BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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AB 1288 (Chu) 8
As Amended May 4, 2005
Hearing date: June 14, 2005
Penal Code
AA:br
DOMESTIC VIOLENCE :
FIREARMS
HISTORY
Source: Attorney General's Office
Prior Legislation: None
Support: California District Attorneys Association; California
Peace Officers' Association; Haven House, Inc.;
District Attorney of Alameda County; California
Alliance Against Domestic Violence; Santa Barbara
Police Department; San Mateo Police Department;
Statewide California Coalition for Battered Women;
Catalyst Domestic Violence Services; Kene Me-Wu Family
Healing Center, Inc.; For Our Future, a CA Tribal DV/SA
Prevention Coalition; Los Angeles Commission on
Assaults Against Women; Los Angeles City Attorney; San
Diego County Sheriff; California State Sheriffs'
Association; California Probation, Parole and
Correctional Association; Women's Center of San Joaquin
County; several individuals, including members of the
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Attorney General's Task Force on the Criminal Justice
Response to Domestic Violence
Opposition:None known
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUES
SHOULD COURTS IN DOMESTIC VIOLENCE PROSECUTIONS BE REQUIRED TO
CONSIDER ISSUING A PROTECTIVE ORDER PROHIBITING A DEFENDANT FROM
HAVING A FIREARM "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" WHERE THE COURT HAS NOT ISSUED A
STAY-AWAY ORDER?
SHOULD PERSONS WHO ARE PROTECTED BY A DOMESTIC VIOLENCE PROTECTIVE
ORDER, OR THE VICTIM OF ALLEGED DOMESTIC VIOLENCE BE INFORMED WHEN
DOJ RECORDS INDICATE THE OTHER PERSON HAS A FIREARM, AS SPECIFIED?
PURPOSE
The purpose of this bill is to 1) require courts in domestic
violence prosecutions to consider issuing a protective order
prohibiting a defendant from having a firearm "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" where
the court has not issued a stay-away order; and 2) authorize
specified officers to inform persons who are protected by a
domestic violence protective order, or the victim of alleged
domestic violence when DOJ records indicate the other person has
a firearm, as specified.
Protective Orders
Current law 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
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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 136.2(g).)
Current law 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).<1> (Penal Code 132.6(h).)
Current law 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 136.2(i)(1).)
This bill would provide that if a court does not issue a
protective order, as specified, in a case in which the defendant
is charged with a crime of domestic violence,<2> the court on
its own motion would be authorized to consider issuing 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, that provides as follows:
(i) The defendant shall not own, possess, purchase, receive,
or attempt to purchase or receive, a firearm while the
protective order is in effect.
(ii) The defendant shall relinquish any firearms that he or
she owns or possesses pursuant to Section 527.9 of the
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<1> Violators of this section are guilty of a wobbler,
punishable by imprisonment in a county jail not exceeding one
year or in the state prison, by a fine not exceeding $1,000, or
by both that imprisonment and fine.
<2> "Domestic Violence" as defined in Section 13700.
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Code of Civil Procedure.
This bill further would provide that every person who owns,
possesses, purchases, receives, or attempts to purchase or
receive, a firearm while this protective order is in effect is
punishable pursuant to subdivision (g) of Section 12021.<3>
Firearm Records
Current law requires the Department of Justice ("DOJ") to
maintain a registry of all handguns sold by licensed dealers 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. Current law authorizes disclosure of
this information to specified public officers "if needed in the
course of their duties," as specified. (Penal Code 11106(c).)
Current law further requires DOJ to keep specified data in
"order to assist in the investigation of crime, the prosecution
of civil actions by city attorneys (as specified), the arrest
and prosecution of criminals, and the recovery of lost, stolen,
or found property." (Penal Code 11106(a).)
This bill would provide that specified officers, enumerated
below, "may disseminate the name of the subject of the record,
the number of the 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 Department of Justice (as specified<4>) if the
following conditions are met:
The subject of the record has been arraigned for a crime
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<3> See footnote (1).
<4> Specifically, pursuant to Sections 12021.3, 12053, 12071,
12072, 12077, 12078, 12082, or 12285 of the Penal Code.
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in which the victim is a family member<5> 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;<6>
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."
The officers this bill would authorize to receive and
disseminate this information would be the following:
The courts of the state.
Peace officers of the state as defined.<7>
District attorneys of the state.
Prosecuting city attorneys of any city within the state.
Probation officers of the state.
Parole officers of the state. (See Penal Code 11105
(b)(1)-(6).)
This bill further would provide that the "victim or person to
whom such information is disseminated may disclose it 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."
