Bill Text: CA AB1014 | 2013-2014 | Regular Session | Chaptered
Bill Title: Gun violence restraining orders.
Spectrum: Partisan Bill (Democrat 15-0)
Status: (Passed) 2014-09-30 - Chaptered by Secretary of State - Chapter 872, Statutes of 2014. [AB1014 Detail]
Download: California-2013-AB1014-Chaptered.html
BILL NUMBER: AB 1014 CHAPTERED
BILL TEXT
CHAPTER 872
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2014
APPROVED BY GOVERNOR SEPTEMBER 30, 2014
PASSED THE SENATE AUGUST 27, 2014
PASSED THE ASSEMBLY AUGUST 29, 2014
AMENDED IN SENATE AUGUST 21, 2014
AMENDED IN SENATE AUGUST 18, 2014
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 Section 1524 of, to amend, repeal, and add Section
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, repeal, and add Section 8105 of the Welfare and
Institutions Code, relating to firearms.
LEGISLATIVE COUNSEL'S DIGEST
AB 1014, 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,
generally prohibits a person subject to a domestic violence
protective order from owning or possessing a firearm while that order
is in effect.
This bill would authorize a court to issue a temporary emergency
gun violence restraining order if a law enforcement officer asserts
and a judicial officer finds that 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 in his or her custody or control, owning,
purchasing, possessing, or receiving a firearm and that the order is
necessary to prevent personal injury to himself, herself, or 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 of each county to designate at least one judge, commissioner,
or referee who is required to be reasonably available to issue
temporary emergency gun violence restraining orders when the court is
not in session.
This bill would additionally authorize a court to issue an ex
parte gun violence restraining order prohibiting the subject of the
petition from having in his or her custody or control, owning,
purchasing, possessing, or receiving, or attempting to purchase or
receive, a firearm or ammunition when it is shown that there is a
substantial likelihood that the subject of the petition poses a
significant danger of harm to himself, herself, or another in the
near future by having in his or her custody or control, owning,
purchasing, possessing, or receiving a firearm and that the order is
necessary to prevent personal injury to himself, herself, or another,
as specified. The bill would require the ex parte order to expire no
later than 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 or a person at least 18 years
of age who is not a party to the action to personally 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
in his or her custody or 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 that the subject of the petition, or a person
subject to an ex parte gun violence restraining order, as applicable,
poses a significant danger of personal injury to himself, herself,
or another by having in his or her custody or control, owning,
purchasing, possessing, or receiving a firearm and that the order is
necessary to prevent personal injury to himself, herself, or another,
as specified. The bill would 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 all firearms and ammunition in his or
her custody 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 when any gun violence restraining order has been issued,
renewed, dissolved, or terminated. The bill would also require the
court, when sending that notice, to specify whether the person
subject to the gun violence restraining order was present in court to
be informed of the contents of the order or if the person failed to
appear. The bill would require proof of service of the order to be
entered into the California Restraining and Protective Order System,
as specified.
The bill would make it a misdemeanor to file a petition for an ex
parte gun violence restraining 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 owns or possesses a firearm or
ammunition with the knowledge that he or she is prohibited from doing
so by a gun violence restraining order is guilty of a misdemeanor
and shall be prohibited from having in his or her custody 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 firearms or ammunition or both
that 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
if a prohibited firearm or ammunition or both is possessed, owned, in
the custody of, or controlled by a person against whom a gun
violence restraining order has been issued, the person has been
lawfully served with that order, and the person has failed to
relinquish the firearm as required by law. 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 or control or possession or
that is owned by the restrained person, which 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 prohibited from having a firearm because the person has been
admitted to a facility, is receiving inpatient treatment, and is a
danger to himself, herself, or others. Existing law requires the
department to only use the information for certain specified
purposes.
This bill would additionally authorize the department to use the
above-described information to determine the eligibility of a person
who is the subject of a petition for the issuance of a gun violence
restraining order 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) This bill would incorporate additional changes in Section
18250 of the Penal Code, proposed by SB 1154, to be operative only if
SB 1154 and this bill are chaptered and become effective on or
before January 1, 2015, and this bill is chaptered last.
(7) 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.
(8) The provisions of this bill would be effective January 1,
2016.
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) Beginning January 1, 2016, the property or things to be
seized are firearms or ammunition or both that 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, if a prohibited firearm or ammunition or both is
possessed, owned, in the custody of, or controlled by a person
against whom a gun violence restraining order has been issued, the
person has been lawfully served with that order, and the person has
failed to relinquish the firearm as required by law.
