BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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6
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AB 362 (De Leon)
As Amended June 28, 2007
Hearing date: July 10, 2007
Penal Code
SM:mc
HANDGUN AMMUNITION REGISTRATION
HISTORY
Source: Author
Prior Legislation: AB 2714 (Torrico) - 2006, vetoed
AB 996 (Ridley-Thomas) - 2005, vetoed
SB 48 (Scott) - Chapter 681, Statutes of 2005
AB 1152 (Scott) - 2004, vetoed
Support: Alameda County Board of Supervisors; California
Chapters of the Brady Campaign to Prevent Gun Violence;
City and County of San Francisco; Legal Community
Against Violence; Los Angeles Police Chief; Los Angeles
Sheriff's Department; Orange County Citizens for the
Prevention of Gun Violence; Women Against Gun Violence;
City of Los Angeles
Opposition:San Bernardino County Sheriff; California Association
of Firearms Retailers; California Outdoor Heritage
Alliance; California Rifle and Pistol Association;
California Sportsman's Lobby, Inc.; Crossroads of the
West Gun Shows; Gun Owners of California, Inc.;
National Rifle Association of America; Outdoor
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Sportsman's Coalition of California; Safari Club
International; National Shooting Sports Foundation,
Inc.; one private citizen
Assembly Floor Vote: Ayes 44 - Noes 34
KEY ISSUES
BEGINNING JULY 1, 2011, SHOULD HANDGUN AMMUNITION PURCHASERS BE
REQUIRED TO POSSESS A PERMIT FOR THAT PURPOSE, EXCEPT AS SPECIFIED,
AND SHOULD DOJ BE REQUIRED TO ESTABLISH A SYSTEM FOR ISSUANCE OF
SUCH PERMITS?
BEGINNING JULY 1, 2008, SHOULD ANY PERSON, EXCEPT AS SPECIFIED, WHO
SELLS MORE THAN 50 ROUNDS OF HANDGUN AMMUNITION, AS DEFINED, WITHIN
A ONE MONTH PERIOD BE REQUIRED TO POSSESS A HANDGUN AMMUNITION
VENDOR'S LICENSE, A VIOLATION OF WHICH WOULD BE PUNISHABLE BY A
CIVIL FINE OF UP TO $1,000 FOR THE FIRST OFFENSE AND UP TO $10,000
FOR SUBSEQUENT VIOLATIONS, AND SHOULD DOJ BE REQUIRED TO ESTABLISH A
PROCESS FOR THE ISSUANCE OF SUCH LICENSES?
SHOULD HANDGUN AMMUNITION VENDORS BE REQUIRED TO COLLECT SPECIFIED
DATA ON SALES OF HANDGUN AMMUNITION?
SHOULD DOJ BE REQUIRED TO CREATE A STATEWIDE DATABASE TO ALLOW
HANDGUN AMMUNITION VENDORS TO INSTANTLY VERIFY THE VALIDITY OF A
HANDGUN AMMUNITION PURCHASER'S PERMIT TO BUY AMMUNITION?
SHOULD A MINOR WHO ATTEMPTS TO OR PURCHASES HANDGUN AMMUNITION USING
A FALSE ID BE SUBJECT TO A CIVIL FINE OF UP TO $5,000?
SHOULD, COMMENCING JULY 1, 2011, HANDGUN AMMUNITION VENDORS BE
REQUIRED TO CONDUCT INSTANT BACKGROUND CHECKS THROUGH DOJ ON
NON-CALIFORNIA RESIDENTS WHO PURCHASE HANDGUN AMMUNITION IN
CALIFORNIA?
SHOULD HANDGUN AMMUNITION VENDORS, COMMENCING JULY 1, 2008, AND
UNTIL JULY 1, 2011, BE REQUIRED TO OBTAIN A THUMBPRINT FROM
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PURCHASERS?
SHOULD DOJ BE REQUIRED TO PAY FOR THE IMPLEMENTATION OF THESE
PROVISIONS THROUGH FEES CHARGED TO VENDOR LICENSE APPLICANTS AND
PURCHASER PERMIT APPLICANTS?
SHOULD ALL HANDGUN AMMUNITION TRANSFERS THAT TAKE PLACE ON OR AFTER
JULY 1, 2008, BE REQUIRED TO OCCUR IN A FACE-TO-FACE TRANSACTION?
PURPOSE
The purpose of this bill is to (1) require that, by July 1,
2011, handgun ammunition purchasers possess a permit for that
purpose, except as specified; (2) establish a system for
issuance of such permits by the Department of Justice (DOJ); (3)
require that by July 1, 2008, except as specified, any person
who sells more than 50 rounds of handgun ammunition, as defined,
within a one month period to possess a handgun ammunition
vendor's license, a violation of which would be punishable by a
civil fine of up to $1,000 for the first offense and up to
$10,000 for subsequent violations; (4) establish a process for
the issuance of such licenses; (5) require collection of
specified data on sales of handgun ammunition; (6) require DOJ
to create a statewide database to allow handgun ammunition
vendors to instantly verify the validity of a handgun ammunition
purchaser's permit to buy ammunition; (7) provide that a minor
who attempts to or purchases handgun ammunition using a false ID
will be subject to a civil fine of up to $5,000; (8) commencing
July 1, 2011, require that vendors conduct instant background
checks through DOJ on non-California residents who purchase
handgun ammunition in California; (9) commencing July 1, 2008,
and until July 1, 2011, require that handgun ammunition vendors
obtain a thumbprint from purchasers; (10) provide that DOJ shall
pay for the implementation of these provisions through fees
charged to vendor license applicants and purchaser permit
applicants; and (11) require all handgun ammunition transfers
that take place on or after July 1, 2008, to occur in a
face-to-face transaction.
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Existing law states that it is a misdemeanor for any person,
corporation, or licensed firearms dealer to sell ammunition to a
person under 18 years of age or to sell any ammunition to be
used in a handgun to a person under 21 years of age. (Penal
Code 12316(a)(1).)
Existing law provides that proof that a person, corporation,
or dealer, or his or her agent or employee, demanded, was
shown, and acted in reasonable reliance upon, bona fide
evidence of majority and identity shall be a defense to any
criminal prosecution under this law. (Penal Code
12316(a)(2).)
Existing law defines "bona fide evidence of majority and
identity" as a document issued by a federal, state, county, or
municipal government, or agency thereof, including, but not
limited to, a motor vehicle operator's license, California state
identification card, identification card issued to a member of
the armed forces, or other form of identification that bears the
name, date of birth, description, and picture of the person.
(Penal Code 12316(a)(2).)
Existing law defines "ammunition" to include, but not be limited
to, any bullet, cartridge, magazine, clip, speed loader,
autoloader, or projectile capable of being fired from a firearm
with a deadly consequence. (Penal Code 12316(b)(2).)
Existing law defines "handgun ammunition" as ammunition
principally for use in pistols, revolvers, and other firearms
capable of being concealed upon the person, as defined,
notwithstanding that the ammunition may also be used in some
rifles. (Penal Code 12323(a).)
Existing law makes it an alternate felony/misdemeanor for a
person prohibited from possessing a firearm to possess or have
under his or her control any ammunition. (Penal Code
12316(b)(1).)
Existing law defines relevant federal law as: "It shall be
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unlawful for any licensed importer, licensed manufacturer,
licensed dealer, or licensed collector to sell or deliver - any
firearm or ammunition to any individual who the licensee knows
or has reasonable cause to believe is less than 18 years of age
and, if the firearm or ammunition is other than a shotgun or
rifle, or ammunition for a shotgun or rifle, to any individual
who the licensee knows or has reasonable cause to believe is
less than 21 years of age . . . . " (18 United States Code
Service 922(b)(1).)
Vendors
This bill requires, commencing July 1, 2008, that any person,
except as specified, that sells or transfers more than 50 rounds
of handgun ammunition in any month to register as a handgun
ammunition vendor, and requires that specific information
relating to the purchase of handgun ammunition be collected and
submitted to the Department of Justice (DOJ). Specifically,
this bill:
Defines a "registered handgun ammunition vendor" as a
person or business that is engaged in the retail sale of
handgun ammunition and has all of the following:
o Any regulatory or business license, or
licenses required by local government.
o A valid seller's permit issued by the Board of
Equalization.
o Is among those recorded in the centralized
ammunition vendor's registry.
o A certificate of eligibility, as specified.
Authorizes a registered handgun ammunition vendor to
request a background clearance from DOJ to determine if an
employee or potential employee is prohibited from
possessing a firearm, and allows DOJ to charge a fee for
the clearance.
Prohibits a registered handgun ammunition vendor from
allowing an employee, who the vendor knows or reasonably
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should know is prohibited from possessing a firearm, to
handle handgun ammunition in the course and scope of his or
her employment.
Requires the DOJ to keep a centralized registry of all
persons, businesses and corporations that are registered
handgun ammunition vendors, and allows DOJ to remove any
vendor from the registry that violate any of the provisions
of this Act.
Exempts for these requirements:
o Sales or transfers of handgun ammunition to
licensed handgun ammunition vendors who are licensed
pursuant to Section 12062.
o Sales or transfers of handgun ammunition by a
nonprofit public benefit or mutual benefit
corporation, as specified, if the corporation is
selling ammunition to assist the corporation or local
chapters of the corporation in conducting auctions or
similar events at which firearms are auctioned off and
to fund the activities of the corporation or the local
chapters of the corporation.
o Sales or transfers of handgun ammunition to
authorized law enforcement representatives, as
specified, for exclusive use by those government
agencies if, prior to the delivery, transfer, or sale
of handgun ammunition, written authorization from the
head of the agency authorizing the transaction is
presented to the person from whom the purchase,
delivery, or transfer is being made. Proper written
authorization is defined as verifiable written
certification from the head of the agency by which the
purchaser or transferee is employed, identifying the
employee as an individual authorized to conduct the
transaction, and authorizing the transaction for the
exclusive use of the agency by which he or she is
employed.
