BILL ANALYSIS Ó
AB 2300
Page 1
Date of Hearing: April 8, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2300 (Ridley-Thomas) - As Amended: April 1, 2014
SUMMARY : Changes the date from January 1, 1991 to January 1,
1996 for records of ownership within the Prohibited Arms Persons
File maintained by the Department of Justice (DOJ).
Specifically, this bill : Requires the Attorney General maintain
an online database, the Prohibited Armed Persons File, to
cross-reference persons who have ownership or possession of a
firearm on or after January 1, 1996, and who, subsequent to the
date of that ownership or possession, fall within a class of
persons who are prohibited from owning or possessing a firearm.
EXISTING LAW :
1)States that the Attorney General shall establish and maintain
an online database to be known as the Prohibited Armed Persons
File. The purpose of the file is to cross-reference persons
who have ownership or possession of a firearm on or after
January 1, 1991, as indicated by a record in the Consolidated
Firearms Information System, and who, subsequent to the date
of that ownership or possession of a firearm, fall within a
class of persons who are prohibited from owning or possessing
a firearm. The information contained in the Prohibited Armed
Persons File shall only be available to those entities
specified through the California Law Enforcement
Telecommunications System, for the purpose of determining if
persons are armed and prohibited from possessing firearms.
(Pen. Code, § 30000).
2)Provides that the Prohibited Armed Persons File database shall
function as follows: (Pen. Code, § 30005).
a) Upon entry into the Automated Criminal History System of
a disposition for a conviction of any felony, a conviction
for any firearms-prohibiting charge specified in Chapter 2
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(commencing with Section 29800), a conviction for an
offense described in Chapter 3 (commencing with Section
29900), a firearms prohibition pursuant to Section 8100 or
8103 of the Welfare and Institutions Code, or any firearms
possession prohibition identified by the federal National
Instant Criminal Background Check System, the Department of
Justice shall determine if the subject has an entry in the
Consolidated Firearms Information System indicating
possession or ownership of a firearm on or after January 1,
1991 or an assault weapon registration, or a .50 BMG rifle
registration;
b) Upon an entry into any department automated information
system that is used for the identification of persons who
are prohibited by state or federal law from acquiring,
owning, or possessing firearms, the department shall
determine if the subject has an entry in the Consolidated
Firearms Information System indicating ownership or
possession of a firearm on or after January 1, 1991, or an
assault weapon registration, or a .50 BMG rifle
registration;
c) If the department determines that, pursuant to
subdivision (a) or (b), the subject has an entry in the
Consolidated Firearms Information System indicating
possession or ownership of a firearm on or after January 1,
1991 or an assault weapon registration, or a .50 BMG rifle
registration, the following information shall be entered
into the Prohibited Armed Persons File:
i) The subject's name;
ii) The subject's date of birth;
iii) The subject's physical description;
iv) Any other identifying information regarding the
subject that is deemed necessary by the Attorney General;
v) The basis of the firearms possession prohibition;
and
vi) A description of all firearms owned or possessed by
the subject, as reflected by the Consolidated Firearms
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Information System.
3)States a violation of specified prohibitions against
possessing a firearm or deadly weapon shall be a public
offense, punishable by imprisonment in a county jail as a
felony for 16 months, 2 or 3 years, or as a misdemeanor for
not more than one year, by a fine not exceeding one $1,000, or
by both that imprisonment and fine. (Welf. & Inst. Code, §
8100 subd. (g).)
4)Provides that any person who knowingly supplies, sells, gives,
or allows possession or control of a firearm to any person who
is prohibited as a mentally disordered person shall be
punished by imprisonment in the county jail for two, three, or
four years. (Welf. & Inst. Code, § 8101 subd. (b).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The problem
with the existing law is that the CFIS database only contains
firearms records beginning in 1996, not 1991 as the statute
requires. On October 29, 2013, the Bureau of State Audits
identified this inconsistency regarding the reporting and
identification of persons with mental illness who are
prohibited from owning or possessing a firearm. The State
Auditor specifically directed the California Department of
Justice to obtain legislative clarification regarding whether
DOJ is required to cross-reference records going back to 1991
even though CFIS does not contain those records. AB 2300 will
allow DOJ to comply with the findings and recommendation of
the State Auditor."
2)Background : According to the background submitted by the
author, Assembly Bill 2300 would make a technical amendment to
the statute establishing the creation of the Prohibited Armed
Persons File online database. This amendment makes the
Department of Justice's obligations under that statute
consistent with information available via the Consolidated
Firearms Information System database.
Penal Code Section 30000(a) provides that the Attorney General
shall establish and maintain an online database to be known as
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the Prohibited Armed Persons File (APPS). The purpose of APPS
is to cross-reference persons who have ownership or possession
of a firearm on or after January 1, 1991, as indicated by a
record in the Consolidated Firearms Information System (CFIS),
and who, subsequent to the date of ownership or possession of
a firearm, fall within a class of persons who are prohibited
from owning or possessing a firearm.
3)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 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
six months, starting from the date the psychotherapist reports
to local law enforcement the identity of the person making the
threat. [Welf. & Inst. Code, § 8100 (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(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(b) (1) and
8103(f).]
DOJ developed 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.
(Penal Code Section 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
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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 may also 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.
According to DOJ, about 50% of the persons on APPS are
prohibited due to criminal history; about 30% due to mental
health status, and about 20% due to active restraining orders.
