BILL ANALYSIS Ó
AB 2607
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Date of Hearing: April 19, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2607 (Ting) - As Amended March 17, 2016
SUMMARY: Expands the individuals who are eligible to petition
for a gun violence restraining order (GVRO). Specifically, this
bill:
1)Allows an employer, a coworker, a mental health worker who has
seen a person as a patient in the prior six months, an
employee of a secondary or postsecondary school that a person
has attended in the last six months, to file a petition
requesting that the court issue an ex parte GVRO enjoining the
subject of the petition from having in his or her custody or
control, owning, purchasing, possessing, or receiving a
firearm or ammunition.
2)Allows an employer, a coworker, a mental health worker who has
seen a person as a patient in the prior six months, an
employee of a secondary or postsecondary school that a person
has attended in the last six months, to file a petition
requesting that the court issue a GVRO after notice and a
hearing enjoining a person from having in his or her custody
or control, owning, purchasing, or receiving a firearm or
ammunition.
3)Allows an employer, a coworker, a mental health worker who has
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seen a person as a patient in the prior six months, an
employee of a secondary or postsecondary school that a person
has attended in the last six months, to request a renewal of a
GVRO at any time within the three months before the expiration
of such an order.
EXISTING LAW:
1)Defines a "gun violence restraining order" as "an order, in
writing, signed by the court, prohibiting and enjoining a
named person from having in his or her custody or control,
owning, purchasing, possessing, or receiving any firearms or
ammunition." (Pen. Code, § 18100.)
2)Requires the court to notify the Department of Justice (DOJ)
when a GVRO is issued, renewed, dissolved, or terminated.
(Pen. Code, § 18115.)
3)Prohibits a person that is subject to a GVRO from having in
his or her custody any firearms or ammunition while the order
is in effect. (Pen. Code, § 18120, subd. (a).)
4)Requires the court to order the restrained person to surrender
all firearms and ammunition in his or her control. (Pen.
Code, § 18120, subd. (b)(1).)
5)Allows law enforcement to seek a temporary GVRO if the officer
asserts, and the court finds, that there is reasonable cause
to believe the following:
a) The subject of the petition poses an immediate and
present danger of causing injury to himself or another by
possessing a firearm; and,
b) The emergency GVRO is necessary to prevent personal
injury to the subject of the order or another because less
restrictive alternatives have been tried and been
ineffective or have been determined to be inadequate under
the circumstances. (Pen. Code, § 18125.)
6)Allows an immediate family member or law enforcement officer
to file a petition requesting that the court issue an ex parte
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GVRO enjoining a person from having in his or her custody or
control, owning, purchasing, or receiving a firearm or
ammunition. (Pen. Code, § 18150, subd. (a)(1).)
7)Defines "immediate family member" as specified. (Pen. Code,
18150, subd. (a)(2).)
8)Allows a court to issue an ex parte GVRO if an affidavit, made
in writing and signed by the petitioner under oath, or an oral
statement, and any additional information provided to the
court on a showing of good cause that the subject of the
petition poses a significant risk of personal injury to
himself, herself, or another by having under his or her
custody and control, owning, purchasing, possessing, or
receiving a firearm as determined by balancing specified
factors. (Pen. Code, §§ 18150, subd. (b) & 18155.)
9)Requires a law enforcement officer to serve the ex parte GVRO
on the restrained person, if the restrained person can
reasonably be located. When serving a gun violence
restraining order, the law enforcement officer shall inform
the restrained person that he or she is entitled to a hearing
and provide the restrained person with a form to request a
hearing. (Pen. Code, § 18160.)
10)Allows the restrained person who owns a firearm or ammunition
that is in the custody of a law enforcement agency pursuant to
this subdivision, if the firearm is an otherwise legal
firearm, and the restrained person otherwise has right to
title of the firearm, to sell or transfer title of the firearm
to a licensed dealer. (Pen. Code, § 18120, subd. (c)(2).)
