Gun Control

New California Law Takes Away Second Amendment Rights Based on Flimsy Standards

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Office of the Governor

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. Under AB 1014, 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 also may be used as a method of revenge or punishment by 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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31 responses to “New California Law Takes Away Second Amendment Rights Based on Flimsy Standards

  1. Give me your guns and come back here so that I may drone thee!

    /Governor Moonbat

  2. Does the person filing the order become personally accountable for the protection of the individual stripped of his rights? Why stop at the second amendment, why not extend this all civil rights?

    1. Don’t worry derpules, I will speak for you!

      1. You know, I have been hearing voices lately.

        1. That’s a common side effect of exposure to Sug’s writing.

          1. Other side effects include rectal bleeding, slimy throat, pinkeye, and full body warts.

            1. I’m in trouble..

    2. Why stop at the second amendment, why not extend this all civil rights?

      I’m sure they will get there in due time.

  3. 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.

    Emphasis added. Then dismiss such “evidence”.

  4. “Hello, 911. What is your emergency?”

    “I’m gravely concerned about how my roommate is about to vote. I need a restraining order against the exercise of his rights.”

    1. “Republican or Democrat? It’s only reckless if he’s going to vote Republican.”

      1. “Did you say ‘Libertarian’? The SWAT team is on its way!”

  5. Fuck California.

  6. How can anyone stand to live in that shithole of a state anymore? And don’t fucking tell me about the fucking weather. (I hear tell it snowed at Mammoth this week…maybe they’ll actually have skiing this year)

    1. Look on the bright side, Kristen. They’ll probably run out of money to do *anything*.

    2. I’m hearing it snowed on Bachelor as well. In fact, I’m pretty much hoping there’s skiing anywhere this year.

    3. Mrs. FYTW and I are looking forward to scraping California off our shoes in the near future.

      1. Mrs Imprudent and I did so this past June. Despite the friends and family still there, I can’t help but smile that we got the fuck outta there.

      2. You aren’t the only ones. I regularly get queries on:
        Q. “How can I bring my guns into Texas?”
        A. Put them in your car and drive over the border.
        Q. “How can I get my guns registered in Texas?”
        A. You can’t. We don’t fool with that registration nonsense.

  7. But it’s more likely this law will become a tool of meddling and harassment that mostly affects people with no homicidal intent.

    “All people that own guns or use guns have a homicidal intent.”

    /Sniffy Progressive little red Marxian.

  8. To me the number one problem with this law (out of many) is the idea of calling the cops and saying, “My relative is crazy-dangerous and has guns.” How many cases have we seen where calling cops on an unarmed relative proved fatal. There’s no appeal from the grave.

    The irony, of course, is this law taking away guns was passed because of a “shooting” that killed six and wounded 17. Anyone remember that three of the victims were stabbed to death and many of the injured were run over with a car?

    1. Anyone remember that three of the victims were stabbed to death and many of the injured were run over with a car?

      Never forgot them.

      1. Those deaths were of no consequence. /derp

  9. Shut up, all of you. California knows best. Heed their life-coaching wisdom.

  10. How long until a crazy stalker ex calls the cops to disarm his old lady for him, so he can knife her to death with impunity?

    1. What? This would never be used for evil. Only good.

    2. Why should he knife her? If his report is scary enough there’s a good chance the SWAT team will do the killing for free.

  11. Every state in the nation or specifically every jurisdiction in every state in the nation already has the power to revoke Second Amendment rights with the flimsiest of process and certainly not due process.

    All it takes is the issuance of a domestic violence protection order a domestic violence restraining order or a domestic violence no contact order and a person loses their Second Amendment rights.

    The amount of process prior to the issuance of the same is minimal and nowhere near due process by any rational assessment.

    A respondent has no right to a court-appointed attorney and a judge Miller you has to rule by a preponderance of evidence and much like with civil forfeiture etc no crime needs to be proved and heck is a wall no crime even needs to be alleged

    The war on domestic violence as a general rule especially when considering innocent defendants or respondents is worse than the war in drugs as far as incursions into Civil Liberties

  12. Due process has been replaced by Fuck You, That’s Why.

    Over/under on the number of police shot when they pull this stunt on the wrong person? If I were a cop I’d stay far far away from this law.

  13. The law does not go far enough; these creeps should be confined to internment camps for six months.

  14. As a Californian, it probably fair to say that the draconian gun laws they’ve passed recently are making gun owners homicidal. The founding fathers would have been shooting by now.

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