BILL ANALYSIS Ó
SB 1407
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Date of Hearing: June 14, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1407 (De León) - As Amended May 11, 2016
SUMMARY: Requires that any person who manufactures or assembles
a firearm to apply to the Department of Justice (DOJ) for a
serial number, as specified. Specifically, this bill:
1)Defines "manufacturing" or "assembling" a firearm as "to
fabricate or construct a firearm, or to fit together the
component parts of a firearm to construct a firearm."
2)Requires, commencing July 1, 2018, requires any person who
manufactures or assembles a firearm to:
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a) Apply to the Department of Justice for a unique serial
number or other mark of identification, as specified;
b) Within ten days of manufacturing or assembling the
firearm, to engrave or permanently affix the unique serial
number or other mark to that firearm, as specified; and,
c) Notify the DOJ once the serial number or other mark is
affixed to the firearm, as specified.
3)States that by January 1, 2019, any person who, as of July 1,
2018, owns a firearm that does not bear a serial number, as
specified, must:
a) Apply to the Department of Justice for a unique serial
number or other mark of identification, as specified;
b) Within ten days of manufacturing or assembling the
firearm, to engrave or permanently affix the unique serial
number or other mark to that firearm, as specified; and,
c) Notify the DOJ once the serial number or other mark is
affixed to the firearm, as specified.
4)Specifies, prior to the DOJ providing the person with a unique
serial number or other mark, the person must:
a) Present proof the applicant is not prohibited by state
or federal law;
b) Present proof of age and identity. The applicant must
be 18 years of age or older to obtain a unique serial
number or mark of identification for a firearm that is not
a handgun, and must be 21 years of age or older to obtain a
unique serial number or mark of identification for a
handgun;
c) Provide a description of the firearm that he or she owns
or intends to manufacture or assemble, in a manner
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prescribed by the department; and
d) Have a valid firearm safety certificate or handgun
safety certificate.
5)Prohibits the sale or transfer of ownership of a firearm
manufactured or assembled pursuant to the provisions of this
legislation, but allows for the transfer, surrender, or sale
of a firearm to a law enforcement agency, as specified.
6)Exempts the following from the provisions of this legislation:
a) A firearm that has a serial number assigned, as
specified;
b) A firearm made or assembled prior to December 16, 1968,
that is not a handgun;
c) A firearm which was entered into the centralized
registry, as specified, prior to July 1, 2018, as being
owned by a specific individual or entity if that firearm
has assigned to it a distinguishing number or mark of
identification to that firearm by virtue of the department
accepting entry of that firearm into the centralized
registry; and
d) An antique firearm, as specified.
7)Provides if the firearm is a handgun, a violation of this
section is punishable by imprisonment in a county jail not to
exceed one year, or by a fine not to exceed one thousand
dollars ($1,000), or by both that fine and imprisonment. For
all other firearms, a violation of this section is punishable
by imprisonment in a county jail not to exceed six months, or
by a fine not to exceed one thousand dollars ($1,000), or by
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both that fine and imprisonment. Each firearm found to be in
violation of this section constitutes a distinct and separate
offense. This section does not preclude prosecution under any
other law providing for a greater penalty.
8)Requires the DOJ to maintain electronic records of all persons
that receive a unique serial number or other mark, and notify
the DOJ that it has been engraved or affixed to the firearm.
9)Requires DOJ to maintain and make available upon request
information concerning both of the following:
a) The number of serial numbers issued, as specified; and
b) The number of arrests for violations of Section 29180.
10)Allows the DOJ to charge a fee for applications to administer
the costs of electronic tracking and would authorize the DOJ
to use the Dealer Record of Sales (DROS) account to cover
actual costs associated with this legislation.
EXISTING FEDERAL LAW:
1)Requires licensed importers and licensed manufacturers to
identify each firearm imported or manufactured by using the
serial number engraved or cast on the receiver or frame of the
weapon, in such manner as prescribed by the Attorney General.
