BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 3 0 2 AB 302 (Beall) As Amended January 21, 2010 Hearing date: June 15, 2010 Welfare and Institutions Code SM:mc FIREARMS: REPORTS OF PROHIBITED PERSONS HISTORY Source: Author Prior Legislation: AB 2696 (Krekorian) - vetoed, 2008 Support: California Brady Campaign Chapters; Legal Community Against Violence Opposition:None known Assembly Floor Vote: No longer relevant - bill amended in Senate to cover a different subject. KEY ISSUE SHOULD SPECIFIED MENTAL HEALTH FACILITIES BE REQUIRED, BY JULY 1, 2012, TO REPORT TO THE DEPARTMENT OF JUSTICE EXCLUSIVELY BY ELECTRONIC MEANS WHEN A PERSON IS ADMITTED TO THAT FACILITY EITHER BECAUSE THAT PERSON WAS FOUND TO BE A DANGER TO THEMSELVES OR OTHERS, OR WAS CERTIFIED FOR INTENSIVE TREATMENT FOR A MENTAL DISORDER, A SPECIFIED? (More) AB 302 (Beall) PageB PURPOSE The purpose of this bill is to require that by July 1, 2012, specified mental health facilities shall report to the Department of Justice exclusively by electronic means when a person is admitted to that facility either because that person was found to be a danger to themselves or others, or was certified for intensive treatment for a mental disorder, a specified. Existing Federal law states that it shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to persons if that person is under indictment or has been convicted of specified crimes, is under a restraining order, has been committed to a mental institution, and other specified disqualifying factors. (18 U.S.C. 922.) Existing California law : 1)Requires that persons who sell, lease, or transfer firearms be licensed by California. (Penal Code 12070 and 12071.) 2)Sets forth a series of requirements to be state licensed by the Department of Justice (DOJ), which provides that to be recognized as state licensed a person must be on a centralized list of gun dealers and allows access to the centralized list by authorized persons for various reasons. (Penal Code 12071.) 3)Requires that firearms dealers obtain certain identifying information from firearms purchasers and forward that information, via electronic transfer to DOJ to perform a background check on the purchaser to determine whether he or she is prohibited from possessing a firearm. The record of applicant information must be transmitted to the Department of Justice in Sacramento by electronic transfer on the date of the application to purchase. The original of each record of electronic transfer shall be retained by the dealer in consecutive order. Each original shall become the permanent record of the transaction that shall be retained for not (More) AB 302 (Beall) PageC less than three years from the date of the last transaction and shall be provided for the inspection of any peace officer, Department of Justice employee designated by the Attorney General, or agent of the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives upon the presentation of proper identification, but no information shall be compiled therefrom regarding the purchasers or other transferees of firearms that are not pistols, revolvers, or other firearms capable of being concealed upon the person. (Pen Code 12076.) 4)Requires handguns to be centrally registered at time of transfer or sale by way of transfer forms centrally compiled by the DOJ. DOJ is required to keep a registry from data sent to DOJ indicating who owns what handgun by make, model, and serial number and the date thereof. (Penal Code 11106(a) and (c).) 5)Requires that, upon receipt of the purchaser's information, DOJ shall examine its records, as well as those records that it is authorized to request from the State Department of Mental Health pursuant to Section 8104 of the Welfare and Institutions Code, in order to determine if the purchaser is prohibited from purchasing a firearm because of a prior felony conviction or because they had previously purchased a handgun within the last 30 days, or because they had received inpatient treatment for a mental health disorder, as specified. (Penal Code 12076(d)(1).) 6)States that, to the extent funding is available, the Department of Justice may participate in the National Instant Criminal Background Check System (NICS), as specified, and, if that participation is implemented, shall notify the dealer and the chief of the police department of the city, or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under federal law. (Penal Code 12076(d)(2).) (More) AB 302 (Beall) PageD 7)States that if the department determines that the purchaser is prohibited from possessing a firearm, as specified, it shall immediately notify the dealer and the chief of the police department of the city, or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, of that fact. (Penal Code 12076(d)(3).) 8)States that no person who has been taken into custody, found to be a danger to himself, herself, or others, and, as a result, admitted to a specified mental health facility, shall own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm for a period of five years after the person is released from the facility, except as specified. (Welfare and Institutions Code 8103(f)(1).) For each such person, the facility shall immediately, on the date of admission, submit a report to the Department of Justice, on a form prescribed by the Department of Justice, containing information that includes, but is not limited to, the identity of the person and the legal grounds upon which the person was admitted to the facility. (Welfare and Institutions Code 8103(f)(2)(A).) 9)No person who has been certified for intensive treatment for a mental disorder, as specified, shall own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm for a period of five years and relevant treatment facilities shall report the identities of such persons to DOJ, as specified. (Welfare and Institutions Code 8103(g).) This bill would require that commencing July 1, 2012, the mental health care facilities required to report to DOJ persons taken into custody or treated for mental disorders, as specified above, shall submit reports pursuant to this paragraph exclusively by electronic means, in a manner prescribed by the Department of Justice. (More) AB 302 (Beall) PageE RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION The severe prison overcrowding problem California has experienced for the last several years has not been solved. In December of 2006 plaintiffs in two federal lawsuits against the Department of Corrections and Rehabilitation sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a federal three-judge panel issued an order requiring the state to reduce its inmate population to 137.5 percent of design capacity -- a reduction of roughly 40,000 inmates -- within two years. In a prior, related 184-page Opinion and Order dated August 4, 2009, that court stated in part: "California's correctional system is in a tailspin," the state's independent oversight agency has reported. . . . (Jan. 2007 Little Hoover Commission Report, "Solving California's Corrections Crisis: Time Is Running Out"). Tough-on-crime politics have increased the population of California's prisons dramatically while making necessary reforms impossible. . . . As a result, the state's prisons have become places "of