BILL ANALYSIS Ó
AB 2229
Page 1
Date of Hearing: April 12, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2229 (Grove) - As Amended March 17, 2016
SUMMARY: Eliminates the 10-day waiting period for persons
previously determined by the Department of Justice (DOJ) to not
be prohibited from possessing a firearm and the person possesses
a firearm, is authorized to carry a concealed firearm, or
possesses a valid Certificate of Eligibility. Specifically,
this bill:
1)Requires the DOJ to immediately release firearms to persons
without waiting the mandated 10-days if the person is
determined by the DOJ not to be prohibited from possessing,
receiving, owning, or purchasing a firearm; and any of the
following:
a) The person possesses a firearm as confirmed by the
Automated Firearms System (AFS); or
b) The person is authorized to carry a concealed firearm;
or
c) The person possesses a valid Certificate of Eligibility
and a firearm as confirmed by the AFS.
AB 2229
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EXISTING LAW:
1)Provides that no firearm shall be delivered:
a) Within 10 days of the application to purchase, or, after
notice by the Department of Justice (DOJ), within 10 days
of the submission to the department of any correction to
the application, or within 10 days of the submission to the
DOJ of any fee required, whichever is later;
b) Unless unloaded and securely wrapped or unloaded and in
a locked container;
c) Unless the purchaser, transferee, or person being loaned
the firearm presents clear evidence of the person's
identity and age to the dealer; and,
d) Whenever the dealer is notified by the Department of
Justice that the person is prohibited by state or federal
law from processing, owning, purchasing, or receiving a
firearm. The dealer shall make available to the person in
the prohibited class a prohibited notice and transfer form,
provided by the department, stating that the person is
prohibited from owning or possessing a firearm, and that
the person may obtain from the department the reason for
the prohibition. (Pen. Code § 26815.)
2)Provides that the sale, loan or transfer of firearms in almost
all cases must be processed by, or through, a state-licensed
dealer or a local law enforcement agency with appropriate
transfer forms being used, as specified. (Pen. Code § 27545.)
3)Allows persons who are not subject to reporting to report the
acquisition, ownership, or disposal of firearms to DOJ. (Pen.
Code § 28000.)
4)Requires that firearms information submitted to DOJ as to
handguns in terms of who owns what handgun must be maintained
within a centralized registry. (Pen. Code Section 11106)
These reporting requirements will apply to all firearms as of
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January 1, 2014. (Pen. Code § 11106.)
5)Require the DOJ, upon submission of firearm purchaser
information, to examine its records to determine if the
purchaser is prohibited from possessing, receiving, owning, or
purchasing a firearm. Existing law prohibits the delivery of a
firearm within 10 days of the application to purchase, or,
after notice by the department, within 10 days of the
submission to the department of any corrections to the
application to purchase, or within 10 days of the submission
to the department of a specified fee. (Pen. Code §§ 28200 to
28250.)
6)Requires if a dealer cannot legally deliver a firearm,
existing law requires the dealer to return the firearm to the
transferor, seller, or person loaning the firearm. (Pen. Code
§ 28050, subd. (d).)
7)Requires that in connection with any private party sale, loan
or transfer of a firearm, a licensed dealer must provide the
DOJ with specified personal information about the seller and
purchaser as well as the name and address of the dealer. This
personal information of buyer and seller required to be
provided includes the name; address; phone number; date of
birth; place of birth; occupation; eye color; hair color;
height; weight; race; sex; citizenship status; and a driver's
license number, California identification card number or
military identification number. A copy of the Dealers Record
of Sale (DROS), containing the buyer and seller's personal
information, must be provided to the buyer or seller upon
request. (Pen. Code §§ 28160, 28210, and 28215.)
8)Provides that various categories of persons are prohibited
from owning or possessing a firearm, including persons
convicted of certain violent offenses, and persons who have
been adjudicated as having a mental disorder, among others.
(Pen. Code Sections 29800 to 29825, inclusive, 29900, 29905,
30305 and WIC §§ 8100 and 8103.)
