ANTIGUN FORCES LEAP OUT OF THE STARTING GATE FOR THE NEW YEAR WITH A RENEWED ASSAULT ON THE SECOND AMENDMENT
Gun Seizure Law
A law that just took effect in California raises the ante in the antigun movement’s continued assault on the right of the people to keep and bear arms. A British newspaper, the guardian, said, in a December 31, 2015 article titled, “Landmark California gun seizure law takes effect 1 January but amid concerns,” that the “gun statute going into effect on 1 January gives the police or family members the option to petition the courts to seize the guns and ammunition of someone they think poses a threat, the first law of its kind in the country.”
A California, antigun proponent and assemblywoman, Nancy Skinner, sponsored the antigun legislation. But, how does this new restrictive California antigun bill, that just became law, actually operate? Not trusting the guardian – a liberal newspaper with a profound antigun bias, based in the antigun United Kingdom – to adequately provide the American public with the details, the Arbalest Quarrel decided to take a look at what this law really says and the manner in which it actually operates.
The bill, CA A.B. 1014, that took effect on January 1, 2016, both amends existing California State Statutes and creates a substantial number of new California Penal Code Sections. Let’s take a close look at just a few of the pertinent changes that CA A.B. 1014 makes to California law.
Cal Pen Code § 1524 sets forth the general grounds under which a search warrant, primarily pertaining to investigations of felonies in California, can be lawfully issued. A new paragraph in Cal Pen Code § 1524, establishes an unusual condition under which a court can issue a warrant. The new paragraph, which has nothing to do with investigations of felonies, says that, “A search warrant may be issued upon any of the following grounds. . . (14)Beginning January 1, 2016, the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to Division 3.2 (commencing with Section 18100) of Title 2 of Part 6, if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.”
To understand the import of the changes that CA A.B. 1014 brings to California’s Statutes, we must zero in on the phrase, “gun violence restraining order.” This is something entirely new to California gun laws and to the laws governing the operation of injunctions in California. And, it is something that, at present, exists in no other State.
Prior to enactment of CA A.B. 1014, a California peace officer, when responding to a domestic disturbance, was required to take temporary custody of a firearm at the scene of the domestic disturbance but only if the firearm is in plain sight. The officer was not authorized to hunt around for a firearm. The emphasis, then, in California law, prior to enactment of CA A.B. 1014, was on the domestic disturbance, not on one’s firearms, where one has a personal property interest in those firearms. Now, Cal Pen Code § 18250 is California’s domestic violence Statute. It authorizes a peace officer to take temporary custody of a firearm at the scene of a domestic violence. The amended version of this Statute sets forth in pertinent part, “If any of the following persons is at the scene of a domestic violence incident involving a threat to human life or a physical assault, is serving a protective order as defined in Section 6218 of the Family Code or is serving a gun violence restraining order issued pursuant to Division 3.2 (commencing with Section 18100), that person shall take temporary custody of any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search as necessary for the protection of the peace officer or other persons present. . . .”
What CA A.B. 1014 does is to create, presumptively, a nexus, that is to say, a connection, between domestic disturbance or violence and firearms. CA A.B. 1014 is, then, aimed directly at gun confiscation. It operates through the mechanism of a ‘temporary restraining order.’
Attorneys use a shorthand phrase for a ‘temporary restraining order.’ They refer to it as a “TRO,” (where each letter is pronounced, separately). What is a TRO? A TRO is an extraordinary writ. It is an extreme form of legal injunction. And it is one that courts traditionally are loathe to issue. Why is that?
Our system of laws is grounded on the idea that a person has a right to his or her day in court. Court proceedings, whether in criminal matters or civil matters, almost invariably commence with a formal written complaint. No action is taken against the named defendant in a complaint until that defendant has had an opportunity to respond. This means that two parties are involved in the legal process: a plaintiff and a defendant. And a court of competent jurisdiction hears what both parties have to say before entering judgment for one or the other party. But, a person requesting a court to issue a TRO is essentially declaring: “I can’t wait for a hearing. The risk of harm is imminent unless the court takes immediate action on my behalf.” The petitioner is asking a court to render a decision, ex parte. That means the court is asked to render a decision on the basis of one party’s allegations alone – something a court of law is, understandably, in our adversarial system of law and justice, wary of doing.
