BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 1 8 1 AB 1810 (Feuer) 0 As Amended May 28, 2010 Hearing date: June 29, 2010 Penal Code SM:mc LONG GUN TRANSFER RECORDS HISTORY Source: California Chapters of the Brady Campaign to Prevent Gun Violence; Legal Community Against Gun Violence Prior Legislation: None directly on point Support: Los Angeles County Sheriff; Chiefs of Police for the Cities of Chico; Davis; Emeryville; Fairfield; Fresno; Glendora; Healdsburg; Orinda; Oxnard; Pinole; Pleasant Hill; Richmond; Santa Ana; Seal Beach; Stockton; Ventura; West Sacramento; Twin Cities Police Authority; Brady Campaign Chapters of Contra Costa, West Contra Costa, Long Beach, Los Angeles, Nevada County, Oakland/Alameda County, Orange County, Sacramento Valley, San Fernando Valley, San Francisco, Sonoma County, Ventura County; Friends Committee on Legislation of CA; Interfaith Council of Contra Costa County; Santa Barbara Coalition Against Gun Violence; Taxpayers for Improving Public Safety; Violence Prevention Coalitions of Orange County and Greater Los Angeles; Women Against Gun Violence; Youth Alive; City of Santa Barbara Police Department; numerous local elected officials and private (More) AB 1810 (Feuer) PageB individuals Opposition:Sheriffs for the Counties of Kern; Mariposa; Mendocino; Mono; Nevada; Placer; Riverside; San Bernardino; Solano; Stanislaus; Tehama; Tuolumne; California Association of Firearms Retailers; California Rifle & Pistol Association; California Outdoor Heritage Alliance; California Sportman's Lobby; Crossroads of the West Gun Shows; National Rifle Association; National Shooting Sports Foundation; Outdoor Sportmen's Coalition of California; Safari Club International; Phoenix Uniforms; Gun owners of California; private individuals Assembly Floor Vote: Ayes 42 - Noes 29 KEY ISSUE SHOULD FIREARMS REPORTING AND RECORD RETENTION REQUIREMENTS THAT CURRENTLY APPLY ONLY TO HANDGUNS ALSO APPLY TO LONG GUNS? PURPOSE The purpose of this bill is to apply to long guns and handguns those firearms reporting and record retention requirements that currently apply only to handguns. Existing law requires that persons who sell, lease, or transfer firearms be licensed by California. (Penal Code 12070 and 12071.) Existing law requires all sales, loans, and transfers of firearms to be processed through or by a state-licensed firearms dealer or a local law enforcement agency. (Penal Code 12072(d).) (More) AB 1810 (Feuer) PageC Existing law provides that there is a 10-day waiting period when purchasing a handgun through a firearms dealer. During which time, a background check is conducted and a handgun safety certificate is required prior to delivery of the firearm. (Penal Code 12071 and 12072.) Existing law requires a person moving to California with a handgun acquired outside California and who did not receive the gun from a California-licensed gun dealer to register the gun with the Department of Justice (DOJ). (Penal Code 12072(f)(2).) Existing law provides that handguns are centrally registered with DOJ as part of this process. A violation of these handgun provisions is an alternate felony/misdemeanor punishable, by up to one year in the county jail or by imprisonment in the state prison for 16 months, two or three years. The alternate felony/misdemeanor provisions that are treated as felonies are offenses which presumptively mandate a state prison sentence. (Penal Code 1203(e)(13), 11106, and 12072(c) and (d).) Existing law permits DOJ to require firearms dealers to charge firearms purchasers specified fees for a number of specified costs. (Penal Code 12076.) Existing law creates numerous exemptions from the requirement (that sales, loans and transfers of firearms be conducted through a dealer or local law enforcement agency) transactions with authorized peace officers, certain operation of law transactions, and intra-familial firearms transactions. (Penal Code 12078.) Existing law requires California residents who are federally licensed curio and relic firearms collectors who lawfully acquire a curio or relic handgun outside this state to report the acquisition of that firearm to the DOJ. (Penal Code 12072(f)(3).) Existing law requires a person moving into California (with a handgun acquired outside of California) who did not receive the (More) AB 1810 (Feuer) PageD gun from a California licensed gun dealer, to register the gun with the DOJ by mailing a form. (Penal Code 12072(f)(2).) Existing law provides that handguns are centrally registered at time of transfer, importation or sale. (Penal Code 11106.) Existing law requires DOJ to compile the Prohibited Armed