BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 41 (Lowenthal)
As Amended April 13, 2009
Hearing date: April 28, 2009
Penal Code
SM:br
FIREARMS: RECORD OF SALE
HISTORY
Source: Author
Prior Legislation: SB 327 (Migden) - 2008, died in Assembly
Appropriations
AB 1060 (Liu) - Ch. 715, Stats. 2005
AB 2431 (Steinberg) - Ch. 602, Stats. 2004
SB 824 (Scott) - Ch. 502, Stats. 2003
SB 357 (Perata) - 2004, died in Assembly
Appropriations
SB 238, (Perata) - Ch. 499, Stats. 2003
AB 1139 (Thomson) - 2001, gutted and amended to
cover different subject
Support: Brady Campaign to Prevent Gun Violence
Opposition:National Shooting Sports Foundation, Inc.; Safari
Club International; California Association of Firearms
Retailers; California Sportsman's Lobby; Crossroads of
the West Gun Shows; Outdoor Sportsman's Coalition of
California; California Rifle and Pistol Association
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KEY ISSUES
SHOULD FIREARMS DEALERS BE REQUIRED TO PROVIDE A RECEIPT TO
DOCUMENT DELIVERY OF A FIREARM?
(CONTINUED)
SHOULD THE DEPARTMENT OF JUSTICE BE REQUIRED TO REVISE THE FIREARMS
DEALER'S RECORD OF SALE FORM TO INCLUDE A SIGNATURE LINE
ACKNOWLEDGING RECEIPT OF THE FIREARM AND SPECIFIED ADVISORIES
REGARDING THE RIGHT TO REQUEST FIREARMS OWNERSHIP INFORMATION FROM
THE DEPARTMENT OF JUSTICE?
SHOULD THE LAW BE CLARIFIED REGARDING THE DUTY OF LAW ENFORCEMENT
AGENCIES TO REPORT TO DOJ THE DISPOSITION OF WEAPONS DECLARED TO BE
A NUISANCE WHETHER THE WEAPON IS RETAINED, TRANSFERRED, SOLD OR
DESTROYED?
SHOULD LAW ENFORCEMENT OFFICERS WHO ACQUIRE A FIREARM IN THE COURSE
OF THEIR DUTIES BE EXEMPT FROM FIREARMS TRANSFER REQUIREMENTS WHEN
THEY TURN THOSE FIREARMS IN TO THEIR EMPLOYING AGENCY?
SHOULD LAW ENFORCEMENT AGENCIES BE EXEMPT FROM NORMAL FIREARMS
TRANSFER REQUIREMENTS WHEN TRANSFERRING FIREARMS TO SPECIFIED
ENTITIES PROVIDED THEY REPORT THE TRANSFER TO THE DEPARTMENT OF
JUSTICE?
PURPOSE
The purpose of this bill is to (1) require DOJ to furnish a
person listed as a firearm owner with any information about that
ownership; (2) require DOJ to update information it maintains
regarding firearm ownership to maintain the accuracy of that
information; (3) update various statutes to reflect the name
change of the California National Guard Military Museum and
Resource Center to the State Military Museum and Resource
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Center; (4) clarify that law enforcement agencies shall report
to DOJ the disposition of any weapon in their possession whether
the weapon is retained, transferred, sold, or destroyed; (5)
eliminate duplicative reporting requirements regarding firearms
acquired by secondhand dealers; (6) make technical,
non-substantive changes to the language of various firearms
statutes; (7) permit firearms dealers to submit firearms
purchase information to DOJ in other locations than Sacramento;
(8) require firearms dealers to provide a firearms buyer with a
copy of the dealer record of sale (DROS) form at the time of
delivery of the firearm and after the dealer notes the date of
delivery and the dealer and purchaser acknowledge the
purchaser's receipt of the firearm, as specified; (9) require
that, in the case of a private party transaction, a copy of the
DROS form will be provided to the buyer by the dealer at the
time the form is signed by the seller; (10) require DOJ to add
to the DROS form a statement advising purchasers of their rights
to request firearms ownership information from DOJ, their right
to file reports with DOJ regarding such ownership, and
information regarding how to access DOJ's Web site; (11) create
exemptions from normal firearms transfer requirements for law
enforcement officers who acquire firearms in the course of their
duties and deliver them to their employing agency, as specified;
(12) create an exemption to normal firearms transfer
requirements for peace officers employed by the Department of
Fish and Game who take possession of a firearm in the course of
their duties and transfer it to their employing agency or to a
local law enforcement agency, as specified; and (13) create
exemptions from normal firearms transfer requirements for
firearms transferred by a law enforcement agency to licensed
firearms dealers, wholesalers or manufacturers, so long as the
transaction is reported to DOJ, as specified.
