BILL NUMBER: AB 1014 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 4, 2014
AMENDED IN SENATE JULY 2, 2014
AMENDED IN SENATE JUNE 11, 2014
AMENDED IN SENATE MAY 28, 2014
AMENDED IN ASSEMBLY MAY 8, 2013
AMENDED IN ASSEMBLY APRIL 24, 2013
AMENDED IN ASSEMBLY APRIL 9, 2013
AMENDED IN ASSEMBLY MARCH 21, 2013
INTRODUCED BY Assembly Members Skinner and Williams
(Principal coauthor: Senator Jackson)
(Coauthors: Assembly Members Alejo, Bloom, Bonilla, Bonta,
Buchanan, Dickinson, Levine, Lowenthal, Rendon, Stone, Ting, and
Wieckowski)
FEBRUARY 22, 2013
An act to amend Sections 1524 and 18250 of, to add Section 1542.5
to, and to add Division 3.2 (commencing with Section 18100) to Title
2 of Part 6 of, the Penal Code, and to amend Section 8105 of the
Welfare and Institutions Code, relating to firearms.
LEGISLATIVE COUNSEL'S DIGEST
AB 1014, as amended, Skinner. Gun violence restraining orders.
(1) Existing law regulates the sale, transfer, possession, and
ownership of firearms, including prohibiting specified persons from
owning or possessing firearms. Existing law, among other things,
prohibits a person subject to a domestic violence protective order
from owning or possessing a firearm while that order is in effect and
if prohibited by that order.
This bill would authorize a court to issue an emergency gun
violence restraining order if a law enforcement officer asserts and a
judicial officer finds that there are reasonable grounds
is reasonable cause to believe that the subject
of the petition poses an immediate and present danger of causing
personal injury to himself, herself, or another by having
under in his or her custody and
or control, owning, purchasing, possessing, or
receiving a firearm and that the order is necessary to prevent
personal injury to himself, herself, or another person,
another, as specified. The bill would require a
law enforcement officer to serve the order on the restrained person,
if the restrained person can reasonably be located, file a copy of
the order with the court, and have the order entered into the
computer database system for protective and restraining orders
maintained by the Department of Justice. The bill would require the
presiding judge of the superior court in each county to designate at
least one judge, commissioner, or referee to be reasonably available
to issue orally, by telephone or otherwise, emergency gun violence
restraining orders at all times whether or not the court is in
session.
This bill would additionally authorize a court to issue an ex
parte gun violence restraining order, upon a showing of good cause,
prohibiting the subject of the petition from having under
in his or her custody and
or control, owning, purchasing, possessing, or receiving,
or attempting to purchase or receive receive,
a firearm or ammunition, as specified. The bill would require
the ex parte order to expire no later than 14
21 days after the date on the order and would require the
court to hold a hearing within 21 days of issuing the ex parte gun
violence restraining order to determine if a gun violence restraining
order that is in effect for one year should be issued. The bill
would require a law enforcement officer to serve the restrained
person the ex parte order, if the restrained person can reasonably be
located.
The bill would authorize a court to issue a gun violence
restraining order prohibiting the subject of the petition from having
under in his or her custody
and or control, owning, purchasing, possessing,
or receiving, or attempting to purchase or receive
receive, a firearm or ammunition for a period of one year
when there is clear and convincing evidence to believe that there is
a substantial likelihood that the subject of the petition, or a
person subject to an ex parte gun violence restraining order, as
applicable, will cause personal injury to himself, herself, or
another by having under in his or her
custody and or control, owning,
purchasing, possessing, or receiving a firearm and that the order is
necessary to prevent personal injury to himself, herself, or
another person, another, as specified. The bill
would authorized authorize the renewal
of the order for additional one-year periods and would permit the
restrained person to request one hearing to terminate the order
during the effective period of the initial order or each renewal
period.
The bill would require a court, upon issuance of a gun violence
restraining order, to order the restrained person to surrender to the
local law enforcement agency any firearm or
all firearms and ammunition in his or her custody and
or control, or which he or she possesses or
owns. The bill would require the local law enforcement agency to
retain custody of the firearm or firearms and ammunition
for the duration of a gun violence restraining order.
The bill would require the court to notify the Department of
Justice and the district attorney in the jurisdiction in which a gun
violence restraining order was issued when any gun violence
restraining order has been issued, renewed, dissolved, or terminated.
The bill would make it a misdemeanor to file a petition for
a an ex parte gun violence restraining
order, order or a gun violence restraining
order issued after notice and a hearing, knowing the
information in the petition to be false or with the intent to harass.
The bill would also provide that a person who violates a gun
violence restraining order is guilty of a misdemeanor and shall be
prohibited from having under in his or
her custody and or control, owning,
purchasing, possessing, or receiving, or attempting to purchase or
receive, a firearm or ammunition for a 5-year period, commencing upon
the expiration of the existing gun violence restraining order.
By creating new crimes and by requiring new duties of local law
enforcement, this bill would impose a state-mandated local program.