9)Prohibits persons who know or have reasonable cause to believe
that the recipient is prohibited from having firearms and
ammunition to supply or provide the same with firearms or
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ammunition. (Pen. Code § 27500 and 30306, and WIC § 8101.)
10)Provides that no person shall sell, lease, or transfer
firearms unless he or she has been issued a state firearms
dealer's license. A violation is a misdemeanor (punishable by
up to one year in county jail). (Pen. Code § 12070.)
11)Provides for specified exemptions including commercial
transactions among licensed wholesalers, importers, and
manufacturers. (Pen. Code § 12070.)
12)Allows DOJ to charge the dealer for a number of costs such as
a dealer record of sale (DROS). (Pen. Code § 12076.)
13)Exempts from the requirement (that sales, loans and transfers
of firearms be conducted through a dealer or local law
enforcement agency) transactions with authorized peace
officers, certain operation of law transactions, and
intra-familial firearms transactions. However, all these
exempt transactions are subject to handgun registration as a
condition of the exemption. (Pen. Code § 12078.)
14)Provides that, on request, DOJ will register transactions
relating to handguns (indeed all firearms) in the Automated
Firearm System (AFS) Unit for persons who are exempt from
dealer processing, or are otherwise exempt by statute from
reporting processes. (Pen. Code § 12078, subd. (l).)
15)Requires a person moving into California (with a handgun
acquired outside of California) who did not receive the gun
from a California licensed gun dealer, to register the gun
with the DOJ by mailing a form. (Pen. Code § 12072, subd.
(f)(2).)
16)Provides for the "Armed and Prohibited" (APS) program which
identifies via registration records those persons who legally
acquired and are the registered owner of any firearm in DOJ's
data base and subsequently become ineligible to possess
firearms and creates a mechanism to disarm these persons.
(Pen. Code § 12010 to 12012.)
17)Provides a county sheriff or municipal police chief may issue
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a license to carry a handgun capable of being concealed upon
the person upon proof of all of the following.
a) The person applying is of good moral character
(Pen.Code, §§ 26150, 26155, subd. (a) (1).);
b) Good cause exists for the issuance (Pen. Code, §§ 26150,
26155, subd. (a) (2).);
c) The person applying meets the appropriate residency
requirements (Pen. Code, §§ 26150, 26155, subd. (a) (3).);
and,
d) The person has completed the appropriate training
course, as specified. (Pen. Code, §§ 26150, 26155, subd.
(a) (4).
18)States that a county sheriff or a chief of a municipal police
department may issue a license to carry a concealed handgun in
either of the following formats:
a) A license to carry a concealed handgun upon his or her
person (Pen. Code, §§ 26150, 26155, subd. (b) (1).); or,
b) A license to carry a loaded and exposed handgun if the
population of the county, or the county in which the city
is located, is less than 200,000 persons according to the
most recent federal decennial census. (Pen. Code, §§
26150, 26155, subd. (b) (2).
19)Provides that a chief of a municipal police department shall
not be precluded from entering into an agreement with the
sheriff of the county in which the city is located for the
sheriff to process all applications for licenses, or renewal
of licenses, to carry a concealed handgun upon the person.
(Pen. Code, § 26155, subd. (b) (3).)
20)Provides that a license to carry a concealed handgun is valid
for up to two years, three years for judicial officers, or
four years in the case of a reserve or auxiliary peace
officer. (Pen. Code, § 26220.)
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21)Provides that a license may include any reasonable
restrictions or conditions that the issuing authority deems
warranted, which shall be listed on the license. (Pen. Code,
§ 26200.)
22)Provides that the fingerprints of each applicant are taken
and submitted to the Department of Justice. Provides criminal
penalties for knowingly filing a false application for a
concealed weapon license. (Pen. Code, §§ 26180, 26185.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 2229 would
amend the 10-day waiting period currently required for certain
firearm purchases, by exempting three groups of firearm buyers
from the state requirement."
2)Silvester v. Harris (2014) 41 F. Supp. 3d 927: Plaintiffs
filed a federal suit in the Central District of California to
challenge the 10-day waiting and contended that the 18
exemptions violate the Equal Protection Clause of the
Fourteenth Amendment . The plaintiffs also contended that the
10-day waiting periods violated the Second Amendment .
