BILL ANALYSIS Ó AB 538 Page 1 Date of Hearing: April 23, 2013 Counsel: Shaun Naidu ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 538 (Pan) - As Amended: April 17, 2013 As Proposed to be Amended in Committee SUMMARY : Requires a licensed firearm dealer to provide copies of the dealer's record of sale (DROS) to a firearm purchaser at the time of delivery as specified. Specifically, this bill : 1)Exempts from the firearms dealer license requirement the sale, delivery, or transfer of a firearm when made by an authorized law enforcement representative of a city, county, city and county, or of the state or federal government, if both of the following conditions are met: a) The sale, delivery, or transfer is made to i) a person who is licensed, as specified; ii) a wholesaler; or iii) a licensed manufacturer or importer of firearms or ammunition b) The firearm is not subject to any of the following: i) The firearm is a nuisance weapon subject to surrender, as specified; or ii) The firearm is unclaimed, abandoned, or subject to destruction, as specified. 2)Exempts from the prohibition on the purchase or receipt by, or the sale, delivery, or transfer of a firearm to a person without a valid handgun safety certificate when made by an authorized law enforcement representative of a city, county, city and county, or of the state or federal government, if both of the following conditions are met: AB 538 Page 2 a) The sale, delivery, or transfer is made to: i) a person who is licensed, as specified; ii) a wholesaler; or iii) a licensed manufacturer or importer of firearms or ammunition b) The firearm is not subject to any of the following: i) The firearm is a nuisance weapon subject to surrender, as specified; or ii) The firearm is unclaimed, abandoned, or subject to destruction, as specified. 3)Requires an authorized law enforcement agency that is the registered owner of an institutional weapon, as defined, that subsequently destroys that weapon to enter such information into the Automated Firearms System (AFS) via the California Law Enforcement Telecommunications System (CLETS). Requires that any agency without access to AFS to arrange with the sheriff of the county in which the agency is located to input this information via CLETS. 4)Requires the register or record of electronic transfer for all firearms to include the following additional information: a) Any applicable waiting period exemption information; b) A statement informing the purchaser, after his or her ownership of a firearm, of all of the following: i) Upon his or her application, the Department of Justice (DOJ) shall furnish him or her any information reported to the department as it relates to his or her ownership of that firearm; ii) The purchaser is entitled to file a report of his or her acquisition, disposition, or ownership of a firearm with the DOJ; and iii) Instructions for accessing the DOJ's Internet website for more information. AB 538 Page 3 5)Requires the firearms dealer to record on the register or record of electronic transfer the dealer's signature indicating delivery of the firearm. 6)Requires the purchaser to sign the register or the record of electronic transfer on the date that the firearm is delivered to him or her. 7)Requires the firearms dealer to provide a copy of the register, electronic transfer, or telephonic transfer, whichever is applicable, to the purchaser at the time of delivery of the firearm and after the dealer notes the date of delivery and the purchaser acknowledges the receipt of the firearm. 8)Requires the firearms dealer to provide a copy of the electronic or telephonic transfer at the time the record is signed by the seller. 9)Makes a number of technical changes. EXISTING LAW : 1)Prohibits any person from selling, leasing, or transferring firearms unless the person has been issued a license, as specified. (Penal Code Section 26500(a).) 2)Requires the register or record of electronic transfer for handguns, and all firearms starting January 1, 2014, to include all of the following information: a) The date and time of sale; b) The make of firearm; c) Peace officer exemption status, as specified, and the agency name; d) Auction or event waiting period exemption, as specified; e) Dealer waiting period exemption, as specified; f) Dangerous weapons permitholder waiting period exemption, as specified; AB 538 Page 4 g) Curio and relic waiting period exemption, as specified; h) California Firearms Dealer number; i) For transactions occurring on or after January 1, 2003, the purchaser's handgun safety certificate number; j) Manufacturer's name if stamped on the firearm; aa) Model name or number, if stamped on the firearm; bb) Serial number, if applicable; cc) Other number, if more than one serial number is stamped on the firearm; dd) Any identification number or mark assigned to the firearm, as specified; ee) If the firearm is not a handgun and does not have a serial number, identification number, or mark assigned to it, a notation as to that fact; ff) Caliber; gg) Type of firearm; hh) If the firearm is new or used; ii) Barrel length; jj) Color of the firearm; aaa) Full name of purchaser; bbb) Purchaser's complete date of birth; ccc) Purchaser's local address; ddd) If current address is temporary, complete permanent address of purchaser; eee) Identification of purchaser; AB 538 Page 5 fff) Purchaser's place of birth (state or country); ggg) Purchaser's complete telephone number; hhh) Purchaser's occupation; iii) Purchaser's sex; jjj) Purchaser's physical description; aaaa)All legal names and aliases ever used by the purchaser; bbbb)Yes or no answers to questions that prohibit purchase, including, but not limited to, conviction of a felony, as defined, or a specified offense, whether the purchaser