BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 539 (Pan)
As Amended April 29, 2013
Hearing date: June 25, 2013
Penal Code
SM:mc
STORAGE OF FIREARMS BY PROHIBITED PERSONS
HISTORY
Source: Author
Prior Legislation: AB 837 (Feuer) - Chapter 698, Statutes of
2008
Support: Brady Campaign to Prevent Gun Violence; California
Public Defenders Association; California Rifle and
Pistol Association; Law Center to Prevent Gun Violence;
National Rifle Association of America
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUES
SHOULD A PERSON WHO IS PROHIBITED FROM OWNING OR POSSESSING A
FIREARM BE ALLOWED TO TRANSFER OR CAUSE TO BE TRANSFERRED THEIR
FIREARMS TO A LICENSED FIREARMS DEALER FOR STORAGE DURING THE
DURATION OF THE PROHIBITION?
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SHOULD A FIREARMS DEALER WHO STORES A FIREARM AS PROVIDED ABOVE BE
REQUIRED TO NOTIFY THE DEPARTMENT OF JUSTICE WHEN THE DEALER HAS
TAKEN POSSESSION OF THE FIREARM AND WHEN THE OWNER HAS TAKEN BACK
POSSESSION OF THE FIREARM?
SHOULD COURTS BE REQUIRED TO PROVIDE NOTICE OF THESE PROVISIONS TO
PROHIBITED PERSONS, AS SPECIFIED?
PURPOSE
The purpose of this bill is to (1) allow a person who is
prohibited from owning or possessing a firearm may transfer or
cause to be transferred their firearms to a licensed firearms
dealer for storage during the duration of the prohibition; (2)
allow a firearms dealer who stores a firearm as provided above
to charge the owner a fee for the storage of the firearm; (3)
require a firearms dealer who stores a firearm as provided above
to notify the Department of Justice when the dealer has taken
possession of the firearm and when the owner has taken back
possession of the firearm; (4) provide that if the prohibition
on owning or possessing a firearm will expire on a date
specified in a court order, the notice of the prohibition shall
inform the person that he or she may elect to have his or her
firearm transferred to a licensed firearms dealer; (5) require
on the notice on all protective orders that Judicial Council
issues to respondents regarding the prohibitions relating to
firearms that a firearm owned or possessed by the person can be
transferred to a licensed firearms dealer for the duration of
the period that the protective order is in effect; and (6) make
conforming changes to allow a person who is temporarily
prohibited from owning or possessing a firearm to transport
firearms in his or her ownership or possession to a licensed
firearms dealer for transfer or storage as allowed above.
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Current law provides that it is a felony for any person who has
been convicted of a felony or another specified offense under
the laws of the United States, this state, or any other state,
government, or country or who is addicted to the use of any
narcotic drug, to own, purchase, receive, or have in his or her
possession or under custody or control any firearm. (Penal Code
� 29800.)
Current law provides that it is an alternate felony/misdemeanor
for any person who has been convicted of a specified
misdemeanor, within 10 years of the conviction, to own,
purchase, receive, or have in his or her possession or under
custody or control of any firearm. (Penal Code � 29805.)
Current law requires the court, at the time a judgment is
imposed which prohibits a person from owning, purchasing,
receiving, possessing, or having custody or control of any
firearm, to provide on a form supplied by the Department of
Justice, a notice to the person informing him or her of the
prohibition regarding firearms and include a form to facilitate
the transfer of firearms. (Penal Code � 29810(a).)
Current law provides that every person who purchases or
receives, or attempts to purchase or receive, a firearm knowing
that the person is prohibited from doing so by a temporary
restraining order or injunction or a protective order, as
specified, is guilty of a public offense, punishable by up to
one year in county jail or 16 months, two or three years in the
state prison, a fine of up to $1,000, or both. (Penal Code �
29825(a).)
