BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1609
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          Date of Hearing:   March 25, 2014
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 1609 (Alejo) - As Introduced:  February 6, 2014
           

          SUMMARY  :  Clarifies the regulations for direct shipment  
          requirements for transfer of ownership of firearms.   
          Specifically,  this bill  :  

          1)Would require a California resident who seeks to own and  
            possess within the state a firearm acquired from outside the  
            state to have the firearm delivered to a dealer in this state  
            for delivery pursuant to specified requirements and exceptions  
            to those requirements.   The specified requirements include:  

             a)   a 10-day waiting period; 

             b)   a purchaser background check; and

             c)   possession of a handgun safety certificate by the  
               purchaser.

          2)Would make a violation of these provisions involving a firearm  
            that is not a handgun a misdemeanor, and a violation involving  
            a handgun a misdemeanor or a felony. 

           EXISTING FEDERAL 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  








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               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 

             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).)  

          FISCAL EFFECT  :   Unknown









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           COMMENTS  :   

           1)Author's Statement  :  According to the author, "I support the  
            2nd Amendment, but I have seen too many families torn apart by  
            criminal behavior involving firearms.  I am 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.
             
             "Every day, guns are being purchased across state lines in  
            Nevada and Arizona, trafficked into California, and sold to  
            criminals on our streets.  I represent the City of Salinas,  
            which has one of the highest rates of gun violence amongst  
            youths in the nation.  These youths are getting guns through  
            illegal transactions from out of state purchasers.  I am  
            confident that this bill will cut down on the number of guns  
            on the streets of our most vulnerable cities by giving state  
            law enforcement the tools to enforce what in many cases is now  
            federal law.  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  
            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 a firearm, and then  
            physically bringing that firearm 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.

            "AB 1609 brings state law in line with federal law by  
            authorizing the California Attorney General to prosecute  
            individuals who bring firearms into the state illegally.   








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            Specifically, the bill clarifies that it is a state law  
            violation for a resident of California to bring a gun into the  
            state without going through a licensed dealer.

            "According to data provided on the Bureau of Alcohol, Tobacco,  
            Firearms and Explosives website, approximately 59 - 65% of  
            guns seized in California are either untraceable (i.e. not  
            registered in the state) or registered outside the state.   
            These guns were brought into the state illegally, and were  
            used either in a crime or found during a criminal  
            investigation.  AB 1609 seeks to deter individuals from  
            breaking the law and to keep guns out of the hands of  
            criminals.

            "Anyone who complies with the federal "direct ship" mandate,  
            the new residence procedures, or the collector procedures is  
            fully protected by this bill.  The people who are not  
            protected are the criminal element.

            "In addition, it is important to note that in the governor's  
            proposed budget, the Department of Justice is set to receive  
            nearly $3.5 million to conduct investigations to prevent  
            illegal gun trafficking at in-state and out-of-state gun shows  
            in accordance with state and federal law.  This bill will give  
            the Attorney General the tools to prosecute this illegal gun  
            trafficking behavior."   

           3)Attorney General Opinion 10-504  :  In 2010, then Attorney  
            General Brown was asked by District Attorney Bob Lee of Santa  
            Cruz County whether in a private party transaction whether the  
            transferee and the transferor each commit the crime if they do  
            not comply with the provisions of "through dealer processing"  
            or an exemption thereto.  In October of 2013 after a review of  
            the law in this area, Attorney General Harris opined that it  
            was indeed a violation as to both. The opinion was careful not  
            to opine if the violation was a "continuing offense."  
           
            4)Prohibited Persons  :  By requiring direct shipments of firearms  
            from out of state, this bill will assist in keeping firearms  
            out of the hands of prohibited persons.  California has  
            several laws that prohibit certain persons from purchasing  
            firearms.  All felony convictions lead to a lifetime  
            prohibition, while specified misdemeanors will result in a  
            10-year prohibition.  A person may be prohibited due to a  
            protective order or as a condition of probation.  Another  








