BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2607|
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THIRD READING
Bill No: AB 2607
Author: Ting (D)
Amended: 3/17/16 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 4-2, 6/14/16
AYES: Hancock, Leno, Liu, Monning
NOES: Anderson, Stone
NO VOTE RECORDED: Glazer
SENATE APPROPRIATIONS COMMITTEE: 5-2, 6/20/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 41-37, 6/1/16 - See last page for vote
SUBJECT: Firearm restraining orders
SOURCE: Author
DIGEST: This bill expands the individuals who are eligible to
petition for a gun violence restraining order (GVRO), as
specified.
ANALYSIS:
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." (Penal Code § 18100.)
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2) Requires the court to notify the Department of Justice (DOJ)
when a GVRO is issued, renewed, dissolved, or terminated.
(Penal 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. (Penal Code § 18120(a).)
4) Requires the court to order the restrained person to
surrender all firearms and ammunition in his or her control.
(Penal Code § 18120(b)(1).)
5) Allows law enforcement, in Penal Code section 18125, 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.
6) Allows an immediate family member or law enforcement officer
to file a petition requesting that the court 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).)
7) Defines "immediate family member" as specified. (Penal Code
§ 18150(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
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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.)
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 GVRO, 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.)
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. (Penal Code § 18120(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. (Penal 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
receiving a firearm or ammunition. (Penal 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. (Penal Code § 18175(b).)
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14)Allows a restrained person to file one written request for a
hearing to terminate the order. (Penal Code § 18185.)
15)Allows a request for renewal of a GVRO. (Penal Code §
18190.)
16)States that every person who files a petition for an ex
parte GVRO or a GVRO 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.)
17)States that every person who violates an ex parte GVRO or a
GVRO 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:
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
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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 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.
NOTE: See Senate Public Safety Committee Analysis for detailed
background.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
According to the Senate Appropriations Committee:
GVRO petitions: Potentially significant increase in court
costs (General Fund*) to the extent expanding the population
of individuals eligible to petition the court for a GVRO
results in additional petitions filed, subsequently prompting
new hearings and the issuance of warrants and GVROs. Actual
costs would be dependent of the volume of petitions filed by
the expanded population. The number of additional petitions
filed cannot be known with certainty, but to the extent even
one or two petitions are filed in each county per year,
estimated costs to the courts could be in the low hundreds of
thousands of dollars annually statewide.
APPS enforcement/administration: Potential increase in
costs (Special Fund**) to the Department of Justice (DOJ) for
administration and enforcement of the Armed Prohibited
Persons System (APPS) list to the extent expanding the
population of individuals eligible to petition for GVROs
increases workload to monitor changes to the APPS list based
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on new GVROs issued, renewed, dissolved, or terminated.
Misdemeanor violations: Potential non-reimbursable local
enforcement and incarceration costs (Local Funds) offset to a
degree by fine revenue for (1) violations of GVROs, (2)
violations of the subsequent five-year firearms/ammunition
prohibition due to violating a GVRO, and (3) filing GVRO
petitions with false information or with the intent to
harass.
Mandated law enforcement activities: Potential increase in
local law enforcement agency costs, potentially
state-reimbursable (General Fund) to retain surrendered
firearms and ammunition during the restraining order period,
issue a receipt to the restrained person at the time of
surrender, and serve ex parte restraining orders.
* Trial Court Trust Fund
**Dealers Record of Sale (DROS) Account - Senate Appropriations
staff notes the DROS Account is structurally imbalanced, with
an estimated reserve balance of less than $1 million by
year-end FY 2016-17. Current revenues to the DROS Account may
be insufficient to cover the additional costs resulting from
this bill in conjunction with the numerous other legislative
measures requiring funding from the DROS Account, should they
be enacted.
SUPPORT: (Verified6/21/16)
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
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OPPOSITION: (Verified6/21/16)
American Civil Liberties Union of California
California Association of Marriage and Family Therapists
California Association for Licensed Professional Clinical
Counselors
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
Several individuals
ARGUMENTS 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.
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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.
ARGUMENTS IN OPPOSITION: According to the American Civil
Liberties Union of California:
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
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
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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
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
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concerns were justified, could petition the court for such
an order. This new law should be given a chance to work
before revising it.
ASSEMBLY FLOOR: 41-37, 6/1/16
AYES: Alejo, Atkins, Bloom, Bonilla, Bonta, Burke, Calderon,
Campos, Chau, Chiu, Chu, Dababneh, Daly, Dodd, Cristina
Garcia, Eduardo Garcia, Gipson, Gomez, Gonzalez, Gordon, Roger
Hernández, Holden, Jones-Sawyer, Levine, Lopez, Low, McCarty,
Medina, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas,
Rodriguez, Santiago, Mark Stone, Thurmond, Ting, Weber,
Williams, Rendon
NOES: Achadjian, Travis Allen, Arambula, Baker, Bigelow,
Brough, Brown, Chang, Chávez, Cooley, Dahle, Eggman, Frazier,
Beth Gaines, Gallagher, Gatto, Gray, Grove, Hadley, Harper,
Irwin, Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes,
Melendez, Obernolte, Olsen, Patterson, Salas, Steinorth,
Wagner, Waldron, Wilk
NO VOTE RECORDED: Cooper, Wood
Prepared by:Jessica Devencenzi / PUB. S. /
6/30/16 9:00:18
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