BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 385 (Block)
As Amended April 2, 2013
Hearing date: April 30, 2013
Penal Code
SM:jr
Firearms: Security Guards
HISTORY
Source: California Association of Licensed Security Agencies,
Guards & Associates
Prior Legislation: AB 811 (Hall) (2011-2012 Session) - died in
Assembly Public Safety
AB 1312 (Maldonado) (2010) - died in Senate
Public Safety
AB 1060 (Liu) Chap. 715, Statutes of 2005
Support: Unknown
Opposition:None known
KEY ISSUES
SHOULD A LICENSED PRIVATE PATROL OPERATOR (PPO), AS DEFINED, BE
AUTHORIZED TO BE THE LEGAL OWNER OF A FIREARM?
SHOULD PROCEDURES BE ESTABLISH WHEREBY A PPO MAY ASSIGN FIREARMS
IT OWNS TO ITS EMPLOYEES WHO ARE LICENSED TO CARRY FIREARMS, AS
SPECIFIED?
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SHOULD THE DEPARTMENT OF JUSTICE BE REQUIRED TO MODIFY THE
DEALERS RECORD OF SALE (DROS) FORM TO RECORD THE PPO AS THE
OWNER OF THE FIREARM AND TO RECORD THE SECURITY GUARD EMPLOYEE
OF THE PPO TO WHOM THE FIREARM IS TRANSFERRED AS THE REGISTERED
OWNER?
SHOULD DOJ BE AUTHORIZED TO CHARGE REASONABLE FEES FOR THE
IMPLANTATION OF THIS PROGRAM TO THE PPO'S AND DEPOSIT THOSE FEES IN
THE SPECIAL DROS ACCOUNT?
SHOULD THE PPO BE REQUIRED, IF IT LOSES IT'S LICENSE OR GOES OUT OF
BUSINESS, WITHIN 30 DAYS, TO COMPLETE NEW DROS FORMS FOR ALL
PPO-OWNED FIREARMS AND TRANSFER THOSE FIREARMS TO A NEW OWNER?
SHOULD SECURITY GUARDS BE REQUIRED, IMMEDIATELY UPON THE PPO'S
REQUEST, FOR ANY REASON, OR IMMEDIATELY UPON SEPARATION OF
EMPLOYMENT OR REVOCATION OF THE FIREARM QUALIFICATION CARD, TO
RETURN THE FIREARM TO THE PPO?
PURPOSE
The purpose of this bill is to (1) authorize a licensed Private
Patrol Operator (PPO), as defined, to be the legal owner of a
firearm; (2) establish procedures whereby a Private Patrol
Operator may assign firearms it owns to its employees who are
licensed to carry firearms, as specified; (3) to require the
Department of Justice (DOJ) to modify the Dealers Record of Sale
(DROS) form to record the PPO as the owner of the firearm and to
record the security guard employee of the PPO to whom the
firearm is transferred as the registered owner, as specified;
(4) authorize DOJ to charge reasonable fees for the
implementation of this program to the PPO's and deposit those
fees in the special DROS account; (5) require that if the PPO
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loses it's license or goes out of business, the PPO must, within
30 days and unless otherwise prohibited by law, complete new
DROS forms for all PPO-owned firearms and transfer those
firearms to a new owner; and (6) require that a security guard
shall, immediately upon the PPO's request, for any reason, or
immediately upon separation of employment or revocation of the
firearm qualification card, return the firearm to the PPO.
Current federal law requires licensed firearms dealers, before
they may deliver a firearm to a purchaser, to perform a
background check on the purchaser through the federal National
Instant Criminal Background Check System ("NICS"). (18 U.S.C §§
921, et seq.)
Current law requires that, except as specified, all sales,
loans, and transfers of firearms to be processed through or by a
state-licensed firearms dealer or a local law enforcement
agency. (Penal Code § 27545.)
Current law provides that there is a 10-day waiting period when
purchasing a firearm through a firearms dealer. During which
time, a background check is conducted and, if the firearm is a
handgun, a handgun safety certificate is required prior to
delivery of the firearm. (Penal Code §§ 26815, 26840(b) and
27540.)
Current law creates numerous exceptions to a variety of
different and specified firearms transfer requirements for loans
of firearms under a variety of different circumstances. The
general categories of these exceptions are:
For target shooting at target facility. (Penal Code §
26545.)
To entertainment production. (Penal Code § 26580.)
Several exceptions relating to law enforcement officers
and government agencies (Penal Code §§ 2660, et seq.)
