BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 31| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ UNFINISHED BUSINESS Bill No: SB 31 Author: Peace (D), et al Amended: 8/28/00 Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 4-0, 1/11/00 AYES: Vasconcellos, Burton, Johnston, Polanco SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 SENATE FLOOR : 26-1, 1/27/00 AYES: Alarcon, Alpert, Bowen, Burton, Costa, Dunn, Escutia, Figueroa, Hayden, Hughes, Johnston, Karnette, McPherson, Murray, O'Connell, Ortiz, Peace, Perata, Polanco, Rainey, Schiff, Sher, Solis, Speier, Vasconcellos, Wright NOES: Mountjoy ASSEMBLY FLOOR : 62-14, 8/29/00 - See last page for vote SUBJECT : Firearms: delivery and transfer SOURCE : Author DIGEST : This bill makes a number of changes to the Dangerous Weapons' Control Law, including: authorizing the State Department of Justice to require that licensed dealers and sheriff's offices, in smaller counties, report in a manner and format prescribed by the State Department of Justice, the date and time of delivery of a handgun to the purchaser or transferee of that firearm or the person CONTINUED SB 31 Page 2 being loaned that firearm until July 1, 2003, and to require submission of such information after that date; makes numerous changes to the laws pertaining to firearms, which meet gubernatorial objections of SB 29, which Governor Davis vetoed. Assembly Amendments 1.Provide that Senator Perata and Senator Solis are joint authors on the bill. 2.Require 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 ten days into the Automated Firearms System, as specified. 3.Require that where any agency registered handgun is transferred or destroyed, that information be entered within ten days into the Automated Firearms System, as specified. 4.Correct a chaptering/cross-referencing error which 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). 5.Delete the prohibition on "ownership" of firearms from certain prohibitions involving domestic violence in order to address certain due process and makes conforming changes. 6.Clarify that guns purchased in "gun-buyback" programs are not to be recycled to the general public. 7.Mandate a State Department of Justice study on the issue of how persons who legally acquire guns who subsequently become prohibited possessors can legally dispose of those guns. 8.Clarify that returns of firearms by gunsmiths to their owners will continue to be exempt from certain transfer SB 31 Page 3 requirements. 9.Double-joins this bill with AB 273 (Scott) and AB 1989 (Dickerson). ANALYSIS : 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 order 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, posses, ship, or transport a firearm or ammunition, as specified. 2. Provides that handguns are centrally registered at time of transfer or sale with the State Department of Justice (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. 3. Identifies specified exemptions to the current prohibition against carrying a concealed weapon. 4. Provides for a DOJ Certification 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. This bill: 1.Requires the Judicial Council to provide notice on all SB 31 Page 4 protective orders that the respondent is prohibited from possessing, purchasing, or receiving a firearm. 2.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. 3.Adds an additional exemption to Penal Code Section 12026.2 pertaining to the current prohibition against carrying unloaded handguns in public to include transportation of a firearm in order to comply with requirements in law to dispose of those firearms. 4.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 is transferred, the transaction and its detail shall be reported to DOJ using an existing computer system. 5.Requires in any case where a law enforcement agency destroys its non-nuisance-registered handguns, 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. 6.Provides that Penal Code Section 12071 relative to retail licenses and dealers, and subdivisions (c) and (d) of Penal Code Section 12072 relative to prohibited transfers, shall not apply to the delivery of a firearm to a gunsmith for service or repair, or the return of that firearms to the owner. 7.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. SB 31 Page 5 8.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. 9.Makes additional minor changes to existing firearms statutes. 10.Adds double-jointing language to prevent chaptering problems with AB 1989 (Dickerson) and AB 273 (Scott). Comments (The changes from SB 29 are underlined.) 