MENTAL PATIENTS AND WEAPONS; Plus “Return of Confiscated Firearms” and “California’s Red Flag Statutes”

1 May 2021

LU Ref# CAB00095

MENTAL PATIENTS AND WEAPONS;
Plus “Return of Confiscated Firearms”
and “California’s Red Flag Statutes”

ROBERT C. PHILLIPS
Deputy District Attorney (Ret.)
May, 2021

Introduction:

In 1968, the California Legislature passed the “Lanterman-Petris-Short Act,” Welfare and Institutions Code, sections 5150 et seq., for the purpose of reforming commitment laws pertaining to mental health treatment. The goal was to balance the rights of the community with the rights of the individual mental patient to freedom and due process of law.

Access to “firearms” and “other deadly weapons” by persons with mental disorders (i.e., those who are a danger to themselves or others, or who are “gravely disabled”) in particular poses a difficult and potentially dangerous circumstance for law enforcement, as well as for anyone else who comes into contact with such persons. As a result, the State Legislature has sought to provide some tools for law enforcement to block, or at least minimize, such access.

The following is a synopsis of the many and complicated statutes, with applicable case law, dealing with this difficult issue.

Also, at the end (Part 3, below.), are the so-called “Red Flag” statutes (P.C. §§ 18100 et seq.), describing the necessary procedures for filing petitions for gun violence restraining orders as a prerequisite to the confiscation of firearms, ammunition, and other deadly weapons, from persons who are shown to be a danger to themselves or to others, whether or not such persons have been institutionalized in a mental hospital.

In Part 4, the subject is broadened a bit by adding “Domestic Violence Restraining/Protective Orders and Firearms.”

Part 1: Welfare and Institutions Code Statutes:

Possession of Weapons by Patients Under Treatment for a Mental Disorder and Who May be Dangerous to Self or Others:

W&I § 8100(a): While Receiving Inpatient Treatment:

Any person:

Admitted to “a facility” on or after January 1, 1992;

While receiving inpatient treatment; and

Who, in the opinion of the “attending health care professional” who is primarily responsible for the patient’s treatment of a mental disorder, is a danger to self or others, as specified in W&I §§ 5150, 5250, or 5300 (See below);

Shall not:

Have in his or her possession;
Have under his or her control;
Purchase;
Receive; or
Attempt to purchase or receive;

Any:

Firearms whatsoever; or
Other deadly weapon.

It is irrelevant, per the statute, whether or not the patient has consented to the treatment.

This subdivision no longer applies once the patient has been “discharged.”

Subd. (c): “Discharge” does not include a “leave of absence” from a facility.

Subd. (d): An “attending health care professional” means:

A licensed health care professional primarily responsible for the person’s treatment;
Who is qualified to make the decision that the person has a mental disorder; and
Who has “probable cause” to believe that the person is a danger to self or others.

“Probable Cause” is not defined. However, the term is commonly understood to require enough information to cause a “reasonable and prudent person to entertain an honest and strong suspicion.” (See People v. Campa (1984) 36 Cal.3rd 870, 879; Illinois v. Gates (1983) 462 U.S 213, 231-232 [76 L.Ed.2nd 527, 548; using the term “fair probability.”)

Subd. (e): “Deadly weapon,” as used in this section, includes the possession or concealed carrying of which is prohibited by any provision listed in P.C. § 16590. Section 16590, in turn, lists such weapons as:

(a) An air gauge knife, as prohibited by P.C. § 20310.

(b) Ammunition that contains or consists of a flechette dart, as prohibited by P.C. § 30210.

(c) A ballistic knife, as prohibited by P.C. § 21110.

(d) A belt buckle knife, as prohibited by P.C. § 20410.

(e) A bullet containing or carrying an explosive agent, as prohibited by P.C. § 30210.

(f) A camouflaging firearm container, as prohibited by P.C. § 24310.

(g) A cane gun, as prohibited by P.C. § 24410.

(h) A cane sword, as prohibited by P.C. § 20510.

(i) A concealed dirk or dagger, as prohibited by P.C. § 21310.

(j) A concealed explosive substance, other than fixed ammunition, as prohibited by P.C. § 19100.

(k) A firearm that is not immediately recognizable as a firearm, as prohibited by P.C. § 24510.

(l) A large-capacity magazine, as prohibited by P.C. § 32310.

(m) A leaded cane or an instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot, as prohibited by P.C. § 22210.

(n) A lipstick case knife, as prohibited by P.C. § 20610.

(o) Metal knuckles, as prohibited by P.C. § 21810.

(p) A metal military practice handgrenade or a metal replica handgrenade, as prohibited by P.C. § 19200.

(q) A multiburst trigger activator, as prohibited by P.C. § 32900.

(r) A nunchaku, as prohibited by P.C. § 22010.

(s) A shobi-zue, as prohibited by P.C. § 20710.

(t) A short-barreled rifle or short-barreled shotgun, as prohibited by P.C. § 33215.

(u) A shuriken, as prohibited by P.C. § 22410.

(v) An unconventional pistol, as prohibited by P.C. § 31500.

(w) An undetectable firearm, as prohibited by P.C. § 24610.

(x) A wallet gun, as prohibited by P.C. § 24710.

(y) A writing pen knife, as prohibited by P.C. § 20910.

(z) A zip gun, as prohibited by P.C. § 33600.

“Firearm” is not defined in this statute. As such, the definition as contained in P.C. § 16520 would likely apply:

(a) “(A) device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.”

Also note subd. (b)(20) which states that “As used in the following provisions, “firearm” includes the frame or receiver of the weapon: . . . Sections 8100, 8101, and 8103 of the Welfare and Institutions Code.

Subd. (f): “Danger to self” means a voluntary person who has made a serious threat of, or attempted, suicide with the use of a firearm or other deadly weapon.

Subd. (h): The prohibitions set forth in this section shall be in addition to those set forth in W&I § 8103 (see below).

Subd. (i): A person admitted and receiving treatment prior to January 1, 1992, shall be governed by W&I § 8100 as it read on January 1, 1991. As of January 1, 1991, W&I § 8100 read as follows:

No person who is:

A mental patient in any hospital or institution; or
On leave of absence from a hospital or institution;

Shall:

Own;
Have in his or her possession;
Have under his or her custody or control;
Purchase;
Receive; or
Attempts to purchase or receive;

Any firearm or any other deadly weapon.

The punishment, and the definition of “deadly weapon,” have remained unchanged.

The term “facility” is not defined. However, W&I § 8105(a), in discussing reporting requirements for purposes of implementing this section, refers to a “public and private mental hospital, sanitarium, and institution.”

There is no provision for petitioning the court for relief from the restrictions of this section, or for any other judicial intervention.

Subd. (g): A violation of subdivisions (a) or (b)(1) (below) of this section shall be a public offense, punishable by imprisonment pursuant to P.C. § 1170(h), or in a county jail for not more than one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.

W&I § 8100(b)(1): After Having Communicated A Threat to a Psychotherapist:

Any person:

Who has communicated to a licensed psychotherapist;

A serious threat of physical violence against a reasonably identifiable victim or victims;

Shall not:

Have in his or her possession;
Have under his or her custody or control;
Purchase;
Receive; or
Attempt to purchase or receive;

Any:

Firearms whatsoever; or
Other deadly weapons;

For a period of five years (6 months, for events occurring before January 1, 2014);

Commencing from the date that the psychotherapist reports the identity of the person making the threat(s) to a local law enforcement agency.

Exceptions:

The psychotherapist does not report such threat(s) to law enforcement; or

Where the Superior Court:

Upon the petition of the person;

Has found by a preponderance of the evidence;

That the person is likely to use firearms or other deadly weapons in a safe and lawful manner. (see Subd. (b)(3), below)

“Licensed Psychotherapist” includes those persons as listed in Evid. Code § 1010(a) through (e). This includes, generally:

A medical doctor who devotes a substantial portion of his or her time to the practice of psychiatry.
A licensed psychologist.
A licensed clinical social worker when engaged in applied psychology of a nonmedical nature.
A credentialed school psychologist.
A licensed marriage and family therapist.

W&I § 8105(c): A “licensed psychotherapist” is required to “immediately” report such a threat to “a local law enforcement agency,” including the identity of the person making the threat.

W&I § 8105(c): Local law enforcement is then required to “immediately” report this information to the Department of Justice on a form supplied by the Department.

Subd. (b)(2): The Department of Justice’s responsibilities are as follows:

Upon receipt of a report from a local law enforcement agency (per W&I § 8105(c), see below);

Shall notify by certified mail, return receipt requested;

The person who made the threat, and is therefore subject to the weapons prohibitions of subd. (b) as a result of such threat, of the following:

The prohibitions described in subd. (b)(1), above;
The date the prohibition commences;
That he or she may petition the court for relief, per subd. (b)(3) (below).

Subd. (b)(3)(A), (C), (D) and (E): Petition for Relief of Prohibitions:

Any person:

Who is subject to the provisions of subd. (b)(1);

May petition the Superior Court of his or her county of residence;

For an order that he or she may own, possess, have custody or control over, receive, or purchase firearms.

Note: “Other deadly weapon” is not mentioned.

The Superior Court must, upon receipt of the petition:

Set a hearing date; and

Give notice of the hearing to:

The person (petitioner);
The Department of Justice; and
The District Attorney.

May, on its own motion or the motion of the District Attorney, transfer the petition to:

The county in which the person resided at the time of the statements;
The county in which the person made the statements.

Provide information received from the Department of Justice (upon request) and/or from the county mental health director to the petitioner and the District Attorney.

Conduct the hearing in camera with only the relevant parties present, upon a motion from the petitioner establishing that confidential information is likely to be discussed during the hearing that would cause harm to the person, unless the Court finds that the public interest would be better served by conducing the hearing in public.

The District Attorney:

Shall represent the Respondent, State of California.

May make a motion to transfer the hearing to:

The county in which the person resided at the time of the statements;

The county in which the person made the statements.

Is entitled to copies of the reports, upon request.

Is entitled to a continuance of the hearing to a date of not less than 14 days after receiving notice of the hearing date.

The Department of Justice:

Must file copies of the reports (as described in W&I § 8105, below) with the Superior Court within seven days after receiving notice of the petition.

The Petitioner:

Is entitled to copies of the reports, upon request.

May file a motion to conduct the proceedings in camera:

Establishing that confidential information is likely to be discussed during the hearing that would cause harm to the person;

The Court shall conduct the hearing in camera with only the relevant parties present;

Unless the court finds that the public interest would be better served by conducting the hearing in public.

Admissible Evidence:

Declarations;
Police reports;
Criminal history information; and
Any other material and relevant evidence, subject to exclusion pursuant to E.C. § 352 (i.e., “probative value” outweighed by “prejudicial effect”).

The Court’s Findings:

If the Court finds;

By a “preponderance of the evidence;”

That the person would be likely to use firearms in a safe and lawful manner;

The Court shall order that the person may have custody or control over, receive, possess, or purchase firearms.

The Court shall submit a copy of the order to the Department of Justice.

The Department of Justice must then delete any reference to the prohibitions against firearms from the person’s state summary criminal history information.

Subd. (b)(3)(B): The People shall bear the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner.

Subd. (h): The prohibitions set forth in this section shall be in addition to those set forth in W&I § 8103.

Relevant definitions are the same as for subd. (a), above.

Subd. (g): A violation of subdivisions (a) (above) or (b)(1) of this section shall be a public offense, punishable by imprisonment pursuant to P.C. § 1170(h), or in a county jail for not more than one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.

Note: Pursuant to P.C. § 30950, no person who is under the age of 18 years, and no person who is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, which would necessarily include those who are described in W&I §§ 8100 or 8103, may register or possess an assault weapon or a “.50 BMG rifle.”

Providing Mental Patients with a Weapon:

W&I § 8101: Providing Mental Patients with a Weapon:

Any person who knowingly:

Supplies;
Sells;
Gives; or
Allows possession or control of;

Subd. (a): A deadly weapon; or

Subd. (b): A firearm;

To any person described in:

W&I § 8100 (above); or
W&I § 8103 (below);

Is guilty of a felony.

Punishment:

(a) Any person who shall knowingly supply, sell, give, or allow possession or control of a deadly weapon to any person described in Section 8100 or 8103 shall be punishable by imprisonment pursuant to P.C. § 1170(h), or in a county jail for a period of not exceeding one year, by a fine of not exceeding one thousand dollars ($1,000), or by both the fine and imprisonment.

(b) Any person who shall knowingly supply, sell, give, or allow possession or control of a firearm to any person described in Section 8100 or 8103 shall be punished by imprisonment pursuant to P.C. § 1170(h) for two, three, or four years.

(c) “Deadly weapon,” as used in this section, has the meaning prescribed by Section 8100(e); any weapon, the possession or concealed carrying of which is prohibited by any provision listed in P.C. § 16590. (See W&I § 8100(e), above.)

Note: “Firearm” is not defined in this statute. As such, the definition as contained in P.C. § 16520 would likely apply:

(a) “(A) device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.”

Confiscation of Firearms and Deadly Weapons Owned or Possessed by Mental Patients; Court Hearing to Return:

W&I § 8102(a): Confiscation of Firearms and Other Deadly Weapons Owned or Possessed by Mental Patients:

Any:

Law enforcement agency; or
Peace officer;

Shall confiscate and retain custody of any:

Firearm whatsoever; or
Other deadly weapon;

Found to be:

Owned;
In the possession of; or
Under the control of;

Any person who:

Has been detained or apprehended for examination of his or her mental condition (e.g., per W&I § 5150); or
Is a person described in W&I § 8100; or
Is a person described in W&I § 8103.

Failing to satisfy any of the three above-listed prerequisites deprives a police officer of the power to confiscate the subject’s weapons. (City of San Diego v. Kevin B. (2004) 118 Cal.App.4th 933, subject reported by his parents to be a danger, but responding police officers could not find him. He was therefore never subjected to a 72-hour mental evaluation, pursuant to W&I §§ 5151 and 5152.)

“Deadly weapon,” as used in this section, has the meaning prescribed by Section 8100(e); any weapon, the possession or concealed carrying of which is prohibited by any provision listed in P.C. § 16590. (See W&I § 8100(e), above.)

Note: “Firearm” is not defined in this statute. As such, the definition as contained in P.C. § 16520 would likely apply:

(a) “(A) device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.”

Need for a Search Warrant?

Although the statute authorizes the “confiscation” of firearms or other deadly weapons owned, possessed, or under the control of a detained or apprehended mental patient, a search warrant must be used in order to lawfully enter the house and/or to search for weapons in those cases where there are no exigent circumstances and the defendant has not given consent. (People v. Sweig (2008) 167 Cal.App.4th 1145 (petition granted; see below); declining to imply authority for the issuance of a search warrant under § 8102.)

The Sweig Court found, however, that a search warrant is not permitted under P.C. § 1524 when the defendant is detained pursuant to W&I § 5150 only. The Court suggested that the Legislature should fix the problem with an amendment to Section 1524.

As a result, the Legislature amended P.C. § 1524 effective 1/1/10 to add new subdivision (a)(10), which now lists as a legal ground for the issuance of a search warrant the following: “When the property or things to be seized include a firearm or any other deadly weapon that is owned by, or in possession of, or in the custody or control of, a person described in W&I § 8102(a).”

The petition to the California Supreme Court on People v. Sweig was granted, making this case no longer available for citation, and then dismissed review on 10/11/09, when the above amendment to P.C. § 1524 was enacted.

See also Rupf v. Yan (2000) 85 Cal.App.4th 411, at pages 421-422, where a warrantless seizure of a mental patient’s firearms from his home was not challenged, the Court perhaps inferring an “exigent circumstance” when it noted that:

“The exercise of the police power to regulate firearms is clearly related to the public health, safety and welfare. (Citations.) Respondent identifies the object of the statute as providing a means whereby authorities can confiscate firearms in an emergency situation and may keep firearms from mentally unstable persons. The legislative history of the statute expressly recognizes the urgency and importance of such an objective . . . .”

See Caniglia v. Strom (1st Cir. 2020) 953 F.3rd 112 (certiorari granted), where the federal First Circuit Court of Appeal held that (1) the “community caretaking” theory did in fact apply to residences, and (2) that entering the plaintiff’s residence to seize his firearms and ammunition while he was being evaluated for mental issues at a local mental facility was lawful as a function of the officers’ community caretaking responsibilities where plaintiff was reported to have talked about suicide, he had guns in the house, it was believed that he might be released from the hospital at any time, and the officers searched only where they were told by plaintiff’s girlfriend that the guns were located.

But see Caniglia v. Strom (May 17, 2021) __ U.S. __ [__ S.Ct. __; __ L.Ed.2nd __; 2021 U.S. LEXIS 2682], below, reversing the First Circuit on this Issue.

The California Supreme Court has since noted that when a person is taken to the hospital for a mental health evaluation, per W&I Code § 5150, under circumstances where there is probable cause to believe that there may be firearms in that person’s home, the officers have the option of obtaining a search warrant to search for and recover those firearms. A warrantless entry for the purpose of recovering such firearms is illegal. (See People v. Ovieda (2019) 7 Cal.5th 1034, 1044-1953; ruling that the “community caretaking” doctrine does not apply at all to residences, overruling a contrary split decision out of the Second District Court of Appeal.)

The Ninth Circuit, however, has applied the “community caretaking” theory, along with the conclusion that exigent circumstances applied, to the warrantless seizure of firearms from the home of a person taken into custody pursuant to Welf. & Insti. Code § 5150. “A seizure of a firearm in the possession or control of a person who has been detained because of an acute mental health episode likewise responds to an immediate threat to community safety. We believe the same factors at issue in the context of emergency exception home entries and vehicle impoundments—(1) the public safety interest; (2) the urgency of that public interest; and (3) the individual property, liberty, and privacy interests—must be balanced, based on all of the facts available to an objectively reasonable officer, when asking whether such a seizure of a firearm falls within an exception to the warrant requirement.” In balancing these factors, the Court held that the warrantless seizure of the mental patient’s firearms (plus one owned separately by his wife) was lawful. (Rodriguez v. City of San Jose (9th Cir. 2019) 930 F.3rd 1123, 1136-1141; limiting its conclusions to the specific facts of this case, noting that the appellant had failed to establish that the telephonic search warrant procedure would have sufficed to insure that a warrant could be obtained before her mentally [Welf. & Inst. Code § 5150] committed husband might return.)

The United States Supreme Court, however, specifically overruled the First Circuit (see Caniglia v. Strom (1st Cir. 2020) 953 F.3rd 112, above) and held that the First Circuit Court of Appeal inappropriately expanded the Court’s community caretaking theory—first established by the Supreme Court for purposes of justifying a warrantless search of an impounded vehicle for an unsecured firearm in Cady v. Dombrowski (1973) 413 U.S. 433 [37 L.Ed.2nd 706; 93 S.Ct. 2523]—to residences. The Court clearly and unequivocally rejected the argument that; “Cady’s acknowledgment of these ‘caretaking’ duties creates a standalone doctrine that justifies warrantless searches and seizures in the home.” (Caniglia v. Strom (May 17, 2021) __ U.S. __ [__ S.Ct. __; __ L.Ed.2nd __; 2021 U.S. LEXIS 2682].)

W&I § 8102(b), (c), (d), (e), (f) & (g): Procedures for the return or retention of any confiscated firearms taken from persons who were “detained or apprehended” (as opposed to actually being committed pursuant to W&I §§ 5150, 5151 and 5152):

Note: For persons who were committed to a mental health facility pursuant to W&I §§ 5150, 5151 and 5152, see W&I § 8103(f) for the procedures for the return of firearms. (Pg. 21)

Subd. (b): After compliance with subd. (a), above:

The peace officer or law enforcement agency;

Shall notify the person so detained or apprehended;

Of the procedure for the return of any confiscated firearms or other deadly weapons.

Upon release of the person from a facility:

The professional person in charge of the facility, or his or her designee;

Shall notify the person detained or apprehended;

Of the procedure for the return of any confiscated firearms or other deadly weapons.

Upon release of the person from the facility:

The health facility personnel;

Shall notify the confiscating law enforcement agency and make a notation to the effect;

That the facility provided the required notice to the person detained or apprehended regarding the procedure to obtain the return of any confiscated firearm.

Note: “Other deadly weapon” is not mentioned; possibly a legislative typographical error in this context.

For purposes of this subdivision, the procedure for the return, sale, or transfer of confiscated firearms includes the procedures described in this section and the procedures described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code. (See Part 2 of this Outline, below.)

In lieu of destroying a firearm that has been confiscated pursuant to this section that is a nuisance, unclaimed, abandoned, or otherwise subject to destruction, a law enforcement agency may retain or transfer the firearm as provided in Section 34005 of the Penal Code.

Subd. (c): The confiscating law enforcement agency:

Upon release of the person;

Shall have 30 days to initiate a petition in the Superior Court:

For a hearing to determine whether the return of a firearm or other deadly weapon would be likely to result in endangering the person or others; and

To send notice advising the person of his or her right to a hearing on the issue; or

May make an ex parte application stating “good cause” for an order extending the 30-day time limit to file a petition;

To a maximum of 60 days from the date of the person’s release from the health facility.

(See Rodriguez v. City of San Jose (9th Cir. 2019) 930 F.3rd 1123, 1128.)

Subd. (d): Upon failure to file a petition within the required 30 days, or within the extended period of time as authorized by the Court, the law enforcement agency shall make the weapon available for return upon compliance with all applicable requirements, including the requirements specified in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code. (See Part 2 of this Outline, below.)

Subd. (e): The law enforcement agency shall, upon providing the person with notice of a hearing, inform the person that:

He or she has 30 days to respond to the Court Clerk to confirm his or her desire for a hearing; and

That failure to respond will result in a default order forfeiting the confiscated firearm or weapon.

Notice shall be made to the person’s last known address, which is the address provided to the law enforcement officer by the person at the time of the person’s detention or apprehension.

Subd. (f): The Court Clerk shall:

Set the hearing for no later than 30 days from receipt of the request for a hearing made by the person; and

Notify the person and the District Attorney of the date, time, and place of the hearing.

Subd. (g): The law enforcement agency may file a petition for order of default upon failure of the person to respond within 30 days of the notice.

Burden of Proof:

Although this statute does not specifically designate the degree of proof required, nor who carries the burden of proof, in order to remain consistent with other related statutes (E.g.: See W&I § 8100(b)(3)(B) and W&I § 8103(f), (g)), it is apparent that the District Attorney, representing the petitioning law enforcement agency and the State of California, has the burden of proving by a “preponderance of the evidence” that returning a confiscated firearm or other deadly weapon to the person would likely result in endangering the person or others.

That the government has the burden of proof is probably required in order for the provisions to be constitutional. (see People v. One Ruger .22-Caliber Pistol (2000) 84 Cal.App.4th 310, 314; W&I § 8102 held to be constitutional.)

See also Bryte v. City of La Mesa (1989) 207 Cal.App.3rd 687, where it was held that, pursuant to a prior version of W&I § 8102, requiring the patient to initiate the proceedings, pay a filing fee, and shoulder the burden of proof, made the section unconstitutional.

Use of the person’s psychiatrist to testify that the person is a danger and should not be in possession of any firearms does not violate the psychotherapist-patient privilege of the Evidence Code, coming within the exception as provided under E.C. § 1016. (People v. One Ruger .22-Caliber Pistol, supra, at pp. 314-315.)

The constitutionality of W&I § 8102 has also been upheld against “substantive due process” and “vagueness” challenges. (Rupf v. Yan (2000) 85 Cal.App.4th 411.)

