BILL ANALYSIS                                                                                                                                                                                                    Ó




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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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