What is California’s red flag law?
A “red flag law” is a type of gun confiscation law. It allows certain people to seek a Gun Violence Restraining Order (GVRO) to remove firearms from:
- a person who has been deemed a threat to themselves; or
- a person who has been deemed a threat to someone else.
What does a gun violence restraining order do?
- A GVRO temporarily removes firearms and ammunition from the possession of someone who (1) is a threat to themselves, or (2) is a threat to someone else.
Who can get a gun violence restraining order?
- Family members (spouse, domestic partner, parents, children, siblings, grandparents, grandchildren, nieces, nephews, uncles, aunts, and half-siblings) of the person named in the petition;
- Current or recent household members of the person named in the petition;
- co-workers, and
Note that in regard to coworkers, they can file a petition if:
- they had substantial and regular interactions with the other person for at least one year, and
- they have obtained the approval of the employer to file the petition
In regard to teachers, they can file a petition if:
- they are a teacher of a secondary(including lower, middle, or high school) or postsecondary school,
- they get the approval of a school administrator or a school administration staff member, and
- that person has a supervisorial role.
Employers and school administrators should consider having policies in place that address gun violence restraining orders and the process for seeking them.
How does someone obtain a gun violence restraining order?
- Forms for a GVRO from the California court system are available here.
- Submit the form to the court
- You can also contact your local district attorney’s office to ask if they will assist you in filling out the forms.
- If you or the person you want restrained is a resident of San Francisco, the San Francisco District Attorney’s Office will assist you in filling out these forms if you need assistance.
What happens after the form is filed?
- A judge decides whether or not to grant or deny the request at a hearing.
How does the judge decide whether to grant the GVRO?
- The judge will look at evidence presented by the person asking for the GVRO, including whether the respondent has:
- Made threats or acts of violence against self or others within the past six months;
- Exhibited any pattern of violent acts or threats within the previous 12 months;
- Violated domestic violence protective orders; or
- Been previously convicted for any crime prohibiting the purchase and possession of firearms
- The judge may also look any other evidence to see if there’s an increased risk for violence, such as:
- The person’s history of violence or physical force against others
- Unlawful and reckless use of firearms
- Recent acquisition of weapons
- Ongoing abuse of drugs or alcohol
- If there is clear and convincing evidence that the gun violence restraining order is necessary based on the evidence presented, the judge will issue the order.
If a judge grants a restraining order, he/she can prohibit a person from the following:
- having a gun in his custody or control,
- owning a gun,
- purchasing a gun,
- possessing a gun, or
- receiving a firearm or ammunition.
The judge can order the removal to last between one and five years.
Who takes the firearms away?
- If the court issues the order, law enforcement may serve the order.
- There is no fee for law enforcement to serve the order.
- When officers do serve the order, they are required to ask the person to relinquish any firearms they own or possess.
- The person is required to immediately relinquish his or her weapons to the officer.
- Alternatively, if a law enforcement officer does not serve the order, (if for example, it is served in court), the respondent is required to sell or temporarily transfer his or her weapons to a licensed firearms dealer or the local law enforcement agency within 24 hours of being served with the order.
Can the person get their firearms back?
- The person whose gun has been confiscated can ask the court to remove the order.
- The person can do this once a year.
- A judge will remove the order if he/she believes there is no longer any convincing evidence that the person is a threat.
- But after a court hearing, the court can extend the protective order if the person continues to pose a significant danger.
Gun Violence Restraining Orders – Cal Pen Code §§ 18170-18197