California’s Broader Protection Orders Likely Won’t Stand Up, Even After Rahimi

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The [Rahimi] decision, however, does not validate all restraining order statutes. Consider, for instance, California Code of Civil Procedure § 527.6; that statute authorizes “harassment restraining orders” based on “clear and convincing evidence” of “harassment,” which includes not just “unlawful violence” or “a credible threat of violence,” but also (emphasis added)

a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.

{“Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of “course of conduct.”}

Courts have sometimes issued such harassment restraining orders based just on repeated online public criticism, or other offensive speech, with no findings of “credible threat to the physical safety of others.” (See the recent post on Adams v. GulleyCalifornia Judge Orders Removal of Reddit Criticism of Scientist/Consultant Who Publicly Criticized English Lucy Letby Murder Trial.) And California law categorically mandates that “The court shall order a person subject to a protective order issued pursuant to this section to relinquish any firearms” (as indeed happened in Adams v. Gulley). Such orders, issued in the absence of any finding of threat to physical safety, should remain challengeable under the Second Amendment.

— Eugene Volokh in Some Takeaways from Today’s Rahimi Second Amendment Opinions

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