Specifically, Plaintiffs contend that the 10-day waiting
periods violate the Second Amendment as applied to those who
already lawfully possess a firearm as confirmed in the
Automated Firearms System ("AFS"), to those who possess a
valid Carry Concealed Weapon ("CCW") license, and to those who
possess a valid Certificate of Eligibility ("COE"). In March
2014, the District Court conducted a bench trial in this
matter. After considering the evidence and the arguments, the
Court concludes that the 10-day waiting periods impermissibly
violate the Second Amendment as applied to those persons who
already lawfully possess a firearm as confirmed by the AFS, to
those who possess a valid CCW license, and to those who
possess both a valid COE and a firearm as confirmed by the AFS
system, if the background check on these individuals is
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completed and approved prior to the expiration of 10 days.
Because of the trial court's resolution of the Second
Amendment issue, the court did not address the Fourteenth
Amendment challenges. California Attorney General Kamala
Harris has appealed this decision to the United States Court
of Appeals for the Ninth Circuit. The matter is presently
before them and they have not made a ruling on this matter.
3)Prohibited Persons: California has several laws that prohibit
certain persons from purchasing firearms. All felony
convictions lead to a lifetime prohibition, while specified
misdemeanors will result in a 10-year prohibition. A person
may be prohibited due to a protective order or as a condition
of probation. Another prohibition is based on the mental
health of the individual. If a person communicates to his or
her psychotherapist a serious threat of physical violence
against a reasonably identifiable victim or victims, the
person is prohibited from owning or purchasing a firearm for
six months, starting from the date the psychotherapist reports
to local law enforcement the identity of the person making the
threat. (Welf. & Inst. Code, § 8100 subd. (b)(1).) If a
person is admitted into a facility because that person is a
danger to himself, herself, or to others, the person is
prohibited from owning or purchasing a firearm for five years.
(Welf. & Inst. Code, § 8103 subd. (f).) For the provisions
prohibiting a person from owning or possessing a firearm based
on a serious threat of violence or based on admittance into a
facility as a threat to self or others, the person has the
right to request a hearing whereby the person could restore
his or her right to own or possess a firearm if a court
determines that the person is likely to use firearms or other
deadly weapons in a safe and lawful manner. (Welf. & Inst.
Code, §§ 8100, subd. (b)(1) and 8103, subd. (f).)
DOJ developed the Armed Prohibited Persons System (APPS), an
automated system for tracking handgun and assault weapon
owners in California who may pose a threat to public safety.
(Penal Code Section 30000 et seq.) APPS collects information
about persons who have been, or will become, prohibited from
possessing a firearm subsequent to the legal acquisition or
registration of a firearm or assault weapon. DOJ receives
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automatic notifications from state and federal criminal
history systems to determine if there is a match in the APPS
for a current California gun owner. DOJ also receives
information from courts, local law enforcement and state
hospitals as well as public and private mental hospitals to
determine whether someone is in a prohibited status. When a
match is found, DOJ has the authority to investigate the
person's status and confiscate any firearms or weapons in the
person's possession. Local law enforcement may also request
from DOJ the status of an individual, or may request a list of
prohibited persons within their jurisdiction, and conduct an
investigation of those persons.
According to DOJ, about 50% of the persons on APPS are
prohibited due to criminal history; about 30% due to mental
health status, and about 20% due to active restraining orders.
4)Argument in Support: According to Firearms Policy Coalition,
"California has a mandatory 10-day waiting period prior to a
person's taking possession of a lawfully-acquired firearm. The
State's rationale and justification of this policy has
traditionally been to chill 'impulse' firearm purchases (e.g.,
a 'cooling-off' period). More recently, the State has argued
that it requires the waiting period in order to perform an
'adequate' background check.
