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
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