BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 819 (Leno)
As Amended April 14, 2011
Hearing date: April 26, 2011
Penal Code
SM:dl
USES OF DEALER RECORD OF SALE FUNDS
HISTORY
Source: Attorney General Kamala D. Harris
Prior Legislation: AB 302 (Beall) - Chap. 344, Stats. Of 2010
AB 161 (Steinberg) - Chap. 754, Stats. of 2003
AB 950 (Brulte) - Chap. 944, Stats. of 2001
Support: Association for Los Angeles Deputy Sheriffs; Riverside
Sheriffs' Association; California Chapters of the Brady
Campaign to Prevent Gun Violence; California State
Sheriffs' Association; Statewide Law Enforcement
Association; Legal Community Against Violence
Opposition:California Association of Firearms Retailers;
California Rifle and Pistol Association; California
Sportsman's Lobby, Inc.; Crossroads of the West;
National Rifle Association; National Shooting Sports
Foundation Inc.; Outdoor Sportsmen's Coalition of
California; Safari Club International
KEY ISSUE
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SHOULD THE DEPARTMENT OF JUSTICE BE AUTHORIZED TO USE DEALER RECORD
OF SALE FUNDS FOR COSTS ASSOCIATED WITH ITS FIREARMS-RELATED
REGULATORY AND ENFORCEMENT ACTIVITIES REGARDING THE POSSESSION AS
WELL AS THE SALE, PURCHASE, LOAN, OR TRANSFER OF FIREARMS, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to provide that the Department of
Justice may use dealer record of sale (DROS) funds for costs
associated with its firearms-related regulatory and enforcement
activities regarding the possession as well as the sale,
purchase, loan, or transfer of firearms, as specified.
Existing Federal law states that it shall be unlawful for any
person to sell or otherwise dispose of any firearm or ammunition
to persons if that person is under indictment or has been
convicted of specified crimes, is under a restraining order, has
been committed to a mental institution, and other specified
disqualifying factors. (18 U.S.C. § 922.)
Existing California law :
Requires that persons who sell, lease, or transfer firearms be
licensed by California. (Penal Code §§ 26500 and 26700, et
seq.<1>)
Sets forth a series of requirements to be state licensed by
DOJ, which provides that to be recognized as state licensed,
a person must be on a centralized list of gun dealers and
allows access to the centralized list by authorized persons
for various reasons. (Penal Code § 26700.)
--------------------------
<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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Requires that firearms dealers obtain certain identifying
information from firearms purchasers and forward that
information, via electronic transfer to DOJ to perform a
background check on the purchaser to determine whether he or
she is prohibited from possessing a firearm. The record of
applicant information must be transmitted to the Department
of Justice in Sacramento by electronic transfer on the date
of the application to purchase. The original of each record
of electronic transfer shall be retained by the dealer in
consecutive order. Each original shall become the permanent
record of the transaction that shall be retained for not
less than three years from the date of the last transaction
and shall be provided for the inspection of any peace
officer, Department of Justice employee designated by the
Attorney General, or agent of the Federal Bureau of Alcohol,
Tobacco, Firearms, and Explosives upon the presentation of
proper identification, but no information shall be compiled
therefrom regarding the purchasers or other transferees of
firearms that are not pistols, revolvers, or other firearms
capable of being concealed upon the person. (Pen Code §
28160-28220.)
Requires handguns to be centrally registered at time of
transfer or sale by way of transfer forms centrally compiled
by the DOJ. DOJ is required to keep a registry from data sent
to DOJ indicating who owns what handgun by make, model, and
serial number and the date thereof. (Penal Code § 11106(a)
and (c).)
Requires that, upon receipt of the purchaser's information,
DOJ shall examine its records, as well as those records that
it is authorized to request from the State Department of
Mental Health pursuant to Section 8104 of the Welfare and
Institutions Code, in order to determine if the purchaser is
prohibited from purchasing a firearm because of a prior felony
conviction or because they had previously purchased a handgun
within the last 30 days, or because they had received
inpatient treatment for a mental health disorder, as
specified. (Penal Code § 28220.)
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States that, to the extent funding is available, the
Department of Justice may participate in the National Instant
Criminal Background Check System (NICS), as specified, and, if
that participation is implemented, shall notify the dealer and
the chief of the police department of the city or city and
county in which the sale was made, or if the sale was made in
a district in which there is no municipal police department,
the sheriff of the county in which the sale was made, that the
purchaser is a person prohibited from acquiring a firearm
under federal law. (Penal Code § 28220.)
