Written by attorney David John Luca

CLETS Restraining Orders and Firearm Prohibitions for Police Officers

To a police officer, the issuance of a California Law Enforcement Telecommunications System (“CLETS") Restraining Order against him or her can signify the end of a career. Whether the conduct underlying a CLETS Restraining Order independently provides grounds for an administrative suspension/termination, or whether the firearm restriction inherent in a CLETS Order disqualifies a peace officer from continued employment, in either case a CLETS Restraining Order is a very serious matter.

Family Code Section 6211 provides that any person who is a spouse/former spouse, cohabitant/former cohabitant, who has had a current or past dating relationship with, has a child with or is related by affinity not further than the second degree may apply for a CLETS Domestic Violence Restraining Order against another person so related. For any person not described above, a Civil Harassment Order is the remedy for unwanted contact.

Family Code Section 6320 provides that a Court may, on application of a person described above, issue an Order “enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members."

The most important CLETS-related Family Code as applied to police officers is section 6389(a) which provides that “[a] person subject to a protective order, as defined in Section 6218, shall not own, possess, purchase, or receive a firearm while that protective order is in effect." This section also requires the immediate relinquishment of any firearm in the possession of the restrained party. Naturally, the prohibition on the possession of a firearm can work an extreme hardship on a peace officer. Unless the restrained peace officer takes immediate action to protect his or her right to own and possess a firearm, he or she may face suspension or termination.

Pursuant to Family Code Section 6389(h) the Court may, as part of the relinquishment order, grant an exemption from the relinquishment requirements of that section for a particular firearm if it is shown that a particular firearm is necessary as a condition of continued employment and that the current employer is “unable to reassign" the restrained party to another position where a firearm is unnecessary. The section elaborates on the trial Court’s discretion to grant this exemption, stating that the firearm must remain in the control of the employer whenever not in use by the employee.

In the case of a peace officer, however, the code does allow the Court to permit a peace officer to continue to carry a firearm, either on duty or off duty, if it finds by a preponderance of the evidence that the officer does not pose a threat of harm to others. Prior to making this finding, the Court shall require a mandatory psychological evaluation of the peace officer and may require the peace officer to enter into counseling or other remedial treatment program to deal with any propensity for domestic violence.

The simple fact is that psychological evaluations are expensive. So, the peace officer must overcome two distinct hurdles to continue his employment while a CLETS Restraining Order is in effect. First, he or she must convince the Court that the employer is unable to reassign him or her to a division where a firearm is not mandatory. Then, the officer must also tender his mental state to the Court to carry a firearm during off duty hours.

Although this seems like quite the set of hoops to jump through, many peace officers have no other choice. The forced relinquishment of a firearm can be detrimental to a career, and more importantly, a retirement. When faced with the potential issuance of a permanent CLETS Restraining Order, a police officer must be careful to take every step available to protect his employment and ability to possess a service firearm, both on and off duty.

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