BILL ANALYSIS SB 31 Page 1 Date of Hearing:June 27, 2000 Counsel: Fredericka McGee ASSEMBLY COMMITTEE ON PUBLIC SAFETY Carl Washington, Chair SB 31 (Peace) - As Amended: June 21, 2000 SUMMARY : Makes specified changes to the to Dangerous Weapons' Control Act. Specifically, this bill : 1)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 (AFS), as specified. 2)Adds additional exemptions to Penal Code Section 12026.2 pertaining to the current 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. 3)Requires that any law enforcement agency that returns custody of any firearm able to be concealed to its lawful owner pursuant to Penal Code Sections 12028 and 12028.5 shall notify Department of Justice (DOJ) of the identifying characteristics of the firearm into the AFS. 4)Clarifies that brokering of firearms transactions through a state-licensed firearms dealer is not required where a person selling, leasing or transferring a firearm is in one of the following situations: a)Where a firearm is loaned by a private investigator, patrol operator, or alarm company operator to their employees where the employee is licensed to carry the firearm in the course and scope of his or her employment. SB 31 Page 2 b)Through cross-referencing to an additional nuisance statute, clarifies that law enforcement agencies that dispose of weapons are exempt from dealer processing statutes. c)When a person turns a firearm into a law enforcement agency that the person finds or takes from a person committing a crime against him or her. d)When a law enforcement agency returns a firearm that is not a nuisance weapon or as part of a trade in on non-nuisance weapons to a state-licensed wholesaler if specified conditions are met: e)When a law enforcement agency transfers non-nuisance weapons to a museum under certain specified conditions. f)When a private entity agency transfers a firearm to a museum, if specified conditions are met. 5)Clarifies that a state firearms dealer's licensee is not required where person selling, leasing, or transferring a firearm is one of the following situations: a)Sales, deliveries, or transfers of firearms by a law enforcement agency to firearm wholesalers, as defined in current state statutes. b)Sales, deliveries, or transfers of firearms by a law enforcement agency to persons licensed as importers or manufacturers of firearms pursuant to the 1968 Federal Gun Control Act. c)The sale, delivery or transfer of firearms by a person who initially obtained title to those firearms as a surviving spouse pursuant to Chapter 1 (commencing Section 13500) of Part 2 of Division 8 of the Probate Code. (Currently, there is a 60-day disposition requirement.) d)Through cross-referencing to an additional nuisance statute, clarifies that law enforcement agencies that dispose of weapons are exempt from dealer licensing statutes. SB 31 Page 3 e)When a person turns a firearm into a law enforcement agency that the person finds or takes from a person committing a crime against him or her. 6)Authorizes DOJ, until February 1, 2003, to require that licensed dealers and sheriff's offices in smaller counties report in a manner and format prescribed by DOJ, the date and time he or she delivered a pistol, revolver, or other firearm capable of being concealed upon the person to the purchaser or transferee of that firearm or the person being loaned that firearm. 7)Mandates, beginning July 1, 2003, that DOJ require that licensed dealers and sheriff's offices in smaller counties report in a manner and format prescribed by DOJ, the date and time he or she delivered a pistol, revolver, or other firearm capable of being concealed upon the person to the purchaser or transferee of that firearm or the person being loaned that firearm. 8)Includes processing costs associated with pistol-revolver delivery records within the current fee authorization given to DOJ to reimburse it for processing costs associated with specified forms and reports related to firearm transactions. 9)Clarifies that peace officers are exempt from certain prohibitions and requirements regarding the sale or transfer of firearms if the officer, within 24 hours after coming into possession of a firearm which is not required to be returned by the officer from whom it was seized during his or her official duties, delivers the firearm to the employing agency. 10)Requires in all cases where a law enforcement agency, in accordance of current law, transfers its ownership of a handgun which is not a nuisance weapon and the firearm is not being transferred by that agency pursuant to existing statutes that includes a reporting requirement, within 10 days of the date that the handgun transferred, the transaction and its detail shall be reported to DOJ using an existing computer system. 