The Domestic Violence Prevention Act requires the court, before a hearing on the issuance or denial of a protective order, to ensure that a search of specified records and databases is or has been made to determine if the proposed subject of the order has, among other things, a registered firearm. Existing law limits the implementation of the registered firearm search requirement to courts identified by the Judicial Council as having resources currently available for those purposes. Existing law also limits the implementation of the registered firearm search requirement in other courts to the extent that funds are appropriated for those purposes in the annual Budget Act.

This bill would instead require the court to determine if the subject of the proposed order owns or possesses a firearm as reflected in the Department of Justice Automated Firearms System. The bill would repeal the limitation on the firearm search requirement, thereby extending the firearm search requirement to all courts. The bill would make related findings and declarations.

The Domestic Violence Prevention Act requires the court, before a hearing on the issuance or denial of a protective order, to ensure that a search of specified records and databases is or has been made to determine if the proposed subject of the order has, among other things, a registered firearm. Existing law limits the implementation of the registered firearm search requirement to courts identified by the Judicial Council as having resources currently available for those purposes. Existing law also limits the implementation of the registered firearm search requirement in other courts to the extent that funds are appropriated for those purposes in the annual Budget Act.

This bill would instead require the court to determine if the subject of the proposed order owns or possesses a firearm as reflected in the Department of Justice Automated Firearms System. The bill would repeal the limitation on the firearm search requirement, thereby extending the firearm search requirement to all courts. The bill would make related findings and declarations.

The Domestic Violence Prevention Act requires the court, before a hearing on the issuance or denial of a protective order, to ensure that a search of specified records and databases is or has been made to determine if the proposed subject of the order has, among other things, a registered firearm. Existing law limits the implementation of the registered firearm search requirement to courts identified by the Judicial Council as having resources currently available for those purposes. Existing law also limits the implementation of the registered firearm search requirement in other courts to the extent that funds are appropriated for those purposes in the annual Budget Act.

This bill would instead require the court to determine if the subject of the proposed order owns or possesses a firearm. firearm as reflected in the Department of Justice Automated Firearms System. The bill would repeal the limitation on the firearm search requirement, thereby extending the firearm search requirement to all courts. The bill would make related findings and declarations.

The Domestic Violence Prevention Act requires the court, before a hearing on the issuance or denial of a protective order, to ensure that a search of specified records and databases is or has been made to determine if the proposed subject of the order has, among other things, a registered firearm. Existing law limits the implementation of the registered firearm search requirement to courts identified by the Judicial Council as having resources currently available for those purposes. Existing law also limits the implementation of the registered firearm search requirement in other courts to the extent that funds are appropriated for those purposes in the annual Budget Act.

This bill would instead require the court to determine if the subject of the proposed order owns or possesses a firearm. The bill would repeal the limitation on the firearm search requirement, thereby extending the firearm search requirement to all courts. The bill would make related findings and declarations.

 CONSENT  

Bill No: AB 3083

Author: Lackey (R) and Alanis (R)

Amended: 4/3/24 in Assembly

Vote: 21

SENATE JUDICIARY COMMITTEE: 10-0, 6/18/24

AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Niello, Roth, Stern, Wahab

NO VOTE RECORDED: Laird

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 7/2/24

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 70-0, 5/22/24 - See last page for vote

SUBJECT: Domestic violence: protective orders: background checks

SOURCE: Author

DIGEST:

This bill requires that a court conduct a search, or cause a search to be conducted, to determine whether the subject of a proposed order under the Domestic Violence Prevention Act (DVPA) owns or possesses a firearm as reflected in the Department of Justice Automated Firearms System; this provision replaces a search requirement that is conditioned on whether the court has funds for the search, as specified.

ANALYSIS:

Existing law:

1. Establishes the DVPA, which sets forth procedural and substantive requirements for the issuance of a temporary restraining order or a protective order to, among other things, enjoin specific acts of abuse or prohibit the abuser from coming within a specified distance of the abused person. (Fam. Code, §§ 6200 et seq.)
   1. “Domestic violence,” for purposes of the DVPA, is defined as abuse perpetrated against a spouse or former spouse; a cohabitant or former cohabitant; a person with whom the respondent is having or has had a dating or engagement relationship; a person with whom the respondent has had a child, as specified; a child of a party or a child who is the subject of an action under the Uniform Parentage Act, as specified; or any other person related by consanguinity or affinity within the second degree. (Fam. Code, § 6211.)
2. Authorizes a court to issue an ex parte temporary restraining order (TRO) under the DVPA without a noticed hearing. (Fam. Code, §§ 6320-6327.)
3. Authorizes a court to issue a personal conduct, stay-away, and/or residence exclusion order (DVPO) under the DVPA after a noticed hearing at which the alleged abuser may appear. (Fam. Code, §§ 6340-6347.)
4. Provides that an order described in 2) or 3) to restrain any person may issue if an affidavit or testimony and any additional information provided to the court pursuant to a specified background check show, to the satisfaction of the court, reasonable proof of a past act or acts of abuse; the court may issue the order based solely on the affidavit or testimony of the person requesting the restraining order. (Fam. Code, § 6300(a).)
5. Provides that, prior to a hearing on the issuance or denial of a DVRO, the court shall ensure that a search is or has been conducted to determine if the subject of the proposed order has or is any of the following:
   
   1. A prior criminal conviction for a violent felony or a serious felony, as defined.
   2. A misdemeanor conviction involving domestic violence, weapons, or other violence.
   3. An outstanding warrant.
   4. Currently on parole or probation.
   5. A registered firearm.
   6. A prior restraining order of a violation of a prior restraining order. (Fam. Code, § 6306(a).)
6. Requires the search in 5) to be conducted of all records and databases readily available and reasonably accessible to the court, including, but not limited to, the following, unless the information can be obtained as a result of a search conducted in another record or database:
   1. The California Sex and Arson Registry.
   2. The Supervised Release File.
   3. State summary criminal history information maintained by the Department of Justice, as specified.
   4. The Federal Bureau of Investigation’s nationwide database.
   5. Locally maintained criminal history records or databases. (Fam. Code, § 6306(a).)
7. Requires a court, prior to deciding whether to issue an order under the DVPA or when determining appropriate temporary custody and visitation orders, to consider the information in 5), excluding 5)(e); information obtained as a result of the search that does not involve a conviction shall not be considered by the court in its determination. (Fam. Code, § 6306(b).)
8. Provides that Section 6306 shall not delay the granting of an application for an order that may otherwise be granted without the information resulting from the database search; if the court finds that a DVPA protective order should be granted on the basis of the affidavit presented with the petition, the court shall issue the protective order and then ensure that a search is conducted prior to the hearing. (Fam. Code, § 6306(h).)
9. Provides for the parties to request the information on which the court relied pursuant to 7) and for the confidentiality of the information obtained pursuant to 5). (Fam. Code, § 6306(c), (d).)
10. Provides that, if the results of the search conducted to 5) indicate that the subject of the order owns a registered firearm, or if the court receive evidence of the subject’s possession of a firearm or ammunition, the court shall make a written record as to whether the subject has relinquished the firearm or ammunition, as specified; if evidence of compliance with firearms prohibitions is not provided, the court shall order the clerk to immediately notify, by the most effective means available, appropriate law enforcement officials of the issuance and contents of the protective order, information about the firearms or ammunition, and of any other information obtained through the search that the court determines is appropriate. The law enforcement officials so notified shall take all actions necessary to obtain the firearms and ammunition and to address any violation of the order, as appropriate and as soon as practicable. (Fam. Code, § 6306(f).)
11. Provides that Section 6306 requirement to conduct a search pursuant to 5) and consider the information received pursuant to the search shall be implemented in courts identified by the Judicial Council as having resources currently available for those purposes, and implemented in other courts to the extent that funds are appropriated for that purpose in the annual Budget Act. (Chapter 572, Statutes of. 2001, § 4; Chapter 765, Statutes of. 2012, § 4.)
12. Provides that a person subject to a DVPA protective order shall not own, purchase, or receive a firearm or ammunition while that protective order is in effect, and that violation of this prohibition is a crime. (Fam. Code, § 6389(a).)
13. Establishes procedures by which a court, upon the issuance of a DVPA protective order, shall determine whether the respondent is in possession of firearms or ammunition, for the relinquishment of firearms or ammunition, and for granting an exemption to the prohibition if the respondent requires a firearm or ammunition for a job and meets certain criteria. (Fam. Code, § 6389.)

This bill:

1. Makes findings and declarations relating to the danger of allowing domestic abusers to retain firearms after a restraining order has been entered against them under the DVPA.
2. Requires a court, before a hearing on the issuance or denial of an order under the DVPA, to ensure that a search is or has been conducted to determine if the subject of the proposed order owns or possesses a firearm as reflected in the Department of Justice Automated Firearms System.
3. Requires the court, as part of its search under 2) and the other searches required to be conducted prior to a hearing on the issuance or denial of an order under the DVPA, to search the Department of Justice Automated Firearms System.
4. Provides that, if a court does not have electronic or other access to the Department of Justice Automated Firearms System and if there is no preexisting agreement between the court and a law enforcement agency that the law enforcement agency will conduct a search of the California Law Enforcement Telecommunications System in order to report to the court whether the subject of the proposed order owns or possesses a firearm, upon the request of the court, the sheriff shall access the California Law Enforcement Telecommunications System in order to search the Department of Justice Automated Firearms System for the purpose of determining whether the subject of the order owns or possesses firearms; the sheriff shall report the results of this search to the court.
5. States that it is the intent of the Legislature that, except with regard to a search whether the subject of a proposed order owns or possesses a firearm, Section 6306 shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes, and implemented in other courts to the extent that funds are appropriated for these purposes in the annual Budget Act.
6. Repeals Section 4 of Chapter 765 of the Statutes of 2012, which made implementation of the firearm search requirement conditional upon Judicial Council’s identification of courts with sufficient resources to conduct the search or an appropriation in the annual Budget Act for that purpose.

Comments

The DVPA seeks to prevent acts of domestic violence, abuse, and sexual abuse, and to provide for a separation of persons involved in domestic violence for a period sufficient to enable them to seek a resolution. The DVPA enables a party to seek a protective order, also known as a restraining order, which may be issued to protect a petitioner who demonstrates “reasonable proof of a past act or acts of abuse” by the target of the proposed order. If the court grants the order, the subject of the order—the restrained person—is also prohibited from possessing, purchasing, or receiving a firearm while the protective order is in place.

Current law requires a court, before a hearing on the issuance or denial of a DVPA order, to conduct a search of a variety of databases for information about the subject of the proposed order, including their criminal history and whether they have a registered firearm. This requirement, however, is conditional, and applies only if (a) Judicial Council determines that the court has adequate financial resources available, or (b) the Legislature appropriates funds for searches in the annual Budget Act. The Legislature has never made such an appropriation.

