BILL ANALYSIS
AB 334
Page 1
Date of Hearing: March 27, 2007
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 334 (Levine) - As Introduced: February 13, 2007
SUMMARY : Creates an infraction for any person who acquires or
re-acquires ownership of a handgun or who reports his or her
ownership of a handgun to the Department of Justice (DOJ) on or
after July 1. 2008 to fail to notify local law enforcement if
the handgun is lost or stolen, as specified. Specifically, this
bill :
1)Provides that any person whose handgun is stolen or
irretrievably lost and who, within five working days after his
or her discovery or knowledge, fails - or within five days
after the date he or she reasonably should have known of the
theft or loss of the handgun, fails - to report the theft or
loss to the local law enforcement agency where the loss or
theft occurred or where the person resides
2)States any person who does not report a lost or stolen handgun
to local law enforcement within five days, as specified, shall
be punished as follows:
a) For the first violation, by a fine not to exceed $100.
b) For a second or subsequent violation, by a fine not to
exceed $250.
3)States any person who reports a lost or stolen handgun to
local law enforcement within five days, as specified, shall be
immune from any civil liability for the illicit use or
possession of the firearm occurring after the theft or loss,
except where the person had prior knowledge of the misconduct
or was negligent with respect to the loss or theft.
4)Requires that no charge be imposed for submitting a report of
a lost or stolen handgun.
5)Requires DOJ, in promulgating forms and reports pursuant to
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any provision of law that requires or allows a person to
report his or her ownership of a handgun to the DOJ, to
include information indicating the reporting requirement for
loss or theft, as specified.
6)Provides that commencing July 1, 2008, the licensee shall, at
the time of delivering a handgun to a person acquiring
ownership or to a person complying with statutes relating to
firearms dealership, provide the person with written notice of
the requirements of reporting loss or theft, as specified in a
format prescribed by the DOJ.
7)Requires the licensee to sign and date an affidavit in
duplicate stating that the person receiving the handgun has
been given notice. The licensee shall additionally obtain the
signature of the person receiving the handgun on the same
affidavit.
8)States the licensee shall retain the original affidavit and
provide the duplicate to the person receiving the handgun.
9)States that this bill shall not be construed as preempting an
existing ordinance or to prevent a local government from
enacting an ordinance that imposes reporting requirements that
are stricter than those specified in this bill.
EXISTING LAW :
1)Provides that an infraction is not punishable by imprisonment
and specified infractions are punishable by a fine of up to
$250. (Penal Code Sections 19.6 and 19.8.)
2)Defines a "handgun" as any pistol, revolver, or firearm
capable of being concealed on the person. (Penal Code Section
12001.)
3)Requires the DOJ to provide a report to the Legislature
regarding the specific types of firearms used in the
commission of crimes. (Penal Code Section 12039.)
4)Provides that any person seeking a license to sell firearms in
California must obtain the following:
a) A valid federal firearms license;
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b) Any regulatory or business license, or licenses,
required by local government;
c) A valid seller's permit issued by the State Board of
Equalization;
d) A certificate of eligibility (CEO) issued by the DOJ. A
COE requires a fingerprint-based, background check to
ensure the applicant may possess firearms and DOJ then
enters the person in DOJ's computer system which alerts the
DOJ if the person subsequently comes into a category of
persons prohibited from possessing firearms; and,
e) A local license to sell firearms issued in the
prescribed format, which may be valid for not more than one
year. (Penal Code Section 1207.)
5)States the general requirement that the sale, loan or transfer
of a firearm (handguns, rifles and shotguns) in California be
conducted through a state-licensed firearms dealer or through
a local sheriff's department in counties of less than 200,000
in population. A 10-day waiting period, background check, and
handgun safety certificate for handgun transfers are required
prior to delivery of the firearm. [Penal Code Sections
12072(c) and (d) and 12084.]
