Existing law authorizes the Department of Justice to assign a distinguishing number or mark of identification to any firearm whenever the firearm lacks a manufacturers number or other mark of identification, or whenever the manufacturers number or other mark of identification or distinguishing number or mark assigned by the department has been destroyed or obliterated.

This bill would, commencing July 1, 2018, and subject to exceptions, require a person who manufactures or assembles a firearm to first apply to the department for a unique serial number or other identifying mark, as provided. The bill would, by January 1, 2019, and subject to exceptions, require any person who, as of July 1, 2018, owns a firearm that does not bear a serial number to likewise apply to the department for a unique serial number or other mark of identification. The bill would prohibit the sale or transfer of ownership of a firearm manufactured or assembled pursuant to these provisions. The bill would prohibit a person from aiding in the manufacture or assembly of a firearm by a person who is prohibited from possessing a firearm. The bill would make a violation of these provisions a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.

The bill would require the department to issue a serial number or other identifying mark to an applicant meeting specified criteria and would allow the department to charge a fee to recover its costs associated with assigning a distinguishing number or mark pursuant to the above provisions.

Existing law allows an individual to request that the Department of Justice perform a firearms eligibility check for that individual. Existing law makes it a misdemeanor for a person or agency to require or request an individual to obtain a firearms eligibility check.

This bill would require a person to complete a firearms eligibility check before the department may grant an application for the assignment of a serial number or mark of identification. The bill would exempt this provision from the above prohibition on requiring or requesting an individual to obtain a firearms eligibility check.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law authorizes the Department of Justice to assign a distinguishing number or mark of identification to any firearm whenever the firearm lacks a manufacturers number or other mark of identification, or whenever the manufacturers number or other mark of identification or distinguishing number or mark assigned by the department has been destroyed or obliterated.

This bill would, commencing July 1, 2018, require a person who manufactures or assembles a firearm to first apply to the department for a unique serial number or other identifying mark, as provided. The bill would, by January 1, 2019, require any person who, as of July 1, 2018, owns a firearm that does not bear a serial number to likewise apply to the department for a unique serial number or other mark of identification. The bill would prohibit the sale or transfer of ownership of a firearm manufactured or assembled pursuant to these provisions. The bill would prohibit a person from aiding in the manufacture or assembly of a firearm by a person who is prohibited from possessing a firearm. The bill would make a violation of these provisions a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.

The bill would require the department to issue a serial number or other identifying mark to an applicant meeting specified criteria and would allow the department to charge a fee to recover its costs associated with assigning a distinguishing number or mark pursuant to the above provisions.

Existing law allows an individual to request that the Department of Justice perform a firearms eligibility check for that individual. Existing law makes it a misdemeanor for a person or agency to require or request an individual to obtain a firearms eligibility check.

This bill would require a person to complete a firearms eligibility check before the department may grant an application for the assignment of a serial number or mark of identification. The bill would exempt this provision from the above prohibition on requiring or requesting an individual to obtain a firearms eligibility check.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

SENATE THIRD READING

STR Bill Id:SB 1407

Author:(De León)

As Amended Ver:August 8, 2016

Majority vote

SENATE VOTE: 24-14

SUMMARY: Clarifies that the Department of Justice (DOJ) would be required to maintain and make available information concerning the number of serial numbers or other marks of identification issued pursuant to manufactured or assembled firearms.

EXISTING STATE LAW:

