BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1366|
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UNFINISHED BUSINESS
Bill No: SB 1366
Author: DeSaulnier (D)
Amended: 8/2012
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 4/10/12
AYES: Hancock, Calderon, Liu, Price, Steinberg
NOES: Anderson, Harman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 23-14, 5/14/12
AYES: Alquist, Calderon, Corbett, De León, DeSaulnier,
Evans, Hancock, Hernandez, Kehoe, Leno, Lieu, Liu,
Lowenthal, Negrete McLeod, Padilla, Pavley, Price, Rubio,
Simitian, Steinberg, Vargas, Wolk, Yee
NOES: Anderson, Berryhill, Blakeslee, Cannella, Correa,
Dutton, Emmerson, Fuller, Gaines, Harman, Huff, La Malfa,
Walters, Wright
NO VOTE RECORDED: Runner, Strickland, Wyland
ASSEMBLY FLOOR : 50-28, 8/22/12 - See last page for vote
SUBJECT : Lost and stolen firearms
SOURCE : Brady Campaign to Prevent Gun Violence,
California Chapters
Legal Community Against Violence
Los Angeles County Sheriff, Lee Baca
CONTINUED
SB 1366
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DIGEST : This bill requires every person, with
exceptions, to report the theft or loss of a firearm he/she
owns or possesses to a local law enforcement agency in the
jurisdiction in which the theft or loss occurred within 48
hours of the time he/she knew or reasonably should have
known that the firearm had been stolen or lost, and
requires every person who has reported a firearm lost or
stolen to notify the local law enforcement agency within 48
hours if the firearm is subsequently recovered. This bill
provides guidelines for law enforcement to adhere to, and
prescribes a fine for a violation of these provisions.
Assembly Amendments add double-jointing language.
ANALYSIS : Existing law provides that persons licensed to
make, import, collect, or deal in firearms are required to
report the loss or theft of firearms they possess, to a law
enforcement agency. For example, Penal Code (PEN) Section
26885 requires licensed dealers to report losses within 48
hours and PEN Section 29115(a) requires licensed firearms
manufacturers - whether of handguns or long guns - to
report the loss or theft of firearms within 48 hours to
specified law enforcement agencies.
Existing law provides that the sale, loan or transfer of
firearms in almost all cases must be processed by, or
through, a state licensed dealer or a local law enforcement
agency with appropriate transfer forms being used. (PEN
Sections 26500 and 27545.) In those cases where dealer or
law enforcement processing is not required, a handgun
change of title report must still be sent to the Department
of Justice (DOJ). (PEN Section 27920)
Existing law provides that, on request, DOJ will register
transactions relating to handguns in the Automated Firearm
System Unit for persons who are exempt from dealer
processing or are otherwise exempt by statute from
reporting processes. (PEN Section 28000)
Existing law requires handguns to be centrally registered
at time of transfer or sale due to various 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
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thereof. (PEN Section 11106(a) and (c).) After 2014, this
registry will include data on ownership of long guns, as
well as handguns. (Chapter 745, Statutes of 2011.) Law
enforcement agencies must promptly report to DOJ all
reports they receive of lost, stolen, and found property.
(PEN Sections 11107and 11108.) DOJ must keep a centralized
and computerized list of all lost, stolen, and found
serialized property reported to it. (PEN Section 11106(a))
Existing law provides that in addition to the requirements
of Section 11108 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 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. In addition,
any law enforcement agency or agent may report to the AG
pursuant to this section all information pertaining to any
firearm taken into custody, except where the firearm has
been voluntarily placed with the law enforcement agency for
storage. (PEN Section 11108.3)
Existing law requires that a "personal handgun importer" -
a person in lawful possession of a handgun who moves to
California after January 1, 1998 - shall either report that
ownership to the Department of Justice within 60 days or
shall otherwise dispose of the handgun, as specified. (PEN
Sections 17000(a) and 27560)
Existing law provides that if any weapon has been stolen
and is thereafter recovered from the thief or his/her
transferee, or is used in such a manner as to constitute a
nuisance because it was unlawfully carried or used without
the prior knowledge of its lawful owner that it would be so
used, it shall be restored to the lawful owner, as soon as
its use as evidence has been completed. The lawful owner
must identify the weapon and provide proof of ownership.
(PEN Section 18005(b))
Existing law requires that any person seeking the return of
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a firearm in the custody or control of a court or law
enforcement agency must submit specified information,
including for handguns the firearm's make, model, caliber,
barrel length, handgun type, country of origin, and serial
number. If the firearm has been reported lost or stolen to
a law enforcement agency, as specified, the agency shall
notify the owner or person entitled to possession of the
firearm. The person seeking return of the firearm shall be
subject to a background check, as specified. (PEN Sections
33850 and 33855)
Existing law excludes from the definition of "firearm," for
a number of provisions of law, an unloaded "antique
firearm" and uses the federal definition of that term.
