BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 789 (De Le?n)
As Amended June 18, 2009
Hearing date: July 14, 2009
Penal Code
AA:br
SEARCH WARRANTS :
PROTECTIVE ORDERS
HISTORY
Source: Los Angeles District Attorney's Office; Los Angeles
County Sheriff's Department
Prior Legislation: SB 585 (Kehoe) - Ch. 467, Stats. 2006
AB 1288 (Chu) - Ch. 702, Stats. 2005
SB 1391 (Romero) - Ch. 250, Stats. 2004
Support: California Chapters of the Brady Campaign to Prevent
Gun Violence; Los Angeles City Attorney; Legal
Community Against Violence; California Partnership to
End Domestic Violence; California State Sheriffs'
Association; Women Against Gun Violence
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 78 - Noes 0
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KEY ISSUE
SHOULD statutory law authorize the issuance of a search warrant
where the property or things to be seized include a firearm that is
owned by, in the possession of, or in the custody or control of, a
person who is subject to the firearm prohibitions contained in
protective orders, as specified?
PURPOSE
The purpose of this bill is to authorize the issuance of a
search warrant where the property or things to be seized include
a firearm that is owned by, or in the possession of, or in the
custody or control of, a person who is subject to the firearm
prohibitions contained in protective orders, as specified.
Current law authorizes the issuance of a protective order, which
means an order that includes restraining orders, whether issued
ex parte, after notice and a hearing, or in a judgment, relating
to harassment, as specified,<1> and exclusion from a dwelling
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<1> Specifically, as enumerated in Family Code Section 6320,
"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, . . ."
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for reasons relating to domestic violence, as specified.<2>
(Family Code 6218.)
Current law provides that a person subject to one of these
protective orders "shall not own, possess, purchase, or
receive a firearm while that protective order is in effect."
(Family Code 6389 (a).) Violation of this provision is
an alternate misdemeanor-felony. (Penal Code 12021 (g).)
Current law provides that upon issuance of one of these
protective orders, "the court shall order the respondent to
relinquish any firearm in the respondent's immediate possession
or control or subject to the respondent's immediate possession
or control. . . . The relinquishment ordered . . . shall occur
by immediately surrendering the firearm in a safe manner, upon
request of any law enforcement officer, to the control of the
officer, after being served with the protective order.
Alternatively, if no request is made by a law enforcement
officer, the relinquishment shall occur within 24 hours of being
served with the order, by either surrendering the firearm in a
safe manner to the control of local law enforcement officials,
or by selling the firearm to a licensed gun dealer, as specified
. . . . (Family Code 6389 (c).)
Current law defines a "search warrant" as an order in writing in
the name of the People, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Penal Code 1523.)
Current law provides that a search warrant may be issued upon
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<2> Family Code Section 6321: "The court may issue an ex parte
order excluding a party from the family dwelling, the dwelling
of the other party, the common dwelling of both parties, or the
dwelling of the person who has care, custody, and control of a
child to be protected from domestic violence for the period of
time and on the conditions the court determines, regardless of
which party holds legal or equitable title or is the lessee of
the dwelling. (b) The court may issue an order under
subdivision (a) only on a showing of all of the following: (1)
Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises. (2) That the party to be excluded
has assaulted or threatens to assault the other party or any
other person under the care, custody, and control of the other
party, or any minor child of the parties or of the other party.
(3) That physical or emotional harm would otherwise result to
the other party, to any person under the care, custody, and
control of the other party, or to any minor child of the parties
or of the other party."
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any of the following grounds:
1) When the property was stolen or embezzled.
2) When the property or things were used as the means of
committing a felony.
3) When the property or things are in the possession of any
person with the intent to use them as a means of committing
a public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of
concealing them or preventing them from being discovered.
4) When the property or things to be seized consist of any
item or constitute any evidence that tends to show a
felony has been committed, or tends to show that a
particular person has committed a felony.
5) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child, or possession of matter depicting sexual conduct of
a person under the age of 18 years, has occurred or is
occurring.