1. Prohibits a person, firm, or corporation licensed to manufacture firearms pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code from manufacturing firearms in California, unless the person, firm, or corporation is also licensed under California law. This prohibition does not apply to a person licensed under federal law, who manufactures less than 100 firearms a calendar year.
2. Makes it illegal to change, alter, remove, or obliterate the name of the maker, model, manufacturer's number, or other mark of identification on any pistol, revolver, or any other firearm, without first having secured written permission from the Department of Justice (DOJ) to make that change, alteration, or removal.
3. Allows DOJ, upon request, to assign a distinguishing number or mark of identification to any firearm whenever the firearm lacks a manufacturer's number or other mark of identification, or whenever the manufacturer's number or other mark of identification, or a distinguishing number or mark assigned by the department has been destroyed or obliterated.
4. Makes it misdemeanor, with limited enumerated exceptions, for any person to buy, receive, dispose of, sell, offer to sell, or have possession any pistol, revolver, or other firearm that has had the name of the maker or model, or the manufacturer's number or other mark of identification changed, altered, removed, or obliterated.
5. Requires a person be at least 18 years of age to purchase a rifle or shotgun. To purchase a handgun, a person must be at least 21 years of age. As part of the Dealer Record of Sales (DROS) process, the purchaser must present "clear evidence of identity and age" which is defined as a valid, non-expired California Driver's License or Identification Card issued by the Department of Motor Vehicles.
6. Requires purchasers to present a handgun safety certificate prior to the submission of DROS information for a handgun or provide the dealer with proof of exemption pursuant to California Penal Code Section 31700. Beginning on January 1, 2015, this requirement was extended to all firearms.
7. Requires that firearms dealers obtain certain identifying information from firearms purchasers and forward that information, via electronic transfer to DOJ to perform a background check on the purchaser to determine whether he or she is prohibited from possessing a firearm.
8. Requires firearms to be centrally registered at the time of transfer or sale by way of transfer forms centrally compiled by the DOJ. DOJ is required to keep a registry from data sent to DOJ indicating who owns what firearm by make, model, and serial number and the date thereof.
9. Requires that, upon receipt of the purchaser's information, DOJ shall examine its records, as well as those records that it is authorized to request from the State Department of Mental Health, in order to determine if the purchaser is prohibited from purchasing a firearm because of a prior felony conviction or because they had previously purchased a handgun within the last 30 days, or because they had received inpatient treatment for a mental health disorder, as specified.
10. Allows DOJ to require the dealer to charge each firearm purchaser a fee not to exceed $14, except that the fee may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations. This fee, known as the DROS fee, shall be no more than is necessary to fund specific codified costs.
11. Permits DOJ to charge a fee sufficient to reimburse it for each of the following but not to exceed $14, except that the fee may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations:
    1. For the actual costs associated with the preparation, sale, processing, and filing of specified forms or reports required or utilized;
    2. For the actual processing costs associated with the submission of a Dealers' Record of Sale to the DOJ;
    3. For the actual costs associated with the electronic or telephonic transfer of information; and
    4. Any costs incurred by DOJ to implement this section shall be reimbursed from fees collected and charged pursuant to this section.
12. Requires that the Attorney General establish and maintain an online database to be known as the Prohibited Armed Persons File. The purpose of the file is to cross-reference persons who have ownership or possession of a firearm on or after January 1, 1991, as indicated by a record in the Consolidated Firearms Information System, and who, subsequent to the date of that ownership or possession of a firearm, fall within a class of persons who are prohibited from owning or possessing a firearm.

FISCAL EFFECT: According to the Assembly Appropriations Committee, no cost to DOJ.

COMMENTS: According to the author, "Under the Gun Control Act of 1968, it is illegal for an unlicensed person to make a firearm for sale or distribution. However, a loophole in the law allows for the construction of firearms by unlicensed individuals so long as the firearms are made for personal use and are not sold or transferred.

"Unlike all other firearms, homemade guns have no record of existence. These homemade guns are assembled through the purchase of unfinished receivers, or 80% completed lower receivers. Unfinished receivers – the engine of a firearm – are not technically considered firearms because of their incomplete stage and thus do not require a serial number or background check for purchase. With an unfinished receiver, a firearm parts kit, and basic drilling machinery, an individual can assemble a fully functional firearm without being subject to the requirements placed on all other firearms transactions.

"This loophole poses an increasingly daunting challenge for law enforcement. As reported in the Sac Bee (December 19, 2015) 'California black market surges for 'ghost guns,'" there is an emerging black market for these homemade guns, or ghost guns, because they allow criminals and other dangerous individuals to circumvent background checks and other California firearms laws, including the state's assault weapons ban. Because these firearms are assembled privately and do not produce a sales record, no one knows they exist until a crime is committed. Federal and state officials have seized hundreds of these weapons in a series of ongoing undercover operations.

