BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
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SB 130 (Hayden)
As Amended April 5, 1999
Hearing date: April 6, 1999
Penal Code
SH:br
FIREARMS -
SAFETY DEVICES
HISTORY
Source: Author
Prior Legislation: SB 1550 (1998) - vetoed
AB 1124 (1997) - vetoed
AB 577 (1995-96) - failed passage, Assembly
Public Safety
Committee
SB 134 (1993) - vetoed
SB 861 (1989) - vetoed
Support: Handgun Control; Los Angeles County District
Attorney; Women Against
Gun Violence; Trauma Foundation; California
Academy of Family Physicians; Legal Community
Against Violence; California Child, Youth,
and Family Association; Violence Prevention
Coalition of Orange County;
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Orange County Citizens for the Prevention of
Gun Violence; California
Psychiatric Association
Opposition:Gun Owners of California
KEY ISSUES
SHOULD A FIREARMS SAFETY ACT BE ADOPTED, AS FOLLOWS:
TO REQUIRE THAT AFTER JANUARY 1, 2002, ALL FIREARMS SOLD, TRANSFERRED, OR
MANUFACTURED IN THIS STATE BE ACCOMPANIED BY BOTH AN APPROVED FIREARMS
SAFETY DEVICE AND SPECIFIED "WARNING" MATERIALS?
TO REQUIRE THAT THE ATTORNEY GENERAL/DEPARTMENT OF JUSTICE SET STANDARDS FOR
SUCH DEVICES AND CERTIFY LABORATORIES TO VERIFY COMPLIANCE OF SUCH DEVICES
WITH THE STANDARDS?
TO SET TIMELINES FOR THE IMPLEMENTATION OF THIS BILL?
TO REQUIRE ALL LAW ENFORCEMENT AGENCIES, EFFECTIVE JANUARY 1, 2000, TO
REPORT TO THE ATTORNEY GENERAL ABOUT INCIDENTS INVOLVING UNINTENTIONAL OR
SELF-INFLICTED FIREARMS WOUNDS TO MINORS?
TO ENACT LEGISLATIVE FINDING ABOUT FIREARMS INJURIES TO CHILDREN?
TO MAKE RELATED CHANGES IN LAW?
PURPOSE
The purpose of this bill is to require that after January 1,
2002, all firearms sold, transferred, or manufactured in
this state be accompanied by both an approved firearms
safety device and "warning" materials; to require that the
Attorney General/Department of Justice set standards for
such devices and certify laboratories to verify compliance
of such devices with the standards; to set timelines for the
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implementation of this bill; to require all law enforcement
agencies, effective January 1, 2000, to report to the
Attorney General about incidents involving unintentional or
self-inflicted firearms wounds to minors; to enact
legislative finding about firearms injuries to children; and
to make related changes.
Existing law generally requires that any sale, loan, or
transfer of a firearm shall be made through a licensed
firearms dealer or, in counties of fewer than 200,000
persons, a sheriff's department that elects to provide such
services. (Penal Code sections 12071, 12072, 12082, 12084)
Existing law requires licensed dealers to follow specified
procedures for such transactions, including that the dealer
initiate a background check, obtain a basic firearms safety
certificate for handgun transactions, and offer to provide
the purchaser or transferee a copy of the Department of
Justice pamphlet on firearms laws. Violations generally
subject the dealer to forfeiture of the dealer's license or
a misdemeanor penalty (some felony penalties apply for
specified violations). (Penal Code sections 12071 and
12072)
Existing law requires that the basic firearms safety
certificate required for all handgun sales and transfers
does involve a course or test which addresses issues of
"safe use, handling, and storage" and childproofing methods
for handguns. (Penal Code section 12803)
Existing law provides criminal penalties for the criminal
storage of a firearm in the first and second degrees, where
a minor sixteen years of age or younger obtains access to a
firearm, and requires licensed dealers to post warnings
about those penalties. (Penal Code sections 12035, 12036,
and 12071(b)(7)(A) and (B))
Existing law states it is the intention of the Legislature
to occupy the whole field of
regulation of the registration or licensing of commercially
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manufactured firearms as encompassed by the provisions of
the Penal Code, and such provisions shall be exclusive of
all local regulations, relating to registration or
licensing of commercially manufactured firearms, by any
political subdivision, as defined. (Government Code
section 53071)
This bill does the following:
1. Enacts legislative findings about the number of
unintentional shootings of minors.
