BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 857|
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                                   THIRD READING 


          Bill No:  AB 857
          Author:   Cooper (D), et al.
          Amended:  5/11/16 in Senate
          Vote:     21 

           PRIOR VOTES NOT RELEVANT

           SENATE PUBLIC SAFETY COMMITTEE:  5-2, 5/10/16
           AYES:  Hancock, Glazer, Leno, Liu, Monning
           NOES:  Anderson, Stone

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/16/16
           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           ASSEMBLY FLOOR:  Not relevant
                                          
           SUBJECT:   Firearms:  identifying information


          SOURCE:    Author
          
          DIGEST: This bill requires: (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.

          ANALYSIS:  
          








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          Existing law: 

           1) 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).) 

           2) Makes it illegal, under the United States Undetectable  
             Firearms Act of 1988,  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).)  

           3) 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.)

           4) Makes it illegal to change, alter, remove, or obliterate the  
             name of the maker, model, manufacturer's number, or other  
             mark of identification on any pistol, revolver, or any other  
             firearm, without first having secured written permission from  
             the 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.)

           5) 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 DOJ has been destroyed or obliterated.   
             (Penal Code § 23910.)

           6) Makes it misdemeanor, with limited enumerated exceptions,  







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             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.)

           7) 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 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.) 

           8) 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.)

           9) 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.)

           10)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).) 

           11)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  







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             inpatient treatment for a mental health disorder, as  
             specified.  (Penal Code § 28220.) 

           12)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.)

           13)Allows the DOJ to 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:

              a)    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.
              b)    For the actual processing costs associated with the  
                submission of a DROS to the DOJ.
              c)    For the actual costs associated with the preparation,  
                sale, processing, and filing of reports utilized pursuant  
                to Sections 26905, 27565, or 28000, or paragraph (1) of  
                subdivision (a) of Section 27560.
              d)    For the actual costs associated with the electronic or  
                telephonic transfer of information pursuant to Section  
                28215.  (Penal Code § 28230.)

           14)Requires 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: 








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           1) 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."  

           2) Requires, commencing July 1, 2018, any person who  
             manufactures or assembles a firearm to: 

              a)    Apply to the DOJ for a unique serial number or other  
                mark of identification, as specified; 
              b)    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
              c)    Notify the DOJ once the serial number or other mark is  
                affixed to the firearm, as specified.

           3) 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:

              a)    Apply to the DOJ for a unique serial number or other  
                mark of identification, as specified;
              b)    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
              c)    Notify the DOJ once the serial number or other mark is  
                affixed to the firearm, as specified.

           4) Specifies, prior to the DOJ providing the person with a  
             unique serial number or other mark, the person must: 

              a)    Present proof the applicant is not prohibited by state  
                or federal law.
              b)    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.
              c)    Provide a description of the firearm that he or she  
                owns or intends to manufacture or assemble, in a manner  
                prescribed by the department.
              d)    Have a valid firearm safety certificate or handgun  
                safety certificate.








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           5) 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.

           6) Exempts the following from the provisions of this bill:

              a)    A firearm that has a serial number assigned, as  
                specified.
              b)    A firearm made or assembled prior to December 16,  
                1968, that is not a handgun.
              c)    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.
              d)    An antique firearm and curio and relic, as specified. 

           7) Provides if the firearm is a handgun, a violation of this  
             section is punishable by imprisonment in a county jail not 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.

           8) 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.  

           9) Requires DOJ to maintain and make available upon request  
             information concerning both of the following:

              a)    The number of serial numbers issued, as specified.
              b)    The number of arrests for violations of Section 29180.

           10)Allows the DOJ to charge a fee for applications to  







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             administer the costs of electronic tracking and authorizes  
             the DOJ to use the DROS account to cover actual costs  
             associated with this bill. 

          Comments
          
          AB 857 requires 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 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 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 bill is intended to close this  
          loophole. 
          







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          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          According to the Senate Appropriations Committee, the fiscal  
          impact includes: 


           One-time costs of $75,000 (Special Fund*) for the DOJ to  
            promulgate regulations. 
           One-time costs to DOJ in the range of $2 million (Special  
            Fund*) for enhancements to various automation systems. Costs  
            include staffing, overtime, external consultants, and software  
            development. Ongoing costs for storage, updates and  
            maintenance are estimated to be in the hundreds of thousands  
            of dollars annually. 
           Start-up costs to DOJ of $365,000 (Special Fund*) to process  
            and verify an estimated 15,000 applications to register 30,000  
            firearms. Annual costs in the range of $100,000 (Special  
            Fund*) for ongoing administration of the program to process an  
            estimated 1,000 applications to register 2,000 firearms,  
            verify required information, assign serial numbers, and input  
            data. The $25 fee per application would cover start-up costs  
            but would not sustain the ongoing costs of the program (1,000  
            applications would only generate $25,000 in fee revenue). 
           Non-reimbursable local enforcement costs (Local Funds) offset  
            to a degree by fine revenue to the extent violations of the  
            new registration requirements occur. 
           Potential court-related costs (General Fund**) for new  
            misdemeanor filings. 
           While the impact of this bill independently on local jails is  
            likely to be minor, the cumulative effect of expanded  
            misdemeanors could create General Fund cost pressure on  
            capital outlay, staffing, programming, the courts, and other  
            resources in the context of criminal justice realignment. 