"Another telling example is the June 2013 shooting in Santa Monica by John Zawahri, who killed five people using a gun assembled at home. Although Zawahri was denied a firearms purchase by the Department of Justice because of mental illness concerns, he was able to skirt the law by purchasing a lower receiver online, which he modified to craft the AR-15 style rifle that was used in the shooting. Similarly, just last year, ghost guns were used in a murder-suicide in Walnut Creek.

"The development of technologies that make the manufacture of weapons accessible to the general public raises questions about whether homemade guns are being made by gang members, felons, and other prohibited individuals. Without specific measures that address the dangers posed by these self-made guns, criminals will exploit the technologies at the expense of public safety – as is proving to be the case throughout the state."

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0003948

Date of Hearing: August 10, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 1407

Author:(De León) – As Amended Ver:August 8, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill amends provisions of AB 857, Chapter 60, Statutes of 2016, which requires the Department of Justice (DOJ) to maintain, and make available upon request, information concerning the number of serial numbers issued, to alternatively provide the number of unique identifiers issued pursuant to the program established by AB 857.

FISCAL EFFECT:

No cost to DOJ.

COMMENTS:

Background/Purpose. This is a clean-up bill. AB 857 (Cooper), Chapter 60, Statutes of 2016, requires any person who manufactures or assembles a firearm to first obtain a serial number or unique identifier from the DOJ and demonstrate that he or she is not prohibited from owning firearms. DOJ is required to maintain specified statistics, including the number of serial numbers issued. SB 1407 requires the DOJ to maintain information on the number of unique identifiers issued.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: June 14, 2016

Counsel: Gabriel Caswell

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1407

Author:(De León) – As Amended Ver:May 11, 2016

SUMMARY: Requires that any person who manufactures or assembles a firearm to apply to the Department of Justice (DOJ) for a serial number, as specified. Specifically, this bill:

1. Defines “manufacturing” or “assembling” a firearm as “to fabricate or construct a firearm, or to fit together the component parts of a firearm to construct a firearm.”
2. Requires, commencing July 1, 2018, requires any person who manufactures or assembles a firearm to:
   1. Apply to the Department of Justice for a unique serial number or other mark of identification, as specified;
   2. Within ten days of manufacturing or assembling the firearm, to engrave or permanently affix the unique serial number or other mark to that firearm, as specified; and,
   3. Notify the DOJ once the serial number or other mark is affixed to the firearm, as specified.
3. States that by January 1, 2019, any person who, as of July 1, 2018, owns a firearm that does not bear a serial number, as specified, must:
   1. Apply to the Department of Justice for a unique serial number or other mark of identification, as specified;
   2. Within ten days of manufacturing or assembling the firearm, to engrave or permanently affix the unique serial number or other mark to that firearm, as specified; and,
   3. Notify the DOJ once the serial number or other mark is affixed to the firearm, as specified.
4. Specifies, prior to the DOJ providing the person with a unique serial number or other mark, the person must:
   1. Present proof the applicant is not prohibited by state or federal law;
   2. Present proof of age and identity. The applicant must be 18 years of age or older to obtain a unique serial number or mark of identification for a firearm that is not a handgun, and must be 21 years of age or older to obtain a unique serial number or mark of identification for a handgun;
   3. Provide a description of the firearm that he or she owns or intends to manufacture or assemble, in a manner prescribed by the department; and
   4. Have a valid firearm safety certificate or handgun safety certificate.
5. Prohibits the sale or transfer of ownership of a firearm manufactured or assembled pursuant to the provisions of this legislation, but allows for the transfer, surrender, or sale of a firearm to a law enforcement agency, as specified.
6. Exempts the following from the provisions of this legislation:
   1. A firearm that has a serial number assigned, as specified;
   2. A firearm made or assembled prior to December 16, 1968, that is not a handgun;
   3. A firearm which was entered into the centralized registry, as specified, prior to July 1, 2018, as being owned by a specific individual or entity if that firearm has assigned to it a distinguishing number or mark of identification to that firearm by virtue of the department accepting entry of that firearm into the centralized registry; and
   4. An antique firearm, as specified.
7. Provides if the firearm is a handgun, a violation of this section is punishable by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. For all other firearms, a violation of this section is punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. Each firearm found to be in violation of this section constitutes a distinct and separate offense. This section does not preclude prosecution under any other law providing for a greater penalty.
8. Requires the DOJ to maintain electronic records of all persons that receive a unique serial number or other mark, and notify the DOJ that it has been engraved or affixed to the firearm.
9. Requires DOJ to maintain and make available upon request information concerning both of the following:
   1. The number of serial numbers issued, as specified; and
   2. The number of arrests for violations of Section 29180.
10. Allows the DOJ to charge a fee for applications to administer the costs of electronic tracking and would authorize the DOJ to use the Dealer Record of Sales (DROS) account to cover actual costs associated with this legislation.

