BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2607 Hearing Date: June 14, 2016
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|Author: |Ting |
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|Version: |March 17, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Firearm Restraining Orders
HISTORY
Source: Author
Prior Legislation:AB 1014 (Skinner)--Chapter 872, Statutes of
2014
Support: California Chapters of the Brady Campaign to Prevent
Gun Violence; Coalition Against Gun Violence;
California Teachers Association; Coalition Against Gun
Violence, a Santa Barbara Coalition; Law Center to
Prevent Gun Violence; George Gascon, San Francisco
District Attorney; California PTA; Women Against Gun
Violence; City of Berkeley; Youth Alive
Opposition:American Civil Liberties Union of California;
California Association of Marriage and Family
Therapists; California Psychiatric Association;
California Psychological Association; California
Public Defenders Association; California Sportsman's
Lobby; Firearms Policy Coalition; Gun Owners of
California; Rick Farinelli, Madera County District 3
Supervisor; National Rifle Association; Outdoor
Sportsmen's Coalition of California; Safari Club
International
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Assembly Floor Vote: 41 - 37
PURPOSE
The purpose of this bill is to expand the individuals who are
eligible to petition for a gun violence restraining order
(GVRO), as specified.
Existing law 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." (Penal Code § 18100.)
Existing law requires the court to notify the Department of
Justice (DOJ) when a GVRO is issued, renewed, dissolved, or
terminated. (Penal Code § 18115.)
Existing law 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. (Penal Code § 18120(a).)
Existing law requires the court to order the restrained person
to surrender all firearms and ammunition in his or her control.
(Penal Code § 18120(b)(1).)
Existing law 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:
The subject of the petition poses an immediate and
present danger of causing injury to himself or another by
possessing a firearm; and,
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. (Penal Code § 18125.)
Existing law allows an immediate family member or law
enforcement officer to file a petition requesting that the court
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issue an ex parte GVRO enjoining a person from having in his or
her custody or control, owning, purchasing, or receiving a
firearm or ammunition. (Penal Code § 18150(a)(1).)
Existing law defines "immediate family member" as specified.
(Penal Code § 18150(a)(2).)
Existing law 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. (Penal Code §§ 18150(b) and 18155.)
Existing law 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.
(Penal Code § 18160.)
Existing law 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. (Penal Code § 18120(c)(2).)
Existing law entitles the restrained person to a hearing to
determine the validity of the order within 21 days after the
date on the order. (Penal Code § 18165.)
Existing law 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
receiving a firearm or ammunition. (Penal Code § 18170.)
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Existing law 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. (Penal Code § 18175(b).)
Existing law allows a restrained person to file one written
request for a hearing to terminate the order. (Penal Code §
18185.)
Existing law allows a request for renewal of a GVRO. (Penal
Code § 18190.)
Existing law 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. (Penal Code § 18200.)
Existing law 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.
(Penal Code § 18205.)
This bill 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.
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This bill 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.
This bill 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 request a renewal of a
GVRO at any time within the three months before the expiration
of such an order.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several 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;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
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2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 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 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.
COMMENTS
1. Need for This Legislation
According to the author:
California's laws have reduced the rate of firearm-related
deaths by 56% in the past 20 years, however significantly
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more needs to be done to prevent gun violence from
occurring. 57% of adults believe stricter gun laws are
important and 62% say the government doesn't do enough to
regulate gun access.
Statistics of gun-related deaths demonstrate the need for
government to take a more proactive approach to prevent
shootings by taking guns away from dangerous people before
tragedy strikes.
An estimated 13,286 people were killed in the US by
firearms in 2015 and 26,819 people were injured.
Between January 2009 and July 2015 there have been
at least 133 mass shootings.
From 2000 to 2013 mass shootings are on the rise,
with the majority of them occurring on school campuses
and in the workplace.
Since 2013, there have been at least 165 school
shootings in America, an average of nearly one a week,
and more young Americans are now dying from guns than car
accidents.
Guns are responsible for over 80% of fatalities that
occur in the workplace, and in 2013 alone, there were 316
fatal workplace shootings.
More than 60% of people in this country who die from
guns die by suicide and suicide is the second-most common
cause of death for Americans between the ages of 15 and 34.
2. Gun Seizure Laws: Connecticut and Indiana
Connecticut:
The law allows any two police officers (or a state's attorney)
to get warrants and seize guns from anyone who poses an imminent
risk of injuring himself or herself or someone else. (OLR
Research Report, Gun Seizure Law, Veronica Rose, August 13,
2009, https://www.cga.ct.gov /2009/rpt/2009-R-0306.htm) A
warrant may be sought only after (1) conducting an independent
investigation to establish probable cause, and (2) determining
that no reasonable alternative exists to avert the risk of harm.