4)Overview of Current Law : California for many years has
required registration of handguns at point of transfer of
ownership. In addition, persons who move into the state with
handguns have to register the same and licensed collectors who
acquire guns outside the state have to register them as well.
There is also a voluntary system of firearms that has been in
code for over 20 years and is now reflected in Penal Code
Section 28000. The exact dates as to when these requirements
have applied to the following categories are subject to
question, but they appear to be as follows:
a) California residents who acquired a handgun from an
in-state source and the transfer took place in California
after September 30, 1953 by virtue of the enactment of then
Penal Code Section 12072 which was added by virtue of the
enactment of the Dangerous and Deadly Weapons Control Law.
In 1953, statutes went into effect at an earlier timer than
is the case today.
b) An individual, who acquired a handgun outside of state,
was not a California resident at the time of acquisition
and brought the guns here after January 1, 1998 as new
California residents.
c) An individual who acquired a handgun as a California
residents in mail order or other transactions from an
out-of-state after November 8, 1967. In 1967, AB 1324
(Biddle), Ch. 1282/1967 required anyone who was not state
licensed as a dealer who acquired a handgun from an
out-of-state source had to register the gun with DOJ. This
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was former Penal Code Section 12079 and it was repealed in
1988 as obsolete in a Department of Justice sponsored bill
on the basis federal law and subsequent legal developments
covered it.
d) Since October 22, 1968 anyone who acquires a firearm
from an out-of-state source after that date must have that
transaction brokered through an in-state federally licensed
[and in California state licensed as well] firearms dealer
with the transaction being subject to state requirements.
In California this would include the waiting period,
background checks, gun registration etc. That federal
requirement under various proposals would make that a
California state law requirement as well as is now the case
in Maryland and Oregon.
Because of confusion over dates and for other reasons, the
Department of Justice has taken the position that it will
accept for registration and place in the centralized registry
using the "voluntary system" codified in Section 28000 of the
Penal Code the ownership of a firearm where the person is not
within a prohibited status, the gun is not reported lost or
stolen, and the person is at least 18 years of age.
However, in the normal run-of-the mill transaction where
someone goes into a dealership, fills out paperwork, goes
through the waiting period-background check system, save in
very few situations, DOJ is not notified that a person who
applied to acquire a firearm and was cleared to take
possession of that firearm took possession of that firearm.
In most transactions, the process works so that the dealer
pre-registers the gun in the recipient's name. Only if the
gun is not picked up is DOJ to be notified. It is not
uncommon to have handguns to be pre-registered to multiple
persons or other registration issues that prevent guns from
otherwise being properly registered. This issue is magnified
by the huge spikes in DROS transactions and will be even more
problematical come January 1, 2014 when registration applies
to all gun transactions.
After the waiting period has expired and the background check
is completed, current law requires the dealer to record on
the DROS form the date and time of delivery of the firearm to
the gun recipient. They are also required to provide the
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recipient of the gun his DROS form if requested though the
timing is unclear - See SB 41 discussion below.
The DROS form prepared by the DOJ and used by licensed
dealers in California, as modified October 2003, does contain
at the top under "Transaction Information" a line for both
"Delivery Date" and "Time" of that delivery, which reflects
the changes made by SB 824 (Scott), Ch. 502/2003. Dealers
must keep that form and make it available for inspection by
law enforcement officials; however, there is some debate
about whether that information must be submitted to DOJ as a
matter of course.
Prior to SB 824 Legislative Counsel issued an opinion that
DOJ could require dealers to write the delivery date on DROS
register and also make other changes to the DROS form.
Dealers are also currently required to provide a copy of the
DROS form when the buyer takes possession of the firearm if
the buyer asks for it. Lastly, existing law allows persons
to check with DOJ to determine whether DOJ lists them as the
owner of any firearm. The language of Penal Code § 28000
also is opaque enough so that a person who receives a gun
from a dealer just to protect himself or herself can register
the gun in his or own name if the registration is not
properly done.
However, DOJ could not compel dealers to submit the
information on delivery to DOJ. DOJ could only enter that
information into its Automated Firearms System (AFS) if DOJ
obtains the delivery information by physically inspecting the
registry kept by dealers. Given this will also apply to
rifles and shotguns as well on January 1, 2014.
5)Argument in Support : According to the California Attorney
General, "Penal Code Section 30000(a) provides that the
Attorney General shall establish and maintain an online
database to be known as Prohibited Arms Persons File (APPS).
The purpose of APPS is to cross-reference persons who have
ownership or possession of a firearm on or after January 1,
1991, as indicated by the record in the consolidated Firearms
Information database (CFIS), and who, subsequent to the date
of that ownership or possession of a firearm fall within a
class of persons who are prohibited from having a firearm.
AB 2300
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"The problem with existing law is that the CFIS database only
contains firearms records beginning in 1996, and not 1991 as
the statute requires. On October 29, 2013, the Bureau of
State Audits brought this inconsistency to light regarding the
reporting and identification of persons with mental illnesses
who are prohibited from owning or possessing a firearm. The
State Auditor specifically directed the DOJ to obtain
legislative clarification regarding whether DOJ is required to
cross-reference records going back to 1991 even though CFIS
does not contain those records."
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorney General's Office
California State Sheriffs' Association
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744