“Section 8102 directly safeguards public health and safety by allowing law enforcement officers to confiscate and firearm in the possession or control of a person who is appropriately detained or apprehended for a mental examination. Keeping a firearm away from a mentally unstable person is a reasonable exercise of the police power. It is not unreasonable to conclude there is a significant risk that a mentally unstable gun owner will harm himself or other with the weapon.” (Id., at p. 423; See also City of San Diego v. Boggess (2013) 216 Cal.App.4th 1494, 1500.)

Substantial evidence supported a court’s finding that the 72-year old respondent’s firearms should remain in police custody and be destroyed with evidence that she was under significant stress regarding her health and financial situation and that she had threatened to shoot herself. Admitted for emergency psychiatric treatment on an involuntary basis, she was diagnosed with “depressive disorder,” with emerging stresses, limited coping skills, fairly distant support system, and impaired insight and judgment. (City of San Diego v. Boggess, supra, at pp. 1501-1502.)

It was also held that the confiscation provisions of W&I § 8102 did not violate the Second and Fourteenth Amendment right to bear arms. (Id., at pp. 1503-1506.)

Plaintiff sued the City of San Jose in federal court, seeking the return of firearms seized when her husband was taken into custody for a mental health evaluation pursuant to W&I Code § 5150, claiming that the City’s refusal to return the firearms was a violation of her Second Amendment rights. Prior to her seeking the return of the firearms, the City had petitioned in California Superior Court to retain the firearms under W&I Code § 8102(c) on the ground that the firearms would endanger plaintiff’s husband or another member of the public. Plaintiff had objected at the hearings on that petition, arguing that the confiscation and retention of the firearms, in which she had ownership interests, violated her Second Amendment rights. The court granted the City’s petition over petitioner’s objection; a decision that was upheld on appeal. Plaintiff, after reregistering the firearms under her own name alone, and obtaining gun release clearances from the Department of Justice, then filed this federal lawsuit seeking the return of the firearms to her custody. The federal district court granted the City’s summary judgement motion. The Ninth Circuit affirmed, ruling that the issue had already been decided by the California state courts and that under the doctrine of “Issue Preclusion,” the federal courts would not re-decide the issue. (Rodriguez v. City of San Jose (9th Cir. 2019) 930 F.3rd 1123, 1130-1136.)

Possession of Weapons by Committed Mental Patients:

W&I § 8103(a): Persons Adjudicated to be a Danger to Others or as a Mentally Disordered Sex Offender:

Subd. (a)(1): Any person;

Who, after October 1, 1955, has been adjudicated by a court of any state:

To be a danger to others as a result of a mental disorder or mental illness; or

To be a mentally disordered sex offender (see P.C. §§ 2960 et seq.);

Shall not:

Purchase;
Receive;
Attempt to purchase;
Attempt to receive; or
Have in his or her possession, custody or control;

Any:

Firearm; or
Other deadly weapon;

Unless & Until:

The person has been issued a certificate by the court of adjudication upon release from treatment or at a later date;

Stating that the person may possess a firearm or other deadly weapon without endangering others; and

The person has not, subsequent to the issuance of the certificate, again been adjudicated by a court to be a danger to others as a result of a mental disorder or mental illness.

Subd. (a)(2): The Court shall immediately notify the Department of Justice of:

A court order finding the individual to be a person described in subd. (a)(1); and

A certificate issued as described in subd. (a)(1).

W&I § 8103(b): Persons Found to be Not Guilt by Reason of Insanity in Serious Cases:

Subd. (b)(1): Any person;

Who has been found “not guilty by reason of insanity,” pursuant to P.C. § 1026, or the law of any other state or the United States;

Of any of the below listed offenses;

Shall not:

Purchase;
Receive;
Attempt to purchase;
Attempt to receive; or
Have in his or her possession, custody or control;

Any:

Firearm; or
Other deadly weapon.

Subd. (b)(1): Criminal Offenses to which this section applies:

Murder (P.C. § 187);
Mayhem (P.C. §§ 203, 205);
Kidnapping (P.C. §§ 207, 209, 209.5) during which the victim suffers intentionally inflicted great bodily injury;
Robbery (P.C. § 211) during which the victim suffers great bodily injury;
Carjacking (P.C. § 215) during which the victim suffers great bodily injury;
Assault with intent to commit murder (former P.C. § 217);
Assault with intent to commit mayhem, rape, sodomy, oral copulation, rape in concert, felony child molest, or rape by foreign object (P.C. § 220) during which the victim suffers great bodily injury;
Rape (P.C. § 261) by force (subd. (a)(2)) or by intoxicating or anesthetic substance (subd. (a)(3));
Spousal rape (P.C. § 262) by force (subd. (a)(1)) or by intoxicating or anesthetic substance (subd. (a)(2));
Arson (P.C. § 451) involving a trailer coach (per V.C. § 635) or a dwelling house;
Unlawfully causing a fire (P.C. § 452) involving a trailer coach (per V.C. § 635) or a dwelling house;
First degree burglary (P.C. §§ 459, 460(a));
Possession of a destructive device (P.C. § 12303);
Carrying or placing explosives on transportation vehicles (P.C. § 12303.1);
Possession of a destructive device in public places (P.C. § 12303.2);
Explosion of a destructive device (P.C. § 12303.3);
Explosion of a destructive device with intent to commit murder (P.C. § 12308);
Explosion of a destructive device which causes bodily injury (P.C. § 12309);
Explosion of a destructive device which causes death, mayhem or great bodily injury (P.C. § 12310);
Any felony involving death or great bodily injury;
Any act which poses a serious threat of bodily harm to another person; and
A violation of the law of any other state or the United States that includes all the elements of any of the above felonies as defined under California law.

Subd. (b)(2): The Court shall immediately notify the Department of Justice of the court order finding the person to be a person described in subd. (b)(1).

Note: By its omission in the statute, it is apparent that recovering one’s sanity does not qualify the person to be relieved of this prohibition. (Compare with subds. (c)(1) and (2), below, for “not guilty by reason of insanity” findings in other cases.)

W&I § 8103(c): Persons Found to be Not Guilty by Reason of Insanity in Other Cases:

Subd. (c)(1): Any person;

Who has been found “not guilty by reason of insanity” pursuant to P.C. § 1026, or the law of any other state or the United States;

Of any crimes other than those listed in subd. (b)(1);

Shall not:

Purchase;
Receive;
Attempt to purchase;
Attempt to receive; or
Have in his or her possession, custody or control;

Any:

Firearm; or
Other deadly weapon;

Unless the Court of commitment has found the person to have recovered his or her sanity pursuant to P.C. § 1026.2 or the law of any other state or the United States.

Subd. (c)(2): The Court shall immediately notify the Department of Justice of:

A court order finding the individual to be a person described in subd. (c)(1); and

A court order finding that the person has recovered his or her sanity.

W&I § 8103(d): Persons Found Mentally Incompetent to Stand Trial:

Subd. (d)(1): Any person;

Who has been found by a Court to be “mentally incompetent to stand trial,” pursuant to P.C. §§ 1370 or 1370.1, or the law of any other state or the United States;

Shall not:

Purchase;
Receive;
Attempt to purchase;
Attempt to receive; or
Have in his or her possession, custody or control;

Any:

Firearm; or
Other deadly weapon;

Unless there has been a finding with respect to the person of restoration to competence to stand trial by the committing Court, pursuant to P.C. § 1372 or the law of any other state or the United States.

Subd. (d)(2): The Court shall immediately notify the Department of Justice of:

A court order finding the person to be mentally incompetent as described in subd. (d)(1); and

A court order finding that the person has recovered his or her competence.

W&I § 8103(e): Persons Placed under Conservatorship (see pg. 43):

Subd. (e)(1): Any person;

Who has been placed under conservatorship by a Court, pursuant to W&I § 5350, or the law of any other state or the United States;

Because the person is “gravely disabled” as a result of a mental disorder or impairment by chronic alcoholism;

Shall not, while under such conservatorship:

Purchase;
Receive;
Attempt to purchase;
Attempt to receive; or
Have in his or her possession, custody or control;

Any:

Firearm; or
Other deadly weapon;

If, at the time the conservatorship was ordered or thereafter;

The Court which imposed the conservatorship;
Found that possession of a firearm or any other deadly weapon by the person;
Would present a danger to the safety of the person or to others (see W&I § 5357(f), below).

The Court shall notify the person of this prohibition at the time the person is placed under conservatorship.

Subd. (e)(2): The Court shall immediately notify the Department of Justice of a court order:

Placing the person under conservatorship; and

Prohibiting the firearm or any other deadly weapon possession by the person as described in subd. (e)(1).

Such notice is to include the date the conservatorship was imposed and the date the conservatorship is to be terminated.

The termination of the conservatorship if the conservatorship is subsequently terminated prior to the date listed in the earlier notice; or

A court finding that possession of the firearm or any other deadly weapon by the person no longer presents a danger to the safety of the person or others.

Subd. (e)(3): Such information provided to the Department of Justice shall be:

Kept confidential, separate and apart from other records;

Used only to determine eligibility to purchase or possess firearms or other deadly weapons;

Destroyed upon receipt by the Department of Justice of notice of the termination of conservatorship as to that person, as provided in subd. (e)(2).

Violation of the confidentiality requirements of this subdivision is a misdemeanor (6 months, $1,000 fine; P.C. § 19).

W&I § 5008(h)(2): A “Gravely Disabled” person is defined, for purposes of this section, as a condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.

W&I § 8103(f): Persons Taken Into Custody as a Danger to Themselves or Others:

Subd. (f)(1)(A): A person;

Who has been:

Subd. (f)(1)(A)(i): Taken into custody as provided in W&I § 5150 because that person is a danger to himself, herself, or to others; and

Subd. (f)(1)(A)(ii): Assessed within the meaning of W&I § 5151; and

Subd. (f)(1)(A)(iii): Admitted to a designated facility within the meaning of W&I §§ 5151 and 5152 because that person is a danger to himself, herself, or others;

Shall not:

Own;
Possess;
Control;
Receive;
Purchase; or
Attempt any of the above;

Any firearm for a period of five years after the person is released from the facility.

Note: This subdivision does not include “other deadly weapons.”

Exception: When ordered by the Court, following the person’s petition and a Court hearing or the District Attorney’s failure to respond to the petition, pursuant to subds. (f)(5)-(f)(8), below.

Substantial evidence supported the trial court’s order denying defendant’s request for relief from the firearm prohibition under W&I § 8103(f)(1). The trial court could reasonably deduce the circumstances leading to defendant’s detention under W&I § 5150 might occur again and possession or control of weapons in such a circumstance would pose a risk of danger to defendant or to others. W&I § 8103(f)(6) employs a constitutional standard of proof and is not unconstitutionally vague. (People v. Mary H. (2016) 5 Cal.App.5th 246.)

See also Rodriguez v. City of San Jose (9th Cir. 2019) 930 F.3rd 1123, 1128, fn. 3.)

Subd. (f)(1)(B): A person;

Who has been taken into custody, assessed, and admitted as specified in subparagraph (A); and

Who was previously taken into custody, assessed, and admitted as specified in subparagraph (A) one or more times within a period of one year preceding the most recent admittance;

Shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase, any firearm for the remainder of his or her life.

Subd. (f)(1)(C): A person described in this paragraph, however;

May own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm;

If the superior court has, pursuant to paragraph (5), found that the people of the State of California have not met their burden pursuant to paragraph (6).

Subd. (f)(2)(A)(i): For each person subject to this subdivision, the facility shall, within 24 hours of the time of admission;

Submit a report to the Department of Justice;

On a form prescribed by the Department of Justice;

Such report containing, but not limited to:

The identity of the person; and
The legal grounds upon which the person was admitted to the facility.

Subd. (f)(2)(A)(ii): Such report is confidential except:

For purposes of the court proceedings described in this subdivision; and
For determining the eligibility of the person to own, possess, control, receive, or purchase a firearm.

Note: This subdivision does not include “other deadly weapons.”

Subd. (f)(2)(B): Facilities shall submit reports pursuant to this paragraph exclusively by electronic means, in a manner prescribed by the Department of Justice.

Subd. (f)(3): Prior to, or concurrent with, the discharge, the facility shall:

Inform a person subject to this subdivision, that he or she:

Is prohibited from:

Owning;
Possessing;
Controlling;
Receiving; or
Purchasing;

Any firearm for a period of five years, or for life, whichever applies pursuant to the above; and

May request a hearing from a court (see below) for an order permitting the person to own, possess, control, receive or purchase a firearm and shall:

Provide the person with a copy of the most recent “Patient Notification of Firearm Prohibition and Right to Hearing Form” prescribed by the Department of Justice.

The Department of Justice shall;

Update this form in accordance with the requirements of this section; and

Distribute the updated form to facilities by January 1, 2020.

The form shall include;

Information regarding how the person was referred to the facility.

An authorization for the release of the person’s mental health records, upon request, to the appropriate court, solely for use in the hearing conducted pursuant to paragraph (f)(5).

A request for the records may be made by mail to the custodian of records at the facility, and shall not require personal service.

The facility shall not submit the form on behalf of the person subject to this subdivision.

Note: This subdivision does not include “other deadly weapons.”

Subd. (f)(4): The form for requesting a Court hearing:

The Department of Justice shall:

Provide a form for requesting a hearing upon request to anyone described in subd. (f)(1); and

Provide the forms to the Superior Court of each county.

A person described in subd. (f)(1):

May make a request for a hearing at any time during the five-year period or period of the lifetime prohibition;

On the form prescribed by the Department of Justice, or a document that includes equivalent language.

Subd. (f)(5): The Hearing:

Any person described in subdivision (f)(1) who has requested a hearing from the Superior Court of his or her county of residence for an order that he or she may own, possess, control, receive, or purchase a firearm shall be given a hearing.

Note: This subdivision does not include “other deadly weapons.”

The Clerk of the Court shall:

Set a hearing date;

Notify the person, the Department of Justice, and the District Attorney of the hearing date;

The People of the State of California shall be the plaintiff in the proceeding and shall be represented by the District Attorney.

The Superior Court may, either on its own motion or by a motion made by the District Attorney:

Transfer the hearing to the county where the person:

Resided at the time of his or her detention.
Was detained; or
Was evaluated or treated.

The Department of Justice, within seven days after the request for a hearing, shall file copies of the reports described in this section with the superior court. The reports shall be disclosed upon request to the person and to the District Attorney.

The Superior Court shall set the hearing within 60 days of receipt of the request for a hearing.

Upon showing good cause, the District Attorney shall be entitled to a continuance not to exceed 30 days after the District Attorney was notified of the hearing date by the clerk of the court.

If additional continuances are granted, the total length of time for continuances shall not exceed 60 days.

The District Attorney may notify the county behavioral health director of the hearing

The County Behavioral Health Director shall;

Provide information about the detention of the person that may be relevant to the court; and

File that information with the superior court. That information shall be disclosed to the person and to the District Attorney.

The Superior Court, upon motion of the person subject to paragraph (f)(1) establishing that “confidential information” is likely to be discussed during the hearing that would cause harm to the person, shall conduct the hearing in camera with only the relevant parties present, unless the court finds that the public interest would be better served by conducting the hearing in public.

Notwithstanding any other law, declarations, police reports, including criminal history information, and any other material and relevant evidence that is not excluded under Evid. Code § 352 shall be admissible at the hearing under this section.

(See People v. Jason K. (2010) 188 Cal.App.4th 1545, 1553.)

Subd. (f)(6): The People shall bear the burden of showing by a “preponderance of the evidence” that the person would not be likely to use firearms in a safe and lawful manner.

The “preponderance of the evidence” standard of proof is constitutional. (People v. Jason K. (2010) 188 Cal.App.4th 1545; People v. Mary H. (2016) 5 Cal.App.5th 246, 257-258.)

“‘Burden of proof’ means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (People v. Mary H., supra, at pp. 255-256.)

“A preponderance of the evidence standard … ‘simply requires the trier of fact “to believe that the existence of a fact is more probable than its nonexistence . . . .” (Ibid; quoting Lillian F. v. Superior Court (1984) 160 Cal.App.3rd 314, 320.)

It has also been held that this paragraph is not unconstitutionally vague; noting that that persons of common intelligence would not have to guess at the meanings of words and phrases such as “not likely,” “use,” “firearms,” “safe,” or “lawful,” each being words “of common usage.” (People v. Mary H., supra, at pp. 260-261.)

Note: This subdivision does not include “other deadly weapons.”

Subd. (f)(7): If the District Attorney fails to meet their burden (above),

The Superior Court shall order:

That the person shall not be subject to the five-year prohibition or lifetime prohibition, as appropriate, in this section on ownership, control, receipt, possession or purchase of firearms; and

That the person shall comply with the procedure described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code for the return of any firearms.

Note: P.C. §§ 33850 et seq. provides the procedures for an application for the return of firearms from law enforcement’s custody.

Submit a copy of the order to the Department of Justice.

The Department of Justice shall, upon receipt of such order, delete any reference to the prohibition against firearms from the person’s state mental health firearms prohibition system information.

Note: This subdivision does not include “other deadly weapons.”

Subd. (f)(8): If the District Attorney declines or fails to go forward in the hearing:

The Superior Court shall:

Order that the person shall not be subject to the five-year prohibition or lifetime prohibition on ownership, control, receipt, possession or purchase of firearms; and

Submit a copy of the order to the Department of Justice.

The Department of Justice shall;

Delete any reference to the prohibition against firearms within 15 days from the person’s state mental health firearms prohibition system information; and

That person shall comply with the procedure described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code for the return of any firearms.

Note: P.C. §§ 33850 et seq. provides the procedures for an application for the return of firearms from law enforcement’s custody.

Note: This subdivision does not include “other deadly weapons.”

Subd. (f)(9): This subdivision does not prohibit the use of reports filed pursuant to this section to determine the eligibility of persons to own, possess, control, receive, or purchase a firearm if the person is the subject of a criminal investigation, a part of such criminal investigation involving the ownership, possession, control, receipt, or purchase of a firearm.

Note: This subdivision does not include “other deadly weapons.”

Subd. (f)(10): The Superior Court:

If it finds that;

The people have met their burden to show by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner, and

The person is subject to a lifetime firearm prohibition because the person had been admitted as specified in subparagraph (A) of paragraph (1) more than once within the previous one-year period

Shall inform the person of his or her right to file a subsequent petition no sooner than five years from the date of the hearing.

Subd. (f)(11): Persons subject to a lifetime firearm prohibition:

Is entitled to bring subsequent petitions pursuant to this subdivision. However, such a person:

Shall not be entitled to file a subsequent petition, and shall not be entitled to a subsequent hearing, until five years have passed since the determination on the person’s last petition.

A hearing on subsequent petitions shall be conducted as described in this subdivision:

The burden of proof shall be on the petitioner to establish by a preponderance of the evidence that the petitioner can use a firearm in a safe and lawful manner.

Subsequent petitions shall be filed in the same court of jurisdiction as the initial petition regarding the lifetime firearm prohibition.

Subd. (g)(1)(i): A person who has been certified for intensive treatment under Wel. & Insti. Code §§ 5250, 5260, or 5270.15:

Shall not:

Own,
Possess,
Control,
Receive, or
Purchase, or
Attempt to do any of the above;

For a period of five years.

Subd. (g)(1)(ii): Any person who meets the criteria contained in subdivision (e) or (f) who is released from intensive treatment shall nevertheless, if applicable, remain subject to the prohibition contained in subdivision (e) or (f).

Subd. (g)(2)(A): For each person certified for intensive treatment under paragraph (1), the facility shall:

Within 24 hours of the certification, submit a report to the Department of Justice, on a form prescribed by the department, containing information regarding the person, including, but not limited to;

The legal identity of the person; and

The legal grounds upon which the person was certified.

A report submitted pursuant to this paragraph shall only be used for the purposes specified in paragraph (2) of subdivision (f).

Subd. (g)(2)(B): Facilities shall submit reports pursuant to this paragraph exclusively by electronic means, in a manner prescribed by the Department of Justice.

Subd. (g)(3): Prior to, or concurrent with, the discharge of each person certified for intensive treatment under paragraph (1), the facility shall inform the person of that information specified in paragraph (3) of subdivision (f).

Subd. (g)(4): Petition to Own, etc., Firearms:

A person who is subject to paragraph (1) may petition the superior court of his or her county of residence for an order that he or she may own, possess, control, receive, or purchase firearms.

At the time the petition is filed, the clerk of the court shall:

Set a hearing date within 60 days of receipt of the petition, and

Notify the person, the Department of Justice, and the district attorney.

The people of the State of California shall be the respondent in the proceeding and shall be represented by the District Attorney.

The Superior Court, upon a motion by the District Attorney, or upon its own motion, may transfer the petition to:

The county in which the person resided at the time of his or her detention;

The county in which the person was detained, or

The county in which the person was evaluated or treated.

The Department of Justice shall within seven days after receiving notice of the petition, file copies of the reports described in this section with the superior court.

The reports shall be disclosed upon request to the person and to the District Attorney.

The District Attorney shall be entitled to a continuance of the hearing to a date of not less than 30 days after the District Attorney was notified of the hearing date by the clerk of the court.

If additional continuances are granted, the total length of time for continuances shall not exceed 60 days.

The District Attorney may notify the county Behavioral Health Director of the petition

The County Behavioral Health director shall:

Provide information about the detention of the person that may be relevant to the court, and

File that information with the superior court.

That information shall also be disclosed to the person and to the District Attorney.

The Superior court, upon motion of the person subject to paragraph (1) establishing that confidential information is likely to be discussed during the hearing that would cause harm to the person, shall conduct the hearing in camera with only the relevant parties present, unless the court finds that the public interest would be better served by conducting the hearing in public.

(See People v. Jason K. (2010) 188 Cal.App.4th 1545, 1553.)

If the Superior Court finds by a preponderance of the evidence that the person would be likely to use firearms in a safe and lawful manner, the court may order that the person may own, control, receive, possess, or purchase firearms, and that person shall comply with the procedure described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code for the return of any firearms.

Note: P.C. §§ 33850 et seq. provides the procedures for an application for the return of firearms from law enforcement’s custody.

A copy of the order shall be submitted to the Department of Justice.

Upon receipt of the order, the Department of Justice shall delete any reference to the prohibition against firearms from the person’s state mental health firearms prohibition system information.

Subd. (h): Facilities’ Reporting Requirements:

For all persons identified in subds. (f) and (g), facilities shall report to the Department of Justice as specified in those subdivisions, except facilities shall not report persons under subd. (g) if the same persons previously have been reported under subd. (f).

All facilities shall report to the Department of Justice upon the discharge of persons from whom reports have been submitted pursuant to subds. (f) or (g).

However, a report shall not be filed for persons who are discharged within 31 days after the date of admission.

The Court’s decision after the hearing is appealable to the state District Court of Appeal. (People v. Mary H. (2016) 5 Cal.App.5th 246, 255-263.)

The Superior Court’s findings at the hearing that petitioner’s firearms should not be returned will be upheld on appeal so long as the court’s findings are supported by substantial evidence. (People v. Keil (2008) 161 Cal.App.4th 34.)

See Keil for a description of the step-by-step procedures where a person is accepted for a 72-hour evaluation, per W&I Code § 5150, his firearms are seized per W&I Code § 8102, and he files a petition for the return of his weapons per W&I Code § 8103(f).

Subd. (i): Punishment:

Every person who owns or possesses or has under his or her custody or control, or purchases or receives, or attempts to purchase or receive, any firearm or any other deadly weapon in violation of this section shall be punished by imprisonment pursuant to P.C. § 1170(h) (16 months, 2 or 3 years) or in a county jail for not more than one year.

Subd. (j): “Deadly weapon,” as used in this section, has the meaning prescribed by Section 8100; i.e., any weapon, the possession or concealed carrying of which is prohibited by any provision listed in P.C. § 16590. (See W&I § 8100(e), above.)

