BILL ANALYSIS SENATE COMMITTEE ON Public Safety Senator John Vasconcellos, Chair A 1999-2000 Regular Session B 2 0 2 AB 202 (Knox) As Amended April 6, 1999 Hearing date: June 8, 1999 Penal Code SH:br HANDGUN PURCHASES - LIMIT TO ONE PER INDIVIDUAL PER 30-DAY PERIOD HISTORY Source: Author Prior Legislation: SB 513 (Hayden) - provisions subsequently deleted (1997-98) AB 532 (Knox) - died on Assembly floor inactive file (1997-98) SB 1277 (Hart) - died on Senate floor (1993-94) Support: City of Oakland; Santa Clara County Board of Supervisors; League of California Cities; California Teachers Association; City of West Hollywood; Handgun Control; City of Los Angeles; Los Angeles Police Department; California Nurses Association; California Peace Officers' Association; California Police Chiefs' Association; ACLU; Legal Community Against Violence; Los Angeles County District Attorney's Office; Attorney General's Office; California Church IMPACT; California Child, Youth and Family (More) AB 202 (Knox) Page 2 Coalition; Violence Prevention Coalition of Greater Los Angeles; Trauma Foundation; Orange County Citizens for the Prevention of Gun Violence; California District, American Academy of Pediatrics; Mayor, City of Hayward; Gray Panthers of Northern California; City of Alameda; Women Against Gun Violence; Physicians for a Violence-free Society; individual letters Opposition: California Shooting Sports Association; California Rifle and Pistol Association; National Rifle Association; Gun Owners of Californian; Peace Officers Research Association of California; individual letters Assembly Floor Vote: Ayes 42 - Noes 30 KEY ISSUE SHOULD HANDGUN PURCHASES FROM LICENSED DEALERS IN CALIFORNIA BE LIMITED TO NO MORE THAN ONE PER PERSON PER MONTH, AS SPECIFIED? PURPOSE The purpose of this bill is to generally limit purchases of handguns from licensed firearms dealers in California to no more than one per person per month, as specified. Existing law governs the sale and purchase of firearms in California. Various restrictions are placed on the purchase of firearms, including a pistol, revolver, or firearm capable of being concealed upon the person, such as a background check, a waiting period, and generally the presentation of a basic firearm safety certificate. Transactions between private parties are subject to those restrictions as well and must be made through a licensed dealer or a law enforcement agency in smaller counties. (More) AB 202 (Knox) Page 3 Persons in prohibited categories may not purchase or possess firearms at all. (Penal Code sections 12070 - 12086) This bill prohibits any person from applying to purchase more than one concealable firearm from a licensed firearms dealer within a 30-day period and provides that no delivery shall be made to any person who has made an application to purchase more than one concealable firearm within 30 days, as follows: 1) Provides that no person shall make an application to purchase more than one pistol, revolver or other firearm capable of being concealed on the person from a licensed firearms dealer within any 30-day period. Exempts private party transactions (which must be made through a licensed firearms dealer or a sheriff's office in smaller counties); law enforcement; entertainment/theatrical companies; licensed collectors; and the exchange, replacement or return of a concealable firearm under specified conditions. 2) Provides the following penalties for making an application for more than one concealable firearm in any 30-day period: a) A first violation is an infraction punishable by a fine of $50; b) A second violation is an infraction punishable by a fine of $100; and, c) A third or subsequent violation is a misdemeanor (punishable in the county jail up to six months, or by a fine not greater than $1,000, or both, pursuant to Penal Code section 19). 3) Provides that each application to purchase a concealable firearm in violation of these provisions shall be deemed a separate offense. (More) AB 202 (Knox) Page 4 4) Prohibits delivery of such firearms by a licensed dealer to any person who has made an application to purchase more than one pistol, revolver, or other firearm capable of being concealed on the person within any 30-day period when the dealer is notified by the Department of Justice that a person has made more than one application to purchase such firearms within that time period (punishable as a misdemeanor/felony). 5) Makes related changes and additions to law, including a requirement that licensed firearms dealers must post a notice about the provisions of this bill. COMMENTS 1. Need for This Bill According to the author: There is no limit on the number of handguns that may be purchased from a dealer. This makes it easy for straw purchasers to acquire guns for another person or for street dealers to acquire guns legitimately. Handguns make up an overwhelming share of crime guns and a significant number are traceable to dealer transactions. AB 202 will curtail the illegal gun market, disarm criminals, and save lives by preventing multiple purchases of handguns through legitimate channels. Preventing multiple purchases takes the profit out of black market sales and puts gun traffickers and straw purchasers out of business. 