BILL NUMBER: AB 1014 AMENDED
BILL TEXT
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, and Ting Ting, and
Wieckowski )
FEBRUARY 22, 2013
An act to amend Section Sections 1524 and
18250 of, and 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 establish a procedure to obtain a gun violence
restraining order and, when applicable, a firearm seizure warrant,
when a person poses a significant risk of personal injury to himself
or herself or others by possessing a firearm. The bill would
establish the requirements for obtaining a gun violence restraining
order and a firearm seizure warrant and would require, not later than
14 days after the execution of a gun violence restraining order,
and, when applicable, a firearm seizure warrant, a hearing to
determine whether a person who is subject to the order may, among
other things, own or possess a firearm, or whether the seized firearm
should be returned.
If it is determined that the person poses a significant risk of
personal injury to himself or herself or others by possessing
firearms, this bill would require law enforcement to retain the
firearm for a period not to exceed one year, would make ownership or
possession, the purchase or receipt, or attempted purchase or receipt
of a firearm by that person a misdemeanor for a period up to one
year, and would require the court to notify the Department of
Justice, as specified. By creating a new crime and by requiring new
duties of local law enforcement, this bill would impose a
state-mandated local program.
This bill would authorize a law enforcement agency to request a
renewal of a gun violence restraining order if the agency has
probable cause to believe that a person subject to that restraining
order continues to pose a significant risk of personal injury to
himself or herself or others by possessing a firearm. This bill would
additionally authorize a judge, upon his or her own motion, or upon
request of another person, to issue a renewal of a gun violence
restraining order, as specified.
This bill would 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 his or her custody and
control, owning, purchasing, possessing, or receiving, or attempting
to purchase or receive a firearm or ammunition, as specified. The
bill would require the ex parte order to expire no later than 14 days
after the date on the order and 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 permit
the restrained person to request a hearing on the order, and, if it
is found at the hearing that the order is not supported by good
cause, would require the court to dissolve the order.
The bill would also authorize a court to issue a gun violence
restraining order prohibiting the subject of the petition from having
under his or her custody and control, owning, purchasing,
possessing, or receiving, or attempting to purchase or receive a
firearm or ammunition for a period of one year when there is clear
and convincing evidence to believe that the subject of the petition
poses a significant risk of personal injury to himself, herself, or
another by having under his or her custody and control, owning,
purchasing, possessing, or receiving a firearm. The bill would
authorized 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, upon service of the ex parte gun violence
restraining order or upon the issuance of a gun violence restraining
order issued after notice and a hearing, the restrained person to
surrender to the local law enforcement agency any firearm or
ammunition in his or her custody and control, or which he or she
possesses or owns. The bill would require the local law enforcement
agency to retain custody of the firearm 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 an ex parte gun violence
restraining order has been issued or dissolved and when a gun
violence restraining order issued after notice and a hearing has been
issued, renewed, or terminated.
The bill would make it a misdemeanor to file a petition for a gun
violence restraining order, 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 his
or her custody and 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 that is in the custody or control of, or is owned or
possessed by, a person who is the subject of a gun violence
restraining order and who is presently known to have in his or her
custody and control or possession, or to own a firearm or firearms or
ammunition. 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 in plain sight or 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 multiple parties.
(2)
( 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.
(3)
(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 the 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.
(4)
(5) 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 that is in the custody or control of, or is
owned or possessed by, 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 and who is
presently known to have in his or her custody and control or
possession, or to own a firearm or firearms or ammunition.
(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 in plain sight or 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 multiple parties and a firearm, which
is determined to be owned by a person other than the person who is
the subject of a gun violence restraining order, is found, the
firearm shall not be seized if both of the following conditions are
satisfied:
(A) The firearm is stored in a manner that the person subject to a
gun violence restraining order 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 multiple parties and a gun safe is
located, which is determined to be owned by a person other than the
person subject to a gun violence restraining order, 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.
SECTION 1. 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) A gun violence
restraining order is an order, in writing, in the name of
the people, signed by a magistrate, prohibiting a named
person from having under his or her custody or
and control, owning, purchasing, possessing, or receiving any
firearms for a period of up to one year. or
ammunition.
