BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2229


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          Date of Hearing:  April 19, 2016
          Counsel:               Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                        2229 (Grove) - As Amended  March 17, 2016


                                      VOTE ONLY

                                          
          SUMMARY:  Eliminates the 10-day waiting period for persons  
          previously determined by the Department of Justice (DOJ) to not  
          be prohibited from possessing a firearm and the person possesses  
          a firearm, is authorized to carry a concealed firearm, or  
          possesses a valid Certificate of Eligibility.  Specifically,  
          this bill:  

          1)Requires the DOJ to immediately release firearms to persons  
            without waiting the mandated 10-days if the person is  
            determined by the DOJ not to be prohibited from possessing,  
            receiving, owning, or purchasing a firearm; and any of the  
            following:

             a)   The person possesses a firearm as confirmed by the  
               Automated Firearms System (AFS); or

             b)   The person is authorized to carry a concealed firearm;  
               or

             c)   The person possesses a valid Certificate of Eligibility  
               and a firearm as confirmed by the AFS.  
          








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          EXISTING LAW:  


          1)Provides that no firearm shall be delivered:  

             a)   Within 10 days of the application to purchase, or, after  
               notice by the Department of Justice (DOJ), within 10 days  
               of the submission to the department of any correction to  
               the application, or within 10 days of the submission to the  
               DOJ of any fee required, whichever is later;

             b)   Unless unloaded and securely wrapped or unloaded and in  
               a locked container;

             c)   Unless the purchaser, transferee, or person being loaned  
               the firearm presents clear evidence of the person's  
               identity and age to the dealer; and, 

             d)   Whenever the dealer is notified by the Department of  
               Justice that the person is prohibited by state or federal  
               law from processing, owning, purchasing, or receiving a  
               firearm. The dealer shall make available to the person in  
               the prohibited class a prohibited notice and transfer form,  
               provided by the department, stating that the person is  
               prohibited from owning or possessing a firearm, and that  
               the person may obtain from the department the reason for  
               the prohibition.  (Pen. Code § 26815.)  

          2)Provides that the sale, loan or transfer of firearms in almost  
            all cases must be processed by, or through, a state-licensed  
            dealer or a local law enforcement agency with appropriate  
            transfer forms being used, as specified.  (Pen. Code § 27545.)

          3)Allows persons who are not subject to reporting to report the  
            acquisition, ownership, or disposal of firearms to DOJ. (Pen.  
            Code § 28000.)

          4)Requires that firearms information submitted to DOJ as to  
            handguns in terms of who owns what handgun must be maintained  
            within a centralized registry. (Pen. Code Section 11106)   








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            These reporting requirements will apply to all firearms as of  
            January 1, 2014.  (Pen. Code § 11106.)

          5)Require the DOJ, upon submission of firearm purchaser  
            information, to examine its records to determine if the  
            purchaser is prohibited from possessing, receiving, owning, or  
            purchasing a firearm. Existing law prohibits the delivery of a  
            firearm within 10 days of the application to purchase, or,  
            after notice by the department, within 10 days of the  
            submission to the department of any corrections to the  
            application to purchase, or within 10 days of the submission  
            to the department of a specified fee. (Pen. Code §§ 28200 to  
            28250.)

          6)Requires if a dealer cannot legally deliver a firearm,  
            existing law requires the dealer to return the firearm to the  
            transferor, seller, or person loaning the firearm. (Pen. Code  
            § 28050, subd. (d).)

          7)Requires that in connection with any private party sale, loan  
            or transfer of a firearm, a licensed dealer must provide the  
            DOJ with specified personal information about the seller and  
            purchaser as well as the name and address of the dealer.  This  
            personal information of buyer and seller required to be  
            provided includes the name; address; phone number; date of  
            birth; place of birth; occupation; eye color; hair color;  
            height; weight; race; sex; citizenship status; and a driver's  
            license number, California identification card number or  
            military identification number.  A copy of the Dealers Record  
            of Sale (DROS), containing the buyer and seller's personal  
            information, must be provided to the buyer or seller upon  
            request.  (Pen. Code §§ 28160, 28210, and 28215.)

          8)Provides that various categories of persons are prohibited  
            from owning or possessing a firearm, including persons  
            convicted of certain violent offenses, and persons who have  
            been adjudicated as having a mental disorder, among others.  
            (Pen. Code Sections 29800 to 29825, inclusive, 29900, 29905,  
            30305 and WIC §§ 8100 and 8103.)

