BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 1 3 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) (More) AB 1131 (Skinner) Page 2 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 (More) AB 1131 (Skinner) Page 3 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 (More) AB 1131 (Skinner) Page 4 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 (More) AB 1131 (Skinner) Page 5 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).) (More) AB 1131 (Skinner) Page 6 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 (More) AB 1131 (Skinner) Page 7 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 (More) AB 1131 (Skinner) Page 8 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 (More) AB 1131 (Skinner) Page 9 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 (More) AB 1131 (Skinner) Page 10 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 (More) AB 1131 (Skinner) Page 11 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 (More) AB 1131 (Skinner) Page 12 "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 (More) AB 1131 (Skinner) Page 13 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. (More) 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 (More) AB 1131 (Skinner) Page 15 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 AB 1131 (Skinner) Page 16 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. ***************