Persons File to identify via registration records those persons who are the registered owner of a firearm and subsequently become ineligible to possess firearms and creates a mechanism to disarm these persons. (Penal Code 12010 to 12012.) Existing law requires each sheriff or police chief executive to submit descriptions of serialized property, or non-serialized property that has been uniquely inscribed, which has been reported stolen, lost, found, recovered or under observation, directly into the appropriate DOJ automated property system for firearms, stolen bicycles, stolen vehicles, or other property, as the case may be. (Penal Code 11108(a).) Existing law states information about a lost or stolen firearm entered into the automated system for firearms shall remain in the system until the reported firearm has been found, recovered, is no longer under observation, or the record is determined to have been entered in error. (Penal Code 11108(b).) Existing law provides that in addition to the requirements of existing law that apply to a local law enforcement agency's duty to report to DOJ the recovery of a firearm, a police or sheriff's department shall, and any other law enforcement agency or agent may, report to the department in a manner determined by the Attorney General (AG) in consultation with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) all available information necessary to identify and trace the history of all recovered firearms that are illegally possessed, have been used in a crime, or are suspected of having been used in a crime. (Penal Code 11108.3(a).) Existing law states when the DOJ receives information from a local law enforcement agency pursuant to existing law, it shall (More) AB 1810 (Feuer) PageE promptly forward this information to the National Tracing Center of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to the extent practicable. (Penal Code 11108.3(b).) Existing law states that in order to assist in the investigation of crime, the prosecution of civil actions by city attorneys as specified, the arrest and prosecution of criminals, and the recovery of lost, stolen, or found property, the AG shall keep and properly file a complete record of all copies of fingerprints, copies of licenses to carry firearms, information reported to DOJ pursuant to Penal Code Section 12053, dealers' records of sales of firearms, specified reports, specified forms, and reports of stolen, lost, found, pledged, or pawned property in any city or county of California, and shall, upon proper application therefore, furnish this information to the officers as specified. (Penal Code 11106(a).) Existing law states that except as provided, the AG shall not retain or compile any information from specified reports for firearms that are not handguns, or from dealers' records of sales for firearms that are not handguns. All copies of the forms submitted, or any information received in electronic form, for firearms that are not handguns, or of the dealers' records of sales for firearms that are not handguns shall be destroyed within five days of the clearance by the AG unless the purchaser or transferor is ineligible to take possession of the firearm. All copies of the reports filed, or any information received in electronic form for firearms that are not handguns shall be destroyed within five days of the receipt by the AG, unless retention is necessary for use in a criminal prosecution. (Penal Code 11106(b)(1).) Existing law provides that a peace officer, the AG, a DOJ employee designated by the AG, or any authorized local law enforcement employee shall not retain or compile any information from a firearms transaction record for firearms that are not handguns unless retention or compilation is necessary for use in a criminal prosecution or in a proceeding to revoke a license issued. (Penal Code 11106(b)(2).) A violation of this (More) AB 1810 (Feuer) PageF subdivision is a misdemeanor. (Penal Code 11106(b)(3).) Existing law states that notwithstanding Penal Code Section 11106, the DOJ may retain personal information about an applicant in connection with a claim for a firearm that is not a handgun to allow for law enforcement confirmation of compliance with this section. The information retained may include personal identifying information regarding the individual applying for the clearance, but may not include information that identifies any particular firearm that is not a handgun. (Penal Code 12021.3(h).) Existing law states that on or after January 1, 1998, within 60 days of bringing a handgun into California, a personal handgun importer shall do one of the following (Penal