Gun Control

Gun Violence Restraining Orders Could Cause More Police Shootings

Unless crafted carefully, the proposal could set up more standoffs between armed citizens and police.

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In the wake of the mass shooting in Parkland, Florida, some conservative commentators—and a handful of libertarians—have proposed a measure they say would help disarm potential killers while respecting the Second Amendment rights of the general public: Gun Violence Restraining Orders, or GVROs.

The general idea is to enable the relatives or friends of a potentially violent person to petition a judge for a civil order temporarily suspending that person's ability to purchase or possess firearms. Like other restraining orders, they could be contested by the restrainee, with the petitioning party bearing the burden of proof.

Since they're individualized and judicial, GVROs avoid the "collective punishment" of gun prohibition and, if crafted well, will respect due process. You can see why they might appeal to civil libertarians. But there's a potential problem here too, arising from the way restraining orders work in practice.

I used to work at D.C.'s local courthouse, where I saw judges issue dozens of domestic violence restraining orders. Typically, a person seeking one comes to court on a walk-in basis and appears before a judge within an hour or so. The defendant is usually absent. If the petitioner presents sufficient evidence of threats, stalking, or prior assault (a sworn statement combined with text messages, photos, or bruises is usually enough) the court will issue a the temporary order without ever having heard from the defendant.

This procedure makes good sense. Restraining orders are meant to address imminent threats, so it would be silly to force the petitioner to notify their stalker and then wait around several days for a court date. But long-term restraints on a person's free movement require more than a mere allegation. So these "stay away" orders issued in absentia are limited and short-term. Usually they just tell the restrainee to not interact with the petitioner and to show up in court a few days later, where the judge can hear evidence from both sides and impose the appropriate longer-term restraint, if any.

Once issued, these temporary orders have to be served on the person they restrain before they take legal effect. That ensures that the restrainees have actual notice that they've been restrained and have been told what it is they're now banned from doing.

This is where the trouble starts for GVROs. Presumably, the process for obtaining GVROs would be substantially similar—it would have to be, given that they also need to address imminent, not speculative, threats.

But think of the situation that arises once a temporary GVRO has been issued in absentia and needs to be served. Someone now has to knock on the door of (or otherwise track down) a person who is known to be armed and alleged to be dangerous, serve that person with court documents, and then take away whatever guns the person already has.

Domestic violence restraining orders are sometimes served by police officers, but can also be delivered by any adult who is not the petitioner. It's a tricky enough business as it is, given that restrainees do not tend to be the calmest and politest members of society. Throw guns into the mix, and things get even dicier. There would be a strong impulse to mandate that the orders be served by police officers. The officers, in turn, would be understandably tempted to bring heavy armor and firepower along with them when serving the order.

Cops, understandably, don't like knocking on doors when all they know is that there's an angry person with a gun on the other side. Ask them to serve GVROs, and you'd likely see an explosion in the number of paramilitary-style no-knock SWAT raids and the associated police shootings that some portion of them inevitably cause.

Civil libertarians have worked for years trying to curtail these aggressive police tactics and the chaos they produce. If implemented carelessly, GVRO laws could increase the number of these raids. To avoid that, a GVRO law would have to include specific procedures for how the orders should be served, and for how the restrainee should be deprived of guns he already owns without needless violence.

The order could simply be served like other court papers, providing a window for restrainees to surrender firearms within a certain time, only involving police in the event of non-compliance. Police who serve GVROs could be required to wear plain clothes and effect service on a knock-and-talk basis to keep the restrainees from feeling provoked. There are probably other workable solutions, too.

A great example of how not to implement GVROs can be seen, perhaps not surprisingly, in Congress, where a proposed bill does a terrible job of protecting due process. Running afoul of all the concerns about GVROs articulated by Reason's Jacob Sullum, the proposal sets the standard of proof for issuing orders at the very low "reasonable suspicion" level, the same "slightly more than a hunch" standard used for "stop and frisk" searches—even less certainty than is needed to obtain a search warrant. The bill at least provides for a hearing within 30 days, but in practice an asserted "reasonable suspicion" is almost impossible to disprove.

