BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1433 (Alquist) 3
As Amended April 11, 2012
Hearing date: April 24, 2012
Family and Penal Codes
AA:mc
DOMESTIC VIOLENCE:
PROTECTIVE ORDERS; FIREARMS
HISTORY
Source: Santa Clara County District Attorney
Prior Legislation: SB 585 (Kehoe) - Ch. 468, Stats. 2006
SB 66 (Kuehl) - Ch. 66, Stats. 2001
Support: Unknown
Opposition:None known
KEY ISSUE
SHOULD THE FIREARMS PROVISIONS RELATING TO DOMESTIC VIOLENCE
PROTECTIVE ORDERS BE REVISED AND TIGHTENED, AS SPECIFIED?
PURPOSE
The purpose of this bill is to revise and tighten existing laws
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concerning domestic violence protective orders with respect to
firearms owned or possessed by the subject of such an order to:
1) require courts to check available and accessible databases to
discover if the subject of an order has a registered firearm,
subject to court resources as specified; 2) require a law
enforcement officer serving a protective order that indicates
that the respondent possesses weapons or ammunition to request
that the firearm be immediately surrendered; 3) require the
subject of the order to file a receipt of surrender or sale of
the firearm to the law enforcement agency that served the order,
as specified; and 4) require that a peace officer, as specified,
serving a protective order 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, as
specified.
Current law contains the "Domestic Violence Prevention Act."
(Family Code � 6200 et seq.) "Domestic violence" under the Act
is abuse perpetrated against any of the following persons:
A spouse or former spouse.
A cohabitant or former cohabitant, as defined in section
6209.
A person with whom the respondent is having or has had a
dating or engagement relationship.
A person with whom the respondent has had a child, where
the presumption applies that the male parent is the father
of the child of the female parent under the Uniform
Parentage Act (Part 3 (commencing with Section 7600) of
Division 12).
A child of a party or a child who is the subject of an
action under the Uniform Parentage Act, where the
presumption applies that the male parent is the father of
the child to be protected.
Any other person related by consanguinity or affinity
within the second degree. (Family Code � 6211.)
Current law generally authorizes the issuance of a court order,
with or without notice, to restrain any person for the purpose
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of preventing a recurrence of domestic violence and ensuring a
period of separation of the persons involved, as specified.
(Family Code � 6300.) An order may be granted to any person
described above, as specified. (Family Code � 6301.)
Current law requires, prior to a hearing on the issuance or
denial of an order described above, the court to "ensure that a
search is or has been conducted to determine if the subject of
the proposed order has any prior criminal conviction for a
violent felony specified in Section 667.5 of the Penal Code or a
serious felony specified in Section 1192.7 of the Penal Code;
has any misdemeanor conviction involving domestic violence,
weapons, or other violence; has any outstanding warrant; is
currently on parole or probation; or has any prior restraining
order or any violation of a prior restraining order.
The search shall be conducted of all records and data
bases readily available and reasonably accessible to
the court, including, but not limited to, the
following:
(1) The Violent Crime Information Network (VCIN).
(2) The Supervised Release File.
(3) State summary criminal history information
maintained by the Department of Justice pursuant to
Section 11105 of the Penal Code.
(4) The Federal Bureau of Investigation's nationwide
data base.
(5) Locally maintained criminal history records or
data bases.
However, a record or data base need not be searched if
the information available in that record or data base
can be obtained as a result of a search conducted in
another record or data base. (Family Code � 6306.)
This bill would require the court additionally to ensure that a
search is or has been conducted to determine if the subject of
the proposed order has a registered firearm.
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This bill would require that these provisions "shall be
implemented pursuant to the provisions of Section 7 of Chapter
572 of the Statutes of 2001," which provided: "This act shall
be implemented in those courts identified by the Judicial
Council as having resources currently available for these
purposes. This act shall be implemented in other courts to the
extent that funds are appropriated for purposes of the act in
the annual Budget Act."
Current law provides that a person subject to a protective
order, as defined in Section 6218,<1> shall not own, possess,
purchase, or receive a firearm or ammunition while that
protective order is in effect. (Family Code � 6389 (a).)
Current law provides that upon the issuance of a protective
order, "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.
The relinquishment . . . 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, . . .
(Family Code � 6389(c).)
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<1> Family Code section 6218 provides: "'Protective order'
means an order that includes any of the following restraining
orders, whether issued ex parte, after notice and hearing, or in
a judgment: (a) An order described in Section 6320 enjoining
specific acts of abuse. (b) An order described in Section 6321
excluding a person from a
dwelling. (c) An order described in Section 6322 enjoining other
specified behavior."
