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AB-2532 Firearms: gun violence restraining orders.(2019-2020)

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Date Published: 05/07/2020 09:00 PM
AB2532:v98#DOCUMENT

Amended  IN  Assembly  May 07, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2532


Introduced by Assembly Member Irwin

February 19, 2020


An act to amend Sections 18170, 18190, 18400, 18405, 18415, 18420, and 18500 of the Penal Code, and Sections 8100, 8102, and 8105 of the Welfare and Institutions Code, relating to firearms.


LEGISLATIVE COUNSEL'S DIGEST


AB 2532, as amended, Irwin. Firearms: gun violence restraining orders.
(1) Existing law, commencing on September 1, 2020, authorizes specified individuals, including a law enforcement officer, or a family member, employer, or coworker of a person, to petition the court to issue an order restraining that person from possessing a firearm, as specified, or to petition the court for the renewal of such an order.
This bill would add authorize a district attorney attorney, county counsel, or city attorney to the list of persons authorized to request file a petition on behalf of a law enforcement officer, requesting the issuance or renewal of these orders. orders, and to represent an officer in any subsequent court proceeding related to the issuance or renewal of the order.
(2) Existing law authorizes certain peace officers at the scene of a domestic violence incident or when serving a gun violence restraining order, to take custody of any firearm present, as specified. Under existing law, if the law enforcement agency that has seized the firearm has reasonable cause to believe that the return of the firearm would endanger others, as specified, the agency may petition the court for a determination of whether the firearm should be returned. Under existing law, if the person whose firearm is seized does not respond to the petition, as specified, or if the court, after a hearing, or after an optional 2nd hearing, orders the firearm not to be returned to the person, the firearm shall be disposed of, as specified.
This bill would additionally authorize a district attorney to petition the court for this determination. The bill would require the court, in cases where the firearm is not returned and is to be disposed of, to transmit a copy of the order to the Department of Justice.
(3) Existing law prohibits a person from possessing a firearm or deadly weapon for a period of 5 years when the person has communicated a serious threat of physical violence against a reasonably identifiable victim or victims to a licensed psychotherapist. Existing law requires the licensed psychotherapist to report the identity of the person to a local law enforcement agency-within 24 hours, and requires the local law enforcement agency to notify the Department of Justice within 24 hours of receding the report.
This bill would allow the psychotherapist to instead notify the district attorney of such a threat and would require the district attorney, when receiving a report of such a threat, to notify the department.
By requiring new duties of a district attorney, this bill would impose a state-mandated local program.
(4) Existing law authorizes a peace officer and other specified persons, upon probable cause, to take into custody for examination a person who, as a result of a mental health disorder, is a danger to themselves or others, or is gravely disabled. Under existing law, a peace officer is required to confiscate the firearm of a person who has been detained for examination of their mental condition, as specified. Existing law authorizes the law enforcement agency, upon release of the person, to petition the court for a determination of whether the firearm should be returned. Under existing law, if the person whose firearm is seized does not respond to the petition as specified, or if the court, after a hearing, orders the firearm not to be returned to the person, the firearm shall be disposed of, as specified.
This bill would additionally authorize a district attorney to petition the court for this determination. The bill would require the court, in cases where the firearm is not returned and is to be disposed of, to transmit a copy of the order to the Department of Justice.
This bill would make other conforming changes.
(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, if the Commission on State Mandates determines that the bill contains costs 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   Local Program: YES  

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


SECTION 1.

 Section 18170 of the Penal Code, as added by Chapter 725 of the Statutes of 2019, is amended to read:

18170.
 (a) (1) Any of the following individuals 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 their custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition for a period of time between one to five years:
(A) An immediate family member of the subject of the petition.
(B) An employer of the subject of the petition.
(C) A coworker of the subject of the petition, if they have had substantial and regular interactions with the subject for at least one year and have obtained the approval of the employer.
(D) An employee or teacher of a secondary or postsecondary school that the subject has attended in the last six months, if the employee or teacher has obtained the approval of a school administrator or a school administration staff member with a supervisorial role.
(E) A law enforcement officer.

