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AB-2526 Temporary emergency gun violence restraining orders.(2017-2018)

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Date Published: 09/28/2018 09:00 PM
AB2526:v97#DOCUMENT

Assembly Bill No. 2526
CHAPTER 873

An act to amend Sections 18140 and 18145 of the Penal Code, relating to restraining orders.

[ Approved by Governor  September 28, 2018. Filed with Secretary of State  September 28, 2018. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 2526, Rubio. Temporary emergency gun violence restraining orders.
Existing law allows a court to issue an order restraining an individual from possessing a firearm while the order is in effect. Existing law allows the court to issue a temporary emergency gun violence restraining order on an ex parte basis if the possession of a firearm by the subject of the petition poses an immediate and present danger. Existing law requires a law enforcement officer who requests a temporary emergency gun violence restraining order to memorialize the order of the court on the form approved by the Judicial Council if the order is obtained orally. Existing law requires the petition for the temporary order to be obtained by submitting a written petition to the court, unless time and circumstances do not permit the submission of a written report, in which case existing law allows the order to be issued in accordance with procedures for obtaining an oral search warrant.
This bill would instead require an officer who requests a temporary emergency gun violence restraining order to sign a declaration under penalty of perjury reciting the oral statements provided to the judicial officer and to memorialize the order of the court on the form approved by the Judicial Council if the request is made orally. The bill would allow a judicial officer to issue a temporary order orally based on the statements of the law enforcement officer and would allow a temporary order to be obtained in writing if time and circumstances permit. Because the declaration would be required to be signed under penalty of perjury, the bill would impose a state-mandated local program by expanding the definition of a crime.
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 no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 18140 of the Penal Code is amended to read:

18140.
 A law enforcement officer who requests a temporary emergency gun violence restraining order shall do all of the following:
(a) If the request is made orally, sign a declaration under penalty of perjury reciting the oral statements provided to the judicial officer and 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.

SEC. 2.

 Section 18145 of the Penal Code is amended to read:

18145.
 (a) (1) A judicial officer may issue a temporary emergency gun violence restraining order orally based on the statements of a law enforcement officer made in accordance with subdivision (a) of Section 18140.
(2) If time and circumstances permit, a temporary emergency gun violence restraining order may be obtained in writing and based on a declaration signed under penalty of perjury.
(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.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because 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.