BILL ANALYSIS Ó
AB 225
Page 1
Date of Hearing: March 17, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
225 (Melendez) - As Introduced February 3, 2015
SUMMARY: Increases the penalty, from a misdemeanor to a felony,
for a person to file a petition for a gun violence restraining
order with knowledge that information in the petition is false.
Specifically, this bill:
1)States that every person who files a petition for an ex parte
gun violence restraining order or a gun violence restraining
order issued after notice and a hearing, knowing the
information in the petition to be false, is guilty of perjury,
which is punishable by imprisonment in county jail for two,
three, or four years.
2)Retains the misdemeanor penalty under current law for a person
who files a petition for an ex parte gun violence restraining
order or a gun violence restraining order issued after notice
and a hearing with the intent to harass.
EXISTING LAW:
1)States that the provisions of law establishing gun violence
restraining orders shall take effect on January 1, 2016. (Pen.
Code, § 18122.)
AB 225
Page 2
2)Requires, upon issuance of a gun violence restraining order,
the court to order the restrained person to surrender to the
local law enforcement agency all firearms and ammunition in
the restrained person's custody or control, or which the
restrained person possesses or owns. (Pen. Code, § 18120,
subd. (b)(1).)
3)Allows an immediate family member of a person or a law
enforcement officer to file a petition requesting that the
court issue an ex parte gun violence restraining order, that
expires no later than 21 days from the date of the order,
enjoining the subject of the petition from having in his or
her custody or control, owning, purchasing, possessing, or
receiving a firearm or ammunition. (Pen. Code, §§ 18150 and
18155, subd. (c).)
4)States that the court, before issuing an ex parte gun violence
restraining order, shall examine on oath, the petitioner and
any witness the petitioner may produce, or in lieu of
examining the petitioner and any witness the petitioner may
produce, the court may require the petitioner and any witness
to submit a written affidavit signed under oath. (Pen. Code,
§ 18155, subd. (a).)
5)Requires a showing that the subject of the petition poses a
significant danger, in the near future, of personal injury to
himself or herself, or another by having in his or her custody
or control, owning, purchasing, possessing, or receiving a
firearm as determined by considering specified factors and
that less restrictive alternative have been ineffective, or
are inappropriate for the situation, before an ex parte gun
violence restraining order may be issued. (Pen. Code, § 18150,
subd. (b).)
6)Specifies in determining whether grounds for a gun violence
restraining order exist, the court shall consider all evidence
of the following:
a) A recent threat of violence or act of violence by the
subject of the petition directed toward another;
AB 225
Page 3
b) A recent threat of violence or act of violence by the
subject of the petition directed toward himself or herself;
c) A violation of an emergency protective order that is in
effect at the time the court is considering the petition;
d) A recent violation of an unexpired protective order;
e) A conviction for any specified offense resulting in
firearm possession restrictions; or,
f) A pattern of violent acts or violent threats within the
past 12 months, including, but not limited to, threats of
violence or acts of violence by the subject of the petition
directed toward himself, herself, or another. (Pen. Code,
§ 18155, subd. (b)(1).)
7)States that an ex parte gun violence restraining order shall
be personally served on the restrained person by a law
enforcement officer, or any person who is at least 18 years of
age and not a party to the action, if the restrained person
can reasonably be located. When serving a gun violence
restraining order, a law enforcement officer shall inform the
restrained person of the hearing that will be scheduled to
determine whether to issue a gun violence restraining order.
(Pen. Code, § 18160, subd. (b).)
8)Requires, within 21 days from the date an ex parte gun
violence restraining order was issued, before the court that
issued the order or another court in the same jurisdiction,
the court to hold a hearing to determine if a gun violence
restraining order should be issued. (Pen. Code, § 18160,
subd. (c).)
