BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 175 (Aanestad)
As Amended April 21, 2009
Hearing date: April 28, 2009
Penal Code
SM:mc
FIREARMS
HISTORY
Source: Pete Mazur Restoration
Prior Legislation: AB 2521 (Jones) - Ch. 784, Stats. of 2006
AB 2080 (Steinberg) - Ch. 909, Stats of 2002
Support: California Association of Firearms Retailers; National
Shooting Sports Foundation
Opposition:None known
KEY ISSUES
SHOULD IT BE CLARIFIED THAT TRANSFERS TO AND FROM GUNSMITHS FOR
PURPOSES OF REPAIRS ARE EXEMPT FROM SPECIFIED FIREARMS LICENSE
VERIFICATION REQUIREMENTS?
SHOULD THE EXEMPTION FROM FIREARMS LICENSE VERIFICATION
REQUIREMENTS FOR TRANSFERS OF SHORT-BARRELED RIFLES,
SHORT-BARRELED SHOTGUNS, MACHINE GUNS AND ASSAULT WEAPONS BE
DELETED?
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(CONTINUED)
SHOULD TRANSFERS OF FIREARMS BE EXEMPT FROM SPECIFIED FIREARMS
LICENSE VERIFICATION REQUIREMENTS WHERE THE TRANSFEROR AND THE
TRANSFEREE ARE THE SAME ENTITY?
SHOULD TRANSFERS OF FIREARMS FOR USE AS PROPS TO OR FROM
ENTERTAINMENT FIREARMS PERMIT HOLDERS BE EXEMPTED FROM FIREARMS
LICENSE VERIFICATION REQUIREMENTS, AS SPECIFIED?
PURPOSE
The purpose of this bill is to (1) clarify that delivery of a
firearm to a gunsmith for service or repair is exempted from the
Federal Firearms License (FFL) licensing verification
requirements, as specified; (2) eliminate the existing exemption
from the FFL licensing verification requirements transfers of
short-barreled rifles, short-barreled shotguns, shotguns,
machineguns and assault weapons, as defined; (3) exempt from the
FFL licensing verification requirements transfers of firearms
where the transferor and the transferee are the same person or
corporation; and (4) exempt from the FFL licensing verification
requirements transfers of firearms to or from a person who has a
valid entertainment firearms permit, and the transfer involves
the loan or return of firearms used solely as props in
television, film, or theatrical productions.
Existing Federal Law:
Requires that firearms manufacturers, wholesalers and
dealers possess a Federal Firearms License (FFL) issued by
the Secretary of the Treasury. (Title 18 U.S.C. 923.)
Generally requires that before an FFL holder can ship or
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.)
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Existing California Law:
Defines a "gunsmith" as any person who is licensed as a
dealer pursuant to Chapter 44 (commencing with Section 921)
of Title 18 of the United States Code and the regulations
issued pursuant thereto, who is engaged primarily in the
business of repairing firearms, or making or fitting
special barrels, stocks, or trigger mechanisms to firearms,
or the agent or employee of that person. (Penal Code
12001(r).)
Requires that persons who sell, lease, or transfer
firearms be licensed by California. (Penal Code 12070
and 12071.)
Sets forth a series of requirements to be state
licensed by Department of Justice (DOJ), which provides
that to be recognized as state licensed, a person must be
on a centralized list of firearms dealers (CLFD) and
allows access to the centralized list by authorized
persons for various reasons. (Penal Code 12071.)
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).)
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.)
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).)
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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).)
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.)
Provides exemptions for commercial-wholesale
transactions from the rules on the sales of firearms and
the waiting period.
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).)
Authorizes the DOJ, commencing January 1, 2008, to keep
a centralized list of persons who identify themselves as
being an FFL holder with a DOJ exemption from the firearms
dealer licensing requirements, as specified. This list is
known as the centralized list of exempt FFLs (CLEFFLs).
(Penal Code 12083(a).)