Cal Pen Code § 18150 is the specific mechanism for issuance of this singularly bizarre TRO: a gun violence restraining order.
Cal Pen Code § 18150 sets forth, inter alia:
“An immediate family member of a person or a law enforcement officer may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.” [Furthermore] A court may issue an ex parte gun violence restraining order if the petition, supported by an affidavit made in writing and signed by the petitioner under oath, or an oral statement taken pursuant to subdivision (a) of Section 18155, and any additional information provided to the court shows that there is a substantial likelihood that both of the following are true: The subject of the petition poses a significant danger, in the near future, of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering the factors listed in Section 18155 [and] 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 of the subject of the petition.”
How long does the gun violence restraining order remain in effect? Cal Pen Code § 18155(c) says, “If the court determines that the grounds to issue an ex parte gun violence restraining order exist, it shall issue an ex parte gun violence restraining order that prohibits the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition, and expires no later than 21 days from the date of the order.”
Now, California Assembly woman Nancy Skinner, might argue, if asked to explain whether the purpose of her bill is not, after all, to restrict gun rights, that her bill, CA A.B. 1014, is not aimed at suppression of gun rights but only aimed at protecting a person from harming himself or others with guns through the legal procedural device of a temporary restraining order. But, then, one might sensibly respond to Nancy Skinner’s remark by mentioning that California already has a full panoply of injunction laws that one may draw upon in a pinch, and, so, the State certainly doesn’t need another one. In fact, drilling down through the California Civil Code – under Title 7, “Other Provisional Remedies in Civil Actions,” of Part 2, “Of Civil Actions,” in the California Code of Civil Procedure, Chapter 3, “Injunction,” Cal Code Civ Proc § 527.6, “Temporary restraining order and order after hearing prohibiting harassment,” – California has in place a mechanism for granting exceptional relief, that is to say, a TRO. So, again, it would be appropriate to ask Assemblywoman Nancy Skinner, once again, whether her bill is not a backdoor attempt to further restrict gun rights, albeit under the guise of purportedly preventing violence with guns.
Indeed, why did the California State Legislature deem it necessary to establish a whole new TRO law scheme, giving it a unique descriptor, “gun violence restraining order,” if not to further erode gun ownership and gun possession in California? And, if that is the true purpose behind CA A.B. 1014, then why not add a “knife violence restraining order,” and a “baseball bat violence restraining order?” But, then, they are all equally absurd because each is aimed at addressing an inanimate, non-conscious object, and none of them are aimed at the cause of perceived violence, namely, the person. Injunctions, including TROs, are, after all, historically, and sensibly, directed toward individuals – sentient beings – not objects.
The very placement of the “gun violence restraining order,” in the Penal Code, in lieu of the Civil Code, where TROs traditionally fall – since TROs pertain to civil remedies – is demonstrative of a clever new way in which California antigun legislators seek to regulate firearm ownership and possession. The “gun violence restraining order” is a legal artifice through which one’s firearms can be confiscated, immediately, without hearing, and, indeed, without formal legal notice, simply upon the affidavit of a police officer or immediate family member – and eventually, perhaps, even upon affidavit of a neighbor – any one of whom may have an ulterior motive for taking action against this or that person, which has nothing to do with the matter of imminent harm. Understandably, then, the laws codifying the gun violence restraining order are found, not in the aforesaid, Civil Code of California, but, rather, in a new and extremely broad category of laws in Part 6 of the California Penal Code, including Division 3.2, Gun Violence Restraining Orders,” Chapters 1 through 6.
The “gun violence restraining order” directly infringes the Second Amendment right to keep and bear arms. But it also infringes the Fourth Amendment. What does the Fourth Amendment to the U.S. Constitution say? Just this: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Cal Pen Code §18250 and Cal Pen Code §1524(14) turns the Fourth Amendment on its head. Why is that? For this reason, there is no precedent in the law of California – or in any other State for that matter – for anything like a “gun violence restraining order,” where a person’s firearms – his or her private property – could be confiscated without legal notice to that person.
CA A.B. 1014 is, ultimately, less about protecting people through TROs and more about suppressing the inalienable right of Americans to own and possess firearms – treating the very ownership and possession of firearms as inevitably criminal, and, therefore, a proper subject – in the eyes of antigun zealots – of the most draconian antigun measures that can be devised, however irrational those measures may happen to be.