9)Allows an immediate family member of a person or a law
enforcement officer to request a court, after notice and a
hearing, to issue a gun violence restraining order enjoining
the subject of the petition from having in his or her custody
or control, owning, purchasing, possessing, or receiving a
firearm or ammunition for a period of one year. (Pen. Code, §
18170.)
AB 225
Page 4
10)States at the hearing, the petitioner shall have the burden
of proving, by clear and convincing evidence, that both of the
following are true:
a) The subject of the petition, or a person subject to an
ex parte gun violence restraining order, as applicable,
poses a significant danger of personal injury to himself or
herself, or another by having in his or her custody or
control, owning, purchasing, possessing, or receiving a
firearm or ammunition; and,
b) A gun violence restraining order is necessary to prevent
personal injury to the subject of the petition, or the
person subject to an ex parte gun violence restraining
order, as applicable, or another because less restrictive
alternatives either have been tried and found to be
ineffective, or are inadequate or inappropriate for the
circumstances. (Pen. Code, § 18175, subd. (b).)
11)Provides if the court finds that there is clear and
convincing evidence to issue a gun violence restraining order,
the court shall issue a gun violence restraining order that
prohibits the subject of the petition from having in his or
her custody or control, owning, purchasing, possessing, or
receiving, or attempting to purchase or receive, a firearm or
ammunition. If the court finds that there is not clear and
convincing evidence to support the issuance of a gun violence
restraining order, the court shall dissolve any temporary
emergency or ex parte gun violence restraining order then in
effect. (Pen. Code, § 18175, subd. (c).)
12)Requires the court to inform the restrained person that he or
she is entitled to one hearing to request a termination of the
gun violence restraining order and provide the restrained
person with a form to request a hearing. (Pen. Code, § 18180,
subd. (b).)
13)States that it is a misdemeanor offense for every person who
files a petition for an ex parte gun violence restraining
order or a gun violence restraining order issued after notice
and a hearing knowing the information in the petition to be
false or with the intent to harass. (Pen. Code, § 18200.)
AB 225
Page 5
14)Provides that it is a misdemeanor offense for every person
who owns or possesses a firearm or ammunition with knowledge
that he or she is prohibited from doing so by a gun violence
restraining order and he or she shall be prohibited from
having in his or her custody or control, owning, purchasing,
possessing, or receiving, or attempting to purchase or
receive, a firearm or ammunition for a five-year period, to
commence upon the expiration of the existing gun violence
restraining order. (Pen. Code, § 18205.)
15)States that every person who, haven taken an oath that he or
she will testify, declare, depose or certify truly before any
competent tribunal, officer, or person, in any of the cases in
which the oath may by law of the State of California be
administered, willfully and contrary to oath, states as true
any material matter which he or she knows to be false, and
every person who testifies, declares, deposes, or certifies
under penalty of perjury in any of the cases in which the
testimony, declarations, depositions, or certification is
permitted by law of the State of California under penalty of
perjury and willfully states as true any material matter which
he or she knows to be false, is guilty of perjury. (Pen.
Code, § 118.)
16)Specifies that a person who is guilty of perjury is
punishable by imprisonment in county jail for two, three, or
four years. (Pen. Code, § 126.)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "While we all
hold the safety of our constituents as a top priority, it is
also our responsibility to ensure the laws of this state are
not abused and do not infringe upon the rights of others. In
order to do this, it is paramount that consequences are
consistent with the severity of the crime committed."
2)"5150" Comparison to Gun Violence Restraining Orders: A
person who is gravely disabled or a danger to others because
AB 225
Page 6
of a mental disorder may be taken into custody by law
enforcement officers and placed in a mental health facility
for up to 72 hours for treatment and evaluation. (Welf. &
Inst. Code, § 5150.) When detained, if such a person "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 weapon "shall be confiscated by any law
enforcement agency or peace officer, who shall retain custody
of the firearm or other deadly weapon." (Welf. & Inst. Code,
§ 8102, subd. (a).) A person who is placed in a mental health
facility shall not own, possess, control, receive, or
purchase, or attempt to own, possess, control, receive, or
purchase any firearm for a period of five years after the
person is released. (Welf. & Inst. Code, § 8103, subd.