6)Provides that the sale, loan or transfer of firearms in almost
all cases must be processed by, or through, a state-licensed
dealer or a local law enforcement agency with appropriate
transfer forms being used. In those cases where dealer or law
enforcement processing is not required, a handgun change of
title report must still be sent to DOJ. [Penal Code 12072(c)
and (d) and Penal Code Section 12078.]
7)States that, on request, DOJ will register transactions
relating to handguns in the Automated Firearm System Unit for
persons who are exempt from dealer processing or are otherwise
exempt by statute from reporting processes. [Penal Code
Section 12078(l).]
8)Requires handguns to be centrally registered at time of
transfer or sale due to various transfer forms centrally
compiled by the DOJ. DOJ is required to keep a registry from
data sent to DOJ indicating who owns what handgun by make,
model, and serial number and the date thereof. [Penal Code
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Section 11106(a) and (c).]
9)States that law enforcement agencies must promptly report to
DOJ all reports it receives of lost, stolen, and found
property. (Penal Code Sections 11107 and 11108.)
10)States that the DOJ must keep a centralized and computerized
list of all lost, stolen, and found serialized property
reported to DOJ. [Penal Code Section 11106(a).]
11)Provides that every person is responsible not only for the
result of his or her willful acts, but also for an injury
occasioned to another by his or her want of ordinary care or
skill in the management of his or her property or person
except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself or herself.
The design, distribution, or marketing of firearms and
ammunition is not exempt from the duty to use ordinary care
and skill that is required by this section. (Civil Code
Section 1714.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill seeks
to limit the ability of straw purchasers to supply guns to
criminals who cannot legally own firearms. Often, criminals
who are not eligible to own a gun contact a 'straw purchaser'
who can legally purchase a firearm. This straw purchaser buys
a gun, and then sells the gun on the black market to the
person who cannot legally own a gun. When the new owner
commits a crime with the black market gun, it is often traced
back to the straw purchaser. The straw purchaser can then
claim he lost the gun prior to the crime, and law enforcement
is unable to prosecute. This bill would require a gun owner
to report a lost or stolen gun. If the loss is not reported
within five days, the registered owner of the firearm can be
fined. This should significantly curb the ability of
criminals to acquire firearms through straw purchasers. As
gang violence has increased across California, particularly in
the City of Los Angeles, new measures must be adopted to
prevent dangerous criminals from obtaining these deadly
weapons. The current patchwork of lost and stolen regulations
adopted in some municipalities has proven ineffective at
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curbing the ability of straw purchasers to operate in the
black market. A statewide lost and stolen requirement is a
logical policy remedy to curb increasing gang violence in
California."
2)Background : According to the report released in December 2002
by the Americans for Gun Safety Foundation (AGSF), 1,695,482
firearms have been reported stolen to police since 1993 and
are frequently used in later crimes. Of the firearms stolen
over the past 10 years, 687,857 have been recovered and
1,007,625 remain missing. These firearms represent only the
number of those stolen in which owners are able to supply
serial numbers.
The AGSF report, "Stolen Firearms: Arming the Enemy", found
that six states - Alaska, Alabama, Mississippi, Arkansas, New
Mexico, and Georgia - have firearm theft rates of at least
twice the national average. California, Texas, Florida,
Georgia, and North Carolina had the most firearm thefts over
the past 10 years. Between January 1993 and August 2002 - a
period covering slightly less than 10 years, 16.8 firearms
were stolen for every 1,000 households in America. But some
states had firearm theft rates well above the national
average. Alaska had 42.7 firearm thefts per 1,000 households,
followed by Alabama and Mississippi, Arkansas, New Mexico and
Georgia. A 1997 DOJ survey of 33,731 state prison inmates
found that at least 9.9% used a stolen firearm to commit the
offense that they were convicted of. Both Michigan and New
York require gun owners to report lost or stolen firearms.
