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Gun Violence Restraining Orders

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What is a Gun Violence Restraining Order? 

A Gun Violence Restraining Order (GVRO) allows the State of California to remove firearms from: 

  • a person who has been deemed a threat to themselves; or 
  • a person who has been deemed a threat to someone else. 

They are sometimes referred to as "red flag" laws.

What does a gun violence restraining order do? 

  • A GVRO temporarily removes firearms and ammunition from the possession of someone who (1) is a threat to themselves, or (2) is a threat to someone else. 

Who can get a gun violence restraining order? 

  • Law Enforcement Officers (including District Attorney Investigators) 
  • Family members (spouse, domestic partner, parents, children, siblings, grandparents, grandchildren, nieces, nephews, uncles, aunts, and half-siblings) of the person named in the petition;
  • Current or recent household members of the person named in the petition; 
  • employers, 
  • co-workers, and 
  • teachers. 

Note that in regard to coworkers, they can file a petition if: 

  1. they had substantial and regular interactions with the other person for at least one year, and
  2. they have obtained the approval of the employer to file the petition 

In regard to teachers, they can file a petition if: 

  1. they are a teacher of a secondary(including lower, middle, or high school) or postsecondary school,
  2. they get the approval of a school administrator or a school administration staff member, and
  3. that person has a supervisorial role. 

Employers and school administrators should consider having policies in place that address gun violence restraining orders and the process for seeking them. 

How does someone obtain a gun violence restraining order? 

  • Forms for a GVRO from the California court system are available here.
  • Submit the form to the court
  • You can also contact your local police agency (e.g. HPD or SBSO) to possibly help seek a Gun Violence Restraining Order as they may obtain the order using your information on your behalf.  
  • You can also contact us, your local district attorney’s office to seek assistance in filling out the forms.  As long as you or the person you want restrained is a resident of San Benito County, our office will assist you in filling out these forms if you need assistance. 

What happens after the form is filed? 

  • A judge decides whether or not to grant or deny the request at a hearing. 

How does the judge decide whether to grant the GVRO? 

  • The judge will look at evidence presented by the person asking for the GVRO, including whether the respondent has:  
    • Made threats or acts of violence against self or others within the past six months; 
    • Exhibited any pattern of violent acts or threats within the previous 12 months;
    • Violated domestic violence protective orders; or
    • Been previously convicted for any crime prohibiting the purchase and possession of firearms 
  • The judge may also look any other evidence to see if there’s an increased risk for violence, such as: 
    • The person’s history of violence or physical force against others
    • Unlawful and reckless use of firearms 
    • Recent acquisition of weapons 
    • Ongoing abuse of drugs or alcohol 

 

Due Process Protections

  • If there is clear and convincing evidence that the gun violence restraining order is necessary based on the evidence presented, the judge will issue the order.  
  • This balances the rights of the subject and the needs of society in a safe community.

If a judge grants a restraining order, he/she can prohibit a person from the following: 

  • having a gun in his custody or control, 
  • owning a gun, 
  • purchasing a gun, 
  • possessing a gun, or 
  • receiving a firearm or ammunition. 

The judge can order the removal to last between one and five years. 

Who takes the firearms away? 

  • If the court issues the order, law enforcement may serve the order. 
  • There is no fee for law enforcement to serve the order.
  • When officers do serve the order, they are required to ask the person to relinquish any firearms they own or possess.  
  • The person is required to immediately relinquish his or her weapons to the officer. 
  • Alternatively, if a law enforcement officer does not serve the order, (if for example, it is served in court), the respondent is required to sell or temporarily transfer his or her weapons to a licensed firearms dealer or the local law enforcement agency within 24 hours of being served with the order.

Can the person get their firearms back? 

  • The person whose gun has been confiscated can ask the court to remove the order.  
  • The person can do this once a year.  
  • A judge will remove the order if he/she believes there is no longer any convincing evidence that the person is a threat. 
  • But after a court hearing, the court can extend the protective order if the person continues to pose a significant danger.  

Oftentimes, the only People who know anything is going on are the people close to the subject.  It may be hard, but a call you make to report your concerns could save many lives.