BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
A
2013-2014 Regular Session
B
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6
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AB 169 (Dickinson)
As Amended June 3, 2013
Hearing date: June 11, 2013
Penal Code
SM:mc
RESALE OF UNCERTIFIED HANDGUNS
HISTORY
Source: Author
Prior Legislation: AB 2460 (Dickinson) - 2012 vetoed
SB 15 (Polanco) - Chapter 248, Statutes of 1999
Support: American Federation of State, County and Municipal
Employees (AFSCME); California Chapters of the Brady
Campaign to Prevent Gun Violence; Law Center to Prevent
Gun Violence
Opposition: California Association of Firearms
Retailers; California Sportsman's Lobby, Inc.; Outdoor
Sportsmen's Coalition of California; Safari Club
International; Sheriff of Riverside County; National
Rifle Association of America; California Rifle and
Pistol Association, Inc.; several individuals
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Assembly Floor Vote: Ayes 43 - Noes 27
KEY ISSUES
SHOULD SEVERAL EXEMPTIONS FROM THE "SAFE HANDGUN" REQUIREMENTS
BE ELIMINATED AND ADDITIONAL REVISIONS MADE TO TIGHTEN THE "SAFE
HANDGUN" REQUIREMENTS?
PURPOSE
The purpose of this bill is to (1) eliminate the exemption from
the safe handgun requirements for the sale, loan or transfer of
handguns through a licensed dealer in a private party
transaction, as specified; (2) eliminate the exemption from the
safe handgun requirements for the delivery of a handgun to a
licensed firearms dealer for the purpose of a consignment sale
or as collateral for a pawnbroker loan; (3) prohibit a person
who acquires a handgun that is not on the "not unsafe" handgun
roster under the exemption for law enforcement officers or
members of the military from selling or otherwise transferring
ownership of the handgun to a person who does not qualify for
the same exemption; (4) amend an exemption to the safe handgun
requirements for single shot handguns to exempt from those
requirements: a single-shot pistol with a break top or bolt
action and a barrel length of not less than six inches and that
has an overall length of at least 10 inches when the handle,
frame or receiver, and barrel are assembled; (5) provide that
the safe handgun requirements do apply to a semiautomatic pistol
that has been temporarily or permanently altered so that it will
not fire in a semiautomatic mode; and (6) add an exemption from
the safe handgun requirements for the sale, loan or transfer of
any handgun conducted through a licensed dealer that was listed
on the roster of not unsafe handguns, as specified, but was
subsequently removed from the roster because of the
manufacturer's failure to pay the fee to keep the handgun listed
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on the roster.
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. (Penal
Code §§ 27540, 27545, 28050.)
Existing law provides that commencing January 1, 2001, no
"unsafe handgun" may be manufactured or sold in California by a
licensed dealer, except as specified, and requires that the
Department of Justice prepare and maintain a roster of handguns
which are determined not to be unsafe handguns. Private party
sales (used or previously owned) and transfers of handguns
through a licensed dealer or sheriff in smaller counties are
exempted from those restrictions. (Penal Code §§ 27545, 32000,
et seq., § 32110.)
Existing law does the following:
Defines "unsafe handgun" as any pistol, revolver, or
other firearm capable of being concealed upon the person,
as specified, which lacks various safety mechanisms and
does not pass listed tests, as specified. (Penal Code §
31910.)
Requires any concealable firearm manufactured in
California, or intended to be imported for sale, kept for
sale, or offered for sale to be tested within a reasonable
period of time by an independent laboratory, certified by
the state Department of Justice (DOJ), to determine whether
it meets required safety standards, as specified. (Penal
Code § 32010.)
Requires DOJ, on and after January 1, 2001, to compile,
publish, and thereafter maintain a roster listing all of
the pistols, revolvers, and other firearms capable of being
concealed upon the person that have been tested by a
certified testing laboratory, have been determined not to
be unsafe handguns, and may be sold in this state, as
specified. The roster shall list, for each firearm, the
manufacturer, model number, and model name. (Penal Code §
32015.)
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Provides that DOJ may charge every person in California
who is licensed as a manufacturer of firearms, as
specified, and any person in California who manufactures or
causes to be manufactured, imports into California for
sale, keeps for sale, or offers or exposes for sale any
pistol, revolver, or other firearm capable of being
concealed upon the person in California, an annual fee not
exceeding the costs of preparing, publishing, and
maintaining the roster of firearms determined not to be
unsafe, and the costs of research and development, report
analysis, firearms storage, and other program
infrastructure costs, as specified. (Penal Code § 32015.)
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| Existing law requires that, commencing January 1, 2010, all | |
| semiautomatic pistols that are not | |
| already listed on the roster be designed and equipped with a | |
| microscopic array of characters | |
| that identify the make, model, and serial number of the pistol, | |
| etched or otherwise imprinted in | |
| two or more places on the interior surface or internal working | |
| parts of the pistol, and that are transferred by imprinting on each | |
| cartridge case when the firearm is fired, provided that the | |
| Department of Justice certifies that the technology used to create | |
| the imprint is available to | |
| more than one manufacturer unencumbered by any patent restrictions. | |
| On May 17, 2013, DOJ | |
| issued that certification. (Penal Code § 31910(b)(7).) | |
-----------------------------------------------------------------------
Existing law provides that any person in California who
manufactures or causes to be manufactured, imports into the
state for sale, keeps for sale, offers or exposes for sale,
gives, or lends any unsafe handgun shall be punished by
imprisonment in a county jail not exceeding one year. (Penal
Code § 32000(a).)
Existing law specifies that this requirement shall not apply to
any of the following:
The manufacture in California, or importation into this
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state, of any prototype pistol, revolver, or other firearm
capable of being concealed upon the person when the
manufacture or importation is for the sole purpose of
allowing an independent laboratory certified by DOJ to
conduct an independent test to determine whether that
pistol, revolver, or other firearm capable of being
concealed upon the person is prohibited, inclusive, and, if
not, allowing the department to add the firearm to the
roster of pistols, revolvers, and other firearms capable of
being concealed upon the person that may be sold in this.
The importation or lending of a pistol, revolver, or
other firearm capable of being concealed upon the person by
employees or authorized agents of entities determining
whether the weapon is prohibited by this section.
Firearms listed as curios or relics, as defined in
federal law.
The sale or purchase of any pistol, revolver, or other
firearm capable of being concealed upon the person, if the
pistol, revolver, or other firearm is sold to, or purchased
by, the Department of Justice, any police department, any
sheriff's official, any marshal's office, the Youth and
Adult Correctional Agency, the California Highway Patrol,
any district attorney's office, or the military or naval
forces of this state or of the United States for use in the
discharge of their official duties. Nor shall anything in
this section prohibit the sale to, or purchase by, sworn
members of these agencies of any pistol, revolver, or other
firearm capable of being concealed upon the person. (Penal
Code § 32000(b).)
Existing law also contains numerous additional exemptions to the
safe handgun requirements, including an exemption for any
transfer that is not required to be made through a licensed
dealer. This exemption alone includes within it another
approximately 25 exemptions. (Penal Code §§ 32110, 27850, et
seq.)
This bill would eliminate the exemption from the safe handgun
requirements for the sale, loan or transfer of handguns through
a licensed dealer in a private party transaction, as specified.
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This bill would eliminate the exemption from the safe handgun
requirements for the delivery of a handgun to a licensed
firearms dealer for the purpose of a consignment sale or as
collateral for a pawnbroker loan.
This bill would prohibit a person who acquires a handgun that is
not on the "not unsafe" handgun roster under the exemption for
law enforcement officers or members of the military from selling
or otherwise transferring ownership of the handgun to a person
who does not qualify for the same exemption.
