BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 106 (Scott)
As Amended on May 28, 1999
Hearing date: June 22, 1999
Penal Code
SH:br
FIREARMS -
SAFETY DEVICES
HISTORY
Source: Author
Prior Legislation: SB 1550 (1998) - vetoed
AB 1124 (1997) - vetoed
AB 577 (1995-96) - failed passage, Assembly
Public Safety Committee
SB 134 (1993) - vetoed
SB 861 (1989) - vetoed
Support: City and County of San Francisco; Berkeley City
Council; California District, American Academy of
Pediatrics; Attorney General's Office; California
Child, Youth & Family Coalition; California
Church IMPACT; California State PTA; California
Organization of Police and Sheriffs; California
Peace Officers' Association; California Police
Chiefs' Association; LA Episcopal Diocese;
Handgun Control; League of Women Voters of
California; Legal Community Against Violence;
City of Los Angeles; LA Police Department;
Lutheran Office of Public Policy; City of
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Oakland; Orange County Citizens for the
Prevention of Violence; Public Health Institute;
Santa Clara County Board of Supervisors;
Saf-T-Lok; Trauma Foundation; City Council, City
of West Hollywood; Women Aginst Gun Violence;
Jack Berman Advocacy Center; one individual
Opposition:California Rifle and Pistol Association; Gun
Owners of California; Peace Officers Research
Association of California; National Rifle
Association; several individuals
Assembly Floor Vote: Ayes 51 - Noes 19
KEY ISSUES
SHOULD A FIREARMS SAFETY ACT BE ADOPTED, AS FOLLOWS:
TO REQUIRE THAT AFTER JANUARY 1, 2002, ALL FIREARMS SOLD, TRANSFERRED, OR
MANUFACTURED IN THIS STATE BE ACCOMPANIED BY BOTH AN APPROVED FIREARMS
SAFETY DEVICE AND SPECIFIED "WARNING" MATERIALS?
TO EXEMPT FROM THE REQUIREMENT FOR FIREARMS SAFETY DEVICES PURCHASERS WHO
EITHER OWN A GUN SAFE, AS SPECIFIED, OR PURCHASERS WHO PURCHASE AN APPROVED
DEVICE FROM ANOTHER STORE WITHIN 30 DAYS OF THE TIME THE FIREARM IS PICKED
UP, AS SPECIFIED?
TO REQUIRE THAT THE ATTORNEY GENERAL/DEPARTMENT OF JUSTICE SET STANDARDS FOR
SUCH DEVICES AND CERTIFY LABORATORIES TO VERIFY COMPLIANCE OF SUCH DEVICES
WITH THE STANDARDS?
TO SET TIMELINES FOR THE IMPLEMENTATION OF THIS BILL?
TO REQUIRE ALL LEAD LAW ENFORCEMENT AGENCIES, EFFECTIVE JANUARY 1, 2000, TO
REPORT TO THE STATE DEPARTMENT OF HEALTH SERVICES ABOUT INCIDENTS INVOLVING
UNINTENTIONAL OR SELF-INFLICTED FIREARMS WOUNDS TO MINORS?
TO ENACT LEGISLATIVE FINDING ABOUT FIREARMS INJURIES TO CHILDREN?
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TO MAKE RELATED CHANGES IN LAW?
PURPOSE
The purpose of this bill is to require that after January 1,
2002, all firearms sold, transferred, or manufactured in
this state be accompanied by both an approved firearms
safety device and "warning" materials; to require that the
Attorney General/Department of Justice set standards for
such devices and certify laboratories to verify compliance
of such devices with the standards; to set timelines for the
implementation of this bill; to require all law enforcement
agencies, effective January 1, 2000, to report to the
Attorney General about incidents involving unintentional or
self-inflicted firearms wounds to minors; to enact
legislative finding about firearms injuries to children; and
to make related changes.
