BILL ANALYSIS Ó
AB 1545
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Date of Hearing: April 1, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1545 (Gray) - As Amended: March 3, 2014
SUMMARY : Exempts firearms processed through the DOJ's voluntary
registration program from the requirement that firearms
transactions be processed through a licensed firearms dealer.
Specifically, this bill :
1)Exempts from the requirement that a firearms transaction be
processed through a dealer if the person reports his or her
ownership of a firearm to DOJ pursuant to the voluntary
registration program who comply with this exemption.
2)Provides that an ownership report to DOJ acts as a defense to
a transfer violation if evidence of that violation arises only
as the result of the person submitting the report.
3)Revises the current voluntary registration program to
condition registration of any firearm in the following manner:
a) As to persons who seek to register a gun pursuant by
reporting the possession of the weapon to DOJ, the
department shall create a distinct program as to these
individuals;
b) Requires that persons who seek to register the gun by
reporting possession to DOJ must obtain a handgun safety
certificate or a firearm safety certificate prior to
registration;
c) Provides that all registrations shall be acted upon
within 30 days of the receipt of the report, the department
and all required fees are paid; and
d) Provides that a firearm that is reported shall not be
entered into the registry as being registered to the person
making the report if any of the following applies:
i) The person is prohibited by state or federal law
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from possessing, receiving, owning, or purchasing a
firearm;
ii) All fees have not been paid; or
iii) The firearm is any of the following:
(1) Any firearm prohibited by Pen. Code § 16590;
(2) An assault weapon;
(3) A machinegun;
(4) A .50 BMG rifle;
(5) A destructive device as defined in Section
16460;
(6) The person is a minor; or
(7) The firearm has been reported lost or stolen.
EXISTING LAW :
1)Provides that the sale, loan or transfer of firearms in almost
all cases must be processed by, or through, a state-licensed
dealer or a local law enforcement agency with appropriate
transfer forms being used, as specified. In those cases where
dealer processing is not required, a change of title report
must still be sent to DOJ (Pen. Code, § 27545).
2)Provides on or after January 1, 1998, that persons
establishing residency within California who bring with them
and store firearms within California after that date to report
the same to DOJ. (Pen. Code, § 27560.)
3)Allows persons who are not subject to reporting to report the
acquisition, destruction, ownership, or disposal of firearms
to DOJ. (Pen. Code, § 28000.)
4)Provides since 1967, both federal law and California Law bar
California residents who do not have federal firearms licenses
from physically bringing the firearms into the State and
instead require in effect that persons who acquire firearms
outside of California as California residents to have the
transaction processed through a California state licensed
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dealer. (18 USC 922 subd. (a)(3) and (a)(5) and 18 USC 922
subd. (b)(2).)
5)Provides since 1968, federal law generally requires - save as
to licensed collectors of curio and relics, to receive
possession of firearms at their licensed premises within this
state. In October of 1996, the Federal Government enacted a
law which allowed the actual delivery of curio and relic
firearms to a federal firearms licensee outside the state
where his/her licensed premises are located. (18 USC 923 subd.
(j).)
6)Requires since January 1, 1998 federally licensed collectors
who acquire and take possession of curios and relics outside
this state to within 5 days of gun coming into the state to
register the same with DOJ (Pen. Code, § 27565.)
7)States that a violation of provisions #2 and #6 are not
"continuing offenses" and that the statute of limitations for
commencing a prosecution for a violation of provisions #2 and
#6 commences on the date that the applicable grace period
specified therein expires. (Pen. Code, § 27570 subd. (a).)
8)States that it is a defense to a violation of provisions #2
and #6 to a person who reports ownership of a handgun after
the applicable grace period specified in provisions #2 and #6
expires if evidence of that violation arises only as the
result of the person submitting the report described in
provisions #2 and #6. (Pen. Code, § 27570, subd. (b).)
9)Requires that firearms information submitted to DOJ as to
handguns in terms of who owns what handgun must be maintained
within a centralized registry. (Pen. Code § 11106) These
reporting requirements now apply to all firearms as of January
1, 2014. (Pen. Code, § 11106.)
10)Require the DOJ, upon submission of firearm purchaser
information, to examine its records to determine if the
purchaser is prohibited from possessing, receiving, owning, or
purchasing a firearm. Existing law prohibits the delivery of a
firearm within 10 days of the application to purchase, or,
after notice by the department, within 10 days of the
submission to the department of any corrections to the
application to purchase, or within 10 days of the submission
to the department of a specified fee. (Pen. Code, §§ 28200 to
28250.)