(PEN Section 16170)
Existing law requires licensed firearms dealers to post
specified warnings in a conspicuous place on their
premises, such as a warning about penalties for leaving a
loaded firearm where a child obtains it. (PEN Section
26835)
Existing law pertaining to the "criminal storage" of
firearms - both handguns and rifles and shotguns - makes it
a crime to store firearms negligently and where a child
(person under 18 years of age) gains access to the
firearm(s), as specified. (PEN Section 25100, et seq.)
Existing law provides that every person is responsible, not
only for the result of his/her willful acts, but also for
an injury occasioned to another by his/her want of ordinary
care or skill in the management of his/her property or
person, except so far as the latter has, willfully or by
want of ordinary care, brought the injury upon
himself/herself. The design, distribution, or marketing of
firearms and ammunition is not exempt from the duty to use
ordinary care and skill that is required by this section.
(Civil Code (CIV) Section 1714)
Existing law provides that civil liability for any injury
to the person or property of another proximately caused by
the discharge of a firearm by a minor under the age of 18
years shall be imputed to a parent or guardian having
custody and control of the minor for all purposes of civil
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damages, and such parent or guardian shall be jointly and
severally liable with such minor for any damages resulting
from such act, if such parent or guardian either permitted
the minor to have the firearm or left the firearm in a
place accessible to the minor; the liability imposed by
this section is in addition to any liability otherwise
imposed by law. However, no person, or group of persons
collectively, shall incur liability under this section in
any amount exceeding $30,000 for injury to or death of one
person as a result of any one occurrence or, subject to the
limit as to one person, exceeding $60,000 for injury to or
death of all persons as a result of any one such
occurrence. (CIV Section 1714.3)
Existing law provides that no person shall make an
application to purchase more than one handgun within any
30-day period. (PEN Section 27535(a).) However, an
exemption to that restriction applies to the replacement of
a handgun when the person's handgun was lost or stolen, and
the person reported that firearm lost or stolen prior to
the completion of the application to purchase to any local
law enforcement agency of the city, county, or city and
county in which the person resides. (PEN Section 27535(b)
(11))
This bill requires that, beginning January 1, 2013, every
person must report the theft or loss of a firearm he/she
owns or possesses to a local law enforcement agency in the
jurisdiction in which the theft or loss occurred within 48
hours of the time he/she knew or reasonably should have
known that the firearm had been stolen or lost.
This bill provides that, for purposes of this requirement,
a "firearm" includes the frame or receiver of the weapon.
This bill provides that, for purposes of this requirement,
a "firearm" does not include an unloaded antique firearm.
This bill also requires that every person who has reported
a firearm lost or stolen, as required above, shall notify
the local law enforcement agency in the jurisdiction in
which the theft or loss occurred within 48 hours if the
firearm is subsequently recovered by the person.
SB 1366
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This bill provides that a violation of either of the above
provisions would be, for a first violation, an infraction
punishable by a fine not to exceed $100 and a second or
subsequent violation, would be an infraction, punishable by
a fine not exceeding $1,000.
This bill provides that every person who violates Section
25250 is, for a third or subsequent violation, guilty of a
misdemeanor, punishable by imprisonment in a county jail
not exceeding six months, or by a fine not exceeding
$1,000, or by both that fine and imprisonment.
This bill requires that every person reporting a lost or
stolen firearm shall report the make, model, and serial
number of the firearm, if known by the person.
This bill provides that, beginning January 1, 2013, no
person shall report to a local law enforcement agency that
a firearm has been lost or stolen, knowing the report to be
false. A violation of this section shall be a misdemeanor,
punishable by imprisonment in a county jail not exceeding
six months, or by a fine not exceeding $1,000, or by both
that fine and imprisonment.
This bill requires firearms dealers to conspicuously post
within the licensed premises the following warnings in
block letters not less than one inch in height: "IF A
FIREARM YOU OWN OR POSSESS IS LOST OR STOLEN, YOU MUST
REPORT THE LOSS OR THEFT TO A LOCAL LAW ENFORCEMENT AGENCY
WHERE THE LOSS OR THEFT OCCURRED WITHIN 48 HOURS OF THE
TIME YOU KNEW OR REASONABLY SHOULD HAVE KNOWN THAT THE
FIREARM HAD BEEN LOST OR STOLEN."
This bill provides that the lost or stolen firearm
reporting requirement shall not apply to:
Any law enforcement agency or peace officer acting within
the course and scope of his/her employment or official
duties, if he/she reports the loss or theft to his/her
employing agency.
Any United States Marshal or member of the Armed Forces
of the United States or the National Guard, while engaged
in his/her official duties.
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Any federally licensed firearms dealer or manufacturer,
as specified, who reports the theft or loss in accordance
with specified federal law, or the successor thereto, and
the applicable regulations.
Any person whose firearm was lost or stolen prior to
January 1, 2013.
This bill is double-jointed with AB 1527 (Portantino).
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/22/12)
Brady Campaign to Prevent Gun Violence, California Chapters
(co-source)
Legal Community Against Violence (co-sponsor)
Los Angeles County Sheriff, Lee Baca (co-sponsor)
Antelope Valley
Association of Bay Area Governments
California Partnership to End Domestic Violence
California Police Chiefs Association INC.
