BILL ANALYSIS Ó
AB 1296
Page 1
Date of Hearing: April 23, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1296 (Skinner) - As Amended: April 1, 2013
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. Specifically, this bill :
1)Increases 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)States 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 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)Provides, 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)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.
5)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.
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6)Clarifies 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)Requires 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.
8)Defines "immediately" as a period of time not exceeding 24
hours.
9)Increases from five years to ten years the period of time a
person is prohibited from possessing or owning a firearm based
on the person's admittance into a facility because that person
is a danger to himself, herself, or to others.
10)Requires any notice or report required to be submitted to DOJ
to be submitted in an electronic format, in a manner
prescribed by DOJ.
EXISTING LAW :
1)Prohibits a person from having in his or her possession or
under his or her custody or control, or purchasing or
receiving, or attempting to purchase or receive, any firearms
whatsoever or any other deadly weapon, if on or after January
1, 1992, he or she has been admitted to a facility and is
receiving inpatient treatment and, in the opinion of the
attending health professional who is primarily responsible for
the patient's treatment of a mental disorder, is a danger to
self or others, as specified, even though the patient has
consented to that treatment. A person is not subject to this
subdivision once he or she is discharged from the facility.
[Welfare and Institutions Code (WIC) Section 8100(a).]
2)States 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
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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 Section 8100(b)(1).]
3)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 [WIC Section
8100(b)(2)]:
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.
4)States a violation of these prohibitions against possessing a
firearm or deadly weapon shall be a public offense, 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 Section 8100(g).]
5)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
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punished by imprisonment in the county jail for two, three, or
four years. [WIC Section 8101(b).]
6)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
weapon. [WIC Section 8102(a).]
7)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. [WIC Section 8102(b).]
8)Specifies 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 Section 8102(c).]
9)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 Section 8102(e).]
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10)States 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 Section
8103(a)(1).]
11)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 Section 8103(a)(2).]
12)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 Section
8103(b).]
13)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
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requires the court to also notify the Department of Justice
when it finds that the person has recovered his or her sanity.
[WIC Section 8103(c).]
14)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
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
Section 8103(d).]
15)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
Section 8103(f).]
16)Mandates the State 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 Section 8104.)
17)Requires DOJ to request each public and private mental
hospital, sanitarium, and institution to submit to DOJ
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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 Section 8105(a).]
a) States that upon request from DOJ, each public and
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 Section
8105(b).]
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
Section 8105(c).]
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)]:
i) By DOJ to determine eligibility of a person to
acquire, carry, or possess firearms, destructive devices,
or explosives;
ii) 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,
iii) 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.
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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
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 1296 will extend the five year firearm prohibition that
applies to persons who are admitted to mental health
facilities to ten years, and extend the six month prohibition
for persons who make credible threats of violence to five
years. AB 1296 also will require mental health information to
be immediately transmitted to DOJ by electronic means. 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."
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
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threat. [WIC Section 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 Section 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 Sections 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 Section 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 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.
(California Evidence Code Section 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
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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 Section 8100(b)(1).]
4)Arguments in Support :
a) The California Chapters of the Brady Campaign to Prevent
Gun Violence states, "The Brady Campaign believes that the
length of the Tarasoff prohibition is currently too short
and should be extended to five years. If a person has
expressed a specific threat against an identifiable person,
it is hard to imagine that the threat would entirely
disappear in 6 months.
"Issues surrounding §5150 prohibitions are more complex.
Persons committed under §5150 may or may not be suffering
from persistent mental illness and a 10 year prohibition
seems overly harsh. This could be softened if additional
opportunity for hearing and potential restoration of
firearm privileges was provided. Another possible approach
might be to have a 5 year prohibition for a first time
§5150 and then a longer period for subsequent involuntary
commitments. Frequently, individuals are repeatedly
committed under §5150, and under this scenario the
prohibition would effectively be for life.
"In all cases, we believe that the transmission of
information to the Department of Justice should be within
24 hours and by electronic means. This information is
essential in order to prevent purchase of a gun immediately
following release from a treatment facility and for the
Department of Justice to identify newly prohibited persons
who are known to be in possession of firearms. These
persons may then be disarmed under the APPS program."
b) The City of Capitola writes, "Recently, our local
community suffered a horrendous tragedy when two Santa Cruz
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Police Officers were murdered through gun violence. We
believe that AB 1296 is another strong step towards
reducing gun violence while protecting our community. With
the passage of AB 1296, Capitola will benefit knowing that
proper restrictions will be in place to prevent firearms
from being possessed by individuals unsuited to take on the
responsibility."
5)Arguments in Opposition :
a) The California Psychological Association (CPA) argues,
"CPA is concerned that this bill will deter people from
seeking mental health treatment. While a direct link is
made between mental illness and media and legislation, data
and literature do not support these claims. Health and
Human Services Secretary Kathleen Sibelius recently penned
an op-ed on mental illness where she states that just 3% to
5% of violent crimes are committed by individuals who
suffer from a serious mental illness. A 2006 study in the
American Journal of Psychiatry concluded that patients with
severe mental illness, as identified by hospital
admissions, committed about 5 percent of all violent
crimes. We have not seen data to justify the increase in
time for prohibition of firearms possession as proposed in
this bill, and cannot support a change not rooted in facts
and scientific data.
