BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          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
           


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          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  


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          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  


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               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  


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          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


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          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.  


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          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  


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          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  


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               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  


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               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: 



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               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.  

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