BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
1
0
1
AB 1014 (Skinner) 4
As Amended June 11, 2014
Hearing date: June 24, 2014
Penal; Welfare and Institutions Codes
JRD:mc
GUN VIOLENCE RESTRAINING ORDERS
HISTORY
Source: Author
Prior Legislation: None known
Support: San Francisco Bay Area Physicians for Social
Responsibility; Alameda District Attorney's Office;
City of Long Beach; California Chapters of the Brady
Campaign to Prevent Gun Violence; Courage Campaign;
Violence Prevention Coalition of Orange County; Brady
Campaign to Prevent Gun Violence, Orange County
Chapter; Youth Alive!; Violence Prevention Coalition of
Greater Los Angeles; Disability Rights California; Law
Center to Prevent Gun Violence; California Chapter of
the American College of Emergency Physicians; Friends
Committee on Legislation of California
Opposition:California Attorneys for Criminal Justice; California
Association of Federal Firearms Licensees; Californians
Opposing Gun Restrictions; Gun Rights Across America;
Knife Rights, Inc.; San Francisco Pink Pistols;
Taxpayers for Improving Public Safety; 4 individuals
Assembly Floor Vote: Not Relevant
(More)
AB 1014 (Skinner)
PageB
KEY ISSUE
SHOULD A GUN VIOLENCE RESTRAINING ORDER SYSTEM BE ADOPTED IN
CALIFORNIA?
PURPOSE
The purpose of this legislation is to allow a person to seek,
and a court to issue, an "ex parte gun violence restraining
order" or "gun violence restraining order after notice and a
hearing," in instances in which a person believes that someone
poses a significant risk of personal injury to himself, herself,
or another by having under his or her custody and control,
owning, purchasing, possessing, or receiving a firearm, as
specified.
The US Constitution provides that "the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched and the persons or things to be seized." (4th
Amendment of the U.S. Constitution.)
The California Constitution provides that "the right of the
people to be secure in their persons, houses, papers and effects
against unreasonable seizures and searches may not be violated;
and a warrant may not issue except on probable cause, supported
by oath or affirmation, particularly describing the place to be
searched and the persons and things to be seized." (Article I,
Section 13 of the California Constitution.)
Existing 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
(More)
AB 1014 (Skinner)
PageC
before the magistrate. (Penal Code § 1523.)
Exiting law provides that a search warrant cannot be issued but
upon probable cause, supported by affidavit, naming or
describing the person to be searched or searched for, and
particularly describing the property, thing or things and the
place to be searched. (Penal Code § 1525.)
Existing law requires that firearms dealers obtain certain
identifying information from firearms purchasers and forward
that information, via electronic transfer to Department of
Justice (DOJ) to perform a background check on the purchaser to
determine whether he or she is prohibited from possessing a
firearm. (Pen Code §§ 28160-28220.)
Existing law requires that, upon receipt of the purchaser's
information, DOJ shall examine its records, as well as those
records that it is authorized to request from the State
Department of Mental Health pursuant to Section 8104 of the
Welfare and Institutions Code, in order to determine if the
purchaser is prohibited from purchasing a firearm. (Penal Code §
28220.)
Existing law requires the Attorney General to establish and
maintain an online database to be known as APPS. The purpose of
the file is to cross-reference persons who have ownership or
possession of a firearm on or after January 1, 1991, as indicated
by a record in the Consolidated Firearms Information System
(CFIS), and who, subsequent to the date of that ownership or
possession of a firearm, fall within a class of persons who are
prohibited from owning or possessing a firearm. The information
contained in APPS shall only be available to specified entities
through the California Law Enforcement Telecommunications System,
for the purpose of determining if persons are armed and
prohibited from possessing firearms. (Penal Code § 30000.)
Current Federal law provides that certain people are prohibited
from owning or possessing a firearm:
Any person who-
(More)
AB 1014 (Skinner)
PageD
Has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year;
Is a fugitive from justice;
Is an unlawful user of or addicted to any controlled
substance, as defined;
Has been adjudicated as a mental defective or who has
been committed to a mental institution;
Being an alien -
o is illegally or unlawfully in the United States; or
o except as specified, has been admitted to the United
States under a nonimmigrant visa, as defined;
Has been discharged from the Armed Forces under
dishonorable conditions;
Having been a citizen of the United States, has
renounced his citizenship;
Is subject to a court order that -
o was issued after a hearing of which such
person received actual notice, and at which such
person had an opportunity to participate;
o restrains such person from harassing,
stalking, or threatening an intimate partner of such
person or child of such intimate partner or person, or
engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to the
partner or child; and
includes a finding that such person
represents a credible threat to the physical safety
of such intimate partner or child; or
by its terms explicitly prohibits the use,
attempted use, or threatened use of physical force
against such intimate partner or child that would
reasonably be expected to cause bodily injury; or
Has been convicted in any court of a misdemeanor crime
of domestic violence. (18 USC § 922(g).)
Current California law provides that certain people are
(More)
AB 1014 (Skinner)
PageE
prohibited from owning or possessing a firearm. This includes:
Lifetime Ban
Anyone convicted of a felony;
Anyone addicted to a narcotic drug;
Any juvenile convicted of a violent crime with a gun and
tried in adult court;
Any person convicted of a federal crime that would be a
felony in California and sentenced to more than 30 days in
prison, or a fine of more than $1,000;
Anyone convicted of certain violent misdemeanors, e.g.,
assault with a firearm; inflicting corporal injury on a
spouse or significant other, brandishing a firearm in the
presence of a police officer. (Penal Code §§ 29800; 23515;
29805.)
Ten Year Ban
Anyone convicted of numerous misdemeanors involving violence or
threats of violence. (Penal Code § 29805.)
Five Year Ban
Any person taken into custody, assessed, and admitted to a
designated facility due to that person being found to be a
danger to themselves or others as a result of a mental disorder,
is prohibited from possessing a firearm during treatment and for
five years from the date of their discharge. (Welfare and
Institutions Code §§ 8100, 8103(f).)
Temporary Bans
Persons who are bound by a temporary restraining order or
injunction or a protective order issued under the Family Code or
the Welfare and Institutions Code, may be prohibited from
firearms ownership for the duration of that court order. (Penal
Code § 29825.)
(More)
AB 1014 (Skinner)
PageF
Gun Violence Restraining Order
This bill defines a gun violence restraining order as an order,
in writing, signed by a magistrate, prohibiting a named person
from having under his or her custody and control, owning,
purchasing, possessing, or receiving any firearms or ammunition.
This bill requires the Judicial Council to prescribe the form of
the orders and any other documents required by this legislation
and requires council to promulgate forms and instructions for
applying for orders described in this legislation.
Gun Violence Restraining Order: Warrant Provisions
This bill allows a search warrant to be issued when the property
or things to be seized are firearms or ammunition that are in
the custody or control of, or is owned or possessed by, a person
who is the subject of a gun violence restraining order and who
is presently known to have in his or her custody and control or
possession, or to own a firearm or firearms or ammunition.
