BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 894|
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THIRD READING
Bill No: SB 894
Author: Jackson (D)
Introduced:1/21/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 4/19/16
AYES: Hancock, Glazer, Leno, Liu, Monning
NOES: Anderson, Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
SUBJECT: Firearms: lost or stolen: reports
SOURCE: Author
DIGEST: This bill (1) requires that owners and possessors of
firearms report the theft or loss of a firearm to local law
enforcement agency within five days of the time they knew or
reasonably should have known that the firearm had been stolen or
lost, subject to infraction and misdemeanor penalties, as
specified; (2) requires firearms dealers to post notice of this
requirement within their licensed premises, as specified; and
(3) provides that these reporting provisions do not preclude or
preempt a local ordinance that imposes additional penalties or
requirements in regard to reporting the theft or loss of a
firearm.
ANALYSIS:
Existing law:
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1) Provides that persons licensed to make, import, collect, or
deal in firearms are required to report the loss or theft of
firearms they possess, to a law enforcement agency. For
example, Penal Code Section 26885 requires licensed dealers
to report losses within 48 hours and Penal Code Section
29115(a) requires licensed firearms manufacturers - whether
of handguns or long guns - to report the loss or theft of
firearms within 48 hours to specified law enforcement
agencies.
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. (Penal Code §§ 26500,
27545.) In those cases where dealer or law enforcement
processing is not required, a handgun change of title report
must still be sent to the Department of Justice (DOJ).
(Penal Code § 27920.)
3) Provides that, on request, DOJ will register transactions
relating to handguns in the Automated Firearm System Unit for
persons who are exempt from dealer processing or are
otherwise exempt by statute from reporting processes. (Penal
Code § 28000.)
4) Requires handguns to be centrally registered at time of
transfer or sale due to various transfer forms centrally
compiled by the DOJ. DOJ is required to keep a registry from
data sent to DOJ indicating who owns firearms by make, model,
and serial number and the date thereof. (Penal Code §
11106(a) and (c).) Law enforcement agencies must promptly
report to DOJ all reports they receive of lost, stolen, and
found property. (Penal Code §§ 11107, 11108.) DOJ must keep
a centralized and computerized list of all lost, stolen, and
found serialized property reported to it. (Penal Code §
11106(a).)
5) Provides that in addition to the requirements of Section
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11108 that apply to a local law enforcement agency's duty to
report to the DOJ the recovery of a firearm, a police or
sheriff's department shall, and any other law enforcement
agency or agent may, report to the department in a manner
determined by the Attorney General (AG) in consultation with
the Bureau of Alcohol, Tobacco, Firearms and Explosives all
available information necessary to identify and trace the
history of all recovered firearms that are illegally
possessed, have been used in a crime, or are suspected of
having been used in a crime. In addition, any law
enforcement agency or agent may report to the AG pursuant to
this section all information pertaining to any firearm taken
into custody, except where the firearm has been voluntarily
placed with the law enforcement agency for storage. (Penal
Code § 11108.3.)
6) Requires that a "personal handgun importer" - a person in
lawful possession of a handgun who moves to California after
January 1, 1998 - shall either report that ownership to the
DOJ within 60 days or shall otherwise dispose of the handgun,
as specified. (Penal Code §§ 17000(a), 27560.)
7) Provides that if any weapon has been stolen and is
thereafter recovered from the thief or his or her transferee,
or is used in such a manner as to constitute a nuisance
because it was unlawfully carried or used without the prior
knowledge of its lawful owner that it would be so used, it
shall be restored to the lawful owner, as soon as its use as
evidence has been completed. The lawful owner must identify
the weapon and provide proof of ownership. (Penal Code §
18005(b).)
8) Requires that any person seeking the return of a firearm in
the custody or control of a court or law enforcement agency
must submit specified information, including for handguns the
firearm's make, model, caliber, barrel length, handgun type,
country of origin, and serial number. If the firearm has
been reported lost or stolen to a law enforcement agency, as
specified, the agency shall notify the owner or person
entitled to possession of the firearm. The person seeking
return of the firearm shall be subject to a background check,
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as specified. (Penal Code §§ 33850, 33855.)
9) Excludes from the definition of "firearm," for a number of
provisions of law, an unloaded "antique firearm" and uses the
federal definition of that term. (Penal Code § 16170.)
