Bill Text: CA AB2759 | 2023-2024 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Domestic violence protective orders: possession of a firearm.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Enrolled) 2024-08-29 - Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 76. Noes 0.). [AB2759 Detail]
Download: California-2023-AB2759-Amended.html
Bill Title: Domestic violence protective orders: possession of a firearm.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Enrolled) 2024-08-29 - Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 76. Noes 0.). [AB2759 Detail]
Download: California-2023-AB2759-Amended.html
|
Amended
IN
Assembly
April 10, 2024 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 2759
| Introduced by Assembly Member Petrie-Norris |
February 15, 2024 |
An act to amend Section 6389 of the Family Code, relating to domestic violence.
LEGISLATIVE COUNSEL'S DIGEST
AB 2759, as amended, Petrie-Norris.
Domestic violence protective orders: possession of a firearm.
Existing law prohibits a person subject to a protective order, as defined, from owning, possessing, purchasing, or receiving a firearm or ammunition while that protective order is in effect and makes a willful and knowing violation of a protective order a crime. Existing law requires the court, when issuing the order with both parties present, to inform the parties of this information and to order the restrained person to relinquish any firearm or ammunition in the person’s immediate possession or control or subject to their immediate possession or control. Existing law specifies the means of relinquishment if the law enforcement officer serving the protective order does not request the immediate surrender of the firearm or ammunition, including, surrender to law enforcement, or by selling the firearm or ammunition to a licensed gun dealer.
Existing law requires a court to order the restrained person to relinquish firearms or ammunition and to notify the parties of how any firearms or ammunition still in the restrained party’s possession are to be relinquished and how to submit a receipt to the court. Existing law authorizes the court to grant an exemption from the relinquishment order for a particular firearm or ammunition if the respondent can show that the firearm or ammunition is a necessary condition of continued employment and the person cannot be reassigned, as specified, and only authorizes possession on the job or traveling to and from employment. If the person is a peace officer who carries a firearm or ammunition as a condition of employment and the peace officer’s personal safety depends on the ability to carry a firearm or ammunition, the court may exempt them from the relinquishment order, on duty or off, if the court finds that the peace officer does not pose a threat of harm. Existing law
requires, prior to making this finding, that the court require a mandatory psychological evaluation of the peace officer and authorizes the court to require the peace officer to enter into counseling or other remedial treatment program to deal with any propensity for domestic violence.
This bill would revise the peace officer exemption to authorize a court to allow a peace officer to carry a firearm or ammunition specific firearm, ammunition, or firearm and ammunition if the peace officer is required, as a condition of continued employment, to carry a firearm or that firearm, ammunition, or firearm and
ammunition, as specified, if they cannot be reassigned, and if the court finds by a preponderance of the evidence, in writing or on the record, that the peace officer’s personal safety depends on the ability to carry that firearm or specific firearm, ammunition, or firearm and ammunition outside of scheduled work hours and they do not pose an additional threat of harm to a protected party or the public, as specified. The bill would require the mandatory psychological evaluation of the peace officer to be conducted by a mental health professional with domestic violence expertise and would require the court to consider the results of that evaluation.
This bill would authorize an exemption from the relinquishment requirement, only during scheduled working hours, for a
nonpeace officer who is required to carry a firearm or specific firearm, ammunition, or firearm and ammunition as a condition of continued employment, as specified, if the court finds by a preponderance of the evidence, in writing or on the record, that the respondent does not pose an additional threat of harm to a protected party or the public by having access to the firearm or specific firearm, ammunition, or firearm and ammunition. The bill would authorize the court to order a psychological evaluation by a licensed mental health professional with domestic violence expertise to make this finding.
The bill would require the court, if an exemption is granted during the pendency of a temporary restraining order and the court subsequently issues a restraining order on the same application, to review and make a finding regarding the appropriateness of the granted exemption, as provided.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 6389 of the Family Code is amended to read:6389.
(a) A person subject to a protective order, as defined in Section 6218, shall not own, possess, purchase, or receive a firearm or ammunition while that protective order is in effect. A person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm or ammunition while the protective order is in effect is punishable pursuant to Section 29825 of the Penal Code.(b) On all forms providing notice that a protective order has been requested or granted, the Judicial Council shall include a notice that, upon service of the order, the respondent shall be ordered to relinquish possession or control of any firearms or ammunition and not to purchase or receive or
attempt to purchase or receive any firearms or ammunition for a period not to exceed the duration of the restraining order.
(c) (1) Upon issuance of a protective order, as defined in Section 6218, the court shall order the respondent to relinquish any firearm or ammunition in the respondent’s immediate possession or control or subject to the respondent’s immediate possession or control.
