Existing law authorizes 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. Existing law requires the ex parte order to expire no later than 21 days after the date on the order. Existing law also authorizes 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. Existing law authorizes renewal of a gun violence restraining order within 3 months of the orders expiration. Petitions for ex parte, one-year, and renewed gun violence restraining orders may be made by an immediate family member of the person or by a law enforcement officer.

This bill would similarly authorize, but not require, an employer, a coworker, or an employee of a secondary or postsecondary school that the person has attended in the last 6 months to file a petition for an ex parte, one-year, or renewed gun violence restraining order.

Existing law authorizes 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. Existing law requires the ex parte order to expire no later than 21 days after the date on the order. Existing law also authorizes 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. Existing law authorizes renewal of a gun violence restraining order within 3 months of the orders expiration. Petitions for ex parte, one-year, and renewed gun violence restraining orders may be made by an immediate family member of the person or by a law enforcement officer.

This bill would similarly authorize, but not require, an employer, a coworker, a mental health worker who has seen the person as a patient in the last 6 months, or an employee of a secondary or postsecondary school that the person has attended in the last 6 months to file a petition for an ex parte, one-year, or renewed gun violence restraining order.

Existing law defines certain acts or omissions as, among others, crimes against the person, crimes against property, and crimes against the public peace. Existing law classifies these crimes as infractions, misdemeanors, or felonies and prescribes punishments for persons who commit these crimes.

This bill would express the intent of the Legislature to enact legislation relating to criminal law.

GOVERNOR'S VETO

GV Bill Id:AB 2888

Author:(Ting, et al.)

As Enrolled Ver:September 6, 2018

2/3 vote

SUMMARY: Authorizes an employer, a coworker, an employee of a secondary school, or postsecondary school the person has attended in the last six months, to file a petition requesting a court to issue an ex parte gun violence restraining order (GVRO), a one year GVRO, or a renewal of a GVRO, and clarifies that a person is not required to seek a GVRO.

EXISTING LAW:

1. Permits persons who are subject to domestic violence restraining orders to surrender their weapons to licensed firearms dealers for storage during the period they are not permitted to possess firearms.
2. States that the provisions of law establishing gun violence restraining orders shall take effect on January 1, 2016.
3. Requires, upon issuance of a gun violence restraining order, the court to 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.
4. Allows an immediate family member of a person or a law enforcement officer to file a petition requesting that the court issue an ex parte gun violence restraining order, that expires no later than 21 days from the date of the 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.
5. States that the court, before issuing an ex parte gun violence restraining order, shall examine on oath, the petitioner and any witness the petitioner may produce, or 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.
6. Requires a showing that the subject of the petition poses a significant danger, in the near future, of personal injury to himself or herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering specified factors and that less restrictive alternative have been ineffective, or are inappropriate for the situation, before an ex parte gun violence restraining order may be issued.
7. Specifies in determining whether grounds for a gun violence restraining order exist, the court shall consider all evidence of the following:
   1. A recent threat of violence or act of violence by the subject of the petition directed toward another;
   2. A recent threat of violence or act of violence by the subject of the petition directed toward himself or herself;
   3. A violation of an emergency protective order that is in effect at the time the court is considering the petition;
   4. A recent violation of an unexpired protective order;
   5. A conviction for any specified offense resulting in firearm possession restrictions; or,
   6. 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.
8. States that 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, if the restrained person can reasonably be located. When serving a gun violence restraining order, a law enforcement officer shall inform the restrained person of the hearing that will be scheduled to determine whether to issue a gun violence restraining order.
9. Requires, within 21 days from the date an ex parte gun violence restraining order was issued, before the court that issued the order or another court in the same jurisdiction, the court to hold a hearing to determine if a gun violence restraining order should be issued.
10. Allows an immediate family member of a person or a law enforcement officer to request a court, after notice and a hearing, to 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.
11. States 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 or herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition; and,
    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.
12. Provides 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. 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.
13. Requires the court to inform the restrained person that he or she is entitled to one hearing to request a termination of the gun violence restraining order and provide the restrained person with a form to request a hearing.
14. States that it is a misdemeanor offense for every person who files 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.
15. Provides that it is a misdemeanor offense for every person who owns or possesses a firearm or ammunition with knowledge that he or she is prohibited from doing so by a gun violence restraining order and he or she 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.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: Author's Statement: According to the author, "Gun violence and mass shootings can no longer be tolerated or accepted. We need to provide the people in all our communities with more tools to take firearms out of the hands of individuals that pose a deadly threat to themselves and others. Family members, co-workers, employers, and teachers are most likely to see early warning signs if someone is becoming a danger to themselves or others.

"In these circumstances, existing law enables family members and law enforcement to prevent gun-related tragedies before they happen by pursuing a gun violence restraining order (GVRO) in court. If granted by a court, a GVRO results in a temporary seizure of firearms possessed by a dangerous individual and a prohibition of their ability to purchase new firearms. This bill logically expands who can petition a court for a GVRO by adding co-workers, employers, and teachers."

GOVERNOR'S VETO MESSAGE:

This bill would authorize an employer, coworker, employee of a secondary or postsecondary school that the person has attended in the last six months, to file a petition for a gun violence restraining order against an individual.

All of the persons named in this bill can seek a gun violence restraining order today under existing law by simply working through law enforcement or the immediate family of the concerning individual. I think law enforcement professionals and those closest to a family member are best situated to make these especially consequential decisions.

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0005290

 THIRD READING  

Bill No: AB 2888

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/19/18

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Anderson, Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/16/18

AYES: Portantino, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 48-25, 5/21/18 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill authorizes an employer, a coworker, an employee of a secondary school, or postsecondary school the person has attended in the last six months, to file a petition requesting a court to issue a gun violence restraining order (GVRO), as specified.

