BILL ANALYSIS Ó
AB 2459
Page 1
Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Ed Chau, Chair
AB 2459
(McCarty) - As Amended April 13, 2016
SUBJECT: Firearms dealers: conduct of business
SUMMARY: Requires a licensed gun dealer (licensee) to have a
video surveillance system and to record the facial image of each
gun buyer, prohibits a licensee from doing business out of his
or her home, and gives the Department of Justice (DOJ) authority
to impose fines for violation of the bill. Specifically, this
bill:
1)Prohibits, commencing January 1, 2018, a licensee from
designating a building that is a residence, as defined, as a
place where the licensee's business may be conducted.
2)Requires a licensee to ensure that its business premises are
monitored by a video surveillance system that has a camera
that visually records and archives color footage or every sale
or transfer of a firearm or ammunition, in a manner that makes
the facial features of the purchaser or transferee clearly
visible in the recorded footage.
3)Requires the video surveillance system to operate and record
continuously, without interruption, whenever the licensee is
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open for business.
4)Requires the video footage to be retained by the licensee for
at least three years.
5)Specifies that stored video images may only be made available
as follows:
a) In the course of an inspection of a licensee, law
enforcement may view the stored images to the extent
necessary to verify that the video surveillance system is
in proper working order and that the licensee is in
compliance with this bill;
b) To the licensee and employees of the licensee;
c) To law enforcement by search warrant or voluntary
relinquishment by the licensee; and,
d) To any other individual pursuant to a court order or
lawful discovery.
6)Requires the video surveillance system to be inspected weekly,
maintained in proper working order at all times, and if the
system becomes inoperable, the system must be repaired or
replaced within 15 calendar days.
7)Requires a licensee to post a sign in a conspicuous place at
each entrance to the premises that states in at least one-inch
block letters: "THESE PREMISES ARE UNDER VIDEO SURVEILLANCE.
YOUR IMAGE MAY BE RECORDED."
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8)Requires a licensee to submit an annual certification to DOJ
that its video surveillance system is in proper working order.
9)Permits DOJ to impose a civil fine of up to $500 against a
licensee for a violation of these provisions and permits a
fine of up to $2,000 for breaches when the licensee previously
received written notification from the DOJ regarding the
breach and failed to take corrective action, or the DOJ
determines that the licensee committed the breach knowingly or
with gross negligence.
10)Specifies that a violation of the bill subjects a licensee to
license forfeiture.
11)Specifies that this bill does not preclude or preempt a local
ordinance that places additional or more stringent
requirements on licensees on where business may be conducted.
12)Defines "residence" to mean any structure intended or used
for human habitation, including, but not limited to,
dwellings, condominiums, apartments, rooms, motels, hotels,
timeshares, and recreational or other vehicles in which human
habitation occurs.
EXISTING LAW:
1)Defines a firearms dealer "licensee" as a person who:
a) Has a valid federal firearms license;
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b) Has any regulatory or business license, or licenses,
required by local government;
c) Has a valid seller's permit issued by the State Board of
Equalization;
d) Has a certificate of eligibility issued by DOJ;
e) Has a license issued by a city or county, as required by
Penal Code (PC) Section 26705; and
f) Is properly registered in DOJ's centralized list of
licensees. (PC 26700)
2)Requires a licensee to conduct business only in the buildings
designated by the business license, except that a licensee may
do business at:
a) A gun show or event, as long as the show or event is not
conducted from any motorized or towed vehicle, and if the
licensee complies with all applicable local laws,
regulations and fees;
b) A gun auction;
c) Outside the building designated in the license, if the
firearm is being donated for the purpose of sale or
transfer at an auction or similar event; or
d) If the firearm is being delivered to the purchaser,
transferee, or person being loaned the firearm, then the
licensee may conduct business at the building designated in
the license, the places specified in (a) through (c) above
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or the home, the business or the private property of the
purchaser, transferee or person borrowing the firearm. (PC
26805)
3)Requires, with specified exceptions, all transfers of firearms
to be conducted through a licensed dealer. When a person buys
any type of firearm, the dealer is required to obtain personal
identification information from the buyer and to report this
to DOJ on the Dealer Record of Sale (DROS) form. This allows
DOJ to perform a criminal history check on the buyer to
determine if he or she is prohibited from possessing a
firearm. In the case of handguns, DOJ retains that
information, which becomes part of the Automated Firearms
System (AFS) database. (PC 11106(b)(1))
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of this bill . This bill is intended to prevent illegal
gun sales in California by requiring gun dealers to videotape
all gun sales, prohibiting gun sales in homes, and giving DOJ
the authority to impose fines for violation of the bill. This
measure is sponsored by the California Chapters of the Brady
Campaign to Prevent Gun Violence and the Law Center to Prevent
Gun Violence.