This bill would amend an exemption to the safe handgun
requirements for single shot handguns to exempt from those
requirements: a single-shot pistol with a break top or bolt
action and a barrel length of not less than six inches and that
has an overall length of at least 10 inches when the handle,
frame or receiver, and barrel are assembled.
This bill would provide that the safe handgun requirements do
apply to a semiautomatic pistol that has been temporarily or
permanently altered so that it will not fire in a semiautomatic
mode.
This bill would add an exemption from the safe handgun
requirements for the sale, loan or transfer of any handgun
conducted through a licensed dealer that was listed on the
roster of not unsafe handguns, as specified, but was
subsequently removed from the roster because of the
manufacturer's failure to pay the fee to keep the handgun listed
on the roster.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
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years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
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prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical
safety of others for which there is no other reasonably
appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be
achieved through any other reasonably appropriate remedy;
and
whether a bill addresses a major area of public safety
or criminal activity for
which there is no other reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
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. Existing law also
provides that no "unsafe handgun" may be manufactured
or sold in California by a licensed dealer, as
specified, and requires that the Department of
Justice (DOJ) prepare and maintain a roster of
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handguns which are determined not to be unsafe.
Current law allows for certain exemptions from the
above restriction, including law enforcement
officers, as defined, private parties where the
weapon was previously owned, gunsmiths, curio/relic
dealers, pawnbrokers, and people using the guns as a
movie props.
The exemptions and grandfathering provisions of
current law recognize several facts: 1) Law
enforcement officers have training to safely handle
these weapons; 2) certain parties have a legitimate
use for such weapons (movie props and repair); and 3)
individuals may have owned one of the unsafe handguns
prior to any state restrictions being enacted.
Notwithstanding the exemptions and grandfathering
provisions, there is a loophole in law that allows
any of the exempted parties to sell/transfer or loan
that weapon to any other person. This loophole
allows the ownership of unsafe handguns, by parties
who otherwise could not buy them legally from a
manufacturer through a licensed dealer. Private
parties who may purchase the unsafe handguns from an
exempted party may not have the training to safely
handle the weapon or have a legitimate need for the
weapon.
Last year, Assemblymember Dickinson authored AB 2460
to close this loophole for exempted law enforcement.
The Governor's veto message cited the fact there are
other exempted parties, and legislation should not
single out one particular group. AB 169 now
addresses some of the other exempted parties, in
addition to law enforcement, as suggested by the
Governor.
The bill also closes another loophole in the
non-rostered or unsafe handgun law. If a
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non-rostered weapon is modified so that it can only
fire a single shot, it can be purchased legally
through a dealer by anyone. This has led buyers to
order the gun, and instruct the dealer to modify the
gun to be a single shot weapon, before the buyer
takes delivery. After the buyer receives the
modified weapon, on another day, they have the dealer
or a gunsmith undo the single shot modification, and
return the gun to its original configuration, thus
allowing them to own an unsafe handgun with no
restriction.
AB 169 closes a couple of loopholes in state law
that, without correction, allow unsafe handguns to be
easily transferred to individuals who are not trained
to handle such weapons, or do not have a legitimate
need to own such a weapon, or to be purchased by
anyone if the weapon undergoes a simple modification
that can be easily undone.
Unsafe, or non-rostered handguns are those that are
determined by DOJ that do not have required safety
features, do not meet specified firing tests or do
not meet a drop test. Few people can legally
purchase such guns through a dealer. Unfortunately,
there is nothing to prohibit any of these permitted
persons to turn around and sell the guns to people
who cannot make an original purchase. Another
loophole allows anyone to buy an unsafe handgun if it
is modified to fire only a single shot. But this
modification can be easily undone.
Both loopholes allow the law to be abused. Some of
the parties who are exempted from restrictions on
owning an unsafe handgun can, purchase these guns so
that they can be resold to those who are not
exempted. Blog traffic indicates that there is a
thriving market for such weapons and prices are at a
premium. This results in a proliferation of unsafe
handguns among the general population.
