There were four more requests for gun violence restraining orders on Jeff Brooker’s desk when he arrived at the San Diego City Attorney’s Office that July morning.
Officers had responded to a minor car crash at a mall where the driver, who carried a replica firearm, was rambling delusionally and threatening to kill the “one-percenters” and a public official. Another man, during an argument outside a family member’s home, had pulled a gun out of his waistband and pointed it at someone’s head as several others looked on.
It was not an unusual number of new cases for the department’s eight-member gun violence restraining order unit, which Brooker oversees. In an average week, they triage 30 referrals from local police, reviewing scenarios in which officers believe a resident is at risk of committing gun violence.
About a third of the time — in those instances when the person clearly poses a danger to themselves or others, and they aren’t already prohibited from possessing weapons for another reason — the office will petition a judge to temporarily seize their firearms, under a six-year-old California statute that was among the country’s first “red flag” laws.
More than 1,250 times since the end of 2017, when San Diego City Attorney Mara Elliott launched the pioneering unit, Brooker’s team has successfully filed a gun violence restraining order, leading to the seizure, as of April, of nearly 1,600 firearms from 865 people — far more than any other agency in the state. An estimated one-third of the weapons, most of which are handguns, have since been returned to the owners.
“Do you believe this person should have a gun? Your own sense is the best test,” said Brooker, who employs a cable television thought experiment to illustrate how he tries to depoliticize the highly charged red flag law: If a case hypothetically turns into a major news story, how might it be covered by both liberal MSNBC host Rachel Maddow and conservative Fox News anchor Sean Hannity?
“If this is a case they can agree on, this is the kind of case we’re going to file,” Brooker said.
These red flag laws, touted by advocates as one of the best tools available to prevent gun violence, received a renewed push this summer after a mass shooting at an elementary school in Uvalde, Texas, left 19 students and two teachers dead.
Congress responded by passing rare gun safety legislation, with bipartisan support, that could provide hundreds of millions of dollars to help states adopt or expand their own red flag laws. Nineteen states and the District of Columbia already have laws, but a recent analysis by the Associated Press found that many of those are barely used.
In California, which ranked seventh in number of cases per capita, San Diego has been a model.
With many jurisdictions still slow to adopt the use of gun violence restraining orders, the Governor’s Office of Emergency Services announced in July that it would provide $1 million to the San Diego City Attorney’s Office to expand its training efforts to other law enforcement groups.
“We must work together to make sure our gun safety and red flag laws are being used to protect our communities. They’re being underutilized,” Attorney General Rob Bonta said at a joint press conference with Elliott last month. “Others should take San Diego’s lead — be aggressive, use the tool that is there.”
A pioneering program
While the California law allows police, close family members, housemates, employers, co-workers and school officials to seek a gun violence restraining order for someone they believe poses a danger to themselves or others, nearly all cases in the state are initiated by law enforcement. Assembly Bill 2870, now before Gov. Gavin Newsom, would expand the list of eligible petitioners to include more family members and people who are dating or share children with the gun owner.
A judge can immediately order the person to relinquish their guns and declare them ineligible to purchase firearms and ammunition for three weeks or, after a hearing, extend the ban to as long as five years. The person can then petition once a year to lift the order and have their weapons returned.
Under Elliott, San Diego has invested in its red flag program like nowhere else in California, with close coordination between the city attorney’s office and the police department to streamline the process for obtaining an order. Brooker’s team includes three attorneys, a paralegal, a legal secretary, a police officer and two retired police officers who work part-time as investigators, preparing cases for review.
Petitions for orders arrive around the clock, Brooker said. While police can obtain an emergency order directly from a judge to take someone’s firearms for 21 days, the city attorney’s office steps in to decide whether to pursue a longer-term seizure of a year or more. Brooker’s team is in court every morning filing paperwork and conducting hearings for new cases or existing orders that are expiring.
The investigators had already been in for several hours when Brooker arrived at their fifth-floor office, overlooking Civic Center Plaza in downtown San Diego. Informational packets were ready for several new petitions that had come in overnight.