The lack of a reporting requirement was raised most recently at
an interim hearing before the Assembly Select Committee on Gun
Violence. As noted in a February 5, 2003 report by the Johns
Hopkins Center for Gun Policy and Research, the role of gun
theft in arming criminals and the importance of implementing
mandatory theft reporting policies is indicated by the fact
that surveys of gun owners suggest that approximately 500,000
guns are stolen each year from private citizens.
3)California Registration Requirements : Handgun owners are not
required to possess licenses or to register their firearms
under current California law. Penal Code Section 12026(b)
provides that "[no] permit or license to purchase, own,
possess, keep, or carry either openly or concealed shall be
required of any citizen of the United States or legal resident
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over the age of 18 years who resides or is temporarily within
this state." However, after April 1, 1994, any person seeking
to purchase or receive from some other type of transfer a
firearm was required to obtain a basic firearms safety
certificate after taking a two- to four-hour course of
instruction.
4)Reporting Unregistered Guns : For many years, California has
been a handgun registration state at point of transfer,
including loans. [Penal Code Sections 111106(c) and 12072(c)
and (d).] Since 1998, persons who move to California with
handguns are required to register those handguns with DOJ.
[Penal Code Section 12072(f) (2).] Further, any person who
wishes to register his or her handgun may do so pursuant to
Penal Code Section 12078(l). However, a person is not
required to register a gun in order to maintain legal
possession if he or she acquired the firearm before these laws
were enacted as those provisions were not retroactive. As a
result, there is a group of persons who legally possess
handguns not currently registered. If that person's handgun
is lost or stolen, the person will not be able to provide law
enforcement officials with a serial number for the handgun. A
lost or stolen handgun report without the specific serial
number is not very useful in tracking a handgun that may later
be used in a crime.
5)Federal Penalties : The Federal Government requires persons
who engage in the firearms business to be licensed, including
persons who make, import, repair, loan, sell, or take in trade
firearms as a business. This federal category is greater than
state licensing requirements, which extend only to persons who
loan or transfer title in firearms. To be state licensed, a
federal firearm license is required as a precondition. Former
United States Senator Simon of Illinois was able to
incorporate into the 1993 federal Brady Bill and the 1994
federal crime bill amendments that: (a) required reporting of
gun thefts, and (b) made theft of firearms from federal
firearms licensees a federal crime with a 10-year penalty.
[18 U.S.C. 924(l).] In addition, as a result of the 1990
federal crime bill, almost all forms of firearms theft and
possessing stolen firearms (including receiving stolen
firearms) are prosecutable in federal court when it can be
shown that the firearm (or its frame or receiver) at any prior
time crossed a state or federal boundary.
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These cases would include where the firearm crossed a state or
federal boundary prior to it being stolen. [18 USC 922(j) and
924(k); United States v. Honaker (1993) 5 F.3d 160
(6th.Cir.).]
6)Does this Bill Raise Fifth Amendment Concerns of the Right
Against Self-Incrimination : In United States v. Sullivan
(1926) 274 U.S. 259, the Supreme Court stated that unless a
reporting statute is specifically designed to ferret out a
specific category of criminal activities, failure to file a
report where the statute applies to conventional activities or
items of the public at large is not a defense. While a person
has the privilege not to incriminate oneself, the person may
do so only by affirmatively refusing to answer those questions
which raise a substantial likelihood that an answer (or what
flows from the answer) would tend to incriminate that person.
The refusal to answer must be based on the privilege and
refusal to answer on privilege grounds must be based on a
good-faith assumption that an answer to a particular question
leads to an appreciable risk of prosecution. There is no
requirement that before a prosecution takes place for failure
to answer a specific question a person has a right to a
judicial determination that the privilege is claimed in good
faith. The privilege does not lie (and the testimony is not
immunized or inadmissible) when the defendant invokes the
privilege, but then makes voluntary statements without a grant
of use immunity; a good-faith claim of privilege is a defense
to a prosecution for refusing to answer specific questions.
