While the wasteful allocation of $24 million to seize the private property of gun owners is a sad indication of lack of respect for the rights of private citizens, the 4th and 5th amendment challenges to California Assembly Bill 1014 are just in the beginning stages. The cost of litigation and damages will likely make the $24 million pale in comparison. Based on the initial reports, the lack of a warrant in the attempted seizure is also causing significant problems. Rather than letting that make them stop and think, the usual suspects are trying to create a new law.
Nancy Skinner and Das Williams are at it again with their most recent attempt at gun control. As usual, these bills are thrown into the hopper and signed off based on an emotional knee jerk attempt to “do something” rather than an attempt to do something that will actually reduce crime. In this case the academic rigor applied to writing California Assembly Bill 1014 is shockingly lacking. The short answer is the ACLU and liberal left will kill this bill faster than anything the pro gun lobby could possibly do. Here is the play by play for those who do not want to read the entire California Assembly Bill 1014.
“This bill would establish a procedure to obtain a gun violence restraining order and, when applicable, a firearm seizure warrant, when a person poses a significant risk of personal injury to himself or herself or others by possessing a firearm.”
“If it is determined that the person poses a significant risk of personal injury to himself or herself or others by possessing firearms, this bill would require law enforcement to retain the firearm for a period not to exceed one year, would make ownership or possession, the purchase or receipt, or attempted purchase or receipt of a firearm by that person a misdemeanor for a period up to one year, and would require the court to notify the Department of Justice, as specified.”
The first portion of the California Assembly Bill 1014 that makes this unlikely to pass is it creates a state mandated program that local law enforcement must carry out. That requires the state to reimburse local agencies for the cost of enforcement. Adding unknown and substantial expenses to the state budget is truly challenging at this point. That by itself is not the deal killer, but unless a funding mechanism can be identified, it is very unlikely to pass appropriations (which is not indicated as necessary at this point, however, that oversight is highly likely to be rectified if this ever gets to a final draft).
Section 18100 defines a gun violence restraining order as an order by the people of California that a person may no longer possess a firearm. It further defines a firearms seizure warrant as requiring local law enforcement to seize any firearms in the possession of the subject of the warrant.
Section 18101 allows “Any Person” to submit the application for the gun violence restraining order by signing an affidavit. The order shall be issued if the standard “to the satisfaction of the court” is met stating “the named person poses a significant risk of personal injury to himself or herself or others by possessing firearms.”
People seem to be focusing on this element, but the fact is hearsay can used to establish probable cause along with all types of information. In general this is not massively outside the norm for issuing a warrant. The potential for abuse of this by anti-gun activists is pretty high, but generally we entrust magistrates with making reasonable determination as to the validity of affidavits submitted. Here is where it gets interesting:
Section 18102: In considering the validity of the request here are the general things that the magistrate has been directed to consider:
1) Recent threats or act of violence by the named person.
2) Violation of existing protective orders.
3) Violation of any firearms related offense.
4) Reckless use, display or brandishing of a firearm.
5) History of use, attempted or threatened use of physical force.
6) Substance abuse, felonies & past convictions
7) Recent Acquisition of Firearms.
So here is a knee jerk evaluation of what the left will have to deal with to pass this through their side of the legislature:
Fourth Amendment case law has been pretty clear that probable cause is established by the totality of the evidence and not any one specific item, however there are exceptions. Any property, which is to be seized, which is protected by the first amendment (i.e. books, papers or films) has a laundry list of special restrictions. Would second amendment property not also reasonably be expected to have an extensive list of requirements prior to it being seized?
Per the Fifth Amendment under the eminent domain clause, the state does not have the right to deprive citizens of their private property with out “just compensation” for which there is no language or mechanism to do so in the bill. This will be a not insurmountable challenge, but an expensive and time-consuming effort to define public safety as public use. Regardless, we can expect this oversight alone to tie this up in appeals all the way to the Supreme Court, and we have barley even left the opening paragraph.
What is disturbing about this is the consistent, ineffective and seemingly endless stream of ill-considered legislation that continues to be spawned by the extremist left legislators in California. These non-sense bills compound the simple fact that California Gun legislation has not contributed one tangible or traceable statistic to crime prevention, violence prevention – or even reducing “gun violence” in the state. Despite the sweeping and broad ranging restrictions, our statistics remain on par or worse than many of the states in the nation.
California Assembly Bill 1014 will have an uphill fight inside even the extreme left. If passed it will be tied up in appeals for years. I have little fear of this at this point, save the fact that the California legislature is writing blatantly unconstitutional bills that seem to be actually considered. Unlike this particular bill, that penchant is a cause for concern.
~ Patrick Henry
#CaliforniaAssemlyBill1014, #guncontrol, #gunlegislation