This bill recasts the firearms search requirement as a requirement to search the Department of Justice Automated Firearms System for whether the subject of a proposed DVPA order owns or possesses a firearm, and requires all courts to conduct this search, regardless of funding. This bill also provides that, if a court does not have access to the Department of Justice Automated Firearms System, it may request that the sheriff conduct the search. Finally, the bill codifies currently un-codified language making the remainder of the searches contemplated in the statute contingent on the availability of funding.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/5/24)

American Association of University Women of California

Arcadia Police Officers’ Association

Burbank Police Officers’ Association

California Association of Highway Patrolmen

California District Attorneys’ Association

California Partnership to End Domestic Violence

California Police Chiefs Association

California Reserve Police Officers’ Association

Claremont Police Officers’ Association

Corona Police Officers’ Association

Culver City Police Officers’ Association

Deputy Sheriffs’ Association Monterey County

Fullerton Police Officers’ Association

Los Angeles County District Attorney’s Office

Murrieta Police Officers’ Association

Newport Police Officers’ Association

Novato Police Officers’ Association

Santa Ana Police Officers’ Association

Peace Officers’ Research Association of California

Palos Verdes Police Officers’ Association

Pomona Police Officers’ Association

Riverside Police Officers’ Association

Riverside Sheriffs’ Association

Upland Police Officers’ Association

OPPOSITION: (Verified 8/5/24)

None received

ARGUMENTS IN SUPPORT: According to a coalition of law enforcement agencies:

The reliance on an “honor system” for domestic violence offenders to surrender firearms has proven inadequate. Failure to remove guns from the hands of abusers poses significant risks to the safety and lives of victims, as evidenced by the alarming association between domestic abusers and firearm-related violence, including mass shootings.

AB 3083 seeks to rectify these shortcomings by repealing contingent language and ensuring the safety of victims. It requires family court judges, upon issuing restraining orders, to ascertain whether the subject possesses firearms. This proactive measure empowers judges to demand proof of surrender or storage of firearms with licensed dealers, aligning with existing laws prohibiting firearm possession by individuals subject to domestic violence restraining orders.

By eliminating ambiguity and strengthening enforcement mechanisms, AB 3083 aims to reduce the incidence of gun violence and murders associated with domestic violence. It prioritizes the safety and well-being of victims by ensuring that abusers are deprived of access to lethal weapons, thus mitigating the risk of further harm.

ASSEMBLY FLOOR: 70-0, 5/22/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bryan, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Bonta, Calderon, Cervantes, Megan Dahle, Essayli, Friedman, Holden, Mathis, Joe Patterson, Luz Rivas

Prepared by: Allison Whitt Meredith / JUD. / (916) 651-4113

8/6/24 16:19:15

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 3083 Hearing Date: July 2, 2024

Subject: Domestic violence: protective orders: background checks

HISTORY

Source: Author

Prior Legislation: SB 320 (Eggman, Ch. 685, Stats. of 2021)

SB 1433 (Alquist, Ch. 765, Stats. of 2012)

SB 66 (Kuehl, Ch. 572, Stats. of 2001)

Support: California Association of Highway Patrolmen; California District Attorneys Association; Peace Officers Research Association of California

Opposition: None known

Assembly Floor Vote: 70 - 0

PURPOSE

The purpose of this bill is to require a court to conduct a search of specified databases, including the Department of Justice Automated Firearms System (AFS) to determine whether a person subject to a proposed domestic violence restraining order (DVRO) owns a firearm.

Existing law provides for an automated system for tracking firearms and assault weapon owners who might fall into a prohibited status. The online database, which is known as the Armed Prohibited Persons System (APPS), cross-references all handgun and assault weapon owners across the state against criminal history records to determine whether a person is prohibited from possessing a firearm. (Pen. Code, § 30000, et seq.)

Existing law authorizes a court, under the Domestic Violence Protection Act (DVPA), to issue and enforce domestic violence restraining orders, including emergency protective orders (EPOs), temporary (or ex parte) restraining orders (TROs), and longer-term or permanent restraining orders. (Fam. Code, § 6300, et seq.)

Existing law requires, before a hearing on a protective order, that the court ensures a search of specified records and databases is conducted to determine if the subject of the proposed order has a registered firearm. (Fam. Code, § 6306, subd. (a).)

Existing law mandates the court search all records and databases readily available and reasonably accessible to the court, including, but not limited to the following:

• • The California Sex and Arson Registry (CSAR);
    
  • The Supervised Release File;
    
  • State summary criminal history information maintained by the DOJ, as specified;
    
  • The Federal Bureau of Investigation’s nationwide database; and
    
  • Locally maintained criminal history records or databases. (Fam. Code, § 6306, subd. (a)(1-5).)

Existing law provides that a record or database need not be searched if the information available in that record or database can be obtained as a result of a search conducted in another record or database. (Fam. Code, § 6306, subd. (a)(5).)

Existing law states prior to deciding whether to issue a protective or restraining order or when determining appropriate temporary custody and visitation orders, the court shall consider the following information obtained pursuant to a search of records, as specified:

• A conviction for a serious or violent felony, as defined;
  
  • A misdemeanor conviction involving domestic violence, weapons, or other violence;
    
  • An outstanding warrant;
    
  • Parole or probation status;
    
  • A prior restraining order; and
    
  • A violation of a prior restraining order. (Fam. Code, § 6306, subd. (b)(1).)
    

Existing law provides that information obtained as a result of the search that does not involve a conviction, as specified, shall not be considered by the court in making a determination regarding the issuance of a DVRO. That information shall be destroyed and shall not become part of the public file in this or any other civil proceeding. (Fam. Code, § 6306, subd. (b)(2).)

Existing law provides that Family Code 6306 shall not delay the granting of an application for an order that may otherwise be granted without the information resulting from the database search; if the court finds that a DVPA protective order should be granted on the basis of the affidavit presented with the petition, the court shall issue the protective order and then ensure that a search is conducted prior to the hearing. (Fam. Code, § 6306(h).)

Existing law provides that, if the results of the search conducted to 5) indicate that the subject of the order owns a registered firearm, or if the court receive evidence of the subject’s possession of a firearm or ammunition, the court shall make a written record as to whether the subject has relinquished the firearm or ammunition, as specified; if evidence of compliance with firearms prohibitions is not provided, the court shall order the clerk to immediately notify, by the most effective means available, appropriate law enforcement officials of the issuance and contents of the protective order, information about the firearms or ammunition, and of any other information obtained through the search that the court determines is appropriate. The law enforcement officials so notified shall take all actions necessary to obtain the firearms and ammunition and to address any violation of the order, as appropriate and as soon as practicable. (Fam. Code, § 6306(f).)

Existing law provides that a person subject to a DVPA protective order shall not own, purchase, or receive a firearm or ammunition while that protective order is in effect, and that violation of this prohibition is a crime. (Fam. Code, § 6389(a).)

Existing law establishes procedures by which a court, upon the issuance of a DVPA protective order, shall determine whether the respondent is in possession of firearms or ammunition, for the relinquishment of firearms or ammunition, and for granting an exemption to the prohibition if the respondent requires a firearm or ammunition for a job and meets certain criteria. (Fam. Code, § 6389.)

This bill requires a court, before a hearing on the issuance or denial of an order under the DVPA, to ensure that a search is or has been conducted to determine if the subject of the proposed order owns or possesses a firearm as reflected in the Department of Justice Automated Firearms System.

This bill requires the court, as part of its search described above and the other searches required to be conducted prior to a hearing on the issuance or denial of an order under the DVPA, to search the Department of Justice Automated Firearms System.

This bill provides that, if a court does not have electronic or other access to the Department of Justice Automated Firearms System and if there is no preexisting agreement between the court and a law enforcement agency that the law enforcement agency will conduct a search of the California Law Enforcement Telecommunications System in order to report to the court whether the subject of the proposed order owns or possesses a firearm, upon the request of the court, the sheriff shall access the California Law Enforcement Telecommunications System in order to search the Department of Justice Automated Firearms System for the purpose of determining whether the subject of the order owns or possesses firearms; the sheriff shall report the results of this search to the court.

This bill states that it is the intent of the Legislature that, except with regard to a search whether the subject of a proposed order owns or possesses a firearm, Section 6306 shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes, and implemented in other courts to the extent that funds are appropriated for these purposes in the annual Budget Act.

This bill repeals Section 4 of Chapter 765 of the Statutes of 2012, which made implementation of the firearm search requirement conditional upon Judicial Council’s identification of courts with sufficient resources to conduct the search or an appropriation in the annual Budget Act for that purpose.

This bill sets forth several legislative findings and declarations establishing the need for the bill.

COMMENTS

1. Need for This Bill

According to the Author:

Existing law requires a court to check if a person subject to a restraining or protective order owns a weapon and, consequently, will be prohibited from owning or possessing a firearm upon the order. However, after the passage of that bill, the mandate was not fully enacted. Due to the contingency language within its origin language in SB 1433 (Alquist) of 2012, some counties did not comply since the proposal was only a mandate if a budget allocation was to be made, as many counties are not well enough funded to enforce these background checks. However, the 2022-23 budget did allocate money for APPS-related activities, but this was not broad enough to trigger the mandate. This being said, the policy within SB 1433 should be carried out whether the budget allocation has been made or not. Guns in the hands of domestic abusers can lead to tragedies. The state must ensure that all reasonable steps are taken to ensure that firearms in the hands of abusers are identified and removed as soon as possible.

1. Department of Justice Firearm Databases and the Automated Firearm System

Registration of firearms in California functions through a web of interrelated firearm databases managed by the Department of Justice, which is responsible for retaining records related to a range of firearm-related conduct involving firearm dealers and owners, as well as transfers between certain parties. These records pertain to firearms surrendered to or recovered by law enforcement, issuance of concealed carry permits, firearms voluntarily registered by their owners, dealer records of sale (DROS)(including records of private party transfers), importation of firearms by new residents, persons prohibited from purchasing or possessing firearms, and ownership of relics, curios and other now-prohibited weapons, such as assault weapons.^[1] The web of databases tracking and storing this information includes roughly 20 systems operated by the DOJ, among the largest and most active of which are the Armed and Prohibited Persons System (APPS), the Automated Firearms System (AFS), the Concealed Carry Weapons system (CCW), the Dealers Record of Sale Entry System (DROS), Assault Weapons Registration (AWR), and the Mental Health Reporting System (MHRP).

The function of most of these systems is self-explanatory, but perhaps the largest and certainly the most pertinent to this bill is the Automated Firearms System, or AFS. The AFS was created in 1980 to identify lost or stolen firearms and connect firearms with persons, and tracks serial numbers of every firearm owned by government agencies, handled by law enforcement (seized, destroyed, held in evidence, reported stolen, recovered), voluntarily recorded in AFS, required to be registered with the DOJ (i.e. assault weapons or imported weapons), or handled by a firearms dealer through transactions, as well as concealed carry permit records.^[2] California is one of only a few states that has authorized state law enforcement to maintain a central database of gun and ammunition sale records to be accessed by courts and law enforcement personnel for public safety purposes. As of January 1, 2024, the APPS system (a database separate from but that shares information with AFS) contained 3,466,823 armed and not prohibited individuals (i.e. registered firearm owners. However, this does not reflect existing firearm owners who acquired new firearms, and it is unclear exactly how many firearms are listed in AFS.^[3]

The DOJ has perennially bemoaned the state of its system of firearm databases and recommended that the Legislature take steps to consolidate and update them, stating that “this network of systems is incredibly complex and cumbersome to operate and navigate [but that] Despite this monumental challenge, DOJ has been able to meet most legislative reporting mandates using these outdated databases […] Working to modify or maintain these legacy systems is no longer cost-effective or a technologically viable option as the databases have become outdated and no longer meet the demands of the Legislature and DOJ.”^[4] Consequently, the DOJ has embarked on the Firearms IT Systems Modernization Project (FITSM), which has received considerable funding in the latest Budget Act (AB 107, Stats. of 2023-24). It is unclear whether at the conclusion of FITSM the AFS will still exist or be named as such.