(18 U.S.C., § 923, subd. (i).)
2)Makes it illegal to manufacture, import, sell, ship, deliver,
possess, transfer, or receive any firearm that is not as
detectable by walk-through metal detection as a security
exemplar containing 3.7 oz of steel, or any firearm with major
components that do not generate an accurate image before
standard airport imaging technology. (18 U.S.C., § 922, subd.
(p).)
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EXISTING STATE LAW:
1)Prohibits a person, firm, or corporation licensed to
manufacture firearms pursuant to Chapter 44 (commencing with
Section 921) of Title 18 of the United States Code from
manufacturing firearms in California, unless the person, firm
or corporation is also licensed under California law. This
prohibition does not apply to a person licensed under federal
law, who manufactures less than 100 firearms a calendar year.
(Pen. Code, § 29010.)
2)Makes it illegal to change, alter, remove, or obliterate the
name of the maker, model, manufacturer's number, or other mark
of identification on any pistol, revolver, or any other
firearm, without first having secured written permission from
the Department of Justice (DOJ) to make that change,
alteration, or removal. (Pen. Code, § 23900.)
3)Allows DOJ, upon request, to assign a distinguishing number or
mark of identification to any firearm whenever the firearm
lacks a manufacturer's number or other mark of identification,
or whenever the manufacturer's number or other mark of
identification, or a distinguishing number or mark assigned by
the department has been destroyed or obliterated. (Pen. Code,
§ 23910.)
4)Makes it misdemeanor, with limited enumerated exceptions, for
any person to buy, receive, dispose of, sell, offer to sell or
have possession any pistol, revolver, or other firearm that
has had the name of the maker or model, or the manufacturer's
number or other mark of identification changed, altered,
removed, or obliterated. (Pen. Code, §§ 23920 & 23925.)
5)Requires a person be at least 18 years of age to purchase a
rifle or shotgun. To purchase a handgun, a person must be at
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least 21 years of age. As part of the Dealer Record of Sales
(DROS) process, the purchaser must present "clear evidence of
identity and age" which is defined as a valid, non-expired
California Driver's License or Identification Card issued by
the Department of Motor Vehicles. (Pen. Code, §§ 27510 &
16400.)
6)Requires purchasers to present a handgun safety certificate
prior to the submission of DROS information for a handgun or
provide the dealer with proof of exemption pursuant to
California Penal Code Section 31700. Beginning on January 1,
2015, this requirement was extended to all firearms. (Pen.
Code, § 26840.)
7)Requires that firearms dealers obtain certain identifying
information from firearms purchasers and forward that
information, via electronic transfer to DOJ to perform a
background check on the purchaser to determine whether he or
she is prohibited from possessing a firearm. (Pen. Code, §§
28160-28220.)
8)Requires firearms to be centrally registered at the 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. (Pen. Code, § 11106,
subds. (a) & (c).)
9)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, in order to determine if the purchaser is
prohibited from purchasing a firearm because of a prior felony
conviction or because they had previously purchased a handgun
within the last 30 days, or because they had received
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inpatient treatment for a mental health disorder, as
specified. (Pen. Code, § 28220.)
10)Allows DOJ to require the dealer to charge each firearm
purchaser a fee not to exceed $14, except that the fee may be
increased at a rate not to exceed any increase in the
California Consumer Price Index as compiled and reported by
the Department of Industrial Relations. This fee, known as
the DROS fee, shall be no more than is necessary to fund
specific codified costs. (Pen. Code, § 28225.)
