BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
1
5
SB 15 (Polanco)
As Amended April 5, 1999
Hearing date: April 6, 1999
Penal Code
SH:br
FIREARMS -
RESTRICTIONS ON "UNSAFE HANDGUNS"
HISTORY
Source: Author
Prior Legislation: SB 1500 (1998) - vetoed
SB 500 (1997) - vetoed
SB 933 (1996) - failed passage Assembly Public
Safety
SB 1118 (1995) - never heard in Senate
Criminal Procedure
AB 1848 (1992) - heard, no vote taken, Senate
Judiciary
Support: Handgun Control; Cities of Los Angeles, San Jose,
Thousand Oaks, San Clemente, Lake
Elsinore, San Luis Obispo, Buena Park, Palo Alto,
Santa
Rosa, Oceanside, Lompoc, Merced; Alameda County
Board of Supervisors; City Council's of Berkeley; West
Hollywood, Walnut Creek, Rohnert Park, Pismo
Beach, Lafayette, Los Gatos Town Council;
Lutheran Office of Public Policy; League of
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California Cities; California Academy of Family
Physicians; Los Angeles County Bar Association;
California Organization of Police and Sheriffs;
Trauma Foundation; California Police and
Sheriffs Association; Mayor, City of Burbank;
California Child, Youth and Family Coalition; Los
Angeles Unified School District; Chief of
Police of the Town of Los Gatos and the City of
Monte Sereno; California Church IMPACT; Children's
AdvocacyInstitute; Los Angeles District Attorney's
Office; Older Women's League; Chief of
Police of the City of Signal Hill; California Nurses
Association; Legal Community Against Violence;
Episcopal Diocese of Los Angeles; Orange
County Citizens for the Prevention of Gun Violence
Opposition: California
Rifle and Pistol Association; National Rifle Association;
California Shooting Sports Association; California
Attorneys for Criminal Justice; Peace
Officer Research Association of California; Outdoor
Sportsmen's Coalition; Safari Club International;
California Sportsman's Lobby;
individual letters
KEY ISSUES
SHOULD THE MANUFACTURE, IMPORTATION, KEEPING FOR SALE,
OFFERING OR EXPOSING FOR SALE, OR GIVING OR LENDING OF ANY
"UNSAFE HANDGUN" - AS DEFINED - BE PROHIBITED IN
CALIFORNIA, COMMENCING JULY 1, 2000?
SHOULD THE PENALTY FOR VIOLATING THAT PROHIBITION BE A
MISDEMEANOR PUNISHABLE BY UP TO ONE YEAR IN A COUNTY JAIL?
SHOULD THOSE UNSAFE HANDGUNS BE DEFINED BY REFERENCE TO
SPECIFIED CRITERIA INCLUDING A SAFETY DEVICE AND OTHER
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FACTORS INCLUDING A FIRING TEST (FOR SAFETY) AND A "DROP
SAFETY" TEST, AS SPECIFIED?
SHOULD EVERY MANUFACTURER OR IMPORTER OF HANDGUNS IN THIS
STATE BE REQUIRED TO CERTIFY, UNDER PENALTY OF PERJURY AND
ANY OTHER REMEDY PROVIDED AT LAW, THAT ANY HANDGUN
MANUFACTURED OR IMPORTED IS NOT A PROHIBITED UNSAFE HANDGUN
PURSUANT TO THIS BILL
SHOULD THE DEPARTMENT OF JUSTICE (DOJ) BE REQUIRED TO
CERTIFY, ON OR BEFORE JULY 1, 2000, LABORATORIES TO VERIFY
COMPLIANCE WITH THIS BILL?
SHOULD THE DEPARTMENT OF JUSTICE BE REQUIRED TO PREPARE A
ROSTER, ON AND AFTER JULY 1, 2000, OF ALL HANDGUNS WHICH
ARE DETERMINED NOT TO BE UNSAFE HANDGUNS PURSUANT TO THIS
BILL?
SHOULD TRANSFERS BETWEEN PRIVATE PARTIES - AND OTHER
SPECIFIED TRANSFERS AND SPECIFIED FIREARMS - BE EXEMPTED
FROM THE PROPOSED RESTRICTIONS ON "UNSAFE HANDGUNS"?
(CONTINUED)
SHOULD LEGISLATIVE INTENT BE ENACTED THAT THE DEPARTMENT OF JUSTICE PURSUE AN
INTERNAL LOAN FROM SPECIAL FUND REVENUES AVAILABLE TO THE DEPARTMENT TO COVER
STARTUP COSTS FOR THE NEW UNSAFE HANDGUN PROGRAM AND REPAY ANY LOAN WITH THE
PROCEEDS OF FEES COLLECTED UNDER THAT PROGRAM WITHIN 6 MONTHS?