o Sales or transfers of handgun ammunition to
authorized representatives of cities, counties, cities
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and counties, or state or federal governments for
those government agencies in which the entity is
acquiring the ammunition as part of an authorized,
voluntary program in which the entity is buying or
receiving ammunition from private individuals.
o Sales or transfers of handgun ammunition
between immediate family members, spouses, or
registered domestic partners.
o Sales or transfers of handgun ammunition at a
target facility that holds a business or regulatory
license between persons who are on the premises of the
target facility or between persons who are on the
premises of any club or organization organized for the
purposes of practicing shooting at targets upon
established ranges, whether public or private, if the
sale or transfer of the ammunition occurs on the
premises of the target range or on the premises of the
club or organization and is sold to a person who is
using ammunition primarily at the facility and the
entity conducting the sale or transfer is not the
target range or club.
This bill provides that a violation of the provisions stated
above would be punishable by a civil fine of up to $1,000 for a
first violation and up to $10,000 for every subsequent
violation. In addition, this bill provides that, after three
violations, a vendor will have their license to sell handgun
ammunition permanently revoked and that no person or entity
shall sell or otherwise transfer ownership of handgun ammunition
after it is permanently removed from the registry.
This bill provides that DOJ is authorized to issue handgun
ammunition vendor licenses upon an applicant providing a copy of
any regulatory or business license, or licenses, required by
local government, a valid seller's permit issued by the State
Board of Equalization, a federal firearms license if the person
is federally licensed, and a certificate of eligibility, as
specified, and the department shall inform applicants who are
denied licenses of the reasons for the denial in writing.
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This bill provides that the handgun ammunition vendor license
shall be issued in a form prescribed by DOJ and shall be valid
for a period of one year. DOJ may adopt regulations to
administer application procedures and enforcement procedures for
the licensee. DOJ may adopt regulations that establish grounds
for suspension or revocation of the license.
This bill provides that DOJ may charge handgun ammunition vendor
license applicants a fee sufficient to reimburse the department
for the costs of administering the license program, maintaining
the registry of handgun ammunition vendors, and necessary
regulatory functions, including enforcement, provided, however,
that the fee shall not exceed fifty dollars ($50).
This bill provides that the department shall issue licenses
pursuant to this section to the following applicants:
Persons licensed pursuant to Section 12071.
A person who is on the centralized list maintained by
DOJ of persons holding a federal firearms dealer license.
A target facility which holds a business or regulatory
license.
Commercial hunting clubs, game bird clubs, or pheasant
clubs licensed by the Department of Fish and Game.
Gunsmiths.
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Wholesalers.
Federally licensed manufacturers or importers of firearms.
This bill provides that the department shall waive all
application fees for all licensed firearms dealers, as
specified.
This bill provides that the department shall keep a centralized
registry of all persons, businesses, and corporations who are
vendors.
The department may remove from this registry any vendor
who violates the provisions of this section.
The license of any vendor who violates this section
three times shall be revoked, and that person, firm, or
corporation shall become permanently ineligible to obtain a
license pursuant to this section.
Upon removal of a vendor from the registry, notification
shall be provided to local law enforcement and licensing
authorities in the jurisdiction where the vendor's business
is located.
This bill provides that information compiled from the ammunition
vendor's registry shall be made available, upon request, for the
following purposes only:
For law enforcement purposes.
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When the information is requested for the purposes of
determining the validity of handgun ammunition deliveries.
This bill requires that a vendor shall comply with all of the
following:
A vendor shall not permit any employee who the vendor
knows or reasonably should know is prohibited from
possessing a firearm, as specified, from handling handgun
ammunition in the course and scope of his or her
employment.
For an employee of a vendor who is hired after July 1,
2008, the vendor shall request a background clearance from
DOJ, as specified, to determine if an employee is
prohibited from possessing a firearm. The request shall be
made within 45 days of employing the individual.
In the case of a person who is employed by a vendor on
or before July 1, 2008, the vendor shall request a
background clearance from DOJ, as specified, to determine
if an employee is prohibited from possessing a firearm, no
later August 15, 2008.
The department may require the vendor to charge a fee
sufficient to reimburse it for the background clearance, a
specified.
A vendor shall not sell or otherwise transfer ownership
of, offer for sale or otherwise offer to transfer ownership
of, or display for sale or display for transfer of
ownership of any handgun ammunition in a manner that allows
that ammunition to be accessible to a purchaser or
transferee without the assistance of the vendor or employee
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thereof.
Commencing July 1, 2008, a vendor shall not sell or
otherwise transfer ownership of any handgun ammunition
without at the time of delivery recording the following
information in a format to be prescribed by the department:
o The date of the transaction.
o The transferee's driver's license or other
identification number and the state in which it was
issued.
o The brand, type, and amount of ammunition
transferred.
o The transferee's signature.
o The name of the salesperson who processed the
transaction.
o The right thumbprint of the purchaser or
transferee on the above form, unless the purchaser or
transferee presents a valid hunting or sportsman's
license, as specified, or a handgun ammunition
purchase permit in which case the vendor shall record
the number of the license or permit.
o Commencing July 1, 2011, information that the
department may require to ensure the purchaser is
eligible to purchase ammunition, as specified.
