BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
3
0
2
AB 302 (Beall)
As Amended January 21, 2010
Hearing date: June 15, 2010
Welfare and Institutions Code
SM:mc
FIREARMS: REPORTS OF PROHIBITED PERSONS
HISTORY
Source: Author
Prior Legislation: AB 2696 (Krekorian) - vetoed, 2008
Support: California Brady Campaign Chapters; Legal Community
Against Violence
Opposition:None known
Assembly Floor Vote: No longer relevant - bill amended in
Senate to cover a different subject.
KEY ISSUE
SHOULD SPECIFIED MENTAL HEALTH FACILITIES BE REQUIRED, BY JULY 1,
2012, TO REPORT TO THE DEPARTMENT OF JUSTICE EXCLUSIVELY BY
ELECTRONIC MEANS WHEN A PERSON IS ADMITTED TO THAT FACILITY EITHER
BECAUSE THAT PERSON WAS FOUND TO BE A DANGER TO THEMSELVES OR
OTHERS, OR WAS CERTIFIED FOR INTENSIVE TREATMENT FOR A MENTAL
DISORDER, A SPECIFIED?
(More)
AB 302 (Beall)
PageB
PURPOSE
The purpose of this bill is to require that by July 1, 2012,
specified mental health facilities shall report to the
Department of Justice exclusively by electronic means when a
person is admitted to that facility either because that person
was found to be a danger to themselves or others, or was
certified for intensive treatment for a mental disorder, a
specified.
Existing Federal law states that it shall be unlawful for any
person to sell or otherwise dispose of any firearm or ammunition
to persons if that person is under indictment or has been
convicted of specified crimes, is under a restraining order, has
been committed to a mental institution, and other specified
disqualifying factors. (18 U.S.C. 922.)
Existing California law :
1)Requires that persons who sell, lease, or transfer firearms be
licensed by California. (Penal Code 12070 and 12071.)
2)Sets forth a series of requirements to be state licensed by
the Department of Justice (DOJ), which provides that to be
recognized as state licensed a person must be on a
centralized list of gun dealers and allows access to the
centralized list by authorized persons for various reasons.
(Penal Code 12071.)
3)Requires that firearms dealers obtain certain identifying
information from firearms purchasers and forward that
information, via electronic transfer to DOJ to perform a
background check on the purchaser to determine whether he or
she is prohibited from possessing a firearm. The record of
applicant information must be transmitted to the Department
of Justice in Sacramento by electronic transfer on the date
of the application to purchase. The original of each record
of electronic transfer shall be retained by the dealer in
consecutive order. Each original shall become the permanent
record of the transaction that shall be retained for not
(More)
AB 302 (Beall)
PageC
less than three years from the date of the last transaction
and shall be provided for the inspection of any peace
officer, Department of Justice employee designated by the
Attorney General, or agent of the Federal Bureau of Alcohol,
Tobacco, Firearms, and Explosives upon the presentation of
proper identification, but no information shall be compiled
therefrom regarding the purchasers or other transferees of
firearms that are not pistols, revolvers, or other firearms
capable of being concealed upon the person. (Pen Code
12076.)
4)Requires handguns to be centrally registered at time of
transfer or sale by way of 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 11106(a)
and (c).)
5)Requires that, upon receipt of the purchaser's information,
DOJ shall examine its records, as well as those records that
it is authorized to request from the State Department of
Mental Health pursuant to Section 8104 of the Welfare and
Institutions Code, in order to determine if the purchaser is
prohibited from purchasing a firearm because of a prior felony
conviction or because they had previously purchased a handgun
within the last 30 days, or because they had received
inpatient treatment for a mental health disorder, as
specified. (Penal Code 12076(d)(1).)
6)States that, to the extent funding is available, the
Department of Justice may participate in the National Instant
Criminal Background Check System (NICS), as specified, and, if
that participation is implemented, shall notify the dealer and
the chief of the police department of the city, or city and
county in which the sale was made, or if the sale was made in
a district in which there is no municipal police department,
the sheriff of the county in which the sale was made, that the
purchaser is a person prohibited from acquiring a firearm
under federal law. (Penal Code 12076(d)(2).)
(More)
AB 302 (Beall)
PageD
7)States that if the department determines that the purchaser is
prohibited from possessing a firearm, as specified, it shall
immediately notify the dealer and the chief of the police
department of the city, or city and county in which the sale
was made, or if the sale was made in a district in which there
is no municipal police department, the sheriff of the county
in which the sale was made, of that fact. (Penal Code
12076(d)(3).)
8)States that no person who has been taken into custody, found
to be a danger to himself, herself, or others, and, as a
result, admitted to a specified mental health facility, shall
own, possess, control, receive, or purchase, or attempt to
own, possess, control, receive, or purchase any firearm for a
period of five years after the person is released from the
facility, except as specified. (Welfare and Institutions Code
8103(f)(1).) For each such person, the facility shall
immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the Department
of Justice, containing information that includes, but is not
limited to, the identity of the person and the legal grounds
upon which the person was admitted to the facility. (Welfare
and Institutions Code 8103(f)(2)(A).)
9)No person who has been certified for intensive treatment for a
mental disorder, as specified, shall own, possess, control,
receive, or purchase, or attempt to own, possess, control,
receive, or purchase any firearm for a period of five years
and relevant treatment facilities shall report the identities
of such persons to DOJ, as specified. (Welfare and
Institutions Code 8103(g).)
