BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
3
8
SB 38 (De León)
As Amended April 11, 2013
Hearing date: April 30, 2013
Penal Code
SM
FIREARMS PROHIBITION: AMNESTY PERIOD
HISTORY
Source: Author
Prior Legislation: SB 755 (Wolk) - pending in Senate
Appropriations Committee
SB 819 (Leno) - Chap. 743, Statutes of 2011
AB 302 (Beall) - Chap. 344, Statutes of 2010
AB 161 (Steinberg) - Chap. 754, Statutes of 2003
AB 950 (Brulte) - Chap. 944, Statutes of 2001
Support: Taxpayers for Improving Public Safety
Opposition:None known
KEY ISSUES
SHOULD A 15-DAY AMNESTY PERIOD BE ESTABLISHED ON DATES TO BE
DETERMINED BY THE DEPARTMENT OF JUSTICE BUT NOT LATER THAN JULY
1, 2014, WITHIN WHICH PERSONS PROHIBITED FROM FIREARM OWNERSHIP
COULD TURN IN ANY FIREARMS THEY POSSESS TO LOCAL LAW ENFORCEMENT
AGENCIES WITHOUT BEING SUBJECT TO CRIMINAL PROSECUTION FOR THAT
POSSESSION?
(More)
SB 38 (De León)
Page 2
(CONTINUED)
SHOULD A CIVIL FINE BE IMPOSED OF UP TO $2,500 FOR EACH FIREARM
POSSESSED BY SUCH PERSONS AFTER THE AMNESTY PERIOD ENDS, IN ADDITION
TO ANY CRIMINAL PENALTIES?
SHOULD LOCAL LAW ENFORCEMENT AGENCIES RECEIVING ANY FIREARMS UNDER
THIS AMNESTY PROGRAM BE REQUIRED TO REPORT SPECIFIED INFORMATION TO
THE DEPARTMENT OF JUSTICE REGARDING THE FIREARMS AND THE PERSON
SURRENDERING THEM?
SHOULD THE DEPARTMENT OF JUSTICE BE REQUIRED TO RECORD IN THE
PROHIBITED ARMS PERSONS FILE THE FACT THAT SPECIFIED FIREARMS WERE
TURNED IN TO LAW ENFORCEMENT?
PURPOSE
The purpose of this bill is to (1) establish a 15-day amnesty
period on dates to be determined by the Department of Justice
(DOJ) but not later than July 1, 2014, within which persons
prohibited from firearm ownership could turn in any firearms
they possess to local law enforcement agencies without being
subject to criminal prosecution for that possession; (2) impose
a civil fine of up to $2,500 for each firearm possessed by such
persons after the amnesty period ends, in addition to any
criminal penalties; (3) require local law enforcement agencies
receiving any firearms under this amnesty program to report
specified information to DOJ regarding the firearms and the
person surrendering them; and (4) require DOJ to record in the
Prohibited Arms Persons File the fact that specified firearms
were turned in to law enforcement.
Persons Prohibited From Firearms Ownership
(More)
SB 38 (De León)
Page 3
Current federal law provides that it is unlawful for any person
to sell or otherwise dispose of any firearm or ammunition to any
person knowing or having reasonable cause to believe that such
person -
is under indictment for, or has been convicted in any
court of, a crime punishable by imprisonment for a term
exceeding one year;
is a fugitive from justice;
is an unlawful user of or addicted to any controlled
substance, as defined;
has been adjudicated as a mental defective or has been
committed to any mental institution;
who, being an alien -
o is illegally or unlawfully in the United
States; or
o except as specified, has been admitted to the
United States under a nonimmigrant visa, as defined;
[who] has been discharged from the Armed Forces under
dishonorable conditions;
who, having been a citizen of the United States, has
renounced his citizenship;
is subject to a court order that restrains such person
from harassing, stalking, or threatening an intimate
partner of such person or child of such intimate partner or
person, or engaging in other conduct that would place an
intimate partner in reasonable fear of bodily injury to the
partner or child, except that this paragraph shall only
apply to a court order that -
o was issued after a hearing of which such
person received actual notice, and at which such
person had the opportunity to participate; and
includes a finding that such person
represents a credible threat to the physical
safety of such intimate partner or child; or
by its terms explicitly prohibits
the use, attempted use, or threatened use of
physical force against such intimate partner or
child that would reasonably be expected to cause
bodily injury; or
(More)
SB 38 (De León)
Page 4
has been convicted in any court of a misdemeanor crime
of domestic violence. (18 United States Code § 922(d).)
Current California law provides that certain people are
prohibited from owning or possessing a firearm. This includes
(not an exhaustive list):
Lifetime ban
Anyone convicted of a felony.
Anyone addicted to a narcotic drug.
