BILL ANALYSIS
SB 31
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Date of Hearing:June 27, 2000
Counsel: Fredericka McGee
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
SB 31 (Peace) - As Amended: June 21, 2000
SUMMARY : Makes specified changes to the to Dangerous Weapons'
Control Act. Specifically, this bill :
1)Requires that any handgun sold, delivered, returned or
transferred by a local law enforcement agency pursuant to
Family Code Section 6389, which prohibits a person subject to
specified protective orders from possessing a firearm, be
entered within 10 days into the Automated Firearms System
(AFS), as specified.
2)Adds additional exemptions to Penal Code Section 12026.2
pertaining to the current prohibition against carrying
unloaded handguns in public if the handgun is not only
unloaded but also kept in a locked container and the course of
travel includes only those deviations between authorized
locations as are reasonably necessary under the circumstances.
The new exemptions include transportation of a firearm in
order to comply with requirements in law to dispose of those
firearms.
3)Requires that any law enforcement agency that returns custody
of any firearm able to be concealed to its lawful owner
pursuant to Penal Code Sections 12028 and 12028.5 shall notify
Department of Justice (DOJ) of the identifying characteristics
of the firearm into the AFS.
4)Clarifies that brokering of firearms transactions through a
state-licensed firearms dealer is not required where a person
selling, leasing or transferring a firearm is in one of the
following situations:
a)Where a firearm is loaned by a private investigator, patrol
operator, or alarm company operator to their employees
where the employee is licensed to carry the firearm in the
course and scope of his or her employment.
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b)Through cross-referencing to an additional nuisance
statute, clarifies that law enforcement agencies that
dispose of weapons are exempt from dealer processing
statutes.
c)When a person turns a firearm into a law enforcement agency
that the person finds or takes from a person committing a
crime against him or her.
d)When a law enforcement agency returns a firearm that is not
a nuisance weapon or as part of a trade in on non-nuisance
weapons to a state-licensed wholesaler if specified
conditions are met:
e)When a law enforcement agency transfers non-nuisance
weapons to a museum under certain specified conditions.
f)When a private entity agency transfers a firearm to a
museum, if specified conditions are met.
5)Clarifies that a state firearms dealer's licensee is not
required where person selling, leasing, or transferring a
firearm is one of the following situations:
a)Sales, deliveries, or transfers of firearms by a law
enforcement agency to firearm wholesalers, as defined in
current state statutes.
b)Sales, deliveries, or transfers of firearms by a law
enforcement agency to persons licensed as importers or
manufacturers of firearms pursuant to the 1968 Federal Gun
Control Act.
c)The sale, delivery or transfer of firearms by a person who
initially obtained title to those firearms as a surviving
spouse pursuant to Chapter 1 (commencing Section 13500) of
Part 2 of Division 8 of the Probate Code. (Currently,
there is a 60-day disposition requirement.)
d)Through cross-referencing to an additional nuisance
statute, clarifies that law enforcement agencies that
dispose of weapons are exempt from dealer licensing
statutes.
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e)When a person turns a firearm into a law enforcement agency
that the person finds or takes from a person committing a
crime against him or her.
6)Authorizes DOJ, until February 1, 2003, to require that
licensed dealers and sheriff's offices in smaller counties
report in a manner and format prescribed by DOJ, the date and
time he or she delivered a pistol, revolver, or other firearm
capable of being concealed upon the person to the purchaser or
transferee of that firearm or the person being loaned that
firearm.
7)Mandates, beginning July 1, 2003, that DOJ require that
licensed dealers and sheriff's offices in smaller counties
report in a manner and format prescribed by DOJ, the date and
time he or she delivered a pistol, revolver, or other firearm
capable of being concealed upon the person to the purchaser or
transferee of that firearm or the person being loaned that
firearm.
8)Includes processing costs associated with pistol-revolver
delivery records within the current fee authorization given to
DOJ to reimburse it for processing costs associated with
specified forms and reports related to firearm transactions.
9)Clarifies that peace officers are exempt from certain
prohibitions and requirements regarding the sale or transfer
of firearms if the officer, within 24 hours after coming into
possession of a firearm which is not required to be returned
by the officer from whom it was seized during his or her
official duties, delivers the firearm to the employing agency.