extreme peril to the safety of persons" they house, . . . (Governor Schwarzenegger's Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California's residents, . . . . California "spends more on corrections than most countries in the world," but the state "reaps fewer public safety benefits." . . . . Although California's existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration. (Some citations omitted.) . . . The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including (More) AB 302 (Beall) PageF the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state's counterproductive parole system. Unfortunately, as California's prison population has grown, California's political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison existence. Likewise, although state-appointed experts have repeatedly provided numerous methods by which the state could safely reduce its prison population, their recommendations have been ignored, underfunded, or postponed indefinitely. The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point. The state of emergency declared by Governor Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally adequate medical and mental health care.<1> The court stayed implementation of its January 12, 2010, ruling pending the state's appeal of the decision to the U.S. Supreme Court. That appeal, and the final outcome of this litigation, is not anticipated until later this year or 2011. This bill does not appear to aggravate the prison overcrowding crisis described above. --------------------------- <1> Three Judge Court Opinion and Order, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (August 4, 2009). (More) AB 302 (Beall) PageG COMMENTS 1. Need for This Bill According to the author: California law prohibits certain persons who have been admitted to a mental health facility from purchasing or possessing firearms for a period of five years, and requires mental health facilities to immediately report information about such individuals to the DOJ so that it can conduct background checks on prospective purchasers of firearms. Current procedures allow mental health facilities to submit this information to the DOJ by mail, requiring manual entry of data into the background check database. In order to address the volume of records that must be transferred to the DOJ, facilities often delay sending the required information-sometimes waiting weeks or even months, to consolidate their shipments. Delayed reporting can have tragic consequences. The author reports that he was contacted by one constituent whose son purchased a firearm shortly after his release from a mental health facility and used it to commit suicide. The DOJ had not yet received the information from the facility when it conducted a background check. This tragedy likely would have been avoided if this bill, requiring immediate, electronic submission of information on the day of admission, had been in effect. AB 302 would address the problem of delayed reporting to the DOJ by requiring transmission of this information electronically in a manner prescribed by the DOJ. The requirement wouldn't take effect until July 1, 2012. (More) AB 302 (Beall) PageH Forms already exist and are in use for on-line reporting. The only "technology" required is an internet connection. (More) AB 302 (Beall) PageI 2. Reporting to the Department of Justice of Persons Held Due to Mental Illness Under existing law, when a person is taken into custody because they are considered to be a danger to themselves or others, and is admitted to a designated institution for a 72-hour evaluation pursuant to Civil Code section 5150 and 5251, that person is prohibited from possessing or purchasing a firearm for five years, as specified. (Welfare and Institutions Code 8103(f)(1).) Additionally, the institution is required to immediately report the fact of the person's admission to DOJ on the same day they are admitted. (Welfare and Institutions Code 8103(f)(2)(A).) If the person is then found to require intensive treatment, they may be held in a designated facility for up to 14 days for such treatment. (Welfare and Institutions Code 5250, et seq.) If this occurs, the facility is once again required to notify DOJ of that person's status immediately, stating not only the person's identity but also the grounds upon which they were certified for the 14-day "hold." (More) Under current law both these reports are required to be submitted "on a form prescribed by the department." (Welfare and Institutions Code 8103(f)(2)(A) and 8103(g)(2)(A).) This bill would require that, beginning July 1, 2012, those reports must be filed electronically, in a manner prescribed by DOJ. Currently these reports are submitted by U.S. mail. California requires firearms transfers, except as specified, to be conducted through a licensed dealer. When a dealer sells a firearm, the dealer is required to obtain certain identifying information from the purchaser and forward that information electronically to DOJ. DOJ is then required to perform a background check on the purchaser to determine whether he or she is prohibited from possessing a firearm. (Penal Code 12076.) If DOJ determines that the purchaser is prohibited from possessing a firearm, as specified, it shall immediately notify the dealer and the chief of the police department of the city, or city and county in which the sale was made, or if the sale was made in a district in which there is no municipal police department, the sheriff of the county in which the sale was made, of that fact. (Penal Code 12076(d)(3).) California law imposes a ten-day waiting period between the date of sale of the firearm and the date of delivery to the purchaser precisely to allow DOJ to complete the background check and to notify the dealer not to deliver the firearm if the purchaser is found to be prohibited from possessing firearms. (Penal Code 12072(c)(1).) The effect of this bill would be to speed up the delivery of information to DOJ that a person has been taken into custody as a potential threat to themselves or others, as specified above, and is therefore prohibited from possessing a firearm, as specified. COULD ELECTRONIC DELIVERY OF THIS INFORMATION PREVENT FIREARMS SALES TO MENTALLY UNSTABLE PURCHASERS? (More) AB 302 (Beall) PageK 3. Previous Legislation - Governor's Veto Message AB 2696 (Krekorian) of 2008 also would have required electronic transfer of information to the DOJ. That bill was vetoed, however, because of other provisions it contained requiring DOJ to participate in the National Instant Criminal Background Check System (NICS). The Governor vetoed that bill stating: This bill would impose additional costs and workload on the Department of Justice (DOJ) during a time of limited state resources. Funds for this purpose have not been included in the 2008-09 fiscal plan, and adding requirements to DOJ while also seeking programmatic reductions due to the state of the General Fund is inappropriate. In addition, this bill potentially creates a reimbursable mandate, which could lead to even more General Fund pressure and costs. The costs referred to in the veto message appear to be related to the requirement that DOJ participate in NICS, not the requirement for electronic reporting. ***************