Subd. (k): 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 of Justice.

Subd. (l) This section shall become operative on January 1, 2020.

W&I § 8103(g): Persons Certified for Intensive Treatment:

Subd. (g)(1): Any person:

Who has been certified for intensive treatment under W&I §§ 5250 (14 days), 5260 (14 more days) or 5270.15 (30 days) (see below);

Shall not:

Own;
Possess;
Control;
Receive;
Purchase; or
Attempt any of the above;

Any firearm for a period of five years.

Note: This subdivision does not include “other deadly weapons.”

Being released from intensive treatment does not relieve one from the restrictions of W&I § 8103(e) or (f), if the criteria of these two subdivisions otherwise apply.

Subd. (g)(2): The facility shall immediately, for each person certified for intensive treatment:

Submit a report to the Department of Justice;

On a form prescribed by the Department of Justice;

Containing information regarding the person, including, but not limited to:

The legal identity of the person; and
The legal grounds upon which the person was certified.

Such report shall only be used for the purposes specified in subd. (f)(2), to wit:

For purposes of the court proceedings described in this subdivision; and

For determining the eligibility of the person to own, possess, control, receive, or purchase a firearm.

Subd. (h): If such person has already been reported to the Department of Justice under the previsions of subd. (f), another report shall not be made.

Subd. (g)(3): Prior to, or concurrent with, the discharge of each person certified for intensive treatment, the facility shall inform the person of the information specified in subd. (f)(3), to wit:

That he or she:

Is prohibited from:

Owning;
Possessing;
Controlling;
Receiving; or
Purchasing;

Any firearm for a period of five years; and

May request a hearing from a court (see below) for an order permitting the person to own, possess, control, receive or purchase a firearm.

Note: This subdivision does not include “other deadly weapons.”

Subd. (g)(4): The Hearing:

Any person who is subject to subd. (g)(1) may petition the Superior Court of his or her county of residence;

For an order that he or she may:

Own;
Possess;
Control;
Receive; or
Purchase;

Firearms.

Note: This subdivision does not include “other deadly weapons.”

The Superior Court shall:

At the time the petition is filed, set a hearing date;

Notify the person, the Department of Justice, and the District Attorney;

May, on its own motion, transfer the hearing to the county where the person:

Resided at the time of his or her detention.
Was detained; or
Was evaluated or treated.

Provide information received from the Department of Justice (upon request) and/or the county mental health director to the person and the District Attorney.

Conduct the hearing in camera with only the relevant parties present upon a motion from the person establishing that confidential information is likely to be discussed during the hearing that would cause harm to the person, unless the Court finds that the public interest would be better served by conducing the hearing in public.

The District Attorney:

Shall represent the People of the State of California;

Shall be the Respondent in the proceeding;

Note: Specifying the District Attorney as the “Respondent” indicates an intent to place the burden of proof upon the petitioner/patient.

May make a motion to transfer the hearing to the county where the person:

Resided at the time of his or her detention.
Was detained; or
Was evaluated or treated.

Is entitled to a continuance not less than 14 days after being notified of the hearing date by the Court.

May notify the county mental health director of the petition, who shall:

Provide information about the detention of the person that may be relevant to the Court; and

File that information with the Superior Court.

Such information shall be disclosed to the person and the District Attorney.

The Department of Justice:

Shall, within seven days after receiving notice of the petition, file copies of the reports described below with the Superior Court.

Said reports, upon request, shall be disclosed to the District Attorney and the person requesting the hearing.

The Person described in subd. (g)(1):

Is entitled to copies of the reports, upon request;

May make a motion establishing that confidential information is likely to be discussed during the hearing that would cause harm to the person, requiring the Court to hold the hearing in camera unless the Court finds that the public interest would be better served by conducing the hearing in public.

Note: The petitioner/mental patient in such hearing is not constitutionally entitled to the assistance of appointed counsel at such a hearing. (People v. Mary H. (2016) 5 Cal.App.5th 246, 263-264.)

Admissible Evidence:

Declarations;
Police reports;
Criminal history information; and
Any other material and relevant evidence, subject to exclusion pursuant to E.C. § 352. (i.e., “probative value” outweighed by “prejudicial effect”)

Court Findings:

If the Court finds by a “preponderance of the evidence” that the person would be likely to use firearms in a safe and lawful manner;

The Court may order that the person may own, control, receive, possess, or purchase firearms.

A copy of the order shall be submitted to the Department of Justice.

Upon receipt of the order, the Department of Justice shall delete any reference to the prohibition against firearms from the person’s state mental health firearms prohibition system information.

Subd. (h): Facilities’ Reporting Requirements:

For all persons identified in subds. (f) and (g), facilities shall report to the Department of Justice as specified in those subdivisions, except facilities shall not reports persons under subd. (g) if the same persons previously have been reported under subd. (f).

All facilities shall report to the Department of Justice upon the discharge of persons from whom reports have been submitted pursuant to subds. (f) or (g).

However, a report shall not be filed for persons who are discharged within 31 days after the date of admission.

Subd. (i): Penalty for:

Owning;
Possessing;
Having under his or her custody or control;
Purchasing;
Receiving; or
Attempting to do any of the above;

Punishable by imprisonment pursuant to P.C. § 1170(h), or in a county jail for not more than one year.

Subd. (j): “Deadly weapon,” as used in this section, has the meaning prescribed by Section 8100(e); any weapon, the possession or concealed carrying of which is prohibited by any provision listed in P.C. § 16590. (See W&I § 8100(e), above.)

“Firearm” is not defined in this statute. As such, the definition as contained in P.C. § 16520 would likely apply:

(a) “(A) device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.”

Maintenance, Access to, and Use of Records:

W&I § 8104: Maintenance of, and Access to, Records:

The State Department of Mental Health shall maintain and make available, upon request, to the Department of Justice those records that are necessary to identify persons who come within W&I §§ 8100 or 8103

The Department of Justice shall make such requests for records only with respect to its duties with regard to applications for:

Permits for; or
To carry; or
The possession, purchase, or transfer;

Of the following:

Explosives (per H&S § 12000);
BB Device (per P.C. § 16250);
Firearms capable of being concealed on the person (per P.C. § 16530);
Handguns (per P.C. § 16640);
Firearms and related devices (per P.C. § 16520(a) to (d), inclusive;
Loaded firearms (per P.C. § 16840(a);
Machineguns (per P.C. § 16880);
Short-barreled shoguns or short-barreled rifles (per P.C. §§ 17170 & 17180);
Assault weapons (per P.C. § 30510); or
Destructive devices (per P.C. § 16460);

Or to determine the eligibility of a person who is subject to a criminal investigation, a part of which involves the acquisition, carrying, or possession of a firearm by that person, to:

Acquire;
Carry; or
Possess;

The following:

A firearm;
An explosive; or
A destructive device.

Such records shall not be furnished or made available to any person unless the Department of Justice determines that disclosure of any information in the records is necessary to carry out its duties with respect to applications for permits:

For;
To carry;
The possession of;
The purchase of;
The transfer of;

The following:

Explosives (per H&S § 12000);
BB Device (per P.C. § 16250);
Firearms capable of being concealed on the person (per P.C. § 16530);
Handguns (per P.C. § 16640);
Firearms and related devices (per P.C. § 16520(a) to (d), inclusive;
Loaded firearms (per P.C. § 16840(a)
Machineguns (per P.C. § 16880);
Short-barreled shoguns or short-barreled rifles (per P.C. §§ 17170 & 17180);
Assault weapons (per P.C. § 30510); or
Destructive devices (per P.C. § 16460);

Or to determine the eligibility of a person who is subject to a criminal investigation, a part of which involves the acquisition, carrying, or possession of a firearm by that person, to:

Acquire;
Carry; or
Possess;

The following:

A firearm;
An explosive; or
A destructive device.

W&I § 8105: Submission of Patient’s Mental Health Records to Justice Department:

Subd. (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 W&I § 8100(a);

In order to carry out its duties in relation to firearms, destructive devices and explosives.

Subd. (b): A public or private mental hospital, sanitarium, and institution shall submit to the Department of Justice that information requested.

Subd. (c): A licensed psychotherapist shall immediately report to a local law enforcement agency the identity of a person subject to W&I § 8100(b) (above).

Upon receipt of such report, the law enforcement agency shall immediately notify the Department of Justice, on a form provided of the person who is subject to W&I § 8100(b).

Subd. (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 pursuant to this section shall be used only for the following purposes:

Subd. (d)(1): By the Department of Justice to determine eligibility of a person to acquire, carry, or possess firearms, destructive devices, or explosives.

Subd. (d)(2): For the purposes of court proceedings described in W&I § 8100(b) to determine the eligibility of the person who is bringing a petition pursuant to W&I § 8100(b)(3).

Subd. (d)(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, if a part of the criminal investigation involves the acquisition, carrying, or possession of firearms, explosives, or destructive devices by that person.

Subd. (e): Reports shall not be required or requested under this section where the same person has been previously reported pursuant to W&I §§ 8103 or 8104.

W&I § 8108: Civil Immunity:

The following institutions and individuals shall be immune from civil liability for making any report required or authorized by any of the above listed provisions:

Mental hospitals;
Health facilities;
Other institutions;
Treating health professionals;
Psychotherapists.

Taking Mentally Disabled Persons into Custody:

W&I § 5150: Taking into Custody Dangerous or Gravely Disabled Persons Due to Mental Disorder:

Any of the below listed persons may, upon “probable cause;”

Take, or cause to be taken, a person, as described below, into custody; and

Place such person into a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.

Persons authorized to take another into custody:

A peace officer;
A member of the attending staff, as defined by regulation, of an evaluation facility designated by the county;
Designated members of a mobile crisis team, per W&I § 5651.7; or
Other professional person designated by the county.

Persons subject to being taken into custody: Any person who, as a result of a mental disorder;

Is a danger to others;
Is a danger to himself or herself; or
Is gravely disabled.

W&I Code § 5150(b): When determining if a person should be taken into custody pursuant to subd. (a) (i.e., a danger to self, others, or gravely disabled), the individual making that determination shall apply the provisions of W&I Code § 5150.05 (below) and shall not be limited to consideration of the danger of imminent harm.

In evaluating the existence of probable cause, the officer or other authorized person shall consider available relevant “information about the historical course of the person’s mental disorder,” so far as it relates to whether the person is a danger to others, or to himself or herself, or is gravely disabled. (W&I § 5150.05(a))

“Information about the historical course of the person’s mental disorder” includes evidence presented by the person who has provided or is providing mental health or related support services to the person, evidence presented by one or more members of the family of that person, and evidence presented by the person him or herself or anyone else designated by that person. (W&I § 5150.05(b))

Plaintiff—a middle school teacher who was detained on a psychiatric hold after an incident at school—was held not to have a private right of action under the Lanterman-Petris-Short Act for claims that the officers who took her into custody concocted a situation and falsely reported probable cause, or that the hospital failed to review the probable cause statement, failed to assess her, and failed to provide a written statement of rights. In an appeal from sustained demurrers and a summary judgment motion against her, it was held that the plaintiff failed to state a Fourth Amendment claim against the officers because under the circumstances a reasonable officer would have believed there was probable cause to detain her under W&I Code § 5150 where she told a close friend that she was going to slit her wrists, an officer observed marks on her wrists that may have evidenced previous suicide attempts, and that when approached, she started screaming and did not calm down. (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360.)

The receiving facility shall require an application in writing, stating:

The circumstances under which the person’s condition was called to the attention of a police officer, or other authorized person; and

That the officer, etc., has probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled.

If the probable cause is based on the statement of a person other than the officer, member of the attending staff, or professional person, such person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false. (See also, W&I § 5150.05(c))

A “Gravely Disabled” person is defined, for purposes of this section, as (W&I § 5008(h)(1)):

A condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter, or

A condition in which a person has been found incompetent under P.C. § 1370 (Mentally incompetent for purposes of standing trial) and all of the following facts exist:

The accusatory pleading pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person;

The accusatory pleading has not been dismissed;

As a result of mental disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner.

See P.C. § 1368.1(a), generally, for the procedures for a prosecutor to use in establishing mental competence at, or before, a preliminary examination.

Speedy Trial Issues:

Defendant appealed the denial of his motion to set aside an information because he was brought to preliminary hearing on day 63. His prelim had been repeatedly delayed because he was in the hospital on a W&I § 5150 hold. The Court of Appeal agreed with defendant. Although P.C. § 859b includes a good-cause exception for the 10‑day rule, there is no such exception for the 60-day rule. The People argued that W&I § 4011.6 tolled time, where a 5150’s presence in court “would be detrimental to the well-being of the prisoner.” The Court refused to hold (as amounting to dicta) that W&I § 4011.6 could toll the 60-day rule, because only on day 61 did the court finally speak to a doctor who asserted said detriment. (Del Castillo v. Superior Court (2019) 38 Cal.App.5th 1117.)

W&I § 5150.1: Interference with peace officer or jailer:

No peace officer seeking to transport, or having transported, a person to a designated facility for assessment under Section 5150, shall be instructed by mental health personnel to take the person to, or keep the person at, a jail solely because of the unavailability of an acute bed, nor shall the peace officer be forbidden to transport the person directly to the designated facility. No mental health employee from any county, state, city, or any private agency providing Short-Doyle psychiatric emergency services shall interfere with a peace officer performing duties under Section 5150 by preventing the peace officer from entering a designated facility with the person to be assessed, nor shall any employee of such an agency require the peace officer to remove the person without assessment as a condition of allowing the peace officer to depart.

“Peace officer” for the purposes of this section also means a jailer seeking to transport or transporting a person in custody to a designated facility for assessment consistent with Section 4011.6 or 4011.8 of the Penal Code and Section 5150.

W&I § 5151: Admission for 72-Hour Treatment and Evaluation:

If a facility for 72-hour treatment and evaluation admits a person, it may detain him or her for evaluation and treatment for a period of up to 72 hours.

W&I § 5152: Evaluation for Release or Further Treatment:

Subd. (a): Each person admitted to a facility for 72-hour treatment and evaluation shall receive:

An evaluation as soon as possible after he or she is admitted; and

Whatever treatment and care his or her condition requires for the full period that he or she is held.

The person shall be released before 72 hours has elapsed only if the person no longer requires evaluation or treatment.

Such release must be based upon the “personal observations” of a psychiatrist. In the case where a psychiatrist and a psychologist have personally evaluated the patient, either may authorize the release of the patient. However, if either objects to the patient’s release, unless overruled by the facility’s medical director, the patient shall be held for further evaluation.

Subd. (b): Any person who has been detained for evaluation and treatment shall, at the end of the 72-hour period:

Be released;
Be referred for further care and treatment on a voluntary basis;
Be certified for intensive treatment; or
Have a conservator or temporary conservator appointed.

See W&I § 5154(c) for a peace officer’s protection from civil and criminal liability for the actions of a person released at or before the end of the 72-hour commitment.

Failing to receive a mental evaluation as described deprives a police officer of the power to confiscate the subject’s weapons, per W&I § 8102(a). (City of San Diego v. Kevin B. (2004) 118 Cal.App.4th 933; subject reported by his parents to be a danger, but responding police officers could not find him. He was therefore never subjected to a 72-hour mental evaluation, pursuant to W&I §§ 5151 and 5152.)

W&I § 5152.1: Notification to Law Enforcement Upon Release of a Person with Pending Criminal Charges:

Upon the release of a person brought to a facility for 72-hour evaluation and treatment, whether the person is:

Not detained;
Released prior to the expiration of the 72 hours; or
Released after expiration of the 72 hours;

The professional person in charge of the facility or his or her designee shall, upon release of the person, notify:

The County Mental Health Director or the Director’s designee; and
The peace officer who made a written application pursuant to W&I § 5150 or the officer’s department’s designee;

If all of the following applies:

The peace officer requests such notification at the time he or she makes the application for 72-hour evaluation and treatment;
The peace officer certifies at that time in writing that the person has been referred to the facility under circumstances which, based upon an allegation of facts regarding actions witnessed by the officer or another person;
That would support the filing of a criminal complaint.

The notice is limited to:

The person’s name and address;
The date of admission for 72-hour evaluation and treatment; and
The date of release.

The record of such notice must be destroyed two years after receipt of notification.

W&I §§ 5156, 5210: Preservation and Safeguarding of Personal Property:

Upon taking a person into custody for evaluation pursuant to W&I §§ 5150 (taking dangerous or gravely ill mentally disabled persons into custody) or 5200 (pursuant to a court order), either:

At the time the person is taken into custody; or
Within a reasonable time thereafter;

The person taking him or her into custody shall take “reasonable precautions” to preserve and safeguard the personal property;

In the possession of; or
On the premises occupied by the person; and

Shall then furnish to the Court a report generally describing:

The person’s property so preserved and safeguarded; and
Its disposition.

Exception: When there is a “responsible relative” or the guardian or conservator of the person in possession of the person’s personal property.

The Report shall be:

In substantially the form set forth in W&I § 5211 (see below); except
If a responsible relative or guardian or conservator of the person is in possession of the person’s property, it shall include only the name of the relative, guardian or conservator and the location of the property.

“Responsible Relative” includes the spouse, parent, adult child, or adult brother or sister of the person taken into custody, but does not include the person who applied for a petition for commitment under this code.

W&I § 5211: Form of Property Report:

Report of Officer

I hereby report to the Superior Court for the County of ______ that the personal property of the person apprehended, described generally as ______ was preserved and safeguarded by _______ (Insert name of person taking him into custody, responsible relative, guardian, or conservator.)”

“That property is now located at ________.

Dated: __________, 20___

________________

Signature and Title

W&I § 5157: Information to be Given to Persons Taken into Custody:

Subd. (a):

Any person taken into custody pursuant to W&I § 5150;

At the time he or she is first taken into custody;

Shall be orally provided by the person taking him or her into custody;

The following information:

The name of the person taking him or her into custody;
The identification of the person as a peace officer, mental health professional, etc.
The name of the agency the person works for;
The fact that he or she is not under criminal arrest;
The fact that he or she is being taken for examination by a mental health professional;
The name of the facility to which he or she is being taken;
The fact that he or she will be told of his or her rights by the mental health staff.

If taken into custody at his or her residence, he or she shall also be told the following information:

That he or she may bring a few personal items with him or her which the person taking him or her into custody will have to approve;
That he or she may make a phone call;
That he or she can may leave a note to tell friends and/or family where he or she is being taken.

Subd. (b): Provides for a record that such an advisal (subd. (a)) was made and for completing the advisal if necessary.

Subd. (c): Provides for the information the hospital staff must give to the person upon admission for 72-hour evaluation and treatment.

Subd. (d): Provides for the records the hospital staff must keep concerning a person admitted for 72-hour evaluation and treatment.

W&I § 5250: Certification for Intensive Treatment:

A person may be certified for not more than 14 days of intensive treatment related to the mental disorder or impairment by chronic alcoholism, if:

He or she has been detained for 72 hours under:

W&I §§ 5150 et seq.; or
A court order for evaluation pursuant to W&I §§ 5200 et seq.; or
A court order for evaluation for chronic alcoholism or drug abuse, pursuant to W&I §§ 5225 et seq.

Subd. (a): He or she has been found my the professional staff to be, as a result of mental disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled;

Subd. (b): The facility is designed by the county to provide intensive treatment and agrees to admit the person; and

Subd. (c): The person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis.

W&I § 5260: Certification for Intensive Treatment of Suicidal Persons:

At the expiration of the 14-day period of intensive treatment, any person who, as a result of mental disorder or impairment by chronic alcoholism;

Threatened or attempted to take his (or her) own life during the 14-day period or the 72-hour evaluation period; or

Was detained for evaluation and treatment because he (or she) threatened or attempted to take his own life; and

Continues to present an imminent threat of taking his (or her) own life;

May be confined for further intensive treatment for an additional period not to exceed 14 days.

W&I § 5270.15: Certification for Additional Treatment:

Upon the completion of a 14-day period of intensive treatment pursuant to W&I § 5250, the person may be certified for an additional period of not more than 30 days of intensive treatment under both of the following conditions:

The professional staff of the agency or facility treating the person has found that the person remains gravely disabled as a result of a mental disorder or impairment by chronic alcoholism;

The person remains unwilling or unable to accept treatment voluntarily.

W&I § 5300: Confinement for Additional Treatment:

At the expiration of the 14-day period of intensive treatment, a person may be confined for further treatment for an additional period, not to exceed 180 days, if one of the following exists:

Subd. (a): The person has attempted, inflicted, or made a serious threat of substantial physical harm upon the person of another after having been taken into custody, and while in custody, for evaluation and treatment, and who, as a result of mental disorder or mental defect, presents a demonstrated danger of inflicting substantial physical harm upon others.

Subd. (b): The person has attempted, or inflicted physical harm upon the person of another, that act having resulted in his or her being taken into custody, and who presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm upon others.

Subd. (c): The person had made a serious threat of substantial physical harm upon the person of another within seven days prior to being taken into custody, that threat having at least in part resulted in his or her being taken into custody, and the person presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm upon others.

Conservatorships:

W&I § 5350: Appointment of Conservator:

A conservator of the person, of the estate, or of the person and the estate may be appointed for any person who is “gravely disabled” as a result of mental disorder or impairment by chronic alcoholism.

W&I § 5357: Powers of Conservator:

All conservators of the estate shall have the general powers as specified in Probate Code, §§ 2400 et seq., and such additional powers as specified in Probate Code, §§ 2590 et seq., as the Court may designate.

A “conservatorship investigation” conducted by an appointed or designated agency (see W&I § 5008(g)) shall result in a written report of investigation to be submitted to the court (see W&I § 5354). This report shall recommend to the Court for or against the imposition of certain listed disabilities to be imposed upon the conservatee, including:

Subd. (f): The disqualification of the person from possessing a firearm pursuant to W&I 8103(e).

W&I § 5358.1: Protection from Civil Liability for Conservator and Peace Officer:

Neither a conservator, temporary conservator, or public guardian appointed pursuant to law, nor a peace officer acting pursuant to W&I § 5358.5 (below), shall be held civilly or criminally liable for any action by a conservatee.

W&I § 5358.5: Return of, or Removal of, Conservatee:

When any conservatee placed into a facility pursuant to the conservatorship provisions of the Welfare and Institutions Code, either:

Leaves the facility without the approval of the conservator or the person in charge of the facility; or
Must be removed to a county treatment facility as deemed necessary by the conservator;

The conservator, or his or her assistant or deputy, may:

Take the conservatee into custody; or
Request a peace officer to detain the conservatee;

And may:

Return the conservatee to the facility; or
Remove the conservatee to a county treatment facility; or
Request that the peace officer do either of the above.

The request to a peace officer shall be:

In writing;
Accompanied by a certified copy of the letters of conservatorship showing the person requesting detention and transfer to be the lawfully appointed conservator.

Whenever possible, persons charged with apprehension of persons pursuant to the section shall dress in plain clothes and shall travel in unmarked vehicles.

W&I § 7325(a): No warrant or court order is required.

Related Firearms Provisions:

P.C. § 25135: Gun Security Rules for Gun Owner Living with a Person Prohibited From Owning a Firearm:

(a) A person who is 18 years of age or older, and who is the owner, lessee, renter, or other legal occupant of a residence, who owns a firearm and who knows or has reason to know that another person also residing therein is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm shall not keep in that residence any firearm that he or she owns unless one of the following applies:

(1) The firearm is maintained within a locked container.

(2) The firearm is disabled by a firearm safety device.

(3) The firearm is maintained within a locked gun safe.

(4) The firearm is maintained within a locked trunk.

(5) The firearm is locked with a locking device as described in Section 16860, which has rendered the firearm inoperable.