In this case, there is no indication that this bill is designed
solely to find people who own guns illegally. Rather, the
intent seems to be to track the number of stolen guns in
California and be aware of a gun's lost or stolen status when
a gun shows up in the commission of a crime. It also seems
likely that a person who is using a gun illegally would be
less inclined to report it lost or stolen.
7)Governor's Veto Message of SB 59 : SB 59 (Lowenthal), of the
2005-06 Legislative Session, was a similar bill and vetoed.
The Governor stated, "While I share the Legislature's concern
about the criminal use of lost or stolen weapons, the
ambiguous manner in which this bill was written would make
compliance with the law confusing for legitimate gun-owners
and could result in cases where law-abiding citizens face
criminal penalties simply because they were the victim of a
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crime, which is particularly troubling given the unproven
results of other jurisdictions in California that have passed
similar measures. In addition, this bill may have undesirable
legal consequences as it allows local governments to pass
ordinances that differ from State law, thereby leaving
law-abiding citizens with the task of navigating through a
maze of different or conflicting local laws depending upon the
jurisdiction they are in. A patchwork of inconsistent local
ordinances creates compliance and enforcement problems that
erode the State's ability to effectively regulate handguns
statewide." The language of this bill is the same as SB 59.
8)Arguments in Opposition :
a) The California Rifle and Pistol Association states,
"This bill would impose upon the victim of a theft or a
loss of a handgun substantial fines for not reporting the
theft or loss within five working days of its occurrence or
within five working days of when the person 'should
reasonably have known' of it. This bill would punish the
innocent victim and mandate a 'should reasonably have
known' standard without providing any indication of what
the term means relative to the requirements of this bill.
Firearms are not normally used every day like many other
consumer items and they are stored in out of sight
locations where their disappearance might not become known
for a long time. This bill is deficient by not providing
some sort of guidelines relative to what 'should reasonably
have known' means the purpose of determining when a
violation of this standard has taken place. It is
imperative that firearms laws be uniform statewide. This
bill would make California's already confusing and
difficult to understand firearms laws even more difficult
for lawful individuals and law enforcement to comprehend."
b) The Gun Owners of California, Inc. , states, "This bill
makes failure to report a stolen or irretrievably lost
firearm a crime. This bill also applies the same standards
to parts of a firearm, frames and receivers specifically.
Who can determine what is 'irretrievably lost'? This bill
requires reporting within five days of the time one should
have reasonably known of the firearm theft or loss.
'Reasonably known' cannot be defined, is ambiguous and
unclear. Theft itself speaks to secretive, clandestine,
unknown, silent and unseen. Additionally, this bill
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carries the language that allows local governments to pass
ordinances that differ from state law. You will recall the
Governor's veto message of last year's SB 59 (Lowenthal),
where he termed the bill a 'maze' and a 'patchwork' of
differing and conflicting law dependent on the
jurisdiction, which would 'create compliance and
enforcement problems'. 'Problems,' the Governor went on to
say, 'that would erode the state's ability to be
effective'. This bill makes the victim the criminal. This
bill increases the already cumbersome and burdensome Penal
Code with questionable language. This bill encourages
conflict of laws between cities and the State."
9)Prior Legislation : SB 59 (Lowenthal), of the 2005-06
Legislative Session, would have created an infraction for any
person whose handgun is stolen or irretrievably lost who,
within five working days after his or her discovery or
knowledge, fails - or within five days after the date he or
she reasonably should have known of the theft or loss of the
handgun, fails - to report the theft or loss to local law
enforcement. SB 59 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
Two private citizens
Opposition
California Association of Firearms Retailers
California Rifle and Pistol Association
California Sportsman's Lobby, Inc.
Crossroads of the West Gun Shows
Gun Owners of California, Inc.
National Shooting Sports Foundation, Inc.
Outdoor Sportsmen's Coalition of California
Safari Club International
Safari Club International Foundation
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744