Just as significantly, the bill sets out no guidance on how to serve GVROs or carry out gun seizures without prompting violent confrontations.

If advocates are going to propose GVROs as a serious way to address mass shootings while respecting liberty, they need to think carefully about the details of what they're suggesting and the likely consequences. Congress has so far failed to do that, tearing ahead instead with a poorly crafted bill that might cause more shootings than it stops.

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  1. …and a handful of libertarians?have proposed a measure they say would help disarm potential killers while respecting the Second Amendment rights of the general public: Gun Violence Restraining Orders, or GVROs.

    GVROs are Unconstitutional. Try again.

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    I guess the 2nd Amendment needs to be added since some people are not reading it.

    1. The 1st comma in the quoted matter is superfluous & misleading, & is believed to have been spuriously added post-public’n.

      1. Should read, “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

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  2. Ask them to serve GVROs, and you’d likely see an explosion in the number of paramilitary-style no-knock SWAT raids and the associated police shootings that some portion of them inevitably cause.

    Small price to pay for doing something.

    1. A particularly small price, since most of the folks who want this law don’t have a gun, so it won’t apply to them. Right?

      Until their ex tells the cops they bragged about buying a gun in a back alley, and now they’re planning to get even.

      SWAT teams will believe folks when they say they don’t have what the GVRO has the cops looking for, right?

    2. What they MAY be doing is setting up the Second American Revolutionary War.

      The Founders intended the Second Amendment protection of the pre-existing right to keep and bear arms primarily as a bulwark against oppressive government. The catch is figuring out when a government is oppressive enough to warrant citizens taking up arms and killing the politicians. There is a sizable group in America that believes one good test for whether the government has crossed the line is whether it’s in the business of rounding up firearms belonging to innocent people.

      If the GVROs even were perceived as being based on evidence faked by the government…

  3. “In the wake of the mass shooting in Parkland, Florida, some conservative commentators?and a handful of libertarians?have proposed a measure they say would help disarm potential killers while respecting the Second Amendment rights of the general public: Gun Violence Restraining Orders, or GVROs.”

    Explain to me how depriving people of the ability to exercise their constitutional liberties–without a jury to convict them–is compatible with the due process clauses in the Fifth and Fourteenth Amendments.

    “No person shall . . . be deprived of life, liberty, or property, without due process of law”

    —-Fifth Amendment

    I have a hard time describing anyone as libertarian who thinks that the government should deprive people of their liberty without due process of law–and that’s what we’re talking about here.

    Libertarianism is as libertarianism does.

    It isn’t something that applies to certain people regardless of what they’re arguing. If a self-described libertarian argues for authoritarianism, that doesn’t make authoritarianism a libertarian argument–no matter what the people at Reason would have you believe.

    1. If a self-described libertarian argues for authoritarianism, that doesn’t make authoritarianism a libertarian argument–no matter what the people at Reason would have you believe.

      But ad hominems are logical arguments!

    2. Next thing you know, you will be babbling about some imaginary right to confront you accuser – – – – – –
      Accusation equals guilt. Proof is unnecessary if someone FEELS unsafe.

    3. The 5th is not applicable because they are not being held for a criminal offense.

      It is due process. Due process does not necessarily require a jury of your peers. The fourth is much more applicable which states, “…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.”

      All that is needed is “probable cause, supported by oath or affirmation, and particularly describing the place to be searched” to seize someones property. There is due process here(the process is described in the amendment) and has to come down from the judicial system and there is a process of appeals.

      1. “The 5th is not applicable because they are not being held for a criminal offense.”

        Are you suggesting that it’s alright for the government to deprive people of their constitutional liberties so long as they haven’t committed any crime?

        Because that seems fucking absurd.

        1. No, I am saying you can seize property as long as you follow the process due for this type of action, as described in the 4th amendment.

          I am saying the due process is different based on whether you are searching someones home vs arresting someone vs throwing them in prison.