11)Requires in any case where a law enforcement agency destroys its non-nuisance-registered handguns, that within 10 days of the date the handguns are destroyed, that fact and its details shall be reported to DOJ using an existing computer system. SB 31 Page 4 12)Requires that a warning sign located on firearm dealers premises indicate that any person who keeps a firearm in a location were a minor under the age of 16 obtains possession and uses it resulting in injury or carries the firearm in a public place is guilty of an alternate misdemeanor/felony, unless the firearm was stored in a locked container or had a trigger-locking device. 13)Corrects a chaptering/cross-referencing error that has the effect of requiring owners of antique handguns to serialize the same before they may legally transfer ownership of the same by applying this requirement to modern handguns (as was originally intended). 14)Adds specified "unloaded locked" container exemptions for transporting firearms where the firearm is being transported pursuant to certain provisions of this bill from the prohibition on carrying concealed handguns. 15)Designates AB 3707 (Klehs), Chapter 1180, Statutes of 1988, as the "Klehs Safe and Responsible Firearms Transfer Act of 1988" and AB 991, (Shelley), Chapter 462, Statutes of 1997, as the "Shelley-Alpert-Ducheny Pistol-Revolver Registration Parity Act of 1997". 16)Declares legislative intent pertaining to the "temporary lawful possession" provisions of this 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"). 17)Declares legislative intent pertaining to procedures for any person who legally acquires a firearm and thereafter becomes a member of a class that is prohibited from possessing that firearm to dispose of a firearm and avoid criminal liability. 18)Requires that DOJ conduct a study and make recommendations to the Legislature regarding the procedure for disposing or relinquishing possession of firearms legally acquired firearms to avoid criminal liability. 19)Makes additional changes to existing statutes. SB 31 Page 5 EXISTING LAW : 1)Provides that a person subject to a domestic violence restraining order may not own or possess any firearm. The court may order a person who is the subject of a domestic violence protective (DVPO) to relinquish possession or control of any firearm during the period covered by the order. Federal law provides that a person subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner cannot lawfully receive, possess, ship, or transport a firearm or ammunition, as specified. (Family Code Section 6389.) 2)Prohibits ownership or possession of firearms when a person is subject to a DVPO in the following manner: a)Enacts an automatic prohibition from owning or possessing a firearm by deleting the requirement of a separate court order. b)Limits judicial discretion to order either a shorter or longer period of time to relinquish a firearm than the current requirement of 72 hours. c)Limits judicial discretion to modify an order requiring that a person subject to a DVPO relinquish all firearms for the duration of the order or orders. d)Clarifies existing law prohibiting owning or possessing a firearm while a DVPO is in effect to include purchasing or receiving. e)Clarifies existing law by consolidating the respective penalties for either purchasing or receiving or owning or possessing a firearm while subject to a DVPO in one statutory provision. (Penal Code Section 12021.) 3)Provides that handguns are centrally registered at time of transfer or sale with DOJ. DOJ 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.) 4)Provides that information in the DOJ registry shall, upon SB 31 Page 6 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 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).) 5)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 that person requests by letter that the Attorney General (AG) store and keep the record electronically, as well as in the record's existing photographic, photostatic, or nonerasable optically stored form, the AG shall do so within three working days of receipt of the request. The AG 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).) 6)Defines "firearm" as including rifles, shotguns, revolvers, pistols, or any other device designed to be used as a weapon from which a projectile is exploded by the force of any explosion or other form of combustion. The definition of a firearm includes the frame or receiver of any such weapon. (Penal Code Section 12001.) 7)Identifies specified exemptions to the current prohibition against carrying a concealed weapon. (Penal Code Section 12026.2.) 8)Requires that firearms and specified weapons used in the commission of a crime, or found in the possession of proscribed classes of individuals, are defined as nuisances and are subject to confiscation by law enforcement agencies. These weapons are retained by the agency and may be sold at public auction to licensed dealers on an annual basis, between July 1 through July 10, if they are determined to have a sporting, recreational, or collectible value. However, the law provides numerous exceptions for alternative distribution. If a weapon is stolen, it is to be returned to its rightful owner once used as evidence. A weapon is to be retained if needed for further criminal proceedings. Any firearm not determined salable for legitimate purposes, or not retained or distributed as specified, is destroyed. (Penal Code Section SB 31 Page 7 12028.) 