This bill would specify that the following apply to a search
warrant issued as a result of a gun violence restraining order:
The law enforcement officer executing the warrant shall take
custody of any firearm or ammunition in plain sight or
discovered pursuant to a consensual or other lawful search.
If the location to be searched during the execution of the
warrant is jointly occupied by multiple parties and a firearm,
which is determined to be owned by a person other than the
person who is the subject of a gun violence restraining order,
is found, the firearm shall not be seized if both of the
following conditions are satisfied:
o The firearm is stored in a manner that the person
subject to a gun violence restraining order does not have
access to or control of the firearm.
o There is no evidence of unlawful possession of the
firearm by the owner of the firearm.
(More)
AB 1014 (Skinner)
PageG
If the location to be searched during the execution of the
warrant is jointly occupied by multiple parties and a gun safe
is located, which is determined to be owned by a person other
than the person subject to a gun violence restraining order,
the contents of the gun safe shall not be searched except in
the owner's presence, and with his or her consent or with a
valid search warrant for the gun safe.
Ex Parte Gun Violence Restraining Order
This bill allows a court to issue an ex parte gun violence
restraining order if an affidavit, made in writing and signed by
the petitioner under oath, or an oral statement, and any
additional information provided to the court on a showing of
good cause that the subject of the petition poses a significant
risk of personal injury to himself, herself, or another by
having under his or her custody and control, owning, purchasing,
possessing, or receiving a firearm as determined by balancing
certain factors described in the bill.
This bill requires that an affidavit supporting a petition for
the issuance of an ex parte gun violence restraining order set
forth the facts tending to establish the grounds of the
petition, or the reason for believing that they exist.
This bill requires that an ex parte order be issued or denied on
the same day that the petition is submitted to the court, unless
the petition is filed too late in the day to permit effective
review, in which case the order shall be issued or denied on the
next day of judicial business in sufficient time for the order
to be filed that day with the clerk of the court.
This bill allows a magistrate, before issuing an ex parte gun
violence restraining order, to examine on oath, the petitioner
and any witness the petitioner may produce and shall take his or
her affidavit in writing, and cause the affidavit to be signed
by the parties making them.
This bill would require that, when determining whether grounds
for a gun violence restraining order exist, the magistrate
(More)
AB 1014 (Skinner)
PageH
consider all evidence of the following:
A threat of violence or act of violence by the subject of the
petition directed toward another.
A threat of violence or act of violence by the subject of the
petition directed toward himself or herself.
A violation of an unexpired emergency protective order, as
specified.
A violation of an unexpired protective order, as specified.
A conviction for any offense listed in Section 29805.
This bill would authorize, when determining whether grounds for
a gun violence restraining order exist, the magistrate to
consider all evidence of the following:
The reckless use, display, or brandishing of a firearm by the
subject of the petition.
The history of use, attempted use, or threatened use of
physical force by the subject of the petition against another
person.
Any prior arrest of the subject of the petition for a felony
offense.
Any history of a violation by the subject of the petition of
an emergency protective order, as specified.
Any history of a violation by the subject of the petition of a
protective order, as specified.
Evidence of recent or ongoing abuse of controlled substances
or alcohol by the subject of the petition.
Evidence of recent acquisition of firearms or other deadly
weapons.
The recency of any of the acts identified, as specified.
This bill requires that if the magistrate determines that there
is good cause to issue an ex parte gun violence restraining
order, he or she shall issue an ex parte gun violence
restraining order that prohibits the subject of the petition
from having under his or her custody and control, owning,
purchasing, possessing, or receiving, or attempting to purchase
or receive, a firearm or ammunition, and expires no later than
14 days from the date of the order.
(More)
AB 1014 (Skinner)
PageI
This bill would require the court to notify the Department of
Justice and the district attorney of the ex parte gun violence
restraining order no later than 24 hours after issuing the
order.
This bill would require that an ex parte gun violence
restraining order to include:
A statement of the grounds supporting the issuance of the
order.
The date and time the order expires.
The address of the superior court for the district or county
in which the restrained party resides.
The following statement:
"To the restrained person: This order will last until
the date and time noted above. You may not have under
your custody and control, own, purchase, possess, or
receive, or attempt to purchase or receive a firearm
or ammunition, while this order is in effect. You
have the right to a hearing, scheduled by the court,
within 14 days following the issuance of this order to
determine if you may have under your custody and
control, own, possess, purchase, or receive a firearm
or ammunition. You may seek the advice of an attorney
as to any matter connected with the order. The
attorney should be consulted promptly so that the
attorney may assist you in any matter connected with
the order."
This bill requires a law enforcement officer to serve the ex
parte gun violence restraining order on the restrained person,
if the restrained person can reasonably be located. When
serving a gun violence restraining order, the law enforcement
officer shall inform the restrained person that he or she is
entitled to a hearing and provide the restrained person with a
form to request a hearing.
This bill requires that a restrained person to surrender to the
(More)
AB 1014 (Skinner)
PageJ
local law enforcement agency any firearm or ammunition in the
restrained person's custody and control, or which the restrained
person possesses or owns. The firearms or ammunition
surrendered are required be retained by the law enforcement
agency until the expiration of the ex parte gun violence
restraining order.
This bill allows the restrained person who owns a firearm or
ammunition that is in the custody of a law enforcement agency
pursuant to this subdivision, if the firearm is an otherwise
legal firearm, and the restrained person otherwise has right to
title of the firearm, to sell or transfer title of the firearm
to a licensed dealer. And, allows a person other than the
restrained person claims who has title to any firearms or
ammunition surrendered to have to be returned to the lawful.
This bill states that a restrained person is entitled, upon his
or her request, to a hearing to determine the validity of the
order within 14 days after the date on the order before the
court that issued the order or another court in that same
jurisdiction. And, if a restrained person does not request a
hearing, the order shall expire on the date and time listed on
the order.
This bill states that at the hearing, the petitioner has have
the burden of proving that there is good cause to believe that
the restrained person poses a significant risk of personal
injury to himself, herself, or another by having under his or
her custody and control, owning, purchasing, possessing, or
receiving a firearm.
This bill states if it is found at the hearing that there is
good cause to believe that the restrained person poses a
significant risk of personal injury to himself, herself, or
another by having under his or her custody and control, owning,
purchasing, possessing, or receiving a firearm, the ex parte gun
violence order shall stand.
(More)
AB 1014 (Skinner)
PageK
This bill states if the court finds that the petitioner has not
proven that there is good cause supporting the order, the court
shall dissolve the order. And, if the order is dissolved, the
court is required to submit a notice of that fact to the
Department of Justice and the district attorney. Upon receipt of
the notice, the Department of Justice shall, within 15 days,
delete any reference to the ex parte gun violence restraining
order from its records.
Gun Violence Restraining Order Issued After Notice and Hearing
This bill would allow a court to issue a gun violence
restraining order after notice and a hearing when there is clear
and convincing evidence that the subject of the petition poses a
significant risk of personal injury to himself, herself, or
another by having under his or her custody and control, owning,
purchasing, possessing, or receiving a firearm as determined by
balancing evidence of certain facts specified by the bill.
