AB 2460 (Dickinson)
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SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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Bill No:AB 2460 (Author:Dickinson) 0
As AmendedAmended: April 9, 2012
Hearing date: July 3, 2012
Penal Code
SM:mc
UNSAFE HANDGUNS: SALE BY PEACE OFFICERS
HISTORY
Source: None
Prior Legislation: SB 15 (Polanco) – Chapter 248, Statutes of 1999
Support: California Chapters of the Brady Campaign to Prevent Gun Violence; Law Center to Prevent Gun Violence
Opposition: California Rifle and Pistol Association; National Rifle Association
Assembly Floor Vote: Ayes 47 - Noes 25
KEY ISSUE
SHOULD A PERSON WHO IS EXEMPTED FROM THE BAN ON BUYING OR SELLING UNSAFE HANDGUNS, AS SPECIFIED, AND WHO ACQUIRES A HANDGUN THAT IS NOT ON THE SAFE HANDGUN ROSTER, AS SPECIFIED, BE PROHIBITED FROM SELLING OR OTHERWISE TRANSFERING OWNERSHIP OF THE HANDGUN TO A PERSON WHO IS NOT SIMILARLY EXEMPTED?
PURPOSE
The purpose of this bill is to provide that a person who is exempted from the ban on buying or selling unsafe handguns, as specified, and who acquires a handgun that is not on the safe handgun roster, as specified, shall not sell or otherwise transfer ownership of the handgun to a person who is not similarly exempted.
Existing law 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. (Penal Code §§ 27540, 27545, 28050.)
Existing law provides that commencing January 1, 2001, no “unsafe handgun” may be manufactured or sold in California by a licensed dealer, as specified, and requires that the Department of Justice prepare and maintain a roster of handguns which are determined not to be unsafe handguns. Private party sales (used or previously owned) and transfers of handguns through a licensed dealer or sheriff in smaller counties are exempted from those restrictions. (Penal Code §§ 27545, 32000, et seq., § 32110.)
Existing law does the following:
· Defines “unsafe handgun” as any pistol, revolver, or other firearm capable of being concealed upon the person, as specified, which lacks various safety mechanisms and does not pass listed tests, as specified. (Penal Code § 31910.)
· Requires any concealable firearm manufactured in California, or intended to be imported for sale, kept for sale, or offered for sale to be tested within a reasonable period of time by an independent laboratory, certified by the state Department of Justice (DOJ), to determine whether it meets required safety standards, as specified. (Penal Code § 32010.)
· Requires DOJ, on and after January 1, 2001, to compile, publish, and thereafter maintain a roster listing all of the pistols, revolvers, and other firearms capable of being concealed upon the person that have been tested by a certified testing laboratory, have been determined not to be unsafe handguns, and may be sold in this state, as specified. The roster shall list, for each firearm, the manufacturer, model number, and model name. (Penal Code § 32015.)
· Provides that DOJ may charge every person in California who is licensed as a manufacturer of firearms, as specified, and any person in California who manufactures or causes to be manufactured, imports into California for sale, keeps for sale, or offers or exposes for sale any pistol, revolver, or other firearm capable of being concealed upon the person in California, an annual fee not exceeding the costs of preparing, publishing, and maintaining the roster of firearms determined not to be unsafe, and the costs of research and development, report analysis, firearms storage, and other program infrastructure costs, as specified. (Penal Code § 32015.)
Existing law requires that, commencing January 1, 2010, for all semiautomatic pistols that are not already listed on the roster pursuant to Section 32015, it is not designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired, provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions. (Penal Code § 31910(b)(7).)Existing law provides that any person in California who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends any unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year. (Penal Code § 32000(a).)
Existing law specifies that this section shall not apply to any of the following:
· The manufacture in California, or importation into this state, of any prototype pistol, revolver, or other firearm capable of being concealed upon the person when the manufacture or importation is for the sole purpose of allowing an independent laboratory certified by DOJ to conduct an independent test to determine whether that pistol, revolver, or other firearm capable of being concealed upon the person is prohibited, inclusive, and, if not, allowing the department to add the firearm to the roster of pistols, revolvers, and other firearms capable of being concealed upon the person that may be sold in this.
