Due Process Issues with Gun Violence Restraining Orders

Bill of Rights

The National Journal has an article out touting our opponents latest tool in their quest to find issues they can use to increase the legal risk of gun ownership:

Jared Loughner’s parents knew he could be dangerous. In the months before his shooting rampage in a Tucson parking lot, they took away his shotgun. They disabled his car at night. They advised him to seek mental health care. But none of those actions stopped Loughner from purchasing a handgun and taking a taxicab to an event where Rep. Gabrielle Giffords was speaking. He opened fire, killing six people and injuring 13 others, including Giffords.

“The parents identified this risk, and—my goodness—they were taking some really bold steps to try to prevent what happened, but it wasn’t enough,” said Shannon Frattaroli, a gun violence prevention researcher at Johns Hopkins University. “They didn’t have enough tools at their disposal to prevent that new purchase.”

Read the whole thing. The root problem here is that we make it next to impossible to commit someone who’s exhibiting signs of being dangerously mentally ill. I wouldn’t trust Loughner with matches and gasoline either. This again is treating the Second Amendment as if it’s just some kind of second-class right, not worthy of the protections afforded to other rights.

Adam Winkler, a constitutional law professor and Second Amendment expert at University of California (Los Angeles), and said the NRA’s concerns are largely unfounded. “At the end of the day it’s not a thorny issue,” Winkler said. “It’s not a Second Amendment violation to take away the guns of someone who is dangerous.”

“Although [GVROs] are often portrayed as allowing family members or jilted lovers to take someone’s gun away, these restraining orders must be issued by a judge,” he said. “A judge is not going to issue an order unless he has reason to believe that a person is dangerous.”

This seems naive to me. Given that we know many judges are hostile and dismissive of Second Amendment rights, I predict there will be a large number of judges who will act as a rubber stamp for these GVROs. Keep in mind, these can be issued without the accused having the opportunity to appear or be represented counsel in an adversarial hearing. This is not due process, which should be required to deny someone a fundamental right.

I get that California enacted stiff penalties for false accusers, but the penalties mean nothing. I don’t believe the vast majority of false accusers will ever be charged. It’ll be a case of “he said, she said,” and prosecutors will understandably be reluctant to take the cases to trial on flimsy evidence. Let us not also discount the general hostility big city prosecutors have toward gun ownership in the first place, who might not be too sympathetic to a person petitioning them to charge a person who made a false accusation that got his or her guns taken away.

GVROs will be abused. It’s naive to think otherwise. There are people out there who seriously believe that gun ownership is a sign of mental illness in and of itself, and sometimes you may have those people in your family. It should only be a matter of time before gun rights attorneys can find someone screwed by this law who will make a good plaintiff, and then we’ll see whether the 9th circuit and the Supreme Court take due process seriously when it comes to the Second Amendment.

7 Responses to “Due Process Issues with Gun Violence Restraining Orders”

  1. Jay says:

    Totally agree it is hopelessly naive to think a judge is a bulwark against abuse of due process. This exact scenario happened to an acquaintance of mine when he was separating from his girlfriend, with whom he has a daughter. They had a fight, he got angry but didn’t threaten her, yet she felt “scared” and got an Emergency TRO which cost him his guns to the local PD, *without any hearing*.

    To add insult to injury, his ex later recanted on the TRO, but the local PD said they wouldn’t give his guns back until a 60 day “cooling down” period expired…which was “policy”. His attorney politely explained how the law worked to the PD, but they still would only “release” his guns to the attorney, not directly to him. (pettiness??) This is in Oklahoma, mind you…where we think of ourselves as extremely gun friendly. I was appalled…how can you deprive someone of an enumerated Constitutional right on the basis of “he said, she said”?? Or more germane to this discussion.. “I think he might hurt himself”.

  2. Alpheus says:

    From the article: “But maybe, the parents of Jared Loughner—who went so far as to disable his car—might have found comfort in issuing a GVRO.”

    The frustrating thing about this, though, is that Loughner’s parents probably would have had even *more* comfort if they could have just, I don’t know, have the flipping legal standing to recognize that their son had a mental illness, and the means to have him treated, before he actually killed someone. Currently, in order to be a danger to yourself or others, you actually have to hurt or kill yourself or others. Only recently have some states actually allowed “starving yourself” to count as “causing yourself harm”, sufficiently enough to force treatment.

    Taking away guns on hearsay evidence isn’t going to help people like Loughner; nor will a restraining order. Medical treatment might, however, but no one was able to get him that treatment until he actually shot people. Getting a GVRO is only going to cause Loughner to consider other means of harming others…and even if, however unlikely he can’t think of any other means to hurt himself and others, is it really *right* and *moral* to take his guns away, but otherwise leave him to languish, listening to those voices that only wish him harm?

    • The_Jack says:

      It’s not about what is right and moral.

      It’s about taking advantage of people’s grief and dangling “comfort” in front of them.

      And note that they’re only now admiting the perp went througha NICS check *after* they spent years using him to demand a private sales ban.

      The antis really know how to make that blood last don’t they?

      • Alpheus says:

        Yes, they do. Indeed, if Loughner had brought gasoline instead of a Glock, we probably won’t be talking about him so much today, which is really sad; and GVRO would have done nothing to prevent this!

        (And all because of a lack of “gun deaths”…)

  3. TS says:

    But maybe, the parents of Jared Loughner—who went so far as to disable his car—might have found comfort in issuing a GVRO.

    They disabled his car, yet he still managed to make it over there. Huh…

  4. Archer says:

    (@ TS)

    “But none of those actions stopped Loughner from purchasing a handgun and taking a taxicab to an event where Rep. Gabrielle Giffords was speaking.”

    Where there’s a will, there’s a way.

    But if we’re going to go the GVRO route and remove rights without due process, we should also claim that the taxi company bears some responsibility, as they “knew or reasonably should have known” (which is a legal phrase) Loughner was up to no good and refused service. Just unilaterally jail the driver and impose business-crippling fines. No representation, no juries, no trials, no appeals; just a single hearing before a single judge. It’s OK, there’s a judge to make sure it stays fair.

    We should also shut down Uber and other ride-sharing programs while we’re at it. “If it saves just one life…” and all that.