(6) The firearm is carried on the person or within close enough proximity thereto that the individual can readily retrieve and use the firearm as if carried on the person.

(b) A violation of this section is a misdemeanor.

(c) The provisions of this section are cumulative, and do not restrict the application of any other law. However, an act or omission punishable in different ways by different provisions of law shall not be punished under more than one provision.

Note: P.C. § 16860: Locking Device:

As used in Sections 16850, 25105, and 25205 (and 25135), “locking device” means a device that is designed to prevent a firearm from functioning and, when applied to the firearm, renders the firearm inoperable.

P.C. § 33800: Receipt Upon Taking Firearm Into Custody:

(a) When a firearm is taken into custody by a law enforcement officer, the officer shall issue the person who possessed the firearm a receipt describing the firearm, and listing any serial number or other identification on the firearm.

(b) The receipt shall indicate where the firearm may be recovered, any applicable time limit for recovery, and the date after which the owner or possessor may recover the firearm pursuant to Chapter 2 (commencing with Section 33850).

(c) Nothing in this section is intended to displace any existing law regarding the seizure or return of firearms.

Note: P.C. §§ 33850 et seq. Return of Confiscated Firearms. (See Part 2, below.)

Case Law:

The Ninth Circuit affirmed the district court’s dismissal of plaintiff’s 42 U.S.C. § 1983 complaint containing an as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(4), which prohibits plaintiff from possessing firearms due to his involuntary commitment in 1999 to a mental institution for more than nine months after a Washington state court found plaintiff to be both mentally ill and dangerous. The federal prohibition on plaintiff's possession of firearms under 18 U.S.C.S. § 922(g)(4) because of plaintiff’s past involuntary commitment withstood Second Amendment scrutiny even though those who were no longer mentally ill, but who were committed involuntarily years ago, unquestionably posed less of a risk of violence now than when a state court found them to be mentally ill and dangerous. However, scientific evidence reasonably also supports the congressional judgment that they nevertheless still posed an increased risk of violence over those who do not have a history of mental illness. Therefore, the Second Amendment allows Congress to further its goal of preventing gun violence by barring plaintiff from possessing a firearm. (Mai v. United States (9th Cir. 2020) 974 F.3rd 1082.)

Part 2: Return of Confiscated Firearms:

P.C. § 33850: Application for Return of Firearms: (Effective until 7/1/2020):

(a) Any person who claims title to any firearm that is in the custody or control of a court or law enforcement agency and who wishes to have the firearm returned shall make application for a determination by the Department of Justice as to whether the applicant is eligible to possess a firearm. The application shall be submitted electronically via the California Firearms Application Reporting System (CFARS) and shall include the following:

(1) The applicant’s name, date and place of birth, gender, telephone number, and complete address.

(2) Whether the applicant is a United States citizen. If the applicant is not a United States citizen, the application shall also include the applicant’s country of citizenship and the applicant’s alien registration or I-94 number.

(3) If the seized property is a firearm, the firearm’s make, model, caliber, barrel length, type, country of origin, and serial number, provided, however, that if the firearm is not a handgun and does not have a serial number, identification number, or identification mark assigned to it, there shall be a place on the application to note that fact.

(4) For residents of California, the applicant’s valid California driver’s license number or valid California identification card number issued by the Department of Motor Vehicles. For nonresidents of California, a copy of the applicant’s military identification with orders indicating that the individual is stationed in California, or a copy of the applicant’s valid driver’s license from the applicant’s state of residence, or a copy of the applicant’s state identification card from the applicant’s state of residence. Copies of the documents provided by non-California residents shall be notarized.

(5) The name of the court or law enforcement agency holding the firearm.

(6) The signature of the applicant and the date of signature.

(7) Any person furnishing a fictitious name or address or knowingly furnishing any incorrect information or knowingly omitting any information required to be provided for the application, including any notarized information pursuant to paragraph (4), shall be guilty of a misdemeanor.

(b) A person who owns a firearm that is in the custody of a court or law enforcement agency and who does not wish to obtain possession of the firearm, and the firearm is an otherwise legal firearm, and the person otherwise has right to title of the firearm, shall be entitled to sell or transfer title of the firearm to a licensed dealer or a third party that is not prohibited from possessing that firearm. Any sale or transfer to a third party pursuant to this subdivision shall be conducted pursuant to Section 27545.

(c) A person who owns any ammunition that is in the custody of a court or a law enforcement agency and who does not wish to obtain possession of the ammunition, and the ammunition is otherwise legal, shall be entitled to sell or otherwise transfer the ammunition to a licensed firearms dealer or ammunition vendor or a third party that is not prohibited from possessing that ammunition. Any sale or other transfer of ammunition to a third party pursuant to subdivision (b) shall be conducted through an ammunition vendor in accordance with the procedures set forth in Article 4 (commencing with Section 30370) of Chapter 1 of Division 10.

(d) Any person furnishing a fictitious name or address, or knowingly furnishing any incorrect information or knowingly omitting any information required to be provided for the application, including any notarized information pursuant to paragraph (4) of subdivision (a), is punishable as a misdemeanor.

(e) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

Note: P.C. § 27545: Transaction Where Neither Party Holds a Dealer’s License: Where neither party to the transaction holds a dealer’s license issued pursuant to Sections 26700 to 26915, inclusive, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through a licensed firearms dealer pursuant to Chapter 5 (commencing with Section 28050).

See Rodriguez v. City of San Jose (9th Cir. 2019) 930 F.3rd 1123, 1129, and fn. 4.

P.C. § 33850: Application for Return of Firearms: (Effective 7/1/2020):

(a) Any person who claims title to any firearm, ammunition feeding device, or ammunition that is in the custody or control of a court or law enforcement agency and who wishes to have the firearm, ammunition feeding device, or ammunition returned shall make application for a determination by the Department of Justice as to whether the applicant is eligible to possess a firearm, ammunition feeding device, or ammunition. The application shall be submitted electronically via the California Firearms Application Reporting System (CFARS) and shall include the following:

(1) The applicant’s name, date and place of birth, gender, telephone number, and complete address.

(5) The name of the court or law enforcement agency holding the firearm, ammunition feeding device, or ammunition.

(6) The signature of the applicant and the date of signature.

(c) A person who owns an ammunition feeding device or ammunition that is in the custody of a court or a law enforcement agency and who does not wish to obtain possession of the ammunition or ammunition feeding device, and the ammunition feeding device or ammunition is otherwise legal, shall be entitled to sell or otherwise transfer the ammunition feeding device or ammunition to a licensed firearms dealer or ammunition vendor or a third party that is not prohibited from possessing that ammunition feeding device or ammunition. Any sale or other transfer of ammunition to a third party pursuant to subdivision (b) shall be conducted through an ammunition vendor in accordance with the procedures set forth in Article 4 (commencing with Section 30370) of Chapter 1 of Division 10.

(e) This section shall become operative on July 1, 2020.

P.C. § 33855: Requirements for Return of Firearms: (Effective until 7/1/2020):

A law enforcement agency or court that has taken custody of any firearm shall not return the firearm to any individual unless the following requirements are satisfied:

(a) The individual presents to the agency or court notification of a determination by the department pursuant to Section 33865 that the person is eligible to possess firearms.

(b) If the agency or court has direct access to the Automated Firearms System, the agency or court has verified that the firearm is not listed as stolen pursuant to Section 11108.2, and that the firearm has been recorded in the Automated Firearms System in the name of the individual who seeks its return.

(c) If the firearm has been reported lost or stolen pursuant to Section 11108.2, a law enforcement agency shall notify the owner or person entitled to possession pursuant to Section 11108.5. However, that person shall provide proof of eligibility to possess a firearm pursuant to Section 33865.

(d) This section does not prevent the local law enforcement agency from charging the rightful owner or person entitled to possession of the firearm the fees described in Section 33880. However, an individual who is applying for a background check to retrieve a firearm that came into the custody or control of a court or law enforcement agency pursuant to Section 33850 shall be exempt from the fees in Section 33860, provided that the court or agency determines the firearm was reported stolen to a law enforcement agency prior to the date the firearm came into custody or control of the court or law enforcement agency, or within five business days of the firearm being stolen from its owner. The court or agency shall notify the Department of Justice of this fee exemption in a manner prescribed by the department.

(e) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

P.C. § 33855: Requirements for Return of Firearms: (Effective 7/1/2020):

A law enforcement agency or court that has taken custody of any firearm, ammunition feeding device, or ammunition shall not return the firearm, ammunition feeding device, or ammunition to any individual unless all of the following requirements are satisfied:

(a) The individual presents to the agency or court notification of a determination by the department pursuant to Section 33865 that the person is eligible to possess a firearm, ammunition feeding device, or ammunition.

(b) If the seized property is a firearm and the agency or court has direct access to the Automated Firearms System, the agency or court has verified that the firearm is not listed as stolen pursuant to Section 11108.2, and that the firearm has been recorded in the Automated Firearms System in the name of the individual who seeks its return.

(c) If the firearm has been reported lost or stolen pursuant to Section 11108.2, a law enforcement agency shall notify the owner or person entitled to possession pursuant to Section 11108.5. However, that person shall provide proof of eligibility to possess a firearm pursuant to Section 33865.

(e) This section shall become operative on July 1, 2020.

P.C. § 33860: Fee Per Request: (Effective until 7/1/2020):

(a) The Department of Justice shall establish a fee of twenty dollars ($20) per request for return of a firearm, plus a three-dollar ($3) charge for each additional firearm being processed as part of the request to return a firearm, to cover its reasonable costs for processing firearm clearance determinations submitted pursuant to this chapter.

(b) The fees collected pursuant to subdivision (a) shall be deposited into the Dealers’ Record of Sale Special Account.

(c) The department shall annually review and shall adjust the fees specified in subdivision (a), if necessary, to fully fund, but not to exceed the reasonable costs of processing applications pursuant to this section.

(d) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

P.C. § 33860: Fee Per Request: (Effective 7/1/2020):

(a) The Department of Justice shall establish a fee of twenty dollars ($20) per request for return of a firearm, ammunition feeding device, or any quantity of ammunition plus a three-dollar ($3) charge for each additional firearm being processed as part of the request to return a firearm, to cover its reasonable costs for processing applications submitted pursuant to this chapter.

(b) The fees collected pursuant to subdivision (a) shall be deposited into the Dealers’ Record of Sale Special Account.

(c) The department shall annually review and shall adjust the fees specified in subdivision (a), if necessary, to fully fund, but not to exceed the reasonable costs of processing applications submitted pursuant to this section.

(d) This section shall become operative on July 1, 2020.

P.C. § 33865: Eligibility Check: (Effective until 7/1/2020):

(a) When the Department of Justice receives a completed application pursuant to Section 33850 accompanied by the fee required pursuant to Section 33860, it shall conduct an eligibility check of the applicant to determine whether the applicant is eligible to possess a firearm.

(b) The department shall have 30 days from the date of receipt to complete the background check, unless the background check is delayed by circumstances beyond the control of the department. The applicant may contact the department via the California Firearms Application Reporting System (CFARS) to inquire about the reason for a delay.

(c) If the department determines that the applicant is eligible to possess the firearm, the department shall provide the applicant with written notification that includes the following:

(1) The identity of the applicant.

(2) A statement that the applicant is eligible to possess a firearm.

(3) A description of the firearm by make, model, and serial number, provided, however, that if the firearm is not a handgun and does not have a serial number, identification number, or identification mark assigned to it, that fact shall be noted.

(d) The department shall enter a record of the firearm into the Automated Firearms System (AFS), provided, however, that if the firearm is not a handgun and does not have a serial number, identification number, or identification mark assigned to it, that fact shall be noted in AFS.

(e) If the department denies the application, and the firearm is an otherwise legal firearm, the department shall notify the applicant of the denial and provide a form for the applicant to use to sell or transfer the firearm to a licensed dealer.

(f) If the department denies the application, the applicant shall receive notification via CFARS from the department explaining the reason for the denial and information regarding the appeal process.

(g) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

P.C. § 33865: Eligibility Check: (Effective 7/1/2020):

(c) If the department determines that the applicant is eligible to possess the firearm, ammunition feeding device, or ammunition, the department shall provide the applicant with written notification that includes the following:

(1) The identity of the applicant.

(2) A statement that the applicant is eligible to possess a firearm, ammunition feeding device, or ammunition.

(3) If applicable, a description of the firearm by make, model, and serial number, provided, however, that if the firearm is not a handgun and does not have a serial number, identification number, or identification mark assigned to it, that fact shall be noted.

(g) This section shall become operative on July 1, 2020.

P.C. § 33870: Rights of Applicant as Legal Owner: (Effective until 7/1/2020):

(a) If a law enforcement agency determines that the applicant is the legal owner of any firearm or ammunition deposited with the agency, that the applicant is prohibited from possessing any firearm or ammunition, and that the firearm or ammunition is otherwise legal, the applicant shall be entitled to sell or transfer the firearm or ammunition to a licensed firearms dealer, or licensed ammunition vendor, as applicable. If a law enforcement agency determines that the applicant is prohibited from owning or possessing any firearm or ammunition and the prohibition will expire on a specific ascertainable date, whether or not that date is specified in a court order, the applicant shall be entitled to have the firearm or ammunition stored by a licensed firearms dealer or licensed ammunition vendor, as applicable, for the duration of the prohibition period pursuant to Section 29830.

(b) If the firearm or ammunition has been lost or stolen, it shall be restored to the lawful owner pursuant to Section 11108.5 upon the owner’s identification of the property, proof of ownership, and proof of eligibility to possess a firearm or ammunition pursuant to Section 33865.

(c) This section does not prevent the local law enforcement agency from charging the rightful owner of the property the fees described in Section 33880.

(d) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

P.C. § 33870: Rights of Applicant as Legal Owner: (Effective 7/1/2020):

(a) If a law enforcement agency determines that the applicant is the legal owner of any firearm, ammunition feeding device, or ammunition deposited with the agency, that the applicant is prohibited from possessing any firearm, ammunition feeding device, or ammunition, and that the firearm, ammunition feeding device, or ammunition is otherwise legal, the applicant shall be entitled to sell or transfer the firearm, ammunition feeding device, or ammunition to a licensed firearms dealer, or licensed ammunition vendor, as applicable. If a law enforcement agency determines that the applicant is prohibited from owning or possessing any firearm, ammunition feeding device, or ammunition and the prohibition will expire on a specific ascertainable date, whether or not that date is specified in a court order, the applicant shall be entitled to have the firearm, ammunition feeding device, or ammunition stored by a licensed firearms dealer or licensed ammunition vendor, as applicable, for the duration of the prohibition period pursuant to Section 29830.

(b) If the firearm, ammunition feeding device, or ammunition has been lost or stolen, it shall be restored to the lawful owner pursuant to Section 11108.5 upon the owner’s identification of the property, proof of ownership, and proof of eligibility to possess a firearm, ammunition feeding device, or ammunition pursuant to Section 33865.

(c) This section does not prevent the local law enforcement agency from charging the rightful owner of the property the fees described in Section 33880.

(d) This section shall become operative on July 1, 2020.

P.C. § 33875: Retention of Firearm After Notification of Owner: (Effective until 7/1/2020):

(a) Notwithstanding any other law, no law enforcement agency or court shall be required to retain any firearm for more than 180 days after the owner has been notified by the court or law enforcement agency that the property has been made available for return. Any unclaimed firearm may be disposed of after the 180-day period has expired.

(b) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

P.C. § 33875: Retention of Firearm, Ammunition Feeding Device, or Ammunition After Notification of Owner: (Effective 7/1/2020):

(a) Notwithstanding any other law, no law enforcement agency or court shall be required to retain any firearm, ammunition feeding device, or ammunition for more than 180 days after the owner has been notified by the court or law enforcement agency that the property has been made available for return. An unclaimed firearm, ammunition feeding device, or ammunition may be disposed of after the 180-day period has expired.

(b) This section shall become operative on July 1, 2020.

P.C. § 33880: Fee for Seizure, Impounding, Storage, or Release of Firearm or Ammunition: (Effective until 7/1/2020):

(a) A city, county, or city and county, or a state agency may adopt a regulation, ordinance, or resolution imposing a charge equal to its administrative costs relating to the seizure, impounding, storage, or release of any firearm or ammunition.

(b) The fee under subdivision (a) shall not exceed the actual costs incurred for the expenses directly related to taking possession of any firearm or ammunition, storing it, and surrendering possession of it to a licensed firearms dealer or to the owner.

(c) The administrative costs described in subdivisions (a) and (b) may be waived by the local or state agency upon verifiable proof that the firearm or ammunition was reported stolen at the time it came into the custody or control of the law enforcement agency.

(d) The following apply to any charges imposed for administrative costs pursuant to this section:

(1) The charges shall only be imposed on the person claiming title to the firearm or ammunition.

(2) Any charges shall be collected by the local or state authority only from the person claiming title to the firearm or ammunition.

(3) The charges shall be in addition to any other charges authorized or imposed pursuant to this code.

(4) A charge shall not be imposed for a hearing or appeal relating to the removal, impound, storage, or release of any firearm or ammunition, unless that hearing or appeal was requested in writing by the legal owner of the property. In addition, the charge may be imposed only upon the person requesting that hearing or appeal.

(e) Costs for a hearing or appeal related to the release of any firearm or ammunition shall not be charged to the legal owner who redeems the property, unless the legal owner voluntarily requests the poststorage hearing or appeal. A city, county, city and county, or state agency shall not require a legal owner to request a poststorage hearing as a requirement for release of the firearm or ammunition to the legal owner.

(f) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

P.C. § 33880: Fee for Seizure, Impounding, Storage, or Release of Firearm, Ammunition Feeding Device, or Ammunition: (Effective 7/1/2020):

(b) The fee under subdivision (a) shall not exceed the actual costs incurred for the expenses directly related to taking possession of any firearm, ammunition feeding device, or ammunition, storing it, and surrendering possession of it to a licensed firearms dealer or to the owner.

(c) The administrative costs described in subdivisions (a) and (b) may be waived by the local or state agency upon verifiable proof that the firearm, ammunition feeding device, or ammunition was reported stolen at the time it came into the custody or control of the law enforcement agency.

(d) The following apply to any charges imposed for administrative costs pursuant to this section:

(1) The charges shall only be imposed on the person claiming title to the firearm, ammunition feeding device, or ammunition.

(2) Any charges shall be collected by the local or state authority only from the person claiming title to the firearm, ammunition feeding device, or ammunition.

(3) The charges shall be in addition to any other charges authorized or imposed pursuant to this code.

(4) A charge shall not be imposed for a hearing or appeal relating to the removal, impound, storage, or release of any firearm, ammunition feeding device, or ammunition, unless that hearing or appeal was requested in writing by the legal owner of the property. In addition, the charge may be imposed only upon the person requesting that hearing or appeal.

(e) Costs for a hearing or appeal related to the release of any firearm, ammunition feeding device, or ammunition shall not be charged to the legal owner who redeems the property, unless the legal owner voluntarily requests the poststorage hearing or appeal. A city, county, city and county, or state agency shall not require a legal owner to request a poststorage hearing as a requirement for release of the firearm, ammunition feeding device, or ammunition to the legal owner.

(f) This section shall become operative on July 1, 2020.

P.C. § 33885: Award of Reasonable Attorney’s Fees: (Effective until 7/1/2020):

(a) In a proceeding for the return of any firearm seized and not returned pursuant to this chapter, where the defendant or cross-defendant is a law enforcement agency, the court shall award reasonable attorney’s fees to the prevailing party.

(b) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

P.C. § 33885: Award of Reasonable Attorney’s Fees: (Effective 7/1/2020):

(a) In a proceeding for the return of any firearm, ammunition feeding device, or ammunition seized and not returned pursuant to this chapter, where the defendant or cross-defendant is a law enforcement agency, the court shall award reasonable attorney’s fees to the prevailing party.

(b) This section shall become operative on July 1, 2020

P.C. § 33895: Transactions Where Neither Party Holds a Dealer’s License: (Effective until 7/1/2020):

(a) Section 27545 does not apply to deliveries, transfers, or returns of firearms made pursuant to this chapter.

(b) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

P.C. § 33895: Transactions Where Neither Party Holds a Dealer’s License: (Effective 7/1/2020):

(a) Section 27545 does not apply to deliveries, transfers, or returns of firearms made pursuant to this chapter.

(b) Sections 30312 and 30342 do not apply to deliveries or transfers of returns of ammunition or ammunition feeding devices by a court or law enforcement agency made pursuant to this chapter.

(c) This section shall become operative on July 1, 2020.

Notes:

P.C. § 27545: Transaction Where Neither Party Holds a Dealer’s License: Where neither party to the transaction holds a dealer’s license issued pursuant to Sections 26700 to 26915, inclusive, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through a licensed firearms dealer pursuant to Chapter 5 (commencing with Section 28050).

P.C. § 30312: Sale, Delivery, or Transfer of Ammunition; Exception: (See below.)

P.C. § 30342: Sale of More Than 500 Rounds of Ammunition in 30-Day Period; Ammunition Vendor License Requirement: (See below)

P.C. § 30312: Sale, Delivery, or Transfer of Ammunition; Exception:

(a)

(1) Commencing January 1, 2018, the sale of ammunition by any party shall be conducted by or processed through a licensed ammunition vendor.

(2) When neither party to an ammunition sale is a licensed ammunition vendor, the seller shall deliver the ammunition to a vendor to process the transaction. The ammunition vendor shall promptly and properly deliver the ammunition to the purchaser, if the sale is not prohibited, as if the ammunition were the vendor’s own merchandise. If the ammunition vendor cannot legally deliver the ammunition to the purchaser, the vendor shall forthwith return the ammunition to the seller. The ammunition vendor may charge the purchaser an administrative fee to process the transaction, in an amount to be set by the Department of Justice, in addition to any applicable fees that may be charged pursuant to the provisions of this title.

(b) Commencing January 1, 2018, the sale, delivery, or transfer of ownership of ammunition by any party may only occur in a face-to-face transaction with the seller, deliverer, or transferor, provided, however, that ammunition may be purchased or acquired over the Internet or through other means of remote ordering if a licensed ammunition vendor initially receives the ammunition and processes the transaction in compliance with this section and Article 3 (commencing with Section 30342) of Chapter 1 of Division 10 of Title 4 of this part.

(c) Subdivisions (a) and (b) shall not apply to the sale, delivery, or transfer of ammunition to any of the following:

(1) An authorized law enforcement representative of a city, county, city and county, or state or federal government, if the sale, delivery, or transfer is for exclusive use by that government agency and, prior to the sale, delivery, or transfer of the ammunition, written authorization from the head of the agency employing the purchaser or transferee is obtained, identifying the employee as an individual authorized to conduct the transaction, and authorizing the transaction for the exclusive use of the agency employing the individual.

(2) A sworn peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, or sworn federal law enforcement officer, who is authorized to carry a firearm in the course and scope of the officer’s duties.

(3) An importer or manufacturer of ammunition or firearms who is licensed to engage in business pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto.

(4) A person who is on the centralized list of exempted federal firearms licensees maintained by the Department of Justice pursuant to Article 6 (commencing with Section 28450) of Chapter 6 of Division 6 of this title.

(5) A person whose licensed premises are outside this state and who is licensed as a dealer or collector of firearms pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto.

(6) A person who is licensed as a collector of firearms pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto, whose licensed premises are within this state, and who has a current certificate of eligibility issued by the Department of Justice pursuant to Section 26710.

(7) An ammunition vendor.

(8) A consultant-evaluator.

(9) A person who purchases or receives ammunition at a target facility holding a business or other regulatory license, provided that the ammunition is at all times kept within the faNcility’s premises.

