One of the biggest problems with red flag laws is that they allow the government to take guns from people who have not been convicted of doing anything, not even making threatening noises. Such an order should make people very nervous. If they can infringe on the Second Amendment rights of an individual on such minimal evidence, particularly with the individual in question not even present to defend themselves, what other rights can they trample on?
To try and mitigate those concerns, lawmakers often put a limit on how long someone’s guns can be held before they get their day in court. In California, it’s 21 days. Three weeks of being treated like a criminal based despite no due process of law.
Pretty bad, right?
Well, it just got worse.
A state with one of the worst “Red Flag” gun confiscation laws on the books just got worse. On April 13, California Attorney General Xavier Becerra issued a guidance document on the procedures concerning certain types of restraining orders. Citing the ongoing COVID-19 panic, Becerra noted that all ex parte Gun Violence Restraining Orders (EGVROs) are to be extended 90 days past the statutory expiration date. Under state law, such orders expire after 21 days – meaning that an ex parte GVRO may now last up to 110 days. California’s latest attack on gun rights and due process should serve as a warning to gun owners across the country about the dangers inherent to “Red Flag” gun confiscation laws.
However, Becerra has adopted an interpretation of state law that requires a full GVRO hearing to take place before an ex parte or temporary emergency GVRO expires during a judicial emergency. In his guidance, Becerra’s office noted “[d]uring the COVID-19 statewide emergency, all gun violence orders issued or set to expire will be extended up to 90 days to allow the matter to be heard by the court.” Cal.Gov.Code §68115 provides that during “judicial emergencies” the courts may “[e]xtend the duration of any temporary restraining order that would otherwise expire because an emergency condition, as described in this section, prevented the court from conducting proceedings to determine whether a permanent order should be entered.The extension shall be for the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council.”
So Becerra has taken an already unconstitutional law and unilaterally extended it so that people are deprived of their Second Amendment rights for nearly three months instead of the three weeks mandated by law.
Further, technology has given the government tools to keep judicial matters moving during this interesting time. Hearings can be held remotely, thus allowing them to continue forward.
Plus, based on that reading, I’m not sure Becerra has the authority to make that determination. The quoted bit of law notes that the duration of the extension should be determined by the “Hariperson of the Judicial Council.” At the moment, that’s not Xavier Becerra but California State Supreme Court Chief Justice Tani G. Cantil-Sakauye. It should like it should be Cantil-Sakauye’s call as to whether ex parte red flag orders should be extended.
Not that I see the chief justice being any better about the topic than Becerra, mind you, but still…
Regardless, this is proof that not even COVID-19 will stop the state of California from trampling on people’s gun rights even more than they usually do.