BILL NUMBER: SB 585 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 18, 2006
AMENDED IN SENATE JANUARY 23, 2006
AMENDED IN SENATE JANUARY 4, 2006
AMENDED IN SENATE APRIL 26, 2005
AMENDED IN SENATE MARCH 29, 2005
INTRODUCED BY Senator Kehoe
( Coauthor: Senator Scott
)
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 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 authorize 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.
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 no reimbursement is required by this
act for a specified reason.
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)
On
(b) 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 the respondent's immediate possession or control 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 may 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) (g) 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. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because 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.