(F)A district attorney.

(2) This chapter does not require a person described in paragraph (1) to seek a gun violence restraining order.
(3) A district attorney, county counsel, or city attorney may file a petition on behalf of a law enforcement officer and may represent the officer in any subsequent related court proceeding.
(b) For purposes of this section, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.
(c) This section shall become operative on September 1, 2020.

SEC. 2.

 Section 18190 of the Penal Code, as added by Chapter 725 of the Statutes of 2019, is amended to read:

18190.
 (a) (1) Any of the following people individuals 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:
(A) An immediate family member of the subject of the petition.
(B) An employer of the subject of the petition.
(C) A coworker of the subject of the petition, if they have had substantial and regular interactions with the subject for at least one year and have obtained the approval of the employer.
(D) An employee or teacher of a secondary or postsecondary school that the subject has attended in the last six months, if the employee or teacher has obtained the approval of a school administrator or a school administration staff member with a supervisorial role.
(E) A law enforcement officer.

(F)A district attorney.

(2) A district attorney, county counsel, or city attorney may file a petition on behalf of a law enforcement officer and may represent the officer in any subsequent related court proceeding.

(2)

(3) For purposes of this subdivision, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.

(3)

(4) This chapter does not require a person described in paragraph (1) to seek a gun violence restraining order.
(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) (1) The renewal of a gun violence restraining order issued pursuant to this section shall have a duration of between one to five years, 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.
(2) In determining the duration of the gun violence restraining order pursuant to paragraph (1), the court shall consider the length of time that the circumstances set forth in subdivision (b) of Section 18175 are likely to continue, and shall issue the order based on that determination.
(g) A gun violence restraining order renewed pursuant to this section shall include the information identified in subdivision (a) of Section 18180.
(h) This section shall become operative on September 1, 2020.

SEC. 3.

 Section 18400 of the Penal Code is amended to read:

18400.
 (a) When a law enforcement agency or district attorney has reasonable cause to believe that the return of a firearm or other deadly weapon seized under this division would be likely to result in endangering the victim or the person who reported the assault or threat, the agency shall so advise the owner of the firearm or other deadly weapon, and within 60 days of the date of seizure, initiate a petition in superior court to determine if the firearm or other deadly weapon should be returned.
(b) The law enforcement agency or district attorney may make an ex parte application stating good cause for an order extending the time to file a petition.
(c) Including any extension of time granted in response to an ex parte request, a petition must be filed within 90 days of the date of seizure of the firearm or other deadly weapon.

SEC. 4.

 Section 18405 of the Penal Code is amended to read:

18405.
 (a) If a petition is filed under Section 18400, the law enforcement agency or district attorney shall inform the owner or person who had lawful possession of the firearm or other deadly weapon, at that person’s last known address, by registered mail, return receipt requested, that the person has 30 days from the date of receipt of the notice to respond to the court clerk to confirm the person’s desire for a hearing, and that the failure to respond shall result in a default order forfeiting the confiscated firearm or other deadly weapon.
(b) For purposes of this section, the person’s last known address shall be presumed to be the address provided to the law enforcement officer by that person at the time of the domestic violence incident.
(c) In the event the person whose firearm or other deadly weapon was seized does not reside at the last address provided to the agency, the agency or district attorney shall make a diligent, good faith effort to learn the whereabouts of the person and to comply with these notification requirements.

SEC. 5.

 Section 18415 of the Penal Code is amended to read:

18415.
 (a) If the person who receives a petition under Section 18405 does not request a hearing or does not otherwise respond within 30 days of the receipt of the notice, the law enforcement agency or district attorney may file a petition for an order of default and may dispose of the firearm or other deadly weapon as provided in Sections 18000 and 18005.
(b) The court shall transmit a copy of the order of default described in subdivision (a) to the Department of Justice.

SEC. 6.

