BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1569 (Fuller) 9
As Introduced February 24, 2012
Hearing date: April 24, 2012
Penal Code
SM:dl
FIREARMS:
REDUCING WAITING PERIOD TO 72-HOURS
HISTORY
Source: National Rifle Association and the California Rifle and
Pistol Association
Prior Legislation: SB 671 (Lewis) - Chap. 128, Stats. of 1996
Support: Unknown
Opposition:Brady Campaign Against Gun Violence; California
Probation, Parole and Correctional Association;
California State Sheriffs' Association; California
Police Chiefs Association; Legal Community Against
Violence;
KEY ISSUE
SHOULD THE WAITING PERIOD BETWEEN THE TIME A FIREARM IS PURCHASED
AND WHEN THE DEALER MAY DELIVER IT TO THE BUYER BE SHORTENED FROM 10
DAYS TO 72 HOURS?
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PURPOSE
The purpose of this bill is to shorten the waiting period
between the time a firearm is purchased and when the dealer may
deliver it to the buyer from 10 days to 72 hours.
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.)
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 � 27545.)
Existing law provides that 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.)
This bill would shorten the waiting period between the time a
firearm is purchased and when the dealer may deliver it to the
buyer from 10 days to 72 hours.
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
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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
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
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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:
The original rationale behind the ten-day waiting
period for firearms purchases in California was
twofold:
To provide a firearms retailers an
opportunity to do a thorough background check on
the purchaser through the California Department
of Justice, and the National Instant Criminal
Background Check System (NICS) before
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relinquishing possession of the firearm and,
To provide the purchaser with a "cooling
off" period, in case the purchaser might be
purchasing the firearm in a fit of rage that
would pose a threat to his or her safety and that
of others.
The State currently faces a lawsuit in federal court
over the State's waiting period procedures in
Silvester v. Harris. While the basis of that lawsuit
is focused on the logic of a waiting period for
existing gun owners, the litigants in Silvester v.
Harris note that representatives of the State
Department of Justice indicated when SB 950, (Chapter
944 of 2001) was approved, the Department of Justice
would be supportive of an additional reduction in the
waiting period at some point. In addition to other
provisions, SB 950 required a current statewide
database of all residents who are prohibited by state
or federal law from owning or possessing firearms. In
light of this database and given the technological
advancements since 1996 when the current waiting
period was dropped from 15 days to 10, it seems
needless to make a firearms purchaser wait 10 days
before being allowed to possess their legally
purchased firearm.
If for no other reason than to avoid additional
litigation, the State should re-examine the need for a
10-day waiting period.
While some disagree, the fact remains that firearms
ownership in the United States is still a right
granted under the 2nd amendment to the Constitution.
This right has been upheld by the Supreme Court as
recently as 2010 in the McDonald v. Chicago landmark
decision. And, As Dr. Martin Luther King once said,
"a right delayed is a right denied."
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2. 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 those 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 by default. (18 U.S.C. � 922(t)(1).)
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:
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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.)
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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.
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 by default. (18
U.S.C. � 922(t)(1).) As a result of these "approvals by
default," 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
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(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
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.
3. What This Bill Would Do
This bill would shorten the waiting period in California to take
possession of a firearm from 10 days to 72 hours. The issue
this raises is whether, given the type of background checks that
are conducted in California, 72 hours is sufficient to
adequately determine that the buyer is legally entitled to
possess a firearm. Aside from giving law enforcement the
opportunity to conduct background checks, the other rationale
for a waiting period is to give the buyer a chance to "cool off"
in the event they are trying to obtain a gun in an
emotionally-charged state of mind that may be tempered with the
passage of time. This bill raises the issue whether 72 hours is
long enough to accomplish a "cooling off" under those
circumstances.
4. Statement in Opposition
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The Brady Campaign Against Gun Violence states:
There are two important reasons why this proposal is
bad public policy and should be rejected by the
legislature.
First, based on our conversations with personnel at
the Bureau of Firearms, who are responsible for
performing background checks, it often takes a full 10
days to perform a complete and thorough records check,
particularly in case of first time purchasers. In
other states where a three day waiting period is in
place, if the background checking authority is unable
to complete their work in three days, the dealer is
required to turn over the firearm to the purchaser
without the check having been completed. A shorter
waiting period significantly increases the probability
that a firearm may be sold or given to a person who is
otherwise prohibited from purchase or possession.
The second, and perhaps the more important, reason for
maintaining a 10 day waiting period is that it
provides a "cooling off period". Often, crimes are
committed in the heat of passion and the period of
time between application for a firearm and final
possession allows for emotions to subside. Many in
the law enforcement community view the waiting period
as a way of saving lives and is therefore in interest
of public safety.
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