EXISTING FEDERAL LAW:

1. Requires licensed importers and licensed manufacturers to identify each firearm imported or manufactured by using the serial number engraved or cast on the receiver or frame of the weapon, in such manner as prescribed by the Attorney General. (18 U.S.C., § 923, subd. (i).)
2. Makes it illegal to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm that is not as detectable by walk-through metal detection as a security exemplar containing 3.7 oz of steel, or any firearm with major components that do not generate an accurate image before standard airport imaging technology. (18 U.S.C., § 922, subd. (p).)

EXISTING STATE LAW:

1. Prohibits a person, firm, or corporation licensed to manufacture firearms pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code from manufacturing firearms in California, unless the person, firm or corporation is also licensed under California law. This prohibition does not apply to a person licensed under federal law, who manufactures less than 100 firearms a calendar year. (Pen. Code, § 29010.)
2. Makes it illegal to change, alter, remove, or obliterate the name of the maker, model, manufacturer’s number, or other mark of identification on any pistol, revolver, or any other firearm, without first having secured written permission from the Department of Justice (DOJ) to make that change, alteration, or removal. (Pen. Code, § 23900.)
3. Allows DOJ, upon request, to assign a distinguishing number or mark of identification to any firearm whenever the firearm lacks a manufacturer’s number or other mark of identification, or whenever the manufacturer’s number or other mark of identification, or a distinguishing number or mark assigned by the department has been destroyed or obliterated. (Pen. Code, § 23910.)
4. Makes it misdemeanor, with limited enumerated exceptions, for any person to buy, receive, dispose of, sell, offer to sell or have possession any pistol, revolver, or other firearm that has had the name of the maker or model, or the manufacturer’s number or other mark of identification changed, altered, removed, or obliterated. (Pen. Code, §§ 23920 & 23925.)
5. Requires a person be at least 18 years of age to purchase a rifle or shotgun. To purchase a handgun, a person must be at least 21 years of age. As part of the Dealer Record of Sales (DROS) process, the purchaser must present “clear evidence of identity and age” which is defined as a valid, non-expired California Driver’s License or Identification Card issued by the Department of Motor Vehicles. (Pen. Code, §§ 27510 & 16400.)
6. Requires purchasers to present a handgun safety certificate prior to the submission of DROS information for a handgun or provide the dealer with proof of exemption pursuant to California Penal Code Section 31700. Beginning on January 1, 2015, this requirement was extended to all firearms. (Pen. Code, § 26840.)
7. Requires that firearms dealers obtain certain identifying information from firearms purchasers and forward that information, via electronic transfer to DOJ to perform a background check on the purchaser to determine whether he or she is prohibited from possessing a firearm. (Pen. Code, §§ 28160-28220.)
8. Requires firearms to be centrally registered at the time of transfer or sale by way of transfer forms centrally compiled by the DOJ. DOJ is required to keep a registry from data sent to DOJ indicating who owns what firearm by make, model, and serial number and the date thereof. (Pen. Code, § 11106, subds. (a) & (c).)
9. Requires that, upon receipt of the purchaser’s information, DOJ shall examine its records, as well as those records that it is authorized to request from the State Department of Mental Health, in order to determine if the purchaser is prohibited from purchasing a firearm because of a prior felony conviction or because they had previously purchased a handgun within the last 30 days, or because they had received inpatient treatment for a mental health disorder, as specified. (Pen. Code, § 28220.)
10. Allows DOJ to require the dealer to charge each firearm purchaser a fee not to exceed $14, except that the fee may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations. This fee, known as the DROS fee, shall be no more than is necessary to fund specific codified costs. (Pen. Code, § 28225.)
11. Permits DOJ to charge a fee sufficient to reimburse it for each of the following but not to exceed fourteen dollars ($14), except that the fee may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations: (Pen. Code, § 28230.)
    1. For the actual costs associated with the preparation, sale, processing, and filing of specified forms or reports required or utilized;
    2. For the actual processing costs associated with the submission of a Dealers’ Record of Sale to the DOJ;
    3. For the actual costs associated with the electronic or telephonic transfer of information; and
    4. Any costs incurred by DOJ to implement this section shall be reimbursed from fees collected and charged pursuant to this section.
12. Requires that the Attorney General establish and maintain an online database to be known as the Prohibited Armed Persons File. The purpose of the file is to cross-reference persons who have ownership or possession of a firearm on or after January 1, 1991, as indicated by a record in the Consolidated Firearms Information System, and who, subsequent to the date of that ownership or possession of a firearm, fall within a class of persons who are prohibited from owning or possessing a firearm. (Pen. Code, § 30000.)