(2) Existing law states the grounds upon which a search warrant
may be issued, including when the property or things to be seized
include a firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of, specified
persons.
This bill would allow a search warrant to be issued when the
property or things to be seized are a firearm or
firearms or ammunition or both that is in the
custody and control of, or is owned or possessed by,
are owned by, in the possession of, or in the
custody or control of, a person who is the subject of a gun
violence restraining order. The bill would also require the law
enforcement officer executing a search warrant issued upon that
ground to take custody of any firearm or ammunition that is in the
restrained person's custody and or
control or possession, that is owned by the restrained person, or
that is discovered pursuant to a consensual or other lawful search
and would provide rules for executing the search warrant when the
location to be searched is jointly occupied by the restrained person
and one or more other persons.
(3) Existing law requires specified law enforcement officers to
take temporary custody of any firearm or deadly weapon in plain sight
or discovered pursuant to a lawful search when present at the scene
of a domestic violence incident involving a threat to human life or
physical assault.
This bill would apply the requirements described above to law
enforcement officers serving a gun violence restraining order. The
bill would also apply those requirements when the law enforcement
officer is a sworn member of the Department of Justice who is a peace
officer.
(4) Existing law requires the Department of Justice to request
public and private mental hospitals, sanitariums, and institutions to
submit to the department information necessary to identify persons
who are admitted to a specified facility because the person is a
danger to himself, herself, or others, to own, possess, control,
receive, or purchase any firearm. Existing law requires the
department to only use the information for certain specified
purposes.
This bill would require the department to make use of the
above-described information only to determine the eligibility of a
person who is the subject to either a gun violence restraining order
or a firearm seizure warrant to acquire, carry, or possess firearms,
destructive devices, or explosives.
(5) Existing constitutional provisions require that a statute that
limits the right of access to the meetings of public bodies or the
writings of public officials and agencies be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
This bill would make legislative findings to that effect.
(6) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1524 of the Penal Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) 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.
(4) 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.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under 18 years of age, in violation of Section 311.11, has
occurred or is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote
computing service has records or evidence, as specified in Section
1524.3, 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.
(8) When the property or things to be seized include an item or
any evidence that tends to show a violation of Section 3700.5 of the
Labor Code, or tends to show that a particular person has violated
Section 3700.5 of the Labor Code.
(9) 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 the person arrested in connection with, a
domestic violence incident involving a threat to human life or a
physical assault as provided in Section 18250. This section does not
affect warrantless seizures otherwise authorized by Section 18250.
(10) When the property or things to be seized include a firearm or
any other deadly weapon that is owned by, or in the possession of,
or in the custody or control of, a person described in subdivision
(a) of Section 8102 of the Welfare and Institutions Code.
(11) 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 Section 6389 of the Family Code, if a prohibited
firearm is possessed, owned, in the custody of, or controlled by a
person against whom a protective order has been issued pursuant to
Section 6218 of the Family Code, the person has been lawfully served
with that order, and the person has failed to relinquish the firearm
as required by law.
(12) When the information to be received from the use of a
tracking device constitutes evidence that tends to show that either a
felony, a misdemeanor violation of the Fish and Game Code, or a
misdemeanor violation of the Public Resources Code has been committed
or is being committed, tends to show that a particular person has
committed a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code, or is
committing a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code, or
will assist in locating an individual who has committed or is
committing a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code. A
tracking device search warrant issued pursuant to this paragraph
shall be executed in a manner meeting the requirements specified in
subdivision (b) of Section 1534.
(13) When a sample of the blood of a person constitutes evidence
that tends to show a violation of Section 23140, 23152, or 23153 of
the Vehicle Code and the person from whom the sample is being sought
has refused an officer's request to submit to, or has failed to
complete, a blood test as required by Section 23612 of the Vehicle
Code, and the sample will be drawn from the person in a reasonable,
medically approved manner. This paragraph is not intended to abrogate
a court's mandate to determine the propriety of the issuance of a
search warrant on a case-by-case basis.
(14) When the property or things to be seized are a
firearm or firearms or ammunition or both that
is in the custody and control of, or is owned or possessed
by, are owned by, in the possession of, or in the
custody or control of a person who is the subject of a gun
violence restraining order that has been issued pursuant to Division
3.2 (commencing with Section 18100) of Title 2 of Part 6.
(b) The property, things, person, or persons described in
subdivision (a) may be taken on the warrant from any place, or from
any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or under
the control of any person who is a lawyer as defined in Section 950
of the Evidence Code, a physician as defined in Section 990 of the
Evidence Code, a psychotherapist as defined in Section 1010 of the
Evidence Code, or a member of the clergy as defined in Section 1030
of the Evidence Code, and who is not reasonably suspected of engaging
or having engaged in criminal activity related to the documentary
evidence for which a warrant is requested unless the following
procedure has been complied with:
(1) At the time of the issuance of the warrant, the court shall
appoint a special master in accordance with subdivision (d) to
accompany the person who will serve the warrant. Upon service of the
warrant, the special master shall inform the party served of the
specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) (A) If the party who has been served states that an item or
items should not be disclosed, they shall be sealed by the special
master and taken to court for a hearing.
