BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
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SB 2052 (Schiff) 2
As Introduced February 25, 2000
Hearing date: May 2, 2000
Penal Code and Welfare and Institutions Code
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FIREARMS AND DEADLY WEAPONS
SEIZURE BY LAW ENFORCEMENT FROM (1) DOMESTIC VIOLENCE INCIDENTS,
AND, (2) WIC 5150 MENTAL HEALTH OBSERVATIONS
HISTORY
Source: City of Burbank
Prior Legislation: SB 1587 (Scott) - Chapter 587, Sts. 1999
AB 363 (Nolan) - Chapter 863, Sts. 1991
Support: Burbank Chief of Police; Burbank City Attorney; City of
San Gabriel; Sacramento County Sheriff; California
State Sheriffs' Association; Los Angeles County
District Attorney; California Peace Chiefs Association;
California Peace Officers' Association
Opposition:None known
KEY ISSUE
(1) EXISTING LAW PROVIDES THAT A LAW ENFORCEMENT AGENCY MUST
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RETURN A FIREARM OR OTHER DEADLY WEAPON SEIZED IN A DOMESTIC
VIOLENCE INCIDENT TO THE OWNER UNLESS A PETITION IS FILED WITHIN
10 DAYS FOR A JUDICIAL HEARING TO DETERMINE IF RETURN WOULD
ENDANGER THE VICTIM OR REPORTING PERSON.
CONTINUE
SHOULD THE TIME WITHIN WHICH THE POLICE MUST FILE SUCH A PETITION BE
INCREASED FROM 10 DAYS TO 60 DAYS?
(2) EXISTING LAW PROVIDES THAT WHERE A LAW ENFORCEMENT OFFICER
SEIZES A WEAPON (INCLUDING A FIREARM) FROM A PERSON DETAINED FOR
EXAMINATION OF HIS OR HER MENTAL CONDITION, THE OFFICER'S AGENCY
MUST RETURN THE WEAPON WITHIN 30 DAYS OF THE PERSON'S RELEASE FROM
TREATMENT OR EXAMINATION UNLESS THE AGENCY PETITIONS THE COURT TO
DETERMINE IF RETURN OF THE WEAPON WOULD ENDANGER THE PERSON OR
OTHERS.
SHOULD THE TIME FOR FILING A PETITION BY LAW ENFORCEMENT TO PREVENT
RETURN OF THE WEAPONS BE EXTENDED FROM 30 DAYS TO 60 DAYS FOLLOWING
RELEASE OF THE PERSON?
PURPOSE
The purpose of this bill is:
(1) to increase from 10 days to 60 days, the time within which
the police must file a petition for a court hearing to determine
if a firearm or other deadly weapon seized in a domestic
violence incident should not be returned to the owner.
(2) to increase from 30 days to 60 days the time within which
the police must file a petition for a court hearing to determine
if a firearm or other deadly weapon seized from a person
detained for investigation of his or her mental status should be
returned.
(1) Domestic Violence Incidents:
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Existing law provides that a peace officer "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 deadly weapon in plain sight or discovered pursuant
to a consensual search as necessary for the protection of the .
. . officer or other person . . ." (Pen. Code 12028.5, subd.
(b).)
Existing law provides that the peace officer shall give the
weapon<1> owner a receipt and instructions as to recovery of the
weapon. (Pen. Code 12028.5, subd. (b).)
Exiting law provides that where the weapon is not held for
evidence in a criminal matter, or where was possessed illegally,
the firearm shall be made available for the owner between 48
hours and 72 hours after seizure.
Existing law provides that where the law enforcement agency
believes that return of the firearm would be likely to endanger
the victim or person reporting the underlying incident, the
following procedures shall occur:
The agency must, within 10 days, notify the owner and
initiate a court petition to determine if the weapon should
not be returned to the owner.
The agency must inform the owner that he or she has 30 days
to confirm his or her desire for a hearing to contest
forfeiture of the weapon.
Hearing must be held within 30 days upon the request of the
owner.
The weapon shall be returned to the owner unless the agency
shows by clear and convincing evidence that return of the
weapon would endanger the victim or reporting party of the
domestic violence incident.
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<1> For purposes of this analysis, "weapon" shall mean a firearm
or other deadly weapon.
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This bill would extend the time within which the law enforcement
agency must file a petition to prohibit return of the weapon
from 10 days to 60 days.