2)Author's statement . According to the author's office, "As a
local elected official, I authored successful measures to
crack down on illegal gun and ammunition sales. As a State
Assemblymember, I am proud to author AB 2459, which I believe
will have a strong impact statewide in the effort to keep guns
out of the wrong hands. Recording gun transactions will
provide another tool in the tool box for law enforcement to go
after illegal gun sales."
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3)Limited resources to oversee gun sales . Law enforcement has
limited resources to oversee the more than 2,300 licensee in
our state. A 2010 Washington Post report found that, due to
limited staffing, the federal Bureau of Alcohol, Tobacco and
Firearms (ATF) could only inspect gun dealers once per decade
on average. A recent New York Times investigative report,
"How They Got Their Guns," found that, since 2009, 15 mass
shootings were committed with legally purchased firearms. A
study by ATF found that 60% of legally purchased weapons found
at crime scenes came from 1% of gun dealers. Later studies
have estimated that 90% of legally purchased guns used in the
commission of a crime were from 5% of gun dealers. In 2014,
2,935 Californians were killed by firearms.
Proponents of the bill contend that many gun sales are so
called "straw sales" whereby a person prohibited from
purchasing a gun uses a third party, often a family member or
friend, to legally purchase the gun. These sales are
technically legal, but when recorded becomes obvious that the
purchaser has no interest in purchasing the gun for
themselves. In two academic studies, undercover researchers
found that at least 20% of California gun dealers were willing
to conduct an illegal "straw purchase" even when the dealer
knew the gun would be used by a prohibited person. Though
these transactions are a leading source of guns used during
crimes, they often appear legal on paper.
Proponents of the bill contend that another source of legally
purchased guns is the residential dealer: licensed dealers who
sell weapons out of their homes. To date, over 60 cities and
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counties in California have banned this practice, recognizing
the potential for abuse and lack of adequate oversight.
4)Video surveillance and privacy issues . California law
requires gun sales to be conducted through a licensee, and
when a person buys a gun, the dealer must collect personal
information from the buyer and report this to DOJ. DOJ in
turn conducts a criminal background check on the buyer to
determine if he or she is prohibited from possessing a
firearm. This bill would prohibit sales from occurring in
homes and would require licensee to have a video surveillance
system on their business premises that records every single
sale in a manner that captures, in color, the facial image of
each buyer on camera. The bill requires gun dealers to have
the surveillance system recording at all times during business
hours and to keep the video footage on file for at least three
years.
The bill's video surveillance provisions along with the
prohibition on sales in a licensee's home, called "kitchen
table" dealers, are designed to eliminate sales to illegal
traffickers and "straw purchasers" who buy guns for others who
cannot pass a background check. Opponents of the bill contend
that gun sales are already highly regulated and that video
surveillance would be costly and burdensome with little
additional benefit.
Proponents contend that video recording is a common practice
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in all types of retail stores and provides safety and security
for both store employees and customers. Proponents contend
that given the number of deaths in California that stem from
straw purchases and other illegal gun sales, video
surveillance of gun sales is in the public's best interest -
even if it means less privacy for gun customers.
5)Recent amendments. In an effort to address the concerns of
opponents, the author recently amended the bill to eliminate
or narrow certain provisions.
Those amendments eliminated a provision that would have required
a licensee to obtain liability insurance and narrowed the
videotaping requirement by requiring only one security camera.
The bill also reduced the retention time period for the video
footage from five years to three and clarified that it only
requires the camera to record when the dealer is open for
business. Finally, AB 2459 requires the video footage to be
kept confidential with specific exceptions for law
enforcement, and clarifies that the bill does not apply to
"gunsmiths" who are not licensed guns dealers.
