BILL NUMBER: AB 1587 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 31, 1999
AMENDED IN SENATE AUGUST 31, 1999
AMENDED IN SENATE AUGUST 18, 1999
AMENDED IN SENATE AUGUST 17, 1999
AMENDED IN SENATE JULY 8, 1999
AMENDED IN SENATE JUNE 23, 1999
AMENDED IN ASSEMBLY MAY 24, 1999
AMENDED IN ASSEMBLY APRIL 22, 1999
INTRODUCED BY Assembly Members Scott and Aroner
FEBRUARY 26, 1999
An act to amend Section 8103 of the Welfare and Institutions Code,
relating to firearms, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 1587, as amended, Scott. Firearms.
(1) Existing law provides that no person who has been taken into
custody or admitted to a designated facility because that person is a
danger to himself, herself, or others shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase any firearm for a period of 5 years after the person is
released from the facility unless, upon petition to the superior
court, the person is found by a preponderance of the evidence likely
to use firearms in a safe and lawful manner.
This bill instead would provide that the person may request a
hearing from the court and provide that the People of the State of
California shall bear the burden of showing by a preponderance of the
evidence that the person would not be likely to use firearms in a
safe and lawful manner. If the court at the hearing finds that the
people have not met their burden, or the district attorney declines
or fails to go forward at the hearing, the court would be required to
order that the person not be subject to the 5-year prohibition on
the ownership, control, receipt, possession, or purchase of firearms.
(2) Existing law provides that no person who has been certified
for intensive treatment related to mental disorder or impairment by
chronic alcoholism may own, possess, control, receive, or purchase,
or attempt to own, possess, control, receive, or purchase any firearm
for a period of 5 years unless upon petition to the superior court
the person is found by a preponderance of the evidence likely to use
firearms in a safe and lawful manner, as described above.
This bill would permit the person to petition the superior court
of his or her county of residence that he or she may own, possess,
control, receive, or purchase a firearm and would prescribe the
procedures for a hearing on the petition.
(3) This bill would declare that it is to take effect immediately,
as an urgency measure.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 8103 of the Welfare and Institutions Code is
amended to read:
8103. (a) (1) No person who after October 1, 1955, has been
adjudicated by a court of any state to be a danger to others as a
result of a mental disorder or mental illness, or who has been
adjudicated to be a mentally disordered sex offender, shall purchase
or receive, or attempt to purchase or receive, or have in his or her
possession, custody, or control any firearm or any other deadly
weapon unless there has been issued to the person a certificate by
the court of adjudication upon release from treatment or at a later
date stating that the person may possess a firearm or any other
deadly weapon without endangering others, and the person has not,
subsequent to the issuance of the certificate, again been adjudicated
by a court to be a danger to others as a result of a mental disorder
or mental illness.
(2) The court shall immediately notify the Department of Justice
of the court order finding the individual to be a person described in
paragraph (1). The court shall also notify the Department of
Justice of any certificate issued as described in paragraph (1).
(b) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of murder, mayhem, a violation of
Section 207, 209, or 209.5 of the Penal Code in which the victim
suffers intentionally inflicted great bodily injury, carjacking or
robbery in which the victim suffers great bodily injury, a violation
of Section 451 or 452 of the Penal Code involving a trailer coach, as
defined in Section 635 of the Vehicle Code, or any dwelling house, a
violation of paragraph (1) or (2) of subdivision (a) of Section 262
or paragraph (2) or (3) of subdivision (a) of Section 261 of the
Penal Code, a violation of Section 459 of the Penal Code in the first
degree, assault with intent to commit murder, a violation of Section
220 of the Penal Code in which the victim suffers great bodily
injury, a violation of Section 12303.1, 12303.2, 12303.3, 12308,
12309, or 12310 of the Penal Code, or of a felony involving death,
great bodily injury, or an act which poses a serious threat of bodily
harm to another person, or a violation of the law of any other state
or the United States that includes all the elements of any of the
above felonies as defined under California law, shall purchase or
receive, or attempt to purchase or receive, or have in his or her
possession or under his or her custody or control any firearm or any
other deadly weapon.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1).
(c) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of any crime other than those
described in subdivision (b) shall purchase or receive, or attempt to
purchase or receive, or shall have in his or her possession,
custody, or control any firearm or any other deadly weapon unless the
court of commitment has found the person to have recovered sanity,
pursuant to Section 1026.2 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1). The court shall also notify the Department of Justice
when it finds that the person has recovered his or her sanity.
(d) (1) No person found by a court to be mentally incompetent to
stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code or
the law of any other state or the United States, shall purchase or
receive, or attempt to purchase or receive, or shall have in his or
her possession, custody, or control any firearm or any other deadly
weapon, unless there has been a finding with respect to the person of
restoration to competence to stand trial by the committing court,
pursuant to Section 1372 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be mentally incompetent as
described in paragraph (1). The court shall also notify the
Department of Justice when it finds that the person has recovered his
or her competence.
