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.  


                                   ***************