BILL ANALYSIS Ó AB 225 Page 1 Date of Hearing: March 17, 2015 Counsel: Stella Choe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair AB 225 (Melendez) - As Introduced February 3, 2015 SUMMARY: Increases the penalty, from a misdemeanor to a felony, for a person to file a petition for a gun violence restraining order with knowledge that information in the petition is false. Specifically, this bill: 1)States that every person who files a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false, is guilty of perjury, which is punishable by imprisonment in county jail for two, three, or four years. 2)Retains the misdemeanor penalty under current law for a person who files a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing with the intent to harass. EXISTING LAW: 1)States that the provisions of law establishing gun violence restraining orders shall take effect on January 1, 2016. (Pen. Code, § 18122.) AB 225 Page 2 2)Requires, upon issuance of a gun violence restraining order, the court to order the restrained person to surrender to the local law enforcement agency all firearms and ammunition in the restrained person's custody or control, or which the restrained person possesses or owns. (Pen. Code, § 18120, subd. (b)(1).) 3)Allows an immediate family member of a person or a law enforcement officer to file a petition requesting that the court issue an ex parte gun violence restraining order, that expires no later than 21 days from the date of the order, enjoining the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition. (Pen. Code, §§ 18150 and 18155, subd. (c).) 4)States that the court, before issuing an ex parte gun violence restraining order, shall examine on oath, the petitioner and any witness the petitioner may produce, or in lieu of examining the petitioner and any witness the petitioner may produce, the court may require the petitioner and any witness to submit a written affidavit signed under oath. (Pen. Code, § 18155, subd. (a).) 5)Requires a showing that the subject of the petition poses a significant danger, in the near future, of personal injury to himself or herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering specified factors and that less restrictive alternative have been ineffective, or are inappropriate for the situation, before an ex parte gun violence restraining order may be issued. (Pen. Code, § 18150, subd. (b).) 6)Specifies in determining whether grounds for a gun violence restraining order exist, the court shall consider all evidence of the following: a) A recent threat of violence or act of violence by the subject of the petition directed toward another; AB 225 Page 3 b) A recent threat of violence or act of violence by the subject of the petition directed toward himself or herself; c) A violation of an emergency protective order that is in effect at the time the court is considering the petition; d) A recent violation of an unexpired protective order; e) A conviction for any specified offense resulting in firearm possession restrictions; or, f) A pattern of violent acts or violent threats within the past 12 months, including, but not limited to, threats of violence or acts of violence by the subject of the petition directed toward himself, herself, or another. (Pen. Code, § 18155, subd. (b)(1).) 7)States that an ex parte gun violence restraining order shall be personally served on the restrained person by a law enforcement officer, or any person who is at least 18 years of age and not a party to the action, if the restrained person can reasonably be located. When serving a gun violence restraining order, a law enforcement officer shall inform the restrained person of the hearing that will be scheduled to determine whether to issue a gun violence restraining order. (Pen. Code, § 18160, subd. (b).) 8)Requires, within 21 days from the date an ex parte gun violence restraining order was issued, before the court that issued the order or another court in the same jurisdiction, the court to hold a hearing to determine if a gun violence restraining order should be issued. (Pen. Code, § 18160, subd. (c).) 9)Allows an immediate family member of a person or a law enforcement officer to request a court, after notice and a hearing, to issue a gun violence restraining order enjoining the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition for a period of one year. (Pen. Code, § 18170.) AB 225 Page 4 10)States at the hearing, the petitioner shall have the burden of proving, by clear and convincing evidence, that both of the following are true: a) The subject of the petition, or a person subject to an ex parte gun violence restraining order, as applicable, poses a significant danger of personal injury to himself or herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition; and, b) A gun violence restraining order is necessary to prevent personal injury to the subject of the petition, or the person subject to an ex parte gun violence restraining order, as applicable, or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances. (Pen. Code, § 18175, subd. (b).) 11)Provides if the court finds that there is clear and convincing evidence to issue a gun violence restraining order, the court shall issue a gun violence restraining order that prohibits the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition. If the court finds that there is not clear and convincing evidence to support the issuance of a gun violence restraining order, the court shall dissolve any temporary emergency or ex parte gun violence restraining order then in effect. (Pen. Code, § 18175, subd. (c).) 