Background; Statement of Policy. | |
Gun Violence Restraining Orders. | |
Undertaking for the General Welfare. | |
Severability. |
(a) California Penal Code section 18100 et seq. allows local law enforcement agencies to use Gun Violence Restraining Orders (“GVRO”) as a tool for prohibiting and enjoining an individual from having custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition when that individual poses an immediate and present danger of causing personal injury to self or others. Assembly Bill No. 12 (AB 12) and Assembly Bill No. 61 (AB 61), each approved by the Governor on October 11, 2019, expanded the circumstances, procedures, and scope under California law for the issuance of GVROs. Both AB 12 and AB 61 are operative on September 1, 2020. Assembly Bill No. 2617 (AB 2617), approved by the Governor on September 29, 2020, amended California Penal Code sections 18140 and 18205 to strengthen procedural requirements applicable to peace officers and expand applicable California Penal Code provisions to persons who are subject to certain gun violence restraining orders issued by an out-of-state jurisdiction. AB 2617 is operative on January 1, 2021.
(b) There are three types of GVROs available in California:
(b) There are three types of GVROs available in California:
(1) the temporary emergency protective order, available to peace officers where there is reasonable cause to believe the subject of the GVRO poses an immediate and present danger of causing personal injury to self or others;
(2) the temporary ex parte GVRO, available to peace officers, family members, and other authorized persons, where there is a showing of a substantial likelihood that the individual who is the subject of the GVRO poses a significant danger of causing personal injury to self or others; and
(3) the one-to-five-years ban, available to law enforcement, family members, and other authorized persons, which may be imposed after notice and a hearing where there is a finding by clear and convincing evidence that the individual who is the subject of the GVRO poses a significant danger of personal injury to self or others.
All three types of GVROs require a finding that the GVRO is necessary to prevent personal injury to self or others because less restrictive alternatives either have been tried and found to be ineffective, or have been determined inadequate or inappropriate for the circumstances. AB 2617 expanded the applicable California Penal Code section to persons who are subject to certain gun violence restraining orders issued by an out-of-state jurisdiction.
The foregoing description in this subsection (b) of the three types of GVROs reflects California law as amended by AB 12, AB 61, and AB 2617.
(c) It is the policy of the City to use GVROs in circumstances where there is a nexus between the use or threat of use of a firearm or ammunition by the individual who is the subject of the GVRO and the danger presented to self or others, and the GVRO is necessary to prevent an injury to self or others. This tool is not intended to be used in circumstances where there would be no value in obtaining a GVRO, such as when an individual is already prohibited from obtaining or having access to a firearm, for the same period of time, or more, that a GVRO could be in effect.
(a) Temporary Emergency Protective Orders. The Police Department (“SFPD”) shall seek to obtain a temporary emergency protective order when one or more officers are on the scene of an incident and there is reasonable cause to believe that: (1) the subject of the prospective GVRO poses an immediate and present danger of causing personal injury to self or others by having custody or control, owning, purchasing, possessing, receiving, or attempting to purchase or receive, a firearm or ammunition; and (2) the GVRO is necessary to prevent personal injury to self or others 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. The SFPD officer who requests a temporary emergency gun violence restraining order shall:
(1) 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.
(2) Serve the order on the restrained person, if the restrained person can reasonably be located.
(3) File a copy of the order with the court as soon as practicable, but not later than three court days, after issuance.
(4) Have the order entered into the computer database system for protective and restraining orders maintained by the Department of Justice.
(b) Temporary Ex Parte GVROs. In coordination with the City Attorney’s Office, SFPD shall seek to obtain a temporary ex parte GVRO when one or more officers believe that: (1) there a substantial likelihood that the individual who is the subject of the GVRO poses a significant danger, in the near future, of causing personal injury to self or others by having custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition as determined by considering the factors listed in California Penal Code 18155; and (2) the GVRO is necessary to prevent injury to self or others 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.
(c) One-to-Five-Years Bans. In coordination with the City Attorney’s Office, SFPD shall seek to obtain a court order for one-to-five years, when there is a finding by clear and convincing evidence that: (1) the subject of the GVRO poses a significant danger of causing personal injury to self or others by having custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition; and (2) A GVRO is necessary to prevent personal injury to self or others 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. In coordination with the City Attorney’s Office, SFPD shall re-examine every such court order at least two months prior to its expiration to determine whether re-petitioning the court to extend the ban is warranted.
(d) Subsections (a)-(c) shall be implemented in a manner that is consistent with California law. Accordingly, before September 1, 2020 (i.e., before the provisions of AB 12 and AB 61 are operative), subsections (a)-(c) are operative only to the extent permitted by California law before September 1, 2020. As of September 1, 2020, subsections (a)-(c) are fully operative.
(e) California Penal Code section 18205 makes “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.” A valid GVRO issued by an out-of-state jurisdiction that is similar or equivalent to a gun violence restraining order as specified in Cal. Penal Code section 18205 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.
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