BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1354 (Knight) 4
As Introduced February 21, 2014
Hearing date: April 22, 2014
Penal Code
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DEADLY WEAPONS:
PERMITS AND LICENSES ISSUED BY THE DEPARTMENT OF JUSTICE
HISTORY
Source: California Association of Federal Firearms Licensees
Prior Legislation: None
Support: California Rifle and Pistol Association
Opposition:None known
(Analysis reflects amendments to be taken in committee.)
KEY ISSUE
SHOULD THE DEPARTMENT OF JUSTICE BE REQUIRED TO MAKE A DETERMINATION
ON CERTAIN FIREARMS-RELATED CERTIFICATES, LICENSES AND PERMIT
APPLICATIONS WITHIN 90 DAYS OF RECEIPT, AS SPECIFIED?
PURPOSE
The purpose of this bill is to require the Department of Justice
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(DOJ) to: (1) make a determination on applications for a number
of firearms-related certificates, licenses and permits within 90
days of receipt, and allows DOJ to extend the determination by
another 90 days, as specified; (2) provide written notice of
the determination, and in cases in which the application is
denied, the reasons for the denial; and (3) provide an applicant
notice that his or her application is incomplete within 30 days
of receipt of that application.
Current federal law prohibits a person from engaging in the
business of importing, manufacturing, or dealing in firearms, or
importing or manufacturing ammunition, until he has filed an
application with and received a license to do so from the
Attorney General. The application shall be in such form and
contain only that information necessary to determine eligibility
for licensing as the Attorney General shall by regulation
prescribe and shall include a photograph and fingerprints of the
applicant. (18 U.S.C. 923.)
Current law requires DOJ to process a variety of deadly weapon
related applications:
Permit for Manufacture, Sale or Use of Destructive
Device: Every dealer, manufacturer, importer, and
exporter of any destructive device,<1> or any motion
picture or television studio using destructive devices in
the conduct of its business, shall obtain a permit for
the conduct of that business from DOJ. (Penal Code
§ 18900.)
Permit for Possession and Transportation of Tear
Gas: DOJ may issue a permit for the possession and
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<1> A "destructive device" is "any projectile containing
explosive or incendiary material or any other chemical
substance," "any bomb, grenade or explosive missile," "a weapon
with a caliber over 0.60," "any rocket," "any breakable
container containing flammable liquid with a flashpoint of 150
degrees Fahrenheit," and "any sealed container containing dry
ice or other chemically reactive substances assemble for the
purpose of causing an explosion." (Penal Code § 16460.)
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transportation of tear gas or a tear gas weapon that is
not intended or certified for personal self-defense
purposes, upon proof that good cause exists for issuance
of the permit to the application. The permit may also
allow the applicant to install, maintain, and operate a
protective system involving the use of tear gas or a tear
gas weapon in any place that is accurately and completely
described in the permit application. (Penal Code §
23000.)
Certificate of Eligibility: A person may request a
certificate of eligibility from DOJ.<2> DOJ is required
to examine its records and records available to the
department in the National Instant Criminal Background
Check System in order to determine if the applicant is
prohibited by state or federal law from possessing,
receiving, owning or purchasing a firearm. The
department is required to issue a certificate to an
applicant if the department's records indicate that the
applicant is not prohibited by state or federal law from
possessing, receiving, owning or purchasing a firearm.
The department is required to adopt regulations to
administer these provisions. (Penal Code § 26710.)
Centralized List of Licensees: DOJ is required to
keep a centralized list of all persons with a licensed as
firearms dealers in California. To be included on the
list, the applicant must satisfy a variety or
requirements, including having a certificate of
eligibility. (Penal Code §§ 26700 and 26715.)
Centralized List of Exempted Federal Firearms
Licenses: DOJ is required to keep a centralized list of
persons who identify themselves as being licensed
pursuant to Chapter 44 of Title 18 of the United States
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<2> A "certificate of eligibility" is one of the many
requirements to become a firearms dealer in California. (Penal
Code § 26705.)