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This bill requires that, commencing July 1, 2008, on the date of
delivery of the handgun ammunition, the vendor shall submit a
report to the department in a manner prescribed by the
department containing specified information. The required
records, as specified, shall be maintained on the premises of
the vendor for a period of not less than two years from the date
of the recorded transfer and shall be subject to inspection at
any time during normal business hours by any peace officer, as
specified, or by any other employee of DOJ, provided the officer
is conducting an investigation where access to those records is
or may be relevant to that investigation, is seeking information
about persons prohibited from owning a firearm or ammunition, or
is engaged in ensuring compliance with the Dangerous Weapons
Control Law (Chapter 1 (commencing with Section 12000) of Title
2 of Part 4), or any other laws pertaining to firearms or
ammunition.
This bill provides that, if the purchaser is a resident of
California, commencing July 1, 2011, prior to the delivery of
the handgun ammunition, the vendor of handgun ammunition shall
verify that the person who is being delivered the handgun
ammunition is the holder of a valid handgun ammunition purchase
permit, as specified, by contacting DOJ, in a manner prescribed
by DOJ, that the handgun ammunition purchase permit is valid at
the time of the delivery and receiving a verification number
from the department authorizing the delivery.
This bill provides that, commencing July 1, 2011, if a person is
not the holder of a handgun ammunition purchase permit because
he or she is not a resident of this state, then pursuant to
procedures prescribed by DOJ, the vendor shall contact the
department to conduct an instantaneous background check that
reasonably verifies that the person is not prohibited from
acquiring or possessing handgun ammunition, as specified, and
that the person is 21 years of age or older.
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This bill provides that, commencing July 1, 2008, the vendor
shall not knowingly make a false entry in, fail to make a
required entry in, fail to obtain the required thumbprint, or
otherwise fail to maintain in the required manner records
prepared as specified. If the right thumbprint is not
available, then the vendor shall have the purchaser or
transferee use his or her left thumb, or any available finger,
and shall so indicate on the form. If the purchaser or
transferee is physically unable to provide a thumbprint or
fingerprint, the vendor shall so indicate on the form.
This bill provides that, commencing July 1, 2008, no vendor
shall refuse to permit a person authorized, as specified, to
examine any record prepared in accordance with this section
during any inspection conducted pursuant to this section, or
refuse to permit the use of any record or information by those
persons.
This bill provides that to implement the purchaser eligibility
verification requirements, commencing July 1, 2008, DOJ may
require the vendor to charge each person who is subject to those
requirements a fee for the actual processing costs of that
transaction, which in any event shall not exceed three dollars
($3) for each transaction and vendors shall transmit, in the
manner prescribed by DOJ, the fees collected to DOJ.
This bill provides that the requirements that an ammunition
purchaser possess an ammunition purchase permit and that
specified records be kept of the sale shall not apply to or
affect sales or transfer of handgun ammunition by licensed
handgun ammunition vendors to any of the following:
Licensed firearms dealers, as specified.
A licensed handgun ammunition vendor properly identified
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as such.
A person who is on the centralized list maintained by
DOJ, as specified, of licensed federal firearms dealer's.
A target facility which holds a business or regulatory
license properly identified as such.
Commercial hunting clubs, game bird clubs, or pheasant
clubs licensed by the Department of Fish and Game, properly
identified as such.
Gunsmiths, properly identified as such.
Wholesalers properly identified as such.
Federally licensed manufacturers or importers of
firearms, as specified, properly identified as such.
A nonprofit public benefit or mutual benefit
corporation, as specified, properly identified as such, if
the nonprofit public benefit or mutual benefit corporation
is selling ammunition to assist the corporation or local
chapters of the corporation in conducting auctions or
similar events at which firearms are auctioned off and to
fund the activities of the corporation or the local
chapters of the corporation, and the firearms being
auctioned off at the corporation's auctions or events are
not primarily handguns.
Sales or transfers made to authorized law enforcement
representatives, as specified, for exclusive use by those
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government agencies if, prior to the delivery, transfer, or
sale of handgun ammunition, written authorization from the
head of the agency authorizing the transaction is presented
to the person from whom the purchase, delivery, or transfer
is being made. Proper written authorization is defined as
verifiable written certification from the head of the
agency by which the purchaser or transferee is employed,
identifying the employee as an individual authorized to
conduct the transaction, and authorizing the transaction
for the exclusive use of the agency by which he or she is
employed.
This bill provides that the requirement that the ammunition
purchaser possess an ammunition purchase permit shall not apply
to or affect sales or transfer of handgun ammunition by licensed
handgun ammunition vendors to sworn peace officers, as defined,
who are authorized to carry a firearm in the course and scope of
their duties.
This bill provides that fees received by the department pursuant
to this section shall be deposited in the Dealers' Record of
Sale Special Account of the General Fund.
Purchasers
This bill provides that commencing March 1, 2011, any person who
is 21 years of age or older may apply to DOJ for a handgun
ammunition purchase permit, in a format to be prescribed by DOJ.