Existing law generally requires that any sale, loan, or
transfer of a firearm shall be made through a licensed
firearms dealer or, in counties of fewer than 200,000
persons, a sheriff's department that elects to provide such
services. (Penal Code 12071, 12072, 12082, 12084)
Existing law requires licensed dealers to follow specified
procedures for such transactions, including that the dealer
initiate a background check, obtain a basic firearms safety
certificate for handgun transactions, and offer to provide
the purchaser or transferee a copy of the Department of
Justice pamphlet on firearms laws. Violations generally
subject the dealer to forfeiture of the dealer's license or
a misdemeanor penalty (some felony penalties apply for
specified violations). (Penal Code 12071 and 12072)
Existing law "caps" the amount which the Department of
Justice may require a licensed dealer to charge a firearms
purchaser for specified items pertaining to the requisite
background check required by law. That amount is no more
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than $14 adjusted for California Consumer Price Index
changes since that "cap" was enacted in 1997. (Penal Code
12076(e))
Existing law requires that the basic firearms safety
certificate required for all handgun sales and transfers
does involve a course or test which addresses issues of
"safe use, handling, and storage" and childproofing methods
for handguns. (Penal Code 12803)
Existing law provides criminal penalties for the criminal
storage of a firearm in the first and second degrees, where
a minor sixteen years of age or younger obtains access to a
firearm, and requires licensed dealers to post warnings
about those penalties. (Penal Code 12035, 12036, and
12071(b)(7)(A) and (B))
Existing law states it is the intention of the Legislature
to occupy the whole field of
regulation of the registration or licensing of commercially
manufactured firearms as encompassed by the provisions of
the Penal Code, and such provisions shall be exclusive of
all local regulations, relating to registration or
licensing of commercially manufactured firearms, by any
political subdivision, as defined. (Government Code
53071)
This bill does the following:
1. Enacts legislative findings about the number of
unintentional shootings of minors.
2. Provides that effective January 1, 2002, all firearms
sold or transferred in California, by a licensed firearms
dealer, including private transfers through a dealer, and
all firearms manufactured in this state include or be
accompanied by a firearms safety device on the roster of
approved devices maintained by the Attorney General.
3. Exempts from the requirement for firearms safety
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devices purchasers who either (a) own a gun safe which
meets specified standards to be set by the Attorney General
and the purchaser presents specified proof of ownership of
the gun safe, or, (b) the purchaser purchases an approved
device from another store within 30 days of the time the
firearm is picked up, as specified.
4. Requires that all firearms sold or transferred in
California by a licensed firearms dealer, including private
transfers through a dealer, and all firearms manufactured
in this state bear a specific warning label - effective
January 1, 2002.
5. Requires the Attorney General to commence development
of regulations no later than January 1, 2000, to implement
a minimum safety standard for firearm safety devices to
reduce the risk of firearms-related injuries to children.
6. Requires that the Attorney General adopt and issue
regulations regarding a final safety standard for firearm
safety devices and report these standards to the
Legislature by January 1, 2001, and that these standards be
effective January 1, 2002.
7. Requires, effective January 1, 2001, that the
Department of Justice (DOJ) shall certify laboratories to
test firearm safety devices in order to verify compliance
with standards (allows fee to laboratory for certification,
including costs for developing and approving regulations
and standards for this Act.)
8. Requires certified laboratories, at a manufacturer's
or dealer's expense, to test firearms safety devices and
send results to the DOJ along with the firearms safety
device.
9. Requires that, on and after July 1, 2001, the DOJ
shall compile, publish, and maintain a roster of approved
safety devices that have met the DOJ's standards.
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10. Authorizes the Attorney General after January 1, 2002,
to order recall and replacement - or order that the items
be brought in compliance - of any firearm safety device or
gun safe that does not conform to the standards required by
the provisions of this bill, requires that the licensed
manufacturer bring the firearm or the firearm safety device
into conformity, or provide a replacement, as specified.
11. Requires that, effective January 1, 2000, each lead
law enforcement agency investigating an incident must
report to the State Department of Health Services any
incident in which a child eighteen years of age or younger
suffered an unintentional or self-inflicted gunshot wound
in which the child suffered serious injury or was treated
for an injury by a medical professional.
