BILL NUMBER: SB 585	INTRODUCED
	BILL TEXT

INTRODUCED BY   Senator Kehoe

                        FEBRUARY 18, 2005

   An act to amend Section 6389 of the Family Code, relating to
protective orders.

	LEGISLATIVE COUNSEL'S DIGEST

   SB 585, as introduced, Kehoe.   Protective orders: firearms.
   Existing law provides that the form for a protective order notify
the respondent that he or she shall be ordered to relinquish
possession and control of any firearms. Existing law also provides
that the court shall order that relinquishment, as specified, within
24 hours of being served the order, and require the respondent to
notify the court of the relinquishment within 72 hours.
   This bill would revise the protective order form to notify the
respondent that he or she shall be ordered to relinquish possession
and control of any firearms immediately, rather than within 24 hours,
and to include a place for the requestor to specify the types of
firearms that are present and their possible location. The bill would
also require the respondent to notify the court of the
relinquishment within 48 rather than 72 hours, and would provide that
upon a showing of probable cause, the family court may order a law
enforcement officer to serve the protective order and issue a warrant
for the search and seizure of any firearm in the possession of the
respondent.
   By requiring new duties of law enforcement, the bill would impose
a state-mandated local program.

  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 6389 of the  Family Code  is amended to read:
   6389.  (a) A person subject to a protective order, as defined in
Section 6218, shall not own, possess, purchase, or receive a firearm
while that protective order is in effect. Every person who owns,
possesses, purchases or receives, or attempts to purchase or receive
a firearm while the protective order is in effect is punishable
pursuant to subdivision (g) of Section 12021 of the Penal Code.(b)
(1) On all forms providing notice that a
protective order has been requested or granted, the Judicial Council,
shall include a notice that, upon service of the order, the
respondent shall be ordered to relinquish possession or control of
any firearms immediately and not to purchase or receive or
attempt to purchase or receive any firearms for a period not to
exceed the duration of the restraining order.  
   (2) Each form shall include a place for the requestor to specify
the types of firearms that are present and their possible location.

   (c) Upon issuance of a protective order, as defined in Section
6218, the court shall order the respondent to relinquish 
immediately any firearm in that person's immediate possession
or control, or subject to that person's immediate possession or
control, within 24 hours of being served with the order, 
by either surrendering the firearm to the control of local
law enforcement officials, or by selling the firearm to a licensed
gun dealer, as specified in Section 12071 of the Penal Code. 
Upon a showing of probable cause, the family
court may order a law enforcement officer to serve the protective
order and issue a warrant for the search and seizure of any firearm
in the possession of the respondent.  A person ordered to
relinquish any firearm pursuant to this subdivision shall file with
the court a receipt showing the firearm was surrendered to the local
law enforcement agency or sold to a licensed gun dealer within
72 48 hours after receiving the order.

   (d) If the respondent declines to relinquish possession of any
firearm based upon the assertion of the right against
self-incrimination, as provided by the Fifth Amendment to the United
States Constitution and Section 15 of Article I of the California
Constitution, the court may grant use immunity for the act of
relinquishing the firearm required under this section.
   (e) A local law enforcement agency may charge the respondent a fee
for the storage of any firearm pursuant to this section. This fee
shall not exceed the actual cost incurred by the local law
enforcement agency for the storage of the firearm. For purposes of
this subdivision, "actual cost" means expenses directly related to
taking possession of a firearm, storing the firearm, and surrendering
possession of the firearm to a licensed dealer as defined in Section
12071 of the Penal Code or to the respondent.
   (f) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (c) shall state on its face that the
respondent is prohibited from owning, possessing, purchasing, or
receiving a firearm while the protective order is in effect and that
the firearm shall be relinquished to the local law enforcement agency
for that jurisdiction or sold to a licensed gun dealer, and that
proof of surrender or sale shall be filed with the court within a
specified period of receipt of the order. The order shall also state
on its face the expiration date for relinquishment. Nothing in this
section shall limit a respondent's right under existing law to
petition the court at a later date for modification of the order.
   (g) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (c) shall prohibit the person from
possessing or controlling any firearm for the duration of the order.
At the expiration of the order, the local law enforcement agency
shall return possession of any surrendered firearm to the respondent,
within five days after the expiration of the relinquishment order,
unless the local law enforcement agency determines that (1) the
firearm has been stolen, (2) the respondent is prohibited from
possessing a firearm because the respondent is in any prohibited
class for the possession of firearms, as defined in Sections 12021
and 12021.1 of the Penal Code and Sections 8100 and 8103 of the
Welfare and Institutions Code, or (3) another successive restraining
order is used against the respondent under this section. If the local
law enforcement agency determines that the respondent is the legal
owner of any firearm deposited with the local law enforcement agency
and is prohibited from possessing any firearm, the respondent shall
be entitled to sell or transfer the firearm to a licensed dealer as
defined in Section 12071 of the Penal Code. If the firearm has been
stolen, the firearm shall be restored to the lawful owner upon his or
her identification of the firearm and proof of ownership.
   (h) The court may, as part of the relinquishment order, grant an
exemption from the relinquishment requirements of this section for a
particular firearm if the respondent can show that a particular
firearm is necessary as a condition of continued employment and that
the current employer is unable to reassign the respondent to another
position where a firearm is unnecessary. If an exemption is granted
pursuant to this subdivision, the order shall provide that the
firearm shall be in the physical possession of the respondent only
during scheduled work hours and during travel to and from his or her
place of employment. In any case involving a peace officer who as a
condition of employment and whose personal safety depends on the
ability to carry a firearm, a court may allow the peace officer to
continue to carry a firearm, either on duty or off duty, if the court
finds by a preponderance of the evidence that the officer does not
pose a threat of harm. Prior to making this finding, the court shall
require a mandatory psychological evaluation of the peace officer and
may require the peace officer to enter into counseling or other
remedial treatment program to deal with any propensity for domestic
violence.
   (i) During the period of the relinquishment order, a respondent is
entitled to make one sale of all firearms that are in the possession
of a local law enforcement agency pursuant to this section. A
licensed gun dealer, who presents a local law enforcement agency with
a bill of sale indicating that all firearms owned by the respondent
that are in the possession of the local law enforcement agency have
been sold by the respondent to the licensed gun dealer, shall be
given possession of those firearms, at the location where a
respondent's firearms are stored, within five days of presenting the
local law enforcement agency with a bill of sale.
   (j) The disposition of any unclaimed property under this section
shall be made pursuant to Section 1413 of the Penal Code.
   (k) The return of a firearm to any person pursuant to subdivision
(g) shall not be subject to the requirements of subdivision (d) of
Section 12072 of the Penal Code.
   (l) If the respondent notifies the court that he or she owns a
firearm that is not in his or her immediate possession, the court may
limit the order to exclude that firearm if the judge is satisfied
the respondent is unable to gain access to that firearm while the
protective order is in effect.
   (m) Any respondent to a protective order who violates any order
issued pursuant to this section shall be punished under the
provisions of subdivision (g) of Section 12021 of the Penal Code.
  SEC. 2.
  If the Commission on State Mandates determines that this act
contains costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part
7 (commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.