American Bar Association
Standing Committee on Gun Violence
Section of Civil Rights and Social Justice
Criminal Justice Section
Section of Litigation
Commission on Youth at Risk
Section of State and Local Government Law
Report to the House of Delegates
Resolution
RESOLVED, That the American Bar Association urges state, local, territorial, and tribal governments to enact statutes, rules, or regulations authorizing courts to issue gun violence restraining orders, including ex parte orders, that include at least the following provisions:
1. That a person (a “petitioner”) with documented evidence that another person (a “respondent”) poses a serious threat to himself, herself or others may petition a court for an order temporarily suspending the respondent’s possession of a firearm or ammunition;
2. That there shall be a verifiable procedure to ensure the surrender of firearms and ammunition pursuant to the court order; and
3. That the issuance of the gun violence restraining order shall be reported to appropriate state or federal databases in order to prevent respondent from passing a background check required to purchase a firearm or obtain a firearm license or permit while restraining order is in effect.
Report
I. Introduction
There are few more contentious issues in our public policy debates than the contours of “the right to keep and bear arms.” Increasingly, however, there is consensus that guns should be kept away from those whose behavior suggests that they would be dangerous to themselves or others if they possessed a weapon. This resolution takes a small step toward translating that consensus into common-sense legal terms. A Gun Violence Restraining Order (GVRO) is a simple legal procedure to enable courts to remove guns from those who are proven likely to use them dangerously, and to do so in compliance with the Second Amendment and Due Process protections of the Constitution. The American Bar Association should continue its long tradition of being at the forefront of policy-making that meets the challenge of the gun violence crisis, which seriously threatens the health and welfare of the people of the United States.
II. How GVROs Can Prevent Gun Violence
Studies have shown that individuals who are engaged in certain dangerous behaviors are significantly more likely to commit an act of violence towards themselves or others within the near future. Tragically, the current legal framework rarely provides a mechanism for witnesses to take preventive action, especially with respect to guns. Gun violence restraining orders – variously called gun violence protective orders, lethal violence protective orders, or other titles – fill this gap.
America’s recent experiences with mass shootings have demonstrated the urgent need for gun violence protective orders. In many of these incidents, community members noted warning signs beforehand, but there was nothing they could do to remove the shooter’s access to guns before the tragedy. Family members are the people most often in this position, such as the parents of Eliot Rodger, who killed six people in the college town of Isla Vista, California, before killing himself. Rodger's parents contacted his therapist about three weeks before his killing spree with concerns about his behavior and YouTube videos, and the therapist contacted the police, who interviewed him. The police observed that he did not meet the criteria to be taken into custody for a mental health evaluation, however, so nothing was done to remove his access to guns.
Similarly, Jared Lee Loughner shot and killed six people and wounded 13 others, including U. S. Representative Gabrielle Giffords, in a parking lot in Tucson in January 2011. At one point, his parents had become so concerned about his behavior that they took away his shotgun, but they could not take any further action to restrict his access to guns.
Dylann Roof, who shot and killed nine people at Emanuel African Methodist Episcopal Church in Charleston, South Carolina in June 2015, was known to have made violent, racist statements. These statements were so threatening that his friend, Joseph Meek, hid Roof’s handgun. Meek soon returned the handgun, however, at the urging of his girlfriend, because Meek himself was on probation.
Gun violence restraining orders can help prevent such tragic shootings by allowing law enforcement officers, family, or other community members specified in the statute to obtain a court order to temporarily restrict a person’s access to firearms and ammunition based on a judge’s finding that the person poses a danger of committing violence against himself, herself, or others.
III. The Effect of the Resolution
This resolution proposes general standards for obtaining a GVRO that would give states wide latitude to states to enact laws best suited to their particular circumstances and existing public policy. GVROs are already a legal option in several states. In many cases, the laws are based on similar procedures in the state’s domestic violence laws.
Currently, domestic violence protective order laws in every state allow a victim of domestic abuse to seek a court order to prevent further acts of abuse. These court orders may restrict the abuser’s behavior in various ways, including through prohibitions on gun purchase or possession by the abuser. Research has shown these laws to be effective, and courts have upheld them against various constitutional challenges. Consequently, they serve as a useful model for state laws regarding gun violence protective orders.
In fact, California drew heavily from its domestic violence protective order law when – in response to the Isla Vista shooting described above – it enacted its Gun Violence Restraining Order law in 2014.