(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 or control or possession or that is owned by the restrained
person, which 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 or ammunition in the restrained person's custody or
control or possession, but that is owned by a person other than the
restrained person, the firearm or ammunition shall not be seized if
both of the following conditions are satisfied:
(A) The firearm or ammunition is removed from the restrained
person's custody or control or possession and stored in a manner that
the restrained person does not have access to or control of the
firearm or ammunition.
(B) There is no evidence of unlawful possession of the firearm or
ammunition by the owner of the firearm or ammunition.
(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 locked 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.
(c) This section shall become operative on January 1, 2016.
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 and enjoining a named person from
having in his or her custody or control, owning, purchasing,
possessing, or receiving any firearms or ammunition. This division
establishes a civil restraining order process to accomplish that
purpose.
18105. The Judicial Council shall prescribe the form of the
petitions and orders and any other documents, and shall promulgate
any rules of court, necessary to implement this division.
18107. A petition for a gun violence restraining order shall
describe the number, types, and locations of any firearms and
ammunition presently believed by the petitioner to be possessed or
controlled by the subject of the petition.
18109. Nothing in this division shall be interpreted to require a
law enforcement agency or a law enforcement officer to seek a gun
violence restraining order in any case, including, but not limited
to, in a case in which the agency or officer concludes, after
investigation, that the criteria for issuance of a gun violence
restraining order are not satisfied.
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) 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 a notice of dissolution
or a notice of termination of a gun violence restraining order, the
Department of Justice shall, within 15 days, note document the
updated status of any order issued under this division.
(c) The notices required to be submitted to the Department of
Justice pursuant to this section shall be submitted in an electronic
format, in a manner prescribed by the department.
(d) When notifying the Department of Justice pursuant to
subdivision (a) or (b), the court shall indicate in the notice
whether the person subject to the gun violence restraining order was
present in court to be informed of the contents of the order or if
the person failed to appear. The person's presence in court shall
constitute proof of service of notice of the terms of the order.
(e) (1) Within one business day of service, a law enforcement
officer who served a gun violence restraining order shall submit the
proof of service directly into the California Restraining and
Protective Order System, including his or her name and law
enforcement agency, and shall transmit the original proof of service
form to the issuing court.
(2) Within one business day of receipt of proof of service by a
person other than a law enforcement officer, the clerk of the court
shall submit the proof of service of a gun violence restraining order
directly into the California Restraining and Protective Order
System, including the name of the person who served the order. If the
court is unable to provide this notification to the Department of
Justice by electronic transmission, the court shall, within one
business day of receipt, transmit a copy of the proof of service to a
local law enforcement agency. The local law enforcement agency shall
submit the proof of service directly into the California Restraining
and Protective Order System within one business day of receipt from
the court.
18120. (a) A person subject to a gun violence restraining order
issued pursuant to this division shall not have in his or her custody
or control, own, purchase, possess, or receive 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 all firearms
and ammunition in the restrained person's custody or control, or
which the restrained person possesses or owns.
(2) The surrender ordered pursuant to paragraph (1) shall occur by
immediately surrendering 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 restraining order. A law
enforcement officer serving a gun violence restraining order that
indicates that the restrained person possesses any firearms or
ammunition shall request that 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 all firearms and
ammunition in a safe manner to the control of the local law
enforcement agency, or by selling 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
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 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 original receipt showing all firearms and ammunition 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 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 restraining order.
(c) (1) 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, 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. Firearms or ammunition that are not
claimed are subject to the requirements of Section 34000.
(2) A restrained person who owns any firearms or ammunition that
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 is entitled to sell or transfer title of any
firearms or ammunition to a licensed dealer provided that the firearm
or firearms or ammunition are otherwise legal to own or possess and
the restrained person otherwise has right to title of the firearm or
firearms or ammunition.
(d) If a person other than the restrained person claims title to
any 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 him or her pursuant to
Chapter 2 (commencing with Section 33850) of Division 11 of Title 4.
18122. This division shall become operative on January 1, 2016.
CHAPTER 2. TEMPORARY EMERGENCY GUN VIOLENCE RESTRAINING ORDER
18125. (a) A temporary emergency gun violence restraining order
may be issued on an ex parte basis only if a law enforcement officer
asserts, and a judicial officer finds, that there is reasonable cause
to believe both of the following:
(1) The subject of the petition poses an immediate and present
danger of causing personal injury to himself, herself, or another by
having in his or her custody or control, owning, purchasing,
possessing, or receiving a firearm.
(2) A temporary emergency gun violence restraining order is
necessary to prevent personal injury to the subject of the petition
or another 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) A temporary emergency gun violence restraining order issued
pursuant to this chapter shall prohibit the subject of the petition
from having in his or her custody or control, owning, purchasing,
possessing, or receiving, or attempting to purchase or receive, a
firearm or ammunition, and shall expire 21 days from the date the
order is issued.
