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What Firearm and Ammunition Conditions Apply in a DV Case?
On a good cause belief that harm to, intimidation of, or dissuasion of a victim or witness has occurred or is reasonably likely to occur, a judge with jurisdiction over a criminal matter may issue a criminal protective order under Penal Code § 136.2.
Many of our clients subject to such a protective order do not know the full implications of such an order.
The Reader’s Digest Version: It is wise to fully understand the full scope of any protective order issued in a pending domestic violence case because, especially in such cases where a victim’s credibility is at issue, a defendant’s violation of such a court order reflects poorly on his or her being afforded more credibility than the victim.
A defendant subject to a Penal Code § 136.2 protective order may not own, possess, purchase, receive, or attempt to purchase or receive a firearm while the order is in effect. Penal Code §§ 136.2(a)(1)(G)(ii)(l), (d)(1), 29825(d); see also 18 U.S.C. § 922(g)(8).
Such a defendant who is prohibited from owning or a possessing a firearm pursuant to a criminal protective order is also prohibited from owning, possessing, or having under his or her custody or control, any ammunition or reloaded ammunition. Penal Code § 30305(a)(1). Ammunition includes, but is not limited to, any bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being forced from a firearm with a deadly consequence. Penal Code §16150(b).
After issuing the protective order, the judge must order the defendant to relinquish any firearms or ammunition in his or her immediate possession or control, or subject to the defendant’s immediate possession or control, within 24 hours of being served with the order, either by surrendering the firearm (and ammunition) to local law enforcement or selling to or storing the firearm with a licensed gun dealer. California Code of Civil Procedure (C.C.P.) § 527.9(b), Penal Code § 28930, Penal Code § 136.2(a)(1)(G)(ii)(1, (d)(2).
Long Beach CourthouseA defendant ordered to relinquish a firearm must file with the court a receipt of sale, storage, or surrender to the court within 48 hours of receiving the order. C.C.P. § 527.9.
However, the judge may grant an exception from the relinquishment requirement under limited circumstances, e.g., where a firearm is necessary as a condition of employment. C.C.P. § 527.9(f). Defendant must show that a particular firearm is necessary as a condition of continued employment and that the current employer cannot reassign defendant to a position that does not require a firearm. If the judge grants this exemption, then the judge must order that the firearm will be in defendant’s possession only during scheduled work hours and travel to and from work. C.C.P. § 527.9(f).
When defendant is a police officer and his or her personal safety depends upon carrying a firearm, then the court may allow defendant to carry a firearm on or off duty if the court finds by a preponderance of the evidence that defendant does not pose a threat of harm. Before the judge can make such a finding, he or she must order a psychological evaluation of defendant to be completed. The judge can also require defendant to attend counseling or other remedial treatment program to deal with any propensity for domestic violence. C.C.P. § 527.9(f).
When a judge orders a criminal protective order while the case is pending or as a condition of probation under Penal Code § 1203.097(a)(2), the court must determine if there is good cause to believe that defendant has a firearm within his or her immediate possession or control. The judge must consider all credible information, including information from defendant, in making that determination. Before asking defendant directly about firearms, the judge should advise the defendant of the Fifth Amendment right against self-incrimination. The judge will also ask the prosecution and his clerk to complete a background check on defendant.
If the judge believes there is good cause to believe defendant owns, possesses, or controls a firearm, and defendant is not in custody, the judge must set a review hearing within two days to determine if defendant has relinquished the firearms as specified in C.C.P. § 527.9. Cal. Rules of Court 4.700(c)(2). If circumstances warrant this, the judge can extend the hearing date to up to five days after the order is issued.
For more information about firearm and ammunition restrictions, please click on the following articles:
