{"id":31825,"date":"2022-12-20T18:13:05","date_gmt":"2022-12-20T19:13:05","guid":{"rendered":"https:\/\/peymantaeidi.net\/stem-cell\/?p=31825"},"modified":"2022-12-20T19:36:42","modified_gmt":"2022-12-20T19:36:42","slug":"order-barring-gun-possession-may-be-based-on-hearsay","status":"publish","type":"post","link":"https:\/\/peymantaeidi.net\/stem-cell\/2022\/12\/20\/order-barring-gun-possession-may-be-based-on-hearsay\/","title":{"rendered":"Order Barring Gun Possession May Be Based on Hearsay"},"content":{"rendered":"

Metropolitan News-Enterprise<\/span><\/a><\/p>\n

 <\/span><\/p>\n

Tuesday, December 20, 202<\/span><\/a>2<\/span><\/p>\n

 <\/span><\/p>\n

Page
\n1<\/span><\/p>\n

 <\/span><\/p>\n

Court of Appeal:<\/span><\/u><\/i><\/p>\n

Order Barring Gun Possession
\nMay Be Based on Hearsay<\/span><\/b><\/a><\/p>\n

Dissenter
\nSays This Breaches Statute Rendering Hearsay Inadmissible Absent Statutory
\nAuthorization<\/span><\/i><\/p>\n

 <\/span><\/p>\n

By
\na MetNews Staff Writer<\/span><\/p>\n

 <\/span><\/p>\n

Div.
\nOne of the Fourth District Court of Appeal yesterday upheld an order barring a
\nman from owning or possessing a firearm or ammunition for a one-year period,
\nrejecting his contention that the order was improperly predicated on hearsay.<\/span><\/p>\n

Affirmance
\ncame in a 2-1 decision with Justice Martin N. Buchanan writing for the majority
\nand Justice William Dato dissenting.<\/span><\/p>\n

Buchanan
\ntook the stance that Penal Code \u00a718175, which authorizes issuance of a gun violence
\nrestraining order (\u201cGVRO\u201d), calls for the admission of \u201cany evidence,\u201d
\nobserving that \u201c \u2018[h]earsay evidence\u2019 is evidence,\u201d while Dato insisted that
\nthe majority fails to adhere to Evidence Code which, he wrote, \u201csuccinctly states
\nthe generally applicable rule, \u2018Except as provided by law, hearsay evidence is
\ninadmissible.\u2019 \u201d<\/span><\/p>\n

Police Department Petition<\/span><\/b><\/p>\n

Yesterday\u2019s
\nopinions stem from a petition filed by the San Diego Police Department on April
\n22, 2020 to have a GVRO imposed on realtor Geoffrey Shiering. A declaration by
\nDetective Justin Garlow set forth:<\/span><\/p>\n

\u201cBased
\non the content of the attached reports, I hold the opinion that a GVRO is
\nnecessary to protect the public and prevent harm to the respondent or others.
\nThere are no less restrictive means to ensure public safety.\u201d<\/span><\/p>\n

The
\nreports tell of various contacts with Shiering reflecting his views that the
\nCOVID-19 crisis was trumped up with Bill Gates seeking to have the populace
\ninoculated \u201cnanotechnology\u201d to enable tracking of persons by 5G towers.<\/span><\/p>\n

Buchanan
\nacknowledged that \u201c[t]he only evidence the Department submitted in support of
\nthe GVRO petition was the attached declaration of Detective Garlow and hearsay
\npolice reports.\u201d<\/span><\/p>\n

2011 Decision<\/span><\/b><\/p>\n

That
\nwas sufficient, he declared, pointing out that in 2011, the Fourth District\u2019s
\nDiv. One filed its opinion in <\/span>In Kaiser Foundation Hospitals v.
\nWilson<\/i> <\/span>holding that hearsay evidence is admissible at a hearing on a
\npetition for a workplace violence restraining order (\u201cWVRO\u201d) and that other
\npanels have approved of the use of hearsay to support a civil harassment
\nrestraining order (\u201cCHRO\u201d)<\/span><\/p>\n