SHOULD RELATED CHANGES BE MADE?
PURPOSE
The purpose of this bill is to enact restrictions on the
manufacture, importation, or sale of "unsafe handguns" - as
defined in this bill - in California commencing July 1,
2000, as specified.
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Under existing law it is an alternate misdemeanor/felony
("wobbler") to manufacture, import, sell, loan or possess
specified disguised firearms and other deadly weapons,
including plastic firearms, cane or wallet guns, flechette
darts, multiburst trigger activators, nunchakus,
short-barreled shotguns and rifles, leaded canes, zip guns,
unconventional pistols, cane blackjacks and metal knuckles.
A violation is punishable by sixteen months, two or three
years in prison, or up to one year in county jail. (Penal
Code section 12020)
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 sections 12071, 12072, 12082, 12084)
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
section 53071)
This bill would do the following:
commencing July 1, 2000, make it a misdemeanor -
punishable by up to one year in a county jail - for any
person to manufacture or cause to be manufactured, import
into the state for sale, keep for sale, offer or expose
for sale, give, or lend any unsafe handgun, except as
specified.
defines "unsafe handgun" to mean any pistol, revolver, or
other firearm capable of being concealed upon the person
which either (1) for revolvers: does not have a safety
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device to cause the hammer to retract from contact with
the primer, as specified; (2) for pistols (whether
semi-automatic or not): does not have a positive manually
operated safety device; (3) does not meet a specified
firing requirement; (4) does not meet a specified drop
safety requirement.
requires every person licensed to manufacture firearms
pursuant to federal law who manufactures firearms in this
state and every person who imports into the state for
sale, keeps for sale, or offers or exposes for sale any
firearm to certify under penalty of perjury that every
model, kind, class, style, or type of pistol, revolver,
or other firearm capable of being concealed upon the
person that he or she manufactures or imports, keeps, or
exposes for sale is not a prohibited unsafe handgun.
requires any pistol, revolver, or other firearm capable
of being concealed upon the person manufactured in this
state, imported into the state for sale, kept for sale,
or offered or exposed for sale, to be tested by an
independent laboratory certified by the Department of
Justice to determine whether that firearm meets or
exceeds specified standards defining unsafe handguns.
requires the Department of Justice to certify
laboratories for this purpose on or before July 1, 2000.
requires the Department of Justice, on and after July 1,
2000, to compile, publish, and thereafter maintain a
roster listing all of the pistols, revolvers, and other
firearms capable of being concealed upon the person that
are not unsafe handguns by the manufacturer, model
number, and model name; authorizes the department to
charge every person in this state who is licensed as a
manufacturer of firearms pursuant to federal law, and any
person in this state who manufactures or causes to be
manufactured, imports into the state for sale, keeps for
sale, or offers or exposes for sale any pistol, revolver,
or other firearm capable of being concealed upon the
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person in this state, an annual fee not exceeding the
costs of preparing, publishing, and maintaining the
roster.
exempts from the limitations on such handguns (1)
prototypes which are to be tested by a laboratory to
determine whether the handgun is prohibited by this bill;
(2) law enforcement and others handling the weapon to
determine whether or not it is prohibited by this bill;
(3) firearms which are curios or relics pursuant to
federal regulations.
exempts from the transfer limitations in this bill
transfers between private parties through dealers/law
enforcement agencies; transfers between parties otherwise
exempt from the requirement that transfer be made through
a dealer or law enforcement agency (limited duration
loans between known parties, loans for hunting season,
etc); and transfers pertaining to those handguns exempted
in new provisions added by this bill (such as delivery to
DOJ of weapons being tested).
states the intent of the Legislature that the Department
of Justice pursue an internal loan from special fund
revenues available to the department to cover startup
costs for the unsafe handgun program established pursuant
to the bill and that the department is to repay any loan
with the proceeds of fees collected under that program
within six months.
makes numerous related additions to law.
COMMENTS
1. Need for This Bill
The author submits that:
Senate Bill 15 is a common sense, responsible gun law.
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It requires that weapons fire when they are supposed
to and that they not fire when dropped. The drop test
is based on U.S. Department of Justice quality
standards for law enforcement weapons and the misfire
test is a slightly more lenient standard than
currently used by law enforcement agencies. The tests
are fair and reasonable for weapons sold to members of
the public for self-protection. If a weapon is not
reliable for self-defense, it has no business being
sold in California.
