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