BILL NUMBER: AB 500 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 24, 2013
INTRODUCED BY Assembly Member Ammiano
FEBRUARY 20, 2013
An act to amend Sections 11106, 16520, 16540, 16850, 23510, and
28220 of, and to add Sections 17060, 25135, and 28255 to, the Penal
Code, relating to firearms.
LEGISLATIVE COUNSEL'S DIGEST
AB 500, as amended, Ammiano. Firearms.
(1) Existing law requires the Department of Justice, upon
submission of firearm purchaser information, to examine its records
to determine if the purchaser is prohibited from possessing,
receiving, owning, or purchasing a firearm. Existing law prohibits
the delivery of a firearm within 10 days of the application to
purchase, or, after notice by the department, within 10 days of the
submission to the department of any corrections to the application to
purchase, or within 10 days of the submission to the department of a
specified fee. Existing law generally requires firearms transactions
to be completed through a licensed firearms dealers. If a dealer
cannot legally deliver a firearm, existing law requires the dealer to
return the firearm to the transferor, seller, or person loaning the
firearm.
This bill would require the department, if the department has not
completed the examination of its records within 2 days prior to the
conclusion of the 10-day waiting period described above, to notify
the dealer of this fact, and would require the dealer to withhold
delivery until 7 days have elapsed after the notification is received
by the dealer. The bill would also prohibit a dealer from returning
a firearm to the person selling, loaning, or transferring the firearm
until 7 days have elapsed after the notification is received by the
dealer.
This bill would require the department immediately notify the
dealer to delay the transfer of a firearm to a purchaser if the
records of the department, or if specified records available to the
department, indicate that the purchaser has been taken into custody
and placed in a facility for mental health treatment or evaluation,
as specified, or that he or she has been arrested for, or charged
with, a crime, as specified, and the department is unable to
ascertain whether the purchaser is ineligible to possess, receive,
own, or purchase the firearm as a result of the determination of the
purchaser's mental health or the final disposition of the arrest or
criminal charge prior to the conclusion of the 10-day waiting period.
If the department is unable to ascertain the final disposition of
the arrest or criminal charge, or the outcome of the mental health
treatment or evaluation, within 30 days of the dealer's submission of
purchaser information, the bill would require the department to
notify the firearms dealer, and would authorize the dealer to
transfer the firearm to the purchaser.
(2) Existing law requires a firearm purchaser to present the
dealer with clear evidence of the person's identity and age, and
requires the dealer to make a permanent record of the transaction.
Existing law requires the dealer to transmit the record of applicant
information to the Department of Justice by electronic or telephonic
transfer.
Commencing January 1, 2015, this bill would also require a dealer
to notify the department that the person in an application to
purchase actually took possession of the firearm, as specified.
(3) Under existing law certain persons are prohibited from owning
or possessing a firearm, including persons convicted of certain
violent offenses, and persons who have been adjudicated as having a
mental disorder, among others.
This bill would prohibit a person who is residing with someone who
is prohibited by state or federal law from possessing a firearm from
keeping a firearm at that residence unless the firearm is either
kept within a locked container, locked gun safe, locked trunk, locked
with a locking device, disabled by a firearm safety device, or
carried on the person. The bill would make a violation of this
provision a misdemeanor. By creating a new crime, this bill would
impose a state-mandated local program.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11106 of the Penal Code, as added by Chapter
745 of the Statutes of 2011, is amended to read:
11106. (a) In order to assist in the investigation of crime, the
prosecution of civil actions by city attorneys pursuant to paragraph
(3) of subdivision (c), the arrest and prosecution of criminals, and
the recovery of lost, stolen, or found property, the Attorney General
shall keep and properly file a complete record of all copies of
fingerprints, copies of licenses to carry firearms issued pursuant to
Section 26150, 26155, 26170, or 26215, information reported to the
Department of Justice pursuant to Section 26225, dealers' records of
sales of firearms, reports provided pursuant to Article 1 (commencing
with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6,
or pursuant to any provision listed in subdivision (a) of Section
16585, forms provided pursuant to Section 12084, as that section read
prior to being repealed, reports provided pursuant to Article 1
(commencing with Section 26700) and Article 2 (commencing with
Section 26800) of Chapter 2 of Division 6 of Title 4 of Part 6, that
are not dealers' records of sales of firearms, information provided
pursuant to Section 28255, and reports of stolen, lost, found,
pledged, or pawned property in any city or county of this state, and
shall, upon proper application therefor, furnish this information to
the officers referred to in Section 11105.
