BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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8
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AB 1810 (Feuer) 0
As Amended May 28, 2010
Hearing date: June 29, 2010
Penal Code
SM:mc
LONG GUN TRANSFER RECORDS
HISTORY
Source: California Chapters of the Brady Campaign to Prevent
Gun Violence; Legal
Community Against Gun Violence
Prior Legislation: None directly on point
Support: Los Angeles County Sheriff; Chiefs of Police for the
Cities of Chico;
Davis; Emeryville; Fairfield; Fresno; Glendora;
Healdsburg; Orinda; Oxnard; Pinole; Pleasant Hill;
Richmond; Santa Ana; Seal Beach; Stockton; Ventura;
West Sacramento; Twin Cities Police Authority; Brady
Campaign Chapters of Contra Costa, West Contra Costa,
Long Beach, Los Angeles, Nevada County, Oakland/Alameda
County, Orange County, Sacramento Valley, San Fernando
Valley, San Francisco, Sonoma County, Ventura County;
Friends Committee on Legislation of CA; Interfaith
Council of Contra Costa County; Santa Barbara Coalition
Against Gun Violence; Taxpayers for Improving Public
Safety; Violence Prevention Coalitions of Orange County
and Greater Los Angeles; Women Against Gun Violence;
Youth Alive; City of Santa Barbara Police Department;
numerous local elected officials and private
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individuals
Opposition:Sheriffs for the Counties of Kern; Mariposa;
Mendocino; Mono; Nevada; Placer; Riverside; San
Bernardino; Solano; Stanislaus; Tehama; Tuolumne;
California Association of Firearms Retailers;
California Rifle & Pistol Association; California
Outdoor Heritage Alliance; California Sportman's Lobby;
Crossroads of the West Gun Shows; National Rifle
Association; National Shooting Sports Foundation;
Outdoor Sportmen's Coalition of California; Safari Club
International; Phoenix Uniforms; Gun owners of
California; private individuals
Assembly Floor Vote: Ayes 42 - Noes 29
KEY ISSUE
SHOULD FIREARMS REPORTING AND RECORD RETENTION REQUIREMENTS THAT
CURRENTLY APPLY ONLY TO HANDGUNS ALSO APPLY TO LONG GUNS?
PURPOSE
The purpose of this bill is to apply to long guns and handguns
those firearms reporting and record retention requirements that
currently apply only to handguns.
Existing law requires that persons who sell, lease, or transfer
firearms be licensed by California. (Penal Code 12070 and
12071.)
Existing law requires all sales, loans, and transfers of
firearms to be processed through or by a state-licensed firearms
dealer or a local law enforcement agency. (Penal Code
12072(d).)
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Existing law provides that there is a 10-day waiting period when
purchasing a handgun through a firearms dealer. During which
time, a background check is conducted and a handgun safety
certificate is required prior to delivery of the firearm.
(Penal Code 12071 and 12072.)
Existing law requires a person moving to California with a
handgun acquired outside California and who did not receive the
gun from a California-licensed gun dealer to register the gun
with the Department of Justice (DOJ). (Penal Code
12072(f)(2).)
Existing law provides that handguns are centrally registered
with DOJ as part of this process. A violation of these handgun
provisions is an alternate felony/misdemeanor punishable, by up
to one year in the county jail or by imprisonment in the state
prison for 16 months, two or three years. The alternate
felony/misdemeanor provisions that are treated as felonies are
offenses which presumptively mandate a state prison sentence.
(Penal Code 1203(e)(13), 11106, and 12072(c) and (d).)
Existing law permits DOJ to require firearms dealers to charge
firearms purchasers specified fees for a number of specified
costs. (Penal Code 12076.)
Existing law creates numerous exemptions from the requirement
(that sales, loans and transfers of firearms be conducted
through a dealer or local law enforcement agency) transactions
with authorized peace officers, certain operation of law
transactions, and intra-familial firearms transactions. (Penal
Code 12078.)
