BILL ANALYSIS Ó AB 1131 Page 1 REPLACE : 09/10/2013 Changes per consultant. CONCURRENCE IN SENATE AMENDMENTS AB 1131 (Skinner) As Amended September 3, 2013 Majority vote ----------------------------------------------------------------- |ASSEMBLY: | |(May 29, 2013) |SENATE: |37-0 |(September 9, | | | | | | |2013) | ----------------------------------------------------------------- (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 AB 1131 Page 2 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 AB 1131 Page 3 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 AB 1131 Page 4 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 AB 1131 Page 5 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, AB 1131 Page 6 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 AB 1131 Page 7 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 Page 8