BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1433
                                                                  Page  1

          Date of Hearing:   June 19, 2012
          Counsel:               Milena Blake


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   SB 1433 (Alquist) - As Amended:  April 11, 2012


           SUMMARY  :   Requires a law enforcement officer who serves a 
          protective order that prohibits the individuals from possessing 
          a firearm to request the firearm be immediately surrendered.     
          Specifically,  this bill  :   

          1)Requires that, prior to a hearing on the issuance or denial of 
            an order under this part, the court shall ensure that a search 
            is or has been conducted to determine if the subject of the 
            proposed order has a registered firearm.

          2)Requires a person required to relinquish possession of a 
            firearm within 48 hours of being served with the order to:

             a)   File, with the court that issued the protective order, 
               the receipt showing the firearm was surrendered to a local 
               law enforcement agency or sold to a licensed gun dealer. 
               Failure to timely file a receipt shall constitute a 
               violation of the protective order; and, 

             b)   File a copy of the receipt with the law enforcement 
               agency that served the protective order. Failure to timely 
               file a copy of the receipt shall constitute a violation of 
               the protective order.

          3)Requires a law enforcement officer who is serving a protective 
            order 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.  

           EXISTING LAW:

           1)Defines "domestic violence" as abuse perpetrated against any 
            of the following persons  (Family Code Section 6211):









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             a)   A spouse or former spouse;

             b)   A cohabitant or former cohabitant, as specified; 

             c)   A person with who the respondent is having or had a 
               dating or engagement relationship; 

             d)   A person with whom the respondent had had a child;

             e)   A child of a party or a child who is the subject of an 
               action Uniform Parentage Act; or, 

             f)   Any other person related by consanguinity or affinity 
               within the second degree.  

          2)Allows a court to issue an order, with or without notice, to 
            restrain any person for the purpose preventing a recurrence of 
            domestic violence and ensuring a period of separation of the 
            persons involved if an affidavit shows, to the satisfaction of 
            the court, reasonable proof of a past act or acts of abuse.  
            (Family Code Section 6300.)

          3)Requires that, prior to a hearing on the issuance or denial of 
            restraining order, the court shall ensure that a search is or 
            has been conducted to determine if the subject of the proposed 
            order has any prior criminal conviction for a serious or 
            violent felony, as specified; has any misdemeanor conviction 
            involving domestic violence, weapons, or other violence; has 
            any outstanding warrant; is currently on parole or probation; 
            or has any prior restraining order or any violation of a prior 
            restraining order.  The search shall be conducted of all 
            records and databases readily available and reasonably 
            accessible to the court.  ÝFamily Code Section 6306(a).]

          4)Prohibits a person subject to a protective order from owning, 
            possessing, purchasing, or receiving a firearm or ammunition 
            while that protective order is in effect.  ÝFamily Code 
            Section 6389(a).]

          5)States that on all forms providing notice that a protective 
            order has been requested or granted, the Judicial Council 
            shall include a notice that, upon service of the order, the 
            respondent shall be ordered to relinquish possession or 
            control of any firearms and not to purchase or receive or 
            attempt to purchase or receive any firearms for a period not 








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            to exceed the duration of the restraining order.  ÝFamily Code 
            Section 6389(b).]

          6)States that upon issuance of a protective order, 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.  ÝFamily Code 
            Section 6389(c)(1).]

          7)States that the relinquishment ordered pursuant 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.  The law enforcement officer or 
            licensed gun dealer taking possession of the firearm pursuant 
            to this subdivision shall issue a receipt to the person 
            relinquishing the firearm at the time of relinquishment.  A 
            person ordered to relinquish any firearm pursuant to this 
            subdivision shall file with the court that issued the 
            protective order, within 48 hours after being served with the 
            order, the receipt showing the firearm was surrendered to a 
            local law enforcement agency or sold to a licensed gun dealer. 
             Failure to timely file a receipt shall constitute a violation 
            of the protective order.  ÝFamily Code Section 6389(c)(2).]

          8)States that the forms for protective orders adopted by the 
            Judicial Council and approved by the Department of Justice 
            shall require the petitioner to describe the number, types, 
            and locations of any firearms presently known by the 
            petitioner to be possessed or controlled by the respondent.  
            ÝFamily Code Section 6389(c)(3).]

          9)Recommends that that every law enforcement agency in the state 
            develop, adopt, and implement written policies and standards 
            for law enforcement officers who request immediate 
            relinquishment of firearms.  ÝFamily Code Section 6389(c)(4).]

          10)Permits the court to grant use immunity for the act of 
            relinquishing the firearm required under this section, if the 
            respondent declines to relinquish possession of any firearm 








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            based on the assertion of the right against 
            self-incrimination.  ÝFamily Code Section 6389(d).]

          11)Allows a local law enforcement agency to charge the 
            respondent a fee for the storage of any firearm pursuant to 
            this section.  This fee shall not exceed the actual cost 
            incurred by the local law enforcement agency for the storage 
            of the firearm.  ÝFamily Code Section 6389(e).]

          12)Requires a restraining order requiring a person to relinquish 
            a firearm to state on its face that the respondent is 
            prohibited from owning, possessing, purchasing, or receiving a 
            firearm while the protective order is in effect and that the 
            firearm shall be relinquished to the local law enforcement 
            agency for that jurisdiction or sold to a licensed gun dealer, 
            and that proof of surrender or sale shall be filed with the 
            court within a specified period of receipt of the order.  The 
            order shall also state on its face the expiration date for 
            relinquishment.  Nothing in this section shall limit a 
            respondent's right under existing law to petition the court at 
            a later date for modification of the order.  ÝFamily Code 
            Section 6389(f).]

