Firearm restrictions for Domestic Violence Misdemeanors
Under federal law, people who have been convicted of certain domestic violence misdemeanors are generally prohibited from acquiring or possessing firearms for life. California law is somewhat narrower: state law generally prohibits people from acquiring or possessing firearms for 10 years after they have been convicted of a violent misdemeanor, such as assault, battery, or stalking, regardless of the victim’s relationship to the offender.1
Under legislation passed in 2018, California also generally imposes a lifetime firearm prohibition on anyone convicted on or after January 1, 2019, of willfully inflicting corporal injury resulting in a traumatic condition against a current or former spouse, cohabitant, or dating partner, or against the mother or father of the offender’s child.2
California law also authorizes courts to prohibit defendants from purchasing or possessing firearms in cases where the defendant has been charged with, but not yet convicted of, a domestic violence misdemeanor.3
FIREARM RESTRICTIONS FOR Domestic Violence Protective Orders
Under California law, a person subject to any one of the following types of court orders is prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive a firearm or ammunition until the order is no longer in effect:4
- A temporary restraining order or injunction issued to a victim of harassment; aka a “civil harassment order”5
- A temporary restraining order or injunction issued to an employer on behalf of an employee; aka “workplace violence restraining order”6
- A temporary restraining order or injunction issued to a postsecondary educational institution on behalf of a student; aka “private postsecondary school violence restraining order”7
- A domestic violence restraining order whether issued as an emergency order (EPO-001), ex parte, after notice and hearing, or in a judgment;8
- A protective order for an elderly or dependent adult who has suffered abuse, whether the order was issued ex parte, after notice and hearing, or in a judgment, provided that the case does not involve solely financial abuse;9
- An emergency protective order related to stalking;10 or
- A protective order relating to a crime of domestic violence or the intimidation or dissuasion of victim or witness.11
Under California law, individuals may seek a domestic violence protective order, prohibiting the purchase or possession of firearms, against:
- A spouse or former spouse;
- A former or current dating partner;
- Any person who is presently or has in the past resided with the individual; or
- Any family member, even if the respondent has never resided with the individual.12
Prior to a hearing on the issuance or denial of a restraining order, the court must ensure that a records search is conducted to determine if the subject of the proposed order is believed to possess a firearm.13 Each order must state that the person is prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive, a firearm while the protective order is in effect,14 and to provide information regarding the process for the respondent to relinquish their firearms and show proof that relinquishment occurred.15
Relinquishment of Firearms by People Subject to Protective Orders
SB 320: Domestic Violence & Guns in CA Family & Juvenile Dependency Court Factsheet
Upon being served with a domestic violence protective order in California, the respondent must relinquish his or her firearm by surrendering it immediately upon request of any law enforcement officer, or within 24 hours if no request is made. This form from the Judicial Council provides instructions on relinquishing firearms for DV respondents.18 This same 24-hour rule and procedure also applies for all other protective orders listed above except those related to stalking.
The law enforcement officer or gun dealer must issue a receipt, which the person must file with both the court and with the law enforcement agency that served the protective order, within 48 hours of being served with the order (failure to do so constitutes a violation of the protective order).19 During the period of the relinquishment order, a respondent is entitled to make one sale of all firearms that have been surrendered to a law enforcement agency.20
The application forms for domestic violence protective orders adopted by the Judicial Council and approved by the California Department of Justice require the petitioner to describe the number, types, and locations of any firearms presently known by the petitioner to be possessed or controlled by the respondent.21 Two California rules of court set up processes which ensure that firearms are relinquished in domestic violence protective order cases by requiring review hearings to determine whether the respondent has complied with relinquishment requirements, if there is reason to believe that the respondent owns guns.22 Additionally, not surrendering a firearm or abiding by the terms of the order in a civil domestic violence case can, under Rule 5.495, be considered by the court in making child custody and visitation orders and have significant consequences with respect to the rebuttable presumption under Family Code section 3044. Effective January 1, 2022, these rules of court will be codified in statute pursuant to legislation enacted in 2021.23
California law authorizes the issuance of a search warrant when the property to be seized is a firearm that a person who is subject to a protective order has failed to relinquish as required by law.24 A search warrant may also be issued when the property to be seized is a firearm at the scene of, or at premises occupied or under the control of a person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault.25
A person subject to a protective order related to stalking must relinquish his or her firearms to the local law enforcement agency for that jurisdiction, or sell those firearms to a licensed gun dealer within a time period specified in the order.26 The protective order must include a description of this requirement including the expiration date for relinquishment. Proof of surrender or sale of a firearm must be filed with the court within the specified time.27
Relinquishment of Firearms by Individuals Convicted of Domestic Violence Crimes
Proposition 63, passed by California voters in November 2016, requires defendants convicted of all firearm-prohibiting crimes, including domestic violence offenses, to provide proof that they sold or transferred their firearms within specified timeframes after conviction. It also requires assigned probation officers and courts to verify that the defendant complied with this requirement before final disposition of the defendant’s case and authorizes the court to issue search warrants to recover illegally retained firearms from defendants who fail to comply. For more information about these procedures, see the Firearm Relinquishment in California section.
Removal of Firearms and Incident Reporting by Law Enforcement
Every California law enforcement agency must establish a system for recording all domestic violence-related calls, and must include a written incident report for each call noting, among other things, whether a weapon was involved.28 Any deadly weapon discovered by an officer at the scene of a domestic violence incident is subject to confiscation.29 Law enforcement officers of any state or local agency who are at the scene of a domestic violence incident involving a threat to human life or a physical assault must take temporary custody of any firearm in plain sight or discovered pursuant to a consensual or other lawful search for the protection of the officers or other persons present.30
Confiscated firearms must be held for at least 48 hours.31 With limited exceptions, if a firearm is not retained for use as evidence related to criminal charges stemming from the domestic violence incident or is not retained because it was illegally possessed, it must be made available to its owner or lawful possessor 48 hours after the seizure or as soon thereafter as possible, but no later than five business days after the owner or person in lawful possession of the firearm demonstrates that he or she has undergone the proper background check.32
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- Cal. Penal Code § 29805.