The handgun ammunition purchase permit shall entitle the
permittee to purchase handgun ammunition from a licensed handgun
ammunition vendor.
This bill provides that DOJ shall issue a handgun ammunition
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purchase permit to the applicant if all the following conditions
are met:
The applicant is 21 years of age or older.
The applicant is not prohibited from acquiring or
possessing a firearm, as specified.
The applicant pays the specified fees.
This bill provides that, with respect to handgun ammunition
purchase permits:
Upon receipt of an initial or renewal application, DOJ
shall examine its records and is authorized to request
records from the State Department of Mental Health, as
specified, and the National Instant Criminal Background
Check System, as specified, in order to determine if the
applicant is prohibited from possessing or acquiring
handgun ammunition. The application shall be approved or
denied within 30 days of the date of the application. If
the application is denied, DOJ shall state the reasons for
doing so and provide the applicant an appeal process to
challenge that denial.
The handgun ammunition purchase permit shall be valid
for five years from the date of issuance. DOJ shall send a
notice of the expiration of a handgun ammunition purchase
permit, by first-class mail or other means that are
equivalent such as electronic mail, to the address of the
person as shown by the records of the department, not less
than 90 days before the expiration date, and shall enclose
or contain a form for the renewal of the permit.
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The handgun ammunition purchase permit shall be revoked
by DOJ upon the occurrence of any event which would have
disqualified the holder from being issued the handgun
ammunition purchase permit pursuant to this section.
The handgun ammunition purchase permit shall be in a
tamper-proof form prescribed by DOJ and shall include the
name, address, photograph, date of birth, a unique
identifying number, expiration date from the date of
issuance, physical characteristics, including the height,
weight, eye color, and hair color of the permitholder, and
other information as may be prescribed by DOJ. DOJ may
integrate the identification into the permitholder's
California driver's license or identification number, or
the Certificate of Eligibility program, as specified, or
other similar means.
The department shall recover the full cost of
administering this section by assessing the following
application fees:
o For the initial application: thirty-five
dollars ($35).
o For each renewal application: fifteen dollars
($15).
All fees received pursuant to this section shall be
deposited into the Dealer Record of Sale Account.
The implementation of this section by the department is
exempt from the Administrative Procedure Act, as specified.
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DOJ shall annually review and shall adjust the specified
fees, if necessary, to fully fund, but not to exceed the
actual costs of, the permit program provided for by this
section, including enforcement of the program.
DOJ authorized to adopt regulations to implement the
provisions of this section.
The Database
This bill requires that, in order to implement the handgun
ammunition purchase permit provisions of this bill, DOJ shall do
all of the following on or before January 1, 2011:
Establish a state database that licensed handgun
ammunition vendors may instantaneously access by telephone
or other electronic means, as specified by DOJ, with
information to be supplied immediately on whether the
presented handgun ammunition purchase permit is valid. The
database shall record when a vendor contacts DOJ to verify
that a handgun ammunition purchase permit is valid, and
shall provide an authorization number for the delivery of
the ammunition to that permitholder.
Upon establishment of the database, notify each vendor
on the licensed handgun ammunition vendor registry of the
existence and purpose of the system and the means to be
used to access the database.
Establish days and hours during which the telephone
number or other electronic means shall be operational for
purposes of responding to inquiries, taking into
consideration the normal business hours of retailers.
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Prescribe procedures whereby the vendor shall contact
DOJ, if a person is not the holder of a handgun ammunition
purchase permit because he or she is not a resident of this
state, to conduct an instantaneous background check that
reasonably verifies that the person is not prohibited from
acquiring or possessing handgun ammunition, because they
are prohibited from possessing a firearm.
This bill provides that DOJ is authorized to adopt regulations
to implement the provisions of this section.
This bill provides that any person under 21 years of age who
purchases, or who attempts to purchase, handgun ammunition, as
defined, by using a false identification document, or by
otherwise misrepresenting the person's age, and any minor who
purchases, or attempts to purchase, any ammunition by using a
false identification document, or otherwise misrepresenting the
person's age, shall be subject to a civil fine of up to $5,000.
This bill defines "handgun ammunition" to exclude ammunition
designed and intended to be used in an "antique firearm" as
defined.
Face to Face Transaction Requirement
This bill provides that, commencing July 1, 2008, the sale or
other transfer of ownership of handgun ammunition may only occur
in a face-to-face transaction with the seller or transferor
being provided bona fide evidence of identity from the purchaser
or other transferee. Bona fide evidence of identity means a
document issued by a federal, state, county, or municipal
government, or subdivision or agency thereof, including, but not
limited to, a motor vehicle operator's license, state
identification card, identification card issued to a member of
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the armed forces, or other form of identification that bears the
name, date of birth, description, and picture of the person.