12. Provides that a violation of this bill - by dealers or
manufacturers - is punishable by a fine of $1,000; a second
violation is punishable by a fine of $1,000 and a 30-day
license suspension; and a third violation results in a
permanent loss of a license.
13. Provides an exemption from the requirements of this
bill for peace officers, as specified, and for commerce of
any "antique firearm" as defined in federal law.
14. Provides that nothing in this article shall preclude
local governments, local agencies, or state law enforcement
agencies from requiring their peace officers to store their
firearms in gun safes or attach firearms safety devices to
those firearms.
15. Provides that compliance with the requirements set
forth in this article shall not relieve any person from
liability to any other person as may be imposed pursuant to
common law, statutory law, or local ordinance.
16. Authorizes the Department of Justice to require a
firearm dealer to charge a firearm purchaser or transferee
a fee, not to exceed one dollar, for each firearm purchased
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with the fee used for the purpose of supporting various
department program costs related to firearms safety and
registration, as specified.
17. Provides that these new provisions of law shall be
known and cited as the "Aroner-Scott-Hayden Firearms Safety
Act of 1999."
18 Adds related changes to law.
COMMENTS
1. Need for This Bill
Background included by the author includes the following:
In the years 1987 to 1996, nearly 2,200 children in the
United States under the age of fifteen years died in
unintentional shootings. In 1996 alone, 138 children
were shot and killed unintentionally. Thus on average,
more than 11 children every month, or one child every
three days, were shot or killed unintentionally in
firearms-related incidents.
To prevent unintentional shootings, fifteen of the
nation's firearms manufacturers agreed to sell their
firearms with trigger locks in 1997. However, there are
no standards for these safety devices, and neither the
federal nor state government requires safety devices to
be sold with firearms. In addition, many manufacturers
(including all the California manufacturers) refused to
sign onto this agreement, and the sale of 'used' guns.
For these reasons, many firearms sold in California do
not come with an adequate safety device.
The Aroner/Scott/Hayden Firearms Safety Act would do a
great deal to prevent unintentional shootings by: (a)
creating standards for firearms safety devices, (b)
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requiring devices sold in California to meet these
standards, and (c) mandating that safety devices be
included with all firearms sold along with firearms.
2. Federal Law Referred to by This Bill
Section 12088.2(b) of this bill refers to test protocols
such as the poison prevention packaging standards in Title
16 (commencing with Part 1700) of the Code of Federal
Regulations, which include the following:
1700.15(b)(1) Child-resistant effectiveness of not less
than 85 percent without a
demonstration and not less than 80 percent after a
demonstration of the proper
means of opening such special packaging. In the case of
unit packaging,
child-resistant effectiveness of not less than 80
percent.
(2) Ease of adult opening. (i) Senior-adult test.
Except for products
specified in paragraph (b)(2)(ii) of this section,
special packaging shall have
a senior adult use effectiveness (SAUE) of not less than
90% for the
senior-adult panel test of @ 1700.20(a)(3).
(ii) Younger-adult test. (A) When applicable.
Products that must be in
aerosol form and products that require metal containers,
under the criteria
specified below, shall have an effectiveness of not less
than 90% for the
younger-adult test of @ 1700.20(a)(4). The senior-adult
panel test of @
1700.20(a)(3) does not apply to these products. For the
purposes of this
paragraph, metal containers are those that have both a
metal package and a
recloseable metal closure, and aerosol products are
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self-contained pressurized
products.
Section 1700.20 discusses "child-resistent design" and
"tamper-resistent" features and contains child test
standards and includes number of children to be used in a
test, gender and age distribution, and test procedures to
be used with children, such as description of statements
to be used with each child. The age groups discussed are
in age groups 42-44 months, 45-48 months, and 49-51
months.
Section 12088.3 of this bill requires warning labels to
comply with topography, layout, and color requirements
consistent with Part 1500.121 of Title 16 of the Code of
Federal Regulations, which includes lengthy requirements
for placement, type size, statements, contrast, and other
criteria.
