BILL ANALYSIS �
SB 1433
Page 1
SENATE THIRD READING
SB 1433 (Alquist)
As Amended April 11, 2012
Majority vote
SENATE VOTE :26-11
PUBLIC SAFETY 4-2 APPROPRIATIONS 12-5
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|Ayes:|Ammiano, Cedillo, |Ayes:|Gatto, Blumenfield, |
| |Mitchell, Skinner | |Bradford, Charles |
| | | |Calderon, Campos, Davis, |
| | | |Fuentes, Hall, Hill, |
| | | |Cedillo, Mitchell, |
| | | |Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Knight, Hagman |Nays:|Harkey, Donnelly, |
| | | |Nielsen, Norby, Wagner |
| | | | |
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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
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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:
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 has 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.
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
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accessible to the court.
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.
5)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.
6)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.
7)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
based on the assertion of the right against
self-incrimination.
8)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,
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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.
9)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.
10)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.
11)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.
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FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Potentially significant one-time General Fund (GF) pressure -
in the hundreds of thousands of dollars - to state trial
courts to the extent the gun possession background search
requirement requires technology upgrades.
2)Ongoing GF pressure, potentially in the hundreds of thousands
of dollars, for increased state trial court workload related
to the gun possession background searches.
3)This bill specifies that gun possession background searches
shall be implemented only to the extent resources are
available or appropriated for this purpose. This
implementation contingency language is the same language
adopted in 2001 when SB 66 (Kuehl) created the requirement for
background checks to which SB 1433 adds gun checks. The
Judicial Council indicates that protective order background
search practice is uneven across the state due to historical
and ongoing budget pressures.
4)Likely minor reimbursable local costs as a result of requiring
peace officers serving protective orders to confiscate any
guns in plain sight or discovered pursuant to a consensual or
lawful search necessary for the protection of the officer or
other persons present.
5)Minor nonreimbursable local law enforcement costs for
additional gun relinquishments upon peace officer request.
COMMENTS : 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 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
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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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744
FN: 0004979