BILL ANALYSIS Ó
AB 500
Page 1
Date of Hearing: April 2, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 500 (Ammiano) - As Amended: February 20, 2013
SUMMARY : Imposes safe storage requirements when prohibited
persons reside in a household with violations a misdemeanor;
allows the Department of Justice (DOJ) to delay release of
firearms when background checks are not completed; and requires
the DOJ to be notified that firearms are in fact delivered after
the transferee takes possession of a gun. Specifically, this
bill :
1)Require the DOJ notify a licensed firearms dealer if they are
unable to complete a background check within 2 days prior to
the conclusion of the required 10 day waiting period, 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.
2)Mandates, commencing January 1, 2015, that dealers notify DOJ
that persons in applications to purchase actually took
possession of their firearms.
3)Prohibits 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.
EXISTING LAW :
1) 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
AB 500
Page 2
appropriate transfer forms being used, as specified. In
those cases where dealer or law enforcement processing is
not required, as of today a handgun change of title report
must still be sent to DOJ and will require that as to all
firearms as of 1/1/2014. (Penal Code Section 27545.)
2) Provides on or after January 1, 1998, that persons
establishing residency within California who bring with them
and store firearms within California after that date to
report the same to DOJ. This reporting requirement will
apply to all firearms as of 1/1/2014. (Penal Code Section
27560.)
3) Allows persons who are not subject to reporting to report
the acquisition, ownership, or disposal of firearms to DOJ.
(Penal Code Section 28000.)
4) Provides since 1967, both federal law and California Law
bar California residents who do not have federal firearms
licenses from physically bringing the firearms into the
State and instead require in effect that persons who acquire
firearms outside of California as California residents to
have the transaction processed through a California state
licensed dealer. [18 USC 922(a)(3) and (a)(5) and 18 USC
922(b)(2).]
5) Provides since 1968, federal law generally requires - save
as to licensed collectors of curio and relics, to receive
possession of firearms at their licensed premises within
this state. In October of 1996, the Federal Government
enacted a law which allowed the actual delivery of curio and
relic firearms to a federal firearms licensee outside the
state where his/her licensed premises are located. [18 USC
923(j).]
6) Requires since January 1, 1998 federally licensed
collectors who acquire and take possession of curios and
relics outside this state to within 5 days of gun coming
into the state to register the same with DOJ (Penal Code
Section 27565.)
7) Requires that firearms information submitted to DOJ as to
handguns in terms of who owns what handgun must be
maintained within a centralized registry. (Penal Code
Section 11106) These reporting requirements will apply to
AB 500
Page 3
all firearms as of January 1, 2014. (Penal Code Section
11106.)
8) Require the DOJ, 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. (Penal Code Sections
28200 to 28250.)
9) Requires 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.
[Penal Code Section 28050(d).]
10) Requires that in connection with any private party sale,
loan or transfer of a firearm, a licensed dealer must
provide the DOJ with specified personal information about
the seller and purchaser as well as the name and address of
the dealer. This personal information of buyer and seller
required to be provided includes the name; address; phone
number; date of birth; place of birth; occupation; eye
color; hair color; height; weight; race; sex; citizenship
status; and a driver's license number, California
identification card number or military identification
number. A copy of the Dealers Record of Sale (DROS),
containing the buyer and seller's personal information, must
be provided to the buyer or seller upon request. (Penal
Code Sections 28160, 28210, and 28215.)
11) Provides that various categories of 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.
(Penal Code Sections 29800 to 29825, inclusive, 29900,
29905, 30305 and WIC Sections 8100 and 8103.)
12) Prohibits persons who know or have reasonable cause to
believe that the recipient is prohibited from having
firearms and ammunition to supply or provide the same with
firearms or ammunition. (Penal Code Section 27500 and 30306,
AB 500
Page 4
and WIC Section 8101.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill is
intended to keep guns out of the hands of people who should
not have them, including people prohibited by law from having
a firearm and people who do not pass background checks.
California maintains some of the strictest gun control laws in
the nation, and this bill makes common-sense changes to better
enforce existing gun laws."
2)Overview of Current Law : California for many years has
required registration of handguns at point of transfer of
ownership. In addition, persons who move into the state with
handguns have to register the same and licensed collectors who
acquire guns outside the state have to register them as well.
There is also a voluntary system of firearms that has been in
code for over 20 years and is now reflected in Penal Code
Section 28000. The exact dates as to when these requirements
have applied to the following categories are subject to
question, but they appear to be as follows:
a) California residents who acquired a handgun from an
in-state source and the transfer took place in California
after September 30, 1953 by virtue of the enactment of then
Penal Code Section 12072 which was added by virtue of the
enactment of the Dangerous and Deadly Weapons Control Law.