10)Requires licensed firearms dealers to post specified
warnings in a conspicuous place on their premises, such as a
warning about penalties for leaving a loaded firearm where a
child obtains it. (Penal Code § 26835.)
11)Makes it a crime, as it pertains to the "criminal storage"
of firearms - both handguns and rifles and shotguns, to store
firearms negligently and where a child (person under 18 years
of age) gains access to the firearm(s), as specified. (Penal
Code §§ 25100, et seq.)
12)Provides that every person is responsible, not only for the
result of his or her willful acts, but also for an injury
occasioned to another by his or her want of ordinary care or
skill in the management of his or her property or person,
except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself or herself.
The design, distribution, or marketing of firearms and
ammunition is not exempt from the duty to use ordinary care
and skill that is required by this section. (Civil Code §
1714.)
13)Provides that civil liability for any injury to the person
or property of another proximately caused by the discharge of
a firearm by a minor under the age of 18 years shall be
imputed to a parent or guardian having custody and control of
the minor for all purposes of civil damages, and such parent
or guardian shall be jointly and severally liable with such
minor for any damages resulting from such act, if such parent
or guardian either permitted the minor to have the firearm or
left the firearm in a place accessible to the minor; the
liability imposed by this section is in addition to any
liability otherwise imposed by law. However, no person, or
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group of persons collectively, shall incur liability under
this section in any amount exceeding $30,000 for injury to or
death of one person as a result of any one occurrence or,
subject to the limit as to one person, exceeding $60,000 for
injury to or death of all persons as a result of any one such
occurrence. (Civil Code § 1714.3.)
14)Provides that no person shall make an application to
purchase more than one handgun within any 30-day period.
(Penal Code § 27535(a).) However, an exemption to that
restriction applies to the replacement of a handgun when the
person's handgun was lost or stolen, and the person reported
that firearm lost or stolen prior to the completion of the
application to purchase to any local law enforcement agency
of the city, county, or city and county in which the person
resides. (Penal Code § 27535(b) (11).)
This bill:
1) Requires that, beginning January 1, 2017, every person must
report the theft or loss of a firearm he or she owns or
possesses to a local law enforcement agency in the
jurisdiction in which the theft or loss occurred within five
days of the time he or she knew or reasonably should have
known that the firearm had been stolen or lost.
2) Provides that, for purposes of this requirement, a "firearm"
includes the frame or receiver of the weapon.
3) Provides that, for purposes of this requirement, a "firearm"
does not include an unloaded antique firearm.
4) Requires that every person who has reported a firearm lost
or stolen, as required above, shall notify the local law
enforcement agency in the jurisdiction in which the theft or
loss occurred within 48 hours if the firearm is subsequently
recovered by the person.
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5) Provides that a violation of either of the above provisions
would be, for a first violation, an infraction punishable by
a fine not to exceed $100. A second violation would be an
infraction, punishable by a fine not exceeding $1,000. A
third or subsequent violation would be a misdemeanor,
punishable by imprisonment in a county jail not exceeding six
months, or by a fine not exceeding $1,000, or by both that
fine and imprisonment.
6) Requires that every person reporting a lost or stolen
firearm shall report the make, model, and serial number of
the firearm, if known by the person.
7) Provides that, beginning January 1, 2017, no person shall
report to a local law enforcement agency that a firearm has
been lost or stolen, knowing the report to be false. A
violation is an infraction, punishable by a fine not
exceeding $250 for a first offense, and by a fine not
exceeding $1,000 for a second or subsequent offense.
8) Requires firearms dealers to conspicuously post within the
licensed premises the following warnings in block letters not
less than one inch in height: "IF A FIREARM YOU OWN OR
POSSESS IS LOST OR STOLEN, YOU MUST REPORT THE LOSS OR THEFT
TO A LOCAL LAW ENFORCEMENT AGENCY WHERE THE LOSS OR THEFT
OCCURRED WITHIN 5 DAYS OF THE TIME YOU KNEW OR REASONABLY
SHOULD HAVE KNOWN THAT THE FIREARM HAD BEEN LOST OR STOLEN."
