BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

                                                                     8
                                                                     0
                                                                     9
          AB 809 (Feuer)                                              
          As Amended June 14, 2011 
          Hearing date:  June 21, 2011
          Business and Professions and Penal Codes
          SM:mc

                               LONG GUN TRANSFER RECORDS  

                                       HISTORY

          Source:  California Chapters of the Brady Campaign to Prevent 
                   Gun Violence; Legal Community Against Gun Violence

          Prior Legislation: AB 1810 (Feuer) - 2010, failed passage on the 
          Senate floor

          Support: Los Angeles County Sheriff; Chiefs of Police for the 
                   Cities of Berkeley, Chico, Chula Vista, Davis, El 
                   Cerrito, Emeryville, Fairfield, Fremont, Fresno, 
                   Hayward, Indio, Los Angeles, Martinez, Oakland, Oxnard, 
                   Pleasant Hill, Sacramento, San Rafael, Santa Ana, Santa 
                   Barbara, Seal Beach, Seaside, Stockton, Ventura, Walnut 
                   Creek, West Sacramento, Woodland; Brady Campaign 
                   Chapters for Central California, Contra Costa County,  
                   City of Lancaster, City of Long Beach, City of Los 
                   Angeles, Napa County, Nevada County, Oakland/Alameda 
                   County, Orange County, Sacramento Valley, San Diego 
                   County, San Fernando Valley, San Francisco, Santa Clara 
                   County, San Mateo County, Sonoma County, Ventura 
                   County; AltaMed Health Services; Coalition Against Gun 
                   Violence, Santa Barbara County Coalition; California 
                   Partnership to End Domestic Violence; Fellowship of 
                   Reconciliation; Task Force on Latin America; Friends 




                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageB

                   Committee on Legislation of California; St. Mark 
                   Presbyterian Church; Violence Prevention Coalition of 
                   Greater Los Angeles; Violence Prevention Coalition of 
                   Orange County; Women Against Gun Violence; Youth 
                   Alive!; numerous individuals

          Opposition:California Association of Firearms Retailers; 
                   California Outdoor Heritage Alliance; California Rifle 
                   and Pistol Association; California Sportsman's Lobby, 
                   Inc.; Crossroads of the West Gun Shows; National Rifle 
                   Association of America; National Shooting Sports 
                   Foundation, Inc.; Outdoor Sportsmen's Coalition of 
                   California; Safari Club International; Sheriff Riverside 
                   County; Sheriff Shasta County

          Assembly Floor Vote:  Ayes  47 - Noes  29


                                         KEY ISSUE
           
          SHOULD REPORTING AND RECORD RETENTION REQUIREMENTS REGARDING THE 
          SALE OR OTHER TRANSFER OF LONG GUNS BE THE SAME AS THOSE FOR 
          HANDGUNS?


                                       PURPOSE

          The purpose of this bill is to (1) conform requirements for 
          reporting and record retention involving the transfer of long 
          guns with those of handguns; (2) repeal the prohibition on peace 
          officers, Department of Justice (DOJ) employees, and the 
          Attorney General (AG) from retaining or compiling records of 
          long gun transfers; (3) expand the requirement for a personal 
          handgun importer to report certain information relative to 
          bringing a handgun into the state, as specified; (4) expand the 
          reporting requirements to apply to the importation of long guns; 
          and (5) expand requirements for firearms dealers to keep a 
          register or record of information pertaining to firearms 
          transactions to include information pertaining to transactions 
          involving all guns.  




                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageC

          
           Existing law  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 § 
          27545<1>.)

           Existing law  provides that there is a 10-day waiting period when 
          purchasing a firearm through a firearms dealer.  During which 
          time, a background check is conducted and, if the firearm is a 
          handgun, a handgun safety certificate is required prior to 
          delivery of the firearm.  (Penal Code §§ 26815, 26840(b) and 
          27540.)

           Existing law  requires a person bringing a handgun into 
          California or a handgun 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.  (Penal Code § 
          27560.)

           Existing law  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 Department of Justice 
          (DOJ).  (Penal Code § 27565.)

           Existing law  provides that handguns are centrally registered 
          with DOJ as part of this process.  A violation of these 
          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.  (Penal Code § 27590.) 
           

           Existing law  permits DOJ to require firearms dealers to charge 
          firearms purchasers specified fees for a number of specified 
          ---------------------------
          <1> SB 1080, Chap. 711, Stats. 2010, and SB 1115, Chap. 178, 
          Stats. 2010, recast and renumbered most statutes relating to 
          deadly weapons without any substantive change to those statutes. 
           Those changes will become operative January 1, 2012.  All 
          references to affected code sections will be to the revised 
          version unless otherwise indicated.



