BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2165 Hearing Date: June 21, 2016
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|Author: |Bonta |
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|Version: |April 7, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Firearms: Prohibitions: Exemptions
HISTORY
Source: California Statewide Law Enforcement Association;
State Coalition of Probation Organizations; Peace
Officers Research Association of California
Prior Legislation:None known
Support: California Department of Insurance (CDI); California
Correctional Supervisors Organization (CCSO);
California Probation, Parole and Correctional
Association; California Police Chiefs Association;
Parole and Correctional Association (CPPCA); Chief
Probation Officers of California (CPOC); Fraternal
Order of Police (FOP), N. California Probation Lodge
19; Kern County Probation Officers Association; Los
Angeles Probation Officers Union, AFSCME Local 685;
Los Angeles Professional Peace Officers Association
(PPOA); Madera Probation Peace Officers Association;
Riverside Sheriffs' Association; Sacramento County
Probation Association (SCPA); Sacramento Police
Officers Association; San Diego County Probation
Officers Association; San Diego Police Officers
Association (SDPOA); San Joaquin County Probation
Officers Association; Santa Clara County Probation
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Peace Officers' Union, Local 1587; Stanislaus County
Deputy Probation Officers Association; Ventura County
Professional Peace Officers' Association
Opposition:California Chapters of the Brady Campaign to Prevent
Gun Violence; Coalition Against Gun Violence, a Santa
Barbara Coalition; Law Center to Prevent Gun Violence;
Oakland/Alameda County Chapter of the Brady Campaign
to Prevent Gun Violence; Orange County Citizens for
the Prevention of Gun Violence; Women Against Gun
Violence
Assembly Floor Vote: 73 - 2
PURPOSE
The purpose of this bill is to exempt all peace officers who
have satisfactorily completed the portion of the introductory
training course specified in Section 832 pertaining to the
carrying and use of firearms from the prohibition related to the
purchase or sale of unsafe handguns, as specified.
Current law defines an unsafe handgun as any pistol, revolver,
or other firearm capable of being concealed upon the person,
which lacks various specified safety mechanisms and does not
pass specified safety tests. (Penal Code § 31910.)
Existing law provides that commencing January 1, 2001, no
"unsafe handgun" may be manufactured or sold in California by a
licensed dealer, except as specified, and requires that the
Department of Justice (DOJ) prepare and maintain a roster of
handguns which are determined not to be unsafe handguns.
Private party sales (used or previously owned) and transfers of
handguns through a licensed dealer are exempted from those
restrictions. (Penal Code §§ 27545, 32000, et seq., § 32110.)
Existing law provides that any person in California who
manufactures or causes to be manufactured, imports into the
state for sale, keeps for sale, offers or exposes for sale,
gives, or lends any unsafe handgun shall be punished by
imprisonment in a county jail not exceeding one year. (Penal
Code § 32000(a).)
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Existing law does the following:
Defines "unsafe handgun" as any pistol, revolver, or
other firearm capable of being concealed upon the person,
as specified, which lacks various safety mechanisms,
including a chamber load indicator and magazine disconnect,
and does not pass listed tests, as specified. (Penal Code
§ 31910.)
Requires any concealable firearm manufactured in
California, or intended to be imported for sale, kept for
sale, or offered for sale to be tested within a reasonable
period of time by an independent laboratory, certified by
the state DOJ to determine whether it meets required safety
standards, as specified. (Penal Code § 32010.)
Requires DOJ, on and after January 1, 2001, to compile,
publish, and thereafter maintain a roster listing all of
the pistols, revolvers, and other firearms capable of being
concealed upon the person that have been tested by a
certified testing laboratory, have been determined not to
be unsafe handguns, and may be sold in this state, as
specified. The roster shall list, for each firearm, the
manufacturer, model number, and model name. (Penal Code §
32015.)
Provides that DOJ may charge every person in California
who is licensed as a manufacturer of firearms, as
specified, and any person in California who manufactures or
causes to be manufactured, imports into California for
sale, keeps for sale, or offers or exposes for sale any
pistol, revolver, or other firearm capable of being
concealed upon the person in California, an annual fee not
exceeding the costs of preparing, publishing, and
maintaining the roster of firearms determined not to be
unsafe, and the costs of research and development, report
analysis, firearms storage, and other program
infrastructure costs, as specified. (Penal Code § 32015.)
