BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
3
1
SB 31 (Peace)
As amended January 3, 2000
Hearing date: January 11, 2000
Family Code and Penal Code
SH:br
FIREARMS :
PROPOSED REVISIONS OF THE DANGEROUS WEAPONS' CONTROL LAW
HISTORY
Source: Author
Prior Legislation: SB 29 (1999) - vetoed by the Governor
SB 63 - Chapter 908, Statutes of 1998
AB 2011 - Chapter 911, Statutes of 1998
Support: Association for Los Angeles Deputy Sheriffs
Opposition:California Rifle and Pistol Association
(THIS ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED
IN COMMITTEE - SEE COMMENT #3.)
KEY ISSUES
(More)
SB 31 (Peace)
Page 2
SHOULD A NUMBER OF CHANGES BE MADE TO THE DANGEROUS
WEAPONS' CONTROL LAW, INCLUDING THE FOLLOWING:
TO ADD TO THOSE FIREARM TRANSFERS WHICH DO NOT REQUIRE
THE TRANSFEREE TO BE A LICENSED FIREARMS DEALER PURSUANT
TO PENAL CODE SECTION 12070 BY INCLUDING LAWFUL LOANS OF
A FIREARM BY A LICENSED PRIVATE INVESTIGATOR, A PRIVATE
PATROL OPERATOR, AND AN ALARM COMPANY TO AN AUTHORIZED
EMPLOYEE? TO ADD THOSE SAME KINDS OF "TRANSFERS" TO THE
LIST OF SPECIFIED TRANSFERS WHICH ARE EXEMPTED FROM THE
REQUIREMENT THAT PRIVATE PARTY TRANSFERS OF FIREARMS MUST
BE MADE THROUGH A LICENSED DEALER OR A SHERIFFS'
DEPARTMENT IN SMALLER COUNTIES?
TO PROVIDE THAT UNTIL JULY 1, 2003, IF REQUIRED BY THE
DEPARTMENT OF JUSTICE, A LICENSED FIREARMS DEALER - OR A
SHERIFF'S DEPARTMENT IN A SMALLER COUNTY WHICH IS
EFFECTING A FIREARMS TRANSFER - SHALL PROVIDE INFORMATION
TO THE DOJ ABOUT THE ACTUAL DELIVERY OF A HANDGUN AND TO
MANDATE THAT INFORMATION BE PROVIDED COMMENCING JULY 1,
2003?
TO ADD A NEW PENAL CODE SECTION 12083 TO DELINEATE HOW A
PERSON WHO FALLS WITHIN A CLASS OF PERSONS PROHIBITED
FROM POSSESSING A FIREARM SHALL DISPOSE OF ANY PREVIOUSLY
POSSESSED FIREARMS?
SHOULD NUMEROUS RELATED CHANGES TO LAW BE MADE?
PURPOSE
The purpose of this bill is to make a number of changes to
the Dangerous Weapons' Control Law, including: authorizing
the Department of Justice to require that licensed dealers
and sheriff's offices, in smaller counties, report in a
manner and format prescribed by the department the date and
time of delivery of a handgun to the purchaser or
transferee of that firearm or the person being loaned that
(More)
SB 31 (Peace)
Page 3
firearm until July 1, 2003, and to require submission of
such information after that date; to add a new Penal Code
section 12083 to delineate how a person who falls within a
class of persons prohibited from possessing a firearm shall
dispose of any previously possessed firearms; and to make
numerous other changes to the laws pertaining to firearms.
Existing California law generally requires that the
transfer of all handguns and long guns (rifles and
shotguns) be conducted through a state-licensed firearms
dealer or through a local sheriff's department in counties
of less than 200,000 population. A 10-day waiting period,
background check (through the Department of Justice), and
handgun safety certificate for handgun transfers are
required prior to delivery of the firearm. This process,
imposing a 10 day waiting period and background check of
the prospective buyer, is intended to preclude felons and
proscribed classes of individuals from obtaining deadly
weapons and to prevent purchases in the heat of passion. A
license to sell firearms is subject to forfeiture for a
breach of any of specified prohibitions and requirements.
(Penal Code sections 12070 et seq.; see especially Penal
Code sections 12072(c) and (d), 12082, and 12084)
Existing law requires every firearms dealer to keep a
register in which specified information, including full
name, complete date of birth, and local address of
purchaser, is to be entered. A violation of these
provisions is a misdemeanor. (Penal Code sections 12073
and 12077)
Existing federal law requires background checks for
firearms using the National Instant Check System (NICS).
