BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 857 Hearing Date: May 10, 2016
-----------------------------------------------------------------
|Author: |Cooper |
|-----------+-----------------------------------------------------|
|Version: |May 4, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|JRD |
| | |
-----------------------------------------------------------------
Subject: Firearms: Identifying Information
HISTORY
Source: Author
Prior Legislation:SB 808 (De León) - 2013, vetoed
AB 809 (Feuer) - Ch. 745, Stats. of 2011
AB 302 (Beall) - Ch. 344, Stats. of 2010
AB 1810 (Feuer) - 2010, failed passage on
the Senate floor
AB 161 (Steinberg) - Ch. 754, Stats. of
2003
AB 950 (Brulte) - Ch. 944, Stats. of
2001
AB 2188 (Scott) - Ch. 398, Stats. of
1998
Support: California Chapters of the Brady Campaign to Prevent
Gun Violence; California Peace Officers' Association;
Coalition Against Gun Violence, a Santa Barbara County
Coalition
Opposition:Firearms Policy Coalition; National Rifle Association
AB 857 (Cooper ) PageB
of?
Assembly Floor Vote: Not Relevant
PURPOSE
The purpose of this legislation is to require: (1) a person,
commencing July 1, 2018, to apply to and obtain from the
Department of Justice (DOJ) a unique serial number or other mark
of identification prior to manufacturing or assembling a
firearm, as specified; and (2) by January 1, 2019, any person
who, as of July 1, 2018, owns a firearm that does not bear a
serial number assigned to it to obtain a unique serial number or
other mark of identification prior to manufacturing or
assembling a firearm, as specified.
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
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. This
prohibition does not apply to a person licensed under federal
law, who manufactures less than 100 firearms a calendar year.
(Penal Code § 29010.)
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
AB 857 (Cooper ) PageC
of?
from the 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 DOJ, 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 (DROS) 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.)
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 was 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.)
AB 857 (Cooper ) PageD
of?
Existing law requires firearms to be centrally registered at the
time of transfer or sale by way of transfer forms centrally
compiled by the DOJ. The DOJ 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 DOJ 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 DROS
fee, shall be no more than is necessary to fund specific
codified costs. (Penal Code § 28225.)
Under existing law, the DOJ 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
AB 857 (Cooper ) PageE
of?
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
possessing a firearm. (Penal Code § 30000.)
This bill defines "manufacturing" or "assembling" a firearm as
"to fabricate or construct a firearm, or to fit together the
component parts of a firearm to construct a firearm."
This bill, commencing July 1, 2018, requires any person who
manufactures or assembles a firearm to:
Apply to the DOJ for a unique serial number or other
mark of identification, as specified;
Within ten days of manufacturing or assembling the
firearm, to engrave or permanently affix the unique serial
number or other mark to that firearm, as specified; and
Notify the DOJ once the serial number or other mark is
affixed to the firearm, as specified.
This bill states that by January 1, 2019, any person who, as of
July 1, 2018, owns a firearm that does not bear a serial number,
as specified, must:
Apply to the DOJ for a unique serial number or other
mark of identification, as specified;
Within ten days of manufacturing or assembling the
firearm, to engrave or permanently affix the unique serial
AB 857 (Cooper ) PageF
of?
number or other mark to that firearm, as specified; and
Notify the DOJ once the serial number or other mark is
affixed to the firearm, as specified.
This bill specifies, prior to the DOJ providing the person with
a unique serial number or other mark, the person must:
Present proof the applicant is not prohibited by state
or federal law.
Present proof of age and identity. The applicant must
be 18 years of age or older to obtain a unique serial
number or mark of identification for a firearm that is not
a handgun, and must be 21 years of age or older to obtain a
unique serial number or mark of identification for a
handgun.
Provide a description of the firearm that he or she owns
or intends to manufacture or assemble, in a manner
prescribed by the department.
Have a valid firearm safety certificate or handgun
safety certificate.
This bill prohibits the sale or transfer of ownership of a
firearm manufactured or assembled pursuant to the provisions of
this legislation, but allows for the transfer, surrender, or
sale of a firearm to a law enforcement agency, as specified.
This bill exempts the following from the provisions of this
legislation:
A firearm that has a serial number assigned, as
specified.
A firearm made or assembled prior to December 16, 1968,
that is not a handgun.
A firearm which was entered into the centralized
registry, as specified, prior to July 1, 2018, as being
owned by a specific individual or entity if that firearm
has assigned to it a distinguishing number or mark of
identification to that firearm by virtue of the department
accepting entry of that firearm into the centralized
registry.
An antique firearm, as specified.
This bill provides if the firearm is a handgun, a violation of
this section is punishable by imprisonment in a county jail not
AB 857 (Cooper ) PageG
of?
to exceed one year, or by a fine not to exceed one thousand
dollars ($1,000), or by both that fine and imprisonment. For
all other firearms, a violation of this section is punishable by
imprisonment in a county jail not to exceed six months, or by a
fine not to exceed one thousand dollars ($1,000), or by both
that fine and imprisonment. Each firearm found to be in
violation of this section constitutes a distinct and separate
offense. This section does not preclude prosecution under any
other law providing for a greater penalty.
This bill requires the DOJ to maintain electronic records of all
persons that receive a unique serial number or other mark, and
notify the DOJ that it has been engraved or affixed to the
firearm.
This bill requires DOJ to maintain and make available upon
request information concerning both of the following:
The number of serial numbers issued, as specified.
The number of arrests for violations of Section 29180.