Existing law requires that, commencing January 1, 2010, all
semiautomatic pistols that are not already listed on the roster
be designed and equipped with a microscopic array of characters
that identify the make, model, and serial number of the pistol,
etched or otherwise imprinted in two or more places on the
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interior surface or internal working parts of the pistol, and
that are transferred by imprinting on each cartridge case when
the firearm is fired, provided that the DOJ certifies that the
technology used to create the imprint is available to more than
one manufacturer unencumbered by any patent restrictions. On
May 17, 2013, DOJ issued that certification. (Penal Code §
31910(b)(7).)
Existing law allows the Attorney General to annually retest up
to 5 percent of the handgun models that are listed on the
roster. When retesting the Attorney General is required to:
Obtain from retail or wholesale sources, or both,
three samples of the handgun model to be retested;
Select the certified laboratory to be used for the
retesting;
Use the type of ammunition recommended by the
manufacturer in the user manual for the handgun, as
specified; and,
Conduct the retest in the same manner as the
testing prescribed in Sections 31900 and 31905 (drop
safety and firing requirement for handguns.)
If the handgun model fails retesting, the Attorney General is
required to remove the handgun model from the roster. (Penal
Code § 32020.)
Existing law specifies that the following are exempt from roster
requirements:
The manufacture in California, or importation into this
state, of any prototype pistol, revolver, or other firearm
capable of being concealed upon the person when the
manufacture or importation is for the sole purpose of
allowing an independent laboratory certified by DOJ to
conduct an independent test to determine whether that
pistol, revolver, or other firearm capable of being
concealed upon the person is prohibited, inclusive, and, if
not, allowing the department to add the firearm to the
roster of pistols, revolvers, and other firearms capable of
being concealed upon the person that may be sold in this.
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The importation or lending of a pistol, revolver, or
other firearm capable of being concealed upon the person by
employees or authorized agents of entities determining
whether the weapon is prohibited by this section.
Firearms listed as curios or relics, as defined in
federal law.
The sale or purchase of any pistol, revolver, or other
firearm capable of being concealed upon the person, if the
pistol, revolver, or other firearm is sold to, or purchased
by, the DOJ, any police department, any sheriff's official,
any marshal's office, the Youth and Adult Correctional
Agency, the California Highway Patrol, any district
attorney's office, or the military or naval forces of this
state or of the United States for use in the discharge of
their official duties. Nor shall anything in this section
prohibit the sale to, or purchase by, sworn members of
these agencies of any pistol, revolver, or other firearm
capable of being concealed upon the person. (Penal Code §
32000(b).)
Existing law contains numerous additional exemptions to the safe
handgun requirements, including an exemption for any transfer
that is not required to be made through a licensed dealer. This
exemption alone includes within it another approximately 25
exemptions. (Penal Code §§ 32110, 27850, et seq.)
This bill exempts a number of peace officers, who have completed
the firearms portion of the training course prescribed by the
Commission on Peace Officer Standards and Training pursuant to
Penal Code 832, from the prohibition related to the purchase or
sale of unsafe handguns.
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
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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
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
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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 Legislation
According to the author:
Previously, the Department of Justice utilized a broader
interpretation of which agencies could purchase off-roster
firearms under Section 32000 of the Penal Code. This
enabled many probation departments, state agencies such as
Alcoholic Beverage Control, and specialized law enforcement
agencies such as airport police, and their officers, to
purchase non-rostered firearms, many of which are their
service weapons today. Late last year, the Department of
Justice adopted a more narrow interpretation of the roster,
resulting in the need for this legislation.
2.Safe Handgun Law and the Effect of This Bill
SB 15 (Polanco), Chapter 248, Statutes of 1999, made it a
misdemeanor for any person in California to manufacture, import
for sale, offer for sale, give, or lend any unsafe handgun, as
defined, with certain specific exceptions. SB 15 defined an
"unsafe handgun" as follows: (a) does not have a requisite
safety device; (b) does not meet specified firing tests; and,
(c) does not meet a specified drop safety test.