9) Provides that the lost or stolen firearm reporting
requirement shall not apply to:
a) Any law enforcement agency or peace officer acting
within the course and scope of his or her employment or
official duties, if he or she reports the loss or theft to
his or her employing agency.
b) Any United States Marshal or member of the Armed
Forces of the United States or the National Guard, while
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engaged in his or her official duties.
c) Any federally licensed firearms dealer or
manufacturer, as specified, who reports the theft or loss
in accordance with specified federal law, or the successor
thereto, and the applicable regulations.
d) Any person whose firearm was lost or stolen prior to
January 1, 2017.
10)Provides that its provisions would "not preclude or preempt
a local ordinance that imposes additional penalties or
requirements in regard to reporting the theft or loss of a
firearm."
Background
Mandating Reporting of Lost and Stolen Firearms
In 2007, the International Association of Chiefs of Police held
a summit on gun violence. The report issued following that
summit states:
Nearly 30,000 American lives are lost to gun violence
each year-a number far higher than in any other
developed country. Two to three times that many suffer
non-fatal injuries. Since 1963, more Americans died by
gunfire than perished in combat in the whole of the
20th century (statistics cited in Private Guns, Public
Health, University of Michigan Press, 2004). And the
overall impact goes much farther. Gun violence reaches
across borders and jurisdictions and compromises the
safety of everyone along the way. (International
Association of Chiefs of Police, Taking a Stand:
Reducing Gun Violence in Our Communities (Sept. 2007),
at page 8.
http://www.theiacp.org/LinkClick.aspx?fileticket=%2Fs0Li
OkJK5Q %3D&tabid=87.)
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The report discusses the causes of gun violence and makes
several specific recommendations. Many of the recommendations
are already state law in California such as a ban on
military-style assault weapons, mandating safe storage and
trigger-lock devices, and requiring all firearms transfers to
take place through a licensed dealer. One recommendation
contained in the report that is not currently required under
state law in California is the reporting of all lost and stolen
firearms. The report states:
State and local governments should mandate the
reporting of lost and stolen firearms, and federal law
in this area should be tightened.
The federal government has already taken steps to
protect citizens against the criminal misuse of lost
and stolen guns. As of 1994, federal law requires FFLs
to report their lost and stolen guns to ATF and local
law enforcement within 48 hours of discovering that the
gun is missing. This law should be strengthened to
ensure that dealers keep track of their inventories by
requiring them to report missing firearms within 5 days
after they know or should know that the gun is missing.
As a result of current federal policy, and in
particular the work of ATF's Stolen Firearms Program at
the National Tracing Center, many stolen guns have been
recovered and instances of gun violence averted.
Every state and local government should mandate that
gun owners report lost and stolen guns. Stolen guns
represent a major risk to the community at large,
because they have, by definition, entered criminal
hands. Ensuring law enforcement's early awareness of
every lost and stolen gun will enhance their ability to
recover those guns and reduce gun violence. (Id at
page 22.)
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The Armed Prohibited Persons File
Current California law requires the AG to maintain an online
database known as the Armed Prohibited Persons File. The
purpose of the file is to cross-reference persons who are on
record as the owner of a firearm and who, subsequent to the date
of taking possession of that firearm, fall within a class of
persons who are prohibited from owning or possessing a firearm.
(Penal Code § 30000.) This data base allows police to identify
and retrieve firearms from people who may be mentally unstable
or under an injunction due to allegations of domestic violence,
or have been convicted of a crime of violence. However, this
system relies on the accuracy of firearms ownership records.
Because there is no requirement for firearms owners to report
lost or stolen firearms, these records are necessarily
incomplete and this makes enforcement of firearms prohibitions
difficult. When police contact a prohibited person who is on
record as the owner of a firearm, that person can simply assert
that the firearm was either lost or stolen and they are under no
obligation to produce any evidence to support that claim. One
effect of this bill will be to allow police to cite individuals
in this situation who claim their firearms were lost or stolen
but have not reported that loss. The penalty for the first
offense would be a fine of up to $100. A second offense would
carry a fine of up to $1,000, and any subsequent offenses would
be punishable as a misdemeanor, with a possible jail sentence of
up to six months, a fine of up to $1,000, or both.
Does the Bill Violate the Fifth Amendment?
