The Volokh Conspiracy
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Judge Orders Divorcing Husband to Surrender Gun, Even Without Domestic Violence Restraining Order
Fortunately, the California Court of Appeal just reversed that decision.
In U.S. v. Rahimi, the Supreme Court held that the law may forbid gun possession by people subject to harassment restraining orders, when the orders were entered based on a showing of actual violence or domestic violence. Sometimes, such orders contain gun restrictions even without such a violence-related showing (see, e.g., the restraining order in the Sarrita Adams case, PDF p. 43); that, I think, violates the Second Amendment.
But in K.G. v. E.G., decided Monday by California Court of Appeal Judge Kathleen O'Leary, joined by Justices Thomas Goethals and Joanne Motoike, the trial judge had denied a domestic violence restraining order, and still issued a gun surrender order.
Appellant and respondent were married in 2009 and had three children. Respondent filed for dissolution of the marriage in 2021. During the ensuing period, respondent made various allegations against appellant, including that he had molested the couple's young daughter. The parties nevertheless stipulated to joint legal and physical custody, and the trial court (Judge David J. Hesseltine) adopted their agreement as a permanent custody order.
In 2022, the parties filed competing DVRO applications. As relevant here, appellant alleged that respondent had: coached their daughter to falsely accuse him of abuse; made other false allegations against him and threatened to make additional false allegations to extract concessions; hacked into his computer, accessed his e-mail account, and forwarded his e-mails to her account; and placed GPS tracking devices in his car. He claimed that the totality of respondent's misconduct was disturbing his peace….
During the DVRO hearing, the trial court learned that a California law enforcement registry showed a handgun registered to appellant under a former name. The court immediately made the firearm order, instructing appellant to "fill out a DV-800 [form] to relinquish [the gun]." Appellant told the court that he did not have a gun, but the court replied that he could still file the form. The court later stated that it had concerns about either party owning a firearm and asserted that it could "make findings pursuant to Family Code Section 3011 for the best interest of the minor children." Appellant subsequently testified that he relinquished the gun in 2009 and offered documentary evidence as corroboration.
Following the hearing, the trial court denied both parties' DVRO applications. The court found neither party credible. As to appellant, it emphasized, inter alia, that he had failed to address "an implied understanding that [respondent] was allowed to track him," that his testimony had left out other adverse circumstances, and that he had not included his claims of physical abuse in his DVRO application. The court noted it was undisputed that respondent had accessed appellant's e-mail account and forwarded his e-mails to her private account. But overall, it said it could not find that either party was a primary aggressor….
We conclude the trial court erred by issuing the firearm order because it had no authority to do so. [I infer from the appellate court's willingness to consider the question that the firearm order also barred the husband from acquiring new firearms, since the old firearm was apparently long out of the picture by then. -EV] Under Family Code section 6218, "[u]pon issuance of a protective order," the court must order the restrained person to relinquish any firearm in his or her possession. Appellant, however, was never subject to any protective order—the court denied temporary orders and later denied both parties' DVRO applications. We are aware of no provision in division 10 of the Family Code governing DVRO proceedings that empowers the court to order a person to relinquish a firearm without issuing a protective order.
The trial court cited Family Code section 3011, but that section merely "lists specific factors … that the trial court must consider in determining the 'best interest' of the child in a proceeding to determine custody and visitation." It is not a source of authority for the court to impose substantive orders on the parents. In short, the court lacked authority to issue the firearm order, and we therefore reverse this order….
{Because we conclude the trial court lacked authority under California law to issue the firearm order, we need not consider appellant's contention that the order violated his rights under the Second Amendment.}