1. The Domestic Violence Protection Act (DVPA) Generally

California’s Domestic Violence Protection Act (DVPA) seeks to prevent acts of domestic violence, abuse, and sexual abuse, and to provide for a separation of persons involved in domestic violence for a period sufficient to enable them to seek a resolution. The DVPA’s “protective purpose is broad both in its stated intent and its breadth of persons protected” and courts are required to construe it broadly in order to accomplish the statute’s purpose.^[5] The act enables a party to seek a “protective order,” also known as a restraining order, which may be issued to protect a petitioner who presents “reasonable proof of a past act or acts of abuse.”^[6]

Victims of domestic violence who need immediate protection may seek a temporary restraining order, which may be decided ex parte (without notice to the respondent) and generally must be issued or denied the same court day the petition is filed.^[7] Because the restrained party would not have had the opportunity to defend their interests, ex parte orders are short in duration. If a noticed hearing is not held within 21 days (or 25 if the court finds good cause), a temporary restraining order is no longer enforceable, unless a court grants a continuance. The respondent must be personally served with a copy of the petition, the temporary restraining order, if any, and the notice of the hearing on the petition, at least five days before the hearing.^[8] After a duly noticed hearing, the court is authorized to extend the original temporary restraining order for up to five years, which may then be renewed.^[9]

In 2021, SB 320 (Eggman), Chapter 685, Statutes of 2021, codified Rule of Court 5.495 in the Family Code and made compliance mandatory so that standards and procedures for ensuring the relinquishment of a firearm and ammunition following the issuance of a civil restraining order would consistently apply throughout the state. It also required, in order to fill the gaps in court communication with justice partners identified by the 2008 Judicial Council report, the court to notify law enforcement officials and the county prosecutor’s office when there has been a violation of a firearm relinquishment order related to a DVRO.

A person who is the subject of a domestic violence restraining order under the DVPA is prohibited from owning, possessing, purchasing, or receiving a firearm or ammunition while that protective order is in effect. A person who owns or possesses a firearm while a domestic violence restraining order is in effect may be punished by a misdemeanor with up to one year in county jail. A person who purchases or receives, or attempts to purchase or receive a firearm or ammunition while the protective order is in effect is punishable as either a misdemeanor or state-prison felony.^[10]

1. DVPA Background Check Requirement and Effect of This Bill

In 2012, the Legislature enacted SB 1433 (Alquist, Ch. 765, Stats. 2012), which added, to Family Code Section 6306, a requirement that a court ensure a search is conducted on whether the subject of a proposed DVPA order has a registered firearm. SB 1433 made this new firearm search requirement subject to a specific funding condition: courts identified by Judicial Council as having the resources to conduct firearm searches would be required to do so, and the remaining courts would not have to conduct firearm searches unless and until the Legislature appropriated funds for that purpose in the annual Budget Act.^[11] According to information provided to the Senate Judiciary Committee by the Judicial Council, although the Legislature never appropriated funds for the SB 1433 searches in the annual Budget Act, most courts conduct the searches contemplated by Section 6306 regardless.

Under Section 6306, prior to a hearing on the issuance or denial of a DVPA order, the court must ensure that a search has been conducted to determine if the subject of the proposed order “has a registered firearm,” and specifies that the search shall be conducted of all records and databases readily available and reasonably accessible to the court. Existing law specifies which databases must be searched, but qualifies that a record or database need not be searched if the information available in that record or database can be obtained as a result of a search conducted in another record or database.

With respect to the extent of the firearm search, this bill replaces the provision requiring the court determine whether the subject of the proposed order “has a registered firearm” with a requirement that the court determine whether the subject “owns or possesses a firearm as reflected in AFS,” and adds the AFS to the list of databases that the court must search. The bill also provides that, if the court does not have access to the AFS and the court does not have an agreement with a law enforcement agency allowing the court to request a search of the California Law Enforcement Telecommunications System (CLETS) to conduct the search of the AFS for the court, the sheriff shall, at the request of the court, conduct that search and report the results to the court.

Additionally, this bill repeals uncodified language in SB 1433’s predecessor bill that originally made the Section 6306 search contingent on court resources or an appropriation, and adds a codified subdivision to 6306 stating the intent of the Legislature that “except with regard to a search whether the subject of a proposed order owns or possesses a firearm,” the other requirements of 6306 are subject to an appropriations by the Legislature or a Judicial Council determination that the court has adequate funds. Effectively, this change makes the firearm search mandatory while leaving the rest of Section 6306’s searches conditional.

-- END –

1. Penal Code §§ 11106, 11108.2, 11108.3, 28100 et. seq, 17000, 27560, 27565, 28000, 30900. For a relational diagram of DOJ’s Firearms Databases and Applications, see the Departments 2023 Armed and Prohibited Persons Report, p. 54. Armed and Prohibited Persons System Report 2023 (ca.gov) ↑

2. The AFS is codified at Penal Code § 11106. Prior to 2014, most entries in AFS were handguns. Now, all newly acquired firearms, both handguns and long guns, are entered into AFS. See the DOJ AFS page for more info: Automated Firearms System Personal Information Update | State of California - Department of Justice - Office of the Attorney General ↑

3. 2023 Armed and Prohibited Persons Report, p. 20 ↑

4. Armed and Prohibited Persons Report, 2023, pp. 44-45. ↑

5. Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 863; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498 ↑

6. Fam. Code, § § 6218, 6300. ↑

7. Fam. Code, §§ 241, 6320 et seq. ↑

8. Fam. Code, §§ 242, 243 & 245. ↑

9. Fam. Code, §§ 6302, 6340, 6345. ↑

10. Pen. Code, § 29825. ↑

11. This funding condition was identical to that included in SB 1433’s predecessor bill, SB 66 (Kuehl, Ch. 572, Stats. of 2001). ↑

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 3083 (Author:Lackey)

Version: April 3, 2024

Hearing Date: June 18, 2024

Fiscal: Yes

Urgency: No

Consultant: AWM

SUBJECT

Domestic violence: protective orders: background checks

DIGEST

This bill requires that a conduct a search to determine whether the subject of a proposed order under the Domestic Violence Prevention Act (DVPA) owns or possesses a firearm as reflected in the Department of Justice Automated Firearms System; this provision replaces a search requirement that is conditioned on whether the court has funds for the search, as specified.

EXECUTIVE SUMMARY

The DVPA seeks to prevent acts of domestic violence, abuse, and sexual abuse, and to provide for a separation of persons involved in domestic violence for a period sufficient to enable them to seek a resolution. The DVPA enables a party to seek a protective order, also known as a restraining order, which may be issued to protect a petitioner who demonstrates “reasonable proof of a past act or acts of abuse” by the target of the proposed order. If the court grants the order, the subject of the order—the restrained person—is also prohibited from possessing, purchasing, or receiving a firearm while the protective order is in place.

Current law requires a court, before a hearing on the issuance or denial of a DVPA order, to conduct a search of a variety of databases for information about the subject of the proposed order, including their criminal history and whether they have a registered firearm. This requirement, however, is conditional: a court need not conduct these searches unless (1) Judicial Council determines that the court has adequate financial resources available, or (2) the Legislature appropriates funds for searches in the annual Budget Act. The Legislature has never made such an appropriation.

This bill recasts the firearms search requirement as a requirement to search the Department of Justice Automated Firearms System for whether the subject of a proposed DVPA order owns or possesses a firearm, and requires all courts to conduct this search, regardless of funding. The bill also provides that, if a court does not have access to the Department of Justice Automated Firearms System, it may request that the sheriff conduct the search. Finally, the bill codifies currently un-codified language making the remainder of the searches contemplated in the statute contingent on the availability of funding.

This bill is sponsored by the author and is supported by the California Police Chiefs Association, the California Reserve Police Officers’ Association, and 16 other law enforcement associations. The Committee has not received timely opposition to this bill. If this Committee passes this bill, it will next be heard by the Senate Public Safety Committee.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Establishes the DVPA, which sets forth procedural and substantive requirements for the issuance of a temporary restraining order or a protective order to, among other things, enjoin specific acts of abuse or prohibit the abuser from coming within a specified distance of the abused person. (Fam. Code, §§ 6200 et seq.)
   1. “Domestic violence,” for purposes of the DVPA, is defined as abuse perpetrated against a spouse or former spouse; a cohabitant or former cohabitant; a person with whom the respondent is having or has had a dating or engagement relationship; a person with whom the respondent has had a child, as specified; a child of a party or a child who is the subject of an action under the Uniform Parentage Act, as specified; or any other person related by consanguinity or affinity within the second degree. (Fam. Code, § 6211.)
2. Authorizes a court to issue an ex parte temporary restraining order (TRO) under the DVPA without a noticed hearing. (Fam. Code, §§ 6320-6327.)
3. Authorizes a court to issue a personal conduct, stay-away, and/or residence exclusion order (DVPO) under the DVPA after a noticed hearing at which the alleged abuser may appear. (Fam. Code, §§ 6340-6347.)
4. Provides that an order described in 2) or 3) to restrain any person may issue if an affidavit or testimony and any additional information provided to the court pursuant to a specified background check show, to the satisfaction of the court, reasonable proof of a past act or acts of abuse; the court may issue the order based solely on the affidavit or testimony of the person requesting the restraining order. (Fam. Code, § 6300(a).)
5. Provides that, prior to a hearing on the issuance or denial of a DVRO, the court shall ensure that a search is or has been conducted to determine if the subject of the proposed order has or is any of the following:
   1. A prior criminal conviction for a violent felony or a serious felony, as defined.
   2. A misdemeanor conviction involving domestic violence, weapons, or other violence.
   3. An outstanding warrant.
   4. Currently on parole or probation.
   5. A registered firearm.
   6. A prior restraining order of a violation of a prior restraining order. (Fam. Code, § 6306(a).)
6. Requires the search in 5) to be conducted of all records and databases readily available and reasonably accessible to the court, including, but not limited to, the following, unless the information can be obtained as a result of a search conducted in another record or database:
   1. The California Sex and Arson Registry.
   2. The Supervised Release File.
   3. State summary criminal history information maintained by the Department of Justice, as specified.
   4. The Federal Bureau of Investigation’s nationwide database.
   5. Locally maintained criminal history records or databases. (Fam. Code, § 6306(a).)
7. Requires a court, prior to deciding whether to issue an order under the DVPA or when determining appropriate temporary custody and visitation orders, to consider the information in 5), excluding 5)(e); information obtained as a result of the search that does not involve a conviction shall not be considered by the court in its determination. (Fam. Code, § 6306(b).)
8. Provides that Section 6306 shall not delay the granting of an application for an order that may otherwise be granted without the information resulting from the database search; if the court finds that a DVPA protective order should be granted on the basis of the affidavit presented with the petition, the court shall issue the protective order and then ensure that a search is conducted prior to the hearing. (Fam. Code, § 6306(h).)
9. Provides for the parties to request the information on which the court relied pursuant to 7) and for the confidentiality of the information obtained pursuant to 5). (Fam. Code, § 6306(c), (d).)
10. Provides that, if the results of the search conducted to 5) indicate that the subject of the order owns a registered firearm, or if the court receive evidence of the subject’s possession of a firearm or ammunition, the court shall make a written record as to whether the subject has relinquished the firearm or ammunition, as specified; if evidence of compliance with firearms prohibitions is not provided, the court shall order the clerk to immediately notify, by the most effective means available, appropriate law enforcement officials of the issuance and contents of the protective order, information about the firearms or ammunition, and of any other information obtained through the search that the court determines is appropriate. The law enforcement officials so notified shall take all actions necessary to obtain the firearms and ammunition and to address any violation of the order, as appropriate and as soon as practicable. (Fam. Code, § 6306(f).)
11. Provides that Section 6306’s requirement to conduct a search pursuant to 5) and consider the information received pursuant to the search shall be implemented in courts identified by the Judicial Council as having resources currently available for those purposes, and implemented in other courts to the extent that funds are appropriated for that purpose in the annual Budget Act. (Ch. 572, Stats. 2001, § 4; Ch. 765, Stats. 2012, § 4.)
12. Provides that a person subject to a DVPA protective order shall not own, purchase, or receive a firearm or ammunition while that protective order is in effect, and that violation of this prohibition is a crime. (Fam. Code, § 6389(a).)
13. Establishes procedures by which a court, upon the issuance of a DVPA protective order, shall determine whether the respondent is in possession of firearms or ammunition, for the relinquishment of firearms or ammunition, and for granting an exemption to the prohibition if the respondent requires a firearm or ammunition for a job and meets certain criteria. (Fam. Code, § 6389.)

