BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1433
                                                                  Page  1


          SENATE THIRD READING
          SB 1433 (Alquist)
          As Amended  April 11, 2012
          Majority vote 

           SENATE VOTE  :26-11  
           
           PUBLIC SAFETY       4-2         APPROPRIATIONS      12-5        
           
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          |Ayes:|Ammiano, Cedillo,         |Ayes:|Gatto, Blumenfield,       |
          |     |Mitchell, Skinner         |     |Bradford, Charles         |
          |     |                          |     |Calderon, Campos, Davis,  |
          |     |                          |     |Fuentes, Hall, Hill,      |
          |     |                          |     |Cedillo, Mitchell,        |
          |     |                          |     |Solorio                   |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Knight, Hagman            |Nays:|Harkey, Donnelly,         |
          |     |                          |     |Nielsen, Norby, Wagner    |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           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 








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               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:

             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 has 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.  

          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 








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            accessible to the court.  

          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.  

          5)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.  

          6)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.  

          7)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 
            based on the assertion of the right against 
            self-incrimination.  

          8)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, 








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            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.  

          9)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.  

          10)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.  

          11)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.  









                                                                  SB 1433
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           FISCAL EFFECT  :   According to the Assembly Appropriations 
          Committee:

          1)Potentially significant one-time General Fund (GF) pressure - 
            in the hundreds of thousands of dollars - to state trial 
            courts to the extent the gun possession background search 
            requirement requires technology upgrades. 

          2)Ongoing GF pressure, potentially in the hundreds of thousands 
            of dollars, for increased state trial court workload related 
            to the gun possession background searches. 

          3)This bill specifies that gun possession background searches 
            shall be implemented only to the extent resources are 
            available or appropriated for this purpose.  This 
            implementation contingency language is the same language 
            adopted in 2001 when SB 66 (Kuehl) created the requirement for 
            background checks to which SB 1433 adds gun checks.  The 
            Judicial Council indicates that protective order background 
            search practice is uneven across the state due to historical 
            and ongoing budget pressures.  

          4)Likely minor reimbursable local costs as a result of requiring 
            peace officers serving protective orders to confiscate any 
            guns in plain sight or discovered pursuant to a consensual or 
            lawful search necessary for the protection of the officer or 
            other persons present.

          5)Minor nonreimbursable local law enforcement costs for 
            additional gun relinquishments upon peace officer request.

           COMMENTS  :   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 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 








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          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."

          Please see the policy committee analysis for a full discussion 
          of this bill.


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



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