BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 538
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          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.