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.








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             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.









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             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.








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          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.









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           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  








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            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  








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            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).) 









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          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.









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           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  








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               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.









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           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  








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            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








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           Opposition  

          None on File
           
          Analysis Prepared by  :    Fredericka McGee / PUB. S. / (916)  
          319-3744