2. Existing Law Pertaining to Firearms Purchases The sale, loan or transfer of a firearm must generally be conducted by or through a state licensed firearms dealer or through a local sheriff's department in counties of less than 200,000 persons. As part of this process, the 10-day (More) AB 202 (Knox) Page 5 waiting period/background check/handgun safety certificate are required prior to delivery of the firearm. In addition, handguns are centrally registered with DOJ as part of this process. A violation of these provisions as to handguns is an alternate felony/misdemeanor punishable by up to one year in the county jail or by imprisonment in the state prison punishable by 16 months, two or three years. Bulk purchase limits are aimed at so-called "straw transactions". A straw transaction usually involves "A" buying the gun for "B" because "B" may not legally buy the gun. These types of transactions may occur in various circumstances. Typically, they occur because the true purchaser is under age 21, has a specified prior conviction, has a mental disorder, or is not a resident. Straw transactions violate state law. Straw transactions also violate federal law. It is reported that people travel to a state with weaker gun laws, acquire guns in that state, and then transport them back into their state of residency. The federal Gun Control Act is designed to, among other provisions, require residents of a state to acquire firearms in their own state of residence. It does so by two means. First, a person cannot acquire a firearm in one state and then personally transport it into his/her own state of residency. He or she cannot receive the gun unless the gun is being processed through a federal firearms dealer in that state, who must follow state law on gun deliveries. In addition, a person who is not a federal firearms licensee cannot deliver a firearm to a resident of another state who is not federally licensed. The only way that such a transaction can occur is if the transaction is brokered through a federal firearms licensee in the (More) AB 202 (Knox) Page 6 recipient's state of residence. The 1994 federal crime bill made it an enhanced criminal offense for an individual to go into another state to acquire firearms and then return to his or her own state and sell those firearms. (See 18 USC 923(m).) 3. Assumptions about Limits on Purchases of Handguns The State of Virginia enacted a "one-handgun-a-month" law in 1993 (before the Federal Brady Bill, which required at least a five day waiting period plus a background check for states without such requirements). That state had weak restrictions on handgun sales and it has been stated that gun traffickers from New York City routinely traveled to Virginia to purchase quantities of weapons to take back for illegal sale in other states. Purchases of more than one handgun per 30-day period in Virginia is allowed upon completion of an "enhanced" background check when the purchase is for lawful business or personal use, for purposes of collectors, bulk sales and purchases from estates, to replace a lost or stolen weapon, and similar situations. Supporters of limits on purchases of handguns assume that the Virginia limits and the limits in this bill would only affect a very small proportion of legitimate handgun purchasers. A family of two adults could still purchase 24 handguns a year under the provisions of both this bill and the Virginia law. 4. Multiple Handgun Purchases in California Information provided by the Department of Justice indicates that in 1998, there were 141,823 lawful handgun purchases in California which involved one transferee and one handgun in a single calendar month. There were 12,989 transactions involving one tranferee who obtained two handguns in single calendar month; 2,282 involved three handguns in a single month transferred to the same individual; and 91 transfers (More) AB 202 (Knox) Page 7 which involved one transferee and more than 10 handguns in a single calendar month. Other multiple handgun transactions include one person in July of 1998 who obtained 41 to 80 handguns. Those figures include persons who would be exempted by this bill, such as a licensed collector, and transactions between private parties which were lawfully made through a licensed dealer or a sheriff's office. Previous information for the Department of Justice provided to this Committee indicated that in 1992 there were 2,784 persons who purchased five or more handguns and in 1993 there were 2,877 persons who purchased five or more handguns. Since this bill would allow twelve handgun purchases a year, it would appear that this bill would have affected a relatively small number of purchasers in any given year. It could, of course, inconvenience some of those purchasers if their desire is to purchase all twelve handguns at one time. The DOJ figures also indicate that in 1993, 245 individuals purchased 12 or more handguns. The number of persons who purchased 20 or more handguns dwindles rapidly with only 83 purchasing more than 20 handguns in 1993. However, one person did purchase 84 handguns that year. 5. Local Ordinances Limiting Handgun Purchases Some local ordinances limiting handgun purchases in local areas have been enacted in California. For example, background provided by the author includes a copy of Los Angeles Municipal Code Section 55.14 on which is handwritten "1/27/99 LA Council approved." That ordinance is very similar to AB 202 as currently amended, although the LA ordinance does contain an exemption for "collector's series or a bulk purchase from an estate" and the penalty dealer violations is assumed to be a misdemeanor. AB 202 (More) AB 202 (Knox) Page 8 does not contain that exemption and the penalty for dealer violations in the bill is an alternate misdemeanor/felony. Government Code section 53071 declares 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 . . ." which would indicate that AB 202 would preempt such local ordinances. The City of Los Angeles is in support of AB 202, presumably because a local ordinance would not stop city residents from purchasing handguns outside of the city or any other city which individually has adopted such a restriction. 