SB 489 (Scott), Chapter 500, Statutes of 2003, added to the
unsafe handgun law requirements for semiautomatic pistols that
became effective in 2006 and 2007. The legislation requires
that for a new semiautomatic center-fire pistol firearm to be
added to the roster it has to be equipped with a chamber load
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indicator<1> and a magazine disconnect<2> (if it has a
detachable magazine). The legislation also requires that all
semiautomatic rimfire pistols, with a detachable magazine, have
a magazine disconnect. All firearms that were on the not unsafe
handgun list prior to the effective dates were essentially
grandfathered in. Those who supported SB 489 argued:
It is just common sense that handgun should include a
chamber load indicator that makes it clear whether the
weapon is loaded. Since cheap disposable cameras can
clearly count down the number of pictures left, it is
inexcusable that handguns do not indicate when a
bullet is in the chamber. Magazine safety disconnects
would also greatly reduce the number of unintentional
accidental shootings by ensuring that when the
magazine is removed the gun will not fire.
(http://leginfo.ca.gov/pub/03-04/bill/sen/sb_0451-500/sb_489
_cfa_20030630_ 103204_asm_comm.html.)
AB 1471 (Feuer), Chapter 572, Statutes of 2007, added
"microstamping" as a requirement for a firearm to be placed on
the not unsafe handgun roster beginning January 1, 2010,
"provided that the Department of Justice certifies that the
technology used to create the imprint is available to more than
one manufacturer unencumbered by any patent restrictions." As
discussed above, the Department of Justice issued the
certification on May 17, 2013. Like the other provisions, the
"microstamping" requirement did not apply to firearms already on
the roster. The author of AB 1471 provided the rationale for
the additional requirement,
AB 1471 will help law enforcement identify and
apprehend armed gang members before they inflict more
harm on others, including innocent bystanders. In
instances of drive-by shootings, where the only
evidence at the crime scene may be a spent cartridge
----------------------
<1> A chamber load indicator is a device that plainly indicates
that a cartridge is in the firing chamber. (Penal Code §
16380.)
<2> A magazine disconnect is a mechanism that prevents a
semiautomatic pistol from operating when a detachable magazine
is not inserted in the semiautomatic pistol. (Penal Code §
16900.)
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case, law enforcement could quickly obtain a critical
lead.
(http://leginfo.ca.gov/pub/07-08/bill/asm/ab_1451-1500/ab_14
71_cfa_20070625_ 130933_sen_comm.html.)
Current law exempts handguns from the safety testing
requirements that are sold to, or purchased by, the Department
of Justice, any police department, any sheriff's official, any
marshal's office, the Youth and Adult Correctional Agency, the
California Highway Patrol, any district attorney's office, or
the military. Sworn members of those agencies are also exempted
from the ban on buying or selling handguns that are not on DOJ's
"not unsafe" handgun roster. The law, additionally, allows
sworn members of these agencies to sell an off-roster handgun to
someone who is not exempt.
Until recently, a number of law enforcement agencies, and
officers, have been able to purchase off-roster firearms.
There was, evidently, some confusion among dealers as to who
qualifies for the roster exemptions. When this was discovered
by DOJ, the dealers were issued cited and DOJ reminded the
dealers that only listed law enforcement agencies are allowed to
purchase off-roster firearms. DOJ, additionally, added the
following to their website:
Non-Roster Handguns (Unsafe Handguns)
The following agencies may purchase non-roster firearms for
use in the discharge of their official duties:
Department of Justice
A police department
A sheriff's official
A marshal's office
The Department of Corrections and Rehabilitation
The California Highway Patrol
Any district attorney's office
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Any federal law enforcement agency
The military or naval forces of this state or of the United
States (Pen. Code, § 32000, subd. (b)(4).)
Penal Code section 32000 does not prohibit the sale to, or
purchase by, sworn members of the above agencies of a
handgun.
(http://oag.ca.gov/firearms/exemptpo.)