1. Follow-up Reporting As currently constituted, DOJ has no means of knowing whether a person who applied to acquire a handgun at a gun dealership, after the background check is completed, actually picked up the handgun without an on-site inspection of records. As such, DOJ is pre-registering handguns. The author notes that other states with transfer schemes similar to California have follow-up reporting. The author notes that this part of the 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 author and the bill's supporters assert that the bill is structured to provide maximum regulatory flexibility to DOJ consistent with the fee caps and privacy protections contained in current law. However, unlike SB 29, this bill mandates that as of July 1, 2003, that DOJ institute mandatory follow-up reporting. The author (whose supporters requesting this are gun dealers) assert that there is no reason why DOJ cannot do this as a mandate in all cases after that date given the technology at hand and at the fact that DOJ has developed an E-Mail system that with minimal cost to all concerned can simply address this. SB 31 Page 6 2. Dealer Licensing Issues Involving Estates and the Security Industry The author notes that as an accommodation to various parties. This bill addresses certain problems in dealer licensing statutes that adversely affect small estates, law enforcement agencies, and private security firms. These issues came to light by virtue of AB 295 (Corbett-Wright), Chapter 247, Statutes of 1999. At one point, AB 295 proposed to require that, generally, any one who transfers title to more than five handguns in a calendar year must become a licensed firearms dealer in California. At the present time, any person may sell or transfers, or loans handguns on an infrequent basis without being required to obtain a firearms dealers license if the person engages in the infrequent sale, lease, or transfer of firearms. For pistols, revolvers, and other firearms capable of being concealed upon the person, "infrequent" means less than six transactions per calendar year and "transaction" means a single sale, lease, or transfer of any number of pistols, revolvers, and other firearms capable of being concealed upon the person. While those transactions do not require that a person obtain a firearm dealers license, those transactions must still generally be made through a licensed firearms dealer (or sheriff's department in a smaller county, if a dealer is unavailable) and are subject to both background checks and a ten-day waiting period before delivery. Because of the drafting of the current dealer licensing statutes, AB 295 pointed out certain problems in current law which the participants requested the author to address. Those issues relate to surviving spouses, law enforcement agency trade in of weapons when they trade in non nuisance weapons (nuisance weapons are in their own exemption under current 12070(b)), and security industry loans to authorized armed employees. SB 31 Page 7 As to surviving spouses, it was determined that there is an anomaly in the law. Currently, when someone dies, the executor or administrator of the estate initially takes possession of the firearms without processing the transaction through a dealer. He or she then disposes of them in accordance with the usual through dealer processing requirements. In the case of a handgun, in order to claim the exemption upon taking title from the decedent, the executor or administrator upon taking possession must re-registers the gun in his or her name with DOJ. There is a DOJ form that may be downloaded. When the executor or administrator disposes of estate firearms, he or she is acting under an "operation of law transaction", and per Penal Code Section 12070(b)(1), that executor or administrator is not under the constraints of the "infrequent exemption" for dealer licensure standards. He or she can dispose of as many guns as are part of the estate in whatever manner he or she chooses to do so and not be subject to dealer licensure. In the case of a surviving spouse, the Probate Code creates an expedited simplified probate procedure for the surviving spouse to deal with his or her late spouse's property. The surviving spouse (like the executor or administrator of the estate) may take possession of the firearms without through dealer processing. In the case of a handgun, in order to claim the exemption from through dealer processing upon taking title from the decedent, as is the case with the executor or administrator upon taking possession, the surviving spouse must re-registers the gun in his or her name with DOJ. The same DOJ form referred to above is used here. When the surviving spouses disposes of estate firearms, 12072(d) applies, as is the case with executor or administrators. However, unlike the case where the SB 31 Page 8 executor or administrator disposes of estate firearms in an orderly manner, the surviving spouse is not acting under an "operation of law" transaction for dealer licensure purposes. While the surviving spouse is not covered solely by the "infrequent exemption" for dealer licensure standards, he or she is under a 60-day disposition period set forth in Penal Code Section 12070(b)(3). As such, the surviving spouse proceeding (which is a probate proceeding) only has 60 days to dispose of estate firearms in whatever manner he or she chooses to do so and not be subject to state dealer licensure. That may not be practicable in many cases. In addition, the surviving spouse proceeding is, in fact, a probate proceeding and the surviving spouse, frequently elderly women, should have the same considerations afforded them, as is the case with executors and administrators. The bill was amended to add to the "operation of law" transaction