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It is important to close this loophole to keep unsafe
handguns out of the hands of the general public and
protect the integrity of California law.
2. Safe Handgun Law and the Effect of This Bill
SB 15 (Polanco), Chapter 248, Statutes of 1999, made it a
misdemeanor for any person in California to manufacture, import
for sale, offer for sale, give, or lend any unsafe handgun, as
defined, with certain specific exceptions. SB 15 defined an
"unsafe handgun" as follows: (a) does not have a requisite
safety device, (b) does not meet specified firing tests, and (c)
does not meet a specified drop safety test.
Required Safety Device: The Safe Handgun Law
requires a revolver to have a safety device that,
either automatically in the case of a double-action
firing mechanism or by manual operation in the case of
a single-action firing mechanism, causes the hammer to
retract to a point where the firing pin does not rest
upon the primer of the cartridge or in the case of a
pistol have a positive manually operated safety
device.
Firing Test: In order to meet the "firing
requirements" under the Safe Handgun Law, the
manufacturer must submit three unaltered handguns, of
the make and model for which certification is sought,
to an independent laboratory certified by the Attorney
General. The laboratory shall fire 600 rounds from
each gun under certain conditions. A handgun shall
pass the test if each of the three test guns fires the
first 20 rounds without a malfunction, and fires the
full 600 rounds without more than six malfunctions and
without any crack or breakage of an operating part of
the handgun that increases the risk of injury to the
user. "Malfunction" is defined as a failure to
properly feed, fire or eject a round; failure of a
pistol to accept or reject a manufacturer-approved
magazine; or failure of a pistol's slide to remain
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open after a manufacturer approved magazine has been
expended.
Drop Test: The Safe Handgun Law provides that at
the conclusion of the firing test, the same three
manufacturer's handguns must undergo and pass a "drop
safety requirement" test. The three handguns are
dropped a specified number of times, in specified
ways, with a primed case (no powder or projectile)
inserted into the handgun, and the primer is examined
for indentations after each drop. The handgun passes
the test if each of the three test guns does not fire
the primer.
Current law exempts handguns from the safety testing
requirements that are sold to, or purchased by, the Department
of Justice, any police department, any sheriff's official, any
marshal's office, the Youth and Adult Correctional Agency, the
California Highway Patrol, any district attorney's office, or
the military. Sworn members of those agencies are also exempted
from the ban on buying or selling handguns that are not on DOJ's
"not unsafe" handgun roster. This bill would provide that
anyone who falls under these exemptions and who acquires a
handgun that is not on the "not unsafe" safe handgun roster,
shall not sell or otherwise transfer ownership of the handgun to
a person who is not similarly exempted. Last year the
Legislature approved AB 2460 (Dickinson), which contained this
same provision. AB 2460 was vetoed by Governor Brown, whose
veto message read:
This bill would restrict law enforcement and
military personnel - and only those individuals -
from selling lawfully purchased handguns that
have not been certified by the Attorney General's
Office.
This bill takes from law enforcement officers the
right to an activity that remains legally
available to every private citizen. I don't
believe this is justified.
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In response to that veto, this bill would also eliminate the
exemption for private party transfers through a licensed gun
dealer and for consignment sales through a licensed dealer or as
collateral for a pawnbroker loan. The rationale for the law
enforcement exemption to the safe handgun requirements is that
law enforcement officers are presumed to have specialized
training in the handling of handguns that exceeds that of the
general public, making the need for safety features such a
chamber-load indicator, less important. The rationale for
prohibiting transfer of handguns acquired under the law
enforcement exemption to persons who do not share that exemption
is clear: allowing trained law enforcement personnel who acquire
the guns under that specific exemption to turn around and sell
them to non-law enforcement buyers is inconsistent with the
rationale for allowing the law enforcement exemption and appears
to be an abuse of that exemption.
