BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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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
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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.
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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.
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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
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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
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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
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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
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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,
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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.
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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
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weapons permit holder or a retired peace officer could not.
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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.
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