For infrequent loan of non-handgun; curio or relic
(Penal Code § 27966) [commencing January 1, 2014]
To a consultant-evaluator. (Penal Code § 27005.)
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To minors (Penal Code § 27505.)
Infrequent loans to persons known to each other (Penal
Code § 27880.)
Where the firearm stays within the presence of the
owner. (Penal Code § 27885.)
To a licensed hunter. (Penal Code § 27950.)
Current law regulates private patrol operators, their use of
firearms and the use of firearms by their employees. (Business
and Professions Code §§ 7583 - 7583.46.)
Current law defines a private patrol operator by reference to
the definition of a private investigator. (Business §
Professions Code § 7583.) A private investigator is a person,
other than an insurance adjuster, who, for any consideration
whatsoever engages in business or accepts employment to furnish
or agrees to furnish any person to protect persons, as
specified, or engages in business or accepts employment to
furnish, or agrees to make, or makes, any investigation for the
purpose of obtaining, information with reference to:
Crime or wrongs done or threatened against the United
States of America or any state or territory of the United
States of America.
The identity, habits, conduct, business, occupation,
honesty, integrity, credibility, knowledge,
trustworthiness, efficiency, loyalty, activity, movement,
whereabouts, affiliations, associations, transactions,
acts, reputation, or character of any person.
The location, disposition, or recovery of lost or stolen
property.
The cause or responsibility for fires, libels, losses,
accidents, or damage or injury to persons or to property.
Securing evidence to be used before any court, board,
officer, or investigating committee.
A private investigator is further defined as any person, firm,
company, association, partnership, or corporation acting for the
purpose of investigating, obtaining, and reporting to any
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employer, its agent, supervisor, or manager, information
concerning the employer's employees involving questions of
integrity, honesty, breach of rules, or other standards of
performance of job duties.
This section shall not apply to a public utility regulated by
the State Public Utilities Commission, or its employees.
(Business &Professions Code §§ 7521, 7583.)
Current law provides that no person licensed as a private patrol
operator shall do any of the following:
Fail to properly maintain an accurate and current record
of all firearms or other deadly weapons that are in the
possession of the licensee or of any employee while on
duty. Within seven days after a licensee or his or her
employees discover that a deadly weapon that has been
recorded as being in his or her possession has been
misplaced, lost, or stolen, or is in any other way missing,
the licensee or his or her manager shall mail or deliver to
any local law enforcement agency that has jurisdiction, a
written report concerning the incident. The report shall
describe fully the circumstances surrounding the incident,
any injuries or damages incurred, the identity of all
participants, and whether a police investigation was
conducted.
Fail to properly maintain an accurate and current record
of the name, address, commencing date of employment, and
position of each employee, and the date of termination of
employment when an employee is terminated.
Fail to properly maintain an accurate and current record
of proof of completion by each employee of the licensee of
the course of training in the exercise of the power to
arrest, the security officer skills training as specified,
and the annual practice and review as specified.
Fail to certify an employee's completion of the course
of training in the exercise of the power to arrest prior to
placing the employee at a duty station.
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Fail to certify proof of current and valid registration
for each employee who is subject to registration.
Permit any employee to carry a firearm or other deadly
weapon without first ascertaining that the employee is
proficient in the use of each weapon to be carried. With
respect to firearms, evidence of proficiency shall include
a certificate from a firearm training facility approved by
the director certifying that the employee is proficient in
the use of that specified caliber of firearm and a current
and valid firearm qualification permit issued by the
department. With respect to other deadly weapons, evidence
of proficiency shall include a certificate from a training
facility approved by the director certifying that the
employee is proficient in the use of that particular deadly
weapon.
Fail to deliver to the director a written report
describing fully the circumstances surrounding the
discharge of any firearm, or physical altercation with a
member of the public while on duty, by a licensee or any
officer, partner, or employee of a licensee while acting
within the course and scope of his or her employment within
seven days after the incident. For the purposes of this
subdivision, a report shall be required only for physical
altercations that result in any of the following: (1) the
arrest of a security guard, (2) the filing of a police
report by a member of the public, (3) injury on the part of
a member of the public that requires medical attention, or
(4) the discharge, suspension, or reprimand of a security
guard by his or her employer. The report shall include, but
not be limited to, a description of any injuries or damages
incurred, the identity of all participants, and whether a
police investigation was conducted. Any report may be
investigated by the director to determine if any
disciplinary action is necessary.
Fail to notify the bureau in writing and within 30 days
that a manager previously qualified pursuant to this
chapter is no longer connected with the licensee.
Fail to administer to each registered employee of the
licensee, the review or practice training required, as
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specified.
