BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 1433|
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THIRD READING
Bill No: SB 1433
Author: Alquist (D)
Amended: 4/11/12
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 4/24/12
AYES: Hancock, Calderon, Liu, Price, Steinberg
NOES: Anderson, Harman
SENATE APPROPRIATIONS COMMITTEE : 5-2, 5/24/12
AYES: Kehoe, Alquist, Lieu, Price, Steinberg
NOES: Walters, Dutton
SUBJECT : Domestic violence: protective orders:
firearms
SOURCE : Santa Clara County District Attorney
DIGEST : This bill revises and tightens existing laws
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
CONTINUED
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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.
ANALYSIS : Existing law contains the "Domestic Violence
Prevention Act." (Family Code (FAM) Section 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 FAM
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. (FAM Section 6211)
Existing law generally authorizes the issuance of a court
order, with or without notice, to restrain any person for
the purpose of preventing a recurrence of domestic violence
and ensuring a period of separation of the persons
involved, as specified. (FAM Section 6300.) An order may
be granted to any person described above, as specified.
(FAM Section 6301)
Existing law requires, prior to a hearing on the issuance
or denial of an order described above, the court to "ensure
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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 Penal Code
(PEN) Section 667.5 or a serious felony specified in PEN
Section 1192.7; 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. (FAM Section 6306)
This bill requires 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.
This bill requires 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."
Existing law provides that a person subject to a protective
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order, as defined in FAM Section 6218, shall not own,
possess, purchase, or receive a firearm or ammunition while
that protective order is in effect. (FAM Section 6389 (a))
Existing 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, ? (FAM Section 6389(c))
This bill additionally requires 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. (FAM Section 6389(c)(2))
This bill additionally requires 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
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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 ?"
(PEN Section 18250)
This bill revises this provision to include in its
provisions the serving of a protective order as defined in
FAM Section 6218.
Prior Legislation
SB 585 (Kehoe, Chapter 468, Statutes of 2006), and SB 66
(Kuehl, Chapter 66, Statutes of 2001).
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
One-time cost pressure in the range of $500,000 to
$800,000 (General Fund) for technology upgrades to the
extent some county courthouses that do not have
California Law Enforcement Telecommunications System
(CLETS) access are appropriated funds necessary to carry
out the provisions of this bill.
Ongoing cost pressure in the hundreds of thousands to low
millions of dollars (General Fund) statewide for CLETS
training, and increased workload to conduct the check for
registered firearms.
Non-reimbursable local law enforcement costs for expenses
directly related to taking possession of a firearm upon
request, storing the firearm, and surrendering possession
of the firearm to a licensed dealer.
Potential annual ongoing reimbursable state-mandated
local costs, likely minor, for peace officers serving
protective orders who take temporary custody of any
firearm or other deadly weapon pursuant to a lawful
search necessary for the protection of the officers.
Non-reimbursable costs for enforcement and jail time for
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violations of protective orders offset to a degree by
fine revenue. Additional cost pressure for training on
relinquishment of firearms.
SUPPORT : (Verified 5/24/12)
Santa Clara County District Attorney (source)
Los Angeles County District Attorney
Peace Officers Research Association of California
ARGUMENTS IN SUPPORT : 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. 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.
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.
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RJG:mw 5/24/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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