BILL ANALYSIS Ó
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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