States that if the department determines that the purchaser is
prohibited from possessing a firearm, as specified, it shall
immediately notify the dealer and the chief of the police
department of the city or city and county in which the sale
was made, or if the sale was made in a district in which there
is no municipal police department, the sheriff of the county
in which the sale was made, of that fact. (Penal Code §
28220.)
States that no person who has been taken into custody, found
to be a danger to himself, herself, or others, and, as a
result, admitted to a specified mental health facility, shall
own, possess, control, receive, or purchase, or attempt to
own, possess, control, receive, or purchase any firearm for a
period of five years after the person is released from the
facility, except as specified. (Welfare and Institutions Code
§ 8103(f)(1).) For each such person, the facility shall
immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the Department
of Justice, containing information that includes, but is not
limited to, the identity of the person and the legal grounds
upon which the person was admitted to the facility. (Welfare
and Institutions Code § 8103(f)(2)(A).)
No person who has been certified for intensive treatment for a
mental disorder, as specified, shall own, possess, control,
receive, or purchase, or attempt to own, possess, control,
receive, or purchase any firearm for a period of five years
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and relevant treatment facilities shall report the identities
of such persons to DOJ, as specified. (Welfare and
Institutions Code § 8103(g).)
The Department of Justice may require the dealer to charge
each firearm purchaser a fee not to exceed $14, except that
the fee may be increased at a rate not to exceed any increase
in the California Consumer Price Index as compiled and
reported by the Department of Industrial Relations. This fee,
known as the Dealer Record of Sale or DROS fee, shall be no
more than is necessary to fund the following:
o The department for the cost of furnishing this
information.
o The department for the cost of meeting its
obligations to notify specified persons that they are
prohibited from owning firearms due to their receiving
inpatient treatment for a mental disorder.
o Local mental health facilities for
state-mandated local costs resulting from the
specified reporting requirements.
o The State Department of Mental Health for the
costs resulting from the specified requirements
imposed.
o Local mental hospitals, sanitariums, and
institutions for state-mandated local costs resulting
from the specified reporting requirements.
o Local law enforcement agencies for
state-mandated local costs resulting from the
notification requirements regarding service of
restraining orders, as specified.
o Local law enforcement agencies for
state-mandated local costs resulting from the
notification requirements regarding specified persons
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prohibited from owning firearms due to their receiving
inpatient treatment for a mental disorder.
o For the actual costs associated with the
electronic or telephonic transfer of information, as
specified.
o The Department of Food and Agriculture for the
costs resulting from the notification provisions
regarding importing firearms into the state, as
specified.
o The department for the costs associated with
public education requirements regarding importation of
firearms into California, as specified.
o The department for the costs associated with
funding Department of Justice firearms-related
regulatory and enforcement activities related to the
sale, purchase, loan, or transfer of firearms pursuant
to any provision listed in Section 16580.
(Penal Code § 28225(a) - (b).)
The fee established pursuant to this section shall not exceed
the sum of the actual processing costs of the department, the
estimated reasonable costs of the local mental health
facilities for complying with the reporting requirements
imposed as specified, the costs of the State Department of
Mental Health for complying with the requirements imposed as
specified, the estimated reasonable costs of local mental
hospitals, sanitariums, and institutions for complying with
the reporting requirements imposed as specified, the estimated
reasonable costs of local law enforcement agencies for
complying with the notification requirements, as specified,
the estimated reasonable costs of local law enforcement
agencies for complying with the notification requirements
imposed as specified, the estimated reasonable costs of the
Department of Food and Agriculture for the costs resulting
from the specified notification provisions, the estimated
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reasonable costs of the department for the costs associated
with public education requirements regarding importation of
firearms into California, and the estimated reasonable costs
of department firearms-related regulatory and enforcement
activities related to the sale, purchase, loan, or transfer of
firearms pursuant to specified provisions of law pertaining to
firearms. (Penal Code § 28225(c).)