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11)Mandates those dealers notify DOJ that persons in
applications to purchase actually took possession of their
firearms. (Pen. Code, § 28255.)
12)Requires if a dealer cannot legally deliver a firearm,
existing law requires the dealer to return the firearm to the
transferor, seller, or person loaning the firearm. (Pen. Code,
§ 28050, subd. (d).)
13)Requires that in connection with any sale, loan or transfer
of a firearm, a licensed dealer must provide the DOJ with
specified personal information about the seller and purchaser
as well as the name and address of the dealer. This personal
information of buyer and seller required to be provided
includes the name; address; phone number; date of birth; place
of birth; occupation; eye color; hair color; height; weight;
race; sex; citizenship status; and a driver's license number,
California identification card number or military
identification number. A copy of the Dealers Record of Sale
(DROS), containing the buyer and seller's personal
information, must be provided to the buyer or seller upon
request. (Pen. Code, Sections §§ 28160, 28210, and 28215.)
14)Provides that various categories of persons are prohibited
from owning or possessing a firearm, including persons
convicted of certain violent offenses, and persons who have
been adjudicated as having a mental disorder, among others.
(Pen. Code, §§ 29800 to 29825, inclusive, 29900, 29905, 30305
and Welf. & Inst. Code, §§ 8100 and 8103.)
15)Prohibits persons who know or have reasonable cause to
believe that the recipient is prohibited from having firearms
and ammunition to supply or provide the same with firearms or
ammunition. (Pen. Code, §§ 27500 and 30306, and Welf. & Inst.
Code, § 8101.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In late 2013, 3
years after receiving the request, Attorney General Harris in
response to the request of Santa Cruz District Attorney Bob
Lee issued a formal opinion that opined [correctly] that if A
and B did not process a firearms transaction through a dealer,
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then they both committed a crime. While the opinion was
undoubtedly correct, the opinion raised a series of issues
about the statute of limitations and other issues that it was
vague on. If the crime is a continuing offense, then absent
some sort of use immunity persons cannot "late register" the
firearm - as is the case with new residents and licensed
collectors can - without fear of criminal prosecution. The
state is well served if these guns are entered into the system
without fear of criminal prosecution. Most of the people are
older citizens who are not a public safety threat. The state
does not have the resources or inclination to prosecute in
excess of 200,000 people who for whatever reasons did not
follow proper procedures that may go back to 1953.
"As was noted in the Public Safety Committee Analysis on AB
500 (Ammiano) which the author of this legislation
supported, who had to go through what registration process
is subject to dispute but it's clear that registration has
been required for many years. For that reason, DOJ has
allowed firearms to be registered under the Section 28000
procedure with no questions asked if certain procedures are
followed. AB 1545 does not get into who had to do what when.
Rather, it expands and revises the Section 28000 process so
that it becomes a limited defense to a transfer violation as
to the recipient if they register the gun. In addition, it
limits who can use that procedure in accordance with
existing DOJ procedures.
"Specifically, the bill does the following:
1) "Exempts from the requirement that a firearms
transaction be processed through a dealer if the person
reports his or her ownership of a firearm to the department
pursuant to the revised voluntary registration program who
comply with this exemption.
2) "Provides that an ownership report to the
Department pursuant to Provision # 1 acts as a defense to a
transfer violation if evidence of that violation arises
only as the result of the person submitting the report
described in Provision # 1. [This is now the case as to
licensed collectors and new residents.]
3) "Revises the current voluntary registration program in
Penal Code § 28000 to condition registration of any firearm
in the following manner:
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a) "As to persons who seek to register a gun pursuant to
Provision # 1authorizes the Department of Justice to create
a distinct program as to these individuals.
b) "Requires that persons who seek to register the gun
pursuant to Provision # 1 must have a handgun safety
certificate or a firearm Safety Certificate.
c) "Provides that all registrations shall be acted upon
within 30 days of the receipt of the report described in
Provision 3(a), the department and all required fees are
paid.
d) "Provides that a firearm that is reported pursuant to
Section 28000 (be it under this new procedure or the
existing procedure) shall not be entered into the registry
specified in Section 11106 as being registered to the
person making the report if any of the following applies:
The person is prohibited by state or federal law from
possessing, receiving, owning, or purchasing a firearm, the
person is a minor, all fees required by paragraph (3) of
subdivision (a) of Section 28230 have not been paid, or the
firearm is a restricted weapon. The bill, as did other
measures, corrects a drafting error in Assembly Bill 809.
(Feuer), Ch. 745/2011."
