BILL ANALYSIS Ó AB 2229 Page 1 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. AB 2229 Page 2 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) AB 2229 Page 3 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 AB 2229 Page 4 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.) AB 2229 Page 5 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.) AB 2229 Page 6 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 AB 2229 Page 7 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 AB 2229 Page 8 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 AB 2229 Page 9 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. AB 2229 Page 10 "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. AB 2229 Page 11 "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 AB 2229 Page 12 California Civil Liberties Advocacy Law Center to Prevent Gun Violence Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744