States in order to qualify for placement on the CLEFFL,
an applicant must do all of the following:
o possess a valid FFL as a dealer, importer or
manufacturer;
o possess a current, valid certificate of
eligibility, as specified; and,
o maintain with the DOJ a signed declaration
enumerating the applicant's statutory exemption from
the licensing requirements. Any person who furnishes
false information is guilty of a misdemeanor. (Penal
Code 12083(a).)
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Provides the DOJ, commencing January 1, 2008, shall
assess an annual fee of $115 from FFL holders who wish to
be on the CLEFFL to cover the costs of maintaining the
CLEFFL and the cost of maintaining the firearm shipment
verification number, as specified. The DOJ may increase
the fee at a rate not to exceed the increase in the
California Consumer Price Index.
Provides that, with respect to transfers from any FFL
holder to a California FFL holder: commencing July 1, 2008,
a person who is an FFL holder may not deliver, sell, or
transfer a firearm to another FFL holder in California
unless, prior to delivery, the person intending to deliver,
sell, or transfer the firearm obtains a verification number
via the Internet for the intended delivery, sale, or
transfer, from the department. This shall not apply to the
delivery, sale, or transfer of a short-barreled rifle, or
short-barreled shotgun, as defined in Section 12020, or to
a machinegun as defined in Section 12200, or to an assault
weapon as defined in Sections 12276, 12276.1, and 12276.5.
(Penal Code 12072(f)(1)(A).)
For every identification number request received
pursuant to this section, the department shall determine
whether the intended recipient is on either:
o the centralized list of firearms
dealers (CLFD) (Penal Code 12071);
o the centralized list of exempted federal
firearms licensees (CLEFFL) (Penal Code 12083(a));
or
o the centralized list of firearms manufacturers
(CLFM), (Penal Code 12086(f).). (Penal Code
12072(f)(1)(B).)
If the department finds that the intended recipient
is on one of these lists, the department shall issue to
the inquiring party, a unique identification number for
the intended delivery, sale, or transfer. In addition to
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the unique verification number, the department may
provide to the inquiring party information necessary for
determining the eligibility of the intended recipient to
receive the firearm. The person intending to deliver,
sell, or transfer the firearm shall provide the unique
verification number to the recipient along with the
firearm upon delivery, in a manner to be determined by
the department. (Penal Code 12072(f)(1)(C).)
If the department finds that the intended recipient
is not on one of these lists, the department shall notify
the inquiring party that the intended recipient is
ineligible to receive the firearm. (Penal Code
12072(f)(1)(D).)
The department shall prescribe the manner in which
the verification numbers may be requested via the
Internet, or by alternate means of communication, such as
by facsimile or telephone, including all required
enrollment information and procedures. (Penal Code
12072(f)(1)(E).)
Prohibits federal firearms dealers from importing
or receiving firearms from any source unless listed on
the CLEFFL, the CLFD or the CLFM. Doing so constitutes a
misdemeanor.
Defines "wholesaler" and allows a wholesaler to
engage in various commercial activities without having
his or her activities subject to state dealer licensing
and dealer requirements. (Penal Code 12001, 12070,
12073, and 12078.)
Allows a gunsmith to engage in various commercial
activities relating to servicing and repairing firearms
without having his or her activities subject to state
dealer licensing or "through dealer" processing. (Penal
Code 12073 and 12078.)
This bill clarifies that delivery of a firearm to a gunsmith for
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service or repair is exempted from the FFL licensing
verification requirements described above.
This bill eliminates the exemption for transfers of
short-barreled rifles, short-barreled shotguns, shotguns,
machineguns and assault weapons, as defined from the FFL
licensing verification requirements described above.
This bill exempts transfers of firearms where the transferor and
the transferee are the same person or corporation from the FFL
licensing verification requirements described above.
This bill exempts transfers of firearms to or from a person who
has a valid entertainment firearms permit and the transfer
involves the loan or return of firearms used solely as props in
television, film, or theatrical productions from the FFL
licensing verification requirements described above.
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
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<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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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
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.
. . .