(2) Detention for Mental Examinations:
Existing law provides that where any person is detained for
examination of his or her mental condition, or who has been
admitted for observation or treatment as dangerous to self or
others, or who has communicated to a therapist a threat to harm
others, or who has been found not guilty of many offenses by
reason of insanity, and that person has a deadly weapon
(including a firearm) in his or her possession, the peace
officer shall take temporary custody of the weapon. (Welf. &
Inst. Code 8102, subd. (a).)
Existing law provides that the officer must inform the detained
person of the procedures for return of the person's weapon.
(Pen. Code 8102, subd. (b).)
Existing law provides that upon release from treatment of a
person detained for examination of his or her mental condition,
the law enforcement agency shall have 30 days to petition the
superior court for a hearing to determine whether return of the
weapon would endanger the person or others. (Pen. Code 8102,
subd. (c).)
The health facility must notify the law enforcement agency
of the release of the person; and the facility must notify
the person of the procedure for return of the weapon.
The agency must inform the owner that he or she has 30 days
to confirm his or her desire for a hearing to contest
forfeiture of the weapon.
Hearing must be held within 30 days upon the request of the
owner.
The weapon shall be returned to the owner unless agency
shows by clear and convincing evidence that return of the
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weapon would endanger the victim or reporting party of the
domestic violence incident.
This bill would extend the time within which the law enforcement
agency must file a petition to prohibit return of the weapon,
and to notify the person of the petition, from 30 days to 60
days.
COMMENTS
1. Need for This Bill
According to the sponsor, the City of Burbank:
Following the seizure of a weapon at the scene of a
domestic violence incident or from a person detained
for up to 72 hours per [Welfare and Institutions] Code
section 5150 for evaluation of the person's mental
condition, this bill will provide that local law
enforcement agencies (and city attorneys and county
counsels) would have 60 days rather than 10 days from
seizure (domestic violence) or 30 days from the
person's release (sec. 5150 detention) to initiate a
petition to the superior court to determine if the
weapon should be returned to its owner.
Requiring police agencies to return weapons seized
from domestic violence incidents within 10 days or 30
days, in the absence of a court hearing, is an onerous
burden for the agency. Such a return may also create
a significant public danger.
The law is unworkable in a busy police department.
Communication between the mental health facilities and
police departments is poor to non-existent. Many
times the police are required to return weapons to
people who in the professional judgement and
experience of officers continue to be a danger to
themselves and others. Even if a petition can be
filed within the requisite 10 or 30-day period, the
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burden [on the police] is high. Officers are
sometimes forced to subject themselves and their
departments to civil liability (by holding weapons in
spite of the legal requirements) in order to safeguard
the community.
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2. SB 218 (Solis) - Ch. 662, Sts. 1999, Amended the Domestic
Violence Weapon Confiscation Law
SB 218 required, rather than allowed, peace officers to
confiscate a weapon at the scene of a domestic violence
incident. The bill also included sexual assault in the
definition of domestic violence.
As noted in the analysis of SB 218, there appears to be
significant data concerning the impact of firearms in domestic
violence situations, and this bill appears to be intended to
address this particular and serious correlation.<2>
Nevertheless, because this bill would increase the time that the
police may hold a weapon by 50 days, these provisions could
impact law-abiding citizens, such as victims who lawfully
possess firearms and who will ultimately be given their weapons
back by the police without a hearing, or after a judicial
hearing. It could be argued that a victim of domestic violence,
especially a person who has established his or her own
residence, might have a particular need for a weapon for
self-defense.
WHERE A WEAPON HAS BEEN CONFISCATED IN A DOMESTIC VIOLENCE
INCIDENT, AND THE WEAPON IS NEITHER BOOKED AS EVIDENCE NOR
POSSESSED ILLEGALLY PRIOR TO THE SEIZURE, SHOULD A LAW
ENFORCEMENT AGENCY BE ALLOWED TO RETAIN THE WEAPON FOR UP TO 60
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<2> See, e.g., the following internet sources:
http://www.childmmc.edu/help/famviol.htm; "Homicide reports
submitted by local police agencies across the country for the
years 1976-92 involving 36,000 female victims ages 18-34 were
analyzed to determine patterns and trends in lethal domestic
violence directed against women. . . . The analysis revealed
that among women in this age group, the victim was the
murderer's wife or ex-wife, or was otherwise intimately
involved, in 48 percent of those cases in which the
victim-offender relationship could be determined, and in 34
percent of cases overall. The vast majority of these homicides
were committed with firearms." (http:
//www.jrsa.org/cgi-bin/w3-msql/database/search _i.htm) (http: //
www.silcom.com/~paladin/madv/stats.html)
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DAYS, NOT 10 DAYS, BEFORE RETURNING THE WEAPON OR PETITIONING
THE COURT TO BAR RETURN?