2. Provides that effective January 1, 2002, all firearms
sold or transferred in California, by a licensed firearms
dealer, including private transfers through a dealer, and
all firearms manufactured in this state include or be
accompanied by a firearms safety device approved by the
Attorney General.
3. Requires that all firearms sold or transferred in
California by a licensed firearms dealer, including private
transfers through a dealer, and all firearms manufactured
in this state bear a specific warning label - effective
January 1, 2002.
4. Requires the Attorney General to commence development
of regulations to implement a minimum safety standard for
firearm safety devices to reduce the risk of
firearms-related injuries to children (no date mentioned).
5. Requires that the Attorney General adopt and issue
regulations regarding a final safety standard for firearm
safety devices and report these standards to the
Legislature by January 1, 2001, and that these standards be
effective January 1, 2002.
6. Requires, effective January 1, 2001, that the
Department of Justice (DOJ) shall certify laboratories to
test firearm safety devices in order to verify compliance
with standards (allows fee to laboratory for
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certification).
7. Requires that, on and after July 1, 2001, the DOJ
shall compile, publish, and maintain a roster of approved
safety devices that have met the DOJ's standards.
8. Authorizes the Attorney General after January 1, 2002
to order recall and replacement of any firearm or firearm
safety device that does not conform to the standards and
warnings required by the provisions of this bill, requires
that the licensed manufacturer bring the firearm or the
firearm safety device into conformity, or provide a
replacement.
9. Requires that, effective January 1, 2000, each law
enforcement agency investigating an incident must report to
the AG any incident in which a child eighteen years of age
or younger suffered an unintentional or self-inflicted
gunshot wound in which the child suffered serious injury or
was treated for an injury by a medical professional.
10. Provides that a violation of this bill - by dealers or
manufacturers - is punishable by a fine of $1,000; a second
violation is punishable by a fine of $1,000 and a 30-day
license suspension; and a third violation results in a
permanent loss of a license.
11. Provides an exemption from the requirements of this
bill for peace officers, as specified.
12. Provides that compliance with the requirements set
forth in this article shall not relieve any person from
liability to any other person as may be imposed pursuant to
common law, statutory law, or local ordinance.
13. Provides that these new provisions of law shall be
known and cited as the "Aroner-Scott-Hayden Firearms Safety
Act of 1999."
14. Adds related changes to law.
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COMMENTS
1. Need for This Bill
The author has provided the following background concerning
this bill:
In the years 1987 to 1996, nearly 2,200 children in the
United States under the age of fifteen years died in
unintentional shootings. In 1996 alone, 138 children
were shot and killed unintentionally. Thus on average,
more than eleven children every month, or one child every
three days, were shot or killed unintentionally in
firearms-related incidents.
The United States leads the industrialized world in the
rates of children and youth lost to unintentional,
firearms related death. A 1997 study from the federal
Centers for Disease Control and Prevention reveals that
for unintentional firearm-related deaths for children
under the age of fifteen, the rate in the United States
was nine times higher than in 25 other industrialized
nations.
To prevent unintentional shootings, fifteen of the
nation's firearms manufacturers agreed to sell their
firearms with trigger locks in 1997. However, there are
no standards for these safety devices, and neither the
federal nor state government requires safety devices to
be sold with firearms. In addition, many manufacturers
(including all the California manufacturers) refused to
sign onto this agreement, and the agreement did not cover
the sale of "used" guns. For these reasons, many
firearms sold in California do not come with an adequate
safety device.
The Aroner/Scott/Hayden Firearms Safety Act would do a
great deal to prevent unintentional shootings by:
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a. Creating standards for firearms safety devices
b. Requiring devices sold in California to meet these
standards
c. Mandating that safety devices be included with all
firearms sold to Californians
Eighty-six percent of Americans surveyed support
legislation requiring handguns to be childproof. Over 30
California cities have passed ordinances requiring safety
devices to be sold with firearms. The time has come for
statewide legislation that certifies firearms safety
devices, requires California manufacturers to package
firearms with these devices and mandates that devices be
sold with firearms.