SB 15 would require any handgun manufactured in
California, imported into the State of California for
sale, kept for sale or exposed for sale, given or
lent, meet these basic standards. The Attorney
General's office would be required to certify
independent labs that would test weapons that
manufacturers wished to sell in California. If they
failed to pass the test it would be a misdemeanor to
manufacture or sell the weapons in our state.
2. Governor's Veto of SB 500 and SB 1500
The Governor's veto message of SB 500 (9/26/97) included,
in part, the following:
SB 500 is a bill that purports to protect gun users
against shoddy guns. It is essentially offered as
consumer protection. But the vast majority of the
proponents of SB 500 who have urged me to sign it have
done so because of their passionate hope and belief
that it will instead protect potential victims against
whom the proscribed guns might otherwise be used.
Common sense dictates that the best way to prevent gun
crimes is by first removing from society the criminals
who use guns in the commission of a
crime. . .
. . . not only does SB 500 fail to keep guns out of
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the hands of criminals, it will deprive law-abiding,
legitimate gun users of the needed protection of
handguns--the same handguns used by thousands of peace
officers as regular service and back-up guns. These
weapons would--in a private citizen's hands--be caught
in a net cast much too wide by SB 500.
. . . I will not support a measure that fails the
basic test of protecting the innocent. Ultimately,
the real test applied by the bill is whether or not
the weapon is readily concealable. If so, it is
adjudged by SB 500 to be "non-sporting" and is
therefore prohibited. By this definition and test,
all handguns--except, ironically, the largest and
deadliest--are included in the ban. The clear if
unstated premise of this test is that handguns that
are concealable can have no sporting purpose and
therefore no valid purpose. This flawed logic ignores
reality: it ignores the obvious fact that millions of
law-abiding Californians--including a growing number
of women--have felt the need to own concealable
weapons not for sport but to protect themselves, their
families, and their property.
As much as I deplore the necessity, I cannot in good
conscience deny them that protection if they choose
it.
NOTE: The author indicated concerning SB 1500 from 1998
that: "In response to the Governor's concerns [with SB
500], . . . I have introduced Senate Bill 1500. It casts a
smaller net, it addresses the Governor's concerns and it
seeks to ensure that those who choose to own a handgun for
self protection have a handgun that is safe and reliable."
The Governor's veto message of SB 1500 (9/27/98) includes
the following:
. . . This bill is the successor to SB 500, which I
vetoed last year. SB 500 was seriously flawed.
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Commendably, the author has removed some of its more
egregious provisions. . . .
. . . The bill gives the Department of Justice six months
to find and certify laboratories to perform safety tests.
Once laboratories are identified, handgun manufacturers
wishing to sell their products in California would be
required to submit three prototypes of each model for
testing. Only handguns passing the test during the
following six months would be certified and placed on the
initial Department of Justice roster. All other handguns
would be presumed unsafe subject to penalty under this
bill and remain so unless and until they were certified
to have passed the test.
The author was advised that this Administration could
accept both the premise of safety testing and the
specific safety tests proposed, provided that the bill be
made prospective, impacting handguns manufactured, or
sold new, after January 1, 2000. The author declined to
amend his bill, insisting that used handguns could be
sold through private transactions, but not by licensed
dealers. Other than improving business for gun
manufacturers by increasing demand for new guns, it is
unclear how anyone would benefit by this arbitrary
standard. . .
SB 1500 would deny owners of used handguns access to a
dependable marketplace of licensed firearms dealers and
pawnbrokers for safe and legal sales and loans, while
threatening to delay market access to manufacturers and
purchasers of new guns. . .
But an even more fundamental question is whether consumer
safety is better achieved by a program that offers
manufacturers market incentives to have their products
tested, or a program that penalizes not only makers of
products that fail the test, but also those who through
no fault of theirs have been unable to get their guns
tested. . . .
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. . .There are few laboratories that perform this kind of
testing now. With the manufacturers providing the cost
of testing, the number of laboratories and testing
capacity may increase. But in the meantime, there are
hundreds, if not thousands, of makes and models of
handguns. There is a very real possibility that
delay--for any number of reasons beyond the control of
gun maker--will lead to a large number of guns being
banned without any showing that they are unsafe.
. . .While there have been isolated reports of firearms
which jam excessively and even a few reports of guns
which discharge accidentally, when dropped, or explode in
the shooter's hand, the number of makes of suspect guns
does not seem to justify a regulatory scheme that is
likely to have the unintended consequence of prohibiting,
or at least unreasonably holding up, sales of what
clearly appears to be the vast majority of perfectly
reliable weapons.