          9)Prohibits persons who know or have reasonable cause to believe  
            that the recipient is prohibited from having firearms and  








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            ammunition to supply or provide the same with firearms or  
            ammunition. (Pen. Code § 27500 and 30306, and WIC § 8101.) 

          10)Provides that no person shall sell, lease, or transfer  
            firearms unless he or she has been issued a state firearms  
            dealer's license.  A violation is a misdemeanor (punishable by  
            up to one year in county jail).  (Pen. Code § 12070.) 

          11)Provides for specified exemptions including commercial  
            transactions among licensed wholesalers, importers, and  
            manufacturers.  (Pen. Code § 12070.) 

          12)Allows DOJ to charge the dealer for a number of costs such as  
            a dealer record of sale (DROS).  (Pen. Code § 12076.) 

          13)Exempts from the requirement (that sales, loans and transfers  
            of firearms be conducted through a dealer or local law  
            enforcement agency) transactions with authorized peace  
            officers, certain operation of law transactions, and  
            intra-familial firearms transactions.  However, all these  
            exempt transactions are subject to handgun registration as a  
            condition of the exemption.  (Pen. Code § 12078.) 

          14)Provides that, on request, DOJ will register transactions  
            relating to handguns (indeed all firearms) in the Automated  
            Firearm System (AFS) Unit for persons who are exempt from  
            dealer processing, or are otherwise exempt by statute from  
            reporting processes.  (Pen. Code § 12078, subd. (l).) 

          15)Requires a person moving into California (with a handgun  
            acquired outside of California) who did not receive the gun  
            from a California licensed gun dealer, to register the gun  
            with the DOJ by mailing a form.  (Pen. Code § 12072, subd.  
            (f)(2).)

          16)Provides for the "Armed and Prohibited" (APS) program which  
            identifies via registration records those persons who legally  
            acquired and are the registered owner of any firearm in DOJ's  
            data base and subsequently become ineligible to possess  
            firearms and creates a mechanism to disarm these persons.   
            (Pen. Code § 12010 to 12012.) 









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          17)Provides a county sheriff or municipal police chief may issue  
            a license to carry a handgun capable of being concealed upon  
            the person upon proof of all of the following.

             a)   The person applying is of good moral character  
               (Pen.Code, §§ 26150, 26155, subd. (a) (1).);

             b)   Good cause exists for the issuance (Pen. Code, §§ 26150,  
               26155, subd. (a) (2).);

             c)   The person applying meets the appropriate residency  
               requirements (Pen. Code, §§ 26150, 26155, subd. (a) (3).);  
               and,

             d)   The person has completed the appropriate training  
               course, as specified.  (Pen. Code, §§ 26150, 26155, subd.  
               (a) (4).

          18)States that a county sheriff or a chief of a municipal police  
            department may issue a license to carry a concealed handgun in  
            either of the following formats:

             a)   A license to carry a concealed handgun upon his or her  
               person (Pen. Code, §§ 26150, 26155, subd. (b) (1).); or,

             b)   A license to carry a loaded and exposed handgun if the  
               population of the county, or the county in which the city  
               is located, is less than 200,000 persons according to the  
               most recent federal decennial census.  (Pen. Code, §§  
               26150, 26155, subd. (b) (2).

          19)Provides that a chief of a municipal police department shall  
            not be precluded from entering into an agreement with the  
            sheriff of the county in which the city is located for the  
            sheriff to process all applications for licenses, or renewal  
            of licenses, to carry a concealed handgun upon the person.   
            (Pen. Code, § 26155, subd. (b) (3).)

          20)Provides that a license to carry a concealed handgun is valid  
            for up to two years, three years for judicial officers, or  
            four years in the case of a reserve or auxiliary peace  
            officer.  (Pen. Code, § 26220.)








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          21)Provides that a license may include any reasonable  
            restrictions or conditions that the issuing authority deems  
            warranted, which shall be listed on the license.  (Pen. Code,  
            § 26200.)

          22)Provides that the fingerprints of each applicant are taken  
            and submitted to the Department of Justice.  Provides criminal  
            penalties for knowingly filing a false application for a  
            concealed weapon license.  (Pen. Code, §§ 26180, 26185.)

          FISCAL EFFECT:  Unknown


          COMMENTS: 


          1)Author's Statement:  According to the author, "AB 2229 would  
            amend the 10-day waiting period currently required for certain  
            firearm purchases, by exempting three groups of firearm buyers  
            from the state requirement."