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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
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:
SB 175 will clarify there is no transfer of ownership
between a federally licensed dealer and a federally
licensed gunsmith when a firearm is serviced or
repaired by the gunsmith. This will remove the
regulatory burden of both licensed parties having to
comply with the state's license check verification
process. Gunsmiths will continue to comply with the
Department of Justice's existing centralized firearms
list requirement as established by AB 2521 (Jones,
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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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2006). The bill also incorporates clean up language
to AB 2521 as suggested by the Department of Justice.
2. State Law Background
Since 1923, California has required firearm dealers engaged in
the retail sale of handguns be state licensed. In 1990, AB 497
(Connelly), Chapter 9, Statutes of 1990, created regulatory
controls that applied to the waiting period and other related
controls of all firearms. The state maintains records of
handgun transactions (quasi-registration) but does not keep long
gun transaction information on file.
Currently, the transfer of firearms has to take place through a
licensed dealer, with specified exceptions. In order to obtain
a state dealer's license, the entity or individual has to have a
valid FFL, a valid seller's permit from the State Board of
Equalization, a certificate of eligibility from the DOJ, a local
business license for the retail sale of firearms and be placed
on the centralized list of firearms dealers that DOJ maintains.
3. Federal Law Background
For many years, FFLs were issued on a very lax basis with no
consideration as to whether or not the FFL would also be in
compliance with state laws with regard to being licensed to be
in the firearms business. Several states have their own
firearms dealer licensing system, including California,
Connecticut, Georgia, Hawaii, Maryland, Massachusetts, New
Jersey, New York, Pennsylvania, and Rhode Island, among others.
As such, an FFL holder would receive guns into his or her state
using his or her FFL without the shipper requesting proof that
the receipt would comply with state law. In many cases, guns
were purchased in violation of stricter state laws - despite the
fact that the federal Gun Control Act (GCA) has an expressed
purpose to help states implement and enforce their own firearms
laws.
In 1993 and 1994, Congress enacted legislation to raise FFL fees
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to eliminate persons who were not truly in the firearms industry
or were not true collectors. In addition, Congress also revised
the FFL issuance process to require coordination with state law.
Specifically, 18 U.S.C. 923 required an applicant to:
(a) Show that the business to be conducted under the license
is not prohibited by state or local laws in the location where
the licensed premise is located;
(b) Within 30 days after the application is approved, the
business will comply with the requirements of state and local
laws applicable to the conduct of the business;
(c) Agree that business will not be conducted under the
license until the requirements of state and local laws
applicable to the business have been met; and,
(d) Send or delivered a form to be prescribed by the Secretary
of the Treasury to the chief law enforcement officer of the
locality in which the premises are located, which indicates
that the applicant intends to apply for an FFL.
4. Federal Firearm License
Under the federal GCA, there are four categories of FFLs,
including manufacturers, importers, collectors of curios and
relics, and dealers. 18 U.S.C. 921(a)(11) defines the term
"dealer" as:
(a) Any person engaged in the business of selling firearms at
wholesale or retail;
(b) Any person engaged in the business of repairing firearms
or of making or fitting special barrels, stocks, or trigger
mechanisms to firearms; or,
(c) Any person who is a pawnbroker.
At the state level, the dealer category is a "catchall" that
includes retailers pursuant to Penal Code section 12071
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licensees, wholesalers, and pawnbrokers.
5. Federal Verification Program
For many years, federal regulations have required that before an
FFL holder ships a gun to another FFL holder, he or she must
first be provided with a copy of the recipient's FFL. In late
2000, the Treasury Department and ATF announced the creation of
"eZ Check", which is an online FFL authenticator web page that
FFL dealers can use to make sure that guns are shipped to other
federally licensed dealers.
The eZ Check program was in response to incidents where altered
copies of FFL were used to illegally acquire and supply firearms
to criminals and young people by mail and the Internet. eZ
Check is intended to allow an FFL holder to verify the
legitimacy of the licensee with whom he/she is conducting
business with before shipping or disposing of the firearm.
