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