It's official. California has officially joined three other states -- Connecticut, Indiana and Texas -- in allowing law enforcement officials to seek gun seizing orders from courts. However, California has taken it one step further than those other states -- family members can also seek the seizure of weapons.
The law is passed in the wake of a widespread increase in mass shootings by severely deranged people. Mass shooting's typically involve very sick people, people who were known to be sick by family members. The new law is meant to provide an avenue for these family members to report suspicious activity and deviant behavior to the courts and to allow the courts to seize the sick person's weapons. Specifically, the law allows courts to issue orders authorizing the temporary seizure of guns upon an ex parte showing of potential violence by a family member or law enforcement official. If issued, the temporary seizure would last 21 days. A full court hearing would be required to extend the ex parte order for a year. Sounds common sensical, at least on the surface.
For those not aware, an ex parte order usually occurs without a hearing and can be based solely of one person's beliefs. Normally our system of justice requires each side to present their side of an issue before the court rules. That is, both the plaintiff and defendant, petitioner and respondent, etc., are given an opportunity to defend themselves and their property before it is taken. Not so with ex parte orders. One side simply submits paperwork to the court and often without even notifying the opposing side, the court will issue its decision. Ex parte procedure is meant for emergencies or where time is really of the essence. The fact that any family member can now report suspicious behavior to a court and the court has the power to act without a full hearing really pushes the issue close to unconstitutionally, for several reasons.
First, our constitution requires due process before a person's life, liberty, or property can be taken. In the case of gun rights, before the state can take the guns (property) a hearing must be provided (procedural due process). The ex parte procedure may impact the due process required. Additionally, due process requires an opportunity to defend the taking, to present one's position and argument. Also, there is that pesky issue of the Second Amendment.
I applaud the rationale for the new gun law but it is unclear, at this point, whether I am conformable allowing a family member to control the property and due process rights of another without adequate safeguards to ensure everyone's rights are protected.