. . .And there is no objection to weapons testing. But
the procedure which SB 1500 would impose threatens to
unreasonably limit the right of law abiding citizens to
obtain previously lawful firearms. It makes little sense
for the law to deny weapons to people who need them, on
the pretext that they are unsafe to the user until
testing proves them safe, when they are arguably in far
greater danger from certifiably unsafe thugs than from
uncertified handguns.
3. Federal Regulation of "Saturday Night Specials"
At the federal level, the importation of "Saturday Night
Specials" into the United States has been banned through
the enactment of the Gun Control Act of 1968. Section 925
(d)(3) of the Act provides that a firearm shall be imported
if it is of a type ". . .generally recognized as
particularly suitable for, or readily adaptable to,
sporting purposes." The phrase "sporting purposes" has
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been defined to eliminate small, cheap, poorly constructed
handguns.
A set of factoring criteria was designed to prevent the
import of these handguns, considered a substantial crime
problem in the 1960s. The factoring criteria are based on
a relatively simple point system. First, the firearm must
meet all of the prerequisites. If it is a pistol, it must
have a manually operated safety device. The combined
length and height must be not less than ten inches with the
height being at least four inches and the length at least
six inches. If the firearm is a revolver, it must pass the
safety test and have an overall frame length of at least
four and one half inches and a barrel length of at least
three inches.
In addition, a point value is assigned to the handgun's
individual characteristics such as length of barrel,
overall length, frame construction, weight, caliber, safety
features, type of sight, trigger, hammer and grip.
Generally, the handguns passing the criteria are bigger,
heavier and of a better quality than "Saturday Night
Specials." The Bureau of Alcohol, Tobacco, and Firearms
(Secretary of the Treasurer or his/her delegate) also may
grant exemptions to these requirements, as specified.
Under the proposed federal Handgun Violence Prevention Act
of 1989, the above criteria would have applied to handguns
produced in the United States. However, this federal
legislation was defeated.
4. Exemption for Old West Revolvers
This bill contains an exemption for "old west"
single-action revolvers and replicas of those revolvers.
SB 15 contains the following language:
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Penal Code section 12131. The provisions of this
chapter shall not apply to a single-action revolver
that has at least a five-cartridge capacity with a
barrel length of not less than three inches, and meets
any of the following specifications:
(a) Was originally manufactured prior to 1900 and is
a curio or relic, as defined in Section 178.11 of
Title 27 of the Code of Federal Regulations.
(b) Has an overall length measured parallel to the
barrel of at least seven and one-
half inches when the handle, frame or receiver, and
barrel are assembled.
(c) Has an overall length measured parallel to the
barrel of at least seven and
one-half inches when the handle, frame or receiver,
and barrel are assembled and that is currently
approved for importation into the United States
pursuant to the provisions of paragraph (3) of
subsection (d) of Section 925 of Title 18 of the
United States Code.
5. Implementation Dates in This Bill
If enacted, this bill would take effect on January 1, 2000.
This bill contains several "operative" dates within its
text:
July 1, 2000 - restrictions/penalties for selling,
manufacturing, etc., of unsafe handguns take effect.
July 1, 2000 - DOJ shall certify laboratories to verify
compliance with standards.
July 1, 2000 - on/after this date, DOJ shall publish a
roster of firearms, which are "not unsafe firearms".
WOULD THE DATES SET IN THIS BILL ALLOW FOR THE APPROPRIATE
IMPLEMENTATION OF THE NEW PROGRAM, E.G., WOULD FIREARMS BE
TESTED BY JULY 1, 2000, WHEN THE LABORATORIES DO NOT HAVE
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TO BE CERTIFIED FOR TESTING UNTIL THAT DATE?
6. Definition of "Any Person Who Imports" in This Bill
This bill exempts sales of "unsafe handguns" between
private parties. Most of those weapons may be anticipated
to be handguns manufactured before January 1, 2000. This
bill would prohibit all "unsafe handgun" manufacturing,
importing, or selling by licensed manufacturers and
licensed dealers after January 1, 2000, no matter when the
handgun is manufactured.
However, there is now a new Penal Code section reference to
"importer". Private parties moving to California after
January 1, 1998, who possess a handgun must now report that
firearm to the Department of Justice within 60 days of
bringing the handgun into the state. Those persons are now
defined in statute as a "personal handgun importer."
Whether or not those persons would be considered an
"importer" pursuant to this bill is unclear, although this
bill does appear to be aimed at commercial persons.