(b) (1) The Attorney General shall permanently keep and properly
file and maintain all information reported to the Department of
Justice pursuant to the following provisions as to firearms and
maintain a registry thereof:
(A) Article 1 (commencing with Section 26700) and Article 2
(commencing with Section 26800) of Chapter 2 of Division 6 of Title 4
of Part 6.
(B) Article 1 (commencing with Section 27500) of Chapter 4 of
Division 6 of Title 4 of Part 6.
(C) Chapter 5 (commencing with Section 28050) of Division 6 of
Title 4 of Part 6.
(D) Any provision listed in subdivision (a) of Section 16585.
(E) Former Section 12084.
(F) Section 28255.
(G) Any other law.
(2) The registry shall consist of all of the following:
(A) The name, address, identification of, place of birth (state or
country), complete telephone number, occupation, sex, description,
and all legal names and aliases ever used by the owner or person
being loaned the particular firearm as listed on the information
provided to the department on the Dealers' Record of Sale, the Law
Enforcement Firearms Transfer (LEFT), as defined in former Section
12084, or reports made to the department pursuant to any provision
listed in subdivision (a) of Section 16585, Section 28255
28255, or any other law.
(B) The name and address of, and other information about, any
person (whether a dealer or a private party) from whom the owner
acquired or the person being loaned the particular firearm and when
the firearm was acquired or loaned as listed on the information
provided to the department on the Dealers' Record of Sale, the LEFT,
or reports made to the department pursuant to any provision listed in
subdivision (a) of Section 16585 or any other law.
(C) Any waiting period exemption applicable to the transaction
which resulted in the owner of or the person being loaned the
particular firearm acquiring or being loaned that firearm.
(D) The manufacturer's name if stamped on the firearm, model name
or number if stamped on the firearm, and, if applicable, the serial
number, other number (if more than one serial number is stamped on
the firearm), caliber, type of firearm, if the firearm is new or
used, barrel length, and color of the firearm, or, if the firearm is
not a handgun and does not have a serial number or any identification
number or mark assigned to it, that shall be noted.
(3) Information in the registry referred to in this subdivision
shall, upon proper application therefor, be furnished to the officers
referred to in Section 11105, to a city attorney prosecuting a civil
action, solely for use in prosecuting that civil action and not for
any other purpose, or to the person listed in the registry as the
owner or person who is listed as being loaned the particular firearm.
(4) If any person is listed in the registry as the owner of a
firearm through a Dealers' Record of Sale prior to 1979, and the
person listed in the registry requests by letter that the Attorney
General store and keep the record electronically, as well as in the
record's existing photographic, photostatic, or nonerasable optically
stored form, the Attorney General shall do so within three working
days of receipt of the request. The Attorney General shall, in
writing, and as soon as practicable, notify the person requesting
electronic storage of the record that the request has been honored as
required by this paragraph.
(c) (1) Any officer referred to in paragraphs (1) to (6),
inclusive, of subdivision (b) of Section 11105 may disseminate the
name of the subject of the record, the number of the firearms listed
in the record, and the description of any firearm, including the
make, model, and caliber, from the record relating to any firearm's
sale, transfer, registration, or license record, or any information
reported to the Department of Justice pursuant to Section 26225,
Article 1 (commencing with Section 26700) and Article 2 (commencing
with Section 26800) of Chapter 2 of Division 6 of Title 4 of Part 6,
Article 1 (commencing with Section 27500) of Chapter 4 of Division 6
of Title 4 of Part 6, Chapter 5 (commencing with Section 28050) of
Division 6 of Title 4 of Part 6, Article 2 (commencing with Section
28150) of Chapter 6 of Division 6 of Title 4 of Part 6, Article 5
(commencing with Section 30900) of Chapter 2 of Division 10 of Title
4 of Part 6, Chapter 2 (commencing with Section 33850) of Division 11
of Title 4 of Part 6, or any provision listed in subdivision (a) of
Section 16585, if the following conditions are met:
(A) The subject of the record has been arraigned for a crime in
which the victim is a person described in subdivisions (a) to (f),
inclusive, of Section 6211 of the Family Code and is being prosecuted
or is serving a sentence for the crime, or the subject of the record
is the subject of an emergency protective order, a temporary
restraining order, or an order after hearing, which is in effect and
has been issued by a family court under the Domestic Violence
Protection Act set forth in Division 10 (commencing with Section
6200) of the Family Code.
