BILL ANALYSIS                                                                                                                                                                                                    



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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 


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