6) When there is a warrant to arrest a person.
7) When a provider of electronic communication service or
remote computing service has records or evidence, showing
that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the
possession of any person with the intent to use them as a
means of committing a misdemeanor public offense, or in the
possession of another to whom he or she may have delivered
them for the purpose of concealing them or preventing their
discovery.
8) When the property or things to be seized include an item
or any evidence that tends to show a violation of Section
3700.5 of the Labor Code, or tends to show that a
particular person has violated Section 3700.5 of the Labor
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Code. (Penal Code 1524 (a).)
This bill would add the following additional provision to this
section, authorizing the issuance of a search warrant:
When the property or things to be seized include
a firearm that is owned by, or in the possession
of, or in the custody or control of, a person who
is subject to the prohibitions regarding firearms
pursuant to Section 6389 of the Family Code.
This bill would state the following uncodified legislative
intent:
It is not the intent of the Legislature in enacting
this act to authorize the seizure of any firearms
not owned by, or in the possession of, or under the
custody or control of, any person not subject to the
provisions of Section 6389 of the Family Code.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<3>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
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<3> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<4>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Stated Need for This Bill
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<4> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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The author states in part:
Every year in the U.S., two to four million women and
men are assaulted by a domestic partner. Research
shows that domestic violence (DV) assaults with
firearms are 12 times more likely to result in death.
Firearms in the hands of domestic violence offenders
places domestic violence victims at a dangerous risk,
and a potentially deadly situation.
A California court recently noted a loophole in
California law regarding this problem.
California law prohibits a person who is the subject
of a domestic violence protective order (DVPO) from
owning, possessing, purchasing or receiving any
firearm while the protective order is in effect.
(Family Code Section 6389 (a).) California law also
requires the subject of the protective order to
immediately surrender any firearm in their possession
or control to a law enforcement officer when served
with their copy of the court issued protective order.
(Family Code Section 6389 (c).)
Unfortunately, while the Legislature has mandated that
law enforcement officers take custody of any firearm
from any person who is the subject of a domestic
violence protective order, the Legislature failed to
provide law enforcement with the authority to get a
search warrant to carry out these obligations.
A California court recently ruled that because that
current law does not explicitly cite a DVPO as grounds
for the issuance of a search warrant, law enforcement
has no constitutionally permissible way to seize
firearms from the DV offender's possessions, if the DV
offender is served outside of their residence. A
United States Court also ruled that law enforcement
cannot constitutionally seize firearms from a DV
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offender if the offender or their residential partner
will not consent to a voluntary search of their
residence to seize any firearms of which the offender
owns or has control.
. . .
The inability of law enforcement to remove firearms in
domestic violence incidents places victims at
unnecessary risk.
AB 789 will remedy this problem and provide law
enforcement the ability to protect domestic violence
victims by authorizing the court to issue a search
warrant to law enforcement to constitutionally take
custody of firearms from individuals who are the
subject of a domestic violence protective order.
2. What This Bill Would Do
California law currently authorizes a law enforcement officer at
the scene of a domestic violence incident involving a threat to
human life or a physical assault to take temporary custody of
any firearm or other deadly weapon in plain sight or discovered
after a consensual or otherwise lawful search (i.e., exigent
circumstances).<5>
Current law also requires persons subject to a domestic violence
protective order to relinquish any firearms in their possession
or control. Persons subject to a domestic violence protective
order issued by the Family Court are required to relinquish any
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<5> Current law requires a peace officer "who is at the scene
of a domestic violence incident involving a threat to human life
or a physical assault," to "take temporary custody of any
firearm or other deadly weapon in plain sight or discovered
pursuant to a consensual or other lawful search as necessary for
the protection of the peace officer or other persons present."
(Penal Code 12028.5.) See Comment (4), infra, for proposed
legislation relating to this section.