Existing law requires California residents who are federally
licensed curio and relic firearms collectors who lawfully
acquire a curio or relic handgun outside this state to report
the acquisition of that firearm to the DOJ. (Penal Code
12072(f)(3).)
Existing law requires a person moving into California (with a
handgun acquired outside of California) who did not receive the
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gun from a California licensed gun dealer, to register the gun
with the DOJ by mailing a form. (Penal Code 12072(f)(2).)
Existing law provides that handguns are centrally registered at
time of transfer, importation or sale. (Penal Code 11106.)
Existing law requires DOJ to compile the Prohibited Armed
Persons File to identify via registration records those persons
who are the registered owner of a firearm and subsequently
become ineligible to possess firearms and creates a mechanism to
disarm these persons. (Penal Code 12010 to 12012.)
Existing law requires each sheriff or police chief executive to
submit descriptions of serialized property, or non-serialized
property that has been uniquely inscribed, which has been
reported stolen, lost, found, recovered or under observation,
directly into the appropriate DOJ automated property system for
firearms, stolen bicycles, stolen vehicles, or other property,
as the case may be. (Penal Code 11108(a).)
Existing law states information about a lost or stolen firearm
entered into the automated system for firearms shall remain in
the system until the reported firearm has been found, recovered,
is no longer under observation, or the record is determined to
have been entered in error. (Penal Code 11108(b).)
Existing law provides that in addition to the requirements of
existing law that apply to a local law enforcement agency's duty
to report to DOJ the recovery of a firearm, a police or
sheriff's department shall, and any other law enforcement agency
or agent may, report to the department in a manner determined by
the Attorney General (AG) in consultation with the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) all available
information necessary to identify and trace the history of all
recovered firearms that are illegally possessed, have been used
in a crime, or are suspected of having been used in a crime.
(Penal Code 11108.3(a).)
Existing law states when the DOJ receives information from a
local law enforcement agency pursuant to existing law, it shall
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promptly forward this information to the National Tracing Center
of the federal Bureau of Alcohol, Tobacco, Firearms and
Explosives to the extent practicable. (Penal Code
11108.3(b).)
Existing law states that in order to assist in the investigation
of crime, the prosecution of civil actions by city attorneys as
specified, the arrest and prosecution of criminals, and the
recovery of lost, stolen, or found property, the AG shall keep
and properly file a complete record of all copies of
fingerprints, copies of licenses to carry firearms, information
reported to DOJ pursuant to Penal Code Section 12053, dealers'
records of sales of firearms, specified reports, specified
forms, and reports of stolen, lost, found, pledged, or pawned
property in any city or county of California, and shall, upon
proper application therefore, furnish this information to the
officers as specified. (Penal Code 11106(a).)
Existing law states that except as provided, the AG shall not
retain or compile any information from specified reports for
firearms that are not handguns, or from dealers' records of
sales for firearms that are not handguns. All copies of the
forms submitted, or any information received in electronic form,
for firearms that are not handguns, or of the dealers' records
of sales for firearms that are not handguns shall be destroyed
within five days of the clearance by the AG unless the purchaser
or transferor is ineligible to take possession of the firearm.
All copies of the reports filed, or any information received in
electronic form for firearms that are not handguns shall be
destroyed within five days of the receipt by the AG, unless
retention is necessary for use in a criminal prosecution.
(Penal Code 11106(b)(1).)
Existing law provides that a peace officer, the AG, a DOJ
employee designated by the AG, or any authorized local law
enforcement employee shall not retain or compile any information
from a firearms transaction record for firearms that are not
handguns unless retention or compilation is necessary for use in
a criminal prosecution or in a proceeding to revoke a license
issued. (Penal Code 11106(b)(2).) A violation of this
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subdivision is a misdemeanor. (Penal Code 11106(b)(3).)