11)Entitles the restrained person to a hearing to determine the
validity of the order within 21 days after the date on the
order. (Pen. Code, § 18165.)
12)Allows an immediate family member or law enforcement officer
to file a petition requesting that the court issue a GVRO
after notice and a hearing enjoining a person from having in
his or her custody or control, owning, purchasing, or
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receiving a firearm or ammunition. (Pen. Code, § 18170.)
13)States that at the hearing, the petitioner has the burden of
proof, which is to establish by clear and convincing evidence
that the person poses a significant danger of causing personal
injury to himself, herself, or another by having under his or
her custody and control, owning, purchasing, possessing, or
receiving a firearm. (Pen. Code, § 18175, subd. (b).)
14)Allows a restrained person to file one written request for a
hearing to terminate the order. (Pen. Code, 18185.)
15)Allows a request for renewal of a GVRO. (Pen. Code, §
18190.)
16)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 or with the intent to
harass, is guilty of a misdemeanor. (Pen. Code, § 18200.)
17)States that every person who violates an ex parte gun
violence restraining order or a gun violence restraining order
issued after notice and a hearing, is guilty of a misdemeanor
and shall be prohibited from having under his or her custody
and 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.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Family members,
co-workers, employers, teachers, and mental health workers are
the most likely to see early warning signs if someone is
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becoming a danger to themself or others. In these
circumstances, existing law enables family members and law
enforcement to prevent gun-related tragedies before they
happen by pursuing a gun violence restraining order (GVRO) in
court. If granted by a court, a GVRO results in a temporary
seizure of firearms possessed by the dangerous individual and
a prohibition of their ability to purchase new firearms. AB
2607 logically expands who can petition a court for a GVRO by
adding co-workers, employers, teachers, and mental health
workers."
2)Gun Violence Restraining Orders: California's new GVRO laws,
modeled after domestic violence restraining order laws, went
into effect on January 1, 2016. A GVRO will prohibit the
restrained person from purchasing or possessing firearms or
ammunition and authorizes law enforcement to remove any
firearms or ammunition already in the individual's possession.
The statutory scheme establishes three types of GVRO's: a
temporary emergency GVRO, an ex parte GVRO, and a GVRO issued
after notice and hearing. A law enforcement officer may seek
a temporary emergency GVRO by submitting a written petition to
or calling a judicial officer to request an order at any time
of day or night. In contrast, an immediate family member or a
law enforcement officer can petition for either an ex parte
GVRO or a GVRO after notice and a hearing.
An ex parte GVRO is based on an affidavit filed by the
petitioner which sets forth the facts establishing the grounds
for the order. The court will determine whether good cause
exists to issue the order. If, the court issues the order, it
can remain in effect for 21 days. Within that time frame, the
court must provide an opportunity for a hearing. At the
hearing, the court can determine whether the firearms should
be returned to the restrained person, or whether it should
issue a more permanent order.
Finally, if the court issues a GVRO after notice and hearing
has been provided to the person to be restrained, this more
permanent order can last for up to one year.
When AB 1014 (Skinner), which created the GVRO statutory
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scheme was considered in the Senate Public Safety Committee,
the bill would have allowed anyone to request a gun violence
restraining order. The committee analysis noted that "Only
those with a close relationship to the person to be restrained
can request a domestic violence protective order." The
Committee questioned whether anyone should be allowed to
petition for a GVRO. AB 1014 was subsequently amended in the
Senate Appropriations Committee to only permit law enforcement
and immediate family members to petition for a GVRO.
This bill would expand the class of people who are able to
petition for a GVRO to enjoin an individual for possessing or
purchasing a firearm. It would allow an employer, a coworker,
a mental health worker who has seen the person as a patient in
the prior six months, and an employee of a secondary or
postsecondary school that the person has attended in the last
six months to seek such an order. While a mental health
worker who has recently treated an individual should be in a
position to know whether a person poses a danger to himself or
others; employers, co-workers, and school personnel would not
necessarily know this. It might depend on the work
environment, the size of the place of employment, or the size
of the school. Arguably these people do not necessarily have
the kind of close relationship that the amendments to the
original GVRO legislation sought to ensure.