This bill states that the petitioner shall have the burden of
proving that there is clear and convincing evidence to believe
that the subject of the petition poses a significant risk of
personal injury to himself, herself, or another by having under
his or her custody and control, owning, purchasing, possessing,
or receiving a firearm.
This bill states that if the petition is supported by clear and
convincing evidence, the court is required to issue a gun
violence restraining order that prohibits the subject of the
petition from having under his or her custody and control,
owning, purchasing, possessing, or receiving, or attempting to
purchase or receive, a firearm or ammunition.
This bill states that the gun violence restraining order issued
after notice and a hearing has the duration of one year, subject
to termination by further order of the court at a hearing or
renewal by further order of the court.
This bill requires the court to notify the Department of Justice
and district attorney of the gun violence restraining order
(More)
AB 1014 (Skinner)
PageL
issued under this chapter no later than 24 hours after issuing
the order.
This bill requires that a gun violence restraining order issued
after a notice and a hearing include all of the following:
A statement of the grounds supporting the issuance of the
order.
The date and time the order expires.
The address of the superior court for the district or county
in which the restrained party resides.
The following statement:
"To the restrained person: This order will last until the
date and time noted above. You may not have under your
custody and control, own, purchase, possess, or receive,
or attempt to purchase or receive a firearm or
ammunition, while this order is in effect. Pursuant to
Section 18109, you have the right to request one hearing
to terminate this order at any time during its effective
period. You may seek the advice of an attorney as to any
matter connected with the order."
This bill states that when the court issues a gun violence
restraining order, the court shall inform the restrained person
that he or she is entitled to one hearing to request a
termination of the order and shall provide the restrained person
with a form to request a hearing.
This bill allows the restrained person who owns a firearm or
ammunition that is in the custody of a law enforcement agency
pursuant to this subdivision, if the firearm is an otherwise
legal firearm, and the restrained person otherwise has right to
title of the firearm, to sell or transfer title of the firearm
to a licensed dealer. And, allows a person other than the
restrained person claims who has title to any firearms or
ammunition surrendered to have to be returned to the lawful.
This bill allows the restrained person to submit one written
request at any time during the effective period of the order for
(More)
AB 1014 (Skinner)
PageM
a hearing for an order permitting the person to own, possess,
purchase, or receive a firearm.
This bill states that if the court finds after the hearing that
there is no longer clear and convincing evidence to believe that
the restrained person poses a significant risk of personal
injury to himself, herself, or another by having under his or
her custody and control, owning, purchasing, possessing, or
receiving a firearm, the court shall terminate the order. If
the order has been terminated, the court shall submit a notice
of that fact to the Department of Justice and the District
Attorney.
This bill states that a court may, after notice and a hearing,
renew a gun violence restraining order issued under this chapter
if there is clear and convincing evidence that the restrained
person continues to pose a significant risk of personal injury
to himself, herself, or another by possessing a firearm. In
determining whether to renew a gun violence restraining order
issued under this chapter, the court is required to consider
certain facts, as specified. At the hearing, the petitioner
shall have the burden of proving that there is clear and
convincing evidence to believe that the restrained person
continues to pose a significant risk of personal injury to
himself, herself, or another by having under his or her custody
and control, owning, purchasing, possessing, or receiving a
firearm. If the renewal petition is supported by clear and
convincing evidence, the court shall renew the gun violence
restraining order for the duration of one year. The court shall
notify the district attorney and DOJ if the restraining order is
renewed.
Access to Mental Health Information
This bill would allow for the use of mental health information
provided to DOJ, to determine the eligibility of a person to
acquire, carry, or possess firearms, destructive devices, or
(More)
AB 1014 (Skinner)
PageN
explosives who is the subject of a criminal investigation, or
who is the subject of a petition for the issuance of a gun
violence restraining order, if a part of the investigation
involves the acquisition, carrying, or possession of firearms,
explosives, or destructive devices by that person.
Penalty Provisions
This bill states that every person who files a petition for an
ex parte gun violence restraining order or a gun violence
restraining order issued after notice and a hearing, knowing the
information in the petition to be false or with the intent to
harass, is guilty of a misdemeanor.
This bill states that every person who violates an ex parte gun
violence restraining order or a gun violence restraining order
issued after notice and a hearing, is guilty of a misdemeanor
and shall be prohibited from having under his or her custody and
control, owning, purchasing, possessing, or receiving, or
attempting to purchase or receive, a firearm or ammunition for a
five-year period, to commence upon the expiration of the
existing gun violence restraining order.
This bill would allow law enforcement to take custody of
firearms when serving a gun violence restraining order.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
(More)
AB 1014 (Skinner)
PageO
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
(More)
AB 1014 (Skinner)
PageP
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
(More)
AB 1014 (Skinner)
PageQ
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for Legislation
According to the author:
Family members and people close to us often see the
warning signs when individuals are at imminent risk of
being a danger to themselves or others before any
violence occurs. In some cases, there is no mechanism
in the law to limit a loved one's access to firearms
while help or treatment (i.e. mental health
counseling, substance abuse treatment, or anger
management) is sought.
When a law enforcement officer encounters a person who
appears to be a danger to himself, herself, or others,
current law provides three options: take the person to
a mental health facility for an evaluation of whether
he or she is a danger to self or others because of a
mental disorder (W&I Code, Sec. 5150); conduct a
criminal investigation; assess the appropriateness of
a domestic violence protective order (only protects
certain relationships, including spouse, former
spouse, domestic partner, child, etc.).
When a psychotherapist determines that a patient
presents a serious danger of violence to another, he
or she must use reasonable care to protect the
intended victim against such danger which may include
(More)
AB 1014 (Skinner)
PageR
a warning to law enforcement. Tarasoff v. Regents of
the University of California, 17 Cal. 3d 425, 551 P.2d
334, 131 Cal. Rptr. 14 (Cal. 1976). Tarasoff requires
a "reasonably identifiable victim or victims" and a
specific threat. It is not applicable when there is a
generalized threat to a large category of potential
victims (i.e. all women). The duty to protect does
not necessarily require law enforcement to be alerted.
The psychotherapist may take one or more various
steps, depending on the nature of the case, including
a warning to the intended victim, a warning to others
likely to apprise the victim of the danger,
notification to police, or other steps reasonably
necessary under the circumstances to protect the
victim or victims. Finally, the duty to protect only
applies to psychotherapists, not to other medical
providers or community members.
The recent shootings in Santa Barbara, after the
parents of the disturbed young man desperately tried
but failed to get help before their son's killing
spree, provide a tragic example of how options are
limited for families in crisis.
AB 1014, modeled on our state's domestic violence
restraining order laws, provides family members and
law enforcement with legal tools similar to those now
available in Connecticut, Indiana, and Texas for
protecting loved ones and the public from the danger
of gun violence. AB 1014 allows for the removal of
firearms from individuals who are at risk for
committing acts of violence. It establishes a process
for obtaining a Gun Violence Restraining Order (GVRO)
from a court in order to temporarily limit (for one
year, unless renewed) the individual's access to
firearms when there are warning signs or indications
that the person is at risk for violence.
