BILL ANALYSIS Ó
SB 38
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Date of Hearing: July 2, 2013
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 38 (De Leon) - As Amended: June 27, 2013
As Proposed to be Amended in Committee
SUMMARY : Requires the Department of Justice (DOJ) to establish
a 30-day amnesty period, commencing not later than July 1, 2015,
during which a person prohibited from possessing a firearm may
surrender any firearm they possess to a local law enforcement
agency without being subject to criminal prosecution for that
possession. Specifically, this bill :
1)Provides that in order to reduce the number of firearms
possessed by prohibited persons listed in the Prohibited Armed
Persons File (APPS), a 15-day amnesty period shall be
established, commencing on a date to be determined by the DOJ
but not later than July 1, 2015, during which a person
prohibited from possessing a firearm may surrender his or her
firearm to a local law enforcement agency without being
charged with illegal possession of a firearm, as specified.
No person convicted of a felony shall be permitted to
participate in the amnesty program.
2)Requires the DOJ to provide written notification of the
amnesty period to all prohibited persons eligible to
participate in the amnesty period by first-class mail no later
than 60 calendar days prior to the commencement of the amnesty
period. The notification shall specify the firearms possessed
by the prohibited person and provide instructions for the
surrender of the illegal firearms.
3)States that for each firearm received by a local law
enforcement agency from a prohibited person during the amnesty
period, the agency shall submit to the DOJ the following
information:
a) The name of the prohibited person that surrendered the
firearm.
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b) The person's date of birth.
c) A description of the firearm or firearms surrendered.
d) The serial number of the firearm or firearms
surrendered; and,
e) Any other information deemed necessary by the DOJ.
4)Requires the DOJ to enter the firearm information received
from local law enforcement in the APPS to create a record of
each firearm surrendered during the amnesty period.
5)Provides that a prohibited person who surrenders a firearm, as
specified, shall not be charged with illegal possession of
firearms for any firearm the DOJ has on record as having been
surrendered as part of the amnesty program.
6)Provides that at the end of the 30-day amnesty period, a
person that is prohibited from possessing a firearm and
eligible to participate in the amnesty period, who still
maintains possession of his or her firearm shall be subject to
a civil fine of up to $2,500 per firearm in addition to
criminal penalties specified in other provisions of law.
7)States that a prohibited person shall not be charged with
illegal possession of a firearm or subject to a civil fine if
her or she provides evidence satisfactory to the DOJ that he
or she lawfully surrendered his or her firearm prior to the
commencement of the amnesty period.
8)Requires that any firearm surrendered to a local law
enforcement pursuant to this program shall be destroyed, as
specified.
9)Exempts the surrender of a firearm to a local law enforcement
agency from the prohibition against transferring a firearm
except through a licensed firearms dealer.
EXISTING LAW :
1)Provides that the Attorney General (AG) shall establish and
maintain an online database to be known as the APPS. The
purpose of the file is to cross-reference persons who have
ownership or possession of a firearm on or after January 1,
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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 Section 30000, et seq.)
2)Punishes as a felony any person who has been convicted of a
felony or another specified offense under the laws of the
United States, this state, or any other state, government, or
country or who is addicted to the use of any narcotic drug,
and who owns, purchases, receives, or has in his or her
possession or under custody or control any firearm. (Penal
Code Section 29800.)
3)Makes it an alternate felony/misdemeanor for any person who
has been convicted of a specified misdemeanor and who, within
10 years of the conviction, owns, purchases, receives, or has
in his or her possession or under custody or control of any
firearm. (Penal Code Section 29805.)
4)Requires the court, at the time judgment is imposed, for any
person who is prohibited from owning, purchasing, receiving,
possessing, or having custody or control of, any firearm to
provide on a form supplied by DOJ, a notice to the person
informing him or her of the prohibition regarding firearms and
include a form to facilitate the transfer of firearms. [Penal
Code Section 29810(a).]
