BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1567( La Malfa)
As Amended April 16, 2012
Hearing date: April 24, 2012
Penal Code
SM:dl
FIREARMS:
ELIMINATING WAITING PERIODS FOR CCW LICENSE HOLDERS
HISTORY
Source: National Rifle Association
Prior Legislation: SB 671 (Lewis) - Chap. 128, Stats. of 1996
Support: Gun Owners of California
Opposition:California Police Chiefs Association; California
State Sheriffs' Association; Legal Community Against
Violence; California Chapters of the Brady Campaign to
Prevent Gun Violence
KEY ISSUES
SHOULD THE 10-DAY WAITING PERIOD BETWEEN THE TIME A GUN IS
PURCHASED AND WHEN IT MAY BE DELIVERED NOT APPLY TO THE SALE,
DELIVERY, OR TRANSFER OF FIREARMS MADE TO ANY PERSON WHO HAS
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BEEN ISSUED A LICENSE TO CARRY A CONCEALED WEAPON, AS SPECIFIED?
(CONTINUED)
SHOULD THE DEPARTMENT OF JUSTICE (DOJ), IN RELATION TO ALL
BACKGROUND CHECKS OF FIREARMS PURCHASERS, BE REQUIRED TO IMMEDIATELY
NOTIFY A FIREARMS DEALER IF, AS A RESULT OF THE BACKGROUND CHECK,
DOJ DETERMINES THAT THE STATUS OF THE PURCHASER IS APPROVED,
PROHIBITED, OR ON HOLD, AS SPECIFIED?
PURPOSE
The purpose of this bill is to: (1) provide that the 10-day
waiting period between the time a gun is purchased and when it
may be delivered shall not apply to the sale, delivery, or
transfer of firearms made to any person who has been issued a
license to carry a concealed weapon, as specified; (2) create an
exemption from the 10-day waiting period for peace officers who
are allowed to carry concealed weapons even without a CCW; (3
specify that the background check required under current law of
all CCW license applicants or those applying to renew a CCW
license, must include a federal National Instant Criminal
Background Check System ("NICS") check; and (4) require the
Department of Justice (DOJ), in relation to all background
checks of firearms purchasers, to immediately notify a firearms
dealer if, as a result of the background check, DOJ determines
that the status of the purchaser is approved, prohibited, or on
hold, as specified.
Existing federal law requires licensed firearms dealers, before
they may deliver a firearm to a purchaser, to perform a
background check on the purchaser through the federal National
Instant Criminal Background Check System ("NICS"). (18 U.S.C ��
921, et seq.)
Current law requires all sales, loans, and transfers of firearms
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to be processed through or by a state-licensed firearms dealer
or a local law enforcement agency. (Penal Code � 27545.)
Current law provides that, except as specified, there is a
10-day waiting period when purchasing a firearm through a
firearms dealer. During which time, a background check is
conducted and, if the firearm is a handgun, a handgun safety
certificate is required prior to delivery of the firearm.
(Penal Code �� 26815, 26840(b) and 27540.)
Current law states that no person shall make an application to
purchase more than one handgun within any 30-day period. (Penal
Code � 27535(a).)
Current law recognizes numerous exceptions to the
one-gun-per-month restriction, including an exception for anyone
who may claim an exemption to the 10-day waiting period. (Penal
Code � 27535(b)(7).)
Current law states that when a person applies for a license to
carry a pistol, revolver, or other firearm capable of being
concealed upon the person, the sheriff of a county may issue a
license to that person upon proof of all of the following:
The applicant is of good moral character.
Good cause exists for issuance of the license.
The applicant is a resident of the county or a city
within the county, or the applicant's principal place of
employment or business is in the county or a city within
the county and the applicant spends a substantial period of
time in that place of employment or business.
The applicant has completed a course of training as
specified.
The sheriff may issue this license in either of the following
formats:
A license to carry concealed a pistol, revolver, or
other firearm capable of being concealed upon the person.
Where the population of the county is less than 200,000
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persons according to the most recent federal decennial
census, a license to carry loaded and exposed in only that
county a pistol, revolver, or other firearm capable of
being concealed upon the person.
The police chief of a city or city and county may also issue
such licenses, according to the same criteria, to residents of
that city.
(Penal Code � 26150.)