The Department of Justice may charge a fee sufficient to
reimburse it for each of the following but not to exceed
fourteen dollars ($14), except that the fee may be increased
at a rate not to exceed any increase in the California
Consumer Price Index as compiled and reported by the
Department of Industrial Relations:
o For the actual costs associated with the preparation,
sale, processing, and filing of forms or reports required
or utilized pursuant to any provision listed in subdivision
(a) of Section 16585.
o For the actual processing costs associated with the
submission of a Dealers' Record of Sale to the department.
o For the actual costs associated with the preparation,
sale, processing, and filing of reports utilized pursuant
to Section 26905, 27565, or 28000, or paragraph (1) of
subdivision (a) of Section 27560.
o For the actual costs associated with the electronic or
telephonic transfer of information pursuant to Section
28215.
o Any costs incurred by the Department of Justice to
implement this section shall be reimbursed from fees
collected and charged pursuant to this section. No fees
shall be charged to the dealer pursuant to Section 28225
for implementing this section.
(Penal Code § 28230.)
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All money received by the department pursuant to this article
shall be deposited in the Dealers' Record of Sale Special
Account of the General Fund, which is hereby created, to be
available, upon appropriation by the Legislature, for
expenditure by the department to offset the costs incurred
pursuant to any of the following:
o This article.
o Annual inspections of permitted destructive
devices. (See § 18910.)
o Regulating firearms transaction between
licensed dealers (See § 27555.)
o Conduct public education and notification
programs regarding importation of firearms into the
state. (See § 27560(d) and (e).)
o Maintain a list of federally licensed firearms
dealers in California exempt from the state dealer
licensing requirements, as specified. (See Article 6
(commencing with Section 28450).
o Inspection of inventory of licensed firearms
dealers. (See §31110.)
o Public education and notification programs
regarding registration of assault weapons. (See §
31115.)
o Retesting of handguns on the not unsafe
handgun list, as specified. ( See § 32020(a).)
o Inspection of inventories of machine guns held
under permit. (See § 32670.)
o Inspection of inventories of short-barreled
shotguns and rifles held under permit (See §
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33320.)(Penal Code § 28235.)
The Attorney General shall establish and maintain an online
database to be known as the Prohibited Armed Persons File. 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 Firearms
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.
The information contained in the Prohibited Armed Persons File
shall only be available to specified entities through the
California Law Enforcement Telecommunications System, for the
purpose of determining if persons are armed and prohibited
from possessing firearms. (Penal Code § 30000.)
This bill would provide that DOJ may use dealer record of sale
(DROS) funds for costs associated with its firearms-related
regulatory and enforcement activities regarding the possession
as well as the sale, purchase, loan, or transfer of firearms, as
specified.
This bill would make specified findings and declarations.
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,
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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 Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
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.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
The California Department of Justice (DOJ) maintains
APPS, an online database, to cross-reference persons
who have ownership or possession of a firearm, and
who, subsequent to the date of that ownership or
possession of a firearm, fall within a class of
persons who are prohibited from having a firearm.
Authorized law enforcement agencies have access to
APPS. DOJ populates APPS with all handgun and assault
weapon owners across the state and matches them
against criminal history records to determine who
might fall into a prohibited status. When a match is
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found, the system automatically raises a flag. APPS,
further, interfaces with the Automated Firearms System
and identifies the
handguns and assault<2> weapons in that prohibited
individual's possession. In theory, local agencies
and DOJ would then confiscate the weapons. When local
agencies confiscate weapons, notice is sent to DOJ so
that the individual can be removed from the list.
APPS is currently funded through the general fund.
There is, however, an account that holds the fees
charged by dealers for each firearm purchase. This is
called the Dealer Record of Sale (DROS) account.
Penal Code section 12076 allows the Department of
Justice to use this account to fund firearms-related
regulatory and enforcement activities related to the
sale, purchase, loan, or transfer of firearms pursuant
to this chapter. Penal Code section 12076, however,
does not fund DOJ or local agencies to confiscate
unlawfully possessed firearms.
There are currently more than 18,000 armed prohibited
people statewide, including convicted felons. 30 to
35 percent of prohibited people have been adjudicated
mentally ill. Armed prohibited people are believed to
hold up to 34,101 handguns and 1,590 assault weapons.
Every day there are an additional 15 to 20 individuals
added to APPS. Despite their best efforts, local and
State law enforcement agencies do not have the funding
or resources to keep up with this influx.
2. Background - The Prohibited Armed Persons File
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
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<2> Because long guns are not required to be registered, the
list of firearms in an armed prohibited person's possession
would likely not include long guns.
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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(a).) According to DOJ, in July
2003, it 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 insure the
investigation of individuals who continue to possess firearms
despite being prohibited from doing so. (Penal Code § 30010.)