18130. A temporary 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. A temporary 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 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 or possess in accordance with Section 18120
of the Penal Code and you may not have in your custody 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 a temporary
emergency gun violence restraining order shall do all of the
following:
(a) If the order is obtained orally, memorialize the order 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. (a) (1) Except as provided in paragraph (2), the petition
for a temporary emergency gun violence restraining order shall be
obtained by submitting a written petition to the court.
(2) If time and circumstances do not permit the submission of a
written petition, a temporary emergency gun violence restraining
order may be issued in accordance with the procedures for obtaining
an oral search warrant described in Section 1526.
(b) The presiding judge of the superior court of each county shall
designate at least one judge, commissioner, or referee who shall be
reasonably available to issue temporary emergency gun violence
restraining orders when the court is not in session.
CHAPTER 3. EX PARTE GUN VIOLENCE RESTRAINING ORDER
18150. (a) (1) An immediate family 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 in his or her custody 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 paragraph (3) of subdivision (b) of
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 shows that there is a
substantial
likelihood that both of the following are true:
(1) The subject of the petition poses a significant danger, in the
near future, of personal injury to himself, herself, or another by
having in his or her custody or control, owning, purchasing,
possessing, or receiving a firearm as determined by considering the
factors listed in Section 18155.
(2) An ex parte gun violence restraining order is necessary to
prevent personal injury to the subject of the petition or another
because less restrictive alternatives either have been tried and
found to be ineffective, or 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, shall examine on oath, the petitioner and any
witness the petitioner may produce.
(2) In lieu of examining the petitioner and any witness the
petitioner may produce, the court may require the petitioner and any
witness to submit a written affidavit signed under oath.
(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 evidence of an
increased risk for violence, including, but not limited to, evidence
of any of the following:
(A) The unlawful and 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) Documentary evidence, including, but not limited to, police
reports and records of convictions, of either recent criminal
offenses by the subject of the petition that involve controlled
substances or alcohol or ongoing abuse of controlled substances or
alcohol by the subject of the petition.
(G) Evidence of recent acquisition of firearms, ammunition, 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 grounds to issue an ex
parte gun violence restraining order exist, it shall issue an ex
parte gun violence restraining order that prohibits the subject of
the petition from having in his or her custody or control, owning,
purchasing, possessing, or receiving, or attempting to purchase or
receive, a firearm or ammunition, and expires no later than 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 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 or possess in accordance
with Section 18120 of the Penal Code and you may not have in your
custody 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
personally served on the restrained person by a law enforcement
officer, or any person who is at least 18 years of age and not a
party to the action, as provided in Section 414.10 of the Code of
Civil Procedure, if the restrained person can reasonably be located.
(2) When serving a gun violence restraining order, a 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 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 in his or her custody 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 paragraph (3) of subdivision (b) of
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 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) The subject of the petition, or a person subject to an ex
parte gun violence restraining order, as applicable, poses a
significant danger of personal injury to himself, herself, or another
by having in his or her custody or control, owning, purchasing,
possessing, or receiving a firearm or ammunition.
(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 because less restrictive alternatives either have been tried
and found to be ineffective, or 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 the court finds that 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 in his or her custody 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 temporary 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.
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 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 or possess in
accordance with Section 18120 of the Penal Code. You may not have in
your custody 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 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 paragraph (3) of subdivision (b) of
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 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.
18197. If a person subject to a gun violence restraining order
issued or renewed pursuant to this chapter was not present in court
at the time the order was issued or renewed, the gun violence
restraining order shall be personally served on the restrained person
by a law enforcement officer or any person who is at least 18 years
of age and not a party to the action, as provided in Section 414.10
of the Code of Civil Procedure, if the restrained person can
reasonably be located.
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 owns or possesses a firearm or ammunition
with knowledge that he or she is prohibited from doing so by a
temporary 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), 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 in his or her custody 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. (a) 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, 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:
(1) A sheriff, undersheriff, deputy sheriff, marshal, deputy
marshal, or police officer of a city, as defined in subdivision (a)
of Section 830.1.
(2) A peace officer of the Department of the California Highway
Patrol, as defined in subdivision (a) of Section 830.2.
(3) A member of the University of California Police Department, as
defined in subdivision (b) of Section 830.2.
(4) An officer listed in Section 830.6, while acting in the course
and scope of the officer's employment as a peace officer.
(5) A member of a California State University Police Department,
as defined in subdivision (c) of Section 830.2.