This bill provides that the face-to-face transaction requirement
shall not apply to or affect the deliveries, transfers, or sales
of, handgun ammunition to any of the following:
Authorized law enforcement representatives, as
specified, for exclusive use by those government agencies
if, prior to the delivery, transfer, or sale of the handgun
ammunition, written authorization from the head of the
agency employing the purchaser or transferee, is obtained
identifying the employee as an individual authorized to
conduct the transaction, and authorizing the transaction
for the exclusive use of the agency employing the
individual.
Sworn peace officers, as defined, who are authorized to
carry a firearm in the course and scope of their duties.
Licensed importers and manufacturers of handgun
ammunition or firearms, as specified, and licensed handgun
ammunition vendors.
Persons who are on the centralized list maintained by
the DOJ of licensed federal firearms dealers.
Persons whose licensed premises are outside this state
who are federally licensed firearms dealers.
Persons licensed as collectors of firearms, as
specified, whose licensed premises are within this state
who have a current certificate of eligibility issued to him
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or her by DOJ, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
----------------------
<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
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AB 362 (De Leon)
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As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<5>
This bill does not appear to aggravate the prison and jail
overcrowding crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
After some years of declining violent crime, according
to the Department of Justice, gun violence is once
again on the rise, plaguing California with an
increase of over 34% in six years-from 1999 to 2005.
In Los Angeles alone, between 2005 and 2006 the LA
----------------------
<5> Primer, supra, fn. 4.
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AB 362 (De Leon)
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Sheriff's office handled 668 murders involving
firearms-over 80% of their total homicides.
In a state where firearms outnumber people, there must
be regulation of the sale and distribution of handgun
ammunition to prevent criminals from simply purchasing
ammunition over and over again in sporting goods
stores. There is currently no regulatory control over
the deadly ammunition that fuels gun violence.
Not only are handgun ammunition vendors unregulated,
but so too are handgun ammunition sales, despite
federal and state prohibitions on certain groups of
people from purchasing ammunition, e.g. convicted
felons. Currently, it is easier to purchase handgun
ammunition than it is a package of cigarettes or spray
paint, thus making it easier for handgun ammunition to
end up in the wrong hands.
A 2006 RAND Corporation study found substantial
amounts of ammunition purchased by felons and others
prohibited from possessing firearms in sporting goods
stores and gun shops; this included 10,050 rounds of
ammunition purchased in just two months in the City of
Los Angeles.<6> RAND reported that "guns and
ammunition possessed by felons and others prohibited
from owning weapons are more likely to be used in
violent crimes than weapons bought by people with no
criminal histories."
While the State has recently enacted legislation to
keep guns out of the wrong hands, it to date hasn't
enacted any legislation to prevent criminals and gang
members who already have guns from accessing the
ammunition that drives this tragic violence.
----------------------
<6> RAND Corporation. "RAND study finds substantial amounts of
ammunition bought by felons, others prohibited from buying
bullets." http://www.rand.org/news/press.06/10.05.html. 5
October 2006.
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Bullets are ending up in guns and in the wrong hands
across California and we have no idea who is selling
this dangerous product. AB 362 would cut off the easy
access to handgun ammunition and this measure would
enact a regulatory structure necessary to prevent
gangs and felons from easily acquiring ammunition.
2. Interstate Commerce Clause and Federal Preemption Issues
This bill contains requirement that, after July 1, 2008, all
handgun ammunition transfers take place in a face-to-face
transaction. One effect of this would be to ban all Internet
sales of handgun ammunition. Last year, AB 2714 (Torrico)
proposed to place restrictions on Internet sales of ammunition.
This Committee's analysis of that bill contained the following
information on the issues of potential Commerce Clause
implications and Federal Preemption. This information would
appear to be applicable to the proposed face-to-face transaction
requirement of this bill.
Because the bill would regulate sales of specified
types of ammunition from out-of-state sellers to
consumers in California, it would have an effect on
interstate commerce. However, the author's office has
received an opinion from Legislative Counsel stating
that the bill would not violate the commerce clause of
the U.S. Constitution because its requirements apply
equally to in-state and out-of-state transactions and
therefore the bill does not discriminate against
interstate commerce either on its face or as applied.
(Legislative Counsel Opinion #0606880.)
Another potential constitutional issue is whether this
area is so pervasively regulated by federal law that
all regulation of sales of handgun ammunition is
preempted by federal law. However, legal counsel for
the Bureau of Alcohol, Tobacco, Firearms and
Explosives confirms that legislative changes to the
federal firearms laws in 1986 largely deregulated
interstate controls over the shipment of ammunition.
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AB 362 (De Leon)
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That being the case, this bill is unlikely to raise an
issue of federal preemption.
3. Ammunition Sales and the Prohibited Armed Persons Database
Current law establishes a Prohibited Armed Persons Database
which allows DOJ to run a background check on new gun purchasers
to determine if they are prohibited from possessing a firearm.
This also allows DOJ to enter information regarding new events,
like a felony conviction, that may prohibit a person from
possessing a gun, and to check the database of gun owners to see
if the felon is a registered gun owner. This bill would require
DOJ to check the Prohibited Armed Persons Database whenever a
person attempts to purchase handgun ammunition. However, under
federal law, DOJ's authority to request a federal background
check (a "NICS" check) is triggered, so to speak, by the
attempted purchase of a firearm. To initiate such a background
check due to an attempted purchase of ammunition is not
permitted under federal law. (28 Code of Federal Regulations,
section 25.6.)