Current law provides that the fingerprints of each applicant
shall be forwarded to DOJ and that, upon receipt of the
fingerprints and the appropriate fees, DOJ shall promptly
furnish the forwarding licensing authority a report of all data
and information pertaining to any applicant of which there is a
record in its office, including information as to whether the
person is prohibited by state or federal law from possessing,
receiving, owning, or purchasing a firearm. Current law
requires that no license shall be issued by any licensing
authority until after receipt of the report from the department.
(Penal Code � 26185.)
This bill would provide that the 10-day waiting period between
the time a gun is purchased and when it may be delivered shall
not apply to the sale, delivery, or transfer of firearms made to
any person who has been issued a license to carry a concealed
weapon, as specified.
This bill would create an exemption from the 10-day waiting
period for peace officers who are allowed to carry concealed
weapons even without a CCW.
This bill would specify that, one of the requirements that must
be met before a sheriff may issue a CCW license is proof that
the applicant is not prohibited by law from possessing a
firearm.
This bill would specify that the background check required under
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current law of all CCW license applicants or those applying to
renew a CCW license, must include a federal NICS check.
This bill would limit the exception to the 10-day waiting period
that exists under current law for peace officers to state that
this exception does not apply to the sale, delivery or transfer
of firearms to a peace officer for their personal use.
This bill would require DOJ to immediately notify a firearms
dealer if the department determines that the status of the
purchaser is approved or prohibited. If the status of the
purchaser is not approved or prohibited, then the department
would be required, within 24 hours of the transmission of the
electronic or telephonic record, to respond with an approved or
prohibited status immediately upon completion of the
department's background investigation. For purposes of this
section, the following terms have the following meanings:
"Approved" means the individual is not prohibited by
state or federal law from possessing, receiving, owning, or
purchasing a firearm.
"On hold" means the available information indicates that
further investigation is required to determine whether the
individual is approved or prohibited from possessing,
receiving, owning or purchasing a firearm.
"Prohibited" means an individual is prohibited by state
or federal law from possessing, receiving, owning or
purchasing a firearm.
If a dealer receives a hold status, the dealer would be required
to withhold delivery of the firearm until the dealer receives an
approved status for the purchaser from DOJ.
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
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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
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
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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
(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:
Currently all California residents are subject to a
10-day wait period for firearm purchases with few
exceptions. There is no reason that holders of a
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permit to carry a concealed weapon need to be subject
to such a wait period.
CCW holders have already gone through a rigorous
process to obtain these permits, which require
approval by local sheriffs and training in firearm
safety. They have had to prove themselves qualified
both with their weapons and California firearms laws.
California trusts permit holders to carry guns on
their person every day. There is no reason to make
them wait to take possession of additional firearms.
California CCW permit holders are part of what is
known as a "RapBack" system. This system immediately
alerts the Department of Justice of any violation that
would prohibit a permit holder from possession of
firearms. Upon notification, the DOJ in turn relays
that information to the permit issuing agency
(typically the local county sheriff's department).
That local agency would then confiscate any firearms
and the permit from the violating CCW holder.
CCW permit holders are held to a much stricter
standard than the average gun owner in California.
Because of the RapBack system, any violation that
would prevent or even question their worthiness to be
entrusted with firearms in the state is discovered
immediately. This is not the case with non CCW
holders. Residents that attempt the thorough process
of obtaining a permit and are successfully granted one
are willingly placing themselves under the increased
scrutiny of law enforcement.
This bill would also include both current and retired
law enforcement that have been approved for concealed
carry as they are not required to obtain a CCW.
2. The 10-Day Waiting Period
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Under California law, prior to 1997, there was a 15-day waiting
period between the time a gun was purchased and the time the
dealer could deliver the gun to the buyer. In 1997, that was
shortened to the current 10-day waiting period. (SB 671 (Lewis)
- Chap. 128, Stats. of 1996.) The rationale for a waiting
period is twofold: first, to give law enforcement officials an
opportunity to conduct a background check on the prospective
firearm purchaser to ascertain whether that person is prohibited
by law from possessing a firearm and, second, to allow a
"cooling off" period in the event the purchaser is seeking the
firearm in a state of distress. The differences between
California and federal background checks are discussed in detail
below.
3. Background Checks, State and Federal
Both state and federal law require licensed firearms dealers to
perform background checks on prospective firearms purchasers
before the weapon may be delivered, to determine whether the
purchaser falls into a category of persons prohibited by law
from purchasing or possessing firearms. However, the background
checks performed in California are, according to the state
Department of Justice (DOJ), more extensive than that performed
by the federal NICS background check.
