BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1695       Hearing Date:    June 14, 2016    
          
           ----------------------------------------------------------------- 
          |Author:    |Bonta                                                |
          |-----------+-----------------------------------------------------|
          |Version:   |May 31, 2016                                         |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|JRD                                                  |
          |           |                                                     |
           ----------------------------------------------------------------- 


                Subject:  Firearms:  False Reports of Stolen Firearms



          HISTORY

          Source:   Author

          Prior Legislation:None known

          Support:  California Chapters of the Brady Campaign to Prevent  
                    Gun Violence; California Police Chiefs Association;  
                    Law Center to Prevent Gun Violence; City of Oakland;  
                    American Academy of Pediatrics; California Chapter of  
                    the American College of Emergency Physicians

          Opposition: The California Sportsman's Lobby, Inc; Firearms  
                    Policy Coalition; National Rifle Association; National  
                    Shooting Sports Foundation, Inc.; Outdoor Sportsmen's  
                    Coalition of California; Safari Club International

          Assembly Floor Vote:                 51 - 28


          PURPOSE

          The purpose of this bill is to: 1) make it a misdemeanor to  
          falsely report that a firearm has been stolen, as specified;  
          and, 2) add misdemeanor falsely reporting that a firearm has  







          AB 1695  (Bonta )                                          Page  
          2 of ?
          
          
          been stolen to offenses for which a conviction results in a  
          10-year prohibition on possession of a firearm.  

          Lost or Stolen Firearms

          Existing law provides that persons licensed to make, import,  
          collect, or deal in firearms are required to report the loss or  
          theft of firearms they possess, to a law enforcement agency.   
          For example, Penal Code section 26885 requires licensed dealers  
          to report losses within 48 hours and Penal Code section 29115(a)  
          requires licensed firearms manufacturers - whether of handguns  
          or long guns - to report the loss or theft of firearms within 48  
          hours to specified law enforcement agencies.

          Existing law requires handguns to be centrally registered at  
          time of transfer or sale due to various transfer forms centrally  
          compiled by the Department of Justice (DOJ).  DOJ is required to  
          keep a registry from data sent to DOJ indicating who owns what  
          handgun by make, model, and serial number and the date thereof.   
          (Penal Code  11106(a) and (c).)  After 2017, this registry will  
          include data on ownership of long guns, as well as handguns.   
          (Chap. 745, Stats. of 2011.)  Law enforcement agencies must  
          promptly report to DOJ all reports they receive of lost, stolen,  
          and found property.  (Penal Code  11107, 11108.)  DOJ must  
          keep a centralized and computerized list of all lost, stolen,  
          and found serialized property reported to it.  (Penal Code   
          11106(a).)

          Existing law provides that in addition to the requirements of  
          Section 11108 that apply to a local law enforcement agency's  
          duty to report to the DOJ the recovery of a firearm, a police or  
          sheriff's department shall, and any other law enforcement agency  
          or agent may, report to the department in a manner determined by  
          the AG in consultation with the Bureau of Alcohol, Tobacco,  
          Firearms and Explosives all available information necessary to  
          identify and trace the history of all recovered firearms that  
          are illegally possessed, have been used in a crime, or are  
          suspected of having been used in a crime.  In addition, any law  
          enforcement agency or agent may report to the Attorney General  
          pursuant to this section all information pertaining to any  
          firearm taken into custody, except where the firearm has been  
          voluntarily placed with the law enforcement agency for storage.   
          (Penal Code  11108.3.)









          AB 1695  (Bonta )                                          Page  
          3 of ?
          
          
          Existing law provides that if any weapon has been stolen and is  
          thereafter recovered from the thief or his or her transferee, or  
          is used in such a manner as to constitute a nuisance because it  
          was unlawfully carried or used without the prior knowledge of  
          its lawful owner that it would be so used, it shall be restored  
          to the lawful owner, as soon as its use as evidence has been  
          completed.  The lawful owner must identify the weapon and  
          provide proof of ownership.  (Penal Code  18005(b).)

