California bill AB1014
This bill is scary, it violates the 1st, 2nd and 4th amendments. If this isn't a good reason to make sure your vote counts, I don't know what is.
Here is a good video explanation:
http://www.youtube.com/watch?v=m0b6gf2EKis&sns=em
You can also view the bill here:
http://leginfo.legislature.ca.gov/fa...ryClient.xhtml
SECTION 1. Division 3.2 (commencing with Section 18100) is added to Title 2 of Part 6 of the Penal Code, to read:
DIVISION 3.2. Gun Violence Restraining Orders
18100. (a) A gun violence restraining order is an order, in writing, in the name of the people, signed by a magistrate, prohibiting a named person from having under his or her custody or control, owning, purchasing, possessing, or receiving any firearms for a period of up to one year.
(b) A firearm seizure warrant is an order, in writing, in the name of the people, signed by a magistrate, regarding a person who is subject to a gun violence restraining order and who is known to own or possess one or more firearms, which is directed to a peace officer, commanding him or her to seize any firearms in the possession of the named person and to bring the unloaded firearm before the magistrate.
18101. (a) Any person may submit an application to the court, on a form designed by the Judicial Council, setting forth the facts and circumstances necessitating that a gun violence restraining order be issued. A gun violence restraining order shall be issued to prohibit a named person from possessing a firearm if an affidavit, signed by the applicant under oath, and any additional information provided to the court demonstrates, to the satisfaction of the court, the named person poses a significant risk of personal injury to himself or herself or others by possessing firearms.
(b) A firearms seizure warrant may not be issued but upon probable cause, supported by an affidavit, naming or describing with reasonable specificity the facts and circumstances justifying the order and listing any firearm or firearms to be seized pursuant to the order.
(c) A firearm described in the firearms seizure warrant may be taken from any place, or from any person in whose possession the firearm may be.
18102. (a) The magistrate, before issuing the gun violence restraining order, may examine on oath, the person seeking the order and any witnesses the person produces, and shall take his or her affidavit or affidavits in writing, and cause the affidavit or affidavits to be subscribed by the parties making them.
(b) In determining whether grounds for a gun violence restraining order exist, the magistrate shall consider all of the following:
(1) A recent threat or act of violence by the named person directed toward others.
(2) A recent threat or act of violence by the named person directed toward himself or herself.
(3) A recent violation of an emergency protective order pursuant to Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code.
(4) A recent violation of a protective order issued pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code, Section 136.2, Section 527.6 of the Code of Civil Procedure, or Section 213.5 or 15657.03 of the Welfare and Institutions Code.
(5) A conviction for any offense listed in Section 29805.
(c) In determining whether grounds for a gun violence restraining order exist, the magistrate may consider any of the following:
(1) The reckless use, display, or brandishing of a firearm by the named person.
(2) The history of use, attempted use, or threatened use of physical force by the named person against other persons.
(3) Any prior arrest of the named person for a felony offense.
(4) Any history of a violation by the named person of an emergency protective order issued pursuant to Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code.
(5) Any history of a violation by the named person of a protective order issued pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code, Section 136.2, Section 527.6 of the Code of Civil Procedure, or Section 213.5 or 15657.03 of the Welfare and Institutions Code.
(6) Evidence of recent or ongoing abuse of controlled substances or alcohol by the named person.
(7) Evidence of recent acquisition of firearms or other deadly weapons.
(d) The affidavit or affidavits shall set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.
(e) In lieu of the written affidavit required in subdivision (a), the magistrate may take an oral statement under oath using the procedures prescribed in Section 1526.
18103. If the magistrate is satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he or she shall issue a gun violence restraining order. If there is also probable cause to believe that the person has custody or control of or owns a firearm or firearms, the magistrate shall also issue a firearm seizure warrant, signed by the magistrate with his or her name of office, to a peace officer in his or her county, commanding the peace officer to seize any firearms specified and to retain the firearm or firearms subject to the order of the court, as provided in Section 18104.
18104. (a) (1) A gun violence restraining order shall include all of the following:
(A) A statement of the grounds asserted for the order.
(B) The date and time the order expires.
(C) The address of the superior court for the district or county in which the restrained party resides.
(D) The following statement, which shall be printed in English and Spanish:
“To the restrained person: This order will last until the date and time noted above. You may not own, possess, purchase, or receive, or attempt to purchase or receive a firearm while this order is in effect. You are entitled to submit one written request for a hearing at any time during the effective period of the order for an order permitting you to own, possess, purchase, or receive a firearm. You may seek the advice of an attorney as to any matter connected with the order. The attorney should be consulted promptly so that the attorney may assist you in any matter connected with the order.”