Similar laws have been enacted in Connecticut, Indiana, and Washington. In each of these states, a law enforcement officer or a family member may seek a court order for the temporary removal of guns from a potentially dangerous person pending a full hearing. Law enforcement officers in Illinois and Massachusetts may also seek the removal of guns from a potentially dangerous person through those states’ gun owner licensing law.
IV. Legal Challenges to Gun Violence Restraining Order Laws
Litigation challenging firearms laws has become a routine strategy of gun manufacturers, the National Rifle Association, and others. These challenges most often raise the following issues: (1) the Second Amendment to the U.S. Constitution; and (2) the Due Process Clause. The following brief discussion illustrates why a GVRO, as described in this resolution, comports with these constitutional provisions.
A. Second Amendment
The GVRO process is consistent with the Second Amendment. In the landmark case, District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court determined that the Second Amendment guarantees the right of “law-abiding, responsible citizens” to keep a handgun in the home for self-defense. However, the Supreme Court also stated that the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court explicitly recognized “the problem of handgun violence in this country,” and confirmed that the “Constitution leaves ... a variety of tools for combating that problem.” Among those tools, the Court identified several examples of presumptively valid gun regulations, including those that prohibit firearm possession by felons and the mentally ill.
Since the 2008 decision in Heller, courts across the country have been faced with challenges to many kinds of gun regulations. Courts have almost uniformly upheld strong gun laws, and the Supreme Court has also repeatedly declined to hear any new cases raising Second Amendment claims, denying certiorari in 70 Second Amendment cases since Heller and McDonald v. Chicago, 561 U.S. 742, 778 (2010). The courts have consistently upheld laws aimed at reducing access to guns by those who are deemed likely to misuse them. Courts have also broadly upheld restrictions on firearm access by persons who have been detained or hospitalized for mental health treatment and evaluation, and they have affirmed law enforcement’s authority to provisionally remove firearms from individuals found to pose an imminent risk of danger to themselves or others as a result of mental illness. In 2013, an Indiana Appellate Court rejected a Second Amendment challenge to that state’s gun violence restraining order law, ruling that the state may restrict access to firearms by dangerous individuals in the interest of public safety and welfare. The Court noted that “the United States Supreme Court has recently and repeatedly recognized the legitimate governmental purpose of prohibiting violent mentally ill persons from possessing firearms.” Because the state’s GVRO law provided ample due process protections, the Court found that it did “not place a material burden upon the core value of the individual’s right” under the Second Amendment. A similar law has been successfully implemented in Connecticut since 1999, and withstood a constitutional challenge in 2016.
B. Due Process
Procedures for obtaining a GVRO can also be instituted so as to satisfy the requirements of the Due Process Clause. These procedures are generally based on existing domestic violence laws that courts have repeatedly upheld against due process challenges. (The legal basis for these challenges lies in the court’s authority to issue an ex parte order before a full hearing occurs, which is neither explicitly required nor precluded by this resolution.)
In Blazel v. Bradley, 698 F. Supp. 756, 768 (W.D. Wis. 1988), a federal district court held that a Wisconsin law allowing victims of domestic abuse to seek ex parte restraining orders against their abusers was constitutional and satisfied due process requirements. The court emphasized that the procedure under Wisconsin law requires:
1. Judicial participation;
2. A verified petition containing detailed allegations before the ex parte order is issued;
3. A prompt hearing; and
4. An allegation of risk of imminent and irreparable harm based on personal knowledge of the respondent.
Courts across the country have come to similar conclusions. They have rejected due process challenges to ex parte domestic violence orders issued after these or similar requirements have been met.
The resolution accompanying this report explicitly requires that a GVRO be consistent with the strictures of the Due Process Clause of the Constitution. In particular, the provisions outlined in subsections 1 through 3 of the resolution set specific standards that comport with due process. It is left to the states to determine whether or not to provide for an ex parte order, and, if so, to ensure that such a provision is consistent with due process.
V. Conclusion
Gun Violence Restraining Orders are a sensible approach to curbing the epidemic of senseless shootings, both the infamous events with which we are all familiar and the little-known incidents that take place regularly all over the country. This is only a modest step, to be sure, but the American Bar Association must advocate strongly for any legal step that may be employed to mitigate the crisis of gun violence in our midst.
Respectfully submitted,
David W. Clark, Chair
Standing Committee on Gun Violence
August 2017