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Codes as a dealer, importer, or manufacturer of firearms
whose licenses premises are within California and who
declare to the department an exemption from the firearms
dealer licensing requirements of 26500. (Penal Code §
28450.)
License to Manufacture Firearms: DOJ is required to
accept applications for the manufacture of firearms in
California. DOJ is further required to grant a license
if all requirements described in the code are met. DOJ
is required to maintain a centralized list of licensees.
(Penal Code §§ 29050 and 29060.)
Entertainment Firearms Permits: Any person who is at
least 21 years of age may apply for an entertainment
firearms permit from DOJ. An entertainment firearms
permit authorizes the permitholder to possess firearms
loaned to the permitholder for use solely as a prop in a
motion picture, television, video, theatrical, or other
entertainment production or event. (Penal Code § 29500.)
Permit for Assault Weapons and .50 BMG Rifles: Any
person who wishes to acquire an assault weapon after
January 1, 1900, or a .50 BMG rifle after January 1,
2005, shall first obtain a permit from DOJ. (Penal Code
§ 31000.)
Permit for Possession, Transportation and Sale of
Large-Capacity Magazines: DOJ may issue permits for the
possession, transportation, or sale of large-capacity
magazines. (Penal Code § 32315.)
Permit for Possession, Manufacture, and
Transportation of Machine Guns: DOJ may issue permits for
the possession, manufacture, and transportation or
possession, manufacture or transportation of machineguns,
upon a satisfactory showing that good cause exists for
the issuance of the permit to the applicant. No permit
shall be issued to a person who is under 18 years of age.
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(Penal Code § 32650.)
License to Sell Machineguns: DOJ may grant a license
to permit the sale of machineguns, if certain
requirements are satisfied. (Penal Code § 32700.)
Permit for Short-Barreled Rifle or Short-Barreled
Shotgun: DOJ may issue a permit for the manufacture,
possession, importation, transportation, or sale of
short-barreled rifles of short-barreled shotguns. (Penal
Code § 33300.)
Application for Return: Any person who claims title
to any firearm that is in the custody or control of a
court or law enforcement agency and who wishes to have
the firearm returned shall make application for a
determination by DOJ as to whether the applicant is
eligible to possess a firearm. (Penal Code § 33850.)
Handgun Safety Certificate Certified Instructors:
DOJ sets the minimum level of skill, knowledge, and
competency to be required of all handgun safety
certificate instructors and certifies that instructors
meet the minimum requirements. (Penal Code § 31635.)
This bill would require DOJ to provide an applicant notice if
the departments considers his or her application to be
incomplete, within 30 calendar days of receipt of that
application.
This bill would require DOJ to make a determination on all
applications received by DOJ, under to Part 6 of the Penal Code,
within 90 calendar days of receipt of the application. If DOJ
is not able to make a determination within 90 calendar days, due
to circumstances beyond DOJ's control, DOJ would be able to
extend the timeframe by an additional 90 calendar days, as
specified.
This bill would require DOJ to provide a written determination
to the applicant within the aforementioned timeframes and, in
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cases in which DOJ denies the application, the reasons for the
denial.
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
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
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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:
This bill addresses the long Department of Justice
processing times and delays, which sometimes exceed a
year, related to specific business permits and
licenses regarding firearms.
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In order for a California resident to open a business
with the intent to sell firearms, they must first
receive a Federal Firearms License from the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF). The
ATF typically denies or approves a Federal Firearms
License (FFL) within 90-days of a completed
application. The latest time it takes for the ATF, a
national agency, to process a federal firearms license
is 60 days.
Once the dealership and its owners have been vetted by
the ATF and obtained the requisite Federal Firearms
License, they must then be processed through a similar
state approval process to be placed on centralized
lists (dealers and manufacturers) from the California
Department of Justice. A prerequisite to being placed
on the one of the centralized lists is the acquisition
of a Certificate of Eligibility. Previously, there
were regulations mandating that the processing time
shall not exceed 120 days, but those regulations were
repealed by the DOJ in 2006. There are currently no
processing time restrictions for the Certificates of
Eligibility.
