BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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9
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SB 299 (DeSaulnier)
As Amended April 10, 2013
Hearing date: April 16, 2013
Penal Code
SM:dl
LOST AND STOLEN FIREARMS
HISTORY
Source: Los Angeles County Sheriff's Department
Prior Legislation: SB 1366 (DeSaulnier) - (2012) Vetoed
AB 334 (Levine) - 2007, amended into unrelated
bill
AB 86 (Levine) - Chapter 167, Statutes of 2006
SB 59 (Lowenthal) - 2006, Vetoed
AB 1203 (Lowenthal) - 2004, amended into
unrelated bill
AB 131 (Ortiz) - 1997, amended into unrelated bill
Support: California Chapters of the Brady Campaign to Prevent
Gun Violence; California Partnership to End Domestic
Violence; Global Exchange; Women Against Gun Violence;
Youth Alive! Law Center to Prevent Gun Violence; South
County Citizens Against Gun Violence; letters from
several individuals
Opposition:California Right to Carry; California Sportsman's
Lobby, Inc.; Outdoor Sportsman Coalition of California;
Safari Club International; California Association of
Federal Firearms Licensees; National Rifle Association
of America; California Rifle and Pistol Association
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Inc.; letters and phone calls from several individuals
KEY ISSUE
SHOULD THE THEFT OR LOSS OF A FIREARM BE REQUIRED TO BE
REPORTED, AS SPECIFIED?
PURPOSE
The purpose of this bill is to (1) require that owners and
possessors of firearms report the theft or loss of a firearm to
local law enforcement agency within 48 hours of the time they
knew or reasonably should have known that the firearm had been
stolen or lost, subject to infraction and misdemeanor penalties,
as specified; (2) require firearms dealers to post notice of
this requirement within their licensed premises, as specified;
and (3) provide that these reporting provisions do not preclude
or preempt a local ordinance that imposes additional penalties
or requirements in regard to reporting the theft or loss of a
firearm.
Existing law provides that persons licensed to make, import,
collect, or deal in firearms are required to report the loss or
theft of firearms they possess, to a law enforcement agency.
For example, Penal Code section 26885 requires licensed dealers
to report losses within 48 hours and Penal Code section 29115(a)
requires licensed firearms manufacturers - whether of handguns
or long guns - to report the loss or theft of firearms within 48
hours to specified law enforcement agencies.
Existing law provides that the sale, loan or transfer of
firearms in almost all cases must be processed by, or through, a
state licensed dealer or a local law enforcement agency with
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appropriate transfer forms being used. (Penal Code §§ 26500,
27545.) In those cases where dealer or law enforcement
processing is not required, a handgun change of title report
must still be sent to the Department of Justice (DOJ). (Penal
Code § 27920.)
Existing law provides that, on request, DOJ will register
transactions relating to handguns in the Automated Firearm
System Unit for persons who are exempt from dealer processing or
are otherwise exempt by statute from reporting processes.
(Penal Code § 28000.)
Existing law requires handguns to be centrally registered at
time of transfer or sale due to various transfer forms centrally
compiled by the DOJ. DOJ is required to keep a registry from
data sent to DOJ indicating who owns what handgun by make,
model, and serial number and the date thereof. (Penal Code §
11106(a) and (c).) After 2014, this registry will include data
on ownership of long guns, as well as handguns. (Chap. 745,
Stats. of 2011.) Law enforcement agencies must promptly report
to DOJ all reports they receive of lost, stolen, and found
property. (Penal Code §§ 11107, 11108.) DOJ must keep a
centralized and computerized list of all lost, stolen, and found
serialized property reported to it. (Penal Code § 11106(a).)
Existing law provides that in addition to the requirements of
Section 11108 that apply to a local law enforcement agency's
duty to report to the DOJ the recovery of a firearm, a police or
sheriff's department shall, and any other law enforcement agency
or agent may, report to the department in a manner determined by
the AG in consultation with the Bureau of Alcohol, Tobacco,
Firearms and Explosives all available information necessary to
identify and trace the history of all recovered firearms that
are illegally possessed, have been used in a crime, or are
suspected of having been used in a crime. In addition, any law
enforcement agency or agent may report to the Attorney General
pursuant to this section all information pertaining to any
firearm taken into custody, except where the firearm has been
voluntarily placed with the law enforcement agency for storage.
