BILL ANALYSIS
AB 789
Page 1
Date of Hearing: May 12, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 789 (De Leon) - As Introduced: February 26, 2009
SUMMARY : Authorizes the issuance of a search warrant when the
property or things to be seized include a firearm that is owned
by, or in the possession of, or in the custody or control of a
person who is subject to the prohibitions regarding firearms
pursuant to protective orders issued to prevent the molesting,
attacking, striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning, destroying personal property;
contacting, either directly or indirectly, by mail or otherwise;
coming within a specified distance of, or disturbing the peace
of, the other party; and, in the discretion of the court, on a
showing of good cause, of other named family or household
members.
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. (Penal Code Section 1523.)
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.
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. [Penal Code Section 1524(a).]
1)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
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
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the seizure or as soon thereafter as possible, but no later
than five business days. [Penal Code Section 12028.5(b).]
2)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.
[Penal Code Section 12028.5(f).]
3)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. [Penal Code Section 12028.5(g).]
a) 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. [Penal Code
Section 12028.5(h).]
b) 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. [Penal Code Section 12028.5(i).]
c) 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
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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. [Penal Code
Section 12028.5(j).]
4)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. [Penal Code Section 1534(a).]
5)Provides that a defendant may move for the return of property
or to suppress as evidence any tangible or intangible thing
obtained as a result of a search or seizure on either of the
following grounds:
a) The search or seizure without a warrant was
unreasonable.
b) The search or seizure with a warrant was unreasonable
because any of the following apply:
i) The warrant is insufficient on its face.
ii) The property or evidence obtained is not that
described in the warrant.
iii) There was not probable cause for the issuance of the
warrant.
iv) The method of execution of the warrant violated
federal or state constitutional standards.
6)There was any other violation of federal or state
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constitutional standards. [Penal Code Section 1538.5(a)(1).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "AB 789 will
protect victims of domestic violence by strengthening
California law to authorize a search warrant for law
enforcement to temporarily seize firearms and other dangerous
weapons from domestic violence offenders."
2)Background : According to information provided by the author,
"Every year, an estimated two to four million United States
women and men are assaulted by a domestic partner.
"Domestic violence (DV) is especially dangerous when DV
offenders possess weapons or firearms. According to a recent
University of California, Los Angeles study, when a gun is
kept in a DV home, nearly two-thirds of surveyed female
victims reported that the batterer used that gun to scare,
threaten, or harm her.
"DV assaults with firearms are 12 times more likely to result in
death and, on average, more than three women and one man are
murdered by their intimate partners in this country every day.
"The United States Department of Justice has found that firearms
are the most common weapon used by males to murder females in
domestic violence cases.
"In response to this crisis, the California Legislature enacted
laws prohibiting a person who is the subject of a domestic
violence protective order (DVPO) from owning, possessing,
purchasing or receiving any firearm while the protective order
is in effect, and required the subject to immediately
surrender any firearm in their possession or control to a law
enforcement officer.
"Despite these laws, law enforcement has found that many persons
subject to a DVPO (DV offenders) do not report this legally
mandated information. Therefore, in order to protect the
safety of the DV victim, law enforcement consequently obtains
a search warrant to seize all firearms and weapons from a DV
offender's possession.
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"However, a California court recently ruled that because that
current law does not explicitly cite a DVPO as grounds for the
issuance of a search warrant, law enforcement has no
constitutionally permissible way to seize firearms from the DV
offender's possessions, if the DV offender is served outside
of their residence. A United States Court also ruled that law
enforcement cannot constitutionally seize firearms from a DV
offender if the offender or their residential partner will not
consent to a voluntary search of their residence to seize any
firearms of which the offender owns or has control.
"The inability of law enforcement to remove firearms from the
scene of a DV incident places victims of DV at a potentially
fatal risk.
"Without providing explicit authority to law enforcement to
remove dangerous weapons from a DV offender's possession, the
current laws intended to protect DV victims are rendered
useless.
