California’s red flag law allows employers, co-workers, and teachers to seek a court order to remove firearms from a person they perceive as potentially dangerous. The restraining orders in question are known as “gun violence restraining orders,” or (GVROs). They seek temporarily to remove firearms from the possession of a person who is considered a threat to others.
When implementing these new laws, employers should consider implications involving tort liability.
Our California criminal defense attorneys will answer the following four key questions in this article:
- 1. What is California’s red flag law?
- 2. What is a gun violence restraining order?
- 3. Are there considerations for employers?
- 4. Are red flag laws constitutional?
1. What is California’s red flag law?
California’s new red flag law allows the following personnel to seek to remove firearms from a dangerous person via a restraining order:
- co-workers, and
Note that a “red flag law” is a type of gun confiscation law. It authorizes certain people to seek a restraining order to remove firearms from:
- a person who has been deemed a threat to himself, or
- a person who has been deemed a threat to someone else.
California has had a red flag law in place since 2014. This law, though, only applies to law enforcement officials and close family members. This means only these people – police officers and immediate family members – can try to disarm a dangerous person.
The new laws, therefore, reflect an expansion of existing law. The laws are enumerated in Assembly Bill 61. California Governor Gavin Newsom recently signed this legislation into law. It went into effect on January 1, 2020.
Note that 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.1
2. What is a gun violence restraining order?
A GVRO is a court order that temporarily removes a gun from the possession of someone that (1) is a threat to himself, or (2) is a threat to someone else.
The request to remove a gun is made to a judge via an ex parte petition to the court. The judge, then, decides whether or not to grant or deny the request.
Under AB 61, the following people – in addition to family and law enforcement agency officers – can request a gun violence protective order:
- a coworker of the person named in the petition,
- an employer of the person named in the petition, and/or
- a teacher of a school the person named in the petition has attended for at least six months.2
Note that in regard to coworkers, they can file a petition if:
- they had substantial and regular interactions with the other person for at least one year, and
- they have obtained the approval of the employer to file the petition.3
In regard to teachers, they can file a petition if:
- they are a teacher of a secondary (including lower, middle, or high school) or postsecondary school,
- they get the approval of a school administrator or a school administration staff member, and
- that person has a supervisorial role.4
Under California law, if a judge grants a GVRO, he can do the following:
- confiscate a person’s firearm for a period of time, provided that
- there is convincing evidence that suggests the person would use it to cause injury.
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. But after a court hearing, the court can extend the protective order if the person continues to pose a significant danger.
3. Are there considerations for employers?
The main issue for employers to consider when implementing these new laws has to deal with tort liability.
The new red flag laws do not mandate that a person or entity seek a GVRO. But note that an employer may have a duty to seek one if:
- it has evidence of potential firearm violence by an employee, or
- it receives a restraining order request from an employee.
Given this duty, it could be negligence if the employer did not seek a GVRO in either of these situations. A negligence claim could allow a person to sue the employer for not upholding its duty. A suit would only be available, though, if certain damages took place.
Given the above, employers are encouraged to work with attorneys to implement the new laws. It is also helpful if they have:
- an implementation plan in place, and
- policies in place that address gun violence restraining orders and the process for seeking them.
4. Are red flag laws constitutional?
To date, courts interpreting red flag laws have ruled that they are constitutional.
A concern is that the laws:
- are vague and overbroad,
- may violate a person’s Due Process rights, and
- may violate a person’s Second Amendment right to bear arms.
Courts, though, have rejected any legal challenges of the laws on these grounds.
A Florida appeals court recently upheld a Florida red flag law. Those opposing the law said that it was vague and violated Due Process rights.
The court rejected the arguments though. In particular, it noted that due process rights were not damaged. There was no damage, per the court, because a person subject to a GVRO could only lose a gun for 12 months. There were no permanent gun seizures.
Note, though, that California gun laws allow for lengthier confiscation periods than the Florida law. Even so, there has been no talk of any constitutional challenges to the laws.
- California Assembly Bill 61 AB, by Assemblymember Phil Ting (Democrat – San Francisco); Penal Code 18120. The law was in part a reaction to mass shootings (such as at Parkland and Isla Vista) in order to institute common-sense gun control, gun safety, and public safety while safeguarding gun rights for law-abiding gun owners. Some other jurisdictions in the United States with similar state laws for extreme risk protection orders (ERPOs) include Connecticut, Oregon, Indiana, Maryland, Illinois, Vermont, New York, Hawaii, Nevada, and the District of Columbia. California was the first state to pass a red flag law. These laws are opposed by the National Rifle Association (NRA), many Republicans, and President Trump.
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