(Penal Code § 11108.3.)
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Existing law requires that a "personal handgun importer" - a
person in lawful possession of a handgun who moves to California
after January 1, 1998 - shall either report that ownership to
the Department of Justice within 60 days or shall otherwise
dispose of the handgun, as specified. (Penal Code §§ 17000(a),
27560.)
Existing law provides that if any weapon has been stolen and is
thereafter recovered from the thief or his or her transferee, or
is used in such a manner as to constitute a nuisance because it
was unlawfully carried or used without the prior knowledge of
its lawful owner that it would be so used, it shall be restored
to the lawful owner, as soon as its use as evidence has been
completed. The lawful owner must identify the weapon and
provide proof of ownership. (Penal Code § 18005(b).)
Existing law requires that any person seeking the return of a
firearm in the custody or control of a court or law enforcement
agency must submit specified information, including for handguns
the firearm's make, model, caliber, barrel length, handgun type,
country of origin, and serial number. If the firearm has been
reported lost or stolen to a law enforcement agency, as
specified, the agency shall notify the owner or person entitled
to possession of the firearm. The person seeking return of the
firearm shall be subject to a background check, as specified.
(Penal Code §§ 33850, 33855.)
Existing law excludes from the definition of "firearm,"
for a number of provisions of law, an unloaded "antique
firearm" and uses the federal definition of that term.
(Penal Code § 16170.)
Existing law requires licensed firearms dealers to post
specified warnings in a conspicuous place on their premises,
such as a warning about penalties for leaving a loaded firearm
where a child obtains it. (Penal Code § 26835.)
Existing law pertaining to the "criminal storage" of firearms -
both handguns and rifles and shotguns - makes it a crime to
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store firearms negligently and where a child (person under 18
years of age) gains access to the firearm(s), as specified.
(Penal Code §§ 25100, et seq.)
Existing law provides that every person is responsible, not only
for the result of his or her willful acts, but also for an
injury occasioned to another by his or her want of ordinary care
or skill in the management of his or her property or person,
except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself or herself. The
design, distribution, or marketing of firearms and ammunition is
not exempt from the duty to use ordinary care and skill that is
required by this section. (Civil Code § 1714.)
Existing law provides that civil liability for any injury to the
person or property of another proximately caused by the
discharge of a firearm by a minor under the age of 18 years
shall be imputed to a parent or guardian having custody and
control of the minor for all purposes of civil damages, and such
parent or guardian shall be jointly and severally liable with
such minor for any damages resulting from such act, if such
parent or guardian either permitted the minor to have the
firearm or left the firearm in a place accessible to the minor;
the liability imposed by this section is in addition to any
liability otherwise imposed by law. However, no person, or
group of persons collectively, shall incur liability under this
section in any amount exceeding $30,000 for injury to or death
of one person as a result of any one occurrence or, subject to
the limit as to one person, exceeding $60,000 for injury to or
death of all persons as a result of any one such occurrence.
(Civil Code § 1714.3.)
Existing law provides that no person shall make an application
to purchase more than one handgun within any 30-day period.
(Penal Code § 27535(a).) However, an exemption to that
restriction applies to the replacement of a handgun when the
person's handgun was lost or stolen, and the person reported
that firearm lost or stolen prior to the completion of the
application to purchase to any local law enforcement agency of
the city, county, or city and county in which the person
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resides. (Penal Code § 27535(b) (11).)
This bill would require that, beginning January 1, 2014, every
person must report the theft or loss of a firearm he or she owns
or possesses to a local law enforcement agency in the
jurisdiction in which the theft or loss occurred within 48 hours
of the time he or she knew or reasonably should have known that
the firearm had been stolen or lost.
This bill provides that, for purposes of this requirement, a
"firearm" includes the frame or receiver of the weapon.
This bill provides that, for purposes of this requirement, a
"firearm" does not include an unloaded antique firearm.
This bill would also require that every person who has reported
a firearm lost or stolen, as required above, shall notify the
local law enforcement agency in the jurisdiction in which the
theft or loss occurred within 48 hours if the firearm is
subsequently recovered by the person.