4. Restrictions on Handgun Ammunition Sales of 50 Rounds or More
and Exceptions to the Rule
This bill requires that, as of July 1, 2008, no person shall
transfer more than 50 rounds of handgun ammunition in any month
unless that person is a licensed dealer of such ammunition.
However, the bill also contains numerous exceptions to the
licensing requirement. At least one exemption appears to create
issues of both due process as well as the overall enforceability
of this prohibition. The following ammunition sales are
exempted from the licensing requirement:
Sales or transfers of handgun ammunition at a target
facility that holds a business or regulatory license
between persons who are on the premises of the target
facility or between persons who are on the premises of
any club or organization organized for the purposes of
practicing shooting at targets upon established
ranges, whether public or private, if the sale or
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AB 362 (De Leon)
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transfer of the ammunition occurs on the premises of
the target range or on the premises of the club or
organization and is sold to a person who is using
ammunition primarily at the facility and the entity
conducting the sale or transfer is not the target
range or club.
(Pg. 12, lines 27-36.)
The first issue this raises is what does it mean to say "using
ammunition primarily at the facility?" Does it mean that an
unlicensed vendor could sell 100 cases of handgun ammunition to
a person who holds no handgun ammunition purchaser's permit so
long as the buyer used 51 of the cases of ammunition at the
firing range over the course of the next ten years?
The scope of this exception is vague. A statute may be
unconstitutionally vague if it fails to give adequate notice of
what behavior is prohibited. The California Supreme Court in
People v. McCoy (2002) 27 Cal.4th 601, 634, has reiterated the
rule: A statute that either forbids or requires the doing of an
act in "terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law."
( Connally v. General Const. Co . (1926) 269 U.S. 385, 391.)
Aside from the vagueness issue, the scope of the exemption seems
to, if not swallow the rule, make it extremely easy to
circumvent. Under this exemption, it would appear that any
number of ammunition sales of any quantity of ammunition would
be exempt from the licensing requirement, so long as they took
place at a firing range and the buyer uses an undefined amount
of the ammunition at the range over an undefined amount of time.
DO THE EXCEPTIONS TO THE LICENSING REQUIREMENT LEAVE MUCH OF THE
RULE?
5. Penalties
The proposed new Penal Code section 12062 would create numerous
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AB 362 (De Leon)
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requirements for ammunition sellers including collecting
personal identifying information from buyers, fingerprinting
buyers, running background checks on employees and prospective
new employees, not allowing ammunition to be displayed in a
manner that allows it to be accessible to the buyer without the
assistance of the vendor, etc. Upon violation of these
provisions DOJ may "remove [the vendor] from the registry,"
i.e., revoke the vendor's handgun ammunition vendor's license.
(Pg. 14, lines 3-4.) Confusingly, the bill also provides that
DOJ "shall issue" a license to several classes of people
including, for example, licensed gun dealers, gunsmiths,
wholesalers, etc. Therefore, after DOJ has revoked a vendor's
license, the vendor could simply reapply for another license and
DOJ would be required to issue it. Upon three violations, the
vendor would lose their license permanently. (Pg. 14, lines
5-8.)
SHOULD DOJ BE REQUIRED TO REISSUE A LICENSE TO A VENDOR AFTER
THE FIRST AND SECOND VIOLATIONS?
The bill further provides that any vendor who has been
permanently removed from the handgun ammunition vendors
"registry" (DOJ's list of handgun ammunition vendor licensee's)
is permanently barred from selling or otherwise transferring
handgun ammunition . (Page 11, lines 28-31.) This prohibition
would apply to situations where licensing is not even required.
For example, transfers between family members. Therefore, the
bill would appear to prohibit a dealer who permanently lost
their ammunition vendor's license from ever transferring any
handgun ammunition to their spouse.
The loss of a vendor's license after either the first or the
second violation would not affect the vendor's ability to sell
ammunition under one of the broad exceptions to the licensing
requirement (see Comment 4 above.) Therefore, the effect of
this potential lifetime restriction could be to discourage these
vendors from operating under a license and to simply rely on
unregulated sales of ammunition under one of the exceptions to
the licensing requirement.
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WOULD THE POTENTIAL LIFETIME BAN ON ANY HANDGUN AMMUNITION
TRANSFERS ENCOURAGE VENDORS TO FOREGO LICENSES AND RELY ON
UNREGULATED SALES UNDER ONE OF THE EXCEPTIONS TO THE LICENSING
REQUIREMENT?
Additionally, the proposed penalties appear to be inconsistent
with existing penalties for selling ammunition to persons under
the age of 21. Under this bill the only penalty applicable to a
handgun ammunition vendor who sells handgun ammunition to a
buyer who has no handgun ammunition purchaser's permit (because,
let's say, the person is under 21) is the potential loss of
their vendor's license. Under existing law, sales of handgun
ammunition to a person under 21 is a misdemeanor, punishable by
up to 6 months in jail, a fine of $1,000, or both. (Penal Code
section 12316(a)(1)(B).) Because the vendor has violated both
statutes by selling to the underage buyer, does this create
confusion as to which penalty should apply?
