BILL ANALYSIS Ó
AB 1131
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REPLACE : 09/10/2013 Changes per consultant.
CONCURRENCE IN SENATE AMENDMENTS
AB 1131 (Skinner)
As Amended September 3, 2013
Majority vote
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|ASSEMBLY: | |(May 29, 2013) |SENATE: |37-0 |(September 9, |
| | | | | |2013) |
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(vote not relevant)
Original Committee Reference: NAT. RES.
SUMMARY : Increases the period of time that a person is
prohibited from possessing a firearm based on a mental illness
or mental disorder or a serious threat of violence communicated
to a licensed psychotherapist.
The Senate amendments delete the Assembly version of this bill
and instead:
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)State that the people shall bear 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 at a hearing 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 Department of Justice (DOJ).
3)Provide, upon receipt of the order, DOJ shall delete any
reference to the prohibition against firearms from the
person's state mental health firearms prohibition system
information.
4)Specify 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
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subject to the five-year prohibition and a copy of the order
shall be submitted to the DOJ.
5)State 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.
6)Clarify 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.
7)Clarify when the law enforcement agency does not initiate
proceedings to determine whether the return of a firearm or
other deadly weapon would be likely to result in endangering
the person or others, the agency shall make the weapon
available for return upon compliance with all applicable
requirements.
8)State that after the law enforcement agency has informed 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, the period of forfeiture is
180 days, unless the person contacts the law enforcement
agency to facilitate the sale or transfer of the firearm to a
licensed dealer.
9)Provide if the person does not respond within 30 days of the
notice, the law enforcement agency may file a petition for
order of default, allowing the law enforcement agency to
destroy the firearm in 180 days from the date the court enters
default unless the person contacts the law enforcement agency
to facilitate the sale or transfer of the firearm to a
licensed dealer.
10)Mandate that any notice or report required to be submitted to
DOJ pursuant to the applicable section shall be submitted in
an electronic format, in a manner prescribed by DOJ.
11)Clarify that upon request of DOJ, the State Department of
State Hospitals shall make specified records available to DOJ
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in electronic format within 24 hours of receiving the request.
12)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 require local law enforcement
agencies, when they receive such reports, to notify DOJ
electronically and within 24 hours of that report.
13)Add a requirement for the law enforcement agency that
confiscates a deadly weapon or firearm to issue a receipt
describing the item confiscated with the serial number or
other identification and notify the person of the procedure
for the return, sale, transfer, or destruction of the item
confiscated.
14)Provide in lieu of destroying a firearm that has been
confiscated that is a nuisance, unclaimed, abandoned, or
otherwise subject to destruction, a law enforcement agency may
retain or transfer the firearm.
15)Specify, if, after a hearing, the court determines that the
return of the firearm or other deadly weapon would likely
endanger the person or others, the law enforcement agency may
destroy the firearm within 180 days from the date that the
court makes that determination, unless the person contacts the
law enforcement agency to facilitate the sale or transfer of
the firearm to a licensed dealer.
16)Revise the provisions that require the court to immediate
notify DOJ of a court order finding an individual to be
prohibited from possessing firearms and deadly weapons due to
a mental illness or mental disorder, to instead require a
court to provide notice to DOJ as soon as possible, but not
later than two court days after the court's finding or issuing
its order.
17)Require the submission of reports regarding mentally ill
individuals who are prohibited from possessing firearms and
deadly weapons by specified facilities to DOJ within 24 hours.
EXISTING LAW :
1)States that a person shall not have in his or her possession
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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.
2)Requires the 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:
a) 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
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,
b) 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.
3)States 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
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weapon.
4)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
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.
5)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.
6)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.
7)Prohibits a person who has been taken into custody as provided
in Welfare and Institutions Code 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,
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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.
AS PASSED BY THE ASSEMBLY , 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.
FISCAL EFFECT :
According to the Assembly Senate Appropriations Committee:
1)One-time costs to the DOJ of $260,000 (Special Fund*) in
Fiscal Year (FY) 2013-14 and $100,000 in FY 2014-15 to design,
develop, and implement enhancements to several automated
tracking systems and databases.
2)Potential state-reimbursable costs for the mandated
notification process placed on peace officers and law
enforcement agencies.
3)Minor, absorbable impact to the Department of State Hospitals
to accommodate DOJ requests electronically.
4)Minor impact to the DOJ with regard to the notification
changes.
5)Potential ongoing minor court-related costs (General Fund**)
for additional misdemeanor/felony court filings resulting from
the extended period of prohibition.
6)Potential increase in non-reimbursable local incarceration
costs offset to a degree by fine revenue to the extent
additional violations of the firearms prohibition occur under
the extended period of prohibition.
*Dealers' Record of Sale (DROS) Special Account
**Trial Court Trust Fund
COMMENTS : 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
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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 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.
"AB 1131 will extend the six month prohibition for persons who
make credible threats of violence to five years. AB 1131 will
also require mental health information to be immediately
transmitted to DOJ by electronic means. Finally, AB 1131
clarifies that the procedures and safeguards described in Penal
Code Sections 33800 et seq (Division 11, Chapters 1-3)) -
including the return, sale, and destruction of those firearms -
apply to firearms that are seized pursuant to W&I 8102. If the
person 'does not wish to obtain possession of the firearm, and
the firearm is an otherwise legal firearm . . .' the person
'shall be entitled to sell or transfer title of the firearm to a
licensed dealer.' (Pen. Code, § 33850, subd. (b).) Section
33870 addresses the issue of person who are prohibited from
regaining possession of their firearms. Such persons are
'entitled to sell or transfer the firearm to a licensed dealer.'
(Pen. Code, § 33870, subd. (a).) Under AB 1131, courts would
continue to have the ability to restore firearm rights to those
persons who are likely to use firearms in a safe and lawful
manner."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN: 0002395
AB 1131
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