California starts slowly on seizing unstable people's guns, but that could change

SACRAMENTO, Calif. -- The young man had posted his revenge fantasies online, writing about how he wanted to shoot classmates at his community college. The 21-year-old had recently bought a gun, his brother told police.

But University of California at Davis psychiatrist Amy Barnhorst said there was little she could do when police, fearing that the man posed a danger to the community, brought him to the Sacramento-area hospital where she works. He wasn't mentally ill, she concluded, so he couldn't be held involuntarily. And without such a diagnosis, and no evidence he'd committed a crime, police couldn't take his gun away.

When the man walked out the door, Barnhorst wondered whether she was watching the next school shooter go free.

There's a gap between the criminal justice and mental health systems, Barnhorst says: Too many people who are unstable have access to guns, but that instability doesn't rise to the level where they can be committed. ``I see patients like this all the time,'' she said.

In those moments, Barnhorst says, she points frantic parents and concerned police to a 2-year-old law that allows them to petition a court to temporarily remove guns from someone if they pose a danger to themselves or others.

State Sen. Nancy Skinner, D-Berkeley, wrote the law after a 22-year-old man killed six people in Isla Vista near UC Santa Barbara in 2014. The killer's mother had expressed concerns about his mental health after seeing his online postings.

``She knew that he was at risk to commit violence against others,'' Skinner said. ``She called law enforcement. Law enforcement did what they could, and they were unable to do more than just a welfare check on him.''

The California law allows immediate family members, current roommates and law enforcement officers to petition a court to remove guns from a person for up to a year. The process is similar to obtaining a domestic violence restraining order. People who are subject to what's called a gun violence restraining order are also barred from buying firearms or ammunition.

Five other states have similar laws -- Florida, Oregon, Washington, Indiana and Connecticut. Florida's law was signed this year in response to the shooting deaths of 17 students and staff members at a high school in Parkland. Acquaintances of the shooter reported warning signs and said they were worried about his access to guns. Experts said a firearm restraining order could have kept the gunman from buying weapons.

California's law has seldom been used in its first two years. Advocates say it just needs time to catch on. In the meantime, efforts are under way in the Legislature to expand the number of people who could go to court to try to take someone's guns away to include co-workers and teachers.

That angers gun rights advocates, who say the law goes too far already. When a judge grants a restraining order, a gun owner has to surrender his or her weapon for 21 days while awaiting a hearing on whether the order will be extended for a full year. That's not how due process works, said Craig DeLuz of the Firearms Policy Coalition, which advocates for gun owners.

``Due process that occurs after one's rights have been taken away is in fact not due process,'' DeLuz said.

Statewide, 189 petitions for gun violence restraining orders were granted in 2016 and 2017, state Justice Department figures show. Family members accounted for just 12 of those -- the rest of the requests came from law enforcement.

Twenty-nine of the orders were issued in the nine Bay Area counties, all at the request of police. Santa Clara County had the highest total, 11. San Francisco, San Mateo, Sonoma and Napa counties had zero.

It's unclear how many petitions for restraining orders were denied.

``I think (restraining orders) will eventually be much more common,'' said Garen Wintemute, an emergency room doctor at UC Davis Medical Center in Sacramento and director of the University of California Firearm Violence Research Center.

Before the law's passage, officers could confiscate guns only from people who were felons, had a record of mental instability or had domestic violence restraining orders against them.

``There are efforts to increase awareness and use,'' Wintemute said. ``But they haven't been as large-scale or successful as anyone would want.''

Still, he said, each time a gun violence restraining order is granted amounts to a victory. ``It's designed to work one case at a time,'' Wintemute said.

The Santa Barbara County Sheriff's Department has been one of the most aggressive agencies in pursuing restraining orders. In January 2016, shortly after the law took effect, sheriff's officials went to court to confiscate guns from a 34-year-old Goleta woman who had threatened suicide. Three months later, they used the law to take guns away from a 59-year-old woman who had threatened to shoot a co-worker after being fired.

In all, law enforcement in Santa Barbara County obtained 21 gun restraining orders in 2016-17, second in the state to Los Angeles County, which took guns away from 28 people.

Santa Barbara County sheriff's Lt. Eddie Hsueh said the department has been proactive in using firearm restraining orders because authorities there know too well what can happen without them.

``In our county, we've had unfortunately more than our fair share of instances involving gun violence,'' he said, referring to the Isla Vista killings and a 2006 shooting at a mail facility in Goleta by a former postal worker who believed her colleagues were conspiring against her.

San Diego County used the law only three times in 2016, then 12 times last year. One of the targets was an ex-Marine who was convinced people were trying to harm him and he walked into an auto parts store with a loaded gun. Another was an 81-year-old man in the early stages of dementia who threatened to shoot his 75-year-old wife and a neighbor because he thought they were having an affair.

San Diego City Attorney Mara Elliott developed an aggressive strategy last year to centralize how law enforcement obtains the protective orders, with city attorneys filing the petitions on behalf of officers. She said it took some time to train officers, court staff and others on the new law.

``We think the law is working very well,'' Elliott said. ``It fills a hole. We used to have to wait for something awful to happen, a tragedy to happen. Now, we can act before the tragedy happens. That's the power of this tool.''

There are efforts under way to expand the law. Skinner, the Berkeley senator who wrote the original bill, wants to eliminate court fees for immediate family members who go to court. Assemblyman Phil Ting, D-San Francisco, would expand the list of people who can seek the orders to include co-workers, employers, and public and private schoolteachers and other school workers.

The Legislature passed a bill similar to Ting's AB2888 in 2016, but Gov. Jerry Brown vetoed it, saying it was too soon to expand a law that had just taken effect.

``Gun violence restraining orders have proven to be a tool that can be used to get guns out of the hands of wrong people,'' Ting said at a Capitol hearing last month. ``We've seen, unfortunately, the devastating effects of mass shootings when guns are in the hands of wrong people. This just merely expands it to the people who are around individuals the most, people you go to school with, it's people who you work with.''

The bill is opposed by both the American Civil Liberties Union and National Rifle Association -- an unlikely pairing in the state Capitol.

Lizzie Buchen, a legislative advocate for the ACLU of California, said expanding the law to include co-workers, employers and school employees would make it prone to abuse.

``Given the climate that we're in, I think we can still imagine a person holding an irrational fear or bias against a co-worker because of their race, because of their religion, because of their nation of origin,'' Buchen said.

Ting's bill would allow a person who knows little about a colleague to seek a gun restraining order, she said. The current law is narrow enough that only people familiar with a gun owner -- a close relative, current roommate or a law enforcement investigator -- can bring a case, which is why the ACLU didn't oppose it, Buchen said.

``We are not opposed to removing guns from people who are a risk to themselves or others, provided there are nondiscriminatory criteria and that there's sufficient due process,'' Buchen said.

In March, reacting to pressure after the Florida killings, the NRA signaled support for limited uses of gun violence restraining orders. The organization had long opposed such efforts.

At a hearing last month in Sacramento, Dan Reid, an NRA lobbyist, said he agreed with the ACLU's concerns about expanding the law. He added that the NRA is ``open to discussing'' ways to improve the process for obtaining a gun restraining order, ``but due process needs to be there.''