5)Punishes by imprisonment in a county jail not exceeding one
year or in the state prison, by a fine not exceeding $1,000,
or by both a person who purchases or receives, or attempts to
purchase or receive, a firearm knowing that the person is
prohibited from doing so by a temporary restraining order,
injunction, or protective order, as specified. [Penal Code
Section 29825(a).]
6)Punishes by imprisonment in a county jail not exceeding one
year, by a fine not exceeding $1,000, or by both a person who
owns or possesses a firearm knowing that he or she is
prohibited from doing so by a temporary restraining order,
injunction, or protective order, as specified. [Penal Code
Section 29825(b).]
7)Prohibits a person from having in his or her possession or
under his or her custody or control, or purchasing or
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receiving, or attempting to purchase or receive, any firearms
whatsoever or any other deadly weapon, if on or after January
1, 1992, he or she has been admitted to a facility and is
receiving inpatient treatment and, in the opinion of the
attending health professional who is primarily responsible for
the patient's treatment of a mental disorder, is a danger to
self or others, as specified, even though the patient has
consented to that treatment. A person is not subject to this
subdivision once he or she is discharged from the facility.
[Welfare and Institutions Code (WIC) Section 8100(a).]
8)States that a person shall not have in his or her possession
or under his or her custody or control, or purchase or
receive, or attempt to purchase or receive, any firearms
whatsoever or any other deadly weapon for a period of six
months whenever, on or after January 1, 1992, he or she
communicates to a licensed psychotherapist, as defined, of a
serious threat of physical violence against a reasonably
identifiable victim or victims. The six-month period shall
commence from the date that the licensed psychotherapist
reports to the local law enforcement agency the identity of
the person making the communication. The prohibition provided
for in this subdivision shall not apply unless the licensed
psychotherapist notifies a local law enforcement agency of the
threat by that person. The person, however, may own, possess,
have custody or control over, or receive or purchase any
firearm if a superior court, upon petition of the person, has
found, by a preponderance of the evidence, that the person is
likely to use firearms or other deadly weapons in a safe and
lawful manner. [WIC Section 8100(b)(1).]
9)Requires the DOJ, upon receiving a report from the local law
enforcement agency of the identity of a person described in
the section above, to notify by certified mail a person
subject to this prohibition, of the following [WIC Section
8100(b)(2)]:
a) That he or she is prohibited from possessing, having
custody or control over, receiving, or purchasing any
firearm or other deadly weapon for a period of six months
commencing from the date that the licensed psychotherapist
reports to the local law enforcement agency the identity of
the person making the communication. The notice shall state
the date when the prohibition commences and ends; and,
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b) That he or she may petition a court, as provided in this
subdivision, for an order permitting the person to own,
possess, control, receive, or purchase a firearm.
10)States a violation of these prohibitions against possessing a
firearm or deadly weapon shall be a public offense, punishable
by imprisonment in a county jail as a felony for 16 months, 2
or 3 years, or as a misdemeanor for not more than one year, by
a fine not exceeding one $1,000, or by both that imprisonment
and fine. [WIC Section 8100(g).]
11)Provides that any person who knowingly supplies, sells,
gives, or allows possession or control of a firearm to any
person who is prohibited as a mentally disordered person shall
be punished by imprisonment in the county jail for two, three,
or four years. [WIC Section 8101(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In an effort to
reduce the Armed Prohibited Persons System backlog, SB 140
(Leno & Steinberg) was signed by the Governor this year to
provide the DOJ with additional resources to accelerate the
identification and confiscation of handguns and assault
weapons possessed by criminals. 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.
"An amnesty window will further current efforts to get guns out
of the hands of criminals by encouraging those on the APPS
list to voluntary surrender illegally possessed weapons
without fear of prosecution. 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 the Attorney General executes orders to confiscate
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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.
"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 criminals."
REGISTERED SUPPORT / OPPOSITION :
Support
California Chapter of the American College of Emergency
Physicians
Los Angeles County Sheriff's Department
Taxpayers for Improving Public Safety
Opposition
Gun Owners of California
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
SB 38
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319-3744