list for dealer licensure purposes , guns disposed of by the surviving spouse where the guns where received from the corpus of the decedent's spouse estate. A conforming change was made to Section 12070(b)(3) to reflect the insertion of surviving spouses into the "operation of law" definition. As to the law enforcement agencies, the bill exempts them from dealer licensure when they sell, transfer, or deliver firearms to wholesalers, and federally licensed importers and manufacturers. Through cross-referencing to an additional nuisance statute, the bill makes clear that in all cases where weapons where legally seized under any nuisance statute that law enforcement agencies which dispose of weapons are exempt from dealer licensing and processing statutes. As to security personnel, loans of firearms to authorized armed employees will be exempt from through dealer processing and dealer licensing by the security company. 3. Law Enforcement Agency Seizures SB 31 Page 9 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. 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. 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. This bill clarifies that peace officers are exempt from prohibitions and requirements regarding the sale or transfer of firearms if the officer, within 24 hours after coming into possession of a firearm during his or her official duties, delivers the firearm to the employing agency. The bill further states that once the agency takes possession of the weapon as outlined in the preceding sentence, it shall be entered into the existing DOJ systems and disposed of in accordance with all current nuisance statutes. After SB 29 went to the Governor, the author's office was contacted by a firearms rights group which pointed out that, as drafted, SB 29's law enforcement seizure 12072(d) exemption (Proposed PC 12078(a)(7)) did not take account of situations where law enforcement agencies legally have to return the gun immediately at the time of initial seizure. The enrolled bill, therefore, created a potential glitch. SB 31 addresses this issue by excluding from its ambit these temporary seizure and returns. Last year, the Governor issued Executive Order D-7-99, which relates to practices of state agencies when they the dispose of seized (i.e., confiscated/nuisance weapons and agency acquired weapons). The Governor's Executive Order called for certain disposition on non-nuisance weapons which are difficulty SB 31 Page 10 to accomplish under current law (particularly as to museums and trading in of weapons). Specifically, the Executive Order calls for the following policy as to non-nuisance weapons: A. returning the firearms to the manufacturer for the purpose of receiving a discount toward the purchase of newer weapons; and B. transfer firearms to a public or private nonprofit museum if the weapons are curios or have museum value. Currently, when a law enforcement agency seizes weapons, as the California Supreme Court noted in Gubler v. Commission on Judicial Performance , (1984) 37 Cal.3d 27, 57-59, the weapons may be used internally by a law enforcement agency, sold to state licensed gun dealers who recycle them in the normal course of affairs, or destroy the same. Current processing rules take account of the same. However, as to non-nuisance weapons, disposition procedures are very difficult to accomplish. Currently, law enforcement agencies can transfer guns directly to: A. State licensed gun dealers (Penal Code Section 12072(d) - but if the transaction does not fall within the infrequent exemption it calls for dealer licensure by the agency). B. Other law enforcement agencies (Penal Code Section 12078(a)(2) - there is no dealer licensure issue). C. Out-of-state federal firearms licensees (Penal Code Section 12078(f) - but if the transaction does not fall within the infrequent exemption it calls for dealer licensure). D. Federally licensed importers and manufacturers (Penal Code section 12078(b) - again if the SB 31 Page 11 transaction is more than infrequent, then the dealer licensure issue applies). As such, the museum provision cannot be accomplished as called for in the Executive Order for the reasons noted below. In addition, most manufacturers and importers have contractual relationships with wholesalers so the Executive Order is not difficult, if not impossible, to implement. The Governor's Executive Order was an out growth of a study he ordered, as well as in response to the recent shooting at a Jewish Community Center in Los Angeles. One of the firearms that the gunman used was a handgun that a small Police Department in Washington State acquired and subsequently sold to a federal firearms dealer in Washington State. That weapon ended up in the hands of the gunman. The tracing of the weapon was very difficult to accomplish, as the agency was not required to file a disposition report. In this state, as a result of legislation enacted in 1997, law enforcement agencies when they acquire handguns in consensual (non-nuisance transactions register them with the DOJ pursuant a special procedure as institutional weapons). When they dispose of the same, except in very rarer circumstances, there