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Red flag law / ERPO question (California) Weapons, Guns, Firearms

Discussion in 'Criminal Charges' started by MisterNFC, May 7, 2020.

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  1. MisterNFC

    MisterNFC Law Topic Starter New Member

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    In California, do red flag/ERPO orders eventually expire? By expire I do not mean "how long can they keep your weapons after confiscating them?"

    Suppose somebody filed a red flag order against somebody in county A, but that person had already moved to county B at the time of the red flag order. Thus, they were outside of the jurisdiction of county A, and so no visit from the authorities ever took place.

    If the person in question moves back to county A, and a year has elapsed since the red flag was ordered... Could the authorities still confiscate said person's weapons upon return to county A? Or would they throw the order out since a year had elapsed with no incident? Suppose the move to county B was unrelated and was not an attempt to 'go underground,' and the change of address was properly filed.

    Also, how could someone in this situation confirm if a red flag order had in fact been filed against them? Would they just call the relevant PD and ask? Would they be able to reveal that information over the phone? Person in question does not actually know if any red flag order was filed, he just has a suspicion that someone may have done so. Possibly over radical social media posts about firearms... Saying red flag laws are BS, school shootings are staged, anti-gun lobbyists are morons, commies should be shot, etc. Things of that nature.
     
  2. Tax Counsel

    Tax Counsel Well-Known Member

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    A "red flag law" is a term referring to a law that allows certain persons to petition a court to order that an individual's firearms be taken away and that the individual is prohibited from owning or possessing firearms during the period of the order.

    Under California's current red flag law only a law enforcement officer or immediate family member may petition for the red flag order. Thus, it is not possible under current law for a neighbor or some individual reading your social media posts to seek a red flag order. Under amendments that take effect September 1, 2020 it will be possible for the following additional people to seek a red flag order: (1) employer of the individual, (2) co-workers of the individual if they have the consent of the employer, and (3) teachers at a high school or college/university the individual attends if the teacher has the consent of a supervisory official of the school.

    The law allows for those individuals to seek an ex parte order from the court. An ex parte order is one that is reviewed and decided by the court without the participation of the individual that is to be restrained by the order. The court must decide whether to grant the petition within a day after it is filed. Once granted the ex parte order is good for only 21 days and the order must be served on the individual.

    The petitioners may also seek a regular (not ex parte) gun violence restraining order (GVRO). When the ex parte order is served on the individual he or she will be advised in that order and by the serving officer of the date for the hearing for the GVRO and the individual may appear at the hearing and make his/her case against it. If the court grants the GVRO it is effective for no more than one year. If the petitioner wants it to extend for more than a year, he or she must petition for renewal of the order and once again the individual subject to the order will be served with the petition and have the opportunity to participate and argue against renewal.

    The court must find both of the following things are true before granting the GVRO:

    (1) The subject of the petition poses a significant danger, in the near future, of causing personal injury to the subject of the petition or another by having in their custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering the factors listed in Section 18155.
    (2) An ex parte gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances of the subject of the petition.

    Cal. Penal Code § 18150(b).

    In short, a person subject to a red flag order will know it because he or she will be served with the order and, except for the ex parte order which lasts only 21 days, he or she will have the chance to appear in court and defend against the petition for the GVRO. And the GVRO is only good for up to a year unless it is renewed, which requires another hearing. Note that moving from one county to another will not affect a GVRO already in effect; the individual is still subject to the order no matter where in the state he/she lives.
     

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