(2) A firearm seizure warrant shall be substantially in the following form:
County of ____.
The people of the State of California to any peace officer in the County of ____.
Proof, by affidavit, having been this day made before me (naming every person whose affidavit was taken), that there is probable cause to believe that (person whose firearms are to be seized) poses a significant risk of personal injury to himself or herself or others and has possession of one or more firearms, you are therefore commanded, in the daytime (or at any time of the day or night, as the case may be, according to Section 1533 of the Penal Code), to search the person and property of the named person where firearms may be stored and to seize all firearms in the possession of the named person and to bring the firearms to a safe and secure location under the control of the local law enforcement agency.
Given under my hand, and dated this ____ day of (year).
_______, Judge of the (applicable) Court.
(b) When an officer takes property under a firearms seizure warrant, he or she shall give a receipt for the property taken, specifying it in detail, to the person from whom it was taken. In the absence of a person, the officer shall leave the receipt in the place where he or she found the property.
(c) When serving a gun violence restraining order, the officer shall inform the person that he or she may submit one written request for a hearing, pursuant to Section 18107, at any time during the effective period of the order and provide the person with a form to request a hearing.
(d) All firearms seized pursuant to a firearms seizure warrant shall be retained by the officer or the law enforcement agency in custody as provided in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6, subject to the order of the court that issued the warrant or to any other court in which an offense in respect to the firearm is triable.
18105. (a) If the location to be searched during the execution of a firearm seizure warrant is jointly occupied by multiple parties and a firearm is located during the execution of the seizure warrant, and it is determined that the firearm is owned by a person other than the person named in the firearm seizure warrant, the firearm shall not be seized if all of the following conditions are satisfied:
(1) The firearm is stored in a manner that the person named in the firearm seizure warrant does not have access to or control of the firearm.
(2) There is no evidence of unlawful possession of the firearm by the owner.
(b) If the location to be searched during the execution of a firearm seizure warrant is jointly occupied by multiple parties and a gun safe is located, and it is determined that the gun safe is owned by a person other than the person named in the firearm seizure warrant, the contents of the gun safe shall not be searched except in the owner’s presence, or with his or her consent, or unless a valid search warrant has been obtained.
18106. (a) Except as provided in subdivision (e), not later than 14 days after the execution of a gun violence restraining order and, when applicable, a firearm seizure warrant, the court that issued the order and, when applicable, the seizure warrant, or another court in that same jurisdiction, shall hold a hearing to determine whether the person who is the subject of the order may have under his or her custody or control, own, purchase, possess, or receive firearms and, when applicable, whether any seized firearms should be returned to the person named in the warrant.
(b) At the hearing, the state shall have the burden of proving, by clear and convincing evidence, that the person poses a significant risk of personal injury to himself, herself, or others by owning or possessing the firearm.
(c) If the named person is found at the hearing to pose a significant risk of personal injury to himself, herself, or others by owning or possessing a firearm, the following shall apply:
(1) The firearm or firearms seized pursuant to the warrant shall be retained by the law enforcement agency for a period not to exceed one year or until ownership of the firearm is transferred to a licensed firearm dealer.
(2) The named person shall be prohibited from owning or possessing, purchasing or receiving, or attempting to purchase or receive a firearm for a period not to exceed one year. A violation of this paragraph is a misdemeanor.
(3) The court shall notify the Department of Justice of the gun violence restraining order no later than two court days after issuing the order. The court shall also notify the department of any order restoring the person’s ability to own or possess firearms no later than two court days after issuing the order to restore the person’s right to own or possess any type of firearms that may be lawfully owned and possessed.
(d) If the court finds that the state has not met the required standard of proof, the firearm or firearms seized pursuant to the warrant shall be returned to the named person pursuant to Chapter 2 (commencing with Section 33850) of Division 11.
(e) If the person named in the warrant is a person who is prohibited by law from owning or possessing a firearm for a period of one year or more by another provision of state or federal law, a hearing pursuant to subdivision (a) is not required and the court shall issue an order to hold the firearm until either the person is no longer prohibited from owning a firearm or the person sells or transfers ownership of the firearm to a licensed firearm dealer.
(f) Any notice or report required to be submitted to the Department of Justice pursuant to this section shall be submitted in an electronic format, in a manner prescribed by the department.
(g) If any person claims title to any firearms seized pursuant to the warrant, the firearm or firearms shall be returned to the lawful owner pursuant to Chapter 2 (commencing with Section 33850) of Division 11 of Title 4.
18107. (a) A person described in subdivision (c) of Section 18106, may submit one written request at any time during the effective period of the order for a hearing for an order permitting the person to own, possess, purchase, or receive a firearm.