11)Permits DOJ to charge a fee sufficient to reimburse it for
each of the following but not to exceed fourteen dollars
($14), except that the fee may be increased at a rate not to
exceed any increase in the California Consumer Price Index as
compiled and reported by the Department of Industrial
Relations: (Pen. Code, § 28230.)
a) For the actual costs associated with the preparation,
sale, processing, and filing of specified forms or reports
required or utilized;
b) For the actual processing costs associated with the
submission of a Dealers' Record of Sale to the DOJ;
c) For the actual costs associated with the electronic or
telephonic transfer of information; and
d) Any costs incurred by DOJ to implement this section
shall be reimbursed from fees collected and charged
pursuant to this section.
12)Requires that the Attorney General establish and maintain an
online database to be known as the Prohibited Armed Persons
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File. 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, 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. (Pen. Code, § 30000.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Under the Gun
Control Act of 1968, it is illegal for an unlicensed person to
make a firearm for sale or distribution. However, a loophole
in the law allows for the construction of firearms by
unlicensed individuals so long as the firearms are made for
personal use and are not sold or transferred.
"Unlike all other firearms, homemade guns have no record of
existence. These homemade guns are assembled through the
purchase of unfinished receivers, or 80 percent completed
lower receivers. Unfinished receivers-the engine of a
firearm-are not technically considered firearms because of
their incomplete stage and thus do not require a serial number
or background check for purchase. With an unfinished receiver,
a firearm parts kit, and basic drilling machinery, an
individual can assemble a fully functional firearm without
being subject to the requirements placed on all other firearms
transactions.
"This loophole poses an increasingly daunting challenge for law
enforcement. As reported in the Sac Bee (December 19, 2015)
"California black market surges for 'ghost guns'," there is an
emerging black market for these homemade guns, or ghost guns,
because they allow criminals and other dangerous individuals
to circumvent background checks and other California firearms
laws, including the state's assault weapons ban. Because these
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firearms are assembled privately and do not produce a sales
record, no one knows they exist until a crime is committed.
Federal and state officials have seized hundreds of these
weapons in a series of ongoing undercover operations.
"Another telling example is the June 2013 shooting in Santa
Monica by John Zawahri, who killed five people using a gun
assembled at home. Although Zawahri was denied a firearms
purchase by the Department of Justice because of mental
illness concerns, he was able to skirt the law by purchasing a
lower receiver online, which he modified to craft the AR-15
style rifle that was used in the shooting. Similarly, just law
year, ghost guns were used in a murder-suicide in Walnut
Creek.
"The development of technologies that make the manufacture of
weapons accessible to the general public raises questions
about whether homemade guns are being made by gang members,
felons, and other prohibited individuals. Without specific
measures that address the dangers posed by these self-made
guns, criminals will exploit the technologies at the expense
of public safety-as is proving to be the case throughout the
state."
2)Applying Serial Numbers to "Ghost Guns": SB 1407 would
require any person who manufactures or assembles a firearm to
first obtain a serial number from the DOJ and demonstrate that
he or she is not prohibited from owning firearms.
Specifically, any person who manufactures or assembles a
firearm will be required to:
a) Obtain a unique serial number or other mark from the
Department of Justice prior to making or assembling a
firearm;
b) Within ten days of making or assembling to engrave or
permanently affix the unique serial number or other mark to
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the firearm; and,
c) Notify the Department of Justice once the serial number
or other mark is affixed to the firearm.
Prior to the DOJ providing the person with a unique serial
number or other mark, the person must:
a) Present proof the applicant is not prohibited by state
or federal law;
b) Present proof of age and identity. The applicant must
be 18 years of age or older to obtain a unique serial
number or mark of identification for a firearm that is not
a handgun, and must be 21 years of age or older to obtain a
unique serial number or mark of identification for a
handgun;
c) Provide a description of the firearm that he or she owns
or intends to manufacture or assemble, in a manner
prescribed by the department; and
d) Have a valid firearm safety certificate or handgun
safety certificate.
There are no provisions in existing law that prevent a person
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from buying an 80% lower receiver<1> and then making it into a
fully functional firearm. Because 80% lower receivers are not
considered firearms, a person purchasing them does not have to
go through a federal firearms dealer, and does not have to
undergo a background check. According to the author, SB 1407
will help to close this loophole.