Those NICS checks may be relied upon by the licensed dealer
only for use in a single transaction, and for a period not
to exceed 30 calendar days from the date that NICS was
initially contacted. If the transaction is not completed
within the 30-day period, the licensee shall initiate a new
NICS. (Section 178.102(c) of Title 27 of the Code of
Federal Regulations)
(More)
SB 31 (Peace)
Page 4
Existing law requires that California licensed firearms
dealers report to the Department of Justice information
required by the department that any firearm is not
delivered within the 30-day period required for delivery by
federal law. (Penal Code section 12071(b)(19))
Existing law exempts from the requirement (that sales,
loans and transfers of firearms be conducted through a
dealer or local law enforcement agency) transactions with
authorized peace officers, certain operation of law
transactions, intra-familial firearms transactions, and
other specified transactions. However, all these exempt
transactions are subject to handgun registration as a
condition of the exemption. (Penal Code section 12078)
Existing law provides for a Department of Justice
Certificate of Eligibility (COE). A COE is a
fingerprint-based background check with the certificate
issued annually if the person applying is not within any
category of persons prohibited from possessing a firearm.
The person possessing a COE is entered into the DOJ system
so that if a COE possessor does fall into a class of
persons prohibited from possessing firearms, the DOJ will
be notified of that fact. (Penal Code section 12071(a)(4)
and (5))
Existing law provides that handguns are centrally
registered at time of transfer or sale, because the
Department of Justice compiles various transfer forms.
Records pertaining to transfers of firearms not pistols,
revolvers, or other firearms capable of being concealed
upon the person are not centrally registered. (Penal Code
section 11106)
Existing law provides that information in the registry
shall , upon proper application therefor, be furnished to
specified officers or to the person listed in the registry
as the owner or person who is listed as being loaned the
particular pistol, revolver, or other firearm capable of
(More)
SB 31 (Peace)
Page 5
being concealed upon the person in the form of hard copy
printouts of that information as photographic, photostatic,
and nonerasable optically stored reproductions. (Penal
Code section 11106(c)(3))
Existing law provides that if any person is listed in the
registry as the owner of a firearm through a Dealers'
Record of Sale prior to 1979, and the person listed in the
registry requests by letter that the Attorney General store
and keep the record electronically, as well as in the
record's existing photographic, photostatic, or nonerasable
optically stored form, the Attorney General shall do so
within three working days of receipt of the request. The
Attorney General shall, in writing, and as soon as
practicable, notify the person requesting electronic
storage of the record that the request has been honored as
required by this paragraph. (Penal Code section
11106(c)(4))
This bill adds the following to the Dangerous Weapons'
Control Law:
Requires that any handgun sold, delivered, returned or
transferred by a local law enforcement agency pursuant to
Family Code section 6389 - which prohibits a person
subject to specified protective orders from possessing a
firearm - be entered within 10 days into the Automated
Firearms System, as specified. Makes additional changes
to that section.
Adds additional exemptions to Penal Code section 12026.2
pertaining to the section 12025 prohibition against
carrying unloaded handguns in public if the handgun is
not only unloaded but also kept in a locked container and
the course of travel includes only those deviations
between authorized locations as are reasonably necessary
under the circumstances. The new exemptions include
transportation of a firearm in order to comply with
requirements in law to dispose of those firearms.
(More)
SB 31 (Peace)
Page 6
Adds to those firearm transfers which do not require the
transferee to be a licensed firearms dealer pursuant to
Penal Code section 12070, including lawful loans of a
firearm by a licensed private investigator, a private
patrol operator, and an alarm company to an authorized
employee. Adds those same kinds of "transfers" to the
list of specified transfers which are exempted from the
requirement that private party transfers of firearms must
be made through a licensed dealer or a sheriffs'
department in smaller counties (added to Penal Code
section 12078).
Provides that until July 1, 2003, if required by the
Department of Justice, a licensed firearms dealer - or a
sheriff's department in a smaller county which is
effecting a firearms transfer - shall provide information
to the DOJ about the actual delivery of a handgun and
mandates that information be provided commencing July 1,
2003. (Changes to Penal Code sections 12071 and 12084)
Adds a new Penal Code section 12083 to delineate how a
person who falls within a class of persons prohibited
from possessing a firearm shall dispose of any previously
possessed firearms.
Designates AB 3707 (Chapter 1180 of the Statutes of 1988)
as the Klehs Safe and Responsible Firearms Transfer Act
of 1988 and AB 991 (Chapter 462 of the Statutes of 1997)
as the Shelley-Alpert-Ducheny Pistol-Revolver
Registration Parity Act of 1997.
Declares legislative intent pertaining to "temporary
lawful possession" provisions of the bill (transporting a
firearm lawfully returned to a place it may be lawfully
kept/taking found or seized firearm to law enforcement)
and to the changes made to Family Code section 6389
("declaratory of existing law").
Makes other related changes to law.