 Section 18420 of the Penal Code is amended to read:

18420.
 (a) If, at a hearing under Section 18410, the court does not order the return of the firearm or other deadly weapon to the owner or person who had lawful possession, that person may petition the court for a second hearing within 12 months from the date of the initial hearing.
(b) If there is a petition for a second hearing, unless it is shown by clear and convincing evidence that the return of the firearm or other deadly weapon would result in endangering the victim or the person reporting the assault or threat, the court shall order the return of the firearm or other deadly weapon and shall award reasonable attorney’s fees to the prevailing party.
(c) If the owner or person who had lawful possession does not petition the court within this 12-month period for a second hearing or is unsuccessful at the second hearing in gaining return of the firearm or other deadly weapon, the firearm or other deadly weapon may be disposed of as provided in Sections 18000 and 18005.
(d) If the court orders a firearm to be disposed of pursuant to subdivision (c), the court shall transmit a copy of the order to the Department of Justice.

SEC. 7.

 Section 18500 of the Penal Code is amended to read:

18500.
 The law enforcement agency, the district attorney, or the individual law enforcement officer shall not be liable for any act in the good faith exercise of this division.

SEC. 8.

 Section 8100 of the Welfare and Institutions Code is amended to read:

8100.
 (a) A person shall not have possession, custody, or control of, or purchase or receive, or attempt to purchase or receive, any firearms whatsoever or any other deadly weapon, if on or after January 1, 1992, the person has been admitted to a facility and is receiving inpatient treatment and, in the opinion of the attending health professional who is primarily responsible for the patient’s treatment of a mental disorder, is a danger to self or others, as specified by Section 5150, 5250, or 5300, even though the patient has consented to that treatment. A person is not subject to the prohibition in this subdivision after being discharged from the facility.
(b) (1) A person shall not have possession, custody, or control of, or purchase or receive, or attempt to purchase or receive, any firearms whatsoever or any other deadly weapon for a period of five years if, on or after January 1, 2014, the person communicates to a licensed psychotherapist, as defined in subdivisions (a) to (e), inclusive, of Section 1010 of the Evidence Code, a serious threat of physical violence against a reasonably identifiable victim or victims. The five-year period shall commence from the date that the licensed psychotherapist reports to the local law enforcement agency or district attorney the identity of the person making the communication. The prohibition provided for in this subdivision shall not apply unless the licensed psychotherapist notifies a local law enforcement agency or district attorney of the threat by that person. The person, however, may own, possess, have custody or control over, or receive or purchase any firearm if a superior court, pursuant to paragraph (3) and upon petition of the person, has found, by a preponderance of the evidence, that the person is likely to use firearms or other deadly weapons in a safe and lawful manner.
(2) Upon receipt of the report from the local law enforcement agency or district attorney pursuant to subdivision (c) of Section 8105, the Department of Justice shall notify by certified mail, return receipt requested, a person subject to this subdivision of the following:
(A) That the person is prohibited from possessing, having custody or control over, receiving, or purchasing any firearm or other deadly weapon for a period of five years commencing from the date that the licensed psychotherapist reports to the local law enforcement agency the identity of the person making the communication. The notice shall state the date when the prohibition commences and ends.
(B) That the person may petition a court, as provided in this subdivision, for an order permitting the person to own, possess, control, receive, or purchase a firearm.
