BILL NUMBER: SB 585 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 29, 2005
INTRODUCED BY Senator Kehoe
FEBRUARY 18, 2005
An act to amend Section 6389 of the Family Code, relating to
protective orders.
LEGISLATIVE COUNSEL'S DIGEST
SB 585, as amended, Kehoe. Protective orders: firearms.
Existing law provides that the form for a protective order notify
the respondent that he or she shall be ordered to relinquish
possession and control of any firearms. Existing law also provides
that the court shall order that relinquishment, as specified, within
24 hours of being served the order, and require the respondent to
notify the court of the relinquishment within 72 hours.
This bill would revise the protective order form to
notify the respondent that he or she shall be ordered to relinquish
possession and control of any firearms immediately, rather than
within 24 hours, and to include a place for the
requestor to specify the types of space for the
petitioner to identify all firearms that
are present and their possible location
known to be in the possession of the respondent, the location of
the firearms, the basis for the petitioner's knowledge regarding the
existence and location of the firearms, and why the respondent's
possession of firearms subjects the petitioner to an increased risk
of harm . The bill would also require the respondent to notify
the court of the relinquishment within 48 rather than 72 hours, and
would provide that upon a showing of probable cause, the
family court may order a law enforcement officer to serve the
protective order and issue a warrant for the search and seizure of
any firearm in the possession of the respondent
require the court, upon issuance of a protective order, to order the
respondent to relinquish any firearm in that person's control to
local law enforcement officials or a licensed gun dealer, within 24
hours of being served with the order, and to issue a search warrant
for the immediate sear ch and seizure of any firearm in
the respondent's possession upon a judicial finding of probable cause
that the respondent's possession of firearms creates an increased
risk of harm to the petitioner and that specified firearms will be
found a specified location. The bill would also set forth additional
procedures for surrendering a firearm to a peace officer .
By requiring new duties of law enforcement, the bill would impose
a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6389 of the Family Code is amended to read:
6389. (a) A person subject to a protective order, as defined in
Section 6218, shall not own, possess, purchase, or receive a firearm
while that protective order is in effect. 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 subdivision (g) of Section 12021 of the Penal Code.
(b) (1) On all forms providing notice that a protective order has
been requested or granted, the Judicial Council, shall include a
notice that, upon service of the order, the respondent shall be
ordered to relinquish possession or control of any firearms
immediately and not to purchase or receive or attempt to
purchase or receive any firearms for a period not to exceed the
duration of the restraining order.
(2) Each form shall include a place for the requestor to specify
the types of firearms that are present and their possible location.
(2) Each form shall include a space for the petitioner to identify
all firearms known to be in the possession of the respondent, the
location of the firearms, the basis for the petitioner's knowledge
regarding the existence and location of the firearms, and why the
respondent's possession of firearms subjects the petitioner to an
increased risk of harm.
(c) (1) Upon issuance of a protective order,
as defined in Section 6218, the court shall order the respondent to
relinquish immediately any firearm in that person'
s immediate possession or control, or
subject to that person's immediate possession or control 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 in Section 12071 of the Penal Code. Upon a showing of
probable cause, the family court may order a law enforcement officer
to serve the protective order and issue a warrant for the search and
seizure of any firearm in the possession of the respondent. A person
ordered to relinquish any firearm pursuant control
pursuant to this subdivision:
(A) The court shall order that the respondent surrender the
firearm to the control of local law enforcement officials or sell the
firearm to a licensed gun dealer, as specified in Section 12071 of
the Penal Code, within 24 hours of being served with the order.
(B) A judge may issue a search warrant for the immediate search
and seizure of any firearm in the possession of the respondent upon a
judicial finding of probable cause that the respondent's possession
of firearms creates an increased risk of harm to the petitioner, and
that specified firearms will be found in a specified location.
(C) In the event that a subordinate judicial officer reviews the
petition, that judicial officer may refer the matter to a judge for
review and possible issuance of a warrant, as provided for in
paragraph (2).
(D) A peace officer serving the order may, upon recommendation of
a judicial officer or in his or her own discretion, request the
immediate surrender of any firearm in the possession of the
respondent and may use any lawful means to facilitate this surrender.
(2) A person ordered to relinquish any
firearm pursuant to this subdivision shall , within 48
hours after receiving the order, 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 48 hours
after receiving the order. .
(d) If the respondent declines to relinquish possession of any
firearm based upon the assertion of the right against
self-incrimination, as provided by the Fifth Amendment to the United
States Constitution and Section 15 of Article I of the California
Constitution, the court may grant use immunity for the act of
relinquishing the firearm required under this section.
(e)
(d) A local law enforcement agency may charge the
respondent a fee for the storage of any firearm pursuant to this
section. This 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" means expenses directly
related to taking possession of a firearm, storing the firearm, and
surrendering possession of the firearm to a licensed dealer as
defined in Section 12071 of the Penal Code or to the respondent.
(f)
(e) The restraining order requiring a person to
relinquish a firearm pursuant to subdivision (c) 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.
(g)
(f) The restraining order requiring a person to
relinquish a firearm pursuant to subdivision (c) 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 (1) the firearm has been stolen, (2) the respondent
is prohibited from possessing a firearm because the respondent is in
any prohibited class for the possession of firearms, as defined in
Sections 12021 and 12021.1 of the Penal Code and Sections 8100 and
8103 of the Welfare and Institutions Code, or (3) 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 Section 12071 of the Penal Code. 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.
(h)
(g) 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.
(i)
(h) 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.
(j)
(i) The disposition of any unclaimed property under
this section shall be made pursuant to Section 1413 of the Penal
Code.
(k)
(j) The return of a firearm to any person pursuant to
subdivision (g) (f) shall not be
subject to the requirements of subdivision (d) of Section 12072 of
the Penal Code.
(l)
(k) If the respondent notifies the court
that he or she owns a firearm that is not in his or her immediate
possession, the court may limit the order to exclude that firearm if
the judge is satisfied the respondent is unable to gain access to
that firearm while the protective order is in effect.
(m)
(l) Any respondent to a protective order who violates
any order issued pursuant to this section shall be punished under the
provisions of subdivision (g) of Section 12021 of the Penal Code.
SEC. 2.
If the Commission on State Mandates determines that this act
contains costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part
7 (commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.