Code 12072(f)(2)(A)): Forward by prepaid mail or deliver in person to DOJ, a report prescribed by DOJ, including information concerning that individual and a description of the firearm in question; Sell or transfer the firearm in accordance with specified provisions; Sell or transfer the firearm to a licensed dealer; or, Sell or transfer the firearm to a sheriff or police department. Existing law states that if the personal handgun importer sells or transfers the handgun, as specified, and the sale or transfer cannot be completed by the dealer to the purchaser or transferee, and the firearm can be returned to the personal handgun importer, the personal handgun importer shall have complied with the provisions of this paragraph. (Penal Code 12072(f)(2)(B).) This bill applies to long guns and handguns those firearms reporting and record retention requirements that currently apply only to handguns. (More) AB 1810 (Feuer) PageG This bill deletes the prohibition on peace officers, Department of Justice (DOJ) employees, and the Attorney General (AG) from retaining or compiling certain information relating to transactions regarding firearms that are not handguns, as specified. A violation of these provisions under current law is a misdemeanor. The deletion of this misdemeanor prohibition takes effect on July 1, 2012. This bill makes conforming changes to the code to reference "firearms" in lieu of "handguns." 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 (More) AB 1810 (Feuer) PageH 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 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 (More) AB 1810 (Feuer) PageI 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. On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear the state's appeal in this case. This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author: State law requires that records of long gun sales be destroyed by the CA Department of Justice. The needless destruction of these records 1) prevents law enforcement from using the information to quickly identify the owners of crime guns; 2) prevents law enforcement in identifying all firearms- not just handguns- owned by persons who are prohibited by law from possessing guns; and 3) puts law enforcement at needless risk when they go to private residences to respond to an emergency or serve a warrant without the complete knowledge of what firearms may be stored at the home. By treating handguns and long guns alike, AB 1810 would provide several important benefits to law enforcement. Specifically, it would improve their 1) ---------------------- <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 1810 (Feuer) PageJ ability to investigate gun crimes; 2) on-the-job safety; and 3) efforts to disarm prohibited persons. In 2006, 3,345 people died from firearm-related injuries in California and an additional 4,491 people were hospitalized for non-fatal gunshot wounds.<2> Moreover, between 2005 and 2009, the California Department of Justice (DOJ) designated 84,123 firearms as crime guns in the Automated Firearm System (AFS) database.<3> Long guns (rifles and shotguns) play a significant role in our gun violence epidemic. Of the 26,682 crime guns entered into the AFS database in 2009, 11,500 were long guns. DOJ sweeps to seize illegally possessed firearms have uncovered roughly equal numbers of illegal handguns (2,143) and long guns (2,019).<4> Just last year alone, Californians purchased 253,296 long guns, significantly more than the 225,000 handguns acquired in the same time period.<5> Law enforcement efforts to investigate and prosecute ---------------------- <2> California Department of Health Services, Epidemiology and Prevention for Injury Control Branch (EPIC), Firearm Injuries in California (2009), a http://www.applications.dhs.ca.gov/epicdata/content/st_firearm.ht m <3>. Data provided by the California Department of Justice, April 6, 2010 <4>. Data provided by the California Department of Justice, March 4, 2010 <5>. California Department of Justice, "Dealer's Record of Sale (Calendar Year Statistics)," provided on March 4, 2010 (More) AB 1810 (Feuer) PageK gun crimes are aided by the AFS database, which contains records of all handgun transfers. However, state law requires that records of long gun sales be destroyed by DOJ. AB 1810 would stop the needless destruction of long gun records, which prevents law enforcement from using this information to quickly identify the owners of crime guns. Without these records, law enforcement must painstakingly trace a recovered firearm from the manufacturer, through the distributor, to the firearms dealer who sold