(B) The information is disseminated only to the victim of the
crime or to the person who has obtained the emergency protective
order, the temporary restraining order, or the order after hearing
issued by the family court.
(C) Whenever a law enforcement officer disseminates the
information authorized by this subdivision, that officer or another
officer assigned to the case shall immediately provide the victim of
the crime with a "Victims of Domestic Violence" card, as specified in
subparagraph (H) of paragraph (9) of subdivision (c) of Section
13701.
(2) The victim or person to whom information is disseminated
pursuant to this subdivision may disclose it as he or she deems
necessary to protect himself or herself or another person from bodily
harm by the person who is the subject of the record.
SEC. 2. Section 16520 of the Penal Code is amended to read:
16520. (a) As used in this part, "firearm" means a device,
designed to be used as a weapon, from which is expelled through a
barrel, a projectile by the force of an explosion or other form of
combustion.
(b) As used in the following provisions, "firearm" includes the
frame or receiver of the weapon:
(1) Section 16550.
(2) Section 16730.
(3) Section 16960.
(4) Section 16990.
(5) Section 17070.
(6) Section 17310.
(7) Sections 26500 to 26588, inclusive.
(8) Sections 26600 to 27140, inclusive.
(9) Sections 27400 to 28000, inclusive.
(10) Section 28100.
(11) Sections 28400 to 28415, inclusive.
(12) Sections 29010 to 29150, inclusive.
(13) Sections 29610 to 29750, inclusive.
(14) Sections 29800 to 29905, inclusive.
(15) Sections 30150 to 30165, inclusive.
(16) Section 31615.
(17) Sections 31705 to 31830, inclusive.
(18) Sections 34355 to 34370, inclusive.
(19) Sections 8100, 8101, and 8103 of the Welfare and Institutions
Code.
(c) As used in the following provisions, "firearm" also includes a
rocket, rocket propelled projectile launcher, or similar device
containing an explosive or incendiary material, whether or not the
device is designed for emergency or distress signaling purposes:
(1) Section 16750.
(2) Subdivision (b) of Section 16840.
(3) Section 25400.
(4) Sections 25850 to 26025, inclusive.
(5) Subdivisions (a), (b), and (c) of Section 26030.
(6) Sections 26035 to 26055, inclusive.
(d) As used in the following provisions, "firearm" does not
include an unloaded antique firearm:
(1) Subdivisions (a) and (c) of Section 16730.
(2) Section 16550.
(3) Section 16960.
(4) Section 17310.
(5) Chapter 6 (commencing with Section 26350) of Division 5 of
Title 4.
(6) Chapter 7 (commencing with Section 26400) of Division 5 of
Title 4.
(7) Sections 26500 to 26588, inclusive.
(8) Sections 26700 to 26915, inclusive.
(9) Section 27510.
(10) Section 27530.
(11) Section 27540.
(12) Section 27545.
(13) Sections 27555 to 27570, inclusive.
(14) Sections 29010 to 29150, inclusive.
(15) Section 25135.
(e) As used in Sections 34005 and 34010, "firearm" does not
include a destructive device.
(f) As used in Sections 17280 and 24680, "firearm" has the same
meaning as in Section 922 of Title 18 of the United States Code.
(g) As used in Sections 29010 to 29150, inclusive, "firearm"
includes the unfinished frame or receiver of a weapon that can be
readily converted to the functional condition of a finished frame or
receiver.
SEC. 3. Section 16540 of the Penal Code is amended to read:
16540. As used in Section 25135 and Division 2 (commencing with
Section 23620) of Title 4, "firearm safety device" means a device
other than a gun safe that locks and is designed to prevent children
and unauthorized users from firing a firearm. The device may be
installed on a firearm, be incorporated into the design of the
firearm, or prevent access to the firearm.
SEC. 4. Section 16850 of the Penal Code is amended to read:
16850. As used in Sections 17740, 23925, 25105, 25205, 23135, and
25610, in Article 3 (commencing with Section 25505) of Chapter 2 of
Division 5 of Title 4, in Chapter 6 (commencing with Section 26350)
of Division 5 of Title 4, and in Chapter 7 (commencing with Section
26400) of Division 5 of Title 4, "locked container" means a secure
container that is fully enclosed and locked by a padlock, keylock,
combination lock, or similar locking device. The term "locked
container" does not include the utility or glove compartment of a
motor vehicle.