9)Firearms may additionally be sold to the military, retained by the agency for its use or turned over to the DOJ for criminal justice purposes, or donated to the California National Guard Military Museum. (Penal Code Section 12030.) 10)Requires that any law enforcement agency that retains custody of any firearm pursuant to Penal Code Section 12030 or that destroys a firearm pursuant to Penal Code Section 12028 shall notify DOJ of the retention or destruction, with the notification consisting of a complete description of each firearm, including the name of the manufacturer or brand name, model, caliber, and serial number. (Penal Code Section 12030(e).) 11)Provides that the transfer of all handguns and long guns (rifles and shotguns), except in specified exceptions, 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 DOJ, and handgun safety certificate for handgun transfers are required prior to delivery of the firearm in order 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.) 12)Exempts from the requirement that sales, loans and transfers of firearms be conducted through a dealer or local law enforcement agency those transactions with authorized peace officers, certain operation of law transactions, intra-familial firearm 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.) 13)Requires that California licensed firearm dealers report to the DOJ 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).) SB 31 Page 8 14)Provides for a DOJ 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).) 15)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. Failure to comply with these provisions is a misdemeanor. (Penal Code Sections 12073 and 12077.) 16)Provides federal statutes requiring 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.) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "This bill is the outgrowth of a five-year bipartisan effort to create a truly accurate central handgun registry which serves gun owners, gun dealers and law enforcement. The bill is structured to provide maximum regulatory flexibility to the DOJ consistent with the fee caps and privacy protections contained in current law. At the same time, this bill attempts to address issues associated with SB 218 (Solis) of last year at Senator Solis' request." 2)Background : A similar bill [SB 29(Peace)] - save for the DVPO and DOJ study - passed the Legislature last year and was vetoed by the Governor. The author indicates that they are working with the Governor to see if he will sign this bill. SB 31 Page 9 3)SB 29 Veto Message : 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. 4)Differences Between SB 29 and this bill : a)This bill deviates from SB 29 as this bill requires transfer information to be obtained after July 1, 2003 (SB 29 only contained the "if required" language). Specifically, this bill provides that until July 1, 2003, if required by DOJ, a licensed firearms dealer or a sheriff's department in a smaller county which is effecting a firearms transfer shall provide information to 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.) b)This bill proposes changes to law which were not in SB 29, including the following: This bill would change Family Code Section 6389 so that that section does not apply to firearms owned by a person with a DVPO or temporary restraining order against he or she and requires that any handgun sold, delivered, returned or transferred by a local law enforcement agency pursuant to that Family Code Section 6389 - which prohibits a person subject to specified protective orders from possessing a firearm - be entered within 10 days into the AFS, as specified, and makes additional changes to that section. This bill seeks to ensure that the handgun is "registered" in the state's SB 31 Page 10 automated system, since it has only been required in the past 10 years that private-party transactions occur through a licensed firearms dealer or a sheriff's department in smaller counties. Current law 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 or not another restraining order may exist which would prohibit a return of firearms). 