"However, for those law-abiding persons already known to the
state to possess firearms, including those persons licensed by
a California sheriff or police chief to carry a handgun in
public or who have a Certificate of Eligibility [to possess or
acquire firearms] issued by the California Department of
Justice ("DOJ") - both of which require the passage of a Live
Scan background check and continuous criminal activity
monitoring - the State's justifications (and all of its
evidence) have failed to meet even deferential intermediate
scrutiny.
"It is a fact that the DOJ 'auto-approves' at least 20% of all
firearm purchases submitted through its Dealer's Record of
Sale ("DROS") firearm acquisition, disposition, and
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registration system. Yet, these law-abiding people are made to
wait the full 10 days before they take possession of their
firearm.
"A person could (quite literally) walk into a California
licensed dealer having a license to carry, wearing a concealed
handgun, purchase a new firearm, pass the background check,
and then irrationally be made to wait the full 10 days by DOJ
simply because the State's regulatory scheme is as outdated as
it is unconstitutional.
"In fact, The Calguns Foundation successfully litigated this
very issue in the federal civil rights lawsuit Silvester, et
al. v. Attorney General Kamala Harris, where, following years
of litigation, full discovery, and a 3-day trial, District
Court Judge Anthony Ishii (appointed to the bench by President
Bill Clinton) ruled that the 10-day waiting period was nothing
short of an unconstitutional infringement on the plaintiffs'
Second Amendment right to keep and bear arms.
"AB 2229 is a common-sense measure that closely tracks the
Silvester ruling and, put simply, conforms State statutes to
the very minimum of constitutional standards. Even under AB
2229, all firearm purchasers will still need to pass the very
same DOJ-administered background check and first-time
purchasers would still need to wait 10-days before taking
possession of a firearm."
5)Argument in Opposition: According to The California Chapters
of the Brady Campaign to Prevent Gun Violence, "California law
requires that whenever a person purchases a firearm, a
complete background check must be performed and a ten day
waiting period observed before the purchaser can take
possession of the gun. The purpose of the ten day period is
to allow sufficient time to perform the background check and
to provide a "cooling" period to guard against impulsive acts
of violence.
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"Assembly Bill 2229 would provide that if a person is
authorized to carry a concealed firearm, possesses a valid
Certificate of Eligibility, or owns a firearm registered with
the Department of Justice and is determined by the Department
not to be prohibited from purchasing or possessing a firearm,
then the Department must notify the dealer immediately so that
the firearm may be released to the purchaser without waiting
the full ten days.
"The requirement to observe a waiting period for subsequent
firearm purchases was challenged in court by the Calguns
Foundation, the Second Amendment Foundation and by several
individuals. The plaintiffs did not challenge the waiting
period for first time firearm purchases or the need to perform
a complete background check for subsequent purchases.
"The Federal District Court in Fresno issued final judgement
in this case (Silvester v. Harris) on August 25, 2014. The
court found that the plaintiff's Second Amendments rights were
being violated by the subsequent waiting period. Attorney
General Harris timely appealed the trial court judgement and
the case now resides in the 9th Circuit Court of Appeals,
waiting for a ruling.
"In its opening brief on appeal, the Department of Justice
pointed out that each year the Bureau of Firearms performs
over a million background checks. Of these, only 20 percent
are cleared immediately. The remainder require varying levels
of analyst intervention. We have been told by staff at the
Bureau that it commonly takes up to eight days to complete a
background check. It is difficult to see how having to wait
ten days versus eight days constitutes a "substantial burden"
on the exercise of one's constitutional rights under the
Second Amendment, as required in the Chovan v. United States
two part test.
"We believe that there is a substantial likelihood that the
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9th Circuit will reverse the lower court ruling in Silvester
v. Harris. It would be both premature and inappropriate for
the legislature to pass AB 2229 at this time while the case is
still being litigated.
"Accordingly, we stand in opposition to AB 2229."
REGISTERED SUPPORT / OPPOSITION:
Support
Firearms Policy Coalition (Sponsor)
California Sportsman's Lobby
Gun Owners of California
Outdoor Sportsmen's Coalition of California
Safari Club International
Opposition
California Chapters of the Brady Campaign
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California Civil Liberties Advocacy
Law Center to Prevent Gun Violence
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744