3)Argument in Support: According to the California Chapters of
the Brady Campaign to End Gun Violence, "Existing law allows
law enforcement and immediate family members to petition the
court to obtain a Gun Violence Restraining Order when a person
is at risk of injury to self or others by having a firearm.
The order would temporarily prohibit the purchase or
possession of firearms while the order is in effect and would
allow a warrant to be issued to seize firearms or ammunition
from a person subject to the order. AB 2607 would also
authorize an employer, a coworker, a mental health worker who
has seen the person as a patient in the prior six months, or
an employee of a secondary or postsecondary school that the
person has attended in the last six months, to file a petition
for a Gun Violence Restraining Order. Those who work or study
with a person and have frequent interaction may see the early
warning signs and be the first to know that the person is at
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severe risk of harming self or others with a firearm. These
people need the ability to petition the court for a temporary
firearm prohibition.
"The Gun Violence Restraining Order statute is modeled after
California's domestic violence restraining order laws and
ensures due process and a rigorous standard of proof. A
noticed hearing before the court is required within 21 days.
In fact, the law provides more protections than the state's
domestic violence restraining order or mental health
commitment laws. The person subject to the temporary order
regains the ability to purchase or possess firearms when the
order expires after one year (unless renewed) or is revoked by
the court.
"As many California Brady members have personally experienced,
heightened anger or hate, despondence, substance abuse, or a
mental or emotional crises combined with access to firearms
can be a deadly combination. The Gun Violence Restraining
Order provides a way to prevent homicide, suicide, and mass
shootings by removing firearms before a tragedy occurs."
4)Argument in Opposition: According to the Firearm Policy
Coalition, "AB 2607 (Ting) seeks to expand a law (AB 1014,
Skinner- 2014) that has only been in effect less than 100 days
as of this writing. It seeks to add to the list of lay
persons, acquaintances and strangers authorized to file a 'gun
violence restraining order' against a person in secret,
without warning, without a professional opinion or evaluation
and without any due process to include tens of thousands of
people who are likely total strangers to the accused.
"While the damage done to civil rights is not yet known as the
law is so new, AB 2607 seeks to add 'an employer, a coworker,
a mental health worker who has seen the person as a patient in
the prior six months, an employee of a secondary or
postsecondary school that the person has attended in the last
six months.' This means, depending on where one works or
studies, online or in person, potentially tens of thousands of
people can secretly file a petition to take their firearms in
a surprise raid by law enforcement.
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"While this may sound like a cold-war era memoir of living
behind the iron curtain, it isn't. This is California, year
2016 and AB 2607 is revealing in its complete lack of regard
for the civil rights of California's law-abiding, gun-owning
residents."
5)Prior Legislation: AB 1014 (Skinner), Chapter 872, Statutes
of 2014, authorizes, beginning January 1, 2016, a law
enforcement officer or immediate family member of a person, to
seek, and a court to issue, a GVRO, as specified, prohibiting
a person from having in his/her custody or control, owning,
purchasing, possessing, or receiving any firearms or
ammunition, as specified.
REGISTERED SUPPORT / OPPOSITION:
Support
California Chapters of the Brady Campaign to End Gun Violence
Coalition Against Gun Violence
Law Center to Prevent Gun Violence
San Francisco County District Attorney
Women Against Gun Violence
Opposition
American Civil Liberties Union of California
California Public Defenders Association
California Sportsman's Lobby
Gun Owners of California
Firearms Policy Coalition
National Rifle Association
Outdoor Sportsmen's Coalition of California
Safari Club International
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744
AB 2607
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