BILL ANALYSIS
AB 2129
Page 1
Date of Hearing: May 9, 2006
Counsel: Kimberly Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 2129 (Spitzer) - As Introduced: February 21, 2006
SUMMARY : Specifies a time frame of 24 hours under which a
person who has been served with a protective order must
relinquish a firearm regardless of whether the person was
present in court when served.
EXISTING LAW :
1)States a person subject to a temporary restraining order or
injunction issued pursuant to existing law, or subject to a
restraining order issued pursuant to other law, shall
relinquish the firearm pursuant to this section. [Code of
Civil Procedure (CCP) 527.9(a).]
2)Provides if the person subject to the order or injunction is
present in court at a duly noticed hearing, the court shall
order the person 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 the respondent is not present at
the hearing, the respondent shall relinquish the firearm
within 48 hours after being served with the order. A person
ordered to relinquish any firearm pursuant to this subdivision
shall file with the court a receipt showing the firearm was
surrendered to the local law enforcement agency or sold to a
licensed gun dealer within 72 hours after receiving the order.
In the event that it is necessary to continue the date of any
hearing due to a request for a relinquishment order pursuant
to this section, the court shall ensure that all applicable
protective orders described in existing law, remain in effect
or bifurcate the issues and grant the permanent restraining
order pending the date of the hearing. [CCP 527.9(b).]
3)Provides a local law enforcement agency may charge the person
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subject to the order or injunction a fee for the storage of
any firearm relinquished pursuant to this section. The fee
shall not exceed the actual cost incurred by the local law
enforcement agency for the storage of the firearm. For
purposes of this subdivision, "actual cost" is defined as
expenses directly related to taking possession of a firearm,
storing the firearm, and surrendering possession of the
firearm to a licensed dealer as defined current law or to the
person relinquishing the firearm. [CCP 527.9(c).]
4)States the restraining order requiring a person to relinquish
a firearm pursuant to this section shall state on its face
that the respondent is prohibited from owning, possessing,
purchasing, or receiving a firearm while the protective order
is in effect and that the firearm shall be relinquished to the
local law enforcement agency for that jurisdiction or sold to
a licensed gun dealer, and that proof of surrender or sale
shall be filed with the court within a specified period of
receipt of the order. The order shall also state on its face
the expiration date for relinquishment. Nothing in this
section shall limit a respondent's right under existing law to
petition the court at a later date for modification of the
order. [CCP 527.9(d).]
5)States the restraining order requiring a person to relinquish
a firearm pursuant this section shall prohibit the person from
possessing or controlling any firearm for the duration of the
order. At the expiration of the order, the local law
enforcement agency shall return possession of any surrendered
firearm to the respondent, within five days after the
expiration of the relinquishment order, unless the local law
enforcement agency determines that: the firearm has been
stolen; the respondent is prohibited from possessing a firearm
because the respondent is in any prohibited class for the
possession of firearms, as defined in existing law, or;
another successive restraining order is used against the
respondent under this section. If the local law enforcement
agency determines that the respondent is the legal owner of
any firearm deposited with the local law enforcement agency
and is prohibited from possessing any firearm, the respondent
shall be entitled to sell or transfer the firearm to a
licensed dealer as defined in current law. If the firearm has
been stolen, the firearm shall be restored to the lawful owner
upon his or her identification of the firearm and proof of
ownership. [CCP 527.9(e).]
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6)Provides the court may, as part of the relinquishment order,
grant an exemption from the relinquishment requirements of
this section for a particular firearm if the respondent can
show that a particular firearm is necessary as a condition of
continued employment and that the current employer is unable
to reassign the respondent to another position where a firearm
is unnecessary. If an exemption is granted pursuant to this
subdivision, the order shall provide that the firearm shall be
in the physical possession of the respondent only during
scheduled work hours and during travel to and from his or her
place of employment. In any case involving a peace officer
who as a condition of employment and whose personal safety
depends on the ability to carry a firearm, a court may allow
the peace officer to continue to carry a firearm, either on
duty or off duty, if the court finds by a preponderance of the
evidence that the officer does not pose a threat of harm.
Prior to making this finding, the court shall require a
mandatory psychological evaluation of the peace officer and
may require the peace officer to enter into counseling or
other remedial treatment program to deal with any propensity
for domestic violence. [CCP 527.9(f).]
7)Provides during the period of the relinquishment order, a
respondent is entitled to make one sale of all firearms that
are in the possession of a local law enforcement agency
pursuant to this section. A licensed gun dealer, who presents
a local law enforcement agency with a bill of sale indicating
that all firearms owned by the respondent that are in the
possession of the local law enforcement agency have been sold
by the respondent to the licensed gun dealer, shall be given
possession of those firearms, at the location where a
respondent's firearms are stored, within five days of
presenting the local law enforcement agency with a bill of
sale. [CCP 527.9(g).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "This bill would
enact a 24-hour time period for the relinquishment of a
firearm by a person subject to a criminal, civil harassment,
elder abuse, or workplace violence protective order. This
clear standard, which is already in place for those subject to
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Domestic Violence Prevention Act (DVPA) protective orders,
will allow the Judicial Council to eliminate all checkboxes
pertaining to firearms relinquishment on the protective order
forms so that the restrained person will know that he or she
is required to relinquish any firearms within the 24-hour
period. This clarity will assist law enforcement and the
parties in understanding the clear terms of the order, and
result in better safety and protection for those protected by
these vital orders.