· The importation or lending of a pistol, revolver, or other firearm capable of being concealed upon the person by employees or authorized agents of entities determining whether the weapon is prohibited by this section.
· Firearms listed as curios or relics, as defined in federal law.
· The sale or purchase of any pistol, revolver, or other firearm capable of being concealed upon the person, if the pistol, revolver, or other firearm is sold to, or purchased by, the Department of Justice, any police department, any sheriff’s official, any marshal’s office, the Youth and Adult Correctional Agency, the California Highway Patrol, any district attorney’s office, or the military or naval forces of this state or of the United States for use in the discharge of their official duties. Nor shall anything in this section prohibit the sale to, or purchase by, sworn members of these agencies of any pistol, revolver, or other firearm capable of being concealed upon the person. (Penal Code § 32000(b).)
This bill would provide that a person who is exempted from the ban on buying or selling unsafe handguns, as specified, and who acquires a handgun that is not on the safe handgun roster, as specified, shall not sell or otherwise transfer ownership of the handgun to a person who is not similarly exempted.
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 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 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:
AB 2460 closes a loophole in the penal code that allows ineligible individuals to buy “unsafe handguns” from law enforcement officers through private party transfers. This has resulted most recently in a federal investigation into the illegal sale of handguns and assault weapons by law enforcement officers in Sacramento County.
2. Safe Handgun Law and the Effect of This Bill
SB 15 (Polanco), Chapter 248, Statutes of 1999, made it a misdemeanor for any person in California to manufacture, import for sale, offer for sale, give, or lend any unsafe handgun, as defined, with certain specific exceptions. SB 15 defined an “unsafe handgun” as follows: (a) does not have a requisite safety device, (b) does not meet specified firing tests, and (c) does not meet a specified drop safety test.
· Required Safety Device: The Safe Handgun Law requires a revolver to have a safety device that, either automatically in the case of a double-action firing mechanism or by manual operation in the case of a single-action firing mechanism, causes the hammer to retract to a point where the firing pin does not rest upon the primer of the cartridge or in the case of a pistol have a positive manually operated safety device.
· Firing Test: In order to meet the “firing requirements” under the Safe Handgun Law, the manufacturer must submit three unaltered handguns, of the make and model for which certification is sought, to an independent laboratory certified by the Attorney General. The laboratory shall fire 600 rounds from each gun under certain conditions. A handgun shall pass the test if each of the three test guns fires the first 20 rounds without a malfunction, and fires the full 600 rounds without more than six malfunctions and without any crack or breakage of an operating part of the handgun that increases the risk of injury to the user. “Malfunction” is defined as a failure to properly feed, fire or eject a round; failure of a pistol to accept or reject a manufacturer-approved magazine; or failure of a pistol’s slide to remain open after a manufacturer approved magazine has been expended.
· Drop Test: The Safe Handgun Law provides that at the conclusion of the firing test, the same three manufacturer’s handguns must undergo and pass a “drop safety requirement” test. The three handguns are dropped a specified number of times, in specified ways, with a primed case (no powder or projectile) inserted into the handgun, and the primer is examined for indentations after each drop. The handgun passes the test if each of the three test guns does not fire the primer.
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AB 2460 (Dickinson)
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Current law exempts handguns from the safety testing requirements that are sold to, or purchased by, the Department of Justice, any police department, any sheriff’s official, any marshal’s office, the Youth and Adult Correctional Agency, the California Highway Patrol, any district attorney’s office, or the military. Sworn members of those agencies are also exempted from the ban on buying or selling handguns that are not on DOJ’s “not unsafe” handgun roster. This bill would provide that anyone who falls under these exemptions and who acquires a handgun that is not on the “not unsafe” safe handgun roster, shall not sell or otherwise transfer ownership of the handgun to a person who is not similarly exempted.