"While electronic submission of prohibitions is common for
patients who have been in our judicial system, this is not
the case for Tarasoff reporting. These prohibitions are
often imposed outside a secure facility. Many of our
members are solo practitioners and may not have the
computer software to report in a secure fashion."
b) According to the Mental Health Associates of California ,
"Having a law that restricts one's rights to purchase a gun
based upon an individual's history of having been at one
time being found a danger to themselves or others but
without having committed a crime is a signification
limitation that treats people with mental illness different
from the rest of society.
"In general people with mental illness are not a greater risk
to be a threat to commit a violent act than other people.
The current law prohibition is five years. It would seem
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that in the absence of compelling evidence to the contrary
five years without a hospitalization would indicate that a
person has become sufficiently stable to be no greater a
risk of danger to themselves or others than other members
of society and it would be an unwarranted form of
discrimination against such individuals to extend the law
to 10 years without strong evidence to suggest that such
individuals pose significantly greater risk."
6)Related Legislation :
a) AB 740 (Alejo) requires courts to report required
information pertaining to persons prohibited from
possessing or purchasing a firearm based on the person's
adjudication by a court 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,
or persons found not guilty by reason of insanity of
specified crimes, persons found incompetent to stand trial,
and persons placed under a conservatorship for specified
reasons, to DOJ exclusively by electronic means, in a
manner prescribed by DOJ. AB 740 is pending hearing by
this Committee.
b) AB 1084 (Melendez) increases the punishment for a person
in possession of a firearm who is prohibited because he or
she has been adjudicated a danger to others as a result of
a mental disorder, is a mentally disordered offender, who
has been found incompetent to stand trial, has been placed
under conservatorship, has been found a danger to himself,
herself or others, been certified for intensive treatment,
or who has been found not guilty by reason of insanity from
16 months, 2 or 3 years in county jail to 2, 3, or 4 years
in state prison, among other provisions. AB 1084 will be
heard by this Committee today.
c) SB 38 (De Leon) establishes a 15-day amnesty period,
commencing on a date to be determined by DOJ but not later
than July 1, 2014, during which a person prohibited from
possessing a firearm may surrender his or her firearms to a
local law enforcement agency without being charged with
illegal possession of firearms. SB 38 is pending hearing
referral by the Senate Committee on Rules.
d) SB 127 (Gaines) requires a licensed psychotherapist who
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is required to make a report based on a communication by a
patient of a serious threat of physical violence against a
reasonably identifiable victim or victims, to make that
report to local law enforcement electronically, within 24
hours, in a manner prescribed by DOJ, and also requires the
local law enforcement agency receiving the report to notify
DOJ electronically within 24 hours. SB 127 is pending
hearing by the Senate Committee on Public Safety.
e) SB 140 (Leno) appropriates $24 million from the Dealer
Record of Sale (DROS) Special Account to DOJ to address the
backlog in APPS, thereby making an appropriation; and
requires DOJ to report to the Joint Legislative Budget
Committee regarding ways the backlog in the APPS has been
reduced or eliminated, as specified. SB 140 is pending a
concurrence vote on the Senate Floor.
f) SB 755 (Wolk) expands the list of misdemeanor
convictions that result in a 10-year prohibition on a
person's ability to own, purchase, receive, possess, or
have under his or her custody or control, any firearm. AB
755 is pending hearing by the Senate Committee on Public
Safety.
7)Prior Legislation :
a) AB 302 (Beall), Chapter 344, Statutes of 2010, requires
commencing July 1, 2012, that reports from a mental health
facility, regarding a patient who is prohibited from
purchasing, receiving or possessing firearms for a period
of five years on the basis of he or she being a threat to
himself, herself, or others, be submitted to DOJ
electronically.
b) AB 962 (De Leon), Chapter 628, Statutes of 2009,
prohibits supplying or delivering, as specified, handgun
ammunition to prohibited persons, as described, by persons
or others who know, or by using reasonable care should
know, that the recipient is a person prohibited from
possessing ammunition or a minor prohibited from possessing
ammunition, as specified.
c) SB 819 (Leno), Chapter 743, Statutes of 2011, authorizes
the use of the DROS fee to fund DOJ's firearms-related
regulatory and enforcement activities related to the
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possession of firearms.
d) AB 837 (Feuer), Chapter 698, Statutes of 2008,
specifically prohibits the issuance of certain firearms
permits and the transfer of firearms if the applicant or
transferee is prohibited from possessing, receiving,
purchasing, or owning a firearm under federal law as well
as state law.
e) AB 1204 (Villaraigosa), of the 1999-2000 Legislative
Session, would have expressed the intent of the Legislature
to reduce the incidence of violent crime by increasing the
category of misdemeanor violations, which when committed by
any person, prohibits that person from owning or possessing
a firearm. AB 1204 was never referred to the Assembly
Rules Committee for referral to the appropriate Assembly
policy committee for hearing and died at the Assembly Desk.
REGISTERED SUPPORT / OPPOSITION :
Support
California Chapters of the Brady Campaign to Prevent Gun
Violence
City of Capitola
Law Center to Prevent Gun Violence
One private individual
Opposition
California Association of Federal Firearms Licensees
California Psychological Association
Mental Health Associates of California
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744