          1. Due process is the same when the government is depriving someone of their life, liberty, or property, and in this case, we’re talking about depriving someone of their constitutional liberties without due process.

            From a libertarian standpoint, this is indefensible.

          2. Armaments are not mere property. They are a means to protect oneself and family. They are also specifically mentioned in the 2nd Amendment to be free from government infringement on the right to keep and bear arms.

            In other words, a GVRO does not trump the protections of the 2nd Amendment.

            1. I can get behind that idea, to some degree, but lets not pretend that a jury trial is required for every “infringement of our rights”. It seems reasonable that there should be a process where we can stop people that we think will probably commit a crime, instead of having to wait till they commit it.

              1. Not always a jury trial but a hearing. A hearing satisfies the Due process requirement.

                If its a criminal charge then you are entitled to a jury trial.

          3. “I am saying the due process is different based on whether you are searching someones home vs arresting someone vs throwing them in prison.”

            Or even deciding to drone an American citizen, as was the Obama administration’s argument.

            (You see the problem in where such tortured logic as this leads, don’t you?)

      2. “Due process does not necessarily require a jury of your peers. “

        You can voluntarily waive that right to a jury–but we’re not talking about that here.

        You can voluntarily waive your right to an attorney, your right not to testify against yourself, your right to cross examine witnesses–hell, you can voluntarily waive your right to a trial and just plead guilty if you want.

        But that’s not what we’re talking about here.

        1. Due process does not necessarily require to give you a jury trial, regardless of if you decide to waive that right or not.

          1. Are you talking about when the insane are unfit to stand trial?

            1. No, I am saying that due process is not a singular thing. The due process for a criminal conviction is not the same as due process for a search or seizure. You should not impose the process required for a criminal conviction to a simple arrest, and vice versa.

              1. Search and seizure under the protection of the 4th Amendment is based on probable cause that a crime was committed.

                The government cannot just search you or your property without a crime in the mix. Same thing with seizure. A crime needs to have been committed and there is probable cause that you did it.

      3. The 5th is the applicable amendment. The legal action being taken is not a search for evidence of a crime which is what the 4th addresses, but rather depriving a citizen of his/her property.

  4. Since they’re individualized and judicial, GVROs avoid the “collective punishment” of gun prohibition and, if crafted well, will respect due process.

    Unless all parties are present, with counsel if desired, and sworn testimony is taken there is no due process. Especially if the person is just a totally unrelated ex-roommate from 11 months ago who is taking out a grudge because the victim didn’t do the dishes right. (Washington state; any relative out to cousins, ex roommates up to a year ago, ex lovers, live in or not, baby mommas/pappas, any cop, dating partners(!?) any teacher. Burden of proof is ‘substantial likelihood’. Madness.)

    1. “Unless all parties are present, with counsel if desired, and sworn testimony is taken there is no due process.”

      Where did you get this definition of due process from? If the order is given down through the judicial system, how is it not due process? How is this any different the process for getting a warrant, even though we have the constitutional right against searches and seizures?

  5. Due process my ass. They take all guns in the house, not just the ones actually owned by the allegedly crazy guy. Where is the due process for everyone else at that address?

    Wouldn’t it be a lot more logical to lock up any one actually found to be that crazy? Leave everyone else out of it? Seriously, if there is grounds to revoke constitutional rights, revoke the one about freedom, and only affect the single individual whose actions/statements were judged dangerous.

    1. You make not like it, and I am not saying that is not a valuable frustration. But it is the due process as laid out by the 4th: “…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.”

      If you provide probable cause and describe the things that must be seized to prevent that probable cause, I think you are following the process required by the amendment. This is more of a Constitutional argument than a libertarian one.

      1. Relating to a crime.

        The 4th Amendment does not allow government to search and seize your property just because a probable cause affidavit is filled out and a judges signs some paper.

        The probable cause relates to a crime.

        If people scare others without actually hurting or threatening others, there is no crime. So there is no probable cause that a crime was committed. So no warrant may be issued.