(2) The relinquishment ordered pursuant to paragraph (1) shall occur by immediately surrendering the firearm or ammunition in a safe manner, upon request of a law enforcement officer, to the control of the officer, after being served with the protective order. A law enforcement officer serving a protective order that indicates that the respondent possesses weapons or ammunition
shall request that the firearm or ammunition be immediately surrendered. Alternatively, if a request is not made by a law enforcement officer, the relinquishment shall occur within 24 hours of being served with the order, by either surrendering the firearm or ammunition in a safe manner to the control of local law enforcement officials, or by selling, transferring, or relinquishing for storage pursuant to Section 29830 of the Penal Code, the firearm or ammunition to a licensed gun dealer, as specified in Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2 of Division 6 of Title 4 of Part 6 of the Penal Code. The law enforcement officer or licensed gun dealer taking possession of the firearm or ammunition pursuant to this subdivision shall issue a receipt to the person relinquishing the firearm or ammunition at the time of relinquishment. A person ordered
to relinquish a firearm or 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 protective order, the receipt showing the firearm or ammunition was surrendered to a local law enforcement agency or sold to a licensed gun dealer. Failure to timely file a receipt shall constitute a violation of the protective order.
(B) File a copy of the receipt described in subparagraph (A) with the law enforcement agency that served the protective order. Failure to timely file a copy of the receipt shall constitute a violation of the protective order.
(3) The forms for protective orders adopted by the Judicial Council and
approved by the Department of Justice shall require the petitioner to describe the number, types, and locations of any firearms or ammunition presently known by the petitioner to be
possessed or controlled by the respondent.
(4) A court holding a hearing on this matter shall review the file to determine whether the receipt has been filed and inquire of the respondent whether they have complied with the requirement. Violations of the firearms prohibition of any restraining order under this section shall be reported to the prosecuting attorney in the jurisdiction where the order has been issued within two business days of the court hearing unless the restrained party provides a receipt showing compliance at a subsequent hearing or by direct filing with the clerk of the court.
(5) Every law enforcement agency in the state shall develop, adopt, and implement written policies and standards for law enforcement officers who request immediate
relinquishment of firearms or ammunition.
(d) If the respondent declines to relinquish possession of a firearm or ammunition based on the assertion of the right against self-incrimination, as provided by the Fifth Amendment to the United States Constitution and Section 15 of Article I of the California Constitution, the court may grant use immunity for the act of relinquishing the firearm or ammunition required under this section.
(e) A local law enforcement agency may charge the respondent a fee for the storage of a firearm or ammunition pursuant to this section. This fee shall not exceed the actual cost incurred by the local law enforcement agency for the storage of the firearm or ammunition. For purposes of this subdivision, “actual cost” means expenses directly
related to taking possession of a firearm or ammunition, storing the firearm or ammunition, and surrendering possession of the firearm or ammunition to a licensed dealer as defined in Section 26700 of the Penal Code or to the respondent.
(f) The restraining order requiring a person to relinquish a firearm or ammunition pursuant to subdivision (c) shall state on its face that the respondent is prohibited from owning, possessing, purchasing, or receiving a firearm or ammunition while the protective order is in effect and that the firearm or ammunition shall be relinquished to the local law enforcement agency for that jurisdiction or sold to a licensed gun dealer, and that proof of surrender or sale shall be filed with the court within a specified period of receipt of the order. The order shall also state on its face the expiration date for
relinquishment. This section does not limit a respondent’s right under existing law to petition the court at a later date for modification of the order.
(g) The restraining order requiring a person to relinquish a firearm or ammunition pursuant to subdivision (c) shall prohibit the person from possessing or controlling a firearm or ammunition for the duration of the order. At the expiration of the order, the local law enforcement agency shall return possession of the surrendered firearm or ammunition to the respondent, within five days after the expiration of the relinquishment order, unless the local law enforcement agency determines that (1) the firearm or ammunition has been stolen, (2) the respondent is prohibited from possessing a firearm or ammunition because the respondent is in a prohibited class for the possession of firearms or
ammunition, as defined in Chapter 2 (commencing with Section 29800) and Chapter 3 (commencing with Section 29900) of Division 9 of Title 4 of Part 6 of the Penal Code, Section 30305 of the Penal Code, and Sections 8100 and 8103 of the Welfare and Institutions Code, or (3) another successive restraining order is issued against the respondent under this section. If the local law enforcement agency determines that the respondent is the legal owner of a firearm or ammunition deposited with the local law enforcement agency and is prohibited from possessing a firearm or ammunition, the respondent shall be entitled to sell or transfer the firearm or ammunition to a licensed dealer as defined in Section 26700 of the Penal Code. If the firearm or ammunition has been stolen, the firearm or ammunition shall be restored to the lawful owner upon the owner identifying the firearm and ammunition and providing proof
of ownership.