is no disposition report required to be filed with DOJ. Reporting is only required now in the following three circumstances: A. When the agency transfers weapons to its retiring officers or when it sells obsolete service weapons to it sworn officer employees when the agency switches to a new weapons system (in that case the agency files the report). B. When the agency transfers firearms in operation of law situations. C. When it transfers gun to state licensed gun dealers. In such cases, the dealer files an acquisition report with DOJ pursuant to Penal Code SB 31 Page 12 Section 12071(b)(18). This bill (as was the case with SB 29) requires a law enforcement agency that when in accordance with current law it 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 ten days of the date that the handgun transferred, the transaction and its detail shall be reported to DOJ using an existing computer system. In addition, at the recent interim hearing on handgun registration and licensing, it was noted that when law enforcement destroys its registered non-nuisance weapons handguns, it is not required to report the same to DOJ. DOJ is currently notified when nuisance weapons are destroyed. This bill imposes that requirement as to destruction in order to keep the data base accurate. In addition, the bill exempts from dealer licensure transfers of firearms by law enforcement agencies to wholesalers, licensed manufactures, and importers. The author deleted from the bill proposed amendments to exempt deliveries of guns to state licensed gun dealers and out-of-state federal firearms licensees in order to comply with the Executive Order's tenor. 4. SB 218 Cleanup Last year, the Legislature passed and the Governor signed SB 218 (Solis), Ch. 663/99. That legislation created a procedure whereby persons subject to domestic violence restraining orders who were prohibited by federal law from possessing guns acquired before they went into effect would dispose of the same and, therefore, be in compliance with state and federal law. After SB 218 was chaptered, certain concerns were raised as to it implementation. As a result, rather than having Senator Solis introduce a new bill to "cleanup" these issues, as an accommodation to her staff, those issues are addressed in this bill. SB 31 Page 13 Specifically, this bill 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 ten days into the Automated Firearms System, as specified, and makes additional changes to that section. The intent of that change is 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 not 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). In addition, the amendments to the Family Code make explicit that law enforcement agencies that do these checks are not thereby not subject to state firearms dealer licensure requirements. Finally, the amendments make clear that if the person who is subject to the order complies with the current procedure on weapons disposition, he or she is exempt from the prohibition on weapons possession that would otherwise apply. SB 218 stated that non-compliance invoked the prohibition but did not make the converse true as well. 5. Mijares Issue Background In 1997, the Legislature enacted and the Governor into law AB 78 (Granlund), Ch. 235/97. AB 78 purported to put into statute in various circumstances exemptions from otherwise applicable prohibitions on possession, carrying and transfer of weapons where a person finds it or takes it from a criminal and promptly transfers the same to a law enforcement agency. AB 78 thus in certain circumstances codifies the Mijares SB 31 Page 14 doctrine (named after People v. Mijares , (1971) 6 Cal.3d 415). The concern has since been raised that placing so-called Mijares exemptions in certain code sections implies legislative withdrawal of the same in others. This bill exempts from "through dealer processing" and "dealer licensure' the transaction commencing with the finding or taking possession of a firearm and the disposition to a law enforcement agency. In addition, to resolve any ambiguity on the issue in other circumstances, the bill, in an uncodified section, states it is not the intent of the Legislature in enacting the Mijares related provisions to expand or narrow the application of current statutes and judicial decisions in other sections of law regarding the doctrine of "temporary lawful possession": recognized in Mijares . 