BILL ANALYSIS Ó
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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