This bill provides that a violation of either of the above
provisions would be, for a first violation, an infraction
punishable by a fine not to exceed $100. A second violation
would be an infraction, punishable by a fine not exceeding
$1,000. A third or subsequent violation, would be a misdemeanor,
punishable by imprisonment in a county jail not exceeding six
months, or by a fine not exceeding $1,000, or by both that fine
and imprisonment.
This bill requires that every person reporting a lost or stolen
firearm shall report the make, model, and serial number of the
firearm, if known by the person.
This bill provides that, beginning January 1, 2014, no person
shall report to a local law enforcement agency that a firearm
has been lost or stolen, knowing the report to be false. A
violation of this section shall be a misdemeanor, punishable by
imprisonment in a county jail not exceeding six months, or by a
fine not exceeding $1,000, or by both that fine and
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imprisonment.
This bill would require firearms dealers to conspicuously post
within the licensed premises the following warnings in block
letters not less than one inch in height: "IF A FIREARM YOU OWN
OR POSSESS IS LOST OR STOLEN, YOU MUST REPORT THE LOSS OR THEFT
TO A LOCAL LAW ENFORCEMENT AGENCY WHERE THE LOSS OR THEFT
OCCURRED WITHIN 48 HOURS OF THE TIME YOU KNEW OR REASONABLY
SHOULD HAVE KNOWN THAT THE FIREARM HAD BEEN LOST OR STOLEN."
This bill provides that the lost or stolen firearm reporting
requirement shall not apply to:
Any law enforcement agency or peace officer acting
within the course and scope of his or her employment or
official duties, if he or she reports the loss or theft to
his or her employing agency.
Any United States Marshal or member of the Armed Forces
of the United States or the National Guard, while engaged
in his or her official duties.
Any federally licensed firearms dealer or manufacturer,
as specified, who reports the theft or loss in accordance
with specified federal law, or the successor thereto, and
the applicable regulations.
Any person whose firearm was lost or stolen prior to
January 1, 2014.
This bill would provide that its provisions would "not preclude
or preempt a local ordinance that imposes additional penalties
or requirements in regard to reporting the theft or loss of 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
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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 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 oppose 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.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
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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:
Currently, seven states, the District of Columbia, and
nine cities in California require firearm owners to
report to law enforcement when their firearms are lost
or stolen. The State of California does not.
Under current law, firearms dealers and manufacturers
must report any lost or stolen firearms within 48
hours, and local law enforcement must enter reports of
lost or stolen firearms into the state's Automated
Property System database. However, firearm owners
whose guns are lost or stolen are not required to do
anything. As a result, law enforcement efforts to
investigate gun crimes and disarm dangerous criminals
are significantly hindered.
The public overwhelmingly supports laws requiring the
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reporting of lost or stolen firearms. A nationwide
poll in 2011 found that 94% of Americans surveyed,
including 94% of gun owners, favor laws to require the
reporting of lost or stolen firearms.
SB 299 requires that, beginning January 1, 2014, every
person whose firearm is lost or stolen must notify
local law enforcement within 48 hours of the time the
person knew or reasonably should have known that the
firearm had been lost or stolen.
The reporting of lost or stolen firearms will bring
several critical improvements to public safety in
California.
1. Fight Gun Trafficking
When a crime gun is traced by law enforcement to the
last known purchaser, that person may falsely claim
that the gun was lost or stolen to hide his or her
involvement in the crime or in gun trafficking. A
reporting law would provide a tool for law enforcement
to detect firearms trafficking and prosecute "straw
purchasers," individuals who buy firearms on behalf of
criminals who are prohibited from possessing guns.
An analysis by Mayors Against Illegal Guns - a
nationwide coalition of over 600 mayors - found that
states without mandatory lost or stolen reporting laws
export two and a half times more crime guns across
state lines than jurisdictions with such laws.
Similarly, researchers from the Johns Hopkins Center
for Gun Policy and Research found that state laws
requiring the reporting of lost or stolen firearms
were associated with crime gun export rates that were
43 percent lower than in states that lacked this
policy.
2. Get Guns Away from Prohibited Persons
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Mandatory reporting of lost or stolen firearms would
enhance the California Department of Justice's efforts
to remove firearms from convicted criminals and others
identified in the state's Armed and Prohibited Persons
System (APPS) database. Currently, these individuals,
who own firearms but are prohibited from possessing
them, may falsely claim that their illegally-possessed
firearms were lost or stolen. Moreover, with a
reporting requirement, the APPS program will be more
efficient since law enforcement resources would not be
wasted on attempts to recover guns that have been
reported lost or stolen.