6. Museums As noted above, the Executive Order allows transfer of firearms to Museums. There is no current procedure in a traditional "through-dealer transaction" where handguns can legally be registered to an entity (as opposed to a person). The only circumstance where this is now possible is as to law enforcement institutional weapons. This bill creates an exemption from through dealer processing for law enforcement and private party transfers to museums if a number of conditions are met. These include: A. In the case of a law enforcement agency, the transaction is made by an authorized law enforcement representative of a city, county, city and county, or state or federal government. B. In all cases, the recipient of the weapon is a public or private nonprofit historical society, museum, or institutional collection. C. The entity receiving the firearm is open to the public. SB 31 Page 15 D. The firearm, prior to delivery, is deactivated or rendered inoperable. E. In the case of a law enforcement agency, the firearm is not a nuisance weapon. F. The firearm may, by other provisions of law, be sold, delivered, or transferred to the public at large. G. Prior to delivery, the entity receiving the firearm agrees, in writing, that the firearm will not be restored to operating condition, and will either remain with that entity or, if subsequently disposed of, will be transferred in accordance with the provisions of current law. H. As to law enforcement agencies, within ten days of the date that the firearm is sold, delivered, or transferred to that entity, a complete transaction report is to be filed with DOJ. As to private individuals, an enhanced registration report is filed with DOJ. 7. Antique Issue In 1998, the Legislature passed, and then-Governor Wilson signed into law, AB 2011 (Hertzberg), Chapter 911, Statutes of 1998. Among other provisions, AB 2011 required that, as a condition of transfer, in order to transfer ownership of a handgun it had to be serialized. AB 2011 exempted federally defined antiques from this requirement. This was in AB 2011 throughout its movement to the Governor's Desk. As a result of a chaptering "mix-up" at the end of the 1998 session, the erroneous cross-reference in Penal Code Section 12001 was changed such that the serialization applies to all handguns (including priceless antiques). SB 31 corrects the erroneous cross-reference so that the serialization requirement applies only to modern handguns (i.e., non-federally defined antiques). SB 31 Page 16 8. Miscellaneous This bill corrects an erroneous/out-dated cross-reference to specified "unloaded locked" container exemptions to an authorized governmental agency as part of an authorized voluntary buy-back program. In addition, the bill adds locked container exemptions, acquisition of, receipt of, or disposition of, a firearm by a peace officer while investigating violations of law, as specified; a person who takes possession of a firearm after finding it or after taking it from a person committing a crime against him or her; the sale, loan, delivery, or transfer of a firearm made by any public or private nonprofit historical society, museum, or institutional collection under specified conditions; the delivery, transfer, or sale of firearms made by an authorized law enforcement representative of a local, state, or federal government to a wholesaler under specified conditions; and the transportation of a firearm by a person for a specified purpose. As noted above, this bill amends existing exemptions by adding several provisions regarding gunsmiths and private investigators, patrol operators, and alarm companies to ensure that the specified individuals do not violate existing law. Veto Message Pertaining to SB 29 In his September 18, 1999, veto message, Governor Davis 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 SB 31 Page 17 from law enforcement officials, including prosecutors, on the effectiveness of these bills before burdening them with additional responsibilities." Prior Legislation SB 29 (1999) - Vetoed by the Governor. Passed the Senate Floor on 9/10/99 with a vote of 29-6 (NOES: Haynes, Kelley, Knight, Lewis, Monteith, Mountjoy). SB 218 - Chapter 662, Statutes of 1999. Passed the Senate Floor on 9/10/99 with a vote of 23-9 (NOES: Brulte, Johannessen, Kelley, Knight, Leslie, Lewis, Monteith, Mountjoy, Wright). SB 63 - Chapter 908, Statutes of 1998 AB 2011 - Chapter 911, Statutes of 1998 FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 8/30/00) Association for Los Angeles Deputy Sheriffs, Inc. California Antique Collectors Association California District Attorney Assocation (for Contra Costa County District Attorney) ARGUMENTS IN SUPPORT : According to the author's office, "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. This bill is structured to provide maximum regulatory flexibility to the DOJ consistent with the fee caps and privacy protections contained in current law." NOTE: The California Rifle and Pistol Association, Inc. removed their opposition to the bill when the author accepted their amendments to address their concerns. They are now neutral on the bill. ASSEMBLY FLOOR : AYES: Alquist, Aroner, Bates, Battin, Bock, Brewer, Calderon, Campbell, Cardenas, Cardoza, Cedillo, Corbett, SB 31 Page 18 Correa, Cox, Cunneen, Davis, Dickerson, Ducheny, Dutra, Firebaugh, Florez, Gallegos, Granlund, Havice, Honda, Jackson, Keeley, Knox, Kuehl, Lempert, Longville, Lowenthal, Machado, Maddox, Maldonado, Margett, Mazzoni, Migden, Nakano, Olberg, Robert Pacheco, Papan, Pescetti, Reyes, Romero, Runner, Scott, Shelley, Steinberg, Strom-Martin, Thomson, Torlakson, Villaraigosa, Vincent, Washington, Wayne, Wesson, Wiggins, Wildman, Wright, Zettel, Hertzberg NOES: Aanestad, Ackerman, Ashburn, Baldwin, Baugh, Briggs, House, Kaloogian, Leonard, McClintock, Oller, Rod Pacheco, Strickland, Thompson RJG:cm 8/30/00 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****