BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 1131 (Skinner)                                          1
          As Amended June 24, 2013 
          Hearing date:  July 2, 2013
          Welfare and Institutions Code
          SM:mc

                   FIREARMS PROHIBITION: THREATS MADE TO THERAPISTS  

                                       HISTORY

          Source:  Author

          Prior Legislation: None

          Support: California Chapters of the Brady Campaign to Prevent  
                   Gun Violence; Law Center to Prevent Gun Violence

          Opposition:None known

          Assembly Floor Vote:  Not relevant


                                      KEY ISSUES
           
          SHOULD THE PERIOD OF TIME A PERSON IS PROHIBITED FROM POSSESSING  
          OR OWNING A FIREARM BASED ON HIS OR HER COMMUNICATION WITH A  
          LICENSED PSYCHOTHERAPIST, ON OR AFTER JANUARY 1, 2014, OF A  
          THREAT OF PHYSICAL VIOLENCE AGAINST A REASONABLY IDENTIFIABLE  
          VICTIM OR VICTIMS BE INCREASED FROM SIX MONTHS TO FIVE YEARS?

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          WHERE SUCH A PROHIBITION IS CONTESTED, SHOULD THE PROSECUTION BEAR  
          THE BURDEN OF PROOF?

          WHERE A FIREARM HAS BEEN CONFISCATED FOR SPECIFIED MENTAL HEALTH  
          REASONS, SHOULD THE PERIOD OF FORFEITURE BE 180 DAYS, DURING WHICH  
          THE PERSON IT WAS TAKEN FROM MAY CONTACT THE LAW ENFORCEMENT AGENCY  
          TO FACILITATE TRANSFER TO A FIREARMS DEALER, AND AFTER WHICH THE  
          FIREARM WILL BE SUBJECT TO DESTRUCTION?



                                       PURPOSE

          The purpose of this bill is to (1) increase from six months to  
          five years the period of time a person is prohibited from  
          possessing or owning a firearm based on his or her communication  
          with a licensed psychotherapist, on or after January 1, 2014, of  
          a threat of physical violence against a reasonably identifiable  
          victim or victims; (2) provide that, if a hearing is requested  
          to contest such a prohibition, the prosecution has the burden of  
          proof, and other specify additional procedures regarding such  
          hearings; (3) specify procedures to be followed for the return  
          of confiscated firearms by persons found not to be subject to  
          the five-year prohibition for specified mental health reasons;  
          (4) provide that, where a firearm has been confiscated under  
          these provisions, the period of forfeiture is 180 days, during  
          which the person it was taken from may contact the law  
          enforcement agency to facilitate transfer to a firearms dealer,  
          and after which the firearm will be subject to destruction; (5)  
          provide that nothing in this bill shall prohibit the use of  
          reports filed to determine the eligibility of persons to own,  
          possess, control, receive, or purchase a firearm if the person  
          is the subject of a criminal investigation, a part of which  
          involves the ownership, possession, control, receipt, or  
          purchase of a firearm; (6) require specified notices or reports  
          required to be submitted to the Department of Justice (DOJ) to  
          be submitted in an electronic format, in a manner prescribed by  
          DOJ; (7) require the Department of State Hospitals, upon  




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          request, to make its records regarding prohibited persons  
          available to DOJ within 24-hours; (8) require that reports by a  
          licensed psychotherapist to a local law enforcement agency of  
          the identity of a person who has communicated to that therapist  
          a serious threat of physical violence against a reasonably  
          identifiable victim or victims be made within 24 hours; and (9)  
          require that local law enforcement agencies, when they receive  
          such reports, notify DOJ electronically and within 24 hours of  
          receiving that report.
                                          
           Current law  provides that a person shall not have in his or her  
          possession or under his or her custody or control, or purchase  
          or receive, or attempt to purchase or receive, any firearms  
          whatsoever or any other deadly weapon for a period of six months  
          whenever, on or after January 1, 1992, he or she communicates to  
          a licensed psychotherapist, as defined, of a serious threat of  
          physical violence against a reasonably identifiable victim or  
          victims.  The six-month period shall commence from the date that  
          the licensed psychotherapist reports to the local law  
          enforcement agency the identity of the person making the  
          communication.  The prohibition provided for in this subdivision  
          shall not apply unless the licensed psychotherapist notifies a  
          local law enforcement agency of the threat by that person.  The  
          person, however, may own, possess, have custody or control over,  
          or receive or purchase any firearm if a superior court, upon  
          petition of the person, has found, by a preponderance of the  
          evidence, that the person is likely to use firearms or other  
          deadly weapons in a safe and lawful manner.  (WIC  8100(b)(1).)

