BILL ANALYSIS �
SB 1433
Page 1
Date of Hearing: June 19, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1433 (Alquist) - As Amended: April 11, 2012
SUMMARY : Requires a law enforcement officer who serves a
protective order that prohibits the individuals from possessing
a firearm to request the firearm be immediately surrendered.
Specifically, this bill :
1)Requires that, prior to a hearing on the issuance or denial of
an order under this part, the court shall ensure that a search
is or has been conducted to determine if the subject of the
proposed order has a registered firearm.
2)Requires a person required to relinquish possession of a
firearm within 48 hours of being served with the order to:
a) File, with the court that issued the protective order,
the receipt showing the firearm was surrendered to a local
law enforcement agency or sold to a licensed gun dealer.
Failure to timely file a receipt shall constitute a
violation of the protective order; and,
b) File a copy of the receipt with the law enforcement
agency that served the protective order. Failure to timely
file a copy of the receipt shall constitute a violation of
the protective order.
3)Requires a law enforcement officer who is 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.
EXISTING LAW:
1)Defines "domestic violence" as abuse perpetrated against any
of the following persons (Family Code Section 6211):
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a) A spouse or former spouse;
b) A cohabitant or former cohabitant, as specified;
c) A person with who the respondent is having or had a
dating or engagement relationship;
d) A person with whom the respondent had had a child;
e) A child of a party or a child who is the subject of an
action Uniform Parentage Act; or,
f) Any other person related by consanguinity or affinity
within the second degree.
2)Allows a court to issue an order, with or without notice, to
restrain any person for the purpose preventing a recurrence of
domestic violence and ensuring a period of separation of the
persons involved if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse.
(Family Code Section 6300.)
3)Requires that, prior to a hearing on the issuance or denial of
restraining order, the court shall 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 serious or
violent felony, as specified; 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 databases readily available and reasonably
accessible to the court. �Family Code Section 6306(a).]
4)Prohibits a person subject to a protective order from owning,
possessing, purchasing, or receiving a firearm or ammunition
while that protective order is in effect. �Family Code
Section 6389(a).]
5)States that on all forms providing notice that a protective
order has been requested or granted, the Judicial Council
shall include a notice that, upon service of the order, the
respondent shall be ordered to relinquish possession or
control of any firearms and not to purchase or receive or
attempt to purchase or receive any firearms for a period not
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to exceed the duration of the restraining order. �Family Code
Section 6389(b).]
6)States that upon 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. �Family Code
Section 6389(c)(1).]
7)States that the relinquishment ordered pursuant 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, as specified. The law enforcement officer or
licensed gun dealer taking possession of the firearm pursuant
to this subdivision shall issue a receipt to the person
relinquishing the firearm at the time of relinquishment. A
person ordered to relinquish any firearm pursuant to this
subdivision shall 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.
Failure to timely file a receipt shall constitute a violation
of the protective order. �Family Code Section 6389(c)(2).]
8)States that the forms for protective orders adopted by the
Judicial Council and approved by the Department of Justice
shall require the petitioner to describe the number, types,
and locations of any firearms presently known by the
petitioner to be possessed or controlled by the respondent.
�Family Code Section 6389(c)(3).]
9)Recommends that that every law enforcement agency in the state
develop, adopt, and implement written policies and standards
for law enforcement officers who request immediate
relinquishment of firearms. �Family Code Section 6389(c)(4).]
10)Permits the court to grant use immunity for the act of
relinquishing the firearm required under this section, if the
respondent declines to relinquish possession of any firearm
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based on the assertion of the right against
self-incrimination. �Family Code Section 6389(d).]
11)Allows a local law enforcement agency to charge the
respondent a fee for the storage of any firearm pursuant to
this section. This fee shall not exceed the actual cost
incurred by the local law enforcement agency for the storage
of the firearm. �Family Code Section 6389(e).]
12)Requires a restraining order requiring a person to relinquish
a firearm to state on its face that the respondent is
prohibited from owning, possessing, purchasing, or receiving a
firearm while the protective order is in effect and 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. �Family Code
Section 6389(f).]
13)States that the restraining order requiring a person to
relinquish a firearm 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
specified, or another successive restraining order is issued
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 specified. 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. �Family Code Section 6389(g).]
14)States that the court may, as part of the relinquishment
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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
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. �Family Code Section 6389(h).]
15)Requires that if specified law enforcement 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 Section 18250.)
16)States that any person who purchases, receives, owns or
possesses, or attempts to purchase, receive, own or possess a
firearm knowing that the person is prohibited from doing so by
a temporary restraining order is guilty of a public offense,
punishable by imprisonment in a county jail not exceeding one
year or in the state prison, by a fine not exceeding $1,000,
or by both that imprisonment and fine. �Penal Code Section
29825(a) and (b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Two homicides
that have tragically occurred over the past few years
highlight the need for legislation. In 2005, a woman in San
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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 Dau 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 Dau killed their son
and then himself with his registered firearm as described in
Carmen's declaration. The murder/suicide occurred the day
before their initial court hearing.
"SB 1433 authorizes law enforcement officers, when serving a
protective order, to take custody of any firearm 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)Previous Legislation :
a) SB 585 (Kehoe), Chapter 467, Statutes of 2006, required
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.
b) AB 2129 (Spitzer), Chapter 474, Statutes of 2006,
specified 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.
c) 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
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any firearms he or she possesses
d) 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.
e) 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.
f) SB 66 (Kuehl), Chapter 572, Statutes of 2001, required
the court, prior to a hearing on the issuance or denial of
a protective order to ensure that a search of specified
records and data bases is or has been made to determine if
the proposed subject of the order has any specified prior
criminal convictions or outstanding warrants, is on parole
or probation, or is or was the subject of other protective
or restraining orders.
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council
County of Santa Clara
Los Angeles County District Attorney
Peace Officer Research Association of California
Opposition
None
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744