BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 500 (Ammiano)                                            
          As Amended May 24, 2013 
          Hearing date: July 2, 2013
          Penal Code
          SM:jr

                      FIREARMS: SAFE STORAGE AND WAITING PERIODS
                                           
                                       HISTORY

          Source:  Author

          Prior Legislation: SB 363 (Wright) - 2013, pending in Assembly  
          Appropriations
                       SB 108 (Yee) - 2013, pending in Assembly Public  
          Safety
                       AB 231 (Ting) - 2013, pending in Senate  
          Appropriations

          Support: California Chapters of the Brady Campaign to Prevent  
                   Gun Violence; City of Sacramento; Coalition Against Gun  
                   Violence; South County Citizens Against 
                   Gun Violence; Law Center to Prevent Gun Violence; Los  
                   Angeles County District Attorney

          Opposition:California Association of Firearms Retailers;  
          California Association of
                   Federal Firearms Licensees

          Assembly Floor Vote:  Ayes  47 - Noes  28

                                           
                                     KEY ISSUES




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          SHOULD A PERSON WHO IS RESIDING WITH SOMEONE BE PROHIBITED BY  
          STATE OR FEDERAL LAW FROM POSSESSING A FIREARM FROM KEEPING A  
          FIREARM AT THAT RESIDENCE UNLESS IS IT SECURED OR CARRIED ON THE  
          PERSON, AS SPECIFIED?
                                                                (CONTINUED)



          SHOULD PROCEDURES BE ADOPTED TO DELAY TRANSFER OF A FIREARM TO A  
          BUYER FOR UP TO 30 DAYS IF A RECORD CHECK INDICATES THE BUYER HAS  
          BEEN TAKEN INTO CUSTODY FOR A MENTAL HEALTH EVALUATION OR CHARGED  
          WITH A CRIME BUT THE FINAL DISPOSITION CANNOT BE ASCERTAINED WITHIN  
          THE 10-DAY WAITING PERIOD?



                                       PURPOSE

          The purpose of this bill is to (1) 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 is it secured or carried on the person, as  
          specified; (2) adopt procedures to delay transfer of a firearm  
          to a buyer for up to 30 days if a record check indicates the  
          buyer has been taken into custody for a mental health evaluation  
          or charged with a crime but the final disposition cannot be  
          ascertained within the 10-day waiting period; and (3) require  
          dealers to notify the Department of Justice if, after the  
          applicable waiting period, the firearm is transferred to the  
          buyer, as specified.

          Firearms Storage Requirements
          
           Current law  provides that, except as specified, a person commits  
          the crime of "criminal storage of a firearm of the first degree"  
          if all of the following conditions are satisfied:

                 The person keeps any  loaded  firearm within any premises  
               that are under the person's custody or control.




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                 The person knows or reasonably should know that a child  
               is likely to gain access to the firearm without the  
               permission of the child's parent or legal guardian.
                 The child obtains access to the firearm and thereby  
               causes death or great bodily injury to the child or any  
               other person.  (Penal Code  25100.)

          Criminal storage of a firearm in the first degree is punishable  
          as a felony by imprisonment in a county jail for 16 months, or  
          two or three years, by a fine not exceeding $10,000, or both; or  
          as a misdemeanor by imprisonment in a county jail not exceeding  
          one year, by a fine not exceeding $1,000, or by both that  
          imprisonment and fine.  (Penal Code  25110(a).)

           Current law  provides that, except as specified, a person commits  
          the crime of "criminal storage of a firearm of the second  
          degree" if all of the following conditions are satisfied:

                 The person keeps any  loaded  firearm within any premises  
               that are under the person's custody or control.

                 The person knows or reasonably should know that a child  
               is likely to gain access to the firearm without the  
               permission of the child's parent or legal guardian.
                 The child obtains access to the firearm and thereby  
               causes injury, other than great bodily injury, to the child  
               or any other person, or carries the firearm and draws or  
               exhibits the firearm, as specified.  (Penal Code   
               25100(b).)

          Criminal storage of a firearm in the second degree is punishable  
          by imprisonment in a county jail not exceeding one year, by a  
          fine not exceeding $1,000, or both.  (Penal Code  25110(b).)

           Current law  provides that, if all of the following conditions  
          are satisfied, a person shall be punished by imprisonment in a  
          county jail not exceeding one year, by a fine not exceeding  
          $1,000, or both:

                 The person keeps a pistol, revolver, or other firearm  




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               capable of being concealed upon the person,  loaded or  
               unloaded  , within any premises that are under the person's  
               custody or control.
                 The person knows or reasonably should know that a child  
               is likely to gain access to that firearm without the  
               permission of the child's parent or legal guardian.
                 The child obtains access to that firearm and thereafter  
               carries that firearm off-premises.  (Penal Code   
               25200(a).)