(f)(1).) However, the person may request a hearing in court
to determine whether he or she would be likely to use firearms
in a safe and lawful manner. (Welf. & Inst. Code, § 8103,
subds. (f)(1) and (6).) If the district attorney fails to
prove by a preponderance of the evidence that the person would
not be likely to use firearms in a safe and lawful manner, the
court will order that the person shall not be subject to the
five-year prohibition. (Welf. & Inst. Code, § 8103, subd.
(f)(7).)
Under the gun violence restraining order provisions, a person
who poses a significant danger of injury to himself or herself
or others may be the subject of the gun violence restraining
order. It is not required that the person is dangerous due to
a mental disorder. (Pen. Code, §§ 18150, subd. (b) and 18175,
subd. (b).) The petition may be filed by a law enforcement
officer or an immediate family member of the subject of the
petition. If the court issues a gun violence restraining
order, the restrained person is not taken into custody.
Instead, the restrained person must surrender to a local law
enforcement agency all firearms and ammunition in his or her
custody or control, or which he or she possesses or owns, or
sell all firearms and ammunition to a licensed gun dealer
within 24 hours of the order, and is prohibited from acquiring
more guns or ammunition. (Pen. Code, § 18120, subd. (b).)
Depending on the type of gun violence restraining order issued,
ex parte or with notice and a hearing, the firearm and
AB 225
Page 7
ammunition prohibition may last for a period of up to 21 days
or one year. (Pen. Code, §§ 18155, subd. (c) and 18175, subd.
(d).) The duration of the gun violence restraining order may
be renewed for another year or terminated early as determined
by the court. (Pen. Code, §§ 18185 and 18190.)
If an ex parte gun violence restraining order is issued, the
restrained person is entitled to a hearing within 21 days of
the order to determine whether to issue a gun violence
restraining order for a period of one year. (Pen. Code, §
18175, subd. (c)(1).) The burden of proof is on the
petitioner, which would be the law enforcement officer or the
immediate family member who filed the petition, to prove by
clear and convincing evidence that the subject of the petition
poses a significant danger to him or herself or to others and
the order is necessary to prevent injury to the subject of the
petition or another because less restrictive alternatives
either have been tried and found to be ineffective, or are
inadequate or inappropriate for the circumstances. (Pen. Code,
§ 18175, subds. (b) and (c)(1).) If a gun violence
restraining order is issued after a hearing, the restrained
person may request another hearing during the period of the
prohibition to terminate the order. (Pen. Code, § 18185.)
3)Isla Vista Shooting: On May 23, 2014, Elliot Rodger stabbed
three people to death in his apartment and then committed a
series of drive-by shootings killing six people, injuring 14,
and then took his own life. (Isla Vista Mass Murder May 23
2014: Investigative Summary, Santa Barbara County Sheriff's
Office, February 18, 2015.)
On April 20, 2014, Rodger's mother contacted local mental health
officials with concerns about videos Rodger had posted on
YouTube. The matter was referred to the Sheriff's Department
and deputies were dispatched to Rodger's apartment to conduct
a "welfare check." After talking with Rodger, the officers
determined that he was not an immediate threat to himself or
others, and that they did not have cause to place him on an
involuntary mental health hold. (Id.)
"Among the many tragedies that intersected during Elliot
Rodger's violent rampage near Santa Barbara in May . . . was
AB 225
Page 8
that Rodger's parents had sought police help as their son's
life spiraled out of control. Unfortunately, until he started
killing people, Rodger violated no law that would have
justified police action. That frustration was widely felt,
and the Isla Vista tragedy moved the Legislature to approve a
measure . . . that would let relatives seek a court order to
confiscate weapons from a family member who displays signs of
violence. At its heart, the law extends the authority police
already have to disarm someone under a domestic violence
restraining order." (Times Editorial Board, A Reasonable Gun
Measure Prompted by Isla Vista Rampage (September 2, 2014),
< http://www.latimes.com/opinion/editorials/la-ed-0903-guns-2014
0903-story.html > [as of Mar. 10, 2015].)
