BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 449 (Padilla)
As Amended April 2, 2009
Hearing date: April 14, 2009
Business and Professions Code; Penal Code
SM:mc
FIREARMS: REPORTS BY PAWNBROKERS AND SECONDHAND DEALERS
HISTORY
Source: Department of Justice
Prior Legislation: None directly on point
Support: Peace Officers' Research Association of California
(PORAC); California Peace Officers'
Association; California Police Chiefs Association; California
Chapters of the Brady
Campaign to Prevent Gun Violence; Legal Community Against
Violence
Opposition:None known
KEY ISSUE
SHOULD SECONDHAND DEALERS BE REQUIRED TO REPORT ACQUISITION OF
FIREARMS DIRECTLY TO DOJ RATHER THAN TO A LOCAL LAW ENFORCEMENT
AGENCY?
PURPOSE
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The purpose of this bill is to (1) remove the requirement that
secondhand dealers report acquisition of firearms to local law
enforcement on a daily basis and instead require that reporting
go directly to the Department of Justice (DOJ); and (2)
authorize DOJ to retain those records for the purpose of
determining whether the firearm had been reported lost or stolen
and then applying existing law regarding retention of those
records.
Existing law defines a "secondhand dealer" as any person or
entity taking in pawn, accepting for sale of consignment,
trading, etc., any tangible personal property. (Bus. & Prof.
Code 21626.)
Existing law defines a pawnbroker as a "person engaged in the
business of receiving goods in pledge for security for a loan."
(Fin. Code 21000.)
Existing law (subdivisions of Bus. & Prof. Code 21628)
provides that pawnbrokers and secondhand dealers shall report
daily on forms approved or provided by the Department of
Justice, all personal property purchased, taken in trade, taken
in pawn, etc., to local law enforcement. The report shall
include the following information:
The name and current address and identification
of the intended seller or pledgor of the property
(subds. (a)-(b));
A complete and reasonably accurate description of
serialized or nonserialized property (subds.
(c)-(d));
A certification by the intended seller or pledgor
that he or she is the owner of the property, or has
the authority of the owner to sell or pledge the
property and that any information provided is true
and complete (subds. (e)-(f)); and
A legible fingerprint taken from the intended
seller or pledgor (subd. (g)).
Existing law provides that DOJ shall, in consultation with local
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law enforcement, develop clear and comprehensive categories of
property subject to reporting requirements in Business and
Professions Code Section 21628. The categories shall be
incorporated by secondhand dealers and coin dealers (Bus. &
Prof. Code 21626) for reporting requirements. DOJ and local
law enforcement, in consultation with secondhand dealer and coin
dealer representatives, shall develop a standard statewide
format for electronic reporting. Twelve months after the format
and the categories have been developed. Each secondhand dealer
and coin dealer shall make reports electronically. Until that
time, each secondhand dealer and coin dealer may either continue
to report this information using existing forms and procedures
or may begin electronically reporting this information under the
reporting categories and using the new format when it has been
developed. (Bus. & Prof. Code 21628.)
Existing law requires a secondhand dealer to make acquired
property available for law enforcement inspection for specified
time periods. (Bus. & Prof. Code 21636.)
Existing law provides that effective January 1, 2003, the
purchaser of a firearm shall provide his or her right thumbprint
as part of the Dealers' Record of Sale (DROS form) in a manner
prescribed by the California Department of Justice. No
exception to this requirement shall be permitted except by
regulations adopted by the department. (Pen. Code 12077,
subds. (b)(2) and (c)(2).)
Existing law provides that the original register of firearm
sales shall be retained by the dealer in consecutive order.
Each book of 50 originals shall become the permanent register
and retained for not less than three years from the date of the
last transaction and shall be available 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, and Firearms upon the presentation of proper
identification, but no information shall be compiled there from
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, subd. (a)(2).)
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Existing law provides 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 Attorney General shall keep and properly file a complete
record of all copies of fingerprints, copies of licenses to
carry firearms, as specified, dealers' records of sales of
firearms, and reports of stolen, lost, found, pledged, or pawned
property in any city or county of this state, and shall, upon
proper application therefore, furnish this information to the
officers referred to in Section 11105. (Penal Code 11106(a).)