Existing law states that notwithstanding Penal Code Section
11106, the DOJ may retain personal information about an
applicant in connection with a claim for a firearm that is not a
handgun to allow for law enforcement confirmation of compliance
with this section. The information retained may include
personal identifying information regarding the individual
applying for the clearance, but may not include information that
identifies any particular firearm that is not a handgun. (Penal
Code 12021.3(h).)
Existing law states that on or after January 1, 1998, within 60
days of bringing a handgun into California, a personal handgun
importer shall do one of the following (Penal Code
12072(f)(2)(A)):
Forward by prepaid mail or deliver in person to DOJ,
a report prescribed by DOJ, including information
concerning that individual and a description of the
firearm in question;
Sell or transfer the firearm in accordance with
specified provisions;
Sell or transfer the firearm to a licensed dealer;
or,
Sell or transfer the firearm to a sheriff or police
department.
Existing law states that if the personal handgun importer sells
or transfers the handgun, as specified, and the sale or transfer
cannot be completed by the dealer to the purchaser or
transferee, and the firearm can be returned to the personal
handgun importer, the personal handgun importer shall have
complied with the provisions of this paragraph. (Penal Code
12072(f)(2)(B).)
This bill applies to long guns and handguns those firearms
reporting and record retention requirements that currently apply
only to handguns.
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This bill deletes the prohibition on peace officers, Department
of Justice (DOJ) employees, and the Attorney General (AG) from
retaining or compiling certain information relating to
transactions regarding firearms that are not handguns, as
specified. A violation of these provisions under current law is
a misdemeanor. The deletion of this misdemeanor prohibition
takes effect on July 1, 2012.
This bill makes conforming changes to the code to reference
"firearms" in lieu of "handguns."
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
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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
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
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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. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
State law requires that records of long gun sales be
destroyed by the CA Department of Justice. The
needless destruction of these records 1) prevents law
enforcement from using the information to quickly
identify the owners of crime guns; 2) prevents law
enforcement in identifying all firearms- not just
handguns- owned by persons who are prohibited by law
from possessing guns; and 3) puts law enforcement at
needless risk when they go to private residences to
respond to an emergency or serve a warrant without the
complete knowledge of what firearms may be stored at
the home.
By treating handguns and long guns alike, AB 1810
would provide several important benefits to law
enforcement. Specifically, it would improve their 1)
----------------------
<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).
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ability to investigate gun crimes; 2) on-the-job
safety; and 3) efforts to disarm prohibited persons.
In 2006, 3,345 people died from firearm-related
injuries in California and an additional 4,491 people
were hospitalized for non-fatal gunshot wounds.<2>
Moreover, between 2005 and 2009, the California
Department of Justice (DOJ) designated 84,123 firearms
as crime guns in the Automated Firearm System (AFS)
database.<3>
Long guns (rifles and shotguns) play a significant
role in our gun violence epidemic. Of the 26,682
crime guns entered into the AFS database in 2009,
11,500 were long guns. DOJ sweeps to seize illegally
possessed firearms have uncovered roughly equal
numbers of illegal handguns (2,143) and long guns
(2,019).<4> Just last year alone, Californians
purchased 253,296 long guns, significantly more than
the 225,000 handguns acquired in the same time
period.<5>
Law enforcement efforts to investigate and prosecute
----------------------
<2>
California Department of Health Services, Epidemiology and
Prevention for Injury Control Branch (EPIC), Firearm Injuries in
California (2009), a
http://www.applications.dhs.ca.gov/epicdata/content/st_firearm.ht
m
<3>.
Data provided by the California Department of Justice, April 6,
2010
<4>.
Data provided by the California Department of Justice, March 4,
2010
<5>.
California Department of Justice, "Dealer's Record of Sale
(Calendar Year Statistics)," provided on March 4, 2010
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gun crimes are aided by the AFS database, which
contains records of all handgun transfers. However,
state law requires that records of long gun sales be
destroyed by DOJ.
