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


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.