This bill:

1. States all of the following:
   1. It is the intent of the Legislature that judges issuing domestic violence restraining orders determine if the subject of the order is known to own or possess firearms in all cases. Although Chapter 765 of the Statutes of 2012 required this, the requirement was made conditional on the issuance of a specified study by the Judicial Council and a specific appropriation of funds for this purpose, which never occurred. It is vital that firearms be kept out of the hands of known abusers.
   2. Individuals who are prohibited due to issuance of restraining orders represented 16 percent of the backlog in the Department of Justice’s Armed and Prohibited Persons System in 2022.
   3. Failure to remove firearms from domestic abusers can have tragic results. According to Attorney General Bonta, “The data is clear: Domestic violence abusers should not have firearms. When an abuser has access to a firearm, it endangers the safety and lives of those around them. Violence is not an accident. It is also not inevitable, and it can be prevented. Removing dangerous weapons from people who pose a danger to others is key to that goal.”
   4. According to a November 2023 report by the California Department of Justice’s Office of Gun Violence Prevention, “In the decade from 2013 to 2022, law enforcement agencies reported 1,254 gun homicides in which one or more suspected offenders were identified as a current or former intimate partner or family member of the victim.”
   5. Therefore, it is the intent of the Legislature that, in all circumstances, judges who issue domestic violence restraining orders verify whether the subject of the order is known to own or possess one or more firearms and, if the subject of the order does, to demonstrate proof of surrender of the firearm or firearms in accordance with legal requirements.
2. Requires a court, before a hearing on the issuance or denial of an order under the DVPA, to ensure that a search is or has been conducted to determine if the subject of the proposed order owns or possesses a firearm as reflected in the Department of Justice Automated Firearms System.
3. Requires the court, as part of its search under 2) and the other searches required to be conducted prior to a hearing on the issuance or denial of an order under the DVPA, to search the Department of Justice Automated Firearms System.
4. Provides that, if a court does not have electronic or other access to the Department of Justice Automated Firearms System and if there is no preexisting agreement between the court and a law enforcement agency that the law enforcement agency will conduct a search of the California Law Enforcement Telecommunications System in order to report to the court whether the subject of the proposed order owns or possesses a firearm, upon the request of the court, the sheriff shall access the California Law Enforcement Telecommunications System in order to search the Department of Justice Automated Firearms System for the purpose of determining whether the subject of the order owns or possesses firearms; the sheriff shall report the results of this search to the court.
5. States that it is the intent of the Legislature that, except with regard to a search whether the subject of a proposed order owns or possesses a firearm, Section 6306 shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes, and implemented in other courts to the extent that funds are appropriated for these purposes in the annual Budget Act.
6. Repeals Section 4 of Chapter 765 of the Statutes of 2012, which made implementation of the firearm search requirement conditional upon Judicial Council’s identification of courts with sufficient resources to conduct the search or an appropriation in the annual Budget Act for that purpose.

COMMENTS

1. Author’s comment

According to the author:

Guns in the hands of domestic abusers can lead to tragedies. The state must ensure that all reasonable steps are taken to ensure that firearms in the hands of abusers are identified and removed as soon as possible.

2. Background on the DVPA

The DVPA seeks to prevent acts of domestic violence, abuse, and sexual abuse, and to provide for a separation of persons involved in domestic violence for a period sufficient to enable them to seek a resolution. The DVPA’s “protective purpose is broad both in its stated intent and its breadth of persons protected,”^[1] and courts are required to construe it broadly in order to accomplish the statute’s purpose.^[2] The DVPA enables a party to seek a protective order, also known as a restraining order, which may be issued to protect a petitioner who demonstrates “reasonable proof of a past act or acts of abuse” by the target of the proposed order.^[3]

A victim of domestic violence needing immediate protection may seek a TRO on an ex parte basis; the court may issue such a short-term order enjoining the abuser from a range of conduct, including harassing, threatening, and contacting the victim.^[4] After a noticed hearing, the court may extend the TRO into a DVPO, or issue a DVPO if no temporary order was issued, for a term of up to five years.^[5] At the end of a DVPO’s term, the court may renew the order at the request of any party, subject to any modifications ordered by the court or stipulated to by the parties.^[6]

The subject of a DVPA protective order—either a TRO or a DVPO—is also prohibited from possessing, purchasing, or receiving a firearm while the protective order is in place.^[7] This prohibition is grounded in the well-established fact that an abuser’s access to firearms dramatically increases the danger of further abuse or death: a victim or survivor of intimate partner violence is five times more likely to die when an abusive partner has access to a gun.^[8]

3. The DVPA’s conditional background search requirement

In 2001, the Legislature enacted SB 66 (Kuehl, Ch. 572, Stats. 2001), which added Section 6306 to the Family Code. As enacted in SB 66, Family Code 6306 required a court, prior to a hearing on the issuance or denial of a protective order under the DVPA, to conduct a search to determine whether a respondent has specified criminal convictions or any outstanding warrants, is currently on parole or probation, or has any prior restraining order or violation of restraining order; and for the court to take any information received pursuant to that search into account when issuing the protective order. SB 66 required that the search be conducted in specified databases, though did not require the search of databases that would return duplicative information. The bill was modeled after a Massachusetts law which was enacted after a man murdered his ex-girlfriend, despite a restraining order being in place, and it was determined that neither the court nor the victim knew that the man had a long history of criminal violent behavior.^[9]

The Judicial Council and the Trial Courts’ Consolidated Legislative Committee initially opposed the bill because it did not include funding to implement the background checks.^[10] The bill was subsequently amended to make the bill’s background search requirement conditional: courts identified by Judicial Council as having resources available to conduct the background searches would be required to do so, and all other courts would have to conduct the background searches only to the extent that funds were appropriated in the annual Budget Act for that purpose.^[11]

In 2012, the Legislature enacted SB 1433 (Alquist, Ch. 765, Stats. 2012), which added, to Section 6306, the requirement that a court ensure a search is conducted on whether the subject of a proposed DVPA order has a registered firearm. SB 1433 made this new firearm search requirement subject to the same funding conditions as SB 66: courts identified by Judicial Council as having the resources to conduct firearm searches would be required to do so, and the remaining courts would not have to conduct firearm searches unless and until the Legislature appropriated funds for that purpose in the annual Budget Act.^[12]

According to Judicial Council, the Legislature never appropriated funds for the SB 66 or the SB 1433 searches in the annual Budget Act. They report that, despite the lack of an appropriation, most courts conduct the searches contemplated by Section 6306.

4. This bill requires courts to conduct a search to determine whether the subject of a proposed DVPA protective order owns or possesses a firearm

This bill amends the DVPA’s pre-order search requirement to (1) slightly modify the firearm search requirement, and (2) make the firearm search mandatory for all courts, regardless of funding.

With respect to the extent of the firearm search, the bill replaces the provision requiring the court determine whether the subject of the proposed order “has a registered firearm” with a requirement that the court determine whether the subject “owns or possesses a firearm as reflected in the Department of Justice Automated Firearms System,” and adds the Department of Justice Automated Firearms System (DOJAFS) to the list of databases that the court must search. The bill also provides that, if the court does not have access to the DOJAFS and the court does not have an agreement with a law enforcement agency allowing the court to request a search of the California Law Enforcement Telecommunications System (CLETS) to conduct the search of the DOJAFS for the court, the sheriff shall, at the request of the court, conduct that search and report the results to the court.

With respect to the funding component, the bill repeals the uncodified portion of SB 66 that makes the search contingent on the court’s resources or an appropriation, and adds a codified subdivision stating that it is the intent of the Legislature that, with the exception of the firearm search, Section 6306’s implementation is subject to Judicial Council’s determination that the court has adequate funds or an appropriation. Effectively, this change makes the firearm search mandatory while leaving the rest of Section 6306’s searches conditional. The change also has the advantage of placing the conditional implementation provision in the statute, rather than in uncodified language that can easily be overlooked.

5. Arguments in support

According to a coalition of law enforcement agencies:

The reliance on an "honor system" for domestic violence offenders to surrender firearms has proven inadequate. Failure to remove guns from the hands of abusers poses significant risks to the safety and lives of victims, as evidenced by the alarming association between domestic abusers and firearm-related violence, including mass shootings.

AB 3083 seeks to rectify these shortcomings by repealing contingent language and ensuring the safety of victims. It requires family court judges, upon issuing restraining orders, to ascertain whether the subject possesses firearms. This proactive measure empowers judges to demand proof of surrender or storage of firearms with licensed dealers, aligning with existing laws prohibiting firearm possession by individuals subject to domestic violence restraining orders.

By eliminating ambiguity and strengthening enforcement mechanisms, AB 3083 aims to reduce the incidence of gun violence and murders associated with domestic violence. It prioritizes the safety and well-being of victims by ensuring that abusers are deprived of access to lethal weapons, thus mitigating the risk of further harm.

SUPPORT

Arcadia Police Officers’ Association

Burbank Police Officers’ Association

California Police Chiefs Association

California Reserve Police Officers’ Association

Claremont Police Officers’ Association

Corona Police Officers’ Association

Culver City Police Officers’ Association

Deputy Sheriffs’ Association Monterey County

Fullerton Police Officers’ Association

Murrieta Police Officers’ Association

Newport Police Officers’ Association

Novato Police Officers’ Association

Santa Ana Police Officers’ Association

Palos Verdes Police Officers’ Association

Pomona Police Officers’ Association

Riverside Police Officers’ Association

Riverside Sheriffs’ Association

Upland Police Officers’ Association

OPPOSITION

None received

RELATED LEGISLATION

Pending Legislation: AB 2759 (Petrie-Norris, 2024) modifies the exemption to the DVPA’s firearm prohibition for persons who are required to carry a firearm or ammunition for their job, as specified. AB 2759 is pending before this Committee and is set to be heard on the same day as this bill.

Prior Legislation:

SB 320 (Eggman, Ch. 685, Stats. 2021) codified Rules of Court related to the relinquishment of a firearm by a person subject to a civil domestic violence restraining order and requires the courts to notify law enforcement and the county prosecutor’s office when there has been a violation of a firearm relinquishment order.

SB 1433 (Alquist, Ch. 765, Stats. 2012) added, to Section 6306, the requirement that a court conduct a search to determine whether the proposed subject of a DVPA protective order owns a firearm, subject to the implementation limitations in SB 66. SB 1433 is discussed in further detail in Part 3 of this analysis.

SB 66 (Kuehl, Ch. 572, Stats. 2001) added Section 6306 to the Family Code, with its implementation limited to (1) the courts identified by the Judicial Council as having resources available for its purpose, and (2) for the remaining courts, to the extent that funds are appropriated for purposes of SB 66 in the annual Budget Act. SB 66 is discussed in further detail in Part 3 of this analysis.

