BILL ANALYSIS                                                                                                                                                                                                    



                                                                  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