This bill raises the issue of whether it could violate the Fifth
Amendment right against self-incrimination to require a person
to report the loss or theft of a firearm that the person
obtained or possessed illegally. In Marchetti v. United States,
(1968) 390 U.S. 39, the United States Supreme Court granted an
individual who was charged with failing to comply with a
gambling registration tax statute a defense from prosecution
based on the Fifth Amendment. In Marchetti, however, the
gambling statute was written in such a manner that the only
persons required to comply with the statute were those engaged
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in illegal gambling activities. As such, the statute was
designed to ferret out and cause the prosecution of illegal
gambling through an ostensible tax scheme.
This bill, by contrast, requires "Commencing January 1, 2017,
every person shall report the theft or loss of a firearm he or
she owns or possesses to a local law enforcement agency in the
jurisdiction in which the theft or loss occurred within 5 days
of the time he or she knew or reasonably should have known that
the firearm had been stolen or lost." Both those in lawful
possession of the handgun and those not in lawful possession
would be required to make the report or be subject to an
infraction on the first offense and a misdemeanor for subsequent
offenses. The requirement also does not differentiate between
circumstances of the theft or loss, whether the weapon was
stolen while carried illegally, for example, versus whether the
weapon was lawfully stored at the person's residence.
Therefore, because the statute does not appear to be designed to
identify persons who are in illegal possession of a handgun
before it was lost or stolen, there would not appear to be any
Fifth Amendment defense to failure to comply.
Potential for Inadvertent Violation
Under the reporting requirement established in this bill, a
violation of this law would occur by way of an omission or
failure to act. As such, this could be an easy statute to
violate inadvertently. For example, a person might inherit a
firearm, put it in a box in the attic and forget about it.
Later, the person's house is burglarized and the person doesn't
think to look in the box in the attic where the gun was kept to
see if it is still there. If it turns out the gun was stolen in
the burglary, the person could be in violation of this law
because they failed to report the theft of the gun. This bill
requires gun owners to report any firearm that they knew or
reasonably should have known was lost or stolen within five days
of the loss. In the above scenario, a court might well conclude
that the gun owner should have checked to see if the gun was
stolen after the burglary, that the failure to do so was
unreasonable, and therefore the failure to report the loss
resulted in a violation of this statute.
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Imposing this reporting requirement involves something of a
paradigm shift in attitudes about firearm ownership. Simply
put, this bill requires firearms owners to be aware of the
whereabouts of their firearms at all times. While most firearms
owners are undoubtedly law abiding citizens, it is not clear
what percentage of them would report a lost or stolen gun
currently. Making it a requirement to do so imposes a
significant new responsibility on gun owners.
Governor's Veto Message
This bill is similar to two bills, SB 1366 (DeSaulnier, 2012)
and SB 299 (Desaulnier, 2013), that were vetoed by the Governor.
The Governor stated in his veto message of SB 299:
I am returning Senate Bill 299 without my signature.
Last year I vetoed a nearly identical bill, SB 1366, noting
that I was not convinced that criminalizing the failure to
report a lost or stolen firearm would improve identification
of gun traffickers or help law enforcement disarm people
prohibited from possessing guns. I continue to believe that
responsible people report the loss or theft of a firearm and
irresponsible people do not. I remain skeptical that this bill
would change those behaviors.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
One-time staffing costs to the DOJ of about $100,000 (Special
Fund*) to make necessary enhancements to automated systems to
enable compliance with the provisions of this bill.
Non-reimbursable local law enforcement costs (Local Funds),
offset to a degree by fine revenue for infractions, and to a
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lesser degree, misdemeanor offenses.
Minor local incarceration costs (Local Funds), to the extent
anyone is convicted of a misdemeanor for a third or subsequent
offense of failing to report a stolen firearm.
Minor state trial court costs (General Fund*) for additional
infraction and, to a lesser degree, misdemeanor filings.
Potential minor increase in local costs, potentially
state-reimbursable (General Fund) for local law enforcement to
report to the DOJ, as pursuant to existing law (Penal Code §
11108), local law enforcement is required to promptly report
to DOJ all reports they receive of lost, stolen, and found
property, including firearms. However, to the extent the
provisions of this bill result in an increase in the number of
reports of stolen/lost firearms, the subsequent increase in
volume of reports to be reported by law enforcement agencies
to the DOJ would increase the costs of the existing mandate.