           Current law  provides that, if all of the following conditions  
          are satisfied, a person shall be punished by imprisonment in a  
          county jail not exceeding one year, by a fine not exceeding  
          $5,000, or both:

                 The person keeps any firearm within any premises that  
               are under the person's custody or control.
                 The person knows or reasonably should know that a child  
               is likely to gain access to the firearm without the  
               permission of the child's parent or legal guardian.
                 The child obtains access to the firearm and thereafter  
               carries that firearm off-premises to any public or private  
               preschool, elementary school, middle school, high school,  
               or to any school-sponsored event, activity, or performance,  
               whether occurring on school grounds or elsewhere.  (Penal  
               Code  25200(b).)

           Current law  provides that a handgun a child gains access to and  
          carries off-premises in violation of this section shall be  
          deemed "used in the commission of any misdemeanor as provided in  
          this code or any felony" for the purpose of the authority to  
          confiscate firearms and other deadly weapons as a nuisance.   
          (Penal Code  25200(c).)

           Current law  provides that the penalties listed above do not  
          apply if any of the following are true:

                 The child obtains the firearm as a result of an illegal  
               entry into any premises by any person.
                 The firearm is kept in a locked container or in a  




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               location that a reasonable person would believe to be  
               secure.
                 The firearm is locked with a locking device, as defined,  
               which has rendered the firearm inoperable.
                 The firearm is carried on the person within close enough  
               range that the individual can readily retrieve and use the  
               firearm as if carried on the person. 
                 The person is a peace officer or a member of the Armed  
               Forces or National Guard and the child obtains the firearm  
               during, or incidental to, the performance of the person's  
               duties.
                 The child obtains, or obtains and discharges, the  
               firearm in a lawful act of self-defense or defense of  
               another person.
                 The person who keeps a firearm has no reasonable  
               expectation, based on objective facts and circumstances,  
               that a child is likely to be present on the premises.   
               (Penal Code  25205.)

           Current law  requires licensed firearms dealers to post within  
          the licensed premises a specified notice disclosing the duty  
          imposed by this chapter upon any person who keeps any firearm.   
          (Penal Code  25225.)

          Persons Prohibited From Firearms Ownership
          
           Current federal law  provides that it is unlawful for any person  
          to sell or otherwise dispose of any firearm or ammunition to any  
          person knowing or having reasonable cause to believe that such  
          person-
                 is under indictment for, or has been convicted in any  
               court of, a crime punishable by imprisonment for a term  
               exceeding one year;
                 is a fugitive from justice;
                 is an unlawful user of or addicted to any controlled  
               substance, as defined 
                 has been adjudicated as a mental defective or has been  
               committed to any mental institution;
                 who, being an alien-
                  o         is illegally or unlawfully in the United  




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                    States; or
                  o         except as specified, has been admitted to the  
                    United States under a nonimmigrant visa, as defined;
                 [who] has been discharged from the Armed Forces under  
               dishonorable conditions;
                 who, having been a citizen of the United States, has  
               renounced his citizenship;
                 is subject to a court order that restrains such person  
               from harassing, stalking, or threatening an intimate  
               partner of such person or child of such intimate partner or  
               person, or engaging in other conduct that would place an  
               intimate partner in reasonable fear of bodily injury to the  
               partner or child, except that this paragraph shall only  
               apply to a court order that-
                  o         was issued after a hearing of which such  
                    person received actual notice, and at which such  
                    person had the opportunity to participate; and
                                     includes a finding that such person  
                         represents a credible threat to the physical  
                         safety of such intimate partner or child; or
                                     by its terms explicitly prohibits  
                         the use, attempted use, or threatened use of  
                         physical force against such intimate partner or  
                         child that would reasonably be expected to cause  
                         bodily injury; or
                 has been convicted in any court of a misdemeanor crime  
               of domestic violence.  (18 United States Code  922(d).)

