BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 347 Hearing Date: April 14, 2015
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|Author: |Jackson |
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|Version: |February 24, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Firearms: Prohibited Persons
HISTORY
Source: Author
Prior Legislation:SB 755 (Wolk)-2013, vetoed
SB 819 (Leno) - Chap. 743, Stats. 2011
AB 302 (Beall) - Chap. 344, Stats. 2010
AB 161 (Steinberg) - Chap. 754, Stats. 2003
AB 950 (Brulte) - Chap. 944, Stats. 2001
Support: California Chapters of the Brady Campaign to Prevent
Gun Violence; Friends Committee on Legislation in
California; Law Center to Prevent Gun Violence; City
of Santa Barbara; Physicians for Social
Responsibility, Sacramento Chapter; San Francisco Bay
Area Physicians for Social Responsibility; Youth
ALIVE;
2 Individuals
Opposition:The California Sportsman Lobby; Gun Owners of
California; Safari Club International; Outdoor
Sportsmen's Coalition of California
PURPOSE
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The purpose of this bill is to add specified offenses to the list
of misdemeanors that result in a 10-year prohibition on firearms
possession.
Existing law requires that firearms dealers obtain certain
identifying information from firearms purchasers and forward
that information, via electronic transfer to Department of
Justice (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.)
Existing law requires firearms to be centrally registered at
time of transfer or sale by way of transfer forms centrally
compiled by the DOJ. DOJ is required to keep a registry from
data sent to DOJ indicating who owns what firearm by make,
model, and serial number and the date thereof. (Penal Code §
11106(a) and (c).)
Existing law requires the Attorney General to establish and
maintain an online database to be known as Armed Prohibited
Persons System (APPS). The purpose of the file is to
cross-reference persons who have ownership or possession of a
firearm on or after January 1, 1991, as indicated by a record in
the Consolidated Firearms Information System (CFIS), and who,
subsequent to the date of that ownership or possession of a
firearm, fall within a class of persons who are prohibited from
owning or possessing a firearm. The information contained in
APPS shall only be available to specified entities through the
California Law Enforcement Telecommunications System, for the
purpose of determining if persons are armed and prohibited from
possessing firearms. (Penal Code § 30000.)
Existing law provides that the Prohibited Armed Persons File
database shall function as follows:
Upon entry into the Automated Criminal History System
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of a disposition for a conviction of any felony, a
conviction for any firearms-prohibiting charge specified
in Chapter 2 (commencing with Section 29800), a conviction
for an offense described in Chapter 3 (commencing with
Section 29900), a firearms prohibition pursuant to Section
8100 or 8103 of the Welfare and Institutions Code, or any
firearms possession prohibition identified by the federal
National Instant Criminal Background Check System, DOJ
shall determine if the subject has an entry in CFIS
indicating possession or ownership of a firearm on or
after January 1, 1991 or an assault weapon registration,
or a .50 BMG rifle registration;
Upon an entry into any department automated
information system that is used for the identification of
persons who are prohibited by state or federal law from
acquiring, owning, or possessing firearms, the department
shall determine if the subject has an entry in CFIS
indicating ownership or possession of a firearm on or
after January 1, 1991, or an assault weapon registration,
or a .50 BMG rifle registration;
If the department determines that, pursuant to
subdivision (a) or (b), the subject has an entry in the
CFIS indicating possession or ownership of a firearm on or
after January 1, 1991 or an assault weapon registration,
or a .50 BMG rifle registration, the following information
shall be entered into APPS:
o The subject's name;
o The subject's date of birth;
o The subject's physical description;
o Any other identifying information regarding the
subject that is deemed necessary
by the Attorney General;
o The basis of the firearms possession prohibition; and,
o A description of all firearms owned or possessed by
the subject, as reflected by
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the Consolidated Firearms Information System.
(Penal Code § 30000.)
Current federal law provides that certain people are prohibited
from owning or possessing a firearm:
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
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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
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
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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.)
This bill would add the following misdemeanor offenses to those
for which a conviction results in a 10-year prohibition on
possession of a firearm:
Theft of a firearm (Penal Code § 490.2);
Receipt of stolen property, if the property is a firearm
(Penal Code § 496);
Sale of a firearm without a license (Penal Code §
26500);
Sale of ammunition to an underage person (Penal Code §
30300);
Possession of ammunition by a person prohibited from
possessing a firearm (Penal Code § 30305);
Sale or supplying ammunition to a person prohibited from
possessing a firearm (Penal Code § 30306);
Bringing ammunition on school grounds (Penal Code §
30310);
Carrying a concealed firearm where the person has been
convicted of a drug offense or of a crime against a person
or property (Penal Code § 25400(c)(5));
Carrying a concealed firearm where the firearm was
loaded and not registered to the person in possession
(Penal Code § 25400(c)(6));
Carrying a loaded firearm in public where the person has
been convicted of a drug offense or of a crime against a
person or property (Penal Code § 25850(c)(5)); and
Carrying a loaded firearm in public where the firearm
was not registered to the person in possession. (Penal
Code § 25850(c)(6).)
