Learn who may request gun violence restraining orders in California, how to make or oppose a request, and what kinds of proof judges need before they order gun owners to surrender their firearms and ammunition.
Updated July 01, 2021
Under California's version of what's commonly called a "red flag law," courts may issue gun violence restraining orders (GVROs) to prohibit certain individuals who pose a serious risk of gun violence (including suicide-by-gun) from having any firearms or ammunition. Read on for details on who may request those orders, what kind of proof is needed, how hearings and the rest of the process work, and how respondents can oppose GVROs.
Who Can Ask for a Gun Violence Restraining Order?
In California, you may request a GVRO if you believe that someone in your immediate family or household poses a serious threat of gun violence, and that a restraining order is the only way to prevent that from happening. The person (known as the "respondent") must be someone close to you, such as:
- your spouse or domestic partner
- someone who regularly lives in your household, or has done so within the last six months
- your child or grandchild
- your parent or grandparent (including stepparents), and
- certain in-laws (including your spouse's children, parents, or siblings).
Certain other people are also allowed to request GVROs:
- the respondent's employer
- a coworker who has had regular, substantial interactions with the respondent for at least a year, and who has the employer's approval to make the request; and
- a teacher or other employee at a secondary or postsecondary school where the respondent has attended in the last six months, as long as the employee has the school's approval.
The law makes it clear that none of these people are required to request a GVRO. (Cal. Penal Code § 18150 (2021).)
What If You Aren't Eligible to Request a Gun Violence Restraining Order?
Law enforcement may also request gun violence restraining orders in California. So if you don't meet the eligibility requirements for requesting a GVRO (or even if you do), you can go to the police, make a report about your concerns, and ask them to seek an emergency, temporary GVRO (which only law enforcement can do). If the police agree to do that, the required proof and procedures will be essentially the same as for an ordinary temporary order (discussed below).
If law enforcement won't request a GVRO, you might be eligible to obtain another kind of restraining order in California—or more than one kind—depending on the specific circumstances. For example, the state has provisions for restraining orders to prevent domestic violence, harassment, workplace violence, school violence, and elder abuse (Cal. Code Civ. Proc. §§ 527.6, 527.8, 527.85; Cal. Fam. Code §§ 6250, 6320; Cal. Welf. & Inst. § 15657.03 (2021)).
How to Request a Gun Violence Restraining Order
If you're eligible to request a GVRO, you generally will start the process by filling out a petition for a temporary gun violence restraining order. You should file the form with the court clerk's office in the county where the respondent lives, or where any previous threats or injuries happened.
On the same day that you file the request (or the next court day if you've filed it too late in the day), the judge must either issue the temporary GVRO or deny your request. When making that decision, the judge will question you and any witnesses you provide, or it will require you to submit written affidavits signed under oath. Either way, you should provide specific, detailed information and documents that can support the kind of proof the judge will need to issue the order (discussed below).
If the judge issues the temporary order, you should ask your local law enforcement agency to serve it on the respondent. You'll also need to file the form for requesting a final GVRO.
Whether the court issues or denies the temporary order, it must schedule a hearing within 21 days to decide if a final order is needed. This means you'll have another chance to provide evidence and try to convince a judge to grant an order. At the hearing, you should come prepared with any documents or witnesses that can help your case. The judge may ask you questions. You may also ask the respondent questions—and vice versa.
The temporary order expires on the hearing date—so if you don't attend, you'll have to start the process all over again. (Cal. Penal Code §§ 18150, 18155, 18160, 18165 (2021).)
What Proof Does California Require for a Gun Violence Restraining Order?
Respondents have the option of choosing not to contest a GVRO request by filing a form giving up their firearm rights for a certain amount of time. Otherwise, judges won't issue temporary or final orders unless they find that both of the reasons (or "grounds") for these orders exist:
- the respondents pose a significant danger of injuring themselves or others by having guns; and
- the orders are necessary to prevent that injury because alternative measures have either failed or aren't appropriate under the circumstances.
In the case of temporary GVROs, the risk of injury must be in the near future. Also, the standard of proof is different for temporary and final orders. Because temporary orders last no more than three weeks, the evidence only needs to show a "substantial likelihood" that the danger exists and the order is necessary. However, a judge must find that there is "clear and convincing evidence" to issue a final GVRO.
When making those decisions, the judge may consider various kinds of evidence and must consider other evidence, including:
- recent threats or acts of violence (toward self or others)
- a pattern of violent threats or actions over the past year
- recent violations of domestic violence or other types of protective order, and
- a criminal conviction that would prohibit the respondent from having firearms.
(Cal. Penal Code §§ 18150, 18155, 18175 (2021).)
How Long Do Gun Violence Restraining Orders Last?
A final GVRO (issued after a hearing) may last anywhere from one to five years. However, a judge may renew the order if anyone who's allowed to request the original order asks for the renewal (within three months before the order is set to expire) and proves at the hearing that the reasons for the order still exist. The renewed order may also last from one to five years. (Cal. Penal Code §§ 18175, 18190 (2021).)
How to Defend Yourself Against a Red Flag Request
You won't find out that someone has requested a temporary gun violence restraining order against you until you receive notice of the GVRO hearing. And if the judge issued the temporary order, you'll be required to surrender any guns and ammunition in your possession when you're served with the order and notice (or within 24 hours).
If you want to challenge the order, you should make sure the judge hears your side of the story by filing a response to the GVRO petition before the hearing date. Even if you haven't filed a response, however, you should definitely go the hearing. You aren't entitled to a court-appointed lawyer, but you should strongly consider hiring a lawyer to represent you at the hearing. An attorney who's experienced at handling restraining orders can help you gather and present evidence (including witnesses), cross-examine the petitioner's witnesses, and protect your rights throughout the proceeding.
If the judge issues a GVRO after the hearing, you'll have one chance during the time it's in effect to ask the court to lift the order. There will be a hearing on your request, similar to the original hearing. Before granting your request, the judge must find that there's no longer clear and convincing evidence supporting the grounds for the order. (Cal. Penal Code §§ 18120, 18160, 18165, 18185 (2021).)
Penalties for Violating Gun Violence Restraining Orders
It's a misdemeanor in California to have any guns or ammunition when you know that a gun violence restraining order (or a similar order from another state) prohibits you from doing so. You'll also be barred from having—or trying to get—a gun or ammunition for five years after a final GVRO expires. (Cal. Penal Code § 18205 (2021).)
What If Someone Lies to Request a Gun Violence Restraining Order?
California law also makes it a misdemeanor to request a GVRO when you know the information in the petition is false or you've made the request in order to harass the respondent. (Cal. Penal Code § 18200 (2021).)