*Firearm Safety and Enforcement Special Fund
**Trial Court Trust Fund
SUPPORT: (Verified5/17/16)
American Academy of Pediatrics, California
California Academy of Family Physicians
California American College of Emergency Physicians
California Chapters of the Brady Campaign to Prevent Gun
Violence
City of Santa Barbara, Office of Mayor
City of Santa Barbara, Police Department
Courage Campaign
Holman United Methodist Church
International Health & Epidemiology Research Center
Jewish Labor Committee Western Region
Law Center to Prevent Gun Violence
Los Angeles County Sheriff's Department
Physicians for Social Responsibility Sacramento Chapter
Physicians for Social Responsibility San Francisco Bay Area
Chapter
Violence Prevention Coalition of Greater Los Angeles
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Violence Prevention Coalition of Orange County
Women Against Gun Violence
Youth Alive!
One individual
OPPOSITION: (Verified5/17/16)
California Rifle and Pistol Association
Firearms Policy Coalition
Gun Owners of California
Mono County Deputy Sheriff's Association
National Rifle Association
Outdoor Sportsmen's Coalition of California
Safari Club International
The California Sportsman's Lobby, Inc.
Several individuals
ARGUMENTS IN SUPPORT: Women Against Gun Violence states:
Women Against Gun Violence supports Senate Bill 894,
which seeks to improve public safety by requiring that
every person whose firearm is lost or stolen notify
local law enforcement within 5 days of the time the
person knew or reasonably should have known that their
firearm had been lost or stolen.
SB 894 would provide a tool for law enforcement to
detect firearms trafficking and charge criminals who
engage in such activity. A requirement to report lost
or stolen firearms would assist in the identification
and prosecution of "straw buyers," individuals who
purchase guns legally, then sell them to people who
cannot legally purchase firearms such as gang members,
criminals, or minors.
When crime guns are traced to straw buyers, they
falsely claim that the firearm was lost or stolen. The
lack of a reporting requirement enables straw buyers to
shield their criminal activity and continue to sell
guns illegally to dangerous criminals. A reporting
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requirement would likewise assist in the prosecution of
armed criminals who falsely claim that a crime gun
traced to them was lost or stolen when in fact it was
used in a crime. It also enables criminals to hide
their involvement in a crime and evade apprehension.
SB 894 would help law enforcement efforts to disarm
individuals who possess a firearm and subsequently
becomes prohibited by law from purchasing or possessing
firearms because of falling into a prohibited class.
When law enforcement attempts to recover these illegal
firearms, gun owners may falsely claim that the gun was
lost or stolen. A reporting requirement would improve
the efficiency and implementation of the state's Armed
and Prohibited Persons System Program, in which law
enforcement agencies work to proactively disarm
prohibited individuals before they harm themselves or
others.
Finally, SB 894 would alert law enforcement to the
existence of a stolen gun in their jurisdictions and
facilitate the return of stolen firearms to their
rightful owners. The recovery of stolen guns protects
communities and reduces gun violence.
ARGUMENTS IN OPPOSITION:The National Rifle Association of
America states:
SB 894 would require a victim of a crime to report to
local Law Enforcement the theft of a firearm within an
arbitrary time requirement of 5 days and the recovery
of the firearm within 48 hours.
This bill would place firearms owners in jeopardy of
prosecution for becoming a victim of a crime by placing
criminal liability on the firearm's owner regardless of
whether they knew their firearm was stolen, if law
enforcement thinks they "should have known" it was
stolen.
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Firearm owners voluntarily and regularly report stolen
firearms, but the criminal penalties of SB 894 forces
crime victims to decline to cooperate with police if a
stolen firearm is recovered. A firearms owner who was
not aware of the legal requirement to report the loss
or theft of a firearm and who is contacted by police
investigating a crime faces possible criminal
prosecution for failing to report that the firearm was
stolen or missing. Such an owner with need to hire a
lawyer, who will advise them to remain silent while
immunity is negotiated, rather than quickly supplying
police the information they need to properly and
promptly investigate the crime, which may be time
sensitive.
In 2012 and 2013, similar legislation was passed by the
legislature and was vetoed each time by Governor Brown.
For the foregoing reasons, the National Rifle
Association strongly urges your opposition to SB 894.
Prepared by:Molly Lao / PUB. S. / , Jessica Devencenzi / PUB.
S. /
5/18/16 16:27:49
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