DOJ states that its 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 states
it 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 )
Recently, the New York Times reported on California's Armed
Prohibited Persons File and the problems it seeks to address:
By law, Roy Perez should not have had a gun three years ago
when he shot his mother 16 times in their home in Baldwin
Park, Calif., killing her, and then went next door and
killed a woman and her 4-year-old daughter.
Mr. Perez, who pleaded guilty to three counts of murder and
was sentenced last year to life in prison, had a history of
mental health issues. As a result, even though in 2004 he
legally bought the 9-millimeter Glock 26 handgun he used,
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at the time of the shootings his name was in a statewide
law enforcement database as someone whose gun should be
taken away, according to the authorities.
The case highlights a serious vulnerability when it comes
to keeping guns out of the hands of the mentally unstable
and others, not just in California but across the country.
In the wake of the Tucson shootings, much attention has
been paid to various categories of people who are legally
barred from buying handguns - those who have been
"adjudicated as a mental defective," have felony
convictions, have committed domestic violence misdemeanors
and so on. The focus has almost entirely been on gaps in
the federal background check system that is supposed to
deny guns to these prohibited buyers.
There is, however, another major blind spot in the system.
Tens of thousands of gun owners, like Mr. Perez, bought
their weapons legally but under the law should no longer
have them because of subsequent mental health or criminal
issues. In Mr. Perez's case, he had been held involuntarily
by the authorities several times for psychiatric
evaluation, which in California bars a person from
possessing a gun for five years.
Policing these prohibitions is difficult, however, in most
states. The authorities usually have to stumble upon the
weapon in, say, a traffic stop or some other encounter, and
run the person's name through various record checks.
California is unique in the country, gun control advocates
say, because of its computerized database, the Armed
Prohibited Persons System. It was created, in part, to
enable law enforcement officials to handle the issue
pre-emptively, actively identifying people who legally
bought handguns, or registered assault weapons, but are now
prohibited from having them.
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The list had 18,374 names on it as of the beginning of this
month - 15 to 20 are added a day - swamping law
enforcement's ability to keep up. Some police departments
admitted that they had not even tried.
* * * * * * * *
The state Justice Department's firearms bureau does have a
small unit, with 20 agents, that tracks down people on the
list. Last year, it investigated 1,717 people and seized
1,224 firearms.
The list is growing far faster, however, than names are
being removed. "We're just not a very big bureau," Mr.
Lindley said. "We do the best we can with the personnel
that we have."
The bureau is planning a sweep this spring focused on
people on the list for mental health reasons. Last summer,
a man from the Fresno area who had recently been released
from a mental health facility was found to possess 73 guns,
including 17 unregistered assault rifles.
In the case of Mr. Perez, Lieutenant Cowan, of Baldwin
Park, said he learned that state agents had been scheduled
to visit Mr. Perez to confiscate his weapon - two weeks
after the rampage took place.
(States Struggle to Disarm People Who've Lost Right to Own Guns,
By Ed Connolly and Michael Luo, New York Times, Feb. 5, 2011,)
http://www.nytimes.com/2011/02/06/us/06guns.html?_r=1
3. What This Bill Would Do
As noted above, 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
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firearms violations and seize firearms from prohibited persons.
Current law provides that DOJ may require licensed firearms
dealers to charge a fee, as specified, in connection with
firearm sales. These fees are deposited in the Dealer
Record of Sale (DROS) Special Account. DROS funds may be
used to reimburse DOJ for the costs associated with funding
DOJ firearms-related regulatory and enforcement activities
related to the sale, purchase, loan, or transfer of
firearms, as specified. (Penal code §§ 28225, 28230,
28235.) It is somewhat unclear under current law whether
DROS funds could be used to reimburse DOJ for its
enforcement efforts related to the Armed Prohibited Persons
File. SB 819 would state that DROS funds may be used by
DOJ for
enforcement activities related to the possession as well as
the sale, purchase, loan, or transfer of firearms..0 This
would clarify that DOJ is permitted to use DROS funds to
pay for its efforts to retrieve unlawfully possessed
firearms and prosecute individuals who possess those
firearms despite being prohibited by law from doing so.
SHOULD IT BE SPECIFIED THAT DROS FUNDS MAY BE USED TO FINANCE
DOJ'S ENFORCEMENT OF LAWS REGARDING THE UNLAWFUL POSSESSION OF
FIREARMS?