Existing Federal Law :
1)Requires that persons in the firearms industry and licensed
collectors possess a Federal Firearms License (FFL) issued by
the Secretary of the Treasury. (18 U.S.C. 44.)
2)Generally requires that before an FFL holder can ship or
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deliver a firearm to an out-of-state or in-state source the
recipient be an FFL holder as well. (18 U.S.C. 922.)
3)Requires that firearms dealers and purchasers fill out a form
(ATF Form 4473) containing personal identifying information
about the purchaser and attesting to the fact that the
purchaser is not prohibited from owning a firearm. The dealer
must record, among other things, the date of transfer of any
firearm on ATF Form 4473 and this form must be retained by the
dealer for at least 20 years. (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 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) Authorizes DOJ to charge a fee up to $115 to be on the
centralized list and allows these funds to be used to
finance DOJ compliance efforts. (Penal Code 12071
(f).)
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) Provides that the firearms dealer shall record on
the register the date the firearm is delivered.
(Penal Code 12077 (b)(3) and (c)(3).)
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6) Requires that the dealer shall retain the original
copy of the register for at least 3 years. (Penal
Code 12076 (b)(2), 12076 (c)(3).)
7) Requires that, if a firearm is purchased and not
delivered within 30 days, that fact must be reported
to DOJ. (Penal Code 12071 (b)(19); 27 Code of Fed.
Regs. 478.102 (c).)
8) Provides that revocation of a license will result
where a person fails to comply with numerous
requirements, including conducting background checks
prior to delivery of firearms, assisting in the
registration of handguns, processing private-party
firearms transactions, keeping extensive records and
submitting the same to DOJ, and making those records
available for law enforcement inspection. (Penal
Code 12071, 12072 and 12082.)
9) Exempts certain persons including, but not limited
to, law enforcement, beneficiaries of an inheritance,
and those who are loaned a firearm, as specified,
from the state dealer licensing requirements. (Penal
Code 12070 (b).)
10) 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).)
11) 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.)
12) Provides exemptions from the rules on the sales of
firearms and the waiting period for
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commercial-wholesale transactions. Other
transactions are exempt; but in order to claim the
exemption, handgun registration is required, together
with proof of safety training.
13) 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 DOJ. (Penal Code 12072
(f)(2).)
14) Requires that any law enforcement agency that
retains custody of any firearm, as specified, or
that destroys a firearm found to be a nuisance
shall notify the Department of Justice of the
retention or destruction. This notification shall
consist of a complete description of each firearm,
including the name of the manufacturer or brand
name, model, caliber, and serial number. (Penal
Code 12030 (e).)
This bill requires DOJ to, upon proper application, furnish, in
addition to information contained in the firearms registry
maintained by DOJ, any information related to that person's
ownership of that firearm reported to the department as it
relates to him or her.
This bill requires DOJ to update information it maintains
regarding firearm ownership to maintain the accuracy of that
information.
This bill updates various statutes to reflect the name change of
the California National Guard Military Museum and Resource
Center to the State Military Museum and Resource Center.
This bill clarifies that law enforcement agencies shall report
to DOJ the disposition of any weapon in their possession whether
the weapon is retained, transferred, sold, or destroyed.
This bill provides that secondhand dealers who have reported the
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acquisition of a handgun under the applicable requirements of the
Business and Professions Code need not also report the same
transaction under Penal Code provisions pertaining to acquisition
of handguns by firearms dealers.
This bill makes technical, non-substantive changes to the
language of various firearms statutes.
This bill authorizes firearms dealers to submit firearms
purchase information to DOJ in other locations than Sacramento.
This bill requires firearms dealers to provide a firearms buyer
with a copy of the dealer record of sale (DROS) form at the time
of delivery of the firearm after the dealer notes the date of
delivery and the dealer and purchaser acknowledge the
purchaser's receipt of the firearm, as specified.