(b) A firearm seizure warrant is an order, in writing, in the name
of the people, signed by a magistrate, regarding a person who is
subject to a gun violence restraining order and who is known to own
or possess one or more firearms, which is directed to a peace
officer, commanding him or her to seize any firearms in the
possession of the named person and to bring the unloaded firearm
before the magistrate.
18101. The Judicial Council shall prescribe the form of the
orders and any other documents required by this division and shall
promulgate forms and instructions for applying for orders described
in this division.
CHAPTER 2. EX PARTE GUN VIOLENCE RESTRAINING
ORDER
18101. 18102. (a) Any
person may submit an application to the court, on a form designed by
the Judicial Council, setting forth the facts and circumstances
necessitating that a gun violence restraining order be issued.
A court may issue an ex parte gun violence
restraining order shall be issued to prohibit a named person
from possessing a firearm if an affidavit, made in
writing and signed by the applicant
petitioner under oath, or an oral statement taken pursuant
to paragraph (2) of subdivision (a) of Section 18103, and any
additional information provided to the court demonstrates,
to the satisfaction of the court, on a showing of good
cause that the named person subject of
the petition poses a significant risk of personal injury to
himself or herself or others himself,
herself, or another by possessing firearms.
having under his or her custody and control, owning, purchasing,
possessing, or receiving a firearm as determined by balancing the
factors identified in subdivision (b) of Section 1803 and, if the
court elects to consider them, the factors identified in subdivision
(c) of Section 18103.
(b) A firearms seizure warrant may not be issued but upon probable
cause, supported by an affidavit, naming or describing with
reasonable specificity the facts and circumstances justifying the
order and listing any firearm or firearms to be seized pursuant to
the order.
(c) A firearm described in the firearms seizure warrant may be
taken from any place, or from any person in whose possession the
firearm may be.
(b) 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.
(c) 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.
18102. 18103. (a) (1)
The magistrate, before issuing the
an ex parte gun violence restraining order, may examine on
oath, the person seeking the order petitioner
and any witnesses the person produces,
witness the petitioner may produce and shall take his or her
affidavit or affidavits in writing, and cause the
affidavit or affidavits to be subscribed
signed by the parties making them.
(2) In lieu of a written affidavit
required by paragraph (1), the magistrate may take an oral
statement under oath using the procedures prescribed in Section
1526.
(b) In determining whether grounds for a gun violence restraining
order exist, the magistrate shall consider all evidence of
the following:
(1) A recent threat of violence or
act of violence by the named person subject
of the petition directed toward others.
another.
(2) A recent threat of violence or
act of violence by the named person subject
of the petition directed toward himself or herself.
(3) A recent violation of an unexpired
emergency protective order issued pursuant to
Section 646.91 or Part 3 (commencing with Section 6240) of Division
10 of the Family Code.
(4) A recent violation of a
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.
(5) A conviction for any offense listed in Section 29805.
(c) In determining whether grounds for a gun violence restraining
order exist, the magistrate may consider any evidence of
the following:
(1) The reckless use, display, or brandishing of a firearm by the
named person. subject of the petition.
(2) The history of use, attempted use, or threatened use of
physical force by the named person subject of
the petition against other persons.
another person.
(3) Any prior arrest of the named person
subject of the petition for a felony offense.
(4) Any history of a violation by the named person
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.
(5) Any history of a violation by the named person
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.
(6) Evidence of recent or ongoing abuse of controlled substances
or alcohol by the named person. subject of
the petition.
(7) Evidence of recent acquisition of firearms or other deadly
weapons.
(d) The affidavit or affidavits shall set forth the facts tending
to establish the grounds of the application, or probable cause for
believing that they exist.
(e) In lieu of the written affidavit required in subdivision (a),
the magistrate may take an oral statement under oath using the
procedures prescribed in Section 1526.
(8) The recency of any of the acts identified in subdivision (b)
and this subdivision.
