California Senate Passes “Red Flag” Gun Law Activists Claim Violate Constitutional Rights


September 5, 2019

For more information, contact:

Jeremy Hinkson, President

Phone: (916) 426-9338, ext. 511 / Fax: (916) 426-9340 / Email: [email protected]

“Red flag” gun bill civil rights advocates say chills free speech and violates constitutional rights was passed on the Senate floor by Democratic lawmakers Wednesday, September 4th; Governor Newsom expected to sign into law.

Sacramento, CA—Democratic lawmakers in the California State Senate passed Assembly Bill 61 (AB 61) (Ting-D) around 3:00 PM, Wednesday afternoon. The bill was presented by Senator Nancy Skinner (D), whose district includes the East Bay communities of Richmond, Berkeley, Oakland, and San Leandro, and seeks to empower coworkers and employers to file Gun Violence Restraining Orders (GVRO) against anyone they might suspect as a danger to themselves or others, even if that belief or fear later turns out to be false or unreasonable.

The CCLA and other civil rights organizations have expressed strong opposition to AB 61. Most notably, the CCLA has expressed concerns over “swatting,” which occurs when a disgruntled party makes a false report to the police that someone else has a gun and is a threat to others. An unarmed Kansas man was killed by police when someone issued a false report (including a mistaken address) that erupted over an online gaming dispute. Parkland shooting survivor and activist David Hogg was the target of one such attempt last year but was not at home during the encounter.

“We are particularly concerned about the chilling effect this could have on the political speech of gun owners,” said Legislative Director Matty Hyatt, “but even unarmed people have been targeted by the practice known as ‘swatting,’ and so we’re afraid that people with racial bias may also abuse these orders to harass minorities and people of colour.” He continued that “. . . because ex parte orders can be issued on a lower evidentiary threshold than law enforcement is required to meet, we have the perfect catalyst for the government to invade peoples’ homes without probable cause and seize property subject to the plain view doctrine. The restrained person is given no notice and, therefore, has no right to demand a warrant or retain the counsel of an attorney prior to the search.”

Additionally, the CCLA claims that, because cannabis is still a Schedule I drug under federal law, being in possession of both cannabis and a firearm can technically result in up to ten years in prison if the Trump administration reverses its decision not to prosecute people for cannabis possession. But on the other hand, when state-legal cannabis users apply to purchase a firearm, ATF Form 4473 asks if the applicant is an “unlawful user of, or addicted to, marijuana.” So if a state-legal cannabis user answers falsely, they could still be prosecuted for perjury and face up to ten years in federal prison.

“We will revisit this policy in the upcoming year,” said CCLA lobbyist Nicholas Gonzales, “as we now hope to amend the current language to remove the ex parte component; we are considering an expedited hearing process, among other proposals.”

The bill is now on its way back to the Assembly for concurrence of Senate amendments; once passed from the Assembly, AB 61 will head to Governor Gavin Newsom’s desk, who has expressed support for such “red flag” laws. Anyone who is concerned about the bill is encouraged to write and call the Governor’s office to urge a veto.

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The California Civil Liberties Advocacy (CCLA) is a statewide, nonprofit, civil rights organization. We proudly and boldly speak for the rights of all people residing in the State of California—whose rights are systematically stripped by the noise of special interests, corporations, and other institutions of power. The CCLA seeks to educate and empower constituents to learn the public policy process, so that they may speak for themselves and engage more directly with their elected officials.