the weapon. AB 1810 would also ensure the integrity of long gun records by removing reporting and recordkeeping exemptions that currently apply to certain long gun transfers. Another significant benefit of long gun record retention is that it would protect law enforcement officers who must respond to emergency calls at private residences. Officers currently could use the AFS database to check whether a person at a residence may own any handguns, but they have no way of knowing whether that person may own any long guns. This information gap puts law enforcement at needless risk. Finally, long gun record retention would assist law enforcement in identifying all firearms - not just handguns - owned by persons who are prohibited by law from possessing guns. These critical records would help law enforcement facilitate firearm relinquishment by dangerous felons and others who have been convicted of crimes which render them ineligible to possess firearms. Long gun record retention would not adversely impact law-abiding citizens, but would provide important benefits to law enforcement. 2. Records of Firearm Sales and Transfers (More) AB 1810 (Feuer) PageL California law requires, with specified exceptions, all transfers of firearms to be conducted through a licensed dealer. When a person buys any type of firearm, the dealer is required to obtain personal identification information from the buyer and to report this to DOJ on the Dealer Record of Sale or DROS form. This allows DOJ to perform a criminal history check on the buyer to determine if he or she is prohibited from possessing a firearm. In the case of handguns, DOJ retains that information, which becomes part of the Automated Firearms System (AFS) database. However, current law requires DOJ to destroy records of long gun sales within five days of the record check unless the purchaser or transferor is ineligible to take possession of the firearm. All copies of the reports filed, or any information received in electronic form for firearms that are not handguns must be destroyed within five days of the receipt by the AG, unless retention is necessary for use in a criminal prosecution. (Penal Code 11106(b)(1).) Failure to comply with this requirement is a misdemeanor. (Penal Code 11106(b)(3).) This bill would remove the provision requiring DOJ to destroy records of long-gun sales as of July 1, 2012. 3. Automated Firearms System Database The effect of this bill would be to include data regarding sales of long guns in the AFS database records maintained by DOJ. Currently, the destruction of these records of long-gun ownership means law enforcement do not have that information available to quickly identify the owners of long guns recovered at a crime scene or otherwise suspected of being used in a crime. The maintenance of long gun records would help trace the ownership and history of long gun and presumably thereby help solve some crimes involving long guns. WOULD RETENTION OF TRANSFER RECORDS REGARDING LONG GUNS HELP LAW ENFORCEMENT SOLVE SOME CRIMES INVOLVING FIREARMS? Lack of access to records of long gun ownership also denies law enforcement the ability to predetermine, before they respond to (More) AB 1810 (Feuer) PageM an emergency or serve a warrant, whether a rifle or shotgun may be found at the residence. If these records were retained, an officer responding to a call at a residence or serving a warrant could access the AFS database and be advised whether the resident is the registered owner of a rifle or shotgun. WOULD ACCESS TO THIS INFORMATION HELP PROTECT POLICE? Analysis of gun crime trace data also helps federal, state, and local law enforcement to identify firearm traffickers and the sources of guns used in crimes. Maintaining records of long-gun sales and transfers could help law enforcement agencies reduce the illegal trade in firearms. 4. Prohibited Armed Persons File In 2001, the Legislature created the Prohibited Armed Persons File to ensure otherwise prohibited persons do not continue to possess firearms. (SB 950 (Brulte), Chapter 944, Statutes of 2001.) The purpose of the file is to cross-reference persons who have ownership or possession of a firearm on or after January 1, 1991, as indicated by a record in the Consolidated Firearm Information System, and who, subsequent to the date of that ownership or possession of a firearm, fall within a class of persons who are prohibited from owning or possessing a firearm. (Penal Code section 12010(a).) According to DOJ, in July 2003, the Department of Justice received funding to build a database of this information - the Armed and Prohibited Persons System - which