Existing law provides that the Attorney General shall not, with
specified exceptions, retain or compile any information
regarding firearms that are not handguns. All copies of the
forms submitted, or any information received in electronic form
for firearms that are not handguns shall be destroyed within
five days of the clearance by the Attorney General, unless the
purchaser or transferor is ineligible to take possession of the
firearm or retention is necessary for use in a criminal
prosecution. (Penal Code 11106(b)(1).)
Existing law provides that a peace officer, the Attorney
General, a Department of Justice employee designated by the
Attorney General, or any authorized local law enforcement
employee shall not retain or compile any information from a
firearms transaction record, as defined, 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 pursuant to Section 12071. (Penal Code
11106(b)(2).)
This bill amends the existing requirement that secondhand
dealers report daily all property purchased, taken in trade,
taken in pawn, etc., to local law enforcement to exclude
firearms from that reporting requirement and instead requires
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that secondhand dealers report daily any firearms purchased,
taken in trade, taken in pawn, etc., directly to DOJ in a format
prescribed by DOJ.
This bill provides that DOJ may retain secondhand dealer firearm
reports to determine whether a firearm taken in by a secondhand
dealer has been reported lost or stolen. Following the return
or transfer of a firearm by a secondhand dealer, the existing
provisions of law regarding retention of these records will
apply.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
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correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
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<2> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
COMMENTS
1. Need for This Bill
According to the author:
Currently, secondhand dealers/pawnbrokers are exempt
from reporting firearms acquisitions directly to the
DOJ. Instead, pawnbrokers and secondhand dealers fill
out a form, which is sent to local law enforcement
agencies.
In theory, local agencies log in the information they
receive. In reality, the DOJ has found that due to
limited resources, many local law enforcement agencies
are unable to enter the firearms information into the
DOJ's Automated Firearms System. As a result
inaccurate owner information sometimes appears in the
system. This bill would require that secondhand
dealers and pawnbrokers report the acquisition of
firearms directly to the DOJ.
2. Secondhand Dealers and Gun Transaction Records
Currently, secondhand dealers, which includes pawnbrokers, are
required to report to their local law enforcement agency, every
piece of personal property they acquire daily, or on the first
working day after receipt or purchase of the property. (Bus. &
Prof. Code 21628.) This includes firearms. For this reason,
secondhand dealers are specifically exempted from reporting
receipt of firearms to DOJ, as is required of all other licensed
firearms dealers. (Pen. Code 12071(b)(18)(B)(iii).) This
places the burden on local law enforcement agencies to then
report all firearm acquisitions by secondhand dealers to DOJ.
In theory, the local agencies are supposed to log all the
information received regarding secondhand dealers' receipt of a
firearm (through the California Law Enforcement
Telecommunications System or CLETS) into DOJ's Automated
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Firearms System (AFS) database. Additionally, local law
enforcement agencies should check to see if the firearm is
already listed in AFS as being reported lost or stolen.
Unfortunately, DOJ has found that due to limited resources, many
law enforcement agencies are unable to enter the firearms
information into the AFS.
When a secondhand dealer transfers a firearm to a customer, the
secondhand dealer must report that transaction to DOJ by way of
the Dealers' Record of Sale or DROS form. When firearms
transfers are reported to DOJ by any firearms dealer, including
secondhand dealers, the department runs a background check on
the buyer to determine whether that person is prohibited by law
from owning a firearm, and whether that firearm has been
reported lost or stolen. Anyone buying a firearm must wait 10
days before taking possession of the firearm to allow DOJ to
conduct these record checks.
DOJ has sponsored this bill to eliminate the cumbersome and
inefficient process of requiring secondhand dealers to report
firearm acquisitions to local law enforcement officials who then
must themselves turn around and report that information to DOJ.
This bill would, in essence, cut out the middleman and require
secondhand dealers, who are also licensed firearms dealers, to
report firearms transactions directly to DOJ. Upon receipt of
this information, DOJ would then check the AFS database to
determine whether the firearm has been reported lost or stolen.
SHOULD SECONDHAND DEALERS BE REQUIRED TO REPORT ACQUISITION OF
FIREARMS DIRECTLY TO DOJ RATHER THAN TO A LOCAL LAW ENFORCEMENT
AGENCY?
WILL THIS RESULT IN MORE OF THESE TRANSACTIONS ACTUALLY BEING
REPORTED TO DOJ?
WILL THIS ASSIST LOCAL LAW ENFORCEMENT AGENCIES BY RELIEVING
THEM OF THIS DUTY?
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