BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 9 1 6 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. (More) SB 916 (Correa) PageB 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 (More) SB 916 (Correa) PageC 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 (More) SB 916 (Correa) PageD 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 (More) SB 916 (Correa) PageE 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 (More) SB 916 (Correa) PageF 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 (More) SB 916 (Correa) PageG 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. (More) SB 916 (Correa) PageH 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 (More) SB 916 (Correa) PageI 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 (More) SB 916 (Correa) PageJ 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 (More) SB 916 (Correa) PageK 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 (More) SB 916 (Correa) PageL 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.) (More) SB 916 (Correa) PageM 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. (More) 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? *************** (More)