Restraining Orders, But For Guns

How can the most dangerous people in society best be identified, and prohibited from using firearms? California has come up with one answer.

AK Rockefeller / Flickr

Jared Loughner's parents knew he could be dangerous. In the months before his shooting rampage in a Tucson parking lot, they took away his shotgun. They disabled his car at night. They advised him to seek mental health care. But none of those actions stopped Loughner from purchasing a handgun and taking a taxicab to an event where Rep. Gabrielle Giffords was speaking. He opened fire, killing six people and injuring 13 others, including Giffords.

"The parents identified this risk, and—my goodness—they were taking some really bold steps to try to prevent what happened, but it wasn't enough," said Shannon Frattaroli, a gun violence prevention researcher at Johns Hopkins University. "They didn't have enough tools at their disposal to prevent that new purchase."

Frattaroli is a coauthor on a new paper in the journal Behavioral Sciences & the Law, which advocates for a new option for parents like Loughner's: gun violence restraining orders (GVRO). Like a domestic violence restraining order, GVROs give families an option to petition a court when they fear the actions of a loved one.

In September 2014, California became the first state to establish a GVRO system. When the law comes into effect in 2016, immediate family members and domestic partners will be able to petition courts to have guns removed from those they fear may act in violence, and prohibit them from purchasing firearms for the length of the restraining order. Law enforcement officers also will be able to request GVROs. Initial restraining orders will last up to 21 days, but can be extended to one year.

The law was brought about by the Isla Vista murders in May 2014. In the wake of those killings, it became apparent that like Loughner's parents, the parents of Elliot Rodger—the 22-year old who stabbed to death three, and shot to death three others—saw warning signs.

After the Sandy Hook Elementary School shooting in 2012, the national conversation on gun violence quickly turned toward mental health—how best to keep guns out of the hands of the mentally unwell. That response, however, didn't seem right to Frattaroli and others in the gun violence prevention community. The science didn't support it.

"We were all surprised that the policy response was 'okay, what we have to do is keep guns away from people with mental illness,'" Frattaroli said. Mental illness alone is a poor predictor of who is going to be violent. A better predictor of future violent behavior? Past violent behavior. "It's dangerousness, not diagnosis," she said, and familiy members are in the best position to identify warning signs.

"In both cases [Loughner's and Rodger's], those closest to the shooters identified dangerous behaviors, expressed concerns, and took concrete actions to intervene," Frattaroli's paper reads. "In neither case did the level of dangerousness rise to a point that caused those involved to initiate involuntary commitment procedure, and as a result they were left with few options to intervene and no systematic mechanism to limit gun access." In retrospect, GVROs in these cases could have been effective.

Gun-rights advocates are worried about due-process rights and vagueties in the law. GRVOs will be decided ex parte, meaning the person who stands accused does not need to be involved in the proceedings. A person can have his or her firearms taken away before getting the chance to contest the order.

The California law says a petitioner needs "reasonable cause" to get a GVRO, that there is a "substantial likelihood" that a person poses a danger to himself or others. Falsifying such information before a court is illegal. But the National Rifle Association worries that there is potential for abuse. "Everyone has good intentions, but you have to think of unintended consequences too," NRA spokeswoman Jennifer Baker said. "You are forcing a person to give up ownership of a valuable property."

Adam Winkler, a constitutional law professor and Second Amendment expert at University of California (Los Angeles), and said the NRA's concerns are largely unfounded. "At the end of the day it's not a thorny issue," Winkler said. "It's not a Second Amendment violation to take away the guns of someone who is dangerous."

Winkler said the concerns about due process are valid, but that the California law has the appropriate safeguards.

"Although [GVROs] are often portrayed as allowing family members or jilted lovers to take someone's gun away, these restraining orders must be issued by a judge," he said. "A judge is not going to issue an order unless he has reason to believe that a person is dangerous."

While California is the only state to have passed laws allowing GVROs, other states have adopted similar measures: Indiana, Connecticut, and Texas have laws allowing law enforcement officers to remove guns from people they believe are dangerous.

The GVRO obviously cannot prevent all future incidents of mass violence. A 2014 New Yorker profile of Peter Lanza, the father of Adam Lanza, made it clear that Adam's mother did not recognize the potential for violence in her son. In Isla Vista, a GVRO would not have stopped Elliot Rodgers from stabbing three people to death. As Baker said, "If someone is really going to go on a murderous rampage, a restraining order doesn't mean anything to them." But maybe, the parents of Jared Loughner—who went so far as to disable his car—might have found comfort in issuing a GVRO.

"The truth is that it is very rare to know in advance when someone is going to be dangerous with a firearm," Winkler said. "This is not going to make a huge dent in our gun violence statistics. But it can help in individual cases."