BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1673 Hearing Date: June 14, 2016
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|Author: |Gipson |
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|Version: |May 31, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Firearms: Unfinished Frame or Receiver
HISTORY
Source: Author
Prior Legislation: SB 808 (De León) - 2013, vetoed
AB 809 (Feuer) - Chap. 745, Stats. of 2011
AB 302 (Beall) - Chap. 344, Stats. of 2010
AB 1810 (Feuer) - 2010, failed passage on
the Senate floor
AB 161 (Steinberg) - Chap. 754, Stats. of
2003
AB 950 (Brulte) - Chap. 944, Stats. of
2001
AB 2188 (Scott) - Chap. 398, Stats. of
1998
Support: American Academy of Pediatrics; California Chapters of
the Brady Campaign; California Civil Liberties
Advocacy; City of Carson; City of Santa Monica; Law
Center to Prevent Gun Violence
Opposition:California Association of Federal Firearms Licensees;
California Rifle and Pistol Association; California
Sportsmen's Lobby; Crossroads of the West Gun Shows;
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Firearms Policy Coalition; Gun Owners of California;
National Rifle Association; National Shooting Sports
Foundation; Outdoor Sportsmen's Coalition of
California; Safari Club International
Assembly Floor Vote: 44 - 33
PURPOSE
The purpose of this bill is to expand the definition of
"firearm" to include 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 federal law requires licensed firearms dealers, before
they may deliver a firearm to a purchaser, to perform a
background check on the purchaser through the federal National
Instant Criminal Background Check System ("NICS"). (18 U.S.C §§
921, et seq.)
Existing federal law requires licensed importers and licensed
manufacturers to identify each firearm imported or manufactured
by using the serial number engraved or cast on the receiver or
frame of the weapon, in such manner as prescribed by the
Attorney General. (18 U.S.C. § 923(i).)
Under existing federal law, the United States Undetectable
Firearms Act of 1988 makes it illegal to manufacture, import,
sell, ship, deliver, possess, transfer, or receive any firearm
that is not as detectable by walk-through metal detection as a
security exemplar containing 3.7 oz of steel, or any firearm
with major components that do not generate an accurate image
before standard airport imaging technology. (18 U.S.C. §
922(p).)
Existing law requires all sales, loans, and transfers of
firearms to be processed through or by a state-licensed firearms
dealer or a local law enforcement agency. (Penal Code § 27545.)
Existing law defines "firearm" as a device, designed to be used
as a weapon, from which is expelled through a barrel, a
projectile by the force of an explosion or other form of
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combustion. (Penal Code § 16520.)
Existing law provides that there is a 10-day waiting period when
purchasing a firearm through a firearms dealer. During which
time, a background check is conducted. (Penal Code §§ 26815 and
27540.)
Existing law requires a person be at least 18 years of age to
purchase a rifle or shotgun. To purchase a handgun, a person
must be at least 21 years of age. As part of the Dealer Record
of Sales (DROS) process, the purchaser must present "clear
evidence of identity and age" which is defined as a valid,
non-expired California Driver's License or Identification Card
issued by the Department of Motor Vehicles. (Penal Code §§
27510 and 16400.)
Existing law requires purchasers to present a handgun safety
certificate prior to the submission of DROS information for a
handgun or provide the dealer with proof of exemption pursuant
to California Penal Code Section 31700. Beginning on January 1,
2015, this requirement was extended to all firearms. (Penal
Code § 26840.)
Existing law requires that firearms dealers obtain certain
identifying information from firearms purchasers and forward
that information, via electronic transfer to the Department of
Justice to perform a background check on the purchaser to
determine whether he or she is prohibited from possessing a
firearm. (Penal Code §§ 28160-28220.)
Existing law requires firearms to be centrally registered at the
time of transfer or sale by way of transfer forms centrally
compiled by DOJ. The DOJ is required to keep a registry from
data sent to DOJ indicating who owns what firearm by make,
model, and serial number and the date thereof. (Penal Code §
11106(a) and (c).)
Existing law requires that, upon receipt of the purchaser's
information, DOJ shall examine its records, as well as those
records that it is authorized to request from the State
Department of Mental Health pursuant to Section 8104 of the
Welfare and Institutions Code, in order to determine if the
purchaser is prohibited from purchasing a firearm because of a
prior felony conviction or because they had previously purchased
a handgun within the last 30 days, or because they had received
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inpatient treatment for a mental health disorder, as specified.
(Penal Code § 28220.)
Existing law allows the DOJ to require the dealer to charge each
firearm purchaser a fee not to exceed $14, except that the fee
may be increased at a rate not to exceed any increase in the
California Consumer Price Index as compiled and reported by the
Department of Industrial Relations. This fee, known as the DROS
fee, shall be no more than is necessary to fund specific
codified costs. (Penal Code § 28225.)
