Red Flag Statutes
Gun Violence Restraining Orders
R.C. Phillips
March, 2021
P.C. § 18100: Purpose of the 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.
(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. § 18109: Limitation on Interpretation:
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.
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 was present in court to be informed of the contents of the order or if the person failed to appear. 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 his or her 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.
P.C. § 18120: Effect of Order; Surrender of Firearms and Ammunition:
(a) A person subject to a gun violence restraining order issued pursuant to this division shall not have in his or her 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 he or she 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 him or her 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.
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
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).
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, but not later than three court days, 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:
(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 his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition (Italics added).
(2) For purposes of this subdivision, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4 (Italics added).
(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 (Italics added):
(1) The subject of the petition poses a significant danger, in the near future, 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 as determined by considering the factors listed in Section 18155 (Italics added).
(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.
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.
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:
(a) An ex parte gun violence restraining order issued under this chapter shall include all of the following (Italics added):
(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 he or she has any firearm, ammunition, or magazine in his or her possession or under his or her custody or control.
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).
Notes:
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
(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 his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition for a period of one year (Italics added).
(b) For purposes of this subdivision, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.
Note:
P.C. § 422.4(b)(3): Definition of “Immediate Family”
P.C. § 18175; Evidence; Grounds for Issuance; Burden of Proof; Effect of issuance or Denial of Order; Duration of Order:
(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 shall have the burden of proving, by clear and convincing evidence, that both of the following are true (Italics added):
(1) The subject of the petition, or a person subject to an ex parte gun violence restraining order, as applicable, poses a significant 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 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 his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition.
(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 (Italics added).
(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.
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.
P.C. § 18180: Contents of Order; Form to Request Hearing to Terminate Order:
(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 (Italics added).
(b) When the court issues a gun violence restraining order under this chapter, the court shall inform the restrained person that he or she 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.
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:
(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 (Italics added).
(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.
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:
(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 (Italics added).
(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 (Emphasis added).
(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.
Notes:
P.C, § 422.4(b)(3): Definition of “Immediate Family”
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:
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 (Italics added).
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:
(a) Every person who owns or possesses a firearm or ammunition with knowledge that they are 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), a gun violence restraining order issued after notice and a hearing issued pursuant to Chapter 4 (commencing with Section 18170), or by a valid order issued by an out-of-state jurisdiction that is similar or equivalent to a gun violence restraining order described in this division, is guilty of a misdemeanor and shall be prohibited from having custody or control of, 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.
(b) For purposes of this section, a valid order issued by an out-of-state jurisdiction that is similar or equivalent to a gun violence restraining order described in this section must be issued upon a showing by clear and convincing evidence that the person poses a significant danger of causing personal injury to themselves or another because of owning or possessing a firearm or ammunition.
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
P.C. § 18270: Return of Stolen Firearm from Temporary Custody; see infra.
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. § 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
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. § 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:
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. § 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:
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. § 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:
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. § 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:
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. § 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:
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. § 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:
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. § 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:
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.)
Miscellaneous Firearms Statutes:
P.C. § 29800: Convicted Felons Prohibited From Owning, Purchasing, Receiving, or Possessing a Firearm:
(a)
(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515 (see below), or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
(2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
(3) Any person who has an outstanding warrant for any offense listed in this subdivision and who has knowledge of the outstanding warrant, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
(b) Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 23515 (see below), when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in possession or under custody or control any firearm is guilty of a felony.
(c) Subdivision (a) shall not apply to a conviction or warrant for a felony under the laws of the United States unless either of the following criteria, as applicable, is satisfied:
(1) Conviction of a like offense under California law can only result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments.
Note: P.C. § 23515 reads in pertinent part:
An offense that involves the violent use of a firearm includes any of the following:
(a) A violation of paragraph (2) or (3) of subdivision (a) of Section 245 or a violation of subdivision (d) of Section 245.
(b) A violation of Section 246.
(c) A violation of paragraph (2) of subdivision (a) of Section 417.
(d) A violation of subdivision (c) of Section 417.
P.C. § 29805: Persons Convicted of Specified Misdemeanors Prohibited from Purchasing, Receiving, Owning or Possessing Firearms:
(a)
(1) Except as provided in Section 29855, subdivision (a) of Section 29800, or subdivision (b), any person who has been convicted of 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, 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.
(2) Any person who has an outstanding warrant for any misdemeanor offense described in this subdivision, and who has knowledge of the outstanding warrant, and who 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.
P.C. § 29815: Persons with Probation Condition Prohibited From Owning, Possessing, Controlling, or Receiving a Firearm:
(a) Any person who, as an express condition of probation, is prohibited or restricted from owning, possessing, controlling, receiving, or purchasing a firearm and who owns, purchases, receives, or has in possession or under custody or control, any firearm, but who is not subject to Section 29805 or subdivision (a) of Section 29800, is guilty of a public offense, which shall be 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) The court, on forms provided by the Department of Justice, shall notify the department of persons subject to this section. The notice shall include a copy of the order of probation and a copy of any minute order or abstract reflecting the order and conditions of probation.
Notes:
P.C. § 29800: Felon in Possession of a Firearm
P.C. § 29805: Misdemeanants in Possession of a Firearm.
Appellate Authority:
Because Pen. Code § 29815 did not require that a firearms restriction probation condition be imposed by a court but required only that a probationer be bound by an express condition, the imposition of a firearms restriction condition in Pennsylvania was established by showing that defendant agreed to the restriction by signing forms provided by a probation officer, without need to present any evidence that the Pennsylvania court ordered the condition, Because the prosecution proved that defendant had agreed to an express condition of probation specifically restricting possession of firearms and defendant was found in possession of guns in California while subject to the probation condition, substantial evidence supported the jury’s finding that defendant was found in possession of firearms in violation of an express condition of defendant’s probation. (People v. Burgess (Feb. 11, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 124].)
Search Warrants: Grounds for Issuance of a Search Warrant:
Pen. Code § 1524(a)(10): “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).”
Pen. Code § 1524(a)(14): “When the 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 possess, 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 serviced with that order, and the person has failed to relinquish the firearm as required by law.”
See Pen. Code § 1542.5: Seizure of a Restrained Person’s Firearms During the Execution of a Search Warrant: Notwithstanding any other law, with regards to a search warrant issued upon the grounds specified in paragraph (14) of subdivision (a) of Section 1524, the following shall apply:
Subd. (a) The law enforcement officer executing the warrant shall take custody of any firearm or ammunition that is in the restrained person’s custody or control or possession or that is owned by the restrained person, which is discovered pursuant to a consensual or other lawful search.
Subd. (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.
Pen. Code § 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: Pen. Code § 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: Pen. Code § 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.