is a person who has been adjudicated by a court to be a danger to others or found not guilty by reason of insanity, and whether the purchaser is a person who has been found incompetent to stand trial or placed under conservatorship by a court; cccc)Signature of purchaser; dddd)Signature of salesperson, as a witness to the purchaser's signature; eeee)Salesperson's certificate of eligibility number, if the salesperson has obtained a certificate of eligibility; ffff)Name and complete address of the dealer or firm selling the firearm as shown on the dealer's license; gggg)The establishment number, if assigned; hhhh)The dealer's complete business telephone number; iiii)A statement of the penalties for signing a fictitious name or address, knowingly furnishing any incorrect information, or knowingly omitting any information required to be provided for the register; and jjjj)Other specified information. (Penal Code Section 28160(a).) 3)Requires, except as permitted by DOJ regulations, the AB 538 Page 6 purchaser of a firearm to provide his or her right thumbprint on the register in a manner prescribed by the DOJ. (Penal Code Section 28160(b).) 4)Requires the firearms dealer to record on the register or record of electronic transfer the date that the firearm is delivered. (Penal Code Section 28160(c).) 5)Requires, within 10 days of the date a handgun, and any firearm starting January 1, 2014, is acquired as an institutional weapon, as defined, by an authorized law enforcement agency, a record of that acquisition to be entered as an institutional weapon into the Automated Firearms System (AFS) via the California Law Enforcement Telecommunications System (CLETS) by the acquiring agency. Requires that any agency without access to AFS to arrange with the sheriff of the county in which the agency is located to input this information via CLETS. (Penal Code Section 27600(c).) 6)Prohibits a person from purchasing or receiving a handgun, except an antique firearm, without a valid handgun safety certificate, and prohibits a person from selling, delivering, loaning, or transferring a handgun, except an antique firearm, to another person without a valid handgun safety certificate. (Penal Code Section 31615.) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "AB 538 provides additional consumer protections by requiring the dealer to obtain a signature when delivering the gun to the consumer; giving the consumer the DROS form at that time as a receipt and, improves the manner in which law enforcement reports acquisitions, ownership, and disposition of firearms obtained in the course and scope of their duties. With the surge in sales and increase of DROS forms, it is important and in the best interest of ensuring the public's safety to ensure accuracy." 2)Recording the Date and Time of Handgun Delivery : Since about 1930, any purchase of a handgun from a dealer was reported to the DOJ (or its predecessor agency) for purposes of background checks of the purchaser through the DROS form. This may be AB 538 Page 7 commonly described as "registration." Since 1991, transactions between private parties have been subject to DROS registration through a licensed dealer. (Penal Code Section 27545.) Before a consumer purchasing a handgun in California may take possession of the gun, he or she must wait 10 days from the date of purchase. During this time, the buyer's personal identifying information is transmitted to DOJ for a background check to determine whether he or she is prohibited from owning a firearm. 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 purchaser. The DROS form prepared by the DOJ and used by licensed dealers in California does contain at the top under "Transaction Information" a line for both "Delivery Date" and "Time" of that delivery, which reflects the changes made to Penal Code Section 28160 by SB 824 (Scott), Chapter 502, Statutes of 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. This issue was addressed in SB 357 (Perata) of the 2003-04 Legislative Session. At that time, Legislative Counsel issued an opinion that the DOJ could require dealers to write the delivery date on DROS registers. The DOJ, however, could not compel dealers to submit the information on delivery to the DOJ; the DOJ could enter that information into its Automated Firearms System (AFS) only if the DOJ obtains the delivery information by physically inspecting the registry kept by dealers. 3)Documenting Delivery in Firearms Purchases : Under current law, firearms dealers are required to obtain identification and other information from any prospective firearms purchaser and transmit that information to DOJ by way of the DROS form. (Penal Code Section 27510.) The buyer must wait 10 days before taking possession of the firearm, during which time the DOJ conducts a background search on the buyer to determine whether the buyer is a person prohibited from owning a firearm such as a convicted felon. (Penal Code Sections 28615, 27540, and 28220.) If the DOJ does not notify the dealer that the purchaser is prohibited from owning a firearm, the purchaser AB 538 Page 8 may take possession after the 10-day waiting period. The dealer is then required to record the date and time that the firearm was delivered to the buyer and is required to maintain that record for at least three years. (Penal Code Sections 28160, 28165, 28210(c), and 28215(c).) In the event the buyer, for any reason, does not take possession of the firearm within 30 days, that fact must be reported to the DOJ. (Penal Code Section 26910; 27 Code of Fed. Regs. 478.102(c).) Existing law requires the dealer to report to the DOJ if the buyer does not take possession of the gun within 30 days. Failure to do so is punishable as a misdemeanor, the forfeiture of the dealer's license, or both. (Penal Code Sections 26910, 27525(b), and 27590.) Dealers also are 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 buyers to check with the DOJ to determine whether the DOJ lists them as the owner of any firearm. (Penal Code Section 11106(c)(3).) 