           Current California law  provides that certain people are  
          prohibited from owning or possessing a firearm.  This includes  
          (not an exhaustive list):

          Lifetime ban
          
                 Anyone convicted of a felony. 
                 Anyone addicted to a narcotic drug.
                 Any juvenile convicted of a violent crime with a gun and  
               tried in adult court.
                 Any person convicted of a federal crime that would be a  
               felony in California and sentenced to more than 30 days in  




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               prison, or a fine of more than $1,000. (Penal Code   
               29800(a).)
                 Anyone convicted of   certain violent misdemeanors, e.g.,  
               assault with a firearm; inflicting corporal injury on a  
               spouse or significant other, brandishing a firearm in the  
               presence of a police officer (Penal Code  29800/23515;  
               29805; 18 U.S.C.  921(a)(33)(A)/18 U.S.C.  922(g)(9).) 

          10 Year Ban
          
          Anyone convicted of numerous misdemeanors involving violence or  
          threats of violence.  (Penal Code  29805.)

          5 Year Ban
          
                 Anyone convicted of specified misdemeanors.
                 Any person taken into custody, assessed, and admitted to  
               a designated facility due to that person being found to be  
               a danger to themselves or others as a result of a mental  
               disorder, is prohibited from possessing a firearm during  
               treatment and for five years from the date of their  
               discharge.  (Welfare and Institutions Code  8100,  
               8103(f).)

          Temporary Bans
          
           Current law  provides that persons who are bound by a temporary  
          restraining order or injunction or a protective order issued  
          under the Family Code or the Welfare and Institutions Code, may  
          be prohibited from firearms ownership for the duration of that  
          court order.  (Penal Code  29825.)
           

           Transfer of Firearms to Prohibited Persons
           
          Current law  provides that no person, corporation, or dealer  
          shall sell, supply, deliver, or give possession or control of a  
          firearm to anyone whom the person, corporation, or dealer knows  
          or has cause to believe is prohibited from possessing a firearm,  
          as specified.  Violation is generally a misdemeanor, punishable  




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          by up to six months in county jail, a fine of up to $1,000 or  
          both.  However, violations may be punishable as a felony, with  
          varying prison terms, where a variety of aggravating  
          circumstances are present.  (Penal Code  27500, 27590.)

          Waiting Period for Firearm Transfers
          
           Current law  requires that, except as specified, all sales,  
          loans, and transfers of firearms to be processed through or by a  
          state-licensed firearms dealer or a local law enforcement  
          agency.  (Penal Code  27545.) 

           Current law  provides that there is a 10-day waiting period when  
          purchasing a firearm through a firearms dealer.  During which  
          time, a background check is conducted and, if the firearm is a  
          handgun, a handgun safety certificate is required prior to  
          delivery of the firearm.  (Penal Code  26815, 26840(b), 27540  
          and 28220.)

           This bill  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 maintained within a locked container.
                 The firearm is disabled by a firearm safety device.
                 The firearm is maintained within a locked gun safe.
                 The firearm is maintained within a locked trunk.
                 The firearm is locked with a locking device as  
               specified, which has rendered the firearm inoperable.
                 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.

          A violation of this section would be a misdemeanor and the  
          prohibition of this section is cumulative, and does not restrict  
          the application of any other law. 

           This bill  provides:

                 The Department of Justice shall immediately notify a  




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               firearms dealer to delay the transfer of a firearm to the  
               purchaser if, during the 10-day waiting period, 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:

                  o         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, as specified.
                  o         The purchaser has been arrested for, or  
                    charged with, a crime that would make him or her, if  
                    convicted, a person who has applied to purchase  
                    another handgun within the last 30 days, or is  
                    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, as specified.

                 The dealer would be required to provide the purchaser  
               with information about the manner in which he or she may  
               contact the department regarding the delay.
                 DOJ would be required to 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.
                 If the department ascertains the final disposition of  
               the arrest or criminal charge, or the outcome of the mental  
               health treatment or evaluation, as specified, after the  
               10-day waiting period but within 30 days of the dealer's  




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               original submission of the purchaser information to the  
               department, the department shall do the following:

                  o         If the purchaser has not tried to buy another  
                    handgun within the last 30 days, and is not prohibited  
                    by state or federal law 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.
                  o         If the purchaser has attempted to buy another  
                    handgun within the last 30 days, or is prohibited by  
                    state or federal law 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  
                    specified existing notification requirements.
                  o         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 specified, 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.

           This bill  would provide that beginning January 1, 2015, if after  
          the conclusion of the specified waiting period, 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 DOJ of that fact in a manner  




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          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.