(10) A person who purchases or receives ammunition from a spouse, registered domestic partner, or immediate family member as defined in Section 16720.

Note: Per P.C. § 16720: As used in this part, “immediate family member” means either of the following relationships:

(a) Parent and child.

(b) Grandparent and grandchild.

(11) A person enrolled in the basic training academy for peace officers or any other course certified by the Commission on Peace Officer Standards and Training, an instructor of the academy or course, or a staff member of the academy or entity providing the course, who is purchasing the ammunition for the purpose of participation or use in the course.

(d) A violation of this section is a misdemeanor.

P.C. § 30342: Sale of More Than 500 Rounds of Ammunition in 30-Day Period; Ammunition Vendor License Requirement:

(a) Commencing January 1, 2018, a valid ammunition vendor license shall be required for any person, firm, corporation, or other business enterprise to sell more than 500 rounds of ammunition in any 30-day period.

(b) A violation of this section is a misdemeanor.

Appellate Authority:

The fact that petitioner had completed the procedural requirements of California Penal Code §§ 33850 et seq. making her eligible for the return firearms that had belonged to both her and her husband as community property, and one gun that was her separate property, was held not make her current situation materially different from that considered by the California Court of Appeal when that court held that her Second Amendment right to keep and bear arms were not affected when the state court refused to return the firearms that had been seized pursuant to Welf. & Inst. Code § 8102 when her husband was committed pursuant to Wel. & Insti. Code § 5150 as a danger to himself and others. Having been decided by the California courts, the doctrine of “issue preclusion” prevented the federal court from reconsidering it. (Rodriguez v. City of San Jose (9th Cir. 2019) 930 F.3rd 1123, 1133.)

Part 3: Red Flag Statutes:

The United States Supreme Court has noted that the various states’ Red Flag statutes are likely to be subject to a Fourth Amendment analysis in the future, specifically mentioning California’s statutes as an example. (See Caniglia v. Strom (May 17, 2021) __ U.S. __, __ (concurring opinion) [__ S.Ct. __; __ L.Ed.2nd __; 2021 U.S. LEXIS 2682].)

P.C. § 18100: Purpose of a Gun Violence Restraining Order:

(a) A gun violence restraining order is an order, in writing, signed by the court, prohibiting and enjoining a named person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition. This division establishes a civil restraining order process to accomplish that purpose. (Italics added.)

Note: Sometimes referred to as “Extreme Risk Protection Orders,” (or “ERPOs”).

(b) For purposes of this chapter, the term “ammunition” includes a “magazine” as defined in Section 16890.

Note:

P.C. § 16890: Magazine Defined: “‘(M)agazine’ means any ammunition feeding device.”

P.C. § 18105: Forms and Rules of Court by Judicial Council:

The Judicial Council shall prescribe the form of the petitions and orders and any other documents, and shall promulgate any rules of court, necessary to implement this division. These forms, orders, and documents shall refer to any order issued pursuant to this chapter as a gun violence restraining order.

P.C. § 18107: Specified Description of Firearms and Ammunition in Petition:

A petition for a gun violence restraining order shall describe the number, types, and locations of any firearms and ammunition presently believed by the petitioner to be possessed or controlled by the subject of the petition. (Italics added)

P.C. § 18108: Written Policies and Standards Relating to Gun Violence Restraining Orders:

(a) Each municipal police department and county sheriff’s department, the Department of the California Highway Patrol, and the University of California and California State University Police Departments shall, on or before January 1, 2021, develop, adopt, and implement written policies and standards relating to gun violence restraining orders.

(b) The policies and standards shall instruct officers to consider the use of a gun violence restraining order during a domestic disturbance response to any residence which is associated with a firearm registration or record, during a response in which a firearm is present, or during a response in which one of the involved parties owns or possesses a firearm. The policies and standards should encourage the use of gun violence restraining orders in appropriate situations to prevent future violence involving a firearm.

(c) The policies and standards should also instruct officers to consider the use of a gun violence restraining order during a contact with a person exhibiting mental health issues, including suicidal thoughts, statements, or actions, if that person owns or possesses a firearm. The policies and standards shall encourage officers encountering situations in which there is reasonable cause to believe that the person poses an immediate and present danger of causing personal injury to themselves or another person by having custody or control of a firearm to consider obtaining a mental health evaluation of the person by a medically trained professional or to detain the person for mental health evaluation pursuant to agency policy relating to Section 5150 of the Welfare and Institutions Code. The policies and standards should reflect the policy of the agency to prevent access to firearms by persons who, due to mental health issues, pose a danger to themselves or to others by owning or possessing a firearm.

(d) The written policies and standards developed pursuant to this section shall be consistent with any gun violence restraining order training administered by the Commission on Peace Officer Standards and Training, and shall include all of the following:

(1) Standards and procedures for requesting and serving a temporary emergency gun violence restraining order.

(2) Standards and procedures for requesting and serving an ex parte gun violence restraining order.

(3) Standards and procedures for requesting and serving a gun violence restraining order issued after notice and hearing.

(4) Standards and procedures for the seizure of firearms and ammunition at the time of issuance of a temporary emergency gun violence restraining order.

(5) Standards and procedures for verifying the removal of firearms and ammunition from the subject of a gun violence restraining order.

(6) Standards and procedures for obtaining and serving a search warrant for firearms and ammunition.

(7) Responsibility of officers to attend gun violence restraining order hearings.

(8) Standards and procedures for requesting renewals of expiring gun violence restraining orders.

(e) Municipal police departments, county sheriff’s departments, the Department of the California Highway Patrol, and the University of California and California State University Police Departments are encouraged, but not required by this section, to train officers on standards and procedures implemented pursuant to this section, and may incorporate these standards and procedures into an academy course, preexisting annual training, or other continuing education program.

(f) In developing these policies and standards, law enforcement agencies are encouraged to consult with gun violence prevention experts and mental health professionals.

(g) Policies developed pursuant to this section shall be made available to the public upon request.

P.C. § 18109: Limitation on Interpretation (Becomes inoperative on September 1, 2020, and, as of January 1, 2021, is repealed):

(a) Nothing in this division shall be interpreted to require a law enforcement agency or a law enforcement officer to seek a gun violence restraining order in any case, including, but not limited to, in a case in which the agency or officer concludes, after investigation, that the criteria for issuance of a gun violence restraining order are not satisfied.

(b) This section shall become inoperative on September 1, 2020, and, as of January 1, 2021, is repealed.

P.C. § 18109: Limitation on Interpretation (Effective September 1, 2020):

(a) This division does not require a law enforcement agency or a law enforcement officer to seek a gun violence restraining order in any case, including, but not limited to, in a case in which the agency or officer concludes, after investigation, that the criteria for issuance of a gun violence restraining order are not satisfied.

(b) A petition brought by a law enforcement officer may be made in the name of the law enforcement agency in which the officer is employed.

(c) This section shall become operative on September 1, 2020.

P.C. § 18110: Search of Available Records and Databases Prior to Hearing:

Prior to a hearing on the issuance, renewal, or termination of an order under Chapter 3 (commencing with Section 18150) or Chapter 4 (commencing with Section 18170), the court shall ensure that a search as described in subdivision (a) of Section 6306 of the Family Code is conducted. After issuing its ruling, the court shall provide the advisement described in subdivision (c) of Section 6306 of the Family Code and shall keep information obtained from a search conducted pursuant to this section confidential in accordance with subdivision (d) of Section 6306 of the Family Code.

Notes:

P.C. §§ 18150 et seq.: Petition; Grounds for Issuance; Supporting Affidavit; Issuance or Denial on Same Day Petition Filed; see infra.

P.C. §§ 18170 et seq.: Petition; see infra.

Fam. Code § 6306: Search of Specific Records and Databases Required Prior to Issuance or Denial of Order; Information to be Obtained; Release of Information to Parties; Confidentiality

P.C. § 18115: Notification to Department of Justice; Proof of Service of Order:

(a) The court shall notify the Department of Justice when a gun violence restraining order has been issued or renewed under this division no later than one court day after issuing or renewing the order.

(b) The court shall notify the Department of Justice when a gun violence restraining order has been dissolved or terminated under this division no later than five court days after dissolving or terminating the order. Upon receipt of either a notice of dissolution or a notice of termination of a gun violence restraining order, the Department of Justice shall, within 15 days, document the updated status of any order issued under this division.

(c) The notices 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.

(d) When notifying the Department of Justice pursuant to subdivision (a) or (b), the court shall indicate in the notice whether the person subject to the gun violence restraining order has filed a relinquishment of firearm rights pursuant to subdivision (d) of Section 18175 or was present in court to be informed of the contents of the order or if the person failed to appear. The person’s filing of relinquishment of firearm rights or the person’s presence in court constitutes proof of service of notice of the terms of the order.

(e)

(1) Within one business day of service, a law enforcement officer who served a gun violence restraining order shall submit the proof of service directly into the California Restraining and Protective Order System, including their name and law enforcement agency, and shall transmit the original proof of service form to the issuing court.

(2) Within one business day of receipt of proof of service by a person other than a law enforcement officer, the clerk of the court shall submit the proof of service of a gun violence restraining order directly into the California Restraining and Protective Order System, including the name of the person who served the order. If the court is unable to provide this notification to the Department of Justice by electronic transmission, the court shall, within one business day of receipt, transmit a copy of the proof of service to a local law enforcement agency. The local law enforcement agency shall submit the proof of service directly into the California Restraining and Protective Order System within one business day of receipt from the court.

(3) Within one business day of issuance of a gun violence restraining order based on a relinquishment of firearm rights pursuant to subdivision (d) of Section 18175, the clerk of the court shall enter the relinquishment of firearm rights form directly into the California Restraining and Protective Order System. If the court is unable to provide this notification to the Department of Justice by electronic transmission, the court shall, within one business day of receipt, transmit a copy of the relinquishment of firearm rights form to a local law enforcement agency. The local law enforcement agency shall submit the relinquishment of firearm rights form directly into the California Restraining and Protective Order System within one business day of receipt from the court.

P.C. § 18120: Effect of Order; Surrender of Firearms and Ammunition (Becomes inoperative on September 1, 2020, and, as of January 1, 2021, is repealed):

(a) A person subject to a gun violence restraining order issued pursuant to this division shall not have in the person’s custody or control, own, purchase, possess, or receive any firearms or ammunition while that order is in effect.

(b)

(1) Upon issuance of a gun violence restraining order issued pursuant to this division, the court shall order the restrained person to surrender all firearms and ammunition in the restrained person’s custody or control, or which the restrained person possesses or owns pursuant to paragraph (2).

(2) The surrender ordered pursuant to paragraph (1) shall occur by immediately surrendering all firearms and ammunition in a safe manner, upon request of any law enforcement officer, to the control of the officer, after being served with the restraining order. A law enforcement officer serving a gun violence restraining order that indicates that the restrained person possesses any firearms or ammunition shall request that all firearms and ammunition be immediately surrendered. Alternatively, if no request is made by a law enforcement officer, the surrender shall occur within 24 hours of being served with the order, by surrendering all firearms and ammunition in a safe manner to the control of the local law enforcement agency, selling all firearms and ammunition to a licensed firearms dealer, or transferring all firearms and ammunition to a licensed firearms dealer in accordance with Section 29830. The law enforcement officer or licensed firearms dealer taking possession of any firearms or ammunition pursuant to this subdivision shall issue a receipt to the person surrendering the firearm or firearms or ammunition or both at the time of surrender. A person ordered to surrender all firearms and ammunition pursuant to this subdivision shall, within 48 hours after being served with the order, do both of the following:

(A) File with the court that issued the gun violence restraining order the original receipt showing all firearms and ammunition have been surrendered to a local law enforcement agency or sold or transferred to a licensed firearms dealer. Failure to timely file a receipt shall constitute a violation of the restraining order.

(B) File a copy of the receipt described in subparagraph (A) with the law enforcement agency that served the gun violence restraining order. Failure to timely file a copy of the receipt shall constitute a violation of the restraining order.

(c)

(1) Except as provided in paragraph (2), any firearms or ammunition surrendered to a law enforcement officer or law enforcement agency pursuant to this section shall be retained by the law enforcement agency until the expiration of any gun violence restraining order that has been issued against the restrained person. Upon expiration of any order, any firearms or ammunition shall be returned to the restrained person in accordance with the provisions of Chapter 2 (commencing with Section 33850) of Division 11 of Title 4. Firearms or ammunition that are not claimed are subject to the requirements of Section 34000.

(2) A restrained person who owns any firearms or ammunition that are in the custody of a law enforcement agency pursuant to this section is entitled to sell any firearms or ammunition to a licensed firearms dealer or transfer any firearms or ammunition to a licensed firearms dealer in accordance with Section 29830, provided that the firearm or firearms or ammunition are otherwise legal to own or possess and the restrained person otherwise has right to title of the firearm or firearms or ammunition.

(d) If a person other than the restrained person claims title to any firearms or ammunition surrendered pursuant to this section, and the person is determined by the law enforcement agency to be the lawful owner of the firearm or firearms or ammunition, the firearm or firearms or ammunition shall be returned to the person pursuant to Chapter 2 (commencing with Section 33850) of Division 11 of Title 4.

(e) Within one business day of receiving the receipt referred to in paragraph (2) of subdivision (b), the court that issued the order shall transmit a copy of the receipt to the Department of Justice in a manner and pursuant to a process prescribed by the department.

(f) This section shall become inoperative on September 1, 2020, and, as of January 1, 2021, is repealed.

Notes:

P.C. § 29830: Transfer of Firearms or Ammunition to Firearms Dealer or Ammunition Vendor During Ownership Prohibition

P.C. §§ 33850 et seq.: Return of Firearms: See Part 2: Return of Confiscated Firearms, above.

P.C. § 34000: Sale or Destruction of Firearm No Longer Needed, Unclaimed or Abandoned

P.C. § 18120: Effect of Order; Surrender of Firearms and Ammunition (Effective September 1, 2020):

(b)

(2) The surrender ordered pursuant to paragraph (1) shall occur by immediately surrendering all firearms and ammunition in a safe manner, upon request of a law enforcement officer, to the control of the officer, after being served with the restraining order. A law enforcement officer serving a gun violence restraining order that indicates that the restrained person possesses firearms or ammunition shall request that all firearms and ammunition be immediately surrendered.

(3) If the gun violence restraining order is issued as an ex parte order or order after notice and hearing, and is served by a person other than a law enforcement officer, and if no request is made by a law enforcement officer, the surrender shall occur within 24 hours of being served with the order, by surrendering all firearms and ammunition in a safe manner to the control of a local law enforcement agency, selling all firearms and ammunition to a licensed firearms dealer, or transferring all firearms and ammunition to a licensed firearms dealer in accordance with Section 29830.

(4) The law enforcement officer or licensed firearms dealer taking possession of firearms or ammunition pursuant to this subdivision shall issue a receipt to the person surrendering the firearm or firearms or ammunition or both at the time of surrender.

(5) A person ordered to surrender all firearms and ammunition pursuant to this subdivision shall, within 48 hours after being served with the order, do both of the following:

(B) File a copy of the receipt described in subparagraph (A) with the law enforcement agency, if any, that served the gun violence restraining order. Failure to timely file a copy of the receipt shall constitute a violation of the restraining order.

(c)

(1) Except as provided in paragraph (2), firearms or ammunition surrendered to a law enforcement officer or law enforcement agency pursuant to this section shall be retained by the law enforcement agency until the expiration of a gun violence restraining order that has been issued against the restrained person. Upon expiration of an order, the firearms or ammunition shall be returned to the restrained person in accordance with the provisions of Chapter 2 (commencing with Section 33850) of Division 11 of Title 4. Firearms or ammunition that are not claimed are subject to the requirements of Section 34000.

(2) A restrained person who owns firearms or ammunition that are in the custody of a law enforcement agency pursuant to this section is entitled to sell the firearms or ammunition to a licensed firearms dealer or transfer the firearms or ammunition to a licensed firearms dealer in accordance with Section 29830 if the firearm or firearms or ammunition are otherwise legal to own or possess and the restrained person otherwise has right to title of the firearm or firearms or ammunition.

(d) If a person other than the restrained person claims title to firearms or ammunition surrendered pursuant to this section, and the person is determined by the law enforcement agency to be the lawful owner of the firearm or firearms or ammunition, the firearm or firearms or ammunition shall be returned to the person pursuant to Chapter 2 (commencing with Section 33850) of Division 11 of Title 4.

(e) Within one business day of receiving the receipt referred to in paragraph (4) of subdivision (b), the court that issued the order shall transmit a copy of the receipt to the Department of Justice in a manner and pursuant to a process prescribed by the department.

(f) This section shall become operative on September 1, 2020.

Notes:

P.C. § 29830: Transfer of Firearms or Ammunition to Firearms Dealer or Ammunition Vendor During Ownership Prohibition

P.C. §§ 33850 et seq.: Return of Firearms: See Part 2: Return of Confiscated Firearms, above.

P.C. § 34000: Sale or Destruction of Firearm No Longer Needed, Unclaimed or Abandoned

P.C. § 18121: Filing Fee Exemption:

There is no filing fee for an application, a responsive pleading, or an order to show cause that seeks to obtain, modify, or enforce a gun violence restraining order or other order authorized by this division if the request for the other order is necessary to obtain or give effect to a gun violence restraining order or other order authorized by this division. There is no fee for a subpoena filed in connection with that application, responsive pleading, or order to show cause.

P.C. § 18122: Operative Date of Division:

This division shall become operative on January 1, 2016.

P.C. § 18125: Limitation on Ex Parte Order; Effect of Order:

(a) A temporary emergency gun violence restraining order may be issued on an ex parte basis only if a law enforcement officer asserts, and a judicial officer finds, that there is reasonable cause to believe both of the following (Italics added):

(1) The subject of the petition poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition (Italics added).

(2) A temporary emergency gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or have been determined to be inadequate or inappropriate for the circumstances of the subject of the petition.

(b) A temporary emergency gun violence restraining order issued pursuant to this chapter shall prohibit 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, and shall expire 21 days from the date the order is issued (Italics added).

Summary Note: The Temporary Emergency GVRO can only be sought by a law enforcement officer by either a written petition or by telephonic request. The elements include the assertion by a law enforcement officer the person to be restrained poses “an immediate and present danger of causing injury to himself, herself, or another” by having access to firearms; a GVRO is necessary to prevent harm; less restrictive measures have been tried and proven ineffective or inadequate; and a judicial officer agrees. The GVRO is good for 21 days.

P.C. § 18130: Validity of Order:

A temporary emergency gun violence restraining order is valid only if it is issued by a judicial officer after making the findings required by Section 18125 and pursuant to a specific request by a law enforcement officer (Italics added).

Note:

P.C. § 18125: Limitation on Ex Parte Order; Effect of Order; see supra.

P.C. § 18135: Contents of Order:

(a) A temporary emergency gun violence restraining order issued under this chapter shall include all of the following:

(1) A statement of the grounds supporting the issuance of the order.

(2) The date and time the order expires.

(3) The address of the superior court for the county in which the restrained party resides.

(4) The following statement:

To the restrained person: This order will last until the date and time noted above. You are required to surrender all firearms, ammunition, and magazines that you own or possess in accordance with Section 18120 of the Penal Code and you may not have in your custody or control, own, purchase, possess, or receive, or attempt to purchase or receive any firearm, ammunition, or magazine while this order is in effect. However, a more permanent gun violence restraining order may be obtained from the court. 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.

(b) When serving a temporary emergency gun violence restraining order, a law enforcement officer shall verbally ask the restrained person if he or she has any firearm, ammunition, or magazine in his or her possession or under his or her custody or control.

Note:

P.C. § 18120: Effect of Order; Surrender of Firearms and Ammunition; see supra.

P.C. § 18140: Requirements for Law Enforcement Officer Seeking a Temporary Emergency Gun Violence Restraining Order:

A law enforcement officer who requests a temporary emergency gun violence restraining order shall do all of the following (Italics added):

(a) If the request is made orally, sign a declaration under penalty of perjury reciting the oral statements provided to the judicial officer and memorialize the order of the court on the form approved by the Judicial Council.

(b) Serve the order on the restrained person, if the restrained person can reasonably be located.

(c) File a copy of the order with the court as soon as practicable after issuance.

(d) Have the order entered into the computer database system for protective and restraining orders maintained by the Department of Justice.

P.C. § 18145: Petition; Designation of Judge to Issue Temporary Emergency Gun Violence Restraining Orders:

(a)

(1) A judicial officer may issue a temporary emergency gun violence restraining order orally based on the statements of a law enforcement officer made in accordance with subdivision (a) of Section 18140 (Italics added).

(2) If time and circumstances permit, a temporary emergency gun violence restraining order may be obtained in writing and based on a declaration signed under penalty of perjury.

(b) The presiding judge of the superior court of each county shall designate at least one judge, commissioner, or referee who shall be reasonably available to issue temporary emergency gun violence restraining orders when the court is not in session.

Note:

P.C. § 18140(a): Requirements for Law Enforcement Officer Seeking a Temporary Emergency Gun Violence Restraining Order; see supra.

P.C. § 18148: Hearing to Determine if Gun Violence Restraining Order Should be Issued:

Within 21 days after the date on the order, the court that issued the order or another court in the same jurisdiction, shall hold a hearing pursuant to Section 18175 to determine if a gun violence restraining order should be issued pursuant to Chapter 4 (commencing with Section 18170) after notice and hearing.

P.C. § 18175: Evidence; Grounds for issuance; Burden of proof; Effect of Issuance or Denial of Order; Duration of Order; see infra.

P.C. §§ 18170 et seq.: Petition; see infra.

P.C. § 18150: Petition; Grounds for Issuance; Supporting Affidavit; Issuance or Denial on Same Day Petition Filed (Becomes inoperative on September 1, 2020, and, as of January 1, 2021, is repealed):

(a)

(1) An immediate family member of a person or a law enforcement officer may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in their custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.

(2) For purposes of this subdivision, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.

(b) A court may issue an ex parte gun violence restraining order if the petition, supported by an affidavit made in writing and signed by the petitioner under oath, or an oral statement taken pursuant to subdivision (a) of Section 18155, and any additional information provided to the court shows that there is a substantial likelihood that both of the following are true:

(1) The subject of the petition poses a significant danger, in the near future, of causing personal injury to the subject of the petition or another by having in their custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering the factors listed in Section 18155.

(2) An ex parte gun violence restraining order is necessary to prevent personal 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 of the subject of the petition.

(c) An affidavit supporting a petition for the issuance of an ex parte gun violence restraining order shall set forth the facts tending to establish the grounds of the petition, or the reason for believing that they exist.

(d) An ex parte order under this chapter shall be issued or denied on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the order shall be issued or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court.

(e) This section shall become inoperative on September 1, 2020, and, as of January 1, 2021, is repealed.

Notes:

P.C. § 422.4(b)(3): Definition of “Immediate Family:” “Immediate family” means any spouse, whether by marriage or not, domestic partner, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

P.C. § 18155(a): Examination or Affidavit of Petitioner and Witnesses; see infra.

P.C. § 18155: Examination or Affidavit of Petitioner and Witnesses; Evidence; Effect of Order; see infra.

Summary Note: The Ex Parte GVRO establishes the criteria necessary for either a family member or law enforcement officer to request the court order, and the standards by which the order will be issued. The court must take into account whether the person owns a firearm, harmful behaviors toward self or others, criminal history, and patterns of violence, among other considerations. If good cause is shown that there is a strong likelihood the person to be restrained will cause injury to self or others in the near future by way of a firearm, then an order will be issued. This order may be issued without a hearing, but can only be obtained during normal working hours. If issued, the court must provide a hearing date within 21 days.