3)Lower Receivers: There are no provisions in existing law that
prevents a person from buying an 80% lower receiver and then
making it into a fully functional firearm. According to
Tactical Machining, "An 80% Receiver is a partially completed
piece of material that requires special tooling and skills to
be completed and considered a firearm."
( http://www.tacticalmachining.com/80-lower-receiver.html .)
Because 80% lower receivers are not considered firearms, a
person purchasing them does not have to go through a federal
firearms dealer, and does not have to undergo a background
check. Additionally, according to the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) "firearms that began as
receiver blanks have been recovered after shooting incidents,
from gang members and from prohibited people after they have
been used to commit crimes."
( https://www.atf.gov/firearms/qa/have-firearms-made-unmarked-re
ceiver-blanks-been-recovered-after-being-used-crime. ) "ATF
successfully traces crime guns to the first retail purchaser
in most instances. ATF starts with the manufacturer and goes
through the entire chain of distribution to find who first
bought the firearm from a licensed dealer. Because receiver
blanks do not have markings or serial numbers, when firearms
made from such receiver blanks are found at a crime scene, it
---------------------------
<1>
According to Tactical Machining, "An 80% Receiver is a
partially completed piece of material that requires special
tooling and skills to be completed and considered a firearm."
( http://www.tacticalmachining.com/80-lower-receiver.html .)
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is usually not possible to trace the firearm or determine its
history, which hinders crime gun investigations jeopardizing
public safety."
( https://www.atf.gov/firearms/qa/can-functioning-firearms-made-
receiver-blanks-be-traced. )
4)Santa Monica Shooting: According to a July 15, 2013, briefing
prepared by the Minority Staff of the Committee on Energy and
Commerce, United States House of Representatives:
On June 7, 2013, John Zawahri, 23, killed five people
and injured several more during a shooting rampage
that lasted approximately 13 minutes in Santa Monica,
California. He first shot and killed his father,
Samir Zawahri, and brother, Christopher, at their
home. He then pulled over and carjacked Laurie Sisk,
forcing her to drive at gunpoint to Santa Monica
College. Zawahri shot at numerous cars, pedestrians,
and a bus en route, killing the college's
groundskeeper, Carlos Franco, and his daughter,
Marcela. Upon arriving at the campus, he then fatally
shot another woman, Margarita Gomez. He then entered
the school library, where he attempted to kill several
library patrons who were hiding in a safe room.
Police, who had been alerted to the shooting and to
Zawahri's location by numerous 911 calls, exchanged
gunfire in the library with the shooter and pronounced
him dead at the scene. According to authorities,
Zawahri fired approximately 100 rounds in total.
Zawahri had a history of mental illness. In 2006, a
teacher at his high school discovered Zawahri
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researching assault weapons online. School officials
contacted the police and he was subsequently admitted
to the psychiatric ward at the University of
California, Los Angeles Medical Center. Zawahri
attempted to buy a weapon in 2011, but a background
check conducted by the California Department of
Justice found him ineligible and denied the purchase.
The reasons for this denial have not been publicly
released.
Zawahri used a modified AR-15 rifle in the shooting
and also carried a .44-caliber handgun. He possessed
more than 1,300 rounds of ammunition. The AR-15 rifle
is the same type of gun used in the mass shootings
that occurred in Aurora, Colorado, and Newtown,
Connecticut. The AR-15 firearm held 30 rounds.
California state law bans the sale of AR-15 rifles
with a magazine capacity greater than ten rounds.
Authorities believe that Zawahri assembled his AR-15
rifle using parts he bought in pieces from a number of
different sources, including an 80% completed lower
receiver. Police found a drill press at Zawahri's
home, a tool that can make holes in the lower receiver
to complete the weapon. (Citations Omitted.)