           Current law  requires the Department of Justice (DOJ), upon  
          receiving a report from the local law enforcement agency of the  
          identity of a person described in the section above, to notify  
          by certified mail a person subject to this prohibition, of the  
          following (WIC  8100(b)(2)):

                 That he or she is prohibited from possessing, having  
               custody or control over, receiving, or purchasing any  
               firearm or other deadly weapon for a period of six months  
               commencing from the date that the licensed psychotherapist  




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               reports to the local law enforcement agency the identity of  
               the person making the communication.  The notice shall  
               state the date when the prohibition commences and ends;  
               and,
                 That he or she may petition a court, as provided in this  
               subdivision, for an order permitting the person to own,  
               possess, control, receive, or purchase a firearm.

           Current law  provides that a violation of these prohibitions  
          against possessing a firearm or deadly weapon shall be  
          punishable by imprisonment in a county jail as a felony for 16  
          months, 2 or 3 years, or as a misdemeanor for not more than one  
          year, by a fine not exceeding one $1,000, or by both that  
          imprisonment and fine.  (WIC  8100(g).)

           Current law  provides that any person who knowingly supplies,  
          sells, gives, or allows possession or control of a firearm to  
          any person who is prohibited as a mentally disordered person  
          shall be punished by imprisonment in the county jail for two,  
          three, or four years.  (WIC  8101(b).)

           Current law  provides that whenever a person, who has been  
          detained or apprehended for examination of his or her mental  
          condition or who is otherwise prohibited from possessing a  
          firearm as specified, is found to own, have in his or her  
          possession or under his or her control, any firearm whatsoever,  
          or any other deadly weapon, the firearm or other deadly weapon  
          shall be confiscated by any law enforcement agency or peace  
          officer, who shall retain custody of the firearm or other deadly  
          weapon.  (WIC  8102(a).)

           Current law  requires the peace officer or law enforcement agency  
          to notify the person of the procedure for the return of any  
          firearm or other deadly weapon which has been confiscated.   
          Where the person is released, the professional person in charge  
          of the facility, or his or her designee, shall notify the person  
          of the procedure for the return of any firearm or other deadly  
          weapon which may have been confiscated.  Health facility  
          personnel shall notify the confiscating law enforcement agency  




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          upon release of the detained person, and shall make a notation  
          to the effect that the facility provided the required notice to  
          the person regarding the procedure to obtain return of any  
          confiscated firearm.  (WIC  8102(b).)

           Current law  provides that upon the release of the person, the  
          confiscating law enforcement agency shall have 30 days to  
          initiate a petition in the superior court for a hearing to  
          determine whether the return of a firearm or other deadly weapon  
          would be likely to result in endangering the person or others,  
          and to send a notice advising the person of his or her right to  
          a hearing on this issue.  The law enforcement agency may make an  
          ex parte application stating good cause for an order extending  
          the time to file a petition.  Including any extension of time  
          granted in response to an ex parte request, a petition must be  
          filed within 60 days of the release of the person from a health  
          facility.  (WIC  8102(c).)

           Current law  requires the law enforcement agency to inform the  
          person that he or she has 30 days to respond to the court clerk  
          to confirm his or her desire for a hearing, and that the failure  
          to respond will result in a default order forfeiting the  
          confiscated firearm or weapon.  (WIC 
           8102(e).)

           Current law  provides that no person who after October 1, 1955,  
          has been adjudicated by a court of any state to be a danger to  
          others as a result of a mental disorder or mental illness, or  
          who has been adjudicated to be a mentally disordered sex  
          offender, shall purchase or receive, or attempt to purchase or  
          receive, or have in his or her possession, custody, or control  
          any firearm or any other deadly weapon unless there has been  
          issued to the person a certificate by the court of adjudication  
          upon release from treatment or at a later date stating that the  
          person may possess a firearm or any other deadly weapon without  
          endangering others, and the person has not, subsequent to the  
          issuance of the certificate, again been adjudicated by a court  
          to be a danger to others as a result of a mental disorder or  
          mental illness.  (WIC  8103(a)(1).)




