BILL ANALYSIS Ó
AB 1014
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1014 (Skinner and Williams)
As Amended August 21, 2014
Majority vote
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|ASSEMBLY: | |(May 31, 2013) |SENATE: |23-8 |(August 27, |
| | | | | |2014) |
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(vote not relevant )
Original Committee Reference: U. & C.
SUMMARY : Creates a Gun Violence Restraining Order (GVRO), which
is defined as "an order, in writing, signed by the court,
prohibiting and enjoining a named person from having under his
or her custody and control, owning, purchasing, possessing, or
receiving any firearms or ammunition."
The Senate amendments delete the Assembly version of this bill,
and instead:
1)Allow a search warrant to be issued when the property or
things to be seized are firearms or ammunition, or both, that
are owned by, in the possession of, or in the custody or
control of a person who is the subject of a GVRO, if the
following apply:
a) A prohibited firearm or ammunition or both are
possessed, owned, in the custody of, or controlled by a
person against whom a GVRO has been issued;
b) The person has been lawfully served with that order;
and,
c) The person has failed to relinquish the firearm as
required by law.
2)Require the law enforcement officer executing a search warrant
based on a GVRO to take custody of any firearm or ammunition
that is in the restrained person's custody or control or
possession or that is owned by the restrained person, which is
discovered pursuant to a consensual or other lawful search.
3)Specify if the location to be searched during the execution of
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the warrant is jointly occupied by the restrained person and
one or more other persons and a law enforcement officer
executing the warrant finds a firearm or ammunition in the
restrained person's custody or control or possession, but that
is owned by a person other than the restrained person, the
firearm or ammunition shall not be seized if both of the
following conditions are satisfied:
a) The firearm or ammunition is removed from the restrained
person's custody or control or possession and stored in a
manner that the restrained person does not have access to
or control of the firearm or ammunition; and,
b) There is no evidence of unlawful possession of the
firearm or ammunition by the owner of the firearm or
ammunition.
4)Provide if the location to be searched during the execution of
the warrant is jointly occupied by the restrained person and
one or more other persons and a locked gun safe is located
that is owned by a person other than the restrained person,
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.
5)Mandate the Judicial Council to prescribe the form of the
petitions and orders and any other documents, and promulgate
any rules of court necessary to implement these provisions.
6)State that a petition for a GVRO shall describe the number,
types, and locations of any firearms and ammunition presently
believed by the petitioner to be possessed or controlled by
the subject of the petition.
7)Clarify that nothing in this bill shall be interpreted to
require a law enforcement agency or a law enforcement officer
to seek a GVRO in any case, including, but not limited to, in
a case in which the agency or officer concludes, after
investigation, that the criteria for issuance of a GVRO are
not satisfied.
8)Provide that the court shall notify the Department of Justice
(DOJ) no later than one court day after issuing or renewing a
GVRO.
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9)Require the court to notify DOJ when a GVRO has been dissolved
or terminated no later than five court days after dissolving
or terminating the order; and upon receipt of either a notice
of dissolution or a notice of termination of a GVRO, DOJ
shall, within 15 days, note document the updated status of any
GVRO issued.
10)Provide when notifying DOJ, the court shall indicate on the
notice whether the person subject to the GVRO was present in
court to be informed of the contents of the order or if the
person failed to appear. The person's presence in court shall
constitute proof of service of notice of the terms of the
order.
11)Require, within one business day of service, a law
enforcement officer who served a GVRO to submit proof of
service directing into the California Restraining and
Protective Order System, including his or her name and law
enforcement agency, and shall transmit the original proof of
service form to the issuing court.
12)Require, within one business day of receipt of proof of
service by a person other than a law enforcement officer, the
clerk of the court to submit the proof of service of a GVRO
directly into the California Restraining and Protective Order
System, including the name of the person who served the order.
13)Specify if the court is unable to provide this notification
to DOJ by electronic transmission, the court shall, within one
business day of receipt, transmit a copy of the proof of
service to a local law enforcement agency; and the local law
enforcement agency shall submit the proof of service directly
into the California Restraining and Protective Order System
within one business day of receipt from the court.
14)Prohibit a person subject to a GVRO from having in his or her
custody or control, owning, purchasing, possessing, or
receiving any firearms or ammunition while that order is in
effect.
15)Require a court, upon issuance of a GVRO, to order the
restrained person to surrender to the local law enforcement
agency all firearms and ammunition in his or her custody or
control, or which he or she possesses or owns.
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16)Require the surrender ordered by the court to occur by
immediately surrendering all firearms and ammunition in a safe
manner, upon request of any law enforcement officer, to the
control of the officer, after being served with the
restraining order.
17)States, alternatively, if no request is made by a law
enforcement officer, the surrender shall occur within 24 hours
of being served with the order, by either surrendering all
firearms and ammunition in a safe manner to the control of the
local law enforcement agency, or by selling all firearms and
ammunition to a licensed gun dealer, as specified.