10)Requires in all cases where a law enforcement agency, in
accordance of current law, transfers its ownership of a
handgun which is not a nuisance weapon and the firearm is not
being transferred by that agency pursuant to existing statutes
that includes a reporting requirement, within 10 days of the
date that the handgun transferred, the transaction and its
detail shall be reported to DOJ using an existing computer
system.
11)Requires in any case where a law enforcement agency destroys
its non-nuisance-registered handguns, that within 10 days of
the date the handguns are destroyed, that fact and its details
shall be reported to DOJ using an existing computer system.
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12)Requires that a warning sign located on firearm dealers
premises indicate that any person who keeps a firearm in a
location were a minor under the age of 16 obtains possession
and uses it resulting in injury or carries the firearm in a
public place is guilty of an alternate misdemeanor/felony,
unless the firearm was stored in a locked container or had a
trigger-locking device.
13)Corrects a chaptering/cross-referencing error that has the
effect of requiring owners of antique handguns to serialize
the same before they may legally transfer ownership of the
same by applying this requirement to modern handguns (as was
originally intended).
14)Adds specified "unloaded locked" container exemptions for
transporting firearms where the firearm is being transported
pursuant to certain provisions of this bill from the
prohibition on carrying concealed handguns.
15)Designates AB 3707 (Klehs), Chapter 1180, Statutes of 1988,
as the "Klehs Safe and Responsible Firearms Transfer Act of
1988" and AB 991, (Shelley), Chapter 462, Statutes of 1997, as
the "Shelley-Alpert-Ducheny Pistol-Revolver Registration
Parity Act of 1997".
16)Declares legislative intent pertaining to the "temporary
lawful possession" provisions of this bill (transporting a
firearm lawfully returned to a place it may be lawfully
kept/taking found or seized firearm to law enforcement) and to
the changes made to Family Code Section 6389 ("declaratory of
existing law").
17)Declares legislative intent pertaining to procedures for any
person who legally acquires a firearm and thereafter becomes a
member of a class that is prohibited from possessing that
firearm to dispose of a firearm and avoid criminal liability.
18)Requires that DOJ conduct a study and make recommendations to
the Legislature regarding the procedure for disposing or
relinquishing possession of firearms legally acquired firearms
to avoid criminal liability.
19)Makes additional changes to existing statutes.
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EXISTING LAW :
1)Provides that a person subject to a domestic violence
restraining order may not own or possess any firearm. The
court may order a person who is the subject of a domestic
violence protective (DVPO) to relinquish possession or control
of any firearm during the period covered by the order.
Federal law provides that a person subject to a court order
that restrains the person from harassing, stalking, or
threatening an intimate partner or child of such intimate
partner cannot lawfully receive, possess, ship, or transport a
firearm or ammunition, as specified. (Family Code Section
6389.)
2)Prohibits ownership or possession of firearms when a person is
subject to a DVPO in the following manner:
a)Enacts an automatic prohibition from owning or possessing a
firearm by deleting the requirement of a separate court
order.
b)Limits judicial discretion to order either a shorter or
longer period of time to relinquish a firearm than the
current requirement of 72 hours.
c)Limits judicial discretion to modify an order requiring
that a person subject to a DVPO relinquish all firearms for
the duration of the order or orders.
d)Clarifies existing law prohibiting owning or possessing a
firearm while a DVPO is in effect to include purchasing or
receiving.
e)Clarifies existing law by consolidating the respective
penalties for either purchasing or receiving or owning or
possessing a firearm while subject to a DVPO in one
statutory provision. (Penal Code Section 12021.)
3)Provides that handguns are centrally registered at time of
transfer or sale with DOJ. DOJ records pertaining to
transfers of firearms not pistols, revolvers, or other
firearms capable of being concealed upon the person are not
centrally registered. (Penal Code Section 11106.)
4)Provides that information in the DOJ registry shall, upon
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proper application therefor, be furnished to specified
officers or to the person listed in the registry as the owner
or person who is listed as being loaned the particular pistol,
revolver, or other firearm capable of being concealed upon the
person in the form of hard-copy printouts of that information
as photographic, photostatic, and nonerasable optically stored
reproductions. (Penal Code Section 11106(c)(3).)