- 2018 CA AB 3129, creating Cal. Penal Code § 29805(b); see also, Cal Pen Code § 273.5.
- Cal. Penal Code § 136.2(a)(1)(G)(I)-(II), (d)(1)-(3).
- See Cal. Penal Code § 29825(a).
- Cal. Civ. Proc. Code § 527.6. Harassment is defined as 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 such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Id.
- Cal. Civ. Proc. Code § 527.8. An employer may seek a restraining order on behalf of employees where an employee has suffered violence or a threat that can reasonably be construed to be carried out or to have been carried out at the workplace. Id.
- Cal. Civ. Proc. Code § 527.85. A postsecondary educational institution may seek a restraining order on behalf of a student where a student has suffered a credible threat of violence made off the school campus or facility from any individual, which can reasonably be construed to be carried out or to have been carried out at the school campus or facility, if the student consents. “Postsecondary educational institution” is defined to mean a private institution of vocational, professional, or postsecondary education. Id.
- Cal. Fam. Code §§ 6218, 6389. See also § 6304 (requiring notice of the firearm prohibition if both parties are in court).
- Cal. Welf. & Inst. Code § 15657.03.
- Cal. Penal Code § 646.91.
- Cal. Penal Code § 136.2. Although Cal. Penal Code §§ 136.2 and 646.91 do not mention ammunition, a separate provision of California law prohibits any person from possessing ammunition if the person is ineligible to purchase or possess firearms under state law. Cal. Penal Code §§ 29825, 30305.
- Cal. Family Code §§ 6211, 6218, 6389.
- Cal. Family Code §§ 6306; 6322.5.
- Cal. Penal Code § 29825(d); Cal. Civ. Proc. Code § 527.9(d).
- See Cal. Fam. Code § 6304.
- Cal. Penal Code § 30305.
- Cal. Fam Code § 6216 (added by 2021 CA AB 1057).
- Cal. Fam. Code § 6389. If no request is made by a law enforcement officer, the relinquishment must occur within 24 hours of being served the order, either by surrender to a law enforcement officer or sale to a licensed gun dealer. The court may grant an exemption from the relinquishment requirements for a particular firearm if the respondent can show that it 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. Cal. Fam. Code § 6389(h). If the respondent declines to relinquish possession of any firearm based on the assertion of the right against self-incrimination, as provided by the Fifth Amendment to the United States Constitution, the court may grant use immunity for the act of relinquishing the firearm as required. Cal. Fam. Code § 6389(d).
- Cal. Fam. Code § 6389(c)(2); Cal. Civ. Proc. Code § 527.9(a),(b), (d); see also Cal. Penal Code §§ 136.2(d), 29825(d); Cal. Civ. Proc. Code §§ 527.6(t)(2), 527.8(r)(2); 527.85(r)(2); Cal. Welf. & Inst. Code § 15657.03(t)(2).
- The agency must give possession of the firearms to the dealer who presents a bill of sale, within five days of presentment of the bill of sale. Cal. Fam. Code § 6389(i); Cal. Civ. Proc. Code § 527.9(g). If the firearm remains in the possession of law enforcement, the law enforcement agency must return possession of any surrendered firearm to the respondent within five days after the expiration of the relinquishment order, unless certain conditions apply, such as the issuance of another successive restraining order. Cal. Fam. Code § 6389(g); Cal. Civ. Proc. Code § 527.9(e).
- Cal. Fam. Code § 6389(c)(3).
- Cal Rules of Court, Rule 5.495; Rule 4.700.
- See 2021 CA SB 320.
- Cal. Penal Code § 1524(a)(11).
- Cal. Penal Code § 1524(a)(9); See also Cal. Penal Code § 18250.
- Cal. Penal Code § 29825(d) (referencing Cal. Penal Code § 29830.
- Cal. Penal Code § 13730(a). Law enforcement officers responding to incidents of domestic violence must write a report about each incident on an agency-created domestic violence report form, and must include notations of whether the officer or officers responding to the domestic violence call found it necessary, for the protection of the peace officer or other persons present, to inquire whether a firearm or other deadly weapon was present, and whether that inquiry disclosed the presence of a deadly weapon. Cal. Penal Code § 13730(c)(3).
- Id. (referencing Cal. Penal Code § 18250).
- Cal. Penal Code § 18250. If any school or university peace officers initially take custody of a firearm, they are required to deliver the firearm within 24 hours to the city police department or county sheriff’s office in the jurisdiction where the university or school is located. Cal. Penal Code § 18260.
- Cal. Penal Code § 18265(a). The confiscating officer must give the owner or person who possessed the firearm a receipt describing the firearm. Cal. Penal Code §§ 18255, 33800.
- Cal. Penal Code § 18265(b) (referencing § 33850 et seq., which requires that the person claiming ownership or possession of a firearm in the custody of a court or law enforcement agency submit to a background check to determine whether he or she is eligible to possess a firearm). This five-day deadline may be extended if a law enforcement agency has reasonable cause to believe that the return of a firearm would endanger the victim or the person reporting the assault or threat. Cal. Penal Code § 18400. In such situations, the agency must advise the owner of the weapon, and within 60 days of the date of seizure, initiate a petition in superior court to determine if the weapon should be returned. Id. For details concerning the hearing process to determine if a firearm should be returned following a domestic violence incident, see §§ 18400-18420.