(B) At the hearing, the party searched shall be entitled to raise
any issues that may be raised pursuant to Section 1538.5 as well as a
claim that the item or items are privileged, as provided by law. The
hearing shall be held in the superior court. The court shall provide
sufficient time for the parties to obtain counsel and make any
motions or present any evidence. The hearing shall be held within
three days of the service of the warrant unless the court makes a
finding that the expedited hearing is impracticable. In that case the
matter shall be heard at the earliest possible time.
(C) If an item or items are taken to court for a hearing, any
limitations of time prescribed in Chapter 2 (commencing with Section
799) of Title 3 of Part 2 shall be tolled from the time of the
seizure until the final conclusion of the hearing, including any
associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) (1) As used in this section, a "special master" is an attorney
who is a member in good standing of the California State Bar and who
has been selected from a list of qualified attorneys that is
maintained by the State Bar particularly for the purposes of
conducting the searches described in this section. These attorneys
shall serve without compensation. A special master shall be
considered a public employee, and the governmental entity that caused
the search warrant to be issued shall be considered the employer of
the special master and the applicable public entity, for purposes of
Division 3.6 (commencing with Section 810) of Title 1 of the
Government Code, relating to claims and actions against public
entities and public employees. In selecting the special master, the
court shall make every reasonable effort to ensure that the person
selected has no relationship with any of the parties involved in the
pending matter. Any information obtained by the special master shall
be confidential and may not be divulged except in direct response to
inquiry by the court.
(2) In any case in which the magistrate determines that, after
reasonable efforts have been made to obtain a special master, a
special master is not available and would not be available within a
reasonable period of time, the magistrate may direct the party
seeking the order to conduct the search in the manner described in
this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted in a manner that permits the party serving
the warrant or his or her designee to accompany the special master as
he or she conducts his or her search. However, that party or his or
her designee may not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films, and papers
of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Chapter 4 (commencing with Section 2018.010)
of Title 4 of Part 4 of the Code of Civil Procedure shall be
sustained where there is probable cause to believe that the lawyer is
engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
(j) In addition to any other circumstance permitting a magistrate
to issue a warrant for a person or property in another county, when
the property or things to be seized consist of any item or constitute
any evidence that tends to show a violation of Section 530.5, the
magistrate may issue a warrant to search a person or property located
in another county if the person whose identifying information was
taken or used resides in the same county as the issuing court.
(k) This section shall not be construed to create a cause of
action against any foreign or California corporation, its officers,
employees, agents, or other specified persons for providing location
information.
SEC. 2. Section 1542.5 is added to the Penal Code, immediately
following Section 1542, to read:
1542.5. Notwithstanding any other law, with regards to a search
warrant issued upon the grounds specified in paragraph (14) of
subdivision (a) of Section 1524, the following shall apply:
(a) The law enforcement officer executing the warrant shall take
custody of any firearm or ammunition that is in the restrained person'
s custody and or control or possession,
that is owned by the restrained person, or that is discovered
pursuant to a consensual or other lawful search.
(b) (1) If the location to be searched during the execution of the
warrant is jointly occupied by the restrained person and one or more
other persons and a law enforcement officer executing the warrant
finds a firearm that is owned by a person other than the restrained
person, the firearm shall not be seized if both of the following
conditions are satisfied:
(A) The firearm is stored in a manner that the restrained person
does not have access to or control of the firearm.
(B) There is no evidence of unlawful possession of the firearm by
the owner of the firearm.
(2) If the location to be searched during the execution of the
warrant is jointly occupied by the restrained person and one or more
other persons and a gun safe is located that is owned by a person
other than the restrained person, the contents of the gun safe shall
not be searched except in the owner's presence, and with his or her
consent or with a valid search warrant for the gun safe.
SEC. 3. Division 3.2 (commencing with Section 18100) is added to
Title 2 of Part 6 of the Penal Code, to read:
DIVISION 3.2. Gun Violence Restraining Orders
CHAPTER 1. GENERAL
18100. A gun violence restraining order is an order, in writing,
signed by the court, prohibiting a named person from having
under in his or her custody and
or control, owning, purchasing, possessing, or
receiving any firearms or ammunition.
18105. (a) The Judicial Council shall prescribe the form of
the petitions and orders and any other
documents required by this division and shall promulgate forms and
instructions for applying for orders described in this division.
(b) Any form to petition for a gun violence restraining order
adopted pursuant to this section shall require the petitioner to
describe the number, types, and locations of any firearms and
ammunition presently known believed by
the petitioner to be possessed or controlled by the subject of the
petition.
18110. Prior to a hearing on the issuance, renewal, or
termination of an order under Chapter 3 (commencing with Section
18150) or Chapter 4 (commencing with Section 18170), the court shall
ensure that a search as described in subdivision (a) of Section 6306
of the Family Code is conducted. After issuing its ruling, the court
shall provide the advisement described in subdivision (c) of Section
6306 of the Family Code and shall keep information obtained from a
search conducted pursuant to this section confidential in accordance
with subdivision (d) of Section 6306 of the Family Code.