5)Governor's Veto Message of 2013's SB 808 (De Leon): SB 808
required serial numbers on lower receivers. The governor
vetoed the bill with the following message:
"I am returning Senate Bill 808 without my signature.
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"SB 808 would require individuals who build guns at home to
first obtain a serial number and register the weapon with
the Department of Justice.
"I appreciate the author's concerns about gun violence, but
I can't see how adding a serial number to a homemade gun
would significantly advance public safety."
6)Argument in Support: According to the California Police
Chiefs Association, "the California Police Chiefs Association
supports Senate Bill 1407, which would require a person who
manufactures or assembles a firearm, or owns a firearm that
does not bear a serial number, to apply to the Department of
Justice for a unique serial number or other identifying mark.
"There are no provisions in existing law that prevent a person
from manufacturing or buying an 80% lover receivers - the
basis of a firearm - and then making it into a fully
functional firearm. Furthermore, the accessibility of these
parts have become increasingly easier to acquire with the
invention of 3D printers. Because 80% lower receivers are not
considered firearms, a person purchasing them does not have to
go through a federal firearms dealer, and does not have to
undergo a background check. This has created a loophole that
allows prohibited felons, gang members, and mentally ill
individuals to obtain firearms against the intent of our laws.
"California has some of the strictest regulations in the
nation. The laws are meant to keep our neighborhoods safer
and aid law enforcement's fight against gun violence, while
still protecting the rights of responsible gun owners.
Essential to each is the ability to track and verify the
ownership of each firearm in the state. It is detrimental to
public safety and law enforcement's ability to solve crimes if
there are innumerable firearms in circulation without
serialization or registration. If we do not begin to address
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this problem now, the number of shootings involving
untraceable firearms will become a much heavier burden on law
enforcement, and the victims of gun violence, in the future."
7)Argument in Opposition: According to the Firearms Policy
Coalition, "On behalf of Firearms Policy Coalition, I
respectfully submit our opposition to Senate Bill 1407 (de
Leon), a measure that seeks to retroactively assign a serial
number to every firearm in existence dating back at least 48
years for long guns and 50 years for handguns, take the
property of those who bother to actually comply and
criminalize and incarcerate residents and visitors for mere
possession of any firearm or family heirloom that does not
have a serial number, even though firearms manufactured prior
to 1968 were not required to be serialized.
"SB 1407 will cost millions to implement and enforce, even
with the predictably modest public compliance. It is laughable
to think that those with criminal intent will comply-- leaving
only those law abiding residents who were informed of the new
law and how to comply with it as potential test cases.
"SB 1407 requires gun owners to apply for, and affix, a
Department of Justice (DOJ) -provided serial number to ALL
un-serialized legally acquired firearms dating back around 50
years.
"Oddly, if anyone were to comply with the provisions of this
measure and apply for a serial number, they would then lose
all interest in the property as SB 1407 prohibits the sale or
transfer of those weapons that were serialized according to
the bill. This means that mere compliance is a loss of
property and inheritance. The measure does not seem to
contemplate community property. After the death of a firearm
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owner who actually complied, will the DOJ be sending in teams
of police to confiscate the over-night contraband?
"In order to implement this measure, the California Department
of Justice (DOJ) will have to create all new regulations,
forms, databases and policies. DOJ will have to hire, shift or
contract with dozens of full time staffers in order to take on
this ambitious task. Given the DOJ's track record with other
programs, databases and inefficient use of special and general
funds?we are not optimistic.
"There are hundreds of thousands, and perhaps even millions -
of personally assembled and un-serialized firearms in
California today. SB 1407 makes no provision for how the
Department will communicate with these lawful gun owners and
inform them of their new obligations and criminal liabilities
under your proposed law. Even if the Department could create
and implement such a massive outreach program, SB 1407 does
not provide any funding to pay for it. That defect is a
terminal one.