The antigun forces in the California Legislature will, no doubt, in time, create ever more novel antigun laws, restricting ever more kinds of guns that a Californian may own, and scrutinizing ever more closely the lives of those Americans who reside in California, who wish to exercise their Second Amendment right to keep and bear arms. Antigun States such as New York and New Jersey will likely follow suit – each State borrowing from the other, the same draconian laws.
One thing is certain. The right of the American people to keep and bear arms will grow ever more tenuous and ephemeral if the antigun forces continue to have their say and their way.Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
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While a superficial look at Texas’ new open carry law (which now allows open carry for concealed carry license holders) would suggest that gun rights are on the march in the Lone Star State, there is also a constitutional fly in the ointment. Some private businesses that did not previously ban concealed carry have begun putting up signage banning BOTH open and concealed carry in the wake of the new law’s implementation on January 1st. A case in point is the state-wide “Half Priced Books” used bookstore chain, headquartered in Dallas. While they had not previously posted signage banning concealed carry, they now sport both the required “30.07” sign banning open carry on the premises, and the older “30.06” sign banning concealed carry on their premises. This raises an interesting constitutional question for the new law. In order to get the concealed and open carry laws passed through the state legislature, it was necessary to write the laws to “protect” the private property rights of businesses to ban either OR BOTH types of carry on their premises. However, for those that wish to ban both (ie, ALL types of carry) the issue of private property rights vs. civil rights arises. The SCOTUS has held that governments, at least, cannot ban BOTH types of carry because there must be some way for citizens to exercise their 2nd Amendment protected rights to “bear” arms, and they have also held that this right exists outside the home. The issue of private property rights vs, civil rights, whenever it has come before the SCOTUS, has always favored civil rights, at least in cases of private property that is a business offering services or products to the general public. Essentially, it appears that, even if your business is on private property, if you offer services to the public, you must offer them to ALL of the public without discriminating against any specific class of person. Thus, while it is OK to refuse to serve an individual, say an obnoxious or dangerous inebriate, it is most assuredly NOT OK to refuse to serve Black citizens, or Homosexuals. Thus, it is clear that private property rights are significantly circumscribed for businesses that serve the public. Clearly, with 8 million or more concealed carry licensees in the nation, they constitute “a class of citizens.” It would appear that the posting of signage banning BOTH (essentially ALL) types of carry on the premises, are a violation of the civil rights of those of us who choose to carry guns for legal reasons like self-protection. When I argued this with a philosophy professor, he held that the analogy to serving Gays or Blacks was inapplicable because they cannot change their skin color or sexual preference, whereas I could easily opt to leave my pistol in my car when I went into a business. However, this argument ultimately reduces to arguing that no one has any civil right that they COULD choose not to exercise, whenever that civil right is in conflict with private property rights, obviously not what anyone actually believes. If a Christian baker who objects to Gay behavior, can be required to bake a specifically Gay wedding cake, regardless of his opposition to such, then surely a company that holds beliefs that would restrict guns, can be required to allow them anyway, on the same legal rationale. After all, the Gay couple wanting the wedding cake could have chosen not to exercise their right to be gay (or perhaps more saliently, to ACT gay) at that business, just as I could choose not to exercise my right to carry a gun in a posted store. Or consider the Fifth Amendment; since I could easily choose not to exercise my right not to incriminate myself, would that deprive me of the RIGHT not to, based on this rationale? No. Obviously, while we can always CHOOSE not to exercise our civil rights, we can’t legally be COMPELLED not to exercise them.
