BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2460 (Dickinson) 0
As Amended April 9, 2012
Hearing date: July 3, 2012
Penal Code
SM:mc
UNSAFE HANDGUNS: SALE BY PEACE OFFICERS
HISTORY
Source: None
Prior Legislation: SB 15 (Polanco) - Chapter 248, Statutes of
1999
Support: California Chapters of the Brady Campaign to Prevent
Gun Violence; Law Center to Prevent Gun Violence
Opposition:California Rifle and Pistol Association; National
Rifle Association
Assembly Floor Vote: Ayes 47 - Noes 25
KEY ISSUE
SHOULD A PERSON WHO IS EXEMPTED FROM THE BAN ON BUYING OR SELLING
UNSAFE HANDGUNS, AS SPECIFIED, AND WHO ACQUIRES A HANDGUN THAT IS
NOT ON THE SAFE HANDGUN ROSTER, AS SPECIFIED, BE PROHIBITED FROM
SELLING OR OTHERWISE TRANSFERING OWNERSHIP OF THE HANDGUN TO A
PERSON WHO IS NOT SIMILARLY EXEMPTED?
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PURPOSE
The purpose of this bill is to provide that a person who is
exempted from the ban on buying or selling unsafe handguns, as
specified, and who acquires a handgun that is not on the safe
handgun roster, as specified, shall not sell or otherwise
transfer ownership of the handgun to a person who is not
similarly exempted.
Existing law 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. (Penal
Code �� 27540, 27545, 28050.)
Existing law provides that commencing January 1, 2001, no
"unsafe handgun" may be manufactured or sold in California by a
licensed dealer, as specified, and requires that the Department
of Justice prepare and maintain a roster of handguns which are
determined not to be unsafe handguns. Private party sales (used
or previously owned) and transfers of handguns through a
licensed dealer or sheriff in smaller counties are exempted from
those restrictions. (Penal Code �� 27545, 32000, et seq., �
32110.)
Existing law does the following:
Defines "unsafe handgun" as any pistol, revolver, or
other firearm capable of being concealed upon the person,
as specified, which lacks various safety mechanisms and
does not pass listed tests, as specified. (Penal Code �
31910.)
Requires any concealable firearm manufactured in
California, or intended to be imported for sale, kept for
sale, or offered for sale to be tested within a reasonable
period of time by an independent laboratory, certified by
the state Department of Justice (DOJ), to determine
whether it meets required safety standards, as specified.
(Penal Code � 32010.)
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Requires DOJ, on and after January 1, 2001, to compile,
publish, and thereafter maintain a roster listing all of
the pistols, revolvers, and other firearms capable of
being concealed upon the person that have been tested by a
certified testing laboratory, have been determined not to
be unsafe handguns, and may be sold in this state, as
specified. The roster shall list, for each firearm, the
manufacturer, model number, and model name. (Penal Code �
32015.)
Provides that DOJ may charge every person in
California who is licensed as a manufacturer of
firearms, as specified, and any person in California who
manufactures or causes to be manufactured, imports into
California for sale, keeps for sale, or offers or
exposes for sale any pistol, revolver, or other firearm
capable of being concealed upon the person in
California, an annual fee not exceeding the costs of
preparing, publishing, and maintaining the roster of
firearms determined not to be unsafe, and the costs of
research and development, report analysis, firearms
storage, and other program infrastructure costs, as
specified. (Penal Code � 32015.)
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|Existing law requires that, commencing January 1, 2010, for all | |
|semiautomatic pistols that are not already listed on the roster | |
|pursuant to Section 32015, it is not designed and equipped with | |
|a microscopic array of characters that identify the make, | |
|model, and serial number of the pistol, etched or otherwise | |
|imprinted in two or more places on the interior surface or | |
|internal working parts of the pistol, and that are transferred | |
|by imprinting on each cartridge case when the firearm is fired, | |
|provided that the Department of Justice certifies that the | |
|technology used to create the imprint is available to more than | |
|one manufacturer unencumbered by any patent restrictions. | |
|(Penal Code � 31910(b)(7).) | |
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Existing law provides that any person in California who
manufactures or causes to be manufactured, imports into the
state for sale, keeps for sale, offers or exposes for sale,
gives, or lends any unsafe handgun shall be punished by
imprisonment in a county jail not exceeding one year. (Penal
Code � 32000(a).)
Existing law specifies that this section shall not apply to any
of the following:
The manufacture in California, or importation into this
state, of any prototype pistol, revolver, or other firearm
capable of being concealed upon the person when the
manufacture or importation is for the sole purpose of
allowing an independent laboratory certified by DOJ to
conduct an independent test to determine whether that
pistol, revolver, or other firearm capable of being
concealed upon the person is prohibited, inclusive, and, if
not, allowing the department to add the firearm to the
roster of pistols, revolvers, and other firearms capable of
being concealed upon the person that may be sold in this.
The importation or lending of a pistol, revolver, or
other firearm capable of being concealed upon the person by
employees or authorized agents of entities determining
whether the weapon is prohibited by this section.
Firearms listed as curios or relics, as defined in
federal law.