SEC. 5. Section 17060 is added to the Penal Code, to read:
17060. As used in Section 25135, "residence" means any structure
intended or used for human habitation, including, but not limited to,
houses, condominiums, rooms, motels, hotels, time-shares, and
recreational or other vehicles where human habitation occurs.
SEC. 6. Section 23510 of the Penal Code is amended to read:
23510. (a) For purposes of Sections 25400 and 26500, Sections
27500 to 27590, inclusive, Section 28100, Sections 29610 to 29750,
inclusive, Sections 29800 to 29905, inclusive, and Section 31615 of
this code, and any provision listed in subdivision (a) of Section
16585 of this code, and Sections 8100, 8101, and 8103 of the Welfare
and Institutions Code, notwithstanding the fact that the term "any
firearm" may be used in those sections, each firearm or the frame or
receiver of each firearm constitutes a distinct and separate offense
under those sections.
(b) For purposes of Section 25135, notwithstanding the fact that
the term "any firearm" may be used in that section, each firearm
constitutes a distinct and separate offense under that section.
SEC. 7. Section 25135 is added to the Penal Code, to read:
25135. (a) A person who is 18 years of age or older, and who is
the owner, lessee, renter, or other legal occupant of a residence,
who owns a firearm and who knows or has reason to know that another
person also residing therein is prohibited by state or federal law
from possessing, receiving, owning, or purchasing a firearm shall not
keep in that residence any firearm that he or she owns unless one of
the following applies:
(1) The firearm is maintained within a locked container.
(2) The firearm is disabled by a firearm safety device.
(3) The firearm is maintained within a locked gun safe.
(4) The firearm is maintained within a locked trunk.
(5) The firearm is locked with a locking device as described in
Section 16860, which has rendered the firearm inoperable.
(6) The firearm is carried on the person or within close enough
proximity thereto that the individual can readily retrieve and use
the firearm as if carried on the person.
(b) A violation of this section is a misdemeanor.
(c) The prohibition of this section is cumulative, and does not
restrict the application of any other law. However, an act or
omission punishable in different ways by different provisions of law
shall not be punished under more than one provision.
SEC. 8. Section 28220 of the Penal Code is amended to read:
28220. (a) Upon submission of firearm purchaser information, the
Department of Justice shall examine its records, as well as those
records that it is authorized to request from the State Department of
State Hospitals pursuant to Section 8104 of the Welfare and
Institutions Code, in order to determine if the purchaser is a person
described in subdivision (a) of Section 27535, or is prohibited by
state or federal law from possessing, receiving, owning, or
purchasing a firearm.
(b) To the extent that funding is available, the Department of
Justice may participate in the National Instant Criminal Background
Check System (NICS), as described in subsection (t) of Section 922 of
Title 18 of the United States Code, 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.
(c) If the department determines that the purchaser is prohibited
by state or federal law from possessing, receiving, owning, or
purchasing a firearm or is a person described in subdivision (a) of
Section 27535, 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.
(d) If the department determines that the copies of the register
submitted to it pursuant to subdivision (d) of Section 28210 contain
any blank spaces or inaccurate, illegible, or incomplete information,
preventing identification of the purchaser or the handgun or other
firearm to be purchased, or if any fee required pursuant to Section
28225 is not submitted by the dealer in conjunction with submission
of copies of the register, the department may notify the dealer of
that fact. Upon notification by the department, the dealer shall
submit corrected copies of the register to the department, or shall
submit any fee required pursuant to Section 28225, or both, as
appropriate and, if notification by the department is received by the
dealer at any time prior to delivery of the firearm to be purchased,
the dealer shall withhold delivery until the conclusion of the
waiting period described in Sections 26815 and 27540.
(e) If the department determines that the information transmitted
to it pursuant to Section 28215 contains inaccurate or incomplete
information preventing identification of the purchaser or the handgun
or other firearm to be purchased, or if the fee required pursuant to
Section 28225 is not transmitted by the dealer in conjunction with
transmission of the electronic or telephonic record, the department
may notify the dealer of that fact. Upon notification by the
department, the dealer shall transmit corrections to the record of
electronic or telephonic transfer to the department, or shall
transmit any fee required pursuant to Section 28225, or both, as
appropriate, and if notification by the department is received by the
dealer at any time prior to delivery of the firearm to be purchased,
the dealer shall withhold delivery until the conclusion of the
waiting period described in Sections 26815 and 27540.