7. Other Issues Raised by This Bill
Under existing Government Code section 53071, some local
entities have adopted restrictions on the local sale by
licensed dealers of so-called "Saturday Night Specials"
(see reference to San Jose ordinance in the second
paragraph, below). This bill would appear to preempt any
such local ordinance, both those already in existence and
any proposed locally in the future
SB 500, as introduced on February 20, 1997, would have
restricted sales in California of handguns which would have
otherwise failed to meet the federal test for importation
into the United States. Previous efforts to restrict
so-called "Saturday Night Specials" took a similar approach
or used such tests as the tensile strength of metals. As
SB 500 and
SB 1500 evolved in the process, the approach taken became
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one of size restrictions and "safety" tests, which were
developed using tests used for law enforcement weapons.
Subsequently, the size criteria were deleted from SB 1500
and are not part of SB 15 as currently amended.
Some local jurisdictions in California have existing
restrictions on specified weapons. For example, the City
of San Jose has a local ordinance entitled "Saturday Night
Special/Junk Gun Sale Ban" (SJ Code, Chapter 10.33) which
uses several characteristics, including metal strength and
composition and for semi-automatic pistols a requirement
for a "locked breech action" with the chief of police
maintaining a roster of prohibited weapons and an appeals
process to the chief.
The San Jose ordinance is relatively simple in that it
states in colloquial terms the types of weapons it is
intended to restrict and then uses a relatively simple set
of criteria. It may be unclear whether or not that kind of
approach would or would not be as effective as the "safety
test" procedures proposed in this bill or whether or not
this bill would be over or under inclusive of the types of
handguns which the sponsors and supporters would seek to
prohibit in California.
As indicated in last year's SB 1500 veto message, there has
been some discussion of whether or not the application of
the restrictions in SB 1500 and this year's SB 15 would
effectively eliminate the used handgun market for all those
handguns - lawfully sold/possessed prior to the testing
requirements of this bill - which could be sold between
private parties through dealers/law enforcement agencies
but which could not be purchased by licensed dealers for
resale in California. It may be assumed that there is
little likelihood that anyone would pay for certification
of weapons which are "used" and not substantially the same
as new weapons offered for sale and manufactured after July
1, 2000, if this bill is enacted.
At the present time, firearms may be pawned and
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subsequently returned to the person who pawned them. This
bill would arguably restrict such "returns" for handguns
lawfully possessed prior to the restrictions imposed by
this bill.
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8. Opposition to This Bill
The National Rifle Association (NRA) letter in opposition
includes:
As currently constructed, SB 15 would provide a strong
stimulus for illegal "street" gun sales. Most used
handguns made since 1946 would not be submitted for
certification as required by SB 15 and thus could not be
legally sold by retail firearm dealers. Pawnshops would
not give loans on handguns that they couldn't sell if not
picked up by the owner. Without access to retail
firearms dealers (including pawnshops) the obvious
alternative is "street sales".
The California Rifle and Pistol Association letter in
opposition to SB 15 includes:
. . .Its prohibition on dealer sales of used handguns not
meeting the bills extremely broad provisions would make
handguns economically unavailable to many persons who do
not have large incomes. . . .Whether a handgun meets the
proposed SB 15 standards in most cases would have no
relevance to its suitability for its intended purpose. .
.SB 15 requires that both civilian and law enforcement
handguns have the same standards. . .SB 15 would not
significantly improve any product line nor would it
prevent the occasional occurrence of a defective part.
But, it would unjustly have an adverse impact on lawful
residents of California who need a handgun for lawful
purposes but cannot afford the expensive models. . .
The California Shooting Sports Association letter in
opposition indicates that SB 15 would not reduce crime nor
improve public safety.
9. Related Legislation
AB 505 (Wright) is currently in the Assembly Committee on
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Public Safety. It would require every model of pistol,
revolver, or other firearm capable of being concealed upon
the person that is manufactured for sale in California on
or after July 1, 2000, to satisfy specified safety tests
and standards, with a system of self-certification by the
manufacturer or importer and specified penalties.
10. Need to Revise the Legislative Counsel's Digest
The Legislative Counsel's digest of this bill as amended on
April 5, 1999, on line six of the first page indicates that
"commencing January 1, 2000" the limitations on "unsafe
handguns" takes effect; the text in fact sets that date at
July 1, 2000 (page 3, line 8). Thus the Digest should be
corrected as this bill is amended or moves through the
process.
11. Other Firearms Bills Imposing Duties on the Attorney
General/Department of Justice
Other firearms bills this session which would require the
Attorney General/Department of Justice to take on tasks, in
addition to SB 15, include SB 23 (registration and other
elements of the assault weapons program), SB 130 and AB 106
(certification of laboratories to test firearms safety
devices; other duties), and AB 505 (California Sporting and
Self Defense Handgun Safety Standards Act).
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