(h) The court may, as part of the relinquishment order, grant an exemption from the relinquishment requirements of this section for a particular firearm or ammunition if the respondent is not otherwise prohibited from owning, possessing, controlling, or purchasing a firearm and ammunition under state or federal law and under either one of the following conditions: applies:
(1) (A) If The
respondent is currently employed as a sworn peace officer who is required, as a condition of continued employment, to carry a firearm or firearm, ammunition, or firearm and ammunition and the current employer is unable to reassign the peace officer to another position where the use of a specified firearm or ammunition is unnecessary, and their personal safety depends on the ability to carry a firearm or ammunition,
unnecessary. In such a case, a court may allow the peace officer to continue to carry a firearm or ammunition, specified firearm, ammunition, or firearm and ammunition, either on duty or off duty, if the court finds by a preponderance of the evidence, in writing or on the record, both of the following:
(i) The peace officer’s personal safety depends on the ability to carry that firearm or ammunition specific firearm, ammunition, or firearm and ammunition outside of scheduled work
hours.
(ii) The peace officer does not pose an additional threat of harm to a protected party or the public by having access to the firearm or ammunition, that specific firearm, ammunition, or firearm and ammunition, including whether the peace officer might use the firearm for a purpose other than as permitted under this paragraph.
(B) Prior to making this finding, the court shall require a mandatory psychological evaluation of the peace officer by a licensed mental health professional with domestic violence expertise. The court shall consider the results of an evaluation and may require the peace officer to
enter into counseling or another remedial treatment program to deal with a propensity for domestic violence.
(2) (A) If the The respondent is not a peace officer but is required to carry a firearm or ammunition specific firearm, ammunition, or firearm and ammunition during scheduled work hours as a condition of continued employment, the current employer is unable to reassign the respondent to another position where the firearm or ammunition is unnecessary, and
firearm, ammunition, or firearm and ammunition is unnecessary. In such a case, a court may grant an exemption to allow the respondent to possess a specific firearm, ammunition, or firearm and ammunition only during scheduled work hours if the court finds by a preponderance of the evidence, in writing or on the record, that the respondent does not pose an additional threat of harm to a protected party or the public by having access to the firearm or ammunition, specific firearm, ammunition, or firearm and ammunition only during scheduled work hours, including whether the respondent might utilize the firearm
firearm, ammunition, or firearm and ammunition for a purpose other than as permitted under this paragraph.
(B) To assist the court in making this determination, the court may order a psychological evaluation of the respondent by a licensed mental health professional with domestic violence expertise.
(C) If the court grants an exemption pursuant to this paragraph, the order shall provide that the firearm or ammunition specific firearm, ammunition, or firearm and ammunition shall be in the
physical possession of the respondent only during scheduled work hours. hours and that the exemption does not authorize the respondent to possess any other firearm or ammunition, or to possess the specific firearm, ammunition, or firearm and ammunition outside of scheduled work hours.
(i) (1) If an exemption is granted under subdivision (h) during the pendency of a temporary restraining order and the court subsequently issues a restraining order after hearing on the same application, the court shall review and make a finding, in writing or on the record, as to whether the exemption remains appropriate
appropriate, based upon the criteria set forth in paragraph (1) or (2) of subdivision (h), as applicable, in light of the issuance of the order after hearing. This review and finding shall occur at the time the restraining order after hearing is issued.
(2) If an exemption is granted following an initial restraining order, after hearing and the court subsequently renews the initial restraining order at the request of the protected party, the court shall review and make a finding, in writing or on the record, as to whether the exemption remains appropriate appropriate, based upon the criteria set forth in paragraph (1) or (2) of subdivision (h), as applicable,
in light of the renewal. This review and finding shall occur at the time the restraining order after hearing is renewed.
(3) The court may terminate or modify an exemption granted pursuant to this paragraph at any time if the respondent demonstrates a need to modify the particular firearm or ammunition included in the exception specific firearm, ammunition, or firearm and ammunition authorized by the court pursuant to subdivision (h) or if the respondent no longer
meets the requirements in this section or otherwise violates the restraining order.
(j) During the period of the relinquishment order, a respondent is entitled to make one sale of all firearms or ammunition that are in the possession of a local law enforcement agency pursuant to this section. A licensed gun dealer, who presents a local law enforcement agency with a bill of sale indicating that all firearms or ammunition owned by the respondent that are in the possession of the local law enforcement agency have been sold by the respondent to the licensed gun dealer, shall be given possession of those firearms or ammunition, at the location where a
respondent’s firearms or ammunition are stored, within five days of presenting the local law enforcement agency with a bill of sale.
(k) The disposition of any unclaimed property under this section shall be made pursuant to Section 1413 of the Penal Code.
(l) The relinquishment of a firearm to a law enforcement agency pursuant to subdivision (g) or the return of a firearm to a person pursuant to subdivision (g) shall not be subject to the requirements of Section 27545 of the Penal Code.
(m) If the respondent notifies the court that the respondent owns a firearm or ammunition that is not in their immediate possession, the court may limit the order to exclude that firearm or ammunition if the judge is
satisfied the respondent is unable to gain access to that firearm or ammunition while the protective order is in effect.
(n) A respondent to a protective order who violates an order issued pursuant to this section shall be punished under the provisions of Section 29825 of the Penal Code.