                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageD

          costs.  (Penal Code § 28225(a) - (c).) 

           Existing law  provides that handguns are centrally registered at 
          time of transfer, importation or sale.  (Penal Code § 11106.) 

           Existing law  requires DOJ to compile the Prohibited Armed 
          Persons File to identify via registration records those persons 
          who are the registered owner of a firearm and subsequently 
          become ineligible to possess firearms and creates a mechanism to 
          disarm these persons.  (Penal Code §§ 30000 - 30010.) 

           Existing law  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.  (Penal Code § 11108(a).)

           Existing law  states information about a lost or stolen 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.  (Penal Code § 11108(b).)

           Existing law  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 department in a manner determined by 
          the Attorney General (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.   
          (Penal Code § 11108.3(a).)

           Existing law  states when the DOJ receives information from a 
          local law enforcement agency pursuant to existing law, it shall 
          promptly forward this information to the National Tracing Center 




                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageE

          of the federal Bureau of Alcohol, Tobacco, Firearms and 
          Explosives to the extent practicable.  (Penal Code § 
          11108.3(b).)

           Existing law  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 of 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.  (Penal Code § 11106(a).)

           Existing law  states that except as provided, the AG shall not 
          retain or compile any information from specified reports 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.  
          (Penal Code § 11106(b)(1).)  

           Existing law  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.  (Penal Code § 11106(b)(2).)  A violation of this 
          subdivision is a misdemeanor.  (Penal Code § 11106(b)(3).)




                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageF


           Existing law  states that notwithstanding Penal Code Section 
          11106, the DOJ 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.  (Penal 
          Code § 33890.)  

           This bill  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.

           This bill deletes the prohibition on peace officers, 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.  

           This bill  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.

           This bill  expands 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.  This bill would require that, effective 
          January 1, 2013, the register include information pertaining to 
          transactions involving all guns.  




                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageG


           This bill  makes conforming changes to the code to reference 
          "firearms" in lieu of "handguns."


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  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 January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  
            
          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     





                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageH

           This bill  does not appear to aggravate the prison overcrowding 
          crisis described above.

                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               State law requires that records of long gun sales be 
               destroyed by the CA Department of Justice.  This 
               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.

          2.  Records of Firearm Sales and Transfers  

          California law requires, with specified exceptions, all 
          transfers of firearms to be conducted through a licensed dealer. 
           When a person buys any type of firearm, the dealer is required 
          to obtain personal identification information from the buyer and 
          to report this to DOJ on the Dealer Record of Sale or DROS form. 
           This allows DOJ to perform a criminal history check on the 
          buyer to determine if he or she is prohibited from possessing a 
          firearm.  In the case of handguns, DOJ retains that information, 
          which becomes part of the Automated Firearms System (AFS) 
          database.  However, current law requires DOJ to destroy records 
          of long gun sales within five days of the record check 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 must be destroyed within five days of the receipt 
          by the AG, unless retention is necessary for use in a criminal 




                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageI

          prosecution.  (Penal Code §§ 11106(b)(1).)  Failure to comply 
          with this requirement is a misdemeanor.  (Penal Code § 
          11106(b)(3).)

          This bill would remove the provision requiring DOJ to destroy 
          records of long-gun sales as of July 1, 2012.   
           
          3.  Automated Firearms System Database   

          The effect of this bill would be to include data regarding sales 
          of long guns in the AFS database maintained by DOJ.  Currently, 
          the destruction of these records of long-gun ownership means law 
          enforcement do not have that information available to quickly 
          identify the owners of long guns recovered at a crime scene or 
          otherwise suspected of being used in a crime.  The maintenance 
          of long gun records would help trace the ownership and history 
          of long gun and presumably thereby help solve some crimes 
          involving long guns.  

          WOULD RETENTION OF TRANSFER RECORDS REGARDING LONG GUNS HELP LAW 
          ENFORCEMENT SOLVE SOME CRIMES INVOLVING FIREARMS?

          Lack of access to records of long gun ownership also denies law 
          enforcement the ability to predetermine, before they respond to 
          an emergency or serve a warrant, whether a rifle or shotgun may 
          be found at the residence.  If these records were retained, an 
          officer responding to a call at a residence or serving a warrant 
          could access the AFS database and be advised whether the 
          resident is the registered owner of a rifle or shotgun.  

          WOULD ACCESS TO THIS INFORMATION HELP PROTECT POLICE?

          Analysis of gun crime trace data also helps federal, state, and 
          local law enforcement to identify firearm traffickers and the 
          sources of guns used in crimes.  Maintaining records of long-gun 
          sales and transfers could help law enforcement agencies reduce 
          the illegal trade in firearms.  