COMMENTS
1. Stated Need for This Bill
The author states:
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<5> The persons would be those set forth in Family Code
Section 6211: (a) A spouse or former spouse. (b) A
cohabitant or former cohabitant, as defined in Section 6209.
(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). (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.
<6> Family Code 6200 et seq.
<7> Specifically, those defined in Section 830.1,
subdivisions(a) and (e) of Section 830.2, subdivision (a) of
Section 830.3, subdivisions (a) and (b) of Section 830.5,
and subdivision (a) of Section 830.31 of the Penal Code.
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AB 1288 makes two changes to California's domestic
violence restraining order statutes . . . . These
changes reflect the recommendations of the
Attorney General's Task Force on the Criminal
Justice Response to Domestic Violence. This bill:
Requires a criminal court to consider
prohibiting a domestic violence defendant from
possessing a firearm - if the court has a good
cause belief that the victim has been or will be
harmed or intimidated.
Authorizes law enforcement to advise
certain domestic violence victims - those who
have already obtained restraining orders from
Family Court, or those whose abusers have
already been arraigned on domestic violence
charges - as to whether the state's firearms
database shows that the batterer has purchased
firearms.
. . .
It is well settled that domestic violence is more
likely to 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.
But how often do batterers use guns when death
does not result? The answer is - commonly.
According to a recent UCLA study, when a gun is
kept in a home where there is domestic violence,
nearly two-thirds of the surveyed victims reported
that the batterer used that gun to scare,
threaten, or harm her. 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
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cooperate with law enforcement when their
batterers are prosecuted.
Current law does not allow the criminal justice
system to address this dangerous problem. If a
prosecutor obtains a criminal protective order
that requires a domestic violence defendant to
"stay away" from the alleged victim or to have
limited contact, then the court must
automatically, without exception, also direct that
the defendant relinquish any firearms. But, if
the prosecutor does not seek, or fails to obtain,
a stay away or limited-contact order (and this
frequently happens, often because the defendant
and victim live together) then the court lacks
authority to issue a firearms prohibition.
AB 1288 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,
the bill directs the court to consider issuing
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.
. . .
. . . 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 under-report the presence of
firearms in their homes. This translates
conservatively into 5 million unknown firearms in
California.
AB 1288 provides a partial solution to this
knowledge gap. It would allow law enforcement to
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advise certain domestic violence victims if the
state database reflects that their abuser
purchased a firearm. Law enforcement, however,
would be restricted in whom they could provide
this information to: 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.
2. What This Bill Would Do
As explained above, this bill would do two things.
First, this bill would require a court that has not
issued a protective order in a domestic violence case to
considering issuing a protective order prohibiting a
defendant from having a firearm, and ordering the defendant
to relinquish the firearm, if the court finds good cause
that "harm to, or intimidation or dissuasion of, a victim
or witness has occurred or is reasonably likely to occur, .
. . ." If the person is present in court at a duly notice
hearing when the order is issued, they must be ordered to
relinquish any firearm in that person's immediate
possession or control, or subject to that person's
immediate possession or control, within 24 hours of the
order, by either surrendering the firearm to the control of
local law enforcement officials, or by selling the firearm
to a licensed gun dealer, as specified. If they are not
present, they must relinquish the firearm within 48 hours
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after being served with the order. Persons subject to this
order must file with the court a receipt showing the
firearm was surrendered, as specified. This is existing
law applicable when a person is required to relinquish
firearms pursuant to protective orders available under
current law.
Second , this bill would authorize specified officers,
enumerated above, to tell the victim of an alleged domestic
violence crime if the defendant has a handgun. Specific
features of this exception to restrictions on these records
are explained in Comment #4 below.
3. Protective Orders and Firearm Relinquishment Generally; What
This Bill Would Do
California law currently provides two ways the state can seize
an otherwise lawfully possessed firearm from a suspect in a
domestic violence case. A law enforcement officer at the scene
of a domestic violence incident involving a threat to human life
or a physical assault can take temporary custody of any firearm
or other deadly weapon in plain sight or discovered after a
consensual or otherwise lawful search (i.e., exigent
circumstances).<8>
Second, a person can be ordered to relinquish a firearm pursuant
to a domestic violence protective order. Persons subject to a
domestic violence protective order are required to relinquish
any firearms they may have within 24 hours of being served with
the order. Relinquishment pursuant to a protective order can
occur either by surrendering the weapons to law enforcement or
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<8> Current law requires a peace officer "who is at the scene
of a domestic violence incident involving a threat to human life
or a physical assault," to "take temporary custody of any
firearm or other deadly weapon in plain sight or discovered
pursuant to a consensual or other lawful search as necessary for
the protection of the peace officer or other persons present."