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firearms they may have immediately if requested by a law
enforcement officer, or within 24 hours of being served with the
order. Relinquishment pursuant to a protective order can occur
either by surrendering the weapons to law enforcement or selling
them to a gun dealer, as specified. Persons who are ordered to
relinquish a firearm must file a receipt showing the surrender
or the sale with the court within 72 hours after receiving the
order.
As explained in detail above, this bill would authorize, as a
matter of statute, the issuance of a search warrant in the
following circumstance:
When the property or things to be seized include a
firearm that is owned by, or in the possession of, or
in the custody or control of, a person who is subject
to the prohibitions regarding firearms pursuant to
Section 6389 of the Family Code.
3. People v. Sweig
The authority of law enforcement to search for a firearm in
the context of a situation where statutory law requires the
seizure of any firearms was discussed in a recent appellate
case. In People v. Sweig (2008) 167 Cal.App.4th 1145, the
Third District Court of Appeal concluded that the seizure
of a weapon found by law enforcement officers in the home
of a person they had detained for reasons relating to his
mental condition was the "product of a warrantless entry of
defendant's residence in violation of the Fourth Amendment
. . . ." (People v. Sweig, supra, at 1150. The court
began its opinion with the following observation:
This case illustrates a legislative oversight with
regard to statutes intended to prevent persons with
mental disorders from harming themselves or others.
A person who is gravely disabled or a danger to
others because of a mental disorder may be taken into
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custody and placed in a mental health facility "for
72-hour treatment and evaluation." If, when
detained, such a person "is found to own, have in his
or her possession or under his or her control, any
firearm whatsoever, or any other deadly weapon," it
"shall be confiscated by any law enforcement agency
or peace officer, who shall retain custody of the
firearm or other deadly weapon." When the person is
released from custody, "the confiscating law
enforcement agency shall have 30 days to initiate a
petition in the superior court for a hearing to
determine whether the return of a firearm or other
deadly weapon would be likely to result in
endangering the person or others . . . ."
The flaw in the statutes is that the legislative
scheme does not provide a constitutionally
permissible way for law enforcement to confiscate a
firearm or other deadly weapon when it is in the
residence of the mentally disordered person who is
detained outside the residence and there is no
exigent circumstance or other basis for a
warrantless entry into the residence. Although
Section 8102 requires confiscation of the firearm or
deadly weapon, the situation is not included as a
ground for the issuance of a search warrant (Pen.
Code 1524), and Section 8102 does not contain a
mechanism to seize the firearm or other deadly
weapon in that circumstance. (Sweig at 1149, 1150
(some citations omitted).)
The court continued with an analysis of whether existing law
could be interpreted to imply a means for law enforcement to
effect the mandated firearm seizure, or whether the "community
caretaking function" exception to the warrant requirement could
be applied in this type of case. The court rejected these
arguments, and concluded that the search was impermissible under
the Fourth Amendment. (Sweig at 1156.)
While the Sweig opinion was ordered depublished when the
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California Supreme Court granted a petition for review sought by
the People on February 11, 2009, the court's discussion informs
the underlying issue raised by this bill: how law enforcement
can lawfully fulfill the firearm relinquishment provisions in
specified protective order statutes.
should statutory law authorize the issuance of a search warrant
where the property or things to be seized include a firearm that
is owened by, or in the possession of, or in the custody or
control of, a person who is subject to existing prohibitions
regarding firearms because of a protective order?
4. Related Legislation
This Committee recently passed AB 532 (Lieu), which would
statutorily authorize the issuance of a search warrant in the
following two instances:
When the property or things to be seized include a
firearm or any other deadly weapon at the scene of,
or at the premises occupied or under the control of
the person arrested in connection with, a domestic
violence incident involving a threat to human life or
a physical assault as specified; and
When the property or things to be seized include a
firearm or any other deadly weapon that is owned by,
or in the possession of, or in the custody or control
of, a person who is detained for reasons relating to
his or her mental condition, as specified.