(f) (1) If the department has not completed the examination of its
records pursuant to subdivision (a) within two days prior to the
conclusion of the waiting period described in Sections 26815 and
27540, the department shall notify the dealer of this fact and the
dealer shall withhold delivery until seven days have elapsed after
this notification is received by the dealer.
(2) If the dealer is conducting the transaction pursuant to
Section 28050, paragraph (1) shall also preclude the return of the
firearm to the person selling, loaning, or transferring the firearm
until seven days have elapsed after the notification is received by
the dealer.
(f) (1) (A) The department shall immediately notify the dealer to
delay the transfer of the firearm to the purchaser if the records of
the department, or the records available to the department in the
National Instant Criminal Background Check System, indicate either of
the following:
(i) The purchaser has been taken into custody and placed in a
facility for mental health treatment or evaluation and may be a
person described in Section 8100 or 8103 of the Welfare and
Institutions Code and the department is unable to ascertain whether
the purchaser is a person who is prohibited from possessing,
receiving, owning, or purchasing a firearm, pursuant to Section 8100
or 8103 of the Welfare and Institutions Code, prior to the conclusion
of the waiting period described in Sections 26815 and 27540.
(ii) The purchaser has been arrested for, or charged with, a crime
that would make him or her, if convicted, a person described in
subdivision (a) of Section 27535 or prohibited by state or federal
law from possessing, receiving, owning, or purchasing a firearm, and
the department is unable to ascertain whether the purchaser was
convicted of that offense prior to the conclusion of the waiting
period described in Sections 26815 and 27540.
(B) The dealer shall provide the purchaser with information about
the manner in which he or she may contact the department regarding
the delay described in subparagraph (A).
(2) The department shall notify the purchaser by mail regarding
the delay and explain the process by which the purchaser may obtain a
copy of the criminal or mental health record the department has on
file for the purchaser. Upon receipt of that criminal or mental
health record, the purchaser shall report any inaccuracies or
incompleteness to the department on an approved form.
(3) If the department ascertains the final disposition of the
arrest or criminal charge, or the outcome of the mental health
treatment or evaluation, as described in paragraph (1), after the
waiting period described in Sections 26815 and 27540, but within 30
days of the dealer's original submission of the purchaser information
to the department pursuant to this section, the department shall do
the following:
(A) If the purchaser is not a person described in subdivision (a)
of Section 27535, and is not prohibited by state or federal law,
including, but not limited to, Section 8100 or 8103 of the Welfare
and Institutions Code, from possessing, receiving, owning, or
purchasing a firearm, the department shall immediately notify the
dealer of that fact and the dealer may transfer the firearm to the
purchaser, upon the dealer's recording on the register or record of
electronic transfer the date that the firearm is transferred.
(B) If the purchaser is a person described in subdivision (a) of
Section 27535, or is prohibited by state or federal law, including,
but not limited to, Section 8100 or 8103 of the Welfare and
Institutions Code, from possessing, receiving, owning, or purchasing
a firearm, the department shall immediately notify the dealer and the
chief of the police department in 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 in compliance with
subdivision (c) of Section 28220.
(4) If the department is unable to ascertain the final disposition
of the arrest or criminal charge, or the outcome of the mental
health treatment or evaluation, as described in paragraph (1), within
30 days of the dealer's original submission of purchaser information
to the department pursuant to this section, the department shall
immediately notify the dealer and the dealer may transfer the firearm
to the purchaser, upon the dealer's recording on the register or
record of electronic transfer the date that the firearm is
transferred.
SEC. 9. Section 28255 is added to the Penal Code, to read:
28255. Commencing January 1, 2015, if after the conclusion of the
waiting period described in Sections 26815 and 27540, the individual
named in the application as the purchaser of the firearm takes
possession of the firearm set forth in the application to purchase,
the dealer shall notify the Department of Justice of that fact in a
manner and within a time period specified by the department, and with
sufficient information to identify the purchaser and the firearm
that the purchaser took possession of.
SEC. 10. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.