(Business and Professions Code § 7583.2.)
This bill would codify the following intent language,
"The Legislature finds and declares that current
practices and statutes authorize the purchase,
registration, and ownership of firearms by individuals, but
not by business entities."
"It is the intent of the Legislature in enacting this
chapter to allow business ownership and registration of
firearms in the case of Private Patrol Operators. It is
further the intent of the Legislature to establish
procedures whereby a Private Patrol Operator may assign
firearms it owns to its employees who are licensed to carry
firearms and that the assignment of a firearm by a Private
Patrol Operator to that employee shall not constitute a
loan, sale, or transfer of a firearm."
This bill defines a Private Patrol Operator, for purposes of its
provisions, as a Private Patrol Operator licensed pursuant to
Chapter 11.5 (commencing with Section 7580) of Division 3 of the
Business and Professions Code.
This bill provides that a Private Patrol Operator may be the
legal owner of a firearm.
This bill would require DOJ to do the following:
Modify the Dealers' Record of Sale (DROS) form to allow
a PPO to be listed as the purchaser and legal owner of a
firearm. The form shall also identify the status of the PPO
as a sole proprietorship, partnership, or corporate entity,
and include any tax identification number or other
identifying number that may be required by the department.
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Modify the DROS form to allow a security guard who
receives a firearm from a PPO for purposes of his or her
employment with that PPO to be listed as the registered
owner of the firearm.
Modify the DROS form to require the PPO to designate a
"firearms custodian" for the PPO. The firearms custodian
shall possess a valid firearm qualification card issued by
the Department of Consumer Affairs.
A security guard who receives a firearm pursuant to a
certificate of assignment is subject to a background check
by the department, as specified. A security guard shall
possess a valid handguns safety certificate prior to
receiving a firearm pursuant to a Certificate of
Assignment.
This bill requires the PPO, on a separate form, and in a manner
prescribed by the department, to:
Identify the person who is designated by the PPO as the
firearms custodian for the PPO.
If a firearms custodian ceases to be employed by the
PPO, or otherwise becomes ineligible to be the firearms
custodian, the PPO shall inform the department of that
fact, in a manner prescribed by the department, and the PPO
shall have 30 days to designate a replacement firearms
custodian.
No PPO may assign a firearm pursuant to this article if
there is no designated firearms custodian for the PPO.
This bill provides that:
DOJ shall prescribe a "Certificate of Assignment" or
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"COA." The COA shall contain the same fields as the DROS
form, and shall be used to identify the employee of the PPO
who has been assigned a firearm by the PPO pursuant to this
article.
Upon the PPO assigning a firearm to an employee who is a
security guard licensed, as specified, the licensed
security guard shall complete the COA, and the PPO shall
file the COA with DOJ in a timely manner as prescribed by
DOJ.
This bill provides that the department shall charge a fee not to
exceed the reasonable costs to the department for filing and
processing a form identifying the firearms custodian of the PPO,
for filing and processing a COA, and for costs incurred in
enforcing the provisions of this article, including, but not
limited to, processing forms required by this article, and
entering information obtained pursuant to this article into the
department's Automated Firearms System and other databases as
deemed necessary by the department. The fees shall be deposited
in the Dealers' Record of Sale Special Account.
This bill provides that, if the PPO ceases to do business,
ceases to possess a valid PPO license as determined by the
Director of Consumer Affairs, ceases as a business entity, or
changes its type of business formation, the PPO shall, within 30
days and unless otherwise prohibited by law, complete new DROS
forms for all PPO-owned firearms and transfer those firearms to
a new owner.
This bill provides that, notwithstanding any other law, an
assignment of a firearm pursuant to this article is not a loan,
sale, or transfer of a firearm.
This bill provides that a security guard shall, immediately upon
the PPO's request, for any reason, or immediately upon
separation of employment or revocation of the firearm
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qualification card, return the firearm to the PPO. This article
does not limit the right of a licensed security guard employee
to use, possess, or otherwise lawfully carry a firearm owned by
that employee.
This bill would amend the provisions relating to the permissible
uses of the DROS account to permit use of DROS funds to
implement the provisions of this security guard firearm transfer
program.
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
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
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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.
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
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or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for the Bill
According to the author:
Under current law, business entities are not allowed
to own or register firearms; only individuals are
allowed to register a firearm through the DROS system.
This has been a problem for security guard companies,
or private patrol operators (PPOs) who require their
employees to possess a weapon to do their job.
