BILL ANALYSIS Ó
AB 1014
Page 1
( Without Reference to File )
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)
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|COMMITTEE VOTE: |5-2 |(August 29, 2014) |RECOMMENDATION: | concur |
|(Pub. S.) | | | | |
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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
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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
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
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GVRO.
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.
16)Require the surrender ordered by the court to occur by
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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 or her, as
specified.
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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.
29)Authorize a court to issue an ex parte GVRO supported by a
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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.
36)State that the ex parte GVRO shall expire no later than 21 days
after the date on the order.
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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 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
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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
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 five-year
period, commencing upon the expiration of the existing gun
violence restraining order.
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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.
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.
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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 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
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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: 0005583