NOTE: Section 12028.5 technically requires return of the weapon
within 48 hours of the incident but no later than 72 hours after
the seizure. However, if a weapon is not returned, the local
law enforcement agency shall inform the owner that the weapon is
not to be returned and then file the a petition in court to
determine if the weapon should be returned. The practical
effect of the existing 10 day period during which the agency can
file the petition may be that weapons are not returned until the
10 days has expired, rather than within 48 to 72 hours after
seizure. If so, the practical effect of this bill could be that
weapons will not be returned until 60 days have elapsed from the
incident.
3. Background Information Refers Only to 5150 Patients.
Governing Statute May Cover Other Persons: Possible
Clarifying Amendment
The sponsor refers only to persons held for psychiatric
observation for 72 hours under Welfare and Institutions Code
section 5150. However, it appears that the statute could also
cover persons held involuntarily for 14 days or 180 days under
sections 5250 through 5300, as such persons are initially
detained for examination, admitted to a facility, and then
eventually released. It may be that the majority of such
persons are "5150" patients. Perhaps law enforcement agencies
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generally interpret the statute as covering only "5150" patients
who are not detained beyond 72 hours. The Committee may wish to
ask witnesses about the range of the governing statutes. (See
Comment #4, below, as to the inconsistencies in the governing
statutes in this area.) The law could be clarified by stating
that the provisions relating to return of a firearm only apply
to persons who have been detained for examination, but who were
released within 72 hours. Regardless, current law prohibits
persons held beyond the initial 5150 72-hour observation period
from possessing a firearm for five years.
4. Related Laws Barring Firearm Possession by Persons
Involuntarily Held for Psychiatric Treatment or Evaluation -
Possible Conflicts and Inconsistencies
A person held under Welfare and Institutions Code section 5150
(the Lanterman-Petris-Short Act) as a danger to self or others
for no more than 72 hours may not own a firearm for five years.
However, AB 1587 (Scott) - Ch. 587, Sts. 1999, provided that a
5150 patient may restore the right to possess a firearm if he or
she requests a hearing at which the district attorney would bear
the burden of presenting evidence and proving that the former
cannot safely possess a gun.<3> (Welf. & Inst. Code 8103.)
An LPS patient who has been required to undergo intensive
treatment for 14 days pursuant to a probable cause hearing, or
for 180 days after a judicial hearing, may not own a firearm for
five years unless the person proves by preponderance of evidence
that he or she may safely possess a firearm. (Welf. & Inst.
Code 8103, subd. (g).)
If an LPS patient possesses a firearm without obtaining judicial
permission to do so, he or she is guilty of a misdemeanor,
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<3> Existing law provides that any person who has been found
guilty of specified serious offenses by reason of insanity may
not possess a firearm. (Welf. & Inst. Code 8103, subd. (b).)
Existing law provides that any person who has been found guilty
of lesser criminal offenses by reason of insanity may not
possess a firearm until sanity has been restored. (Welf. &
Inst. Code 8103, subd. (c).)
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punishable by not more than 1 year in the county jail, or a
felony, punishable by imprisonment in state prison for 16
months, 2 years or 3 years. (Welf. & Inst. Code 8103, subd.
(i).)<4>
This bill concerns a process whereby a law enforcement agency
must return a firearm to a person who has been released from a
health facility unless the agency initiates a petition to deny
return of the weapon. This presents the odd possibility that
the police must return a firearm to a person who is legally
prohibited from possessing the gun. The police could be
required to give a person a firearm and arrest him or her for
illegally possessing it.
SHOULD THE STATUTES GOVERNING CONFISCATION OF WEAPONS FROM
PEOPLE WHO ARE DETAINED FOR EXAMINATION OF THEIR MENTAL STATUS
AND THE STATUTES PROHIBITING SUCH PERSONS FROM POSSESSING A
FIREARM FOR FIVE YEARS BE HARMONIZED?
SHOULD THE LAW PROVIDE THAT WHERE TWO PETITIONS HAVE BEEN FILED
CONCERNING THE RIGHT OF A FORMER 5150 PATIENT TO OWN A FIREARM,
THOSE MATTERS SHOULD BE CONSOLIDATED?
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<4> California law prohibits many classes of people from owning
firearms. The most usual prohibition is a lifetime firearm
possession ban for any person convicted of a felony. There are
lesser prohibitions for persons convicted of various
misdemeanors and minors adjudicated to have committed specified
offenses. (Pen. Code 12021.)