BILL ANALYSIS
AB 1288
Page 1
Date of Hearing: April 19, 2005
Counsel: Heather Hopkins
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 1288 (Chu) - As Amended: April 4, 2005
SUMMARY : Provides that if a court orders a protective order in
a domestic violence case, the order shall prohibit the defendant
from purchasing firearms and require the defendant to relinquish
any firearms he or she possesses. Specifically, this bill :
1)Provides that if a court does not issue an order pursuant to
Penal Code Section 136.2(g)(1) in a case in which the
defendant is charged with a crime of domestic violence, as
specified, the court on its own motion shall issue a
protective order upon a good cause belief that harm to, or
intimidation or dissuasion of, a victim or witness has
occurred or is reasonably likely to occur. The order shall
provide that the defendant shall not own, possess, purchase,
receive, or attempt to purchase or receive a firearm while the
protective order is in effect and the defendant shall
relinquish any firearms that he or she owns or possesses, as
specified.
2)Provides that specified officers may disseminate the name of
the subject of the specified DOJ record regarding firearms;
the number of firearms listed in the record; and the
description of any firearm, including the make, model, and
caliber, from the record relating to any firearms sale,
transfer, registration, or license record, or any information
reported to the DOJ as specified if the following conditions
are met:
a) The subject of the record has been arraigned for a crime
in which the victim is a person described in Family Code
Section 6211(a) to 6211(f) and is being prosecuted or is
serving a sentence for the crime; or the subject of the
record is the subject of an emergency protective order, a
temporary restraining order, or an order after hearing,
which is in effect and has been issued by a family court
under the Domestic Violence Protection Act; and,
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b) The information is disseminated only to the victim of
the crime or to the person who has obtained the emergency
protective order, the temporary restraining order, or the
order after hearing issued by the family court.
3)Provides that the victim or person to whom the specified
firearms information is disseminated may disclose that
information as he or she deems necessary to protect himself or
herself or another person from bodily harm by the person who
is the subject of the record.
EXISTING LAW :
1)Provides that upon a good cause belief that harm to, or
intimidation or dissuasion of, a victim or witness has
occurred or is reasonably likely to occur, any court with
jurisdiction over a criminal matter may issue an order
protecting victims of violent crime from contact, with the
intent to annoy, harass, threaten, or commit acts of violence,
by the defendant. [Penal Code Section 136.2(g).]
2)Provides that a person subject to a protective order issued
under Penal Code Section 136.2 shall not own, possess,
purchase, receive, or attempt to purchase or receive a firearm
while the protective order is in effect. The court shall
order a person subject to a protective order issued under this
section to relinquish any firearms he or she owns or possesses
pursuant to Civil Procedure Code Section 527.9. Every person
who owns, possesses, purchases or receives, or attempts to
purchase or receive a firearm while the protective order is in
effect is punishable pursuant to Penal Code Section 12021(g).
[Penal Code Section 132.6(h).]
3)Provides that in all cases where the defendant is charged with
a crime of domestic violence, the court shall consider issuing
an order described in Penal Code Section 136.2 on its own
motion. [Penal Code Section 136.2(i)(1).]
4)Requires the Department of Justice to maintain a registry of
all handguns sold by a licensed dealer in California
including, but not limited to, the buyer's name, address and
other identifying information, as well as the serial number of
the weapon sold. [Penal Code Section 11106.]
AB 1288
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "According to
the Federal Bureau of Investigation, 33% of women who are
murdered with firearms are killed by intimate partners and the
risk of a gun-related domestic homicide is much higher if
there is a history of domestic violence.
"In 2003, the Attorney General's Office convened a task force
to examine local criminal justice agencies' responses to
domestic violence. Through their work, it became apparent
that domestic violence victims were not being notified that
their perpetrators possess firearms, which is a major victim
safety issue. Law enforcement is prohibited from
disseminating the information located in the DOJ's Dealers'
Record of Sales database.
"This bill would allow a criminal court to impose a firearm
prohibition at arraignment, regardless of whether the
prosecutor requests a Criminal Protective Order (CPO), if the
court has a good-cause belief that the victim has or will be
harmed or intimidated. In addition, this bill would allow law
enforcement to advise a domestic violence victim when there is
a reason to believe that the batterer has purchased or
obtained a firearm. This bill further provides the victim the
ability to disseminate that information if it is necessary to
protect himself or herself or another person at risk."
2)Domestic Violence Restraining Orders and Firearms :
Restraining orders against perpetrators of domestic violence
can take the form of Family Court restraining orders or CPOs.
Family courts can impose three types of restraining orders:
emergency, temporary, and orders after hearings. A CPO can be
issued during prosecution and as a condition of probation.
