Does the preponderance of the evidence standard for Domestic Violence Restraining Orders in California violate due process under the Fourteenth Amendment, and can non-violent speech support such orders?

QUESTIONS PRESENTED A DVRO in California may be obtained by a showing of only a preponderance of the evidence--that is, only slightly greater than 50/50. This is the current state of the law even though the DVRO is recognized to strip respondents of constitutional rights. In addition, a wide variety of non-violent conduct falls under the Domestic Violence Prevention Act (DVPA), which ambiguously includes “conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party.” Parris J. v. Christopher U., 96 Cal. App. 5th 108, 119, citing Cal. Fam. Code § 6320(¢). This wide breadth of conduct combined with a civil evidentiary standard are effectively used in tandem to deprive citizens of their constitutional rights and subjects restrained parties to conditions similar to criminal probation without due process safeguards guaranteed by the Constitution. This Court recently rejected a similar argument in the Second Amendment context because of the unique history and context of firearms. In contrast, California’s DVPA impacts not only Due Process concerns but First Amendment protections. The questions presented are: 1. Does the preponderance of the evidence standard used for the issuance of a DVRO in California comply with the Fourteenth Amendment’s guarantees of due process? 2. Does the vagueness of the language in California Family Code § 6320(c) instructing courts to issue DVROs for “conduct that, based on the totality of the u circumstances, destroys the mental or emotional calm of the other party” violate constitutional due process? And if it does not, may non-violent non-threatening speech be used to support a protective order that deprives its subject of constitutional rights?