Attorney General Bonta Urges Court to Overturn Dangerous Attempt to Invalidate Lifesaving Red Flag Laws

OAKLAND — California Attorney General Rob Bonta, as part of a coalition of 22 attorneys general, filed a brief in the New York Supreme Court, Appellate Division in opposition to a dangerous attempt to invalidate New York’s lifesaving extreme risk protection law, or red flag law, preventing individuals who are a danger to themselves or others from possessing a firearm. States throughout the nation, including California, utilize these lifesaving protective orders — also known as red flag orders — to proactively intervene and stop deadly shootings, including mass shootings, before they occur. The coalition urges the appellate court to overturn the state Supreme Court’s decision overturning the New York law and argues that if upheld, the misguided decision could endanger communities and put the public at dire risk.

“Red flag laws save lives, and a decision taking this critical tool away from our communities will put many people in danger,” said Attorney General Rob Bonta. “This bipartisan solution to gun violence is widely embraced and has been proven extremely effective in preventing crimes, mass shootings, suicides, and death. I urge the court to maintain this vital law and uphold states’ ability to prevent gun violence in their communities.”

Red flag laws authorize courts to issue temporary protective orders that suspend a person’s access to firearms if the court determines that they have demonstrated a serious risk to themselves or others. These laws provide substantial due process guarantees similar to domestic violence restraining orders enacted in all 50 states and are a critical tool for public safety. A petitioner seeking a protective order must prove to the court that the individual poses such a significant risk. After considering evidence, the court determines whether to issue the order, and the length of time the order will be in effect.

California enacted one of the nation’s first red flag laws in 2014, through Assembly Bill 1014, which took effect in January 2016. California calls these red flag orders Gun Violence Restraining Orders (GVROs). Since that time, 18 other states and Washington, D.C, have established similar laws. Researchers credited California’s GVRO law with deterring at least 58 potential shootings in the state in the law’s first three years. California law authorizes the following eligible individuals to petition courts for GVROs: law enforcement officers, family members, employers, current and recent roommates, certain coworkers and school teachers, as well as individuals who have had a dating relationship or who share a child with the respondent.
 
California has also been a leader in establishing other civil court protection order processes for people experiencing threats, violence, and abuse. These include the domestic violence restraining order, the civil harassment restraining order, the workplace violence restraining order, the elder/dependent adult abuse restraining order, and the private postsecondary school violence restraining order. Under California law, these court orders include a range of safety protections including by suspending the respondent’s access to firearms as long as the restraining order is in effect.
 
Protective orders save lives and their use has strong bipartisan support, including from gun owners. It has been determined that 77% of Americans support family-initiated extreme risk protection orders (ERPOs), and 70% support protective orders when initiated by law enforcement. Studies show that such laws are especially potent in curbing suicides and mass shootings, including school shootings. There are several examples of petitioners using red flag laws to disarm individuals who have threatened to murder others, including by committing mass shootings. Congress recently passed the Bipartisan Safer Communities Act, which incentivizes states to pass ERPO laws with $750 million in federal funding to support their implementation.

The coalition urges the court to overturn the New York Supreme Court decision to invalidate New York’s law as these protective orders generally follow the same framework and guidelines, which protect due process and require evidence considered by the court. Additionally, those under the protective order may request a hearing from the court should they wish to terminate the order. New York’s law falls within this framework. 

The coalition further emphasized that the appellate court must reject the lower court’s premise that the law is invalid due to the absence of a medical evaluation requirement, arguing that a required medical evaluation would:

• Undermine the purpose of protective orders and make them far less effective, as hinging these orders on a respondent’s mental health exclusively would fail to capture the full range of dangerous individuals who pose a risk to themselves and others. 
• Slow the process and fail to address immediate and present dangers of crisis situations.
• Pressure states to use mental health issues as direct proxies for dangerousness rather than allowing for a case-by-case risk analysis. 
• Fail to recognize the court’s discretion to require medical evaluations on a case-by-case basis.

A copy of the brief can be found here.

For more information on how to obtain Emergency or Permanent orders under these provisions, go to courts.ca.gov or oag.ca.gov/ovgp/gvro-dvro. 
 
Attorney General Bonta has long-advocated for the increased use of GVROs, and other court protection orders, to prevent gun violence. In October 2022, Attorney General Bonta brought together California's city attorneys and county counsels for a special virtual convening on GVROs. The goal of the meeting was to highlight the lifesaving impact of GVROs and to provide resources and impetus for local agencies to establish GVRO programs in their offices. Attorney General Bonta specifically cited the success of San Diego’s comprehensive GVRO program. Under this program, Deputy City Attorneys apply for GVROs on behalf of officers from the San Diego Police Department. In 2021, over 31% or 435 of the 1,384 GVROs issued statewide were issued in San Diego County. Since the inception of the groundbreaking program, more than 1,500 firearms have been removed from people at significant risk through GVROs. Removing these firearms is believed to have prevented multiple violent incidents, including mass shootings. 
 
Victims of domestic violence who are in immediate danger should call 911. For additional information and assistance call:

• The 24-hour National Domestic Violence Hotline: 1-800-799-SAFE (1-800-799-7233)
• The Victims of Crime Resource Center: 1-800-VICTIMS (1-800-842-8467)

For additional information on resources available to survivors of sexual violence please visit oag.ca.gov/sexual-violence.