BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1591 (Achadjian) 1
As Introduced February 3, 2014
Hearing date: May 13, 2014
Penal Code
JRD:mc
FIREARMS:
PROHIBITED PERSONS: NOTIFICATION
HISTORY
Source: Author
Prior Legislation: AB 1131 (Skinner) - Chapter 747, Statutes of
2013
Support: California Police Chiefs Association Inc.; American
Academy of Pediatrics, California; Judicial Council of
California (support, if amended and funded)
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD THE COURTS HAVE TO REPORT INFORMATION THAT COULD LEAD TO A
FIREARMS PROHIBITION WITHIN 24 HOURS?
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PURPOSE
The purpose of this legislation is to reduce the time the court
has to notify the Department of Justice (DOJ) of court actions
that would result in the prohibition of a person from possessing
a firearm or any other deadly weapon or result in the person no
longer being subject to that prohibition, from two court days to
24 hours.
Under existing law the Attorney General is required to establish
and maintain an online database known as the Prohibited Armed
Persons File. The purpose of the file is to cross-reference
persons who have ownership or possession of a firearm on or
after January 1, 1991, as indicated by a record in the
Consolidated Firearms Information System, and who, subsequent to
the date of that ownership or possession of a firearm, fall
within a class of persons who are prohibited from owning or
possessing a firearm. The information contained in the
Prohibited Armed Persons File is only available to specified
entities through the California Law Enforcement
Telecommunications System, for the purpose of determining if
persons are armed and prohibited from possessing firearms.
(Penal Code § 30000.)
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).)
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Current law requires the court to notify DOJ within two court
days 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 is required to
notify DOJ within two court days of the 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 is required to notify DOJ of the court order finding the
person to be a person described in this section within two court
days. The court is also required to 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
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trial by the committing court. The court is required to notify
DOJ within two court days of the 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).)
Existing law prohibits a person who has been placed under
conservatorship by a court 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 while under the conservatorship if, at the time the
conservatorship was ordered or thereafter, the imposing court
found that possession of a firearm or any other deadly weapon by
the person would present a danger to the safety of the person or
to others. Existing law also requires the court to notify DOJ
as soon as possible, but not later than two court days, of the
court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession,
including the dates the conservatorship was imposed and is to be
terminated, and requires the court to notify DOJ as soon as
possible, but not later than two court days, if the
conservatorship is subsequently terminated before the date
listed in the notice to DOJ or the court subsequently finds that
possession of a firearm or any other deadly weapon by the person
would no longer present a danger to the safety of the person or
others. (WIC § 8103(e).)
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
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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).)
This bill would reduce the time the court has to notify DOJ of
court actions that would result in the prohibition of a person
from possessing a firearm or any other deadly weapon or result
in the person no longer being subject to that prohibition, from
two court days to 24 hours, as specified.
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
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 that 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.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
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California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
state's motion, arguing 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 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
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141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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
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According to the author:
AB 1591 would implement the State Auditor's
recommendation that courts abide by the same reporting
standards required of other reporting entities,
establishing consistent procedures regarding the
urgency with which we identify and report Armed
Prohibited Persons to the Department of Justice.
2. State Audit
On March 13, 2013, the Joint Legislative Audit Committee
approved a request for an audit of the California Department of
Justice's Armed Prohibited Persons Program. (http://legaudit.