3. Notify Law Enforcement about Missing
Firearms
A reporting requirement would alert law enforcement to
the existence of guns stolen by criminals in their
communities. It would also make it easier for law
enforcement to return lost or stolen firearms to their
rightful owners. A 2007 report by the International
Association of Chiefs of Police recommended that state
and local governments mandate reporting of lost or
stolen firearms. The IACP report concluded that, "law
enforcement's early awareness of every lost and stolen
gun will enhance their ability to recover those guns
and reduce gun violence."
2. Does the Bill Violate the Fifth Amendment?
This bill raises the issue of whether it could violate the Fifth
Amendment right against self-incrimination to require a person
to report the loss or theft of a firearm that the person
obtained or possessed illegally. In Marchetti v. United States
(1968) 390 U.S. 39, the United States Supreme Court granted an
individual who was charged with failing to comply with a
gambling registration tax statute a defense from prosecution
based on the Fifth Amendment. In Marchetti, however, the
gambling statute was written in such a manner that the only
persons required to comply with the statute were those engaged
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in illegal gambling activities. As such, the statute was
designed to ferret out and cause the prosecution of illegal
gambling through an ostensible tax scheme.
This bill, by contrast, would require "Commencing January 1,
2014, every person shall report the theft or loss of a firearm
he or she owns or possesses to a local law enforcement agency in
the jurisdiction in which the theft or loss occurred within 48
hours of the time he or she knew or reasonably should have known
that the firearm had been stolen or lost." Both those in lawful
possession of the handgun and those not in lawful possession
would be required to make the report or be subject to an
infraction on the first offense and a misdemeanor for subsequent
offenses. The requirement also does not differentiate between
circumstances of the theft or loss, whether the weapon was
stolen while carried illegally, for example, versus whether the
weapon was lawfully stored at the person's residence.
Therefore, because the statute does not appear to be designed to
identify persons who are in illegal possession of a handgun
before it was lost or stolen, there would not appear to be any
Fifth Amendment defense to failure to comply.
3. Mandating Reporting of Lost and Stolen Firearms
In 2007, the International Association of Chiefs of Police held
a summit on gun violence. The report issued following that
summit states:
Nearly 30,000 American lives are lost to gun violence
each year-a number far higher than in any other
developed country. Two to three times that many
suffer non-fatal injuries. Since 1963, more Americans
died by gunfire than perished in combat in the whole
of the 20th century (statistics cited in Private Guns,
Public Health, University of Michigan Press, 2004).
And the overall impact goes much farther. Gun
violence reaches across borders and jurisdictions and
compromises the safety of everyone along the way.
(International Association of Chiefs of Police, Taking
a Stand: Reducing Gun Violence in Our Communities
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(Sept. 2007), at page 8.
http://www.theiacp.org/LinkClick.aspx?fileticket=%2Fs0L
iOkJK5Q%3D&tabid=87 .)
The report discusses the causes of gun violence and makes
several specific recommendations. Many of the recommendations
are already state law in California such as a ban on
military-style assault weapons, mandating safe storage and
trigger-lock devices, and requiring all firearms transfers to
take place through a licensed dealer. One recommendation
contained in the report that is not currently required under
state law in California is the reporting of all lost and stolen
firearms. The report states:
State and local governments should mandate the
reporting of lost and stolen firearms, and federal law
in this area should be tightened.
The federal government has already taken steps to
protect citizens against the criminal misuse of lost
and stolen guns. As of 1994, federal law requires
FFLs to report their lost and stolen guns to ATF and
local law enforcement within 48 hours of discovering
that the gun is missing. This law should be
strengthened to ensure that dealers keep track of
their inventories by requiring them to report missing
firearms within 48 hours after they know or should
know that the gun is missing.
As a result of current federal policy, and in
particular the work of ATF's Stolen Firearms Program
at the National Tracing Center, many stolen guns have
been recovered and instances of gun violence averted.
Every state and local government should mandate that
gun owners report lost and stolen guns. Stolen guns
represent a major risk to the community at large,
because they have, by definition, entered criminal
hands. Ensuring law enforcement's early awareness of
every lost and stolen gun will enhance their ability
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to recover those guns and reduce gun violence. (Id at
page 22.)