(e) (1) No person who has been placed under conservatorship by a
court, pursuant to Section 5350 or the law of any other state or the
United States, because the person is gravely disabled as a result of
a mental disorder or impairment by chronic alcoholism shall purchase
or receive, or attempt to purchase or receive, or shall have in his
or her possession, custody, or control any firearm or any other
deadly weapon while under the conservatorship if, at the time the
conservatorship was ordered or thereafter, the court which imposed
the conservatorship found that possession of a firearm or any other
deadly weapon by the person would present a danger to the safety of
the person or to others. Upon placing any person under
conservatorship, and prohibiting firearm or any other deadly weapon
possession by the person, the court shall notify the person of this
prohibition.
(2) The court shall immediately notify the Department of Justice
of the court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession by the
person as described in paragraph (1). The notice shall include the
date the conservatorship was imposed and the date the conservatorship
is to be terminated. If the conservatorship is subsequently
terminated before the date listed in the notice to the Department of
Justice or the court subsequently finds that possession of a firearm
or any other deadly weapon by the person would no longer present a
danger to the safety of the person or others, the court shall
immediately notify the Department of Justice.
(3) All information provided to the Department of Justice pursuant
to paragraph (2) shall be kept confidential, separate, and apart
from all other records maintained by the Department of Justice, and
shall be used only to determine eligibility to purchase or possess
firearms or other deadly weapons. Any person who knowingly furnishes
that information for any other purpose is guilty of a misdemeanor.
All the information concerning any person shall be destroyed upon
receipt by the Department of Justice of notice of the termination of
conservatorship as to that person pursuant to paragraph (2).
(f) (1) No person who has been (A) taken into custody as provided
in Section 5150 because that person is a danger to himself, herself,
or to others, (B) assessed within the meaning of Section 5151, and
(C) admitted to a designated facility within the meaning of Sections
5151 and 5152 because that person is a danger to himself, herself, or
others, shall own, possess, control, receive, or purchase, or
attempt to own, possess, control, receive, or purchase any firearm
for a period of five years after the person is released from the
facility. A person described in the preceding sentence, however, may
own, possess, control, receive, or purchase, or attempt to own,
possess, control, receive, or purchase any firearm if the superior
court has, pursuant to paragraph (5), found that the People of the
State of California have not met their burden pursuant to paragraph
(6).
(2) For each person subject to this subdivision, the facility
shall immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the Department of
Justice, containing information that includes, but is not limited to,
the identity of the person and the legal grounds upon which the
person was admitted to the facility.
Any report prescribed by this subdivision shall be confidential,
except for purposes of the court proceedings described in this
subdivision and for determining the eligibility of the person to own,
possess, control, receive, or purchase a firearm.
(3) Prior to, or concurrent with, the discharge, the facility
shall inform a person subject to this subdivision that he or she is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of five years. Simultaneously,
the facility shall inform the person that he or she may request a
hearing from a court, as provided in this subdivision, for an order
permitting the person to own, possess, control, receive, or purchase
a firearm. The facility shall provide the person with a form for a
request for a hearing. The Department of Justice shall prescribe the
form. Where the person requests a hearing at the time of discharge,
the facility shall forward the form to the superior court unless the
person states that he or she will submit the form to the superior
court.
(4) The Department of Justice shall provide the form upon request
to any person described in paragraph (1). The Department of Justice
shall also provide the form to the superior court in each county. A
person described in paragraph (1) may make a single request for a
hearing at any time during the five-year period. The request for
hearing shall be made on the form prescribed by the department or in
a document that includes equivalent language.
(5) Any person who is subject to paragraph (1) who has requested a
hearing from the superior court of his or her county of residence
for an order that he or she may own, possess, control, receive, or
purchase firearms shall be given a hearing. The clerk of the court
shall set a hearing date and notify the person, the Department of
Justice, and the district attorney. The People of the State of
California shall be the plaintiff in the proceeding and shall be
represented by the district attorney. Upon motion of the district
attorney, or on its own motion, the superior court may transfer the
hearing to the county in which the person resided at the time of his
or her detention, the county in which the person was detained, or the
county in which the person was evaluated or treated. Within seven
days after the request for a hearing, the Department of Justice shall
file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The court shall set the hearing
within 30 days of receipt of the request for a hearing. Upon
showing good cause, the district attorney shall be entitled to a
continuance not to exceed 14 days after the district attorney was
notified of the hearing date by the clerk of the court. If
additional continuances are granted, the total length of time for
continuances shall not exceed 60 days. The district attorney may
notify the county mental health director of the hearing who shall
provide information about the detention of the person that may be
relevant to the court and shall file that information with the
superior court. That information shall be disclosed to the person
and to the district attorney. The court, upon motion of the person
subject to paragraph (1) establishing that confidential information
is likely to be discussed during the hearing that would cause harm to
the person, shall conduct the hearing in camera with only the
relevant parties present, unless the court finds that the public
interest would be better served by conducting the hearing in public.
