BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 6 0 AB 1609 (Alejo) 9 As Amended June 17, 2014 Hearing date: June 24, 2014 Penal Code JRD:sl FIREARMS HISTORY Source: Author Prior Legislation: AB 740 (Alejo) - 2013, held in Assembly Appropriations Support: American Academy of Pediatrics, California; Office of the California Attorney General; California Chapters of the Brady Campaign to Prevent Gun Violence; California District Attorneys Association; California Partnership to End Domestic Violence; City and County of San Francisco; Coalition Against Gun Violence; Law Center to Prevent Gun Violence Oakland City Hospital; San Francisco Bay Area Physicians for Social Responsibility; Taxpayers for Improving Public Safety; Youth ALIVE! Opposition:California Rifle and Pistol Association, Inc.; National Rifle Association; California Association of Federal Firearms Licensees Assembly Floor Vote: Ayes 49 - Noes 25 KEY ISSUE (More) AB 1609 (Alejo) Page 2 SHOULD THE LAWS RELATING TO THE DIRECT SHIPMENT OF FIREARMS BE CLARIFIED? PURPOSE The purpose of this legislation is to clarify the regulations for direct shipment requirements for transfer of ownership of firearms. Under existing federal law it is 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 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 into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State; Apply to the transportation or receipt of a firearm obtained in conformity as specified; and, Apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter (effective Dec. 16, 1968). (18 U.S.C. 922(a)(3).) Under existing federal law it is 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 (More) AB 1609 (Alejo) Page 3 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: 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, The loan or rental of a firearm to any person for temporary use for lawful sporting purposes. (18 U.S.C. 922(a)(5).) Under existing federal law it is 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).) Current law requires all sales, loans, and transfers of firearms to be processed through or by a state-licensed firearms dealer or a local law enforcement agency. (Penal Code § 27545.) This bill would prohibit a California resident to import, bring or transport into California, any firearm that he or she purchased or otherwise obtained from outside the state unless he or she first has the firearm delivered to a dealer in California. This transaction would be subject to: A 10-day waiting period; A purchaser background check; and, Possession of a handgun safety certificate by the (More) AB 1609 (Alejo) Page 4 purchaser. This bill makes 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. This bill specifies that the provisions of this bill only apply to the acquisition of firearms from an out of state source after January 1, 2015. This bill provides that a California resident who acquires ownership of a firearm by bequest or intestate succession who imports, brings or transports the firearm into this state is exempt for the prohibition on importing, bringing or transporting firearms into the state, if all of the following conditions apply: If the firearm were physically received within this state, the receipt of that firearm by that individual would be exempt from the provisions requiring transfer through a licensed dealer; Within 30 days of taking possession of the firearm and bringing it into the state, he or she shall forward by prepaid mail, or deliver in person to DOJ, a report that includes information concerning the individual taking possession of the firearm, how title was obtained and from whom, and a description of the firearm in question; Have or obtain a firearm safety certificate for any firearm, except that in the case of a handgun, an unexpired handgun safety certificate may be used; The receipt of that firearms by the individual is infrequent; and, The person acquiring ownership of that firearm by bequest or intestate succession is 18 years or age. This bill provides that a California resident who acquires ownership of a firearm as the executor or administrator of an (More) AB 1609 (Alejo) Page 5 estate, who imports, brings or transports the firearm into this state is exempted from the prohibition on importing, bringing or transporting firearms into the state if all of the following conditions apply: If the firearm were physically received within this state, the receipt of that firearm by that individual would be exempt from the provisions requiring transfer through a licensed dealer; Within 30 days of taking possession of the firearm and bringing it into the state, he or she shall forward by prepaid mail, or deliver in person to DOJ, a report that includes information concerning the individual taking possession of the firearm, how title was obtained and from whom, and a description of the firearm in question; If the executor or administrator subsequently acquires ownership of that firearm, he or she is required to comply with section 27925; and, The executor or administrator is 18 years of age or older. This bill exempts specified firearms licensees who are on the DOJ Centralized list from the prohibition on importing, bringing or transporting firearms into the state. This bill exempts persons who have obtained specified DOJ permits to deliver weapons from the prohibition on importing, bringing or transporting firearms into the state, as specified. This bill exempts transactions in restricted weapons from the prohibition on importing, bringing or transporting firearms into the state, if the transactions comply with the procedure set forth for restricted weapons, as specified. This bill makes specified findings and declarations. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION (More) AB 1609 (Alejo) Page 6 For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy, known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures that created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation, which would increase the prison population. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order requiring the state to reduce its prison population to 137.5 percent of design capacity. The State submitted that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs opposed the state's motion, arguing that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % inmate population cap by December 31, 2013. (More) AB 1609 (Alejo) Page 7 The Three-Judge Court then ordered, on April 11, 2013, the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." On September 16, 2013, the State asked the Court to extend that deadline to December 31, 2016. In response, the Court extended the deadline first to January 27, 2014 and then February 24, 2014, and ordered the parties to enter into a meet-and-confer process to "explore how defendants can comply with this Court's June 20, 2013 Order, including means and dates by which such compliance can be expedited or accomplished and how this Court can ensure a durable solution to the prison crowding problem." The parties were not able to reach an agreement during the meet-and-confer process. As a result, the Court ordered briefing on the State's requested extension and, on February 10, 2014, issued an order extending the deadline to reduce the in-state adult institution population to 137.5% design capacity to February 28, 2016. The order requires the state to meet the following interim and final population reduction benchmarks: 143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and, 137.5% of design bed capacity by February 28, 2016. If a benchmark is missed the Compliance Officer (a position created by the February 10, 2016 order) can order the release of inmates to bring the State into compliance with that benchmark. In a status report to the Court dated May 15, 2014, the state reported that as of May 14, 2014, 116,428 inmates were housed in the State's 34 adult institutions, which amounts to 140.8% of design bed capacity, and 8,650 inmates were housed in out-of-state facilities. The ongoing prison overcrowding litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. While real gains in reducing the prison (More) AB 1609 (Alejo) Page 8 population have been made, even greater reductions may be required to meet the orders of the federal court. Therefore, the Committee's consideration of ROCA bills -bills that may impact the prison population - will be informed by the following questions: Whether a measure erodes realignment and impacts the prison population; Whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; Whether a bill corrects a constitutional infirmity or legislative drafting error; Whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and, Whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Need for Legislation According to the author: AB 1609 brings state law in line with federal law by authorizing state and local law enforcement agencies to prosecute individuals who bring firearms into the state illegally. 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. Every day, people go to Nevada or Arizona, purchase guns, bring them back into California, and sell them to criminals on the streets. 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 (More) AB 1609 (Alejo) Page 9 state. Many of 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 keep guns out of the hands of criminals. Under this bill, anyone who complies with the federal "direct ship" mandate, the new residence procedures, or the collector procedures is fully protected under the law. The people who are not protected are the criminal element. AB 1609 reflects a number of concerns that have been raised regarding the State's ability under current state code to regulate the activities of California residents going outside of California, acquiring ownership of firearms, and then physically bringing them 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, possession of a handgun safety certificate, among other requirements. Currently, it is unclear if this also violates state law. AB 1609 clarifies that it does. The California Department of Justice conducts investigations to prevent illegal gun trafficking at in-state and out-of-state gun shows in accordance with state and federal law. According to the Nevada County District Attorney's Office, prosecutions are being made for prohibited weapons and prohibited persons - but, no prosecutions are being made for the illegal acquisition of "normal guns." This bill will give the (More) AB 1609 (Alejo) Page 10 Attorney General the tools to investigate and the district attorneys the tools to prosecute this gun trafficking behavior as it relates to "normal guns" that are acquired illegally. 2. Effect of Legislation The intent of this legislation is to help prevent firearms trafficking. 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 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. 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 give 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. Opponents argue that AB 1609 is unnecessary and fails to conform to federal law. Specifically, California Association of Federal Firearms Licensees writes: (More) Current federal law, 18 U.S.C. 922(a), prohibits an individual (with some clearly state exceptions) from transferring a firearm between states without using a federal firearms dealer. AB 1609 would create new state law that fails to provide for longstanding exemptions in federal law (see, e.g., 18 U.S.C. 922(a)(3) and 922(b)(3).) For example, the temporary loan of firearms for lawful sporting purposes is exempt under federal law. Federal law also exempts write/evaluators who temporarily receive firearms for the purpose of review or study. The lack of conformity with federal law increases criminal liability for law-abiding Californians. AB 1609 also fails to address its impact on California's television and film production industry. In many cases, productions will need to bring into California a specialty firearm that is not available in the State. Not only does AB 1609 create confusion and lack of conformity with longstanding federal law, it creates parallel crimes for conduct already regulation under existing state law. (See, e.g., Cal. Penal Code § 27545.) As both the proponents and opponents of this legislation highlight, this bill would criminalize firearms trafficking in California. This legislation makes a violation of its provisions involving a firearm that is not a handgun a misdemeanor, and a violation involving a handgun a misdemeanor or a felony. *************** (More)