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California Lowers The Bar

California Lowers The Bar

For nearly 20 years, California has been the petri dish for ill-conceived gun control laws. California’s current statist politicians have never met a gun control law they didn’t like. No matter how useless or counterproductive a proposed law may be in actuality,  gun-ban lobbyists and their high-dollar public relations helpers are masters at crafting emotionally manipulative justifications for their proposals.

In fact, layer upon layer of anti-gun laws and statutes already have made firearm ownership in California difficult, at best. Yet many on the gun-ban side of the battle for the Second Amendment in the Golden State seemingly won’t be satisfied until private firearm ownership is completely extinguished.

The most recent example is California’s Assembly Bill 1014, which was signed into law in late September by Gov. Jerry Brown. That law allows a law enforcement officer or so-called “immediate family member” (more on that later) to petition a court for a “gun violence restraining order.” If the court takes the petitioner’s word that there is “substantial likelihood” a gun owner will injure himself or others, it will issue an emergency restraining order prohibiting the person from possessing firearms or ammunition for up to 21 days, without even hearing what the gun owner has to say. 

Within those 21 days, the prohibited person has to be notified of the order, get rid of his guns and be given an opportunity to make his case at a second hearing. After that, the order can be extended for a year.

The law was quickly pushed through the legislature in the wake of a murder spree by a crazed young man in Isla Vista, Calif., near the University of California at Santa Barbara. In that incident, the mentally disturbed attacker first stabbed three men to death in his apartment. He then used legally acquired pistols and legal magazines that held 10 or fewer rounds to kill three more people while also running  into and injuring several others with his car.

Anti-gun legislators saw the tragedy as an opportunity for a quick strike against state gun owners and were successful in getting the law passed. Of course, so-called “mainstream” media quickly praised the new law as “common sense” and sought to vilify anyone who might speak against it.Even the government’s own experts have found it impossible to say what makes a gun an illegal “assault weapon...”

The devils of legislation, however, are typically in the details. That’s where poorly thought out drafting, or intentionally overbroad statutory language, typically cause a bill to ban far more guns—or people from possessing guns—than a bill’s carefully chosen benign title suggests (or the legislation’s promoters want to reveal). In fact,  gun-ban advocates—and the politicians who embrace controversial gun control bills—are trained to “talk concept, not content” to get them the press coverage that builds critical name recognition among uninformed voters, which makes a substantial difference come election time. 

In other words, the gun-ban lobby tries to avoid getting into the specific problems with a bill’s language because they either don’t care, or they actually want the bill to cover more than what they say publicly. They want the public to have a generalized emotional, non-critical response to a proposal simply based on what proponents tell people a law will do.

So superficially, the manner in which AB 1014 was promoted—as a way to keep guns away from very dangerous people—seems preferable to banning even more arbitrarily classified and demonized types of firearms. But it’s not that simple. California’s “assault weapon” laws vividly demonstrate the difficulty, and importance, of carefully defining the terms used when writing legislation. Even the government’s own experts have found it impossible to say what makes a gun an illegal “assault weapon,” and tens of thousands of good people have been turned into accidental criminals by that badly written law.

Under this latest law, predetermining which human beings may be “substantially likely” to be dangerous will, no doubt, lead to even more misinterpretation, political correctness and abuse.

First problem? Even though the bill was promoted as only allowing “immediate family members” to ask a court to take away a person’s firearms, the law actually defines “immediate family member” as “any spouse, domestic partner, parent, child, any other second-degree relation, or anyone who has regularly resided with the individual in the past six months.” So not only distant relatives, but also roommates and houseguests are “immediate family” now. How many of them might be anti-gun generally, or might hold a grudge or have a bias?

Second problem: What constitutes a “substantial likelihood” that a person will injure himself or others? How can that even be determined? As shocking as this may seem, there are a significant number of people—including judges—in California who actually believe that merely possessing a firearm creates a substantial likelihood of injury!

“Mass killers prepare their crimes for many months and even years in advance,” says Professor John Lott, author of the book “More Guns, Less Crime” and president of the Crime Prevention Research Center. “And  they rarely are deterred by legalities.”  