ANALYSIS:

Existing law:

1. Defines a "GVRO" as "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." (Pen. Code, § 18100.)
2. Requires the court to notify the Department of Justice (DOJ) when a GVRO is issued, renewed, dissolved, or terminated. (Pen. Code, § 18115.)
3. Prohibits a person that is subject to a GVRO from having in his or her custody any firearms or ammunition while the order is in effect. (Pen. Code, § 18120, subd. (a).)
4. Requires the court to order the restrained person to surrender all firearms and ammunition in his or her control. (Pen. Code, § 18120, subd. (b)(1).)
5. States that the officer serving the GVRO shall request the surrender of all firearms or ammunition immediately, or in the alternative, the surrender shall occur within 24 hours of being served with the GVRO by surrendering all firearms and ammunition in a safe manner to the control of the local law enforcement agency, selling all firearms and ammunition to a licensed firearms dealer, or transferring all firearms and ammunition to a licensed firearms dealer. (Pen. Code, § 18120, subd. (b)(2).)
6. Allows law enforcement to seek a temporary GVRO if the officer asserts, and the court finds, that there is reasonable cause to believe the following:
7. The subject of the petition poses an immediate and present danger of causing injury to himself or another by possessing a firearm; and,
8. The emergency GVRO is necessary to prevent personal injury to the subject of the order or another because less restrictive alternatives have been tried and been ineffective or have been determined to be inadequate under the circumstances. (Pen. Code, § 18125, subd. (a).)
9. States that a temporary GVRO shall expire 21 days from the date the order is issued. (Pen. Code, § 18125, subd. (b).)
10. Requires the presiding judge of the superior court of each county to designate at least one judge, commissioner, or referee who shall be reasonably available to issue temporary emergency GVROs when the court is not in session. (Pen. Code, § 18145, subd. (b).)
11. Requires a law enforcement officer seeking a temporary GVRO to do all of the following:
12. Memorialize the order of the court on the form approved by the Judicial Council, if the order is obtained orally;
13. Serve the order on the restrained person, if the restrained person can reasonably be located;
14. File a copy of the order with the court as soon as practicable after issuance; and,
15. Have the order entered into the computer database system for protective and restraining orders maintained by the DOJ. (Pen. Code, § 18140.)

Allows an immediate family member or law enforcement officer to file a petition requesting that the court issue an ex parte GVRO enjoining a person from having in his or her custody or control, owning, purchasing, or receiving a firearm or ammunition. (Pen. Code, § 18150, subd. (a)(1).)

Defines "immediate family member" as specified. (Pen. Code, 18150, subd. (a)(2).)

Allows a court to issue an ex parte GVRO if an affidavit, made in writing and signed by the petitioner under oath, or an oral statement, and any additional information provided to the court on a showing of good cause that the subject of the petition poses a significant risk of personal injury to himself, herself, or another by having under his or her custody and control, owning, purchasing, possessing, or receiving a firearm as determined by balancing specified factors. (Pen. Code, §§ 18150, subd. (b) & 18155.)

Requires a law enforcement officer to serve the ex parte GVRO on the restrained person, if the restrained person can reasonably be located. When serving a gun violence restraining order, the law enforcement officer shall inform the restrained person that he or she is entitled to a hearing and provide the restrained person with a form to request a hearing. (Pen. Code, § 18160.)

Allows the restrained person who owns a firearm or ammunition that is in the custody of a law enforcement agency pursuant to this subdivision, if the firearm is an otherwise legal firearm, and the restrained person otherwise has right to title of the firearm, to sell or transfer title of the firearm to a licensed dealer. (Pen. Code, § 18120, subd. (c)(2).)

Entitles the restrained person to a hearing to determine the validity of the order within 21 days after the date on the order. (Pen. Code, § 18165.)

Allows an immediate family member or law enforcement officer to file a petition requesting that the court issue a GVRO after notice and a hearing enjoining a person from having in his or her custody or control, owning, purchasing, or receiving a firearm or ammunition. (Pen. Code, § 18170.)

States that at the hearing, the petitioner has the burden of proof, which is to establish by clear and convincing evidence that the person poses a significant danger of causing personal injury to himself, herself, or another by having under his or her custody and control, owning, purchasing, possessing, or receiving a firearm. (Pen. Code, § 18175, subd. (b).)

Allows a restrained person to file one written request for a hearing to terminate the order. (Pen. Code, 18185.)

Allows a request for renewal of a GVRO. (Pen. Code, § 18190.)

States that every person who files a petition for an ex parte GVRO or a GVRO issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass, is guilty of a misdemeanor. (Pen. Code, § 18200.)

States that every person who violates an ex parte GVRO or a GVRO issued after notice and a hearing, is guilty of a misdemeanor and shall be prohibited from having under his or her custody and control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a five-year period, to commence upon the expiration of the existing gun violence restraining order. (Pen. Code, § 18205.)

This bill:

1. Authorizes an employer, a coworker, an employee of a secondary school, or postsecondary school the person has attended in the last six months, to file a petition requesting a court to issue an ex parte GVRO, a GVRO issued after notice and a hearing, or a renewal of a GVRO.
2. Clarifies that persons are not required to seek a GVRO.

Background

California's GVRO laws, modeled after domestic violence restraining order laws, went into effect on January 1, 2016. A GVRO will prohibit the restrained person from purchasing or possessing firearms or ammunition and authorizes law enforcement to remove any firearms or ammunition already in the individual's possession.

The statutory scheme establishes three types of GVRO's: a temporary emergency GVRO, an ex parte GVRO, and a GVRO issued after notice and hearing. A document prepared by Judicial Council describes the different types of GVRO in further detail:

There are three major differences between the “temporary” and “ex parte” orders. First, the temporary order may only be requested by a law enforcement officer, while the ex parte order may be requested by a law enforcement officer or an immediate family member (as defined). Second, the temporary order expires in 21 days with no procedure for extending it or making it “permanent;” the ex parte order also expires in 21 days, but provides for a hearing to be held within 21 days to issue a GV order with a duration of one year. With the temporary order, before the 21 days are up, the law enforcement officer can petition for an order after hearing. The third difference is in the showing required to get the order. The temporary order requires a showing of immediate and present danger, while the ex parte order requires a showing of a significant danger in the near future. The temporary order may also be obtained by using the procedures to obtain an oral search warrant if time and circumstances do not permit the filing of a petition. Hence, the temporary order is a tool to be used by law enforcement in an emergency situation, when there is a perceived need to remove guns from someone acting erratically and aggressively and to prohibit him or her from possessing a firearm. If the restraining order is issued and the restrained party has not relinquished the firearm, then under the amendments to Penal Code section 1524(a)(14), a search warrant for the firearm can be issued. In summary, law enforcement can seek a temporary order in an emergency or an ex parte order for danger in the near future. A family member can only seek an ex parte order. Either may seek an order after hearing.

