BILL ANALYSIS �
SB 819
Page 1
Date of Hearing: June 21, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 819 (Leno) - As Amended: April 14, 2011
SUMMARY : Provides that the Department of Justice (DOJ) may use
dealer record of sale (DROS) funds for costs associated with its
firearms-related regulatory and enforcement activities regarding
the possession, as well as the sale, purchase, loan, or
transfer, of firearms, as specified. Specifically, this bill :
1)Authorizes the using the DOJ purchaser fee to fund the DOJ's
firearms-related regulatory and enforcement activities related
to the possession of firearms.
2)Makes the following findings and declarations:
a) California is the first and only state in the nation to
establish an automated system for tracking handgun and
assault weapon owners who might fall into a prohibited
status.
b) DOJ is required to maintain an online database, which is
currently known as the "Armed Prohibited Persons System"
(APPS), which cross-references all handgun and assault
weapon owners across the state against criminal history
records to determine persons who have been, or will become,
prohibited from possessing a firearm subsequent to the
legal acquisition or registration of a firearm or assault
weapon.
c) The DOJ is further required to provide authorized law
enforcement agencies with inquiry capabilities and
investigative assistance to determine the prohibition
status of a person of interest.
d) Each day, the list of armed prohibited persons in
California increases by about 15 to 20 people. There are
currently more than 18,000 armed prohibited persons in
California. Collectively, these individuals are believed to
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be in possession of over 34,000 handguns and 1,590 assault
weapons. The illegal possession of these firearms presents
a substantial danger to public safety.
e) Neither the DOJ nor local law enforcement has sufficient
resources to confiscate the enormous backlog of weapons,
nor can they keep up with the daily influx of newly
prohibited persons.
f) A DROS fee is imposed upon every sale or transfer of a
firearm by a dealer in California. Existing law authorizes
the DOJ to utilize these funds for firearms-related
regulatory and enforcement activities related to the sale,
purchase, loan, or transfer of firearms pursuant to any
provision listed in Penal Code Section 16580, but not
expressly for the enforcement activities related to
possession.
g) Rather than placing an additional burden on the
taxpayers of California to fund enhanced enforcement of the
existing armed prohibited persons program, it is the intent
of the Legislature in enacting this bill to allow the DOJ
to utilize the DROS Account for the additional, limited
purpose of funding enforcement of the APPS.
EXISTING LAW :
1)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. Section 922.)
2)Requires that persons who sell, lease, or transfer firearms be
licensed by California. (Penal Code Sections 26500 and 26700,
et seq.)
3)Sets forth a series of requirements to be state licensed by
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 Section 26700.)
4)Requires that firearms dealers obtain certain identifying
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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 DOJ 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 less
than three years from the date of the last transaction and
shall be provided for the inspection of any peace officer, DOJ
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. (Penal Code Sections 28160 to
28220.)
5)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 Section
11106(a) and (c).]
6)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 California Department of
Mental Health (DMH) pursuant to Welfare and Institutions Code
(WIC) Section 8104, 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 Section 28220.)
7)States that, to the extent funding is available, DOJ 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
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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 Section 28220.)
8)States that 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 Section 28220.)
9)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. �WIC Section 8103(f)(1).] For
each such person, the facility shall immediately, on the date
of admission, submit a report to DOJ, on a form prescribed by
DOJ, 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. �WIC Section
8103(f)(2)(A).]
10)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. �WIC Section 8103(g).]
11)DOJ may require the dealer to charge each firearm purchaser a
fee not to exceed $14, except that the fee may be increased at
a rate not to exceed any increase in the California Consumer
Price Index as compiled and reported by the Department of
Industrial Relations. This fee, known as the Dealer Record of
Sale or DROS fee, shall be no more than is necessary to fund
the following:
a) DOJ for the cost of furnishing this information.
b) DOJ for the cost of meeting its obligations to notify
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specified persons that they are prohibited from owning
firearms due to their receiving inpatient treatment for a
mental disorder.
c) Local mental health facilities for state-mandated local
costs resulting from the specified reporting requirements.
d) The DMH for the costs resulting from the specified
requirements imposed.
e) Local mental hospitals, sanitariums, and institutions
for state-mandated local costs resulting from the specified
reporting requirements.