Any juvenile convicted of a violent crime with a gun and
tried in adult court.
Any person convicted of a federal crime that would be a
felony in California and sentenced to more than 30 days in
prison, or a fine of more than $1,000. (Penal Code §
29800(a).)
Anyone convicted of certain violent misdemeanors, e.g.,
assault with a firearm; inflicting corporal injury on a
spouse or significant other, brandishing a firearm in the
presence of a police officer (Penal Code §§ 29800/23515;
29805; 18 U.S.C. § 921(a)(33)(A)/18 U.S.C. § 922(g)(9).)
10-Year Ban
Anyone convicted of numerous misdemeanors involving violence or
threats of violence. (Penal Code § 29805.)
5-Year Ban
Anyone convicted of specified misdemeanors.
Any person taken into custody, assessed, and admitted to
a designated facility due to that person being found to be
a danger to themselves or others as a result of a mental
disorder, is prohibited from possessing a firearm during
treatment and for five years from the date of their
discharge. (Welfare and Institutions Code §§ 8100,
8103(f).)
(More)
SB 38 (De León)
Page 5
Temporary Bans
Persons who are bound by a temporary restraining order or
injunction or a protective order issued under the Family Code or
the Welfare and Institutions Code may be prohibited from
firearms ownership for the duration of that court order. (Penal
Code § 29825.)
Current law provides that no person, corporation, or dealer
shall sell, supply, deliver, or give possession or control of a
firearm to anyone whom the person, corporation, or dealer knows
or has cause to believe is prohibited from possessing a firearm,
as specified. Violation is generally a misdemeanor, punishable
by up to six months in county jail, a fine of up to $1,000 or
both. However, violations may be punishable as a felony, with
varying prison terms, where a variety of aggravating
circumstances are present. (Penal Code §§ 27500, 27590.)
Armed Prohibited Persons File
Current law provides 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. (Penal Code § 30000, et seq.)
This bill would provide that in order to reduce the number of
firearms possessed by prohibited persons listed in the
Prohibited Armed Persons File, a 15-day amnesty period shall be
established commencing on a date to be determined by the
Department of Justice, but not later than July 1, 2014, during
which a person prohibited from possessing a firearm may
surrender his or her firearms to a local law enforcement agency
without being charged with illegal possession of firearms, as
specified. No person convicted of a felony shall be permitted
(More)
SB 38 (De León)
Page 6
to participate in the amnesty period.
This bill further provides:
For each instance in which a local law enforcement
agency receives a firearm from a prohibited person during
the amnesty period described above, the agency shall submit
to the department the following information:
o The name of the prohibited person who
surrendered the firearm.
o The person's date of birth.
o A description of the firearm or firearms
surrendered.
o The serial number of the firearm or firearms
surrendered.
o Any other information deemed necessary by the
department.
The department shall enter this information in the
Prohibited Armed Persons File to create a record of each
firearm surrendered during the amnesty period.
A prohibited person who surrenders a firearm as part of
this amnesty program shall not be charged with illegal
possession of firearms for any firearm the department has
on record as having been surrendered.
At the expiration of the 15-day amnesty period, a person
prohibited from possessing a firearm who still maintains
possession of his or her firearms shall be subject to a
civil fine of up to $2,500 per firearm in addition to
criminal penalties authorized by law.
The department may conduct a public awareness campaign
in conjunction with local law enforcement to promote the
amnesty period described in this section and to educate
prohibited persons on how to surrender firearms to law
enforcement in a safe and secure manner.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
(More)
SB 38 (De León)
Page 7
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 which 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. ROCA necessitated many hard and
difficult decisions for the Committee.
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 issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part 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, who opposed the state's motion, argue in
part 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 % prisoner population cap by December 31st of this year.
(More)
SB 38 (De León)
Page 8
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered 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."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
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 This Bill
According to the author:
Senate Bill 38 would give persons who are armed and
prohibited from possessing firearms a brief amnesty
where they can voluntarily surrender their guns before
(More)
SB 38 (De León)
Page 9
the Attorney General executes orders to confiscate
them. Failure to voluntarily surrender illegally
possessed weapons within this window would carry a
$2,500 civil fine for each firearm, in addition to
existing criminal penalties for the illegal possession
of firearms.
In 2007 the Armed Prohibited Persons System (APPS) was
established as an automated system to allow the
California Department of Justice (DOJ) to track
handgun and assault weapon owners who are convicted of
felonies, deemed mentally unstable, or guilty of
crimes that prevent them from legally possessing guns.
APPS cross-references all handgun and assault weapon
owners across the state against criminal history
records to identify persons who are prohibited from
possessing a firearm subsequent to the legal
acquisition.
Each month, hundreds of individuals are added to the
APPS list when they fall into a prohibited status.