(http://www.courts.ca.gov/documents/SPR15-13.pdf [as of May 30, 2018], pg. 3.)

An ex parte GVRO is based on an affidavit filed by the petitioner which sets forth the facts establishing the grounds for the order. The court will determine whether good cause exists to issue the order. If the court issues the order, the restrained person must surrender to a local law enforcement agency all firearms and ammunition in his or her custody or control, or which he or she possesses or owns, or sell or transfer all firearms and ammunition to a licensed gun dealer within 24 hours of the order, and is prohibited from acquiring more guns or ammunition. The order can remain in effect for 21 days. Within that time frame, the court must provide an opportunity for a hearing. At the hearing, the court can determine whether the firearms should be returned to the restrained person, or whether it should issue a more permanent order.

Finally, if the court issues a GVRO after notice and hearing has been provided to the person to be restrained, the order can last for up to one year. The restrained person may request another hearing during the period of the prohibition to terminate the order. The duration of the GVRO may be renewed for another year or terminated early as determined by the court.

According to data from DOJ, since the law went into effect in 2016, courts issued GVROs 86 times in 2016 and 104 times in 2017. Los Angeles County had the highest number of GVROs issued for a total of 32 from 2016 to 2017. The county with the second highest number was Santa Barbara with 21 GVROs. The county that had the highest number of GVROs per capita was Contra Costa. (Koseff, ‘Best tool’ to prevent gun violence is rarely used in California, Sacramento Bee (Mar. 29, 2018) < http://www.sacbee.com/latest-news/article206994229. htmlnews/article206994229.html [as of Apr. 5, 2018].)

This bill adds to the list of persons who may seek a GVRO, not including a temporary emergency GVRO which may only be requested by law enforcement. The added persons include an employer, a coworker, and an employee of a secondary or postsecondary school that the person has attended in the last six months.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• GVRO petitions: Potentially-significant workload cost pressure to the court to the extent that expanding the population of individuals eligible to petition the court for a GVRO results in additional petitions filed, subsequently prompting new hearings and the issuance of warrants and GVROs. (General Fund*)
• APPS administration & enforcement: Potential increase in costs to the DOFfor administration and enforcement of the Armed Prohibited Persons System (APPS) list to the extent that expanding the population of individuals eligible to petition for GVROs increases workload to monitor changes to the APPS list based on new GVROs issued, renewed, dissolved, or terminated. (Special fund**)
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found guilty of (i) violations of GVROs, (ii) violations of the subsequent five-year firearms/ammunition prohibition due to violating a GVRO, and (iii) filing GVRO petitions with false information or with the intent to harass. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)
• Mandated law enforcement activities: Potential increase in local law enforcement agency costs, potentially state-reimbursable to retain surrendered firearms and ammunition during the restraining order period, issue a receipt to the restrained person at the time of surrender, and serve ex-parte orders. (General Fund)

*Trial Court Trust Fund

**Dealers Record of Sale (DROS) Special Account

SUPPORT: (Verified 8/16/18)

American Academy of Pediatrics California

Bay Area Student Activists

California Chapters of the Brady Campaign to Prevent Gun Violence

Coalition Against Gun Violence

Giffords Law Center to Prevent Gun Violence

John Hartman, Third District Santa Barbara County Supervisor

National Association of Social Workers – California Chapter

Women Against Gun Violence

OPPOSITION: (Verified 8/16/18)

American Civil Liberties Union of California

Firearms Policy Coalition

National Rifle Association of America

ASSEMBLY FLOOR: 48-25, 5/21/18

AYES: Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooper, Daly, Frazier, Friedman, Gipson, Gloria, Gonzalez Fletcher, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Quirk-Silva, Reyes, Rodriguez, Rubio, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Acosta, Travis Allen, Bigelow, Brough, Chávez, Chen, Choi, Cooley, Cunningham, Dahle, Flora, Fong, Gallagher, Harper, Kiley, Lackey, Mathis, Mayes, Melendez, Obernolte, Patterson, Salas, Steinorth, Voepel, Waldron

NO VOTE RECORDED: Eggman, Cristina Garcia, Eduardo Garcia, Gray, Quirk

Prepared by:

8/18/18 14:55:26

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2888 (Ting) - Gun violence restraining orders

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2888 would expand the population of individuals eligible to petition the court for a gun violence restraining order (GVRO), as specified.

Fiscal Impact:

• GVRO petitions: Potentially-significant workload cost pressure to the court to the extent that expanding the population of individuals eligible to petition the court for a GVRO results in additional petitions filed, subsequently prompting new hearings and the issuance of warrants and GVROs. (General Fund*)
• APPS administration & enforcement: Potential increase in costs to the Department of Justice for administration and enforcement of the Armed Prohibited Persons System (APPS) list to the extent that expanding the population of individuals eligible to petition for GVROs increases workload to monitor changes to the APPS list based on new GVROs issued, renewed, dissolved, or terminated. (Special fund**)
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found guilty of (i) violations of GVROs, (ii) violations of the subsequent five-year firearms/ammunition prohibition due to violating a GVRO, and (iii) filing GVRO petitions with false information or with the intent to harass. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)
• Mandated law enforcement activities: Potential increase in local law enforcement agency costs, potentially state-reimbursable to retain surrendered firearms and ammunition during the restraining order period, issue a receipt to the restrained person at the time of surrender, and serve ex-parte orders. (General Fund)

*Trial Court Trust Fund

**Dealers Record of Sale (DROS) Special Account

Background:

Gun violence restraining orders, modeled after domestic violence restraining orders, prohibit the restrained person from purchasing or possessing firearms or ammunition and allows law enforcement to remove any firearms or ammunition already in the individual's possession. There are three types of GVROs: a temporary emergency GVRO, an ex parte GVRO, and a GVRO issued after notice and a hearing. The temporary emergency GVRO may be sought by a law enforcement official and expires after twenty-one days. An ex parte GVRO may be obtained by a law enforcement official or an immediate family member, as defined, and also lasts for twenty-one days. The ex parte GVRO may be extended by the court to a full GVRO. A GVRO issued after notice and hearing can remain in place for up to one year. The order may be renewed for another year or terminated early at the decision of the court. The person who is the subject of the GVRO may request another hearing during the period of prohibition to ask the court to terminate the order.