4)Assembly Concurrent Resolution 73 : In 2006, the Legislature adopted ACR 73 (McCarthy), Resolution Chapter 128, Statutes of 2006, asking the California Law Revision Commission (CLRC) to revise various provisions of the Penal Code related to firearms. The CLRC was asked to prepare and submit recommended legislation by July 1, 2009. ACR 73 focused the CLRC in revisions that accomplished the following objectives: Reduce the length and complexity of current sections; avoid unnecessary use of cross-references; neither expand nor contract the scope of criminal liability under current provisions; in the event that the commission's draft changes the scope of criminal liability under the current provisions, this shall be made explicit in the commission's draft or any commentary related to the draft; to the extent compatible with these objectives, use common definitions of terms, and; organize existing provisions in such a way that similar provisions are located in close proximity to each other. In vetoing SB 1140 (Scott), of the 2003-04 Legislative Session, which related to the criminal storage of firearms around children, the Governor stated, "Before a government exercises its power to take away ones liberty, it should be AB 538 Page 9 clear to every person what actions will cause them to forfeit their freedom. Instead of adding to the lengthy and complex area of firearm laws, a reorganization of the current laws should be undertaken to ensure that statutes that impose criminal penalties are easily understandable." The author of ACR 73 stated, "In particular, the laws relating to the transfers of firearms are lengthy, with numerous cross-references, highly fact-specific exemptions, and complex provisions. For example, Penal Code section 12078 is 5,880 words long and occupies 11 pages if printed in a 12 point font with conventional margins. The section has cross-references to many scattered sections of other firearms provisions, some of them hundreds of sections away. The firearms laws occupy over 100 pages of an un-annotated version of the Penal Code when printed in dual column in tiny print. These areas of the law are not for legal experts only. Firearms owners, licensed dealers, and law enforcement need to be able to interpret these provisions in order to comply with the law and avoid criminal liability. Ambiguity and confusion do not promote the public policy goals that those laws were designed to accomplish. ACR 73 is designed to task the CLRC, a neutral body of legal experts, with the task of seeing if they can simplify and reorganize these laws. It also includes a statement of legislative intent that when the Commission's work is complete that it will be tasked with addressing other portions of the firearms laws." 5)Governor's Veto Message : In his veto message to SB 41, of the 2009-10 Legislative Session, the Governor stated: This measure would require the Department of Justice (Department) to furnish, upon request, information concerning a person's ownership of any firearms reported to the Department. In addition, this measure would also require firearms dealers and purchasers to provide signatures on extra copies of paperwork prior to the delivery of a firearm. This measure is unnecessary. The Department already provides firearm ownership information upon request and firearms transactions already require more than enough paperwork to ensure proper recordation of firearm transaction information. Indeed, unlike Senate Bills 175 & 449, which I am signing, this measure does not appear to have any discernible benefit; it does not AB 538 Page 10 increase public safety, does not improve the business climate for California's firearms retailers, nor does it provide any additional protections for firearm purchasers. Moreover, it should be noted that Assembly Concurrent Resolution 73 (McCarthy, 2006) required the California Law Revision Commission to submit recommendations to the Legislature on how to reduce the length and complexity of Title 2 (commencing with Section 12000) of Part 4 of the Penal Code, relating to the control of deadly weapons. Senate Bill 41, unfortunately, does not follow any of the recommendations by the Commission and instead exacerbates the current problems with the Penal Code. I urge the Legislature to forgo enacting additional measures such as Senate Bill 41 until the recommendations of the California Law Revision Commission are enacted. 6)Related Legislation : SB 759 (Nielsen) would replace "National Guard military museum and resource center" with "State Military Museum and Resource Center." SB 759 is awaiting a hearing in the Senate Public Safety Committee. 7)Prior Legislation : SB 41 (Lowenthal), of the 2009-10 Legislative Session, would have required that a licensed firearm dealer provide a copy of the record of transfer to the seller and purchaser of a firearm, as specified, that the record of transfer to have the signature of the purchaser, and that the dealer to acknowledge the date of transfer of a handgun. SB 41 was vetoed by the Governor. REGISTERED SUPPORT / OPPOSITION : Support None Opposition None AB 538 Page 11 Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744 AB 538 Page 12 PROPOSED AMENDMENTS TO ASSEMBLY BILL NO. 538 Proposed Amendment 1 On page 18, in line 15, strike out "or telephonic" Proposed Amendment 2 On page 21, strike out lines 6 to 39, inclusive, on page 22, strike out lines 1 to 37, inclusive, in line 38, strike out "SEC. 13." and insert: SEC. 12.