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
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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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