BILL ANALYSIS Ó
AB 740
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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
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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
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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
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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
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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
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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