BILL NUMBER: SB 585 AMENDED
BILL TEXT
AMENDED IN SENATE JANUARY 4, 2006
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 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. 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.
Existing law prohibits a person subject to a protective order, as
defined, from owning, possessing, purchasing, or receiving a firearm
while that protective order is in effect and makes a willful and
knowing violation of a protective order a crime. Existing law also
requires the court, upon issuance of a protective order, to order the
respondent 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 being served with 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. Under existing law, a person ordered to relinquish any
firearm is required to file with the court a receipt showing the
firearm was surrendered or sold within 72 hours after receiving the
order.
This bill would instead require the person ordered to relinquish a
firearm to immediately surrender the firearm in a safe manner, upon
request of any law enforcement officer, or within 24 hours as
specified above. The bill also would require the person to file a
receipt with the court within 48 hours after being served with the
order and would provide that the failure to timely file a receipt
constitutes a violation of the protective order. Because a willful
and knowing violation of a protective order is a crime, the bill
would expand the scope of an existing crime, resulting in a
state-mandated local program.
The bill would also require application forms for protective
orders adopted by the Judicial Council and approved by the Department
of Justice to be amended to require the petitioner to describe the
number, types, and locations of any firearms presently known by the
petitioner to be possessed or controlled by the respondent. The bill
would additionally include recommendations for written policies and
standards for law enforcement officers who request relinquishment of
firearms and would require the Attorney General's office, on or
before December 31, 2007, to work with local law enforcement to
develop and disseminate model policies and standards.
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.
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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
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.
(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 the respondent's immediate
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).
(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.
or subject to the respondent's immediate possession or
control.
(2) The relinquishment ordered pursuant to paragraph (1) shall
occur by immediately surrendering the firearm in a safe manner, upon
request of any law enforcement officer, to the control of the
officer, after being served with the protective order. Alternatively,
if no request is made by a law enforcement officer, the
relinquishment shall occur within 24 hours of being served with the
order, by either surrendering the firearm in a safe manner 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. The law enforcement officer or licensed gun dealer taking
possession of the firearm pursuant to this subdivision shall issue a
receipt to the person relinquishing the firearm at the time of
relinquishment. A person ordered to relinquish any firearm pursuant
to this subdivision shall file with the court that issued the
protective order, within 48 hours after being served with the order,
the receipt showing the firearm was surrendered to a local law
enforcement agency or sold to a licensed gun dealer. Failure to
timely file a receipt shall constitute a violation of the protective
order.
(3) The application forms for protective orders adopted by the
Judicial Council and approved by the Department of Justice shall be
amended to require the petitioner to describe the number, types, and
locations of any firearms presently known by the petitioner to be
possessed or controlled by the respondent.
(4) It is recommended that every law enforcement agency in the
state develop, adopt, and implement written policies and standards
for law enforcement officers who request immediate relinquishment of
firearms. On or before December 31, 2007, the Attorney General's
office shall work with local law enforcement to develop and
disseminate model policies and standards to all law enforcement
agencies in the state, as recommended in this subdivision.
(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 California
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.
(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.
(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.
(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.
(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.
(j) The disposition of any unclaimed property under this section
shall be made pursuant to Section 1413 of the Penal Code.
(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.
(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.
(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.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other 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.