This bill allows the DOJ to charge a fee for applications to
administer the costs of electronic tracking and would authorize
the DOJ to use the Dealer Record of Sales (DROS) account to
cover actual costs associated with this legislation.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
AB 857 (Cooper ) PageH
of?
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
AB 857 (Cooper ) PageI
of?
COMMENTS
1.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 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
AB 857 (Cooper ) PageJ
of?
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.)
The manufacturing and selling of illegal guns continues to
be an issue in California:
Manufacturing and selling illegal guns -- including
so-called "ghost guns" -- is the most common type of
investigation the Sacramento Bureau of Alcohol Tobacco
and Firearms deals with.
"Ghost guns" are missing a serial number and have been
manufactured with parts likely bought online.
"In this office we find quite a few of them and we have
made a number of cases over the last few years of people
that are selling these firearms for profit, and I would
expect that we continue to make those types of cases," said
ATF spokesman Graham Barlowe.
Last October, two brothers were indicted for illegally
manufacturing and selling guns in Sacramento. Agents seized
345 guns as part of that investigation.
Daniel Crowninshield, who is also known as "Dr. Death," was
also indicted last year for manufacturing unlicensed
firearms, using computer-controlled machines at a North
Sacramento metal shop.
In Elk Grove, machinist Richard Gray usually restores cars
at his shop, but said he has had people bring in parts
claiming they need a broken gun fixed.
"But (I) then started realizing that wasn't exactly what
they were doing. What they were really doing was trying to
create a gun that didn't have any serial numbers on it,"
Gray said.
Now, Gray said he won't accept any type of firearm.
AB 857 (Cooper ) PageK
of?
"We just tell them straight up that we're not in that kind
of business."
He's a supporter for stricter legislation on assembling
guns, but thinks it'll make illegal gun manufacturers more
desperate.
"They're gonna go someplace else. They're gonna get the
parts and bring them in here by hook or crook," he said.
There are several websites dedicated to selling parts to
build any firearm.
"We do have cases ongoing at this time, and as I said, I
would expect that we'll have cases, we'll be opening cases
in the months and year following until, really until
there's a change in the way that we see this problem,"
Barlowe said.
(Dana Griffin, ATF: 'Ghost guns' a growing trend in Sacramento
area, August 6, 2015,
http://www.kcra.com/news/atf-ghost-guns-a-growing-trend-in-sacram
ento-area/34586452.)
In 2016, the federal grand jury returned an indictment against
Craig Mason, of Auburn, charging him with unlawful dealing and
manufacturing firearms:
According to court documents, Mason and others
involved in the scheme sold the parts necessary to
assemble a firearm. Mason operated a workshop on his
property that he used to manufacture firearms by
converting AR-15-style blanks into lower receivers.
A "blank" is a metal casting that is not considered a
firearm by ATF. It is converted into a "lower
receiver" by using a drill press or automated machine
to create the precise shape and space necessary for
the lower receiver to accept the parts that will allow
the firing of a projectile. These parts (e.g., the
hammer, bolt or breechlock, and firing mechanism) are
the internal mechanical parts that combine with a
trigger, firing pin, and other parts to form a
AB 857 (Cooper ) PageL
of?
functioning firearm. Once the blank is converted to a
lower receiver, it is considered firearm by statute,
even if there is no barrel, handle, or trigger, etc.,
and it is subject to regulation.
On April 23, 2013, Mason manufactured two AR-15-style
lower receivers for an ATF confidential informant.
Despite being told that the confidential informant had
been to prison and therefore prohibited from
possessing a firearm, Mason created the firearms and
sold his services to the confidential informant.
(https://www.atf.gov/news/pr/auburn-man-indicted-illegally-m
anufacturing-firearms.)
3. Effect of This Legislation
SB 1407 would require any person who manufactures or assembles a
firearm to first obtain a serial number from the DOJ and
demonstrate that he or she is not prohibited from owning
firearms. Specifically, any person who manufactures or
assembles a firearm will be required to:
Obtain a unique serial number or other mark from the DOJ
prior to making or assembling a firearm;
Within ten days of making or assembling to engrave or
permanently affix the unique serial number or other mark to
the firearm; and,
Notify the DOJ once the serial number or other mark is
affixed to the firearm.
Prior to the DOJ providing the person with a unique serial
number or other mark, the person must:
Present proof the applicant is not prohibited by state
or federal law.
Present proof of age and identity. The applicant must
be 18 years of age or older to obtain a unique serial
number or mark of identification for a firearm that is not
a handgun, and must be 21 years of age or older to obtain a
unique serial number or mark of identification for a
handgun.
Provide a description of the firearm that he or she owns
or intends to manufacture or assemble, in a manner
AB 857 (Cooper ) PageM
of?
prescribed by the department.
Have a valid firearm safety certificate or handgun
safety certificate.
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. This legislation is intended to
close this loophole.
4. Related Legislation
This committee heard and passed (5-2) Senate Bill 1407 (DeLeon)
on April 19, 2016, which is virtually identical to this bill.
5. Senate Bill 808 Veto Message
In 2014, the Governor vetoed a virtually identical piece of
legislation, SB 808 (De León), stating:
I am returning Senate Bill 808 without my signature.
SB 808 would require individuals who build guns at home to
first obtain a serial number and register the weapon with
the Department of Justice.
I appreciate the author's concerns about gun violence, but
I can't see how adding a serial number to a homemade gun
would significantly advance public safety.
-- END -
---------------------------
<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.)
AB 857 (Cooper ) PageN
of?