"In 2004, the Legislature amended the firearms relinquishment
provisions that apply to DVPA protective orders issued under
the Family Code to provide that persons subject to DVPA orders
must relinquish any firearms in their possession within 24
hours of being served with the order. [See SB 1391 (Romero),
Chapter 250, Statutes of. 2004.] Prior to this change, the
restrained person was afforded 48 hours to relinquish the
firearm if he or she had been present at a noticed hearing on
the order request, but only 24 hours if he or she was not at
the hearing. The changes made by SB 1391 were to clarify and
simplify the relinquishment standard, and to eliminate the
need to have checkboxes to indicate which time applied in each
situation on the order form. When the Legislature simplified
the provision for DVPA orders, it did not change the provision
applicable to other types of protective orders. That
provision is found in CCP Section 527.9, and it governs
protective orders issued by a criminal court, as well as civil
harassment, workplace violence, and elder and dependent adult
abuse protective orders. AB 2129 would make CCP Section 527.9
consistent with the DVPA firearms relinquishment standard of
24 hours so that the parties, the courts, and particularly law
enforcement, have a clear standard to follow and enforce.
2)Comments : In July 2005, the Attorney General released a
report issued by the Task Force on the Criminal Justice
Response to Domestic Violence established in 2003. The report
made several recommendations regarding protective orders and
the relinquishment of firearms. The report stated, "The laws
already on the books should be holding batterers accountable
for their violent behavior, but the criminal justice system
often fails to enforce them," Lockyer said. "System fatigue
is not an excuse for domestic abuse. We are going to shift a
culture of complacency into a culture of compliance. The
report is based on an extensive two-year assessment by
Attorney General Bill Lockyer's Task Force on Local Criminal
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Justice Response to Domestic Violence - a 26-member group of
experts and leaders in law enforcement, the courts, victim
advocacy, public health and the Legislature.
"Key report findings are: California's courts are not issuing
restraining orders, even when required under law; many
restraining orders that do get issued are never served; there
is often lax enforcement of restraining orders, especially
firearm prohibitions; community-based victim advocates are not
used by all prosecuting offices to assist domestic violence
victims; attendance at court-ordered programs for batterers is
not tracked and many never complete the program; and a serious
lack of coordination plagues criminal justice agencies'
approach to domestic violence.
"Our report includes disturbing examples of agencies that have
failed to respond to domestic violence victims, failed to
enforce the law and failed to work in collaboration," said
Casey Gwinn, Chair of the Attorney General's Task Force.
"Yet, we have also seen firsthand how much can be accomplished
when there is strong local leadership and cooperation among
agencies. Domestic violence statistics collected by the
Department of Justice show California local law enforcement
agencies received 186,439 domestic violence-related calls for
assistance in 2004. During that same year, there were 169
murders committed as a result of intimate partner violence and
46,353 adults and juveniles were arrested for spousal abuse
under Penal Code Section 273.5."
3)Arguments in Support : Judicial Council states, "Under current
law, the firearms relinquishment period that applies to these
orders varies based upon whether the restrained person
attended the court hearing. This variance creates confusion,
and requires the inclusion of check boxes on the protective
order forms to indicate which relinquishment period applies.
The problems that result from these check boxes were
highlighted in the report of the Attorney General's Task Force
on the Local Criminal Justice Response to Domestic Violence.
They recommended that the Judicial Council change the forms to
eliminate the confusing check boxes. This bill will provide
the council with the statutory authority to make that change
and make the protective order forms clearer for all. A clear
consistent standard will make it easier for restrained persons
to understand, for law enforcement to enforce, and as a
result, those protected by the order will be safer."
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4)Arguments in Opposition : The California Attorneys for
Criminal Justice states, "Although public safety is of
paramount concern, practical factors dictate that reasonable
response time to orders be maintained. Under current law, a
mere 48 hours is allowed to a person subject to a restraining
order to collect and dispose of firearms which they possess,
either by transfer to third parties, sale to a licensed gun
dealer, or surrender to local law enforcement. Under such
cases, the possessor is faced with a myriad of
responsibilities, all occurring at the same time. Although
for some these tasks may be simply achieved for others, the
urgency of the 48-hour requirement is difficult to accomplish.
Locating the services of a gun dealer may necessitate
burdensome shifts in personal priorities that are difficult to
accomplish with the existing notice. The two-day requirement
currently in the law is brief and sufficient to accomplish the
legitimate purposes of the law. It should not be shortened."
5)Related Legislation : AB 1288 (Chu), Chapter 702, Statutes of
2005, 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.
6)Prior Legislation :
a) SB 1391 (Romero), Chapter 250, Statutes of 2004,
required a person subject to a domestic violence protective
order to relinquish any firearm within 24 hours of the
service of the order.
b) SB 226 (Jackson), Chapter 498, Statutes of 2003,
prohibited a person subject to an elder or dependent abuse
protective order from owning, purchasing, possessing, or
receiving a firearm while that order is in effect, and
establishes a procedure for persons restrained to
relinquish prohibited firearms.
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council of California (Sponsor)
California Attorney General's Office
AB 2129
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California Million Mom March
California Organization of Police and Sheriffs
California State Sheriffs Association
Crime Victims United
Family Law Section, State Bar of California
Legal Community Against Violence
Stop Gun Violence, Orange County Citizens for the Prevention of
Gun Violence
Violence Prevention Coalition of Orange County
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744