P.C. § 18150: Petition; Grounds for Issuance; Supporting Affidavit; Issuance or Denial on Same Day Petition Filed (Becomes effective on September 1, 2020):

(a)

(1) Any of the following individuals may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in their custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition:

(A) An immediate family member of the subject of the petition.

(B) An employer of the subject of the petition.

(C) A coworker of the subject of the petition, if they have had substantial and regular interactions with the subject for at least one year and have obtained the approval of the employer.

(D) An employee or teacher of a secondary or postsecondary school that the subject has attended in the last six months, if the employee or teacher has obtained the approval of a school administrator or a school administration staff member with a supervisorial role.

(E) A law enforcement officer.

(2) For purposes of this subdivision, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.

(3) This chapter does not require a person described in paragraph (1) to seek a gun violence restraining order.

(e) This section shall become operative on September 1, 2020.

Notes:

P.C. § 18155(a): Examination or Affidavit of Petitioner and Witnesses; see infra.

P.C. § 18155: Examination or Affidavit of Petitioner and Witnesses; Evidence; Effect of Order; see infra.

Summary Note: The Ex Parte GVRO establishes the criteria necessary for either a family member, a law enforcement officer, an employer, a coworker, or an employee or teacher of a secondary or postsecondary school that the subject has attended in the last six months, to request the court order, and the standards by which the order will be issued. The court must take into account whether the person owns a firearm, harmful behaviors toward self or others, criminal history, and patterns of violence, among other considerations. If good cause is shown that there is a strong likelihood the person to be restrained will cause injury to self or others in the near future by way of a firearm, then an order will be issued. This order may be issued without a hearing, but can only be obtained during normal working hours. If issued, the court must provide a hearing date within 21 days.

P.C. § 18155: Examination or Affidavit of Petitioner and Witnesses; Evidence; Effect of Order:

(a)

(1) The court, before issuing an ex parte gun violence restraining order, shall examine on oath, the petitioner and any witness the petitioner may produce.

(2) 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.

(b)

(1) 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.

(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 issued pursuant to Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code that is in effect at the time the court is considering the petition.

(D) A recent violation of an unexpired 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.

(E) A conviction for any offense listed in Section 29805.

(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.

(2) In determining whether grounds for a gun violence restraining order exist, the court may consider any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the following:

(A) The unlawful and reckless use, display, or brandishing of a firearm by the subject of the petition.

(B) The history of use, attempted use, or threatened use of physical force by the subject of the petition against another person.

(C) A prior arrest of the subject of the petition for a felony offense.

(D) A history of a violation by the subject of the petition 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.

(E) A history of a violation by the subject of the petition 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.

(F) Documentary evidence, including, but not limited to, police reports and records of convictions, of either recent criminal offenses by the subject of the petition that involve controlled substances or alcohol or ongoing abuse of controlled substances or alcohol by the subject of the petition.

(G) Evidence of recent acquisition of firearms, ammunition, or other deadly weapons.

(3) For the purposes of this subdivision, “recent” means within the six months prior to the date the petition was filed (Italics added).

(c) If the court determines that the grounds to issue an ex parte gun violence restraining order exist, it shall issue an ex parte 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, and expires no later than 21 days from the date of the order (Italics added).

Notes:

P.C. § 646.91: Stalking; Issuance of emergency protective order on request of peace officer; Findings required; Expiration; Punishment for disobedience

Fam. Code §§ 6240 et seq.; Ex Parte Emergency Protective Orders

Fam. Code §§ 6300 et seq.; Proving Past Acts of Abuse

P.C. § 136.2: Electronic Monitoring of Defendants Accused of Domestic Violence; Payment for Electronic Monitoring

Code of Civ. Pro. § 527.6; Harassment Temporary Restraining Orders

W&I § 213.5; Ex Parte Restraining or Protective Orders During Pendency of Proceedings to Declare Child a Dependent Child of Juvenile Court

W&I § 15657.03; Elder or Dependent Adult Protective Orders

P.C. § 29805: Person Convicted of Specified Misdemeanor Owning, Purchasing, Receiving, or Possessing Firearm

P.C. § 18160: Contents of an Ex Parte Gun Violence Restraining Order; Service (Becomes inoperative on September 1, 2020, and, as of January 1, 2021, is repealed):

(a) An ex parte gun violence restraining order issued under this chapter shall include all of the following:

(1) A statement of the grounds supporting the issuance of the order.

(2) The date and time the order expires.

(3) The address of the superior court in which any responsive pleading should be filed.

(4) The date and time of the scheduled hearing.

(5) The following statement:

“To the restrained person: This order is valid until the expiration date and time noted above. You are required to surrender all firearms, ammunition, and magazines that you own or possess in accordance with Section 18120 of the Penal Code and you may not have in your custody or control, own, purchase, possess, or receive, or attempt to purchase or receive any firearm, ammunition, or magazine while this order is in effect. A hearing will be held on the date and at the time noted above to determine if a more permanent gun violence restraining order should be issued. Failure to appear at that hearing may result in a court making an order against you that is valid for a year. 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.”

(b)

(1) 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, as provided in Section 414.10 of the Code of Civil Procedure, if the restrained person can reasonably be located.

(2) When serving a gun violence restraining order, a law enforcement officer shall inform the restrained person of the hearing scheduled pursuant to Section 18165.

(3) When serving a gun violence restraining order, a law enforcement officer shall verbally ask the restrained person if the person has a firearm, ammunition, or magazine in the person’s possession or under the person’s custody or control.

(c) This section shall become inoperative on September 1, 2020, and, as of January 1, 2021, is repealed.

Notes:

P.C. § 18120: Effect of order; Surrender of firearms and ammunition; see supra.

Code of Civ. Proc. § 414.10: Persons Permitted to Serve Summons

P.C. § 18165: Hearing After Issuance of Order; see infra.

P.C. § 18160: Contents of an Ex Parte Gun Violence Restraining Order; Service (Becomes effective on September 1, 2020):

(a) An ex parte gun violence restraining order issued under this chapter shall include all of the following:

(1) A statement of the grounds supporting the issuance of the order.

(2) The date and time the order expires.

(3) The address of the superior court in which a responsive pleading should be filed.

(4) The date and time of the scheduled hearing.

(5) The following statement:

“To the restrained person: This order is valid until the expiration date and time noted above. You are required to surrender all firearms, ammunition, and magazines that you own or possess in accordance with Section 18120 of the Penal Code and you may not have in your custody or control, own, purchase, possess, or receive, or attempt to purchase or receive any firearm, ammunition, or magazine while this order is in effect. A hearing will be held on the date and at the time noted above to determine if a more permanent gun violence restraining order should be issued. Failure to appear at that hearing may result in a court making an order against you that is valid for a period of time between one to five years. 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.”

(b)

(1) An ex parte gun violence restraining order shall be personally served on the restrained person by a law enforcement officer, or by a person as provided in Section 414.10 of the Code of Civil Procedure, if the restrained person can reasonably be located.

(2) When serving a gun violence restraining order, a law enforcement officer shall inform the restrained person of the hearing scheduled pursuant to Section 18165.

(c) This section shall become operative on September 1, 2020.

Notes:

P.C. § 18120: Effect of order; Surrender of firearms and ammunition; see supra.

Code of Civ. Proc. § 414.10: Persons Permitted to Serve Summons

P.C. § 18165: Hearing After Issuance of Order; see infra.

P.C. § 18165: Hearing After Issuance of Order:

Within 21 days after the date on the order, before the court that issued the order or another court in the same jurisdiction, the court shall hold a hearing pursuant to Section 18175 to determine if a gun violence restraining order should be issued under Chapter 4 (commencing with Section 18170).

Note:

P.C. § 18175; Evidence; Grounds for issuance; Burden of proof; Effect of issuance or denial of order; Duration of order; see infra.

P.C. § 18170; Petition; see infra.

P.C. § 18170; Petition (Becomes inoperative on September 1, 2020, and, as of January 1, 2021, is repealed):

(a) An immediate family member of a person or a law enforcement officer may request that a court, after notice and a hearing, issue a gun violence restraining order enjoining the subject of the petition from having in their custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition for a period of one year.

(b) For purposes of this section, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.

(c) This section shall become inoperative on September 1, 2020, and, as of January 1, 2021, is repealed.

Note:

P.C. § 18170; Petition (Becomes September 1, 2020):

(a)

(1) Any of the following individuals may request that a court, after notice and a hearing, issue a gun violence restraining order enjoining the subject of the petition from having in their custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition for a period of time between one to five years:

(A) An immediate family member of the subject of the petition.

(B) An employer of the subject of the petition.

(C) A coworker of the subject of the petition, if they have had substantial and regular interactions with the subject for at least one year and have obtained the approval of the employer.

(E) A law enforcement officer.

(2) This chapter does not require a person described in paragraph (1) to seek a gun violence restraining order.

(b) For purposes of this section, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.

(c) This section shall become operative on September 1, 2020.

Note:

P.C. § 18175; Evidence; Grounds for Issuance; Burden of Proof; Effect of issuance or Denial of Order; Duration of Order (Becomes inoperative on September 1, 2020, and, as of January 1, 2021, is repealed):

(a) In determining whether to issue a gun violence restraining order under this chapter, the court shall consider evidence of the facts identified in paragraph (1) of subdivision (b) of Section 18155 and may consider any other evidence of an increased risk for violence, including, but not limited to, evidence of the facts identified in paragraph (2) of subdivision (b) of Section 18155.

(b) At the hearing, the petitioner has the burden of proving, by clear and convincing evidence, that both of the following are true:

(1) The subject of the petition, or a person subject to a temporary emergency gun violence restraining order or an ex parte gun violence restraining order, as applicable, poses a significant danger of causing personal injury to themselves or another by having in the subject’s or person’s custody or control, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine.

(2) A gun violence restraining order is necessary to prevent personal injury to the subject of the petition, or the person subject to an ex parte gun violence restraining order, as applicable, or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances of the subject of the petition, or the person subject to an ex parte gun violence restraining order, as applicable.

(c)

(1) 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 the subject’s custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm, ammunition, or magazine.

(2) 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.

(d) A gun violence restraining order issued under this chapter has a duration of one year, subject to termination by further order of the court at a hearing held pursuant to Section 18185 and renewal by further order of the court pursuant to Section 18190.

(e) This section shall become inoperative on September 1, 2020, and, as of January 1, 2021, is repealed.

Notes:

P.C. § 18155(b)(1) & (2): Examination or Affidavit of Petitioner and Witnesses; Evidence; see supra.

P.C. § 18185: Request for Hearing to Terminate a Gun Violence Restraining Order; see infra.

P.C. § 18190: Renewal of order; Duration of renewed order; Contents of renewed order: See infra.

Summary Note:

The GVRO after Notice and Hearing provides that during the hearing the court may consider evidence and testimony from the person to be restrained seeking to terminate the order, as well as any additional evidence or testimony provided by the petitioner. The burden of proof is placed on the petitioner to establish (1) the person to be restrained poses a significant danger of harm to self and/or others by way of a firearm, (2) the GVRO is necessary to prevent such harm, and (3) less restrictive means have been attempted and proven inadequate or inappropriate.

The process is the same as applying for a temporary restraining order. The requisite paperwork must be submitted to the court clerk at the Court Services Department, the petition will be reviewed by a judge, and, if accepted, a court date set. A copy of the order will need to be served to the subject by someone not a party to the original petition (another officer will suffice), and the proof of personal service form must be signed and returned to the court services department as soon as practicable.

The day of the hearing both the Petitioner and Respondent will have an opportunity to argue their side of the case and present additional evidence. If the judge rules on behalf of the Petitioner, then the Respondent will be restricted from owning, procuring, possessing firearms and ammunition for one year.

P.C. § 18175; Evidence; Grounds for Issuance; Burden of Proof; Effect of issuance or Denial of Order; Duration of Order (Effective September 1, 2020):

(b) At the hearing, the petitioner has the burden of proving, by clear and convincing evidence, that both of the following are true:

(c)

(2) 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 a temporary emergency or ex parte gun violence restraining order then in effect.

(d)

(1) The subject of the petition may file a form with the court relinquishing the subject’s firearm rights for the duration specified on the petition or, if not stated in the petition, for one year from the date of the proposed hearing, and stating that the subject is not contesting the petition.

(2) If the subject of the petition files a form pursuant to paragraph (1), the court shall issue, without any hearing, the gun violence restraining order at least five court days before the scheduled hearing. If the subject files the form within five court days before the scheduled hearing, the court shall issue, without any hearing, the gun violence restraining order as soon as possible. The court shall provide notice of the order to all parties.

(3) If the subject of the petition files a form pursuant to paragraph (1) and has not already surrendered all firearms, ammunition, and magazines in the subject’s custody or control or those that the subject possesses or owns, the subject shall follow the procedures in Section 18120 but shall surrender the firearms, ammunition, and magazines within 48 hours of filing the form relinquishing firearm rights.

(e)

(1) The court shall issue a gun violence restraining order under this chapter for a period of time of one to five years, subject to termination by further order of the court at a hearing held pursuant to Section 18185 and renewal by further order of the court pursuant to Section 18190.

(2) In determining the duration of the gun violence restraining order pursuant to paragraph (1), the court shall consider the length of time that the circumstances set forth in subdivision (b) are likely to continue, and shall issue the order based on that determination.

(f) This section shall become operative on September 1, 2020.

Notes:

P.C. § 18155(b)(1) & (2): Examination or Affidavit of Petitioner and Witnesses; Evidence; see supra.

P.C. § 18185: Request for Hearing to Terminate a Gun Violence Restraining Order; see infra.

P.C. § 18190: Renewal of order; Duration of renewed order; Contents of renewed order: See infra.

Summary Note:

P.C. § 18180: Contents of Order; Form to Request Hearing to Terminate Order (Becomes inoperative on September 1, 2020, and, as of January 1, 2021, is repealed):

(a) A gun violence restraining order issued pursuant to this chapter shall include all of the following:

(1) A statement of the grounds supporting the issuance of the order.

(2) The date and time the order expires.

(3) The address of the superior court for the county in which the restrained party resides.

(4) The following statement:

“To the restrained person: This order will last until the date and time noted above. If you have not done so already, you must surrender all firearms, ammunition, and magazines that you own or possess in accordance with Section 18120 of the Penal Code. You may not have in your custody or control, own, purchase, possess, or receive, or attempt to purchase or receive a firearm, ammunition, or magazine, while this order is in effect. Pursuant to Section 18185, you have the right to request one hearing to terminate this order at any time during its effective period. You may seek the advice of an attorney as to any matter connected with the order.”

(b) When the court issues a gun violence restraining order under this chapter, the court shall inform the restrained person that the person is entitled to one hearing to request a termination of the order, pursuant to Section 18185, and shall provide the restrained person with a form to request a hearing.

(c) This section shall become inoperative on September 1, 2020, and, as of January 1, 2021, is repealed.

Notes:

P.C. § 18120: Effect of Order; Surrender of Firearms and Ammunition; see supra.

P.C. § 18185: Request for Hearing to Terminate a Gun Violence Restraining Order; see infra.

P.C. § 18180: Contents of Order; Form to Request Hearing to Terminate Order (Effective September 1, 2020):

(a) A gun violence restraining order issued pursuant to this chapter shall include all of the following:

(1) A statement of the grounds supporting the issuance of the order.

(2) The date and time the order expires.

(3) The address of the superior court for the county in which the restrained party resides.

(4) The following statement:

“To the restrained person: This order will last until the date and time noted above. If you have not done so already, you must surrender all firearms, ammunition, and magazines that you own or possess in accordance with Section 18120 of the Penal Code. You may not have in your custody or control, own, purchase, possess, or receive, or attempt to purchase or receive a firearm, ammunition, or magazine, while this order is in effect. Pursuant to Section 18185, you have the right to request a hearing on an annual basis to terminate this order during its effective period. You may seek the advice of an attorney as to any matter connected with the order.”

(b) If the court issues a gun violence restraining order under this chapter, the court shall inform the restrained person that the person is entitled to a hearing on an annual basis to request a termination of the order, pursuant to Section 18185, and shall provide the restrained person with a form to request a hearing.

(c) This section shall become operative on September 1, 2020.

Notes:

P.C. § 18120: Effect of Order; Surrender of Firearms and Ammunition; see supra.

P.C. § 18185: Request for Hearing to Terminate a Gun Violence Restraining Order; see infra.

P.C. § 18185: Request for Hearing to Terminate a Gun Violence Restraining Order (Becomes inoperative on September 1, 2020, and, as of January 1, 2021, is repealed):

(a) A person subject to a gun violence restraining order issued under this chapter may submit one written request at any time during the effective period of the order for a hearing to terminate the order.

(b) If the court finds after the hearing that there is no longer clear and convincing evidence to believe that paragraphs (1) and (2) of subdivision (b) of Section 18175 are true, the court shall terminate the order.

(c) This section shall become inoperative on September 1, 2020, and, as of January 1, 2021, is repealed.

Note:

P.C. § 18175(b)(1) & (2); Evidence; Burden of proof

P.C. § 18185: Request for Hearing to Terminate a Gun Violence Restraining Order (Effective September 1, 2020):

(a) A person subject to a gun violence restraining order issued under this chapter may submit one written request per year during the effective period of the order for a hearing to terminate the order.

(b) If the court finds after the hearing that there is no longer clear and convincing evidence to believe that paragraphs (1) and (2) of subdivision (b) of Section 18175 are true, the court shall terminate the order.

(c) This section shall become operative on September 1, 2020.

Note:

P.C. § 18175(b)(1) & (2); Evidence; Burden of proof

P.C. § 18190: Renewal of Order; Duration of Renewed Order; Contents of Renewed Order (Becomes inoperative on September 1, 2020, and, as of January 1, 2021, is repealed):

(a)

(1) An immediate family member of a restrained person or a law enforcement officer may request a renewal of a gun violence restraining order at any time within the three months before the expiration of a gun violence restraining order.

(2) For purposes of this subdivision, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.

(b) A court may, after notice and a hearing, renew a gun violence restraining order issued under this chapter if the petitioner proves, by clear and convincing evidence, that paragraphs (1) and (2) of subdivision (b) of Section 18175 continue to be true.

(c) In determining whether to renew a gun violence restraining order issued under this chapter, the court shall consider evidence of the facts identified in paragraph (1) of subdivision (b) of Section 18155 and any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the facts identified in paragraph (2) of subdivision (b) of Section 18155.

(d) At the hearing, the petitioner shall have the burden of proving, by clear and convincing evidence, that paragraphs (1) and (2) of subdivision (b) of Section 18175 are true.

(e) If the renewal petition is supported by clear and convincing evidence, the court shall renew the gun violence restraining order issued under this chapter.

(f) The renewal of a gun violence restraining order issued pursuant to this section shall have a duration of one year, subject to termination by further order of the court at a hearing held pursuant to Section 18185 and further renewal by further order of the court pursuant to this section.

(g) A gun violence restraining order renewed pursuant to this section shall include the information identified in subdivision (a) of Section 18180.

(h) This section shall become inoperative on September 1, 2020, and, as of January 1, 2021, is repealed.

Notes:

P.C, § 422.4(b)(3): Definition of “Immediate Family: “Immediate family” means any spouse, whether by marriage or not, domestic partner, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

P.C. § 18175(b)(1) & (2): Evidence; Burden of proof

P.C. § 18155(b)(1): Examination or Affidavit of Petitioner and Witnesses; Evidence to be Considered

P.C. § 18155(b)(2): Examination or affidavit of petitioner and witnesses; Other Evidence of an Increased Risk for Violence

P.C. § 18185: Request for Hearing to Terminate Order

P.C. § 18180: Contents of Order; Form to Request Hearing to Terminate Order

P.C. § 18190: Renewal of Order; Duration of Renewed Order; Contents of Renewed Order (Effective September 1, 2020):

(a)

(1) Any of the following people may request a renewal of a gun violence restraining order at any time within the three months before the expiration of a gun violence restraining order:

(A) An immediate family member of the subject of the petition.

(B) An employer of the subject of the petition.

(C) A coworker of the subject of the petition, if they have had substantial and regular interactions with the subject for at least one year and have obtained the approval of the employer.

(E) A law enforcement officer.

(2) For purposes of this subdivision, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.

(3) This chapter does not require a person described in paragraph (1) to seek a gun violence restraining order.

(b) A court may, after notice and a hearing, renew a gun violence restraining order issued under this chapter if the petitioner proves, by clear and convincing evidence, that paragraphs (1) and (2) of subdivision (b) of Section 18175 continue to be true.

(c) In determining whether to renew a gun violence restraining order issued under this chapter, the court shall consider evidence of the facts identified in paragraph (1) of subdivision (b) of Section 18155 and any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the facts identified in paragraph (2) of subdivision (b) of Section 18155.

(d) At the hearing, the petitioner shall have the burden of proving, by clear and convincing evidence, that paragraphs (1) and (2) of subdivision (b) of Section 18175 are true.

(e) If the renewal petition is supported by clear and convincing evidence, the court shall renew the gun violence restraining order issued under this chapter.

(f)

(1) The renewal of a gun violence restraining order issued pursuant to this section shall have a duration of between one to five years, subject to termination by further order of the court at a hearing held pursuant to Section 18185 and further renewal by further order of the court pursuant to this section.

(2) In determining the duration of the gun violence restraining order pursuant to paragraph (1), the court shall consider the length of time that the circumstances set forth in subdivision (b) of Section 18175 are likely to continue, and shall issue the order based on that determination.

(g) A gun violence restraining order renewed pursuant to this section shall include the information identified in subdivision (a) of Section 18180.

(h) This section shall become operative on September 1, 2020.

Notes:

P.C. § 18175(b)(1) & (2): Evidence; Burden of proof

P.C. § 18155(b)(1): Examination or Affidavit of Petitioner and Witnesses; Evidence to be Considered

P.C. § 18155(b)(2): Examination or affidavit of petitioner and witnesses; Other Evidence of an Increased Risk for Violence

P.C. § 18185: Request for Hearing to Terminate Order

P.C. § 18180: Contents of Order; Form to Request Hearing to Terminate Order

P.C. § 18195: Continuance of Hearing for Good Cause:

Any hearing held pursuant to this chapter may be continued upon a showing of good cause. Any existing order issued pursuant to this division shall remain in full force and effect during the period of continuance.

P.C. § 18197: Service of Order (Becomes inoperative on September 1, 2020, and, as of January 1, 2021, is repealed):

(a) If a person subject to a gun violence restraining order issued or renewed pursuant to this chapter was not present in court at the time the order was issued or renewed, the 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, as provided in Section 414.10 of the Code of Civil Procedure, if the restrained person can reasonably be located.

(b) This section shall become inoperative on September 1, 2020, and, as of January 1, 2021, is repealed.

Note:

Code of Civ. Proc. § 414.10: Persons Permitted to Serve Summons

P.C. § 18197: Service of Order (Effective September 1, 2020):

(a) If a person subject to a gun violence restraining order issued or renewed pursuant to this chapter was not present in court at the time the order was issued or renewed, the gun violence restraining order shall be personally served on the restrained person by a law enforcement officer, or by a person as provided in Section 414.10 of the Code of Civil Procedure, if the restrained person can reasonably be located.

(b) This section shall become operative on September 1, 2020.

Note:

Code of Civ. Proc. § 414.10: Persons Permitted to Serve Summons

P.C. § 18200: Filing Petition Knowing Information False or with Intent to Harass; Punishment:

Every person who files a petition for an ex parte gun violence restraining order pursuant to Chapter 3 (commencing with Section 18150) or a gun violence restraining order issued after notice and a hearing pursuant to Chapter 4 (commencing with Section 18170), knowing the information in the petition to be false or with the intent to harass, is guilty of a misdemeanor (Italics added).

