BILL ANALYSIS
AB 532
Page 1
ASSEMBLY THIRD READING
AB 532 (Lieu)
As Amended April 13, 2009
Majority vote
PUBLIC SAFETY 7-0
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|Ayes:|Solorio, Hagman, | | |
| |Furutani, Anderson, Hill, | | |
| |Ma, Skinner | | |
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SUMMARY : Authorizes the issuance of a search warrant when the
property or things to be seized include a firearm or any other
deadly weapon at the scene of, or at the premises occupied or
under the control of: 1) a person arrested in connection with a
domestic violence incident involving a threat to human life or
physical assault; or, 2) a person who has been detained or
apprehended for examination of his or her mental condition.
EXISTING LAW :
1)Defines a "search warrant" as an order in writing in the name
of the people, signed by a magistrate, directed to a peace
officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate.
2)States that a search warrant may be issued upon any of the
following grounds:
a) When the property was stolen or embezzled;
b) When the property or things were used as the means of
committing a felony;
c) When the property or things are in the possession of any
person with the intent to use them as a means of committing
a public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of
concealing them or preventing them from being discovered;
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d) When the property or things to be seized consist of any
item or constitute any evidence that tends to show a felony
has been committed, or tends to show that a particular
person has committed a felony;
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child, or possession of matter depicting sexual conduct of
a person under the age of 18 years, has occurred or is
occurring;
f) When there is a warrant to arrest a person; and,
g) When a provider of electronic communication service or
remote computing service has records or evidence, showing
that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the
possession of any person with the intent to use them as a
means of committing a misdemeanor public offense, or in the
possession of another to whom he or she may have delivered
them for the purpose of concealing them or preventing their
discovery.
3)Affirms that whenever a person, who has been detained or
apprehended for examination of his or her mental condition or
who is a person that is a danger to themselves or others as a
result of a mental illness or disorder, is found to own, have
in his or her possession or under his or her control, any
firearm whatsoever, or any other deadly weapon, the firearm or
other deadly weapon shall be confiscated by any law
enforcement agency or peace officer, who shall retain custody
of the firearm or other deadly weapon.
4)Allows peace officers at the scene of a domestic violence
incident involving a threat to human life or a physical
assault, to take temporary custody of any firearm or other
deadly weapon in plain sight or discovered pursuant to a
consensual or other lawful search as necessary for the
protection of the peace officer or other persons present.
Upon taking custody of a firearm or other deadly weapon, the
officer shall give the owner or person who possessed the
firearm a receipt. The receipt shall describe the firearm or
other deadly weapon and list any identification or serial
number on the firearm. The receipt shall indicate where the
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firearm or other deadly weapon can be recovered, the time
limit for recovery as required by this section, and the date
after which the owner or possessor can recover the firearm or
other deadly weapon. No firearm or other deadly weapon shall
be held less than 48 hours. If a firearm or other deadly
weapon is not retained for use as evidence related to criminal
charges brought as a result of the domestic violence incident
or is not retained because it was illegally possessed, the
firearm or other deadly weapon shall be made available to the
owner or person who was in lawful possession 48 hours after
the seizure or as soon thereafter as possible, but no later
than five business days.
5)Specifies that in domestic violence cases in which a law
enforcement agency has reasonable cause to believe that the
return of a firearm or other deadly weapon would be likely to
result in endangering the victim or the person reporting the
assault or threat, the agency shall advise the owner of the
firearm or other deadly weapon, and within 60 days of the date
of seizure, initiate a petition in superior court to determine
if the firearm or other deadly weapon should be returned.
Requires the law enforcement agency to inform the owner or
person who had lawful possession of the firearm or other
deadly weapon, at that person's last known address by
registered mail, return receipt requested, that he or she has
30 days from the date of receipt of the notice to respond to
the court clerk to confirm his or her desire for a hearing,
and that the failure to respond shall result in a default
order forfeiting the confiscated firearm or other deadly
weapon.
If the person requests a hearing, the court clerk shall set a
hearing no later than 30 days from receipt of that request.
The court clerk shall notify the person, the law enforcement
agency involved, and the district attorney of the date, time,
and place of the hearing. Unless it is shown by a
preponderance of the evidence that the return of the firearm
or other deadly weapon would result in endangering the victim
or the person reporting the assault or threat, the court shall
order the return of the firearm or other deadly weapon and
shall award reasonable attorney's fees to the prevailing
party.
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If the person does not request a hearing or does not otherwise
respond within 30 days of the receipt of the notice, the law
enforcement agency may file a petition for an order of default
and may dispose of the firearm or other deadly weapon.
If, at the hearing, the court does not order the return of the
firearm or other deadly weapon to the owner or person who had
lawful possession, that person may petition the court for a
second hearing within 12 months from the date of the initial
hearing. If there is a petition for a second hearing, unless
it is shown by clear and convincing evidence that the return
of the firearm or other deadly weapon would result in
endangering the victim or the person reporting the assault or
threat, the court shall order the return of the firearm or
other deadly weapon and shall award reasonable attorney's fees
to the prevailing party. If the owner or person who had
lawful possession does not petition the court within this
12-month period for a second hearing or is unsuccessful at the
second hearing in gaining return of the firearm or other
deadly weapon, the firearm or other deadly weapon may be
disposed of.
6)Mandates that a search warrant shall be executed and returned
within 10 days after date of issuance. A warrant executed
within the 10-day period shall be deemed to have been timely
executed and no further showing of timeliness need be made.
After the expiration of 10 days, the warrant, unless executed,
is void.
FISCAL EFFECT : None
COMMENTS : According to the author, "AB 532 will help protect
victims of domestic violence and individuals who present a
danger to themselves and others because of mental health issues
by strengthening California law which allows law enforcement
officials to temporarily seize firearms and other dangerous
weapons. California law requires law enforcement officers at
the scene of a domestic violence incident or whenever an
individual is apprehended because they have a mental condition
that makes them a danger to themselves or others to, take
temporary custody of any firearm or other deadly weapon.
However, California law does not provide law enforcement
officials with any constitutionally permissible way to seize the
firearms or other deadly weapons from these individuals in the
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absence of some exigent circumstance as required by California
law. AB 532 solves this problem by authorizing a court to issue
a search warrant to seize any firearm or other deadly weapon
authorized by Penal Code Section 12028.5 or WIC Section 8102."
Please see the policy committee for a full discussion of this
bill.
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744
FN: 0000717