BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 950        Hearing Date:    June 9, 2015    
          
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          |Author:    |Melendez                                             |
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          |Version:   |February 26, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JRD                                                  |
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                Subject:  Firearms:  Gun Violence Restraining Orders



          HISTORY

          Source:   Author

          Prior Legislation:AB 1014 (Skinner) - Chapter 872, Statutes of  
          2014
                         AB 539 (Pan) - Chapter 739, Statutes of 2013

          Support:  California Chapters of the Brady Campaign to Prevent  
          Gun Violence; 
                    California Rifle and Pistol Association; Firearms  
                    Policy Coalition; Law Center to Prevent Gun Violence;  
                    National Rifle Association of America 

          Opposition:None known

          Assembly Floor Vote:  77-0            


          PURPOSE

          The purpose of this legislation is to: (1) allow a person, who  
          is subject to a gun violence restraining order (GVRO), to  
          transfer his or her firearms or ammunition to a licensed  
          firearms dealer for the duration of the prohibition; and, (2)  







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          provide for the transfer of ammunition to a licensed firearms  
          dealer by any person who is prohibited from owning or possessing  
          ammunition.

          Existing law permits persons who are subject to domestic  
          violence restraining orders to surrender their weapons to  
          licensed firearms dealers for storage during the period they are  
          not permitted to possess firearms.  (Penal Code  29830.)

          Existing law states that the provisions of law establishing gun  
          violence restraining orders shall take effect on January 1,  
          2016. (Penal Code  18122.)

          Existing law 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.  (Penal Code   
          18120(b)(1).)

          Existing law 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.  (Penal Code  18150 and 18155(c).)

          Existing law 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.  (Penal  
          Code  18155(a).)

          Existing law 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.  (Penal Code  18150(b).)








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          Existing law specifies in determining whether grounds for a gun  
          violence restraining order exist, the court shall consider all  
          evidence of the following:

                 A recent threat of violence or act of violence by the  
               subject of the petition directed toward another;

                 A recent threat of violence or act of violence by the  
               subject of the petition directed toward himself or herself;

                 A violation of an emergency protective order that is in  
               effect at the time the court is considering the petition;

                 A recent violation of an unexpired protective order;

                 A conviction for any specified offense resulting in  
               firearm possession restrictions; or,

                 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.  

          (Penal Code  18155(b)(1).)

          Existing law 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.   
          (Penal Code  18160(b).)

          Existing law 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.  (Penal Code  18160(c).)

          Existing law allows an immediate family member of a person or a  
          law enforcement officer to request a court, after notice and a  








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          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.  (Penal Code  18170.)

          Existing law states at the hearing, the petitioner shall have  
          the burden of proving, by clear and convincing evidence, that  
          both of the following are true:

                 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,

                 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.  (Penal Code  18175(b).)

          Existing law 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.  (Penal Code  18175(c).)

          Existing law 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.  (Penal  
          Code  18180(b).)

          Existing law states that it is a misdemeanor offense for every  
          person who files a petition for an ex parte gun violence  








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          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.  (Penal Code  
           18200.)

          Existing law 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.  (Penal Code  18205.)

          This bill 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. 

          This bill would provide for the transfer of ammunition to a  
          licensed firearms dealer by any person who is prohibited from  
          owning or possessing ammunition.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                          
          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;








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                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity." (  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          












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          COMMENTS

          1.  Need for Legislation

          According to the author: 
               
               The recently enacted gun violence restraining order  
               law, AB 1014 (Skinner) (Ch. 872, Stats. of 2014)  
               requires a person subject to a gun violence  
               restraining order to either sell their firearms or  
               surrender them to law enforcement.  

               Prior to AB 1014, AB 539 (Pan) (Ch. 739, Stats. of  
               2013) created a process, in addition to surrendering  
               or selling the firearms, whereby a person who is  
               prohibited from owning or possessing firearms, may  
               transfer 
               their firearms to a federal firearm (FFL) dealer  
               during the duration of the restraining order. 

               The 2014 gun violence restraining order law took  
               precedent over the 2013 statutes.  That means the  
               option to transfer (not sell or surrender) firearms to  
               a registered FFL dealer has been eliminated. 

               AB 950 would give a person subject to a gun violence  
               restraining order the option of transferring their  
               firearms and ammunition to a federally licenses  
               firearms dealer to hold for the duration of the order.

               The option to transfer the firearms only applies when  
               the peace officer does not immediately request the  
               surrender of all firearms and ammunition.  

               Since the gun violence restraining order provisions  
               also apply to ammunition, this proposal would expand  
               the 2013 statutes to also authorize the transfer of  
               ammunition to an FFL dealer. 

          2.  Effect of Legislation 









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          AB 1014 (Skinner), Chapter 872, Statutes of 2014, enacted a gun  
          violence restraining order law in California to address concerns  
          related to mental health and firearms possession after the Isla  
          Vista shooting in Santa Barbara.  Under the provisions of AB  
          1014, persons subject to gun violence restraining orders are  
          required to either sell their weapons or surrender those  
          firearms to law enforcement.  This bill seeks to provide an  
          option that is available for persons who are subject to domestic  
          violence restraining orders.  That option was put into place by  
          AB 539 (Pan), Chapter 739, Statutes of 2013, which created a  
          process whereby persons subject to a domestic violence  
          restraining order could transfer their firearms to a federally  
          licensed firearms dealer for the duration of the restraining  
          order.  This bill would provide that same remedy for persons  
          subject to a gun violence restraining order.  By enacting this  
          bill, the original intent of AB 1014 is preserved, while the  
          property interests of persons subject to restraint through a  
          GVRO are also maintained.    

          



          3.  Argument in Support

          According to the California Chapters of the Brady Campaign to  
          Prevent Gun Violence:

               In 2014, the Brady Campaign was instrumental in the  
               passage of AB 1014 (Skinner), which we believe, when  
               implemented in 2016, will save numerous lives.  The  
               California Brady Campaign Chapters support AB 950 by  
               Assembly Member Melissa Melendez, as the bill will  
               facilitate the implementation of this important new  
               law.

               AB 1014 allows an immediate family member or a law  
               enforcement officer to request a court to issue a Gun  
               Violence Restraining Order (GVRO) to enjoin a person  
               from owning or possessing a firearm or ammunition for  
               a period of one year upon a showing that the person  
               poses a significant danger of personal injury to  
               himself, herself, or another.  Existing law requires a  
               person who is subject to such a restraining order to  








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               surrender his or her firearms and ammunition  
               immediately upon request of any law enforcement  
               officer. If no request is made, existing law requires  
               the person to surrender his or her firearms or  
               ammunition to a local law enforcement agency or to  
               sell his or her firearms or ammunition to a licensed  
               firearms dealer within 24 hours.

               This bill would allow a person who is subject to a  
               GVRO to transfer his or her firearms and/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. The bill would additionally  
               provide for the transfer of ammunition to a licensed  
               firearms dealer by any person who is prohibited from  
               owning or possessing ammunition.

               AB 950 is essentially similar to AB 539 (2013) by Dr.  
               Richard Pan and, in fact, Senator Pan is principle  
               coauthor of this bill.  Like AB 539, this bill  
               presents a reasonable alternative for temporarily  
               removing firearms, particularly in volatile  
               situations.  We believe that it would enhance public  
               safety as people may be more likely to surrender their  
               firearms and ammunition if they believe that there is  
               a reasonable chance that they can get them back upon  
               the termination of the prohibition. 
          
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