These bills address different situations which have similar
underlying factual and policy issues. The Lieu bill authorizes
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search warrants where officers are arresting a person in
connection with a domestic violence incident involving a threat
to human life or assault, or detaining a person because of his
or her mental condition. This bill would authorize a search
warrant when the property to be seized includes a firearm owned
or controlled by a person subject to a protective order relating
to harassment or domestic violence.
The bills are similar in that each of these situations involve
authority to search for a firearm the law enforcement officer is
either required or authorized by statutory law to seize. The
bills are different in that the Lieu bill contemplates
situations where the person subject to the search is being
arrested or detained in connection with a domestic violence
incident involving a threat to human life or assault, or for
reasons relating to his or her mental condition , while in this
bill the search warrant would be authorized where a person has
been lawfully served with a protective order (including an ex
parte order).
5. Search Warrants
California statute defines a search warrant to be "an order in
writing, in the name of the people, signed by a magistrate,
directed to a peace officer, commanding him or her to search for
a person or persons, a thing or things, or personal property,
and, in the case of a thing or things or personal property,
bring the same before the magistrate." (Penal Code 1523.)
The California Constitution provides that "a warrant may not
issue except on probable cause, supported by oath or
affirmation, particularly describing the place to be searched
and the persons and things to be seized." (Art. I, 13) This
language is similar to that in the Fourth Amendment to the
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federal Constitution.<6>
Penal Code Section 1525 restates the substance of
the constitutional requirement: "A search warrant
cannot be issued but upon probable cause,
supported by affidavit." The affidavit "must set
forth the facts tending to establish the grounds
of the application, or probable cause for
believing that they exist." (P.C. 1527.) The
magistrate may, before issuing the warrant,
"examine on oath the person seeking the warrant
and any witnesses the person may produce, and
shall take his or her affidavit or their
affidavits in writing, and cause the affidavit or
affidavits to be subscribed by the party or
parties making them." (P.C. 1526 (a).)
However, a sworn oral statement may be used as an
alternative to a written affidavit. (P.C. 1526
(b) . . .)<7>
Current law provides that a "magistrate, before issuing the
warrant, may examine on oath the person seeking the warrant and
any witnesses the person may produce, and shall take his or her
affidavit or their affidavits in writing, and cause the
affidavit or affidavits to be subscribed by the party or parties
making them." In lieu of the written affidavit, the magistrate
may take an oral statement under oath under specified
conditions.<8>
With respect to the search warrants this bill would authorize,
the probable cause would appear to be that a person is
unlawfully in possession of a firearm while subject to a
protective order. This would include an ex parte order, where
the party served has not had an opportunity to appear in court.
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<6> 4 Witkin Cal. Crim. Law Illegal Evid 88.
<7> Id.
<8> Penal Code 1526.
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There are other states that have statutory provisions similar in
concept to those proposed by this bill. For example in New
Jersey proceedings where restraining orders are sought, the
family court is statutorily authorized to grant an order
prohibiting a defendant from possessing a firearm or other
weapon and ordering the search and seizure of the weapon "where
the judge has reasonable cause to believe the weapon is located.
The judge shall state with specificity the reasons for and
scope of the search and seizure authorized by the order."<9> It
appears from the statute that this order is authorized after a
noticed hearing.<10> A New Hampshire statute similarly
authorizes courts to issue a search warrant to seize firearms
where there is a domestic violence protective order, but that
authority exists only after a defendant fails to relinquish his
or her firearm:
The defendant may be prohibited from purchasing,
receiving, or possessing any deadly weapons and any
and all firearms and ammunition for the duration of
the order. The court may subsequently issue a search
warrant authorizing the peace officer to seize any
deadly weapons specified in the protective order and
any and all firearms and ammunition, if there is
probable cause to believe such firearms and
ammunition and specified deadly weapons are kept on
the premises or curtilage of the defendant and if the
court has reason to believe that all such firearms
and ammunition and specified deadly weapons have not
been relinquished by the defendant .<11>
SHOULD THIS BILL BE AMENDED TO PROVIDE THAT IF THERE IS PROBABLE
CAUSE TO BELIEVE PROHIBITED FIREARMS ARE POSSESSED, OWNED OR
CONTROLLED, THE SUBJECT OF THE PROTECTIVE ORDER, AND THAT THE
SUBJECT OF THE ORDER HAS FAILED TO RELINQUISH THE FIREARM
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<9> N.J. Stat. 2C:25-29 b.(16).
