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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