18)Require the law enforcement officer or licensed gun dealer
taking possession of the firearm or firearms or ammunition or
both to issue a receipt to the person surrendering the firearm
or ammunition at the time of surrender.
19)Provide that a person ordered to surrender all firearms and
ammunition pursuant to a GVRO shall, within 48 hours after
being served with the order, do both of the following:
a) File with the court that issued the GVRO, the original
receipt showing all firearms and ammunition have been
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 restraining order; and,
b) File a copy of the receipt with the law enforcement
agency that served the gun violence restraining order.
Failure to timely file a copy of the receipt shall
constitute a violation of the restraining order.
20)State that any firearms or ammunition surrendered to a law
enforcement officer or law enforcement agency shall be
retained by the law enforcement agency until the expiration of
any GVRO that has been issued against the restrained person
and provide for the return of the firearms or ammunition after
the expiration of the GVRO.
21)Provide if a person other than the restrained person claims
title to any firearms or ammunition surrendered pursuant to
this bill, and he or she is determined by the law enforcement
agency to be the lawful owner of the firearm or firearms or,
the firearm or firearms or ammunition shall be returned to him
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or her, as specified.
22)Authorize a court to issue a temporary emergency GVRO on an
ex parte basis if a law enforcement officer asserts and a
judicial officer finds that there is reasonable cause to
believe that the subject of the petition poses an immediate
and present danger of causing personal injury to the subject
of the petition or another by having in his or her custody or
control, owning, purchasing, possessing, or receiving a
firearm and that the temporary emergency GVRO is necessary to
prevent personal injury to himself, herself, or another, as
specified.
23)State that a temporary emergency GVRO shall prohibit the
subject of the petition from having in his or her custody or
control, owning, purchasing, possessing, or receiving, or
attempting to purchase or receive, a firearm or ammunition,
and shall expire 21 days from the date the order is issued.
24)Require a law enforcement officer who requests a temporary
emergency GVRO to serve the order on the restrained person, if
the restrained person can reasonably be located, file a copy
of the order with the court, and have the order entered into
the computer database system for protective and restraining
orders maintained by DOJ.
25)Specify if the order is obtained orally the law enforcement
officer shall memorialize the order of the court on the form
approved by the Judicial Council.
26)Provide that the petition for a temporary emergency GVRO
shall be obtained by submitting a written petition with the
court, unless time and circumstances do not permit the
submission of a written petition.
27)Require the presiding judge of the superior court of each
county to designate at least one judge, commissioner, or
referee who shall be reasonably available to issue temporary
emergency GVROs when the court is not in session.
28)Allow an immediate family member of a person or a law
enforcement officer to file a petition requesting that the
court issue an ex parte GVRO enjoining the subject of the
petition from having in his or her custody or control, owning,
purchasing, possessing, or receiving a firearm or ammunition.
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29)Authorize a court to issue an ex parte GVRO supported by a
written affidavit or oral statement by the petitioner and any
additional information provided to the court that shows that
there is a substantial likelihood that both of the following
are true:
a) The subject of the petition poses a significant danger,
in the near future, of personal injury to himself, herself,
or another by having in his or her custody or control,
owning, purchasing, possessing, or receiving a firearm as
determined by considering the listed factors; and,
b) The ex parte GVRO is necessary to prevent personal
injury to the subject of the petition or another because
less restrictive alternatives either have been tried and
found to be ineffective, or are inadequate or inappropriate
for the circumstances of the subject of the petition.
30)State that an affidavit supporting a petition for the
issuance of an ex parte GVRO shall set forth the facts tending
to establish the grounds of the petition, or the reason for
believing that they exist.
31)Require the ex parte gun violence restraining order to 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.
32)Require the court, before issuing an ex parte GVRO, to
examine on oath, the petitioner and any witness the petitioner
may produce.
33)Provide, in lieu of examining the petitioner and any witness
the petitioner may produce, the court may require the
petitioner and any witness to submit a written affidavit.
34)List specified procedures and evidence that the court must
consider in determining whether grounds for an ex parte GVRO
exist.
35)Specify the contents of an ex parte GVRO.
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36)State that the ex parte GVRO shall expire no later than 21
days after the date on the order.
37)Require the court to hold a hearing within 21 days of issuing
the ex parte gun violence restraining order to determine if a
GVRO that is in effect for one year should be issued.
38)Require a law enforcement officer to personally serve the ex
parte GVRO on the restrained person, or any person who is at
least 18 years of age and not party to the action, as
specified, if the restrained person can reasonably be located,
and inform the restrained person of the hearing.
39)Allow an immediate family member of a person or a law
enforcement officer to request that a court, after notice and
a hearing, issue a GVRO enjoining the subject of the petition
from having in his or her custody or control, owning,
purchasing, possessing, or receiving a firearm or ammunition
for a period of one year.
