Yesterday California Gov. Jerry Brown
signed a bill that strips people of their Second Amendment
rights based on claims that they pose a danger to themselves or
others.
AB 1014 allows a cop or “an immediate family member”—which
includes not just spouses, children, siblings, and parents but
also in-laws and roommates, both current and former—can seek a “gun
violence restraining order” that prohibits an individual from
possessing firearms and authorizes police to seize any he currently
owns. Such an order can initially be obtained without any notice or
adversarial process.
If the applicant is a cop, he must have “reasonable cause” to
believe “the subject of the petition poses an immediate and present
danger of causing personal injury” to himself or someone else. If
the applicant is a relative or roommate, he must show there is a
“substantial likelihood” that “the subject of the petition poses a
significant danger, in the near future, of personal injury” to
himself or someone else. Either standard suffices to take away
someone’s right to arms for three weeks, after which he has an
opportunity for a hearing where the petitioner has to show by
“clear and convincing evidence” that he “poses a significant danger
of personal injury” to himself or others. If the judge decides that
test has been met, he issues a one-year restraining order than can
be renewed annually.
“Clear and convincing evidence” is a fairly demanding standard,
weaker than “beyond a reasonable doubt” but stronger than a mere
“preponderance of the evidence,” which may amount to a probability
just a hair above 50 percent. Clear and convincing evidence, by
contrast, is supposed to mean a claim is “highly and substantially”
more probable than not to be true. Still, one can imagine
circumstances in which innocent people who pose no threat to others
lose their Second Amendment rights for a year or longer, especially
since preventing self-harm is considered a valid reason for
granting a petition.
The standards for 21-day orders are even more troubling. The
“reasonable cause” that police officers have to show is barely more
than a hunch. It is even weaker than the “probable cause” standard
for a search warrant, which has no precise definition but is pretty
easy to meet. (For example, the Supreme Court has said a police
dog’s purported “alert,” which may
correspond to a probability of around 16 percent even when the
alert is genuine and the dog is properly trained, is
enough for probable cause.) The flimsy standard for taking
someone’s firearms is especially striking because a gun violence
restraining order based on reasonable cause automatically justifies
a search warrant, which ordinarily requires probable cause. If the
subject of an order fails to surrender his guns, police can get a
warrant to seize them. The “substantial likelihood” that “an
immediate family member” has to demonstrate may in practice be
equivalent to probable cause, but it seems like taking away
someone’s constitutional rights for three weeks should require
evidence stronger than you need to search his apartment for an
hour.
These standards leave lots of room for mistakes and mischief.
Now that the option is available, police, relatives, and judges may
be inclined to err on the side of what they take to be caution,
giving little weight to the loss of liberty these orders entail.
The orders may also be an appealing method of revenge or punishment
for angry ex-lovers, disgruntled former roommates, and hateful
brothers-in-law. It is a misdemeanor to make false claims in a
petition or to file one “with the intent to harass,” but that
offense generally will be hard to prove, especially since the
evidence cited by petititioners may amount to unverifiable reports
of what the subject said or did.
This law is ostensibly a response to Elliot Rodger’s murders in Isla
Vista last May, which is puzzling. Although Rodger’s mother was at
one point concerned that he might harm himself (based on a YouTube
video she had seen), as far as I know no one in his family was
aware that he owned guns. In a case with different facts, of
course, it is conceivable that one of these new restraining orders
might stop a would-be mass murderer. But it’s more likely this law
will become a tool of meddling and harassment that mostly affects
people with no homicidal intent.
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