"AB 789 will remedy this problem and provide law enforcement
officers with the authority to protect DV victims and
constitutionally seize dangerous firearms in DV cases."
3)Seizure of Firearms in Under Current Law : Firearms and
domestic violence create a lethal combination - one that
heightens the risks for victims. Domestic violence incidents
that involve a firearm are 12 times more likely to result in
death than those involving any other type of weapon.
[Saltzman, Mercy, O'Carroll, Rosenberg & Rhodes, Weapon
Involvement and Injury Outcomes in Family and Intimate
Assaults (1992), 267 JAMA 3043, 3043.] This consequence
likely is because firearms are more lethal than other weapons,
and many batterers who kill "with a firearm would be unable or
unwilling to exert the greater physical or psychological
effort required to kill with another, typically available
weapon." (Id. at 3045.) Simply having a firearm in the home
increases the risk of homicide by a family member or intimate
acquaintance. [Kellermann, Rivara, Rushforth, Banton, Reay,
Francisco, Locci, Prodzinski, Hacman & Somes, Gun Ownership as
a Risk Factor for Homicide in the Home (1993) 329 N. Eng. J.
Med. 1084, 1087.] In addition, if a history of domestic
violence incidents in that home exists, the risk of
firearm-related homicide becomes even greater. (Id. at 1087.)
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The availability of guns in the home also increases the risk
of suicide - one in every ten abused women tries to kill
herself. [Nocolais, State and Federal Statutes Affecting
Domestic Violence Cases Recognize Dangers of Firearms (Nov.
1999) N.Y. St. B.J., p. 39.]
Legislators at the federal, state and local levels are working
to remove firearms from the hands of abusers in order to lower
the likelihood of injury and death caused by domestic
violence. On October 6, 1999, California Governor Gray Davis
signed into law SB 218 (Solis), Chapter 662, Statutes of 1999,
the "1999 Domestic Violence Omnibus Bill". Under SB 218,
Penal Code Section 12028.5 was created. Under that section,
law enforcement officers are required take temporary custody
of any firearms or deadly weapons in plain view or discovered
in a consensual search at the scene of a domestic violence
incident. Upon seizure of the weapon or firearm, the officer
must give the owner a receipt that describes the weapon or
firearm, lists any identification or serial number, and
indicates where and when the firearm can be recovered. [Penal
Code Section 12028.5(3)(b).] The law requires that all
weapons or firearms be held for at least 48 hours, but no more
than business five days. (Ibid.) If the law enforcement
officer has reason to believe that returning the weapon or
firearm would endanger the victim or the person reporting the
incident, however, the officer has 60 days during which to
file a petition in superior court. [Id. at subd. (f).] This
petition will help determine whether or not the weapon or
firearm should be returned. (Ibid.) With a showing of good
cause, this 30-day time limit may be extended an additional 30
days. (Ibid.)
The law enforcement agency must then inform the person who
originally possessed the weapon that he or she has 30 days to
decide whether or not to attend a hearing on this matter.
[Id. at subd. (g).] Failure to respond to this notice will
result in a default order that forfeits the seized firearm.
(Ibid.) If the person desires a hearing, however, the date
will be calendared within 30 days of the court's receipt of
the request for a hearing. [Id. at subd. (h).] In order to
retain custody of the weapon in the interim, the state must
show the preponderance of the evidence that returning the gun
will endanger the victim or the person reporting the threat.
(Ibid.)
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If the court decides not to return the firearm to the owner or
person in possession, he or she may petition the court for a
second hearing anytime during the year following the initial
one. [Id. at subd. (j).] If he or she does not request the
second hearing or is unsuccessful in regaining the weapon at
the second hearing, the gun may be disposed of. (Ibid.)
Thus, at the minimum, a seized firearm will be in the hands of
law enforcement for two days. Once law enforcement files a
petition, as many as 60 days could elapse until the hearing -
two months during which the abuser is denied access to his or
her weapons.