(d) If the magistrate determines that there is good cause to issue
an ex parte gun violence restraining order, he or she shall issue an
ex parte gun violence restraining order that prohibits the subject
of the petition from having under his or her custody and control,
owning, purchasing, possessing, or receiving, or attempting to
purchase or receive, a firearm or ammunition, and expires no later
than 14 days from the date of the order.
(e) (1) (A) The court shall notify the Department of Justice of
the ex parte gun violence restraining order no later than 24 hours
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 ex parte gun violence restraining order was
issued of the ex parte gun violence restraining order no later than
24 hours after issuing the order.
18103. If the magistrate is satisfied of the existence of the
grounds of the application, or that there is probable cause to
believe their existence, he or she shall issue a gun violence
restraining order. If there is also probable cause to believe that
the person has custody or control of or owns a firearm or firearms,
the magistrate shall also issue a firearm seizure warrant, signed by
the magistrate with his or her name of office, to a peace officer in
his or her county, commanding the peace officer to seize any firearms
specified and to retain the firearm or firearms subject to the order
of the court, as provided in Section 18104.
18104. (a) (1) A
An ex parte gun violence restraining order
issued under this chapter shall include all of the following:
(A)
(1) A statement of the grounds asserted for
supporting the issuance of the order.
(B)
(2) The date and time the order expires.
(C)
(3) The address of the superior court for the district
or county in which the restrained party resides.
(D)
(4) The following statement, which shall be
printed in English and Spanish: statement:
"To the restrained person: This order will last until the date and
time noted above. You may not have under your custody and
control, own, possess, purchase,
possess, or receive, or attempt to purchase or receive a
firearm or ammunition, while this order is in effect.
You are entitled to submit one written request for a hearing
at any time during the effective period of the order for an order
permitting you to own, possess, purchase, or receive a firearm.
You have the right to a hearing, scheduled by the
court, within 14 days following the issuance of this order to
determine if you may have under your custody and control, own,
possess, purchase, or receive a firearm or ammunition. 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."
(2) A firearm seizure warrant shall be substantially in the
following form:
County of ____.
The people of the State of California to any peace officer in the
County of ____.
Proof, by affidavit, having been this day made before me (naming
every person whose affidavit was taken), that there is probable cause
to believe that (person whose firearms are to be seized) poses a
significant risk of personal injury to himself or herself or others
and has possession of one or more firearms, you are therefore
commanded, in the daytime (or at any time of the day or night, as the
case may be, according to Section 1533 of the Penal Code), to search
the person and property of the named person where firearms may be
stored and to seize all firearms in the possession of the named
person and to bring the firearms to a safe and secure location under
the control of the local law enforcement agency.
Given under my hand, and dated this ____ day of (year).
_______, Judge of the (applicable) Court.
(b) When an officer takes property under a firearms seizure
warrant, he or she shall give a receipt for the property taken,
specifying it in detail, to the person from whom it was taken. In the
absence of a person, the officer shall leave the receipt in the
place where he or she found the property.
(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.
(c)
(2) When serving a gun violence restraining order, the
law enforcement officer shall inform the restrained
person that he or she may submit one written request
for is entitled to a hearing, pursuant to
Section 18107, at any time during the effective period of
the order 18105, and provide the restrained
person with a form to request a hearing.
(d) All firearms seized pursuant to a firearms seizure warrant
shall be retained by the officer or the law enforcement agency in
custody as provided in Chapter
2 (commencing with Section 33850) of Division 11 of
Title 4 of Part 6, subject to the order of the court that issued the
warrant or to any other court in which an offense in respect to the
firearm is triable.
(c) (1) Upon being served with an ex parte gun violence
restraining order, the restrained person shall surrender to the local
law enforcement agency any firearm or ammunition in the restrained
person's custody and control, or which the restrained person
possesses or owns. When taking custody of a firearm or ammunition
pursuant to this subdivision, the local law enforcement agency shall
comply with the requirements of Section 33800.
(2) (A) The firearm or firearms or ammunition surrendered pursuant
to this subdivision shall be retained by the law enforcement agency
until the expiration of the ex parte gun violence restraining order.
Upon expiration of the order, the firearm or 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 ammunition that is not claimed shall be
subject to the provisions of Section 34000.