In addition, ATF proposed a rule to require FFL holders to
verify the license by using eZ Check or calling ATF's National
Licensing Center and reporting invalid licenses to ATF. A user
can access FFL eZ Check through the ATF's web site and is given
a series of prompts to verify the information shown on the
license. If any piece of information on the license does not
match the information on the screen, FFL eZ Check will instruct
the user not to complete the sale and to contact ATF's National
Licensing Center. FFL holders without Internet access may call
ATF's National Licensing Center to obtain a verbal validation of
the license. However, eZ Check does not assure shippers that
the receipt is in compliance with the laws of the receiving FFL.
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6. California Enacts Its Own FFL Verification Program
In 2006, California enacted its own FFL verification program.
(AB 2521 (Jones) Chap. 784, Stats. of 2006.) At the time, DOJ
stated that this was necessary "to prevent FFL holders (and FFL
imposters) from importing dangerous firearms into California
without undergoing a California background check and without
providing any notification to the Department of Justice."
(Senate Public Safety Committee analysis of AB 2521.)
California's FFL verification program requires that, commencing
July 1, 2008, a person who is an FFL holder may not deliver,
sell, or transfer a firearm to another FFL holder in California
unless, prior to delivery, that person obtains a verification
number via the Internet for the intended delivery, sale, or
transfer, from the department. (Penal Code 12072(f)(1)(A).)
For every identification number request received, DOJ determines
whether the intended recipient is on either:
o the centralized list of firearms
dealers (CLFD) (Penal Code 12071);
o the centralized list of exempted federal
firearms licensees (CLEFFL) (Penal Code 12083(a));
or
o the centralized list of firearms manufacturers
(CLFM), (Penal Code 12086(f).). (Penal Code
12072(f)(1)(B).)
If the department finds that the intended recipient of the
firearm(s) is on one of these lists, the department shall issue
to the inquiring party a unique identification number for the
intended delivery, sale, or transfer. The person intending to
deliver, sell, or transfer the firearm shall provide the
verification number to the recipient of the firearm(s) along
with the firearm upon delivery. (Penal Code 12072(f)(1)(C).)
If the department finds that the intended recipient is not on
one of these lists, the department shall notify the inquiring
party that the intended recipient is ineligible to receive the
firearm. (Penal Code 12072(f)(1)(D).)
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For some reason, at the time California enacted this FFL
verification program, it exempted from the verification
requirements the delivery, sale, or transfer of short-barreled
rifles, or short-barreled shotguns, machineguns, and assault
weapons. This bill would remove that exemption.
SHOULD THIS EXEMPTION BE DELETED?
7. Proposed Exemptions to FFL Verification Requirements
Under existing law licensed gunsmiths are exempted from normal
firearms transfer requirements when they accept or return a
firearm for servicing. (Penal Code 12073(b)(8) and
12078(e).) This bill would clarify that gunsmiths are also
exempt from the FFL verification process when accepting or
returning a firearm for servicing.
SHOULD THIS CLARIFICATION BE MADE WITH REGARD TO GUNSMITHS?
This bill would also exempt from the FFL verification
requirement transactions where the transferor and transferee are
the same person or corporation. This is meant to address the
situation where a large corporation transfers firearms to one of
its branch stores in California.
SHOULD THESE TRANSFERS BE EXEMPT FROM CALIFORNIA'S FFL
VERIFICATION REQUIREMENTS?
Existing law provides that the normal firearms transfer
requirements do not apply to specified loans of firearms to a
person who possesses a valid entertainment firearms permit for
use as a prop in an entertainment production. (Penal Code
12078(s).) This bill would provide that the FFL verification
requirements would not apply "where a transfer is to or from a
person who has a valid entertainment firearms permit under
section 12081 and the transfer involves the loan or return of
firearms used solely as props in television, film, or theatrical
productions."
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SHOULD THESE TRANSFERS BE EXEMPT FROM CALIFORNIA'S FFL
VERIFICATION REQUIREMENTS?
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