18115. (a) (1) (A) The court shall notify the Department of
Justice when a gun violence restraining order has been issued or
renewed under this division no later than one court day after issuing
or renewing the order.
(B) The court shall notify the Department of Justice when a gun
violence restraining order has been dissolved or terminated under
this division no later than five court days after dissolving or
terminating the order. Upon receipt of either of these notices, the
Department of Justice shall, within 15 days, delete any reference to
the gun violence restraining order from its records.
(2) The notices required to be submitted to the Department of
Justice pursuant to paragraph (1) shall be submitted in an electronic
format, in a manner prescribed by the department.
(b) (1) The court shall notify the district attorney in the
jurisdiction in which a gun violence restraining order was issued
when a gun violence order has been issued or renewed under this
division no later than one court day after issuing or renewing the
order.
(2) The court shall notify the district attorney in the
jurisdiction in which a gun violence restraining order was dissolved
or terminated when a gun violence restraining order has been
dissolved or terminated under this division, no later than five court
days after dissolving or terminating the order.
18120. (a) A person subject to a gun violence restraining order
issued pursuant to this division shall not have under
in his or her custody and
or control, own, purchase, possess, or receive a
firearm any firearms or ammunition while that
order is in effect.
(b) (1) Upon issuance of a gun violence restraining order issued
pursuant to this division, the court shall order the restrained
person to surrender to the local law enforcement agency any
firearm or all firearms and ammunition in the
restrained person's custody and or
control, or which the restrained person possesses or owns.
(2) The surrender ordered pursuant to paragraph (1) shall occur by
immediately surrendering the firearm or all
firearms and ammunition in a safe manner, upon request of any
law enforcement officer, to the control of the officer, after being
served with the protective restraining
order. A law enforcement officer serving a gun violence restraining
order that indicates that the restrained person possesses a
firearm any firearms or ammunition shall request
that the firearm or all firearms and
ammunition be immediately surrendered. Alternatively, if no request
is made by a law enforcement officer, the surrender shall occur
within 24 hours of being served with the order, by either
surrendering the firearm or all firearms and
ammunition in a safe manner to the control of the local law
enforcement agency, or by selling the firearm or
all firearms and ammunition to a licensed gun dealer, as
specified in Article 1 (commencing with Section 26700) and Article 2
(commencing with Section 26800) of Chapter 2 of Division 6 of Title 4
of Part 6 of the Penal Code. The law enforcement officer or licensed
gun dealer taking possession of the firearm
any firearms or ammunition pursuant to this subdivision shall
issue a receipt to the person surrendering the firearm or
firearms or ammunition or both at the time of
surrender. A person ordered to surrender a firearm or
all firearms and ammunition pursuant to this
subdivision shall, within 48 hours after being served with the order,
do both of the following:
(A) File, with the court that issued the gun violence restraining
order, the receipt showing the firearm or all
firearms and ammunition was have been
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
restraining order.
(B) File a copy of the receipt described in subparagraph (A) with
the law enforcement agency that served the gun violence restraining
order. Failure to timely file a copy of the receipt shall constitute
a violation of the protective restraining
order.
(c) (1) The firearm or Any firearms
or ammunition surrendered to a law enforcement officer or law
enforcement agency pursuant to this section shall be retained by the
law enforcement agency until the expiration of any gun violence
restraining order that has been issued against the restrained person.
Upon expiration of any order, the firearm or
any firearms or ammunition shall be returned to the restrained
person in accordance with the provisions of Chapter 2 (commencing
with Section 33850) of Division 11 of Title 4. A firearm or
Firearms or ammunition that is
are not claimed is are
subject to the requirements of Section 34000.
(2) A restrained person who owns a firearm
any firearms or ammunition that is are
in the custody of a law enforcement agency pursuant to this
section and who does not wish to have the firearm or firearms or
ammunition returned shall be is
entitled to sell or transfer title of the firearm
any firearms or ammunition to a licensed dealer provided
that the firearm is an or firearms or
ammunition are otherwise legal firearm
to own or possess and the restrained person
otherwise has right to title of the firearm.
firearm or firearms or ammunition .
(d) If the restrained person declines to relinquish possession of
any firearm firearms or ammunition
based on the assertion of the right against self-incrimination, as
provided by the Fifth Amendment to the United States Constitution and
Section 15 of Article I of the California Constitution, the court
may may, after prior notice to the
district attorney, grant use immunity for the act of
relinquishing the firearm firearms or
ammunition required under this section.
(e) If a person other than the restrained person claims title to
any firearm firearms or ammunition
surrendered pursuant to this section, and he or she is determined by
the law enforcement agency to be the lawful owner of the firearm
or firearms or ammunition, the firearm or firearms
or ammunition shall be returned to the him or her pursuant to Chapter
2 (commencing with Section 33850) of Division 11 of Title 4.
