BILL ANALYSIS Ó
AB 809
Page 1
Date of Hearing: April 12, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 809 (Feuer) - As Introduced: March 24, 2011
SUMMARY : Applies the same regulations relating to the reporting
and retention of records for handguns to long guns, as
specified. Specifically, this bill :
1)Conforms reporting and record retention provisions in order
that transfers and information reporting and retention
requirements for handguns and firearms other than handguns are
the same.
2)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 January 1, 2013.
3)Expands the requirement for a personal handgun importer to
report certain information relative to bringing a handgun into
the state, as specified. A violation of these provisions is a
misdemeanor. On January 1, 2013, "personal handgun importer"
shall be redefined as a "personal firearm importer," as
defined, and expands the reporting requirements to apply to
the importation of firearms that are not handguns.
4)Deletes a provision under existing law wherein DOJ requires
firearms dealers to keep a register or record of electronic or
telephonic transfers of information pertaining to firearms
transactions, as specified. Existing law exempts from these
requirements certain transactions involving firearms that are
not handguns. The deletion of this provision occurs on
January 1, 2013.
5)Makes conforming changes to the code to reference "firearms"
in lieu of "handguns,"
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EXISTING LAW :
1)Provides that no person shall sell, lease, or transfer
firearms unless he or she has been issued a state firearms
dealer's license. A violation is a misdemeanor (punishable by
up to one year in county jail). (Penal Code Section 12070.)
2)Provides for specified exemptions including commercial
transactions among licensed wholesalers, importers, and
manufacturers. (Penal Code Section 12070.)
3)States 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.
İPenal Code Sections 1203(e)(13), 11106, and 12072(c) and
(d).]
4)Allows DOJ to charge the dealer for a number of costs such as
a dealer record of sale (DROS). (Penal Code Section 12076.)
5)Exempts 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. However, all these
exempt transactions are subject to handgun registration as a
condition of the exemption. (Penal Code Section 12078.)
6)Provides that, on request, DOJ will register transactions
relating to handguns İindeed all firearms] in the Automated
Firearm System (AFS) Unit for persons who are exempt from
dealer processing, or are otherwise exempt by statute from
reporting processes. İPenal Code Section 12078(l).]
7)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. İPenal Code Section 12072(f)(3).]
8)Requires a person moving into California (with a handgun
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acquired outside of California) who did not receive the gun
from a California licensed gun dealer, to register the gun
with the DOJ by mailing a form. İPenal Code Section
12072(f)(2).]
9)Provides that handguns are centrally registered at time of
transfer, importation or sale, due to the fact that DOJ
compiles various transfer and reporting forms. (Penal Code
Section 11106.)
10) Provides for the "Armed and Prohibited" (APS) program which
identifies via registration records those persons who legally
acquired and are the registered owner of any firearm in DOJ's
data base and subsequently become ineligible to possess
firearms and creates a mechanism to disarm these persons.
(Penal Code Section 12010 to 12012.)
11) 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. İPenal Code Section 11108(a).]
12) States information about a 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. İPenal Code Section 11108(b).]
13) 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 depa rtment in a manner determined by
the 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.
İPenal Code Section 11108.3(a).]
14) States when the DOJ receives information from a local law
enforcement agency pursuant to existing law, it shall promptly
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forward this information to the National Tracing Center of the
federal Bureau of Alcohol, Tobacco, Firearms and Explosives to
the extent practicable. İ Penal Code Section 11108.3(b).]
15) 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 for 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. İPenal
Code Section 11106(a).]
16) States that except as provided, the AG shall not retain or
compile any information from specified reports for firearms
that are not handguns 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. İPenal Code
Section 11106(b)(1).]
17)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. İPenal Code Section 11106(b)(2).] A violation of
this subdivision is a misdemeanor. İPenal Code Section
11106(b)(3).]
18)States that notwithstanding Penal Code Section 11106, the DOJ
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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. İPenal Code
Section 12021.3(h).]
