The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Hearsay Evidence Admissible in Gun Violence Restraining Order Proceedings

So holds a California appellate panel, by a 2-1 vote.


In S.D. Police Dep't v. Geoffrey S., decided Friday (but posted today) by the California Court of Appeal (Justice Martin Buchanan, joined by Presiding Justice Cynthia Aaron), the court upheld a one-year Gun Violence Restraining Order that barred Geoffrey S. from possessing guns.

[1.] The court concluded that the statute allowed such orders to be issued based on hearsay evidence:

[A] GVRO proceeding is "procedurally truncated, expedited, and intended to provide quick relief …." These types of proceedings are all intended to prevent a threat of harm and designed to take less than a month to litigate from beginning to end. They all contemplate an initial ex parte or emergency order to be issued immediately for a limited duration of 21 days, followed by a noticed hearing to be held within 21 days of the initial order for the court to determine whether to issue a long-term restraining order. And a GVRO proceeding is also "heard by the court, not a jury, and is decided by the clear and convincing evidence standard of proof" by judges who "are particularly aware of the potential unreliability of hearsay evidence" and "are likely to keep this in mind when weighing all of the evidence presented." …

We recognize that a GVRO proceeding implicates the Second Amendment right to bear arms. But the Second Amendment has nothing to say about the admissibility of hearsay evidence. The Legislature has accounted for the importance of the right at stake by mandating a clear and convincing standard of proof. The clear and convincing evidence standard reduces the risk of error when particularly important individual interests are at stake, such as parental rights, involuntary commitment, and deportation….

"Considering the fact that the purpose of the [GVRO] statute is to prevent [gun] violence …, the expedited nature of the proceeding contemplated by the statute, and the Legislature's directive that the trial court shall receive [any evidence of an increased risk for violence] without qualification, we conclude that the [evidence] that a trial court may consider in making a ruling on a petition pursuant to [the GVRO statute] is not limited to nonhearsay [evidence]." Accordingly, we hold that hearsay evidence is admissible in a GVRO hearing under section 18175. At the same time, we caution that courts must bear in mind "the potential unreliability of hearsay evidence, … when weighing all of the evidence presented." …

Geoffrey also argues that by considering hearsay evidence, the trial court violated his Sixth Amendment right to confront the witnesses against him…. [But] the Sixth Amendment's confrontation clause only applies to criminal proceedings. The GVRO statute "establishes a civil restraining order process" and is not comparable to a criminal prosecution.

In a civil proceeding, the right to confront and cross-examine witnesses derives from the due process clauses of the state and federal constitutions…. When the petitioner calls live witnesses at a GVRO hearing, the respondent has a due process right to confront and cross-examine them. Likewise, if the petitioner relies on hearsay evidence, the respondent has a due process right to call the hearsay declarants and cross-examine them on the stand.

Geoffrey is therefore correct that he had a right to cross-examine the hearsay declarants as witnesses at the GVRO hearing. But he elected not to assert or exercise this right. At the hearing (when Geoffrey was represented by counsel), he did not call either the police officers who authored the police reports or the reporting parties quoted in the police reports. Instead, Geoffrey elected to defend himself with his own hearsay exhibits. Accordingly, we would find no due process violation even if Geoffrey had preserved the issue….

[2.] The court held there was enough evidence to support the order:

[V]iewing the entire record in the light most favorable to the trial court's ruling, we conclude there is sufficient evidence to support its finding of a high probability that Geoffrey posed a significant danger of committing gun violence. In multiple Facebook posts, Geoffrey outlined his false beliefs about Bill Gates and the COVID-19 vaccine, attempted to gather followers to defend themselves against a government takeover, discussed his attempts to stock up on ammunition, and encouraged others to do the same. Geoffrey admitted to the police that he had been posting on Facebook about Bill Gates killing millions of people and told the police that "Bill Gates is a murderer." Geoffrey also admitted that he possessed shotguns and had unsuccessfully attempted to purchase ammunition for them at Walmart on the morning of his psychiatric detention.

After his visit to Walmart, Geoffrey called an acquaintance in a "rage, ranting about Walmart refusing to sell him firearm ammunition due to him coming up in their system as 'denied.'" Geoffrey told this person it was part of the "'government[']s plan'" and claimed that "'[p]eople are going to try to get me and I need to defend myself.'" Geoffrey said he had asked his father to fly to California from Ohio to purchase ammunition for him, but his father declined. Geoffrey's father submitted a declaration confirming that Geoffrey had called him about purchasing ammunition to defend himself. Geoffrey also told another acquaintance, "'I guess I'm just going to have to take things into my own hands.'"

