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The Consequences of Domestic Violence in California


The Consequences of Domestic Violence in California

Despite what public events have told us about the availability of firearms in the United States, the family courts in California have extremely strict laws regarding guns – at least when it comes to domestic violence matters.

A person served with a domestic violence restraining order – even a temporary one—is prohibited from owning, possessing, purchasing, receiving, or attempting to own, possess, purchase, or receive, a firearm or ammunition.  The firearm restriction remains in effect for the entirety of the restraining order.

When the restraining order goes into effect, the judge must order the restrained person to relinquish any firearm in her or his immediate possession or control.  When the restraining order is served, usually by law enforcement, the served person must immediately surrender the firearm in a safe manner at the request of any law enforcement officer.  In fact, it is part of the job of the officer serving the protective order to request the firearm’s immediate surrender.  But even if law enforcement does not make the immediate request, the restrained person must give up the firearm within 24 hours of being served with the restraining order, by either surrendering it in a safe manner to local law enforcement or selling it to a licensed gun dealer.

The law goes on to require that the gun dealer or police officer give a receipt to the restrained person upon the person’s surrender of the weapon.  Then the restrained person must, within 48 hours of being served with the restraining order, file the receipt with the court and also file a copy of the receipt with the law enforcement agency that served the restraining order.  Not complying with this 48-hour rule is itself a violation of the restraining order.  If the judge finds at a subsequent hearing that there has been a violation of the 48-hour rule, the judge must make a written record of that determination and provide a copy to any party present at the hearing and, upon request, to any party not present.  I bet there are a lot of experienced family law attorneys who are not familiar with all the details of the 48-hour rule.  A firearm violation must also be considered in determining custody and visitation.

Violating the firearms law is a California crime, punishable by a fine of up to $1,000.00, imprisonment, or both.  Federal law also prohibits firearm ownership or possession, including ammunition, while the restraining order is in effect.  Separately, federal law prohibits firearm possession of anyone convicted of the crime of domestic violence.  In short, under federal law at least, you cannot have a gun if you are under a domestic violence restraining order (a civil injunction) or if there is no state prohibition on firearm possession or ownership but the person in question has been convicted (in a criminal court, not a family court) of a misdemeanor crime of domestic violence.  And, at least when it comes to the California firearm restrictions, the California Court of Appeal has already determined that there is no violation of the Second Amendment to the U.S. Constitution.  This is because “’reducing domestic violence is a compelling government interest . . . and [a] temporary prohibition, while the [restraining] order is outstanding, is narrowly tailored to that compelling interest . . . ‘”.

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