Could Gun Violence Restraining Orders Prevent Another Parkland?

One month ago today, a gunman who police say was armed with an AR-15 rifle walked into Marjory Stoneman Douglas High School in Parkland, Florida and opened fire, killing 17 people. Today, in schools across the country, including many in North Carolina, students plan to recognize the Parkland victims by walking out of class for 17 minutes. Some participants also plan use the walkout as a platform to advocate for stricter gun control. Debate over the appropriate legislative response to this tragedy has raged—and ranged—over the past several weeks. Some have called for arming teachers.  Others have advocated for barring a person under 21 from purchasing an assault rifle. And last week, an op-ed in the Washington Post advocated a relatively new variety of weapons restriction:  Gun violence restraining orders. 

The editorial.  Mara Elliott, the city attorney for San Diego, wrote the article, in which she characterized gun violence restraining orders (GVROs) as an idea supported by advocates for gun control and gun rights and a concept that was working to prevent gun violence in her city.

The law. California adopted its GVRO statutes after a 2014 mass killing in Isla Vista, California, in which six people were killed. The statutory scheme resembles the one in Chapter 50B of the North Carolina General Statutes for obtaining a domestic violence restraining order. A law enforcement officer or an immediate family member may petition the court for an ex parte gun violence restraining order that prohibits a person from controlling, owning, purchasing, possessing, or receiving any firearms or ammunition. Cal. Penal Code § 18125, 18150.

The standard. A court may issue an ex parte GVRO if it finds a substantial likelihood that (1) the subject of the petition poses a danger of personal injury to himself, herself or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and (2) an ex parte gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances.

The timeframe. An ex parte order remains in effect for no longer than 21 days. It may be followed by a hearing for which the subject of the petition receives advance notice and is afforded an opportunity to be heard. The court may issue a one-year GVRO following such a hearing if it finds that the standard set forth above is met by clear and convincing evidence. Cal. Penal Code § 18175.

Surrender of firearms. The subject of a temporary or one-year GVRO must surrender his or her firearms or ammunition within 24 hours of being served with the order. The person must surrender these items to a law enforcement officer upon request or, if no request is made, may sell or transfer his or her firearms and ammunition to a licensed firearms dealer. Cal. Penal Code § 18120.

Do GVROs make people safer? Mara Elliot says that though “[t]here is no way to know how many lives we may have saved,” GVROs have made her city safer. She cites several examples in her article of threatening behavior that led to the issuance of GVROs, which, in turn, resulted in the seizure of firearms from people deemed too dangerous have them. She also says that her office has not had trouble enforcing the firearm-surrender requirements.

Criminal penalties for false reports. One of the concerns with any system that allows the issuance of ex parte orders upon citizen petition is that the process will be misused by petitioners with bad motives. Acknowledging that risk, California law makes it a misdemeanor to file a petition for a GVRO knowing the information in the petition to be false or to file such a petition with the intent to harass a person. Cal. Penal Code § 18200.

Criminal penalties for noncompliance. California law also makes it a misdemeanor for a person subject to a GVRO to possess a firearm or ammunition. A person convicted of such a violation is prohibited from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a five-year period that begins upon the expiration of the existing GVRO. Cal. Penal Code § 18205.

Traction in NC? Florida’s senators recently proposed federal GVRO legislation, and some other states have adopted similar laws. A bill proposing GVROs in North Carolina (H 723 § 14) was introduced last year, but died in committee. It remains to be seen whether policymakers’ interest in such a measure will be renewed following the Parkland tragedy.