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Thursday, April 2, 2020

Gun Violence Restraining Order

Gun Violence Restraining Order 

This is a court order that prohibits someone from having any guns, ammunition, or magazines (ammunition feeding devices). The person must surrender all guns, ammunition, and magazines that he or she currently owns if the Order is granted. You can ask for one against a person who is an immediate family member. Immediate family members include: (1) your spouse or domestic partner; (2) your parents, children, siblings, grandparents, and grandchildren and their spouses, including any stepparent or step grandparent; (3) your spouse’s parents, children (your stepchildren), siblings, grandparents, and grandchildren; and (4) any other person who regularly resides in the household, or who, within the last six months, regularly resided in the household. If you do not have the necessary relationship, advise a law enforcement officer of the situation. The officer may investigate and file the petition if he or she finds that the grounds exist.

You and your lawyer will have to convince the judge that the person to be restrained poses a significant danger in the near future of causing personal injury to himself, herself, or another person by having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms, ammunition, or magazines. The Judge will also have to be convinced that a gun violence restraining order is needed to prevent personal injury to the person to be restrained or to another person because less restrictive alternatives either have been tried and haven’t worked, or are inadequate or inappropriate for the current circumstances.

The Judge will need to be provided specific information. (1) You should tell the judge everything that you know about the firearms, ammunition or magazines that the person to be restrained currently owns, including how many the person owns, the types, and where they are kept. (2) Then you will need to present facts to show that the person to be restrained is dangerous. This could be information about any threat of violence that the person to be restrained has made, any violent incident in which the person has been involved, or any crime of violence the person has committed. It could also be evidence that the person to be restrained has violated a protective order or abuses controlled substances or alcohol. It could also be evidence of the unlawful and reckless use, display, or brandishing of a firearm or the recent acquisition of a firearm. Or it could be evidence that the person to be restrained has been identified by a mental health provider as someone prohibited from purchasing, possessing or controlling any firearms.

The process for obtaining the Gun Violence Restraining Order is the same as for the other Restraining Orders: First the party asking for the order submits a Temporary Restraining Order (TRO) request through their attorney which usually includes a statement from the party describing what is happening and why they want the Order. Generally, the Judge only looks at the Petitioner’s request for a TRO and makes a decision without a hearing and without input from the other party. However, a declaration should be submitted from the Petitioner laying out all the reasons for request. The other party does not need to be advised of the TRO request. If the court grants the TRO (and also if it denies the TRO) a hearing is held 21-25 days later. At that hearing both sides may put on witnesses or other evidence to prove/disprove the case. If a Restraining Order is granted at that later hearing it can last for 3 years or longer and be renewed with good cause by the Petitioner. The granting of a permanent Restraining Order designates the person restrained as a violent person and appears on background checks similar to a criminal conviction. Even if no criminal case is filed against the person who committed the misconduct, the court can still find there is enough evidence to grant a Gun Violence Restraining Order. Attorney Will Bruzzo has successfully represented many clients on both sides of various types of Restraining Orders and is ready to represent you and offer a free consult. Tel. (714) 547 4636

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