AB 1014, authored by Assembly Members Nancy Skinner and Das
Williams, sought to address concerns by the victims' families
and the public that current laws were insufficient to keep
guns out of the hands of persons who pose a significant danger
to oneself of others but who do not have a mental disorder.
AB 1014 was signed into law on September 30, 2014 and goes
into effect on January 1, 2016.
4)Argument in Support: According to the California Rifle and
Pistol Association, "This is a common sense bill that will
help to deter the filing of a false petition, with the court,
for issuance of a gun violence restraining order, by
increasing the penalty for false reports from a misdemeanor to
a felony with increased penalties."
5)Argument in Opposition: According to the Coalition to Stop
Gun Violence, "The [gun violence restraining order] GVRO
statute already contains a misdemeanor penalty for filing a
petition for an ex parte GVRO or final GVRO while knowing the
information in the petition to be false. Because the law has
not yet been implemented, there is no evidence to show that a
misdemeanor penalty would be inadequate to deter individuals
from knowingly filing false petitions. We believe that
stiffening the penalty for knowingly filing a false petition
will have a chilling effect and deter law enforcement officers
or family members from seeking a GVRO in the first place.
This could leave firearms in the hands of dangerous
individuals who might harm themselves, their families or other
AB 225
Page 9
members in the community.
"Additionally, there is no similar felony punishment in
California's Domestic Violence Protective Order statute, upon
which the GVRO was, in part, modeled."
6)Related Legislation: AB 950 (Melendez) would allow a person
who is subject to a gun violence restraining order to transfer
his or her firearms or ammunition to a licensed firearms
dealer for the duration of the prohibition. If the firearms or
ammunition have been surrendered to a law enforcement agency,
the bill would entitle the owner to have them transferred to a
licensed firearms dealer. AB 950 is pending referral from the
Rules Committee.
7)Prior Legislation:
a) AB 1014 (Skinner and Williams), Chapter 872, Statutes of
2014, beginning January 1, 2016, authorizes a law
enforcement officer or immediate family member of a person,
to seek, and a court to issue, a gun violence restraining
order, as specified, prohibiting a person from having in
his or her custody or control, owning, purchasing,
possessing, or receiving any firearms or ammunition, as
specified.
b) SB 505 (Jackson), Chapter 918, Statutes of 2014,
requires law enforcement agencies to develop, adopt, and
implement written policies and standard protocols
pertaining to the best manner to conduct a "welfare check,"
when the inquiry into the welfare or well-being of the
person is motivated by a concern that the person may be a
danger to himself or herself or to others and requires
those policies to encourage a peace officer, prior to
conducting the welfare check and whenever possible and
reasonable, as specified, to conduct a search of the
Department of Justice Automated Firearms System via the
California Law Enforcement Telecommunications System to
determine whether the person is the registered owner of a
firearm.
REGISTERED SUPPORT / OPPOSITION:
AB 225
Page 10
Support
California Rifle and Pistol Association, Inc.
California State Sheriffs' Association
Gun Owners of California
National Rifle Association
1,015 private individuals
Opposition
California Attorneys for Criminal Justice
California Chapters of the Brady Campaign
Coalition Against Gun Violence, A Santa Barbara County Coalition
Coalition to Stop Gun Violence
Friends Committee on Legislation of California
Law Center to Prevent Gun Violence
Physicians for Social Responsibility, Sacramento Chapter
Physicians for Social Responsibility, San Francisco Bay Area
Chapter
Five private individuals
Analysis Prepared
by: Stella Choe/PUB. S./(916) 319-3744