Prohibiting all private party sales of unrostered handguns, as
this bill would do, raises a different and larger issue: to whom
is the owner of an unrostered handgun, e.g., a handgun acquired
before the safe handgun requirements were enacted and therefore
never placed on the unsafe roster, allowed to sell or otherwise
transfer the gun today? This bill would prohibit all private
party sales of such handguns that are required to be carried out
through a licensed firearms dealer. As noted above, several
types of transfers would still be allowed under existing
exemptions such as by inter-familial gift or bequest, specified
loans, transfers to gunsmiths for repair, transfers to
out-of-state federal firearms license holders, transfers of
"curio and relic" handguns, et cetera. However, prohibiting
private party transfers and consignment sales would mean that
most owners of currently unrostered handguns who want to sell
the gun would need to leave the state in order to do so. This
creates a potential unintended consequence that a certain number
of these gun owners would simply sell the gun to a willing buyer
without going through the legally required process. This would
result in the gun being sold without a background check being
performed on the buyer, and ownership of the gun would no longer
be traceable through DOJ's database.
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At the same time this bill would add an exemption for the
transfer of firearms that were once tested and approved by DOJ
and placed on the "not unsafe" roster, and were later taken off
the roster due only the manufacturer failing to pay the
necessary annual fee to keep the gun listed on the roster.
This bill would also close a loophole in existing law by
providing that the safe handgun requirements do apply to a
semiautomatic pistol that has been temporarily or permanently
altered so that it will not fire in a semiautomatic mode. This
addresses the reported practice of some gun dealers in which the
dealer sells an unrostered handgun that has been modified to not
fire in semi-automatic fashion and therefore isn't required to
be on the "not unsafe" roster. However, the modification is
done in such a way that the buyer can then simply modify the gun
back to semi-automatic operation and thereby circumvent the safe
handgun requirement.
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3. Statement in Support
The Law Center to Prevent Gun Violence states:
California law prohibits the manufacturer, importation
or sale of any handgun unless that weapon has been
deemed "certified for sale" by the Department of
Justice. In order to be certified, a handgun must,
among other requirements, pass a firing test,
confirming that the gun can be fired multiple times
without malfunctioning, and a drop safety test,
confirming that it can be dropped multiple times
without discharging. The prohibition on the sale of
unsafe handguns is vital to public safety because of
the particular dangers that "junk guns" pose to
firearm owners statewide.
Unfortunately, gaps in the state's unsafe handgun law
enable continued circulation of these dangerous guns
on the consumer market. For example, any
semiautomatic handgun that has been temporarily
altered to operate as a single shot weapon (i.e., a
gun that can hold only a single ammunition round at a
given time) is exempt from the unsafe handgun ban. As
a result, these firearms may be sold to private
citizens, who may then convert them back into
semiautomatic handguns that would not meet the state's
safety requirements. Additionally, under current law,
individuals may privately sell unsafe handguns even
though it would be illegal for a dealer to sell these
weapons.
AB 169 would clarify that the unsafe handgun
requirements apply to any semiautomatic pistol that
has been temporarily or permanently altered into
single shot functionality. Moreover, the bill would
prohibit the sale of unsafe handguns between private
parties on the secondary market.
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4. Argument in Opposition
The California Association of Firearms Retailers state:
Many dealers take non-listed handguns in on
consignment. These guns are usually high-quality and
not unsafe, they are simply untested pursuant to the
testing requirements for new handguns that became
operational in 2002. There is no public safety or
law-enforcement reason to ban their sale.
The bill would also ban through dealer private party
sales of unlisted handguns, thus eliminating the only
practical lawful means for people to sell or otherwise
transfer handguns that are no longer needed or wanted.
AB 169 would result in a huge loss of Dealer Record of
Sale (DROS) fee revenue for the Department of Justice,
an increase in illegal samples of handguns, increased
incarceration, and greater enforcement problems for
law enforcement in general.
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