Proposed Law:

This bill would expand the population of individuals (beyond immediate family members and law enforcement officers) eligible to petition the court for an ex parte, one-year, or renewed GVRO to include the following persons:

• An employer.
• A coworker.
• An employee of a secondary or postsecondary school that a person has attended in the last six months.

Related Legislation:

SB 1200 (Skinner, 2018) would expand the definition of a firearm and ammunition for purposes of a GVRO and eliminate specified fees with attempting to obtain the order. SB 1200 is pending in the Assembly Committee on Appropriations.

AB 1014 (Skinner, Ch. 872, Stats. 2014) allowed a law enforcement officer or immediate family member of a person to seek, and a court to issue, a GVRO, as specified, prohibiting a person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition, as specified.

AB 2607 (Ting, 2016), which was substantially similar to this bill but also would have allowed mental health workers to seek a GVRO, was vetoed by the governor with the following message: “In 2014, I signed Assembly Bill 1014 which allowed immediate family members and members of law enforcement to petition for a gun violence restraining order. That law took effect on January 1, 2016, so at this point it would be premature to enact a further expansion.”

Staff Comments:

All implementation costs borne by DOJ resulting from this measure would be funded through the DROS Account, which is structurally imbalanced. The 2018-19 proposed expenditure from the account exceeds the estimated revenue by over $700,000, leaving a diminished estimated reserve of $5.5 million. Actual costs associated with this measure would be dependent of the volume of petitions filed by the expanded population. The number of additional petitions filed cannot be known with certainty, but to the extent even one or two petitions are filed in each county per year, estimated costs to the courts could be in the low hundreds of thousands of dollars annually statewide. California courts were allowed to issue GVROs commencing in 2016. Since that time, the GVRO has been used relatively infrequently, respective to other states that have a similar option available. In 2016, the court issued eighty-six orders. That number increased by 21 percent in 2017 to 104 orders. California, however, could follow the trend experienced by other states like Connecticut, which saw fewer than ten orders (or “warrants”) issued in the first eight years but significantly increased the number after the 2007 mass shooting at Virginia Tech. Connecticut, which has a fraction of the population of California, went on to issue 726 gun violence prevention warrants through 2013. By expanding the categories of individuals who may petition the court for a GVRO, this bill could additionally increase the number of petitions that the court would be required to decide.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 2888 Hearing Date: June 19, 2018

Subject: Gun Violence Restraining Orders

HISTORY

Source: Author

Prior Legislation: AB 2607 (Ting), 2016, vetoed

AB 950 (Melendez), Ch. 205, Stats. 2015

AB 225 (Melendez), 2015, failed Assembly Public Safety

SB 505 (Jackson), Ch. 918, Stats. 2014

AB 1014 (Skinner), Ch. 872, Stats. 2014

Support: American Academy of Pediatrics California; Bay Area Student Activists; California Chapters of the Brady Campaign to Prevent Gun Violence; Coalition Against Gun Violence; Giffords Law Center to Prevent Gun Violence; National Association of Social Workers – California Chapter; Women Against Gun Violence; John Hartman, Third District Santa Barbara County Supervisor

Opposition: American Civil Liberties Union of California; Firearms Policy Coalition; National Rifle Association of America

Assembly Floor Vote: 48 - 25

PURPOSE

The purpose of this bill is to authorize an employer, a coworker, an employee of a secondary school, or postsecondary school the person has attended in the last six months, to file a petition requesting a court to issue a gun violence restraining order (GVRO), as specified.

Existing law defines a "GVRO" as "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." (Pen. Code, § 18100.)

Existing law requires the court to notify the Department of Justice (DOJ) when a GVRO is issued, renewed, dissolved, or terminated. (Pen. Code, § 18115.)

Existing law prohibits a person that is subject to a GVRO from having in his or her custody any firearms or ammunition while the order is in effect. (Pen. Code, § 18120, subd. (a).)

Existing law requires the court to order the restrained person to surrender all firearms and ammunition in his or her control. (Pen. Code, § 18120, subd. (b)(1).)

Existing law states that the officer serving the GVRO shall request the surrender of all firearms or ammunition immediately, or in the alternative, the surrender shall occur within 24 hours of being served with the GVRO by surrendering all firearms and ammunition in a safe manner to the control of the local law enforcement agency, selling all firearms and ammunition to a licensed firearms dealer, or transferring all firearms and ammunition to a licensed firearms dealer. (Pen. Code, § 18120, subd. (b)(2).)

Existing law allows law enforcement to seek a temporary GVRO if the officer asserts, and the court finds, that there is reasonable cause to believe the following:

1. The subject of the petition poses an immediate and present danger of causing injury to himself or another by possessing a firearm; and,
2. The emergency GVRO is necessary to prevent personal injury to the subject of the order or another because less restrictive alternatives have been tried and been ineffective or have been determined to be inadequate under the circumstances. (Pen. Code, § 18125, subd. (a).)

Existing law states that a temporary GVRO shall expire 21 days from the date the order is issued. (Pen. Code, § 18125, subd. (b).)

Existing law requires the presiding judge of the superior court of each county to designate at least one judge, commissioner, or referee who shall be reasonably available to issue temporary emergency GVROs when the court is not in session. (Pen. Code, § 18145, subd. (b).)

Existing law requires a law enforcement officer seeking a temporary GVRO to do all of the following:

1. Memorialize the order of the court on the form approved by the Judicial Council, if the order is obtained orally;
2. Serve the order on the restrained person, if the restrained person can reasonably be located;
3. File a copy of the order with the court as soon as practicable after issuance; and,
4. Have the order entered into the computer database system for protective and restraining orders maintained by the DOJ. (Pen. Code, § 18140.)

Existing law allows an immediate family member or law enforcement officer to file a petition requesting that the court issue an ex parte GVRO enjoining a person from having in his or her custody or control, owning, purchasing, or receiving a firearm or ammunition. (Pen. Code, § 18150, subd. (a)(1).)

Existing law defines "immediate family member" as specified. (Pen. Code, 18150, subd. (a)(2).)