4. Argument in Support
The California Chapters of the Brady Campaign to Prevent Gun
Violence states:
The Dealers' Record of Sale (DROS) fee is charged by
the California Department of Justice (DOJ) for most
firearm transfers. The fees reimburse DOJ for
expenses incurred related to the DROS process,
including conducting the background check of
prospective firearm purchasers. The DROS fees are
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deposited in the DROS Special Account of the General
Fund and are available, upon appropriation by the
Legislature, for expenditure by DOJ to offset
specified costs.
Existing law provides that DROS fees may also be used
to fund firearms-related regulatory and enforcement
activities related to the sale, purchase, loan, or
transfer of firearms. SB 819 would additionally
authorize using the DROS fess for regulatory and
enforcement activities related to the possession of
firearms. It is important to note that SB 819 does
not create a new class of persons prohibited from
purchasing or possessing firearms. The bill would
simply help DOJ better enforce existing firearm laws
and ensure that dangerous individuals who have lost
their gun rights are not in possession of firearms.
SB 819 would not impose a cost to the state general
fund, but would allow DROS funds, as approved by the
regular budget process, to be used for certain firearm
enforcement programs.
Specifically, SB 819 seeks to allow a portion of the
annual surplus of DROS funds to be expended on DOJ's
Armed and Prohibited Persons System (APPS) Program.
The APPS database maintained by DOJ contains
information on persons who have purchased handguns and
subsequently become prohibited by law from purchasing
or possessing firearms. Law enforcement can use this
information to disarm persons who may be in the
database as a result of a felony or violent
misdemeanor conviction, a commitment to a mental
health facility, or the result of a domestic violence
restraining order for which they failed to surrender
their firearm.
The California Brady Chapters pushed for full
implementation of the APPS program under Attorney
General Brown and from July 1, 2007 to September 30,
2010, DOJ conducted 5,762 APPS investigations,
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resulting in the seizure of 5,985 firearms. A partial
review of investigations by BOF indicates that
approximately 40% of all APPS investigations results
in the seizure of at least one firearm.<3>
As of March 3, 2010, there were 17,134 armed and
prohibited persons in the APPS database. This group
of prohibited persons was believed to be in possession
of 29,358 handguns and 1,514 assault weapons.<4> By
November 1, 2010, the numbers had increased to 18,166
prohibited persons in the APPS database, with 33,019
handguns and 1,555 assault weapons associated with the
prohibited persons.<5> (There is no data on long guns
owned by prohibited persons since long gun records are
not maintained in the California database.) Despite
the investigation and seizure of almost six thousand
firearms, the number of prohibited persons with
firearms in APPS is growing due to the fact that gun
owners are becoming prohibited faster than DOJ and
local law enforcement agencies can conduct
investigations and seizure of the firearms.
Local law enforcement agencies are provided monthly
information regarding the armed and prohibited persons
in the agency's jurisdiction. However at the present
time, many agencies do not have the resources or
personnel to work the APPS cases and rely on
assistance from DOJ's criminal intelligence
specialists and special agents. In today's
environment of shrinking budgets, it is important to
find alternative ways to fund the state's important
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<3>
Data provided by the CA DOJ, November 2, 2010
<4>.
Data provided by the CA DOJ, March 4, 2010
<5>.
Data provided by the CA DOJ, November 2, 2010
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public safety programs.
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5. Argument in Opposition
The National Shooting Sports Foundation, Inc. states:
While NSSF supports keeping firearms out of the hands
of persons who are prohibited from possessing
firearms, it opposes taking the money to fund this
activity from the Dealers Record of Sale (DROS)
Special Account of the General Fund.
The money paid into the DROS fund by a prospective
purchaser or other transferee of a firearm, is a fee
to pay for the costs of a criminal and mental history
background check to determine the person's eligibility
to lawfully possess a firearm.
The DROS fee is not a regulatory fee, tax license or
other form of non-user charge. NSSF believes that the
DROS fund has often been improperly used to fund
non-background check activities of the Department of
Justice (DOJ).
Since the use of DROS fees for the purposes of SB 819
would be to use them in the same manner as a tax, the
bill should require a 2/3's vote of each house of the
Legislature for passage.
If the bill were to be amended to designate a
different source of funding, NSSF would remove its
opposition and likely support the bill. NSSF does not
support unfunded legislation.
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