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