        1. “Relating to a crime.”
          I see this nowhere in the text. But it is relating to a crime anyway, not whether one has happen but whether one will “probably” happen in the near future.

          “The 4th Amendment does not allow government to search and seize your property just because a probable cause affidavit is filled out and a judges signs some paper.”
          From a plain reading it sound like that is exactly what it says.

          1. Your just going to double down on this nonsense, huh?

            Whether you like it or not, the police cannot just seize your guns [period].

            Even when people are convicted of crimes, police are not allowed to just seize all their property.

  6. Yep. So many fundamental problems here, including that you knew they had guns when you started dating them, so what the hell did you expect? Yes that sounds like blaming the victim but all too often it will be security industry shills doing make-work. (Which is why often these people are in the security industry or the government.) Also yes taking someone’s weapons is likely only to radicalize them and furthermore it only works if you feel more powerful than them and thus won’t help the true victims, who really are too scared to bump the hornet nest. So it will become a tool for bullies. Also most of these people will have a record that suggests they shouldn’t have a weapon in the first place. It would be better to catch this on a background check, which I agree with. Also, David French has a pretty terrible track record on civil liberties. Yes he supported free speech, but only as a cover to agitate for homophobic anti-sodomy laws in Africa. Also he argued for Trump to abandon Syria to Assad and Putin’s monsters. The result was genocide and hell on earth in Aleppo and Ghouta.

    1. “What is Aleppo?”

  7. Obviously the solution is to tweet out a “Red Alert” that Joe Blow is potentially violent.

  8. Ask them to serve GVROs, and you’d likely see an explosion in the number of paramilitary-style no-knock SWAT raids…

    If implemented carelessly, GVRO laws could increase the number of these raids.

    Bad intern. You can’t base your case on what might happen.

    1. Oh dear. One of the most common military mistakes is basing your decision on intent rather than on capability.

  9. The problem is no accountability. The accuser gets their GVRO, property is confiscated, almost certainly treated carelessly and roughly on purpose, and even if there’s a full hearing the very next day and the property is returned in perfect condition, there are no consequences for having falsely sworn under oath that there was a problem. And if the property is returned beat up and devalued, there is still no accountability. You’re sure not going to get any satisfaction from the police, but you ought to get restitution from the accuser who perjured himself.

  10. It’s also worth pointing out that no “solutions” of any kind are necessary, because mass shootings are an infinitesimal threat.

    Gun control? No, because mass shootings are not a threat.

    More guards? No, because mass shootings are not a threat.

    Train kids to respond to shooters? No, because mass shootings are not a threat.

    GVROs? No, because mass shootings are not a threat.

    But what about my idea–? No, because mass shootings are not a threat.

    1. No, because mass shootings are not a threat.

      Alright, now you’ve gone silly in the other direction. A small possibility of something horrendous happening doesn’t mean the possibility should just be ignored. It just means any safety measures should be matched to the possibility.

      1. The repetition was a bit obnoxious but I read ‘threat’ in the animistic sense. Earthquakes and hurricanes kill more people and do more damage and people who have to face them certainly feel threatened. However, for most of the rest of us, the threat of an earthquake or the threat of a hurricane sounds odd, especially when conditions are disfavorable and absent any other tangible/immediate/obvious context (which may not yet be the case for school shootings). I’m sure flooding as the result of a hurricane is still a threat in Texas but calling it such seems out of place. A hurricane flood in Texas doesn’t sneak up on you in February and take your life.

  11. Makes sense. But why are special GVROs needed? Why aren’t regular VROs sufficient?

    1. I’m a bit befuddled at how a woman shows up in front of a judge with bruises, abusive or threatening text messages or photos, and knows and/or can readily identify the perpetrator and the situation doesn’t end with an arrest warrant.

      1. I would guess that the woman does not want to press charges. He’s a good man that made a mistake.

        Domestics are tricky. A man can be beating on the woman, and if you jump in and beat him, the woman will jump in and defend him. Which is one of the reasons cops will separate them when responding to a DV call.