Ultimately it would seem to boil down to a legal question of whether a private business that serves the public has the right to ban, or refuse to serve, a class of customers with whom they politically disagree. So, I think (and hope) that I see a new constitutional challenge in the offing for the Texas Pistol License law.
oldshooter, thank you very much for your well-reasoned, comprehensive remarks on a matter that appears to be a conundrum for the States and for the federal government: the right of private businesses to override Constitutional protections in certain instances. The issue here, I think, has less to do with the Second Amendment right of the people to keep and bear arms — at least as the issue has traditionally been dealt with by the courts — than with the “equal protection” clause of the Fourteenth Amendment. For gun owners to appeal to the “equal protection” clause, they must argue that they are a protected class that is being discriminated against once a private establishment refuses to allow gun owners to bring their guns onto their premises. Of course, the counter argument is that gun owners may be served, like anyone else. They simply are not permitted to bring their firearms onto the premises. It is not as if firearms are attached to their persons. As you point out, the color of a person is part of his being. The same may be said of one’s sexual inclinations, or one’s religious preferences, as they, too, are essentially part of a person’s being, whether cultural or genetic. Of course, if a proprietor of a given establishment knew that a particular person was a staunch supporter of the Second Amendment and refused to serve that person simply because of his or her professed beliefs, whether or not that person brought a firearm into an establishment, that is a different question, entirely. And it is one that certainly would constitute a classic equal protection argument. But, other than an issue such as that one arising, the matter of a person actually bringing a firearm into a private establishment is somewhat similar to that which once confronted those who smoked. In the past, smokers were often denied entry into establishments if they insisted on smoking. Now that many, if not most, jurisdictions bar smoking in private and public spaces for legitimate health reasons — which trump one’s personal pleasures — except for so-called smoking bars or parlors, or tobacco shops, that issue is now moot. But, then smoking does not constitute a specifically enumerated right, unlike the right of the people to keep and bear arms — which is why I said that the right of a person to smoke in public is only tangentially related to the right of an American to keep and bear arms and the analogy is decidedly a weak one, I grant you. That said, the issue of where a person, who is out in public, can carry his firearm or not carry his firearm, while out in public — whether carrying a firearm concealed or open or both — is a challenging one now, especially given that ever more Americans are exercising their Second Amendment right. I don’t have a solid answer for you. All I am able to do at the moment is set forth where at least one pertinent legal issue may exist. Otherwise, I can only speculate. But the issue is definitely one that the Arbalest Quarrel should give some serious thought to and serious legal research is indicated. I will keep this issue in mind. But, at the moment, it must be placed in the back-burner.
Thanks for your time and comments. I understand, but still have to wonder why citizens who desire to exercise an inherent, unalienable, and constitutionally protected right, and one that is actually specifically enumerated in our Constitution (under the 2nd Amendment), should require the sort of special protections accorded to “protected classes,”(under the 14th Amendment) in order to do so. Perhaps we who wish to exercise our right to carry firearms in public ought to seek new legislation to create a new, “protected class” status for ourselves…perhaps the class should be named “the socially responsible” class?
oldshooter, the issue raised necessitates a distinction between private and public spaces. Understand, the Second Amendment, as with all of the Amendments, is directed to government. The Bill of Rights serve two purposes: they establish the rights existent in the People, and as constraints on government to limit the exercise of those rights of the People. The very notion of property, real and personal, means that the property owner has exclusive and absolute dominion over that which is his. To require a person, say a shop owner, to allow the wielder of a firearm to enter onto his premises with a firearm when that shop owner does not wish for anyone to carry a firearm onto the premises, operates as a constraint on the shop owner’s use of his property, which entails that the shop owner does not exert exclusive and absolute dominion over his property. Do you see the problem? This does not mean, of course, that one is allowed to do absolutely whatever one wants with his property if, for example, the use of the property is to harm others. Now, for the gun owner to be denied the right to carry his weapon, wherever he wants to carry his weapon, operates, paradoxically, as a constraint on his right of the gun owner to exercise absolute and exclusive dominion over his property. Now, where public property is concerned, unless there is a compelling State interest in denying the gun owner the right to carry his gun in all public spaces, he must have, under the Constitution, the ability to exercise that right with a minimum of constraints on the exercise of that right. With private property that creates a conundrum, which is why, if there is a Constitutional violation, where an individual seeks to carry his weapon onto private property against the wishes of the owner of that property, we have to look to other Constitutional provisions to protect that right, namely and especially, the equal protection clauses and due process clauses of the Fifth and Fourteenth Amendments. Application of these Constitutional provisions may require the property owner to treat gun wielders, and those who do not wield guns, equal access to his private property. Again, I do not see an easy answer to this dilemma. All I wish to do here is set out where the issue or issues exist in law and how, in law, we may adequately resolve those issues.