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This bill additionally would require a "law enforcement officer
serving a protective order that indicates that the respondent
possesses weapons or ammunition (to) request that the firearm be
immediately surrendered."
Current law requires a person ordered to relinquish any firearm
pursuant to these provisions to 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,
subject to specified penalties. (Family Code � 6389(c)(2).)
This bill additionally would require a person ordered to
relinquish any firearm pursuant to these provisions to file a
copy of the receipt of surrender or sale with the law
enforcement agency that served the protective order, subject to
specified penalties. This bill provides additional nontechnical
recasting of the statute's language.
Current law requires that if specified peace officers are "at
the scene of a domestic violence incident involving a threat to
human life or a physical assault, that person shall 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 . . . ." (Penal Code � 18250.)
This bill would revise this provision to include in its
provisions the serving of a protective order as defined in
Section 6218 of the Family Code (see footnote 1).
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
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overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
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decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Stated Need for This Bill
The author states:
Two homicides that have occurred over the past few
years highlight the need for legislation.
In 2005, a woman in San Diego obtained a protective
order and stated in her affidavit that the subject of
the restraining order owned a firearm. The protective
order was issued, but the firearm was not seized.
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Twenty-four hours after being served with the
restraining order, the perpetrator used the firearm to
kill their 17-year-old son who was training with his
high school cross-country team.
In 2011, there was a similar incident in Santa Clara
County. Carmen Dao obtained a protective order
against her husband, Ed Dau. In her declaration
Carmen stated that she feared that her husband would
use his registered firearm to kill their 22-year-old
son and then himself. The protective order was
served, but the gun was not seized. Ed Dao killed
their son and then himself with this registered
firearm as described in Carmen's declaration. The
murder/suicide occurred the day before their initial
court hearing.
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Senate Bill 1433 authorizes law enforcement officers,
when serving a protective order, to take custody of
any firearms in plain sight or located through a
lawful search. SB 1433 would further require judges,
as part of the protective order issuance process, to
conduct a weapons check of firearms databases. Last
SB 1433 would authorize Family Court judges to issue a
search warrant for weapons at the time a protective
order is made.
2. What This Bill Would Do
As explained above, this bill would revise existing laws
concerning firearms and domestic violence protective orders as
follows:
Require courts to check available and accessible
databases to discover if the subject of the order has a
registered firearm, subject to court resources as
specified;
Require a law enforcement officer serving a protective
order that indicates that the respondent possesses weapons
or ammunition to request that the firearm be immediately
surrendered;
Require the subject of the order to file a receipt of
surrender or sale of the firearm to the law enforcement
agency that served the order, as specified; and
Require that a peace officer, as specified, serving a
protective order 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.
3. Background: Domestic Violence and Firearms
That firearms are a potentially deadly ingredient in any
domestic violence situation is undisputed:
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In 1999, approximately 791,000 violent crimes were
committed against persons age twelve or older by
their intimate partners. About eighty-five
percent of these victims - approximately 670,000 -
were women. Indeed, domestic violence is the
leading cause of injury to women. In California,
women were over thirteen times more likely to be
killed by their spouses than men during 1999.
Moreover, in the United States since 1976, thirty
percent of all murders with female victims have
occurred at the hands of intimates.
Although domestic violence can take many forms,
abusers often use firearms to threaten, injure, or
kill their victims. In fact, sixty-five percent
of the approximately 52,000 intimate murders
involved firearms in 1996. In single
victim/single offender incidents two years later,
"the number of females shot and killed by their
husband or intimate acquaintance . . . was more
than four times higher than the total number
murdered by male strangers using all weapons
combined."
. . .
Firearms and domestic violence create a lethal
combination - one that heightens the risks for
victims. Domestic violence incidents that involve
a firearm are twelve times more likely to result
in death than those involving any other type of
weapon. 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." Simply
having a firearm in the home increases the risk of
homicide by a family member or intimate
acquaintance. In addition, if a history of
domestic
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violence incidents in that home exists, the risk
of firearm-related homicide becomes even greater.
The availability of guns in the home also
increases the risk of suicide - one in every ten
abused women tries to kill herself.<2>
The California Department of Justice reports that in 2009, the
most recent data available from DOJ online, out of 167,087
domestic violence related calls for assistance, 67,702 involved
weapons, and of those 819 involved a firearm.<3>
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<2> Getting the Guns: Implementation and Enforcement Problems
with California Senate Bill 218, Michelle N. Deutchman, (75 S.
Cal. L. Rev. 185)(Nov. 2001)
<3> DOMESTIC VIOLENCE-RELATED CALLS FOR ASSISTANCE, 2009, Type
of Call and Weapon
(http://stats.doj.ca.gov/cjsc_stats/prof09/00/14.pdf.)