BILL ANALYSIS SENATE COMMITTEE ON Public Safety Senator John Vasconcellos, Chair A 1999-2000 Regular Session B 1 0 6 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 (More) AB 106 (Scott) Page 2 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? (More) AB 106 (Scott) Page 3 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 (More) AB 106 (Scott) Page 4 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 (More) AB 106 (Scott) Page 5 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. (More) AB 106 (Scott) Page 6 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 (More) AB 106 (Scott) Page 7 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) (More) AB 106 (Scott) Page 8 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 (More) AB 106 (Scott) Page 9 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 (More) AB 106 (Scott) Page 10 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 (More) AB 106 (Scott) Page 11 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 (More) AB 106 (Scott) Page 12 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 (More) AB 106 (Scott) Page 13 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: (More) AB 106 (Scott) Page 14 (1) The purchaser or transferee purchases an approved safety devicefrom another storeno more than 30 days prior to the day the purchaser or transferee takes possession of the firearmis 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 transactionpurchased 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 AB 106 (Scott) Page 15 "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. ***************