Under existing law, the DOJ may charge a fee sufficient to
reimburse it for each of the following but not to exceed
fourteen dollars ($14), except that the fee may be increased at
a rate not to exceed any increase in the California Consumer
Price Index as compiled and reported by the Department of
Industrial Relations:
For the actual costs associated with the preparation,
sale, processing, and filing of forms or reports required
or utilized pursuant to any provision listed in subdivision
(a) of Section 16585.
For the actual processing costs associated with the
submission of a Dealers' Record of Sale to the department.
For the actual costs associated with the preparation,
sale, processing, and filing of reports utilized pursuant
to Sections 26905, 27565, or 28000, or paragraph (1) of
subdivision (a) of Section 27560.
For the actual costs associated with the electronic or
telephonic transfer of information pursuant to Section
28215.
Any costs incurred by the Department of Justice to
implement this section shall be reimbursed from fees
collected and charged pursuant to this section. No fees
shall be charged to the dealer pursuant to Section 28225
for implementing this section. (Penal Code § 28230.)
Under existing law, the Attorney General shall establish and
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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 expands the definition of "firearm" to include 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
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Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are proportionate,
and cannot be achieved through any other reasonably
appropriate remedy.
COMMENTS
1. Need for Legislation
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
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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.Recent Events
According to a July 15, 2013, briefing prepared by the Minority
Staff of the Committee on Energy and Commerce, United States
House of Representatives:
On June 7, 2013, John Zawahri, 23, killed five people and
injured several more during a shooting rampage that lasted
approximately 13 minutes in Santa Monica, California. He
first shot and killed his father, Samir Zawahri, and
brother, Christopher, at their home. He then pulled over
and carjacked Laurie Sisk, forcing her to drive at gunpoint
to Santa Monica College. Zawahri shot at numerous cars,
pedestrians, and a bus en route, killing the college's
groundskeeper, Carlos Franco, and his daughter, Marcela.
Upon arriving at the campus, he then fatally shot another
woman, Margarita Gomez. He then entered the school
library, where he attempted to kill several library patrons
who were hiding in a safe room. Police, who had been
alerted to the shooting and to Zawahri's location by
numerous 911 calls, exchanged gunfire in the library with
the shooter and pronounced him dead at the scene.
According to authorities, Zawahri fired approximately 100
rounds in total.
Zawahri had a history of mental illness. In 2006, a
teacher at his high school discovered Zawahri researching
assault weapons online. School officials contacted the
police and he was subsequently admitted to the psychiatric
ward at the University of California, Los Angeles Medical
Center. Zawahri attempted to buy a weapon in 2011, but a
background check conducted by the California Department of
Justice found him ineligible and denied the purchase. The
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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.)
The manufacturing and selling of illegal guns continues to
be an issue in California:
Manufacturing and selling illegal guns -- including
so-called "ghost guns" -- is the most common type of
investigation the Sacramento Bureau of Alcohol Tobacco
and Firearms deals with.
"Ghost guns" are missing a serial number and have been
manufactured with parts likely bought online.
"In this office we find quite a few of them and we have
made a number of cases over the last few years of people
that are selling these firearms for profit, and I would
expect that we continue to make those types of cases," said
ATF spokesman Graham Barlowe.
Last October, two brothers were indicted for illegally
manufacturing and selling guns in Sacramento. Agents seized
345 guns as part of that investigation.
Daniel Crowninshield, who is also known as "Dr. Death," was
also indicted last year for manufacturing unlicensed
firearms, using computer-controlled machines at a North
Sacramento metal shop.
In Elk Grove, machinist Richard Gray usually restores cars
at his shop, but said he has had people bring in parts
claiming they need a broken gun fixed.
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"But (I) then started realizing that wasn't exactly what
they were doing. What they were really doing was trying to
create a gun that didn't have any serial numbers on it,"
Gray said.
Now, Gray said he won't accept any type of firearm.
"We just tell them straight up that we're not in that kind
of business."
He's a supporter for stricter legislation on assembling
guns, but thinks it'll make illegal gun manufacturers more
desperate.
"They're gonna go someplace else. They're gonna get the
parts and bring them in here by hook or crook," he said.
There are several websites dedicated to selling parts to
build any firearm.
"We do have cases ongoing at this time, and as I said, I
would expect that we'll have cases, we'll be opening cases
in the months and year following until, really until
there's a change in the way that we see this problem,"
Barlowe said.
(Dana Griffin, ATF: 'Ghost guns' a growing trend in Sacramento
area, August 6, 2015,
http://www.kcra.com/news/atf-ghost-guns-a-growing-trend-in-sacram
ento-area/34586452.)
In 2016, the federal grand jury returned an indictment against
Craig Mason, of Auburn, charging him with unlawful dealing and
manufacturing firearms:
According to court documents, Mason and others
involved in the scheme sold the parts necessary to
assemble a firearm. Mason operated a workshop on his
property that he used to manufacture firearms by
converting AR-15-style blanks into lower receivers.