40)Authorize a court to issue a GVRO prohibiting the subject of
the petition from having in his or her custody or control,
owning, purchasing, possessing, or receiving, or attempting to
purchase or receive a firearm or ammunition for a period of
one year as determined by considering the listed factors and
any other relevant evidence.
41)Provide if the court finds that there is clear and convincing
evidence to believe that the subject of the petition, or a
person subject to an ex parte GVRO, as applicable, will cause
personal injury to himself, herself, or another by having in
his or her custody or control, owning, purchasing, possessing,
or receiving a firearm or ammunition and that the order is
necessary to prevent personal injury to himself, herself, or
another person, as specified, the court shall issue a GVRO for
a duration of one year.
42)State if the court finds that there is not clear and
convincing evidence to support the issuance of a GVRO, the
court shall dissolve any temporary emergency or ex parte GVRO
then in effect.
43)Require that the GVRO issued under the provisions of this
bill to last for a duration of one year, subject to
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termination by further order of the court at a hearing and
renewal by further order of the court.
44)Provide when the court issues a GVRO, 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.
45)Authorize a person subject to a GVRO to submit one written
request at any time during the effective period of the order
for a hearing to terminate the order.
46)State if the court finds after the hearing that there is no
longer clear and convincing evidence to believe that the bases
for issuing the GVRO are true, the court shall terminate the
order.
47)Allow the renewal of the GVRO for additional one-year periods
at the request of an immediate family member of a restrained
person or a law enforcement officer at any time within the
three months before the expiration of a GVRO.
48)Place the burden on the petitioner to prove by clear and
convincing evidence at a hearing that the GVRO should be
renewed.
49)State that any hearing held pursuant to these provisions may
be continued upon a showing of good cause and any existing
order issued shall remain in full force and effect during the
period of continuance.
50)Specify if a person subject to a GVRO was not present in
court at the time the order was issued or renewed, the GVRP
shall be personally served on the restrained person by a law
enforcement officer or any person who is at least 18 years of
age and not a party to the action, if the person can be
reasonably located.
51)Make it a misdemeanor to file a petition for an ex parte GVRO
or a GVRO issued after hearing and notice, knowing the
information in the petition to be false or with the intent to
harass.
52)Provide that every person who owns or possesses a firearm or
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ammunition with knowledge that he or she is prohibited from
doing so by a temporary emergency GVRO, an ex parte GVRO, or a
GVRO issued after notice and hearing, is guilty of a
misdemeanor and shall be prohibited from having in his or her
custody or control, owning, purchasing, possessing, or
receiving, or attempting to purchase or receive, a firearm or
ammunition for a 5-year period, commencing upon the expiration
of the existing gun violence restraining order.
53)State when serving a GVRO, the law enforcement officer, as
specified, 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.
54)Add language from SB 1154 (Hancock) of the current
legislative session, to avoid chaptering issues.
55)Delay implementation of the provisions in this bill until
January 1, 2016.
EXISTING LAW :
1)States the grounds upon which a search warrant may be issued,
including when the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in the
possession of, or in the custody or control of, specified
persons.
2)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.
3)Requires the Attorney General to establish and maintain an
online database to be known as the Prohibited Armed Persons
File. 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, 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.
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4)Provides that 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.
AS PASSED BY THE ASSEMBLY , this bill created a new renewable
energy program substantially similar to a settlement agreement
filed at the California Public Utilities Commission.
FISCAL EFFECT : According to the Senate Appropriations
Committee:
1)One-time significant costs potentially in excess of $250,000
General Fund (GF) to the Judicial Council to develop forms,
instructions, standards, and procedures.
2)Potentially significant ongoing costs to the trial courts,
potentially in the hundreds of thousands to low millions of
dollars GF to hold hearings, issue warrants, and issue gun
violence restraining orders. Actual costs would be dependent
of the volume of petitions filed by law enforcement and family
members.
3)One-time and ongoing costs of about $200,000 GF to DOJ to
upgrade automation systems to accommodate the new information,
provide training to various entities to facilitate the process
of submittal, recording, and tracking of gun violence
restraining order status.
4)Ongoing potentially significant state-reimbursable costs GF
for law enforcement to retain surrendered firearms and
ammunition during the restraining order period, issue a
receipt to the restrained person at the time of surrender, and
serve ex parte restraining orders.
5)Non-reimbursable local law enforcement agency costs for
enforcement and incarceration,
offset to a degree by fine revenue for misdemeanor violations
of the provisions of this measure.
COMMENTS : According to the author, "AB 1014, modeled on our
state's domestic violence restraining order laws, provides
family members and law enforcement with legal tools similar to
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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 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."
This bill was substantially amended in the Senate and the
Assembly-approved version of this bill was deleted. This bill,
as amended in the Senate, is inconsistent with Assembly actions
and the provisions of this bill, as amended in the Senate, have
not been heard in an Assembly policy committee.
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN: 0005430