19)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 İPenal Code Section
12072(f)(2)(A)]:
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;
b) Sell or transfer the firearm in accordance with
specified provisions;
c) Sell or transfer the firearm to a licensed dealer; or,
d) Sell or transfer the firearm to a sheriff or police
department.
20)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. İPenal Code
Section 12072(f)(2)(B).]
21)States that the provisions of this paragraph are cumulative
and shall not be construed as restricting the application of
any other law. However, an act or omission punishable in
different ways by this section and different provisions of the
Penal Code shall not be punished under more than one
provision. İPenal Code Section 12072(f)(2)(C).]
22)States that on and after January 1, 1998, the DOJ shall
conduct a public education and notification program to ensure
a high degree of publicity of the provisions. İPenal Code
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Section 12072(f)(2)(D).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "İl]ong 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). In 2010, Californians purchased 260,573 long guns,
significantly more than the 233,346 handguns acquired in the
same time period.
"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. Moreover, between 2005 and
2009, DOJ designated 84,123 firearms as crime guns in the AFS
database.
"Law enforcement efforts to investigate and prosecute 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 and
expose channels of illegal gun trafficking. Without these
long gun records, law enforcement must painstakingly trace a
recovered firearm from the manufacturer, through the
distributor, to the firearms dealer who sold the weapon to the
last known purchaser. 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.
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"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)Background : According to the background provided by the
author, "İs]tate law requires that records of long gun sales
be destroyed by DOJ. The needless destruction of these
records prevents law enforcement from using the information to
quickly identify the owners of crime guns, prevents law
enforcement in identifying all firearms - not just handguns -
owned by persons who are prohibited by law from possessing
guns and 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."
3)Definitions : Current law requires greater record keeping
around the purchase, sale, and transfer of "handguns." This
bill expands these requirements to "long guns" by utilizing
the phrase "firearms" in lieu of "handguns."
a) Handguns can most easily be defined as pistols.
b) Long guns refer generally to rifles and shotguns.
c) Firearms include long guns and handguns.
4)Destruction of Records : Current law requires the destruction
of long gun sales and transfer records. This bill requires
the preservation of records for long guns sold or transferred
after July 1, 2012.
Firearm sales and transfer records are created after a
background check on a firearm purchaser or new owner is
completed. DOJ maintains records of handguns sold or
transferred in California in a state database. Under current
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law, sales and transfer records for long guns must currently
be destroyed within five days of a cleared transaction.
İPenal Code Section 11106(b)(1).]
Sales and transfer records of handguns may be utilized to solve
gun crimes, identify illegal trafficking channels, return
stolen handguns, disarm persons who are prohibited from owning
weapons. Under the current system where long gun records are
destroyed, it is more difficult to trace long guns used in
crime or identify persons prohibited from owning these weapons
under current law.
Under current law, peace officers, DOJ employees, and the AG are
prohibited from retaining or compiling certain information
relating to transactions regarding firearms that are not
handguns. Any violation of this provision is a misdemeanor.
This bill does remove this provision as of July 1, 2012.
5)Automated Firearms System Database : This bill includes long
guns in the AFS database records maintained by the DOJ.
Theoretically, an officer responding to a call or serving a
warrant could access the AFS database and be forewarned of the
likelihood of encountering a long gun. Long guns are risky to
officers as long guns generally have greater firepower than
handguns. Additionally, long guns include shotguns which
spray shots rather than target a single spot. The greater
firepower and wider range of a long gun can reduce the
effectiveness of protective vests.
a) Solving Long Gun Crimes : Traces in gun crimes help law
enforcement solve crimes involving firearms by enabling the
identification of the first purchaser of the gun (and
subsequent handgun purchasers in California).