CHAPTER 2. EMERGENCY GUN VIOLENCE RESTRAINING ORDER
18125. (a) An emergency gun violence restraining order may be
issued only if a law enforcement officer asserts, and a judicial
officer finds, both of the following:
(1) That reasonable grounds have been asserted
there is reasonable cause to believe that the subject of
the petition poses an immediate and present danger of causing
personal injury to himself, herself, or another by having
under in his or her custody and
or control, owning, purchasing, possessing, or
receiving a firearm.
(2) That an emergency gun violence restraining order is necessary
to prevent personal injury to himself, herself, or another
person because less restrictive alternatives either have
been tried and found to be ineffective, or have been determined to be
inadequate or inappropriate for the circumstances of the subject of
the petition.
(b) An emergency gun violence restraining order issued pursuant to
this chapter shall prohibit the subject of the petition from having
under in his or her custody
and or control, owning, purchasing, possessing,
or receiving, or attempting to purchase or receive, a firearm or
ammunition, and shall expire 14 days from the date of the order.
18130. An emergency gun violence restraining order is valid only
if it is issued by a judicial officer after making the findings
required by Section 18125 and pursuant to a specific request by a law
enforcement officer.
18135. An emergency gun violence restraining order issued under
this chapter shall include all of the following:
(a) A statement of the grounds supporting the issuance of the
order.
(b) The date and time the order expires.
(c) The address of the superior court for the district or
county in which the restrained party resides.
(d) The following statement:
"To the restrained person: This order will last until the date and
time noted above. You are required to surrender all firearms and
ammunition that you own to a local law enforcement agency in
accordance with Section 18120 of the Penal Code and you may not have
under in your custody and
or control, own, purchase, possess, or receive,
or attempt to purchase or receive a firearm or ammunition, while this
order is in effect. However, a more permanent gun
violence restraining order may be obtained from the court. You may
seek the advice of an attorney as to any matter connected with the
order. The attorney should be consulted promptly so that the attorney
may assist you in any matter connected with the order."
18140. A law enforcement officer who requests an emergency gun
violence restraining order shall do all of the following:
(a) If the order is obtained orally, memorialize the order
in writing and sign it. of the court on the
form approved by the Judicial Council.
(b) Serve the order on the restrained person, if the restrained
person can reasonably be located.
(c) File a copy of the order with the court as soon as practicable
after issuance.
(d) Have the order entered into the computer database system for
protective and restraining orders maintained by the Department of
Justice.
18145. The presiding judge of the superior court in each county
shall designate at least one judge, commissioner, or referee to be
reasonably available to issue orally, by telephone or otherwise,
emergency gun violence restraining orders at all times whether or not
the court is in session.
CHAPTER 3. EX PARTE GUN VIOLENCE RESTRAINING ORDER
18150. (a) (1) An immediate family member, licenced
therapist, or licensed health care provider member
of a person or a law enforcement officer may file a
petition requesting that the court issue an ex parte gun violence
restraining order enjoining the subject of the petition from having
under in his or her custody
and or control, owning, purchasing, possessing,
or receiving a firearm or ammunition.
(2) For purposes of this subdivision, "immediate family member"
has the same meaning as in Section 422.4.
(b) A court may issue an ex parte gun violence restraining order
if the petition, supported by an affidavit made in writing and signed
by the petitioner under oath, or an oral statement taken pursuant to
paragraph (2) of subdivision (a) of Section 18155, and any
additional information provided to the court show good cause to
believe that both of the following are true:
(1) There is a substantial likelihood that the subject of the
petition will, in the near future, cause personal injury to himself,
herself, or another by having under in
his or her custody and or control,
owning, purchasing, possessing, or receiving a firearm as determined
by balancing evidence of the facts identified in paragraph
(1) of subdivision (b) of Section 18155 and considering any other
relevant evidence, including, but not limited to, evidence of the
facts identified in paragraph (2) of subdivision (b) of Section
18155. considering the factors listed in Section 18155
and any other relevant evidence.
(2) An ex parte gun violence restraining order is necessary to
prevent personal injury to himself, herself, or another
person because less restrictive alternatives either have
been tried and found to be ineffective, or have been
determined to be are
inadequate or inappropriate for the circumstances of
the subject of the petition.
(c) An affidavit supporting a petition for the issuance of an ex
parte gun violence restraining order shall set forth the facts
tending to establish the grounds of the petition, or the reason for
believing that they exist.
(d) An ex parte order under this chapter shall be issued or denied
on the same day that the petition is submitted to the court, unless
the petition is filed too late in the day to permit effective review,
in which case the order shall be issued or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
18155. (a) (1) The court, before issuing an ex parte gun violence
restraining order, may examine on oath, the petitioner and any
witness the petitioner may produce and shall take his or her
affidavit in writing, and cause the affidavit to be signed by the
parties making them.
(2) In lieu of a written affidavit required by paragraph (1), the
court may take an oral statement under oath using the procedures
prescribed in Section 1526.
(b) (1) In determining whether grounds for a gun violence
restraining order exist, the court shall consider all evidence of the
following:
(A) A recent threat of violence or act of violence by the subject
of the petition directed toward another.