A Gun Violence Restraining Order is temporary, just
like Domestic-Violence Restraining Order. The person
(More)
AB 1014 (Skinner)
PageS
who is affected by the order cannot possess or
purchase a firearm while the order is in effect, but
regains his or her right to possess firearms when the
order expires or is revoked by the court.
2. Recent Events
On May 23, 2014, six people were killed by Elliot Rogers in Isla
Vista. As reported by CNN:
After promising a "day of retribution" on YouTube, a
heavily armed, mentally disturbed 22-year-old went on
a killing spree in a California college town,
authorities said.
He fatally stabbed three men in his residence, shot
two women to death in front of a sorority house, shot
a man to death inside a deli, exchanged gunfire twice
with police and injured 13 people as he drove from
block to block, the Santa Barbara Sheriff's Office
said Saturday night.
Elliot Rodger, 22, ended the Friday night rampage near
the University of California, Santa Barbara,
apparently by fatally shooting himself in the head
while sitting behind the wheel of his wrecked BMW,
Sheriff Bill Brown said.
Inside the car, police found three handguns -- all
legally purchased -- and more than 400 rounds of
unused ammunition, Brown said at a Saturday evening
press conference.
The suspect formerly was a student at Santa Barbara
City College and lived in Isla Vista, where the
rampage occurred.
His father, Peter Rodger, works in the film industry
and was the second unit assistant director on the
first "The Hunger Games" film, according to a
(More)
AB 1014 (Skinner)
PageT
spokeswoman for Lionsgate.
The younger Rodger apparently telegraphed his
intentions. The day before the rampage, he released a
YouTube video entitled "Retribution," in which he
rants about women who ignored or rejected him over the
past eight years, "since I hit puberty."
"Tomorrow is the day of retribution, the day in which
I will have my revenge," he says on the video. "You
girls have never been attracted to me. I don't know
why you girls aren't attracted to me, but I will
punish you all for it." He specifically criticized
sorority members.
Rodger appears to have further chronicled his rage in
a 140-page account of his life that begins with his
birth and ends with what he describes as "the Day of
Retribution." The document, titled "My Twisted
World," was obtained by CNN affiliate KEYT.
"It was apparent he was very mentally disturbed,"
Brown said.
So disturbed that a family member asked law
enforcement officers to check on his welfare April 30,
Brown said. They went to his residence, found Rodger
"polite and courteous," and left, Brown said.
The rampage left six dead and 13 hurt, with eight
suffering gunshot wounds, four hit by the suspect's
vehicle and one suffering a minor injury "of unknown
origin," Brown said.
At the press conference, Dr. Stephen Kaminski, trauma
services director for Santa Barbara Cottage Hospital,
gave this account of 11 of the wounded: four treated
and released, and seven transferred to Cottage
Hospital. Of those seven, two were in good condition,
three fair and two serious, he said.
(More)
AB 1014 (Skinner)
PageU
(Deadly California rampage: Chilling video, but no match
for reality, Ralph Ellis and Sara Snider, CNN, May 17,
2014.)
3. Consortium for Risk-Based Firearm Policy
On December 2, 2013, the Consortium for Risk-Based Firearm
Policy released a report detailing evidence-based state policy
recommendations on gun violence prevention and mental health.
(Guns, Public Health, and Mental Illness: An Evidence-Based
Approach for State Policy, Consortium for Risk-Based Firearm
Policy, December 2, 2013.) The consortium included the nation's
leading researchers, practitioners, and advocates in gun
violence prevention and mental health. (Id. at 2.) In March of
2013, members of the consortium met for a two-day conference to
discuss research evidence and identify areas of consensus.
(Id.) This meeting resulted in a commitment to advance
evidence-based gun violence prevention policy recommendations
through the newly formed consortium. (Id.)
One of the recommendations made by the consortium was:
Recommendation #3: Develop a mechanism to authorize
law enforcement officers to removed firearms when they
identify someone who poses an immediate threat of harm
to self or others. States should also provide law
enforcement with a mechanism to require a warrant
authorizing gun removal when the risk of harm to self
or others is credible, but not immediate In addition,
states should create a new civil restraining order
process to allow family members and intimate partners
to petition the court to authorize removal of firearms
and temporarily prohibit firearm purchase and
possession based on a credible risk of physical harm
to self or others, even when domestic violence is not
an issue.
3.1: Authorize law enforcement to remove guns
from any individual who poses an immediate threat
(More)
AB 1014 (Skinner)
PageV
of harm to self or others. Law enforcement
officers are well versed in the "use of force"
continuum, and may also use risk/lethality
assessments to just the risk of particular
situations. In emergency situations, this
authority can be exercised without a warrant.
3.2: Create a new civil restraining order
process to allow private citizens to petition the
court to request the guns be temporarily removed
from a family member or intimate partner who
poses a credible risk of harm to self or others.
This process should mirror the restraining order
process in most states and include a temporary ex
parte order as well as a long-term order issued
after a hearing in which the respondent had an
opportunity to participate. Respondents to an
order issued through this process (Gun Violence
Restraining Order or GVRO) will be prohibited
from purchasing and possessing guns for the
duration of the order and required to relinquish
all firearms in their possession for the duration
of the order. Law enforcement officers should be
able to request a warrant through this process to
remove guns when there is a credible risk of harm
that is not immediate.
3.3: Include due process protections for
affected individuals. Specifically, provide
respondents with an opportunity to participate in
a hearing after having their guns removed by law
enforcement (3.1) or through the GVRO process
(3.2) and assure processes are in place for
returning all removed guns at the conclusion of
the temporary prohibition.
(Id. at 4-5.)
The following research priorities were identified with regard to
the above recommendation:
(More)
AB 1014 (Skinner)
PageW
Examine potential negative consequences of existing
mental illness-focused gun policies, which can
'over-identify' the target population with mental
illness and capture people at low risk of future
violence. Future research should investigate how such
policies affect stigma and discrimination, mental
health treatment seeking, and therapeutic
relationships. Investigate implementation of existing
state firearm seizure laws. To date, little is known
about how and when such laws are used. Important
research questions include:
a. In what situations are existing
firearm seizure laws being used?
b. When law enforcement are
notified that an individual is prohibited
from having a gun, how likely are they to
investigate and seize firearms?
c. When persons are prohibited
from having a gun due to state and federal
law, how often are guns actually seized?
d. How many guns that are seized
are actually restored?
e. What is the process for firearm
seizure and (if applicable) restoration?
f. What happens when seized guns
are found to be illegal?
g. What types of guns do existing
seizure laws cover?
Investigate whether existing state firearm seizure
laws apply to guns owned by the prohibited individual
only, or also to guns owned by others in the
household? For example, if a woman is prohibited from
having a firearm, could her husband's firearms be
confiscated?