4)Fourth Amendment Analysis of the Current Laws Relating to
Firearm Seizures : The Fourth Amendment protects "the right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures. Shall
not be violated, and no Warrants shall issue, but upon
probable cause, support by Oath or affirmation, and
particularly describing the place to be searched, and persons
or things to be seized." (U.S. Const., 4th Amend.) In a long
line of cases, the Supreme Court has stressed that "searches
conducted outside the judicial process, without prior approval
by judge or magistrate, are per se unreasonable under the
Fourth Amendment -- subject only to a few specifically
established and well delineated exceptions." [Katz v. United
States (1967) 389 U.S. 347, 357.] Because the physical entry
of the home is the chief evil against which the wording of the
Fourth Amendment is directed, it is a basic principle of
Fourth Amendment law that searches and seizures inside a home
without a warrant are presumptively unreasonable. The
presumption is rebutted, when an exception to the warrant
requirement -- such as plain view, consent, or exigent
circumstances.
a) Domestic Violence Firearm Seizure Pitfalls : Penal Code
Section 12028.5 states that an officer "shall take
temporary custody of a 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." [Penal Code Code
12028.5(b).]
In this context, "plain view" is defined as "open and visible
to the naked eye." [20 Cal. Jur. 2515 (3d ed. 1985) at p.
506 ("[S]eizure of property in plain view involves no
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invasion of privacy and is presumptively reasonable,
assuming that there is probable cause to associate the
property with criminal activity").] A search is deemed
"consensual" if the consent is voluntary, if the search
conforms to the consent given, and if the person consenting
had the authority to do so. [Whitebread & Slobogin,
Criminal Procedure: An Analysis of Cases and Concepts 5.05
(4th ed. 2000) at pp. 276-77.] When these requirements are
met, the consent functions as a waiver of Fourth Amendment
protections. (Ibid.) Thus, valid consent allows an
officer to search an area without probable cause or a
warrant. (Ibid.) The ability to perform this type of
search provides law enforcement with an essential tool for
removing firearms from explosive situations. William
Flannery, an officer in the Gun Unit at the Los Angeles
Police Department (LAPD), stated that while performing
consensual searches at the site of domestic violence
incidents, he has found guns hidden in toilet tanks, fish
tanks, and freezers. [Interview with William Flannery,
Officer, LAPD Gun Unit, Detective Headquarters Division, in
Los Angeles, Cal. (Feb. 8, 2001).] Clearly, these weapons
would not have been removed if officers had only the "plain
view" option at their disposal.
The challenging aspect of a consensual search is determining
who has the authority to consent. An individual's
authority to permit a search "does not rest upon the law of
property . . . but rests rather on mutual use of the
property by persons generally having joint access or
control for most purposes." [United States v. Matlock
(1974) 415 U.S. 164, 171 n.7.] In other words, if law
enforcement serves a domestic violence protective order,
the protected person cannot give permission for law
enforcement to seize firearms or other dangerous weapons in
a residence if the individual being served is a joint
occupant and does not consent. This bill alleviates this
gap by allowing for the issuance of a search warrant, thus
obviating the need for plain view or consent altogether.
Although, the Fourth Amendment recognizes a "valid
warrantless entry and search of premises when police obtain
the voluntary consent of an occupant who shares, or is
reasonably believed to share, authority over the area in
common with a co-occupant who later objects to the use of
evidence so obtained." [Georgia v. Randolph (2006) 547
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U.S. 103, 106 (citing Illinois v. Rodriguez (1990) 497 U.S.
177).] However, the police have "no recognized authority
in law or social practice" to enter the residence over the
objection of a "present and objecting co-tenant." (Id. at
114.) According to the Supreme Court, a "disputed
invitation, without more, gives a police officer no better
claim to reasonableness in entering than the officer would
have in the absence of any consent at all." (Ibid.)
Thus, if law enforcement services an individual with a
protective order which disallows possession of firearms or
dangerous weapons, the protected person cannot give
permission for law enforcement to seize the weapons within
a residence over the protests of the person being served.