ARE THE PROPOSED PENALTIES INCONSISTENT WITH EXISTING PENALTIES
FOR SALES OF HANDGUN AMMUNITION TO A PERSON UNDER 21?
The proposed new Penal Code section 12318 would provide:
Commencing July 1, 2008, the sale or other transfer of
ownership of handgun ammunition may only occur in a
face-to-face transaction with the seller or transferor
being provided bona fide evidence of identity from the
purchaser or other transferee.
One significant effect of this requirement would be to ban
Internet sales of handgun ammunition. However, this section
contains no sanction at all for its violation. Is it sound
public policy to create such significant prohibitions that carry
no sanction if they are violated? Here again this statute could
create confusion as to the penalty, if any, if a person is
prosecuted for selling handgun ammunition to a person under 21
via a non-face-to-face-transaction.
DOES THE BILL CREATE CONFUSION AS TO APPLICABLE PENALTIES FOR
EXISTING CRIMES?
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IS IT GOOD POLICY TO CREATE SWEEPING PROHIBITIONS THAT CARRY NO
SANCTION IF THEY ARE VIOLATED?
6. AB 996 (Ridley-Thomas) (2005) Veto Message
AB 996 (Ridley-Thomas) (2005) would have required, similarly to
this bill, specified types of handgun ammunition to be sold in a
manner such that it would not be accessible to the purchaser
without the assistance of a salesperson. Governor
Schwarzenegger vetoed AB 996, issuing the following veto
message:
This bill is unnecessary because there has been no
documentation of a
problem with the theft of ammunition from retail
establishments. In
addition, I have just signed SB 48 by Senator Scott
into law which
will ensure those underage will no longer be
purchasing ammunition.
Requiring retail ammunition sellers to store any
handgun ammunition
offered for sale in a manner inaccessible to the
purchaser would
impose more regulation in California without a
corresponding benefit
to public safety. It is not clear how requiring store
employees to
obtain and hand customers ammunition instead of
letting customers
choose their own ammunition will curb crimes committed
with firearms.
7. Arguments in Support
The Brady Campaign to Prevent Gun Violence states:
Numerous laws relate to firearms. Ammunition, the
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actual agent of harm caused by firearms, remains
virtually unregulated. Current law provides that
people who are prohibited from purchasing and
possessing firearms are also prohibited from
purchasing ammunition. At the present time there is
no way to enforce this law. The individuals engaged
in the sale of ammunition are unknown. Similarly, how
much ammunition is sold and of what type, and even
whether those engaged in the business are criminals,
is also unknown. This far-reaching bill would take a
major step in addressing all of these issues.
The Alameda County Board of Supervisors states:
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After some years of declining violent crime, according
to the Department of Justice, gun violence is once
again on the rise plaguing California with an increase
of over 34% in six years - from 1999 to 2005. In 2002
- 2004 Oakland recorded 315 homicides. 247 or 78% of
these victims were killed with firearms. 200 of these
firearm deaths were attributable to handguns. In a
state where firearms outnumber people, there must be
regulation of the sale and distribution of handgun
ammunition to prevent criminals from simply purchasing
ammunition over and over again in sporting goods
stores. There is currently no regulatory control over
the deadly ammunition that fuels gun violence. Not
only are handgun ammunition vendors unregulated, but
so too are handgun ammunition sales, despite federal
and state prohibitions on certain groups of people
from purchasing ammunition, e.g., convicted felons.
While the State has recently enacted legislation to
keep guns out of the wrong hands, to date it has not
enacted legislation to prevent criminals and gang
members who already have guns from accessing the
ammunition that drives this upswing in tragic
violence.
8. Arguments in Opposition
The California Association of Firearms Retailers states:
Proposed Penal Code section 12317 would make
comparison shopping of the many different ammunition
brands and loading combinations virtually impossible.
No store clerk would have the time to personally bring
boxes of ammunition for each customer's inspection,
and reading of the label and price on the box. There
are just too many different products, and retailers
simply do not have the extra personnel and resources
that AB 362 would require.
Only the largest stores would have enough storage
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space away from customer access to comply with AB 362.
Smaller stores absolutely have to have ammunition
shelf space available to their customers as most do
not have enough non-accessible storage area. Some who
rely heavily on ammunition sales for revenue may
actually be forced out of business if AB 362 becomes
law.
The Gun Owners of California, Inc., states:
GOC cannot connect the subjects of this bill with the
author's desire to curb crime. Requiring ammunition
sellers to register and keep more records harasses the
vendors but will in no way impact or improve crime
stats. The same for the DOJ keeping a registry of the
registered sellers. Registration does not prevent the
committing of crime.
The author cites Los Angeles as an area where crime
statistics are escalating. How could it not when the
citizens in that area are constricted more and more
every year by laws that do not curb crime but curb
only the freedom of the gun owner to defend self and
family?
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