(B) A recent threat of violence or act of violence by the subject
of the petition directed toward himself or herself.
(C) A violation of an emergency protective order issued pursuant
to Section 646.91 or Part 3 (commencing with Section 6240) of
Division 10 of the Family Code that is in effect at the time the
court is considering the petition.
(D) A recent violation of an unexpired protective order issued
pursuant to Part 4 (commencing with Section 6300) of Division 10 of
the Family Code, Section 136.2, Section 527.6 of the Code of Civil
Procedure, or Section 213.5 or 15657.03 of the Welfare and
Institutions Code.
(E) A conviction for any offense listed in Section 29805.
(F) A pattern of violent acts or violent threats within the past
12 months, including, but not limited to, threats of violence or acts
of violence by the subject of the petition directed toward himself,
herself, or another.
(2) In determining whether grounds for a gun violence restraining
order exist, the court may consider any other relevant
evidence, evidence of an increased risk for violence,
including, but not limited to, evidence of any of the
following:
(A) The reckless use, display, or brandishing of a firearm by the
subject of the petition.
(B) The history of use, attempted use, or threatened use of
physical force by the subject of the petition against another person.
(C) Any prior arrest of the subject of the petition for a felony
offense.
(D) Any history of a violation by the subject of the petition of
an emergency protective order issued pursuant to Section 646.91 or
Part 3 (commencing with Section 6240) of Division 10 of the Family
Code.
(E) Any history of a violation by the subject of the petition of a
protective order issued pursuant to Part 4 (commencing with Section
6300) of Division 10 of the Family Code, Section 136.2, Section 527.6
of the Code of Civil Procedure, or Section 213.5 or 15657.03 of the
Welfare and Institutions Code.
(F) Evidence of recent or ongoing abuse of controlled substances
or alcohol by the subject of the petition.
(G) Evidence of recent acquisition of firearms or other deadly
weapons.
(3) For the purposes of this subdivision, "recent" means within
the six months prior to the date the petition was filed.
(c) If the court determines that there is good cause to issue an
ex parte gun violence restraining order, it shall issue an ex parte
gun violence restraining order that prohibits the subject of the
petition from having under in his or
her custody and or control, owning,
purchasing, possessing, or receiving, or attempting to purchase or
receive, a firearm or ammunition, and expires no later than
14 21 days from the date of the order.
18160. (a) An ex parte gun violence restraining order issued
under this chapter shall include all of the following:
(1) A statement of the grounds supporting the issuance of the
order.
(2) The date and time the order expires.
(3) The address of the superior court for the district or
county in which the restrained party resides. in
which any responsive pleading should be filed.
(4) The date and time of the scheduled hearing.
(5) The following statement:
"To the restrained person: This order is valid until the
expiration date and time noted above. You are required to surrender
all firearms and ammunition that you own to a local law enforcement
agency in accordance with Section 18120 of the Penal Code and you may
not have under in your custody
and or control, own, purchase, possess,
or receive, or attempt to purchase or receive a firearm or
ammunition, while this order is in effect. A hearing will be held on
the date and at the time noted above to determine if a more permanent
gun violence restraining order should be issued. Failure to appear
at that hearing may result in a court making an order against you
that is valid for a year. You may seek the advice of an attorney as
to any matter connected with the order. The attorney should be
consulted promptly so that the attorney may assist you in any matter
connected with the order."
(b) (1) An ex parte gun violence restraining order shall be served
on the restrained person by a law enforcement officer, if the
restrained person can reasonably be located.
(2) When serving a gun violence restraining order, the law
enforcement officer shall inform the restrained person of the hearing
scheduled pursuant to Section 18165.
18165. Within 21 days after the date on the order, before the
court that issued the order or another court in the same
jurisdiction, the court shall hold a hearing pursuant to Section
18175 to determine if a gun violence restraining order should be
issued under Chapter 4 (commencing with Section 18170).
CHAPTER 4. GUN VIOLENCE RESTRAINING ORDER ISSUED AFTER NOTICE
AND HEARING
18170. (a) An immediate family member, licensed
therapist, or licensed health care provider member
of a person or a law enforcement officer may request
that a court, after notice and a hearing, issue a gun violence
restraining order enjoining the subject of the petition from having
under in his or her custody
and or control, owning, purchasing, possessing,
or receiving a firearm or ammunition for a period of one year.
(b) For purposes of this subdivision, "immediate family member"
has the same meaning as in Section 422.4.
18175. (a) In determining whether to issue a gun violence
restraining order under this chapter, the court shall consider
evidence of the facts identified in paragraph (1) of subdivision (b)
of Section 18155 and may consider any other relevant
evidence, evidence of an increased risk for violence,
including, but not limited to, evidence of the facts identified
in paragraph (2) of subdivision (b) of Section 18155.