          13)States that the restraining order requiring a person to 
            relinquish a firearm shall prohibit the person from possessing 
            or controlling any firearm for the duration of the order.  At 
            the expiration of the order, the local law enforcement agency 
            shall return possession of any surrendered firearm to the 
            respondent, within five days after the expiration of the 
            relinquishment order, unless the local law enforcement agency 
            determines that the firearm has been stolen, the respondent is 
            prohibited from possessing a firearm because the respondent is 
            in any prohibited class for the possession of firearms, as 
            specified, or another successive restraining order is issued 
            against the respondent under this section.  If the local law 
            enforcement agency determines that the respondent is the legal 
            owner of any firearm deposited with the local law enforcement 
            agency and is prohibited from possessing any firearm, the 
            respondent shall be entitled to sell or transfer the firearm 
            to a licensed dealer, as specified.  If the firearm has been 
            stolen, the firearm shall be restored to the lawful owner upon 
            his or her identification of the firearm and proof of 
            ownership.  ÝFamily Code Section 6389(g).]

          14)States that the court may, as part of the relinquishment 








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            order, grant an exemption from the relinquishment requirements 
            of this section for a particular firearm if the respondent can 
            show that a particular firearm is necessary as a condition of 
            continued employment and that the current employer is unable 
            to reassign the respondent to another position where a firearm 
            is unnecessary.  If an exemption is granted pursuant to this 
            subdivision, the order shall provide that the firearm shall be 
            in the physical possession of the respondent only during 
            scheduled work hours and during travel to and from his or her 
            place of employment.  In any case involving a peace officer 
            who as a condition of employment and whose personal safety 
            depends on the ability to carry a firearm, a court may allow 
            the peace officer to continue to carry a firearm, either on 
            duty or off duty, if the court finds by a preponderance of the 
            evidence that the officer does not pose a threat of harm.  
            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.  ÝFamily Code Section 6389(h).]

          15)Requires that if specified law enforcement officers are at 
            the scene of a domestic violence incident involving a threat 
            to human life or a physical assault, that person shall 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 Section 18250.)

          16)States that any person who purchases, receives, owns or 
            possesses, or attempts to purchase,  receive, own or possess a 
            firearm knowing that the person is prohibited from doing so by 
            a temporary restraining order is guilty of a public offense, 
            punishable by imprisonment in a county jail not exceeding one 
            year or in the state prison, by a fine not exceeding $1,000, 
            or by both that imprisonment and fine.  ÝPenal Code Section 
            29825(a) and (b).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  : According to the author, "Two homicides 
            that have tragically occurred over the past few years 
            highlight the need for legislation. In 2005, a woman in San 








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            Diego obtained a protective order and stated in her affidavit 
            that the subject of the restraining order owned a firearm. The 
            protective order was issued, but the firearm was not seized. 
            Twenty-four hours after being served with the restraining 
            order, the perpetrator used the firearm to kill their 
            17-year-old son who was training with his high school cross 
            country team.

          "In 2011, there was a similar incident in Santa Clara County. 
            Carmen Dau obtained a protective order against her husband, Ed 
            Dau. In her declaration Carmen stated that she feared that her 
            husband would use his registered firearm to kill their 
            22-year-old son and then himself. The protective order was 
            served, but the gun was not seized. Ed Dau killed their son 
            and then himself with his registered firearm as described in 
            Carmen's declaration. The murder/suicide occurred the day 
            before their initial court hearing.

          "SB 1433 authorizes law enforcement officers, when serving a 
            protective order, to take custody of any firearm in plain 
            sight or located through a lawful search. SB 1433 would 
            further require judges, as part of the protective order 
            issuance process, to conduct a weapons check of firearms 
            databases. Last, SB 1433 would authorize Family Court judges 
            to issue a search warrant for weapons at the time a protective 
            order is made."

           2)Previous Legislation  : 

             a)   SB 585 (Kehoe), Chapter 467, Statutes of 2006, required 
               a person ordered to relinquish a firearm pursuant to the 
               terms of a protective order to surrender the weapon in a 
               safe manner upon request of any law enforcement officer, or 
               within 24 hours.  

             b)   AB 2129 (Spitzer), Chapter 474, Statutes of 2006, 
               specified a time frame of 24 hours under which a person 
               served with a protective order must relinquish a firearm 
               regardless of whether the person was present in court when 
               served.

             c)   AB 1288 (Chu), Chapter 702, Statutes of 2005, provides 
               that if a court orders a protective order in a domestic 
               violence case, the order shall prohibit the defendant from 
               purchasing firearms and require the defendant to relinquish 








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               any firearms he or she possesses
             d)   SB 1391 (Romero), Chapter 250, Statutes of 2004, 
               required a person subject to a domestic violence protective 
               order to relinquish any firearm within 24 hours of the 
               service of the order.

             e)   SB 226 (Jackson), Chapter 498, Statutes of 2003, 
               prohibited a person subject to an elder or dependent abuse 
               protective order from owning, purchasing, possessing, or 
               receiving a firearm while that order is in effect, and 
               establishes a procedure for persons restrained to 
               relinquish prohibited firearms.

             f)   SB 66 (Kuehl), Chapter 572, Statutes of 2001, required 
               the court, prior to a hearing on the issuance or denial of 
               a protective order to ensure that a search of specified 
               records and data bases is or has been made to determine if 
               the proposed subject of the order has any specified prior 
               criminal convictions or outstanding warrants, is on parole 
               or probation, or is or was the subject of other protective 
               or restraining orders.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Judicial Council 
          County of Santa Clara
          Los Angeles County District Attorney
          Peace Officer Research Association of California 
           
            Opposition 
           
          None

           Analysis Prepared by  :    Milena Blake / PUB. S. / (916) 319-3744