Lott points out that even psychiatric professionals are bad at forecasting future behavior.

“What seems like obvious telltale signs in retrospect are not so obvious before the attack, even to the experts,” he says. “Extremely few of those with mental illness go on to become killers.”

So how will these “family members” and police officers do a better job than trained psychiatrists at predicting future violence? Since they can’t read minds, the answer is they won’t.Judges will fear the political and public relations consequences if they let a person keep his or her guns and he or she later hurts someone. 

And how are courts likely to respond? Most California judges will probably err on the side of over-issuing orders, rather than on staunchly protecting Second Amendment rights. Now they will be able to use a lower “substantial likelihood” standard of proof to deny Californians their right to keep and bear arms. So it likely won’t take much evidence for “family members” to get the initial restraining order that lands a person on the prohibited list. 

Judges will fear the political and public relations consequences if they let a person keep his or her guns and he or she later hurts someone. So it’s likely that the requests for restraining orders will mostly be rubber-stamped by the courts. And people facing a loss of their rights will need expensive lawyers and psychiatrists to even stand a chance at fighting the gun prohibition when they finally do get a chance for a hearing.

Also, the names of gun owners who get a Gun Violence Restraining Order issued against them will be entered into the Armed and Prohibited Persons System (APPS). Using that database, the California Department of Justice has sent armed teams of police officers to confiscate firearms. Yet the APPS system has proven to be wildly inaccurate—up to 40 percent or more of the time!

Ironically, AB 1014 may actually make it more likely that sick individuals can commit heinous crimes. Under existing California mental health laws, if law enforcement or certain medical professionals believe there is probable cause that a person is a danger to himself or others, he can be taken in for psychiatric evaluation. If he is “committed,” he is prohibited from possessing firearms or ammunition for five years. During that time, he receives treatment, medication and therapy while under a doctor’s supervision. Once discharged, the individual is referred to a psychiatrist for regular follow-up care. Later, if cleared by the doctors, a person can ask a court to remove the restriction on firearm possession.

AB 1014, on the other hand, provides no such assistance. The AB 1014 order can be issued without even getting a mental health evaluation. If someone is really dangerous, the person should be committed and treated. But people merely subject to a firearm restraining order will get no treatment at all. Instead, they will stay home or, for some, remain homeless. Those who are truly dangerous will still be able to commit violent crimes, even crimes with guns acquired illegally.

Additionally, in California, the relative ease of obtaining “stay away” and family laws restraining orders has led to them being widely used as tools for retaliation during a break-up, or for leverage in a divorce or child custody case. The problem is so prevalent that the Family Law section of the California State Bar recently took note that the orders are increasingly being misused.

It is noteworthy here that abuses of the gun-related restraining order process are already playing out in other states. Although AB 1014 is broader than other state laws because it lets “immediate family” seek the firearm possession ban, several states have laws that allow police to take firearms away from people who pose a “threat.” In Connecticut, the “Risk Warrant” statute has been broadly abused as a way to seize firearms without proving a real threat to justify the seizure. In one recent case, Connecticut state troopers got a  warrant to seize a woman’s firearms, even though the guns were already in police custody and locked away in a station evidence room! The “Risk Warrant” was issued seven days after the woman was admitted, evaluated and then released without the need for further investigation or treatment.

Interestingly, AB 1014 does purport to make it a crime to file a frivolous request for a firearm restraining order. That’s a provision not found in existing restraining order laws. But few, if any, prosecutors are likely to question police or “immediate family” motivations. The real question will be whether a civil claim can be brought against individuals who try to have someone’s firearms taken away when they aren’t really dangerous.

Gun-ban lobbyists have a saying when flaws in laws, like the many in AB 1014, are pointed out: “Don’t let the perfect be the enemy of the good.” That’s just another way of saying, “We know it’s junk, but it’s close enough for government work.” 

In truth, AB 1014 is neither perfect nor good. It’s a dangerous law that will be used to further advance the gun-ban agenda in California to prohibit as many guns, from as many places—and now from as many people—as possible.

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