(Penal Code 12028.5.)
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selling them to a gun dealer, as specified. Persons who are
ordered to relinquish a firearm must file a receipt showing the
surrender or the sale with the court within 72 hours after
receiving the order.
Restraining orders against perpetrators of domestic violence can
take the form of family court restraining orders or criminal
protective orders. Family courts can impose three types of
restraining orders: emergency, temporary, and orders after
hearings. A criminal protective order can be issued during
prosecution and as a condition of probation. All family court
restraining orders ordered after a hearing and all criminal
protective orders must contain a prohibition against the
defendant owning, purchasing, possessing, or receiving firearms,
and requires the defendant to relinquish all firearms he or she
possesses.
This bill would authorize a criminal court in a domestic
violence prosecution to consider issuing, on its own motion, a
protective order prohibiting a defendant from having a firearm,
as specified above, "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." In this way, this bill would
authorize a court to prohibit firearm possession in the absence
of a stay-away order.
SHOULD COURTS IN DOMESTIC VIOLENCE PROSECUTIONS BE REQUIRED TO
CONSIDER ISSUING A PROTECTIVE ORDER PROHIBITING A DEFENDANT FROM
HAVING A FIREARM "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" WHERE THE COURT HAS NOT ISSUED
A STAY-AWAY ORDER?
4. Disclosure of Firearm Registry Records: Current Law and This
Bill
Current law requires the Attorney General to maintain a handgun
registry, as specified, consisting of the following:
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who has the gun: the name, address, identification of,
place of birth (state or country), complete telephone
number, occupation, sex, description, and all legal names
and aliases ever used by the owner or person being loaned
the particular handgun as listed on the information
provided to the department, as specified;
who they got it from: the name and address of, and
other information about, any person (whether a dealer or a
private party) from whom the owner acquired or the person
being loaned the particular handgun and when the firearm
was acquired or loaned as listed on the information
provided to the department, as specified;
waiting period application: any waiting period
exemption applicable to the transaction which resulted in
the owner of or the person being loaned the particular
handgun acquiring or being loaned that firearm; and
manufacturer and model name/number: the manufacturer's
name if stamped on the firearm, model name or number if
stamped on the firearm, and, if applicable, the serial
number, other number (if more than one serial number is
stamped on the firearm), caliber, type of firearm, if the
firearm is new or used, barrel length, and color of the
firearm. (Penal Code 11106(c)(2).)
Current law requires that registry information be furnished to
specified officers,<9> to a city attorney prosecuting a civil
action solely for use in prosecuting that civil action and not
for any other purpose, or to the person listed in the registry
as the owner or person who is listed as being loaned the
particular handgun. (Penal Code 11106(c)(3).)
Current law also requires the Attorney General to keep the
following files in "order to assist in the investigation of
crime, the prosecution of civil actions by city attorneys (as
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<9> The officers are: the courts of the state; peace officers
of the state as defined; district attorneys of the state;
prosecuting city attorneys of any city within the state;
probation officers of the state; parole officers of the state.
(See Penal Code 11105 (b)(1)-(6).)
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specified), the arrest and prosecution of criminals, and the
recovery of lost, stolen, or found property":
a complete record of all copies of fingerprints;
copies of licenses to carry concealed firearms, as
specified;
information reported to the Department of Justice
relating to concealed weapons permits, as specified;
dealers' records of sales of firearms;
reports relating to persons providing or receiving
firearms, as specified;
Law Enforcement Firearms Transfer Forms, as specified;
reports relating to the retail sellers of firearms, as
specified; and
reports of stolen, lost, found, pledged, or pawned
property in any city or county of this state. (Penal Code
11106(a).)
DOJ further is required to furnish this information to the
officers enumerated above. (Penal Code 11106(a).)
This bill would amend subdivision (a) of Penal Code Section
11106, described directly above, to authorize specified
officers, enumerated above, to disseminate the following
information as specified below:
the name of the subject of the record;
the number of the firearms listed in the record; and
the description of any firearm , including the make,
model, and caliber.
This bill would authorize that the disseminated information
would be obtained from "the record relating to any firearms
sale, transfer, registration, or license record, or any
information reported to the Department of Justice pursuant to
the following statutes:
The person has applied to DOJ for their
eligibility to possess a firearm when they claim
title to a firearm that is in the custody or control
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of a court or law enforcement agency and they wish
to have the firearm returned to him or her, as
specified (Penal Code 12021.3);
concealed weapons permit information (Penal Code
12053);
reports relating to persons providing or
receiving firearms, as specified (Penal Code
12071, 12077, 12078 and 12082); and
reports relating to persons possessing assault
weapons, as specified (Penal Code 12285).