2)Attorney General Opinion 10- 504 [96 Ops. Atty. Gen. 54
(2013)]<1> : In 2013, the Santa Cruz District Attorney's
Office asked the attorney general: "Is the offense of
completing an 'unlicensed firearm transaction' that is, the
sale, loan, or transfer of a firearm by persons not licensed
as firearms dealers committed by both the person transferring
the firearm and the person receiving it, such that both
persons may be prosecuted and punished under the applicable
penal statutes for committing the offense?"
The Attorney General concluded the following: "The offense of
completing an unlicensed firearm transaction is committed by
both the person transferring the firearm and the person
receiving it, and both persons may be prosecuted and punished
under the applicable penal statutes for committing the
offense."
--------------------------
<1> https://oag.ca.gov/system/files/opinions/pdfs/10-504.pdf?
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However, the opinion did not conclude whether or not the
offense was a continuing offense. If the offense is a
continuing offense, then by continuing to not register the
firearm the statute of limitations would fail to run and both
parties would be subject to prosecution over an extended
period of years, as would be in the case of failing to
register as a sex offender.
This bill seeks to permit persons who failed to go through a
licensed firearms dealer, such as a person to person
transaction, to register their weapons by informing DOJ that
they have the weapon and complying with the additional
registration requirements imposed.
3)Unintended Consequences of this Bill : The result of
implementing this bill will be that the exception to the
requirement to go through a licensed firearm dealer will
incentivize not complying with existing law. The exception
swallows the rule. Persons seeking to obtain a firearm will
be able to obtain the firearm without going through the
background check and 10-day "cooling off" period prior to
obtaining the firearm. By obtaining the firearm first, then
notifying the DOJ through the voluntary registration program,
a purchaser will be able to avoid the safety restrictions on
the front end of a firearms transaction.
The bill has the noble purpose of trying to get individuals to
register firearms that are unregistered and likely possessed
in violation of the law. However, the bill would create a
back door method for obtaining a firearm without going through
the existing protections on the front end of a firearm
purchase to insure public safety.
4)Argument in Support : None submitted.
5)Argument in Opposition: According to the California Chapters
of the Brady Campaign, "The California Chapters of the Brady
Campaign to Prevent Gun Violence is a grassroots organization
working to reduce firearm violence. There are Brady chapters
throughout the state, many of whose members have lost a loved
one to gunfire. In furtherance of our goal to reduce firearm
crime, injury, and death in our communities, the California
Brady Campaign Chapters opposes AB 1545, introduced by
Assembly Member Adam Gray.
"It is illegal for any person who is not a California licensed
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firearms dealer (private party) to sell or transfer a firearm
to another non-licensed person unless the sale is completed
through a licensed California firearms dealer. A "Private
Party Transfer" (PPT) can be conducted at any licensed
California firearms dealership that sells firearms. The buyer
and seller must complete the required Dealer Record of Sale
document in person at the licensed firearms dealership and
deliver the firearm to the dealer, who will retain possession
of the firearm during the mandatory 10-day waiting period. A
person who does not follow this procedure is potentially
guilty of a misdemeanor.
"This bill would create an exemption from this requirement to
complete a firearms transaction through a licensed dealer for
a person who reports his or her ownership of a firearm to the
Department of Justice (DOJ). The bill would require the
Department to register the firearm within 30 days of the
receipt of the report, subject to specified restrictions.
"The presumed need for this bill is that there are undoubtedly
many people who have engaged in illegal PPT's and now wish to
come into compliance with the law by filing a report. DOJ
would perform a background check during the 30-day period and
if the person were found to be prohibited, it would be
incumbent upon DOJ to retrieve the gun.
"In its current form, this bill makes a mockery of existing
law relating to private party transfers. It is in the
interest of public safety for firearm purchasers to undergo a
background check before they acquire a firearm and to be
subject to the ten-day cooling off period. Furthermore, this
bill is unnecessary because at any time before the one year
statute of limitations for the crime of an illegal PPT, the
parties can bring the gun to a licensed dealer, fill out the
DROS form and surrender the gun for a 10-day waiting period,
after which the buyer would become a lawful possessor. When
one year has elapsed, one can simply go to the DOJ website and
download and submit a Firearm Ownership Report to come into
compliance with the law. This process has worked well enough
in allowing intra-family sales, which do not need to go
through a dealer, and for otherwise law abiding citizens with
unregistered firearms to voluntarily come into compliance with
the law, making this bill completely unnecessary.
"The Brady Campaign believes that AB 1545 represents an
unacceptable weakening of current law. Accordingly, we
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respectfully ask for your NO vote."
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
California Chapters of the Brady Campaign
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744