Existing law allows a court to issue an ex parte GVRO if an affidavit, made in writing and signed by the petitioner under oath, or an oral statement, and any additional information provided to the court on a showing of good cause that the subject of the petition poses a significant risk of personal injury to himself, herself, or another by having under his or her custody and control, owning, purchasing, possessing, or receiving a firearm as determined by balancing specified factors. (Pen. Code, §§ 18150, subd. (b) & 18155.)

Existing law requires a law enforcement officer to serve the ex parte GVRO on the restrained person, if the restrained person can reasonably be located. When serving a gun violence restraining order, the law enforcement officer shall inform the restrained person that he or she is entitled to a hearing and provide the restrained person with a form to request a hearing. (Pen. Code, § 18160.)

Existing law allows the restrained person who owns a firearm or ammunition that is in the custody of a law enforcement agency pursuant to this subdivision, if the firearm is an otherwise legal firearm, and the restrained person otherwise has right to title of the firearm, to sell or transfer title of the firearm to a licensed dealer. (Pen. Code, § 18120, subd. (c)(2).)

Existing law entitles the restrained person to a hearing to determine the validity of the order within 21 days after the date on the order. (Pen. Code, § 18165.)

Existing law allows an immediate family member or law enforcement officer to file a petition requesting that the court issue a GVRO after notice and a hearing enjoining a person from having in his or her custody or control, owning, purchasing, or receiving a firearm or ammunition. (Pen. Code, § 18170.)

Existing law states that at the hearing, the petitioner has the burden of proof, which is to establish by clear and convincing evidence that the person poses a significant danger of causing personal injury to himself, herself, or another by having under his or her custody and control, owning, purchasing, possessing, or receiving a firearm. (Pen. Code, § 18175, subd. (b).)

Existing law allows a restrained person to file one written request for a hearing to terminate the order. (Pen. Code, 18185.)

Existing law allows a request for renewal of a GVRO. (Pen. Code, § 18190.)

Existing law states that every person who files a petition for an ex parte GVRO or a GVRO issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass, is guilty of a misdemeanor. (Pen. Code, § 18200.)

Existing law states that every person who violates an ex parte GVRO or a GVRO issued after notice and a hearing, is guilty of a misdemeanor and shall be prohibited from having under his or her custody and control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a five-year period, to commence upon the expiration of the existing gun violence restraining order. (Pen. Code, § 18205.)

This bill authorizes an employer, a coworker, an employee of a secondary school, or postsecondary school the person has attended in the last six months, to file a petition requesting a court to issue an ex parte GVRO, a GVRO issued after notice and a hearing, or a renewal of a GVRO.

This bill clarifies that persons are not required to seek a GVRO.

COMMENTS

1. Need for This Bill

According to the author of this bill:

Gun violence and mass shootings can no longer be tolerated or accepted. We need to provide the people in all our communities with more tools to take firearms out of the hands of individuals that pose deadly threat to themselves and others. Family members, co-workers, employers, and teachers are the most likely to see early warning signs if someone is becoming a danger to them self or others.

In these circumstances, existing law enables family members and law enforcement to prevent gun-related tragedies before they happen by pursuing a gun violence restraining order (GVRO) in court. If granted by a court, a GVRO results in a temporary seizure of firearms possessed by the dangerous individual and a prohibition of their ability to purchase new firearms. This bill logically expands who can petition a court for a GVRO by adding co-workers, employers, and teachers

1. California’s GVRO law

California's GVRO laws, modeled after domestic violence restraining order laws, went into effect on January 1, 2016. A GVRO will prohibit the restrained person from purchasing or possessing firearms or ammunition and authorizes law enforcement to remove any firearms or ammunition already in the individual's possession.

The statutory scheme establishes three types of GVRO's: a temporary emergency GVRO, an ex parte GVRO, and a GVRO issued after notice and hearing. A document prepared by Judicial Council describes the different types of GVRO in further detail:

There are three major differences between the “temporary” and “ex parte” orders. First, the temporary order may only be requested by a law enforcement officer, while the ex parte order may be requested by a law enforcement officer or an immediate family member (as defined). Second, the temporary order expires in 21 days with no procedure for extending it or making it “permanent;” the ex parte order also expires in 21 days, but provides for a hearing to be held within 21 days to issue a GV order with a duration of one year. With the temporary order, before the 21 days are up, the law enforcement officer can petition for an order after hearing. The third difference is in the showing required to get the order. The temporary order requires a showing of immediate and present danger, while the ex parte order requires a showing of a significant danger in the near future. The temporary order may also be obtained by using the procedures to obtain an oral search warrant if time and circumstances do not permit the filing of a petition. Hence, the temporary order is a tool to be used by law enforcement in an emergency situation, when there is a perceived need to remove guns from someone acting erratically and aggressively and to prohibit him or her from possessing a firearm. If the restraining order is issued and the restrained party has not relinquished the firearm, then under the amendments to Penal Code section 1524(a)(14), a search warrant for the firearm can be issued. In summary, law enforcement can seek a temporary order in an emergency or an ex parte order for danger in the near future. A family member can only seek an ex parte order. Either may seek an order after hearing.

(http://www.courts.ca.gov/documents/SPR15-13.pdf [as of May 30, 2018], pg. 3.)

An ex parte GVRO is based on an affidavit filed by the petitioner which sets forth the facts establishing the grounds for the order. The court will determine whether good cause exists to issue the order. If the court issues the order, the restrained person must surrender to a local law enforcement agency all firearms and ammunition in his or her custody or control, or which he or she possesses or owns, or sell or transfer all firearms and ammunition to a licensed gun dealer within 24 hours of the order, and is prohibited from acquiring more guns or ammunition. The order can remain in effect for 21 days. Within that time frame, the court must provide an opportunity for a hearing. At the hearing, the court can determine whether the firearms should be returned to the restrained person, or whether it should issue a more permanent order.

Finally, if the court issues a GVRO after notice and hearing has been provided to the person to be restrained, the order can last for up to one year. The restrained person may request another hearing during the period of the prohibition to terminate the order. The duration of the GVRO may be renewed for another year or terminated early as determined by the court.