(Id.)
In determining whether probable cause exists for issuing a
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warrant, the judge must consider any recent threat or violent
act the person directed at himself or herself, others, or
animals. (Id.) In determining whether the threats or acts
constitute probable cause to believe a risk of injury is
imminent, the judge may consider, among other things, if the
person (1) recklessly used, displayed, or brandished a gun; (2)
has a history of using, attempting, or threatening to use
physical force against people; (3) was ever involuntarily
confined to a psychiatric hospital; (4) abused alcohol; or (5)
illegally used controlled substances. If satisfied that
probable cause exists and there is no reasonable alternative to
prevent the person from causing imminent harm, the judge must
issue the warrant. (Id.)
The court must hold a hearing within 14 days after a seizure to
determine whether to return the guns or order them held for up
to one year. (Id.)
From 1999, when the law took effect, to 2009, police had applied
for at least 277 warrants and seized more than 2,000 guns.<1>
(Id.) In 185 (67%) of the 277 cases, warrant applications were
based on a suicide risk, murder allegation, or both. (Id.)
Suicide threats or behavior accounted for 126 (46%) of the
applications, murder threats for 34 (12%), and murder-suicide
threats for 25 (9%). (Id.) Other factors that triggered
applications included mental instability (11%), threatening
(7%), reckless gun use or display (4%), and domestic violence
(3%). (Id.)
Additionally, the data showed "a spouse as the most likely
person to initiate a complaint triggering a warrant application
(see Table 4). A spouse was the source of the complaint or
allegation in 55 of the 236 cases in which we were able to
identify the complainant. A relative other than a spouse
accounted for 36 applications, and law enforcement officials
accounted for 29." (Id.)
Table 4: Source of Allegations in Gun Seizure Warrants (N=277)
---------------------------
<1> This reflects number of warrants requested by law
enforcement after an investigation, not the number of triggering
complaints received. The committee was not able to locate
information as to how often law enforcement receives a complaint
and does not seek a warrant.
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| | | |
| Source of Allegation | No. of | % of |
| |Allegati| Total |
| | ons |Allegation|
| | | s |
| | | |
|-----------------------------+--------+----------|
| | | |
|Spouse | 55 | 21% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Relative other than spouse | 36 | 13% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Police/law enforcement | 29 | 10% |
|official | | |
| | | |
|-----------------------------+--------+----------|
| | | |
|Health professional | 25 | 9% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Public official/employee | 13 | 5% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Girl/boyfriend | 13 | 5% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Ex-girl/boyfriend | 9 | 3% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Self | 12 | 4% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Workplace official/coworker | 9 | 3% |
| | | |
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|-----------------------------+--------+----------|
| | | |
|Friend | 6 | 2% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Ex-spouse | 3 | 1% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Other (neighbors, etc.) | 26 | 9% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Total known | 236 | 85% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Unknown/unclear | 41 | 15% |
| | | |
|-----------------------------+--------+----------|
| | | |
|Total of all allegations | 277 |100% |
| | | |
-------------------------------------------------
Indiana:
In Indiana, law enforcement is allowed to seize, with or without
obtaining a warrant, firearms from a person who they believe is
dangerous. (Indiana Code §§ 35-47-14-2 and 35-4714-3) Indiana
defines "dangerous" to mean:
(1) the individual presents an imminent risk of
personal injury to the individual or to another
individual; or
(2) the individual may present a risk of personal
injury to the individual or to another individual in
the future and the individual:
(A) has a mental illness (as defined in IC
12-7-2-130) that may be controlled by medication, and
has not demonstrated a pattern of voluntarily and
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consistently taking the individual's medication while
not under supervision; or
(B) is the subject of documented evidence that
would give rise to a reasonable belief that the
individual has a propensity for violent or emotionally
unstable conduct. (Id. at 35-47-14-1.)
If law enforcement seizes the firearm without first obtaining a
seizure warrant, the officer is required to submit to the court
a written statement under oath or affirmation describing the
basis for the law enforcement officer's belief that the
individual is dangerous. (Id. at 35-47-14-3.) The court is
then required to review that statement and determine if probable
cause exists to retain the firearm. (Id.) The court then
conducts a hearing within 14 days to determine whether the
firearm should be seized. (Id. at 35-47-14-5.) At the hearing,
it is the state's burden to proof by clear and convincing
evidence that the individual is dangerous. (Id. at 35-47-14-6.)
At least one hundred eighty (180) days after the date on which
a court orders a law enforcement agency to retain the firearm,
the individual may petition the court for return of the firearm.
(Id. at 35-47-14-8.)