PRIOR VOTES:

Assembly Floor (Ayes 70, Noes 0)

Assembly Appropriations Committee (Ayes 15, Noes 0)

Assembly Public Safety Committee (Ayes 8, Noes 0)

Assembly Judiciary Committee (Ayes 12, Noes 0)

**************

1. Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 863. ↑

2. In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498. ↑

3. Fam. Code, § 6300; see id., § 6218. ↑

4. See id., §§ 240-246, 6320-6327. ↑

5. See id., §§ 6340-6347. ↑

6. See id., § 6345(a). ↑

7. Fam. Code, § 6389. ↑

8. Tobin-Tyler, Intimate Partner Violence, Firearm Injuries and Homicides: A Health Justice Approach to Two Intersecting Public Health Crises, J. Law. Med. Ethics (2023 Spring) 51(1) 64-76, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10209983/ (link current as of June 13, 2024). ↑

9. Sen. Com. on Judiciary, Analysis of Sen. Bill No. 66 (2001-2002 Reg. Sess.) as amended Mar. 27, 2001, p. 3. ↑

10. Assem. Com. on Appropriations, Analysis of Sen. Bill. No. 66 (2001-2002 Reg. Sess.) as amended Jul. 18, 2001, p. 3. ↑

11. Assem. Com. on Appropriations, Analysis of Sen. Bill No. 66 (2001-2002 Reg. Sess.) as amended Sept. 5, 2001, p. 3. ↑

12. SB 1433 (Alquist, Ch. 765, Stats. 2012), § 4. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 3083

Author:(Lackey and Alanis)

As Amended Ver:April 3, 2024

Majority vote

SUMMARY

Requires a court to conduct a search of available databases to determine whether a person subject to a proposed domestic violence restraining order owns a firearm, regardless of whether the Judicial Council has determined they have the resources necessary to do so; and regardless of whether an appropriation has been made for that purpose.

Major Provisions

1. States the following in uncodified findings:
   1. It is the intent of the Legislature that judges issuing domestic violence restraining orders determine if the subject of the order is known to own or possess firearms in all cases. Although Chapter 765 of the Statutes of 2012 required this, the requirement was made conditional on the issuance of a specified study by the Judicial Council and a specific appropriation of funds for this purpose, which never occurred. It is vital that firearms be kept out of the hands of known domestic abusers.
   2. Individuals who are prohibited due to issuance of restraining orders represented 16 percent of the backlog in the Department of Justice’s Armed and Prohibited Persons System in 2022.
   3. Failure to remove firearms from domestic abusers can have tragic results. According to Attorney General Bonta, "The data is clear: Domestic violence abusers should not have firearms. When an abuser has access to a firearm, it endangers the safety and lives of those around them. Violence is not an accident. It is also not inevitable, and it can be prevented. Removing dangerous weapons from people who pose a danger to others is key to that goal."
   4. According to a November 2023 report by the California Department of Justice's Office of Gun Violence Prevention, "In the decade from 2013 to 2022, law enforcement agencies in California reported 1,254 gun homicides in which one or more suspected offenders were identified as a current or former intimate partner or family member of the victim."
   5. Therefore, it is the intent of the Legislature that, in all circumstances, judges who issue domestic violence restraining orders verify whether the subject of the order is known to own or possess one or more firearms and, if the subject of the order does, to demonstrate proof of surrender of the firearm or firearms in accordance with legal requirements.
2. Repeals the following uncodified language, expressing the Legislature's intent regarding whether all courts are required to comply with the requirements of Family Code Section 6306, as set forth in Section 4 of Chapter 765 of the Statutes of 2012: "This act shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes. This act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act."
3. Clarifies that before a hearing on the issuance or denial of a Domestic Violence Restraining Order (DVRO), that a court shall determine, among other things, whether the subject of the proposed order owns or possesses a firearm as reflected in the California Department of Justice’s Automated Firearms System.
4. Clarifies that the court's search pursuant to 3) shall be conducted of all records and databases readily available and reasonably accessible to the court, including, the California Department of Justice's (DOJ's) Automated Firearms System.
5. Provides that if a court does not have electronic or other access to the California Department of Justice's Automated Firearms System and if there is no preexisting agreement between the court and a law enforcement agency that the law enforcement agency will conduct a search of the California Law Enforcement Telecommunications System in order to report to the court whether the subject of the proposed order owns or possesses a firearm, upon the request of the court, the sheriff shall access the California Law Enforcement Telecommunications System in order to search the California Department of Justice’s Automated Firearms System for the purpose of determining whether the subject of the order owns or possesses any firearms. The sheriff shall then report the results of the search to the court.
6. Provides that it is the intent of the Legislature that, except with regard to a search whether the subject of a proposed order owns or possesses a firearm, the requirement for courts to search relevant databases as set forth in 3) prior to issuance of a DVRO shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes; and provides that this act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act.

COMMENTS

This bill seeks to make several modest, but important, changes to existing law to make it more likely that firearms will be removed from the possession of individuals who are subject to domestic violence restraining orders (DVROs). It does so by mandating that, prior to holding a hearing regarding issuance of a DVRO, a court conduct a search of available databases to determine whether the person who is proposed to be restrained by the order, according to the database, owns or possesses any firearms, something that current law requires to be implemented only "in those courts identified by the Judicial Council as having resources currently available for these purposes."

This commonsense measure seeks to make the search of the California DOJ's automated Firearms System (AFS) mandatory for all courts to determine, prior to a hearing regarding issuance of a DVRO, whether the person who is the subject of the proposed order owns or possesses any firearms, according to the database.

Background – DVROs. The Domestic Violence Prevention Act (DVPA, or Act) seeks to prevent acts of domestic violence, abuse, and sexual abuse, and to provide for a separation of persons involved in domestic violence for a period sufficient to create safety. The Act enables a party to seek a "protective order," also known as a restraining order, which may be issued to protect a petitioner who presents "reasonable proof of a past act or acts of abuse." (Family Code Sections 6300, 6218.)

Petitioners who need immediate protection may seek a temporary restraining order or TRO, which becomes effective upon receiving a judge’s signature and being served on the respondent. TROs may be issued "ex parte" (Latin for "by or for one party")—that is, without formal notice to, or the presence of, the respondent. (Family Code Section 241.) Speed is by necessity an issue in obtaining the TRO, so processes that make it quicker and easier to file for, and receive, the TRO are important. Because a restrained party may not have had the opportunity to defend their interests, TROs are of necessity short in duration. If a noticed hearing is not held within 21 days (or 25 days if the court finds good cause), the TRO is no longer enforceable, unless a court grants a continuance. (Family Code Sections 242, 245.) After a duly noticed hearing, however, the court is authorized to extend the original TRO into a "permanent" protective order (also known as orders after hearing or, for purposes of this analysis, a DVRO) that may last up to five years. (Family Code Sections 6345, 6302.)

Legal Effect of a DVRO on the Ability to Own, Possess, and Purchase Firearms and Ammunition. Existing law prohibits a person subject to a DVRO from owning, possessing, purchasing, or receiving a firearm or ammunition while the order is in effect, and makes the violation of such an order a crime. (Family Code Section 6389(a).) A violation is punishable as either a misdemeanor (owning or possessing a firearm when prohibited from doing so by a restraining order), or a wobbler (purchasing or receiving or attempting to purchase or receive a firearm when prohibited from doing so by a restraining order). (Ibid.; See also Penal Code Section 29825.)

Existing law requires, before a hearing on a protective order, that the court ensure a search of specified records and databases is conducted to determine if the subject of the proposed order, among other things, owns a firearm. (Family Code Section 6306(a).) While this requirement has been in place since 1993, it is not always implemented as envisioned by the Legislature. For example, a court is not required to request firearms ownership information from the California Department of Justice (DOJ) and is only required to search all records and databases "readily available and reasonably accessible to the court," including several state, federal, and local databases, but not databases of firearms ownership. (See Ibid.) Furthermore, existing uncodified statutory language provides that the requirement "shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes. This act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act." (Section 7 of Chapter 572 of the Statutes of 2001.)

In 2021, SB 320 (Eggman), Chapter 685, Statutes of 2021, codified Rule of Court 5.495 in the Family Code and made compliance mandatory so that standards and procedures for ensuring the relinquishment of a firearm and ammunition following the issuance of a civil restraining order would consistently apply throughout the state. It also required, in order to fill the gaps in court communication with justice partners identified by the 2008 Judicial Council report, the court to notify law enforcement officials and the county prosecutor's office when there has been a violation of a firearm relinquishment order related to a DVRO.

According to the Author

The author states, in support of the bill, "Guns in the hands of domestic abusers can lead to tragedies. The state must ensure that all reasonable steps are taken to ensure that firearms in the hands of abusers are identified and removed as soon as possible."

Arguments in Support

The California Partnership to End Domestic Violence writes the following in support of the bill:

The reliance on an "honor system" for domestic violence offenders to surrender firearms has proven inadequate. Failure to remove guns from the hands of abusers poses significant risks to the safety and lives of victims, as evidenced by the alarming association between domestic abusers and firearm-related violence, including mass shootings.

AB 3083 seeks to rectify these shortcomings by repealing contingent language and ensuring the safety of victims. It requires family court judges, upon issuing restraining orders, to ascertain whether the subject possesses firearms. This proactive measure empowers judges to demand proof of surrender or storage of firearms with licensed dealers, aligning with existing laws prohibiting firearm possession by individuals subject to domestic violence restraining orders.

By eliminating ambiguity and strengthening enforcement mechanisms, AB 3083 aims to reduce the incidence of gun violence and murders associated with domestic violence. It prioritizes the safety and well-being of victims by ensuring that abusers are deprived of access to lethal weapons, thus mitigating the risk of further harm.

Arguments in Opposition

No opposition on file.

FISCAL COMMENTS

According to the Assembly Appropriations analysis, cost pressures (Trial Court Trust Fund, General Fund) to the courts of an unknown but potentially significant amount for technology upgrades needed to provide courts with access to the Automated Firearms System (AFS). Judicial Council reports some courts already have the technology needed to comply with this bill and routinely conduct AFS searches. The bill makes compliance subject to a budget appropriation for courts without sufficient existing resources to implement the requirements.

Ongoing, absorbable workload cost pressures to the courts to conduct AFS searches each time a court considers a DVRO petition.

The Governor's 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund. According to the Legislative Analyst's Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

VOTES

ASM JUDICIARY: 12-0-0

YES: Kalra, Dixon, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Reyes, Sanchez, Waldron

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

ASM APPROPRIATIONS: 15-0-0

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

UPDATED

VERSION: April 3, 2024

CONSULTANT: Alison Merrilees / JUD. / (916) 319-2334 FN: 0003055

Date of Hearing: May 8, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 3083

Author:(Lackey) – As Amended Ver:April 3, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires a court to determine whether a person against whom a domestic violence restraining order (DVRO) is sought owns a firearm.

FISCAL EFFECT:

Cost pressures (Trial Court Trust Fund, General Fund) to the courts of an unknown but potentially significant amount for technology upgrades needed to provide courts with access to the Automated Firearms System (AFS). Judicial Council reports some courts already have the technology needed to comply with this bill and routinely conduct AFS searches. The bill makes compliance subject to a budget appropriation for courts without sufficient existing resources to implement the requirements.

Ongoing, absorbable workload cost pressures to the courts to conduct AFS searches each time a court considers a DVRO petition.

The Governor’s 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund. According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. According to the author:

Guns in the hands of domestic abusers can lead to tragedies. The state must ensure that all reasonable steps are taken to ensure that firearms in the hands of abusers are identified and removed as soon as possible.