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           Current law  requires the court to immediately notify DOJ of the  
          court order finding the individual to be a danger to others as a  
          result of a mental disorder or mental illness, or who has been  
          adjudicated to be a mentally disordered sex offender.  The court  
          shall also notify DOJ of any certificate issued by the court  
          stating that the person may possess a firearm or any other  
          deadly weapon.  (WIC  8103(a)(2).)

           Current law  prohibits a person who has been found not guilty by  
          reason of insanity of murder, mayhem, carjacking or robbery in  
          which the victim suffers great bodily injury, burglary in the  
          first degree, or any of the other specified offenses involving  
          death, great bodily injury, or an act which poses a serious  
          threat of bodily harm to another person, from purchasing or  
          receiving, or attempting to purchase or receive, or having in  
          his or her possession or under his or her custody or control any  
          firearm or any other deadly weapon.  The court shall immediately  
          notify DOJ of the court order finding the person to be a person  
          described in this section.  (WIC  8103(b).)

           Current law  prohibits a person who has been found not guilty by  
          reason of insanity for any offense not specifically listed from  
          purchasing or receiving, or attempting to purchase or receive,  
          or having in his or her possession, custody, or control any  
          firearm or any other deadly weapon unless the court of  
          commitment has found the person to have recovered sanity.  The  
          court shall immediately notify DOJ of the court order finding  
          the person to be a person described in this section, and  
          requires the court to also notify the Department of Justice when  
          it finds that the person has recovered his or her sanity.  (WIC  
           8103(c).)

           Current law  prohibits a person who has been found by a court to  
          be mentally incompetent to stand trial, from purchasing or  
          receiving, or attempting to purchase or receive, or having in  
          his or her possession, custody, or control, any firearm or any  
          other deadly weapon, unless there has been a finding with  
          respect to the person of restoration to competence to stand  




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          trial by the committing court.  The court shall immediately  
          notify DOJ of the court order finding the person to be mentally  
          incompetent and shall also notify DOJ when it finds that the  
          person has recovered his or her competence.  (WIC  8103(d).)

           Current law  prohibits a person who has been taken into custody  
          as provided in Section 5150 because that person is a danger to  
          himself, herself, or to others, assessed and admitted to a  
          designated facility because that person is a danger to himself,  
          herself, or others, from owning, possessing, controlling,  
          receiving, or purchasing, or attempting to own, possess,  
          control, receive, or purchase any firearm for a period of five  
          years after the person is released from the facility.  A person  
          described in the preceding sentence, however, may own, possess,  
          control, receive, or purchase, or attempt to own, possess,  
          control, receive, or purchase any firearm if after a hearing  
          requested by the person, the superior court finds that the  
          People of the State of California have not met their burden of  
          showing by a preponderance of the evidence that the person would  
          not be likely to use firearms in a safe and lawful manner.  (WIC  
           8103(f).)

           Current law  mandates the Department of State Hospitals to  
          maintain in a convenient central location and make available to  
          DOJ those records that the State Department of State Hospitals  
          has in its possession that are necessary to identify persons who  
          are prohibited from possessing firearms as defined.  These  
          records shall be made available to DOJ upon request, to allow  
          DOJ to respond to applications related to firearms, as  
          specified.  (WIC  8104.)

           Current law  requires DOJ to request each public and private  
          mental hospital, sanitarium, and institution to submit to DOJ  
          information that DOJ deems necessary to identify those persons  
          who are prohibited from possessing firearms, in order to carry  
          out its duties in relation to firearms, destructive devices, and  
          explosives.  (WIC  8105(a).)

                 States that upon request from DOJ, each public and  




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               private mental hospital, sanitarium, and institution shall  
               submit to DOJ information which DOJ deems necessary to  
               identify those persons prohibited from possessing firearms,  
               in order to carry out its duties in relation to firearms,  
               destructive devices, and explosives.  (WIC  8105(b).)
                 Requires a licensed psychotherapist to immediately  
               report to a local law enforcement agency the identity of a  
               person subject to WIC Section 8100(b).  Upon receipt of the  
               report, the local law enforcement agency, on a form  
               prescribed by DOJ, shall immediately notify DOJ of a person  
               who has communicated a serious threat of physical violence  
               against a reasonably identifiable victim or victims.  (WIC  
                8105(c).)

