California has adopted clear, mandatory, and enforceable relinquishment requirements for individuals subject to domestic violence protective orders, civil protective orders, and gun violence restraining orders. For more information, see “Relinquishment of Firearms by Persons Subject to Protective Order” in the Domestic Violence & Firearms in California section and “Relinquishment of Guns for all GVROs” in the “California’s Gun Violence Restraining Order Law” section.
Relinquishment of Firearms by People Convicted of Firearm-Prohibiting Crimes
Prior to the passage of Proposition 63 in 2016, California had enacted no clear mechanism to ensure individuals convicted of firearm-prohibiting crimes relinquish any firearms in their possession after their conviction.
Under existing law, when a criminal defendant is convicted of a firearm-prohibiting offense, the court must provide the defendant with a form supplied by the state Department of Justice, notifying the defendant that he or she is prohibited from possessing firearms.1 This law requires that the defendant also receive a form to “facilitate the transfer of [his or her] firearms,” but does not otherwise provide any clear or enforceable procedures, time limits, or proof of compliance requirements to ensure that the defendant actually relinquishes his or her firearms after conviction. The California Department of Justice has attempted to fill this gap by developing a standard notification form called the “Bureau of Firearms Form 110: General Notice of Firearm Prohibition and Power of Attorney for Firearms Relinquishment, Sale, or Transfer for Storage.”2 This form does provide standard procedures and time limits for relinquishment of firearms by prohibited persons, but does not require proof of compliance.
In November 2016, California voters passed Proposition 63 to close this gap and make California the first state in the nation to require all prohibited criminal offenders to provide proof that they sold or transferred their firearms after conviction. Beginning January 1, 2018, Proposition 63 will require courts to order people convicted of firearm-prohibiting crimes to relinquish their firearms and to provide these defendants with a standard Relinquishment Form at the time of conviction. The form will, among other things:
o Inform defendants that they are required to relinquish all firearms within specified time periods by selling or transferring the firearms to a licensed firearms dealer, or by transferring them to local law enforcement.
o Inform defendants that they are required to declare any firearms that they possessed at the time of conviction and to name a lawful, consenting designee or law enforcement agency to relinquish those firearms on the defendants’ behalf, if applicable.
o Require the defendant or designee to file the completed relinquishment form with the court-assigned probation officer, along with receipts from the law enforcement agency or licensed dealer who took possession of the defendant’s firearms, verifying that the offender relinquished all firearms prior to sentencing, as required.
Proposition 63 will require an assigned probation officer to report to the court regarding whether the offender properly relinquished all firearms indicated on the relinquishment form or by California’s automated firearm sale records database (AFS). Courts will generally be required to verify that relinquishment occurred before final disposition of the defendant’s case. If the court finds probable cause that the defendant failed to relinquish all firearms, as required, the court will order the search for and removal of the defendant’s firearms at any location where the judge has probable cause to believe the defendant’s firearms are located.
This relinquishment process will implement best practices from California’s domestic violence protective order and gun violence restraining order laws by providing clear and mandatory procedures to all prohibited criminal offenders, by expressly requiring proof of relinquishment, and by requiring further enforcement action if the offender illegally retains his or her weapons after conviction.
Relinquishment of Firearms by People with Firearm-Prohibiting Mental Health Conditions
California law requires law enforcement to confiscate weapons found to be under the possession or control of any person who has been detained or apprehended for examination of his or her mental condition, or who is prohibited from possession of firearms by reason of a mental disorder.3 Law enforcement must, upon confiscation, retain custody of the firearm, issue a receipt describing the firearm, and notify the individual of the procedure for return of the firearm.4 Upon release from a mental health facility, the health facility personnel must notify the individual of the procedure for the return of a confiscated firearm.5 Health facility personnel also must notify the confiscating law enforcement agency of the release of the detained individual, and must document that the facility provided notice regarding the procedure for return of any confiscated firearm.6 California law also authorizes the issuance of a search warrant when the property to be seized includes a firearm owned by, or in the possession of, a person who has been detained for examination of his or her mental condition, or who is prohibited from possession of firearms by reason of a mental disorder.7
Recovering Illegally Owned Weapons
California law requires the California Department of Justice (“DOJ”) to maintain a “Prohibited Armed Persons File,”8 also known as the “Armed Prohibited Persons System” (“APPS”). APPS is a database that tracks persons who owned lawfully purchased firearms but then illegally retained their firearms after falling into a prohibited category.9 Established in 2007, APPS cross-references criminal, domestic violence restraining order and mental health history records, among other prohibited category data, with firearm sale records to identify those persons who have subsequently become prohibited from owning or possessing firearms.10
The information contained in APPS can only be made available to certain public and private entities – primarily law enforcement agencies – to actively identify persons armed yet prohibited from possessing firearms.11 DOJ is required to provide investigative assistance to local law enforcement agencies to better ensure the investigation of individuals who are armed and prohibited from possessing a firearm.12 In 2011, California enacted a law authorizing DOJ to utilize the fees that firearms purchasers must pay to DOJ during the purchase of any firearm (known as Dealer Record of Sale, or “DROS” fees) for the enforcement of APPS.13
In 2013, the California Legislature also appropriated $24 million from the DROS Special Account of the General Fund to DOJ in order to address the APPS backlog. In addition, no later than March 1, 2015, and each year thereafter, DOJ must report the following information to the Joint Legislative Budget Committee:
- The degree to which the backlog in APPS has been reduced or increased;
- The number of agents hired for enforcement of APPS; and
- The number of firearms recovered due to enforcement of the APPS.14
As of July 1, 2015, APPS enforcement efforts had successfully recovered 11,561 illegally owned firearms, including 456 assault weapons, and well over 1,000,000 rounds of illegally owned ammunition in just two years.15
For more information on persons prohibited from possessing firearms in California, see our Prohibited Persons Generally page.
- Cal. Pen. Code § 29810. ⤴︎
- BOF Form 110 is available at: http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/poafirearmsdecl.pdf. ⤴︎
- Cal. Welf. & Inst. Code § 8102. ⤴︎
- Cal. Welf. & Inst. Code § 8102(a)-(b)(1). ⤴︎
- Cal. Welf. & Inst. Code § 8102(b)(2). ⤴︎
- Cal. Welf. & Inst. Code § 8102(b)(3). The administrative procedures regarding the return of a firearm after an individual’s release from a mental health facility are detailed under Cal. Welf. & Inst. Code § 8102(c)-(h). ⤴︎
- Cal. Penal Code § 1524(a)(10). ⤴︎
- Cal. Penal Code § 30000(a). ⤴︎
- Cal. Penal Code §§ 30000, 30005. ⤴︎
- Id. ⤴︎
- Cal. Penal Code § 30000(b), this section references Cal. Penal Code § 11105(b), (c). ⤴︎
- Cal. Penal Code § 30010. ⤴︎
- Cal. Penal Code § 28225 (referring to the “possession” of firearms). ⤴︎
- Cal. Penal Code § 30015. ⤴︎
- See SB 140 Supplemental Report of the 2015-16 Budget Package, Armed Prohibited Persons System (Jan. 1, 2016), available at http://oag.ca.gov/sites/all/files/agweb/pdfs/publications/sb-140-supp-budget-report.pdf. ⤴︎