          *Dealers Record of Sale (DROS) Account - Appropriation staff  
          noted that the DROS Account is structurally imbalanced, with an  
          estimated year-end fund balance of less than $1 million in FY  
          2016-17. As a result, an appropriation from another fund source,  
          potentially the General Fund, would be required to support the  
          activities required by this bill.







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          **Trial Court Trust Fund


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          SUPPORT:   (Verified5/17/16)


          California Chapters of the Brady Campaign to Prevent Gun  
          Violence
          California Peace Officers' Association
          Coalition Against Gun Violence, a Santa Barbara County Coalition  



          OPPOSITION:   (Verified5/17/16)


          Firearms Policy Coalition
          National Rifle Association 
          Several Individuals

          ARGUMENTS IN SUPPORT:     The California Chapters for the Brady  
          Campaign to Prevent Gun Violence states, 

            With rapid advances in 3D printing technology, it is now  
            possible to "print" functional firearms made from plastic or  
            metal.  Though these guns are currently very crude, their  
            functionality will improve rapidly.  However, due to the  
            materials from which these guns are manufactured, they would  
            almost certainly not pass the testing requirements in the  
            Unsafe Handgun Act and therefore would not, under normal  
            circumstances, be legal for sale to the public.  Furthermore,  
            plastic guns have the ability to pass through metal detectors  
            where they can be used to cause harm in sensitive places.

            Another problem is the increasing appearance on the market of  
            partially complete or "unfinished" lower receivers.  The lower  
            receiver is that part of a long gun that contains the trigger,  
            firing pin, and ammunition feeding mechanisms.  These are  
            treated the same as a long gun and are currently legally  







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            available, provided that the purchaser passes a background  
            check, the lower receiver has a serial number, and a record of  
            the purchase is created.  However, "unfinished" lower  
            receivers are not considered to be a firearm, but with a few  
            simple modifications, they can become fully functional lower  
            receivers.  Firearms, including assault weapons, assembled  
            from these partially complete lower receivers are untraceable  
            for law enforcement.

            AB 857 deals with these problems by requiring any person who  
            manufactures or assembles a firearm to first apply to the  
            Department of Justice for a unique serial number or other  
            identifying mark that will have to be permanently engraved or  
            affixed to the firearm.  If the firearm is made from plastic,  
            a piece of stainless steel must be embedded within the plastic  
            with the serial number engraved or permanently affixed to the  
            steel so that the firearm would be discovered by a metal  
            detector.  Prior to issuing the serial number, the Department  
            will require the applicant to pass a background check.   
            Additionally, the Department will keep a record of the firearm  
            so that it could be traced or the owner could be disarmed if  
            he/she subsequently becomes prohibited from possessing a  
            firearm.  Additionally, the bill will require any person who,  
            as of July 1, 2018, owns a firearm that does not bear a serial  
            number to apply to the Department for a unique serial number.
            AB 857 prohibits the sale or transfer of self-manufactured or  
            assembled firearms.  Homemade guns may be of very poor quality  
            and extremely unsafe and should therefore only be for personal  
            use.  At this point, many 3-D printed guns explode when they  
            are fired.  The technology will, no doubt, improve but it is  
            unlikely that these guns would ever meet basic firing or drop  
            tests and such unsafe guns should not be transferable.   
            Furthermore, if the technology improves and inexpensive  
            functional homemade firearms become readily available, our  
            streets could once again be flooded with cheap "junk guns",  
            which were commonly used in crime two decades ago.  

            We believe that it is essential that self-manufactured and  
            self-assembled guns be regulated.  AB 857 furthers our goal of  
            keeping weapons out of dangerous hands by requiring background  
            checks and records for these guns.  

          ARGUMENTS IN OPPOSITION: The National Rifle Association states, 








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            AB 857 would make it a crime under California law for an  
            individual to manufacture a firearm without first obtaining  
            California Department of Justice (DOJ) approval to do so and  
            subsequently engraving a DOJ-provided serial number on the  
            firearm.  This legislation should be opposed because it will  
            effectively nullify the long-standing and constitutionally  
            protected activity of building one's own firearms.   
            Additionally, AB 857 will promote the destruction and  
            devaluation of existing firearms without any tangible public  
            safety benefit. 