          2)Silvester v. Harris (2014) 41 F. Supp. 3d 927:  Plaintiffs  
            filed a federal suit in the Central District of California to  
            challenge the 10-day waiting and contended that the 18  
            exemptions violate the  Equal Protection Clause of the  
            Fourteenth Amendment  .  The plaintiffs also contended that the  
            10-day waiting periods violated the  Second Amendment  .   
            Specifically, Plaintiffs contend that the 10-day waiting  
            periods violate the  Second Amendment  as applied to those who  
            already lawfully possess a firearm as confirmed in the  
            Automated Firearms System ("AFS"), to those who possess a  
            valid Carry Concealed Weapon ("CCW") license, and to those who  
            possess a valid Certificate of Eligibility ("COE").   In March  
            2014, the District Court conducted a bench trial in this  
            matter.  After considering the evidence and the arguments, the  
            Court concludes that the 10-day waiting periods impermissibly  
            violate the  Second Amendment  as applied to those persons who  
            already lawfully possess a firearm as confirmed by the AFS, to  
            those who possess a valid CCW license, and to those who  
            possess both a valid COE and a firearm as confirmed by the AFS  








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            system, if the background check on these individuals is  
            completed and approved prior to the expiration of 10 days.  
            Because of the trial court's resolution of the  Second  
            Amendment  issue, the court did not address the  Fourteenth  
            Amendment  challenges.  California Attorney General Kamala  
            Harris has appealed this decision to the United States Court  
            of Appeals for the Ninth Circuit.  The matter is presently  
            before them and they have not made a ruling on this matter.  


          3)Prohibited Persons:  California has several laws that prohibit  
            certain persons from purchasing firearms.  All felony  
            convictions lead to a lifetime prohibition, while specified  
            misdemeanors will result in a 10-year prohibition.  A person  
            may be prohibited due to a protective order or as a condition  
            of probation.  Another prohibition is based on the mental  
            health of the individual.  If a person communicates to his or  
            her psychotherapist a serious threat of physical violence  
            against a reasonably identifiable victim or victims, the  
            person is prohibited from owning or purchasing a firearm for  
            six months, starting from the date the psychotherapist reports  
            to local law enforcement the identity of the person making the  
            threat.  (Welf. & Inst. Code, § 8100 subd. (b)(1).)  If a  
            person is admitted into a facility because that person is a  
            danger to himself, herself, or to others, the person is  
            prohibited from owning or purchasing a firearm for five years.  
             (Welf. & Inst. Code, § 8103 subd. (f).)  For the provisions  
            prohibiting a person from owning or possessing a firearm based  
            on a serious threat of violence or based on admittance into a  
            facility as a threat to self or others, the person has the  
            right to request a hearing whereby the person could restore  
            his or her right to own or possess a firearm if a court  
            determines that the person is likely to use firearms or other  
            deadly weapons in a safe and lawful manner.  (Welf. & Inst.  
            Code, §§ 8100, subd. (b)(1) and 8103, subd. (f).)

          DOJ developed the Armed Prohibited Persons System (APPS), an  
            automated system for tracking handgun and assault weapon  
            owners in California who may pose a threat to public safety.   
            (Penal Code Section 30000 et seq.)  APPS collects information  
            about persons who have been, or will become, prohibited from  
            possessing a firearm subsequent to the legal acquisition or  








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            registration of a firearm or assault weapon.  DOJ receives  
            automatic notifications from state and federal criminal  
            history systems to determine if there is a match in the APPS  
            for a current California gun owner.  DOJ also receives  
            information from courts, local law enforcement and state  
            hospitals as well as public and private mental hospitals to  
            determine whether someone is in a prohibited status.  When a  
            match is found, DOJ has the authority to investigate the  
            person's status and confiscate any firearms or weapons in the  
            person's possession.  Local law enforcement may also request  
            from DOJ the status of an individual, or may request a list of  
            prohibited persons within their jurisdiction, and conduct an  
            investigation of those persons.

          According to DOJ, about 50% of the persons on APPS are  
            prohibited due to criminal history; about 30% due to mental  
            health status, and about 20% due to active restraining orders.

          4)Argument in Support:  According to Firearms Policy Coalition,  
            "California has a mandatory 10-day waiting period prior to a  
            person's taking possession of a lawfully-acquired firearm. The  
            State's rationale and justification of this policy has  
            traditionally been to chill 'impulse' firearm purchases (e.g.,  
            a 'cooling-off' period). More recently, the State has argued  
            that it requires the waiting period in order to perform an  
            'adequate' background check.