In the days leading up to Geoffrey's psychiatric detention, several individuals were so alarmed about his mental health and Facebook posts that they made reports to the authorities. These individuals included a clinical psychologist, Geoffrey's pastor, and a friend. One of these individuals said "Geoffrey has reported signs of anxiety and paranoia for some time but has refused to seek treatment." According to this person, "Geoffrey's anxiety, delusional thoughts and paranoia ha[ve] rapidly escalated, putting him in a panic state." Geoffrey had expressed to this person "a strong need to defend himself with his firearms against a government takeover."

In his conversation with the police on April 17, 2020, Geoffrey admitted he believed Bill Gates "has the spirit of the anti-Christ in him" and compared him to the "anti-Christ character" in the "end days" of the Book of Revelation. According to Geoffrey, "the things that are being proposed to us are Biblical in proportion."

The trial court could reasonably infer from the evidence that Geoffrey was not forthright with the police about the reason he was trying to purchase ammunition. Even though he had posted on Facebook and told others that he wanted ammunition for his guns to defend himself against a government takeover, he told the police it was because supply chains were breaking down and he might have to hunt for food. Geoffrey repeatedly evaded the question and tried to play word games when asked whether he had made statements about needing ammunition to defend himself—before finally telling the police it was none of their business.

Geoffrey's apparent effort to conceal from the police his true reason for purchasing ammunition supports a reasonable inference that he felt he had something to hide, and that he was not referring to a legally protected form of self-defense when he made statements about defending himself against a "government takeover." Notably, there was evidence that Geoffrey believed various private parties were also part of the government plot or were out to get him, including Bill Gates, the people at Walmart, the staff at Alvarado, the police, and his own father, deacon, pastor, and friend.

The police and PERT clinician believed that "Geoffrey was a potential danger to others" and placed him on a psychiatric hold under Welfare and Institutions Code section 5150. When Geoffrey arrived at the psychiatric hospital, he "remained with significant risk of danger to others as a result of well-developed and well-organized delusional thought processes about the government and various governmental agencies … and the philanthropist, Bill Gates …." Three days after his initial detention, Geoffrey was certified as "a danger to others." After conducting a psychiatric evaluation, Dr. Etchie concluded: "Inpatient psychiatric admission is imperative at this time due to the imminent risk of harm to others and the patient's ability and wherewithal to purchase arms and ammunitions and to prevent harm to the patient and to others." In Dr. Etchie's professional opinion, Geoffrey "remain[ed] with significant risk of harm to others, especially, 'people from the government and people connected with the Bill Gates vaccine and the FBI.'"

We acknowledge that the Department's evidence was hearsay, and we take heed of our own admonition that hearsay evidence is potentially unreliable. But there were several different people who independently called authorities with the same concerns about Geoffrey's mental state and attempts to purchase ammunition—none of whom had any evident reason to lie. These individuals included Geoffrey's own pastor and a friend. Their concerns were corroborated by Geoffrey's Facebook posts and his statements to the police, which were documented on the 22-minute body-camera video Geoffrey himself submitted to the court. Geoffrey also submitted his father's declaration and Dr. Etchie's psychiatric evaluation report, which further corroborated the hearsay evidence submitted by the Department. Moreover, Geoffrey had an opportunity to call witnesses to challenge the Department's hearsay evidence at the GVRO hearing. He could have testified himself or he could have called the police officers or the reporting parties to confront and cross-examine them about the information in the police reports. He could also have submitted copies of his own Facebook posts to dispute how they were described in the police reports. The trial court could fairly infer from Geoffrey's failure to do so that the hearsay evidence in the police reports was accurate and reliable.

Considered in its totality, we conclude that the evidence is sufficient to support the trial court's finding by clear and convincing evidence that Geoffrey posed a "significant danger" of gun violence. Because the Department's hearsay evidence came from multiple sources that were consistent with one another, including Geoffrey's pastor, his friend, his own Facebook posts, and Geoffrey himself, and it was corroborated by other evidence Geoffrey submitted at the hearing, and not otherwise refuted, we conclude that it was sufficiently reliable to support the GVRO.

[3.] The court rejected Geoffrey's First Amendment argument:

Geoffrey contends that the trial court violated his First Amendment free speech rights by retaliating against him for expressing "strange beliefs" and speaking publicly about buying ammunition. According to Geoffrey, the trial court erred "by granting the GVRO based on the content of [his] lawful speech." …

The First Amendment limits the government's ability to regulate the content of speech, but it "does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." … Nothing in the record supports Geoffrey's claim that the trial court issued the GVRO as retaliation against him for his speech or beliefs. Rather, the court made "evidentiary use of [his] speech" to determine whether Geoffrey posed a significant danger of gun violence, as required by the GVRO statute. This did not violate the First Amendment.

[4.] And the court rejected Geoffrey's narrow Second Amendment argument:

[Geoffrey] does not assert that the GVRO statute itself violates the Second Amendment, but he claims that the trial court erred by considering his lawful exercise of Second Amendment rights (i.e., possessing firearms and attempting to purchase ammunition) as a basis for issuing the GVRO….