5)Due Process As It Relates To Firearms and Domestic Violence Protective Orders : Currently, Family Code Section 6389 and Penal Code Section 12021 prohibit any person subject to a DVPO from owning a firearm. The Fourteenth Amendment to the federal Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." The California Constitution also contains due process guarantees in Article I, Sections 7 and 15. Procedural due process protects against being unfairly deprived of property or personal rights without notice and the opportunity for a hearing. Notice is also required before property interests are disturbed. Prior to the 1997 decision of the Sacramento County Superior Court in Dayacamos v. Department of Justice (Sacramento No. 96 CS 10471), Welfare and Institutions Code (WIC) Section 8103(f) prohibited a person placed in a mental health facility from owning or possessing firearms for a period of five years. However, the Sacramento Superior Court in Dayacamos invalidated WIC Section 8103(f) as a violation of procedural due process under both the federal and state constitutions. Specifically, the court emphasized that the statute did not provide for any meaningful notice or hearing prior to the deprivation of the ability to possess, own, control, receive or purchase a firearm. Furthermore, the court found that the statutory burden of proof placed on the person subject to the firearm disqualification also violated due process. The court then permanently enjoined the AG from the receipt or processing of information regarding persons placed on 72-hour holds. (WIC Section 5150-5152.) Last year, AB 1587 (Scott), Chapter 578, Chapter 1999, addressed the constitutional infirmities cited by court in Dayacamos with respect to WIC Section 8103(f). This bill removes the ownership prohibition to prevention any due process problems and continues to prohibit possession and purchase. SB 31 Page 11 6)Law Enforcement Agencies Reporting The Acquisition Of Firearms : Current statutes require law enforcement agencies to report firearms and other serialized property that have been reported stolen, recovered, lost, illegally possessed, or suspected of having been used in crimes. (Penal Code Section 11108 et seq.) However, those statutes do not expressly exempt peace officers engaged in undercover or other legitimate activities from current transfer requirements. When peace officers participate in weapons seizures, they may be technically violating Penal Code Section 12072(d). Existing provisions of drug enforcement statutes create an exemption for peace officers and their agents while performing their official duties. (Health and Safety Code Section 11367.) The police may seize contraband; however, once that contraband is no longer used in a criminal trial, it is to be disposed of in accordance with nuisance statutes. 7)Is it Economically Prudent to Require Firearms Dealers to Submit the Dates and Times Handguns are Delivered ? It is likely that there would be significant costs associated with modifying the statewide system and point of sales devices, processing the information and training dealers. It seems that the effort is duplicative in that currently firearm dealers report sales of handguns to DOJ and when handguns are not delivered to the purchaser the dealer formally notifies DOJ. 8)Mandatory DOJ Study Regarding the Disposal of Firearms by Persons Prohibited From Possessing Firearms : There are several statutes that require relinquishment of a firearm by a person in a prohibited class. No specific procedure exists to delineate how a person who falls within a class of persons prohibited from possessing a firearm shall dispose of any previously possessed firearms. For instance, 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. Family Code Section 6389 sets time limits for compliance, requisite notice, method for return, and allows for one sale of all the firearms being held by a local law enforcement agency. Penal Code Section 12028 specifies a number of circumstances in SB 31 Page 12 which firearms may be confiscated by the state as a "nuisance" and sets forth procedures for the disposal of those firearms. For example, a firearm used to commit - or attempt to commit - any misdemeanor or felony is a nuisance. Penal Code Section 12028 calls for the surrender of the nuisance firearms, but does not specify a time limit to do that. 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. Penal Code Section 12028.5 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. In addition, Public Resource Code Section 5008.6 allows for the forfeiture of certain devices, which may include firearms, used to violate that code section. 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 that may include firearms. A number of states with statutory schemes similar to California also have a general procedure to delineate how a person who falls within a class of persons prohibited from possessing a firearm shall dispose of any previously possessed firearms. This bill mandates a DOJ study and report on this issue with a view to creating a general procedure on this issue. 9)Related Legislation : AB 2009 (Runner) was held in the Appropriations Committee on the Suspense File. AB 863 (Honda) is currently pending hearing by the Senate Public Safety Committee. 10)Prior Legislation : SB 29 (Peace) vetoed by the Governor on September 28, 1999; SB 218 (Solis) Chapter 662, Statutes of 1999. REGISTERED SUPPORT / OPPOSITION : Support Association for Los Angeles Deputy Sheriffs, Inc. California Contract Security Guard Association SB 31 Page 13 Opposition None on File Analysis Prepared by : Fredericka McGee / PUB. S. / (916) 319-3744