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. ***************