Evaluate how gun seizure laws affect those who need a
firearm to do their job, such as law enforcement officers
or security guards. The potential to use gun seizure as
(More)
AB 1014 (Skinner)
PageX
leverage for mental health or substance abuse treatment
among this group should be examined.
Investigate which specific criteria should be used in
making evidence-based judgments of dangerousness. (Id. at
35-36.)
4. Gun Seizure Laws: Connecticut and Indiana
Connecticut:
The law allows any two police officers (or a state's attorney)
to get warrants and seize guns from anyone who poses an imminent
risk of injuring himself or herself or someone else. (OLR
Research Report, Gun Seizure Law, Veronica Rose, August 13,
2014, http://www.cga.ct.gov /2009/rpt/2009-R-0306.htm) A
warrant may be sought only after (1) conducting an independent
investigation to establish probable cause, and (2) determining
that no reasonable alternative exists to avert the risk of harm.
(Id.)
In determining whether probable cause exists for issuing a
warrant, the judge must consider any recent threat or violent
act the person directed at himself or herself, others, or
animals. (Id.) In determining whether the threats or acts
constitute probable cause to believe a risk of injury is
imminent, the judge may consider, among other things, if the
person (1) recklessly used, displayed, or brandished a gun; (2)
has a history of using, attempting, or threatening to use
physical force against people; (3) was ever involuntarily
confined to a psychiatric hospital; (4) abused alcohol; or (5)
illegally used controlled substances. If satisfied that
probable cause exists and there is no reasonable alternative to
prevent the person from causing imminent harm, the judge must
issue the warrant. (Id.)
The court must hold a hearing within 14 days after a seizure to
determine whether to return the guns or order them held for up
to one year. (Id.)
(More)
AB 1014 (Skinner)
PageY
From 1999, when the law took effect, to 2009, police had applied
for at least 277 warrants and seized more than 2,000 guns.<1>
(Id.) In 185 (67%) of the 277 cases, warrant applications were
based on a suicide risk, murder allegation, or both. (Id.)
Suicide threats or behavior accounted for 126 (46%) of the
applications, murder threats for 34 (12%), and murder-suicide
threats for 25 (9%). (Id.) Other factors that triggered
applications included mental instability (11%), threatening
(7%), reckless gun use or display (4%), and domestic violence
(3%). (Id.)
Indiana:
In Indiana, law enforcement is allowed to seize, with or without
obtaining a warrant, firearms from a person who they believe is
dangerous. (Indiana Code §§ 35-47-14-2 and 35-4714-3) Indiana
defines "dangerous" to mean:
(1) the individual presents an imminent risk of
personal injury to the individual or to another
individual; or
(2) the individual may present a risk of personal
injury to the individual or to another individual in
the future and the individual:
(A) has a mental illness (as defined in IC
12-7-2-130) that may be controlled by medication, and
has not demonstrated a pattern of voluntarily and
consistently taking the individual's medication while
not under supervision; or
(B) is the subject of documented evidence that
would give rise to a reasonable belief that the
individual has a propensity for violent or emotionally
unstable conduct. (Id. at 35-47-14-1.)
----------------------
<1> This reflects number of warrants requested by law
enforcement after an investigation, not the number of triggering
complaints received. The committee was not able to locate
information as to how often law enforcement receives a complaint
and does not seek a warrant.
(More)
AB 1014 (Skinner)
PageZ
If law enforcement seizes the firearm without first obtaining a
seizure warrant, the officer is required to submit to the court
a written statement under oath or affirmation describing the
basis for the law enforcement officer's belief that the
individual is dangerous. (Id. at 35-47-14-3.) The court is
then required to review that statement and determine if probable
cause exists to retain the firearm. (Id.) The court then
conducts a hearing within 14 days to determine whether the
firearm should be seized. (Id. at 35-47-14-5.) At the hearing,
it is the state's burden to proof by clear and convincing
evidence that the individual is dangerous. (Id. at 35-47-14-6.)
At least one hundred eighty (180) days after the date on which
a court orders a law enforcement agency to retain the firearm,
the individual may petition the court for return of the firearm.
(Id. at 35-47-14-8.)
In 2010, a study was done on the use of the law Indiana law.
The study, which utilized information from Marion County,
states:
Marion County's use of Indiana's firearm seizure law
showed significant changes over the course of the
first two calendar years of its implementation. Based
on the number of cases resolved in court, the law was
used 55 times in 2006 and 78 times in 2007. To put
this in context, the overall rate of use of the
firearm seizure law in 2006 and 2007 in Indianapolis,
a city of 781,000 persons in 2000, was 8.5 cases per
year per 100,000 residents, which far exceeded the
rate in Connecticut (.43 cases per year per 100,000),
the only other state with such a law (22), even when
factoring in the relative prevalence of gun ownership
in Indiana (39.1%) versus Connecticut (16.7%).
The pattern of the reasons for gun seizure changed
over the first two years of the law's use in
Indianapolis-that is, the number of confiscations
because of risk of suicide increased while the number
of confiscations because of risk of violence or in the
(More)
AB 1014 (Skinner)
PageA
context of a domestic disturbance decreased . . . The
proportion of firearm seizures related to active
psychosis was steady over the two-year study period
and was one of the least frequent reasons for
confiscation, even though the tragic shooting that led
to the passage of the firearm seizure law was most
likely a result of paranoid psychosis.
The pattern of disposition of the firearm seizure
cases also changed over the two-year study period. In
2006 cases took nearly 180 days to go to a final
hearing, but in 2007 hearings took place an average of
almost one year after the confiscation. This
significant change can be accounted for, in large
part, by the number of cases that were resolved
without the presence of the gun owner; in 53 cases in
2007 the owner either could not be found to be served
with notice of the hearing or did not appear after
having been served. In contrast, all of the 55 cases
in 2006 were decided based on a hearing in which the
defendant was present.
(Application of a Firearm Seizure Law Aimed at Dangerous
Persons: Outcomes From the First Two Years, George F.
Parker, M.D., Psychiatric Services, 2010 [footnotes
omitted].)
The report concluded:
Indianapolis' experience with the introduction and
implementation of a firearm seizure law, which had its
origins in the political response to a police shooting
death at the hands of a person with very probable
psychosis, showed that active symptoms of psychosis
were rarely a cause for confiscation. Instead, risk
of suicide and risk of substance abuse were the
predominant reasons for gun seizure. In addition, the
implementation of the law in the court proved as
important as its use in the community. Although
formal hearings increasingly led to return of weapons
(More)
AB 1014 (Skinner)
PageB
over the study period, retention for failure to appear
or inability to locate the defendant assumed a major
role in the second year of the bill's implementation.
Although the seizure law has been a useful tool for
police in decreasing the risk of firearm use in
volatile situations, its overall impact must be
considered minimal, because only 360 weapons were
seized in two years in a city of more than 780,000
persons, nearly 40% of whom own a firearm. (Id.)
5. Federal Efforts
On June 5, 2014, Senators Feinstein and Boxer, and
Representative Capps introduced federal legislation that would
encourage states to implement measure that would help to prevent
gun violence:
Washington-In response to the recent mass shooting in
the Isla Vista community near Santa Barbara, U.S.
