BILL NUMBER: SB 2052 CHAPTERED
BILL TEXT
CHAPTER 254
FILED WITH SECRETARY OF STATE AUGUST 28, 2000
APPROVED BY GOVERNOR AUGUST 25, 2000
PASSED THE ASSEMBLY AUGUST 10, 2000
PASSED THE SENATE MAY 16, 2000
AMENDED IN SENATE MAY 9, 2000
INTRODUCED BY Senator Schiff
FEBRUARY 25, 2000
An act to amend Section 12028.5 of the Penal Code, and to amend
Section 8102 of the Welfare and Institutions Code, relating to
firearms.
LEGISLATIVE COUNSEL'S DIGEST
SB 2052, Schiff. Firearms: retention after seizure.
Existing law provides that where a firearm is seized at the scene
of a domestic violence incident, as specified, and the law
enforcement agency has reasonable cause to believe that the return of
the firearm would be likely to result in endangering specified
persons, the agency may, within 10 days of the seizure, initiate a
petition in superior court to determine if the firearm or other
deadly weapon should be returned.
This bill would provide that the law enforcement agency would have
30 days, or, if granted an extension by the court, 60 days to
initiate the petition to determine if the firearm should be returned.
Existing law provides that where a firearm has been seized by law
enforcement in connection with a person who has been detained or
apprehended for examination of his or her mental condition, the law
enforcement agency may, within 30 days, initiate a petition in the
superior court for a hearing to determine whether the return of the
firearm would be likely to result in endangering the person or
others.
This bill would provide that the law enforcement agency would have
30 days, or, if granted an extension by the court, 60 days to
initiate the petition to determine if the firearm should be returned.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12028.5 of the Penal Code is amended to read:
12028.5. (a) As used in this section, the following definitions
shall apply:
(1) "Abuse" means any of the following:
(A) Intentionally or recklessly to cause or attempt to cause
bodily injury.
(B) Sexual assault.
(C) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another.
(D) To molest, attack, strike, stalk, destroy personal property,
or violate the terms of a domestic violence protective order issued
pursuant to Part 4 (commencing with Section 6300) of Division 10 of
the Family Code.
(2) "Domestic violence" means abuse perpetrated against any of the
following persons:
(A) A spouse or former spouse.
(B) A cohabitant or former cohabitant, as defined in Section 6209
of the Family Code.
(C) A person with whom the respondent is having or has had a
dating or engagement relationship.
(D) A person with whom the respondent has had a child, where the
presumption applies that the male parent is the father of the child
of the female parent under the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12 of the Family Code).
(E) A child of a party or a child who is the subject of an action
under the Uniform Parentage Act, where the presumption applies that
the male parent is the father of the child to be protected.
(F) Any other person related by consanguinity or affinity within
the second degree.
(3) "Deadly weapon" means any weapon, the possession or concealed
carrying of which is prohibited by Section 12020.
(b) A sheriff, undersheriff, deputy sheriff, marshal, deputy
marshal, or police officer of a city, as defined in subdivision (a)
of Section 830.1, a peace officer of the Department of the California
Highway Patrol, as defined in subdivision (a) of Section 830.2, a
member of the University of California Police Department, as defined
in subdivision (b) of Section 830.2, an officer listed in Section
830.6 while acting in the course and scope of his or her employment
as a peace officer, a member of a California State University Police
Department, as defined in subdivision (c) of Section 830.2, a peace
officer of the Department of Parks and Recreation, as defined in
subdivision (f) of Section 830.2, a peace officer, as defined in
subdivision (d) of Section 830.31, a peace officer as defined in
subdivisions (a) and (b) of Section 830.32, and a peace officer, as
defined in Section 830.5, who is at the scene of a domestic violence
incident involving a threat to human life or a physical assault,
shall take temporary custody of any firearm or other deadly weapon in
plain sight or discovered pursuant to a consensual search as
necessary for the protection of the peace officer or other persons
present. Upon taking custody of a firearm or other deadly weapon,
the officer shall give the owner or person who possessed the firearm
a receipt. The receipt shall describe the firearm or other deadly
weapon and list any identification or serial number on the firearm.
The receipt shall indicate where the firearm or other deadly weapon
can be recovered and the date after which the owner or possessor can
recover the firearm or other deadly weapon. No firearm or other
deadly weapon shall be held less than 48 hours. Except as provided
in subdivision (e), if a firearm or other deadly weapon is not
retained for use as evidence related to criminal charges brought as a
result of the domestic violence incident or is not retained because
it was illegally possessed, the firearm or other deadly weapon shall
be made available to the owner or person who was in lawful possession
48 hours after the seizure or as soon thereafter as possible, but no
later than 72 hours after the seizure. In any civil action or
proceeding for the return of firearms or ammunition or other deadly
weapon seized by any state or local law enforcement agency and not
returned within 72 hours following the initial seizure, except as
provided in subdivision (c), the court shall allow reasonable
attorney's fees to the prevailing party.
(c) Any peace officer, as defined in subdivisions (a) and (b) of
Section 830.32, who takes custody of a firearm or deadly weapon
pursuant to this section shall deliver the firearm within 24 hours to
the city police department or county sheriff's office in the
jurisdiction where the college or school is located.
(d) Any firearm or other deadly weapon which has been taken into
custody that has been stolen shall be restored to the lawful owner,
as soon as its use for evidence has been served, upon his or her
identification of the firearm or other deadly weapon and proof of
ownership.
