BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 5 9 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? (More) AB 1591 (Achadjian) Page 2 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).) (More) AB 1591 (Achadjian) Page 3 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 (More) AB 1591 (Achadjian) Page 4 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 (More) AB 1591 (Achadjian) Page 5 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 (More) AB 1591 (Achadjian) Page 6 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; (More) AB 1591 (Achadjian) Page 7 141.5% 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 (More) AB 1591 (Achadjian) Page 8 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 (More) AB 1591 (Achadjian) Page 9 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.) (More) 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 (More) AB 1591 (Achadjian) Page 11 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 AB 1591 (Achadjian) Page 12 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. ***************