            First, precluding an individual from manufacturing a firearm  
            without first obtaining government approval infringes on the  
            longstanding American tradition of manufacturing a personal  
            firearm.  From prior to the Revolution to the Civil War and  
            beyond, Americans with the requisite desire, skill and tools  
            have fabricated their own firearms. (See Peter Jensen-Haxel,  
            3D Printers, Obsolete Firearm Supply Controls, and the Right  
                                           to Build Self-Defense Weapons Under Heller, 42 Golden Gate U.  
            L. Rev. 447, 477-78 (2012).)  This tradition continues to this  
            day, with many Californians manufacturing their own firearms  
            without seeking government permission to do so. 

            As the U.S. Supreme Court has made clear, the Second Amendment  
            protects the "ancient" and "natural" right to keep and bear  
            arms. (District of Columbia v. Heller, 554 U.S. 570, 599  
            (2008).)  The Court went to great lengths to explain that the  
            scope of that right is defined by the public's understanding  
            of the Second Amendment at the time of the founding. (Id. at  
            605.)  Accordingly, given this unobstructed and long-standing  
            tradition of personally manufacturing firearms stretching from  
            the Revolutionary War to the present, AB 857's requirement  
            that individuals receive government approval to manufacture  
            their personal firearms violates the Second Amendment.

            Moreover, the restrictions imposed by this legislation are  
            wholly unwarranted.  State and federal laws already impose  
            rigorous restrictions on the manufacture, transfer and  
            possession of all types of firearms. For example, it is  
            already illegal for any member of the general public to make  
            an assault weapon or to possess one if not properly  
            registered. (See Cal. Penal Code §§ 30600 and 30605.)   
            Similarly, the manufacture and possession of machineguns,  
            short-barreled shotguns and short-barreled rifles are highly  







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            regulated under state and federal and law. (26 U.S.C. § 5861;  
            Cal. Penal Code §§ 32625, 33210.)  And potentially dangerous  
            people convicted of felony offenses, subject to a restraining  
            order, or adjudicated mentally defective, already may not  
            possess firearms. (18 U.S.C. § 922(g); Cal. Penal Code §§  
            29800, 29825; Cal. W & I. Code § 8103.)  Given the nature of  
            criminals and the scope of existing firearm restrictions, it  
            is highly unlikely that AB 857 will do anything to keep  
            weapons out of the hands of those who shouldn't have them. 

            Make no mistake, AB 857 will effectively end the practice of  
            personally manufacturing firearms in California. Section 4 of  
            this bill requires that each person, within ten days of  
            manufacturing or assembling a firearm, affix a unique serial  
            number provided by DOJ, and that the number be engraved in a  
            manner that meets or exceeds the requirements imposed on  
            federally licensed firearms manufactures.  The problem is the  
            federal requirements, designed for companies that are in the  
            business of manufacturing firearms for national distribution,  
            are extensive.  A manufacture must stamp, at a minimum depth  
            of .003 inch, the firearm's serial number, model, and caliber,  
            as well as the name of the manufacturer, and the city and  
            state where manufactured. 27 C.F.R. § 478.92.  [Footnote  
            omitted.]Needless to say, precisely engraving all this  
            information requires highly sophisticated equipment that  
            virtually no Californian manufacturing hobbyist has, has  
            access to or could afford. Thus, AB 857 will without a doubt  
            price most Californians out of personal firearms  
            manufacturing.

            Additionally, this legislation would cause firearm owners to  
            damage and/or significantly diminish the value of their  
            firearms.  This bill etches out minor exceptions to its  
            requirements.  One being the fact that it does not require the  
            markings for a "firearm made or assembled prior to December  
            16, 1968, that is not a handgun."  The year 1968 is  
            significant because that is the year the federal Gun Control  
            Act was enacted.  The Gun Control Act significantly enhanced  
            the 1958 Treasury Department regulations promulgated under the  
            Federal Firearms Act, which required that firearms be stamped  
            with a specific serial number. Gun Control Act of 1968 §  
            923(i).  While this law creates an exception for non-handguns,  
            it requires non-antique handguns made prior to 1968 to be  
            defaced by adding a serial number.  Any mark defacing a  







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            firearm of that age will result in a diminution of that  
            firearm's value. To make matters worse, there is no public  
            awareness program provided by the legislation to inform owners  
            of unmarked firearms of the new requirement - thus making them  
            inadvertent criminals. 


          Prepared by:Jessica Devencenzi / PUB. S. /
          5/18/16 16:21:31


                                   ****  END  ****