According to data from DOJ, since the law went into effect in 2016, courts issued GVROs 86 times in 2016 and 104 times in 2017. Los Angeles County had the highest number of GVROs issued for a total of 32 from 2016 to 2017. The county with the second highest number was Santa Barbara with 21 GVROs. The county that had the highest number of GVROs per capita was Contra Costa. (Koseff, ‘Best tool’ to prevent gun violence is rarely used in California, Sacramento Bee (Mar. 29, 2018) < http://www.sacbee.com/latest-news/article206994229.htmlnews/article206994229.html> [as of Apr. 5, 2018].)

This bill adds to the list of persons who may seek a GVRO, not including a temporary emergency GVRO which may only be requested by law enforcement. The added persons include an employer, a coworker, and an employee of a secondary or postsecondary school that the person has attended in the last six months.

1. Prior Legislation

AB 2607 (Ting), of the 2015-2016 Legislative Session, was substantially similar to this bill, although AB 2607 had included a mental health worker who has seen the person as a patient in the prior six months as a person who may also seek a GVRO, which is not included in this bill.

AB 2607 was vetoed by the Governor. The Governor’s veto message stated:

This bill expands the list of individuals who are authorized to petition for a gun violence restraining order.

In 2014, I signed Assembly Bill 1014 which allowed immediate family members and members of law enforcement to petition for a gun violence restraining order. That law took effect on January 1, 2016, so at this point it would be premature to enact a further expansion.

1. Argument in Support

According to the Giffords Law Center to Prevent Gun Violence:

Prior to the June 12, 2016 shooting at a gay night club in Orlando, Florida, the gunman’s co-workers had also repeatedly reported that he was “dangerous,” “unstable,” and “unhinged,” and that he had made credible threats of violence and of committing a mass shooting. One former co-worker told reporters, “When news broke of the shooting . . . I absolutely knew he was the shooter.” By contrast, the gunman’s father said his family was “not aware of any action he [was] taking” and “in shock like the whole country;” though the gunman’s wife believed her husband was planning to attack a gay nightclub, she made no attempt to notify law enforcement. (Fn. omitted.)

In cases like this, where family members are unable or unwilling to help disarm a dangerous person, other well-situated individuals should be able to proactively and directly intervene. But existing California law provides no legal standing for co-workers and others with unique personal about a potential gunman’s dangerousness to petition a court to hear relevant information and issue a GVRO. AB 2888 would simply empower more community members to “see something and say something” by filing a sworn petition to a judge when they observe serious threats and imminent to public safety.

1. Argument in Opposition

American Civil Liberties Union of California writes in opposes the bill’s expansion of persons authorized to seek ex parte orders:

The statutory scheme creating the Gun Violence Restraining Order (Penal Code §§ 18100-18205) was established in 2014 (AB 1014, Skinner). Under this scheme a family member, or any law enforcement officer, who has reason to believe a person owns a gun and poses a significant danger to themselves or others, may petition the court for an ex parte order to prohibit the subject from possessing a gun for up to 21 days, at which time a hearing is held to determine whether to extend the order for up to one year.

An ex parte order means the person subjected to the restraining order is not informed of the court proceedings and therefore has no opportunity to contest the allegations. We support efforts to prevent gun violence, but we must balance that important goal with protection of civil liberties so we do not sacrifice one in an attempt to accomplish the other. We believe AB 1014 was crafted in order to properly strike that balance. By expanding the parties that could apply for such an ex parte restraining order to include all the parties listed above, many of whom lack the relationship or skills required to make an appropriate assessment, AB 2888 upsets that balance and creates significant potential for civil rights violations.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 2888

Author:(Ting, et al.)

As Amended Ver:April 18, 2018

Majority vote

SUMMARY: Authorizes an employer, a coworker, an employee of a secondary school, or postsecondary school the person has attended in the last six months, to file a petition requesting a court to issue an ex parte gun violence restraining order (GVRO), a one year GVRO, or a renewal of a GVRO, and clarifies that a person is not required to seek a GVRO.

EXISTING LAW:

1. Permits persons who are subject to domestic violence restraining orders to surrender their weapons to licensed firearms dealers for storage during the period they are not permitted to possess firearms.
2. States that the provisions of law establishing gun violence restraining orders shall take effect on January 1, 2016.
3. Requires, upon issuance of a gun violence restraining order, the court to 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.
4. Allows an immediate family member of a person or a law enforcement officer to file a petition requesting that the court issue an ex parte gun violence restraining order, that expires no later than 21 days from the date of the 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.
5. States that the court, before issuing an ex parte gun violence restraining order, shall examine on oath, the petitioner and any witness the petitioner may produce, or 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.
6. Requires a showing that the subject of the petition poses a significant danger, in the near future, of personal injury to himself or herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering specified factors and that less restrictive alternative have been ineffective, or are inappropriate for the situation, before an ex parte gun violence restraining order may be issued.
7. Specifies in determining whether grounds for a gun violence restraining order exist, the court shall consider all evidence of the following:
   1. A recent threat of violence or act of violence by the subject of the petition directed toward another;
   2. A recent threat of violence or act of violence by the subject of the petition directed toward himself or herself;
   3. A violation of an emergency protective order that is in effect at the time the court is considering the petition;
   4. A recent violation of an unexpired protective order;
   5. A conviction for any specified offense resulting in firearm possession restrictions; or,
   6. 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.
8. States that 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, if the restrained person can reasonably be located. When serving a gun violence restraining order, a law enforcement officer shall inform the restrained person of the hearing that will be scheduled to determine whether to issue a gun violence restraining order.
9. Requires, within 21 days from the date an ex parte gun violence restraining order was issued, before the court that issued the order or another court in the same jurisdiction, the court to hold a hearing to determine if a gun violence restraining order should be issued.
10. Allows an immediate family member of a person or a law enforcement officer to request a court, after notice and a hearing, to 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.
11. States 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 or herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition; and,
    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.
12. Provides 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. 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.
13. Requires the court to inform the restrained person that he or she is entitled to one hearing to request a termination of the gun violence restraining order and provide the restrained person with a form to request a hearing.
14. States that it is a misdemeanor offense for every person who files 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.
15. Provides that it is a misdemeanor offense for every person who owns or possesses a firearm or ammunition with knowledge that he or she is prohibited from doing so by a gun violence restraining order and he or she 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.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: Author's Statement: According to the author, "Gun violence and mass shootings can no longer be tolerated or accepted. We need to provide the people in all our communities with more tools to take firearms out of the hands of individuals that pose a deadly threat to themselves and others. Family members, co-workers, employers, and teachers are most likely to see early warning signs if someone is becoming a danger to themselves or others.