12)Requires the court to inform the restrained person that he or she is entitled to one hearing to request a termination of the gun violence restraining order and provide the restrained person with a form to request a hearing. (Pen. Code, § 18180, subd. (b).) 13)States that it is a misdemeanor offense for every person who files a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing knowing the information in the petition to be false or with the intent to harass. (Pen. Code, § 18200.) AB 225 Page 5 14)Provides that it is a misdemeanor offense for every person who owns or possesses a firearm or ammunition with knowledge that he or she is prohibited from doing so by a gun violence restraining order and he or she shall be prohibited from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a five-year period, to commence upon the expiration of the existing gun violence restraining order. (Pen. Code, § 18205.) 15)States that every person who, haven taken an oath that he or she will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury. (Pen. Code, § 118.) 16)Specifies that a person who is guilty of perjury is punishable by imprisonment in county jail for two, three, or four years. (Pen. Code, § 126.) FISCAL EFFECT: Unknown. COMMENTS: 1)Author's Statement: According to the author, "While we all hold the safety of our constituents as a top priority, it is also our responsibility to ensure the laws of this state are not abused and do not infringe upon the rights of others. In order to do this, it is paramount that consequences are consistent with the severity of the crime committed." 2)"5150" Comparison to Gun Violence Restraining Orders: A person who is gravely disabled or a danger to others because AB 225 Page 6 of a mental disorder may be taken into custody by law enforcement officers and placed in a mental health facility for up to 72 hours for treatment and evaluation. (Welf. & Inst. Code, § 5150.) When detained, if such a person "is found to own, have in his or her possession or under his or her control, any firearm whatsoever, or any other deadly weapon," the weapon "shall be confiscated by any law enforcement agency or peace officer, who shall retain custody of the firearm or other deadly weapon." (Welf. & Inst. Code, § 8102, subd. (a).) A person who is placed in a mental health facility shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm for a period of five years after the person is released. (Welf. & Inst. Code, § 8103, subd. (f)(1).) However, the person may request a hearing in court to determine whether he or she would be likely to use firearms in a safe and lawful manner. (Welf. & Inst. Code, § 8103, subds. (f)(1) and (6).) If the district attorney fails to prove by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner, the court will order that the person shall not be subject to the five-year prohibition. (Welf. & Inst. Code, § 8103, subd. (f)(7).) Under the gun violence restraining order provisions, a person who poses a significant danger of injury to himself or herself or others may be the subject of the gun violence restraining order. It is not required that the person is dangerous due to a mental disorder. (Pen. Code, §§ 18150, subd. (b) and 18175, subd. (b).) The petition may be filed by a law enforcement officer or an immediate family member of the subject of the petition. If the court issues a gun violence restraining order, the restrained person is not taken into custody. Instead, the restrained person must surrender to a local law enforcement agency all firearms and ammunition in his or her custody or control, or which he or she possesses or owns, or sell all firearms and ammunition to a licensed gun dealer within 24 hours of the order, and is prohibited from acquiring more guns or ammunition. (Pen. Code, § 18120, subd. (b).) Depending on the type of gun violence restraining order issued, ex parte or with notice and a hearing, the firearm and AB 225 Page 7 ammunition prohibition may last for a period of up to 21 days or one year. (Pen. Code, §§ 18155, subd. (c) and 18175, subd. (d).) The duration of the gun violence restraining order may be renewed for another year or terminated early as determined by the court. (Pen. Code, §§ 18185 and 18190.) If an ex parte gun violence restraining order is issued, the restrained person is entitled to a hearing within 21 days of the order to determine whether to issue a gun violence restraining order for a period of one year. (Pen. Code, § 18175, subd. (c)(1).) The burden of proof is on the petitioner, which would be the law enforcement officer or the immediate family member who filed the petition, to prove by clear and convincing evidence that the subject of the petition poses a significant danger to him or herself or to others and the order is necessary to prevent injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances. (Pen. Code, § 18175, subds. (b) and (c)(1).) If a gun violence restraining order is issued after a hearing, the restrained person may request another hearing during the period of the prohibition to terminate the order. (Pen. Code, § 18185.) 