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