The
\nopinion in Kaiser<\/i> was written by Justice Cynthia Aaron, who signed
\nyesterday\u2019s majority opinion. There, she said: <\/span><\/p>\n

\u201cThe
\nplain language of this provision suggests that the Legislature intended to
\npermit a trial court to consider all relevant evidence, including hearsay evidence,
\nwhen deciding whether to issue an injunction to prevent workplace violence
\npursuant to [Code of Civil Procedure] section 527.8.\u201d<\/span><\/p>\n

Kaiser<\/span><\/b> Is Applicable<\/span><\/b><\/p>\n

Buchanan
\nsaid, in his opinion affirming the GVRO granted by San Diego Superior Court
\nJudge Judy S. Bae:<\/span><\/p>\n

\u201cWe
\nnow conclude that the rationale of <\/span>Kaiser<\/span><\/i> <\/span><\/i>also
\napplies to a GVRO hearing under section 18175. Based on the language, purpose,
\nand legislative history of the GVRO statute, and its similarity to the WVRO and
\nCHRO statutes, we hold that hearsay evidence is admissible at a GVRO hearing.\u201d<\/span><\/p>\n

Sec.
\n18175 says, in subs. (a) that \u201c[i]n determining whether to issue a gun violence
\nrestraining order under this chapter, the court shall consider evidence of the
\nfacts\u201d as identified in another section \u201cand may consider any other evidence of
\nan increased risk for violence\u2026.\u201d<\/span><\/p>\n

Buchanan
\nwrote:<\/span><\/p>\n

\u201cJust
\nas the WVRO statute at issue in <\/span>Kaiser<\/span><\/i>
\npermits \u2018<\/span>any<\/span> testimony that is relevant\u2019\u2026, the GVRO statute permits a
\ncourt to consider \u2018<\/span>any<\/span> other evidence of an increased risk for violence\u2019\u2026\u2014and does
\nso \u2018without limitation\u2019 and \u2018without qualification.\u2019\u2026For purposes of resolving
\nthe hearsay issue, we perceive no meaningful distinction between the WVRO
\nphrase \u2018any testimony that is relevant\u2019\u2026and the GVRO phrase \u2018any other evidence
\nof an increased risk for violence.\u2019 \u201d<\/span><\/p>\n

Sec.
\n18175(b) provides that the petitioner must make a showing \u201cby clear and
\nconvincing evidence.\u201d Buchannan remarked:<\/span><\/p>\n

\u201cWe
\nrecognize that a GVRO proceeding implicates the Second Amendment right to bear
\narms. But the Second Amendment has nothing to say about the admissibility of
\nhearsay evidence. The Legislature has accounted for the importance of the right
\nat stake by mandating a clear and convincing standard of proof. (\u00a7 18175, subd.
\n(b).) The clear and convincing evidence standard reduces the risk of error when
\nparticularly important individual interests are at stake, such as parental
\nrights, involuntary commitment, and deportation.\u201d<\/span><\/p>\n

Dato\u2019s Dissent<\/span><\/b><\/p>\n

Dato
\nsaid in his dissent:<\/span><\/p>\n

\u201cIt
\nis true that as to one narrow category of hearsay evidence in GVRO proceedings,
\nthe Legislature did recognize an explicit exception to the hearsay rule.
\nSubdivision (b)(2)(F) of section 18155 expressly permits the court to consider
\n\u2018[d]ocumentary evidence, including, but not limited to, police reports and
\nrecords of convictions, of either recent criminal offenses by the subject of
\nthe petition that involve controlled substances or alcohol or ongoing abuse of
\ncontrolled substances or alcohol by the subject of the petition.\u2019 The majority
\nopinion construes this express hearsay exception as a \u2018signal\u2019 that the terms
\n\u2018evidence\u2019 and \u2018any other evidence\u2019 in section 18175 include hearsay evidence\u2026.I
\nbelieve the more compelling inference is that the Legislature never intended
\nhearsay to be fully admissible under section 18175, subdivision (a). If it had,
\nthere would be no need to carve out a specific hearsay exception for
\ndocumentary evidence, and the exception under section 18155, subd. (b)(2)(F)
\nwould be superfluous.\u201d<\/span><\/p>\n