AB 1810 would stop the needless destruction of long
gun records, which prevents law enforcement from using
this information to quickly identify the owners of
crime guns. Without these records, law enforcement
must painstakingly trace a recovered firearm from the
manufacturer, through the distributor, to the firearms
dealer who sold the weapon. AB 1810 would also ensure
the integrity of long gun records by removing
reporting and recordkeeping exemptions that currently
apply to certain long gun transfers.
Another significant benefit of long gun record
retention is that it would protect law enforcement
officers who must respond to emergency calls at
private residences. Officers currently could use the
AFS database to check whether a person at a residence
may own any handguns, but they have no way of knowing
whether that person may own any long guns. This
information gap puts law enforcement at needless risk.
Finally, long gun record retention would assist law
enforcement in identifying all firearms - not just
handguns - owned by persons who are prohibited by law
from possessing guns. These critical records would
help law enforcement facilitate firearm relinquishment
by dangerous felons and others who have been convicted
of crimes which render them ineligible to possess
firearms.
Long gun record retention would not adversely impact
law-abiding citizens, but would provide important
benefits to law enforcement.
2. Records of Firearm Sales and Transfers
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California law requires, with specified exceptions, all
transfers of firearms to be conducted through a licensed dealer.
When a person buys any type of firearm, the dealer is required
to obtain personal identification information from the buyer and
to report this to DOJ on the Dealer Record of Sale or DROS form.
This allows DOJ to perform a criminal history check on the
buyer to determine if he or she is prohibited from possessing a
firearm. In the case of handguns, DOJ retains that information,
which becomes part of the Automated Firearms System (AFS)
database. However, current law requires DOJ to destroy records
of long gun sales within five days of the record check unless
the purchaser or transferor is ineligible to take possession of
the firearm. All copies of the reports filed, or any
information received in electronic form for firearms that are
not handguns must be destroyed within five days of the receipt
by the AG, unless retention is necessary for use in a criminal
prosecution. (Penal Code 11106(b)(1).) Failure to comply
with this requirement is a misdemeanor. (Penal Code
11106(b)(3).)
This bill would remove the provision requiring DOJ to destroy
records of long-gun sales as of July 1, 2012.
3. Automated Firearms System Database
The effect of this bill would be to include data regarding sales
of long guns in the AFS database records maintained by DOJ.
Currently, the destruction of these records of long-gun
ownership means law enforcement do not have that information
available to quickly identify the owners of long guns recovered
at a crime scene or otherwise suspected of being used in a
crime. The maintenance of long gun records would help trace the
ownership and history of long gun and presumably thereby help
solve some crimes involving long guns.
WOULD RETENTION OF TRANSFER RECORDS REGARDING LONG GUNS HELP LAW
ENFORCEMENT SOLVE SOME CRIMES INVOLVING FIREARMS?
Lack of access to records of long gun ownership also denies law
enforcement the ability to predetermine, before they respond to
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an emergency or serve a warrant, whether a rifle or shotgun may
be found at the residence. If these records were retained, an
officer responding to a call at a residence or serving a warrant
could access the AFS database and be advised whether the
resident is the registered owner of a rifle or shotgun.
WOULD ACCESS TO THIS INFORMATION HELP PROTECT POLICE?
Analysis of gun crime trace data also helps federal, state, and
local law enforcement to identify firearm traffickers and the
sources of guns used in crimes. Maintaining records of long-gun
sales and transfers could help law enforcement agencies reduce
the illegal trade in firearms.
4. Prohibited Armed Persons File
In 2001, the Legislature created the Prohibited Armed Persons
File to ensure otherwise prohibited persons do not continue to
possess firearms. (SB 950 (Brulte), Chapter 944, Statutes of
2001.) The purpose of the file is to cross-reference persons
who have ownership or possession of a firearm on or after
January 1, 1991, as indicated by a record in the Consolidated
Firearm Information System, and who, subsequent to the date of
that ownership or possession of a firearm, fall within a class
of persons who are prohibited from owning or possessing a
firearm. (Penal Code section 12010(a).) According to DOJ, in
July 2003, the Department of Justice received funding to build a
database of this information - the Armed and Prohibited Persons
System - which became operational in 2006 and made fully
available to local law enforcement in 2007.