Although the DOJ seizes thousands of firearms each
year, it currently does not have the capacity to keep
up with the growth of the list. There are close to
20,000 individuals prohibited from possessing firearms
on the APPS list who are linked to almost 39,000
handguns and 1,700 assault weapons. The illegal
possession of these firearms presents a substantial
danger to public safety and every effort must be taken
to collect these guns in the immediate future.
(More)
To reduce the APPS backlog, Senator Mark Leno and
Senate Pro Tem Darrell Steinberg have introduced SB
140 to provide the DOJ with additional resources to
accelerate the identification and confiscation of
handguns and assault weapons owned by prohibited
persons. That measure will enable the DOJ to hire new
agents and will expedite the confiscation of firearms
from prohibited persons.
An amnesty window will further such efforts to get
guns out of the wrong hands by encouraging prohibited
persons to voluntary surrender illegally possessed
weapons without fear of prosecution. Similar programs
have proved successful at the local level. Police
departments across the country have taken the
initiative to organize gun buy-back programs that have
helped decreased the number of guns on the streets.
In the City of Los Angeles, in one day alone, 75
assault weapons, 698 rifles, 363 shotguns, 901
handguns, and two rocket launchers were submitted to
the Los Angeles Police Department.
Through a Gun Amnesty Program, non-felonious
prohibited persons will have an opportunity to safely
surrender their firearms to law enforcement within a
fifteen day period. These individuals will not be
charged for the illegal possession of firearms if they
submit all of their illegally possessed guns.
Nevertheless, the amnesty program will not eliminate
liability for any other illegal action committed by
prohibited individuals. Anyone who fails to turn in
his or her weapons during the fifteen day amnesty
window will have to pay a civil fine for each firearm
and will be subject to criminal charges for the
illegal possession of firearms.
By creating a strong incentive for the submission of
illegally possessed firearms, this measure will reduce
the backlog on the APPS list. As a result, DOJ will
be able to concentrate resources on the most dangerous
(More)
SB 38 (De León)
Page 11
criminals.
2. Effect of This Bill
Current California law requires the Attorney General to maintain
an online database known as the Prohibited Armed Persons File
(known as the APPS list). The purpose of the file is to
cross-reference persons who are on record as the owner of a
firearm and who, subsequent to the date of taking possession of
that firearm, fall within a class of persons who are prohibited
from owning or possessing a firearm. (Penal Code § 30000.)
This data base allows police to identify and retrieve firearms
from people who may be mentally unstable or under an injunction
due to allegations of domestic violence, or have been convicted
of a crime of violence.
This bill would provide that at a time determined by DOJ, but
not after July 1, 2014, there would be a 15-day period in which
any person who has become prohibited from owning firearms for
some reason other than a felony conviction could turn in any
firearms they possess to a local law enforcement agency and they
would then be immune from criminal prosecution for that
possession. After that amnesty period the bill would impose an
additional civil fine of up to $2,500 per firearm, on top of any
criminal liability for any prohibited person found in possession
of a firearm.
The bill provides that participating in the amnesty program
would not result in the prohibited person being taken off the
APPS list. Instead, the local law enforcement agency receiving
the weapon would be required to record the following data and
report it to DOJ; and DOJ would be required to record that
information in the APPS file:
o The name of the prohibited person who
surrendered the firearm.
o The person's date of birth.
o A description of the firearm or firearms
surrendered.
SB 38 (De León)
Page 12
o The serial number of the firearm or firearms
surrendered.
o Any other information deemed necessary by the
department.
According to DOJ, there are currently approximately 20,000
people on the APPS list. Because, prior to January 1, 2014,
only transfer records pertaining to handguns and assault weapons
are maintained by DOJ, the firearms ownership records of these
20,000 people reflect only handguns and/or assault weapons they
legally acquired prior to becoming prohibited. The APPS list
does not reflect other rifles or shotguns these people may
possess so a person who appears on the APPS list due to having
once purchased a handgun may still illegally possess both that
handgun and additionally a long gun, or perhaps several long
guns. DOJ has informed Committee staff that when DOJ Agents
contact people on the APPS list to determine whether they
possess any firearms, they frequently retrieve long guns that
they had no record of the person possessing.
One possibility this bill creates is that a prohibited person
could participate in the amnesty program by turning in the
handgun that DOJ records reflect them having once legally
acquired, but keep possession of any long guns that DOJ, at
present, has no record of that person possessing because, prior
to January 1, 2014, DOJ has been forbidden to keep records of
long gun transfers. Because of this possibility, this amnesty
will not allow DOJ to "clear" any names off the APPS list. The
bill would simply state that DOJ would note that any person who
has taken part in the program has turned in certain specific
firearms. There would be no way to determine what other
firearms they may still possess.
***************
SB 38 (De León)
Page 13