"In these circumstances, existing law enables family members and law enforcement to prevent gun-related tragedies before they happen by pursuing a gun violence restraining order (GVRO) in court. If granted by a court, a GVRO results in a temporary seizure of firearms possessed by a dangerous individual and a prohibition of their ability to purchase new firearms. This bill logically expands who can petition a court for a GVRO by adding co-workers, employers, and teachers."

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0002732

Date of Hearing:

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 2888

Author:(Ting) – As Amended Ver:April 18, 2018

SUMMARY:

Authorizes an employer, a coworker, an employee of a secondary school, or postsecondary school the person has attended in the last six months, to file a petition requesting a court to issue an ex parte gun violence restraining order (GVRO), a one year GVRO, or a renewal of a GVRO, and clarifies that a person is not required to seek a GVRO.

EXISTING LAW:

1. Permits persons who are subject to domestic violence restraining orders to surrender their weapons to licensed firearms dealers for storage during the period they are not permitted to possess firearms. (Pen. Code, § 29380.)
   
2. States that the provisions of law establishing gun violence restraining orders shall take effect on January 1, 2016. (Pen. Code, § 18122.)
   
3. Requires, upon issuance of a gun violence restraining order, the court to 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. (Pen. Code, § 18120, subd. (b)(1).)
   
4. Allows an immediate family member of a person or a law enforcement officer to file a petition requesting that the court issue an ex parte gun violence restraining order, that expires no later than 21 days from the date of the 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. (Pen. Code, §§ 18150 and 18155, subd. (c).)
   
5. States that the court, before issuing an ex parte gun violence restraining order, shall examine on oath, the petitioner and any witness the petitioner may produce, or 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. (Pen. Code, § 18155, subd. (a).)
   
6. Requires a showing that the subject of the petition poses a significant danger, in the near future, of personal injury to himself or herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering specified factors and that less restrictive alternative have been ineffective, or are inappropriate for the situation, before an ex parte gun violence restraining order may be issued. (Pen. Code, § 18150, subd. (b).)
   
7. Specifies in determining whether grounds for a gun violence restraining order exist, the court shall consider all evidence of the following:
   
   1. A recent threat of violence or act of violence by the subject of the petition directed toward another;
      
   2. A recent threat of violence or act of violence by the subject of the petition directed toward himself or herself;
      
   3. A violation of an emergency protective order that is in effect at the time the court is considering the petition;
      
   4. A recent violation of an unexpired protective order;
      
   5. A conviction for any specified offense resulting in firearm possession restrictions; or,
      
   6. 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. (Pen. Code, § 18155, subd. (b)(1).)
      
8. States that 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, if the restrained person can reasonably be located. When serving a gun violence restraining order, a law enforcement officer shall inform the restrained person of the hearing that will be scheduled to determine whether to issue a gun violence restraining order. (Pen. Code, § 18160, subd. (b).)
   
9. Requires, within 21 days from the date an ex parte gun violence restraining order was issued, before the court that issued the order or another court in the same jurisdiction, the court to hold a hearing to determine if a gun violence restraining order should be issued. (Pen. Code, § 18160, subd. (c).)
   
10. Allows an immediate family member of a person or a law enforcement officer to request a court, after notice and a hearing, to 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. (Pen. Code, § 18170.)
    
11. States 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 or herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition; and,
       
    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. (Pen. Code, § 18175, subd. (b).)
12. Provides 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. 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. (Pen. Code, § 18175, subd. (c).)
    
13. Requires the court to inform the restrained person that he or she is entitled to one hearing to request a termination of the gun violence restraining order and provide the restrained person with a form to request a hearing. (Pen. Code, § 18180, subd. (b).)
    
14. States that it is a misdemeanor offense for every person who files 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. (Pen. Code, § 18200.)
    
15. Provides that it is a misdemeanor offense for every person who owns or possesses a firearm or ammunition with knowledge that he or she is prohibited from doing so by a gun violence restraining order and he or she 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. (Pen. Code, § 18205.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Gun violence and mass shootings can no longer be tolerated or accepted. We need to provide the people in all our communities with more tools to take firearms out of the hands of individuals that pose a deadly threat to themselves and others. Family members, co-workers, employers, and teachers are most likely to see early warning signs if someone is becoming a danger to themselves or others.
   

"In these circumstances, existing law enables family members and law enforcement to prevent gun-related tragedies before they happen by pursuing a gun violence restraining order (GVRO) in court. If granted by a court, a GVRO results in a temporary seizure of firearms possessed by a dangerous individual and a prohibition of their ability to purchase new firearms. This bill logically expands who can petition a court for a GVRO by adding co-workers, employers, and teachers."

1. Gun Violence Restraining Orders: California's GVRO laws, modeled after domestic violence restraining order laws, went into effect on January 1, 2016. A GVRO will prohibit the restrained person from purchasing or possessing firearms or ammunition and authorizes law enforcement to remove any firearms or ammunition already in the individual's possession.
   
   The statutory scheme establishes three types of GVRO's: a temporary emergency GVRO, an ex parte GVRO, and a GVRO issued after notice and hearing. A law enforcement officer may seek a temporary emergency GVRO by submitting a written petition to or calling a judicial officer to request an order at any time of day or night. In contrast, an immediate family member or a law enforcement officer can petition for either an ex parte GVRO or a GVRO after notice and a hearing.
   
   An ex parte GVRO is based on an affidavit filed by the petitioner which sets forth the facts establishing the grounds for the order. The court will determine whether good cause exists to issue the order. If, the court issues the order, it can remain in effect for 21 days. Within that time frame, the court must provide an opportunity for a hearing. At the hearing, the court can determine whether the firearms should be returned to the restrained person, or whether it should issue a more permanent order.

Finally, if the court issues a GVRO after notice and hearing has been provided to the person to be restrained, this more permanent order can last for up to one year.

When AB 1014 (Skinner), which created the GVRO statutory scheme was considered in the Senate Public Safety Committee, the bill would have allowed anyone to request a gun violence restraining order. The committee analysis noted that "Only those with a close relationship to the person to be restrained can request a domestic violence protective order." The Committee questioned whether anyone should be allowed to petition for a GVRO. AB 1014 was subsequently amended in the Senate Appropriations Committee to only permit law enforcement and immediate family members to petition for a GVRO.