Notwithstanding any other law, declarations, police reports,
including criminal history information, and any other material and
relevant evidence that is not excluded under Section 352 of the
Evidence Code, shall be admissible at the hearing under this section.
(6) The people shall bear the burden of showing by a preponderance
of the evidence that the person would not be likely to use firearms
in a safe and lawful manner.
(7) If the court finds at the hearing set forth in paragraph (5)
that the people have not met their burden as set forth in paragraph
(6), the court shall order that the person shall not be subject to
the five-year prohibition in this section on the ownership, control,
receipt, possession or purchase of firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state summary
criminal history information. from the person's state
mental health firearms prohibition system information.
(8) Where the district attorney declines or fails to go forward in
the hearing, the court shall order that the person shall not be
subject to the five-year prohibition required by this subdivision on
the ownership, control, receipt, possession, or purchase of firearms.
A copy of the order shall be submitted to the Department of
Justice. Upon receipt of the order, the Department of Justice shall,
within 15 days, delete any reference to the prohibition against
firearms from the person's state summary criminal history
administration. mental health firearms prohibition
system information.
(9) Nothing in this subdivision shall prohibit the use of reports
filed pursuant to this section to determine the eligibility of
persons to own, possess, control, receive, or purchase a firearm if
the person is the subject of a criminal investigation, a part of
which involves the ownership, possession, control, receipt, or
purchase of a firearm.
(g) (1) No person who has been certified for intensive treatment
under Section 5250, 5260, or 5270.15 shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase any firearm for a period of five years.
Any person who meets the criteria contained in subdivision (e) or
(f) who is released from intensive treatment shall nevertheless, if
applicable, remain subject to the prohibition contained in
subdivision (e) or (f).
(2) For each person certified for intensive treatment under
paragraph (1), the facility shall immediately submit a report to the
Department of Justice, on a form prescribed by the department,
containing information regarding the person, including, but not
limited to, the legal identity of the person and the legal grounds
upon which the person was certified. Any report submitted pursuant
to this paragraph shall only be used for the purposes specified in
paragraph (2) of subdivision (f).
(3) Prior to, or concurrent with, the discharge of each person
certified for intensive treatment under paragraph (1), the facility
shall inform the person of that information specified in paragraph
(3) of subdivision (f).
(4) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, control, receive, or purchase firearms. At
the time the petition is filed, the clerk of the court shall set a
hearing date and notify the person, the Department of Justice, and
the district attorney. The People of the State of California shall
be the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or on its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of his or her
detention, the county in which the person was detained, or the county
in which the person was evaluated or treated. Within seven days
after receiving notice of the petition, the Department of Justice
shall file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The district attorney shall be
entitled to a continuance of the hearing to a date of not less than
14 days after the district attorney was notified of the hearing date
by the clerk of the court. The district attorney may notify the
county mental health director of the petition, and the county mental
health director shall provide information about the detention of the
person that may be relevant to the court and shall file that
information with the superior court. That information shall be
disclosed to the person and to the district attorney. The court, upon
motion of the person subject to paragraph (1) establishing that
confidential information is likely to be discussed during the hearing
that would cause harm to the person, shall conduct the hearing in
camera with only the relevant parties present, unless the court finds
that the public interest would be better served by conducting the
hearing in public. Notwithstanding any other provision of law, any
declaration, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at the
hearing under this section. If the court finds by a preponderance of
the evidence that the person would be likely to use firearms in a
safe and lawful manner, the court may order that the person may own,
control, receive, possess, or purchase firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of
the order, the Department of Justice shall delete any reference to
the prohibition against firearms from the person's state
summary criminal history information. from the person'
s state mental health firearms prohibition system information.
(h) For all persons identified in subdivisions (f) and (g),
facilities shall report to the Department of Justice as specified in
those subdivisions, except facilities shall not report persons under
subdivision (g) if the same persons previously have been reported
under subdivision (f).
Additionally, all facilities shall report to the Department of
Justice upon the discharge of persons from whom reports have been
submitted pursuant to subdivision (f) or (g). However, a report
shall not be filed for persons who are discharged within 31 days
after the date of admission.
(i) Every person who owns or possesses or has under his or her
custody or control, or purchases or receives, or attempts to purchase
or receive, any firearm or any other deadly weapon in violation of
this section shall be punished by imprisonment in the state prison or
in a county jail for not more than one year.
(j) "Deadly weapon," as used in this section, has the meaning
prescribed by Section 8100.
SEC. 2. The provisions of this bill shall not go into effect
until 30 days after the Department of Justice provides to the
designated facilities, forms prescribed in paragraphs (2) and (3) of
subdivision (f) of Section 8103 of the Welfare and Institutions Code.
SEC. 3. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to protect the public safety by ensuring that firearms
are kept out of the hands of mentally and emotionally disturbed
persons, it is necessary that this act take effect immediately.