BILL ANALYSIS                                                                                                                                                                                                    Ó







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

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          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?




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          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
          




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           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




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                 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).)





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          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  




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          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  




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          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.  




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          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  




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               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.













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               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  




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               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.











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                  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.


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