Senators Dianne Feinstein and Barbara Boxer (both
D-CA) today introduced The Pause for Safety
Act-legislation that will encourage states to empower
families and others with new tools to prevent a
tragedy if someone they are close to poses a threat of
gun violence.
Congresswoman Lois Capps (D-CA), who represents the
Santa Barbara area, is introducing The Pause for
Safety Act in the House today.
"We must do everything in our power to keep firearms
out of the hands of those who pose a serious risk of
harm to themselves or to others," Senator Feinstein
said. "I'm pleased to work with Senator Boxer on this
bill, which creates a new grant program to encourage
states to allow family members and others to seek
court orders to temporarily prohibit dangerous
individuals from possessing a firearm. The bill would
allow those who know the most about the condition of
someone who poses a risk of committing violence to
(More)
AB 1014 (Skinner)
PageC
take steps to remove firearms from that individual's
possession."
"It is haunting to me that the family of the gunman
was desperate to prevent an act of violence and
alerted police, but they were still unable to stop
this tragedy," Senator Boxer said. "When the people
who know someone best fear there is a threat of
violence, they should be able to go to court - with
due process for everyone involved - to help prevent a
tragedy."
"Our community in Isla Vista has been upended by this
horrific act of violence," Congresswoman Capps said.
"We need reasonable, common sense solutions so that we
all feel safe in our homes and out in our communities.
This important bill will allow families who see
disturbing warning signs the ability to work with law
enforcement and mental health professionals so that
they may intervene and better prevent acts of
violence. Far too often there are many red flags but
no one is able to connect the dots. This bill seeks
to do just that."
The Pause for Safety Act would encourage states to
take the following steps to help prevent gun violence:
One, ensure that families and others can go to
court to seek a gun violence prevention order to
temporarily stop someone close to them who poses
a threat to himself, herself or others from
purchasing a firearm.
Two, ensure that a court can issue a gun
violence prevention warrant that would allow law
enforcement to take temporary possession of
firearms that are in an individual's possession
if the court determines that the individual poses
a threat to himself, herself or others.
(More)
AB 1014 (Skinner)
PageD
Three, ensure that law enforcement makes full
use of all existing state and local gun databases
when assessing a tip, warning or request from a
concerned family member or other close associate.
The measure would create a new grant program - the
Pause for Safety Grant Program - to help support these
efforts. States that take action to enact these
preventive measures would be eligible for the grants
to provide resources for courts and law enforcement as
they implement these measures.
(http://www.feinstein.senate.gov/public/index.cfm/press-rele
ases?ID=3b6bf98e-674f-4529-93c7-4ccc3e83a758)
6. Effect of this Legislation
This bill, which was gutted and amended in the Senate on May
28th to contain the subject matter now in the bill, would create
an entirely new restraining order system in California-the Gun
Violence Restraining Order system.
This legislation is modeled after California's current domestic
violence restraining order system. In California, an emergency
protective order may be issued if law enforcement asserts
reasonable grounds to believe, "[t]hat a person is in immediate
and present danger of domestic violence, based on the person's
allegation of a recent incident of abuse or threat of abuse by
the person against whom the order is sought." (Family Code §
6250.) A more lengthy domestic violence restraining order can
be sought in instances in which, (1) A person has abused (or
threated to abuse) the person seeking the order, and (2) the
person seeking the order has a close relationship with the
person to be restrained. (http://www.courts.ca.gov/
selfhelp-domesticviolence.htm.) The California courts website
explains what is considered abuse:
Domestic violence is abuse or threats of abuse when
the person being abused and the abuser are or have
been in an intimate relationship (married or domestic
(More)
AB 1014 (Skinner)
PageE
partners, are dating or used to date, live or lived
together, or have a child together). It is also when
the abused person and the abusive person are closely
related by blood or by marriage.
The domestic violence laws say "abuse" is:
§ Physically hurting or trying to hurt
someone, intentionally or recklessly;
§ Sexual assault;
§ Making someone reasonably afraid that
they or someone else are about to be seriously
hurt (like threats or promises to harm
someone); OR
§ Behavior like harassing, stalking,
threatening, or hitting someone; disturbing
someone's peace; or destroying someone's
personal property.
The physical abuse is not just hitting. Abuse can be
kicking, shoving, pushing, pulling hair, throwing
things, scaring or following you, or keeping you from
freely coming and going. It can even include physical
abuse of the family pets.
Also, keep in mind that the abuse in domestic violence
does not have to be physical. Abuse can be verbal
(spoken), emotional, or psychological. You do not
have to be physically hit to be abused. Often, abuse
takes many forms, and abusers use a combination of
tactics to control and have power over the person
being abused. (Id.)
There are three types of domestic violence restraining orders,
(1) Emergency Protective Order, (2) Temporary Restraining Order,
and (3) Permanent Restraining Order.
Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law
(More)
AB 1014 (Skinner)
PageF
enforcement can ask for by calling a judge. Judges
are available to issue EPOs 24 hours a day. So, a
police officer that answers a domestic violence call
can ask a judge for an emergency protective order at
any time of the day or night.
The emergency protective order starts right away and
can last up to 7 days. The judge can order the abusive
person to leave the home and stay away from the victim
and any children for up to a week. That gives the
victim of the abuse enough time to go to court to file
for a temporary restraining order.
To get an order that lasts longer than an EPO, you
must ask the court for a temporary restraining order
(also called a "TRO").
Temporary Restraining Order (TRO)
When you go to court to ask for a domestic violence
restraining order, you fill out paperwork where you
tell the judge everything that has happened and why
you need a restraining order. If the judge believes
you need protection, he or she will give you a
temporary restraining order.
Temporary restraining orders usually last between 20
and 25 days, until the court hearing date.
"Permanent" Restraining Order
When you go to court for the hearing that was
scheduled for your TRO, the judge may issue a
"permanent" restraining order. They are not really
"permanent" because they usually last up to 3 years.
At the end of those 3 years (or whenever your order
runs out), you can ask for a new restraining order so
you remain protected. (Id.)
(More)
AB 1014 (Skinner)
PageG
An individual who is the subject of a domestic violence
restraining order may be prohibited from firearms ownership for
the duration of that court order.
This legislation differs from the domestic violence restraining
order system in a variety of ways:
1. Standard for Requesting an Order
For the court to issue a domestic violence restraining order
there has to be a showing of abuse (physical, mental, or
threatened) directed at the person seeking the order, or their
minor children. The gun violence restraining order would
require a more attenuated showing-that the person to be
restrained poses a significant risk of personal injury to
himself, herself, or another by having under his or her custody
and control, owning, purchasing, possessing, or receiving a
firearm.
