BILL ANALYSIS Ó
AB 1545
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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
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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
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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,
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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 :
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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
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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?
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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
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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
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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
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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