This information could be provided pursuant to this bill if both
of the following apply:
(1) The subject of the record:
has been arraigned for a crime in which the victim
is a family member, as specified, and is being
prosecuted or is serving a sentence for the crime; or
is the subject of a domestic violence protective
order, as specified.
(2) The information is disseminated only to the victim of
the crime or to the person who has obtained the protective
order, the temporary restraining order, or the order after
hearing issued by the family court.
The bill also would allow the victim or person to whom such
information is disseminated to "disclose it 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."
SHOULD PERSONS WHO ARE PROTECTED BY A DOMESTIC VIOLENCE
PROTECTIVE ORDER, OR THE VICTIM OF ALLEGED DOMESTIC VIOLENCE BE
INFORMED WHEN DOJ RECORDS INDICATE THE OTHER PERSON HAS A
FIREARM, AS SPECIFIED?
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This bill's provisions concerning the release of firearm records
are amended into subdivision (a) of Section 11106, which as
explained above pertains to the release of records relative to
investigating crimes. The author and/or Committee may wish to
consider whether the bill's provisions in this regard might
better be drafted as a separate subdivision.
SHOULD THESE PROVISIONS BE DRAFTED AS A SEPARATE SUBDIVISION?
As currently drafted, the bill is silent as to what a victim
would be expected to do once provided with information that the
person who battered them, or against whom there is a domestic
violence protective order, has a firearm. In theory, responses
to this information on persons honestly frightened for their
lives could range from obtaining a firearm for self defense or
fleeing the state - neither of which might be the intended
consequences of providing them with this information. The
author and/or the Committee may wish to consider amending this
bill to require any officer providing this information to at the
same time provide the person with additional resources for
assistance.
SHOULD THIS BILL BE AMENDED TO REQUIRE THAT ANY TIME THIS
INFORMATION IS PROVIDED, PERSONS RECEIVING THE INFORMATION MUST
BE INFORMED OF ADDITIONAL AVAILABLE RESOURCES?
5. Background: Domestic Violence and Firearms
As noted by the author, that firearms are a potentially deadly
ingredient in any domestic violence situation is undisputed.
In 1999, approximately 791,000 violent crimes were
committed against persons age twelve or older by
their intimate partners. About eighty-five
percent of these victims - approximately 670,000 -
were women. Indeed, domestic violence is the
leading cause of injury to women. In California,
women were over thirteen times more likely to be
killed by their spouses than men during 1999.
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Moreover, in the United States since 1976, thirty
percent of all murders with female victims have
occurred at the hands of intimates.
Although domestic violence can take many forms,
abusers often use firearms to threaten, injure, or
kill their victims. In fact, sixty-five percent
of the approximately 52,000 intimate murders
involved firearms in 1996. In single
victim/single offender incidents two years later,
"the number of females shot and killed by their
husband or intimate acquaintance . . . was more
than four times higher than the total number
murdered by male strangers using all weapons
combined."
. . .
Firearms and domestic violence create a lethal
combination - one that heightens the risks for
victims. Domestic violence incidents that involve
a firearm are twelve times more likely to result
in death than those involving any other type of
weapon. This consequence likely is because
firearms are more lethal than other weapons, and
many batterers who kill "with a firearm would be
unable or unwilling to exert the greater physical
or psychological effort required to kill with
another, typically available weapon." Simply
having a firearm in the home increases the risk of
homicide by a family member or intimate
acquaintance. In addition, if a history of
domestic violence incidents in that home exists,
the risk of firearm-related homicide becomes even
greater. The availability of guns in the home
also increases the risk of suicide - one in every
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ten abused women tries to kill herself.<10>
The California Department of Justice, sponsor of this bill,
provides the following general statistics concerning domestic
violence in California:
In 2003, 182 murders were the result of intimate partner
violence in California. In 2003, 151 women in California
were killed by their husbands, ex-husbands or boyfriends,
and 27 men were killed by their wives, ex-wives or
girlfriends.
California law enforcement received 194,288 domestic
violence calls in 2003 - 106,731 involved weapons,
including firearms and knives.
Domestic violence arrests dropped from 52,392 (2001) to
50,479 (2002), and to 48,854 in 2003. (DOJ, CJSC)
Every year, almost 6% of California's women suffer
physical injuries from domestic violence.<11>
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<10> Getting the Guns: Implementation and Enforcement Problems
with California Senate Bill 218, Michelle N. Deutchman, (75 S.
Cal. L. Rev. 185)(Nov. 2001)
<11> See http://safestate.org.