(3) (A) Any person who is subject to paragraph (1) may petition the superior court of their county of residence for an order that they may own, possess, have custody or control over, receive, or purchase firearms. At the time the petition is filed, the clerk of the court shall set a hearing date and notify the person, the Department of Justice, and the district attorney. The people of the State of California shall be the respondent in the proceeding and shall be represented by the district attorney. Upon motion of the district attorney, or upon its own motion, the superior court may transfer the petition to the county in which the person resided at the time of the statements, or the county in which the person made the statements. Within seven days after receiving notice of the petition, the Department of Justice shall file copies of the reports described in Section 8105 with the superior court. The reports shall be disclosed upon request to the person and to the district attorney. The district attorney shall be entitled to a continuance of the hearing to a date of not less than 14 days after the district attorney is notified of the hearing date by the clerk of the court. The court, upon motion of the petitioner establishing that confidential information is likely to be discussed during the hearing that would cause harm to the person, shall conduct the hearing in camera with only the relevant parties present, unless the court finds that the public interest would be better served by conducting the hearing in public. Notwithstanding any other law, declarations, police reports, including criminal history information, and any other material and relevant evidence that is not excluded under Section 352 of the Evidence Code, shall be admissible at the hearing under this paragraph.
(B) The people shall bear the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner.
(C) If the court finds at the hearing that the people have not met their burden as set forth in subparagraph (B), the court shall order that the person shall not be subject to the five-year prohibition in this section on the ownership, control, receipt, possession, or purchase of firearms, and that person shall comply with the procedure described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code for the return of any firearms. A copy of the order shall be submitted to the Department of Justice. Upon receipt of the order, the Department of Justice shall delete any reference to the prohibition against firearms from the person’s state mental health firearms prohibition system information.
(D) If the district attorney declines or fails to go forward in the hearing, the court shall order that the person shall not be subject to the five-year prohibition required by this subdivision on the ownership, control, receipt, possession, or purchase of firearms, and that person shall comply with the procedure described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code for the return of any firearms. A copy of the order shall be submitted to the Department of Justice. Upon receipt of the order, the Department of Justice shall, within 15 days, delete any reference to the prohibition against firearms from the person’s state mental health firearms prohibition system information.
(E) Nothing in this subdivision shall prohibit the use of reports filed pursuant to this section to determine the eligibility of a person to own, possess, control, receive, or purchase a firearm if the person is the subject of a criminal investigation, a part of which involves the ownership, possession, control, receipt, or purchase of a firearm.
(c) “Discharge,” for the purposes of this section, does not include a leave of absence from a facility.
(d) “Attending health care professional,” as used in this section, means the licensed health care professional primarily responsible for the person’s treatment who is qualified to make the decision that the person has a mental disorder and has probable cause to believe that the person is a danger to self or others.
(e) “Deadly weapon,” as used in this section and in Sections 8101, 8102, and 8103, means any weapon, the possession or concealed carrying of which is prohibited by any provision listed in Section 16590 of the Penal Code.
(f) “Danger to self,” as used in subdivision (a), means a voluntary person who has made a serious threat of, or attempted, suicide with the use of a firearm or other deadly weapon.
(g) A violation of subdivision (a) of, or paragraph (1) of subdivision (b) of, this section shall be a public offense, punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail for not more than one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.
(h) The prohibitions set forth in this section shall be in addition to those set forth in Section 8103.
(i) Any person admitted and receiving treatment prior to January 1, 1992, shall be governed by this section, as amended by Chapter 1090 of the Statutes of 1990, until discharged from the facility.