                    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  
          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  




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          . . . ."  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  
          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 the Bill  




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          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.  Providing Access to Firearms to Prohibited Persons  

          Many people are prohibited by either federal or state law, or  
          both, from owning firearms for a variety of reasons, as detailed  
          above. This bill addresses the issue of firearm possession by a  
          person who resides with a person who is prohibited by law from  
          owning a firearm.  Current California law makes it a crime for  
          any person to sell,  supply, deliver, or give possession or  
          control  of a firearm to anyone whom the person knows or has  
          cause to believe is prohibited from possessing a firearm.   
          (Penal Code  27500, emphasis added.)  Parallel federal law  
          makes it a crime for any person to "sell or otherwise dispose"  
          of any firearm or ammunition to any person knowing or having  
          reasonable cause to believe that such person is prohibited from  
          possessing a firearm.  (18 U.S.C.  922(d).)

          A recent decision by the federal Eighth Circuit Court of Appeal  
          upheld the conviction of a man who had allowed such a  
          'prohibited person' to stay in his RV and disclosed to his guest  
          the location of his firearms in the RV. (United States v.  
          Stegmeier, 701 F.3d 574 (8th Cir. 2012).) The Court found that  
          this constituted a violation of the federal law prohibiting  
          disposing of any firearm or ammunition to a prohibited person. 

               [A] recipient's possession is sufficient proof that a  
               defendant disposed of a firearm.  Constructive  
               possession is "control over the place where the  
               firearm was located, or control, ownership, or  
               dominion of the firearm itself."  Even assuming  




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               Stegmeier did not give Kelley title or ownership of  
               the firearm, he did give Kelley full, unrestricted  
               control over the RV where the firearm was.  Stegmeier  
               believes that the district court knew the case was  
               weak because there was no evidence that Kelley  
               actually possessed the firearm.  However, the jury may  
               use circumstantial evidence.  It heard evidence that  
               Stegmeier gave Kelley access to the entire RV and  
               disclosed the specific location of the firearm.  When  
               police located it outside of the closet - near  
               Kelley's wallet - Stegmeier said that Kelley "must  
               have moved it."  There is sufficient evidence for the  
               jury to find that Stegmeier provided a firearm to a  
               prohibited person.  (United States v. Stegmeier, 701  
               F.3d 574, 579-580 (8th Cir. 2012)(citations omitted).)

          Thus, residing with a person who you know or have reason to know  
          is prohibited from owning a firearm for any reason, and giving  
          that person access to any firearms you possess, whether that  
          person actually uses the firearm to cause harm or not, has been  
          found to be a crime under federal law.  (U.S.v. Stegmeier,  
          supra, 18 U.S.C. 922(d).)  The penalty for violation under  
          federal law is up to 10 years in prison and a fine of up to  
          $250,000.  (18 U.S.C.  924(a)(2), 18 USC  3571.)  Whether  
          permitting access to firearms to a cohabitant who is prohibited  
          from possessing a firearm is currently a violation of California  
          law is not clear.  As noted above, current California law  
          provides that "no person, corporation, or dealer shall sell,  
          supply, deliver, or give possession or control of a firearm to  
          anyone whom the person, corporation, or dealer knows or has  
          cause to believe is prohibited from possessing a firearm."  
          (Penal Code  27500.)  While there does not appear to be any  
          published opinion to this effect, a California court could, as  
          the Eighth Circuit Court of Appeal recently did, find that  
          anyone living with a person who is prohibited from possessing a  
          firearm has the duty to deny access to the firearm by the  
          prohibited person.  

          3.  Constitutional Considerations  





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          The Second Amendment of the Constitution states, "A well  
          regulated Militia, being necessary to the security of a free  
          State, the right of the people to keep and bear Arms, shall not  
          be infringed." (United States Const. Amend. 2.)  For years,  
          courts and commentators have interpreted that language to mean  
          that the right secured by the Second Amendment relates to  
          firearm ownership only in the context of a "well regulated  
          militia."  This is known as the "collective rights"  
          interpretation.  In the landmark case of District of Columbia v.  
          Heller, the United States Supreme Court rejected the "collective  
          rights" view of the Second Amendment, and, instead, endorsed the  
          "individual rights" interpretation, that the Second Amendment  
          protects the right of each citizen to firearm ownership . After  
          adopting this reading of the Second Amendment, the Supreme Court  
          held that federal law may not prevent citizens from owning a  
          handgun in their home.  (District of Columbia v. Heller, 554  
          U.S. 570, 683-684.)  Two years later, in McDonald v. City of  
          Chicago, the Supreme Court extended this ruling to apply to laws  
          passed by the 50 states.  (McDonald v. City of Chicago, 130 S.  
          Ct. 3020 (2010).) 

