BILL ANALYSIS Ó AB 1014 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1014 (Skinner and Williams) As Amended August 21, 2014 Majority vote ----------------------------------------------------------------- |ASSEMBLY: | |(May 31, 2013) |SENATE: |23-8 |(August 27, | | | | | | |2014) | ----------------------------------------------------------------- (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 AB 1014 Page 2 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. AB 1014 Page 3 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. AB 1014 Page 4 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 AB 1014 Page 5 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. AB 1014 Page 6 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. AB 1014 Page 7 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 AB 1014 Page 8 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 AB 1014 Page 9 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. AB 1014 Page 10 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 AB 1014 Page 11 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