This bill would require that commencing July 1, 2012, the mental
health care facilities required to report to DOJ persons taken
into custody or treated for mental disorders, as specified
above, shall submit reports pursuant to this paragraph
exclusively by electronic means, in a manner prescribed by the
Department of Justice.
(More)
AB 302 (Beall)
PageE
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
(More)
AB 302 (Beall)
PageF
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The
state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
---------------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
(More)
AB 302 (Beall)
PageG
COMMENTS
1. Need for This Bill
According to the author:
California law prohibits certain persons who have been
admitted to a mental health facility from purchasing
or possessing firearms for a period of five years, and
requires mental health facilities to immediately
report information about such individuals to the DOJ
so that it can conduct background checks on
prospective purchasers of firearms.
Current procedures allow mental health facilities to
submit this information to the DOJ by mail, requiring
manual entry of data into the background check
database. In order to address the volume of records
that must be transferred to the DOJ, facilities often
delay sending the required information-sometimes
waiting weeks or even months, to consolidate their
shipments.
Delayed reporting can have tragic consequences. The
author reports that he was contacted by one
constituent whose son purchased a firearm shortly
after his release from a mental health facility and
used it to commit suicide. The DOJ had not yet
received the information from the facility when it
conducted a background check. This tragedy likely
would have been avoided if this bill, requiring
immediate, electronic submission of information on the
day of admission, had been in effect.
AB 302 would address the problem of delayed reporting
to the DOJ by requiring transmission of this
information electronically in a manner prescribed by
the DOJ. The requirement wouldn't take effect until
July 1, 2012.
(More)
AB 302 (Beall)
PageH
Forms already exist and are in use for on-line
reporting. The only "technology" required is an
internet connection.
(More)
AB 302 (Beall)
PageI
2. Reporting to the Department of Justice of Persons Held Due to
Mental Illness
Under existing law, when a person is taken into custody because they
are considered to be a danger to themselves or others, and is
admitted to a designated institution for a 72-hour evaluation
pursuant to Civil Code section 5150 and 5251, that person is
prohibited from possessing or purchasing a firearm for five years,
as specified. (Welfare and Institutions Code 8103(f)(1).)
Additionally, the institution is required to immediately report the
fact of the person's admission to DOJ on the same day they are
admitted. (Welfare and Institutions Code 8103(f)(2)(A).)
If the person is then found to require intensive treatment, they may
be held in a designated facility for up to 14 days for such
treatment. (Welfare and Institutions Code 5250, et seq.) If this
occurs, the facility is once again required to notify DOJ of that
person's status immediately, stating not only the person's identity
but also the grounds upon which they were certified for the 14-day
"hold."
(More)
Under current law both these reports are required to be submitted
"on a form prescribed by the department." (Welfare and Institutions
Code 8103(f)(2)(A) and 8103(g)(2)(A).) This bill would require
that, beginning July 1, 2012, those reports must be filed
electronically, in a manner prescribed by DOJ. Currently these
reports are submitted by U.S. mail.
California requires firearms transfers, except as specified, to
be conducted through a licensed dealer. When a dealer sells a
firearm, the dealer is required to obtain certain identifying
information from the purchaser and forward that information
electronically to DOJ. DOJ is then required to perform a
background check on the purchaser to determine whether he or she
is prohibited from possessing a firearm. (Penal Code 12076.)
If DOJ determines that the purchaser is prohibited from
possessing a firearm, as specified, it shall immediately notify
the dealer and the chief of the police department of the city,
or city and county in which the sale was made, or if the sale
was made in a district in which there is no municipal police
department, the sheriff of the county in which the sale was
made, of that fact. (Penal Code 12076(d)(3).)
California law imposes a ten-day waiting period between the date
of sale of the firearm and the date of delivery to the purchaser
precisely to allow DOJ to complete the background check and to
notify the dealer not to deliver the firearm if the purchaser is
found to be prohibited from possessing firearms. (Penal Code
12072(c)(1).)
The effect of this bill would be to speed up the delivery of
information to DOJ that a person has been taken into custody as
a potential threat to themselves or others, as specified above,
and is therefore prohibited from possessing a firearm, as
specified.
COULD ELECTRONIC DELIVERY OF THIS INFORMATION PREVENT FIREARMS
SALES TO MENTALLY UNSTABLE PURCHASERS?
(More)
AB 302 (Beall)
PageK
3. Previous Legislation - Governor's Veto Message
AB 2696 (Krekorian) of 2008 also would have required electronic
transfer of information to the DOJ. That bill was vetoed,
however, because of other provisions it contained requiring DOJ
to participate in the National Instant Criminal Background Check
System (NICS). The Governor vetoed that bill stating:
This bill would impose additional costs and workload
on the Department of Justice (DOJ) during a time of
limited state resources. Funds for this purpose have
not been included in the 2008-09 fiscal plan, and
adding requirements to DOJ while also seeking
programmatic reductions due to the state of the
General Fund is inappropriate. In addition, this bill
potentially creates a reimbursable mandate, which
could lead to even more General Fund pressure and
costs.
The costs referred to in the veto message appear to be related
to the requirement that DOJ participate in NICS, not the
requirement for electronic reporting.
***************