BILL ANALYSIS Ó SB 1407 Page A 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: SB 1407 Page B 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 SB 1407 Page C 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 SB 1407 Page D 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).) SB 1407 Page E 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 SB 1407 Page F 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 SB 1407 Page G 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 SB 1407 Page H 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 SB 1407 Page I 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 SB 1407 Page J 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 SB 1407 Page K 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 .) SB 1407 Page L 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 SB 1407 Page M 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. SB 1407 Page N "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 SB 1407 Page O 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 SB 1407 Page P 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 SB 1407 Page Q 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 SB 1407 Page R 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 SB 1407 Page S 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 SB 1407 Page T Gun Owners of California California Rifle and Pistol Association Analysis Prepared by:Gabriel Caswell / PUB. S. / (916) 319-3744