became operational in 2006 and made fully available to local law enforcement in 2007. SB 950 also mandated that DOJ provide investigative assistance to local law enforcement agencies to better insure the investigation of individuals who continue to possess firearms despite being prohibited from doing so. (Penal Code 12012.) DOJ states: California Department of Justice special agents have (More) AB 1810 (Feuer) PageN trained approximately 500 sworn local law enforcement officials in 196 police departments and 35 sheriffs departments on how to use the database during firearms investigations. The Department has also conducted 50 training sessions on how to use the vehicle-mounted California Law Enforcement Telecommunications System terminals to access the database. ( http://ag.ca.gov/newsalerts/release.php?id=1505&year=2007&month=12 ) In summary, current law establishes a mechanism whereby DOJ cross-references persons who are prohibited from possessing a firearm with records of persons who have purchased firearms and any "prohibited person" who is listed as a firearm owner goes in the Prohibited Armed Persons File. DOJ and local law enforcement agencies can utilize that list to investigate firearms violations and seize firearms from prohibited persons. However, one significant factor limiting the efficacy of this system is that DOJ is prohibited by law from retaining records of long-gun ownership. Therefore, when DOJ compares the list of firearms owners with the list of prohibited persons, it is really only able to discover handgun owners that may be in illegal possession of those weapons. A person who, for example, is prohibited by law from owning a firearm due to a history of mental illness could nonetheless be in possession of a rifle or shotgun and this illegal possession could not be discovered through a record check and this person would not be included on the Armed Prohibited Persons list. WOULD RETENTION OF TRANSFER RECORDS REGARDING LONG GUNS HELP LAW ENFORCEMENT IDENTIFY LONG GUNS OWNED BY PERSONS WHO ARE PROHIBITED BY LAW FROM POSSESSING GUNS? IS THE REQUIRED DESTRUCTION OF THESE RECORDS INCONSISTENT WITH THE CREATION OF THE PROHIBITED ARMED PERSONS FILE? 5. Argument in Support (More) The Sheriff of Los Angeles states: Under current law, only handgun purchase and transfer records are retained by the Department of Justice (DOJ) and entered into the Automated Firearms System (AFS). Handgun records are an important tool for law enforcement to trace crime guns, identify and disarm hundreds of convicted felons, and return stolen handguns to their rightful owners. Assembly Bill 1810 would close this loophole in state law by removing existing exceptions that require the destruction of long gun sales and transfer records and require all firearms, including long guns, are input into AFS. This bill would require the preservation of records for long guns sold or transferred after July 1, 2012. Data from the California Department of Justice shows that more than half the guns recovered from armed and prohibited persons are long guns. This bill would also increase the safety of law enforcement by providing better information regarding the guns we may face. An officer responding to a call or serving a domestic violence warrant could access the AFS database and be forewarned of the likelihood of encountering both handguns and long guns. Many long guns put officers at greater risk because of their fire power and ability to shoot through protective vests. Moreover, even a poorly aimed shotgun could greatly injure a law enforcement officer or anyone else. 6. Argument in Opposition The Sheriff of Kern County states: I believe there are currently enough firearms laws in place and this legislation will not help reduce crime, and will increase administrative costs. (More) AB 1810 (Feuer) PageP The fact is that criminals do not register illegally possessed firearms. Therefore, this legislation will only increase the red tape burden of shotgun and rifle ownership on law-abiding taxpayers. This legislation will increase mandatory procedures and costs for the small business owner, the licensed firearms dealers throughout the state who are already overburdened with federal and state licensing, record keeping, reporting and inspection requirements. Also, in terms of costs, the added burden to the criminal justice system cannot be overlooked. The expense of implementing this legislation, from maintaining database records to the investigation, arrest and prosecution of new criminals created through this law, will be astronomical when integrated with [the] current fiscal crisis at hand. ***************