This bill requires that, in the case of a private party
transaction, a copy of the DROS form will be provided to the
buyer by the dealer at the time the form is signed by the
seller.
This bill requires DOJ to add to the DROS form a statement
advising purchasers of their rights to request firearms
ownership information from DOJ, their right to file reports with
DOJ regarding such ownership, and information regarding how to
access DOJ's Web site.
This bill creates exemptions from normal firearms transfer
requirements for law enforcement officers who acquire firearms
in the course of their duties and deliver them to their
employing agency within 24 hours.
This bill creates an exemption to normal firearms transfer
requirements for peace officers employed by the Department of
Fish and Game who take possession of a firearm in the course of
their duties and transfer it to their employing agency or to a
local law enforcement agency within 24 hours.
This bill creates exemptions from normal firearms transfer
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requirements for firearms transferred by a law enforcement
agency to firearms dealers, wholesalers or manufacturers, so
long as the transaction is reported to DOJ, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
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period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
The purpose of SB 41 is to make a series of
changes to clarify firearms registration
procedures while providing additional protections
to consumers. Specifically, SB 41 will notify
consumers on the DROS as to what forms they may
file with DOJ requesting a list of what guns they
own. It is important for: (i) persons who did
not take possession of guns listed in their name
and (ii) or persons who thought that they took
possession of gun A and got gun B to have an
accurate list.
By creating a purge mandate, this creates a much
more accurate data base. There are concerns about
dual registrations, purges, and assurances that
guns are otherwise properly registered.
Finally, the bill clarifies law enforcement
disposition and reporting procedures so that the
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<2> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
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flow of weapons is accurately tracked.
2. Existing Law - Handgun Registration
Since about 1930, any purchase of a handgun from a dealer has
been reported to the Department of Justice (or its predecessor
agency) for purposes of background checks on the purchaser
through the Dealer Report of Sale (DROS) form. This may be
commonly described as registration. Since 1991, but not before
that time, transactions between private parties have been
subject to DROS registration through a licensed dealer.
Registration of such a transfer may also be done at a law
enforcement agency through a Law Enforcement Firearms Transfer
(LEFT) form. (LEFT is seldom used in practice.) (Penal Code
12071, 12072, 12078 12082, 12084.) Certain exceptions, such as
infrequent loans of firearms between persons known to each
other, apply. (Penal Code 12078 (d).)
Existing law requires that the Department of Justice maintain
records of handgun sales and transfers. (Penal Code 12076
(c)(3).)
3. Firearms Purchases: Documenting Delivery
Under current law, firearms dealers are required to obtain
identification and other information from any prospective
firearms purchaser and transmit that information to DOJ by way
of the DROS form. (Penal Code 12076.) The buyer must wait 10
days before taking possession of the firearm, during which time
DOJ conducts a background search on the buyer to determine
whether the buyer is a person prohibited from owning a firearm
(e.g. a convicted felon). (Penal Code 12071 (b)(3)(A); 12072
(c)(1); 12076.) If DOJ does not notify the dealer that the
purchaser is prohibited from owning a firearm, the purchaser may
take possession after the 10-day waiting period. The dealer is
then required to record the date and time that the firearm was
delivered to the buyer and is required to maintain that record
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for at least three years. (Penal Code 12076 (b)(2); 12076
(c)(3); 12077 (b)(3); 12077 (c)(3).) In the event the buyer,
for any reason, does not take possession of the firearm within
30 days, that fact must be reported to DOJ. (Penal Code 12071
(b)(19); 27 Code of Fed. Regs. 478.102 (c).)
This bill addresses the potential for a purchaser to buy a
firearm, whereupon the dealer would submit the DROS form to DOJ,
but the purchaser then does not take possession of that firearm
and, in violation of the law, the dealer fails to report that
fact to DOJ. In such a situation, the would-be purchaser would
then still appear on DOJ records as the owner of the firearm of
which he or she never, in fact, took possession. To address
this hypothetical possibility, the bill would (1) require a
signature line to be added to the DROS form to be signed by the
purchaser and the dealer to acknowledge delivery; (2) require
the dealer to provide a copy of the DROS form to the buyer upon
delivery of the firearm; and (3) require DOJ to amend the DROS
form to add several advisories regarding the right to request
gun ownership records from DOJ and information about how to
access DOJ's Web site.