2. Federal Law Referred to by This Bill
Section 12088.2(b) of this bill refers to test protocols
such as the poison prevention packaging standards in Title
16 (commencing with Part 1700) of the Code of Federal
Regulations, which include the following:
1700.15(b)(1) Child-resistant effectiveness of not less
than 85 percent without a
demonstration and not less than 80 percent after a
demonstration of the proper
means of opening such special packaging. In the case of
unit packaging,
child-resistant effectiveness of not less than 80
percent.
(2) Ease of adult opening. (i) Senior-adult test.
Except for products
specified in paragraph (b)(2)(ii) of this section,
special packaging shall have
a senior adult use effectiveness (SAUE) of not less than
90% for the
senior-adult panel test of @ 1700.20(a)(3).
(ii) Younger-adult test. (A) When applicable.
Products that must be in
aerosol form and products that require metal containers,
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under the criteria
specified below, shall have an effectiveness of not less
than 90% for the
younger-adult test of @ 1700.20(a)(4). The senior-adult
panel test of @
1700.20(a)(3) does not apply to these products. For the
purposes of this
paragraph, metal containers are those that have both a
metal package and a
recloseable metal closure, and aerosol products are
self-contained pressurized
products.
Section 1700.20 discusses "child-resistent design" and
"tamper-resistent" features and contains child test
standards and includes number of children to be used in a
test, gender and age distribution, and test procedures to
be used with children, such as description of statements
to be used with each child. The age groups discussed are
in age groups 42-44 months, 45-48 months, and 49-51
months.
Section 12088.3 of this bill requires warning labels to
comply with topography, layout, and color requirements
consistent with Part 1500.121 of Title 16 of the Code of
Federal Regulations, which includes lengthy requirements
for placement, type size, statements, contrast, and other
criteria.
Section 12088.8 of this bill exempts "antique" firearms and
uses a cross-reference to Title 18 U.S.C. Section 921(a)(16):
(16) The term "antique firearm" means --
(A) any firearm (including any firearm with a matchlock,
flintlock, percussion cap, or similar type of ignition
system) manufactured in or before 1898; and
(B) any replica of any firearm described in subparagraph
(A) if such replica --
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(i) is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed
ammunition which is no longer manufactured in the United
States and which is not readily available in the ordinary
channels of commercial trade.
3. Suggested "Technical" Amendments to This Bill :
This bill requires the Attorney General to commence
development of regulations to implement a minimum safety
standard for firearm safety devices to reduce the risk of
firearms-related injuries to children (no date mentioned).
AB 106 states that "Not later than January 1, 2000, " the
Attorney General shall commence that development of
regulations. (Beginning of new Penal Code section
12088.2.)
WOULD IT BE APPROPRIATE TO ADD THAT DATE TO THIS BILL?
Technical changes:
(1) Make word "conclusions" singular in the first
sentence of proposed new Penal Code section 12088.5.
(2) The author indicates that the title of Article
4.5 should be changed from "Child Accident
Prevention Devices" to "Firearms Safety Devices".
4. Issues for Consideration
This bill requires that all firearms sold or transferred
in California by a licensed firearms dealer, including
private transfers through a dealer, and all firearms
manufactured in this state bear a specific warning label
- effective January 1, 2002 (section 12088.1). That
section cross-references section 12088.3 regarding
warning labels. However, that latter section requires
the warning label be part of any packaging or descriptive
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materials that accompany the firearm. The following may
not be clear from those two sections:
Section 12088.1 would appear to require that the
firearm bear the warning rather than the packaging
and descriptive materials while section 12088.3
clearly mentions the packaging and descriptive
materials. Would it be appropriate to instead say in
section 12088.1(b) that the packaging and descriptive
materials shall include the warning labels rather
than the firearm?
Section 12088.1 would appear to include private
transfers of firearms regarding the warning labels;
are such transfers always accompanied by packaging or
descriptive materials? If not, what should the
warning labels be affixed to?