5)Provides that if any person is listed in the registry as the
owner of a firearm through a Dealers' Record of Sale prior to
1979, and that person requests by letter that the Attorney
General (AG) store and keep the record electronically, as well
as in the record's existing photographic, photostatic, or
nonerasable optically stored form, the AG shall do so within
three working days of receipt of the request. The AG shall,
in writing, and as soon as practicable, notify the person
requesting electronic storage of the record that the request
has been honored as required by this paragraph. (Penal Code
Section 11106(c)(4).)
6)Defines "firearm" as including rifles, shotguns, revolvers,
pistols, or any other device designed to be used as a weapon
from which a projectile is exploded by the force of any
explosion or other form of combustion. The definition of a
firearm includes the frame or receiver of any such weapon.
(Penal Code Section 12001.)
7)Identifies specified exemptions to the current prohibition
against carrying a concealed weapon. (Penal Code Section
12026.2.)
8)Requires that firearms and specified weapons used in the
commission of a crime, or found in the possession of
proscribed classes of individuals, are defined as nuisances
and are subject to confiscation by law enforcement agencies.
These weapons are retained by the agency and may be sold at
public auction to licensed dealers on an annual basis, between
July 1 through July 10, if they are determined to have a
sporting, recreational, or collectible value. However, the
law provides numerous exceptions for alternative distribution.
If a weapon is stolen, it is to be returned to its rightful
owner once used as evidence. A weapon is to be retained if
needed for further criminal proceedings. Any firearm not
determined salable for legitimate purposes, or not retained or
distributed as specified, is destroyed. (Penal Code Section
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12028.)
9)Firearms may additionally be sold to the military, retained by
the agency for its use or turned over to the DOJ for criminal
justice purposes, or donated to the California National Guard
Military Museum. (Penal Code Section 12030.)
10)Requires that any law enforcement agency that retains custody
of any firearm pursuant to Penal Code Section 12030 or that
destroys a firearm pursuant to Penal Code Section 12028 shall
notify DOJ of the retention or destruction, with the
notification consisting of a complete description of each
firearm, including the name of the manufacturer or brand name,
model, caliber, and serial number. (Penal Code Section
12030(e).)
11)Provides that the transfer of all handguns and long guns
(rifles and shotguns), except in specified exceptions, be
conducted through a state-licensed firearms dealer or through
a local sheriff's department in counties of less than 200,000
population. A 10-day waiting period, background check through
the DOJ, and handgun safety certificate for handgun transfers
are required prior to delivery of the firearm in order to
preclude felons and proscribed classes of individuals from
obtaining deadly weapons and to prevent purchases in the heat
of passion. A license to sell firearms is subject to
forfeiture for a breach of any of specified prohibitions and
requirements. (Penal Code Sections 12070 et seq. See
especially Penal Code Sections 12072(c) and (d), 12082, and
12084.)
12)Exempts from the requirement that sales, loans and transfers
of firearms be conducted through a dealer or local law
enforcement agency those transactions with authorized peace
officers, certain operation of law transactions,
intra-familial firearm transactions, and other specified
transactions. However, all these exempt transactions are
subject to handgun registration as a condition of the
exemption. (Penal Code Section 12078.)
13)Requires that California licensed firearm dealers report to
the DOJ information required by the department that any
firearm is not delivered within the 30-day period required for
delivery by federal law. (Penal Code Section 12071(b)(19).)
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14)Provides for a DOJ Certificate of Eligibility (COE). A COE
is a fingerprint-based background check with the certificate
issued annually if the person applying is not within any
category of persons prohibited from possessing a firearm. The
person possessing a COE is entered into the DOJ system so that
if a COE possessor does fall into a class of persons
prohibited from possessing firearms, the DOJ will be notified
of that fact. (Penal Code Section 12071(a)(4) and (5).)
15)Requires every firearms dealer to keep a register in which
specified information, including full name, complete date of
birth, and local address of purchaser, is to be entered. A
violation of these provisions is a misdemeanor. Failure to
comply with these provisions is a misdemeanor. (Penal Code
Sections 12073 and 12077.)
16)Provides federal statutes requiring background checks for
firearms using the National Instant Check System (NICS).