Mayors Against Illegal Guns is group of over 600 mayors from
across the country. In September 2010, the group published a
report on the connection between gun laws and illegal interstate
gun trafficking. Two findings detailed in the report were that
states that do not require gun owners to report lost or stolen
guns to police export crime guns at a rate more than two and a
half times greater than states that require such reporting and
such states are also the source of a greater proportion of short
"time to crime" guns.<1>
Lost or stolen guns account for a large share of
firearms trafficking. Over 150,000 firearms were
reported lost or stolen in 2008. Eighty-five percent
of these guns were never recovered, and tens of
thousands more were likely never even reported.
Reporting lost or stolen guns to local law enforcement
fights illegal gun trafficking in two ways. First, it
enables police to respond more rapidly to a report
that a gun was stolen and possibly return it to its
owner or track down the thieves. Second, if a
trafficker or straw buyer is identified through gun
tracing and confronted by police, such a requirement
prevents them from evading responsibility by claiming
that the crime gun was stolen from them. Federal law
requires FFLs [federally licensed dealers,
manufacturers or collectors] to report lost or stolen
guns, but this requirement does not apply to other gun
owners. Currently, seven states and the District of
Columbia require gun owners to report lost or stolen
guns to local law enforcement.
These states have an average export rate of 6.2 guns
per 100,000 inhabitants. In comparison, the 43 states
that do not require such reporting have a crime gun
export rate of 16.1 guns per 100,000 inhabitants,
----------------------
<1> Time-to-Crime ("TTC") measures the time between a gun's
initial retail sale and its recovery in a crime.
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which is more than two and a half times greater than
the rate of states that do.
Furthermore, the states that do not require gun owners
to report lost or stolen guns are also the source of a
greater proportion of short TTC guns - 23.1% of guns
originating from these states have a short TTC, while
only 17.8% of guns originating from states that
require gun owners to report lost or stolen guns have
a short TTC. (Trace the Guns - The Link Between Gun
Laws and Interstate Gun Trafficking, A Report from
Mayors Against Illegal Guns, September 2010, page
22-23.
http://www.mayorsagainstillegalguns.org/downloads/pdf/t
race_the_guns_report.pdf.)
4. The Armed Prohibited Persons File
Current California law requires the Attorney General to maintain
an online database known as the Prohibited Armed Persons File.
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. However, this
system relies on the accuracy of firearms ownership records.
Because there is no requirement for firearms owners to report
lost or stolen firearms, these records are necessarily
incomplete and this makes enforcement of firearms prohibitions
difficult. When police contact a prohibited person who is on
record as the owner of a firearm, that person can simply assert
that the firearm was either lost or stolen and they are under no
obligation to produce any evidence to support that claim. One
effect of this bill would be to allow police to cite individuals
in this situation who claim their firearms were lost or stolen
but have not reported that loss. The penalty for the first
offense would be a fine of up to $100. A second offense would
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carry a fine of up to $1,000, and any subsequent offenses would
be punishable as a misdemeanor, with a possible jail sentence of
up to six months, a fine of up to $1,000, or both.
5. Potential for Inadvertent Violation
Under the reporting requirement established in this bill, a
violation of this law would occur by way of an omission or
failure to act. As such, this could be a very easy statute to
violate inadvertently. For example, a person might inherit a
firearm, put it in a box in the attic and forget about it.
Later, the person's house is burglarized and the person doesn't
think to look in the box in the attic where the gun was kept to
see if it is still there. If it turns out the gun was stolen in
the burglary, the person could be in violation of this law
because they failed to report the theft of the gun. The bill
requires gun owners to report any firearm that they knew or
reasonably should have known was lost or stolen within 48 hours
of the loss. In the above scenario, a court might well conclude
that the gun owner should have checked to see if the gun was
stolen after the burglary, that the failure to do so was
unreasonable, and therefore the failure to report the loss
resulted in a violation of this statute.
Imposing this reporting requirement involves something of a
paradigm shift in attitudes about firearm ownership. Simply
put, this bill requires firearms owners to be aware of the
whereabouts of their firearms at all times. While most firearms
owners are undoubtedly law abiding citizens, it is not clear
what percentage of them would report a lost or stolen gun
currently. Making it a requirement to do so imposes a
significant new responsibility on gun owners.