1. Background. A DVRO is a civil restraining order that protects someone (the petitioner) from abuse by their intimate partner or family member (the respondent). A petitioner may seek a DVRO against a current or former domestic partner, spouse, person they dated, or family member who abused the petitioner or their children. Existing law contains a provision stating a court must, when considering a petition seeking a DVRO, check records and databases to determine whether the respondent has a prior violent felony conviction, a misdemeanor conviction involving domestic violence or weapons, an outstanding warrant, or owns or possesses a firearm, among other factors. However, this provision was enacted contingent upon appropriation of funds to the courts; according to the Assembly Committee on Judiciary, a related appropriation was never made.

This bill removes the provision that makes this requirement contingent upon appropriation and requires a court to determine, before ruling on a petition seeking a DVRO, whether the AFS shows the respondent owns or possesses a firearm. The AFS is the statewide database of firearms ownership records maintained by the Department of Justice. If the court does not have direct access to the AFS or access through an agreement with a law enforcement agency, the bill requires the sheriff to conduct an AFS search and report the results to the court.

However, the bill also states that its requirements apply to court without sufficient resources to implement the bill’s requirements to the extent that funds are appropriated for these purposes in the annual Budget Act.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 16, 2024

Counsel: Kimberly Horiuchi

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Requires a court to conduct a search of available databases to determine whether a person subject to a proposed domestic violence restraining order (DVRO) owns a firearm. Specifically, this bill:

1. Clarifies that, before a hearing on the issuance or denial of a DVRO, a court must determine, among other things, whether the proposed restrained person owns or possesses a firearm as reflected in the California Department of Justice’s (DOJ) Automated Firearms System (AFS).
   
2. States when the court is determining whether a proposed restrained person owns or possesses a firearm, it must conduct a search of all records and databases readily available and reasonably accessible by the court, including the DOJ AFS.
   
3. Repeals uncodified language from Family Code section 6306, as amended in Chapter 765 of the Statutes of 2012 that states: “This act shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes. This act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act.”
   
4. Requires that a county sheriff access the California Law Enforcement Telecommunications System (CLETS) in order to search the DOJ AFS for the purpose of determining whether the subject of the DVRO owns or possesses any a firearm, if a court does not have electronic or other access to the DOJ AFS and if there is no preexisting agreement between the court and a law enforcement agency.
   
5. States the intent of the Legislature that, except with regard to a search of whether the subject of a proposed order owns or possesses a firearm, this provision of law shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes. This act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act.
   
6. States findings and declarations as follows:
   
   1. It is the intent of the Legislature that judges issuing domestic violence restraining orders determine if the subject of the order is known to own or possess firearms in all cases. Although Chapter 765 of the Statutes of 2012 required this, the requirement was made conditional on the issuance of a specified study by the Judicial Council and a specific appropriation of funds for this purpose, which never occurred. It is vital that firearms be kept out of the hands of known domestic abusers.
      
   2. Individuals who are prohibited due to issuance of restraining orders represented 16 percent of the backlog in the DOJ’s Armed and Prohibited Persons System (APPS) in 2022.
      
   3. Failure to remove firearms from domestic abusers can have tragic results. According to Attorney General Bonta, “The data is clear: Domestic violence abusers should not have firearms. When an abuser has access to a firearm, it endangers the safety and lives of those around them. Violence is not an accident. It is also not inevitable, and it can be prevented. Removing dangerous weapons from people who pose a danger to others is key to that goal.”
      
   4. According to a November 2023 report by the California Department of Justice’s Office of Gun Violence Prevention, “In the decade from 2013 to 2022, law enforcement agencies in California reported 1,254 gun homicides in which one or more suspected offenders were identified as a current or former intimate partner or family member of the victim.”
      
   5. Therefore, it is the intent of the Legislature that, in all circumstances, judges who issue domestic violence restraining orders verify whether the subject of the order is known to own or possess one or more firearms and, if the subject of the order does, to demonstrate proof of surrender of the firearm or firearms in accordance with legal requirements.

EXISTING LAW:

1. Authorizes a court, under the Domestic Violence Protection Act (DVPA), to issue and enforce domestic violence restraining orders, including emergency protective orders (EPOs), temporary (or ex parte) restraining orders (TROs), and longer-term or permanent restraining orders. (Fam. Code, § 6300, et seq.)
   
2. Requires, before a hearing on a protective order, that the court ensures a search of specified records and databases is conducted to determine if the subject of the proposed order has a registered firearm. (Fam. Code, § 6306, subd. (a).)
   
3. Mandates the court search all records and databases readily available and reasonably accessible to the court, including, but not limited to the following:
   
   1. The California Sex and Arson Registry (CSAR);
      
   2. The Supervised Release File;
      
   3. State summary criminal history information maintained by the DOJ, as specified;
      
   4. The Federal Bureau of Investigation’s nationwide database; and
      
   5. Locally maintained criminal history records or databases.
      

However, a record or database need not be searched if the information available in that record or database can be obtained as a result of a search conducted in another record or database. (Fam. Code, § 6306, subd. (a)(1-5).)

1. States prior to deciding whether to issue a protective or restraining order or when determining appropriate temporary custody and visitation orders, the court shall consider the following information obtained pursuant to a search of records, as specified:
   
   1. A conviction for a serious or violent felony, as defined;
      
   2. A misdemeanor conviction involving domestic violence, weapons, or other violence;
      
   3. An outstanding warrant;
      
   4. Parole or probation status;
      
   5. A prior restraining order; and
      
   6. A violation of a prior restraining order. (Fam. Code, § 6306, subd. (b)(1).)
      
2. Provides that information obtained as a result of the search that does not involve a conviction, as specified, shall not be considered by the court in making a determination regarding the issuance of a DVRO. That information shall be destroyed and shall not become part of the public file in this or any other civil proceeding. (Fam. Code, § 6306, subd. (b)(1).)
   
3. Requires the Judicial Council to provide notice on all protective orders issued within the state that the respondent is prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive a firearm while the protective order is in effect. (Pen. Code, § 1524, subd. (d).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Existing law relies too heavily on the ‘honor system’ for domestic violence offenders to surrender their firearms. Failure to remove guns from the hands of the abuser can have tragic results regardless of the restraining orders. Domestic violence offenders should not have access to firearms. Existing law relies too heavily on the ‘honor system’ for these abusers to surrender their guns. Family court judges are supposed to be part of the process of ensuring that offenders surrender their weapons, but without the budget allocation, this has not widely occurred.
   
   “According to Attorney General Bonta, ‘The data is clear: Domestic violence abusers should not have firearms. When an abuser has access to a gun, it endangers the safety and lives of those around them. Every time firearm possession is overlooked when issuing a restraining order, there is a high risk of preventable domestic violence and gun-related death. To add to the high risk, as indicated by the AG Bonta, domestic abusers are associated with two-thirds of mass shootings.’ Therefore, California must protect the safety of others with this common-sense gun control measure. Existing law requires a court to check if a person subject to a restraining or protective order owns a weapon and, consequently, will be prohibited from owning or possessing a firearm upon the order. However, after the passage of that bill, the mandate was not fully enacted. Due to the contingency language within its origin language in SB 1433 (Alquist) of 2012, some counties did not comply since the proposal was only a mandate if a budget allocation was to be made, as many counties are not well enough funded to enforce these background checks. However, the 2022-23 budget did allocate money for APPS-related activities, but this was not broad enough to trigger the mandate. This being said, the policy within SB 1433 should be carried out whether the budget allocation has been made or not. Guns in the hands of domestic abusers can lead to tragedies. The state must ensure that all reasonable steps are taken to ensure that firearms in the hands of abusers are identified and removed as soon as possible.”
   
2. Protective and Restraining Orders Based on Incidents of Domestic Violence: Protective orders and restraining orders are, in the outcome, very similar – both are orders issued or approved by a court that prevents a person from contacting another person under specific circumstances and may also restrict other conduct to prevent harassment, threats, or violence. (See generally, Fam. Code, § 6218, subd. (a)-(c).)

However, there are a couple of differences, at least in a practical sense. According to the California Courts, Self Help Guide, the police may ask for an emergency (which includes instances of domestic violence) protective order (EPO) to protect the victim of a crime, usually when the victim calls the police or 911 for help. If the defendant (the person accused of committing the crime) is arrested and charged, a judge can issue a criminal protective order (CPO) to protect victims and witnesses, particularly during the pendency of the case. EPOs and CPOs are protective orders.

Protective orders and “temporary restraining orders or TROs” are often used interchangeably. A victim may also be able to file their own moving papers to request a protective or restraining order. A restraining order can include some of the same orders as an EPO or CPO, like ordering the defendant to stay away from the victim. But in restraining order cases filed by a victim (instead of law enforcement), additional protections may be available. A victim can have a restraining order and an EPO or CPO at the same time as one is issued on an emergency basis and one is issued for a longer period of time. (See Fam. Code, § 6320, subd. (a); Judicial Branch of California, California Courts Self-Help Guide, Guide to Protective Orders, p. 1-2.)^[1]

An EPO can include orders that the defendant: (a) not contact people protected by the order; (b) not harass, stalk, threaten or hurt people protected by the order; (c) stay a certain distance away from people protected by the order or places they live or go regularly; (d) move out from a home that is shared with the protected person; or (e) not have guns, firearms, or ammunition. An EPO only lasts a short time, usually 5-7 days. If the person protected by the EPO needs protection that lasts longer or wants to ask for other orders, they can apply for a restraining order. Speed is by necessity an issue in obtaining the TRO, so processes that make it quicker and easier to file for, and receive, the TRO are important. Because a restrained party may not have had the opportunity to defend their interests, TROs are of necessity short in duration. If a noticed hearing is not held within 21 days (or 25 days if the court finds good cause), the TRO is no longer enforceable, unless a court grants a continuance. (Fam. Code, §242, subd. (b).) After a duly noticed hearing, however, the court is authorized to extend the original TRO into a “permanent” protective order (also known as orders after hearing or, for purposes of this analysis, a DVRO) that may last up to five years. (Fam. Code, §§ 6345, 6302.)

The purpose of the DVPA “is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” Family Code sections 6218, among others, allow a party to seek a “protective order,” to protect a petitioner who presents “reasonable proof of a past act or acts of abuse.” (Fam. Code, §§ 6300, 6218.) A petitioner who needs immediate protection may seek a temporary restraining order or TRO, which becomes effective upon receiving a judge’s signature and being served on the respondent. TROs may be issued on an ex parte basis that is, without formal notice to, or the presence of, the respondent. (Fam. Code, § 241.)

1. Firearms Prohibition: Existing law prohibits a person from owning, possessing, purchasing, or receiving a firearm or ammunition while the DVRO order is in effect, and makes the violation of such an order a crime. (Fam. Code, § 6389, subd. (a).) Possessing or attempting to possess a firearm during the pendency of a DVRO is punishable as an alterate misdemeanor-felony (a misdemeanor for owning or possessing a firearm when prohibited from doing so by a restraining order; a wobbler for purchasing or receiving or attempting to purchase or receive a firearm when prohibited from doing so by a restraining order). (Ibid.; See also Pen. Code, § 29825.)

Existing law requires, before a hearing on a protective order, that the court ensure a search of specified records and databases is conducted to determine if the subject of the proposed order, among other things, owns a firearm. (Fam. Code, § 6306, subd. (a).) While this requirement has been in place since 1993, it is not always implemented as envisioned by the Legislature.

For example, a court is not required to request firearms ownership information from the DOJ and is only required to search all records and databases “readily available and reasonably accessible to the court,” including several state, federal, and local databases, but not databases of firearms ownership. (Fam. Code, § 6306, subd. (a).) Furthermore, existing uncodified statutory language provides that the requirement “shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes. This act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act.” (See § 7 of Chapter 572 of the Statutes of 2001.)

