BILL ANALYSIS Ó
AB 1673
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Date of Hearing: March 15, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1673 (Gipson) - As Introduced January 19, 2016
As Proposed to be Amended in Committee
SUMMARY: Expands the definition of "firearm" to include the
frame or receiver of the weapon or a frame or receiver "blank,"
"casting" or "machined body" that is designed and clearly
identifiable as a component of a functional weapon, from which
is expelled through a barrel, a projectile by the force of an
explosion or other form of combustion.
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
(AG). (18 U.S.C. § 923 subd. (i).)
2)Specifies that 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 subd.
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(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 (Penal
Code § 29010). This prohibition does not apply to a person
licensed under federal law, who manufactures less than 100
firearms a calendar year. (Pen. Code § 29010 subd. (b).)
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 Department of Justice (DO)J to make that change,
alteration, or removal. (Pen. 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 department has been destroyed or obliterated.
(Pen. Code § 23910.)
6)Makes it a 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. (Pen. 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. (Pen. Code §§ 27510 and 16400.)
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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 will be extended to all firearms.
(Pen. Code § 26840.)
9)Requires that firearms dealers obtain certain identifying
information from firearms purchasers and forward that
information, via electronic transfer to the DOJ to perform a
background check on the purchaser to determine whether he or
she is prohibited from possessing a firearm. (Pen. 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 the DOJ indicating who owns what firearm by make,
model, and serial number and the date thereof. (Pen. Code §
11106 subds. (a) & (c).)
11)Requires that, upon receipt of the purchaser's information,
the 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. (Pen. 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 Dealer's Record of Sale Entry System (DROS or DROS fee),
shall be no more than is necessary to fund specific codified
costs. (Pen. Code § 28225.)
13)Provides the AG shall establish and maintain an online
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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. (Pen. Code § 30000.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 1673 will
expand the definition of a firearm, to include "unfinished
frames and receivers", which will close a dangerous loophole
that allows anyone to sell, trade and manufacture in
partial-completion the only part of a firearm that is subject
to serial-number identification and registration. The change
will treat unfinished receivers and frames the same way a
finished receiver is treated, and require background checks in
order to be sold, prohibit them from the possession of the
mentally ill and convicted felons, and require mandatory
serial number application. This expanded definition will not
affect the activities of gun manufacturers or home
firearm-crafting enthusiasts. Gun manufacturers and home
firearm-crafting enthusiasts will however be required to
register their firearms as they manufacture them."
2)Lower Receivers: There are no provisions in existing law that
prevents a person from buying an 80% lower receiver and then
making it into a fully functional firearm. 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 .)
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. Additionally, according to the Bureau of Alcohol,
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Tobacco, Firearms and Explosives (ATF) "firearms that began as
receiver blanks have been recovered after shooting incidents,
from gang members and from prohibited people after they have
been used to commit crimes."
( https://www.atf.gov/firearms/qa/have-firearms-made-unmarked-re
ceiver-blanks-been-recovered-after-being-used-crime.) "ATF
successfully traces crime guns to the first retail purchaser
in most instances. ATF starts with the manufacturer and goes
through the entire chain of distribution to find who first
bought the firearm from a licensed dealer. Because receiver
blanks do not have markings or serial numbers, when firearms
made from such receiver blanks are found at a crime scene, it
is usually not possible to trace the firearm or determine its
history, which hinders crime gun investigations jeopardizing
public safety."
( https://www.atf.gov/firearms/qa/can-functioning-firearms-made-
receiver-blanks-be-traced.
3)Amendments Taken in Committee to Avoid Vagueness: As
currently written the bill is arguably vague. Laws which are
so vague that a person is unable to determine whether they are
in violation of the law may be held "void for vagueness" by
courts. The concept was articulated by Supreme Court Justice
Sutherland as the following:
"[T]he terms of a penal statute [...] must be sufficiently
explicit to inform those who are subject to it what conduct
on their part will render them liable to its penalties? and
a statute which either forbids or requires the doing of an
act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application violates the first essential of due process of
law." Connaly v. General Construction Co., 269 U.S. 285
(1926)
In this case, a felon in possession of a block of metal could
arguably be found to be a felon in possession of a firearm.
This crime holds relatively serious consequences in
California. The term "readily converted to the functional
condition" is arguably vague and overbroad. The author should
consider amendments to be more specific in the definition of
what constitutes a lower receiver or unfinished frame.
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The author has agreed to take amendments that include a much
more definite description of the items which will constitute a
firearm under the provisions of the bill. Unlike the prior
version of the bill, these amendments make it clear that the
objects in question must be "clearly identifiable as a
component of a functional weapon."
4)Santa Monica Shooting: 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
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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 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.)
5)Governor's Veto Message of 2013's SB 808 (De Leon): SB 808
required serial numbers on lower receivers. The governor
vetoed the bill with the following message:
"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."
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6)Argument in Support: According to the California Chapters of
the Brady Campaign, " In furtherance of our goal to reduce
firearm violence in our communities, the California Brady
Campaign Chapters support AB 1673, introduced by
Assemblymember Mike Gipson. The bill addresses an alarming
development in California that threatens public safety.
"A priority policy objective for the California Brady Campaign
is to ensure that every firearm owner has passed a background
check and that all firearm transfers include a thorough
background check, 10-day waiting period, and a record of the
transaction that includes the serial number of the firearm.
There have been numerous studies indicating that these
requirement are good strategies for reducing gun violence and
clearly, they further our core goal of keeping weapons out of
dangerous hands. Although existing California law requires
background checks and the retention of transfer records,
people have found that they can avoid these requirements and
other California gun laws by creating and marketing partially
complete or "80 percent" lower receivers or frames. According
to media reports and law enforcement, there is a growing
number of firearms assembled from partially complete receivers
and fames and these firearms are increasingly used in crime.