"Next, SB 1407 fails to address the bill's effects on the
Department of Justice itself. How will the Department pay for
handling such a massive influx of applications and maintain
its other mandated firearms-related services without causing
unconstitutional delays? We note here that DOJ already has a
number of state and federal lawsuits against it because of its
continuing failure to respect law-abiding Californians' Second
Amendment civil rights.
"What happens to the thousands of law-abiding gun owners that
will doubtlessly end up waiting for the Department to wade
through the mile-high stack of new background checks and
serial number applications? Will they be excused from the
enforcement of SB 1407's penalties, or will these good people
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end up further burdening our court system and adding to our
already seriously overcrowded prisons?
"SB 1407 forces law enforcement officers into the job of
identifying a firearm's age, which, in many cases, is
impossible. Firearms that have been in common use for lawful
purposes for decades or centuries, such as model 1911 handguns
and AR- 15 semi-automatic rifles, made prior to the federal
serialization requirement in 1968 are virtually, if not
outright, the same as those that will be made after SB 1407
would take effect.
"How will law enforcement determine the difference? Put
simply, without destructive metallurgical tests on every gun
they encounter, there is no way to know. (Even then, the
certainty is not absolute.) SB 1407 will place
well-intentioned peace officers into the compromising position
of either choosing to not enforce SB 1407 or seizing personal
property and/or arresting people with no assurances as to the
legal authority for those actions. This bill creates massive
cost exposure for the state and local governments through its
certain outcome of civil rights lawsuits on claims of Second,
Fourth, and Fifth Amendment violations.
"SB 1407 fails to account for the educational costs
necessitated for law enforcement education to inform officers
which guns fall into the exempted class at any given time.
Additionally, any firearm manufactured in 1968 will be
considered an exempted curio or relic as a matter of law, just
two years after the proposed implementation of SB 1407. This
moving target will continue in perpetuity, creating an
ever-growing list of exempted firearms for which law
enforcement officers will need to be educated.
"Finally, many firearms assembled at home hold substantial
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monetary value for the sheer fact that they are rare or novel
replicas of a historically significant gun. Forced destruction
of property will undoubtedly lead to thousands of takings and
damage claims against the state.
"SB 1407 adds enormous direct and social costs not limited to
the fiscal and policy issues noted above. The bill also
presents tangible constitutional conflicts and sets local law
enforcement up for expensive litigation and damage awards.
"For these reasons we respectfully ask for you to reject this
measure."
8)Related Legislation: AB 1673 (Gipson), expands the definition
of "firearm" to include the frame or receiver of the weapon or
a frame or receiver "blank, casting or machined body" that is
designed and clearly identifiable as a component of a
functional weapon, from which is expelled through a barrel, a
projectile by the force of an explosion or other form of
combustion. AB 1673 is awaiting a hearing in Senate Public
Safety.
9)Prior Legislation:
a) SB 808 (De León), of the 2013-2014 Legislative Session,
required a person, commencing January 1, 2016, to apply to
and obtain from the Department of Justice (DOJ) a unique
serial number or other mark of identification prior to
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manufacturing or assembling a firearm. AB 808 was vetoed
by the governor.
b) AB 809 (Feuer), Statutes of 2011, Chapter 745, conformed
requirements for reporting and record retention involving
the transfer of long guns with those of handguns.
c) AB 302 (Beall), Statutes of 2010, Chapter 344, required
that by July 1, 2012, specified mental health facilities
shall report to the DOJ exclusively by electronic means
when a person is admitted to that facility either because
that person was found to be a danger to themselves or
others, or was certified for intensive treatment for a
mental disorder, as specified.
REGISTERED SUPPORT / OPPOSITION:
Support
California Academy of Family Physicians
California Chapters of the Brady Campaign
California Police Chiefs Association
Opposition
Firearms Policy Coalition
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Gun Owners of California
California Rifle and Pistol Association
Analysis Prepared by:Gabriel Caswell / PUB. S. / (916)
319-3744