Brooker’s corner office overflows with “Star Wars” memorabilia, including a signed poster of Princess Leia and an Obi-Wan Kenobi T-shirt sharing a coat rack with his jackets and ties. On his bookshelf, a tome about the original Star Wars trilogy abuts Shakespeare’s collected works and a copy of the Constitution.
His team’s goal is only to remove guns from a situation until it can be made safe, Brooker said, so sometimes they work with a person on a plan to return their firearms, rather than requesting to extend the order.
This is more common for threats of suicide, when the gun violence restraining order can provide someone with time to cool off and stabilize. If drug or alcohol abuse is involved, or if a person seems to have deeper mental disorders, Brooker said his team will likely ask for a longer seizure of their weapons.
“They’re not all bad people or criminals,” he said. “Some of them are just going through a period of crisis.”
Taking a cautious approach
The most common types of cases depend on what’s happening in the world. Brooker said that domestic violence, suicide, child abuse, protest threats and social media threats all picked up during the coronavirus pandemic. Around holidays, there are more domestic violence and suicide cases, while after any mass shooting, there are many potential copycats.
“If there was ever a time I was rethinking my life and career, it was in that month after Uvalde,” Brooker said. Schools were going into lockdown every day, graduations were being threatened and his team was out every night executing search warrants for weapons that a judge had ordered removed.
Brooker said he takes a cautious approach to filing cases, because he is concerned about blowback from gun rights advocates. Every petition is investigated by the retired police officers to ensure that the potential threat is not based on unvetted evidence or an old history of violence.
“I know they’re waiting for us to file one bad case so they can jump all over us,” he said. “That’s the case that’s going to bite us.”
Though the red flag law has not encountered widespread resistance in California, it does remain deeply controversial with gun rights activists. Critics argue that the law violates due process rights by allowing a judge to order someone’s firearms removed before they’ve ever had a chance to defend themselves and by requiring that person to go to court to get their weapons back. Groups across the country are eyeing new legal challenges to red flag laws, which have been consistently upheld in court, following a summer Supreme Court ruling that strengthened gun rights.
Sam Paredes, executive director of the advocacy group Gun Owners of California, called the law an “insincere” attempt to deal with gun violence, without dealing with the underlying mental health issues or other dangerous situations.
“We don’t have an issue with trying to deal with people who are identified as a danger to themselves or others. We have an existing procedure to deal with that all the way,” Paredes said. “Gun violence restraining orders or red flag laws are nothing more than a political football that is being thrown around the field.”
Considered in court
When Brooker and a colleague arrived at the county courthouse at 9 a.m., they were ushered into the courtroom by the bailiff, who informed Brooker that none of his respondents had checked in yet.
“Good, because I’ve got two dismissals and a continuance today,” Brooker replied.
While Superior Court Judge Adelaida Lopez led the parties and witnesses through an oath, Brooker was on his phone, writing notes about how he expected the cases to go and taking another quick read of the files to be prepared for any questions. In between, he checked his email and snuck a peek at a few photos from his son who had just moved to Switzerland for college.
Brooker’s cases were among the first to be heard. In one, a man had told police he was trying to drink himself to death. While he didn’t have any firearms that the officers knew of, they wanted to obtain a gun violence restraining order to prevent the man from legally buying one in a moment of desperation.
Brooker asked for another continuance, giving his office more time to serve the defendant with a notice of the hearing.
“We tried him using soft contacts first for officer safety and obvious reasons, so there is due diligence, I can assure you,” Brooker said.
Lopez granted another 21-day continuance. Then Brooker moved to his next case, where the defendant had also been put under a mental health hold, which would prohibit him from possessing firearms and make a gun violence restraining order unnecessary.
“I think we can take it off the calendar. And will that result in a dismissal?” Lopez said. “Item 32 is dismissed. That protective order is dissolved.”
“Very good. Thank you, Your Honor,” Brooker said. The whole proceeding took less than five minutes.
