Why California's 'Red Flag' Gun Removal Law Is So Hard to Implement

Shortly after a gunman in San Jose killed nine people and himself at a Santa Clara Valley Transportation Authority rail yard on May 26, local and state officials put a renewed focus on California's "red flag" law, asking if it could have prevented the massacre.

Formally known as a gun violence restraining orders (GVRO), the law is designed to allow courts to take guns away from people who are deemed a danger to themselves or others. In 2014, California became one of the first states in the country to enact such legislation.

But not many law enforcement agencies have used the order, including those in Santa Clara County, where San Jose is located. Jeff Rosen, the county's district attorney, says in the first few years after the law went into effect in 2016, few of his law enforcement officers knew about it.

"Police officers get phone calls — get 911 calls from neighbors, from family members, co-workers: 'Hey, this person I know is threatening to kill themselves or others,' " Rosen said. "The police officers would respond and they wouldn’t know that they could get a gun violence restraining order and remove the guns."

In 2018, Rosen worked with law enforcement officials in a handful of other California counties to streamline the filing process and improve how police are trained to use the law.

"When we taught and we trained all the police officers in our county, we saw a huge increase in the number of gun violence restraining orders we issued in our county," Rosen said.

Santa Clara County, along with San Diego and Orange counties, now issue the most GVROs in the state, at last count.

But Rosen says work still needs to be done to further raise public awareness.

"What I think this mass shooting at the VTA and San Jose shows us is that we now need to educate the public about gun violence restraining orders," Rosen said. "Now, we're taking the next step of public service announcements and trainings of businesses to educate them."

How Red Flag Laws Work

The laws differ slightly in every state that has one. In California, if you're afraid someone close to you may hurt themselves or others and has access to a firearm, you can call the police to request that a GVRO be issued. Your request will eventually make its way to a judge who will ask for evidence showing that the person in question is in danger or a threat to others.

In some instances, if a person is known to be in immediate danger, a judge can approve an ex parte hearing — one that can proceed without the person in attendance.

If a judge decides the evidence is sufficient to issue a GVRO to someone, that person will be required to surrender his or her firearms and ammunition for at least of 21 days, and up to five years.

In 2019, California's law was expanded to allow co-workers, educators and employers to request the order, rather than just family members and law enforcement officers.

"We saw over and over again shootings occur at schools as well as at workplaces," said Assemblymember Phil Ting, D-San Francisco, who introduced the bill. "It made sense to expand gun violence restraining orders beyond the people who could get them."

A Tool, Not a Panacea

Ting ties the general lack of awareness about the law's full scope and potential to the fact that it was expanded shortly before the coronavirus pandemic.

"It's hard to decipher or even understand all the new laws that were passed, especially if you are just a regular, ordinary citizen who is just going about their very busy life," Ting said.

The same can be said for many law enforcement officers. Consider, for instance, that U.S. Customs and Border Patrol agents in 2016 detained the VTA shooter on his way back from a trip to the Philippines after finding books on terrorism in his possession, as well as hand-written notes professing his hatred for the VTA.

Ting acknowledges the law has its limits, and that it's impossible to say whether it would have prevented the VTA shooting.

"Gun violence restraining orders are not a panacea. They're a tool," he said.

GVROs are actually most commonly used to prevent suicides — which account for the majority of gun deaths in California — and shootings in domestic violence cases. But the law doesn't necessarily protect the person reporting the potential threat, according to Esther Peralez-Dieckmann, executive director of the San Jose nonprofit Next Door Solutions to Domestic Violence.

"We find that people who perpetrate violence are very focused on hurting and abusing the victim," she said. "They're not necessarily concerned about the restraining order."

She adds there are multiple reasons why a victim might not want to request this type of order. For one, the victim may be undocumented, or otherwise wary of interaction with law enforcement. Also, getting a GVRO approved by a judge requires evidence of abuse, something a survivor might not have available on hand.

Complicating matters further, the abuser may be in a profession that requires operating a firearm, Peralez-Dieckmann noted.

"That definitely is something in the mind of the survivor, because in many cases, the survivor is financially dependent on the person inflicting the abuse," she said.

Peralez-Dieckmann says her goal is stopping the cycle of violence before it escalates to the point that someone feels the need to invoke the red flag law — or wishes they had after the fact.

"How do you prevent violence?" Peralez-Dieckmann said. "Because it is a learned behavior. And what the studies show is that in some of these situations, perpetrators were exposed to violence much earlier in life. Either they were children who were somehow exposed to abuse or observed domestic violence."