f) Local law enforcement agencies for state-mandated local
costs resulting from the notification requirements
regarding service of restraining orders, as specified.
g) Local law enforcement agencies for state-mandated local
costs resulting from the notification requirements
regarding specified persons prohibited from owning firearms
due to their receiving inpatient treatment for a mental
disorder.
h) For the actual costs associated with the electronic or
telephonic transfer of information, as specified.
i) The Department of Food and Agriculture for the costs
resulting from the notification provisions regarding
importing firearms into the state, as specified.
j) DOJ for the costs associated with public education
requirements regarding importation of firearms into
California, as specified.
aa) DOJ for the costs associated with funding DOJ
firearms-related regulatory and enforcement activities
related to the sale, purchase, loan, or transfer of
firearms pursuant to any provision listed in Section 16580.
�Penal Code Section 28225(a) and (b).]
12)The fee established pursuant to this section shall not exceed
the sum of the actual processing costs of the DOJ, the
estimated reasonable costs of the local mental health
facilities for complying with the reporting requirements
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imposed as specified, the costs of DMH for complying with the
requirements imposed as specified, the estimated reasonable
costs of local mental hospitals, sanitariums, and institutions
for complying with the reporting requirements imposed as
specified, the estimated reasonable costs of local law
enforcement agencies for complying with the notification
requirements, as specified, the estimated reasonable costs of
local law enforcement agencies for complying with the
notification requirements imposed as specified, the estimated
reasonable costs of the Department of Food and Agriculture for
the costs resulting from the specified notification
provisions, the estimated reasonable costs of the DOJ for the
costs associated with public education requirements regarding
importation of firearms into California, and the estimated
reasonable costs of DOJ firearms-related regulatory and
enforcement activities related to the sale, purchase, loan, or
transfer of firearms pursuant to specified provisions of law
pertaining to firearms. �Penal Code Section 28225(c).]
13)DOJ may charge a fee sufficient to reimburse it for each of
the following but not to exceed $14, except that the fee may
be increased at a rate not to exceed any increase in the
California Consumer Price Index as compiled and reported by
the Department of Industrial Relations:
a) For the actual costs associated with the preparation,
sale, processing, and filing of forms or reports required
or utilized pursuant to any provision listed in Penal Code
Section 16585(a).
b) For the actual processing costs associated with the
submission of a DROS to the DOJ.
c) For the actual costs associated with the preparation,
sale, processing, and filing of reports utilized pursuant
to Penal Code Section 26905, 27565, or 28000, or
27560(1)(a).
d) For the actual costs associated with the electronic or
telephonic transfer of information pursuant to Penal Code
Section 28215.
e) Any costs incurred by the DOJ to implement this section
shall be reimbursed from fees collected and charged
pursuant to this section. No fees shall be charged to the
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dealer pursuant to Penal Code Section 28225 for
implementing this section. (Penal Code Section 28230.)
14)All money received by the DOJ pursuant to this article shall
be deposited in the DROS Special Account of the General Fund,
which is hereby created, to be available, upon appropriation
by the Legislature, for expenditure by the DOJ to offset the
costs incurred pursuant to any of the following:
a) This article.
b) Annual inspections of permitted destructive devices.
(Penal Code Section 18910.)
c) Regulating firearms transaction between licensed
dealers. (Penal Code Section 27555.)
d) Conduct public education and notification programs
regarding importation of firearms into California. �Penal
Section 27560(d) and (e).]
e) Maintain a list of federally licensed firearms dealers
in California exempt from the state dealer licensing
requirements, as specified. �Penal Code Section 28450 et
seq.]
f) Inspection of inventory of licensed firearms dealers.
(Penal Code Section 31110.)
g) Public education and notification programs regarding
registration of assault weapons. (Penal Code Section
31115.)
h) Retesting of handguns on the not unsafe handgun list, as
specified. �Penal Code Section 32020(a).]
i) Inspection of inventories of machine guns held under
permit. (Penal Code Section 32670.)
j) Inspection of inventories of short-barreled shotguns and
rifles held under permit. (Penal Code Sections 33320 and
28235.)