(b) At the hearing, the petitioner shall have the burden of
proving, by clear and convincing evidence, that both of the following
are true:
(1) There is a substantial likelihood that the subject of the
petition, or a person subject to an ex parte gun violence restraining
order, as applicable, will cause personal injury to himself,
herself, or another by having under in
his or her custody and or control,
owning, purchasing, possessing, or receiving a firearm as determined
by balancing evidence of the facts identified in paragraph
(1) of subdivision (b) of Section 18155 and considering any other
relevant evidence, including, but not limited to, evidence, of the
facts identified in paragraph (2) of subdivision (b) of Section
18155. considering the factors listed in Section 18155
and any other relevant evidence.
(2) A gun violence restraining order is necessary to prevent
personal injury to the subject of the petition, or the person subject
to an ex parte gun violence restraining order, as applicable, or
another person because less restrictive
alternatives either have been tried and found to be ineffective, or
have been determined to be are
inadequate or inappropriate for the circumstances of the subject of
the petition, or the person subject to an ex parte gun violence
restraining order, as applicable.
(c) (1) If there is clear and convincing evidence to issue a gun
violence restraining order, the court shall issue a gun violence
restraining order that prohibits the subject of the petition from
having under in his or her custody
and or control, owning, purchasing,
possessing, or receiving, or attempting to purchase or receive, a
firearm or ammunition.
(2) If the court finds that there is not clear and convincing
evidence to support the issuance of a gun violence restraining order,
the court shall dissolve any emergency or ex parte gun violence
restraining order then in effect.
(d) The gun violence restraining order issued under this chapter
shall have a duration of one year, subject to termination by further
order of the court at a hearing held pursuant to Section 18185 and
renewal by further order of the court pursuant to Section 18190.
(e) (1) (A) The court shall notify the Department of Justice of
the gun violence restraining order issued under this chapter no later
than one court day after issuing the order.
(B) The notice required to be submitted to the Department of
Justice pursuant to this subdivision shall be submitted in an
electronic format, in a manner prescribed by the department.
(2) The court shall notify the district attorney in the
jurisdiction in which the gun violence restraining order was issued
that a gun violence restraining order issued under this chapter was
issued no later than one court day after issuing the order.
18180. (a) A gun violence restraining order issued pursuant to
this chapter shall include all of the following:
(1) A statement of the grounds supporting the issuance of the
order.
(2) The date and time the order expires.
(3) The address of the superior court for the district or
county in which the restrained party resides.
(4) The following statement:
"To the restrained person: This order will last until the date and
time noted above. If you have not done so already, you must
surrender all firearms and ammunition that you own to a local law
enforcement agency in accordance with Section 18120 of the Penal
Code. You may not have under in your
custody and or control, own, purchase,
possess, or receive, or attempt to purchase or receive a firearm or
ammunition, while this order is in effect. Pursuant to Section 18185,
you have the right to request one hearing to terminate this order at
any time during its effective period. You may seek the advice of an
attorney as to any matter connected with the order."
(b) When the court issues a gun violence restraining order under
this chapter, the court shall inform the restrained person that he or
she is entitled to one hearing to request a termination of the
order, pursuant to Section 18185, and shall provide the restrained
person with a form to request a hearing.
18185. (a) A person subject to a gun violence restraining order
issued under this chapter may submit one written request at any time
during the effective period of the order for a hearing to terminate
the order.
(b) If the court finds after the hearing that there is no longer
clear and convincing evidence to believe that paragraphs (1) and (2)
of subdivision (b) of Section 18175 are true, the court shall
terminate the order.
18190. (a) (1) An immediate family member, licensed
therapist, or licensed health care provider member of
a restrained person or a law enforcement officer may request a
renewal of a gun violence restraining order at any time within the
three months before the expiration of a gun violence restraining
order.
(2) For purposes of this subdivision, "immediate family member"
has the same meaning as in Section 422.4.
(b) A court may, after notice and a hearing, renew a gun violence
restraining order issued under this chapter if the petitioner proves,
by clear and convincing evidence, that paragraphs (1) and (2) of
subdivision (b) of Section 18175 continue to be true.
(c) In determining whether to renew a gun violence restraining
order issued under this chapter, the court shall consider evidence of
the facts identified in paragraph (1) of subdivision (b) of Section
18155 and any other relevant evidence,
evidence of an increased risk for violence, including, but not
limited to, evidence of any of the facts identified in paragraph (2)
of subdivision (b) of Section 18155.
(d) At the hearing, the petitioner shall have the burden of
proving, by clear and convincing evidence, that paragraphs (1) and
(2) of subdivision (b) of Section 18175 are true.
(e) If the renewal petition is supported by clear and convincing
evidence, the court shall renew the gun violence restraining order
issued under this chapter.
(f) The renewal of a gun violence restraining order issued
pursuant to this section shall have a duration of one year, subject
to termination by further order of the court at a hearing held
pursuant to Section 18185 and further renewal by further order of the
court pursuant to this section.
(g) A gun violence restraining order renewed pursuant to this
section shall include the information identified in subdivision (a)
of Section 18180.
18195. Any hearing held pursuant to this chapter may be continued
upon a showing of good cause. Any existing order issued pursuant to
this division shall remain in full force and effect during the period
of continuance.