In order for a court to determine whether the person to be
restrained poses a significant risk of personal injury to
himself, herself or others, the court is required to balance:
(1) a threat of violence or act of violence by the subject of
the petition directed toward another; (2) a threat of violence
or act of violence by the subject of the petition directed
toward himself or herself; (3) a violation of an unexpired
emergency protective order; and, (4) a conviction for any
offense listed in Section 29805. The court can, additionally,
consider the following: (1) the reckless use, display, or
brandishing of a firearm by the subject of the petition; (2) the
history of use, attempted use, or threatened use of physical
force by the subject of the petition against another person; (3)
any prior arrest of the subject of the petition for a felony
offense; (4) any history of a violation by the subject of the
petition of an emergency protective order; (5) evidence of
recent or ongoing abuse of controlled substances or alcohol by
the subject of the petition; (6) evidence of recent acquisition
of firearms or other deadly weapons; and, (7) the recency of any
of the acts identified in the list acts the court is required to
consider.
(More)
AB 1014 (Skinner)
PageH
HOW DOES THE STANDARD "SIGNIFICANT RISK OF PERSONAL INJURY TO
HIMSELF, HERSELF OR OTHERS" DIFFER FROM THE WELFARE AND
INSTITUTIONS CODE 5150 STANDARD, "DANGER TO SELF OR OTHERS"?
COULD A GUN VIOLENCE RESTRAINING ORDER BE SOUGHT IN CASES IN
WHICH A PERSON THINKS AN INDIVIDUAL IS A SUICIDE RISK, EVEN IF A
LICENSED PROFESSIONAL HAS DETERMINED THAT A PERSON IS NOT A
"DANGER TO SELF OR OTHERS"? IF SO, SHOULD THIS FINDING BE
PRESENTED TO THE COURT AT THE HEARING?
IS THE STANDARD "SIGNIFICANT RISK OF PERSONAL INJURY TO HIMSELF,
HERSELF OR OTHERS" VAGUE?
IS THE STANDARD "SIGNIFICANT RISK OF PERSONAL INJURY TO HIMSELF,
HERSELF OR OTHERS" OVERBROAD?
IS IT CONSTITUTIONAL TO TEMPORARILY DEPRIVE A PERSON OF THEIR
SECOND AMENDMENT RIGHTS BASED ON A FINDING THAT THE PERSON POSES
A "SIGNIFICANT RISK OF PERSONAL INJURY TO HIMSELF, HERSELF OR
OTHERS"?
DOES THIS LEGISLATION RAISE FOURTH AMENDMENT CONCERNS?
SHOULD JUDICIAL DISCRETION BE LIMITED BY MANDATING THE COURT TO
CONSIDER CERTAIN EVIDENCE?
SHOULD ANY CONVICTION FOR AN OFFENSE LISTED IN PENAL CODE 29805,
WHICH INCLUDES A NUMBER OF MISDEMEANORS, BE CONSIDERED,
REGARDLESS OF THE AGE OF THE CONVICTION?
SHOULD ANY FELONY ARRESTS BE CONSIDERED?
TO OBTAIN A FIREARMS SEIZURE WARRANT IN CONNECTICUT, LAW
ENFORCEMENT MUST SHOW THAT NO REASONABLE ALTERNATIVE EXISTS TO
AVERT THE RISK OF HARM. SHOULD A SIMILAR SHOWING BE REQUIRED IN
CALIFORNIA?
2. Who can Request the Order
(More)
AB 1014 (Skinner)
PageI
Only those with a close relationship to the person to be
restrained can request a domestic violence protective order.
Specifically, the person seeking the order must be: (1) married
or registered domestic partners; (2) divorced or separated; (3)
dating or used to date; (4) living together or used to live
together (more than roommates); (5) parents together of a child;
or, (6) closely related (parent, child, brother, sister,
grandmother, grandfather, in-law).
This legislation would allow anyone to request a gun violence
restraining order. While the legislation requires the
requesting party to sign an affidavit under perjury, and also
creates a new misdemeanor to punish anyone who files a request
"knowing the information in the petition to be false or with the
intent to harass," members may wish to consider whether allowing
anyone to file these requests is prudent.
SHOULD ANYONE BE ALLOWED TO PETITION THE COURT TO ISSUE A GUN
VIOLENCE RESTRAINING ORDER?
3. Process to Request an Order
The domestic violence restraining order system has three types
of restraining orders, each of which has a clear process.
The author has indicated that amendments will be made to make
this legislation more consistent with the processes used in the
domestic violence restraining order system. (See "Authors
Amendments" below). As the legislation is currently drafted the
procedural process for obtaining an order is unclear. The
legislation outlines the procedure for obtaining an "Ex Parte
Gun Violence Restraining Order" and a "Gun Violence Restraining
Order Issued after Notice and Hearing."
Under this legislation, a person would be able to petition the
court for an ex parte order to temporarily take away a person's
ability to own, purchase or have a firearm. In support of the
petition, the petitioner could provide the court an affidavit,
signed under oath, which sets out facts "tending to establish
(More)
AB 1014 (Skinner)
PageJ
the grounds of the petition, or the reasons for believing they
exist." In the alternative, the court is authorized to take an
oral statement under oath. If the court, after considering the
factors described above, finds that there is good cause that the
person to be restrained poses a significant risk of harm to
himself, herself, or others, the court would be required to
issue an ex parte gun violence restraining order. The ex parte
order could be issued for up to 14 days. Upon issuance of the
order, law enforcement would be required to serve the order on
the restrained person, if the person can "reasonably be
located."<2> When serving the order, law enforcement would be
required to inform the restrained person he or she is entitled
to a hearing. Upon being served with the order, the restrained
person would be required to surrender all firearms and
ammunition to local law enforcement.<3> If the restrained
person requests a hearing, a hearing would have to be provided
within 14 days (to consider the validity of the order that can
last no more than 14 days). At the hearing, the petitioner has
the burden of proving there is good cause to believe the
restrained person poses a significant risk of harm to himself,
herself, or others. If the court determines there is good
cause, the order stands for the remainder of the 14 days. If
the court determines good cause does not exist, the order would
be dissolved and the person would be entitled to get his or her
firearms back from law enforcement. Prior to law enforcement
releasing the firearms, the person would have to go through the
Law Enforcement Gun Release process outlined in penal code
---------------------------
<2> It is unclear what "reasonably be located" means.
<3> It is unclear whether the person is required to give law
enforcement serving the order all firearms or ammunition or if
the person would be required to surrender the firearms at the
local police or sheriff's station.
(More)
AB 1014 (Skinner)
PageK
section 33855.<4>
A person could, in the alternative or even simultaneously,
petition the court for a "gun violence restraining order issued
after notice and hearing."<5> At the hearing, the petitioner
would be required to prove that there is clear and convincing
evidence to believe that the subject of the petition poses a
significant risk of injury to himself, herself, or others. If
the court finds there is clear and convincing evidence to
believe the person is a significant risk, the court would be
required to issue a restraining order for one year. If the
court issues an order, the court would be required to inform the
restrained person that he or she is entitled to one hearing to
request a termination of the order.<6> As a result of the
issuance of the order, the restrained person is required to
surrender firearms to local law enforcement.<7> If the person
wants to challenge the order, a procedure is set up in the
legislation that would entitle the person to one hearing during
the one year prohibition period.
