BILL ANALYSIS                                                                                                                                                                                                    Ó







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

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          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
           




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          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.




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           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  




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          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




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                  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  




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                      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  




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          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:




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                 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




























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          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.   




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          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.  



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