                 Provides that all information provided to DOJ pursuant  
               to this section shall be kept confidential, separate and  
               apart from all other records maintained by DOJ.  The  
               information provided to DOJ pursuant to this section shall  
               be used only for any of the following purposes (WIC   
               8105(d)):

               o      By DOJ to determine eligibility of a person to  
                 acquire, carry, or possess firearms, destructive devices,  
                 or explosives; 
               o      For the purposes of the court proceedings to  
                 determine the eligibility of the person who is bringing  
                 the petition to be able to possess or own a firearm; or,
               o      To determine the eligibility of a person to acquire,  
                 carry, or possess firearms, destructive devices, or  
                 explosives who is the subject of a criminal  
                 investigation, if a part of the criminal investigation  
                 involves the acquisition, carrying, or possession of  
                 firearms, explosives, or destructive devices by that  
                 person.

           This bill  would increase from six months to five years the  
          period of time a person is prohibited from possessing or owning  
          a firearm based on his or her communication with a licensed  
          psychotherapist, on or after January 1, 2014, of a threat of  




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          physical violence against a reasonably identifiable victim or  
          victims.

           This bill  would specify that, if a hearing is requested, the  
          People have the burden of showing by a preponderance of the  
          evidence that the person would not be likely to use firearms in  
          a safe and lawful manner, and if the court finds that the People  
          have not met their burden, the court shall order that the person  
          shall not be subject to the five-year prohibition and submit a  
          copy of the order to the DOJ. 

           This bill  specifies procedures to be followed for the return of  
          confiscated firearms by persons found not to be subject to the  
          five-year prohibition for having communicated a threat to a  
          therapist as well as those subject to a five -year prohibition  
          as a result of being taken into custody for a mental health  
          examination.

           This bill  specifies where the district attorney declines or  
          fails to go forward in a hearing to restore ownership and  
          possession of firearms, the court shall order that the person  
          shall not be subject to the five-year prohibition and a copy of  
          the order shall be submitted to the DOJ. 

           This bill  states upon receipt of the order, DOJ shall, within 15  
          days, delete any reference to the prohibition against firearms  
          from the person's state mental health firearms prohibition  
          system information.

           This bill  would provide that, where a firearm has been  
          confiscated under these provisions, the period of forfeiture is  
          180 days, during which the person it was taken from may contact  
          the law enforcement agency to facilitate transfer to a firearms  
          dealer, and after which the firearm will be subject to  
          destruction.

           This bill  would provide that nothing in this bill shall prohibit  
          the use of reports filed to determine the eligibility of persons  
          to own, possess, control, receive, or purchase a firearm if the  




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          person is the subject of a criminal investigation, a part of  
          which involves the ownership, possession, control, receipt, or  
          purchase of a firearm.

           This bill  would require the court to  immediately  notify DOJ  
          whenever the court has issued a certificate stating that a  
          person, adjudicated by a court of any state to be a danger to  
          others as a result of a mental disorder or mental illness, or  
          who has been adjudicated to be a mentally disordered sex  
          offender, may now possess a firearm or any other deadly weapon  
          without endangering others.

           This bill  defines "immediately" as a period of time not  
          exceeding 24 hours.

           This bill  would require any notice or report required to be  
          submitted to DOJ to be submitted in an electronic format, in a  
          manner prescribed by DOJ.

           This bill  would require the Department of State Hospitals, upon  
          request, to make its records regarding prohibited persons  
          available to DOJ within 24-hours.

           This bill  would require that reports by a licensed  
          psychotherapist to a local law enforcement agency of the  
          identity of a person who has communicated to that therapist a  
          serious threat of physical violence against a reasonably  
          identifiable victim or victims be made within 24 hours.

           This bill  would also require that local law enforcement  
          agencies, when they receive such reports, notify DOJ  
          electronically and within 24 hours of that report.

                    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  




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          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  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which 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.  ROCA necessitated many hard and  
          difficult decisions for the Committee.
                                                                            
          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 issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part 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, who opposed the state's motion, argue in  
          part 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 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  




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          "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."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               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 This Bill  

          According to the author:

               In 2012, a total of 191,416 people in California were  
               prohibited from owning a firearm because of a prior  
               mental health determination.  While the vast majority  
               of individuals with mental health issues are not  
               violent, research has shown that the risk of violence  
               towards others is higher among those with serious  
               mental illnesses, in part because this population also  




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               has high rates of other risk factors such as substance  
               abuse, trauma, and unemployment. 

               A 2009 study found that 5% of people with serious  
               mental illnesses committed violent acts, compared to  
               2% of those without.  There is also a link between  
               mental illness and self- harm, and studies suggest  
               that more than 90% of people who commit suicide suffer  
               from mental illness.  And there is also a strong  
               correlation between access to firearms and successful  
               suicide attempts.  The suicide rate in homes with guns  
               is 3-5 times higher than in homes without guns.