All Family Court restraining orders ordered after a hearing
and all CPOs must contain a prohibition against the defendant
owning, purchasing, possessing, or receiving firearms, and
requires the defendant to relinquish all firearms he or she
does possess.
According to information provided by the author's office,
"Criminal Protective Order Prohibiting Firearms PossessionIt
is well settled that domestic violence is more likely to
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escalate to homicide when there are firearms in the home:
domestic violence assaults with firearms are 12 times more
likely to result in death than domestic violence assaults
without firearms. According to a recent University of
California, Los Angeles, study, when a gun is kept in a home
where there is domestic violence, nearly two-thirds of the
surveyed victims reported that batterers used guns to scare,
threaten, or harm the victims. The batterer also used that
gun, though much less frequently, to harm or kill the children
(3%) or to threaten to kill himself (4%). Perhaps it is not
surprising that so many domestic violence victims do not want
to cooperate with law enforcement when their batterers are
prosecuted. The presence of a gun in the home also greatly
increases the risk that a domestic violence assault will
become a domestic violence homicide: assaults with firearms
are 12 times more likely to result in death than assaults
without firearms.
"Current law does not allow the criminal justice system to
address this dangerous problem. If a prosecutor obtains a CPO
that requires a domestic violence defendant to 'stay away'
from the alleged victim or to have limited contact, the court
must automatically, without exception, also direct that the
defendant relinquish any firearms. If the prosecutor does not
seek, or fails to obtain, a stay-away or limited-contact order
(and this frequently happens often as the defendant and victim
live together), the court lacks authority to issue a firearms
prohibition.
"This bill would authorize the court to prohibit firearm
possession in the absence of a stay-away order. Further,
given the frequency with which guns are used against domestic
violence victims, this bill directs the court to issue such an
order if there is a 'good-cause belief' that harm or
intimidation has occurred or will occur - the same standard of
belief used for obtaining stay-away orders.
"Given the prevalence and use of guns in domestic violence
homes, it is imperative that victims include in their safety
planning, for themselves and their children, a contingency for
firearm use. Unfortunately, a significant percentage of women
are unaware that their partners possess weapons. A study of
the social scientific literature on this question estimates
that between 7% and 12% of women underreport the presence of
firearms in their homes. This translates conservatively into
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5 million unknown firearms in California.
"This bill provides a partial solution to this knowledge gap.
This bill would allow law enforcement to advise certain
domestic violence victims if the State's database reflects
that their abuser purchased or possesses a firearm. Law
enforcement, however, would be restricted to whom they could
provide this information: only to victims who had obtained
domestic violence restraining orders from Family Court or to
victims whose abusers had been arraigned on domestic violence
charges. Further, law enforcement could provide this
information only if the abuser was still subject to the Family
Court order or if the abuser was still in the criminal justice
system. Finally, a victim who received this information could
disclose it to others only to the extent that he or she
believed it necessary to protect himself, herself, or a third
party from bodily harm. For example, the victim would surely
want to inform a process server about to serve a restraining
order if the abuser had a weapon."
3)Arguments in Support : According to the San Diego County
Sheriff's Department, "The goal of prohibiting batterers from
owning or purchasing firearms is to prevent batterers from
using firearms, which they so often do, to threaten, injure,
or kill domestic violence victims, their children, themselves,
and law enforcement personnel. When an alleged domestic
violence offender appears at arraignment, prosecutors have the
discretion to request a CPO, which must include a firearms
prohibition. Most prosecutors, however, do not request a CPO,
which means that the defendant is not prohibited from owning
or purchasing a firearm. This bill would require judges to
impose firearm prohibitions at arraignment, regardless of
whether the prosecutor requests a CPO. In addition, this bill
would allow law enforcement to advise a domestic violence
victim whether there is a reason to believe that his or her
batterer has purchased or obtained a firearm. These
legislative changes are needed in order to better hold
batterers accountable and to provide important improvement to
victim safety."
REGISTERED SUPPORT / OPPOSITION :
Support
Office of the Attorney General (Sponsor)
AB 1288
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Adult Probation Department, City and County of San Francisco
Attorney General's Task Force on the Criminal
Justice Response to Domestic Violence
California Alliance Against Domestic Violence
California District Attorneys Association
Catalyst Domestic Violence Services
Family Law Section of the State Bar of California
For Our Future
Kene Me-Wu Family Healing Center, Inc.
Los Angeles Commission on Assaults Against Women
San Diego County Sheriff's Department
Opposition
None on file
Analysis Prepared by : Heather Hopkins / PUB. S. / (916)
319-3744