Notes:

P.C. §§ 18150 et seq: Ex Parte Gun Violence Restraining Order; see supra.

P.C. §§ 18170 et seq: Gun Violence Restraining Order Issued After Notice and a Hearing; see supra.

P.C. § 18205: Ownership or Possession of Firearm or Ammunition by Person Subject to Order; Punishment:

Every person who owns or possesses a firearm or ammunition with knowledge that he or she is prohibited from doing so by a temporary emergency gun violence restraining order issued pursuant to Chapter 2 (commencing with Section 18125), an ex parte gun violence restraining order issued pursuant to Chapter 3 (commencing with Section 18150), or a gun violence restraining order issued after notice and a hearing issued pursuant to Chapter 4 (commencing with Section 18170), is guilty of a misdemeanor and 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 (Italics added.

Notes:

P.C. §§ 18125 et seq: Temporary Emergency Gun Violence Restraining Order; see supra.

P.C. §§ 18150 et seq: Ex Parte Gun Violence Restraining Order; see supra.

P.C. §§ 18170 et seq: Gun Violence Restraining Order Issued After Notice and a Hearing; see supra.

P.C. § 18250: Authority of Peace Officer to Take Temporary Custody of Firearm at Scene of Domestic Violence:

(a) 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, is serving a protective order as defined in Section 6218 of the Family Code, or is serving a gun violence restraining order issued pursuant to Division 3.2 (commencing with 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 (Italics added):

(1) A sheriff, undersheriff, deputy sheriff, marshal, deputy marshal, or police officer of a city, as defined in subdivision (a) of Section 830.1.

(2) A peace officer of the Department of the California Highway Patrol, as defined in subdivision (a) of Section 830.2.

(3) A member of the University of California Police Department, as defined in subdivision (b) of Section 830.2.

(4) An officer listed in Section 830.6, while acting in the course and scope of the officer’s employment as a peace officer.

(5) A member of a California State University Police Department, as defined in subdivision (c) of Section 830.2.

(6) A peace officer of the Department of Parks and Recreation, as defined in subdivision (f) of Section 830.2.

(7) A peace officer, as defined in subdivision (d) of Section 830.31.

(8) A peace officer, as defined in subdivisions (a) and (b) of Section 830.32.

(9) A peace officer, as defined in Section 830.5.

(10) A sworn member of the Department of Justice who is a peace officer, as defined in Section 830.1.

(11) A member of the San Francisco Bay Area Rapid Transit District Police Department, as defined in subdivision (a) of Section 830.33.

(b) This section shall become operative on January 1, 2016.

Notes:

Fam. Code § 6218: “Protective Order,” Defined

P.C. §§ 18100 et seq.: The Order; see supra.

P.C. § 830.6: Deputy, Reserve, or Auxiliary Law Enforcement Officers; Designation by Native American Tribe; Persons Summoned to Aid Uniformed Officers

P.C. § 830.31(d): A Housing Authority Patrol Officer

P.C. § 830.32(a) & (b): Members of Educational Institution Police Departments Whose Primary Duty is Law Enforcement:

(a) Members of a California Community College police department;

(b) Persons employed as members of a police department of a school district.

P.C. § 830.5: Parole, Probation, and Correctional Officers, and Correctional Counselors

P.C. § 18255: Receipt for Firearm Taken into Custody:

(a) Upon taking custody of a firearm or other deadly weapon pursuant to this division, the officer shall give the owner or person who possessed the firearm or other deadly weapon a receipt.

(b) The receipt shall describe the firearm or other deadly weapon and list any identification or serial number on the firearm.

(c) The receipt shall indicate where the firearm or other deadly weapon can be recovered, the time limit for recovery as required by this division, and the date after which the owner or possessor can recover the firearm or other deadly weapon.

(d) The receipt shall include the name and residential mailing address of the owner or person who possessed the firearm or other deadly weapon.

Appellate Authority:

A law enforcement officer may seize a firearm from a person on the basis that the person is the subject of an “emergency protective order” if the order includes an existing restraining order as specified in Family Code section 6218 (“Protective Order,” Defined. Italics added.). (84 Ops. Cal. Atty. Gen. 117.)

P.C. § 18260: Delivery of Firearm or Deadly Weapon to Police Department or Sheriff’s office:

Any peace officer, as defined in subdivisions (a) and (b) of Section 830.32, who takes custody of a firearm or other deadly weapon pursuant to this division, shall deliver the firearm or other deadly weapon within 24 hours to the city police department or county sheriff’s office in the jurisdiction where the college or school is located.

Note:

P.C. § 830.32(a) & (b): Members of Educational Institution Police Departments Whose Primary Duty is Law Enforcement:

(a) Members of a California Community College police department;

(b) Persons employed as members of a police department of a school district.

Appellate Authority:

A law enforcement officer may seize a firearm from a person on the basis that the person is the subject of an “emergency protective order” if the order includes an existing restraining order as specified in Family Code section 6218 (“Protective Order,” Defined. Italics added). (84 Ops. Cal. Atty. Gen. 117.)

P.C. § 18265: Minimum Term of Temporary Custody of Firearm:

(a) No firearm or other deadly weapon taken into custody pursuant to this division shall be held less than 48 hours (Italics added).

(b) Except as provided in Section 18400, if a firearm or other deadly weapon is not retained for use as evidence related to criminal charges brought as a result of the domestic violence incident or is not retained because it was illegally possessed, the firearm or other deadly weapon shall be made available to the owner or person who was in lawful possession 48 hours after the seizure, or as soon thereafter as possible, but no later than five business days after the owner or person who was in lawful possession demonstrates compliance with Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 (Italics added).

(c) In any civil action or proceeding for the return of any firearm, ammunition, or other deadly weapon seized by any state or local law enforcement agency and not returned within five business days after the initial seizure, except as provided in Section 18270, the court shall allow reasonable attorney’s fees to the prevailing party.

Note:

P.C. § 18400: Initiation of Petition to Prevent Return of Firearm; see infra.

P.C. §§ 33850 et seq.: Return of Firearms (See Part 2, above.)

P.C. § 18270: Return of Stolen Firearm from Temporary Custody; see infra.

Appellate Authority:

P.C. § 18270: Return of Stolen Firearm from Temporary Custody:

If a firearm or other deadly weapon has been stolen and has been taken into custody pursuant to this division, it shall be restored to the lawful owner upon satisfaction of all of the following conditions:

(a) Its use for evidence has been served.

(b) The owner identifies the firearm or other deadly weapon and provides proof of ownership.

(c) The law enforcement agency has complied with Chapter 2 (commencing with Section 33850) of Division 11 of Title 4.

Note:

P.C. §§ 33850 et seq.; Return of Firearms (See Part 2, above.)

Appellate Authority:

P.C. § 18275: Sale or Destruction of Firearm Taken into Temporary Custody after Designated Period of Time:

(a) Any firearm or other deadly weapon that has been taken into custody and held by any of the following law enforcement authorities for longer than 12 months, and has not been recovered by the owner or person who had lawful possession at the time it was taken into custody, shall be considered a nuisance and sold or destroyed as provided in subdivisions (a) and (b) of Section 18000 and subdivisions (a) and (b) of Section 18005:

(1) A police, university police, or sheriff’s department.

(2) A marshal’s office.

(3) A peace officer of the Department of the California Highway Patrol, as defined in subdivision (a) of Section 830.2.

(4) A peace officer of the Department of Parks and Recreation, as defined in subdivision (f) of Section 830.2.

(5) A peace officer, as defined in subdivision (d) of Section 830.31.

(6) A peace officer, as defined in Section 830.5.

(b) If a firearm or other deadly weapon is not recovered within 12 months due to an extended hearing process as provided in Section 18420, it is not subject to destruction until the court issues a decision, and then only if the court does not order the return of the firearm or other deadly weapon to the owner (Italics added).

Notes:

P.C. § 18000(a) & (b): Disposition of Weapon upon Conviction

P.C. § 18005(a) & (b): Sale or Destruction of Surrendered Weapon

P.C. § 830.31(d): A Housing Authority Patrol Officer

P.C. § 830.5: Parole, Probation, and Correctional Officers, and Correctional Counselors

P.C. § 18420: Second Hearing; Order of Return; see infra.

Appellate Authority:

P.C. § 18400: Initiation of Petition to Prevent Return of Firearm:

(a) When a law enforcement agency has reasonable cause to believe that the return of a firearm or other deadly weapon seized under this division would be likely to result in endangering the victim or the person who reported the assault or threat, the agency shall so advise the owner of the firearm or other deadly weapon, and within 60 days of the date of seizure, initiate a petition in superior court to determine if the firearm or other deadly weapon should be returned (Italics added).

(b) The law enforcement agency may make an ex parte application stating good cause for an order extending the time to file a petition.

(c) Including any extension of time granted in response to an ex parte request, a petition must be filed within 90 days of the date of seizure of the firearm or other deadly weapon (Italics added).

Appellate Authority:

P.C. § 18405: Notification of Owner of Petition Opposing Return of Firearm:

(a) If a petition is filed under Section 18400, the law enforcement agency shall inform the owner or person who had lawful possession of the firearm or other deadly weapon, at that person’s last known address, by registered mail, return receipt requested, that the person has 30 days from the date of receipt of the notice to respond to the court clerk to confirm the person’s desire for a hearing, and that the failure to respond shall result in a default order forfeiting the confiscated firearm or other deadly weapon (Italics added).

(b) For purposes of this section, the person’s last known address shall be presumed to be the address provided to the law enforcement officer by that person at the time of the domestic violence incident.

(c) In the event the person whose firearm or other deadly weapon was seized does not reside at the last address provided to the agency, the agency shall make a diligent, good faith effort to learn the whereabouts of the person and to comply with these notification requirements.

Note:

P.C. § 18400: Initiation of Petition to Prevent Return of Firearm; see supra.

Appellate Authority:

P.C. § 18410: Hearing on Return of Firearm:

(a) If the person who receives a petition under Section 18405 requests a hearing, the court clerk shall set a hearing no later than 30 days from receipt of that request (Italics added).

(b) The court clerk shall notify the person, the law enforcement agency involved, and the district attorney of the date, time, and place of the hearing.

(c) Unless it is shown by a preponderance of the evidence that the return of the firearm or other deadly weapon would result in endangering the victim or the person reporting the assault or threat, the court shall order the return of the firearm or other deadly weapon and shall award reasonable attorney’s fees to the prevailing party (Italics added).

Note:

P.C. § 18405: Notification of Owner of Petition Opposing Return of Firearm; see supra.

Appellate Authority:

P.C. § 18415: Order of Default:

If the person who receives a petition under Section 18405 does not request a hearing or does not otherwise respond within 30 days of the receipt of the notice, the law enforcement agency may file a petition for an order of default and may dispose of the firearm or other deadly weapon as provided in Sections 18000 and 18005 (Italics added).

Notes:

P.C. § 18405: Notification of Owner of Petition Opposing Return of Firearm; see supra.

P.C. § 18000: Disposition of Weapon upon Conviction

P.C. § 18005: Sale or Destruction of Surrendered Weapon

Appellate Authority:

P.C. § 18420: Second Hearing; Order of Return:

(a) If, at a hearing under Section 18410, the court does not order the return of the firearm or other deadly weapon to the owner or person who had lawful possession, that person may petition the court for a second hearing within 12 months from the date of the initial hearing (Italics added).

(b) If there is a petition for a second hearing, unless it is shown by clear and convincing evidence that the return of the firearm or other deadly weapon would result in endangering the victim or the person reporting the assault or threat, the court shall order the return of the firearm or other deadly weapon and shall award reasonable attorney’s fees to the prevailing party (Italics added).

(c) If the owner or person who had lawful possession does not petition the court within this 12-month period for a second hearing or is unsuccessful at the second hearing in gaining return of the firearm or other deadly weapon, the firearm or other deadly weapon may be disposed of as provided in Sections 18000 and 18005 (Italics added).

Notes:

P.C. § 18410: Hearing on Return of Firearm; see supra.

P.C. § 18000: Disposition of Weapon upon Conviction

P.C. § 18005: Sale or Destruction of Surrendered Weapon

Appellate Authority:

P.C. § 18500: Good Faith Exemption from Liability:

The law enforcement agency, or the individual law enforcement officer, shall not be liable for any act in the good faith exercise of this division.

Appellate Authority:

Note: See www.courts.ca.gov/documents/gv100info.pdf for the Court’s summary of the procedures.

Need for a Search Warrant:

The issue as to whether it is necessary to get a search warrant before conducting a non-consensual search of a patient’s home, business, or other area where, under the Fourth Amendment, warrants are commonly required, is as of yet undecided.

Note, however, that the Penal Code makes provisions for obtaining a search warrant in such circumstances. For example;

Provisions are made in the Penal Code (i.e., see P.C. § 1524(a)(10), (14), and (15)) for obtaining a search warrant to search for, and to seize, firearms and ammunition from a person described under theses statutes and who is uncooperative in voluntarily surrendering such items.

P.C. § 1524(a)(10): When the property or things to be seized include a firearm or other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person described in subdivision (a) of Section 8102 of the Welfare and Institutions Code.

P.C. § 1524(a)(14): “Beginning January 1, 2016, property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to P.C. §§ 18100 et seq. if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.”

P.C. § 1524(a)(15): “Beginning January 1, 2018, the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to P.C. §§ 29800 or 29805, and the court has made a finding pursuant to P.C. § 29810(c)(3) that the person has failed to relinquish the firearm as required by law.”

Note: P.C. § 29800 is the firearms prohibition that applies to convicted felons and narcotic drug addicts. P.C. § 29805 is the 10-year firearms prohibition for persons convicted of a specified misdemeanor.

Note: P.C. § 29810(c)(4), after making the necessary finding as noted in subd. (3), requires the court to issue an order for the search and removal of firearms upon a probable cause finding that the defendant has failed to relinquish firearms.

And note the decision in People v. Sweig (2008) 167 Cal.App.4th 1145, since depublished upon the California Supreme Court granting an appeal, and its subsequent dismissal as moot based upon enactment of P.C. § 1524(a)(1), above. Sweig held, however, that a search warrant was necessary to look for firearms in an W&I Code § 5150 patient’s home where consent was absent. The theory of Sweig should apply here as well.

See also P.C. § 1542.5: Seizure of a Restrained Person’s Firearms and Ammunition During the Execution of a Search Warrant:

(a) The law enforcement officer executing the warrant shall take custody of any firearm or ammunition that is in the restrained person’s custody, control, or possession, or that is owned by the restrained person, which is discovered pursuant to a consensual or other lawful search.

(b)

(1) If the location to be searched during the execution of the warrant is jointly occupied by the restrained person and one or more other persons and a law enforcement officer executing the warrant finds a firearm or ammunition in the restrained person’s custody or control or possession, but that is owned by a person other than the restrained person, the firearm or ammunition shall not be seized if both of the following conditions are satisfied:

(A) The firearm or ammunition is removed from the restrained person’s custody or control or possession and stored in a manner that the restrained person does not have access to or control of the firearm or ammunition.

(B) There is no evidence of unlawful possession of the firearm or ammunition by the owner of the firearm or ammunition.

(2) If the location to be searched during the execution of the warrant is jointly occupied by the restrained person and one or more other persons and a locked gun safe is located that is owned by a person other than the restrained person, the contents of the gun safe shall not be searched except in the owner’s presence, and with his or her consent or with a valid search warrant for the gun safe.

Felons and Designated Misdemeanants; Illegal Possession of a Firearm:

Pen. Code § 29805: Persons convicted of Specified Misdemeanor Owning, Purchasing, Receiving, or Possessing Firearm; Notification to DOJ:

(a) Except as provided in Section 29855, subdivision (a) of Section 29800, or subdivision (b), any person who has been convicted of, or has an outstanding warrant for, a misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of Section 148, subdivision (f) of Section 148.5, Section 171b, paragraph (1) of subdivision (a) of Section 171c, Section 171d, 186.28, 240, 241, 242, 243, 243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 422.6, 626.9, 646.9, 830.95, 17500, 17510, 25300, 25800, 30315, or 32625, subdivision (b) or (d) of Section 26100, or Section 27510, or Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any firearm-related offense pursuant to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, Section 487 if the property taken was a firearm, or of the conduct punished in subdivision (c) of Section 27590, and who, within 10 years of the conviction, or if the individual has an outstanding warrant, owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, 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.

(b) Any person who is convicted, on or after January 1, 2019, of a misdemeanor violation of Section 273.5, and who subsequently owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, 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.

(c) Except as provided in Section 29855, any person who is convicted on or after January 1, 2020, of a misdemeanor violation of Section 25100, 25135, or 25200, and who, within 10 years of the conviction owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, 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 fine and imprisonment.

(d) The court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this section. However, the prohibition in this section may be reduced, eliminated, or conditioned as provided in Section 29855 or 29860.

Notes:

P.C. § 29855: Person Employed as Peace Officer and Prohibited under Section 29805; Petition for Relief.

P.C. § 29860: Any Person subject to prohibition imposed by Section 29805; Petition for Relief.

Pen. Code § 29810: Relinquishment of Firearms Upon Conviction of a Felony and The Prohibited Persons Relinquishment Form:

(a)

(1) Upon conviction of any offense that renders a person subject to Section 29800 or Section 29805, the person shall relinquish all firearms he or she owns, possesses, or has under his or her custody or control in the manner provided in this section.

(2) The court shall, upon conviction of a defendant for an offense described in subdivision (a), instruct the defendant that he or she is prohibited from owning, purchasing, receiving, possessing, or having under his or her custody or control, any firearms, ammunition, and ammunition feeding devices, including but not limited to magazines, and shall order the defendant to relinquish all firearms in the manner provided in this section. The court shall also provide the defendant with a Prohibited Persons Relinquishment Form developed by the Department of Justice.

(3) Using the Prohibited Persons Relinquishment Form, the defendant shall name a designee and grant the designee power of attorney for the purpose of transferring or disposing of any firearms. The designee shall be either a local law enforcement agency or a consenting third party who is not prohibited from possessing firearms under state or federal law. The designee shall, within the time periods specified in subdivisions (d) and (e), surrender the firearms to the control of a local law enforcement agency, sell the firearms to a licensed firearms dealer, or transfer the firearms for storage to a firearms dealer pursuant to Section 29830.

(b) The Prohibited Persons Relinquishment Form shall do all of the following:

(1) Inform the defendant that he or she is prohibited from owning, purchasing, receiving, possessing, or having under his or her custody or control, any firearms, ammunition, and ammunition feeding devices, including but not limited to magazines, and that he or she shall relinquish all firearms through a designee within the time periods set forth in subdivision (d) or (e) by surrendering the firearms to the control of a local law enforcement agency, selling the firearms to a licensed firearms dealer, or transferring the firearms for storage to a firearms dealer pursuant to Section 29830.

(2) Inform the defendant that any cohabitant of the defendant who owns firearms must store those firearms in accordance with Section 25135.

(3) Require the defendant to declare any firearms that he or she owned, possessed, or had under his or her custody or control at the time of his or her conviction, and require the defendant to describe the firearms and provide all reasonably available information about the location of the firearms to enable a designee or law enforcement officials to locate the firearms.

(4) Require the defendant to name a designee, if the defendant declares that he or she owned, possessed, or had under his or her custody or control any firearms at the time of his or her conviction, and grant the designee power of attorney for the purpose of transferring or disposing of all firearms.

(5) Require the designee to indicate his or her consent to the designation and, except a designee that is a law enforcement agency, to declare under penalty of perjury that he or she is not prohibited from possessing any firearms under state or federal law.

(6) Require the designee to state the date each firearm was relinquished and the name of the party to whom it was relinquished, and to attach receipts from the law enforcement officer or licensed firearms dealer who took possession of the relinquished firearms.

(7) Inform the defendant and the designee of the obligation to submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer within the time periods specified in subdivisions (d) and (e).

(c)

(1) When a defendant is convicted of an offense described in subdivision (a), the court shall immediately assign the matter to a probation officer to investigate whether the Automated Firearms System or other credible information, such as a police report, reveals that the defendant owns, possesses, or has under his or her custody or control any firearms. The assigned probation officer shall receive the Prohibited Persons Relinquishment Form from the defendant or the defendant’s designee, as applicable, and ensure that the Automated Firearms System has been properly updated to indicate that the defendant has relinquished those firearms.

(2) Prior to final disposition or sentencing in the case, the assigned probation officer shall report to the court whether the defendant has properly complied with the requirements of this section by relinquishing all firearms identified by the probation officer's investigation or declared by the defendant on the Prohibited Persons Relinquishment Form, and by timely submitting a completed Prohibited Persons Relinquishment Form. The probation officer shall also report to the Department of Justice on a form to be developed by the department whether the Automated Firearms System has been updated to indicate which firearms have been relinquished by the defendant.

(3) Prior to final disposition or sentencing in the case, the court shall make findings concerning whether the probation officer's report indicates that the defendant has relinquished all firearms as required, and whether the court has received a completed Prohibited Persons Relinquishment Form, along with the receipts described in paragraph (1) of subdivision (d) or paragraph (1) of subdivision (e). The court shall ensure that these findings are included in the abstract of judgment. If necessary to avoid a delay in sentencing, the court may make and enter these findings within 14 days of sentencing.

(4) If the court finds probable cause that the defendant has failed to relinquish any firearms as required, the court shall order the search for and removal of any firearms at any location where the judge has probable cause to believe the defendant's firearms are located. The court shall state with specificity the reasons for and scope of the search and seizure authorized by the order.

(5) Failure by a defendant to timely file the completed Prohibited Persons Relinquishment Form with the assigned probation officer shall constitute an infraction punishable by a fine not exceeding one hundred dollars ($100).

(d) The following procedures shall apply to any defendant who is a prohibited person within the meaning of paragraph (1) of subdivision (a) who does not remain in custody at any time within the five-day period following conviction:

(1) The designee shall dispose of any firearms the defendant owns, possesses, or has under his or her custody or control within five days of the conviction by surrendering the firearms to the control of a local law enforcement agency, selling the firearms to a licensed firearms dealer, or transferring the firearms for storage to a firearms dealer pursuant to Section 29830, in accordance with the wishes of the defendant. Any proceeds from the sale of the firearms shall become the property of the defendant. The law enforcement officer or licensed dealer taking possession of any firearms pursuant to this subdivision shall issue a receipt to the designee describing the firearms and listing any serial number or other identification on the firearms at the time of surrender.

(2) If the defendant owns, possesses, or has under his or her custody or control any firearms to relinquish, the defendant's designee shall submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer within five days following the conviction, along with the receipts described in paragraph (1) of subdivision (d) showing the defendant’s firearms were surrendered to a local law enforcement agency or sold or transferred to a licensed firearms dealer.

(3) If the defendant does not own, possess, or have under his or her custody or control any firearms to relinquish, he or she shall, within five days following conviction, submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer, with a statement affirming that he or she has no firearms to be relinquished.

(e) The following procedures shall apply to any defendant who is a prohibited person within the meaning of paragraph (1) of subdivision (a) who is in custody at any point within the five-day period following conviction:

(1) The designee shall dispose of any firearms the defendant owns, possesses, or has under his or her custody or control within 14 days of the conviction by surrendering the firearms to the control of a local law enforcement agency, selling the firearms to a licensed firearms dealer, or transferring the firearms for storage to a firearms dealer pursuant to Section 29830, in accordance with the wishes of the defendant. Any proceeds from the sale of the firearms shall become the property of the defendant. The law enforcement officer or licensed dealer taking possession of any firearms pursuant to this subdivision shall issue a receipt to the designee describing the firearms and listing any serial number or other identification on the firearms at the time of surrender.

