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,"








                                                                  AB 809
                                                                  Page  2


           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 








                                                                  AB 809
                                                                  Page  3

            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 








                                                                 AB 809
                                                                  Page  4

            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 








                                                                  AB 809
                                                                  Page  5

            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 








                                                                  AB 809
                                                                  Page  6

            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.








                                                                  AB 809
                                                                  Page  7


          "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 








                                                                  AB 809
                                                                  Page  8

            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.  








                                                                  AB 809
                                                                  Page  9


              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 








                                                                  AB 809
                                                                  Page  10

            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.









                                                                  AB 809
                                                                  Page  11

          "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 








                                                                  AB 809
                                                                  Page  12

            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 








                                                                  AB 809
                                                                  Page  13

          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