BILL ANALYSIS Ó AB 1545 Page A Date of Hearing: April 22, 2014 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 1545 (Gray) - As Amended: April 9, 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, through January 1, 2019. 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 a sunset date of January 1, 2019. 3)Applies to firearms obtained through a private party transfer prior to January 1, 2015. 4)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. 5)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 AB 1545 Page B 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 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 AB 1545 Page C 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 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, AB 1545 Page D 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.) 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 : AB 1545 Page E 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, 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 AB 1545 Page F 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: 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 -------------------------- <1> https://oag.ca.gov/system/files/opinions/pdfs/10-504.pdf? AB 1545 Page G 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." 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 the 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. This bill only applies to firearms that are obtained through private party transfers prior to January 1, 2015. However, records of private party transfers are non-existent or easily falsified. A person could obtain the firearm after January 1, 2015 and falsely state to the Department of Justice that they obtained the firearm in 2008 and there would be little to no way to confirm this information. No Dealer's Record of Sale (DROS) form is sent to DOJ, and no 10-day waiting period is imposed. The gun owner could have the weapon and not go through the public safeguards in place for purchasing and registering firearms. 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 AB 1545 Page H 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 : According to Gun Owners of California , "AB 1545 provides a clear and legal opportunity for gun owners to come into compliance with registration laws in a straightforward and non-intimidating manner. Those who are critical of this bill argue that it makes a mockery of existing laws. In fact, the same can be argued regarding gun buy-back programs in that those who divest themselves of improperly acquired firearms in order to come into compliance with registration laws, are in essence doing the same thing. "We do suggest that the California Department of Justice be required to at least make a modest effort to inform the public of this program. An announcement on their website and an advisory published to all dealers in the state would be a minimum effort. After all, what good is an amnesty program if nobody knows about it?" 5)Argument in Opposition: According to the California Attorney General's Office , "Existing law requires ' when neither party to the transaction holds a dealer's license issued pursuant to Sections 26700 to 26915, inclusive, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through a licensed firearms dealer pursuant to Chapter 5 (commencing with Section 28050).' (Pen. Code § 27545). As part of this transaction, the purchaser or transferee is required to provide personal identification information for the Dealer's Record of Sale (DROS) document that the firearms dealer must submit to the Department of Justice (the Department) . (Pen. Code § 28160). Subsequently there is a 10-day waiting period before the dealer can deliver the firearm. During this waiting period, the Department conducts a background check to ensure the purchaser or transferee is not legally prohibited from possessing a firearm. (Pen. Code § 28220). If purchaser or transferee is not prohibited from owning or possessing a firearm, the Department informs the licensed firearms dealer that the firearm may be released. Once the firearm is delivered, the firearms dealer must notify the Department of the date and time that the purchaser or transferee took possession of the firearm. (Pen Code § 28255). However, if a firearms dealer cannot legally deliver the firearm to the purchaser or transferee (i.e., the purchaser or transferee is prohibited from owning or AB 1545 Page I possessing a firearm), the dealer is required to return the firearm to the seller or transferor. (Pen. Code § 28050(d)). "California law prohibits certain persons from owning or possessing a firearm. These persons include individuals convicted of felonies and certain violent misdemeanors, persons prohibited as a condition of probation, persons subject to a protective order or temporary restraining order, persons who have been adjudicated as having mental disorders, and a certain class of juvenile offenders. (Pen. Code §§ 29000-29825, 29900, 29905, 30305; Welf. Inst. Code §§ 8100 & 8103.) "AB 1545 would create a gaping hole in the current California firearms law by permitting an individual to obtain and possess a firearm prior to completing the DROS process, prior to having a background check conducted, and prior to adhering to the mandatory 10-day waiting period outlined above. This bill creates an exception and an incentive to not comply with existing California law. By allowing a purchaser or transferee to obtain and possess the firearm prior to notifying the Department of its acquisition, this bill completely circumvents the Legislature's stated intent to create and maintain fun safety laws in California by ensuring that the purchaser or transferee passes the required background check performed by the Department and "cools off" during the 10-day waiting period prior to acquiring the firearm. "It is the Department's understanding that the intent of AB 1545 is to allow 'law abiding' individuals to register firearms that are currently unregistered. However, the practical, real-life consequences of this bill weaken our current gun laws and encourage California citizens to violate current California law regarding the transfer and purchase of firearms. Moreover, the concerns that AB 1545 seeks to fix are presently addressed under existing law. If a person has obtained possession of a firearm outside of the guidelines outlined above, there is an already-established procedure allowing such a transaction to come into compliance with the law. Specifically, the parties can take the firearm to a licensed firearms dealer, complete a DROS form, and surrender the firearm to the firearms dealer during the 10-day waiting period. Pending a successful background check, the purchaser or transferee would become the lawful possessor of the firearm AB 1545 Page J and may retrieve the firearm from the dealer. This option satisfies your concern of permitting California citizens to subsequently notify the Department of their acquisition of previously purchased or transferred firearms." REGISTERED SUPPORT / OPPOSITION : Support Gun Owners of California Opposition California Attorney General's Office California Chapters of the Brady Campaign Law Center to Prevent Gun Violence Analysis Prepared by : Gabriel Caswell / PUB. S. / (916) 319-3744