BILL ANALYSIS                                                                                                                                                                                                    Ó







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

                                                                     2
                                                                     3
                                                                     0
          AB 2300 (Ridley-Thomas)                                    0
          As Amended April 1, 2014
          Hearing date:  June 10, 2014
          Penal Code
          JRD:mc

                                      FIREARMS: 

                            PROHIBITED ARMED PERSONS FILE  


                                       HISTORY

          Source:  California Department of Justice

          Prior Legislation: AB 950 (Brulte) - Chap. 944, Stats. of 2001

          Support: California State Sheriffs' Association; Los Angeles  
          District Attorney's Office

          Opposition:None known 

          Assembly Floor Vote:  Ayes  75 - Noes  0



                                         KEY ISSUE
           
          SHOULD THE ARMED PROHIBITED PERSONS FILE (APPS) BE REVISED TO  
          CONFORM STATUTORY LANGUAGE TO THE STATE'S TECHNOLOGICAL CAPACITY TO  
          CROSS-REFERENCE RECORDS BACK TO 1996? 






                                                                     (More)






                                                    AB 2300 (Ridley-Thomas)
                                                                     Page 2




                                       PURPOSE

          The purpose of this legislation is to correct a statutory  
          inconsistency by requiring that only firearm ownership records  
          that are in CFIS and date back to January 1, 1996, be  
          cross-referenced for APPS purposes.

           Existing law  requires that firearms dealers obtain certain  
          identifying information from firearms purchasers and forward  
          that information, via electronic transfer to Department of  
          Justice (DOJ) to perform a background check on the purchaser to  
          determine whether he or she is prohibited from possessing a  
          firearm.  (Penal Code § 28160-28220.)

           Existing law  requires that, upon receipt of the purchaser's  
          information, DOJ shall examine its records, as well as those  
          records that it is authorized to request from the State  
          Department of Mental Health pursuant to Section 8104 of the  
          Welfare and Institutions Code, in order to determine if the  
          purchaser is prohibited from purchasing a firearm.  (Penal  
          Code § 28220.)

           Existing law  requires firearms to be centrally registered at  
          time of transfer or sale by way of transfer forms centrally  
          compiled by the DOJ.  DOJ is required to keep a registry from  
          data sent to DOJ indicating who owns what firearm by make,  
          model, and serial number and the date thereof.  (Penal Code §§  
          11106(a) and (c).)

           Existing law  requires the Attorney General to establish and  
          maintain an online database to be known as APPS.  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  
          (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 owning or possessing a firearm.  The information  
          contained in APPS shall only be available to specified entities  




                                                                     (More)






                                                    AB 2300 (Ridley-Thomas)
                                                                     Page 3



          through the California Law Enforcement Telecommunications System,  
          for the purpose of determining if persons are armed and  
          prohibited from possessing firearms.  (Penal Code § 30000.)

           Existing law  provides that the Prohibited Armed Persons File  
          database shall function as follows:  

                     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 (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, DOJ shall determine if the  
                 subject has an entry in CFIS indicating possession or  
                 ownership of a firearm on or after January 1, 1991 or an  
                 assault weapon registration, or a .50 BMG rifle  
                 registration;

                     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 CFIS  
                 indicating ownership or possession of a firearm on or  
                 after January 1, 1991, or an assault weapon registration,  
                 or a .50 BMG rifle registration;

                     If the department determines that, pursuant to  
                 subdivision (a) or (b), the subject has an entry in the  
                 CFIS 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 APPS:

                    o           The subject's name;




                                                                     (More)






                                                    AB 2300 (Ridley-Thomas)
                                                                     Page 4



                    o           The subject's date of birth;
                    o           The subject's physical description;
                    o           Any other identifying information  
                      regarding the subject that is deemed necessary by  
                      the Attorney General;
                    o           The basis of the firearms possession  
                      prohibition; and, 
                    o           A description of all firearms owned or  
                      possessed by the subject, as reflected by the  
                      Consolidated Firearms Information System.  (Penal  
                      Code § 30000.) 
           
          This bill  would require DOJ to cross-reference, in APPS, 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.  

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          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  




                                                                     (More)






                                                    AB 2300 (Ridley-Thomas)
                                                                     Page 5



          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.  