          One question this bill poses is whether requiring firearms  
          owners who live with prohibited persons to keep their firearms  
          stored in such a way as to deny access to the prohibited  
          cohabitant violates the firearm owner's right to home defense,  
          as recognized in Heller.  After deciding that the Second  
          Amendment protects an individual right to firearm ownership, the  
          Court applied that to the law in question:

               We turn finally to the law at issue here.  As we have  
               said, the law totally bans handgun possession in the  
               home.  It also requires that any lawful firearm in the  
               home be disassembled or bound by a trigger lock at all  
               times, rendering it inoperable. 

               As the quotations earlier in this opinion demonstrate,  
               the inherent right of self-defense has been central to  
               the Second Amendment right.  The handgun ban amounts  
               to a prohibition of an entire class of "arms" that is  
               overwhelmingly chosen by American society for that  




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               lawful purpose.  The prohibition extends, moreover, to  
               the home, where the need for defense of self, family,  
               and property is most acute. Under any of the standards  
               of scrutiny that we have applied to enumerated  
               constitutional rights, banning from the home "the most  
               preferred firearm in the nation to 'keep' and use for  
               protection of one's home and family," would fail  
               constitutional muster.  (District of Columbia v.  
               Heller, 554 U.S. 570, 628-629 (2008) (citations and  
               footnotes omitted).)

          The law that the Supreme Court struck down in Heller required  
          the firearms owner to render the firearm inoperable while the  
          owner is home.  This bill would require that any firearms owned  
          by a person who resides with a prohibited person be:

                 maintained within a locked container.
                 disabled by a firearm safety device.
                 maintained within a locked gun safe.
                 maintained within a locked trunk.
                 locked with a locking device as specified, which has  
               rendered the firearm inoperable.
                 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.

          How the holding in Heller might be applied to a person residing  
          with a person who is prohibited from possessing a firearm is not  
          clear. 

          4.  Waiting Period Extension  

          The Department of Justice has a legal obligation to do  
          background checks or the state faces tort liability for  
          premature release.  (Braman v. State of California, (1994) 28  
          Cal. App. 4th 344.)  Because of the volume of transactions, the  
          Department of Justice is concerned about their ability to  
          complete all necessary background checks within the 10-day  
          waiting period, as required by current law.  To address this  
          issue, this bill would allow DOJ to take up to 30 days to  




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          complete the background check in those cases in which a  
          preliminary record check shows that the purchaser has previously  
          been taken into custody and placed in a facility for mental  
          health treatment or evaluation or has been arrested for a crime  
          and DOJ is unable to ascertain within the normal 10-day waiting  
          period the final disposition of such an arrest or detention and  
          whether the purchaser is prohibited from possessing, receiving,  
          owning, or purchasing a firearm.




































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          This bill would require the dealer to provide the purchaser with  
          information about the manner in which he or she may contact the  
          department regarding the delay and would require DOJ to 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.

          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  
          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.

          5.  Argument in Support

           The California Chapters of the Brady Campaign to Prevent Gun  
          Violence state:

               In California, when a person purchases a firearm,  
               existing law requires that a thorough background check  
               be conducted and a ten day waiting period 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 unavailable, the  
               Department of Justice (DOJ) has not been authorizing  
               delivery of the firearm by the dealer.  AB 500  
               provides DOJ additional time to complete the  
               background check, if needed.  Specifically, the bill  
               requires DOJ to immediately notify a dealer to delay  
               the transfer of a firearm if the department is unable  
               to determine the outcome of an arrest or criminal  




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               charge or mental health evaluation.  If DOJ is unable  
               to determine the final disposition of these cases  
               within thirty days, then DOJ must notify the firearms  
               dealer and the transfer of the firearm would proceed.   


               In addition, AB 500 would prohibit a person who  
               resides in the same residence with another person who  
               is prohibited 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 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  
               Department of Justice for each firearm transaction.   
               This bill would require dealers to notify the  
               Department when firearm applicants actually took  
               possession of the firearm thereby ensuring the  
               integrity of the data in the Automated Firearms  
               System.

               Clearly, all three of these common sense measures  
               advance the public safety and deserve the full support  
               of the legislature.  
           
           6.  Argument in Opposition  

          The California Association of Firearms Retailers states:

               The California Association of Firearms Retailers  
               believes that this bill would needlessly add to the  
               reporting requirements and restrictions already in  
               effect for firearms retailers. 

               Accordingly, the California Association of Firearms  
               Retailers is opposed to the enactment of AB 500.












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