BILL ANALYSIS Ó AB 740 Page 1 Date of Hearing: April 30, 2013 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 740 (Alejo) - As Amended: April 8, 2013 SUMMARY : Clarifies the definition of infrequent transactions as they apply to all firearms transactions, specify the regulations for direct shipment sales of firearms, and requires electronic notification to the Department of Justice for specified conditions by state courts. Specifically, this bill : 1)Defines "infrequent" for purposes of prohibitions on the transfer of firearms as less than 6 firearms transactions per calendar year, rather than merely for handguns. Further the bill would specify the definition of "transaction" for these purposes to mean a single sale, lease, or transfer of any number of firearms. 2)Clarifies that state law is in line with federal law by adding sections to the Penal Code which do the following: a) Clarifies that it is a misdemeanor to receive a firearm from a state licensed dealer where the recipient knows that the transaction is illegal and has not followed requirements imposed by the Penal Code for delivery of firearms. b) Clarifies that that transporting guns into California to illegally dispose of them is a trafficking offense punishable under state law as a misdemeanor. c) Clarifies that a firearm purchased out-of-state by a California resident, for transport into California, must go through an in-state dealer, following the same procedures for an in-state transaction. Failure to do so is a misdemeanor. 3)Requires that courts report specified information related to mental status of persons in court proceedings to the Department of Justice (DOJ) by electronic means, in a manner AB 740 Page 2 prescribed by the DOJ. EXISTING LAW : 1)States that under federal law, it shall be unlawful for any person other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph: [18 U.S.C. 922(a)(3)] a) Shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State; b) Shall not apply to the transportation or receipt of a firearm obtained in conformity as specified; and c) Shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter [effective Dec. 16, 1968]; 2)States that under federal law, it shall be unlawful for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to: [18 U.S.C. 922(a)(5)] a) The transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence; and AB 740 Page 3 b) The loan or rental of a firearm to any person for temporary use for lawful sporting purposes. 3)States that under federal law it shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver any firearm to any person in any State where the purchase or possession by such person of such firearm would be in violation of any State law or any published ordinance applicable at the place of sale, delivery or other disposition, unless the licensee knows or has reasonable cause to believe that the purchase or possession would not be in violation of such State law or such published ordinance. [18 U.S.C. 922(b)(2)] 4)Defines "infrequent" for purposes of handgun transactions as less than six per calendar year. Defines "infrequent" for purposes of long gun sales as "occasional and without regularity". The term "infrequent" shall not be construed to prohibit different local chapters of the same nonprofit corporation from conducting auctions or similar events, provided the individual local chapter conducts the auctions or similar events infrequently. It is the intent of the Legislature that different local chapters, representing different localities, be entitled to invoke the exemption notwithstanding the frequency with which other chapters of the same nonprofit corporation may conduct auctions or similar events. Specifies that "transaction" means a single sale, lease, or transfer of any number of handguns. (Penal Code Section 16730.) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "I have seen too many images of families torn apart by criminal behavior involving firearms, and I'm not going to sit by idly and wait for more. The safety of our children and families has to be top priority and I am willing to fight for their protection. AB 740 will give state law enforcement the tools to enforce federal law and further deter illegal and reckless firearm conduct. This bill will not affect those who abide by the law, only those who break it." 2)Background : According to the background submitted by the AB 740 Page 4 author, "A number of concerns have been raised as to the State's ability under current state code to regulate the activities of California residents going outside of California, acquiring ownership of normal rifles, shotguns, and handguns, and then physically bringing them back into the state. "It is agreed that this importation conduct violates current federal law, but there are ambiguities as to the state's jurisdictional authority. Federal law in essence mandates "direct ship," which means that guns can be acquired outside of the state, but, to be possessed and received in-state, the transaction has to be brokered through a federal firearms licensee [who in California also has to be state licensed] for pickup in accordance with California law. That includes background checks, the waiting period, registration, etc. This mandate, stemming from 18 U.S.C. 922(a)(3), (a)(5), and (b)(2), creates certain procedures for bringing firearms across state lines and makes certain firearm transactions illegal. "Moreover, under current law, it is unclear if importation into the state, or transportation of guns into the state, to illegally dispose of the same are covered by current Penal Code § 27515 or Penal Code § 27520. Finally, it is unclear whether it is a state crime for a person to receive a gun from a state licensed gun dealer when that person knows or has reason to know that the transaction is not legitimate. "In addition to these concerns, under current code, the definition of 'infrequent,' as it relates to firearms transactions, is ambiguous and inconsistent; and, the reporting by the courts to the Department of Justice of persons adjudicated as mentally unfit to own, possess, or control a firearm needs to be expedited. "AB 740 conforms the definition of 'infrequent' on handguns and long guns to be consistent; it requires the courts to electronically report information to the Department of Justice to expedite the seizure of firearms from individuals adjudicated as mentally unfit to own, possess, or control a firearm; it mandates as a matter of state law the federal 'direct ship' mandate that flows form 18 USC 922(a)(3), (a)(5), and (b)(2), so that it is clear that persons who go out of California and bring guns back in are treated the same AB 740 Page 5 as an instate transfer with all the protections that flow therefrom; it makes clear that transporting guns into California to illegally dispose of the same is a trafficking offense; and it make it clear that it is a specific crime to receive a gun from a state licensed dealer where the recipient knows that the transaction is illegal." 3)Argument in Support : According to the Law Center to Prevent Gun Violence , "One of the critical ways that guns enter the illegal market is through trafficking. Trafficking schemes employ 'straw purchasers' - individuals who are able to pass background checks - to buy weapons and then illegally deliver them to individuals who are prohibited from possessing firearms. Because California has the nation's strongest gun laws, guns are frequently trafficked into the state by straw purchasers from states with far weaker laws. A significant number of crime guns recovered in our state every year were purchased in other states, including Arizona, Nevada, Texas and other states with extremely weak laws. "AB 740 would provide law enforcement with a set of new tools to aggressively fight gun trafficking, especially from sources outside of the state. Among other provisions, the bill would prohibit any person from bringing a firearm into the state with the intent to illegally sell the weapon. "This bill would also clarify the state's laws relating to the licensing of firearms dealers. Current law exempts individuals who engage in 'infrequent' firearm sales from the requirement to acquire a state dealer's license. While 'infrequent' is defined for handgun sales as fewer than six transactions within one year, the term is defined for rifles and shotguns as sales that are 'occasional and without regularity.' AB 740 would clarify that 'infrequent' means fewer than six transactions per year, regardless of the types of firearms being sold. "Finally, the bill would require that any court obligated to transmit mental health information to the Department of Justice must do so electronically. This will help ensure that critical mental health records are available to the Department of Justice as soon as possible." 4)Related Legislation: AB 48 (Skinner), imposes specified reporting requirements to the DOJ. AB 48 is awaiting a AB 740 Page 6 hearing in the Assembly Appropriations Committee. REGISTERED SUPPORT / OPPOSITION : Support California Chapters of the Brady Campaign Coalition Against Gun Violence Law Center to Prevent Gun Violence Opposition California Right to Carry One private individual/ Analysis Prepared by : Gabriel Caswell / PUB. S. / (916) 319-3744