BILL ANALYSIS
SB 585
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Date of Hearing: June 13, 2006
Counsel: Kimberly Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
SB 585 (Kehoe) - As Amended: April 18, 2006
SUMMARY : Requires a person ordered to relinquish a firearm
pursuant to the terms of a protective order to surrender the
weapon in a safe manner upon request of any law enforcement
officer or within 24 hours, as specified. Specifically, this
bill :
1)Mandates the person who must relinquish the firearm pursuant
to the protective order to file a receipt with the court
within 48 hours of being served.
2)Provides that failure to timely file a receipt constitutes a
violation of the protective order; a misdemeanor pursuant to
existing law.
3)States that application forms adopted by Judicial Council and
approved by the Department of Justice (DOJ) 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 and controlled by the respondent.
4)Recommends that every law enforcement agency in California
develop, adopt, and implement written policies and standards
for law enforcement officers who request immediate
relinquishment of firearms.
5)States that on or before December 31, 2007, DOJ may work with
local law enforcement to develop and disseminate model
policies and standards to all law enforcement agencies in
California, as recommended.
EXISTING LAW :
1)States upon issuance of a protective order, as defined in
existing law, the court shall order the respondent to
relinquish any firearm in that person's immediate possession
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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, as specified. 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. [Family Code Section
6389(c).]
2)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).]
3)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).]
4)Provides a local law enforcement agency may charge the person
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,
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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).]
5)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, 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).]
6)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).]
7)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
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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).]
8)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 : Unknown
COMMENTS :
1)Author' Statement : According to the author, "This bill
expands domestic violence prevention by making changes that
provide law enforcement officers with the option of seeking
the surrender of firearms that are in possession of a person
who has been served with a court protective order and also
requires that the forms used to apply for a court protective
order be modified to include space for the petitioner to
describe the types and location of firearms in possession of
the respondent of the order."
2)Background : According to information provided by the author,
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"On September 4, 2003, Evan Nash was gunned down and killed
while he practiced track with his high school's cross-country
track team. His killer was his own father, Bill Hoffine, who
just the day before had been served with a temporary
restraining order ordering Hoffine to stay away from Evan.
The law, at the time, required any firearms in the possession
of the father to be surrendered or sold within 48 hours; but
in this situation, in less than 24 hours Evan's father took
his handgun and casually waited for his son to come jogging by
him before opening fire and killing Evan in front of his track
team. Later that same day, Evan's father turned his gun on
himself rather than surrender to police. If this were the end
of the story one might say, 'What a terrible tragedy. If only
more information could have been available to prevent this
from happening.' Additional facts revealed that Evan's father
had been seeing a psychiatrist who alerted Evan's mother, Lucy
Nash, that Hoffine was increasingly becoming suicidal and that
she should get a restraining order against him to protect her
son. Ms. Nash, aware that Evan's father possessed two
handguns and a shotgun, specified this information on her
affidavit for the protective order, assuming the firearms
would be removed. Unfortunately, even with the foreknowledge
that firearms existed, nothing legally could be done by the
court. The judge could only order that the firearms be
surrendered within the timeframe specified by statute, 48
hours at the time."
"Senator Kehoe, sympathetic to Ms. Nash's tragic loss, now seeks
a legislative remedy to prevent this kind of tragedy from
happening again. Under California law, much has been
accomplished in the area of domestic violence prevention; in
fact, when officers respond to domestic violence incidents in
progress, they may actually seek confiscation of firearms on
the premise. When judges have those accused of domestic
violence before them in criminal court, they have wide
discretion in providing additional protective measures on
behalf of the victims, including seizure of firearms. Most of
these protections and enforcement measures are found under
California's Penal Code. However, in discussing the events
that happened to Lucy and Evan Nash, we are confronted with an
entirely civil matter. Unlike most other domestic situations
where 'violence' is the component triggering the criminal
process, these other domestic situations are non-violent, yet
potentially just as dangerous. Today, under existing law, it
is required that firearms in the possession of the respondent
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be surrendered or sold within 24 hours upon receiving a
protective order. In this situation, it is not a criminal
court but a family court that handles the case. Even with
this new 24-hour time frame, Evan's father still would have
used his hand gun to kill his son. For this reason additional
modifications to existing law are being attempted."
3)Penalties for Violation of a Protective Order : Under current
law, if a person served with a protective order knowingly and
intentionally violates that court order, he or she may be
charged with a misdemeanor and subject to a penalty of up to
one year in the county jail; a fine of up to $1,000; or by
both imprisonment and fine [Penal Code Section 273.6(a)].
This bill states that failure to provide proof of a firearm
relinquishment constitutes a violation of the protective
order. Because the current statute requires a showing of
intentional disobedience, a prosecution of the offender would
demand proof that the offender was in fact in possession of
firearm and knew that he or she was required to turn the
firearm over within the specified time period.
4)Department of Justice (DOJ) Report on Domestic Violence : In
July 2005, the Attorney General (AG) 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," AG Bill 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 AG
Lockyer's Task Force on Local Criminal 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
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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 AG'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 DOJ show
California's 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."
5)Related Legislation :
a) AB 2129 (Spitzer) specifies a time frame of 24 hours
under which a person served with a protective order must
relinquish a firearm regardless of whether the person was
present in court when served. AB 2129 is currently pending
hearing in the Senate Committee on Public Safety.
b) 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.
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7)Arguments in Support : Women Escaping a Violent Environment
(WEAVE) states, "Current law requires that any person served
with an order of protection has 24 hours to surrender or sell
his or her firearms or face penalties for not complying with
the order. The problem is the 24-hour time frame leaves open
a dangerous opportunity for perpetrators of domestic violence
to use their firearms against their victims. The most
dangerous time for a victim of domestic violence is when he or
she is trying to end the relationship. It is during this
stage that a victim applies for a restraining order. The
protections that this bill affords a victim are a vital step
in limiting the potential violence that can be perpetrated
against a victim while he or she is trying to keep himself or
herself safe."
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County, and Municipal Employees
Bonnie M Dumanis, San Diego County District Attorney
California Alliance Against Domestic Violence
California Attorney General
California District Attorneys Association
California Million Mom March
California State Sheriffs' Association
Jerry Sanders, Mayor, City of San Diego
Lambda Letters Project
Legal Community Against Gun Violence
San Bernardino County Sheriff's Association
San Diego Domestic Violence Council
Stop Gun Violence! Orange County Citizens for the Prevention of
Gun Violence
Violence Prevention Coalition of Orange County
WEAVE (Women Escaping a Violent Environment)
William M. Lansdowne, Chief of Police, City of San Diego
Two private citizens
Opposition
None on file
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
SB 585
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