      2. Arrest warrant maybe but there still is zero authority to take someone’s guns.

    2. Good question.

  12. (a sworn statement combined with text messages, photos, or bruises is usually enough)

    This procedure makes good sense.

    Holy shit! Really?! I’ve never had a VRO issued against me and the people I know who have were bona fide scumbags who deserved it/ended up in jail. I wasn’t aware that the criteria are so low, *especially* in the *absence* of a defendant. I’ve never hit my wife and she’d probably find a pretty easy way to murder me if I did but that low bar is insane. I wouldn’t even have to hit her, she has access to my phone and we’re all more than capable of bruising ourselves and others.

    That’s some fucked up shit. I’m beginning to get more on board with Longtobefree, if there’s enough evidence to remove one constitutional right, it should be enough to remove any. Fuck the restraining orders and get on with the trial. Pointed or unusual bruises and threatening text messages are evidence if not crimes themselves. Maybe a plea deal to avoid the deprivation of choice rights, but even that seems ripe for abuse.

  13. “” if there’s enough evidence to remove one constitutional right, it should be enough to remove any.””

    I doubt SCOUTS would apply that as such since the 2A in an unfavored amendment.

    Restrictions on abortions get struck down easier that restrictions on gun rights.

  14. GVROs plus no-knock raids == “License to kill.”

    1. Some of us might say that’s a feature, not a bug.

  15. More madness from the gun-control advocates. Please see:

    “Gun Control and Mass Killers”
    https://relevantmatters.wordpress.com/
    2016/06/30/rush-draft-why-gun-
    control-fails-against-mass-killers/

    Delete the spaces.

  16. How long before a stalker accuses the stalk’e of being violent, gets a GVRO, thus disarming their target allowing for an easier assault/murder/kidnapping?

  17. On the other side of the coin, the mental health folks ought to be having kittens over this.

    So you’ve got someone who’s a bit off, but keeping it together, nonviolently. Then he gets hit with a SWAT raid and has his home trashed and all his guns confiscated.

    Note there’s no mental health component to these GVROs. No one does any sort of professional assessment, before or after the “intervention.” SWAT just unhooks the guy and leaves.

    Therapeutically, that really sucks. Oh, but he has no guns, so he can’t hurt anyone, right?

    Over the last 50 years, the three worst U.S. mass murders, 911, the Murrah Federal Building, and the Happy Land Nightclub, were “gun-free” carnage.

  18. The Beginning of Open War: Trump’s Tweet and CNN Townhall – YouTube

    https://www.youtube.com/watch?v=smwn9n6EiMg

  19. Cruz’s disturbing social media posts (hidden from the public by the police state) as they then control the narrative!
    Are Gun Violence Restraining Orders Consistent With Due Process?
    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 Brady Campaign(gun grabbers) 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.
    Legislators seeking to prevent mass shootings have an incentive to make the criteria for GVROs as weak as possible.

    1. 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.
      https://reason.com/blog/2018/02…..rders-cons

  20. Generally a reasonable explanation of the TRO process, but I demur to one statement about service:

    “Domestic violence restraining orders are sometimes served by police officers, but can also be delivered by any adult who is not the petitioner. It’s a tricky enough business as it is, given that restrainees do not tend to be the calmest and politest members of society”

    Having dealt with at least a couple of hundred of these, most people subject to a restraining order may be angry about it but are generally more confused than anything since, more likely than not, little or nothing actually happened. If something awful happened (e.g., complainant was beaten) the offender is most likely already in jail and the restraining order process is proceeding in criminal court. Actually the hardest part of serving notice of a pending hearing on a protective order is simply finding the person sought to be restrained.

    Remember, if the notice of hearing cannot be served by a deputy in a timely fashion the court will ordinarily simply set a new hearing date and allow further time for service. The petitioner is not out of court.

    This is also why I think it unlikely that there would be some flood of situations in which deputies serving notices of hearing on restraining orders would be met with gun violence. After 15 years of dealing with these cases I haven’t seen it yet and do not expect to.

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