BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 225


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          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.)








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          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;









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             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.)









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          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.)








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          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  








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            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  








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            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  








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            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  








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            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:








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          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