California’s Expanded Red Flag Law Empowers Employers to Seek Gun Violence Restraining Orders; Other States May Follow Suit

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More states are enacting so-called “red flag laws,” which allow certain entities and/or individuals to obtain restraining orders to remove firearms from an individual deemed by the courts to be a threat to themselves or others. While the first red flag law went into effect decades ago—Connecticut enacted the first iteration of such a law in 1999—over the years, they have become both broader and more pervasive. As red flag laws proliferate, the role of employers in the application process for gun violence protection orders is likely to expand.

California’s Amended Red Flag Law

California’s Assembly Bill 61 is a good example. The law, which will take effect on September 1, 2020, significantly expands California’s existing red flag law. Currently, the law permits a court, upon application by law enforcement or immediate family members of the subject of the application, to issue an ex parte gun violence restraining order (GVRO) prohibiting the subject of the petition from possessing a firearm. The petitioner must show a substantial likelihood that the subject poses a significant danger of harming his or herself or another person in the near future, and that the GVRO is necessary to prevent personal injury. The GVRO generally expires after 21 days, unless the petitioner can show at an evidentiary hearing by clear and convincing evidence that the subject of the petition continues to pose a significant danger. The GVRO then may be extended by three-month intervals, with the same evidentiary showing required after each three-month period.

The new law significantly adds to the framework of the existing law. Significantly, it broadens the classes of individuals who may apply for a GVRO to include employers, and (under certain circumstances) coworkers and teachers. The grounds and basis for seeking the GVRO vary slightly by the classification of the petitioner. For instance, coworkers must have had regular interactions with the subject for at least one year and obtained the approval of their employer before seeking the GVRO. Teachers must have worked at the school attended by the subject of the GVRO in the last six months and also must obtain the approval of a school administrator.

In essence, California’s amended red flag law significantly expands the employer’s role in the GVRO process. Employers are now empowered to seek a GVRO directly, and even where a teacher or coworker seeks a GVRO, they may only do so with their employer’s blessing. California is the first state to enact a red flag law that provides employers with such a central role in the GVRO application process.

Other States Expand Red Flag Laws

To date, 17 states and the District of Columbia have enacted some form of red flag law, referred to variously as Extreme Risk Protection Orders, Risk Protection Orders, Gun Violence Restraining Orders, risk warrants, and Proceedings for the Seizure and Retention of a Firearm.1 The vast majority of these laws have taken effect within the last three years, and similar laws have been proposed in half a dozen additional states.

Despite their relatively recent vintage, petitions seeking relief under red flag laws are certainly not rare in the states in which they are authorized. By one estimate,2 over 2,000 applications for such restraining orders were filed in 2018; since then, the number of states with red flag laws on the books has only increased. For instance, in the first 15 days since Colorado’s red flag law took effect on January 1, 2020, the state reportedly received at least five applications.3 GVROs are therefore becoming a regular and increasingly used tool to help curb violence in the states in which they have been authorized.

As these laws proliferate, we expect California’s iteration of the law—which permits not just law enforcement and close family members to apply for a GVRO, but also employers to seek protection orders—to likewise spread. Thus, while California employers are presently uniquely equipped to seek or become involved in the GVPO process, this rapidly expanding mechanism may soon be available in other jurisdictions as well.

 

Footnotes

1 Those jurisdictions are California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. See Cal. Penal Code § 18100, et seq.; CRS § 13-14.5-101, et seq.; Conn. Gen. Stat. § 29-38c; 10 Del. C. § 7701, et seq.; DC Code § 7-2510.01, et seq.; Fla. Stat. § 790.401; Hawaii Senate Bill 1466 (2019); 430 ILCS § 67/1, et seq.; Ind. Code § 35-47-14-1, et seq.; Md. Public Safety Code § 5-601, et seq.; Mass. Gen. Laws ch. 140, §§ 121, 129B(C), 131(C), 131R-Z; Nevada Assembly Bill 291 (2019); NY CLS CPLR § 6340, et seq.; N.J. Stat. § 2C:58-20, et seq.; ORS § 166.525, et seq.; RI Gen. Laws 8-8.3-1, et seq.; 13 VSA 4051, et seq.; ARCW § 7.94.010, et seq.

2 See Extreme Risk Laws Save Lives, Everytown for Gun Safety, available at https://everytownresearch.org/extreme-risk-laws-save-lives/.

3 See Elise Schmelzer, How Larimer County will become a testing ground for Colorado’s new red flag law, Denver Post (Jan. 16, 2020), available at https://www.denverpost.com/2020/01/16/colorado-red-flag-cases-larimer-county/.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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