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:
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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.
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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;
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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;
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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
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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
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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
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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
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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
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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
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Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744
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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.