In 2021, SB 320 (Eggman), Chapter 685, Statutes of 2021, codified Rule of Court 5.495 in the Family Code and made compliance mandatory so that standards and procedures for ensuring the relinquishment of a firearm and ammunition following the issuance of a civil restraining order would consistently apply throughout the state. It also required, in order to fill the gaps in court communication with justice partners identified by the 2008 Judicial Council report, the court to notify law enforcement officials and the county prosecutor’s office when there has been a violation of a firearm relinquishment order related to a DVRO.

This bill enacts uncodified statutory language expressing the Legislature’s intent for restrictions on the possession and ownership of firearms by persons who are subject to DVROs; repeals uncodified intent language, stating the requirement for a court to search databases to determine whether the subject of a DVRO owns firearms is only required to be implemented in courts that have resources or receive funds for that purpose; and clarifies a court must determine whether the subject of the proposed DVRO, as reflected in the AFS, owns or possess a firearm.

1. Arguments in Support: According to the Burbank Police Officers Association: Existing law mandates a court check if an individual subject to a restraining or protective order owns a weapon, with the intention of prohibiting firearm possession upon issuance of such an order. However, the effectiveness of this mandate has been hindered due to contingent language within the original legislation (SB 1433 - Alquist) of 2012. This contingency, tied to budget allocations, has resulted in inconsistent enforcement across counties, exacerbating the risks faced by victims of domestic violence. The reliance on an "honor system" for domestic violence offenders to surrender firearms has proven inadequate. Failure to remove guns from the hands of abusers poses significant risks to the safety and lives of victims, as evidenced by the alarming association between domestic abusers and firearm-related violence, including mass shootings. AB 3083 seeks to rectify these shortcomings by repealing contingent language and ensuring the safety of victims. It requires family court judges, upon issuing restraining orders, to ascertain whether the subject possesses firearms. This proactive measure empowers judges to demand proof of surrender or storage of firearms with licensed dealers, aligning with existing laws prohibiting firearm possession by individuals subject to domestic violence restraining orders. By eliminating ambiguity and strengthening enforcement mechanisms, AB 3083 aims to reduce the incidence of gun violence and murders associated with domestic violence. It prioritizes the safety and well-being of victims by ensuring that abusers are deprived of access to lethal weapons, thus mitigating the risk of further harm.
2. Arguments in Opposition: None on file.
   
3. Related Legislation:
   1. AB 2024 (Pacheco) seeks to eliminate delays in getting DVPO protection forms to the judicial officer due to relatively minor errors or omissions. AB 2024 is pending referral in the Senate.
   2. AB 2621 (Gabriel) requires the Commission on Peace Officer Standards and Training (POST) instruction to include identifying when a gun violence restraining order is appropriate to prevent a hate crime and the procedure for seeking a gun violence restraining order and require instruction on responses to hate crime waves against specified groups, including the LGBTQ and Jewish communities. AB 2621 is pending in the Assembly Appropriations Committee.
   3. AB 2759 (Petrie-Norris) revises the exemption in existing law pertaining to the issuance of a protective order or restraining order and the relinquishment of a firearm to clarify and expand the standard considered by the court in making determinations as to sworn peace officers carrying a firearm either on or off duty, as a condition of employment. AB 2759 is pending on the Assembly Floor.
      
4. Prior Legislation:
5. AB 1143 (Berman) Chapter 156, Statutes of 2021 provides that in lieu of personal service of a petition for a civil harassment restraining order, if a respondent's address is unknown, the court may authorize another method of service that is reasonably calculated to give actual notice to the respondent, if the court determines that a petitioner made a diligent effort to accomplish service, and may prescribe the manner in which proof of service must be made.
   
6. SB 538 (Rubio), Chapter 686, Statutes of 2021 facilitates the filing of a DVRO and gun violence restraining order (GVRO) by allowing petitions to be submitted electronically and hearings to be held remotely.

REGISTERED SUPPORT / OPPOSITION:

Support

Arcadia Police Officers' Association
Burbank Police Officers' Association
California Association of Highway Patrolmen
California District Attorneys Association
California Partnership to End Domestic Violence
California Police Chiefs Association
California Reserve Peace Officers Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Murrieta Police Officers' Association
Newport Beach Police Association
Novato Police Officers Association
Palos Verdes Police Officers Association
Peace Officers Research Association of California (PORAC)
Placer County Deputy Sheriffs' Assocation
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
Santa Ana Police Officers Association
Upland Police Officers Association

Opposition

None

Analysis Prepared by:

1. Located at https://selfhelp.courts.ca.gov/protective-orders, last visited March 21, 2024. ↑

Date of Hearing: April 2, 2024

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:AB 3083

Author:(Lackey and Alanis) – As Introduced Ver:February 16, 2024

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: Domestic violence: protective orders: background checks

KEY ISSUE: SHOULD a COURT BE REQUIRED TO CONDUCT A SEARCH OF AVAILABLE DATABASES TO DETERMINE WHETHER A PERSON SUBJECT TO A PROPOSED DOMESTIC VIOLENCE RESTRAINING ORDER OWNS A FIREARM, REGARDLESS OF WHETHER THE JUDICIAL COUNCIL HAS DETERMINED THEY HAVE THE RESOURCES NECESSARY TO DO SO; and regardless of WHETHER AN APPROPRIATION HAS BEEN MADE FOR THAT PURPOSE?

SYNOPSIS

The Domestic Violence Prevention Act (DVPA, or Act) seeks to prevent acts of domestic violence, abuse, and sexual abuse, and to provide for a separation of persons involved in domestic violence for a period sufficient to create safety. Existing law prohibits a person subject to a DVRO from owning, possessing, purchasing, or receiving a firearm or ammunition while the order is in effect, and makes the violation of such an order a crime. Existing law requires, before a hearing on a protective order, that the court ensure a search of specified records and databases is conducted to determine if the subject of the proposed order, among other things, owns a firearm. (Family Code Section 6306 (a).) While this requirement has been in place since 1993, it is not always implemented as envisioned by the Legislature. Furthermore, existing uncodified statutory language provides that the requirement “shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes. This act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act.”

Mindful of the connection between domestic violence and gun violence, this bill seeks to strengthen existing law to ensure that firearms are more likely to be removed from gun owners who are subject to DVROs. The bill in print does several things in relation to DVRO hearings and firearm possession: (1) enacts uncodified statutory language expressing the Legislature’s intent for restrictions on the possession and ownership of firearms by persons who are subject to DVROs; (2) repeals Section 4 of Chapter 765 of the Statutes of 2012, uncodified intent language, stating that the requirement for a court to search databases to determine whether the subject of a DVRO owns firearms is only required to be implemented in courts that have resources. Author’s amendments, which are reflected in the SUMMARY, below and explained in the analysis, clarify what a court must do if it does not have its own access to DOJ’s Automated Firearms System, among other things.

The bill is supported by a number of law enforcement organizations and the California Partnership to End Domestic Violence and has no opposition on file. Should the bill be approved by the Committee, it would be referred to the Assembly Committee on Public Safety.

SUMMARY: Requires a court to conduct a search of available databases to determine whether a person subject to a proposed domestic violence restraining order owns a firearm, regardless of whether the Judicial Council has determined they have the resources necessary to do so; and regardless of whether an appropriation has been made for that purpose. Specifically, this bill:

1. States the following in uncodified findings:
   1. It is the intent of the Legislature that judges issuing domestic violence restraining orders determine if the subject of the order is known to own or possess firearms in all cases. Although Chapter 765 of the Statutes of 2012 required this, the requirement was made conditional on the issuance of a specified study by the Judicial Council and a specific appropriation of funds for this purpose, which never occurred. It is vital that firearms be kept out of the hands of known domestic abusers.
   2. Individuals who are prohibited due to issuance of restraining orders represented 16 percent of the backlog in the Department of Justice’s Armed and Prohibited Persons System in 2022.
   3. Failure to remove firearms from domestic abusers can have tragic results. According to Attorney General Bonta, “The data is clear: Domestic violence abusers should not have firearms. When an abuser has access to a firearm, it endangers the safety and lives of those around them. Violence is not an accident. It is also not inevitable, and it can be prevented. Removing dangerous weapons from people who pose a danger to others is key to that goal.”
   4. According to a November 2023 report by the California Department of Justice’s Office of Gun Violence Prevention, “In the decade from 2013 to 2022, law enforcement agencies in California reported 1,254 gun homicides in which one or more suspected offenders were identified as a current or former intimate partner or family member of the victim.”
   5. Therefore, it is the intent of the Legislature that, in all circumstances, judges who issue domestic violence restraining orders verify whether the subject of the order is known to own or possess one or more firearms and, if the subject of the order does, to demonstrate proof of surrender of the firearm or firearms in accordance with legal requirements.
2. Repeals the following uncodified language, expressing the Legislature’s intent regarding whether all courts are required to comply with the requirements of Family Code Section 6306, as set forth in Section 4 of Chapter 765 of the Statutes of 2012: “This act shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes. This act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act.”
3. Clarifies that before a hearing on the issuance or denial of a Domestic Violence Restraining Order (DVRO), that a court shall determine, among other things, whether the subject of the proposed order owns or possesses a firearm as reflected in the California Department of Justice’s Automated Firearms System.
4. Clarifies that the court’s search pursuant to 3) shall be conducted of all records and databases readily available and reasonably accessible to the court, including, the California Department of Justice’s (DOJ’s) Automated Firearms System.
5. Provides that if a court does not have electronic or other access to the California Department of Justice’s Automated Firearms System and if there is no preexisting agreement between the court and a law enforcement agency that the law enforcement agency will conduct a search of the California Law Enforcement Telecommunications System in order to report to the court whether the subject of the proposed order owns or possesses a firearm, upon the request of the court, the sheriff shall access the California Law Enforcement Telecommunications System in order to search the California Department of Justice’s Automated Firearms System for the purpose of determining whether the subject of the order owns or possesses any firearms. The sheriff shall then report the results of the search to the court.
6. Provides that it is the intent of the Legislature that, except with regard to a search whether the subject of a proposed order owns or possesses a firearm, the requirement for courts to search relevant databases as set forth in 3) prior to issuance of a DVRO shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes; and provides that this act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act.