(B) A restrained person who owns a firearm or ammunition that is
in the custody of a law enforcement agency pursuant to this
subdivision, if the firearm is an otherwise legal firearm, and the
restrained person otherwise has right to title of the firearm, shall
be entitled to sell or transfer title of the firearm to a licensed
dealer.
(3) If a person other than the restrained person claims title to
any firearms or ammunition surrendered pursuant to this subdivision,
the firearm or firearms or ammunition shall be returned to the lawful
owner pursuant to Chapter 2 (commencing with Section 33850) of
Division 11 of Title 4.
18105. (a) If the location to be searched during the execution of
a firearm seizure warrant is jointly occupied by multiple parties
and a firearm is located during the execution of the seizure warrant,
and it is determined that the firearm is owned by a person other
than the person named in the firearm seizure warrant, the firearm
shall not be seized if all of the following conditions are satisfied:
(1) The firearm is stored in a manner that the person named in the
firearm seizure warrant does not have access to or control of the
firearm.
(2) There is no evidence of unlawful possession of the firearm by
the owner.
(b) If the location to be searched during the execution of a
firearm seizure warrant is jointly occupied by multiple parties and a
gun safe is located, and it is determined that the gun safe is owned
by a person other than the person named in the firearm seizure
warrant, the contents of the gun safe shall not be searched except in
the owner's presence, or with his or her consent, or unless a valid
search warrant has been obtained.
18106. 18105. (a) Except
as provided in subdivision (e), not later than 14 days after the
execution of a gun violence restraining order and, when applicable, a
firearm seizure warrant, (1) A
restrained person is entitled, upon his or her request, to a hearing
to determine the validity of the order within 14 days after the date
on the order before the court that issued the order
and, when applicable, the seizure warrant, or another court
in that same jurisdiction, shall hold a hearing to determine
whether the person who is the subject of the order may have under
his or her custody or control, own, purchase, possess, or receive
firearms and, when applicable, whether any seized firearms should be
returned to the person named in the warrant.
jurisdiction.
(2) If a restrained person does not
request a hearing, the order shall expire on the date and time listed
on the order.
(b) At the hearing, the state petitioner
shall have the burden of proving, by clear and
convincing evidence, proving that there is good cause
to believe that the restrained person poses a
significant risk of personal injury to himself, herself, or
others another by owning or possessing
the having under his or her custody and control,
owning, purchasing, possessing, or receiving a firearm.
(c) If the named person it is found
at the hearing to pose that there is good
cause to believe that the restrained person poses a significant
risk of personal injury to himself, herself, or others
another by owning or possessing a
firearm, the following shall apply: having under his
or her custody and control, owning, purchasing, possessing, or
receiving a firearm, the ex parte gun violence order shall stand.
(1) The firearm or firearms seized pursuant to the warrant shall
be retained by the law enforcement agency for a period not to exceed
one year or until ownership of the firearm is transferred to a
licensed firearm dealer.
(2) The named person shall be prohibited from owning or
possessing, purchasing or receiving, or attempting to purchase or
receive a firearm for a period not to exceed one year. A violation of
this paragraph is a misdemeanor.
(3) The court shall notify the Department of Justice of the gun
violence restraining order no later than two court days after issuing
the order. The court shall also notify the department of any order
restoring the person's ability to own or possess firearms no later
than two court days after issuing the order to restore the person's
right to own or possess any type of firearms that may be lawfully
owned and possessed.
(d) If the court finds that the state
petitioner has not met the required standard of proof,
the firearm or firearms seized pursuant to the warrant shall be
returned to the named person pursuant to Chapter 2 (commencing with
Section 33850) of Division 11. proven that there is
good cause supporting the order, the court shall dissolve the order.
(e) If the person named in the warrant is a person who is
prohibited by law from owning or possessing a firearm for a period of
one year or more by another provision of state or federal law, a
hearing pursuant to subdivision (a) is not required and the court
shall issue an order to hold the firearm until either the person is
no longer prohibited from owning a firearm or the person sells or
transfers ownership of the firearm to a licensed firearm dealer.
