BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 8 0 8 SB 808 (De León) As Amended January 6, 2014 Hearing date: January 14, 2014 Penal Code JRD:mc FIREARMS: IDENTIFYING INFORMATION HISTORY Source: Author Prior Legislation: AB 809 (Feuer) - Chap. 745, Stats. of 2011 AB 302 (Beall) - Chap. 344, Stats. of 2010 AB 1810 (Feuer) - 2010, failed passage on the Senate floor AB 161 (Steinberg) - Chap. 754, Stats. of 2003 AB 950 (Brulte) - Chap. 944, Stats. of 2001 AB 2188 (Scott) - Chap. 398, Stats. of 1998 Support: California Chapters of the Brady Campaign to Prevent Gun Violence Opposition:California Rifle and Pistol Association; National Rifle Association KEY ISSUE SHOULD A PERSON BE REQUIRED TO OBTAIN A UNIQUE SERIAL NUMBER OR OTHER MARK OF IDENTIFICATION, FROM THE DEPARTMENT OF JUSTICE PRIOR TO MAKING OR ASSEMBLYING A FIREARM? (More) SB 808 (De León) PageB PURPOSE The purpose of this legislation is to regulate firearms that are made or assembled by a person, by requiring that he or she: (1) obtain a unique serial number or other mark from the Department of Justice prior to making or assembling a firearm; (2) engrave or permanently affix the unique serial number or other mark to the firearm; and, (3) notify the Department of Justice once the serial number or other mark is affixed to the firearm. Prior to the Department of Justice providing the person with a unique serial number or other mark, he or she must present proof that: (1) the applicant is not prohibited by state or federal law; (2) he or she is 18 years of age or older; and, (3) that the making of the firearm is in compliance with local regulatory requirements. Existing federal law requires licensed importers and licensed manufacturers to identify each firearm imported or manufactured by using the serial number engraved or cast on the receiver or frame of the weapon, in such manner as prescribed by the Attorney General. (18 U.S.C. § 923(i).) Under existing federal law , the United States Undetectable Firearms Act of 1988 makes it illegal to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm that is not as detectable by walk-through metal detection as a security exemplar containing 3.7 oz of steel, or any firearm with major components that do not generate an accurate image before standard airport imaging technology. (18 U.S.C. § 922(p).) Existing law prohibits a person, firm, or corporation licensed to manufacture firearms pursuant to Chapter 44 (commencing with (More) SB 808 (De León) PageC Section 921) of Title 18 of the United States Code from manufacturing firearms in California, unless the person, firm or corporation is also licensed under California law (Penal Code § 29010). This prohibition does not apply to a person licensed under federal law, who manufactures less than 100 firearms a calendar year. (Penal Code § 29010(b).) Existing law makes it illegal to change, alter, remove, or obliterate the name of the maker, model, manufacturer's number, or other mark of identification on any pistol, revolver, or any other firearm, without first having secured written permission from the Department of Justice (DOJ) to make that change, alteration, or removal. Anyone who is found to have violated this section shall be punished by imprisonment pursuant to subdivision (h) of Section 1170. (Penal Code § 23900.) Existing law allows the Department of Justice, upon request, to assign a distinguishing number or mark of identification to any firearm whenever the firearm lacks a manufacturer's number or other mark of identification, or whenever the manufacturer's number or other mark of identification, or a distinguishing number or mark assigned by the department has been destroyed or obliterated. (Penal Code § 23910.) Existing law makes it misdemeanor, with limited enumerated exceptions, for any person to buy, receive, dispose of, sell, offer to sell or have possession any pistol, revolver, or other firearm that has had the name of the maker or model, or the manufacturer's number or other mark of identification changed, altered, removed, or obliterated. (Penal Code §§ 23920 and 23925.) Existing law requires a person be at least 18 years of age to purchase a rifle or shotgun. To purchase a handgun, a person must be at least 21 years of age. As part of the Dealer Record of Sales process, the purchaser must present "clear evidence of identity and age" which is defined as a valid, non-expired California Driver's License or Identification Card issued by the Department of Motor Vehicles. (Penal Code §§ 27510 and 16400.) (More) SB 808 (De León) PageD Existing law requires purchasers to present a handgun safety certificate prior to the submission of DROS information for a handgun or provide the dealer with proof of exemption pursuant to California Penal Code Section 31700. Beginning on January 1, 2015, this requirement will be extended to all firearms. (Penal Code § 26840.) Existing law requires that firearms dealers obtain certain identifying information from firearms purchasers and forward that information, via electronic transfer to DOJ to perform a background check on the purchaser to determine whether he or she is prohibited from possessing a firearm. (Penal Code §§ 28160-28220.) Existing law requires firearms