          4.  Prohibited Armed Persons File  





                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageJ

          In 2001, the Legislature created the Prohibited Armed Persons 
          File to ensure otherwise prohibited persons do not continue to 
          possess firearms.  (SB 950 (Brulte), Chapter 944, Statutes of 
          2001.)  The purpose of the file is to cross-reference persons 
          who have ownership or possession of a firearm on or after 
          January 1, 1991, as indicated by a record in the Consolidated 
          Firearm Information System, and who, subsequent to the date of 
          that ownership or possession of a firearm, fall within a class 
          of persons who are prohibited from owning or possessing a 
          firearm.  (Penal Code § 30000.)  According to DOJ, in July 2003, 
          the Department of Justice received funding to build a database 
          of this information - the Armed and Prohibited Persons System - 
          which became operational in 2006 and made fully available to 
          local law enforcement in 2007.  

          SB 950 also mandated that DOJ provide investigative assistance 
          to local law enforcement agencies to better ensure the 
          investigation of individuals who continue to possess firearms 
          despite being prohibited from doing so.  (Penal Code § 30010.)  
          DOJ states:

               California Department of Justice special agents have 
               trained approximately 500 sworn local law enforcement 
               officials in 196 police departments and 35 sheriff's 
               departments on how to use the database during firearms 
               investigations.  The Department has also conducted 50 
               training sessions on how to use the vehicle-mounted 
               California Law Enforcement Telecommunications System 
               terminals to access the database.
               
          (  http://ag.ca.gov/newsalerts/release.php?id=1505&year=2007&month=12  )

          In summary, current law establishes a mechanism whereby DOJ 
          cross-references persons who are prohibited from possessing a 
          firearm with records of persons who have purchased firearms and 
          any "prohibited person" who is listed as a firearm owner goes in 
          the Prohibited Armed Persons File.  DOJ and local law 
          enforcement agencies can utilize that list to investigate 
          firearms violations and seize firearms from prohibited persons.  
          However, one significant factor limiting the efficacy of this 




                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageK

          system is that DOJ is prohibited by law from retaining records 
          of long-gun ownership.  Therefore, when DOJ compares the list of 
          firearms owners with the list of prohibited persons, it is 
          really only able to discover handgun owners that may be in 
          illegal possession of those weapons.  A person who, for example, 
          is prohibited by law from owning a firearm due to a history of 
          mental illness could nonetheless be in possession of a rifle or 
          shotgun, and this illegal possession could not be discovered 
          through a record check.  This person would not be included on 
          the Armed Prohibited Persons list.  

          WOULD RETENTION OF TRANSFER RECORDS REGARDING LONG GUNS HELP LAW 
          ENFORCEMENT IDENTIFY LONG GUNS OWNED BY PERSONS WHO ARE 
          PROHIBITED BY LAW FROM POSSESSING GUNS?  

          IS THE REQUIRED DESTRUCTION OF THESE RECORDS INCONSISTENT WITH 
          THE CREATION OF THE PROHIBITED ARMED PERSONS FILE?



























                                                                     (More)
                                                                          










          5.  Argument in Support  

          The Sheriff of Los Angeles states:

               Under current law, only handgun purchase and transfer 
               records are retained by the Department of Justice 
               (DOJ) and entered into the Automated Firearms System 
               (AFS).  Handgun records are an important tool for law 
               enforcement to trace crime guns, identify and disarm 
               hundreds of convicted felons, and return stolen 
               handguns to the rightful owners.

               Assembly Bill 809 would close the loophole in state 
               law by removing existing exceptions that require the 
               destruction of long gun sales and transfer records and 
               require all firearms, including long guns, are input 
               into AFS.  Data from the California Department of 
               Justice shows that more than half the guns recovered 
               from armed and prohibited persons are long guns.

               This bill would also increase the safety of law 
               enforcement by providing better information regarding 
               the guns we may face.  An officer responding to a call 
               or serving a domestic violence warrant could access 
               the AFS database and be forewarned of the likelihood 
               of encountering both handguns and long guns.  Many 
               long guns put officers at greater risk because of 
               their firepower and their ability to shoot through 
               protective vests.  Moreover, even a poorly aimed 
               shotgun could greatly injure a law enforcement officer 
               or anyone else.

          6.  Argument in Opposition  

          The National Rifle Association states:

               Firearms owners know that criminals will never 
               register their illegally possessed guns and, in fact, 
               the U.S. Supreme Court ruled in Haynes v. U.S. (309 




                                                                     (More)







                                                             AB 809 (Feuer)
                                                                      PageM

               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. Ý ]  

               Gun registration is, of course, hardly new, and 
               neither are its 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 the 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 stated: "I have not one 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."


                                   ***************

















                                                             AB 809 (Feuer)
                                                                      PageN