Pointing
\nto the general bar against use of hearsay evidence, he commented:<\/span><\/p>\n

\u201cWhere
\nthe Legislature has crafted a rule of general application, based on principles
\nof due process, that it has expressly decreed should be applied except as
\nprovided otherwise, we should be certain the Legislature has in fact provided
\notherwise. Unlike the majority, I find the evidence of such a legislative
\nintent in the GVRO statutes thin and unconvincing at best. And the <\/span>Kaiser<\/span><\/i>
\ndecision, interpreting a different statute addressing a different issue using
\ndifferent language, cannot supply what the Legislature has failed to provide.\u201d<\/span><\/p>\n

Mootness of Appeal<\/span><\/b><\/p>\n

The
\nGVRO imposed on Shiering has expired and was not renewed. One reason Buchannan
\nprovided for not dismissing the appeal as moot was that Shiering \u201casserts that
\nas a result of the restraining order, he faces an investigation by the Ohio
\nState Bar where he is currently licensed and in good standing\u201d and \u201c[a]n appeal
\nfrom an expired restraining order is not moot if it could have collateral
\nconsequences in future proceedings.\u201d<\/span><\/p>\n

However,
\nthe Ohio Board of Professional Conduct dismissed the proceeding against
\nShiering on Sept. 8 upon recommendation of disciplinary counsel, whose
\nmemorandum said:<\/span><\/p>\n

\u201cOn
\nJune 30, 2022, the panel chair issued an order directing respondent to undergo
\na mental health examination. Subsequent to that examination, the mental health
\nprofessionals submitted a report to the Board of Professional Conduct on August
\n9, 2022. Based upon the findings of the mental health professionals that
\nconducted respondent\u2019s examination, relator stipulates that there is not
\nsufficient evidence to proceed on its sole allegation that respondent suffers
\nfrom a mental illness that substantially impairs his ability to practice law.
\nAccordingly, relator moves to dismiss this matter.\u201d<\/span><\/p>\n

The
\ncase is <\/span>San Diego Police Department v. Geoffrey S<\/span><\/i>.,
\n2022 S.O.S. 6142.<\/span><\/p>\n

 <\/span><\/p>\n

Copyright 2022, Metropolitan News Company<\/span><\/i><\/p>\n","protected":false},"excerpt":{"rendered":"

Metropolitan News-Enterprise   Tuesday, December 20, 2022   Page 1   Court of Appeal: Order<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/peymantaeidi.net\/stem-cell\/wp-json\/wp\/v2\/posts\/31825"}],"collection":[{"href":"https:\/\/peymantaeidi.net\/stem-cell\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/peymantaeidi.net\/stem-cell\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/peymantaeidi.net\/stem-cell\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/peymantaeidi.net\/stem-cell\/wp-json\/wp\/v2\/comments?post=31825"}],"version-history":[{"count":1,"href":"https:\/\/peymantaeidi.net\/stem-cell\/wp-json\/wp\/v2\/posts\/31825\/revisions"}],"predecessor-version":[{"id":31826,"href":"https:\/\/peymantaeidi.net\/stem-cell\/wp-json\/wp\/v2\/posts\/31825\/revisions\/31826"}],"wp:attachment":[{"href":"https:\/\/peymantaeidi.net\/stem-cell\/wp-json\/wp\/v2\/media?parent=31825"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/peymantaeidi.net\/stem-cell\/wp-json\/wp\/v2\/categories?post=31825"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/peymantaeidi.net\/stem-cell\/wp-json\/wp\/v2\/tags?post=31825"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}