Order Barring Gun Possession May Be Based on Hearsay

Tuesday, December 20, 2022

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Court of Appeal:

Order Barring Gun Possession
May Be Based on Hearsay

Dissenter
Says This Breaches Statute Rendering Hearsay Inadmissible Absent Statutory
Authorization

By
a MetNews Staff Writer

Div.
One of the Fourth District Court of Appeal yesterday upheld an order barring a
man from owning or possessing a firearm or ammunition for a one-year period,
rejecting his contention that the order was improperly predicated on hearsay.

Affirmance
came in a 2-1 decision with Justice Martin N. Buchanan writing for the majority
and Justice William Dato dissenting.

Buchanan
took the stance that Penal Code §18175, which authorizes issuance of a gun violence
restraining order (“GVRO”), calls for the admission of “any evidence,”
observing that “ ‘[h]earsay evidence’ is evidence,” while Dato insisted that
the majority fails to adhere to Evidence Code which, he wrote, “succinctly states
the generally applicable rule, ‘Except as provided by law, hearsay evidence is
inadmissible.’ ”

Police Department Petition

Yesterday’s
opinions stem from a petition filed by the San Diego Police Department on April
22, 2020 to have a GVRO imposed on realtor Geoffrey Shiering. A declaration by
Detective Justin Garlow set forth:

“Based
on the content of the attached reports, I hold the opinion that a GVRO is
necessary to protect the public and prevent harm to the respondent or others.
There are no less restrictive means to ensure public safety.”

The
reports tell of various contacts with Shiering reflecting his views that the
COVID-19 crisis was trumped up with Bill Gates seeking to have the populace
inoculated “nanotechnology” to enable tracking of persons by 5G towers.

Buchanan
acknowledged that “[t]he only evidence the Department submitted in support of
the GVRO petition was the attached declaration of Detective Garlow and hearsay
police reports.”

2011 Decision

That
was sufficient, he declared, pointing out that in 2011, the Fourth District’s
Div. One filed its opinion in In Kaiser Foundation Hospitals v.
Wilson holding that hearsay evidence is admissible at a hearing on a
petition for a workplace violence restraining order (“WVRO”) and that other
panels have approved of the use of hearsay to support a civil harassment
restraining order (“CHRO”)

The
opinion in Kaiser was written by Justice Cynthia Aaron, who signed
yesterday’s majority opinion. There, she said:

“The
plain language of this provision suggests that the Legislature intended to
permit a trial court to consider all relevant evidence, including hearsay evidence,
when deciding whether to issue an injunction to prevent workplace violence
pursuant to [Code of Civil Procedure] section 527.8.”

Kaiser Is Applicable

Buchanan
said, in his opinion affirming the GVRO granted by San Diego Superior Court
Judge Judy S. Bae:

“We
now conclude that the rationale of Kaiser also
applies to a GVRO hearing under section 18175. Based on the language, purpose,
and legislative history of the GVRO statute, and its similarity to the WVRO and
CHRO statutes, we hold that hearsay evidence is admissible at a GVRO hearing.”

Sec.
18175 says, in subs. (a) that “[i]n determining whether to issue a gun violence
restraining order under this chapter, the court shall consider evidence of the
facts” as identified in another section “and may consider any other evidence of
an increased risk for violence….”

Buchanan
wrote:

“Just
as the WVRO statute at issue in Kaiser
permits ‘any testimony that is relevant’…, the GVRO statute permits a
court to consider ‘any other evidence of an increased risk for violence’…—and does
so ‘without limitation’ and ‘without qualification.’…For purposes of resolving
the hearsay issue, we perceive no meaningful distinction between the WVRO
phrase ‘any testimony that is relevant’…and the GVRO phrase ‘any other evidence
of an increased risk for violence.’ ”

Sec.
18175(b) provides that the petitioner must make a showing “by clear and
convincing evidence.” Buchannan remarked:

“We
recognize that a GVRO proceeding implicates the Second Amendment right to bear
arms. But the Second Amendment has nothing to say about the admissibility of
hearsay evidence. The Legislature has accounted for the importance of the right
at stake by mandating a clear and convincing standard of proof. (§ 18175, subd.
(b).) The clear and convincing evidence standard reduces the risk of error when
particularly important individual interests are at stake, such as parental
rights, involuntary commitment, and deportation.”

Dato’s Dissent

Dato
said in his dissent:

“It
is true that as to one narrow category of hearsay evidence in GVRO proceedings,
the Legislature did recognize an explicit exception to the hearsay rule.
Subdivision (b)(2)(F) of section 18155 expressly permits the court to consider
‘[d]ocumentary evidence, including, but not limited to, police reports and
records of convictions, of either recent criminal offenses by the subject of
the petition that involve controlled substances or alcohol or ongoing abuse of
controlled substances or alcohol by the subject of the petition.’ The majority
opinion construes this express hearsay exception as a ‘signal’ that the terms
‘evidence’ and ‘any other evidence’ in section 18175 include hearsay evidence….I
believe the more compelling inference is that the Legislature never intended
hearsay to be fully admissible under section 18175, subdivision (a). If it had,
there would be no need to carve out a specific hearsay exception for
documentary evidence, and the exception under section 18155, subd. (b)(2)(F)
would be superfluous.”

Pointing
to the general bar against use of hearsay evidence, he commented:

“Where
the Legislature has crafted a rule of general application, based on principles
of due process, that it has expressly decreed should be applied except as
provided otherwise, we should be certain the Legislature has in fact provided
otherwise. Unlike the majority, I find the evidence of such a legislative
intent in the GVRO statutes thin and unconvincing at best. And the Kaiser
decision, interpreting a different statute addressing a different issue using
different language, cannot supply what the Legislature has failed to provide.”

Mootness of Appeal

The
GVRO imposed on Shiering has expired and was not renewed. One reason Buchannan
provided for not dismissing the appeal as moot was that Shiering “asserts that
as a result of the restraining order, he faces an investigation by the Ohio
State Bar where he is currently licensed and in good standing” and “[a]n appeal
from an expired restraining order is not moot if it could have collateral
consequences in future proceedings.”

However,
the Ohio Board of Professional Conduct dismissed the proceeding against
Shiering on Sept. 8 upon recommendation of disciplinary counsel, whose
memorandum said:

“On
June 30, 2022, the panel chair issued an order directing respondent to undergo
a mental health examination. Subsequent to that examination, the mental health
professionals submitted a report to the Board of Professional Conduct on August
9, 2022. Based upon the findings of the mental health professionals that
conducted respondent’s examination, relator stipulates that there is not
sufficient evidence to proceed on its sole allegation that respondent suffers
from a mental illness that substantially impairs his ability to practice law.
Accordingly, relator moves to dismiss this matter.”

The
case is San Diego Police Department v. Geoffrey S.,
2022 S.O.S. 6142.