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the past eight 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 February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 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).
While significant gains have been made in reducing the prison
population, the state now 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
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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:
Firearms laws are a critical component of the state's
responsibility to ensure public safety. According to
FBI statistics, in 2013 there were a total of 1,745
murders in California and 1,224 of those were firearm
related. In order to prevent gun violence we have
adopted policies to prohibit the purchase of guns by
persons believed to be high-risk for future criminal
activity.
Federal law makes it unlawful to purchase or possess
firearms by people who fall within certain categories
such as convicted felons, domestic abusers, and people
with specific kinds of mental health histories.
California law also imposes prohibitions that can last
for various lengths of time including a lifetime ban.
Anyone convicted of numerous misdemeanors involving
violence or threats of violence is prohibited from
owning or possessing a firearm for 10 years.
In 2001, California was the first in the nation to
create the Armed Prohibited Persons System (APPS) as a
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response to high-profile murder cases involving people
prohibited from owning firearms. The Department of
Justice (DOJ) operates the APPS, which
cross-references the database of criminal convictions
and other prohibited persons with the state's firearms
registration database known as Automated Firearms
System (AFS). The end result is a database of persons
who lawfully purchased/acquired firearms and assault
weapons and subsequently became prohibited as a result
of a criminal conviction, restraining order, felony
arrest warrant, and/or a mental health
assessment/adjudication.
Still, many individuals with a history of criminal
activity legally purchase firearms every year. It is
well established that persons with a history of even a
single prior arrest are, as a group, substantially
more likely than persons with no such history to
engage in criminal behavior in the future.
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:
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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.)
According to the author:
[S]tudies demonstrate the need to strengthen our
firearms regulations. In particular, certain
firearm-related misdemeanors should have been
originally included in the 10-year ban on firearm
purchases.
To this end, this bill would expand the number of misdemeanor
convictions resulting in a 10-year prohibition by adding a
number of firearm related misdemeanors, including the sale of a
firearm without a license, sale of ammunition to an underage
person, and carrying a concealed firearm where the firearm was
loaded and not registered to the person in possession.
SHOULD THE NUMBER OF MISDEMEANOR CONVICTIONS RESULTING IN A
10-YEAR FIREARM PROHIBITION BE EXPANDED?
3. Proposed Amendments
The bill will be amended to add a misdemeanor conviction of
Penal Code section 29805 (prohibited person in possession of a
firearm) to the list of misdemeanors that result in a 10-year
prohibition on firearms possession.
4. Argument in Support
The California Chapters of the Brady Campaign to Prevent Gun
Violence states,
Under existing law, convicted felons are subject to a
permanent firearm prohibition and persons who has been
convicted of certain specified violent misdemeanors
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are prohibited from possessing or purchasing a firearm
within 10 years of the conviction, yet many criminals
are still able to legally purchase firearms in
California. SB 347 adds a number of firearm and
ammunition-related offenses to the list of misdemeanor
convictions that carry a 10 year firearm prohibition.
These offenses include selling or furnishing
ammunition to a person prohibited from possessing
ammunition, including minors, and the possession of
ammunition by a prohibited person. Dealing in
firearms without a license and carrying a loaded or
concealed weapon in certain cases, as well as other
offenses, would also cause the 10 year firearm
prohibition.
Public safety would be furthered by the addition of
the temporary firearm prohibitions under SB 347 as
research shows that handgun purchasers with prior
misdemeanor convictions are at increased risk of
future criminal activity, including violent crimes.
Specifically, a person in California convicted of one
nonviolent firearm offense is over 7 times more likely
to commit another nonviolent firearm offense, over 4
times more likely to commit a violent offense, and
over five times more likely to commit a Violent Crime
Index Offense (murder or non-negligent manslaughter,
forcible rape, robbery, or aggravated assault).<1> A
temporary firearm prohibition for these at risk
individuals would make them unable to pass a
background check when attempting to purchase a firearm
and place them in the Armed and Prohibited Persons
System if they already possess a gun.
5. Argument in Opposition
The Outdoor Sportsmen's Coalition of California (OSCC)
states:
--------------------------
<1>
Wintemute GJ. Prior Misdemeanor Convictions as a Risk Factor
for Later Violent and Firearm0Related Criminal Activity Among
Authorized Purchasers of Handguns. Journal of the American
Medical Association 1998; 280: 2083-2087.
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The existing provision of state law that mandates a
ten year prohibition on the possession of firearms for
committing various misdemeanors (29085 pc) has thus
far been limited to misdemeanors that are of a violent
nature against another person.
SB 347 would abandon this principle by including a
number of misdemeanors that do not themselves
constitute violence against others.
Hunters are all firearms owners. The loss of lawful
firearms possession as proposed in SB 347 also means
the loss of hunting for ten years.
The offenses of concern to OSCC are not the kind of
violations that should result in the loss of firearms
possession for ten years. Existing penalties are
sufficient.
Accordingly, the Outdoor Sportsmen's Coalition of
California is opposed to the enactment of the bill.
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