Mountain View Police Department v. Krepchin (Cal. Ct. App., Nov. 4, 2024, No. H050872) 2024 WL 4664207
Summary:Police department filed application for emergency gun violence protective order against Krepchin , and after it was issued, applied for three-year gun violence restraining order (GVRO). The Superior Court, Santa Clara County, granted GVRO, and defendant appealed.
Holdings: The Court of Appeal held that:
1 as a matter of apparent first impression, GVRO statute facially comported with Second Amendment;
2 GVRO complied with statutory requirement of stating grounds for its issuance;
3 any error in GVRO’s failure to set forth grounds on face of order itself did not prejudice defendant;
4 police officer was qualified to testify as expert on police threat assessment;
5 trial court was statutorily authorized to consider hearsay when determining whether to issue GVRO;
6 any error in admission of testimony regarding incident taking place when defendant was juvenile did not prejudice defendant; and
7 sufficient evidence supported finding that there was a high probability that defendant posed significant danger of gun violence.
Gun violence restraining order statutes
Gun violence restraining orders in California are governed by section 18100, et seq. That section provides: “A gun violence restraining order is an order, in writing, signed by the court, prohibiting and enjoining a named person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition. This division establishes a civil restraining order process to accomplish that purpose.” (§ 18100.)
The gun violence restraining order statutes provide for three different types of restraining orders “prohibiting a person from owning or possessing a firearm, ammunition, or magazine: (1) a 21-day temporary emergency GVRO issued ex parte on request of a law enforcement officer if the court finds ‘reasonable cause to believe’ the subject ‘poses an immediate and present danger’ of gun violence (§ 18125); (2) a 21-day ex parte GVRO issued on request of a family member, employer, coworker, teacher, or law enforcement officer if the court finds a ‘substantial likelihood’ that the respondent ‘poses a significant danger, in the near future’ of gun violence (§ 18150, 18155); and (3) a one-to-five-year GVRO issued after notice and hearing if the court finds ‘by clear and convincing evidence’ that there is a ‘significant danger’ of gun violence (§ 18175).” (San Diego Police Department v. Geoffrey S. (2022) 86 Cal.App.5th 550, 565, 302 Cal.Rptr.3d 545 (Geoffrey S.).)
For the third category of restraining order,at issue here, the petitioner expressly bears the burden of proving at a hearing, by clear and convincing evidence, that: “(1) The subject of the petition, or a person subject to a temporary emergency gun violence restraining order or an ex parte gun violence restraining order, as applicable, poses a significant danger of causing personal injury to themselves or another by having in the subject’s or person’s custody or control, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine[; and] (2) A gun violence restraining order is necessary to prevent personal injury to the subject of the petition, or the person subject to an ex parte gun violence restraining order, as applicable, 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, or the person subject to an ex parte gun violence restraining order, as applicable.” (§ 18175, subd. (b).)
Second Amendment
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
In Rahimi, the Supreme Court considered the constitutionality of a federal statute—18 U.S.C. § 922(g)(8)—that prohibits individuals subject to a domestic violence restraining order from possessing a firearm if the restraining order includes a finding that the individual “represent[ed] a credible threat to the physical safety of [an] intimate partner” or a child thereof. (Rahimi, supra, 144 S.Ct. at p. 1894.) The Court held that, “[w]hen a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, [the federal statute] fits comfortably within this tradition.”
Section 18175 does not violate the Second Amendment.
The statute upheld in Rahimi prohibits an individual subject to a domestic violence restraining order from possessing a firearm if the order includes a finding that the individual “represent[ed] a credible threat to the physical safety of [an] intimate partner” or a child thereof. (Rahimi, supra, 144 S.Ct. at p. 1894]; 18 U.S.C. § 922(g)(8)(C)(i).) Section 18175 authorizes a gun violence restraining order if the court finds that an individual poses a “significant danger of causing personal injury to themselves or another” by possessing, controlling, owning, purchasing, or receiving a firearm, ammunition or magazine. (§ 18175, subd. (b)(1), (2).) California’s statute also requires that the court make such a finding by “clear and convincing evidence.” (§ 18175.)
Section 18175 applies to individuals found to threaten the physical safety of others, and restricts gun use to mitigate demonstrated threats of physical violence: “the petitioner has the burden of proving, by clear and convincing evidence, that … the subject of the petition, or a person subject to a temporary emergency gun violence restraining order or an ex parte gun violence restraining order, as applicable, poses a significant danger of causing personal injury to themselves or another by having in the subject’s or person’s custody or control, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine.” (§ 18175, subd. (b)(1); Rahimi, 144 S.Ct. at pp. 1899–1901.)
California courts have held that the domestic violence restraining order statute is a constitutionally valid restriction on an individual’s right to possess a firearm. (Zachary H., supra, 96 Cal.App.5th at p. 1144.) Section 18175, which was based on the domestic violence restraining order statute, fits within that framework and Rahimi supports the lawfulness of firearms restrictions imposed on individuals subject to restraining orders.
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