This legislation would allow all law enforcement officers listed
in "Chapter 4.5 of Title 3 of Part 2 of the Penal Code," who
have completed firearms training, to purchase off-roster
handguns. These categories of officers include those employed
by:
Department of Fish and Game (Penal Code § 830.2)
Department of Parks and Recreation (Penal Code § 830.2)
Department of Forestry and Fire Protection (Penal Code §
830.2)
Department of Alcoholic Beverage Control (Penal Code §
830.2)
Division of Investigation of the Department of Consumer
Affairs (Penal Code § 830.3)
Department of Motor Vehicles (Penal Code § 830.3)
California Horse Racing Board (Penal Code § 830.3)
The State Fire Marshall (Penal Code § 830.3)
Food and Drug section of the Department of Public Health
(Penal Code § 830.3)
Division of Labor Standards Enforcement (Penal Code §
830.3)
State Department of Health Care Services (Penal Code §
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830.3)
Bureau of Fraudulent Claims of the Department of
Insurance (Penal Code § 830.3)
Department of Housing and Community Development (Penal
Code § 830.3)
Office of the Controller (Penal Code § 830.3)
Department of Business Oversight (Penal Code § 830.3)
Contractors' State Licensing Board (Penal Code § 830.3)
Law enforcement branch of the Office of Emergency
Services (Penal Code § 830.3)
Secretary of State (Penal Code § 830.3)
California State Lottery (Penal Code § 830.3)
Investigation Division of the Employment Development
Department (Penal Code § 830.3)
California Science Center (Penal Code § 830.3)
Franchise Tax Board (Penal Code § 830.3)
Department of Managed Health Care (Penal Code § 830.3)
Office of Protective Services, State Department of
Developmental Services (Penal Code § 830.3)
Department of State Hospitals and State Department of
Developmental Services. (Penal Code § 830.37.)
Hastings College of the Law (Penal Code § 830.4)
Los Angeles World Airport (Penal Code § 830.15)
Broader categories of peace officers that this legislation would
exempt include:
A housing authority patrol officer employed by the
housing authority of a city, district, county, or city and
county, as specified. (Penal Code § 830.31)
Persons designated as a security officer by a county
water district, as specified. (Penal Code § 830.34)
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The security director of the public utilities commission
of a city and county, as specified. (Penal Code § 830.34)
Persons employed as a park ranger by a municipal water
district, as specified. (Penal Code § 830.34)
Welfare fraud investigator or inspector, regularly
employed and paid in that capacity by a county, as
specified. (Penal Code § 830.35)
The coroner and deputy coroners, regularly employed and
paid in that capacity, of a county, as specified. (Penal
Code § 830.35)
The Sergeant-at-Arms of each house of the Legislature,
as specified. (Penal Code § 830.36.)
Marshals of the Supreme Court and bailiffs of the courts
of appeal, and coordinators of security for the judicial
branch, as specified. (Penal Code § 830.36.)
Court service officer in a county of the second class
and third class, as specified. (Penal Code § 830.36.)
Members of an arson-investigating unit, regularly paid
and employed in that capacity, of a fire department or fire
protection agency of a county, city, city and county,
district, or the state, as specified. (Penal Code §
830.37.)
Members other than members of an arson-investigating
unit, regularly paid and employed in that capacity, of a
fire department or fire protection agency of a county,
city, city and county, district, or the state, as
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specified. (Penal Code § 830.37.)
Voluntary fire wardens as are designated by the Director
of Forestry and Fire Protection, as specified. (Penal Code
§ 830.37.)
A probation officer or deputy probation officer. (Penal
Code § 830.5)
Any airport security officer, airport policeman, or
airport special officer, regularly employed and paid by a
city, county, city and county, or district. (Penal Code §
832.1)
Based on information provided by Peace Officer Standards and
Training (POST), thousands of officers fall into the categories
listed above. These officers would not only be able to
purchase, but would be able to transfer these handguns to
someone who is not exempt. Additionally, the language, as
drafted, seemingly allows the individual officers to purchase
firearms, but not their agencies.
Members may wish to recommend amendments that would: (1) delete
the blanket peace officer exemption; (2) add a limited number of
the departments and entities to the list of agencies that can
purchase off-roster handguns; (3) specify that the peace officer
employees of the newly listed agencies, who have had firearms
training, are able to purchase off-roster firearms; and (4)
prohibit the transfer of off-roster handguns for the newly
listed agencies, and their peace officer employees, to
non-exempt parties.
3. Argument in Support
According to the California Statewide Law Enforcement
Association:
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In 2001, Penal Code §32000 created a list of
non-exempt agencies who may purchase non-roster
firearms for use in the discharge of their official
duties. Certain trained peace officers and law
enforcement personnel were left off of the list. These
peace officers are often required to participate in
mutual aid situations, task forces, sting operations
and arrests. These high-risk situations require that
these officers be properly warned.
