BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 5 3 8 AB 538 (Pan) As Amended June 4, 2013 Hearing date: June 11, 2013 Penal Code SM:jr FIREARMS TRANSFERS HISTORY Source: Author Prior Legislation: SB 41 (Lowenthal) - 2009 vetoed SB 327 (Migden) - 2008, died in Assembly Appropriations AB 1060 (Liu) - Ch. 715, Stats. 2005 AB 2431 (Steinberg) - Ch. 602, Stats. 2004 SB 824 (Scott) - Ch. 502, Stats. 2003 SB 357 (Perata) - 2004, died in Assembly Appropriations SB 238, (Perata) - Ch. 499, Stats. 2003 AB 1139 (Thomson) - 2001, gutted and amended to cover different subject Support: Unknown Opposition:None known Assembly Floor Vote: Ayes 50 - Noes 23 KEY ISSUES (More) AB 538 (Pan) Page 2 SHOULD EXEMPTIONS BE CREATED FROM NORMAL FIREARMS TRANSFER REQUIREMENTS FOR FIREARMS TRANSFERRED BY A LAW ENFORCEMENT AGENCY TO LICENSED FIREARMS DEALERS, WHOLESALERS OR MANUFACTURERS, SO LONG AS THE TRANSACTION IS REPORTED TO THE DEPARTMENT OF JUSTICE, AS SPECIFIED? (CONTINUED) SHOULD FIREARMS DEALERS BE REQUIRED TO PROVIDE A FIREARMS BUYER WITH A COPY OF THE DEALER RECORD OF SALE (DROS) FORM AT THE TIME OF DELIVERY OF THE FIREARM, AND SHOULD THE DEALER BE REQUIRED TO PROVIDE THEIR SIGNATURE ON THE DROS FORM VERIFYING DELIVERY OF THE FIREARM? PURPOSE The purpose of this bill is to (1) clarify that law enforcement agencies shall report to the Department of Justice (" DOJ") the disposition of any weapon in their possession whether the weapon is retained, transferred, sold, or destroyed; (2) create exemptions from normal firearms transfer requirements for firearms transferred by a law enforcement agency to licensed firearms dealers, wholesalers or manufacturers, so long as the transaction is reported to DOJ, as specified; (3) make technical, non-substantive changes to the language of various firearms statutes; (4) require firearms dealers to provide a firearms buyer with a copy of the dealer record of sale (DROS) form at the time of delivery of the firearm and after the dealer notes the date of delivery and the dealer provides a signature verifying the delivery and the purchaser acknowledges receipt of the firearm, as specified; and (5) require DOJ to add to the DROS form a statement advising purchasers of their rights to request firearms ownership information from DOJ, their right to file reports with DOJ regarding such ownership, and information regarding how to access DOJ's Web site. (More) AB 538 (Pan) Page 3 Current law prohibits any person from selling, leasing, or transferring firearms unless the person has been issued a firearms dealer's license, as specified. (Penal Code § 26500(a).) Current law requires the register or record of electronic transfer for handguns, and all firearms starting January 1, 2014, to include specified information including the date and time of the sale. (Penal Code § 28160(a).) Current law requires, except as permitted by DOJ regulations, the purchaser of a firearm to provide his or her right thumbprint on the register in a manner prescribed by the DOJ. (Penal Code § 28160(b).) Current law requires the firearms dealer to record on the register or record of electronic transfer the date that the firearm is delivered. (Penal Code § 28160(c).) Current law 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 § 27600(c).) Current law 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 § 31615.) This bill exempts the requirement that the seller be a licensed (More) AB 538 (Pan) Page 4 firearms dealer in the case of 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: The sale, delivery, or transfer is made to: o a person who is a license firearms dealer, as specified; o a wholesaler; or o a licensed manufacturer or importer of firearms or ammunition The firearm is not subject to any of the following: o The firearm is a nuisance weapon subject to surrender, as specified; or o The firearm is unclaimed, abandoned, or subject to destruction, as specified. If the authorized law enforcement representative sells, delivers, or transfers a firearm that the government agency owns to a person who is a licensed firearms dealer, as specified, within 10 days of the date that the firearm is delivered the agency has entered a record of the delivery into the Automated Firearms System (AFS), as specified. This bill 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: The sale, delivery, or transfer is made to: o a person who is licensed, as specified; o a wholesaler; or o a licensed manufacturer or importer of firearms or ammunition The firearm is not subject to any of the following: o The firearm is a nuisance weapon subject to surrender, as specified; or (More) AB 538 (Pan) Page 5 o The firearm is unclaimed, abandoned, or subject to destruction, as specified. This bill 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). It also 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. This bill exempts from the requirement that transaction be made through a licensed dealer in the case of 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: The sale, delivery, or transfer is made to o a wholesaler; or o a licensed manufacturer or importer of firearms or ammunition The firearm is not subject to any of the following: o The firearm is a nuisance weapon subject to surrender, as specified; or o The firearm is unclaimed, abandoned, or subject to destruction, as specified. This bill requires the register or record of electronic transfer for all firearms to include the following additional information: Any applicable waiting period exemption information; A statement informing the purchaser, after his or her ownership of a firearm, of all of the following: o Upon his or her application, the Department of Justice (DOJ) shall furnish him or her any information reported to the department as it (More) AB 538 (Pan) Page 6 relates to his or her ownership of that firearm; o The purchaser is entitled to file a report of his or her acquisition, disposition, or ownership of a firearm with the DOJ; and o Instructions for accessing the DOJ's Internet website for more information. The dealer's signature indicating delivery of the firearm. The purchaser's signature indicating that the firearm is delivered to him or her. This bill 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 provides a signature indicating the delivery and the purchaser acknowledges the receipt of the firearm. This bill makes a number of technical, non-substantive changes. 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 (More) AB 538 (Pan) Page 7 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 . . . ." 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: (More) AB 538 (Pan) Page 8 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 (More) 1. Need for the Bill 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. 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 § 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 §§ 28615, 27540, and 28220.) If the DOJ does not notify the dealer that the purchaser is prohibited from owning a firearm, the purchaser 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 §§ 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 § 26910; 27 Code of Fed. Regs. 478.102(c).) Failure to do so is punishable as a misdemeanor, the forfeiture of the dealer's license, or both. (Penal Code §§ 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. (More) AB 538 (Pan) Page 10 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 § 11106(c)(3).) This bill addresses the potential for a purchaser to buy a firearm, whereupon the dealer would submit the DROS form to DOJ, but the purchaser then does not take possession of that firearm and, in violation of the law, the dealer fails to report that fact to DOJ. In such a situation, the would-be purchaser would then still appear on DOJ records as the owner of the firearm of which he or she never, in fact, took possession. To address this hypothetical possibility, the bill would (1) require a signature line to be added to the DROS form to be signed by the dealer to acknowledge delivery; (2) require the dealer to provide a copy of the DROS form to the buyer upon delivery of the firearm; and (3) require DOJ to amend the DROS form to add several advisories regarding the right to request gun ownership records from DOJ and information about how to access DOJ's Web site. 3. Sale, Transfer and Destruction of Other Firearms in the Possession of Law Enforcement This bill amends current law to provide that transfers of firearms by law enforcement agencies to licensed firearms manufacturers, wholesalers, or dealers are exempted from normal firearms transfer requirements so long as these transactions are duly reported to DOJ, as specified. ***************