(b) The Judicial Council shall design and furnish the form, in both English and Spanish, to be used to request a hearing under this section. Each superior court shall make available the form printed and distributed by the Judicial Council.
18108. (a) (1) When a law enforcement agency has probable cause to believe that a person subject to a gun violence restraining order, as defined in Section 18100, continues to pose a significant risk of personal injury to himself or herself or others by possessing a firearm, the agency may initiate a request for a renewal of the order, on a form designed by the Judicial Council, setting forth the facts and circumstances necessitating the request. A hearing shall be held in a superior court to determine if a request for renewal of the order shall be issued.
(2) The person named in the restraining order shall be given written notice and an opportunity to be heard on the matter.
(b) A judge may, upon his or her own motion, or upon request of another person, issue a renewal of a gun violence restraining order, as defined in Section 18100, when there is probable cause to believe that a person subject to the order continues to pose a significant risk of personal injury to himself or herself or others by possessing a firearm, after written notice to the person named in the restraining order and after giving him or her an opportunity for a hearing.
18109. Except as otherwise provided, the provisions of Section 1528 and Sections 1530 to 1535, inclusive, shall apply to this division.
SEC. 2. Section 18250 of the Penal Code is amended to read:
18250. If any of the following persons is at the scene of a domestic violence incident involving a threat to human life or a physical assault, or is serving a protective order as defined in Section 6218 of the Family Code, or is serving a gun violence restraining order as defined in Section 18100, that person shall take temporary custody of any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search as necessary for the protection of the peace officer or other persons present:
(a) A sheriff, undersheriff, deputy sheriff, marshal, deputy marshal, or police officer of a city, as defined in subdivision (a) of Section 830.1.
(b) A peace officer of the Department of the California Highway Patrol, as defined in subdivision (a) of Section 830.2.
(c) A member of the University of California Police Department, as defined in subdivision (b) of Section 830.2.
(d) An officer listed in Section 830.6, while acting in the course and scope of the officer’s employment as a peace officer.
(e) A member of a California State University Police Department, as defined in subdivision (c) of Section 830.2.
(f) A peace officer of the Department of Parks and Recreation, as defined in subdivision (f) of Section 830.2.
(g) A peace officer, as defined in subdivision (d) of Section 830.31.
(h) A peace officer, as defined in subdivisions (a) and (b) of Section 830.32.
(i) A peace officer, as defined in Section 830.5.
SEC. 3. Section 8105 of the Welfare and Institutions Code is amended to read:
8105. (a) The Department of Justice shall request each public and private mental hospital, sanitarium, and institution to submit to the department that information that the department deems necessary to identify those persons who are within subject to the prohibition specified by subdivision (a) of Section 8100, in order to carry out its duties in relation to firearms, destructive devices, and explosives.
(b) Upon request of the Department of Justice pursuant to subdivision (a), each public and private mental hospital, sanitarium, and institution shall submit to the department that information which the department deems necessary to identify those persons who are within subject to the prohibition specified by subdivision (a) of Section 8100, in order to carry out its duties in relation to firearms, destructive devices, and explosives.
(c) A licensed psychotherapist shall report to a local law enforcement agency, within 24 hours, in a manner prescribed by the Department of Justice, the identity of a person subject to the prohibition specified by subdivision (b) of Section 8100. Upon receipt of the report, the local law enforcement agency, on a form prescribed by the Department of Justice, shall notify the department electronically, within 24 hours, in a manner prescribed by the department, of the person who is subject to the prohibition specified by subdivision (b) of Section 8100.
(d) All information provided to the Department of Justice pursuant to this section shall be kept confidential, separate, and apart from all other records maintained by the department. The information provided to the Department of Justice pursuant to this section shall be used only for any of the following purposes:
(1) By the department to determine eligibility of a person to acquire, carry, or possess firearms, destructive devices, or explosives.
(2) For the purposes of the court proceedings described in subdivision (b) of Section 8100, to determine the eligibility of the person who is bringing the petition pursuant to paragraph (3) of subdivision (b) of Section 8100.
(3) To determine the eligibility of a person to acquire, carry, or possess firearms, destructive devices, or explosives who is the subject of a criminal investigation, or who is the subject of an investigation into the issuance of either a gun violence restraining order or a firearm seizure warrant, as defined in Section 18100 of the Penal Code, if a part of the criminal investigation involves the acquisition, carrying, or possession of firearms, explosives, or destructive devices by that person.
(e) Reports shall not be required or requested under this section where if the same person has been previously reported pursuant to Section 8103 or 8104.
SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.