This bill requires that the labeling include the
statement that: "Prevent child access by always keeping
handguns locked away and unloaded." Taken literally,
that would indicate that the weapon should never be not
locked away and loaded for any purpose including
legitimate use. While the general tenor of the statement
appears to be to keep handguns locked away and unloaded
"when not being used" or possibly when the owner is not
present, is that clear from the language which would be
required in the statute? Nor is "locked away"
necessarily part of the overall safety device approach of
this bill; the warning label does not suggest using an
approved firearms safety device. In addition, that
sentence refers to handguns, not long guns. This bill
requires that firearm safety devices be part of all
firearms transfers, not only handgun sales and transfers.
The warning label and descriptive materials requirements
apply to all firearms, not only handguns. Would it be
appropriate that that sentence include all firearms and
not only handguns? Would it be appropriate to instead
require that the warning cite the language in Penal Code
section 12071(b)(7) (A) and (B) pertaining to the
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criminal liability for unsafe storage of handguns and
possibly a statement that the firearm is being sold or
transferred with an approved firearms safety device and
that the persons are urged to store unattended firearms
with the device installed - and unloaded?
SHOULD THIS WARNING LABEL LANGUAGE BE AMENDED?
This bill requires that firearms sold or transferred by
private parties through dealers - required by existing
law - shall include or be accompanied by an approved
firearms safety device after January 1, 2002. Is it
clear from this bill whether or not such devices may be
provided by the transferor or the transferee or whether
the intent is that in each case such devices shall be
made part of the transfer by the dealer? Or who shall
pay for the device? What if the transferee already owns
such a safety device and brings it to the dealer at the
time of the transfer or the transferee delivers the
firearm to the dealer with an approved firearms safety
device?
IS THIS BILL CLEAR ABOUT PRIVATE TRANSFERS?
No where in this bill does it indicate that the firearms
safety device shall actually be functional with the
firearm being transferred nor what will occur, or not, if
there is no approved firearms safety device available
which will function with a given firearm? It may be that
the DOJ will approve a safety device which is simply a
solid metal cable or wire which may be threaded through a
barrel, chamber, or loading area, but it is unclear
whether or not such an item would otherwise qualify as a
firearms safety device to meet the requirements of this
bill?
IS THIS BILL CLEAR ABOUT WHAT DEVICES SHALL BE
TRANSFERRED WITH EACH FIREARM?
Section 12088.4 of this bill allows recalls of firearms
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and safety devices which are subsequently determined not
to conform to the provisions of this bill, including the
warning label requirement of section 12088.3. Should a
firearm or safety device be subject, at the Attorney
General's option, to "recall" for failure to include a
warning label? Pursuant to other provisions of this
bill, that failure would make a dealer or manufacturer
subject to specified penalties. Would it be appropriate
to delete the reference to "warnings" and "Section
12088.3" from section 12088.4? Would that deletion be
appropriate but otherwise make no difference in the bill
since the basic requirements for transfer would also
include both the device and the warning labels? Would it
be appropriate to limit the recall authority to only
devices which are subsequently found to fail to conform
to the standards set by this bill, and not the warning
requirements (which could possibly be remedied by both
subsequently sending the required warnings and
disciplining the errant dealer or manufacturer?)
Section 12088.5 of this bill requires "each law
enforcement agency investigating an incident" where a
minor suffered an unintentional or self-inflicted gunshot
wound, as specified. Since there may be more than one
agency involved in such incidents, should any
consideration be given to specifying either a lead agency
or that each agency shall make the report unless there is
a determination that another law enforcement agency has
already made the required report? In addition, this
requirement will place additional costs and burdens on
local law enforcement, and this bill does not state the
purpose for the requirement or what the AG is to do with
this information. This bill does not require that the AG
establish a data bank or do anything with the material
collected. Is this provision necessary?
IS THE REQUIREMENT THAT LAW ENFORCEMENT AGENCIES REPORT
ON SPECIFIED INCIDENTS CLEAR IN THIS BILL? IS IT
APPROPRIATE TO REQUIRE SUCH REPORTS?
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Section 12088.8(b) states that this bill does not apply to
". . . to the commerce of any firearm intended to be used
by a full-time, paid peace officer as defined in Chapter
4.5
(commencing with Section 830) of Title 3 of Part 2" of
the Penal Code. That exemption would also apply to
reserve officers, as drafted; it would also appear to
include "commerce" with law enforcement agencies which
often are the "purchasers" of peace officer firerams. A
limited number of the peace officers in section 830.1 et
seq . are only allowed to "use" firearms for peace officer
functions while on duty; this bill would appear to exempt
them from the firearm safety device requirements whether
on-duty or off.