(More)
SB 31 (Peace)
Page 7
COMMENTS
1. Need for This Bill
The author's staff working on this bill indicates that many
of the provisions of SB 31 as amended on January 3, 2000,
are the same as provisions in SB 29 which was vetoed by the
Governor last year.
2. Veto Message Pertaining to SB 29
In his September 28, 1999, veto message, the Governor
indicated the following:
While this bill individually may have merit, it must be
considered in concert with the legislation already signed
into law this year.
Earlier this year, I signed into law five [gun] bills. .
. Taken together, this legislation provides California
with the toughest gun-control laws in the nation - much
stronger than federal law. . . . Law enforcement
agencies must have time to absorb and enforce the major
revisions enacted into law this year. Additionally, I
would like the benefit of feedback from law enforcement
officials, including prosecutors, on the effectiveness of
these bills before burdening them with additional
responsibilities.
Accordingly, I urge the Legislature to withhold passage
of any additional significant firearms-related
legislation during the balance of this session until the
impact of the laws recently enacted can be measured and
analyzed.
3. Author's Amendments to be Proposed in Committee
The author intends to offer the following amendments to
this bill in committee and this analysis reflects these
amendments (which delete provisions of the bill as amended
(More)
SB 31 (Peace)
Page 8
January 3, 2000):
1) On page 12, delete lines 37 to 39, delete pages
13, 14, and 15, and on page 16, delete lines 1 to
11. (Deletes proposed new subdivisions (d) and (e)
of Section 11106.)
2) On page 59, lines 30 through 32, delete: "whether
or not the purchaser desires a registration card
issued pursuant to subdivision (e) of Section 11106
to be issued to him or her,"
4. Issues Raised in This Bill
A number of the provisions in this bill were in SB 29,
vetoed last year. The person staffing this bill provided a
number of detailed comments that are included in the Senate
Floor Analysis of SB 29 as amended September 2, 1999. That
23-page analysis describes the basis for those parts of SB
29 that are now in SB 31, as amended January 3, 2000.
SB 31 does propose changes to law which were not in SB 29,
including the following:
(1) SB 31 would change Family Code section 6389 to
require that any handgun sold, delivered, returned or
transferred by a local law enforcement agency pursuant to
that section - which prohibits a person subject to
specified protective orders from possessing a firearm -
be entered within 10 days into the Automated Firearms
System, as specified, and makes additional changes to
that section. The intent of that change appears to be to
make sure that the handgun is "registered" in the state
automated system, since it has only been required in the
past ten years that private party transactions occur
through a licensed firearms dealer or a sheriff's
department in smaller counties. That section does
require a background check of the recipient before any
firearms may be returned to that person and to determine
whether or not the firearm has been stolen (and whether
(More)
SB 31 (Peace)
Page 9
or not another restraining order may exist which would
prohibit a return of firearms).
(2) This bill deviates from SB 29 with the following
requirement since this bill requires transfer information
to be obtained after July 1, 2003 (SB 29 only contained
the "if required" language): until July 1, 2003, if
required by the Department of Justice, a licensed
firearms dealer - or a sheriff's department in a smaller
county which is effecting a firearms transfer - shall
provide information to the DOJ about the actual delivery
of a handgun and mandates that information be provided
commencing July 1, 2003 . (Changes to Penal Code sections
12071 and 12084)
5. Disposal of Firearms by Persons Prohibited from
Possessing Firearms - Another New Issue
This bill contains a new, not heretofore seen, proposed
Penal Code section 12083 to delineate how a person who
falls within a class of persons prohibited from possessing
a firearm shall dispose of any previously possessed
firearms. There are some circumstances where that issue
may arise and others that are already controlled by
existing law.
Existing law does provide for "return" or confiscation of a
firearm in some specific circumstances. Family Code
section 6389, pertaining to protective orders (and
otherwise amended by this bill), requires that a person
"relinquish" any firearms within his or her possession or
control - possibly with "use immunity" granted if a Fifth
Amendment issue is raised. That section sets time limits
for compliance, requisite notice, method for return, and
allows for one sale of all the firearms in the possession
of a local law enforcement agency.
Penal Code section 12028 specifies a number of
circumstances in which firearms may be confiscated by the
state as a "nuisance" and sets forth procedures for the
(More)
SB 31 (Peace)
Page 10
disposal of those firearms. For example, a firearm used to
commit - or attempt to commit - any misdemeanor or felony
is a nuisance. Section 12028 calls for the surrender of
the nuisance firearms, but does not specify a time limit to
do that. In addition, Public Resource Code section 5008.6
allows for the forfeiture of certain devices, which may
include firearms, used to violate that code.