SHOULD A HEARING BE PROVIDED TO THE RESTRAINED PERSON ANYTIME A
GUN VIOLENCE RESTRAINING ORDER IS REQUESTED?
SHOULD NOTICE BE PROVIDED TO THE PERSON TO BE RESTRAINED PRIOR
TO THE ISSUANCE OF A GUN VIOLENCE RESTRAINING ORDER? AND, WHAT
TYPE OF NOTICE WOULD BE SUFFICIENT?
SHOULD PROVISIONS BE ADDED TO THE LEGISLATION TO ENSURE THAT A
RESTRAINED PERSON BE NOTIFIED THAT A GUN VIOLENCE RESTRAINING
ORDER WAS ISSUED?
---------------------------
<4> Individuals seeking the return of a firearm(s) that is in
the custody or control of a court or law enforcement agency must
submit a LEGR Application along with the appropriate fees to the
Department of Justice. Additionally, if an individual is
seeking the return of a long gun purchased prior to January 1,
2014, a Firearms Ownership Report application (BOF 4542A), pdf
should be submitted along with the appropriate fees assuming the
long gun was not already registered as an assault weapon or 50
BMG rifle. A firearms eligibility check will be conducted to
determine if the applicant is lawfully eligible to possess
firearms. A notice of the results will be sent to the applicant.
The notice must be presented to the court or agency within
thirty (30) days of the date of the notice. Failure to do so
will result in the need to submit a new application and fees and
undergo another firearms eligibility check.
(http://oag.ca.gov/firearms/legrinfo.)
<5> While the legislation references notice it is unclear
whether the petitioner is required to provide the person to be
restrained notice, and what type of notice would be required.
<6> It is unclear what the court would be required to do if the
restrained person was not present at the hearing.
<7> It is unclear how the person would get notice that he or she
has to surrender his or her firearms, if the restrained person
is not at the hearing.
(More)
AB 1014 (Skinner)
PageL
4. Enforcement
Removing firearms from the hands of those subject to domestic
violence restraining order has been extremely difficult in
California.
In California. . . all persons who are under a DVRO
must surrender their firearms to a local law
enforcement agency or sell them to a licensed dealer
within 24 hours of the restraining order being served.
Firearm relinquishment in these cases must be
immediate at the request of a law enforcement officer.
As in other states, the extent to which firearm
relinquishment actually occurs in California is
questionable at best. A 2005 report to the California
Attorney General found that none of the law
enforcement agencies in the 10 counties studied had a
policy to proactively enforce firearm prohibitions on
civil DVROs (Attorney General's Task Force on Local
Criminal Justice Responses to Domestic Violence, 2005;
Seave, 2006). (Removing Guns From Batterers Findings
From a Pilot Survey of Domestic Violence Restraining
Order Recipients in California, Katherine A. Vittes,
Daniel W. Webster, Shannon Frattaroli, Barbara E.
Claire, Garen J. Wintemute, July 5, 2013.)
Given this difficulty, "the California Department of Justice
funded a pilot program in which the Sheriff's Offices in two
counties developed a system for better enforcing the firearm
surrender requirement." (Id.) San Mateo and Butte counties
were chosen for the pilot. (Id.) A study of the pilot program
found during the time of the study:
San Mateo County detectives reviewed 6,024 restraining
orders on 2,973 individuals and linked 525
perpetrators to firearms (17.7 percent overall, 19.7
percent for males and 8.3 percent for females), which
resulted in 119 offenders surrendering one or more of
their firearms. Of the estimated 1,978 restraining
orders that Butte County detectives reviewed, they
(More)
AB 1014 (Skinner)
PageM
served and maintained records on 305 orders to 283
respondents. Among those 283 respondents the
detectives identified 88 offenders with links to
firearms (31.1 percent overall, 33.3 percent for males
and 16.3 percent for females) and recovered one or
more firearms from 45 offenders. Almost all recovered
firearms in both counties (622 of 665) were taken into
custody by law enforcement agencies, with the
remainder being sold to licensed retailers. (Pilot
study finds ways to better screen, recover guns from
domestic violence offenders, University of California
- Davis Health System, December 13, 2013,
http://www.ucdmc.ucdavis.edu/publish /news/ newsroom
/8529/.)
Committee staff was not able determine what policy changes, if
any, resulted from this pilot program or if there have been
improvements with disarming persons subject to domestic violence
restraining orders.
(More)
Given that gun violence restraining orders would likely be
handled in the same manner as domestic violence restraining
orders, disarming those subject to a gun violence restraining
order may pose similar enforcement challenges.
7. Author's Amendments
The author's office has indicated that the author intends to
amend this bill in committee to: (1) allow for an Emergency Gun
Violence Restraining Order, which is only available upon
application by a peace officer, modeled on Family Code 6250, et
seq.; (2) restrict the availability of an ex parte Gun Violence
Restraining Order and a regular Gun Violence Restraining Order
to law enforcement, immediate family members, and
doctors/therapists of the person who is the subject of the
petition; (3) include a higher standard to establish that the
person is a risk to others, "substantial likelihood" rather than
a "significant risk;" (4) include a requirement for a finding
that less restrictive alternatives are either not effective, or
not applicable to the circumstances; (5) make a number of
clarifying changes requested by law enforcement and the courts;
and, (6) define "recent" as within the past six months.
8. Possible Alternative
As noted above, this bill was a gut and amend on May 28th. It
subsequently was amended again on June 11th, and is proposed to
be amended again in committee. The public has had little time
to consider and comment on the creation of the new restraining
order system proposed in this legislation. To the extent there
remains unanswered questions with this bill, members may wish to
weigh the imperatives of moving forward quickly against the
risks of potential unintended consequences.
As an alternative, members may wish to consider pursuing the
approach that has been used in Connecticut since 1999. As
discussed above, in Connecticut, the law allows any two police
officers (or a state's attorney) to get warrants and seize guns
from anyone who poses an imminent risk of injuring himself or
(More)
AB 1014 (Skinner)
PageO
herself or someone else. A warrant may be sought only after (1)
conducting an independent investigation to establish probable
cause, and (2) determining that no reasonable alternative exists
to avert the risk of harm.
In determining whether probable cause exists for issuing a
warrant, the judge must consider any recent threat or violent
act the person directed at himself or herself, others, or
animals. (Id.) In determining whether the threats or acts
constitute probable cause to believe a risk of injury is
imminent, the judge may consider, among other things, if the
person (1) recklessly used, displayed, or brandished a gun; (2)
has a history of using, attempting, or threatening to use
physical force against people; (3) was ever involuntarily
confined to a psychiatric hospital; (4) abused alcohol; or (5)
illegally used controlled substances. If satisfied that
probable cause exists and there is no reasonable alternative to
prevent the person from causing imminent harm, the judge must
issue the warrant.
The court must hold a hearing within 14 days after a seizure to
determine whether to return the guns or order them held for up
to one year.
SHOULD THIS BILL BE AMENDED TO REFLECT THE CONNECTICUT APPROACH?
***************