Current law provides that every person who owns or possesses a
firearm knowing that the person is prohibited from doing so by a
temporary restraining order or injunction or a protective order,
as specified, is guilty of a public offense, punishable by up to
one year in a county jail, a fine of up to $1,000, or both.
(Penal Code � 29825(b).)
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Current law provides that the Judicial Council shall provide
notice on all protective orders that the respondent is
prohibited from owning, possessing, purchasing, receiving, or
attempting to purchase or receive a firearm while the protective
order is in effect. The order shall also state that the firearm
shall be relinquished to the local law enforcement agency for
that jurisdiction or sold to a licensed gun dealer, and that
proof of surrender or sale shall be filed within a specified
time of receipt of the order. The order shall state the
penalties for a violation of the prohibition. The order shall
also state on its face the expiration date for relinquishment.
(Penal Code
� 29825(d).)
Current law allows a person who is otherwise prohibited from
possessing a firearm to possess the firearm if all of the
following conditions are met:
The person found the firearm or took the firearm from a
person who was committing a crime against the person who
found or took the firearm.
The person possessed the firearm no longer than was
necessary to deliver or transport the firearm to a law
enforcement agency for that agency's disposition according
to law.
If the firearm was transported to a law enforcement
agency, it was transported in a specified manner.
If the firearm is being transported to a law enforcement
agency, the person transporting the firearm has given prior
notice to the law enforcement agency that the person is
transporting the firearm to the law enforcement agency for
disposition according to law. (Penal Code � 29850.)
Current law provides that if a law enforcement agency determines
that a person is the legal owner of any firearm deposited with
the agency, that person is prohibited from possessing any
firearm, and that the firearm is an otherwise legal firearm, the
person is entitled to sell or transfer the firearm to a licensed
dealer. (Penal Code � 33870.)
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This bill allows a person who is prohibited from owning or
possessing a firearm may transfer or cause to be transferred,
any firearm or firearms in his or her possession, or of which he
or she is the owner, to a licensed firearms dealer licensed for
storage during the duration of the prohibition, if the
prohibition on owning or possessing the firearm will expire on a
date specified in the court order.
This bill allows a firearms dealer who stores a firearm as
provided above to charge the owner a fee for the storage of the
firearm.
This bill requires a firearms dealer who stores a firearm as
provided above to notify the Department of Justice when the
dealer has taken possession of the firearm and when the owner
has taken back possession of the firearm.
This bill provides that if the prohibition on owning or
possessing a firearm will expire on a date specified in a court
order, the notice of the prohibition shall inform the person
that he or she may elect to have his or her firearm transferred
to a licensed firearms dealer.
This bill requires on the notice on all protective orders, that
Judicial Council issues, to respondents regarding the
prohibitions relating to firearms that a firearm owned or
possessed by the person can be transferred to a licensed
firearms dealer for the duration of the period that the
protective order is in effect.
This bill makes conforming changes to allow a person who is
temporarily prohibited from owning or possessing a firearm to
transport firearms in his or her ownership or possession to a
licensed firearms dealer for transfer or storage as allowed
above.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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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
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
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court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
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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:
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
1. Need for This Bill
According to the author:
Current law prohibits specified persons from
possessing a firearm, and the individual must deliver
or transport any firearms to a law enforcement agency
for that agency's disposal. This requirement applies
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even when the prohibition is temporary. AB 539 allows
individuals that are temporarily placed on the
prohibited persons list to have their firearms stored
at a licensed firearms dealer.
2. Ability to Sell or Transfer Firearms to a Dealer
Under existing law, a person who is prohibited from owning or
possessing a firearm is entitled to sell or transfer his or her
firearm to a licensed dealer if the firearm is deposited with a
law enforcement agency and the agency determines that a person
is the legal owner and the firearm is otherwise legal. (Penal
Code � 33870.)
The ability to transfer firearms to dealers under existing law
does not specify whether an owner who is temporarily prohibited
from possessing a firearm has the ability to take back the
firearm when the prohibition ends. This bill explicitly
provides for that alternative.
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