6. Additional Issues Raised by This Bill As noted above, this bill does not contain an exemption for collector's series or bulk purchases from an estate. Individuals would be allowed to make those kinds of purchases from other individuals under this bill - through a dealer, as required - and those handguns could be sold either to a dealer, possibly an auction house, or to a dealer or other entity out of state. However, individuals would not be allowed to make such purchases from licensed firearms dealers. Both the Los Angeles ordinance cited above and SB 513 from last year provided an exception, as follows: The purchase of firearms in a collector's series or a bulk purchase from an estate sale. WOULD IT BE APPROPRIATE TO ADD SUCH AN EXCEPTION TO THIS BILL? [NOTE: AB 295 (Corbett) is going to be heard in this Committee at a future hearing; as passed by the Assembly, (More) AB 202 (Knox) Page 9 it would appear to generally require any bulk sales to be made only by a licensed dealer, which, if enacted, would change the impact of AB 202 on such transactions.] This bill makes an alternate misdemeanor/felony penalty applicable to a licensed firearms dealer who delivers a handgun to a purchaser after the Department of Justice has notified the dealer that the purchaser has made another application to purchase a handgun in violation of the 30-day period limit. Since a licensed firearms dealer may not be granted a license if the dealer has any prior felony conviction - as well as specified misdemeanor penalties - there is no common "three-strikes" issue raised by this bill. SB 513 from last session contained a misdemeanor penalty for such violations. [NOTE: The Legislative Counsel's Digest for AB 202 indicates the dealer penalty is a misdemeanor; that is partially correct since the actual penalty would be an alternate misdemeanor/felony.] 7. How Would This Bill Work if Enacted? The prohibition on handgun purchases in this bill is triggered by the "application" to purchase which presumably is manifest by the transmission of the background request to the Department of Justice by the licensed dealer. This bill does not limit transactions in a 30-day period by the actual delivery of a handgun to a purchaser. SB 29 (Peace), as amended on April 27, 1999, added language which would allow the Department of Justice to require licensed dealers to report to the department when a handgun is actually delivered to a purchaser. Current law -SB 63 (Peace)/Chapter 908, Statutes of 1998 - does require that dealers notify customers that federal law requires a subsequent background check if actual possession of a firearm is not taken within 30 days of the completion of the background check and does require a dealer to notify the department if a firearm is not delivered within that 30-day period. (More) AB 202 (Knox) Page 10 It is foreseeable that some purchasers change their minds and do not actually take possession of a handgun which they have initially agreed to purchase and which has resulted in an "application" being forwarded to the department. Whether or not the "application" alone, and not the actual transfer of the handgun, would preclude such a purchaser from "applying" to purchase another handgun with the 30-day limit is possibly unclear. It may be that the department would administratively devise a method to "void" an "application" and it may also be that such occurrences would be relatively rare. Whether or not a limit on purchases in a 30-day period would be "fairer" if it applied to "delivery" or taking possession is debatable. 8. Opposition to This Bill The National Rifle Association opposition to this bill includes: [AB 32] proposes that no person could "take title" to more than one handgun during a 30-day period. However, [AB 32] would also exempt a daunting list of people, agencies, firearms and specific types of transactions from that restriction. The underlying notions that drive AB 32 are: - The existing background check, registration and waiting period for handguns is ineffective and/or - Law enforcement makes little or no effort to investigate "straw" sales. Once again the rationale for a new gun control bill is the "failure of the old". The NRA goes on to ask why so many peace officers, including for example "a county water district security officer (830.34 Penal Code)" who collects guns should be able to purchase unlimited handguns while a concealed (More) AB 202 (Knox) Page 11 weapons permit holder or a retired peace officer could not. (More) AB 202 (Knox) Page 12 The NRA has also suggested that if "straw" sales are of concern, multiple purchases of handguns could involve a 20-day waiting period, a set time and date for transfer, and notification to local law enforcement about when the transfer is scheduled to take place. The presumption is that a purchaser buying more than one relatively expensive handgun is not as likely to be engaged in straw sales as a purchaser of relatively inexpensive handguns. The California Rifle and Pistol Association asserts that existing penalties are already sufficient to deter illegal sales in general. 9. Other Legislation which Amends Penal Code Section 12071 This bill amends Penal Code section 12071 by adding another notice which dealers must post. Other bills which also amend Penal Code section 12071 - and have moved to the second house during 1999, include AB 32 (Scott); AB 295 (Corbett); AB 988 (Lowenthal), AB 1142 (Soto); and SB 29 (Peace). SB 666 is the annual maintenance of the codes bill and it too amends Penal Code section 12071, however that bill contains a general "repealer" for any code section it amends and which is also amended by any other bill during the session year. Given the number of bills, which amend section 12071, there will need to be some creative work accomplished if several of those bills are sent to the Governor and if conflict issues are to be resolved. ***************