BILL ANALYSIS
AB 1717
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Date of Hearing:February 29, 2000
Chief Counsel:Bruce E. Chan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
AB 1717 (Hertzberg) - As Amended: February 23, 2000
SUMMARY : Requires the Department of Justice (DOJ) to evaluate
ballistic identification systems. Authorizes the DOJ to require
manufacturers and importers to submit ballistic information
before being permitted to sell handguns in California.
Specifically, this bill :
1)Requires the DOJ to evaluate ballistic identification systems
(BIS), including any federal BIS.
2)Requires the DOJ to make a public, formal determination after
January 1, 2002 as to whether an adequate BIS exists for law
enforcement agencies in California to use in crime prevention.
3)Provides that one year from the date the DOJ makes public the
determination that an adequate BIS exists, every federally
licensed manufacturer or importer of pistols, revolvers, or
other firearms capable of being concealed upon the person,
shall submit ballistic information to the DOJ for all handguns
manufactured or imported, on or after the one year anniversary
of the date in which the determination is made public to the
DOJ.
4)Provides that commencing on a date determined by the DOJ, no
federally licensed manufacturer or importer of handguns shall
sell or otherwise transfer ownership of a pistol, revolver, or
other firearm capable of being concealed upon the person to a
person who is at that time residing in the state unless the
manufacturer or importer has complied with specified
requirements for submitting ballistics information.
5)Provides that one year from the date the DOJ makes public the
determination that an adequate BIS exists, no person or
company may import for sale any pistol, revolver, or other
firearm capable of being concealed upon the person, unless
prior to importation, satisfactory evidence that ballistic
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information as required by the Attorney General has been
submitted to the DOJ.
6)Provides that the DOJ may prescribe the format of the
ballistic information to be submitted by the manufacturer or
importer.
7)Exempts any antique firearm or curio or relic as defined by
federal regulations.
8)Provides that a violation of specified provisions is a
misdemeanor.
EXISTING LAW :
1)Specifies prohibitions and requirements with regard to the
circumstances under which a person licensed to sell firearms
may sell or transfer a firearm. (Penal Code Section 12071.)
2)Requires that a licensee offer to provide a specified
informational pamphlet to each purchaser or transferee of a
firearm or person being loaned a firearm. (Penal Code Section
12071.)
3)Establishes the crime of criminal storage of a firearm that
occurs when a person keeps a loaded firearm and knows or
reasonably should know that a child under the age of 14 is
likely to gain access to the firearm, and the child gains
access and causes death, injury, or exhibits the firearm as
specified. (Penal Code Section 12035.)
4)Provides that the DOJ must issue a certificate of eligibility
to an applicant if DOJ records indicate that the applicant is
not a person prohibited from possessing a firearm. (Penal
Code Section 12071(a)(4).)
5)Prohibits the supply, delivery, sale, giving possession or
control of a firearm to any person within a prohibited class.
Violation is a felony, punishable by two, three, or four years
in state prison. (Penal Code Section 12072(g)(2)(A).)
6)Prohibits the sale, loan, or transfer of a firearm to any
person who is not the actual purchaser or transferee if the
intent is to avoid the statutory requirements for lawful
transfer. (Penal Code Section 12072(a)(4).)
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement: According to the author, "Technology
currently exists and is being further developed that enables
law enforcement to trace bullets and cartridges to the guns
that fired them. The Bureau of Alcohol, Tobacco & Firearms
(ATF) and the Federal Bureau of Investigation (FBI) both have
such ballistic identification computer systems, which they are
currently integrating. Because every gun makes unique
markings on the bullets and cartridges that are fired from it,
there is essentially a 'fingerprint' for each gun. Ballistic
examiners test fire recovered guns and record images of
bullets and cartridges recovered from these guns and crime
scenes into the computer system. They then use the program to
identify possible matches to images that are already in the
system. In this way, they can determine what gun was used in
a particular crime.