SEC. 9.

 Section 8102 of the Welfare and Institutions Code is amended to read:

8102.
 (a) Whenever a person, who has been detained or apprehended for examination of their mental condition or who is a person described in Section 8100 or 8103, is found to own, or have possession or control of, any firearm whatsoever, or any other deadly weapon, the firearm or other deadly weapon shall be confiscated by any law enforcement agency or peace officer, who shall retain custody of the firearm or other deadly weapon.
“Deadly weapon,” as used in this section, has the meaning prescribed by Section 8100.
(b) (1) Upon confiscation of any firearm or other deadly weapon from a person who has been detained or apprehended for examination of their mental condition, the peace officer or law enforcement agency shall issue a receipt describing the deadly weapon or any firearm and listing any serial number or other identification on the firearm and shall notify the person of the procedure for the return, sale, transfer, or destruction of any firearm or other deadly weapon which has been confiscated. A peace officer or law enforcement agency that provides the receipt and notification described in Section 33800 of the Penal Code satisfies the receipt and notice requirements.
(2) If the person is released, the professional person in charge of the facility, or their designee, shall notify the person of the procedure for the return of any firearm or other deadly weapon which may have been confiscated.
(3) Health facility personnel shall notify the confiscating law enforcement agency upon release of the detained person, and shall make a notation to the effect that the facility provided the required notice to the person regarding the procedure to obtain return of any confiscated firearm.
(4) For purposes of this subdivision, the procedure for the return, sale, or transfer of confiscated firearms includes the procedures described in this section and the procedures described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code.
(5) In lieu of destroying a firearm that has been confiscated pursuant to this section that is a nuisance, unclaimed, abandoned, or otherwise subject to destruction, a law enforcement agency may retain or transfer the firearm as provided in Section 34005 of the Penal Code.
(c) Upon the release of a person as described in subdivision (b), the confiscating law enforcement agency or a district attorney shall have 30 days to initiate a petition in the superior court for a hearing to determine whether the return of a firearm or other deadly weapon would be likely to result in endangering the person or others, and to send a notice advising the person of the right to a hearing on this issue. The law enforcement agency or district attorney may make an ex parte application stating good cause for an order extending the time to file a petition. Including any extension of time granted in response to an ex parte request, a petition shall be filed within 60 days of the release of the person from a health facility.
(d) If the law enforcement agency or district attorney does not initiate proceedings within the 30-day period, or the period of time authorized by the court in an ex parte order issued pursuant to subdivision (c), it shall make the weapon available for return upon compliance with all applicable requirements, including the requirements specified in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code.
(e) The law enforcement agency or district attorney shall inform the person that they have 30 days to respond to the court clerk to request a hearing, and that the failure to respond will result in a default order forfeiting the confiscated firearm or weapon. For a confiscated firearm, the period of forfeiture is 180 days pursuant to Section 33875 of the Penal Code, unless the person contacts the law enforcement agency to facilitate the sale or transfer of the firearm to a licensed dealer pursuant to Section 33870 of the Penal Code. For the purpose of this subdivision, the person’s last known address shall be the address provided to the law enforcement officer by the person at the time of the person’s detention or apprehension.
(f) If the person responds and requests a hearing, the court clerk shall set a hearing, no later than 30 days from receipt of the request. The court clerk shall notify the person and the district attorney of the date, time, and place of the hearing.
(g) (1) If the person does not respond within 30 days of the notice, the law enforcement agency or district attorney may file a petition for order of default, allowing the law enforcement agency to destroy the firearm in 180 days from the date the court enters default unless the person contacts the law enforcement agency to facilitate the sale or transfer of the firearm to a licensed dealer pursuant to Section 33870 of the Penal Code.
(2) If an order of default is entered, the court shall transmit a copy of the order of default to the Department of Justice.
(h) (1) If, after a hearing, the court determines that the return of the firearm or other deadly weapon would likely endanger the person or others, the law enforcement agency having custody of the firearm may destroy the firearm within 180 days from the date that the court makes that determination, unless the person contacts the law enforcement agency having custody of the firearm to facilitate the sale or transfer of the firearm to a licensed dealer pursuant to Section 33870 of the Penal Code.
(2) If the court determines that the return of a firearm would likely endanger the person or others, the court shall transmit a copy of the order to the Department of Justice.

SEC. 10.

 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 or district attorney 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 or district attorney, on a form prescribed by the Department of Justice, shall notify the department electronically, within 24 hours, in a manner prescribed by the department, of the person who is subject to the prohibition specified by subdivision (b) of Section 8100.
(d) All information provided to the Department of Justice pursuant to this section shall be kept confidential, separate, and apart from all other records maintained by the department. The information provided to the Department of Justice pursuant to this section shall be used only for any of the following purposes:
(1) By the department to determine eligibility of a person to acquire, carry, or possess firearms, destructive devices, or explosives.
(2) For the purposes of the court proceedings described in subdivision (b) of Section 8100, to determine the eligibility of the person who is bringing the petition pursuant to paragraph (3) of subdivision (b) of Section 8100.
(3) To determine the eligibility of a person to acquire, carry, or possess firearms, destructive devices, or explosives who is the subject of a criminal investigation, or who is the subject of a petition for the issuance of a gun violence restraining order issued pursuant to Division 3.2 (commencing with Section 18100) of Title 2 of Part 6 of the Penal Code, if a part of the investigation involves the acquisition, carrying, or possession of firearms, explosives, or destructive devices by that person.
(e) Reports shall not be required or requested under this section if the same person has been previously reported pursuant to Section 8103 or 8104.

SEC. 11.

 If the Commission on State Mandates determines that this act contains 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.