Those NICS checks may be relied upon by the licensed dealer
only for use in a single transaction, and for a period not to
exceed 30 calendar days from the date that NICS was initially
contacted. If the transaction is not completed within the
30-day period, the licensee shall initiate a new NICS.
(Section 178.102(c) of Title 27 of the Code of Federal
Regulations.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill is
the outgrowth of a five-year bipartisan effort to create a
truly accurate central handgun registry which serves gun
owners, gun dealers and law enforcement. The bill is
structured to provide maximum regulatory flexibility to the
DOJ consistent with the fee caps and privacy protections
contained in current law. At the same time, this bill attempts
to address issues associated with SB 218 (Solis) of last year
at Senator Solis' request."
2)Background : A similar bill [SB 29(Peace)] - save for the DVPO
and DOJ study - passed the Legislature last year and was
vetoed by the Governor. The author indicates that they are
working with the Governor to see if he will sign this bill.
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3)SB 29 Veto Message : In his September 28, 1999 veto message,
the Governor indicated the following: "While this bill
individually may have merit, it must be considered in concert
with the legislation already signed into law this year.
"Earlier this year, I signed into law five [gun] bills . . .
Taken together, this legislation provides California with the
toughest gun-control laws in the nation - much stronger than
federal law. . . . Law enforcement agencies must have time to
absorb and enforce the major revisions enacted into law this
year. Additionally, I would like the benefit of feedback from
law enforcement officials, including prosecutors, on the
effectiveness of these bills before burdening them with
additional responsibilities.
"Accordingly, I urge the Legislature to withhold passage of any
additional significant firearms-related legislation during the
balance of this session until the impact of the laws recently
enacted can be measured and analyzed.
4)Differences Between SB 29 and this bill :
a)This bill deviates from SB 29 as this bill requires
transfer information to be obtained after July 1, 2003 (SB
29 only contained the "if required" language).
Specifically, this bill provides that until July 1, 2003,
if required by DOJ, a licensed firearms dealer or a
sheriff's department in a smaller county which is effecting
a firearms transfer shall provide information to DOJ about
the actual delivery of a handgun and mandates that
information be provided commencing July 1, 2003. (Changes
to Penal Code Sections 12071 and 12084.)
b)This bill proposes changes to law which were not in SB 29,
including the following: This bill would change Family
Code Section 6389 so that that section does not apply to
firearms owned by a person with a DVPO or temporary
restraining order against he or she and requires that any
handgun sold, delivered, returned or transferred by a local
law enforcement agency pursuant to that Family Code Section
6389 - which prohibits a person subject to specified
protective orders from possessing a firearm - be entered
within 10 days into the AFS, as specified, and makes
additional changes to that section. This bill seeks to
ensure that the handgun is "registered" in the state's
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automated system, since it has only been required in the
past 10 years that private-party transactions occur through
a licensed firearms dealer or a sheriff's department in
smaller counties. Current law does require a background
check of the recipient before any firearms may be returned
to that person and to determine whether or not the firearm
has been stolen (and whether or not another restraining
order may exist which would prohibit a return of firearms).
5)Due Process As It Relates To Firearms and Domestic Violence
Protective Orders : Currently, Family Code Section 6389 and
Penal Code Section 12021 prohibit any person subject to a DVPO
from owning a firearm. The Fourteenth Amendment to the
federal Constitution provides that no state shall "deprive any
person of life, liberty, or property, without due process of
law." The California Constitution also contains due process
guarantees in Article I, Sections 7 and 15. Procedural due
process protects against being unfairly deprived of property
or personal rights without notice and the opportunity for a
hearing. Notice is also required before property interests
are disturbed.
Prior to the 1997 decision of the Sacramento County Superior
Court in Dayacamos v. Department of Justice (Sacramento No. 96
CS 10471), Welfare and Institutions Code (WIC) Section 8103(f)
prohibited a person placed in a mental health facility from
owning or possessing firearms for a period of five years.
However, the Sacramento Superior Court in Dayacamos
invalidated WIC Section 8103(f) as a violation of procedural
due process under both the federal and state constitutions.