(6) A peace officer of the Department of Parks and Recreation, as
defined in subdivision (f) of Section 830.2.
(7) A peace officer, as defined in subdivision (d) of Section
830.31.
(8) A peace officer, as defined in subdivisions (a) and (b) of
Section 830.32.
(9) A peace officer, as defined in Section 830.5.
(b) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 4.5. Section 18250 of the Penal Code is amended to read:
18250. (a) 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, or 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:
(1) A sheriff, undersheriff, deputy sheriff, marshal, deputy
marshal, or police officer of a city, as defined in subdivision (a)
of Section 830.1.
(2) A peace officer of the Department of the California Highway
Patrol, as defined in subdivision (a) of Section 830.2.
(3) A member of the University of California Police Department, as
defined in subdivision (b) of Section 830.2.
(4) An officer listed in Section 830.6, while acting in the course
and scope of the officer's employment as a peace officer.
(5) A member of a California State University Police Department,
as defined in subdivision (c) of Section 830.2.
(6) A peace officer of the Department of Parks and Recreation, as
defined in subdivision (f) of Section 830.2.
(7) A peace officer, as defined in subdivision (d) of Section
830.31.
(8) A peace officer, as defined in subdivisions (a) and (b) of
Section 830.32.
(9) A peace officer, as defined in Section 830.5.
(10) A sworn member of the Department of Justice who is a peace
officer, as defined in Section 830.1.
(11) A member of the San Francisco Bay Area Rapid Transit District
Police Department, as defined in subdivision (a) of Section 830.33.
(b) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 5. Section 18250 is added to the Penal Code, to read:
18250. (a) 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, or 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:
(1) A sheriff, undersheriff, deputy sheriff, marshal, deputy
marshal, or police officer of a city, as defined in subdivision (a)
of Section 830.1.
(2) A peace officer of the Department of the California Highway
Patrol, as defined in subdivision (a) of Section 830.2.
(3) A member of the University of California Police Department, as
defined in subdivision (b) of Section 830.2.
(4) An officer listed in Section 830.6, while acting in the course
and scope of the officer's employment as a peace officer.
(5) A member of a California State University Police Department,
as defined in subdivision (c) of Section 830.2.
(6) A peace officer of the Department of Parks and Recreation, as
defined in subdivision (f) of Section 830.2.
(7) A peace officer, as defined in subdivision (d) of Section
830.31.
(8) A peace officer, as defined in subdivisions (a) and (b) of
Section 830.32.
(9) A peace officer, as defined in Section 830.5.
(10) A sworn member of the Department of Justice who is a peace
officer, as defined in Section 830.1.
(b) This section shall become operative on January 1, 2016.
SEC. 5.5. Section 18250 is added to the Penal Code, to read:
18250. (a) 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, or 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:
(1) A sheriff, undersheriff, deputy sheriff, marshal, deputy
marshal, or police officer of a city, as defined in subdivision (a)
of Section 830.1.
(2) A peace officer of the Department of the California Highway
Patrol, as defined in subdivision (a) of Section 830.2.
(3) A member of the University of California Police Department, as
defined in subdivision (b) of Section 830.2.
(4) An officer listed in Section 830.6, while acting in the course
and scope of the officer's employment as a peace officer.
(5) A member of a California State University Police Department,
as defined in subdivision (c) of Section 830.2.
(6) A peace officer of the Department of Parks and Recreation, as
defined in subdivision (f) of Section 830.2.
(7) A peace officer, as defined in subdivision (d) of Section
830.31.
(8) A peace officer, as defined in subdivisions (a) and (b) of
Section 830.32.
(9) A peace officer, as defined in Section 830.5.
(10) A sworn member of the Department of Justice who is a peace
officer, as defined in Section 830.1.
(11) A member of the San Francisco Bay Area Rapid Transit District
Police Department, as defined in subdivision (a) of Section 830.33.
(b) This section shall become operative on January 1, 2016.
SEC. 6. 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, if a part of the criminal
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.
(f) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 7. Section 8105 is added to the Welfare and Institutions
Code, 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.
(f) This section shall become operative on January 1, 2016.
SEC. 8. The Legislature finds and declares that Section 3 of this
act, which adds Section 18110 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. 9. Sections 4.5 and 5.5 of this bill incorporate amendments
to Section 18250 of the Penal Code proposed by both this bill and
Senate Bill 1154. They shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2015, (2)
each bill amends Section 18250 of the Penal Code, and (3) this bill
is enacted after Senate Bill 1154, in which case Sections 4 and 5 of
this bill shall not become operative.
SEC. 10. 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.