(f) Any notice or report required
(e) (1) (A) If the order has been dissolved pursuant to
subdivision (d), the court shall submit a notice of that fact to the
Department of Justice. Upon receipt of the notice, the Department of
Justice shall, within 15 days, delete any reference to the ex parte
gun violence restraining order from its records.
(B) The notice required to be
submitted to the Department of Justice pursuant to this
section subdivision shall be submitted in an
electronic format, in a manner prescribed by the department.
(g) If any person claims title to any firearms seized pursuant to
the warrant, the firearm or firearms shall be returned to the lawful
owner pursuant to Chapter 2 (commencing with Section 33850) of
Division 11 of Title 4.
(2) If the order has been dissolved pursuant to subdivision (d),
the court shall notify the district attorney in the jurisdiction in
which the ex parte gun violence restraining order of that fact.
CHAPTER 3. GUN VIOLENCE RESTRAINING ORDER
ISSUED AFTER NOTICE AND HEARING
18106. The court may issue a gun violence restraining order after
notice and a hearing when there is clear and convincing evidence
that the subject of the petition poses a significant risk of personal
injury to himself, herself, or another by having under his or her
custody and control, owning, purchasing, possessing, or receiving a
firearm as determined by balancing evidence of the facts identified
in subdivision (b) of Section 18103 and, if the court elects to
consider them, evidence of any of the facts identified in subdivision
(c) of Section 18103.
18107. (a) In determining whether to issue a gun violence
restraining order under this chapter, the court shall consider
evidence of the facts identified in subdivision (b) of Section 18103
and may consider evidence of any of the facts identified in
subdivision (c) of Section 18103.
(b) At the hearing, the petitioner shall have the burden of
proving that there is clear and convincing evidence to believe that
the subject of the petition poses a significant risk of personal
injury to himself, herself, or another by having under his or her
custody and control, owning, purchasing, possessing, or receiving a
firearm.
(c) If the petition is supported by clear and convincing evidence,
the court shall issue a gun violence restraining order that
prohibits the subject of the petition from having under his or her
custody and control, owning, purchasing, possessing, or receiving, or
attempting to purchase or receive, a firearm or ammunition.
(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 18107 and
renewal by further order of the court pursuant to Section 18109.
(e) (1) (A) The court shall notify the Department of Justice of
the gun violence restraining order issued under this chapter no later
than 24 hours 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 24 hours after issuing the order.
18108. (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. You may not have under your custody and 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 18109, 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 18109, and shall provide the restrained
person with a form to request a hearing.
(c) (1) Upon issuance of a gun violence restraining order issued
under this chapter, the restrained person shall surrender to the
local law enforcement agency any firearm or ammunition in the
restrained person's custody and control, or which the restrained
person possesses or owns. When taking custody of a firearm or
ammunition pursuant to this subdivision, the local law enforcement
agency shall comply with the requirements of Section 33800.
(2) (A) The firearm or firearms or ammunition surrendered pursuant
to this subdivision shall be retained by the law enforcement agency
until the expiration of the gun violence restraining order. Upon
expiration of the order, the firearm or 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 ammunition that is not claimed shall be
subject to the provisions of Section 34000.
(B) A restrained person who owns a firearm or ammunition that is
in the custody of a law enforcement agency pursuant to this
subdivision, if the firearm is an otherwise legal firearm, and the
restrained person otherwise has right to title of the firearm, shall
be entitled to sell or transfer title of the firearm to a licensed
dealer.
(3) If a person other than the restrained person claims title to
any firearms or ammunition surrendered pursuant to this subdivision,
the firearm or firearms or ammunition shall be returned to the lawful
owner pursuant to Chapter 2 (commencing with Section 33850) of
Division 11 of Title 4.
18107. 18109. (a) A person
described in subdivision (c) of Section 18106, may submit one written
request at any time during the effective period of the order for a
hearing for an order permitting the person to own, possess, purchase,
or receive a firearm.
(b) The Judicial Council shall design and furnish the form, in
both English and Spanish, to be used to request a hearing under this
section. Each superior court shall make available the form printed
and distributed by the Judicial Council.