          Existing law requires that any person seeking the return of a  
          firearm in the custody or control of a court or law enforcement  
          agency must submit specified information, including for handguns  
          the firearm's make, model, caliber, barrel length, handgun type,  
          country of origin, and serial number.  If the firearm has been  
          reported lost or stolen to a law enforcement agency, as  
          specified, the agency shall notify the owner or person entitled  
          to possession of the firearm.  The person seeking return of the  
          firearm shall be subject to a background check, as specified.   
          (Penal Code  33850, 33855.)

          This bill would make it a misdemeanor to report to a local law  
          enforcement agency that a firearm has been lost or stolen,  
          knowing the report to be false.

          Firearms Prohibition

          Existing law 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.)

          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.  (Penal  
          Code  28220.)

          Current federal law provides that certain people are prohibited  
          from owning or possessing a firearm:









          AB 1695  (Bonta )                                          Page  
          4 of ?
          
          


          Any person who:
                 Has been convicted in any court of, a crime punishable  
               by imprisonment for a term exceeding one year;
                 Is a fugitive from justice;
                 Is an unlawful user of or addicted to any controlled  
               substance, as defined; 
                 Has been adjudicated as a mental defective or who has  
               been committed to a mental institution;
                 Being an alien -
               o      is illegally or unlawfully in the United States; or
               o      except as specified, has been admitted to the United  
                 States under a nonimmigrant visa, as defined;  
                 Has been discharged from the Armed Forces under  
               dishonorable conditions;
                 Having been a citizen of the United States, has  
               renounced his citizenship;
                 Is subject to a court order that -
                  o         was issued after a hearing of which such  
                    person received actual notice, and at which such  
                    person had an opportunity to participate;
                  o         restrains such person from harassing,  
                    stalking, or threatening an intimate partner of such  
                    person or child of such intimate partner or person, or  
                    engaging in other conduct that would place an intimate  
                    partner in reasonable fear of bodily injury to the  
                    partner or child; and
                               includes a finding that such person  
                      represents a credible threat to the physical safety  
                      of such intimate partner or child; or
                               by its terms explicitly prohibits the use,  
                      attempted use, or threatened use of physical force  
                      against such intimate partner or child that would  
                      reasonably be expected to cause bodily injury; or
                 Has been convicted in any court of a misdemeanor crime  
               of domestic violence.  

          (18 USC  922(g).)

          Current California law provides that certain people are  
          prohibited from owning or possessing a firearm, including:

          Lifetime Ban








          AB 1695  (Bonta )                                          Page  
          5 of ?
          
          
                 Anyone convicted of a felony;
                 Anyone addicted to a narcotic drug;
                 Any juvenile convicted of a violent crime with a gun and  
               tried in adult court;
                 Any person convicted of a federal crime that would be a  
               felony in California and sentenced to more than 30 days in  
               prison, or a fine of more than $1,000; 
                 Anyone convicted of certain violent misdemeanors, e.g.,  
               assault with a firearm; inflicting corporal injury on a  
               spouse or significant other, or brandishing a firearm in  
               the presence of a police officer.  

          (Penal Code  29800, 23515 and 29805.)

          Existing law provides that a violation of these provisions is a  
          felony.  (Id.)

          Ten Year Ban
          Anyone convicted of numerous misdemeanors involving violence or  
          threats of violence.  (Penal Code  29805.)

          Existing law provides that a violation of these provisions is a  
          wobbler, as specified.  (Id.)

          Five Year Ban
          Any person taken into custody, assessed, and admitted to a  
          designated facility due to that person being found to be a  
          danger to themselves or others as a result of a mental disorder,  
          is prohibited from possessing a firearm during treatment and for  
          five years from the date of their discharge.  (Welfare and  
          Institutions Code  8100 and 8103(f).)

          Existing law provides that a violation of these provisions is a  
          wobbler, as specified.  (Id.)

          Temporary Bans
          Persons who are bound by a temporary restraining order or  
          injunction or a protective order issued under the Family Code or  
          the Welfare and Institutions Code, may be prohibited from  
          firearms ownership for the duration of that court order.  (Penal  
          Code  29825.)

          Existing law provides that the violation of these provisions is  
          a wobbler or a misdemeanor, as specified.  (Id.)