6. Argument in Support
The California Chapters of the Brady Campaign to Prevent Gun
Violence states:
Senate Bill 299 seeks to curb illegal gun trafficking
and keep firearms out of the hands of people
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prohibited by law from purchasing or possessing
firearms because they are considered at risk of gun
violence. A requirement to report lost or stolen
firearms would provide a tool for the identification
and prosecution of "straw purchasers" or individuals
who buy firearms to illegally resell to persons who
cannot pass a background check (such as criminals,
gang members, or minors). When crime guns are traced
to "straw purchasers", they falsely claim - after the
fact - that the firearm was lost or stolen. A
reporting requirement would give law enforcement an
investigative tool and make it more difficult for gun
traffickers to shield their criminal activity and
continue to divert guns into the illegal market.
Studies show that lost or stolen firearm reporting
requirements reduce crime gun export rates.
Furthermore, SB 299 would improve the implementation
of the state's Armed and Prohibited Persons System
(APPS) program, in which the California Department of
Justice and local law enforcement agencies work to
proactively disarm prohibited individuals before they
harm themselves or others. APPS cross-checks state
databases to find people who legally purchased a
firearm and subsequently became prohibited by law from
possessing firearms because of falling into a
prohibited class. Improved accuracy of the data used
by APPS would enable law enforcement to target their
efforts and avoid spending time and resources to
recover firearms from prohibited possessors whose gun
were previously reported lost or stolen.
Additionally, when law enforcement attempts to recover
illegal firearms through APPS, the prohibited person
may falsely claim that the gun was lost or stolen.
Law enforcement cannot verify this claim without a
reporting requirement. SB 299 would improve the
accuracy of the data in APPS and increase the
efficiency of the APPS program.
Finally, SB 299 would provide law enforcement with
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timely information regarding stolen guns in their
jurisdiction - guns that may be in dangerous hands and
a threat to communities. Early knowledge by law
enforcement of a stolen firearm facilitates the
recovery of the firearm before it is used in crime and
reduces gun violence.
7. Argument in Opposition
The Safari Club International states:
Reporting the loss or theft of a firearm should remain
voluntary. Most responsible people would report the
loss or theft of a firearm for reasons of insurance
and a concern for public safety. Irresponsible people
probably would not, regardless of the law.
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SCI members are hunters. Mandatory reporting within 48
hours of a firearm loss or theft is impractical for
many hunters as they are often hunting or traveling in
remote locations where it is difficult, if not
impossible, to be readily in contact with law
enforcement and where there is no cell phone service.
Often, they are out of the state or out of the
country.
The possibility of criminal penalties for failing to
report within the prescribed time limit is considered
excessive.
Furthermore, the potential for civil or criminal
penalties and a lack of immunity from civil liability
would result in a disincentive to file a report once
the proposed 48 hour time limit has passed. This would
be particularly true if a firearm has been lawfully
owned for a long time and there is no registration of
it on file.
The "reasonably should have known" standard is too
vague. The standard should be such that it can be
absolutely established that the person did in fact
"know" of the loss or theft of a firearm and chose not
to report it. If the bill were to proceed, the
absolute standard is the best option as it is the most
fair and leave no room for subjectivity in its
application.
Hunters will typically place their firearms in the
location where they are stored at home after the
hunting season is over and not remove them again until
the next hunting season the following year. They would
not know if a firearm was stolen, perhaps for months.
It's also very possible that a firearm could be stolen
and the owner would not be aware of it if the firearm
was part of a collection not often looked at or used.
(More)
SB 299 (DeSaulnier)
PageT
Hunters often lawfully travel with firearms in their
vehicles and stay in motels, campers or campsites. Out
of necessity, they cannot always be at these places to
constantly watch over their firearms and other
property.
If a firearm is stolen under one of these
circumstances, how would the reasonably should have
standard be interpreted and applied? It is felt to be
too vague to be applied uniformly and fairly. The fact
that it may be defined in other law provides no
comfort relative to its application in the case of a
lost or stolen firearm.
For the above reasons, the California Chapters of
Safari Club International are opposed to the enactment
of SB 299. If the bill were to be amended to provide a
more workable reporting time limit, an absolute
knowing standard for purposes of its provisions, and
immunity from civil liability, SCI would remove its
opposition.
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