            "However, for those law-abiding persons already known to the  
            state to possess firearms, including those persons licensed by  
            a California sheriff or police chief to carry a handgun in  
            public or who have a Certificate of Eligibility [to possess or  
            acquire firearms] issued by the California Department of  
            Justice ("DOJ") - both of which require the passage of a Live  
            Scan background check and continuous criminal activity  
            monitoring - the State's justifications (and all of its  
            evidence) have failed to meet even deferential intermediate  
            scrutiny.


            "It is a fact that the DOJ 'auto-approves' at least 20% of all  
            firearm purchases submitted through its Dealer's Record of  








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            Sale ("DROS") firearm acquisition, disposition, and  
            registration system. Yet, these law-abiding people are made to  
            wait the full 10 days before they take possession of their  
            firearm. 


            "A person could (quite literally) walk into a California  
            licensed dealer having a license to carry, wearing a concealed  
            handgun, purchase a new firearm, pass the background check,  
            and then irrationally be made to wait the full 10 days by DOJ  
            simply because the State's regulatory scheme is as outdated as  
            it is unconstitutional.


            "In fact, The Calguns Foundation successfully litigated this  
            very issue in the federal civil rights lawsuit Silvester, et  
            al. v. Attorney General Kamala Harris, where, following years  
            of litigation, full discovery, and a 3-day trial, District  
            Court Judge Anthony Ishii (appointed to the bench by President  
            Bill Clinton) ruled that the 10-day waiting period was nothing  
            short of an unconstitutional infringement on the plaintiffs'  
            Second Amendment right to keep and bear arms.


            "AB 2229 is a common-sense measure that closely tracks the  
            Silvester ruling and, put simply, conforms State statutes to  
            the very minimum of constitutional standards. Even under AB  
            2229, all firearm purchasers will still need to pass the very  
            same DOJ-administered background check and first-time  
            purchasers would still need to wait 10-days before taking  
            possession of a firearm."


          5)Argument in Opposition:  According to The California Chapters  
            of the Brady Campaign to Prevent Gun Violence, "California law  
            requires that whenever a person purchases a firearm, a  
            complete background check must be performed and a ten day  
            waiting period observed before the purchaser can take  
            possession of the gun.  The purpose of the ten day period is  
            to allow sufficient time to perform the background check and  
            to provide a "cooling" period to guard against impulsive acts  
            of violence. 








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            "Assembly Bill 2229 would provide that if a person is  
            authorized to carry a concealed firearm, possesses a valid  
            Certificate of Eligibility, or owns a firearm registered with  
            the Department of Justice and is determined by the Department  
            not to be prohibited from purchasing or possessing a firearm,  
            then the Department must notify the dealer immediately so that  
            the firearm may be released to the purchaser without waiting  
            the full ten days.  


            "The requirement to observe a waiting period for subsequent  
            firearm purchases was challenged in court by the Calguns  
            Foundation, the Second Amendment Foundation and by several  
            individuals.  The plaintiffs did not challenge the waiting  
            period for first time firearm purchases or the need to perform  
            a complete background check for subsequent purchases.


            "The Federal District Court in Fresno issued final judgement  
            in this case (Silvester v. Harris) on August 25, 2014.  The  
            court found that the plaintiff's Second Amendments rights were  
            being violated by the subsequent waiting period.  Attorney  
            General Harris timely appealed the trial court judgement and  
            the case now resides in the 9th Circuit Court of Appeals,  
            waiting for a ruling.


            "In its opening brief on appeal, the Department of Justice  
            pointed out that each year the Bureau of Firearms performs  
            over a million background checks.  Of these, only 20 percent  
            are cleared immediately.  The remainder require varying levels  
            of analyst intervention.  We have been told by staff at the  
            Bureau that it commonly takes up to eight days to complete a  
            background check.  It is difficult to see how having to wait  
            ten days versus eight days constitutes a "substantial burden"  
            on the exercise of one's constitutional rights under the  
            Second Amendment, as required in the Chovan v. United States  
            two part test.  










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            "We believe that there is a substantial likelihood that the  
            9th Circuit will reverse the lower court ruling in Silvester  
            v. Harris.  It would be both premature and inappropriate for  
            the legislature to pass AB 2229 at this time while the case is  
            still being litigated.


            "Accordingly, we stand in opposition to AB 2229."


          


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Firearms Policy Coalition (Sponsor)


          California Sportsman's Lobby 


          Gun Owners of California 


          Outdoor Sportsmen's Coalition of California 


          Safari Club International 




          Opposition


          California Chapters of the Brady Campaign 








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          California Civil Liberties Advocacy 


          Law Center to Prevent Gun Violence  

          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744