BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2607| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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.) AB 2607 Page 2 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 AB 2607 Page 3 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).) AB 2607 Page 4 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 AB 2607 Page 5 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 AB 2607 Page 6 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 AB 2607 Page 7 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. AB 2607 Page 8 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 AB 2607 Page 9 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 AB 2607 Page 10 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 **** END ****