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): SB 1433 Page 2 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 SB 1433 Page 3 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 SB 1433 Page 4 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 SB 1433 Page 5 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 SB 1433 Page 6 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 SB 1433 Page 7 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