SAN DIEGO — One of the most notorious gun control measures most Americans are familiar with, at least in name, are “red flag” laws, the colloquial term for Gun Violence Emergency Protection Order, or extreme risk protection order. Californians may have a reprieve when it comes to GVEPOs in the state.
According to selfhelp.courts.ca.gov: “A judge can grant a gun violence restraining order to stop someone from having, owning, or buying any firearms (guns), firearm parts, ammunition, magazines, or body armor. Once an order is granted by a judge, the police can be called to enforce the order, and the restrained person will have to turn in any firearms, ammunition, or body armor they have.”
The court gives 24 hours to comply with the order and 48 hours to provide documentation that the order has been fulfilled. Sometimes guns are confiscated by law enforcement on the spot. GVEPOs can be petitioned by pretty much anyone, whether a citizen or a police department. What is important is that GVEPOs are civil matters, rather than criminal. Eventually there will be a hearing, typically within two weeks. After the hearing, a GVEPO action becomes a Gun Violence Restraining Order, unless it is dismissed.
When GVROs first arrived in California via legislation in 2016 following the Isla Vista shooting two years prior, it was, of course, advertised as a public safety measure by elected officials, as so many gun control laws are.
The state, and especially then-Governor Jerry Brown, sold red flag laws to the public by highlighting their potential to stop imminent danger. Broad eligibility, allowing pretty much anybody to petition the court for a gun violence restraining order, such as family members, co-workers, neighbors, etc. were also touted by Brown. Further, the governor’s office stressed that the order was temporary and subject to judicial review, with the goal of removing guns from “high-risk individuals.”
The problem with judicial review in these cases is that the restrained person not only has no right to participate in the process, but they are also often not even aware that a petition has been filed until they are served, undermining many elements of American jurisprudence and civil liberties. Judges rarely, if ever, reject a petition, and evidence is usually not required. The restrained party is usually disarmed for at least two weeks before they get a chance to appear in front of the judge for a hearing.
There are cases where a GVRO is warranted and makes sense when someone has very clearly stated their intention to commit harm, but some jurisdictions, especially San Diego have run amok with this.
Former City Attorney Mara Elliott has made it standard procedure that almost any time a person who is a gun owner is accused of a crime, a GVRO is issued against them, even if no guns were actually involved in or even present during the alleged crime. Furthermore, GVROs are often issued at the time a crime is merely alleged, and clear evidence to support the allegations has not yet been gathered. The accusation alone is often enough to trigger an order. This is done by the city attorney’s office, even when nobody else close to the accused has voiced any concern about them being a threat.
Some key statistics from California’s own Department of Justice and the Attorney General’s Office of Gun Violence Prevention highlight what can only be called abuse.
Enter local San Diego criminal defense attorney Gary Gibson. Having successfully defended against many GVROs, he has been able to gain an in-depth view of the city’s practice of predatory restraining orders. According to Gibson, “from 2016-2023 cumulative (most complete available summary): Of 8,988 GVROs issued statewide, San Diego County accounted for 2,490 (~27.7%). Santa Clara was second at 1,481. Together the two counties made up 44% of the entire state’s GVROs.”
He continues: “San Diego had 723 of 2,071 (~35%) – by far the highest share of final/longer-term GVROs (after hearing or consent, lasting up to 5 years) over the same period. And in 2023 alone, San Diego issued 503 of 2,719 statewide (~18.5%). Santa Clara led that year with 645 (~24%).”
For a major city, San Diego is relatively safe. Violent crime stats analyzed against other major cities in California, and compared to the number of GVROs in those areas, do not support the picture that San Diego is proportional or even reasonable in their liberal use of GVROs.
To put this into perspective, according to their own data, LA County issued 255 GVROs between 2016 and 2023. That means San Diego issued about 10 times more GVROs than LA County, despite having only about one-third of the population. Does San Diego have 10 times more suicides, mass shootings, and violent crime in general? Let’s be honest. We all know the answer to that.
One ongoing case may offer at least some hope for gun owners who are worried about weaponized GVROs.
In May of 2024, a gentleman by the name of Christopher P. Dowell petitioned San Diego Superior Court to return his concealed weapons permit after he was served with a restraining order following a road rage incident.
During the altercation between Mr. Dowell and two occupants of another vehicle, the two men called police and complained that Mr. Dowell had pointed a gun at them. This accusation, which was impossible to prove at the time, was enough to cause a temporary restraining order to be issued. As it turned out later, the two other men had lied about the gun and the TRO was dismissed, never even becoming a full GVRO.
At this point, it is important to know that SB2 contains legislation that will make anyone who receives a restraining order ineligible for a CCW for a period of five years following the end of that order. In other words, if a restraining order was in place for one year, the restrained person will be ineligible for a CCW for a period of six years.
However, due to the dismissal of his TRO, Mr. Dowell petitioned the court to instruct the sheriff, who is the issuing authority, to return his CCW.
Upon learning all the details in his petition hearing, the court decided that, since Mr. Dowell had no right to participate in the process that led up to him being served with a TRO, the portion of SB2 that makes him ineligible for a CCW violates due process protection and is thus unconstitutional.
Unfortunately, the resolution in this case applied only narrowly to Mr. Dowell and does not create precedent. However, what is remarkable is that the San Diego Superior Court judge presiding over the case issued a written opinion, which is incredibly rare for a lower court. Despite the narrow ruling only applying to Dowell, Gibson, who was representing him, made sure to inform the sheriff of the court’s 14-page opinion.
The sheriff is now on notice regarding the court’s opinion on the unconstitutionality of this section of SB2. A judicious path would be to refuse to revoke CCWs for gun owners who were victims of a vindictive and malicious TRO, precisely because it was dismissed due to lacking substance and never turning into a full GVRO. This should ensure that all CCW applications and renewals by gun owners in similar situations are approved, despite showing a TRO (never becoming a full GVRO) on their record.
In short, while this opinion and ruling have not become precedent, California gun owners need to pay attention to this case. It may only affect a small number of people in the state, but it is currently one of the best tools available to fight back against attempts to issue unmeritorious restraining orders against law-abiding gun owners.
Mr. Dowell needs his rights fully restored and hope he prevails. The legislature doesn’t care, they’ll do anything to get guns out of the hands of citizens.