Specifically, the court emphasized that the statute did not
provide for any meaningful notice or hearing prior to the
deprivation of the ability to possess, own, control, receive
or purchase a firearm. Furthermore, the court found that the
statutory burden of proof placed on the person subject to the
firearm disqualification also violated due process. The court
then permanently enjoined the AG from the receipt or
processing of information regarding persons placed on 72-hour
holds. (WIC Section 5150-5152.) Last year, AB 1587 (Scott),
Chapter 578, Chapter 1999, addressed the constitutional
infirmities cited by court in Dayacamos with respect to WIC
Section 8103(f). This bill removes the ownership prohibition
to prevention any due process problems and continues to
prohibit possession and purchase.
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6)Law Enforcement Agencies Reporting The Acquisition Of
Firearms : Current statutes require law enforcement agencies
to report firearms and other serialized property that have
been reported stolen, recovered, lost, illegally possessed, or
suspected of having been used in crimes. (Penal Code Section
11108 et seq.) However, those statutes do not expressly
exempt peace officers engaged in undercover or other
legitimate activities from current transfer requirements.
When peace officers participate in weapons seizures, they may
be technically violating Penal Code Section 12072(d).
Existing provisions of drug enforcement statutes create an
exemption for peace officers and their agents while performing
their official duties. (Health and Safety Code Section
11367.) The police may seize contraband; however, once that
contraband is no longer used in a criminal trial, it is to be
disposed of in accordance with nuisance statutes.
7)Is it Economically Prudent to Require Firearms Dealers to
Submit the Dates and Times Handguns are Delivered ? It is
likely that there would be significant costs associated with
modifying the statewide system and point of sales devices,
processing the information and training dealers. It seems
that the effort is duplicative in that currently firearm
dealers report sales of handguns to DOJ and when handguns are
not delivered to the purchaser the dealer formally notifies
DOJ.
8)Mandatory DOJ Study Regarding the Disposal of Firearms by
Persons Prohibited From Possessing Firearms : There are
several statutes that require relinquishment of a firearm by a
person in a prohibited class. No specific procedure exists to
delineate how a person who falls within a class of persons
prohibited from possessing a firearm shall dispose of any
previously possessed firearms. For instance, existing law
does provide for "return" or confiscation of a firearm in some
specific circumstances. Family Code Section 6389, pertaining
to protective orders (and otherwise amended by this bill),
requires that a person "relinquish" any firearms within his
or her possession or control - possibly with "use immunity"
granted if a Fifth Amendment issue is raised. Family Code
Section 6389 sets time limits for compliance, requisite
notice, method for return, and allows for one sale of all the
firearms being held by a local law enforcement agency.
Penal Code Section 12028 specifies a number of circumstances in
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which firearms may be confiscated by the state as a "nuisance"
and sets forth procedures for the disposal of those firearms.
For example, a firearm used to commit - or attempt to commit -
any misdemeanor or felony is a nuisance. Penal Code Section
12028 calls for the surrender of the nuisance firearms, but
does not specify a time limit to do that.
Penal Code Section 12028.5 requires law enforcement to take
temporary custody of any weapon or firearm found at a scene of
domestic violence, as specified. Penal Code Section 12028.5
also provides for the return - or disposal - by law
enforcement, including a hearing procedure when law
enforcement has reasonable cause to believe that the return
would likely endanger the victim or other specified persons.
In addition, Public Resource Code Section 5008.6 allows for the
forfeiture of certain devices, which may include firearms,
used to violate that code section. Asset forfeiture
provisions involving drug crimes (Health and Safety Code
Sections 11469 et seq.) and criminal profiteering (Penal Code
Sections 186.12) do allow for some items to be seized and
forfeited by the state that may include firearms.
A number of states with statutory schemes similar to California
also have a general procedure to delineate how a person who
falls within a class of persons prohibited from possessing a
firearm shall dispose of any previously possessed firearms.
This bill mandates a DOJ study and report on this issue with a
view to creating a general procedure on this issue.
9)Related Legislation : AB 2009 (Runner) was held in the
Appropriations Committee on the Suspense File. AB 863 (Honda)
is currently pending hearing by the Senate Public Safety
Committee.
10)Prior Legislation : SB 29 (Peace) vetoed by the Governor on
September 28, 1999; SB 218 (Solis) Chapter 662, Statutes of
1999.
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs, Inc.
California Contract Security Guard Association
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Opposition
None on File
Analysis Prepared by : Fredericka McGee / PUB. S. / (916)
319-3744