6)Arguments in support . The bill's sponsor, the California
Chapters of the Brady Campaign to Prevent Gun Violence, states
"AB 2459 will bring transparency and accountability to gun
dealers in California so that they are not a source of illegal
guns. Under the bill, irresponsible or 'bad apple' gun
dealers could be identified and either reformed or shut down.
The bill requires gun dealers to videotape all gun sales and
conduct business from a commercial store front. Additionally,
the bill will enable better enforcement of state law by the
California Department of Justice (DOJ)."
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The Violence Prevention Coalition of Greater Los Angeles
states that the bill, "will reduce easy access to firearms and
will help to end the gun violence epidemic in California.
Over 8,000 Californians are injured or killed by guns every
year and guns are commonly used in crime. According to the
California Department of Justice, in 2014 there were 1,169
firearm murders in California, 13,546 armed robberies
involving a firearm, and 15,801 aggravated assaults involving
a firearm. Many criminals who may be prohibited from
purchasing a firearm are able to acquire guns through illegal
trafficking channels. ATF Trace Reports show that about 70%
of guns recovered by law enforcement in California and traced
had been sold by a firearm dealer in California."
The Coalition Against Gun Violence adds, "[AB 2459] will
provide transparency for all gun transactions, deter illegal
activity, and improve enforcement of existing law. AB 2459
contains reasonable measures that will help curb the flow of
illegal guns into communities throughout California. The bill
will reduce gun crime and save lives."
7)Arguments in opposition . The National Rifle Association
states in opposition, "These changes would do nothing more
than put law-abiding firearms dealers out of business. Dealers
in California already have to deal with strict federal and
state requirements on those engaged in the business of dealing
in firearms, including background check and record keeping
requirements."
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The Pawnbroker's Association opposes the bill and has
requested an exemption from the bill for pawnbrokers, stating
that "the costly upgrades and ongoing costs to retain video
may be appropriate for an establishment in the business of
selling guns to the public [but] in our business model, a pawn
pledger may pledge a gun for a pawn loan. We believe that
good public policy dictates that simply holding a gun as
collateral for a loan does not trigger the responsibilities of
a gun dealer for public safety."
The Firearms Policy Coalition states that this bill "requires
that the customer's face be clearly recorded. These are the
same customers who have already provided a Firearm Safety
Certificate (or License to Carry), proof of residence, valid
government photo identification and submitted to one of the
nation's most stringent background checks. How does recording
facial features of the most already positively identified
customers of any industry in the nation serve the public
interest?"
8)Related legislation . AB 2229 (Grove) Eliminates the 10-day
waiting period for persons previously determined by the 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. AB
2229 failed passage in the Assembly Public Safety Committee.
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9)Prior legislation . AB 809 (Feuer), Chapter 745, Statutes of
2011), expanded reporting requirements for gun sales and
required firearms dealers to keep a register or record of
information about their gun sales.
10)Double-referral . This bill was double-referred to the
Assembly Public Safety Committee where it was heard on April
13, 2016, and passed 5-2.
REGISTERED SUPPORT / OPPOSITION:
Support
California Chapters of the Brady Campaign to Prevent Gun
Violence (co-sponsor)
Law Center to Prevent Gun Violence (co-sponsor)
All Saints Church
Cleveland School Remembers
Coalition Against Gun Violence
Courage Campaign
International Health & Epidemiology Research Center
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Laguna Woods Democratic Club
League of Women Voters of California
Physicians for Social Responsibility, Sacramento Chapter
Rabbis Against Gun Violence
Sacramento Chapter of Physicians for Social Responsibility
San Francisco Bay Area Physicians for Social Responsibility
Violence Prevention Coalition of Greater Los Angeles
Violence Prevention Coalition of Orange County
Women Against Gun Violence
Youth ALIVE!
Opposition
California Pawnbroker's Association
California Sportsman's Lobby
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Crossroads of the West
Firearms Policy Coalition
National Rifle Association
National Shooting Sports Foundation
Outdoor Sportsmen's Coalition of California
Safari Club International, California Chapters
Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)
319-2200