BILL ANALYSIS
SB 41
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Date of Hearing: June 30, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 41 (Lowenthal) - As Amended: June 23, 2009
SUMMARY : 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 and after the dealer notes the date
of delivery and the dealer and purchaser acknowledge the
purchaser's receipt of the firearm, as specified. Specifically,
this bill :
1)Requires the Department of Justice (DOJ) to, upon proper
application, furnish, in addition to information contained in
the firearms registry, as specified, any information related
to that person's ownership of the firearm reported to DOJ, as
specified and that DOJ update the information it maintains
regarding firearm ownership, as specified.
2)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.
3)Clarifies that law enforcement agencies shall report to DOJ
the disposition of any weapon in its possession whether the
weapon is retained, transferred, sold, or destroyed and
permits firearms dealers to submit firearms purchase
information to DOJ in other locations than Sacramento.
4)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.
5)Creates 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 LAW :
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1)Provides that the sale, loan or transfer of firearms in almost
all cases must be processed by, or through, a state-licensed
dealer or a local law enforcement agency with appropriate
transfer forms being used, as specified. In those cases where
dealer or law enforcement processing is not required, a
handgun change of title report must still be sent to DOJ.
(Penal Code 12078.)
2)Requires that in connection with any private party sale, loan
or transfer of a firearm, a licensed dealer must provide the
DOJ with specified personal information about the seller and
purchaser as well as the name and address of the dealer. This
personal information of buyer and seller required to be
provided includes the name; address; phone number; date of
birth; place of birth; occupation; eye color; hair color;
height; weight; race; sex; citizenship status; and a driver's
license number, California identification card number or
military identification number. A copy of the DROS,
containing the buyer and seller's personal information, must
be provided to the buyer or seller upon request. (Penal Code
12076.)
3)Requires that persons who sell, lease, or transfer firearms be
licensed by California. (Penal Code Sections 12070 and
12071.)
4)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 Section 12071.)
5)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
Sections 12071, 12072 and 12082.)
6)Exempts certain persons including, but not limited to, law
enforcement, beneficiaries of an inheritance, and those who
are loaned firearms, as specified, from the state dealer
licensing requirements. [Penal Code Section 12070(b).]
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7)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 Section 12072(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Currently,
persons who acquire, dispose of, or move into California with
a handgun have to go through a handgun registration process.
With the surge in sales and increase of DROS forms, it is
important to ensure accuracy. SB 41 provides additional
consumer protections by requiring the dealer to obtain a
signature when delivering the gun to the consumer; and,
improving the manner in which law enforcement reports
acquisitions, ownership, and disposition of firearms obtained
in the course and scope of their duties."
2)Recording the Date and Time of Handgun Delivery : Since about
1930, any purchase of a handgun from a dealer was reported to
DOJ (or its predecessor agency) for purposes of background
checks on the purchaser through the DROS form. This may be
commonly described as "registration". Since 1991,
transactions between private parties have been subject to DROS
registration through a licensed dealer. Registration of such
a transfer may also be completed at a law enforcement agency
through a Law Enforcement Firearms Transfer (LEFT) form.
(Penal Code Sections 12071, 12072, 12078 12082, and 12084.)
Certain exceptions, such as infrequent loans of firearms
between persons known to each other, apply. [Penal Code
Section 12078(d).] Existing law requires that the DOJ
maintain records of handgun sales and transfers. [Penal Code
Section 12076(c)(3).]
Before a consumer purchasing a handgun in California may take
possession of the gun, he or she must wait 10 days from the
date of purchase. During this time, the buyer's personal
identifying information is transmitted to DOJ for a background
check to determine whether he or she is prohibited from owning
a firearm. After the waiting period has expired and the
background check is completed, current law requires the dealer
to record on the DROS form the date and time of delivery of
the firearm to the purchaser. The DROS form prepared by the
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DOJ and used by licensed dealers in California, as modified
October 2003, does contain at the top under "Transaction
Information" a line for both "Delivery Date" and "Time" of
that delivery, which reflects the changes made to Penal Code
Section 12077 by SB 824 (Scott), Chapter 502, Statutes of
2003. Dealers must keep that form and make it available for
inspection by law enforcement officials; however, there is
some debate about whether that information must be submitted
to DOJ as a matter of course.