(e) Any firearm or other deadly weapon taken into custody and held
by a police, university police, or sheriff's department or by a
marshal's office, by a peace officer of the Department of the
California Highway Patrol, as defined in subdivision (a) of Section
830.2, by a peace officer of the Department of Parks and Recreation,
as defined in subdivision (f) of Section 830.2, by a peace officer,
as defined in subdivision (d) of Section 830.31, or by a peace
officer, as defined in Section 830.5, for longer than 12 months and
not recovered by the owner or person who has lawful possession at the
time it was taken into custody, shall be considered a nuisance and
sold or destroyed as provided in subdivision (c) of Section 12028.
Firearms or other deadly weapons not recovered within 12 months due
to an extended hearing process as provided in subdivision (j), are
not subject to destruction until the court issues a decision, and
then only if the court does not order the return of the firearm or
other deadly weapon to the owner.
(f) In those cases where a law enforcement agency has reasonable
cause to believe that the return of a firearm or other deadly weapon
would be likely to result in endangering the victim or the person
reporting the assault or threat, the agency shall advise the owner of
the firearm or other deadly weapon, and within 30 days of the
seizure, initiate a petition in superior court to determine if the
firearm or other deadly weapon should be returned. The law
enforcement agency may make an ex parte application stating good
cause for an order extending the time to file a petition. Including
any extension of time granted in response to an ex parte request, a
petition must be filed within 60 days of the date of seizure of the
firearm.
(g) The law enforcement agency shall inform the owner or person
who had lawful possession of the firearm or other deadly weapon, at
that person's last known address by registered mail, return receipt
requested, that he or she has 30 days from the date of receipt of the
notice to respond to the court clerk to confirm his or her desire
for a hearing, and that the failure to respond shall result in a
default order forfeiting the confiscated firearm or other deadly
weapon. For the purposes of this subdivision, the person's last
known address shall be presumed to be the address provided to the law
enforcement officer by that person at the time of the family
violence incident. In the event the person whose firearm or other
deadly weapon was seized does not reside at the last address provided
to the agency, the agency shall make a diligent, good faith effort
to learn the whereabouts of the person and to comply with these
notification requirements.
(h) If the person requests a hearing, the court clerk shall set a
hearing no later than 30 days from receipt of that request. The
court clerk shall notify the person, the law enforcement agency
involved, and the district attorney of the date, time, and place of
the hearing. Unless it is shown by clear and convincing evidence
that the return of the firearm or other deadly weapon would result in
endangering the victim or the person reporting the assault or
threat, the court shall order the return of the firearm or other
deadly weapon and shall award reasonable attorney's fees to the
prevailing party.
(i) If the person does not request a hearing or does not otherwise
respond within 30 days of the receipt of the notice, the law
enforcement agency may file a petition for an order of default and
may dispose of the firearm or other deadly weapon as provided in
Section 12028.
(j) If, at the hearing, the court does not order the return of the
firearm or other deadly weapon to the owner or person who had lawful
possession, that person may petition the court for a second hearing
within 12 months from the date of the initial hearing. If the owner
or person who had lawful possession does not petition the court
within this 12-month period for a second hearing or is unsuccessful
at the second hearing in gaining return of the firearm or other
deadly weapon, the firearm or other deadly weapon may be disposed of
as provided in Section 12028.
(k) The law enforcement agency, or the individual law enforcement
officer, shall not be liable for any act in the good faith exercise
of this section.
SEC. 2. Section 8102 of the Welfare and Institutions Code is
amended to read:
8102. (a) Whenever a person, who has been detained or apprehended
for examination of his or her mental condition or who is a person
described in Section 8100 or 8103, is found to own, have in his or
her possession or under his or her control, any firearm whatsoever,
or any other deadly weapon, the firearm or other deadly weapon shall
be confiscated by any law enforcement agency or peace officer, who
shall retain custody of the firearm or other deadly weapon.
"Deadly weapon," as used in this section, has the meaning
prescribed by Section 8100.
(b) Upon confiscation of any firearm or other deadly weapon from a
person who has been detained or apprehended for examination of his
or her mental condition, the peace officer or law enforcement agency
shall notify the person of the procedure for the return of any
firearm or other deadly weapon which has been confiscated.
Where the person is released, the professional person in charge of
the facility, or his or her designee, shall notify the person of the
procedure for the return of any firearm or other deadly weapon which
may have been confiscated.
Health facility personnel shall notify the confiscating law
enforcement agency upon release of the detained person, and shall
make a notation to the effect that the facility provided the required
notice to the person regarding the procedure to obtain return of any
confiscated firearm.
(c) Upon the release of a person as described in subdivision (b),
the confiscating law enforcement agency shall have 30 days to
initiate a petition in the superior court for a hearing to determine
whether the return of a firearm or other deadly weapon would be
likely to result in endangering the person or others, and to send a
notice advising the person of his or her right to a hearing on this
issue. The law enforcement agency may make an ex parte application
stating good cause for an order extending the time to file a
petition. Including any extension of time granted in response to an
ex parte request, a petition must be filed within 60 days of the
release of the person from a health facility.
(d) If the law enforcement agency does not initiate proceedings
within the 30-day period, or the period of time authorized by the
court in an ex parte order issues pursuant to subdivision (c), it
shall make the weapon available for return.
(e) The law enforcement agency shall inform the person that he or
she has 30 days to respond to the court clerk to confirm his or her
desire for a hearing, and that the failure to respond will result in
a default order forfeiting the confiscated firearm or weapon. For
the purpose of this subdivision, the person's last known address
shall be the address provided to the law enforcement officer by the
person at the time of the person's detention or apprehension.
(f) If the person responds and requests a hearing, the court
clerk shall set a hearing, no later than 30 days from receipt of the
request. The court clerk shall notify the person and the district
attorney of the date, time, and place of the hearing.
(g) If the person does not respond within 30 days of the notice,
the law enforcement agency may file a petition for order of default.