This bill obviates the need for a warrantless search
exception to acquire firearms that are owned by, in the
possession of, or in the custody or control of a person who
is subject to the prohibitions regarding firearms pursuant
to protective orders issued to prevent the molesting,
attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning' destroying
personal property; contacting, either directly or
indirectly, by mail or otherwise; coming within a specified
distance of, or disturbing the peace of, the other party;
and, in the discretion of the court, on a showing of good
cause, of other named family or household members. It
seems counterintuitive to the spirit of Family Code Section
6389 to prohibit the possession of firearms, yet rely upon
the narrow exceptions to a warrantless search to achieve
such goals. This bill explicitly allows law enforcement to
obtain a warrant, search a residence beyond "plain view"
without the consent of the batterer, thus protecting the
victim his or her aggressor.
5)Argument in Support : According to the City Attorney of Los
Angeles , "California Family Code Section 6389 requires a
person who is served with a Domestic Violence Protective Order
to relinquish possession or control of any firearms and
prohibits that person from purchasing or receiving any
firearms for the duration of the restraining order. However,
in circumstances where the restrained person refuses to
relinquish their firearms, there is no provision or mechanism
providing law enforcement with the authority to seize the
firearm. This gap in t he law can easily turn dangerous and
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often deadly.
"Access to firearms increases the risk of intimate partner
homicide more than five times more than in instances where
there are no weapons, according to a recent study. In
addition, abusers who possess guns tend to inflict the most
severe abuse on their partners. (J. C. Campbell, D; Webster,
J; Koziol-McLain, C.R.; et al. 2003. Risk Factors for
Femicide in Abusive Relationships; Results from A Multi-Site
Case Control Study v. When Men Murder Women: An Analysis of
2001 Homicide Data: Females Murdered by Males in Single
Victim.) By allowing a court to issue a search warrant in
these situations, AB 789 will enable law enforcement to seize
firearms as contemplated by Family Code Section 6389.
"Victims of domestic violence who go to court obtain Domestic
Violence Protective Orders deserve to be able have all
provisions of those Orders enforceable and enforced. AB 789
provides law enforcement with the necessary tools to do that."
6)Argument in Opposition : According to the California Judges
Association , "This bill would add an unnecessary ninth ground
for issuing a search warrant where 'the property or things to
be seized include a firearm that is owned by, or in the
possession of, or in the custody or control of, a person who
is subject to the prohibitions regarding firearms pursuant to
Section 6389 of the Family Code.'
"Court hare already authorized to order a search to locate a
firearm possessed in violation of a family-law protective
order. Penal Code section 1524(a)(4) authorizes a search
'[w]hen the property or things to be seized consists of any
item or constitutes any evidence that tends to show a felony
has been committed or tends to show that a particular person
has committed a felony.' A violation of the firearm
prohibition in a protective order is punishable as a felony.
[See Family Code Section 6389(a); Penal Code Section
12021(g).]"
7)Similar Legislation : AB 532 (Lieu) 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: (a) a
person arrested in connection with a domestic violence
incident involving a threat to human life or physical assault,
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or (b) a person who has been detained or apprehended for
examination of his or her mental condition. AB 532 is
scheduled to be heard by this Committee today.
8)Prior Legislation :
a) SB 585 (Kehoe), Chapter 467, Statutes of 2006, requires
a person ordered to relinquish a gun, pursuant to terms of
a protective order, to surrender the weapon immediately
upon request of any law enforcement officer, or within 24
hours, if no request is made by an officer. Failure to
file a receipt in a timely manner is a violation of the
protective order, a misdemeanor pursuant to existing law.
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.
c) SB 1391 (Romero), Chapter 250, Statutes of 2004,
requires a person subject to a domestic violence protective
order to relinquish any firearm within 24 hours of the
service of the order.
REGISTERED SUPPORT / OPPOSITION :
Support
Brady Campaign to Prevent Gun Violence,
California Chapters
California Partnership to End Domestic Violence
City Attorney, Los Angeles
County of Los Angeles
Legal Community Against Violence
Los Angeles County District Attorney's Office
Women Against Gun Violence
Opposition
California Judges Association
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744