"Since the two federal ballistic tracing systems were
established, police have linked at least 5,700 guns to two or
more crimes when no other evidence existed and all told the
systems have produced 8,000 evidence matches in over 16,000
cases. Many other crimes have also been solved using this
technology. For example, in Oakland in 1997, police recovered
a handgun on a routine stop. The gun was then test fired and
linked to a murder that had occurred one month earlier. This
linkage eventually led to the arrest and conviction of the
person responsible. The Pennsylvania State Police estimate
that the ATF program has helped solve 28 cases since they
began using it in March 1997.
"These types of examples exist despite the fact that the two
federal systems in place do not speak to each other and only
compare cartridges and bullets to evidence recovered from
other crime scenes. A number of law enforcement agencies in
California utilize one system or the other. However, there is
little organized interaction. AB 1717 improves California's
ability to utilize this technology. If the DOJ determines
that an adequate ballistic identification system exists for
California, manufacturers and importers would be required to
submit gun 'fingerprints' to DOJ before any sale in California
and before the gun is recovered by the police. This would
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enable law enforcement to effectively trace bullets,
cartridges, and firearms to the person who purchased a gun as
well as the guns recovered from other crime scenes. Such a
database of handgun 'fingerprints' would tremendously increase
law enforcement's ability to successfully investigate crimes
and successfully prosecute violent offenders.
"Furthermore, AB 1717 will provide California law enforcement
agencies with the ability to tap into a statewide database of
handgun 'fingerprints.' No such database exists at this time.
Most agencies only have access to the information that they
input themselves. This bill will enable law enforcement
agencies to have access to statewide information.
"If the DOJ determines that such an undertaking is not feasible,
then the requirements on manufacturers and importers will not
take effect."
2)Relevant Federal Activity: In December 1999, the FBI and ATF
signed a memorandum of understanding to integrate their
ballistic identification systems into a jointly managed
program with a single unified computer system. Currently, the
two agencies maintain separate and distinct ballistic
identification systems that are not compatible. Initially,
the National Integrated Ballistics Information Network (NIBIN)
proposed achieving interoperability of the two systems, "IBIS"
and "Drugfire." Under the auspices of NIBIN, members of the
firearm examiner community, the National Institute of
Standards and Technology, and the major vendors of both
programs determined that a single imaging technology would be
a far superior solution to that of creating an image exchange
mechanism for interoperability.
The Clinton administration recently announced that they propose
to triple the budget for the development of a unified national
database. It is estimated that local and state law
enforcement agencies will have access to the new system in two
years. Senator Herb Kohl has circulated draft legislation
addressing the issue of ballistics identification systems on a
nationwide basis.
3)Legislation In Other States: In Maryland, proposed
legislation would require firearm manufacturers to test-fire
all new handguns and send the bullets and cartridges to the
state police for scanning and entry into the database. It is
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estimated that 19, 440 handguns were sold in Maryland in 1998,
the most recent year for which statistics are available.
4)California Crime Laboratories: It is difficult to estimate the
precise number of handguns that are in the possession of local
law enforcement. According to the Los Angeles County Sheriff,
existing crime laboratory staff is unable to analyze the
hundreds of weapons seized every month. Recent DOJ statistics
for 1998 provide a partial picture of the number of weapons
that could be entered into a state-wide database:
a)Assault with a firearm21, 641
b)Robbery with a firearm23, 799
c)Homicide with a firearm 1,469
At the present time, creating an effective database of
ballistic information must take into account not only the
volume of weapons but the fact that one-half of California
crime laboratories use IBIS while the other half use Drugfire.
5)Voluntary Efforts In the Firearms Industry: One manufacturer,
Glock, is beginning a pilot project to collect cartridges
test-fired from every gun that comes off the assembly line.
Glock currently test-fires all weapons that come off of their
assembly line. The manufacturer will voluntarily submit
ballistic information from expended cartridge casings to ATF
before their guns are distributed. The proposed cartridge
retrieval system consists of collecting three expended
cartridges per weapon and cross-referencing the casings with a
bar code and photograph of the weapon being fired.
Discussions with the manufacturer indicate that attempting to
collect bullets for examination as part of the testing process
would be extremely difficult and time consuming.
6)Evidentiary Issues: The DOJ has yet to compile complete
statistics for 1999. It is estimated that from January
through June, 112, 875 handguns were sold in California.