to be centrally registered at the time of transfer or sale by way of transfer forms centrally compiled by the Department of Justice. The Department of Justice is required to keep a registry from data sent to DOJ indicating who owns what firearm by make, model, and serial number and the date thereof. (Penal Code § 11106(a) and (c).) Existing law requires that, upon receipt of the purchaser's information, DOJ shall examine its records, as well as those records that it is authorized to request from the State Department of Mental Health pursuant to Section 8104 of the Welfare and Institutions Code, in order to determine if the purchaser is prohibited from purchasing a firearm because of a prior felony conviction or because they had previously purchased a handgun within the last 30 days, or because they had received inpatient treatment for a mental health disorder, as specified. (Penal Code § 28220.) Existing law allows the Department of Justice to require the dealer to charge each firearm purchaser a fee not to exceed $14, except that the fee may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations. This fee, known as the Dealer Record of Sale or DROS fee, shall be no more than is necessary to fund specific codified costs. (Penal Code (More) SB 808 (De León) PageE § 28225.) Under existing law , the Department of Justice may charge a fee sufficient to reimburse it for each of the following but not to exceed fourteen dollars ($14), except that the fee may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations: For the actual costs associated with the preparation, sale, processing, and filing of forms or reports required or utilized pursuant to any provision listed in subdivision (a) of Section 16585. For the actual processing costs associated with the submission of a Dealers' Record of Sale to the department. For the actual costs associated with the preparation, sale, processing, and filing of reports utilized pursuant to Sections 26905, 27565, or 28000, or paragraph (1) of subdivision (a) of Section 27560. For the actual costs associated with the electronic or telephonic transfer of information pursuant to Section 28215. Any costs incurred by the Department of Justice to implement this section shall be reimbursed from fees collected and charged pursuant to this section. No fees shall be charged to the dealer pursuant to Section 28225 for implementing this section. (Penal Code § 28230.) Under existing law , 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 (More) SB 808 (De León) PageF possessing a firearm. (Penal Code § 30000.) This bill requires any person who makes or assembles a firearm to: Obtain a unique serial number or other mark from the Department of Justice prior to making or assembling a firearm; Within one day of making or assembling the firearm, to engrave or permanently affix the unique serial number or other mark to that firearm; and, Notify the Department of Justice once the serial number or other mark is affixed to the firearm. Under this bill , prior to the Department of Justice providing the person with a unique serial number or other mark, the person must present proof that: The applicant is not prohibited by state or federal law; He or she is 18 years of age or older; and, The making of the firearm is in compliance with local regulatory requirements. This bill requires the Department of Justice to maintain electronic records of all persons that receive a unique serial number or other mark, and notify DOJ that it has been engraved or affixed to the firearm. This bill would allow the Department of Justice to charge a fee for applications to administer the costs of electronic tracking and would authorize the Department of Justice to use the Dealer Record of Sales account to cover actual costs associated with this legislation. 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 (More) SB 808 (De León) PageG 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 that 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. 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 requiring the state to reduce its prison population to 137.5 percent of design capacity. The State submitted 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 opposed the state's motion, arguing 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 31, 2013. The Three-Judge Court then ordered, on April 11, 2013, the state of California to "immediately take all steps necessary to comply (More) SB 808 (De León) PageH with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." On September 16, 2013, the State asked the Court to extend that deadline to December 31, 2016. In response, the Court extended the deadline first to January 27, 2014 and then February 24, 2014, and ordered the parties to enter into a meet-and-confer process to "explore how defendants can comply with this Court's June 20, 2013 Order, including means and dates by which such compliance can be expedited or accomplished and how this Court can ensure a durable solution to the prison crowding problem." As of December 4, 2013, California's 33 prisons were at 146.2 percent capacity, with 119,258 inmates. The ongoing prison overcrowding litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. While real gains in reducing the prison population have been made, even greater reductions may be required to meet the orders of the federal court. Therefore, the Committee's consideration of ROCA bills -bills that may impact the prison population - will be informed by the following questions: Whether a measure erodes realignment and impacts the prison population; 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 (More) SB 808 (De León) PageI 1. Need for This Bill According to the author, On Monday, December 9, 2013, Congress approved H.R. 3626 to extend the 25 year old ban on undetectable firearms for an additional ten years. The Undetectable Firearms Act of 1988 prohibits the manufacture, sale, and possession of guns that cannot be detected by metal detection. Though H.R. 3626 was passed with bipartisan support, efforts to amend the Act to cover plastic firearms produced using three-dimensional printers, or additive manufacturing, failed. As a result, federal law does not address the threat posed by newly developed plastic guns. The Undetectable Firearms Act only broadly states that guns must be detectable, and thus a detachable piece of metal would suffice to meet the requirements of the law. Since additive manufacturing produces plastic guns without permanent metal components, an individual can smuggle a three-dimensionally printed plastic gun through a metal detector by simply removing any detectable components. The additive manufacturing technologies available today allow amateur users to fabricate guns and gun parts at home. As three-dimensional printing technology advances, so will the accessibility and affordability of the printers. Without specific measures that address the dangers posed by these self-made guns, criminals and dangerous individuals will exploit the technologies at the expense of public safety. (More) SB 808 (De León) PageJ Although additive manufacturing is the latest method by which firearms can be built at home, it is by no means the only way. The lawful sale of 80% assembled lowers and other gun parts allows for an individual to assemble a fully functional firearm and not be subject to a background check or serialization by simply claiming that the gun is for personal use. Therefore, detection is not the only issue raised by self-made and self-assembled guns. The development of technologies that make the manufacture of weapons accessible to the general public raises questions about whether homemade guns are being made by dangerous individuals, including felons and other prohibited individuals. 2. Recent Events According to a July 15, 2013, briefing prepared by the Minority Staff of the Committee on Energy and Commerce, United States House of Representatives: On June 7, 2013, John Zawahri, 23, killed five people and injured several more during a shooting rampage that lasted approximately 13 minutes in Santa Monica, California. He first shot and killed his father, Samir Zawahri, and brother, Christopher, at their home. He then pulled over and carjacked Laurie Sisk, forcing her to drive at gunpoint to Santa Monica College. Zawahri shot at numerous cars, pedestrians, and a bus en route, killing the college's groundskeeper, Carlos Franco, and his daughter, Marcela. Upon arriving at the campus, he then fatally shot another woman, Margarita Gomez. He then entered the school library, where he attempted to kill several library patrons who were hiding in a safe room. Police, who had been alerted to the shooting and to (More) SB 808 (De León) PageK Zawahri's location by numerous 911 calls, exchanged gunfire in the library with the shooter and pronounced him dead at the scene. According to authorities, Zawahri fired approximately 100 rounds in total. Zawahri had a history of mental illness. In 2006, a teacher at his high school discovered Zawahri researching assault weapons online. School officials contacted the police and he was subsequently admitted to the psychiatric ward at the University of California, Los Angeles Medical Center. Zawahri attempted to buy a weapon in 2011, but a background check conducted by the California Department of Justice found him ineligible and denied the purchase. The reasons for this denial have not been publicly released. Zawahri used a modified AR-15 rifle in the shooting and also carried a .44-caliber handgun. He possessed more than 1,300 rounds of ammunition. The AR-15 rifle is the same type of gun used in the mass shootings that occurred in Aurora, Colorado, and Newtown, Connecticut. The AR-15 firearm held 30 rounds. California state law bans the sale of AR-15 rifles with a magazine capacity greater than ten rounds. Authorities believe that Zawahri assembled his AR-15 rifle using parts he bought in pieces from a number of different sources, including an 80% completed lower receiver. Police found a drill press at Zawahri's home, a tool that can make holes in the lower receiver to complete the weapon. (Citations Omitted.) 3. Effect of This Legislation SB 808 would require any person who makes or assembles a firearm to first obtain a serial number from the Department of Justice and demonstrate that he or she is not prohibited from owning firearms. Specifically, any person who makes or assembles a firearm will be required to: (More) SB 808 (De León) PageL Obtain a unique serial number or other mark from the Department of Justice prior to making or assembling a firearm; Within one day of making or assembling to engrave or permanently affix the unique serial number or other mark to the firearm; and, Notify the Department of Justice once the serial number or other mark is affixed to the firearm. Prior to the Department of Justice providing the person with a unique serial number or other mark, the person must present proof that: The applicant is not prohibited by state or federal law; He or she is 18 years of age or older; and, The making of the firearm is in compliance with local regulatory requirements. There are no provisions in existing law that prevent a person from buying an 80% lower receiver<1> and then making it into a fully functional firearm. Because 80% lower receivers are not considered firearms, a person purchasing them does not have to go through a federal firearms dealer, and does not have to undergo a background check. According to the author, SB 808 will help to close this loophole. 4. Issues and Concerns a. Prospective Application. Beginning January 1, 2015, anyone who wants to make or assemble a firearm would be required to obtain a serial number from the Department of Justice. Given the prospective application, enforcement of the legislation will likely be problematic. Specifically, how would a law enforcement officer know if the --------------------------- <1> According to Tactical Machining, "An 80% Receiver is a partially completed piece of material that requires special tooling and skills to be completed and considered a firearm." (http://www.tacticalmachining.com/80-lower-receiver.html.) (More) SB 808 (De León) PageM firearm was built prior to January 11, 2015? Members may wish to address this issue by recommending an amendment requiring that any person with a non-serialized firearm (except those currently exempted) be required to obtain a serial number from the Department of Justice. b. "Assembly or Making" Overbroad. This legislation does not specify that it only applies to firearms without a serial number and does not define "assembling or making." Given this, a firearm owner who adds an accessory to a serialized firearm could be "assembling" a firearm and, thus, subject to the requirements of this legislation. Members may want to consider recommending that the legislation be amended to specify that section 29180 only applies to non-serialized firearms. Additionally, an amendment defining "assembling or making" could add clarity. c. Information Provided to the Department of Justice. Background Checks : SB 808 requires that a person requesting a serial number from the Department of Justice "present proof that the applicant is not prohibited from possessing or owning a firearm or ammunition." It is not clear how a person would prove that he or she is not prohibited. Members may wish to consider recommending an amendment that would require the person to complete a Personal Firearms Eligibility Check, as described in Penal Code section 30105, as proof that they are not prohibited from purchasing a firearm. (More) Age Requirements : SB 808 requires that the person requesting a serial number from the Department of Justice prove that he or she is "18 years of age or older." The legislation does not specify how the person will prove he or she is 18 years of age. Members may wish to recommend an amendment that cross references section 16400. Additionally, the legislation would allow an 18 year old to obtain a serial number from the Department of Justice and then "assemble or make" a handgun. Under existing law, no one under the age of 21 is allowed to purchase a handgun. Members may want to consider whether these sections should be consistent. Description of Firearm : SB 808 does not require the person provide the Department of Justice with a description of the firearm. Without a description of the firearm, the Department of Justice's records will only have the person's name and that they affixed the serial number to a firearm. Members may wish to consider recommending an amendment that would require the person to provide a description of the firearm. Firearms Safety Certificate : Beginning January 1, 2015, any person, with limited enumerated exceptions, who wants to purchase a firearm must have a safety certificate. Members may wish to consider whether a safety certificate should be required before being issued a serial number. d. Compliance Inspections. SB 808 would require the applicant, as a condition of granting the application for a serial number, to allow an employee of the Department of Justice to inspect where the firearm is being made. Members may wish to consider whether this provision might raise constitutional issues beyond the scope of the legislation. (More) SB 808 (De León) PageO e. Department of Justice Maintaining Records. The legislation requires the Department of Justice to maintain information about the number of "violations" of Section 29180. It is not clear whether violations mean arrests or convictions. Members may wish to consider recommending an amendment that would make clear that this refers to arrest information. ***************