Currently, security guard companies use Penal Code
Section 27880, which allows infrequent loans between
people who personally know each other for no more than
30 days. In practice, a manager or supervisor, of the
security company, will buy and register the weapon to
his or her name and then loan the weapon to a security
guard. Existing law limits the loan to 30 days or
less, so, in order to comply with the law, companies
switch guns every 30 days between their certified
employees.
From an administrative and fiscal standpoint, this
process is overly burdensome for the employer. From a
public safety standpoint, the current process requires
the employee to become familiar with a new handgun on
a monthly basis, which arguably is more dangerous than
having an employee handle a single firearm for the
duration of their employment with a company.
SB 385 will increase Department of Justice oversight
and regulation of weapons being issued by security
guard companies to their employees. Specifically, the
bill will modify the DROS form to allow a security
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guard company to be listed as the legal owner and the
certified security guard, who is being issued the
firearm, as the registered owner.
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The bill will also modify the DROS form to allow the
security guard company to designate a firearms
custodian for the company who will be responsible for
the tracking of the weapons. Additionally, the bill
would impose strict requirements for licensed
employees to return a firearm to a PPO upon the
completion of employment or request by the PPO.
Without SB 385, weapons will continue to be used by
private security guards without the state having any
knowledge, oversight or regulation. SB 385 closes this
loophole that can potentially lead to serious safety
issues for California.
2. Effect of This Bill
Private patrol operators (PPO's), that is, private security
companies, are licensed and regulated by the Department of
Consumer Affairs, Bureau of Security and Investigative Services.
Possession and use of firearms by employees of PPO's is
specifically regulated. Among other requirements, PPO's must
maintain an accurate and current record of all firearms or other
deadly weapons that are in their possession or the possession of
any employee while on duty. PPO's are also required, within
seven days after a licensee or his or her employees discover
that a deadly weapon that has been recorded as being in his or
her possession has been misplaced, lost, or stolen, or is in any
other way missing, to file a written report of this incident
with local law enforcement. (Business and Professions Code §
7583.2.)
Because current law does not allow a company to be the legal
owner of a firearm (other than assault weapons), according to
the author, PPO's have been using the provisions of current law
(Penal Code § 27880) which allow for firearms to be infrequently
loaned to a person known to the owner, as a means of providing
firearms to their employees. Specifically, that section
authorizes a firearm to be loaned between persons who are
personally known to each other, if all of the following
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requirements are satisfied:
The loan is infrequent, meaning, for handguns, less than
six transactions per calendar year and for firearms other
than handguns, occasional and without regularity.
The loan is for any lawful purpose.
The loan does not exceed 30 days in duration.
If the firearm is a handgun, the individual being loaned
the handgun shall have a valid handgun safety certificate.
The author states that these loans are administratively
burdensome to the PPO's since they require the PPO's to "switch
guns every 30 days between their [firearm] certified employees."
This would appear to be both burdensome and may not comply with
the strict letter of the law, since loans of firearms under the
provision the PPO's appear to be relying on are required to
occur no more than six times per year. (Penal Code §
16730(a)(1).)
This bill would make an exception to normal firearms ownership
laws by authorizing PPO's to be the "legal" owner of a firearm
and to "assign" that firearm to an employee, who would then be
the "registered" owner. The Department of Justice would be
required to modify the Dealer's Record of Sale (DROS) form,
which is filed with DOJ and used to record all firearms
transaction in California, to reflect these two categories of
firearms ownership. The PPO would be required to notify DOJ of
the assignment of the firearm to the employee on a form designed
by DOJ and DOJ would also be required to create a new form known
as a "Certificate of Assignment" or "COA." The COA would contain
the same fields as the DROS form, and would be used to identify
the employee of the PPO who has been assigned a firearm by the
PPO. The employee being "assigned" the firearm would be subject
to a background check and would be required to possess a valid
handgun safety certificate prior to receiving a firearm pursuant
to a Certificate of Assignment.
The bill also requires DOJ to modify the DROS form to require
the PPO to designate a "firearms custodian" for the PPO. The
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firearms custodian would be required to possess a valid firearm
qualification card issued by the Department of Consumer Affairs.
This bill also would require the PPO, on a separate form, to:
Identify the person who is designated by the PPO as the
firearms custodian for the PPO.
If a firearms custodian ceases to be employed by the
PPO, or otherwise becomes ineligible to be the firearms
custodian, the PPO shall inform the department of that
fact, in a manner prescribed by the department, and the PPO
shall have 30 days to designate a replacement firearms
custodian.
No PPO may assign a firearm pursuant to this article if
there is no designated firearms custodian for the PPO.
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