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            prohibition is based on the mental health of the individual.   
            If a person communicates to his or her psychotherapist a  
            serious threat of physical violence against a  
            reasonably-identifiable victim or victims, the person is  
            prohibited from owning or purchasing a firearm for five years,  
            starting from the date the psychotherapist reports to local  
            law enforcement the identity of the person making the threat.   
            (Welf. & Inst. Code, § 8100, subd. (b)(1).)  If a person is  
            admitted into a facility because that person is a danger to  
            himself, herself, or to others, the person is prohibited from  
            owning or purchasing a firearm for five years.  (Welf. & Inst.  
            Code, § 8103, subd. (f).)  For the provisions prohibiting a  
            person from owning or possessing a firearm based on a serious  
            threat of violence or based on admittance into a facility as a  
            threat to self or others, the person has the right to request  
            a hearing whereby the person could restore his or her right to  
            own or possess a firearm if a court determines that the person  
            is likely to use firearms or other deadly weapons in a safe  
            and lawful manner.  (Welf. & Inst. Code, §§ 8100, subd. (b)(1)  
            and 8103, subd. (f).)

            DOJ developed the Prohibited Armed Persons File, which is  
            commonly referred to as the Armed Prohibited Persons System  
            (APPS), an automated system for tracking handgun and assault  
            weapon owners in California who may pose a threat to public  
            safety.  (Pen. Code, § 30000 et seq.)  APPS collects  
            information about persons who have been, or will become,  
            prohibited from possessing a firearm subsequent to the legal  
            acquisition or registration of a firearm or assault weapon.   
            DOJ receives automatic notifications from state and federal  
            criminal history systems to determine if there is a match in  
            the APPS for a current California gun owner.  DOJ also  
            receives information from courts, local law enforcement and  
            state hospitals as well as public and private mental hospitals  
            to determine whether someone is in a prohibited status.  When  
            a match is found, DOJ has the authority to investigate the  
            person's status and confiscate any firearms or weapons in the  
            person's possession.  Local law enforcement also may request  
            from DOJ the status of an individual, or may request a list of  
            prohibited persons within their jurisdiction, and conduct an  
            investigation of those persons.  (Pen. Code, § 30010.)
           
            5)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  








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            frequently employ 'straw purchasers' - individuals who are  
            able to pass background checks - to buy weapons 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.  According to  
            data from the Federal Bureau of Alcohol, Tobacco, Firearms,  
            and Explosives, a significant number of crime guns recovered  
            in our state every year were purchased in other states,  
            including Arizona, Nevada, Texas, and others with extremely  
            weak laws.  
             
             "Currently, federal law makes it illegal to purchase a handgun  
            outside of California and bring it into the state unless the  
            firearm is shipped to a licensed dealer in California to  
            complete the transaction.  Federal law also requires that any  
            dealer outside of California selling a long gun to a  
            California resident who has traveled to another state to  
            purchase a long gun comply with all California laws in  
            completing the transaction.  Because non- California dealers  
            cannot comply with California's separate background check  
            requirement administered by the California Department of  
            Justice, this effectively means that California residents are  
            barred by federal law from purchasing long guns outside of  
            California, as well as handguns.  

            "However, federal authorities do not have the resources to  
            enforce existing laws and California has no state law  
            governing these transactions at all.  AB 1609 would fix this  
            problem by explicitly requiring that any guns purchased out of  
            state be shipped to a licensed California dealer in order to  
            complete the transaction.  This would five California law  
            enforcement the tools to ensure that California laws are  
            followed with respect to every gun purchased by state  
            residents, including those requiring background checks,  
            compliance with the firearm safety certificate requirement,  
            and compliance with the 10-day waiting period."  

           6)Argument in Opposition:   According to the California Rifle and  
            Pistol Association, "AB 1609 will add to prison over-crowding  
            and will increase state and local costs.  AB 1609 is an  
            unnecessary bill.  There are adequate California laws that  
            prohibit the transfer of firearms without going through a  
            licensed firearms dealer."  
           








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           7)Related Legislation  :  AB 740 (Alejo), clarified the definition  
            of infrequent transactions as they apply to all firearms  
            transactions, specify the regulations for direct shipment  
            sales of firearms, and required electronic notification to the  
            Department of Justice for specified conditions by state  
            courts.  Contained the provisions of this bill in a larger  
            body of statutory changes.  AB 740 was held in the Assembly  
            Appropriations Committee.  
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Chapters of the Brady Campaign to Prevent Gun  
          Violence 
          Law Center to Prevent Gun Violence 
          Taxpayers for Improving Public Safety

           Opposition 
           
          California Rifle and Pistol Association 
          National Rifle Association 
           
          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744