The Federal National Instant Criminal Background Check System
("NICS")
The Brady Handgun Violence Prevention Act of 1993 originally
imposed a five-day waiting period on handgun purchases for law
enforcement to review the background of a prospective purchaser.
The five-day waiting period has now been replaced with an
instant check system, which can be extended to three days when
the results of the check are not clear. (18 U.S. C. � 921, et
seq.) If the firearms dealer has not been notified within three
business days that the sale would violate federal or state laws,
the sale may proceed, even if the background check is not
completed. (18 U.S.C. � 922(t)(1).)
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In complying with federal firearms background check requirements
(the "Brady Act"), States have the option of serving as a state
Point of Contact ("POC") and conducting their own NICS checks,
or having those checks performed by the Federal Bureau of
Investigation (FBI). FBI checks are provided at no charge;
state law determines the cost of background checks performed by
the state (POC).
A licensed firearms dealer initiates a NICS check by contacting
the FBI or state POC (typically by telephone or computer) after
the prospective purchaser has provided a government-issued photo
I.D. and completed a federal Firearms Transaction Record. (27
Code of Fed.Regs. � 478.124(c)(4).) The FBI or POC must then
conduct a name-based search of federal and state databases. FBI
searches include three federal databases:
The National Crime Information Center (NCIC), which
includes records regarding wanted persons (fugitives) and
persons subject to protective/restraining orders;
The Interstate Identification Index, which contains
state criminal history records; and
The NICS Index, which contains records of other persons
prohibited under federal law from receiving or possessing
firearms.
(Criminal Justice Information Services Division of the Federal
Bureau of Investigation, U.S. Department of Justice, National
Instant Criminal Background Check System (NICS) Operations 2010,
at page 1.)
Once the initial search is complete, the FBI or POC notifies the
dealer that the sale: 1) may proceed; 2) may not proceed; or 3)
is delayed pending further investigation. The NICS check is
valid for a single transaction for up to 30 calendar days from
the date NICS was initially contacted. (27 Code of Fed.Regs. �
478.102(c).) The 30-day period covers only a single
transaction. The transaction may, however, involve the transfer
of multiple firearms.
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As noted above, if the initial NICS check does not come back
"clean," but the reason for that cannot be determined within 3
days, the firearms dealer, the sale may proceed. (18 U.S.C. �
922(t)(1).) As a result, in 2010, the NICS Section referred
2,955 cases to the federal Bureau of Alcohol Tobacco and
Firearms to retrieve firearms that were sold to persons later
determined to be prohibited. (Criminal Justice Information
Services Division of the Federal Bureau of Investigation, U.S.
Department of Justice, National Instant Criminal Background
Check System (NICS) Operations 2010, at page 15.) No
information is available to determine how successful federal law
enforcement authorities were in retrieving those firearms.
Background Checks in California
According to DOJ:
All firearm purchaser-related background checks properly
submitted by dealers through the DOJ Dealer Record of Sale
(DROS) Entry System initiate a CA Basic Firearms Eligibility
Check (BFEC). This process includes name-based checks (not
fingerprint based checks) for records in the following
state/federal databases:
California Automated Criminal History System (ACHS);
California Restraining and Protective Order System
(CARPOS);
California Wanted Persons System (WPS);
California Mental Health Firearms Prohibition System
(MHFPS);
California Department of Motor Vehicles (DMV) for ID
validation;
The federal Interstate Identification Index (III)
database;
Federal National Crime Information Center (NCIC)
database;
Federal National Instant Criminal Background Check
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System (NICS); and
Federal Immigration Customs and Enforcement (ICE)
database.
In addition to checking databases that the federal NICS does not
check, and tracking down information that is not automated,
unlike the federal NICS check, if DOJ is unable to receive
complete information in connection with the background check
within the 10-day waiting period has run, according to DOJ, they
will instruct the firearms dealer not to release the firearm to
the purchaser until they have resolved the issue and determined
that the purchaser is not a prohibited person.
4. CCW Holders Are Exempt from Background Checks Under Federal
Law
A person holding a state-issued permit allowing the person to
acquire or possess firearms (e.g., a concealed weapons permit or
CCW) is not required, under federal law, to undergo a background
check if the permit was issued: 1) within the previous five
years in the state in which the transfer is to take place; and
2) after an authorized government official has conducted a
background investigation to verify that possession of a firearm
would not be unlawful. (18 U.S.C. � 922(t)(3); 27 Code of Fed.
Regs. � 478.102(d).) Permits issued after November 30, 1998
qualify as exempt only if the approval process included a NICS
check. (27 Code of Fed. Regs. � 478.102(d).)