Even if Geoffrey's conduct was protected by the Second Amendment, the trial court was entitled to make evidentiary use of his possession of firearms and his attempts to purchase ammunition—along with other relevant evidence—in deciding whether he posed a significant danger of gun violence under the GVRO statute. Like the First Amendment, the Second Amendment "does not prohibit the evidentiary use" of protected conduct as part of the proof to establish the required elements in a criminal or civil proceeding. Otherwise, the Second Amendment would prohibit the prosecution in a murder case from presenting evidence that the defendant lawfully possessed a firearm matching the murder weapon. Accordingly, we reject Geoffrey's argument that the trial court violated the Second Amendment by considering his lawful possession of firearms and his attempt to purchase ammunition in deciding whether he posed a significant danger of gun violence.

[5.] Justice William Dato dissented, as to the hearsay question:

This case presents a classic question of statutory interpretation. When it enacted the gun violence restraining order (GVRO) statutes in 2014, did the Legislature intend that all forms of hearsay evidence should be admissible without limitation in a noticed hearing seeking a GVRO? The Legislature's intent with respect to the meaning of a statute is not always crystal clear, and in this instance it might be better characterized as opaque. It is therefore hardly surprising that reasonable judges might disagree.

There is, however, a more fundamental question that will have much to say about how we ultimately decide what the Legislature intended and what the statutes mean. That is because the Legislature itself has provided a framework within which we are to analyze questions about the admissibility of hearsay. Evidence Code section 1200, subdivision (b) succinctly states the generally applicable rule, "Except as provided by law, hearsay evidence is inadmissible." The issue we must decide is whether, in the case of GVROs, the Legislature has otherwise "provided by law" for an exception. And to determine if the Legislature intended an exception, we must first understand the general rule.

The rule against hearsay evidence exists for one overriding and crucial purpose: To make sure results in the courtroom are based on the truth. To expose innocent fibs, outright falsehoods, and all types of fabrications in between, witnesses are ordinarily required to personally appear in court, affirm to tell the truth, and be subject to cross-examination. Courts have long recognized the importance of cross-examination and its crucial role in ferreting out the truth.

But it is impossible to cross-examine a witness who isn't there. And in this case, the deputy city attorney who appeared at the hearing merely offered the court San Diego Police Department (Department) reports that memorialized several police contacts with Geoffrey S. at his home over the course of a week in April 2020, near the beginning of the COVID-19 pandemic. In addition to the observations of officers, these reports included statements made by other, sometimes unidentified, persons. They also summarized Facebook posts allegedly made by Geoffrey but did not attach copies. At the same time, the Department's presentation ignored—or at least significantly downplayed—the numerous factual errors in the psychiatric hospital's intake report, as well as the fact that the hearing officer who ultimately dismissed the Welfare and Institutions Code section 5150 hold concluded that Geoffrey had "no known history of diagnosis or treatment" for mental illness and "does not have a mental disorder."

{The report stated that Geoffrey "has a history of severe mental illness" and was "eventually apprehended by police officers," neither of which was true. As evidence of his delusional mental state, the physician wrote, "The patient continues to insist that he is an attorney and a real estate practitioner," which were both true.} { Noting that "'millions of Americans'" hold similar strange beliefs, the hearing officer rhetorically asked hospital staff, "'Do you believe that everyone who has opinions similar to those held by [Geoffrey] should be incarcerated in mental institutions?'"}

Critically, not a single witness testified at the hearing, not even the officers who authored the reports. The deputy city attorney merely argued that the reports proved by clear and convincing evidence that a one-year GVRO should issue….

The inability to employ cross-examination to expose "the many possible deficiencies, suppressions, sources of error and untrustworthiness" of hearsay evidence is the crux of the rule prohibiting it. Indeed, although Geoffrey (who is self-represented) has not framed his appeal in due process terms, "in 'almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.'"In short, both the Legislature and the courts of this state have repeatedly recognized that the rule prohibiting the admission of hearsay evidence is of fundamental importance in assuring a fair hearing. To be sure, Evidence Code section 1200 itself recognizes that exceptions to the hearsay rule are sometimes appropriate and that the Legislature can "provide" for them. But given the importance of the rule, we should not lightly imply exceptions or assume the Legislature meant to create them, especially where they are based on ambiguous and diaphanous suggestions of legislative purpose.

{The majority dismisses any due process concerns by pointing out that a respondent can always subpoena hearsay declarants in order to cross-examine them. Not only is this reasoning broad enough to swallow the entire hearsay rule, but it also would effectively shift the burden to respondents to prove that their possession of firearms does not create an unreasonable risk of injury to others.}

[More details omitted, but are available in the opinions. -EV]

Congratulations to Nicole R. Crosby, who represented the Police Department.