BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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0
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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?
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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
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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.)
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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
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§ 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
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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
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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
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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
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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.
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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
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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:
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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
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<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.)
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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.
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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.
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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.
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