BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 789|
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THIRD READING
Bill No: AB 789
Author: De Leon (D), et al
Amended: 8/17/09 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 7/14/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg
NO VOTE RECORDED: Wright
ASSEMBLY FLOOR : 78-0, 5/28/09 - See last page for vote
SUBJECT : Search warrants: protective orders
SOURCE : Los Angeles County Sheriffs Department
Los Angeles District Attorneys Office
DIGEST : This bill authorizes 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.
ANALYSIS : 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, and exclusion from a dwelling for reasons
relating to domestic violence, as specified. (Section 6218
of the Family Code)
CONTINUED
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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." (Section 6389(a) of the Family Code) Violation
of this provision is an alternate misdemeanor-felony.
(Section 12021(g) of the Penal Code)
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 ? (Section 6389(c) of the Family
Code)
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.
(Section 1523 of the Penal Code)
Current law provides that a search warrant may be issued
upon 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
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another to whom he/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/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 Code. (Section 1524 (a) of the Penal Code)
This bill adds 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, if a prohibited firearm is possessed,
owned, in the custody of, or controlled by a person
against whom a protective order has been issued pursuant
to Section 6218 of the Family Code, the person has been
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lawfully served with that order, and the person has
failed to relinquish the firearm as required by law.
This bill states 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/17/09)
Los Angeles County Sheriff's Department (co-source)
Los Angeles District Attorney's Office (co-source)
California Chapters of the Brady Campaign to Prevent Gun
Violence
California Partnership to End Domestic Violence
California State Sheriffs' Association
Legal Community Against Violence
Los Angeles City Attorney
Women Against Gun Violence
OPPOSITION : (Verified 8/17/09)
California Public Defenders Association
ARGUMENTS IN SUPPORT : 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.
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"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 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."
ARGUMENTS IN OPPOSITION : The California Public Defenders
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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."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Duvall, Emmerson, Eng, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Lieu,
Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning,
Nava, Niello, Nielsen, John A. Perez, V. Manuel Perez,
Portantino, Price, Ruskin, Salas, Saldana, Silva,
Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Evans, Nestande
RJG:mw 8/18/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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