BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1695 Hearing Date: June 14, 2016
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|Author: |Bonta |
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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: 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
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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.)
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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:
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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
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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.)
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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
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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
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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
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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).
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