In 1953, statutes went into effect at an earlier timer than
is the case today.
b) An individual, who acquired a handgun outside of state,
was not a California resident at the time of acquisition
and brought the guns here after January 1, 1998 as new
California residents.
c) An individual who acquired a handgun as a California
residents in mail order or other transactions from an
out-of-state after November 8, 1967. In 1967, AB 1324
(Biddle), Ch. 1282/1967 required anyone who was not state
licensed as a dealer who acquired a handgun from an
out-of-state source had to register the gun with DOJ. This
was former Penal Code Section 12079 and it was repealed in
AB 500
Page 5
1988 as obsolete in a Department of Justice sponsored bill
on the basis federal law and subsequent legal developments
covered it.
d) Since October 22, 1968 anyone who acquires a firearm
from an out-of-state source after that date must have that
transaction brokered through an in-state federally licensed
[and in California state licensed as well] firearms dealer
with the transaction being subject to state requirements.
In California this would include the waiting period,
background checks, gun registration etc. That federal
requirement under various proposals would make that a
California state law requirement as well as is now the case
in Maryland and Oregon.
Because of confusion over dates and for other reasons, the
Department of Justice has taken the position that it will
accept for registration and place in the centralized registry
using the "voluntary system" codified in Section 28000 of the
Penal Code the ownership of a firearm where the person is not
within a prohibited status, the gun is not reported lost or
stolen, and the person is at least 18 years of age.
However, in the normal run-of-the mill transaction where
someone goes into a dealership, fills out paperwork, goes
through the waiting period-background check system, save in
very few situations, DOJ is not notified that a person who
applied to acquire a firearm and was cleared to take
possession of that firearm took possession of that firearm.
In most transactions, the process works so that the dealer
pre-registers the gun in the recipient's name. Only if the
gun is not picked up is DOJ to be notified. It is not
uncommon to have handguns to be pre-registered to multiple
persons or other registration issues that prevent guns from
otherwise being properly registered. This issue is magnified
by the huge spikes in DROS transactions and will be even more
problematical come January 1, 2014 when registration applies
to all gun transactions.
After the waiting period has expired and the background check
is completed, current law requires the dealer to record on
the DROS form the date and time of delivery of the firearm to
the gun recipient. They are also required to provide the
recipient of the gun his DROS form if requested though the
timing is unclear - See SB 41 discussion below.
AB 500
Page 6
The DROS form prepared by the DOJ and used by licensed
dealers in California, as modified October 2003, does contain
at the top under "Transaction Information" a line for both
"Delivery Date" and "Time" of that delivery, which reflects
the changes made by SB 824 (Scott), Ch. 502/2003. Dealers
must keep that form and make it available for inspection by
law enforcement officials; however, there is some debate
about whether that information must be submitted to DOJ as a
matter of course.
Prior to SB 824 Legislative Counsel issued an opinion that
DOJ could require dealers to write the delivery date on DROS
register and also make other changes to the DROS form.
Dealers are also currently required to provide a copy of the
DROS form when the buyer takes possession of the firearm if
the buyer asks for it. Lastly, existing law allows persons
to check with DOJ to determine whether DOJ lists them as the
owner of any firearm. The language of Penal Code § 28000
also is opaque enough so that a person who receives a gun
from a dealer just to protect himself or herself can register
the gun in his or own name if the registration is not
properly done.
However, DOJ could not compel dealers to submit the
information on delivery to DOJ. DOJ could only enter that
information into its Automated Firearms System (AFS) if DOJ
obtains the delivery information by physically inspecting the
registry kept by dealers. Given this will also apply to
rifles and shotguns as well on January 1, 2014.
3)Prohibitions : This bill provides a person 18 years of age or
older who is the 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: (a) the
firearm is maintained within a locked container; or (b) the
firearm is disabled by a firearm safety device; or (c) the
firearm is maintained within a locked gun safe; or (d) the
firearm is maintained within a locked trunk; or (e) the
firearm is locked with a locking device which has rendered the
firearm inoperable; or (f) the firearm is carried on the
person or within close enough proximity thereto that the
AB 500
Page 7
individual can readily retrieve and use the firearm as if
carried on the person.