A "blank" is a metal casting that is not considered a
firearm by ATF. It is converted into a "lower
receiver" by using a drill press or automated machine
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to create the precise shape and space necessary for
the lower receiver to accept the parts that will allow
the firing of a projectile. These parts (e.g., the
hammer, bolt or breechlock, and firing mechanism) are
the internal mechanical parts that combine with a
trigger, firing pin, and other parts to form a
functioning firearm. Once the blank is converted to a
lower receiver, it is considered firearm by statute,
even if there is no barrel, handle, or trigger, etc.,
and it is subject to regulation.
On April 23, 2013, Mason manufactured two AR-15-style
lower receivers for an ATF confidential informant.
Despite being told that the confidential informant had
been to prison and therefore prohibited from
possessing a firearm, Mason created the firearms and
sold his services to the confidential informant.
(https://www.atf.gov/news/pr/auburn-man-indicted-illegally-m
anufacturing-firearms.)
3. Effect of This Legislation
This legislation makes "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" a firearm
in California. Items that fall under this new definition of
firearms would be treated like other firearms in California.
Specifically, to purchase one, a person would have to go through
a dealer, have a background check and would be subject to a
10-day wait. Additionally, a prohibited person would not be
allowed to possess them.
4. Constitutionality: Vagueness Concern
This legislation 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." While this
legislation is less vague than the previous version that defined
a firearm as a "weapon, or the unfinished frame or receiver of a
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weapon that can be readily converted to the functional condition
of a finished frame or receiver," this legislation is still
arguably vague.
The Fourteenth Amendment to the United States Constitution
and article I, section 7 of the California Constitution,
each guarantee that no person shall be deprived of life,
liberty, or property without due process of law. This
constitutional command requires "a reasonable degree of
certainty in legislation, especially in the criminal law
?." "[A] penal statute [must] define the criminal offense
with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory
enforcement."
It is established that in order for a criminal statute to
satisfy the dictates of due process, two requirements must
be met. First, the provision must be definite enough to
provide a standard of conduct for those whose activities
are proscribed. Because we assume that individuals are free
to choose between lawful and unlawful conduct, "we insist
that laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that
he [or she] may act accordingly. Vague laws trap the
innocent by not providing fair warning."
Second, the statute must provide definite guidelines for
the police in order to prevent arbitrary and discriminatory
enforcement." (People v. Heitzman, 9 Cal. 4th 189, 199-200
(Cal. 1994) [citations omitted].)
Members may wish to consider whether an ordinary person would be
able to identify a firearm as defined by this legislation, so as
to know whether he or she is breaking the law. Specifically,
would a person of ordinary intelligence would be able to
recognize a "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."
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5. Argument in Support
According to the California Chapters of the Brady Campaign:
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
requirements 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. Lower receivers 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 are
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 "firearm" to include 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. The Brady Campaign supports this
change 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 expanded 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.
6. Argument in Opposition
According to the Firearms Policy Coalition:
We specialize in firearms policy and have no idea what
the new definition means
Put simply, 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 punch line, we offer here the
entire substance of AB 1673 (amending § 16520(b) of
the Penal Code):
"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
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combustion."
Clearly identifiable to whom?
This baffling new definition will result in untold
thousands of arrests and incarcerations as "firearm"
becomes defined by a strange mish-mash of words,
disconnected from any known understanding or reality of
what has been understood as working definitions of
"firearm" for centuries. Maybe roadside analysis between
peace officers and motorists would be able to hash out the
"I'll know it when I see it" approach to writing criminal
law.
Have a piece of metal or plastic-GO TO JAIL
It is difficult to imagine the enforcement of hundreds of
firearms laws and criminal enhancements that will be
impacted by AB1673. A sample of the hundreds of new crimes
this bill creates includes;
Possession of a "blank" in a "gun free zone"
Unloaded open carry of a "casting"
Unlawful concealed carry of a "machined body"
Unlawful transfer of a "?receiver blank, casting, or
machined body, that is designed and clearly identifiable as
a component of a functional weapon?"
Brandishing a "receiver blank"
Failure to wait 10 days to "cool off" after acquiring a
"machined body"
Persons could end up in the Un-Armed Prohibited Person
System?
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.
Implementation Nightmare
The DOJ will have to update every regulation, every form,
every database and every storefront interface to accept the
new definition of firearms-- which is challenging given
that the new definition targets things that are clearly not
firearms at all.
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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 "clearly identifiable" pieces
of plastic, wood, aluminum, iron, or steel would then need
to be entered into the 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.
The law is sacred and it affects real people in real
communities. The Legislature is entrusted with passing laws
that the governed can comply with and the executive can
enforce. With that in mind, AB 1673 is simply not ready for
serious consideration.
-- END -