BILL NUMBER: SB 585 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 26, 2005
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
providing notice that a protective order has been
requested or granted 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 application for a protective
order form to 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. The bill would also require the respondent to
notify the court of the relinquishment within 48 rather than 72
hours, and would 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 . The bill would authorize the court to
issue a search warrant for the immediate search 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) Each application for a protective order 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.
(2) 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 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 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 any firearm
in that person's possession or 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.
(d) If the respondent declines to relinquish possession of
any firearm based on 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 Californ
ia Constitution, the court may grant use immunity for the act
of relinquishing the firearm required under this section.
(e) 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.
(e)
(f) 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.
(f)
(g) 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.
(g)
(h) 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.
(h)
(i) 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.
(i)
(j) The disposition of any unclaimed property under
this section shall be made pursuant to Section 1413 of the Penal
Code.
(j)
(k) The return of a firearm to any person pursuant to
subdivision (f) shall not be subject to the requirements of
subdivision (d) of Section 12072 of the Penal Code.
(k)
(l) 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.
(l)
(m) 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.