          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,  




                                                                     (More)






                                                    AB 2300 (Ridley-Thomas)
                                                                     Page 6



          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  
          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,




                                                                     (More)






                                                    AB 2300 (Ridley-Thomas)
                                                                     Page 7



                 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: 

               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 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.














                                                                     (More)











          2.   State Audit

           On March 13, 2013, the Joint Legislative Audit Committee  
          approved a request for an audit of the California  
          Department of Justice's Armed Prohibited Persons Program.   
          (http://legaudit. assembly.ca.gov/  
          sites/legaudit.assembly.ca.gov/files/March%2013%20  
          Vote%20Tally.pdf.)  The focus of the audit was on "the  
          reporting and identification of persons with mental illness  
          who are prohibited from owning or possessing a firearm."   
          (Armed Persons with Mental Illness, California State  
          Auditor (2013) Report 2013-103.)  The audit revealed:
           
                In addition to our concerns over how Justice's staff  
               were making and documenting certain APPS  
               determinations, we noted a limitation in what the APPS  
               database is identifying-one that does not appear to be  
               fully consistent with state law.  As we discuss in  
               Chapter 1, during our testing at two of the three  
               courts we visited, Justice had not identified as armed  
               prohibited persons two individuals who are firearm  
               owners and who had mental health prohibiting events  
               recorded in the mental health database.  The assistant  
               bureau chief explained that these individuals were not  
               identified as armed prohibited persons because  
               Justice's review of firearm owners is limited to  
               firearm records from 1996 through the present.  He  
               noted that because both of these individuals acquired  
               their firearms in the 1980s, Justice would not have  
               reviewed their prohibition history when their  
               prohibiting event was reported.  Still, he said that  
               when individuals who obtained their firearm before  
               1996 and have prohibiting events come to Justice's  
               attention through other investigations, APPS unit  
               staff will identify the individual as an armed  
               prohibited person.  We confirmed that Justice  
               subsequently completed this process for the two  
               individuals we identified and brought to its  
               attention.




                                                                     (More)






                                                    AB 2300 (Ridley-Thomas)
                                                                     Page 9




               Although Justice is generally only reviewing firearm  
               records from 1996 through the present, the state law  
               that establishes the APPS database requires Justice to  
               identify armed prohibited persons in its Consolidated  
               Firearms Information System (CFIS) going back to  
               January 1991.  According to the assistant bureau  
               chief, because CFIS was not implemented until 1996,  
               CFIS does not contain firearm records going back to  
               1991.  However, Justice does have firearm records that  
               pre-date 1996, but it considers these records less  
               reliable for the purpose of identifying prohibited  
               persons and thus for conducting prohibition reviews.   
               The assistant bureau chief stated that records before  
               1996 are extremely unreliable.  He explained that  
               before 1996, Justice did not verify the firearm  
               purchaser's information against DMV database  
               information.  Further, the assistant bureau chief  
               stated that he believed all parties that were involved  
               in developing the state law understood that CFIS  
               records only went back to 1996.  However, such an  
               understanding is not currently displayed in the plain  
               language of state law. Therefore, Justice's effort to  
               implement the APPS database using only firearm 
               information from 1996 to the present appears  
               inconsistent with the requirement in state law to  
               review firearm records going back to 1991.  (Id. at  
               44.)

          Based on these findings, the audit report recommended, "[t]o  
          ensure that its implementation of reviews of armed prohibited  
          persons is consistent with state law, Justice should seek  
          legislative change to confirm whether its practice of reviewing  
          firearm records only back to 1996 is appropriate."  (Id. at 64.)

          3.   Effect of this Legislation

           Existing law requires DOJ to cross-reference, within APPS, all  
          firearm owner information entered in CFIS back to January 1,  











                                                    AB 2300 (Ridley-Thomas)
                                                                     Page 10



          1991.  According to DOJ, "[t]he problem with existing law is  
          that the CFIS database only contains firearms records beginning  
          in 1996, and not 1991 as the statute requires."  This  
          legislation is a technical fix that would require DOJ to review  
          ownership records that are in CFIS and date back to January 1,  
          1996.   
           

                                   ***************