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          2.  Prohibited Persons  

          California has several laws that prohibit certain persons from  
          purchasing firearms.  All felony convictions lead to a lifetime  
          prohibition, while specified misdemeanors will result in a  
          10-year prohibition.  A person may be prohibited due to a  
          protective order or as a condition of probation.  Another  
          prohibition is based on the mental health of the individual.  If  
          a person communicates to his or her psychotherapist a serious  
          threat of physical violence against a reasonably identifiable  
          victim or victims, the person is prohibited from owning or  
          purchasing a firearm for six months, starting from the date the  
          psychotherapist reports to local law enforcement the identity of  
          the person making the threat.  (WIC  8100(b)(1).)  If a person  
          is admitted into a facility because that person is a danger to  
          himself, herself, or to others, the person is prohibited from  
          owning or purchasing a firearm for five years.  (WIC  8103(f).)  
           For the provisions prohibiting a person from owning or  
          possessing a firearm based on a serious threat of violence or  
          based on admittance into a facility as a threat to self or  
          others, the person has the right to request a hearing whereby  
          the person could restore his or her right to own or possess a  
          firearm if a court determines that the person is likely to use  
          firearms or other deadly weapons in a safe and lawful manner.   
          (WIC  8100(b)(1) and 8103(f).)

          DOJ developed the Armed Prohibited Persons System (APPS), an  
          automated system for tracking handgun and assault weapon owners  
          in California who may pose a threat to public safety.  (Penal  
          Code  30000 et seq.)  APPS collects information about persons  
          who have been, or will become, prohibited from possessing a  
          firearm subsequent to the legal acquisition or registration of a  
          firearm or assault weapon.  DOJ receives automatic notifications  
          from state and federal criminal history systems to determine if  
          there is a match in the APPS for a current California gun owner.  
           DOJ also receives information from courts, local law  
          enforcement and state hospitals as well as public and private  
          mental hospitals to determine whether someone is in a prohibited  
          status.  When a match is found, DOJ has the authority to  




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          investigate the person's status and confiscate any firearms or  
          weapons in the person's possession.  Local law enforcement may  
          also request from DOJ the status of an individual, or may  
          request a list of prohibited persons within their jurisdiction,  
          and conduct an investigation of those persons.

          According to DOJ, about 50% of the persons on APPS are  
          prohibited due to criminal history; about 30% due to mental  
          health status, and about 20% due to active restraining orders.

          3.  Confidential Communications  

          Current law provides that a patient has the privilege to refuse  
          to disclose, and to prevent another person from disclosing, a  
          confidential communication between the patient and a  
          psychotherapist.  (Evidence Code  1015.)  However, the  
          California Supreme Court has held that, when a psychotherapist  
          knows or reasonably should know that a patient presents a  
          serious danger of violence to others, the psychotherapist must  
          use reasonable care to protect the intended victim by warnings  
          or other appropriate conduct.  (See Tarasoff v. Regents of  
          University of California (1976) 17 Cal.3d 425.)  Existing  
          statutes also requires a licensed psychotherapist to inform  
          local law enforcement when a patient communicates to him or her  
          of a serious threat of physical violence against a reasonably  
          identifiable victim or victims.  The six-month prohibition  
          against owning or possessing a firearm based on such a threat is  
          conditioned upon the psychotherapist actually informing law  
          enforcement of the identity of the person who made the threat.   
          (WIC  8100(b)(1).)

          This bill would extend the current firearms prohibition for a  
          person who has been reported to law enforcement by their  
          therapist for making such a threat during therapy from the  
          current six months to five years.  Such persons are entitled,  
          upon their request, to a hearing on that prohibition and the  
          bill would clarify that it is the prosecution's burden to  
          establish by a preponderance of the evidence that the person  
          would not be likely to use the firearms in a safe and lawful  











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          manner.  

          One issue raised by this bill is whether extending this  
          prohibition to five years could have the unintended effect of  
          discouraging some people with serious psychological problems  
          from being completely candid with their therapist or from  
          seeking therapy at all.

          4.  New Bill  

          The current provisions of this bill were previously contained in  
          AB 1296 and were then amended into AB 48.  On June 24, 2013, AB  
          1131 was amended to remove its provisions in their entirety and  
          insert these provisions.  These provisions were removed from AB  
          48 on that same date.


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