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