SB 950 also mandated that DOJ provide investigative assistance
to local law enforcement agencies to better insure the
investigation of individuals who continue to possess firearms
despite being prohibited from doing so. (Penal Code 12012.)
DOJ states:
California Department of Justice special agents have
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trained approximately 500 sworn local law enforcement
officials in 196 police departments and 35 sheriffs
departments on how to use the database during firearms
investigations. The Department has also conducted 50
training sessions on how to use the vehicle-mounted
California Law Enforcement Telecommunications System
terminals to access the database.
( http://ag.ca.gov/newsalerts/release.php?id=1505&year=2007&month=12 )
In summary, current law establishes a mechanism whereby DOJ
cross-references persons who are prohibited from possessing a
firearm with records of persons who have purchased firearms and
any "prohibited person" who is listed as a firearm owner goes in
the Prohibited Armed Persons File. DOJ and local law
enforcement agencies can utilize that list to investigate
firearms violations and seize firearms from prohibited persons.
However, one significant factor limiting the efficacy of this
system is that DOJ is prohibited by law from retaining records
of long-gun ownership. Therefore, when DOJ compares the list of
firearms owners with the list of prohibited persons, it is
really only able to discover handgun owners that may be in
illegal possession of those weapons. A person who, for example,
is prohibited by law from owning a firearm due to a history of
mental illness could nonetheless be in possession of a rifle or
shotgun and this illegal possession could not be discovered
through a record check and this person would not be included on
the Armed Prohibited Persons list.
WOULD RETENTION OF TRANSFER RECORDS REGARDING LONG GUNS HELP LAW
ENFORCEMENT IDENTIFY LONG GUNS OWNED BY PERSONS WHO ARE
PROHIBITED BY LAW FROM POSSESSING GUNS?
IS THE REQUIRED DESTRUCTION OF THESE RECORDS INCONSISTENT WITH
THE CREATION OF THE PROHIBITED ARMED PERSONS FILE?
5. Argument in Support
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The Sheriff of Los Angeles states:
Under current law, only handgun purchase and transfer
records are retained by the Department of Justice
(DOJ) and entered into the Automated Firearms System
(AFS). Handgun records are an important tool for law
enforcement to trace crime guns, identify and disarm
hundreds of convicted felons, and return stolen
handguns to their rightful owners.
Assembly Bill 1810 would close this loophole in state
law by removing existing exceptions that require the
destruction of long gun sales and transfer records and
require all firearms, including long guns, are input
into AFS. This bill would require the preservation of
records for long guns sold or transferred after July
1, 2012. Data from the California Department of
Justice shows that more than half the guns recovered
from armed and prohibited persons are long guns.
This bill would also increase the safety of law
enforcement by providing better information regarding
the guns we may face. An officer responding to a call
or serving a domestic violence warrant could access
the AFS database and be forewarned of the likelihood
of encountering both handguns and long guns. Many
long guns put officers at greater risk because of
their fire power and ability to shoot through
protective vests. Moreover, even a poorly aimed
shotgun could greatly injure a law enforcement officer
or anyone else.
6. Argument in Opposition
The Sheriff of Kern County states:
I believe there are currently enough firearms laws in
place and this legislation will not help reduce crime,
and will increase administrative costs.
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The fact is that criminals do not register illegally
possessed firearms. Therefore, this legislation will
only increase the red tape burden of shotgun and rifle
ownership on law-abiding taxpayers.
This legislation will increase mandatory procedures
and costs for the small business owner, the licensed
firearms dealers throughout the state who are already
overburdened with federal and state licensing, record
keeping, reporting and inspection requirements. Also,
in terms of costs, the added burden to the criminal
justice system cannot be overlooked. The expense of
implementing this legislation, from maintaining
database records to the investigation, arrest and
prosecution of new criminals created through this law,
will be astronomical when integrated with [the]
current fiscal crisis at hand.
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