This bill would expand the class of people who are able to petition for a GVRO to enjoin an individual for possessing or purchasing a firearm. It would allow an employer, a coworker, oran employee of a secondary or postsecondary school that the person has attended in the last six months to seek such an order. While a mental health worker who has recently treated an individual should be in a position to know whether a person poses a danger to himself or others; employers, co-workers, and school personnel would not necessarily know this. It might depend on the work environment, the size of the place of employment, or the size of the school. Arguably these people do not necessarily have the kind of close relationship that the amendments to the original GVRO legislation sought to ensure.

1. Governor's Veto Message: AB 2607 of the 2016 legislative Session was similar to this bill in that it expanded the list of individuals that are authorized to petition the court to issue a GVRO. AB 2607 was vetoed by the Governor. The Governor's veto message stated, "In 2014, I signed Assembly Bill 1014 which allowed immediate family members and members of law enforcement to petition for a GVRO. That law took effect on January 1, 2016, so at this point it would be premature to enact a further expansion.
   
2. Argument in Support: According to the California Chapters of the Brady Campaign to Prevent Gun Violence, "Existing law allows law enforcement and immediate family members to petition the court to obtain a Gun Violence Restraining Order when a person is at risk of injury to self or others by having a firearm. The order would temporarily prohibit the purchase or possession of firearms while the order is in effect and would allow a warrant to be issued to seize firearms or ammunition from a person subject to the order. AB 2888 would similarly authorize an employer, a coworker, a mental health worker who has seen the person as a patient in the prior six months, or an employee of a secondary or postsecondary school that the person as a patient in the prior six months, or an employee of a secondary or postsecondary school that the person has attended in the last six months, to file a petition for a Gun Violence Restraining Order.

''Those who teach or work with a person and have frequent interaction may see the early warning signs and be the first to know that the person is at severe risk of harming self or others with a firearm. These people need the ability to directly petition the court for a temporary firearm prohibition, particularly if law enforcement is not responsive to an urgent concern. For example, last February, 17 people were killed and 17 more were injured at Stoneman Douglas High School in Parkland, Florida. The shooter was a former student of the school and there had been several warnings raised about his potential for violence. AB 2888 would provide school employees the opportunity to petition the court for a gun violence restraining order on a similar young person.

''The Gun Violence Restraining Order statute is modeled after California's domestic violence restraining order laws and ensures due process and a rigorous standard of proof. A noticed hearing before the court is required within 21 days. In fact, the law provides more protections than the state's domestic violence restraining order or mental health commitment laws. The person subject to the temporary order expires after one year (unless renewed) or is revoked by the court.''

1. Argument in Opposition: According to the American Civil Liberties Union, ''The ACLU of California does not oppose gun control measures that regulate the acquisition or use of guns – so long as those regulations contribute to public safety and do not raise civil liberties issues. Additionally, we do not oppose laws that authorize protective orders to remove guns from people who pose a risk to themselves or others, provided there are nondiscriminatory criteria for defining people as dangerous, and a fair process for those affected to object and be heard by a court.
   
   ''AB 2888, however, poses a significant threat to civil liberties by expanding the authorization to seek ex parte orders, with all the ensuing consequences, without an opportunity for the person to be heard or contest the matter.

''The statutory scheme creating the Gun Violence Restraining Order (Penal Code §§ 18100-18205) was established in 2014 (AB 1014, Skinner). Under this scheme a family member, or any law enforcement officer, who has reason to believe a person owns a gun and poses a significant danger to themselves or others, may petition the court for an ex parte order to prohibit the subject from possessing a gun for up to 21 days, at which time a hearing is held to determine whether to extend the order for to one year.

''An ex parte order means the person subject to the restraining order is not informed of the court proceeding and therefore has no opportunity to contest the allegations. We support the efforts to prevent gun violence, but we must balance that important goal with protection of civil liberties so we do not sacrifice one in an attempt to accomplish the other. We believe AB 1014 was crafted in order to properly strike that balance. By expanding the parties that could apply for such an ex parte restraining order to include all the parties listed above, many of whom lack the relationship or skills required to make an appropriate assessment, AB 2888 upsets that balance and creates significant potential for civil rights violations.''

1. Related Legislation: SB 1200 (Skinner) makes several clarifying changes to California’s GVRO law. First, it provides a definition for “firearm,” “firearm parts or components” and “ammunition” for purposes of the GVRO law and makes conforming changes to the notice required to be given to the restrained person. Second, the bill specifies that a law enforcement officer that serves a GVRO shall verbally ask at the time of service whether the restrained person has any firearm, firearm part or component, ammunition, or magazine in his or her possession or under his or her custody or control. Third, the bill requires the court to send a copy of the receipt that shows that all firearms and ammunition have been surrendered by the restrained person to DOJ within one business day of receiving the receipt. Fourth, under existing law temporary GVROs expire after 21 days of issuance. There is no specified mechanism for turning a temporary GVRO to a permanent one that lasts up to one year in current statute. This bill specifies that the court shall hold a hearing within 21 days of the issuance of the temporary GVRO and follow the process specified for issuing a GVRO after notice and hearing. Lastly, the bill prohibits certain fees, including filing fees, for an application, responsive pleading, or an order to show cause related to a GVRO, and exempts from any prepayment requirement for service of process for service of process of a GVRO.
   
2. Prior Legislation:
   
   1. AB 2607 (Ting) of the 2015-2016 Legislative Session was similar to this bill in that it authorized an employer, co-worker, or health care worker to file a petition requesting a court to issue a GVRO. AB 2607 was vetoed by the Governor.
      
   2. AB 1014 (Skinner), Chapter 872, Statutes of 2014, provided that commencing January 1, 2016, authorized a law enforcement officer or immediate family member of a person, to seek, and a court to issue, a GVRO, as specified, prohibiting that person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Chapters of the Brady Campaign to Prevent Gun Violence
Coalition Against Gun Violence
Giffords Law Center to Prevent Gun Violence
John Hartman, Santa Barbara County Supervisor

Opposition

American Civil Liberties Union
Firearms Policy Coalition

Analysis Prepared by:

Gregory Pagan / PUB. S. / (916) 319-3744