Considering the sheer number of weapons potentially covered by
this bill each year, the amount of test-fired cartridges
and/or bullets would be substantial. If the purpose of the
database is to give law enforcement the ability to identify
cartridges or bullets so they may be introduced as evidence in
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criminal proceedings, then there must be some provision for
preserving potentially millions of cartridges or bullets.
Moreover, it is questionable whether the function of
collecting and preserving incriminatory evidence may be
delegated to a private entity without running afoul of the
requirement that the prosecution establish the necessary
evidentiary foundation that is a pre-requisite to
admissibility. (See Evidence Code Section 402 et seq.) If
the only evidence retained is a digital image of a cartridge
or bullet, it is questionable whether such an image would be
admissible under existing law. Criminal defendants will
undoubtedly argue that under both the statutory rules of
evidence as well as the Due Process clause of the United
States Constitution, they have a right to examine the actual
evidence.
7)Possible Amendments: Report To The Legislature: In its
present form, this bill does not have any policy guidelines as
to how the DOJ is to determine the feasibility of the
undertaking of creating an effective BIS. The author may want
to consider amendments either specifying the process by which
the DOJ is to make its determination or to submit a report to
the Legislature describing the basis for the determination.
8)Arguments In Support:
a)Handgun Control states, "Since each handgun imprints unique
marking on the rounds that are fired, ballistic
fingerprinting presents a critical crime-solving tool to
law enforcement. In short, AB 1717 would allow police to
quickly determine which handgun had fired bullets at a
crime scene and identify the handgun's most recent owner.
Law enforcement officers who have used ballistic
fingerprinting have found that often several crimes can be
solved at once since criminals frequently use the same
handgun to commit multiple crimes. Unfortunately, while
some California police agencies are using ballistic
fingerprinting already, there is no uniform ballistic
database where all crime data can be checked. AB 1717
would establish such a statewide system."
b)Orange County Citizens For The Prevention of Gun Violence
states, "A database establishing ballistic fingerprinting
for every handgun is an important and useful tool for law
enforcement to allow for the tracing of bullets and/or
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cartridges found at crime scenes back to a specific
handgun. The establishment in California of a uniform
ballistic database where all crime data can be checked?is
another measure to help track the flow of handguns in
California to ensure accountability and responsibility with
the goal of preventing gun deaths and injuries."
9)Arguments In Opposition:
a)The National Rifle Association states, "We support the
concept of using technology to link firearms involved in
crimes. However?the proposed workload should be
prioritized so that crime laboratory staff wouldn't be
needlessly overburdened... In 1996, the Governor signed AB
635 (Bowler) which directs that information is reported to
the legislature about firearms involved in violent crimes
(PC 12039)?. Law enforcement agencies in California
annually seize more than 50,000 firearms. This workload
alone would likely exceed the foreseeable resource
capability of California's forensic laboratories. The
proper approach would be to use federal firearm tracing
information, Automated Firearm system data from DOJ and
crime laboratory data, to target the types of firearms to
be tested that have been seized by law enforcement. Most
handguns are never involved in criminal activity.
Additionally there are some types of handguns (i.e., target
pistols, custom-made models, etc.) that may have never been
used in a crime. Thus, testing the entire universe of
handguns is a poor use of resources. Our oft-stated concern
is that forensic resources are already overtaxed. The new
responsibilities and workload proposed in AB 1717 should
not be undertaken at the expense of ongoing commitments.
AB 1717 requires more staff, larger facilities and more
equipment. If Proposition 15 fails, the requirements of AB
1717 would be disastrous for crime labs. If Proposition 15
passes, any new programs would still be very difficult to
implement, and thus the workload should be carefully
chosen."
b)The California Rifle and Pistol Association states, "CRPA
is also concerned that if ballistics testing is enacted, it
will soon be expanded to cover rifles and shotguns, thus
resulting in their de facto registration."
REGISTERED SUPPORT / OPPOSITION :
AB 1717
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Support
Handgun Control Inc.
Los Angeles District Attorney
Orange County Citizens For The Prevention of Gun Violence
Women Against Gun Violence
Opposition
California Rifle and Pistol Association
National Rifle Association
Analysis Prepared by : Bruce Chan / PUB. S. / (916) 319-3744