticism, Chatman argued that judges who will preside over the hearings will be able to consistently apply the law and turn away unsupported allegations, much as they do in deciding whether to apply domestic violence restraining orders.

“We basically make these determinations every day,” Chatman said. “We are constantly evaluating facts and evaluating the credibility of the individual who gives us that information.”

Second Amendment stalwarts also wonder if the orders will help in situations where violence is truly imminent. Rodger talked his way out of a law enforcement stop, they point out, and other would-be criminals would likely try to evade detection or fight back.

“More than likely the people who are going to get pinched are those who are not very likely” to commit an act of violence, Combs said. “If someone is going to do something awful they’re likely taking time to ensure they can get away with it before law enforcement gets involved.”

Martinez rejected that logic. To this day he isn’t certain having a gun restraining order available would have thwarted Rodger and saved his son. But it might have, and for him that’s enough.

“Do they work in very instance? No,” he said. “That’s not a good argument to say we shouldn’t have them in the same way you wouldn’t say we shouldn’t have seat belts because people still die in traffic accidents.”

Jeremy B. White: 916-326-5543, @CapitolAlert