CHAPTER 5. OFFENSES
18200. Every person who files a petition for an ex parte gun
violence restraining order pursuant to Chapter 3 (commencing with
Section 18150) or a gun violence restraining order issued after
notice and a hearing pursuant to Chapter 4 (commencing with Section
18170), knowing the information in the petition to be false or with
the intent to harass, is guilty of a misdemeanor.
18205. Every person who violates an emergency gun violence
restraining order issued pursuant to Chapter 2 (commencing with
Section 18125), an ex parte gun violence restraining order
issued pursuant to Chapter 3 (commencing with Section 18150)
18150), or a gun violence restraining order
issued after notice and a hearing issued pursuant to Chapter 4
(commencing with Section 18170), is guilty of a misdemeanor and shall
be prohibited from having under in his
or her custody and or control, owning,
purchasing, possessing, or receiving, or attempting to purchase or
receive, a firearm or ammunition for a five-year period, to commence
upon the expiration of the existing gun violence restraining order.
SEC. 4. Section 18250 of the Penal Code is amended to read:
18250. If any of the following persons is at the scene of a
domestic violence incident involving a threat to human life or a
physical assault, is serving a protective order as defined in Section
6218 of the Family Code, is serving a gun violence restraining order
issued pursuant to Division 3.2 (commencing with Section 18100),
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:
(a) A sheriff, undersheriff, deputy sheriff, marshal, deputy
marshal, or police officer of a city, as defined in subdivision (a)
of Section 830.1.
(b) A peace officer of the Department of the California Highway
Patrol, as defined in subdivision (a) of Section 830.2.
(c) A member of the University of California Police Department, as
defined in subdivision (b) of Section 830.2.
(d) An officer listed in Section 830.6, while acting in the course
and scope of the officer's employment as a peace officer.
(e) A member of a California State University Police Department,
as defined in subdivision (c) of Section 830.2.
(f) A peace officer of the Department of Parks and Recreation, as
defined in subdivision (f) of Section 830.2.
(g) A peace officer, as defined in subdivision (d) of Section
830.31.
(h) A peace officer, as defined in subdivisions (a) and (b) of
Section 830.32.
(i) A peace officer, as defined in Section 830.5.
(j) A sworn member of the Department of Justice who is a peace
officer, as defined in Section 830.1.
SEC. 5. Section 8105 of the Welfare and Institutions Code is
amended to read:
8105. (a) The Department of Justice shall request each public and
private mental hospital, sanitarium, and institution to submit to
the department information the department deems necessary to identify
those persons who are subject to the prohibition specified by
subdivision (a) of Section 8100, in order to carry out its duties in
relation to firearms, destructive devices, and explosives.
(b) Upon request of the Department of Justice pursuant to
subdivision (a), each public and private mental hospital, sanitarium,
and institution shall submit to the department information the
department deems necessary to identify those persons who are subject
to the prohibition specified by subdivision (a) of Section 8100, in
order to carry out its duties in relation to firearms, destructive
devices, and explosives.
(c) A licensed psychotherapist shall report to a local law
enforcement agency, within 24 hours, in a manner prescribed by the
Department of Justice, the identity of a person subject to the
prohibition specified by subdivision (b) of Section 8100. Upon
receipt of the report, the local law enforcement agency, on a form
prescribed by the Department of Justice, shall notify the department
electronically, within 24 hours, in a manner prescribed by the
department, of the person who is subject to the prohibition specified
by subdivision (b) of Section 8100.
(d) All information provided to the Department of Justice pursuant
to this section shall be kept confidential, separate, and apart from
all other records maintained by the department. The information
provided to the Department of Justice pursuant to this section shall
be used only for any of the following purposes:
(1) By the department to determine eligibility of a person to
acquire, carry, or possess firearms, destructive devices, or
explosives.
(2) For the purposes of the court proceedings described in
subdivision (b) of Section 8100, to determine the eligibility of the
person who is bringing the petition pursuant to paragraph (3) of
subdivision (b) of Section 8100.
(3) To determine the eligibility of a person to acquire, carry, or
possess firearms, destructive devices, or explosives who is the
subject of a criminal investigation, or who is the subject of a
petition for the issuance of a gun violence restraining order issued
pursuant to Division 3.2 (commencing with Section 18100) of Title 2
of Part 6 of the Penal Code, if a part of the investigation involves
the acquisition, carrying, or possession of firearms, explosives, or
destructive devices by that person.
(e) Reports shall not be required or requested under this section
if the same person has been previously reported pursuant to Section
8103 or 8104.
SEC. 6. The Legislature finds and declares that Section 3 of this
act, which adds Section 18110 of to the
Penal Code, imposes a limitation on the public's right of access to
the meetings of public bodies or the writings of public officials and
agencies within the meaning of Section 3 of Article I of the
California Constitution. Pursuant to that constitutional provision,
the Legislature makes the following findings to demonstrate the
interest protected by this limitation and the need for protecting
that interest:
In order to protect the privacy rights of a person subject to a
search pursuant to Section 18110 of the Penal Code.
SEC. 7. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.