(b) If the court finds after the hearing that there is no longer
clear and convincing evidence to believe that the restrained person
poses a significant risk of personal injury to himself, herself, or
another by having under his or her custody and control, owning,
purchasing, possessing, or receiving a firearm, the court shall
terminate the order.
(c) (1) (A) If the order has been terminated pursuant to
subdivision (b), the court shall submit a notice of that fact to the
Department of Justice. Upon receipt of the notice, the Department of
Justice shall, within 15 days, delete any reference to the gun
violence restraining order from its records.
(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) If the order has been terminated pursuant to subdivision (b),
the court shall notify the district attorney in the jurisdiction in
which the gun violence restraining order of that fact.
18108. (a) (1) When a law enforcement agency has probable cause
to believe that a person subject to a gun violence restraining order,
as defined in Section 18100, continues to pose a significant risk of
personal injury to himself or herself or others by possessing a
firearm, the agency may initiate a request for a renewal of the
order, on a form designed by the Judicial Council, setting forth the
facts and circumstances necessitating the request. A hearing shall be
held in a superior court to determine if a request for renewal of
the order shall be issued.
(2) The person named in the restraining order shall be given
written notice and an opportunity to be heard on the matter.
(b) A judge may, upon his or her own motion, or upon request of
another person, issue a renewal of a gun violence restraining order,
as defined in Section 18100, when there is probable cause to believe
that a person subject to the order continues to pose a significant
risk of personal injury to himself or herself or others by possessing
a firearm, after written notice to the person named in the
restraining order and after giving him or her an opportunity for a
hearing.
18109. Except as otherwise provided, the provisions of Section
1528 and Sections 1530 to 1535, inclusive, shall apply to this
division.
18110. (a) A court may, after notice and a hearing, renew a gun
violence restraining order issued under this chapter if there is
clear and convincing evidence that the restrained person continues to
pose a significant risk of personal injury to himself, herself, or
another by possessing a firearm.
(b) In determining whether to renew a gun violence restraining
order issued under this chapter, the court shall consider evidence of
the facts identified in subdivision (b) of Section 18103 and may
consider evidence of any of the facts identified in subdivision (c)
of Section 18103.
(c) At the hearing, the petitioner shall have the burden of
proving that there is clear and convincing evidence to believe that
the restrained person continues to pose a significant risk of
personal injury to himself, herself, or another by having under his
or her custody and control, owning, purchasing, possessing, or
receiving a firearm.
(d) If the renewal petition is supported by clear and convincing
evidence, the court shall renew the gun violence restraining order
issued under this chapter.
(e) 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 18109 and further renewal by further order of the
court pursuant to this section.
(f) A gun violence restraining order renewed pursuant to this
section shall include the information identified in subdivision (a)
of Section 18108.
(g) (1) (A) The court shall notify the Department of Justice that
a gun violence restraining order issued under this chapter has been
renewed no later than 24 hours after renewing 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 renewed
that a gun violence restraining order issued under this chapter was
renewed no later than 24 hours after issuing the order.
18111. Any hearing held pursuant to this chapter may be continued
upon a showing of good cause.
CHAPTER 4. OFFENSES
18112. Every person who files a petition for an ex parte gun
violence restraining order pursuant to Chapter 2 (commencing with
Section 18102) or a gun violence restraining order issued after
notice and a hearing pursuant to Chapter 3 (commencing with Section
18106), knowing the information in the petition to be false or with
the intent to harass, is guilty of a misdemeanor.
18113. Every person who violates an ex parte gun violence
restraining order issued pursuant to Chapter 2 (commencing with
Section 18102) or a gun violence restraining order issued after
notice and a hearing issued pursuant to Chapter 3 (commencing with
Section 18106), is guilty of a misdemeanor and shall be prohibited
from having under his or her custody and 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. 2. 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, or is serving a protective order
as defined in Section 6218 of the Family Code, or
is serving a gun violence restraining order as defined in
Section 18100, 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. 3. 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
an investigation into a petition for
the issuance of either a gun violence restraining
order or a firearm seizure warrant, as defined in Section
18100 of the Penal Code, 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. 4. SEC. 6. 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.