<10> Id.
<11> N.H. Rev. Stat. Ann. 173-B:4 (II) (2004) (italics and
underlining added).
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PURSUANT TO FAMILY CODE SECTION 6389, A SEARCH WARRANT MAY
SUBSEQUENTLY BE ISSUED?
6. Support
The Los Angeles County District Attorney's Office, which is a
co-sponsor of this bill, submits in part:
(W)hile the Legislature has made it illegal for a
subject of a domestic violence protective order from
owning, possessing, purchasing or receiving a
firearm, the Legislature failed to provide law
enforcement with the necessary investigative tools to
ensure these individuals comply with their duty to
surrender all of the firearms in the possession when
serviced with the protective order.
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7. Opposition
The California Public Defenders Association, which opposes this
bill, argues:
It is simply unfair to include, as justification
for the issuance of a search warrant, the simple
fact that a person has been prohibited from
possessing a firearm pursuant to a protective
order. It should be presumed that lawfully issued
protective orders are obeyed and, absent evidence
of actual intent to disobey the protective order
(or that such an order is actually being
disobeyed), . . . the issuance of a protective
order should not be used as justification to
conduct the search of a residence.
8. Background: Domestic Violence and Firearms
That firearms are a potentially deadly ingredient in any
domestic violence situation is undisputed.
In 1999, approximately 791,000 violent crimes were
committed against persons age twelve or older by
their intimate partners. About eighty-five percent
of these victims - approximately 670,000 - were
women. Indeed, domestic violence is the leading
cause of injury to women. In California, women were
over thirteen times more likely to be killed by their
spouses than men during 1999. Moreover, in the
United States since 1976, thirty percent of all
murders with female victims have occurred at the
hands of intimates.
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Although domestic violence can take many forms,
abusers often use firearms to threaten, injure, or
kill their victims. In fact, sixty-five percent of
the approximately 52,000 intimate murders involved
firearms in 1996. In single victim/single offender
incidents two years later, "the number of females
shot and killed by their husband or intimate
acquaintance . . . as more than four times higher
than the total number murdered by male strangers
using all weapons combined."
. . .
Firearms and domestic violence create a lethal
combination - one that heightens the risks for
victims. Domestic violence incidents that involve a
firearm are twelve times more likely to result in
death than those involving any other type of weapon.
This consequence likely is because firearms are more
lethal than other weapons, and many batterers who
kill "with a firearm would be unable or unwilling to
exert the greater physical or psychological effort
required to kill with another, typically available
weapon." Simply having a firearm in the home
increases the risk of homicide by a family member or
intimate acquaintance. In addition, if a history of
domestic violence incidents in that home exists, the
risk of firearm-related homicide becomes even
greater. The availability of guns in the home also
increases the risk of suicide - one in every ten
abused women tries to kill herself.<12>
The California Department of Justice provides the following
general statistics concerning domestic violence in California:
In 2003, 182 murders were the result of intimate
partner violence in California.
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<12> Getting the Guns: Implementation and Enforcement
Problems with California Senate Bill 218, Michelle N.
Deutchman, (75 S. Cal. L. Rev. 185) (Nov. 2001).
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In 2003, 151 women in California were killed by
their husbands, ex-husbands or boyfriends, and 27
men were killed by their wives, ex-wives or
girlfriends.
California law enforcement received 194,288
domestic violence calls in 2003 - 106,731 involved
weapons, including firearms and knives.
Domestic violence arrests dropped from 52,392
(2001) to 50,479 (2002), and to 48,854 in 2003.
(DOJ, CJSC)
Every year, almost 6% of California's women
suffer physical injuries from domestic violence.<13>
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<13> See http://safestate.org.