AB 1673 will address this problem.
"The lower receiver is that part of a long gun that contains
the trigger, firing pin, and ammunition feeding mechanisms.
They are treated the same as a long gun and are currently
legally available, provided that the purchaser passes a
background check, the lower receiver has a serial number, and
a record of the purchase is created. Similarly, a frame for a
pistol is treated as a handgun and has a serial number.
However, partially complete or "80 percent" lower receivers
and frames are not considered to be firearms, but with a few
simple modifications, they can become fully functional. A
person with a drill press can easily drill the necessary holes
to complete the receiver or frame and advances in 3D printing
technology is increasing the availability of unfinished lower
receivers and frames. Firearms assembled from these partially
complete lower receivers and frames are untraceable for law
enforcement.
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"AB 1673 will deal with this problem by expanding the
definition of firearms to include unfinished frames and
receivers that can be readily converted to the functional
condition of a finished frame or receiver. The Brady Campaign
supports this concept and believes that weapons assembled from
unfinished lower receivers and frames should be subject to the
full extent of the law. Determining at what point a piece of
metal or other material should be considered a firearm is
difficult to establish, but the 'readily converted' standard,
with, perhaps, more definition, is a good approach.
"The shooter in the 2013 Santa Monica shooting, in which six
people were killed, was prohibited from purchasing firearms.
Instead, he machined himself an AR-15-type semiautomatic rifle
from an aluminum partial lower receiver. This is an example
of why it is essential that guns assembled from partial lower
receivers and frames be regulated. AB 1673 will help keep
weapons out of the hands of those considered at risk of
violence, such as criminals, children, and persons with severe
mental illness. Accordingly, the California Brady Campaign
Chapters are in strong support of AB 1673 and urge your AYE
vote."
7)Argument in Opposition: According to the Firearms Policy
Coalition, "AB 1673 would change the definition of a firearm
to include things that are not firearms.
"In the interest of clarity, and because the best comedy
requires no punchline, we offer here the entire substance of
AB 1673 (amending § 16520(b) of the Penal Code):
"As used in the following provisions, 'firearm' includes
the finished frame or receiver of a weapon, or the
unfinished frame or receiver of a weapon that can be
readily converted to the functional condition of a finished
frame or receiver?
"(Note the obvious lack of definition for the new term of art,
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'unfinished frame or receiver of a weapon that can be readily
converted to the functional condition of a finished frame or
receiver.')
"AB 1673 is as dangerous as it is Orwellian in its linguistic
dissonance, creating severe new penalties for non-violent
crimes with what amounts to paperweights by calling things
firearms that are not actually firearms.
"Given that 'readily convertible' is a function of time,
skill, knowledge, experience, and access to tools,
information, materials, and equipment (stamps, molds,
mandrels, hydraulic presses, jigs, drills, mills, rivets,
welders, sandblasters, software, blueprints, CNC machines,
computer numerical control routers, raw materials, etc.), one
must wonder if AB 1673 is simply lazy or purposefully hostile
to people with access to tools, information, knowledge, and
commodity materials.
"In order to comply with AB 1673, non-firearm firearms would
need to be taken to and transferred through a licensed (real)
firearms dealer. These 'readily convertible' pieces of
plastic, wood, aluminum, iron, or steel would then need to be
entered into the California Department of Justice (DOJ)
Dealer's Record of Sale Entry System (DROS DES) in order to
provide the DOJ with the information required to register the
non-firearm with the state. (Can you imagine what the DOJ's
DROS DES technical support logs will look like after AB 1673?)
"Unfortunately for Assemblymember Gipson, the DOJ's systems
are designed for actual firearms. AB 1673 would necessitate
the promulgation of new regulations as well as costly
modifications to DOJ's many systems and databases. (While the
cost of doing as much would certainly be substantial,
California would at least have bragging rights to the first
non-firearm firearm database in the known history of the
world.)
"Adding insult to injury, following the entry of the
non-firearm firearm into the DROS system, the non-firearm
firearm owner would then be required to wait at least 10 days
(and up to 30) to take possession of their non-firearm firearm
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from the transferring dealer.
"And should the non-firearm firearm owner ever be found or
thought to be prohibited from firearm possession, the person
would be placed into the DOJ's failed Armed Prohibited Persons
system so DOJ agents or local law enforcement could confiscate
the non-firearm firearm."
8)Related Legislation: SB 1407 (De Leon), requires a person who
manufactures or assembles a firearm to first apply to the DOJ
for a unique serial number or other identifying mark. Requires
any person who owns a firearm that does not bear a serial
number to likewise apply to the department for a unique serial
number or other mark of identification. Prohibits the sale or
transfer of ownership of a firearm manufactured or assembled
pursuant to these provisions. Prohibits a person from aiding
in the manufacture or assembly of a firearm by a person who is
prohibited from possessing a firearm. SB 1407 has been
referred to Senate Rules Committee for further assignment.
9)Prior Legislation: SB 808 (De Leon) of the 2013-2014
legislative session, required a person, commencing January 1,
2016, 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. SB 808 was
vetoed by the governor.
REGISTERED SUPPORT / OPPOSITION:
Support
California Chapters of the Brady Campaign
California Civil Liberties Advocacy
Coalition Against Gun Violence
Law Center to Prevent Gun Violence
Opposition
California Association of Federal Firearms Licensees
California Sportsmen's Lobby
Crossroads of the West Gun Shows
Firearms Policy Coalition
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National Rifle Association
National Shooting Sports Foundation
Outdoor Sportsmen's Coalition of California
Safari Club International
One private individual.
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744