BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2245 Hearing Date: June 21, 2016
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|Author: |Cooper |
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|Version: |June 13, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Firearms: Prohibitions: Exemptions: Probation
Departments
HISTORY
Source: Chief Probation Officers of California
Prior Legislation:None known
Support: California Police Chiefs Association; Los Angeles
Professional Peace Officers Association; Peace
Officers Research Association of California; Riverside
Sheriffs' Association; Los Angeles Probation Officers
Union, AFSCME Local 685; California Probation, Parole
and Correctional Association
Opposition:California Chapters of the Brady Campaign to Prevent
Gun Violence; Law Center to Prevent Gun Violence
Assembly Floor Vote: 77 - 0
PURPOSE
The purpose of this bill is to exempt probation departments and
sworn members of probation departments from the prohibition
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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).)
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
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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
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
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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.
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
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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 probation departments and sworn members of
probation departments, 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
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
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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
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:
Currently, Penal Code 32000(b)(4) sets forth state
exemptions for peace officers that are authorized to
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purchase and use, in their official duties, non-roster
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
Any federal law enforcement agency
The military or naval forces of this state or of the
United States
Penal Code 32000 does not expressly note probation
departments as peace officers who are authorized to
purchase non-roster firearms for official department use.
This historically has not presented an issue to departments
in being able to purchase the necessary models of firearms
needed for on- duty responsibilities. However, recently two
county probation departments had their purchase orders to
upgrade on-duty handguns to the latest models denied by
firearms dealers noting PC 32000(b)(4) and similar issues
are occurring for other probation departments.
Probation officers receive the same POST certified PC 832
firearms and arrest training as other peace officers
currently noted in existing law. Further, probation
officers qualify quarterly for their firearms training
which meets and exceeds the general training requirements.
Probation also often works in concert with other local law
enforcement agencies on task forces including, but not
limited to, gang task forces, narcotic task forces,
compliance checks, PC 290 registration compliance and other
duties.
Therefore, it is important that probation be able to
purchase, train with, and use the same models of firearms
that other peace officers that we work with are able to
use.
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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
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
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<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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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
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.
As stated in the author's statement, until recently, probation
departments 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:
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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
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 add probation departments to this list of
exempted law enforcement agencies. Given that this legislation
will also exempt probation officers, who, under existing law,
are able to sell these handguns to non-exempt individuals,
members may wish to discuss whether there should be a
limitation on the transferability of these firearms.
3.Argument in Support
According to the Chief Probation Officers of California:
Existing law does not expressly note probation
departments as peace officers who are authorized to
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purchase non-roster firearms for official department
use, which historically has not presented an issue to
departments in being able to purchase the necessary
models of firearms needed for on-duty
responsibilities.
However, recently a few county probation
department-Marin and San Mateo- had their purchase
order to upgrade on-duty handguns to the latest models
denied by firearms dealers noting state exemptions for
peace officers that are authorized to purchase and
use, in their official duties, not on the rostered
list.
Probation officers receive the same POST certified PC
832 firearms and arrest training as other peace
officers currently noted in existing law. Further,
probation officers qualify quarterly for their
firearms training which meets and exceeds the general
training requirements.
In addition to the duties of supervising persons on
probation, Post-Release Community Supervision (PRCS),
and Mandatory Supervision (MS), probation often works
in concert with other local law enforcement agencies
on task forces including, but not limited to, gang
task forces, narcotic task forces, compliance checks,
PC 290 registration compliance and other duties.
Therefore, it is important that probation be able to
purchase, train with, and use the same models of
firearms that other peace officers that we work with
are able to use".
4. Argument in Opposition
According to the California Chapters of the Brady Campaign to
Prevent Gun Violence:
AB 2245 would expand this exemption and allow
probation departments to obtain unsafe handguns. The
bill is unnecessary because probation officers have
many safer models of handguns available to them.
Officers frequently take their service weapons home
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and, in some cases, fail to lock them away. Firearms
with prominent loaded chamber indicators and magazine
disconnect safety devices are safer than those without
these and other 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. Some models of unsafe handguns lack manual
safeties. Unsafe gun designs help cause many
unintentional firearm injuries and deaths. For
example, unintentional injuries called "Glock leg" are
common.
There have also been a number of instances where
firearms originally sold to law enforcement were, in
turn, re-sold or transferred to civilians. Some law
enforcement handguns have been stolen or in other ways
have gotten into civilian hands.
Finally, I am also personally opposed to expanding
exemptions to California's handgun safety standards.
A model of pistol frequently used by law enforcement
killed my son years ago. My son's friend thought he
had unloaded the gun, which lacked a prominent loaded
chamber indicator. The boy walked into the room where
my son was and made the horrible mistake of pulling
the trigger, expecting to hear a "click." The bullet
hidden in the chamber killed my son. Since then, I
have learned that even highly trained law enforcement
officers sometimes make the mistake of not knowing
when a bullet remains in the chamber.
-- END -
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