(2) If the defendant owns, possesses, or has under his or her custody or control any firearms to relinquish, the defendant's designee shall submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer, within 14 days following conviction, along with the receipts described in paragraph (1) of subdivision (e) showing the defendant's firearms were surrendered to a local law enforcement agency or sold or transferred to a licensed firearms dealer.

(3) If the defendant does not own, possess, or have under his or her custody or control any firearms to relinquish, he or she shall, within 14 days following conviction, submit the completed Prohibited Persons Relinquishment Form to the assigned probation officer, with a statement affirming that he or she has no firearms to be relinquished.

(4) If the defendant is released from custody during the 14 days following conviction and a designee has not yet taken temporary possession of each firearm to be relinquished as described above, the defendant shall, within five days following his or her release, relinquish each firearm required to be relinquished pursuant to paragraph (1) of subdivision (d).

(f) For good cause, the court may shorten or enlarge the time periods specified in subdivisions (d) and (e), enlarge the time period specified in paragraph (3) of subdivision (c), or allow an alternative method of relinquishment.

(g) The defendant shall not be subject to prosecution for unlawful possession of any firearms declared on the Prohibited Persons Relinquishment Form if the firearms are relinquished as required.

(h) Any firearms that would otherwise be subject to relinquishment by a defendant under this section, but which are lawfully owned by a cohabitant of the defendant, shall be exempt from relinquishment, provided the defendant is notified that the cohabitant must store the firearm in accordance with Section 25135.

(i) A law enforcement agency shall update the Automated Firearms System to reflect any firearms that were relinquished to the agency pursuant to this section. A law enforcement agency shall retain a firearm that was relinquished to the agency pursuant to this section for 30 days after the date the firearm was relinquished. After the 30-day period has expired, the firearm is subject to destruction, retention, sale or other transfer by the agency, except upon the certificate of a judge of a court of record, or of the district attorney of the county, that the retention of the firearm is necessary or proper to the ends of justice, or if the defendant provides written notice of an intent to appeal a conviction for an offense described in subdivision (a), or if the Automated Firearms System indicates that the firearm was reported lost or stolen by the lawful owner. If the firearm was reported lost or stolen, the firearm shall be restored to the lawful owner, as soon as its use as evidence has been served, upon the lawful owner's identification of the weapon and proof of ownership, and after the law enforcement agency has complied with Chapter 2 (commencing with Section 33850) of Division 11 of Title 4. The agency shall notify the Department of Justice of the disposition of relinquished firearms pursuant to Section 34010.

(j) A city, county, or city and county, or a state agency may adopt a regulation, ordinance, or resolution imposing a charge equal to its administrative costs relating to the seizure, impounding, storage, or release of a firearm pursuant to Section 33880.

(k) This section shall become operative on January 1, 2018.

Notes:

P.C. § 25135: Gun Security Rules for Gun Owner Living with a Person Prohibited From Owning a Firearm

P.C. §§ 33850 et seq: Return of Confiscated Firearms. (See Part 2, above.)

P.C. § 33880: Fee for Seizure, Impounding, Storage, or Release of Firearm or Ammunition.

P.C. § 34010: Notification of Retention or Destruction of a Firearm.

Appellate Authority:

The trial court had no authority to impose on defendant a $100 fine under Pen. Code, § 29810, for failing to complete a prohibited persons relinquishment form. The trial court essentially, on its own initiative, charged defendant with an infraction, conducted a trial, found him guilty, and imposed the $100 fine on him for violating P.C. § 29810; all in the presence of the district attorney. Yet, the district attorney did not charge or approve the charging of an infraction. Nothing in the Attorney General’s appellate briefs suggested that the trial court has the power to initiate proceedings at all, with or without the concurrence of the prosecutor, express or implied. The Court further noted that a fine may only be imposed in the presence of the accused. However, in this case, the trial court imposed the fine at a “nonappearance” hearing at which defendant was not present. (People v. Villatoro (2020) 44 Cal.App.5th 365.)

Part 4: Domestic Violence Restraining/Protective Orders and Firearms:

Code of Civil Procedure § 527.6: Temporary Restraining Order and Order after Hearing Prohibiting Harassment; Possession of Firearm or Ammunition by Person Subject to Protective Order:

(a)

(1) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.

(2) A minor, under 12 years of age, accompanied by a duly appointed and acting guardian ad litem, shall be permitted to appear in court without counsel for the limited purpose of requesting or opposing a request for a temporary restraining order or order after hearing, or both, under this section as provided in Section 374.

(b) For purposes of this section, the following terms have the following meanings:

(1) “Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of “course of conduct.”

(2) “Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for the person’s safety or the safety of the person’s immediate family, and that serves no legitimate purpose.

(3) “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.

(4) “Petitioner” means the person to be protected by the temporary restraining order and order after hearing and, if the court grants the petition, the protected person.

(5) “Respondent” means the person against whom the temporary restraining order and order after hearing are sought and, if the petition is granted, the restrained person.

(6) “Temporary restraining order” and “order after hearing” mean orders that include any of the following restraining orders, whether issued ex parte or after notice and hearing:

(A) An order enjoining a party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner. On a showing of good cause, in an order issued pursuant to this subparagraph in connection with an animal owned, possessed, leased, kept, or held by the petitioner, or residing in the residence or household of the petitioner, the court may do either or both of the following:

(i) Grant the petitioner exclusive care, possession, or control of the animal.

(ii) Order the respondent to stay away from the animal and refrain from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.

(B) An order enjoining a party from specified behavior that the court determines is necessary to effectuate orders described in subparagraph (A).

(7) “Unlawful violence” is any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but does not include lawful acts of self-defense or defense of others.

(c) In the discretion of the court, on a showing of good cause, a temporary restraining order or order after hearing issued under this section may include other named family or household members.

(d) Upon filing a petition for orders under this section, the petitioner may obtain a temporary restraining order in accordance with Section 527, except to the extent this section provides an inconsistent rule. The temporary restraining order may include any of the restraining orders described in paragraph (6) of subdivision (b). A temporary restraining order may be issued with or without notice, based on a declaration that, to the satisfaction of the court, shows reasonable proof of harassment of the petitioner by the respondent, and that great or irreparable harm would result to the petitioner.

(e) A request for the issuance of a temporary restraining order without notice under this section shall be granted or denied on the same day that the petition is submitted to the court. If the petition is filed too late in the day to permit effective review, the order shall be granted or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court.

(f) A temporary restraining order issued under this section shall remain in effect, at the court’s discretion, for a period not to exceed 21 days, or, if the court extends the time for hearing under subdivision (g), not to exceed 25 days, unless otherwise modified or terminated by the court.

(g) Within 21 days, or, if good cause appears to the court, 25 days from the date that a petition for a temporary order is granted or denied, a hearing shall be held on the petition. If a request for a temporary order is not made, the hearing shall be held within 21 days, or, if good cause appears to the court, 25 days, from the date that the petition is filed.

(h) The respondent may file a response that explains, excuses, justifies, or denies the alleged harassment, or may file a cross-petition under this section.

(i) At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment.

(j)

(1) In the discretion of the court, an order issued after notice and hearing under this section may have a duration of no more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. The order may be renewed, upon the request of a party, for a duration of no more than five additional years, without a showing of any further harassment since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. A request for renewal may be brought any time within the three months before the order expires.

(2) The failure to state the expiration date on the face of the form creates an order with a duration of three years from the date of issuance.

(3) If an action is filed for the purpose of terminating or modifying a protective order before the expiration date specified in the order by a party other than the protected party, the party who is protected by the order shall be given notice, pursuant to subdivision (b) of Section 1005, of the proceeding by personal service or, if the protected party has satisfied the requirements of Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code, by service on the Secretary of State. If the party who is protected by the order cannot be notified before the hearing for modification or termination of the protective order, the court shall deny the motion to modify or terminate the order without prejudice or continue the hearing until the party who is protected can be properly noticed and may, upon a showing of good cause, specify another method for service of process that is reasonably designed to afford actual notice to the protected party. The protected party may waive the protected party’s right to notice if the protected party is physically present in court and does not challenge the sufficiency of the notice.

(k) This section does not preclude either party from representation by private counsel or from appearing on the party’s own behalf.

(l) In a proceeding under this section, if there are allegations of unlawful violence or credible threats of violence, a support person may accompany a party in court and, if the party is not represented by an attorney, may sit with the party at the table that is generally reserved for the party and the party’s attorney. The support person is present to provide moral and emotional support for a person who alleges they are a victim of violence. The support person is not present as a legal adviser and may not provide legal advice. The support person may assist the person who alleges they are a victim of violence in feeling more confident that they will not be injured or threatened by the other party during the proceedings if the person who alleges the person is a victim of violence and the other party are required to be present in close proximity. This subdivision does not preclude the court from exercising its discretion to remove the support person from the courtroom if the court believes the support person is prompting, swaying, or influencing the party assisted by the support person.

(m) Upon the filing of a petition under this section, the respondent shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing of the petition. Service shall be made at least five days before the hearing. The court may for good cause, on motion of the petitioner or on its own motion, shorten the time for service on the respondent.

(n) A notice of hearing under this section shall notify the respondent that if the respondent does not attend the hearing, the court may make orders against the respondent that could last up to five years.

(o) The respondent shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition.

(p)

(1) Either party may request a continuance of the hearing, which the court shall grant on a showing of good cause. The request may be made in writing before or at the hearing, or orally at the hearing. The court may also grant a continuance on its own motion.

(2) If the court grants a continuance, any temporary restraining order that has been granted shall remain in effect until the end of the continued hearing, unless otherwise ordered by the court. In granting a continuance, the court may modify or terminate a temporary restraining order.

(q)

(1) If a respondent named in a restraining order issued after a hearing has not been served personally with the order but has received actual notice of the existence and substance of the order through personal appearance in court to hear the terms of the order from the court, additional proof of service is not required for enforcement of the order.

(2) If the respondent named in a temporary restraining order is personally served with the order and notice of hearing with respect to a restraining order or protective order based on the temporary restraining order, but the respondent does not appear at the hearing, either personally or by an attorney, and the terms and conditions of the restraining order or protective order issued at the hearing are identical to the temporary restraining order, except for the duration of the order, the restraining order or protective order issued at the hearing may be served on the respondent by first-class mail sent to the respondent at the most current address for the respondent available to the court.

(3) The Judicial Council form for temporary orders issued pursuant to this subdivision shall contain a statement in substantially the following form:

“If you have been personally served with this temporary restraining order and notice of hearing, but you do not appear at the hearing either in person or by a lawyer, and a restraining order that is the same as this temporary restraining order except for the expiration date is issued at the hearing, a copy of the restraining order will be served on you by mail at the following address:

If that address is not correct or you wish to verify that the temporary restraining order was converted to a restraining order at the hearing without substantive change and to find out the duration of that order, contact the clerk of the court.”

(4) If information about a minor has been made confidential pursuant to subdivision (v), the notice shall identify the information, specifically, that has been made confidential and shall include a statement that disclosure or misuse of that information is punishable as a contempt of court.

(r)

(1) Information on a temporary restraining order or order after hearing relating to civil harassment issued by a court pursuant to this section shall be transmitted to the Department of Justice in accordance with either paragraph (2) or (3).

(2) The court shall order the petitioner or the attorney for the petitioner to deliver a copy of an order issued under this section, or reissuance, extension, modification, or termination of the order, and any subsequent proof of service, by the close of the business day on which the order, reissuance, extension, modification, or termination was made, to a law enforcement agency having jurisdiction over the residence of the petitioner and to any additional law enforcement agencies within the court’s discretion as are requested by the petitioner.

(3) Alternatively, the court or its designee shall transmit, within one business day, to law enforcement personnel all information required under subdivision (b) of Section 6380 of the Family Code regarding any order issued under this section, or a reissuance, extension, modification, or termination of the order, and any subsequent proof of service, by either one of the following methods:

(A) Transmitting a physical copy of the order or proof of service to a local law enforcement agency authorized by the Department of Justice to enter orders into the California Law Enforcement Telecommunications System (CLETS).

(B) With the approval of the Department of Justice, entering the order or proof of service into CLETS directly.

(4) Each appropriate law enforcement agency shall make available information as to the existence and current status of orders issued under this section to law enforcement officers responding to the scene of reported harassment.

(5) An order issued under this section shall, on request of the petitioner, be served on the respondent, whether or not the respondent has been taken into custody, by any law enforcement officer who is present at the scene of reported harassment involving the parties to the proceeding. The petitioner shall provide the officer with an endorsed copy of the order and a proof of service that the officer shall complete and send to the issuing court.

(6) Upon receiving information at the scene of an incident of harassment that a protective order has been issued under this section, or that a person who has been taken into custody is the subject of an order, if the protected person cannot produce a certified copy of the order, a law enforcement officer shall immediately attempt to verify the existence of the order.

(7) If the law enforcement officer determines that a protective order has been issued but not served, the officer shall immediately notify the respondent of the terms of the order and shall at that time also enforce the order. Verbal notice of the terms of the order shall constitute service of the order and is sufficient notice for purposes of this section and for purposes of Section 29825 of the Penal Code. (See below) Verbal notice shall include the information required pursuant to paragraph (4) of subdivision (q).

(s) The prevailing party in an action brought pursuant to this section may be awarded court costs and attorney’s fees, if any.

(t) Willful disobedience of a temporary restraining order or order after hearing granted pursuant to this section is punishable pursuant to Section 273.6 of the Penal Code.

(u)

(1) A person subject to a protective order issued pursuant to this section shall not own, possess, purchase, receive, or attempt to purchase or receive a firearm or ammunition while the protective order is in effect.

(2) The court shall order a person subject to a protective order issued pursuant to this section to relinquish any firearms the person owns or possesses pursuant to Section 527.9.

(3) A person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm or ammunition while the protective order is in effect is punishable pursuant to Section 29825 of the Penal Code. (See below)

(v)

(1) A minor or the minor’s legal guardian may petition the court to have information regarding the minor that was obtained in connection with a request for a protective order pursuant to this section, including, but not limited to, the minor’s name, address, and the circumstances surrounding the request for a protective order with respect to that minor, be kept confidential.

(2) The court may order the information specified in paragraph (1) be kept confidential if the court expressly finds all of the following:

(A) The minor’s right to privacy overcomes the right of public access to the information.

(B) There is a substantial probability that the minor’s interest will be prejudiced if the information is not kept confidential.

(C) The order to keep the information confidential is narrowly tailored.

(D) No less restrictive means exist to protect the minor’s privacy.

(3)

(A) If the request is granted, except as provided in paragraph (4), information regarding the minor shall be maintained in a confidential case file and shall not become part of the public file in the proceeding or any other civil proceeding involving the parties. Except as provided in subparagraph (B), if the court determines that disclosure of confidential information has been made without a court order, the court may impose a sanction of up to one thousand dollars ($1,000). A minor who has alleged harassment, as defined in subdivision (b), shall not be sanctioned for disclosure of the confidential information. If the court imposes a sanction, the court shall first determine whether the person has or is reasonably likely to have the ability to pay.

(B) Confidential information may be disclosed without a court order only in the following circumstances:

(i) By the minor’s legal guardian who petitioned to keep the information confidential pursuant to this subdivision or the protected party in an order pursuant to this division, provided that the disclosure is necessary to prevent harassment or is in the minor’s best interest. A legal guardian or a protected party who makes a disclosure under this clause is subject to the sanction in subparagraph (A) only if the disclosure was malicious.

(ii) By a person to whom confidential information is disclosed, provided that the disclosure is necessary to prevent harassment or is in the best interest of the minor, no more information than necessary is disclosed, and a delay would be caused by first obtaining a court order to authorize the disclosure of the information. A person who makes a disclosure pursuant to this clause is subject to the sanction in subparagraph (A) if the person discloses the information in a manner that recklessly or maliciously disregards these requirements.

(4)

(A) Confidential information shall be made available to both of the following:

(i) Law enforcement pursuant to subdivision (r), to the extent necessary and only for the purpose of enforcing the order.

(ii) The respondent to allow the respondent to comply with the order for confidentiality and to allow the respondent to comply with and respond to the protective order. A notice shall be provided to the respondent that identifies the specific information that has been made confidential and shall include a statement that disclosure is punishable by a monetary fine.

(B) At any time, the court on its own may authorize a disclosure of any portion of the confidential information to certain individuals or entities as necessary to prevent harassment, as defined under subdivision (b), including implementation of the protective order, or if it is in the best interest of the minor.

(C) The court may authorize a disclosure of any portion of the confidential information to any person that files a petition if necessary to prevent harassment, as defined under subdivision (b), or if it is in the best interest of the minor. The party who petitioned the court to keep the information confidential pursuant to this subdivision shall be served personally or by first-class mail with a copy of the petition and afforded an opportunity to object to the disclosure.

(w) This section does not apply to any action or proceeding covered by Title 1.6C (commencing with Section 1788) of Part 4 of Division 3 of the Civil Code or by Division 10 (commencing with Section 6200) of the Family Code. This section does not preclude a petitioner from using other existing civil remedies.

(x)

(1) The Judicial Council shall develop forms, instructions, and rules relating to matters governed by this section. The petition and response forms shall be simple and concise, and their use by parties in actions brought pursuant to this section is mandatory.

(2) A temporary restraining order or order after hearing relating to civil harassment issued by a court pursuant to this section shall be issued on forms adopted by the Judicial Council and that have been approved by the Department of Justice pursuant to subdivision (i) of Section 6380 of the Family Code. However, the fact that an order issued by a court pursuant to this section was not issued on forms adopted by the Judicial Council and approved by the Department of Justice shall not, in and of itself, make the order unenforceable.

(y) There is no filing fee for a petition that alleges that a person has inflicted or threatened violence against the petitioner, stalked the petitioner, or acted or spoken in any other manner that has placed the petitioner in reasonable fear of violence, and that seeks a protective or restraining order restraining stalking, future violence, or threats of violence, in an action brought pursuant to this section. A fee shall not be paid for a subpoena filed in connection with a petition alleging these acts. A fee shall not be paid for filing a response to a petition alleging these acts.

(z)

(1) Subject to paragraph (4) of subdivision (b) of Section 6103.2 of the Government Code, there shall not be a fee for the service of process by a sheriff or marshal of a protective or restraining order to be issued, if either of the following conditions apply:

(A) The protective or restraining order issued pursuant to this section is based upon stalking, as prohibited by Section 646.9 of the Penal Code.

(B) The protective or restraining order issued pursuant to this section is based upon unlawful violence or a credible threat of violence.

(2) The Judicial Council shall prepare and develop forms for persons who wish to avail themselves of the services described in this subdivision.

Pen. Code § 29825: Person Prohibited from Purchasing or Receiving Firearm by a Temporary Restraining Order, Injunction, Protective Order:

(a) A person who purchases or receives, or attempts to purchase or receive, a firearm knowing that the person is prohibited from doing so in any jurisdiction by a temporary restraining order or injunction issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of this code, a protective order issued pursuant to Section 15657.03 of the Welfare and Institutions Code, or by a valid order issued by an out-of-state jurisdiction that is similar or equivalent to a temporary restraining order, injunction, or protective order specified in this subdivision, that includes a prohibition from owning or possessing a firearm, is guilty of a public offense, 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.

(b) A person who owns or possesses a firearm knowing that the person is prohibited from doing so in any jurisdiction by a temporary restraining order or injunction issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of this code, a protective order issued pursuant to Section 15657.03 of the Welfare and Institutions Code, or by a valid order issued by an out-of-state jurisdiction that is similar or equivalent to a temporary restraining order, injunction, or protective order specified in this subdivision, that includes a prohibition from owning or possessing a firearm, is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.

(c) If probation is granted upon conviction of a violation of this section, the court shall impose probation consistent with Section 1203.097.

(d) The Judicial Council shall 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. The order shall also state that a firearm owned or possessed by the person shall be relinquished to the local law enforcement agency for that jurisdiction, sold to a licensed firearms dealer, or transferred to a licensed firearms dealer pursuant to Section 29830 for the duration of the period that the protective order is in effect, and that proof of surrender or sale shall be filed within a specified time of receipt of the order. The order shall state the penalties for a violation of the prohibition. The order shall also state on its face the expiration date for relinquishment.

Code of Civil Proc. § 527.9: Relinquishment of Firearms by Person Subject to a Temporary Restraining Order or Injunction:

(a) A person subject to a temporary restraining order or injunction issued pursuant to Section 527.6, 527.8, or 527.85 or subject to a restraining order issued pursuant to Section 136.2 of the Penal Code, or Section 15657.03 of the Welfare and Institutions Code, shall relinquish the firearm pursuant to this section.

(b) Upon the issuance of a protective order against a person pursuant to subdivision (a), the court shall order that person to relinquish 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, either by surrendering the firearm to the control of local law enforcement officials, or by selling the firearm to a licensed gun dealer, as specified in Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2 of Division 6 of Title 4 of Part 6 of the Penal Code. 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 48 hours after receiving the order. In the event that it is necessary to continue the date of any hearing due to a request for a relinquishment order pursuant to this section, the court shall ensure that all applicable protective orders described in Section 6218 of the Family Code remain in effect or bifurcate the issues and grant the permanent restraining order pending the date of the hearing.

(c) A local law enforcement agency may charge the person subject to the order or injunction a fee for the storage of any firearm relinquished pursuant to this section. The 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 26700 of the Penal Code or to the person relinquishing the firearm.

(d) The restraining order requiring a person to relinquish a firearm pursuant to subdivision (b) 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.

(e) The restraining order requiring a person to relinquish a firearm pursuant to subdivision (b) 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 Chapter 2 (commencing with Section 29800) and Chapter 3 (commencing with Section 29900) of Division 9 of Title 4 of Part 6 of the Penal Code and Sections 8100 and 8103 of the Welfare and Institutions Code, or (3) another successive restraining order is issued 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 26700 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.

(f) 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.

(g) 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.

Pen. Code § 136.2: Firearms Possession by Persons Subject to a Domestic Violence Restraining Order:

(a)(1)(G)(ii)(I): If a court does not issue an order pursuant to clause (i) (i.e., an order protecting a victim or witness of violent crime from all contact by the defendant) in a case in which the defendant is charged with a crime involving domestic violence as defined in Section 13700 of this code or in Section 6211 of the Family Code, the court, on its own motion, shall consider issuing a protective order upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, that provides as follows:

(ia) The defendant shall not own, possess, purchase, receive, or attempt to purchase or receive, a firearm while the protective order is in effect.

(ib) The defendant shall relinquish ownership or possession of any firearms, pursuant to Section 527.9 of the Code of Civil Procedure.

(1)(G)(ii)(II): Every person who owns, possesses, purchases, or receives, or attempts to purchase or receive, a firearm while this protective order is in effect is punishable pursuant to Section 29825.

(d):

(1) A person subject to a protective order issued under this section shall not own, possess, purchase, or receive, or attempt to purchase or receive, a firearm while the protective order is in effect.

(2) The court shall order a person subject to a protective order issued under this section to relinquish ownership or possession of any firearms, pursuant to Section 527.9 of the Code of Civil Procedure.

(3) A 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 Section 29825.

P.C. § 29825 provides for 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.

Appellate Authority; General:

Connecticut’s red flag statutes were held not to violate the Second Amendment (right to bear arms) because “(they do) not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes.” (Hope v. State (2016) 133 A.3rd 519.)

An Indiana appellate court rejected a Second Amendment challenge to its red flag laws, concluding that the law neither violates the rights of its residents to maintain and to bear arms nor does it constitute an unconstitutional taking. (Redington v. State (Ind. Ct. App. 2013) 992 N.E.2nd 823.)

Note: As of the current date, there are no known pending appellate court cases in the State of California challenging the legality of California’s red flag statutes.

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