Identification of the owner of a gun used in a crime
provides an important lead for solving the crime. The
maintenance of long gun records would enable law
enforcement to trace the full history of long guns and help
solve crimes involving long gun.
b) Illegal Trafficking : Analysis of gun crime trace data
helps federal, state, and local law enforcement to identify
firearm traffickers and the sources of guns used in crimes.
Curbing the illegal trade in guns, including long guns,
could be enhanced by maintaining records of sale and
transfer of legal long guns.
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c) Disarming Prohibited Persons : DOJ is able to use
handgun records to identify and disarm those individuals
who have purchased handguns and subsequently become
prohibited from possessing firearms because they have
fallen into a prohibited class. These prohibited persons
may be felons, domestic violence offenders, or suffer from
severe mental illness. In implementing its Armed
Prohibited Persons System program, DOJ has found that many
prohibited persons, whose handguns are in the DOJ database,
are in possession of illegal long guns. This bill permits
the use of sale and transfer records to cross-reference
with individuals who are not permitted to possess firearms.
d) Return Stolen Long Guns : Record retention of long guns
would enable law enforcement to identify and return stolen
rifles and shotguns to their rightful owners.
6)Import of Firearms : This bill imposes additional duties upon
persons who import firearms (other than handguns) into the
State of California. Under current law, requirements are
placed on persons who import handguns into the State of
California. This bill requires the same in instances where
long guns are imported. Specifically, if this bill becomes
law, a person who imports long guns into the State of
California will have 60 days to do one of the following:
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;
b) Sell or transfer the firearm in accordance with
specified provisions;
c) Sell or transfer the firearm to a licensed dealer; or,
d) Sell or transfer the firearm to a sheriff or police
department.
7)Hunting : Generally, most consumers of firearms for hunting
utilize rifles or shotguns rather than hand guns. Hunters and
sportspersons argue that most gun crimes are committed with
handguns and that this bill is targeting long guns. Hunters
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and sportspersons believe that the number of crimes committed
with long guns are insufficient to justify the expense and
time it would take for their registration as proposed by this
bill.
8)Impact on Gun Retailers : This bill impacts California gun
retailers. Firearm retailers would be required to train
employees and implement the registration requirements of long
gun sales and other transfers. Firearm retailers argue that
this bill creates substantially higher operating costs for
firearms retailers because of ongoing new procedures and
transaction reporting requirements imposed by this bill.
9)Argument in Support : According to the California Chapters of
the Brady Campaign to Prevent Gun Violence , "İt]he California
Chapters of the Brady Campaign to Prevent Gun Violence is a
grassroots organization working to reduce firearm violence.
There are chapters throughout the state, many of whose members
have lost a loved one to gunfire. In furtherance of our goal
to reduce firearm crime, injury, and death in our communities,
the California Brady Campaign Chapters are co-sponsoring AB
809, introduced by Assembly Member Mike Feuer.
"Under existing law, DOJ maintains records of handguns sold or
transferred in California in the AFS database. Law
enforcement uses these handgun records to conduct crime gun
traces, return stolen handguns, and disarm persons prohibited
from possessing firearms. However, the sales and transfer
records for long guns must be destroyed within fifteen days.
"Long guns play a significant role in our state's gun violence
epidemic. Data from DOJ shows that over the past decade,
Californians have annually purchased more long guns than
handguns, including 260,573 long guns in 2010. Of the 26,682
crime guns entered into DOJ's Automated Firearms Systems
database in 2009, 11,500 were long guns. Furthermore, in
implementing its Armed and Prohibited Persons System Program,
DOJ is finding that half of the illegal firearms recovered
from prohibited persons are long guns. The lack of long gun
records results in a huge deficiency in the AFS database and
hampers law enforcement efforts to solve gun crimes, identify
illegal trafficking channels, and disarm prohibited persons,
such as convicted felons or persons with severe mental
illness.