Section 12088.8 of this bill exempts "antique" firearms and
uses a cross-reference to Title 18 U.S.C. Section 921(a)(16):
(16) The term "antique firearm" means --
(A) any firearm (including any firearm with a matchlock,
flintlock, percussion cap, or similar type of ignition
system) manufactured in or before 1898; and
(B) any replica of any firearm described in subparagraph
(A) if such replica --
(i) is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed
ammunition which is no longer manufactured in the United
States and which is not readily available in the ordinary
channels of commercial trade.
3. Related Federal Legislation
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There are currently several measures under discussion in
Congress which contain provisions requiring that "trigger
lock" devices be sold or provided with at least handguns
sold by licensed dealers (which would not apply to private
transfers in the majority of states which do not require
that private party transactions be made through dealers or
law enforcement, as California law does require).
For example, S. 254, contains a requirement that, except as
provided:
. . . it shall be unlawful for any licensed
manufacturer, licensed importer, or
licensed dealer to sell, deliver, or transfer any
handgun to any person other than any person licensed
under the provisions of this chapter, unless the
transferee is provided with a secure gun storage or
safety device, as described in section 921(a)(35) of
this chapter, for that handgun.
And H.R. 1726 contains the following amendment:
Section 921(a) of Title 18, United States Code, is
amended by adding at the end the following:* "(35)
the term 'secure gun storage or safety device' means-*
"(a) a device that, when installed on a firearm,
prevents the firearm from being operated without first
deactivating or removing the device;*
"(b) a device incorporated into the design of the
firearm that prevents the
operation of the firearm by anyone not having
authorized access to
the device; or*
"(c) a safe, gun safe, gun case, lock box, or other
device that is designed to be or can be used to store
a firearm and that can be unlocked only by means of a
key, a combination, or other similar means.".*
Because of the congressional rules and procedures, these
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cites to federal bills are only offered as an example of
the federal discussion; other bills, other requirements,
and other definitions also exist.
4. Opposition to This Bill
The NRA opposition to this bill includes the following
paragraphs and mentions three specific elements:
[This] bill would require the sale of a use firearm
safety device (with some exceptions) whenever a
firearm is sold. The purchaser would not be required
to use the "device" - only to buy it. The key problem
surrounding this debate has been the absence of
firearm safety education. Firearm safety devices
offer a false sense of security, if education in their
proper use is absent. Putting "The Club" on the
steering wheel of a car does not eliminate the need to
properly educate and train its teenage driver. So it
is with firearms and safety devices.
There are three elements in this bill that should be
bothersome even to its supporters.
What if no "safety device" that attaches to the
firearm is commercially produced? Will the firearm
purchaser be required to buy a safe? Senator Hayden
recognized such an eventuality in SB 1550 (1998).
His bill read "shall include or be accompanied by a
firearm use limitation device appropriate for that
firearm, if the firearm use limitation devices are
commercially available. Why is such language not in
AB 106?
AB 106 would allow the firearm purchaser to
provide his/her own approved "safety device" if it
had been purchased no more than 30 days prior and
the purchaser has the purchase receipt. As written
an "approved safety device" that was a gift or one
that was purchased 31 days prior to the sale would
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not qualify. If it's an approved safety device -
why does it matter when or how it was obtained?
Why aren't padlocks included as "approved
safety devices"? Padlocks (key or combination) are
the most cost effective safety devices. It's silly
to have DOJ study the appropriateness of the
padlock.
The California Rifle and Pistol Association opposition
includes a statement that if AB 106 is enacted, it ". . .
still would not deal with the real cause of the problem of
unauthorized users obtaining access to improperly stored
firearms: negligent human behavior by a relatively small
number of individuals." CRPA continues by mentioning that
existing laws regarding criminal storage violations should be
enforced without adding additional needless costs on firearms.
