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Are Gun Violence Restraining Orders Consistent With Due Process?

Such orders can easily be used to take away innocent people's Second Amendment rights.

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The idea of gun violence restraining orders (GVROs), presented as a way to disarm would-be mass shooters who are not currently barred from owning firearms, is gaining ground in the wake of last week's massacre at a high school in Parkland, Florida. The Brady Campaign to Prevent Gun Violence argues that if Florida had a GVRO law, it could have thwarted Nikolas Cruz, the Parkland shooter. National Review's David French urges conservatives to consider supporting GVROs, which he argues can protect public safety while respecting the Second Amendment. These claims seem highly dubious to me.

The red flags that in retrospect identified Cruz as a future mass murderer were not so clear at the time, because they were not all visible to any single person or agency with the ability to act on them. Things might have been different if the FBI had followed up on a telephone tip it received on January 5 from "a person close to Nicolas Cruz." According to a statement the FBI released on Friday, "the caller provided information about Cruz's gun ownership, desire to kill people, erratic behavior, and disturbing social media posts, as well as the potential of him conducting a school shooting."

The bureau says that information, which was received on the bureau's general tip line, "should have been forwarded to the FBI Miami Field Office, where appropriate investigative steps would have been taken." If that had happened, agents probably would have talked to the same people reporters have been interviewing since the shooting: Cruz's current and former neighbors, the couple who took him in after his mother died last November, his coworkers at a local Dollar Store, and staff and students at Marjory Stoneman Douglas High School, the target of his attack.

Such an investigation would have drawn together the various strands of Cruz's story: his disturbing social media comments, his volatility, his cruelty to animals, his fights and disciplinary record at school, his weapons, and his troubles at home, where his mother repeatedly called the police for help in managing him. Such an investigation would have revealed Cruz as a potentially dangerous person to be watched, if not someone actively plotting mass murder.

But that did not happen. So the question is, given what people knew before the attack, who would have sought a GVRO authorizing confiscation of Cruz's guns if that option had been available?

Probably not Cruz's mother, who let him keep his guns despite her problems with him. Probably not the police officers who came to the house at his mother's behest, who did not seem to view Cruz as a serious threat. Probably not the social workers who visited the home in 2016, who concluded there was little risk that Cruz would harm himself or someone else. Probably not the people he was living with at the time of the shooting, who made him keep his guns in a safe but said they did not realize how troubled he was.

While it's doubtful that a GVRO statute would have stopped Cruz, it is pretty clear that such laws give short shrift to due process and the Second Amendment, notwithstanding French's assurances to the contrary. French lists five features that a "well-crafted" GVRO law should have to properly balance public safety with civil liberties. The two leading models for such legislation—the laws California legislators enacted in 2014 and Washington voters approved in 2016—lack most of these safeguards.

French says a GVRO law "should limit those who have standing to seek the order to a narrowly defined class of people." In California, GVROs can be sought by police officers or "immediate family member[s]." The latter category includes spouses, domestic partners, current or former roommates, parents, step-parents, parents-in-law, grandparents, step-grandparents, siblings, step-siblings, siblings-in-law, children, stepchildren, children-in-law, and grandchildren. Washington's law added to that list "dating partners," baby mamas (or papas), former legal guardians, and all relatives, including aunts, uncles, and cousins. It also extended the deadline to seek an order for a former roommate (who could be an ex-spouse or ex-lover) from six months after moving out to a year.

French says a GVRO law "should require petitioners to come forward with clear, convincing, admissible evidence that the respondent is a significant danger to himself or others." In California, the standard for a temporary, three-week GVRO sought by a cop is "reasonable cause" to believe "the subject of the petition poses an immediate and present danger of causing personal injury" to himself or someone else. Other petitioners are supposed to show 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. Washington's standard for a temporary order (limited to two weeks there) is similar: "reasonable cause to believe that the respondent poses a significant danger of causing personal injury to self or others in the near future."

California does require the "clear and convincing" evidence that French thinks is appropriate when the petitioner seeks a one-year GVRO (which can be renewed annually). Washington, by contrast, requires the petitioner to show "by a preponderance of the evidence that the respondent poses a significant danger of causing personal injury to self or others."

The latter standard is equivalent to more likely than not, meaning that any probability greater than 50 percent will suffice. Depending on what counts as "a significant danger," the actual probability that the subject of a GVRO will harm himself or anyone else could be quite low. If a 10 percent risk is significant, someone can lose his Second Amendment rights even if there is a 95 percent probability that he will never use a gun to harm himself or anyone else.

French says a GVRO law "should grant the respondent an opportunity to contest the claims against him." California and Washington do allow that, but only for a one-year order, not for a temporary order, which is issued without any adversarial process.

"In the event of an emergency, ex parte order," French adds, "a full hearing should be scheduled quickly—preferably within 72 hours." California and Washington require a hearing within three weeks and two weeks, respectively.

Finally, French says, "The order should lapse after a defined period of time unless petitioners can come forward with clear and convincing evidence that it should remain in place." In California and Washington, that defined period of time is a year, and Washington does not require clear and convincing evidence. The target of a GVRO can seek early termination of the order in both states. In Washington, he has the burden of showing by a preponderance of the evidence that he no longer poses a significant danger. As the ACLU of Washington noted in 2016, "It is unclear how persons would prove their lack of danger."

Other states need not copy California or Washington precisely, and perhaps future GVRO laws will include the safeguards that French recommends. But the whole point of these laws is to make disarming people easier than forcing them into psychiatric treatment, which already makes them ineligible to own a gun under federal law. The stronger the civil liberties protections, the less likely such laws are to stop any particular mass shooting.

In Cruz's case, for example, school officials may have been best positioned to appreciate the threat he posed, but school officials are not included on the list of people who can seek GVROs in California or Washington. Keeping that class "narrowly defined," as French recommends, is at odds with the goal of empowering anyone who might notice red flags to do something about it. Similarly, demanding clear and convincing evidence, rather than a preponderance of the evidence, might mean letting a future Nikolas Cruz keep his guns. Legislators seeking to prevent mass shootings have an incentive to make the criteria for GVROs as weak as possible.

Even if David French gets to write the law, there is much potential for abuse by malicious or mistaken petitioners, abetted by judges who will be inclined to err on the side of what they believe to be caution by revoking the Second Amendment rights of possibly dangerous people. And whatever the standard of proof, it relates not to the actual commission of a crime that has already occurred but to the possibility that the respondent might commit a crime (or commit suicide) in the future. Under these laws, people can lose the constitutional right to armed self-defense if a judge thinks they probably pose a "significant danger" to themselves or others. Conjoining those probabilities means the vast majority of people covered by these orders would never have used a gun to harm anyone.

French thinks "the GVRO is consistent with and recognizes both the inherent right of self-defense and the inherent right of due process." Given the lopsided tradeoffs required even by French's idealized version of GVROs, it is hard to see how that can be true.