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 ----------------------------------------------------------------- |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 SB 1433 Page 2 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 SB 1433 Page 3 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, SB 1433 Page 4 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 Page 5 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 SB 1433 Page 6 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 FN: 0004979