The CRPA also asserts that the new $1 fee authorized by this
bill is "an attempt by the DOJ to go around the $14 fee cap on
the Dealers' Record of Sale" currently in statute and that
"'registration' is listed as one of the purposes of the new
proposed additional fee. Registration is already provided for
in the $14 DROS fee cap."
IS THE TERM "REGISTRATION" USED IN THIS BILL MEANT TO REFER
ONLY TO THE DEVICES AND ITEMS CONSTITUTING ACTIVITIES RELATED
TO THE FIREARM SAFETY ELEMENTS IN THIS BILL? IS THE
AUTHORIZING LANGUAGE CLEAR ON THAT ISSUE?
5. Additional Questions about This Bill
No where in this bill does it indicate that the firearms
safety device shall actually be functional with the firearm
being transferred nor what will occur, or not, if there is
no approved firearms safety device available which will
function with a given firearm? It may be that the DOJ will
approve a safety device which is simply a solid metal cable
or wire which may be threaded through a barrel, chamber, or
loading area, but it is unclear whether or not such an item
would otherwise qualify as a firearms safety device to meet
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the requirements of this bill? It may also be that the
expectation is that since a gun safe is always an option,
that that will be the expected option for any person
transferee taking possession of a firearm which does not
"work" with any of the approved safety devices?
IS THIS BILL CLEAR ABOUT WHAT DEVICES SHALL BE TRANSFERRED
WITH EACH FIREARM?
This bill contains a number of references to children.
Although there is no definition of children in the bill,
the use throughout appears to be consistent with persons
who are minors. However, on page 7, lines 19 and 20, this
bill mentions a duty of the Attorney General to reduce
injuries "to children 18 years of age and younger."
Children or minors are generally defined as those "17 years
of age or younger." See, for example, Family Code section
65500: "A minor is an individual who is under 18 years of
age."
WOULD IT BE APPROPRIATE TO CHANGE THAT REFERENCE ON PAGE 7
TO "CHILDREN 17 YEARS OF AGE AND YOUNGER"?
This bill has an exemption when the purchaser has an
approved safety device purchased from another store within
30 days. Should that provision on page 7, lines 1 through
3, be amended as follows:
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(1) The purchaser or transferee purchases an approved
safety device from another store no more than 30 days
prior to the day the purchaser or transferee takes
possession of the firearm is picked up .
SHOULD THAT AMENDMENT BE ADOPTED?
6. Author's "Clean-Up" Amendments
On page 9, line 28, strike-out "by the manufacturer,
importer, or dealer"
On page 10, lines 26 through 33, make the following
changes:
12088.9. (a) The Department of Justice may require
each dealer to charge each firearm purchaser or
transferee a fee not to exceed one dollar ($1) for
each firearm transaction purchased or transferred .
The fee shall be for the purpose of supporting
department program costs related to providing for safe
firearms and related registration activities,
including the establishment, maintenance, and
upgrading of related data base systems and public
rosters.
SHOULD THOSE AUTHOR'S AMENDMENTS BE ADOPTED?
7. Related Legislation
SB 130 (Hayden), which passed this committee in
substantially the same form as this bill (except for the $1
fee), is currently in the Assembly Committee on Public
Safety.
8. Previous Related Legislation
AB 106 and SB 130 are longer and more complex than previous
efforts to require that firearms be sold in California with
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"trigger locks" or similar devices because the bills this
year would create a standards and certification requirement
involving the Attorney General/Department of Justice and
independent laboratories. It has been suggested in
previous years that simply requiring that firearms be
sold/transferred (with handguns, long guns, or both, and
whether peace officers are exempted or not) with "trigger
locks" or similar devices would in some cases result in the
use of a shoddy or ineffective device simply to comply with
the technical requirements of the law. Whether or not that
would be the case, and how extensively it might occur, has
not been proven. It may also not be clear how difficult it
would be to establish the standards called for by this
year's bills, how many firearms safety device manufacturers
would seek certification in California, and how costly that
process would actually be to those manufacturers and the
Attorney General/Department of Justice.
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