BILL ANALYSIS Ó
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?
(CONTINUED)
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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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