BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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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  
          ---------------------------
          <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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