This issue was addressed in SB 357 (Perata) of the 2003-04
Legislative Session. At that time, Legislative Counsel issued
an opinion that DOJ could require dealers to write the
delivery date on DROS registers. However, DOJ could not
compel dealers to submit the information on delivery to DOJ;
DOJ could only enter that information into its Automated
Firearms System (AFS) if DOJ obtains the delivery information
by physically inspecting the registry kept by dealers. This
bill requires handgun dealers to not only record the date of
delivery of the handguns they sell but to transmit that data
to DOJ.
3)Documenting Delivery in Firearms Purchases : 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 Section 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 such as
a convicted felon. (Penal Code Sections 12071(b)(3)(A),
12072(c)(1) and 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 for at least three years. [Penal Code
Sections 12076(b)(2), 12076(c)(3), 12077(b)(3), and
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 Section 12071 (b)(19);
27 Code of Fed. Regs. 478.102 (c).]
Existing law requires the dealer to report to DOJ if the buyer
does not take possession of the gun within 30 days. Failure
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to do so is punishable as a misdemeanor, the forfeiture of the
dealer's license, or both. [Penal Code Sections 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 Section 11106 (c)(3).]
4)ACR 73 : In 2006, the Governor signed ACR 73 (McCarthy),
Chapter 128, Statutes of 2007, asking the California Law
Revision Commission (CLRC) to revise various provisions of the
Penal Code related to firearms. The CLRC is required to
prepare and submit recommended legislation by July 1, 2009.
ACR 73 focused the CLRC in revisions that accomplished the
following objectives:
"Reduce the length and complexity of current sections; avoid
unnecessary use of cross-references; neither expand nor
contract the scope of criminal liability under current
provisions; in the event that the commission's draft changes
the scope of criminal liability under the current provisions,
this shall be made explicit in the commission's draft or any
commentary related to the draft; to the extent compatible with
these objectives, use common definitions of terms, and;
organize existing provisions in such a way that similar
provisions are located in close proximity to each other."
In vetoing SB 1140 (Scott), of the 2003-04 Legislative Session,
related to the criminal storage of firearms around children,
the Governor stated, "Before a government exercises its power
to take away ones liberty, it should be clear to every person
what actions will cause them to forfeit their freedom.
Instead of adding to the lengthy and complex area of firearm
laws, a reorganization of the current laws should be
undertaken to ensure that statutes that impose criminal
penalties are easily understandable."
The author of ACR 73 stated, "In particular, the laws relating
to the transfers of firearms are lengthy, with numerous
cross-references, highly fact-specific exemptions, and complex
provisions. For example, Penal Code section 12078 is 5,880
words long and occupies 11 pages if printed in a 12 point font
with conventional margins. The section has cross-references
to many scattered sections of other firearms provisions, some
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of them hundreds of sections away. The firearms laws occupy
over 100 pages of an un-annotated version of the Penal Code
when printed in dual column in tiny print. These areas of the
law are not for legal experts only. Firearms owners, licensed
dealers, and law enforcement need to be able to interpret
these provisions in order to comply with the law and avoid
criminal liability. Ambiguity and confusion do not promote
the public policy goals that those laws were designed to
accomplish. ACR 73 is designed to task the CLRC, a neutral
body of legal experts, with the task of seeing if they can
simplify and reorganize these laws. It also includes a
statement of legislative intent that when the Commission's
work is complete that it will be tasked with addressing other
portions of the firearms laws." Does it make more sense to
delay non-urgent changes to the firearm codes until the CLRC
returns with its recommendations?
5)Argument in Support : According to the Brady Campaign to
Prevent Gun Violence , "SB 41 would require, in part, that the
DROS forms for a firearms transactions have signature lines to
be completed by both the dealer and the purchaser of a firearm
when the firearm is actually picked up from the dealer. In
addition, this bill would require the DOJ to maintain accurate
records, including the duty to purge records when it can be
shown that a person never took possession of a firearm. This
bill includes other provisions on which the Brady Campaign
Chapters take no position at this time. The need for accurate
information on firearm possession is becoming increasingly as
DOJ embarks on the implementation of the Armed and Prohibited
Persons System. DOJ estimates that up to 60,000 Californians
whoa re currently prohibited from purchasing or possessing
firearms, have firearms still registered in their names from
before the prohibition occurred. A record of receipt is
highly valuable information in following up with armed and
prohibited persons."
6)Arguments in Opposition :
a) According to the National Shooting Sports Foundation
(NSSF), "This bill would mandate that a licensed firearms
dealer record on the DROS form the date on which a firearm
is delivered to its purchaser or other transferee (buyer).