Penal Code section 12028.5 requires law enforcement to take
temporary custody of any weapon or firearm found at a scene
of domestic violence, as specified. That section also
provides for the return - or disposal - by law enforcement,
including a hearing procedure when law enforcement has
reasonable cause to believe that the return would likely
endanger the victim or other specified persons.
Asset forfeiture provisions involving drug crimes (Health
and Safety Code sections 11469 et seq.) and criminal
profiteering (Penal Code sections 186.12) do allow for some
items to be seized and forfeited by the state which may
include firearms.
This bill adds a new Penal Code section 12083:
(a) Unless another provision of law specifies a
different procedure, not later than 30 days after the
occurrence of any event that renders a person ineligible
to possess a firearm, that person shall do one of the
following:
(1) Cause that firearm to be sold or transferred in
accordance with the provisions of subdivision (d) of
Section 12072 or in accordance with the provisions of an
exemption to subdivision (d) of Section 12072. (Which
requires private transactions to be processed through a
dealer or sheriff's office in a smaller county.)
(2) Cause that firearm to be sold or transferred to
a person licensed pursuant to Section 12071. (A licensed
firearms dealer.)
(More)
SB 31 (Peace)
Page 11
(3) Cause that firearm to be sold or transferred to
a law enforcement agency, which shall treat that firearm
as if it was seized as a nuisance weapon and destroy it
pursuant to Section 12028, utilize it pursuant to Section
12030, or dispose of the firearm pursuant to paragraph
(4).
(4) If agreed to by the individual and the law
enforcement agency, the law enforcement agency shall
retain possession of the firearm while the individual or
his or her designated representative arranges the
disposition of the firearm pursuant this paragraph. The
individual or his or her designated representative, may,
at any time up to one year after the delivery or
surrender of the firearm to the law enforcement agency,
transfer the firearm in accordance with the provisions of
Section 12072 to any person eligible to possess that
firearm. Upon notification in writing of the transaction
by the purchaser or transferee and the seller or
transferor, the law enforcement agency shall, within 10
days, deliver the firearm to a person who is licensed
pursuant to Section 12071 to process the transaction
pursuant to Sections 12071 and 12072. If, at the end of
the one-year period, the firearm has not been
transferred, the law enforcement agency shall cause the
firearm to be destroyed pursuant to Section 12028 or
utilized pursuant to Section 12030.
(b) Any person who is subject to this section shall
not be in violation of any section of law that otherwise
prohibits his or her possession of a firearm, if he or
she transfers the firearm as provided, and within the
time period set forth in subdivision (a).
That proposed new section raises the issue of whether or
not 30 days is an appropriate time-frame in which to allow
disposal of weapons by persons who are otherwise prohibited
from possessing a firearm (and who does not fall within one
of the other circumstances already enumerated in law
concerning the disposal or transfer of firearms. It also
(More)
SB 31 (Peace)
Page 12
may be that that section would create a new "defense"
against a charge of unlawfully possessing a firearm within
that 30-day period.
(More)
SB 31 (Peace)
Page 13
The staff person working on this bill has considered
changing the first sentence of that proposed new section to
instead require that the ineligible person shall "designate
an individual who may take possession of those firearms and
dispose of the same pursuant to this section, if such
person may otherwise possess that firearm." Whether or not
that is a reasonable alternative remains to be seen.
It may be another reasonable alternative to delete that
proposed new section altogether and continue the discussion
at staff level to determine if - and how - such a section
could or should be drafted. It is not clear to committee
staff that the issue addressed by proposed new section
12083 is "ripe" for fixing, notwithstanding that various
staff have commented on this issue in the past.
IS THE LANGUAGE PROPOSED IN THIS BILL IN SECTION 12083
APPROPRIATE TO RESOLVE THE PROBLEM IT IS DESIGNED TO
ADDRESS?
6. Opposition to This Bill
The California Rifle and Pistol Association opposition to
this bill is predicated in part on the provisions of the
bill that would have created a new "registration" card.
However, those provisions have been deleted by the author's
amendments described in Comment #3, above. The CRPA
opposition also includes the following:
The remainder of the bill contains a number of
"adjustments" to the Penal Code and other provisions that
are not critically needed. The firearms sections of the
Penal Code are so convoluted now that most people,
including law enforcement officers on patrol, have a
difficult time understanding them.
CRPA agrees with Governor Davis on this point: time is
needed to enable the more than 32 million people in this
state, and law enforcement which must administer the laws
SB 31 (Peace)
Page 14
that govern them, to assimilate and implement not only
previously existing firearms laws but, especially, the
huge body of new laws that took effect January 1, 2000.
7. Technical Amendment to This Bill
On page 89, lines 20 and 21, the correct reference to the
case cite for People v. Hurtado should be "47 Cal.App.4th
805" since that decision is by the Sixth District of the
California Court of Appeal.
***************