15)States the Attorney General shall establish and maintain an
online database to be known as the Prohibited Armed Persons
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File. 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
Firearms 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. The information contained in the Prohibited Armed
Persons File shall only be available to specified entities
through the California Law Enforcement Telecommunications
System, for the purpose of determining if persons are armed
and prohibited from possessing firearms. (Penal Code Section
30000.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : "SB 819 will amend the Penal Code to
allow the DOJ to use existing Department resources to provide
enhanced enforcement of the APPS which has identified over
36,000 handguns and assault weapons in the hands of more than
18,000 prohibited persons such as convicted felons and the
mentally ill.
"Recently, the New York Times reported on California's Armed
Prohibited Persons File and the problems it seeks to address:
"By law, Roy Perez should not have had a gun three years ago
when he shot his mother 16 times in their home in Baldwin
Park, Calif., killing her, and then went next door and killed
a woman and her 4-year-old daughter.
"Mr. Perez, who pleaded guilty to three counts of murder and was
sentenced last year to life in prison, had a history of mental
health issues. As a result, even though in 2004 he legally
bought the 9-millimeter Glock 26 handgun he used, at the time
of the shootings his name was in a statewide law enforcement
database as someone whose gun should be taken away, according
to the authorities.
"The case highlights a serious vulnerability when it comes to
keeping guns out of the hands of the mentally unstable and
others, not just in California but across the country.
"In the wake of the Tucson shootings, much attention has been
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paid to various categories of people who are legally barred
from buying handguns - those who have been 'adjudicated as a
mental defective,' have felony convictions, have committed
domestic violence misdemeanors and so on. The focus has
almost entirely been on gaps in the federal background check
system that is supposed to deny guns to these prohibited
buyers.
"There is, however, another major blind spot in the system.
"Tens of thousands of gun owners, like Mr. Perez, bought their
weapons legally but under the law should no longer have them
because of subsequent mental health or criminal issues. In
Mr. Perez's case, he had been held involuntarily by the
authorities several times for psychiatric evaluation, which in
California bars a person from possessing a gun for five years.
"Policing these prohibitions is difficult, however, in most
states. The authorities usually have to stumble upon the
weapon in, say, a traffic stop or some other encounter, and
run the person's name through various record checks.
"California is unique in the country, gun control advocates say,
because of its computerized database, the APPS. It was
created, in part, to enable law enforcement officials to
handle the issue pre-emptively, actively identifying people
who legally bought handguns, or registered assault weapons,
but are now prohibited from having them.
"The list had 18,374 names on it as of the beginning of this
month - 15 to 20 are added a day - swamping law enforcement's
ability to keep up. Some police departments admitted that
they had not even tried.
"SB 819 addresses the critical need to enforce existing firearm
prohibition laws. Increased confiscation of unlawfully
possessed firearms could result in the prevention of future
crimes and potentially major future cost savings associated
with avoided prosecution and incarceration. This bill is
strongly supported local law as well organizations working to
reduce firearms violence in our communities."
2)Background : According to the background provided by the
author, SB 819 will amend the Penal Code to allow DOJ to use
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existing DOJ resources to provide enhanced enforcement of the
APPS which has identified over 36,000 handguns and assault
weapons in the hands of more than 18,000 prohibited persons
such as convicted felons and the mentally ill. SB 819
addresses the critical need to enforce existing firearm
prohibition laws.
Enforcement of existing firearms laws are a critical component
of the state's responsibility to ensure public safety.
However, there is a huge blind spot in the system. Tens of
thousands of gun owners bought their weapons legally, but
under law should no longer have them due to subsequent mental
health or criminal issues. In fact, every day, the list of
armed prohibited persons in California grows by about 15 to 20
people. As of Mach 22, 2011, the Bureau of Firearms
identified 18,377 individuals with a prior felony conviction
or mental health disorder that disqualified them from
possessing more than 36,000 firearms.
"Although DOJ and local law enforcement have the authority to
confiscate these weapons in the interest of public safety, the
truth is, the situation continues to get worse. Law
enforcement is struggling to disarm people who've lost the
right to own a gun. Neither DOJ nor the locals have the
resources to confiscate the enormous backlog of weapons, nor
can they keep up with the daily influx of the newly
prohibited."