The sale or purchase of any pistol, revolver, or other
firearm capable of being concealed upon the person, if the
pistol, revolver, or other firearm is sold to, or purchased
by, the Department of Justice, any police department, any
sheriff's official, any marshal's office, the Youth and
Adult Correctional Agency, the California Highway Patrol,
any district attorney's office, or the military or naval
forces of this state or of the United States for use in the
discharge of their official duties. Nor shall anything in
this section prohibit the sale to, or purchase by, sworn
members of these agencies of any pistol, revolver, or other
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firearm capable of being concealed upon the person. (Penal
Code � 32000(b).)
This bill would provide that a person who is exempted from the
ban on buying or selling unsafe handguns, as specified, and who
acquires a handgun that is not on the safe handgun roster, as
specified, shall not sell or otherwise transfer ownership of the
handgun to a person who is not similarly exempted.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
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prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
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(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for this Bill
According to the author:
AB 2460 closes a loophole in the penal code that
allows ineligible individuals to buy "unsafe handguns"
from law enforcement officers through private party
transfers. This has resulted most recently in a
federal investigation into the illegal sale of
handguns and assault weapons by law enforcement
officers in Sacramento County.
2. Safe Handgun Law and the Effect of This Bill
SB 15 (Polanco), Chapter 248, Statutes of 1999, made it a
misdemeanor for any person in California to manufacture, import
for sale, offer for sale, give, or lend any unsafe handgun, as
defined, with certain specific exceptions. SB 15 defined an
"unsafe handgun" as follows: (a) does not have a requisite
safety device, (b) does not meet specified firing tests, and (c)
does not meet a specified drop safety test.
Required Safety Device: The Safe Handgun Law requires a
revolver to have a safety device that, either automatically
in the case of a double-action firing mechanism or by
manual operation in the case of a single-action firing
mechanism, causes the hammer to retract to a point where
the firing pin does not rest upon the primer of the
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cartridge or in the case of a pistol have a positive
manually operated safety device.
Firing Test: In order to meet the "firing requirements"
under the Safe Handgun Law, the manufacturer must submit
three unaltered handguns, of the make and model for which
certification is sought, to an independent laboratory
certified by the Attorney General. The laboratory shall
fire 600 rounds from each gun under certain conditions. A
handgun shall pass the test if each of the three test guns
fires the first 20 rounds without a malfunction, and fires
the full 600 rounds without more than six malfunctions and
without any crack or breakage of an operating part of the
handgun that increases the risk of injury to the user.
"Malfunction" is defined as a failure to properly feed,
fire or eject a round; failure of a pistol to accept or
reject a manufacturer-approved magazine; or failure of a
pistol's slide to remain open after a manufacturer approved
magazine has been expended.
Drop Test: The Safe Handgun Law provides that at the
conclusion of the firing test, the same three
manufacturer's handguns must undergo and pass a "drop
safety requirement" test. The three handguns are dropped a
specified number of times, in specified ways, with a primed
case (no powder or projectile) inserted into the handgun,
and the primer is examined for indentations after each
drop. The handgun passes the test if each of the three
test guns does not fire the primer.
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Current law exempts handguns from the safety testing
requirements that are sold to, or purchased by, the Department
of Justice, any police department, any sheriff's official, any
marshal's office, the Youth and Adult Correctional Agency, the
California Highway Patrol, any district attorney's office, or
the military. Sworn members of those agencies are also exempted
from the ban on buying or selling handguns that are not on DOJ's
"not unsafe" handgun roster. This bill would provide that
anyone who falls under these exemptions and who acquires a
handgun that is not on the "not unsafe" safe handgun roster,
shall not sell or otherwise transfer ownership of the handgun to
a person who is not similarly exempted.
3. Argument in Support
The California Chapters of the Brady Campaign to Prevent Gun
Violence state:
The Brady Campaign was instrumental in the enactment
of the Safe Handgun Law, SB 15, in 1999. Under this
law, a person may not manufacture, import, sell, give
or loan new handgun models that are not listed on the
roster of safe handguns maintained by the California
Department of Justice. For a new model to be listed
on the roster of handguns certified for sale in
California, the handgun must pass firing, safety, and
drop tests and possess certain safety features, such
as a chamber load indicator.
Most law enforcement personnel are exempt from the
requirements of SB 15. Nothing in the law, however,
specifies that an exempt person is prohibited from
transferring an unsafe handgun to a non-exempt person.
This bill would make it illegal to sell, or otherwise
transfer, an unsafe handgun to a non-exempt person.
The need for this bill became clear when it recently
came to light that some exempt persons were engaging
in the sale of unsafe handguns to persons who were not
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exempt as a profit making venture. This practice
circumvents the Safe Handgun Law and puts new models
of unsafe handguns in the hands of the general public.
4. Argument in Opposition
The National Rifle Association states:
In Assembly Bill 2460, the proponents seek to BAN the
simple act of a Californian Law Enforcement officer
selling/ transferring a handgun that they have
purchased to use in relation to their duties.
In California, Law Enforcement officers are allowed to
purchase handguns that have not been tested by the
California Department of Justice for "safety"
qualifications. These same handguns can be owned and
sold/transferred by one civilian to another civilian
through California firearms dealers.
Assembly Bill 2460, strips from law officers, legal
right to transfer their private property to other
Californians including their own family members!
There is no provision in AB2460 for family members to
inherit handguns from a Law Enforcement family member
that has died in the line of duty or passed away after
they have retired.
California's Law Enforcement officers should have the
same right to sell their private property as any
civilian.
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