4)Waiting Period Extension : Because of the volume of
transactions, the Department of Justice is backing up against
the 10 day wait. The Department of Justice which has a legal
obligation to do background checks or the state faces tort
liability for premature release. See Braman v. State of
California, (1994) 28 Cal. App. 4th 344; Gray v. State of
California, (1989) 207 Cal. App. 3d 151. DOJ has run up
against the 10 day waiting period in several situations.
Under federal regulations incorporated into State law by SB 63
(Peace), Ch. 908/1998 if a firearm is not taken possession of
within 30 days of the initial application to acquire, the
entire process must start again. If these procedures are not
followed and appeal rights not respected, the State may face
federal sanctions. To address this issue in a matter which is
compliant with understood regulations and also to respects 2nd
Amendment rights, and at the suggestion of both law
enforcement and the NRA, this bill would do the following:
a) If DOJ has not completed the examination of its records
within two days prior to the conclusion of the waiting
period, 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.
b) In addition, because on private party transactions
federal regulations requires background checks if the gun
is to be returned to the owner, the bill requires that when
release is delayed, if the dealer is conducting the
transaction as a private party transaction, that will 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.
5)Argument in Support : According to the California Chapters of
the Brady Campaign , "In California, when a person purchases a
firearm, existing law requires that a thorough background
check be conducted and a ten day waiting person be observed
prior to turning the weapon over to the prospective purchaser.
In the vast majority of cases, this is sufficient time to
perform the background check. However, in a small number of
cases, usually because court disposition documents are
AB 500
Page 8
unavailable, the DOJ has not been authorizing delivery of the
firearm by the dealer. This bill specifically authorizes the
DOJ additional time to complete the background check, if
needed.
"In addition, AB 500 would prohibit a person who resides in
the same residence with another person who is a prohibited
person from possessing a firearm, from keeping a firearm in
the residence unless it is either kept in a locked container
or otherwise secured. This would limit the access to weapons
in the home by persons considered to be at risk of committing
acts of violence towards self or others.
"Finally, existing law requires firearm dealers to
electronically transmit certain information to the DOJ for
each firearm transaction. This bill would require dealers to
notify the Department when firearm applicants actually took
possession of the firearm thereby enduring the integrity of
the data in the Automated Firearms System."
6)Argument in Opposition: According to the Shasta County
Sheriff , "I oppose Assembly Bill 500. Essentially, this bill
would unnecessarily and unreasonably extend the waiting period
for a person to pick up the firearm they purchased. Current
law requires the firearm purchaser to provide clear evidence
of identity and purchaser must sign for the firearm when
possession is taken. California firearms dealers utilize the
Federal Instant Check system for federal checks in which
California participates. California's database computer
system is second to none and California's Department of
Justice databases can be checked with ease within the 10-day
waiting period.
"The bill would prohibit a person who is residing with a
prohibited or restricted person from possessing a firearm and
from keeping a firearm at the residence unless secured or
locked. Certainly want to keep firearms out of the hands of
prohibited persons. However, how is a person to know if their
spouse, roommate, partner, friend, or other person is
prohibited from owning or possessing a firearm? Such
information is confidential and not generally known to others.
It should be the requirement of the prohibited person not to
be in possession of or around firearms."
7)Related Legislation:
AB 500
Page 9
a) AB 539 (Pan) creates additional means for certain
prohibited possessors to relinquish temporarily firearms to
state licensed gun dealers with CA DOJ presumably being
notified of the same. AB 539 is pending in this committee
b) AB 740 (Alejo) deals with various gun licensure,
receipt, and transfer issues. AB 740 will make the "federal
advance ship" requirement a specific state law requirement
as well. AB 740 is pending in this committee.
c) AB 1020 (Bonta) places in statute a letter program that
the Department of Justice has utilized in selected
jurisdictions notifying persons during the waiting period
as to their responsibilities in terms of storage, loans,
and transfers. AB 1020 is pending in this committee.
d) SB 140 (Leno) appropriates $24.0 million from the DROS
special account to the Department of Justice for
firearms-related regulatory and enforcement activities
primarily for SB 950 enforcement. SB 140 is pending in the
Assembly.
e) SB 363 (Wright) is somewhat similar to this legislation
on the issue of safe storage. SB 363 is pending in the
Senate Public Safety Committee.
f) SB 374 (Steinberg) deals with various firearm
registration issues, primarily as to handguns. SB 374 is
pending in the Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Chapter of the American College of Emergency
Physicians
California Chapters of the Brady Campaign to Prevent Gun
Violence
Opposition
California Association of Federal Firearms Licensees
Shasta County Sheriff
One private individual
AB 500
Page 10
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744