3)Armed Prohibited Persons System : California is the first and
only state in the nation to establish an automated system for
tracking handgun and assault weapon owners who pose a threat
to public safety. The APPS maintains information about
persons who have been, or will become, prohibited from
possessing a firearm subsequent to the legal acquisition or
registration of a firearm or an assault weapon. The APPS also
provides authorized law enforcement agencies with inquiry
capabilities to determine the prohibition status of a person
of interest. DOJ populates APPS with all handgun and assault
weapon owners across the state and matches them against
criminal history records to determine who might fall into a
prohibited status. Automatic notifications from state and
federal criminal history systems will be received daily to
determine if there is a match for a current California gun
owner. When a match is found, the system automatically raises
a flag to Firearms Division staff, which triggers an
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investigation into the person's status.
For example, the daily APPS report for March 22, 2011 provided
a breakdown of prohibited persons by county. A few examples
include: Orange County - 1, 163 prohibited persons with 2,488
illegal handguns; Sacramento County - 516 prohibited persons
with 1,037 illegal handguns; and San Diego County - 841
prohibited persons with 1,841 illegal handguns
4)DOJ's Role in APPS Enforcement : Although the burden for
confiscating weapons falls largely on local jurisdictions, in
practice, most local jurisdictions are too short on resources
to do much or only vaguely aware of how the APPS database
works. In fact, 98% of the individuals removed from the list
are a result of DOJ efforts, not local law enforcement. While
DOJ provides locals with access to the list of prohibited
persons and has trained more than 1,300 officers in its use,
DOJ's own team of 20 agents specifically tasked with
investigating and confiscating the weapons of unlawful gun
owners has proven to be the most effective.
For example, in Los Angeles County, a jurisdiction with 5,871
prohibited persons, local law enforcement was only able to
confiscate weapons in six cases. DOJ was able to confiscate
weapons in 76 cases.
5)Argument in Support : According to the Legal Community Against
Violence , "�u]nder current law, DOJ is authorized to require
firearms dealers to impose a fee attached to the purchase of a
firearm; under state law, the fees, collected in the Dealers'
Record of Sale Special Account of the General Fund ('DROS
Fund'), may be used to fund a specific set of purposes,
including DOJ 'regulatory and enforcement activities related
to the sale, purchase, loan, or transfer of firearms.' SB 819
(Leno) would authorize the use of the DROS Fund for
enforcement activities related to the possession of firearms.
"DOJ maintains an APPS, which identifies individuals who
legally purchased handguns or assault weapons but subsequently
because prohibited from possessing firearms. APPS presently
contains the names of over 18,000 Californians in possession
of over 36,000 handguns and assault weapons, even though these
individuals are prohibited from having guns under state law.
The 18,000 prohibited persons include convicted felons,
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domestic abusers and mentally ill individuals, among others
who have been convicted of serious crimes that rightfully
disqualify them from firearm ownership. State efforts to
disarm prohibited individuals are currently funded through the
General Fund. SB 819 would enable the use of DROS Fund money
for this important purpose."
6)Argument in Opposition : According to the California
Association of Firearms Retailers (CAFR), "�t]he money paid to
the DROS fund by a prospective purchaser or other transferee
of a firearm is a fee to pay for the costs of a criminal and
mental history background check to determine that person's
eligibility to lawfully possess a firearm.
"The DROS fee is not a regulatory fee, tax, license or other
form of non-user charge. CAFR believes that the DROS fund has
often been improperly used to fund non-background check
activities of DOJ.
"The use of DROS fees as proposed in SB 819 is considered to
constitute a tax on perspective firearm purchasers since it
would be used, in part, to pay for the general public services
proposed in the bill, rather than for its original intended
purpose as a user fee to pay for services rendered only to the
fee payer."
7)Prior Legislation : AB 302 (Beall), Statutes of 2010, Chapter
344, required the electronic submission of specified
information to DOJ with respect to persons admitted to a
mental health facility on the basis of being a threat to
themselves or others, or as a result of being certified for
intensive treatment.
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
California Chapters of the Brady Campaign
California Department of Justice
California State Sheriffs' Association
California Statewide Law Enforcement Association
Legal Community Against Violence
Los Angeles County Sheriff's Department
Riverside Sheriffs' Association
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Opposition
California Association of Firearms Retailers
California Rifle and Pistol Association
California Sportsman's Lobby
Crossroads of the West
Gun Owners of California
National Rifle Association of America
National Shooting Sports Foundation
Outdoor Sportsmen's Coalition of California
Safari Club International
One private individual
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744