          AB 1695  (Bonta )                                          Page  
          6 of ?
          
          

          This bill would add falsely reporting that a firearm has been  
          stolen to offenses for which a conviction results in a 10-year  
          prohibition on possession of a firearm, as specified.  

                    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  
          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  








          AB 1695  (Bonta )                                          Page  
          7 of ?
          
          
          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 This Bill

          According to the author: 

               The failure to report firearms as lost or stolen, as  
               well as the false reporting of firearms as lost or  
               stolen, remains a significant hindrance to the  
               tracking of these firearms. There is a concern that a  
               straw purchaser, who legally buys a firearm with the  
               intent of illegally selling it to another individual,  
               would falsely report that firearm as lost or stolen in  
               order to place distance between themselves and any  
               crimes committed with that firearm. AB 1695 makes  
               filing a report that a firearm has been lost or  
               stolen-knowing the report to be false-a misdemeanor.  
               Additionally, AB 1695 places the convicted individual  
               on the prohibited persons list, barring them from  








          AB 1695  (Bonta )                                          Page  
          8 of ?
          
          
               owning a firearm for the following ten years. This  
               prohibition will prevent an individual convicted of  
               this crime from subsequently acquiring additional  
               firearms and making further illegal sales.
          
          2.Firearms Prohibitions for Misdemeanor Offenses

          As detailed above, current state and federal laws prohibit  
          persons who have been convicted of specific crimes from owning  
          or possessing firearms.  For example, anyone convicted of any  
          felony offense is prohibited for life from firearms ownership  
          under both federal and state law.  (18 U.S.C.  922(g); Penal  
          Code  29800.)  California goes further and imposes a 10-year  
          firearms prohibition on persons convicted of numerous  
          misdemeanor offenses that involve either violence or the threat  
          of violence.  (Penal Code  29805.)   Additionally, anyone who  
          has been found to be a danger to themselves or others due to  
          mental illness is subject to a five-year prohibition (Welfare  
          and Institutions Code  8100, 8103(f)), and people under  
          domestic violence restraining orders are subject to a  
          prohibition for the duration of that court order.  (Penal Code   
          29825.)

          According to a study published in the Journal of American  
          Medical Association: 

               Handgun purchasers with only 1 prior misdemeanor  
               conviction and no convictions for offenses involving  
               firearms or violence were nearly 5 times as likely as  
               those with no prior criminal history to be charged  
               with new offenses involving firearms or violence.

          (Wintemute GJ. Prior Misdemeanor Convictions as a Risk Factor  
          for Later Violent and Firearm Related Criminal Activity Among  
          Authorized Purchasers of Handguns. Journal of the American  
          Medical Association 1998; 280: 2083-2087.)

          To this end, this bill would not only make it a misdemeanor to  
          falsely report a firearm lost or stolen, but would also expand  
          the number of misdemeanor convictions resulting in a 10-year  
          prohibition by adding falsely reporting a lost or stolen  
          firearm.

          3.  Argument in Opposition








          AB 1695  (Bonta )                                          Page  
          9 of ?
          
          
          
          The Firearms Policy Coalition states:

               AB 1695 creates a new misdemeanor crime of falsifying  
               a report of a lost or stolen firearm, then makes that  
               crime one which subjects the violator to a 10-year  
               total prohibition on firearm possession for a  
               non-violent, paperwork crime. 

               With more than 500 law enforcement agencies in the  
               State-some which are tasked with enforcing local  
               ordinances that mandate specific reporting  
               requirements-it's difficult to conceive of a uniform  
               prosecution scheme under AB 1695. 

               Each city, county, and special district may have its  
               own form. Some might take the report online, and some  
               might require a phone report. And some require that  
               you report to the jurisdiction where the firearm was  
               lost or stolen, not the city in which you live. The  
               potential for mistakes and misinformation is great. 

               Yet, AB 1695 purports to sweep in and save the day  
               with a brand-new crime to fix a non-existent problem  
               (and, upon a conviction for that crime, tack on yet  
               another person to the failed Armed Prohibited Persons  
               System). 


                                      -- END -