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"Assembly Bill 809 seeks to close the long gun loophole by
requiring the preservation of records for all long guns sold
or transferred in California after January 1, 2013. Under AB
809, handgun and long gun records would be entered into AFS
and maintained in the same manner. The bill will, over time,
significantly improve the AFS database by populating it with
data on long guns. With this enhanced database, law
enforcement will be able to successfully complete more gun
traces, solve more gun crimes, and disarm dangerous people who
unlawfully possess long guns.
"AB 809 would not impact law abiding gun owners. Current long
gun owners or hunters would not be required to do anything
with their existing firearms. A purchaser of a long gun would
not experience a different, lengthier, or more expensive sale
process. Moreover, firearm sellers wound not incur any
additional expenses and there would be no need for additional
employees. AB 809 would streamline the DROS process by
allowing the same form to be used for both handguns and long
guns. Currently, both long gun and handgun DROS forms are
electronically submitted to DOJ. Under AB 809, DOJ would
simply keep the information on long guns that it
electronically receives.
"Finally, AB 809 would increase the safety of law enforcement by
providing better information regarding the guns they may
encounter. An officer responding to a call at a private
residence or serving a domestic violence warrant could access
the AFS database to check whether the person may own a long
gun. Long guns put officers at greater risk because of their
firepower and ability to shoot through protective vests."
10)Argument in Opposition : According to the National Rifle
Association of America , "İf]irearms owners know that criminals
will never register their illegally possessed guns and, in
fact, the U.S. Supreme Court ruled in Hayes v. US, 309 U.S. 85
(1968) that since felons are prohibited from owning firearms,
compelling them to register them would violate their 5th
Amendment rights against self-incrimination. Gun owners know
further that the registration and licensing of America's 60-65
million gun owners and their estimated 230 million firearms
would require creation of a huge bureaucracy at tremendous
taxpayer cost, without any tangible anti-crime benefit.
"Gun registration is, of course, hardly new, and neither are its
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widely recognized dangers. In 1975, U.S. Sen. James A.
McClure (R-ID) said: 'Gun registration is the first step
toward ultimate and total confiscation, the first step in a
complete destruction of a cornerstone of our Bill of Rights.'
When Sen. McClure sponsored the Firearms Owners' Protection
Act (1986), he made sure that it included a prohibition
against the federal government keeping a national registry of
gun owners. Similar prohibitive language appears in a Brady
Act and in annual appropriations bills.
"Others recognize gun registration's inherent purpose. In 1975
testimony before the House Subcommittee on Crime, anti-gun
advocate Charles Morgan, director of the Washington, D.C.,
office of the American Civil Liberties Union states: 'I have
no doubt, even if I am in agreement with the National Rifle
Association, that that kind of record-keeping procedure is the
first step to eventual confiscation under one administration
or another."
11)Prior Legislation : AB 1810 (Feuer), of the 2009-10
Legislative Session, applied the same regulations relating to
the reporting and retention of records for handguns to long
guns, as specified. AB 1810 failed passage on the Senate
floor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Chapters of the Brady Campaign to Prevent Gun
Violence
City of Chico Police Department
City of Chula Vista Police Department
City of Davis Police Department
City of Fresno Police Department
City of Martinez Police Department
City of Pleasant Hill Police Department
City of Sacramento Police Department
City of Santa Ana Police Department
City of Santa Barbara Police Department
City of Seaside Police Department
City of Stockton Police Department
City of West Sacramento Police Department
Coalition Against Gun Violence
Emeryville Police Department
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Friends Committee on Legislation of California
Legal Community Against Violence
Orange County Chapter of the Brady Campaign to Prevent Gun
Violence
Sacramento Chapter of the Brady Campaign to Prevent Gun Violence
Violence Prevention Coalition
Opposition
California Association of Firearms Retailers
California Outdoor Heritage Alliance
California Rifle and Pistol Association
California Sportsman's Lobby
Crossroads of the West Gun Shows
Gun Owners of California
National Rifle Association of America
National Shooting Sports Foundation
Outdoor Sportsmen's Coalition
Safari Club International
One private individual
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744