assembly.ca.gov/sites/legaudit.assembly.ca.gov/files/March%2013%2
0Vote%20Tally.pdf.) The focus of the audit was on "the
reporting and identification of persons with mental illness who
are prohibited from owning or possessing a firearm." (Armed
Persons with Mental Illness, California State Auditor (2013)
Report 2013-103.) The audit revealed that DOJ was not obtaining
necessary information from mental health facilities and the
courts. As a result, the
audit concluded that, "Justice cannot identify all armed
prohibited persons in California as effectively as it should,
and the information it uses to ensure public safety by
confiscating firearms is incomplete." (Id. at 1.) With regard
to the courts, the audit stated:
[N]one of the court divisions we visited that kept a
record of the date they sent reports met their own
definitions of immediately. For instance, Santa Clara
Court's criminal division interpreted immediately as
called for in state law to mean two to three business
days or as soon as possible. However, we found that
for the items we tested, the average time Santa Clara
Court took to process and submit firearm report forms
was more than four business days. In one instance,
court staff did not report a determination to Justice
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until 13 business days after the court determination
date. Similarly, Santa Clara Court's probate division
exceeded its interpretation of immediately by two
business days on average. Further, Los Angeles
Court's Criminal Justice Center defined immediately as
within two court days, which is generally equivalent
to business days, but exceeded that definition by six
days on average for the items we tested. For one
particular determination, the Criminal Justice Center
staff did not complete the firearm report form until
28 business days after the court determination date.
A senior administrator at the Criminal Justice Center
noted that our calculation does not distinguish
between the dates the findings were made in the
courtroom and the dates the findings were received in
the clerk's office. Although that is true, when
discussing how soon courts must report to Justice,
state law does not distinguish between the time of the
determination and when the clerk's office receives
information from the courtroom. (Id. at 29.)
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The audit further stated:
In October 2013 the governor signed legislation that
will change the reporting requirements for mental
health firearm prohibitions effective January 1, 2014.
Beginning on that date, state law will require that
courts report their determinations electronically and
will include revised timelines for both courts and
mental health facilities to report prohibiting events
to Justice. Specifically, state law will no longer
require courts and mental health facilities to report
immediately. Instead, it will require the courts to
report to Justice as soon as possible but not later
than two court days after the prohibiting
determination. However, the new requirement for
mental health facilities to report to Justice will be
a shorter period of time: within 24 hours of a
prohibiting event. In effect, this change to the law
will place less urgency on prohibition reports from
courts
than on those from mental health facilities.
The director of AOC's Office of Governmental Affairs
commented that the AOC believes that courts require at
least two court days because orders from court
proceedings are typically not available for processing
immediately after the proceedings. He stated that
unlike mental health facilities, courts operate on
limited business hours and are not staffed around the
clock and on weekends. Coupled with broad
understaffing due to unprecedented budget cuts, he
believed any shorter deadline would be impractical in
light of typical demands on court staff. Further, he
noted that many courts currently lack electronic
reporting capabilities. Although this may be true at
some courts, it does not reflect capabilities and
processes that courts may develop in response to a
change in state
law. We question a change to state law that provides
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courts more time to report than mental health
facilities. Existing law requires reports to be
submitted immediately regardless of where the report
originates. Having the deadline for reporting be the
same for courts and mental health facilities seems
appropriate, especially considering that both types of
entities will be able to electronically report and
that it is important for public safety that
prohibiting events be reported promptly, no matter
where they originate. (Id. at 29-30.)
Based on these findings, the audit report recommended,
"[t]he Legislature . . . amend state law to specify that
all mental healthrelated prohibiting events must be
reported to Justice within 24 hours regardless of the
entity required to report. (Id. at 39.)
3. Effect of This Legislation
Last session, the Legislature amended state law to require the
courts to report prohibiting information electronically to the
Department of Justice within two days of adjudication. This
legislation would further reduce the amount of time the courts
have to report to 24 hours. According to Judicial Council:
The council supports the bill, if it is amended, to
require the courts to report, within one court day of
adjudication, individuals who have been adjudged by a
court to be incompetent to stand trial, not guilty by
reason of insanity, a danger to others as a result of
a mental disorder or mental illness or a mentally
disordered sex offender provided the bill contains a
specific appropriation to cover the courts' cost of
implementation. The council believes 24 hours is an
unrealistic timeframe because often minutes of the
proceedings and other relevant court records are not
available for processing within 24 hours. Because
courts, unlike hospitals, are not open on evenings and
weekends, courts will need to pay employees overtime
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to work evenings and on weekends to meet this
requirement.
Members may wish to consider addressing the Judicial Council's
timing concerns by recommending language that will require the
courts to report within one business day.
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