BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 857| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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: AB 857 Page 2 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, AB 857 Page 3 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 AB 857 Page 4 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: AB 857 Page 5 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. AB 857 Page 6 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 AB 857 Page 7 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. AB 857 Page 8 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. AB 857 Page 9 **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 AB 857 Page 10 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, AB 857 Page 11 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 AB 857 Page 12 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 AB 857 Page 13 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 ****