3. California's Gun Violence Restraining Order
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
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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, of 2014), which created the GVRO
statutory 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,
Only those with a close relationship to the person to be
restrained can request a domestic violence protective
order. Specifically, the person seeking the order must be:
(1) married or registered domestic partners; (2) divorced
or separated; (3) dating or used to date; (4) living
together or used to live together (more than roommates);
(5) parents together of a child; or, (6) closely related
(parent, child, brother, sister, grandmother, grandfather,
in-law).
This legislation would allow anyone to request a gun
violence restraining order. While the legislation requires
the requesting party to sign an affidavit under perjury,
and also creates a new misdemeanor to punish anyone who
files a request "knowing the information in the petition to
be false or with the intent to harass," members may wish to
consider whether allowing anyone to file these requests is
prudent.
SHOULD ANYONE BE ALLOWED TO PETITION THE COURT TO ISSUE A
GUN VIOLENCE RESTRAINING ORDER?
The author offered amendments in the Senate Public Safety
Committee that restricted the availability of an ex parte GVRO
and a regular GVRO to law enforcement, immediate family members,
and doctors/therapists of the person who is the subject of the
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petition. 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. Given that the GVRO laws have
been in effect for six months, it is unclear if there is a need
for an expansion of who may seek a GVRO. It is, additionally,
unclear why these groups of individuals are not able to seek a
GVRO through law enforcement.
4. 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 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
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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.
5. Argument In Opposition
According to the American Civil Liberties Union of California:
The ACLU regrets to inform you that we must respectfully
oppose AB 2607, which would expand the parties who could
seek an ex-parte gun violence restraining order to include
an employer, a coworker, a mental health worker who has
seen the person as a patient in the last 6 months, or an
employee of a secondary or postsecondary school that the
person has attended in the last 6 months. Because the
current law which created the gun violence restraining
order has only been in effect for less than four months, it
is premature to decide that the policy recently approved by
the legislature needs revision. Additionally, because the
ex-parte procedure would allow a person to be subjected to
this order, with all the ensuing consequences, without an
opportunity to be heard or contest the matter, we believe
expanding the authorization to seek such an order this
broadly poses a significant threat to civil liberties.
The statutory scheme creating the Gun Violence Restraining
Order (Penal Code sections 18100-18205) was created in
2014, and only became operative in January of this year.
(AB 1014 (Skinner) - Chap. 872, Stats. of 2014). Under this
scheme a family member, or any law enforcement officer, who
has reason to believe a person owns a gun and poses a
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significant danger to themselves or others, may petition
the court for an ex-parte order to prohibit the subject
from possessing a gun for up to 21 days, at which time a
hearing would be held to determine whether to extend the
order for up to one year.
An ex-parte order means the person subjected to the
restraining order is not informed of the court proceeding
and therefore has no opportunity to appear to contest the
allegations. We support efforts to prevent gun violence,
but we must balance that important goal with protection of
civil liberties so we don't sacrifice one in an attempt to
accomplish the other. We believe the AB 1014 was crafted in
order to properly strike that balance. By expanding the
parties that could apply for such an ex-parte restraining
order to include all the parties listed above, AB 2607
upsets that balance and creates significant potential for
civil rights violations.
For example, it is not hard to imagine a scenario in which
someone might harbor an irrational fear of a coworker based
on that coworker belonging to some minority group that the
person dislikes and distrusts, and their being able to
persuade a judge that their coworker is armed and poses a
threat. AB 2607 would authorize that, on the basis of this
person's uncorroborated allegation, the police could show
up at the coworker's door, in the manner you could expect
when they anticipate confronting someone who they believe
to be armed and dangerous, and order them to surrender
their firearms. And what if they say they don't have any
firearms? Or not as many as the petitioner claimed? Would
the officers then have probable cause to search the
residence for the "missing" guns? Many judges would
undoubtedly think so. The innocent coworker would, at a
minimum, be subjected to a tense confrontation with police,
possibly have their house searched, all without being
accused of any wrongdoing and before ever being allowed to
respond to their coworker's allegations.
In addition to employers and coworkers, AB 2607 would allow
a mental health worker who has seen the person as a patient
in the last 6 months, or an employee of a secondary or
postsecondary school that the person has attended in the
last 6 months, to directly petition the court for this
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ex-parte order. The rationale for allowing an ex-parte
order is the urgency of the threat. It is hard to
understand why someone should have the authority to obtain
an ex-parte restraining order six months after they had
contact with the person who they allege poses an urgent
threat.
Under the current law, enacted just a few months ago under
AB 1014, any of the people this bill would authorize to
seek the restraining order could go to law enforcement with
their concerns and law enforcement, if they felt the
concerns were justified, could petition the court for such
an order. This new law should be given a chance to work
before revising it.
-- END -