Recent enforcement of the gun roster by the Department
of Justice would require thousands of law enforcement
to forfeit their guns. This legislation is necessary
because it will allow officers, who have gone through
the appropriate training to carry and keep their
"non-roster" handguns, while on active duty. Not
fixing this issue will create a serious risk of
liability that is easily avoidable with the amendment
to Penal Code §830.3. There is also a cost savings to
the State of California because new handguns will not
have to be purchased for many of these personnel.
Lastly, this bill simply seeks parity with other peace
officers and various law enforcement agencies.
4. Argument in Opposition
According to the California Chapters of the Brady Campaign to
Prevent Gun Violence:
California Brady Chapter members worked hard for many
years to get the original Unsafe Handgun Act (SB 15)
signed into law in 1999. Chapter members were
instrumental in the enactment of additions to the Act
in 2003 and 2007. This law is very personal to Brady
members - chapter leaders have lost children whose
lives might have been saved were the Act in effect.
Under SB 15, no handgun may be manufactured, imported
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or transferred unless that handgun model has passed
firing, safety, and drop tests and is certified for
sale in California by the Department of Justice.
Requirements for a chamber load indicator and magazine
disconnect, which will prevent accidental shootings,
and a micro-stamping feature, which will allow law
enforcement to positively link used cartridge casings
recovered at crime scenes to the crime gun, were later
added to the Act.
Certain categories of law enforcement are exempt from
the Unsafe Handgun Act and AB 2165 would additionally
exempt "any other peace officer described in Chapter
4.5 (commencing with Section 830) of Title 3 of Part 2
of the Penal Code." Thus any person who is considered
a sworn "peace officer" under California law,
including certain employees of the State Departments
of Fish and Game, Parks and Recreation, Forestry and
Fire Protection, and Alcoholic Beverage Control, if
they are tasked with law enforcement roles, as well as
welfare fraud and child support investigators, certain
coroners, certain park rangers, and certain housing
authority patrol officers, would be exempt. This
results in an inappropriate and unacceptable
broadening of exemptions that impedes realizing the
safety benefits of the newer requirements.
Officers frequently take their service weapons home
and, in some cases, fail to lock them securely.
Firearms with prominent loaded chamber indicators and
magazine disconnect safety devices, as required for
new models under the Act, are safer than those without
these safety features. There are many instances of
even highly trained law enforcement officers being
unaware that a round remains in the chamber of a
pistol that lacks a loaded chamber indicator and
unintentionally shooting someone. Unsafe gun designs
help cause many unintentional firearm injuries and
deaths.
A very troubling consequence of AB 2165 arises from
the fact that under California law, exempt persons are
allowed to purchase and later sell off-roster handguns
to nonexempt persons via a private party transfer.
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The bill would thereby place more off-roster handguns
into the civilian market and undermine the purpose of
the Act.
An intent of existing law is to use new technologies
to prevent accidental shootings and to solve gun
crime. The legislature and two governors agreed with
these goals and enacted the chamber load indicator,
magazine disconnect and microstamping feature
requirements. The gun industry has had a long
standing boycott against these requirements and, in
protest, has been refusing to submit new models for
testing and sale in California. By significantly
expanding the number of exempt persons who can buy and
sell off-roster guns, AB 2165 would buoy the effort to
keep new and safer models off the California market.
This is a detriment to public safety.
It is hard to understand why these new categories of
peace officers would not want a handgun with features
to prevent accidental shootings. If an officer brings
his or her gun home, the family would be safer with a
gun that had a chamber load indicator and magazine
disconnect. The microstamping requirement was
supported by sixty-five police chiefs and sheriffs
throughout the state who recognized that intentionally
marked shell casings would help solve gun crime and
apprehend armed criminals before they do more harm.
If the desire is for parity across all categories of
peace officers, then the best solution would be to
eliminate all of the exemptions.
It is clear that AB 2165 will undermine the
implementation of the new requirements of the Unsafe
Handgun Act. The California Brady Chapters strongly
support the new safety and microstamping requirements
and stand in opposition to your bill.
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