Only after obtaining a Certificate of Eligibility,
among other things, may the dealership apply to be on
the centralized list and wait once more for California
Department of Justice approval. The California
Department of Justice often takes longer than the ATF
to compete the processing of its initial firearm
licensee requirements.
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Once deemed a California licensed dealer, some of
these dealerships require additional licensing and
permits to sell certain types of firearms in common
use to law enforcement agencies and personnel. These
cannot be obtained until after the dealership is
established, meaning that the dealerships have already
been vetted once by the Federal Government and the DOJ
to establish that the individuals in charge of the
dealerships are not prohibited from possessing or
selling firearms. Though there were previous
regulations limiting the time it takes to process such
licenses and permits to 120 days, these were repealed
by the Department of Justice in 2005.
Since then, the processing period for these permits
and licenses has increased, sometimes taking over a
year to complete - leaving law enforcement agencies
and legitimate licensed dealerships to wait in limbo
while licenses and permits are pending, despite the
fact that these initial applications are often
accompanied by letters from law enforcement agencies
stating a necessity for the permits and/or licenses.
Other California firearms-related laws have express
processing periods. In Penal Code section 28220, the
DOJ has been given a maximum of 30 days to make a
determination as to whether a person is prohibited
from possessing firearms, but only when decision
cannot be made within the standard 10 day waiting
period. The Department of Justice has recently
testified that a person purchasing a firearm can be
determined to be eligible to lawfully possess firearms
automatically within minutes in 20 percent of the
cases.
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Penal Code Section 26205 currently mandates that
licenses to carry firearms concealed in public areas
shall be given written notice of approval or denial
within 90 days of application. This bill sets the
same, higher 90-day standard, applied to licenses to
carry firearms in public, upon all firearm-related
applications except where otherwise stated.
This bill reflects the same intent to address delayed
processing of licenses and permits of the Permit
Streamlining Act of 1977 and requires that the
Department of Justice, upon receiving a completed
application, must deny or approve said application
within 90 days of the application being deemed
complete.
2. Effect of This Legislation
There are currently no statutory limits on how long DOJ can take
to process a variety of firearms related applications, including
those described above. This legislation would require DOJ to
complete all applications received pursuant to part six of the
Penal Code, except those applications that have existing
deadlines,<3> within 90 calendar days of receipt. If DOJ is not
able to complete an application within 90 calendar days, due to
circumstances beyond DOJ's control, that application deadline
could be extended another 90 calendar days. The legislation
also requires DOJ to inform an applicant that his or her
application is incomplete, within 30 calendar days of receipt of
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<3> Under existing law, DOJ is required to complete a firearms
background check within 10 days, unless final disposition
information is not ascertainable, in which case DOJ has up to 30
days to complete the background. (Penal Code § 28220.) Also
under existing law, local law enforcement has 90 days, or 30
days after receipt of the applicant's criminal background check
from DOJ, whichever is later, to approve or deny an application
for a concealed carry permit. (Penal Code § 26205.)
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that application.
3. Proposed Amendments
The bill will be amended by the author to: (1) require DOJ to
notify an applicant within 30 calendar days of receipt of the
application, if it deems that application to be incomplete; (2)
allow DOJ to extend the 90 day deadline, by an additional 90
calendar days, if DOJ is not able to make a determination within
the initial 90 days because of circumstances beyond the
department's control; (3) require DOJ to provide written notice
of the reasons it is extending the initial 90 day period and a
date upon which a determination will likely be made; (4) require
that each applicant be provided written notice of the
determination, within the 90 to 180 day time frame; (5) redefine
"application" to mean all applications received by the
Department under Part 6 of the Penal Code; and (6) clearly state
that nothing in the section shall be construed to require DOJ to
grant an application if it is not able to make a determination
within the prescribed timeframes.
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