It sets up a new dual system of documentation when a
firearm is delivered, depending upon whether it is a long
gun or a handgun. If a long gun, the dealer must note the
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date of delivery on the DROS form at the time of transfer
to the buyer. However, if it is a handgun, both the dealer
and the buyer must sign and date the DROS form when the
handgun is transferred. The bill also would require (in
addition to the current state law mandating that a dealer
give a pre-delivery copy of the DROS form information to
the buyer upon the buyer's request), that the dealer
'shall' additionally give the buyer a copy at the actual
time of delivery. Thus, a dealer could be required to give
the buyer two copies of the DROS form, one before and one
at time of the delivery of the firearm.
"In the case of a private party sale, SB 41 further mandates
that the dealer give the seller a copy of the DROS form,
even if it is not requested, at the time the seller signs
it. NSSF opposes SB 41, as amended, because it needlessly
adds to the dealers' administrative workload and operating
costs. This additional burden in turn, would result in
retail prices increases for firearms, possibly resulting in
a decrease in sales. SB 41 would also expand licensed
firearms dealers to criminal prosecution for a paperwork
error (and expose them to license revocation by the Federal
Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE)
for failing to comply with state law). It would, in
addition, increase the burden on the DROS account which
will ultimately result in increased DROS fees paid by the
public. In most cases, SB 41 would provide little or no
useful information for law enforcement agencies. But, it
would impose on firearms dealer's new duties and costs that
cannot be justified in terms of any significant benefit
relative to the time and expense required for compliance.
"Furthermore, under current law, if a handgun used in a crime
is recovered by law enforcement they can trace it through
the Federal BATFE and the California DOJ to identify the
firearms dealers that sold the handgun and the firearm's
first retail purchaser. SB 41 only adds a needless burden
to the duties of a firearm dealer, and it gives law
enforcement nothing that they do not already have available
to identify the owner of a handgun and the date upon which
such owner took possession of it from the dealer."
b) According to the California Association of Firearms
Retailers , "Current law requires distribution of copies of
the DROS form to buyers and private party sales sellers
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upon their request. SB 41 would make such distribution
mandatory, even if the recipients do not want them.
Firearms dealers oppose these proposed new signature, date
and copy provisions because they needlessly add to their
administrative workload and operating costs. They can also
be confusing to employees. If an employee neglects to
obtain a handgun buyer's signature on the DROS form, fails
to note the date of delivery of any firearm, or does not
give the buyer of seller a copy of the DROS form as
required, it would be a violation of law that could result
in placing the dealer's license, and thus livelihood in
jeopardy. In most cases of firearms transfer by a licensed
dealer, SB 41 would provide little or no useful information
for law enforcement entities, and it would impose on
firearms dealer's new duties and costs that cannot be
justified in terms of any significant benefit. SB 41 would
also needlessly increase the cost to the Dealer Record of
Sale Account of the State General Fund."
7)Related Legislation : SB 175 (Aanestad) clarifies that
delivery of a firearm, as specified, to a gunsmith for service
or repair is exempt from the FFL licensing verification
requirements, as specified. SB 175 is pending hearing by the
Assembly Appropriations Committee.
8)Prior Legislation :
a) SB 327 (Migden), of the 2007-08 Legislative Session,
would have required that by
July 1, 2012 a firearms dealer record of electronic transfer
contain the date a transferred firearm is delivered, a
place to indicate if the handgun is released to the
purchaser, and whether the purchaser is concurrently
requesting a handgun registration notification be issued to
him or her, as specified. SB 327 was held on the Assembly
Committee on Appropriations' Suspense File.
b) SB 357 (Perata), of the 2003-04 Legislative Session,
would have allowed DOJ to require a firearms dealer to
report the delivery date of both handguns and long guns in
a manner and format prescribed by the DOJ. SB 357 was
never heard by the Senate Committee on Appropriations and
was returned to the Secretary of the Senate.
c) SB 950 (Brulte), Chapter 944, Statutes of 2001,
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established the Prohibited Armed Persons File, an online
database that cross-references information for persons
relative to the purchase and possession of firearms on or
after January 1, 1991 and information indicating those
persons who have subsequently been prohibited from owning
or possessing firearms, as specified.
REGISTERED SUPPORT / OPPOSITION :
Support
Brady Campaign to Prevent Gun Violence-California Chapter
Opposition
California Association of Firearms Retailers
California Sportsman's Lobby
Crossroads of the West Gun shows
Gun Owners of California
National Shooting Sports Foundation
Outdoor Sportsmen's Coalition of California
Safari Club International
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744