California Probation, Parole and Correctional Association
California State Sheriffs' Association
Chief Aaron L. Baker, City of Pittsburg
Chief Camerino Sanchez, City of Santa Barbara
Chief Charlie Beck, City of Los Angeles
Chief Chris Magnus, City of Richmond
Chief Christopher W. Boyd, City of Citrus Heights
Chief Craig T. Steckler, City of Fremont
Chief Dan Bellini, City of Woodland
Chief David Bejarano, City of Chula Vista
Chief Gary D. Peterson, City of Martinez
Chief Gregory Suhr, City and County of San Francisco
Chief Guy A. Swanger, City of Concord
Chief Howard A. Jordan, City of Oakland
Chief Jerry Dyer, City of Fresno
Chief Jim McDonnell, City of long Beach
Chief Joel H. Bryden, City of Walnut Creek
Chief John Hardester, City of Pinole
Chief Ken James, City of Emeryville
Chief Landy Black, City of Davis
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Chief Paul M. Walters, City of Santa Ana
Chief Scott LaChasse, City of Burbank
Chief Susan E. Manheimer, City of San Mateo
Chief Sylvia M. Moir, City of El Cerrito
Chief Walter Schuld, City of San Pablo
Cities of Long Beach, Los Angeles, and San Francisco
Coalition Against Gun Violence, Santa Barbara County
Coalition
Counties of Alameda, Contra Costa, Napa, Nevada, Orange,
San Diego, San Joaquin, San Mateo, Santa Barbara, Santa
Clara, Santa Cruz, Sonoma, and Ventura
Don Lane, Mayor of Santa Cruz
Friends Committee on Legislation of California
Friends Committee on Legislation of California (if amended)
Global Exchange, San Francisco
Mayor Helene Schneider, City of Santa Barbara
Mayors Against Illegal Guns
PICO National Network
Sacramento Valley
San Fernando Valley
San Francisco District Attorney, George Gascon
Violence Prevention Coalition of Greater Los Angeles
Violence Protection Coalition of Orange County
Women Against Gun Violence
Youth Alive!
OPPOSITION : (Verified 8/22/12)
California Outdoor Heritage Alliance
California Rifle and Pistol Association
California Sportsman's Lobby
Gun Owners of California
National Rifle Association
Outdoor Sportsmen's Coalition of California
Safari Club International
ARGUMENTS IN SUPPORT : The California Police Chiefs
Association states:
SB 1366 would provide a tool for law enforcement to
detect firearms trafficking and charge criminals who
engage in it. A requirement to report lost or stolen
firearms would assist in the identification and
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prosecution of "straw buyers," individuals who purchase
guns legally, then sell them to people who cannot legally
purchase firearms such as gang members, criminals or
minors. When crime guns are traced to straw buyers, they
falsely claim that the firearm was lost or stolen. The
lack of a reporting requirement enables straw buyers to
shield their criminal activity and continue to sell guns
illegally to dangerous criminals. A reporting
requirement would likewise assist in the prosecution of
armed criminals who falsely claim that a crime gun traced
to them was lost or stolen when in fact it was used in a
crime. The lack of a reporting requirement enables
criminals to hide their involvement in a crime and evade
apprehension.
SB 1366 would help law enforcement efforts to disarm
individuals who possess a firearm and subsequently become
prohibited by law from purchasing or possessing firearms
because of falling into a prohibited class. When law
enforcement attempts to recover these illegal firearms,
gun owners may falsely claim that the gun was lost or
stolen. A reporting requirement would improve the
efficiency and implementation of the state's Armed and
Prohibited Persons System Program, in which law
enforcement agencies work to proactively disarm
prohibited individuals before they harm themselves or
others.
ARGUMENTS IN OPPOSITION : The California Outdoor Heritage
Alliance states:
SB 1366 would unfairly penalize innocent victims of crime
and increase the criminal liability of law abiding
individuals without significant public safety benefits.
It should be noted that in cities such as San Francisco,
Oakland and Berkeley, where similar schemes have been
tried, few if any arrests or convictions of criminals
have arisen as a result.
Although perhaps well-intended, SB 1366 would
unnecessarily burden and possibly make criminals out of
otherwise law-abiding sportsmen and women. Without
evidence to suggest that such measures are effective,
COHA stands in opposition.
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ASSEMBLY FLOOR : 50-28, 8/22/12
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Davis, Dickinson, Eng, Feuer, Fletcher, Fong,
Fuentes, Furutani, Gatto, Gordon, Hall, Hayashi, Hill,
Hueso, Huffman, Lara, Bonnie Lowenthal, Ma, Mendoza,
Mitchell, Monning, Pan, Perea, V. Manuel Pérez,
Portantino, Skinner, Solorio, Swanson, Torres,
Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Conway, Cook, Donnelly, Beth Gaines,
Galgiani, Garrick, Gorell, Grove, Hagman, Halderman,
Harkey, Huber, Jeffries, Jones, Knight, Logue, Mansoor,
Miller, Morrell, Nestande, Nielsen, Norby, Olsen, Silva,
Smyth, Valadao, Wagner
NO VOTE RECORDED: Bill Berryhill, Roger Hernández
RJG:m 8/22/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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