New Suit In CA Shows What Happens When Restraining Orders Are Abused

Photo Courtesy of the National Shooting Sports Foundation

On August 30, 2021 a lawsuit was filed challenging California’s restraining order law and the forced forfeiture of firearms in these instances. The lawsuit was filed by the Second Amendment Law Center and the California Rifle and Pistol Association. The details of what lead up to this complaint are something out of a bad soap opera. From a press release on October 12th, we get a very interesting and compelling glimpse into what many would consider a horror story. The situation has plenty of elements to make up a good drama sans a love affair. From the release:

Imagine living in the same house with your spouse for over 50 years. Your front lawn has a sapling that, over the course of time, has grown into a beautifully tall tree. But the neighbor next door who moved in just a few years ago doesn’t like the tree, so she conspires to falsely accuse you of assault and battery after you refuse to remove it. You get arrested as a result. She then seeks a restraining order against you based on her false allegations, files both a civil case and small claims case against you, and to top it all off, California law takes away your right to own or possess firearms in connection with the restraining order—before you even have a chance to respond.

Think it can’t happen? Well, that is exactly what happened to Richard and Miranda Wallingford. Only their story gets much, much worse.

That is the beginning of the Wallingford’s story. The release goes on to chronical several other alleged actions and events that build up to the Wallingfords eventually getting their firearms returned, but the neighbor files another restraining order. The details around that second restraining order show how much a clerical error or not keeping mentally sharp when reading things can make a situation completely FUBAR.

Astoundingly, the court granted the neighbor a temporary restraining order, resulting in the Wallingford’s once again losing their Second Amendment rights until a formal hearing could be held. Worse still, the court later recognized that it mistakenly read the neighbor’s petition to include new allegations of assault—not the same allegations raised previously. Had it not made this mistake, it would not have issued a temporary restraining order. Nevertheless, the court refused to dissolve the temporary restraining order until a formal hearing could be held 60 days later.

The court screwed up and did not care to make good on their mistake, so apparently the Wallingfords have to deal with what we can consider a mangled due process, while they’re stripped of their Second Amendment rights. Throughout the ordeal they did file for their own restraining order which the details of are also interesting:

Although the court ultimately granted the Wallingford’s petition for a restraining order against the neighbor because it found “no legitimate purpose to making a throat-slashing gesture towards [the Wallingford’s] security cameras, or to mooning the cameras, spraying the cameras with water, or other similar conduct,” the court also found the Wallingford’s security cameras constituted harassment. But the court also expressly noted the cameras “have since been repositioned such that they point only at areas of the [neighbor’s] residence in public view, which the court finds acceptable.” Nevertheless, the court issued a three-year restraining order against them—despite no other findings of harassing behavior or that the Wallingfords are a danger to the public or to themselves. What’s more, there was no evidence that the Wallingfords were directly involved in the installation of the cameras to begin with.

Yeah, that’s correct, the Wallingfords had security cameras installed and the neighbor considered that harassment. The mere presence of the cameras presumably installed in a manner that was legal was harassment while the neighbor exposes her posterior to it. Somehow this does not meet the reasonable man test. But this is California we’re talking about.

Directly from the complaint we can get to the core of this situation:

California has adopted laws making it unlawful for any person against whom a court issues a civil restraining order to possess or acquire firearms or ammunition, without exception. In other words, individuals subject to such orders are wholly denied exercise of their Second Amendment rights, regardless of the reason(s) for which the order issues. Prohibiting access to arms for individuals subject to a restraining order may very well pass constitutional muster in a variety of instances. Because, however, California superior courts have such wide discretion to issue those orders without any findings that the restrained person poses a danger of any kind, there are certainly instances where such a prohibition is unconstitutionally excessive. That is precisely the case here.

In sum, California’s complete restriction on firearm or ammunition possession and acquisition by any person subject to a civil restraining order, regardless of the basis for the order, is unconstitutional as applied to Plaintiffs. As such, Plaintiffs ask this Court to declare the Challenged Provisions unconstitutional as applied to Plaintiffs and to enjoin California’s enforcement of the Challenged Provisions against Plaintiffs, thereby allowing Plaintiffs to be able to possess and acquire firearms and ammunition, as is their constitutional right under the Second Amendment.

This really is a situation that should raise a flag. A red flag? The presumed details of this case are exactly the arguments that many freedom defending advocates have made against so-called “red flag” or extreme risk protective orders. While this situation revolves around the restraining order laws and not any “red flag” law, the reasoning against such provisions are the same. There were allegations a neighbor made against another. There was an arrest. There was a kerfuffle. Zooming out and looking at the details as laid out in the press release and complaint, this does certainly look like a case of someone making false statements against others. There is also video evidence to corroborate the Wallingfords claims, or at least prove that “someone” in this equation might be acting in an imbalanced manner. The Wallingfords were issued their three year restraining order against their neighbor and yet they need to remain disarmed due to a clerical mistake. If this does not scream constitutional injustice, I’m not quite sure what would.

The details of this case and how it’s going to transpire are quite interesting. The Wallingfords have requested an injunction against the order and their hearing is November 1st. With every bit of  luck the court will see the error and then reinstate the Wallingfords Second Amendment rights. The last line of the Wallingfords “Prayer for Relief” is something customary in many lawsuits. However, given the details of this egregious situation, I do hope the court will indeed grant “any other relief the Court deems just and proper” given these infringements: