BILL ANALYSIS                                                                                                                                                                                                    







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

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          SB 916 (Correa)                                             
          As Amended:  April 24, 2014
          Hearing date:  April 29, 2014
          Penal Code
          JRD:sl

                                       FIREARMS  

                                       HISTORY

          Source:  California Association of Firearms Retailers

          Prior Legislation: None

          Support:    National Shooting Sports Foundation

          Opposition:None known 



                                         KEY ISSUE
           
          SHOULD AMENDMENTS BE MADE TO CALIFORNIA'S "NOT UNSAFE" HANDGUN LAWS?  



                                       PURPOSE

          The purpose of this bill is to:  (1) allow a firearm to be  
          reinstated on California's "not unsafe" handgun roster if the  
          firearm fell off the roster for any reason besides the firearm  
          failing retesting, as specified; and, (2) allow a dealer to sell  
          firearms that are no longer on California's not unsafe handgun  
          roster if certain requirements are met. 



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           Current law  defines an unsafe handgun as any pistol, revolver,  
          or other firearm capable of being concealed upon the person,  
          which lacks various specified safety mechanisms and does not  
          pass specified safety tests.  (Penal Code  31910.) 

           Existing law  provides that commencing January 1, 2001, no  
          "unsafe handgun" may be manufactured or sold in California by a  
          licensed dealer, except as specified, and requires that the  
          Department of Justice (DOJ) prepare and maintain a roster of  
          handguns which are determined not to be unsafe handguns.   
          Private party sales (used or previously owned) and transfers of  
          handguns through a licensed dealer are exempted from those  
          restrictions.  (Penal Code  27545, 32000, et seq.,  32110.)

           Existing law  provides that any person in California who  
          manufactures or causes to be manufactured, imports into the  
          state for sale, keeps for sale, offers or exposes for sale,  
          gives, or lends any unsafe handgun shall be punished by  
          imprisonment in a county jail not exceeding one year.  (Penal  
          Code  32000(a).)  
           
          Existing law  does the following:

                 Defines "unsafe handgun" as any pistol, revolver, or  
               other firearm capable of being concealed upon the person,  
               as specified, which lacks various safety mechanisms,  
               including a chamber load indicator and magazine disconnect,  
               and does not pass listed tests, as specified.  (Penal Code  
                31910.) 

                 Requires any concealable firearm manufactured in  
               California, or intended to be imported for sale, kept for  
               sale, or offered for sale to be tested within a reasonable  
               period of time by an independent laboratory, certified by  
               the state DOJ to determine whether it meets required safety  
               standards, as specified.  (Penal Code  32010.)

                 Requires DOJ, on and after January 1, 2001, to compile,  
               publish, and thereafter maintain a roster listing all of  
               the pistols, revolvers, and other firearms capable of being  
               concealed upon the person that have been tested by a  
               certified testing laboratory, have been determined not to  


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               be unsafe handguns, and may be sold in this state, as  
               specified.  The roster shall list, for each firearm, the  
               manufacturer, model number, and model name.  (Penal Code   
               32015.)

                 Provides that DOJ may charge every person in California  
               who is licensed as a manufacturer of firearms, as  
               specified, and any person in California who manufactures or  
               causes to be manufactured, imports into California for  
               sale, keeps for sale, or offers or exposes for sale any  
               pistol, revolver, or other firearm capable of being  
               concealed upon the person in California, an annual fee not  
               exceeding the costs of preparing, publishing, and  
               maintaining the roster of firearms determined not to be  
               unsafe, and the costs of research and development, report  
               analysis, firearms storage, and other program  
               infrastructure costs, as specified.  (Penal Code  32015.)

           Existing law  requires that, commencing January 1, 2010, all  
          semiautomatic pistols that are not already listed on the roster  
          be designed and equipped with a microscopic array of characters  
          that identify the make, model, and serial number of the pistol,  
          etched or otherwise imprinted in two or more places on the  
          interior surface or internal working parts of the pistol, and  
          that are transferred by imprinting on each cartridge case when  
          the firearm is fired, provided that the DOJ certifies that the  
          technology used to create the imprint is available to more than  
          one manufacturer unencumbered by any patent restrictions.  On  
          May 17, 2013, DOJ issued that certification.  (Penal Code   
          31910(b)(7).)  

           Existing law  allows the Attorney General to annually retest up  
          to 5 percent of the handgun models that are listed on the  
          roster.  When retesting the Attorney General is required to: 

                       Obtain from retail or wholesale sources, or both,  
                  three samples of the handgun model to be retested;

                       Select the certified laboratory to be used for the  
                  retesting;

                       Use the type of ammunition recommended by the  


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                  manufacturer in the user manual for the handgun, as  
                  specified; and,

                       Conduct the retest in the same manner as the  
                  testing prescribed in Sections 31900 and 31905 (drop  
                  safety and firing requirement for handguns.) 

          If the handgun model fails retesting, the Attorney General is  
          required to remove the handgun model from the roster.  (Penal  
          Code  32020.)

           Existing law  allows a handgun removed as a result of retesting  
          to be reinstated on the roster if all of the following are met:

                 The manufacturer petitions the Attorney General for  
               reinstatement of the handgun model;

                 The manufacturer pays the DOJ for all of the costs  
               related to the reinstatement testing of the handgun model,  
               including the purchase price of the handguns, prior to  
               reinstatement testing;

                 The reinstatement testing of the handguns shall be in  
               accordance with the provisions of 32020;

                 Three handgun sample are tested only once for  
               reinstatement.  If the sample fails it may not be retested;  
               and,

                 The manufacturer provides the Attorney General with the  
               complete testing history for the handgun model.

          If the handgun model successfully passes testing for  
          reinstatement, and if the manufacturer of the handgun is  
          otherwise in compliance, as specified, the Attorney General is  
          required to reinstate the handgun model on the roster.  

          (Penal Code  32025.)


           Existing law  allows "similar" firearms to be listed on the  
          roster.  Specifically, a firearm is deemed to satisfy the roster  


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          requirements if another firearm made by the same manufacturer is  
          already listed and the unlisted firearm differs from the listed  
          firearm in one or more of the following features: 
            
                 Finish; 

                 Material from which the grips are made;

                 The shape or texture of the grips, so long as the  
               difference in grip shape or texture does not in any way  
               alter dimensions, material, linkage or function of the  
               magazine well, the barren, the chamber, or any of the  
               components of the firing mechanism of the firearm; or,

                 Any other purely cosmetic changes. 

          (Penal Code  32030.)
           
          Existing law  requires that a manufacturer, who wants to place a  
          "similar" on the roster, to provide the DOJ all of the  
          following: 

                 The model designation of the listed firearm; 

                 The model designation of each firearm that the  
               manufacturer seeks to have listed; and,

                 A statement, under oath, that each unlisted firearm  
               differs from the listed firearms in one or more of the  
               above listed ways. 

          The DOJ may require a manufacturer to provide to the DOJ any  
          model for which listing is sought to determine whether the model  
          complies with the requirements of this section.  

          (Penal Code  32030.)

           Existing law  specifies that the following are exempt from roster  
          requirements: 

                 The manufacture in California, or importation into this  
               state, of any prototype pistol, revolver, or other firearm  


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               capable of being concealed upon the person when the  
               manufacture or importation is for the sole purpose of  
               allowing an independent laboratory certified by DOJ to  
               conduct an independent test to determine whether that  
               pistol, revolver, or other firearm capable of being  
               concealed upon the person is prohibited, inclusive, and, if  
               not, allowing the department to add the firearm to the  
               roster of pistols, revolvers, and other firearms capable of  
               being concealed upon the person that may be sold in this.

                 The importation or lending of a pistol, revolver, or  
               other firearm capable of being concealed upon the person by  
               employees or authorized agents of entities determining  
               whether the weapon is prohibited by this section.

                 Firearms listed as curios or relics, as defined in  
               federal law.

                 The sale or purchase of any pistol, revolver, or other  
               firearm capable of being concealed upon the person, if the  
               pistol, revolver, or other firearm is sold to, or purchased  
               by, the DOJ, any police department, any sheriff's official,  
               any marshal's office, the Youth and Adult Correctional  
               Agency, the California Highway Patrol, any district  
               attorney's office, or the military or naval forces of this  
               state or of the United States for use in the discharge of  
               their official duties.  Nor shall anything in this section  
               prohibit the sale to, or purchase by, sworn members of  
               these agencies of any pistol, revolver, or other firearm  
               capable of being concealed upon the person.  (Penal Code   
               32000(b).)

           Existing law  contains numerous additional exemptions to the safe  
          handgun requirements, including an exemption for any transfer  
          that is not required to be made through a licensed dealer.  This  
          exemption alone includes within it another approximately 25  
          exemptions.  (Penal Code  32110, 27850, et seq.)

           This bill  would require that a handgun model removed from the  





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          roster for any reason not specified in (d) of section 32020,<1>   
          including failure to pay the annual fee to maintain the firearm  
          on the roster, to be reinstated on the roster if: 

                 The manufacturer petitions the Attorney General for  
               reinstatement of the handgun model. 

                 The testing is done in the same manner as the testing  
               prescribed in sections 31900 and 31905 (drop safety and  
               firing requirement for handguns). 

                 The manufacturer provides the Attorney General with the  
               complete testing history of the handgun model. 

          A handgun model reinstated pursuant to this new provision would  
          only be required to meet the standards that were in place when  
          the model was originally placed on the list. 

           This bill  would provide for the sale, loan or transfer of any  
          pistol, revolver, or other firearm capable of being concealed  
          upon a person by a person licensed pursuant to sections 26700 to  
          26915,<2> if: 

                 The licensee is in lawful possession of the firearm. 

                 The firearm was previously listed on the roster pursuant  
               to section 32015, but was removed from the roster for any  
               reason not specified in section 32020.

                 The licensee possessed the firearm within California  
               prior to the firearm being removed from the roster. 

                 The licensee notified the DOJ of the number of firearms  
               meeting this cratering within 30 days of the firearm being  
               removed from the roster.

           This bill  would allow a firearm to be considered "similar" if it  
          differs from the listed firearm because it has a minor feature  
          ---------------------------
          <1> Penal Code 32020(d)  requires the Attorney General to remove  
          a handgun model from the roster if it fails retesting.  
          <2> Sections 26700 to 26915 relate to firearms dealer licensing  
          requirements. 

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          that does not in any way alter the dimensions, material,  
          linkage, or functioning of the magazine well, the barrel, the  
          chamber, or any of the components of the firing mechanism of the  
          firearm.  

           This bill  makes a number of uncodified legislative findings and  
          declarations.  

                    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 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  


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          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 % inmate 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  
          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."

          The parties were not able to reach an agreement during the  
          meet-and-confer process.  As a result, the Court ordered  
          briefing on the State's requested extension and, on February 10,  
          2014, issued an order extending the deadline to reduce the  
          in-state adult institution population to 137.5% design capacity  
          to February 28, 2016.  The order requires the state to meet the  
          following interim and final population reduction benchmarks:

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          If a benchmark is missed the Compliance Officer (a position  
          created by the February 10, 2016 order) can order the release of  
          inmates to bring the State into compliance with that benchmark.   


          In a status report to the Court dated February 18, 2014, the  
          state reported that as of February 12, 2014, California's 33  


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          prisons were at 144.3 percent capacity, with 117,686 inmates.   
          8,768 inmates were housed in out-of-state facilities.

          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

          1.  Need for This Bill  

          The author states, in part: 

               The bill will also allow manufacturers whose handguns  
               fell off the Roster for reasons other than failing to  
               pass safety certifications to have these firearms  
               placed back on the Roster. These handguns will be  
               subject to retesting and must meet the requirements of  


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               the law at the time the handgun was originally  
               submitted for testing. . .
                 
               Manufacturers do not renew the Roster listings for  
               existing handgun models for a number of reasons.  
               Unfortunately, dealers are often unaware that a  
               manufacturer will not renew a model's Roster listing  
               until the handgun has already fallen off the Roster.  
               Once a handgun is no longer listed on the Roster, it  
               cannot be lawfully sold to the public. As a result,  
               when firearms fall off the Roster, California firearm  
               dealers are often left with inventory they cannot  
               sell. These handguns are unchanged, no different and  
               no less safe than the previous day when handgun was  
               listed on the Roster. Nevertheless, California dealers  
               in possession of these safety-approved handguns are  
               not able to sell their remaining inventory.
                
               This bill resolves this issue by allowing dealers to  
               sell off the remaining handguns they have in their  
               inventory after that model handgun falls off the  
               Roster for any reason other than failing to pass the  
               required safety testing.

          2.    "  Not Unsafe" Handgun Law and the Effect of This Bill    

          SB 15 (Polanco), Chapter 248, Statutes of 1999, made it a  
          misdemeanor for any person in California to manufacture, import  
          for sale, offer for sale, give, or lend any unsafe handgun, as  
          defined, with certain specific exceptions.  SB 15 defined an  
          "unsafe handgun" as follows:  (a) does not have a requisite  
          safety device; (b) does not meet specified firing tests; and,  
          (c)            does not meet a specified drop safety test.

          SB 489 (Scott), Chapter 500, Statutes of 2003, added to the  
          unsafe handgun law requirements for semiautomatic pistols that  
          became effective in 2006 and 2007.   The legislation requires  
          that for a new semiautomatic center-fire pistol firearm to be  
          added to the roster it has to be equipped with a chamber load  





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          indicator<3> and a magazine disconnect<4> (if it has a  
          detachable magazine).  The legislation also requires that all  
          semiautomatic rimfire pistols, with a detachable magazine, have  
          a magazine disconnect.  All firearms that were on the not unsafe  
          handgun list prior to the effective dates were essentially  
          grandfathered in.  Those who supported SB 489 argued: 

               It is just common sense that handgun should include a  
               chamber load indicator that makes it clear whether the  
               weapon is loaded. Since cheap disposable cameras can  
               clearly count down the number of pictures left, it is  
               inexcusable that handguns do not indicate when a  
               bullet is in the chamber.  Magazine safety disconnects  
               would also greatly reduce the number of unintentional  
               accidental shootings by ensuring that when the  
               magazine is removed the gun will not fire.

               (http://leginfo.ca.gov/pub/03-04/bill/sen/sb_0451-500/sb_489 
               _cfa_20030630_ 103204_asm_comm.html.)

          AB 1471 (Feuer), Chapter 572, Statutes of 2007, added  
          "microstamping" as a requirement for a firearm to be placed on  
          the not unsafe handgun roster beginning January 1, 2010,  
          "provided that the Department of Justice certifies that the  
          technology used to create the imprint is available to  more than  
          one manufacturer unencumbered by any patent restrictions."   As  
          discussed above, the Department of Justice issued the  
          certification on May 17, 2013.  Like the other provisions, the  
          "microstamping" requirement did not apply to firearms already on  
          the roster.  The author of AB 1471 provided the rationale for  
          the additional requirement, 

               AB 1471 will help law enforcement identify and  
               apprehend armed gang members before they inflict more  
               harm on others, including innocent bystanders.  In  
               ----------------------
          <3> A chamber load indicator is a device that plainly indicates  
          that a cartridge is in the firing chamber.  (Penal Code   
          16380.)  
          <4> A magazine disconnect is a mechanism that prevents a  
          semiautomatic pistol from operating when a detachable magazine  
          is not inserted in the semiautomatic pistol. (Penal Code   
          16900.)

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               instances of drive-by shootings, where the only  
               evidence at the crime scene may be a spent cartridge  
               case, law enforcement could quickly obtain a critical  
               lead.  

               (http://leginfo.ca.gov/pub/07-08/bill/asm/ab_1451-1500/ab_14 
               71_cfa_20070625_ 130933_sen_comm.html.)

          This legislation would create two exceptions to the not unsafe  
          firearms laws.  First, it would allow a firearm, that was on the  
          roster and fell off due to, for example, a lack of payment, to  
          be added back to the roster if:

                 The manufacturer petitions the Attorney General for  
               reinstatement of the handgun model. 

                 It passes the drop safety and firing requirement for  
               handguns. 

                 The manufacturer provides the Attorney General with the  
               complete testing history of the handgun model. 

          A handgun model reinstated under this proposed provision would  
          only be required to meet the standards that were in place when  
          the model was originally placed on the list.  For example, a  
          semi-automatic pistol that was placed on the roster in 2002 and  
          fell of the list in 2013 due to a lack of payment, could be  
          added back to the roster without a chamber load indicator,  
          magazine disconnect and microstamping.  















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          The second exception would apply to instances in which a dealer  
          has firearms that were on the roster when the dealer purchased  
          them, but, after the date of purchase, they were removed from  
          the roster (for any reason except DOJ removing a model because  
          it fails retesting).   Without this provision, dealers would  
          only be able to sell these firearms to those who are exempt from  
          the roster, including the DOJ, any police department, any  
          sheriff's official, any marshal's office, the Youth and Adult  
          Correctional Agency, the California Highway Patrol, any district  
          attorney's office, or the military and any sworn members of  
          those agencies.

          This legislation, additionally, would allow a firearm to be  
          considered a "similar" and be placed on the roster if it differs  
          from the listed firearm because it has a minor feature that does  
          not in any way alter the dimensions, material, linkage, or  
          functioning of the magazine well, the barrel, the chamber, or  
          any of the components of the firing mechanism of the firearm.   
          The word "minor" is ambiguous as used in this amendment.   

          SHOULD ANY FIREARM THAT IS REMOVED FROM THE "NOT UNSAFE" ROSTER  
          HAVE TO COMPLY WITH ALL CURRENT REQUIREMENTS TO BE PLACED BACK  
          ON THE ROSTER?  

          SHOULD FIREARMS DEALERS BE PERMITTED TO SELL FIREARMS THAT WERE  
          ON THE ROSTER WHEN THEY PURCHASED THEM, BUT SUBSEQUENTLY WERE  
          REMOVED FROM THE ROSTER? 


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