5. What this Bill Would Do
This bill would establish that the current 10-day waiting period
would not apply to persons holding a license to carry a
concealed weapon or to a peace officer who is authorized to
carry a concealed weapon. This bill would further require DOJ
to make substantial changes to the way it conducts background
checks on all prospective firearms purchasers. Regardless of
the 10-day waiting period, it would require DOJ to immediately
notify a firearms dealer if the department determines that the
status of the purchaser is approved or prohibited. If DOJ is
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not able to determine whether the buyer is a prohibited person,
it would be required, within 24 hours of "the transmission of
the electronic or telephonic record," to respond with an
approved or prohibited status immediately upon completion of the
department's background investigation.
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The first issue this raises is whether possession of a concealed
weapons permit obviates the need for a waiting period.
Proponents argue that such CCW holders are part of a database at
DOJ that is constantly being updated to reflect any new
information that would render them ineligible to possess a
firearm. This database, however, relies on input from several
sources. How quickly relevant data, such as a new criminal
conviction or the CCW holder being declared mentally unstable,
would be uploaded into the Automated Firearms System (AFS) would
likely vary, depending on the resources available at the point
where that data would need to be entered. The result could be
that a CCW holder who has, since the time they were issued their
CCW license, become prohibited from possessing a firearm, would
nonetheless be able to purchase and take possession of a firearm
without any background check being conducted.
Proponents argue that the rationale for the background check no
longer applies since this person already has at least one
firearm already anyway. Members may wish to consider whether
this would always be true. A CCW holder could be purchasing a
new gun to replace one that was lost or stolen and it is not
currently required for gun owners to report lost or stolen guns.
Given the potential delays in updating information in the AFS
database, as described above, even if the CCW holder does
already possess a firearm, would that justify allowing a
potentially prohibited person to obtain more firearms than they
already have?
Another issue this raises is whether the Department of Justice
should be required to completely revamp the way it conducts
background checks to allow CCW holders to avoid having to wait
10 days to obtain a new firearm.
6. Statements in Support
The National Rifle Association states:
Californians that are licensed to carry a concealed
weapon (CCW), have been screened, trained and
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background checked by the Law Enforcement agencies
that have issued the license. The information
pertaining to the CCW licenses have been entered into
a special database that is maintained by the
California Department of Justice (DOJ). This
"wrap-back file" monitors the legal status of the CCW
licensee on a day to day basis to assure the issuing
Law Enforcement agency that the licensee has not
committed an act that would make them prohibited from
possessing a firearm or make them ineligible for
continuing to retain the CCW license issued to them.
The Gun Owners of California state:
This bill is nothing more than a common sense measure
that exempts law-abiding citizens who have already
passed extensive background checks and personal
interviews with their local law enforcement agencies,
and active and retired police and sheriff's deputies
from having to wait 10 days before receiving a newly
purchased firearm.
The 10 day Waiting Period serves no purpose because by
definition these individuals already have firearms and
are the most tightly controlled and monitored people
in California regarding firearm use and possession.
7. Statement in Opposition
The California Chapters of the Brady Campaign Against Gun
Violence states:
Based on our conversations with personnel at DOJ, the
agency responsible for performing background checks,
it often takes a full 10 days to perform a complete
and thorough records check, particularly in the case
of first time purchasers. It might, in theory, be
possible to shorten this time period. In order to
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accomplish this, the Bureau's workload would be
significantly altered and expanded, including costly
database upgrades. This additional cost should be
covered entirely by individuals requesting expedited
service and not from general Dealer Record of Sale
reserve funds that are critical for firearms-related
regulatory and enforcement activities.
Stepping away from the details of how to actually
accomplish this proposal is the larger question of
whether it is in the public interest to expedite the
delivery of firearms to prospective purchasers. In
this case, the purchasers are already in possession of
a firearm so expedited delivery serves no protective
function whatsoever. If this system were to be in
place, it would be used as an argument to shorten
waiting periods in other situations, including first
time buyers. This would clearly not be in the
interest of public safety.
The California State Sheriffs' Association states:
SB 1567 presents a significant problem for public
safety. While we understand the � ] rationale that
individuals who possess a concealed weapons permit
(CCW) have been through a thorough background check,
we must not neglect to take into account that these
individuals also have the potential to go purchase a
gun in a fit of rage. The 10 day wait period that is
in current law isn't to prevent individuals from
obtaining guns, but to instead help to guard against
impulsive acts of violence.
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