As noted above, existing law requires the dealer to report to
DOJ if the buyer does not take possession of the gun within 30
days. Failure to do so is punishable as a misdemeanor, the
forfeiture of the dealer's license, or both. (Penal Code
12071 (b)(19) and 12072 (a)(7) and (g).) Dealers are also
currently required to provide a copy of the DROS form when the
buyer takes possession of the firearm if the buyer asks for it.
Lastly, existing law allows buyers to check with DOJ to
determine whether DOJ lists them as the owner of any firearm.
(Penal Code 11106 (c)(3).) Members may wish to consider
whether the protections under current law are sufficient to
address the potential for a person being falsely listed with DOJ
as the owner of a firearm of which they never actually took
possession.
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IS THERE ANY EVIDENCE THAT FIREARMS DEALERS ARE NOT FOLLOWING
THE LAW AND ARE FAILING TO REPORT TO DOJ WHEN A BUYER DOES NOT
TAKE DELIVERY OF A FIREARM?
DOES EXISTING LAW PROVIDE SUFFICIENT PROTECTION AGAINST THIS
PERCEIVED PROBLEM?
4. Informing DOJ of the Disposition of Nuisance Guns
With respect to firearms that are subject to destruction as a
nuisance, Penal Code Section 12030 allows law enforcement
agencies to (1) use such firearms to carry out its official
duties; (2) transfer them to the National Guard or other
specified entities; or (3) transfer them to other law
enforcement agencies for their use. This section also requires
that any such weapons must be either destroyed or returned to
the agency from whence it came, as specified, when it is no
longer needed by the receiving agency to carry out its official
duties.
This bill amends Section 12030 to clarify that law enforcement
agencies shall report the disposition of such weapons to DOJ
whether the weapon is retained, transferred, sold or destroyed.
SHOULD THIS CLARIFICATION BE MADE?
5. Sale, Transfer and Destruction of Other Firearms in the
Possession of Law Enforcement
This bill amends Penal Code Section 12078 to provide that
transfers of firearms by law enforcement agencies to licensed
firearms manufacturers, wholesalers, or dealers are exempted
from normal firearms transfer requirements so long as these
transactions are duly reported to DOJ, as specified. This bill
also provides that normal firearms transfer requirements do not
apply to firearms acquired by a peace officer or his or her
agent acting in the course and scope of their duties so long as
such firearms are turned in to the officers' employing agency
within 24 hours of receipt. Additionally, this bill requires
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that any agency that is the registered owner of a firearm and
subsequently destroys that firearm shall enter that data into
the AFS, as specified.
SHOULD THERE BE AN EXEMPTION TO NORMAL FIREARMS TRANSFER
REQUIREMENTS IN THE CASE OF A LAW ENFORCEMENT OFFICER WHO
OBTAINS A FIREARM IN THE COURSE OF HIS OR HER DUTIES AND TURNS
IT IN TO HIS OR HER EMPLOYING AGENCY WITHIN 24 HOURS?
SHOULD TRANSFERS OF FIREARMS BY LAW ENFORCEMENT AGENCIES TO
LICENSED MANUFACTURERS, WHOLESALERS OR DEALERS BE EXEMPTED FROM
NORMAL FIREARMS TRANSFER REQUIREMENTS SO LONG AS THESE TRANSFERS
ARE REPORTED TO DOJ, AS SPECIFIED?
6. Different Standard for Fish and Game Officers
This bill allows the exemption from normal firearms transfer
requirements to apply to peace officers employed by the
Department of Fish and Game who acquire a firearm in the course
and scope of their duties and who deliver that firearm to either
their employing agency or the sheriff or police department in
the county where the officer took possession of the firearm, as
specified. This is in contrast to the requirement that other
peace officers turn in such weapons to their employing agency
within 24 hours.
SHOULD PEACE OFFICERS EMPLOYED BY THE DEPARTMENT OF FISH AND
GAME BE REQUIRED TO TURN IN FIREARMS ACQUIRED IN THE COURSE OF
THEIR DUTIES TO THEIR EMPLOYING AGENCY OR LOCAL LAW ENFORCEMENT
AGENCY, AS SPECIFIED?
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