BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 127
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          Date of Hearing:  July 2, 2013
          Counsel:       Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                      SB 127 (Gaines) - As Amended:  May 6, 2013


           SUMMARY  :  Requires 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.  This bill also requires local law  
          enforcement agencies, when they receive such reports, to notify  
          the Department of Justice (DOJ) electronically and within 24  
          hours of that report.

           EXISTING LAW  : 

          1)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  
            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.  [Welfare and Institutions Code (WIC)  
            Section 8100(b)(1).]

          2)Provides that 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  








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            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.  [WIC  
               Section 8100(b)(2).]

          4)States that 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)Requires DOJ to request each public and private mental  
            hospital, sanitarium, and institution to submit to DOJ  
            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).]

          6)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).]

          7)Requires a licensed psychotherapist to immediately report to a  
            local law enforcement agency the identity of a person who  
            communicates to the licensed psychotherapist of a serious  
            threat of physical violence against a reasonably identifiable  
            victim or victims.  Upon receipt of the report, the local law  
            enforcement agency, on a form prescribed by DOJ, shall  
            immediately notify DOJ of the identity of this person.  [WIC  








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            Section 8105(c).]

          8)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:

             a)   By DOJ to determine eligibility of a person to acquire,  
               carry, or possess firearms, destructive devices, or  
               explosives; 

             b)   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,

             c)   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.  [WIC  
               Section 8105(d).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "More consistent  
            and timely communications between therapists, local law  
            enforcement and the Department of Justice should lead to fewer  
            prohibited persons purchasing or possessing firearms in  
            California and improve public safety."  
           
           2)Background  :  According to the background materials provided by  
            the author, "Current law requires that licensed  
            psychotherapists 'immediately' notify local law enforcement  
            when a person or a person's family member communicates to the  
            therapist a serious threat of physical violence against a  
            reasonably identifiable victim or victims. This threat  
            triggers a six-month ban on firearms possession and purchasing  
            for the person who made the threat.

            "'Immediately' is undefined, and changing the standard to '24  
            hours' will add certainty and consistency to the reporting  








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            process.  

            "Upon receipt of the notification, local law enforcement must  
            then communicate that information to the Department of  
            Justice, again 'immediately,' which is undefined.  The lack of  
            definition leads to lags in reporting that create gaps where  
            people who are temporarily forbidden from purchasing or  
            possessing handguns may do so."

           3)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  
            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  








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            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.

           4)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  
            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 statute 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).]

           5)Argument in Support  :  According to the  Law Center to Prevent  
            Gun Violence  , "California law prohibits firearm possession by  
            a person who communicates to a licensed psychotherapist a  
            serious threat of physical violence against a reasonably  
            identifiable victim or victims for six months following the  
            therapist's reporting of this threat to local law enforcement.  
             State law provides that the therapist must report this threat  
            to law enforcement immediately.  After receiving the  
            therapist's report, the local law enforcement agency must  
            immediately report this information to the Department of  
            Justice (DOJ).








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          "SB 127 would facilitate the prompt submission of these reports  
            in order to prevent firearm sales to potentially dangerous  
            individuals by requiring a therapist to make the report to  
            local law enforcement electronically within 24 hours.  The law  
            enforcement agency receiving this information would then be  
            required to report it to DOJ electronically within 24 hours.

          "Electronic reporting will help ensure the development of  
            consistent and accurate records of this important information.  
             Clarifying that reports must be completed within a specific  
            time period will help avoid needless delays before this  
            information enters DOJ's system.  Incomplete or delayed  
            reporting could enable persons who are legally prohibited from  
            possessing guns to pass background checks and purchase  
            firearms unlawfully.  This concern is extremely significant,  
            given that the prospective firearm purchasers in question  
            would have communicated specific threats of harm against  
            identifiable individuals."

           6)Related Legislation  : 

             a)   AB 1296 (Skinner) 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, and  
               requires any notice or report required to be submitted to  
               DOJ to be submitted in an electronic format, in a manner  
               prescribed by DOJ.  AB 1296 was held on the Appropriations  
               Committee's Suspense File.

             b)   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 was held on the  
               Appropriations Committee's Suspense File.

             c)   AB 1131 (Skinner) is substantially similar to AB 1296.   








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               AB 1131 is pending hearing by 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 2696 (Krekorian), 2007-08 Legislative Session, would  
               have required, by July 1, 2011, specified mental health  
               facilities to report to the DOJ only by electronic means  
               when a person is admitted to that facility either because  
               that person was found to be a danger to himself, herself,  
               or others or was certified for intensive treatment for a  
               mental disorder, a specified.  AB 2696 was vetoed.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American College of Emergency Physicians, California Chapter
          Association for Los Angeles Deputy Sheriffs
          California Chapters of the Brady Campaign to Prevent Gun  
          Violence
          California Rifle and Pistol Association
          California State Sheriffs' Association
          Gun Owners of California
          Law Center to Prevent Gun Violence
          Los Angeles Police Protective League
          Riverside Sheriffs' Association
          San Bernardino County Sheriff's Department
          South County Citizens Against Gun Violence
          One private individual

           Opposition 
           
          Two private individuals
           

          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744 








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