3)Isla Vista Shooting: On May 23, 2014, Elliot Rodger stabbed three people to death in his apartment and then committed a series of drive-by shootings killing six people, injuring 14, and then took his own life. (Isla Vista Mass Murder May 23 2014: Investigative Summary, Santa Barbara County Sheriff's Office, February 18, 2015.) On April 20, 2014, Rodger's mother contacted local mental health officials with concerns about videos Rodger had posted on YouTube. The matter was referred to the Sheriff's Department and deputies were dispatched to Rodger's apartment to conduct a "welfare check." After talking with Rodger, the officers determined that he was not an immediate threat to himself or others, and that they did not have cause to place him on an involuntary mental health hold. (Id.) "Among the many tragedies that intersected during Elliot Rodger's violent rampage near Santa Barbara in May . . . was AB 225 Page 8 that Rodger's parents had sought police help as their son's life spiraled out of control. Unfortunately, until he started killing people, Rodger violated no law that would have justified police action. That frustration was widely felt, and the Isla Vista tragedy moved the Legislature to approve a measure . . . that would let relatives seek a court order to confiscate weapons from a family member who displays signs of violence. At its heart, the law extends the authority police already have to disarm someone under a domestic violence restraining order." (Times Editorial Board, A Reasonable Gun Measure Prompted by Isla Vista Rampage (September 2, 2014), < http://www.latimes.com/opinion/editorials/la-ed-0903-guns-2014 0903-story.html > [as of Mar. 10, 2015].) AB 1014, authored by Assembly Members Nancy Skinner and Das Williams, sought to address concerns by the victims' families and the public that current laws were insufficient to keep guns out of the hands of persons who pose a significant danger to oneself of others but who do not have a mental disorder. AB 1014 was signed into law on September 30, 2014 and goes into effect on January 1, 2016. 4)Argument in Support: According to the California Rifle and Pistol Association, "This is a common sense bill that will help to deter the filing of a false petition, with the court, for issuance of a gun violence restraining order, by increasing the penalty for false reports from a misdemeanor to a felony with increased penalties." 5)Argument in Opposition: According to the Coalition to Stop Gun Violence, "The [gun violence restraining order] GVRO statute already contains a misdemeanor penalty for filing a petition for an ex parte GVRO or final GVRO while knowing the information in the petition to be false. Because the law has not yet been implemented, there is no evidence to show that a misdemeanor penalty would be inadequate to deter individuals from knowingly filing false petitions. We believe that stiffening the penalty for knowingly filing a false petition will have a chilling effect and deter law enforcement officers or family members from seeking a GVRO in the first place. This could leave firearms in the hands of dangerous individuals who might harm themselves, their families or other AB 225 Page 9 members in the community. "Additionally, there is no similar felony punishment in California's Domestic Violence Protective Order statute, upon which the GVRO was, in part, modeled." 6)Related Legislation: AB 950 (Melendez) would allow a person who is subject to a gun violence restraining order to transfer his or her firearms or ammunition to a licensed firearms dealer for the duration of the prohibition. If the firearms or ammunition have been surrendered to a law enforcement agency, the bill would entitle the owner to have them transferred to a licensed firearms dealer. AB 950 is pending referral from the Rules Committee. 7)Prior Legislation: a) AB 1014 (Skinner and Williams), Chapter 872, Statutes of 2014, beginning January 1, 2016, authorizes a law enforcement officer or immediate family member of a person, to seek, and a court to issue, a gun violence restraining order, as specified, prohibiting a person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition, as specified. b) SB 505 (Jackson), Chapter 918, Statutes of 2014, requires law enforcement agencies to develop, adopt, and implement written policies and standard protocols pertaining to the best manner to conduct a "welfare check," when the inquiry into the welfare or well-being of the person is motivated by a concern that the person may be a danger to himself or herself or to others and requires those policies to encourage a peace officer, prior to conducting the welfare check and whenever possible and reasonable, as specified, to conduct a search of the Department of Justice Automated Firearms System via the California Law Enforcement Telecommunications System to determine whether the person is the registered owner of a firearm. REGISTERED SUPPORT / OPPOSITION: AB 225 Page 10 Support California Rifle and Pistol Association, Inc. California State Sheriffs' Association Gun Owners of California National Rifle Association 1,015 private individuals Opposition California Attorneys for Criminal Justice California Chapters of the Brady Campaign Coalition Against Gun Violence, A Santa Barbara County Coalition Coalition to Stop Gun Violence Friends Committee on Legislation of California Law Center to Prevent Gun Violence Physicians for Social Responsibility, Sacramento Chapter Physicians for Social Responsibility, San Francisco Bay Area Chapter Five private individuals Analysis Prepared by: Stella Choe/PUB. S./(916) 319-3744