EXISTING LAW:

1. Authorizes a court, under the Domestic Violence Protection Act (DVPA), to issue and enforce domestic violence restraining orders, including emergency protective orders (EPOs), temporary (or ex parte) restraining orders (TROs), and longer-term or permanent restraining orders (also known as orders after hearing, or for purposes of this analysis, a DVRO). (Family Code Section 6200 et seq.)
2. Requires, before a hearing on a protective order, that the court ensures a search of specified records and databases is conducted to determine if the subject of the proposed order has a registered firearm. (Family Code Section 6306 (a).)
3. Provides, in uncodified statutory language, that the requirements of 2): “shall be implemented pursuant to the provisions of Section 7 of Chapter 572 of the Statutes of 2001” [which, pursuant to 14), makes other requirements relating to the DVPA contingent upon either the court being identified by the Judicial Council, or appropriation of the Legislature]. (Section 4 of Chapter 765 of the Statutes of 2012.)
4. Prohibits a person subject to a protective order from owning, possessing, purchasing, or receiving a firearm or ammunition while the order is in effect, a violation of which is a crime. (Family Code Section 6389 (a).)
5. Makes a violation of the prohibition in 4) punishable as either a misdemeanor (owning or possessing a firearm when prohibited from doing so by a restraining order), or a wobbler (purchasing or receiving or attempting to purchase or receive a firearm when prohibited from doing so by a restraining order), punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. (Ibid.; See also Penal Code Section 29825 (a).)
6. Provides that upon issuance of a restraining order, the court shall order the respondent to relinquish any firearm in the respondent’s immediate possession or control or subject to the respondent’s immediate possession or control. (Family Code Section 6389 (c)(1).)
7. Establishes, in the Rules of Court, processes for a family court to determine whether a restrained party has a firearm in their control, and, if a protective order has been issued, to determine if the restrained party has properly disposed of the firearm. (Cal. Rules of Court 5.495.)
8. Requires, when relevant information is presented to the court at any noticed hearing that the person has a firearm, that the court consider that information to determine whether, by a preponderance of the evidence, the person subject to the protective order is violating 5), above. (Id. at (c).)
9. Authorizes the court to make this determination at a noticed hearing when a protective order is issued, at a subsequent review hearing, or at any subsequent family law hearing while the order remains in effect. (Id. at (d)(2).) A review hearing must be set within 10 days after the noticed hearing at which the information was presented. (Id. at (e)(2).) If the restrained person is not present when the court sets the review hearing, the protected person must provide notice of the review hearing to the restrained person at least two court days before the review hearing, by personal service, or by mail to the restrained person’s known address. (Ibid.)
10. Codifies 7) – 9), above, as Family Code Section 6322.5 (a) – (c).
11. Requires a court, when holding a hearing on whether a person subject to a protective order has relinquished a firearm or ammunition, to review the file to determine whether the receipt has been filed and inquire of the respondent whether they have complied with the requirement. (Family Code Section 6389 (c)(4).)
12. Requires violations of the firearms prohibition of any restraining order to be reported to the prosecuting attorney in the jurisdiction where the order has been issued within two business days of the court hearing unless the restrained party provides a receipt showing compliance at a subsequent hearing or by direct filing with the clerk of the court. (Ibid.)
13. Requires the Judicial Council to provide notice on all protective orders issued within the state that the respondent is prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive a firearm while the protective order is in effect. (Penal Code Section 1524 (d).)
14. Provides, in uncodified legislative intent language, that the requirement for a court to comply with 4), above, “shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes. This act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act.” (Section 7 of Chapter 572 of the Statutes of 2001.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: This bill seeks to make several modest, but important, changes to existing law to make it more likely that firearms will be removed from the possession of individuals who are subject to domestic violence restraining orders (DVROs). It does so by mandating that, prior to holding a hearing regarding issuance of a DVRO, a court conduct a search of available databases to determine whether the person who is proposed to be restrained by the order, according to the database, owns or possesses any firearms, something that current law requires to be implemented only “in those courts identified by the Judicial Council as having resources currently available for these purposes.”

This commonsense measure seeks to make the search of the California DOJ’s automated Firearms System (AFS) mandatory for all courts to determine, prior to a hearing regarding issuance of a DVRO, whether the person who is the subject of the proposed order owns or possesses any firearms, according to the database. The author states, in support of the bill, “Guns in the hands of domestic abusers can lead to tragedies. The state must ensure that all reasonable steps are taken to ensure that firearms in the hands of abusers are identified and removed as soon as possible.”

Background – DVROs. The Domestic Violence Prevention Act (DVPA, or Act) seeks to prevent acts of domestic violence, abuse, and sexual abuse, and to provide for a separation of persons involved in domestic violence for a period sufficient to create safety. The Act enables a party to seek a “protective order,” also known as a restraining order, which may be issued to protect a petitioner who presents “reasonable proof of a past act or acts of abuse.” (Family Code Sections 6300, 6218.)

Petitioners who need immediate protection may seek a temporary restraining order or TRO, which becomes effective upon receiving a judge’s signature and being served on the respondent. TROs may be issued “ex parte” (Latin for “by or for one party”)—that is, without formal notice to, or the presence of, the respondent. (Family Code Section 241.) Speed is by necessity an issue in obtaining the TRO, so processes that make it quicker and easier to file for, and receive, the TRO are important. Because a restrained party may not have had the opportunity to defend their interests, TROs are of necessity short in duration. If a noticed hearing is not held within 21 days (or 25 days if the court finds good cause), the TRO is no longer enforceable, unless a court grants a continuance. (Family Code Sections 242, 245.) After a duly noticed hearing, however, the court is authorized to extend the original TRO into a “permanent” protective order (also known as orders after hearing or, for purposes of this analysis, a DVRO) that may last up to five years. (Family Code Sections 6345, 6302.)

Legal Effect of a DVRO on the Ability to Own, Possess, and Purchase Firearms and Ammunition. Existing law prohibits a person subject to a DVRO from owning, possessing, purchasing, or receiving a firearm or ammunition while the order is in effect, and makes the violation of such an order a crime. (Section 6389 (a).) A violation is punishable as either a misdemeanor (owning or possessing a firearm when prohibited from doing so by a restraining order), or a wobbler (purchasing or receiving or attempting to purchase or receive a firearm when prohibited from doing so by a restraining order). (Ibid.; See also Penal Code Section 29825.)

Existing law requires, before a hearing on a protective order, that the court ensure a search of specified records and databases is conducted to determine if the subject of the proposed order, among other things, owns a firearm. (Family Code Section 6306 (a).) While this requirement has been in place since 1993, it is not always implemented as envisioned by the Legislature. For example, a court is not required to request firearms ownership information from the California Department of Justice (DOJ) and is only required to search all records and databases “readily available and reasonably accessible to the court,” including several state, federal, and local databases, but not databases of firearms ownership. (See Ibid.) Furthermore, existing uncodified statutory language provides that the requirement “shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes. This act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act.” (Section 7 of Chapter 572 of the Statutes of 2001.)

In 2021, SB 320 (Eggman), Chapter 685, Statutes of 2021, codified Rule of Court 5.495 in the Family Code and made compliance mandatory so that standards and procedures for ensuring the relinquishment of a firearm and ammunition following the issuance of a civil restraining order would consistently apply throughout the state. It also required, in order to fill the gaps in court communication with justice partners identified by the 2008 Judicial Council report, the court to notify law enforcement officials and the county prosecutor’s office when there has been a violation of a firearm relinquishment order related to a DVRO.

Domestic Violence and its Connection to Gun Violence. The presence of a firearm can turn domestic violence into domestic homicide. According to the Violence Policy Center, when men murder women, the most common weapon used is a gun; and nearly 90 percent of women murdered by men are killed by someone they know.

Intimate partner violence against women is all too common and takes many forms. [footnote (fn).] The most serious is homicide by an intimate partner. [fn.] Guns can easily turn domestic violence into domestic homicide. One federal study on homicide among intimate partners found that female intimate partners are more likely to be murdered with a firearm than all other means combined, concluding that “the figures demonstrate the importance of reducing access to firearms in households affected by IPV [intimate partner violence].” [fn]

Guns are also often used in non-fatal domestic violence. A study by Harvard School of Public Health researchers analyzed gun use at home and concluded that “hostile gun displays against family members may be more common than gun use in self-defense, and that hostile gun displays are often acts of domestic violence directed against women.” [fn]

The U.S. Department of Justice has found that women are far more likely to be the victims of violent crimes committed by intimate partners than men, especially when a weapon is involved. Moreover, women are much more likely to be victimized at home than in any other place.[fn.] (Violence Policy Center, “When Men Murder Women: An Analysis of 2020 Homicide Data,” Introduction, available at https://vpc.org/when-men-murder-women-introduction/.)

Mindful of these facts, in 2022, Congress enacted and President Biden signed into law the Bipartisan Safer Communities Act, which prohibits the purchase and possession of firearms for five years by people convicted in any court of a “misdemeanor crime of domestic violence” against a victim with whom they have or had a current or recent former dating relationship. If a person is convicted more than once of a misdemeanor crime of domestic violence against a person with whom they have or had a dating relationship, the prohibition on gun purchases and possession lasts indefinitely, (i.e., it does not automatically expire after five years), although the person could seek restoration of their firearms rights in the same manner as people convicted of felonies or other misdemeanor crimes of domestic violence, as allowed under state law.

This bill and the author’s proposed amendments. Mindful of the connection between domestic violence and gun violence, this bill seeks to strengthen existing law to ensure that firearms are more likely to be removed from gun owners who are subject to DVROs.

The bill in print does several things in relation to DVRO hearings and firearm possession, including the following: (1) enacts uncodified statutory language expressing the Legislature’s intent for restrictions on the possession and ownership of firearms by persons who are subject to DVROs; (2) repeals Section 4 of Chapter 765 of the Statutes of 2012, uncodified intent language, stating that the requirement for a court to search databases to determine whether the subject of a DVRO owns firearms is only required to be implemented in courts that have resources or receive funds for that purpose; and (3) makes several other technical and non-substantive updates to the code, including by correcting imprecise language in existing law, regarding “registration” of firearms.

As proposed to be amended, the bill also does the following: clarifies that the court must determine whether the subject of the proposed DVRO owns or possess a firearm, “as reflected in the California Department of Justice’s Automated Firearms System”; clarifies that “one of the records and databases readily available and reasonably accessible to the court,” is “The California Department of Justice’s Automated Firearms System; and adds the following language to Family Code Section 6306 (a) to clarify what a court must do if it does not have its own access to DOJ’s Automated Firearms System:

If a court does not have electronic or other access to the California Department of Justice’s Automated Firearms System and if there is no preexisting agreement between the court and a law enforcement agency that the law enforcement agency will conduct a search of the California Law Enforcement Telecommunications System in order to report to the court whether the subject of the proposed order owns or possesses a firearm, upon the request of the court, the sheriff shall access the California Law Enforcement Telecommunications System in order to search the California Department of Justice’s Automated Firearms System for the purpose of determining whether the subject of the order owns or possesses firearms. The sheriff shall report the results of this search to the court.

Finally, the author’s proposed amendments would codify the following:

It is the intent of the Legislature that, except with regard to a search whether the subject of a proposed order owns or possesses a firearm, this section shall be implemented in those courts identified by the Judicial Council as having resources currently available for these purposes. This act shall be implemented in other courts to the extent that funds are appropriated for purposes of the act in the annual Budget Act.

ARGUMENTS IN SUPPORT: The California Partnership to End Domestic Violence writes the following in support of the bill:

The reliance on an "honor system" for domestic violence offenders to surrender firearms has proven inadequate. Failure to remove guns from the hands of abusers poses significant risks to the safety and lives of victims, as evidenced by the alarming association between domestic abusers and firearm-related violence, including mass shootings.

AB 3083 seeks to rectify these shortcomings by repealing contingent language and ensuring the safety of victims. It requires family court judges, upon issuing restraining orders, to ascertain whether the subject possesses firearms. This proactive measure empowers judges to demand proof of surrender or storage of firearms with licensed dealers, aligning with existing laws prohibiting firearm possession by individuals subject to domestic violence restraining orders.

By eliminating ambiguity and strengthening enforcement mechanisms, AB 3083 aims to reduce the incidence of gun violence and murders associated with domestic violence. It prioritizes the safety and well-being of victims by ensuring that abusers are deprived of access to lethal weapons, thus mitigating the risk of further harm.

REGISTERED SUPPORT / OPPOSITION:

Support

Arcadia Police Officers' Association
Burbank Police Officers' Association
California Association of Highway Patrolmen
California District Attorneys Association
California Partnership to End Domestic Violence
California Reserve Peace Officers Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Murrieta Police Officers' Association
Newport Beach Police Association
Novato Police Officers Association
Palos Verdes Police Officers Association
Peace Officers Research Association of California (PORAC)
Placer County Deputy Sheriffs' Association
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
Santa Ana Police Officers Association
Upland Police Officers Association

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334