BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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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
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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.
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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.
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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
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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).)
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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.
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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.
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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
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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
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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
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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?
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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
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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."
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