Is it intended that that exemption apply to firearms
intended to be used by peace officers for law enforcement
purposes only, or to all firearms, including recreational
firearms such as hunting rifles or shotguns? If the
intent is to cover firearms used as personal back-up
firearms or firearms carried by off-duty by peace
officers with peace officer powers and the authority to
carry firearms off-duty, then would it be appropriate to
exempt weapons "intended to be used by a salaried,
full-time" peace officer "for purposes of law
enforcement"?
SHOULD THE LAW ENFORCEMENT EXEMPTION BE AMENDED IN ANY
WAY?
This bill requires that all firearms manufactured in this
state include or be accompanied by an approved firearms
safety device - and the requisite warning labels - after
January 1, 2002. That provision does not seem to be
limited to those firearms manufactured in this state and
offered for sale or sold to dealers for sale within
California. It may not be clear that California can
place such a requirement on a firearms manufacturer in
this state for firearms shipped out of state for sale by
dealers in other states? The warning label requirements
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provision of this bill does limit that requirement on
both licensed dealers and manufacturers to firearms sold,
transferred, or delivered for sale "in this state."
Section 12088.2(b) of this bill refers to test protocols
such as the poison prevention packaging standards in
Title 16 (commencing with Part 1700) of the Code of
Federal Regulations. While the Attorney General is only
referred to in section 1700.20 for consultation, it may
not be clear how useful those standards would be if the
intent of a "firearms safety device" is to provide a
general impediment to anyone - child or adult - not
having a key, combination, or other "unlocking" mechanism
who would therefore be impeded in the use of the firearm.
Given the Legislative findings in this bill, the
requirement that the Attorney General develop minimum
standards to reduce the risk of firearms injuries to
"children 18 years of age and younger" - although in that
same section there is reference to "children and
unauthorized users," and the reference to section 1700.20
of the CFR, it may even appear that the standard to be
developed is one focussed on minors and not users in
general. (In fact, the poison prevention reference
appears to be to a design requirement that would not
necessarily involve a key, combination, or other
mechanism to overcome, but instead to opening
requirements that are difficult for a child to achieve.
While even a "firearms safety device" may not be
impossible for anyone with a hacksaw or other tools to
overcome, it would appear that most such devices
currently on the market would at least be likely to take
some time, thought, and effort, to remove altogether,
along with damage to the device or firearm itself likely
to be required, e.g., cutting through a trigger-guard.)
SB 1550, which was vetoed last year, did include in its
definition of a firearm "use limitation device" that such
devices were to "hinder" access to the use of a firearm
by unauthorized persons and did include a mention of gun
safes.
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5. Related Legislation
This bill has been amended with language intended to be
identical to AB 106 (Scott, Aroner, and Hayden) which
passed the Assembly Public Safety Committee on March 23,
1999, as amended.
6. Previous Related Legislation
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SB 130 and AB 106 are longer and more complex than previous
efforts to require that firearms be sold in California with
"trigger locks" or similar devices because the bills this
year would create a standards and certification requirement
involving the Attorney General/Department of Justice and
independent laboratories. It has been suggested in
previous years that simply requiring that firearms be
sold/transferred (with handguns, long guns, or both, and
whether peace officers are exempted or not) with "trigger
locks" or similar devices would in some cases result in the
use of a shoddy or ineffective device simply to comply with
the technical requirements of the law. Whether or not that
would be the case, and how extensively it might occur, has
not been proven. It may also not be clear how difficult it
would be to establish the standards called for by this
year's bills, how many firearms safety device manufacturer
would seek certification in California, and how costly that
process would actually be to those manufacturers and the
Attorney General/Department of Justice.
7. Other Firearms Bills Imposing Duties on the Attorney
General/Department of Justice
Other firearms bills this session which would require the
Attorney General/Department of Justice to take on tasks, in
addition to SB 130 and AB 106, include SB 23 (registration
and other elements of the assault weapons program), SB 15
("unsafe handguns" - certification of laboratories to test
handguns and other requirements), and AB 505 (California
Sporting and Self Defense Handgun Safety Standards Act).
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