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, "Under the Gun Control Act of 1968, it is illegal for an unlicensed person to make a firearm for sale or distribution. However, a loophole in the law allows for the construction of firearms by unlicensed individuals so long as the firearms are made for personal use and are not sold or transferred.
   
   "Unlike all other firearms, homemade guns have no record of existence. These homemade guns are assembled through the purchase of unfinished receivers, or 80 percent completed lower receivers. Unfinished receivers—the engine of a firearm—are not technically considered firearms because of their incomplete stage and thus do not require a serial number or background check for purchase. With an unfinished receiver, a firearm parts kit, and basic drilling machinery, an individual can assemble a fully functional firearm without being subject to the requirements placed on all other firearms transactions.
   
   "This loophole poses an increasingly daunting challenge for law enforcement. As reported in the Sac Bee (December 19, 2015) “California black market surges for ‘ghost guns’,” there is an emerging black market for these homemade guns, or ghost guns, because they allow criminals and other dangerous individuals to circumvent background checks and other California firearms laws, including the state’s assault weapons ban. Because these firearms are assembled privately and do not produce a sales record, no one knows they exist until a crime is committed. Federal and state officials have seized hundreds of these weapons in a series of ongoing undercover operations.
   
   "Another telling example is the June 2013 shooting in Santa Monica by John Zawahri, who killed five people using a gun assembled at home. Although Zawahri was denied a firearms purchase by the Department of Justice because of mental illness concerns, he was able to skirt the law by purchasing a lower receiver online, which he modified to craft the AR-15 style rifle that was used in the shooting. Similarly, just law year, ghost guns were used in a murder-suicide in Walnut Creek.
   
   "The development of technologies that make the manufacture of weapons accessible to the general public raises questions about whether homemade guns are being made by gang members, felons, and other prohibited individuals. Without specific measures that address the dangers posed by these self-made guns, criminals will exploit the technologies at the expense of public safety—as is proving to be the case throughout the state."
   
2. Applying Serial Numbers to "Ghost Guns": SB 1407 would require any person who manufactures or assembles a firearm to first obtain a serial number from the DOJ and demonstrate that he or she is not prohibited from owning firearms. Specifically, any person who manufactures or assembles a firearm will be required to:
   
   1. Obtain a unique serial number or other mark from the Department of Justice prior to making or assembling a firearm;
      
   2. Within ten days of making or assembling to engrave or permanently affix the unique serial number or other mark to the firearm; and,
      
   3. Notify the Department of Justice once the serial number or other mark is affixed to the firearm.
      

Prior to the DOJ providing the person with a unique serial number or other mark, the person must:

• 1. Present proof the applicant is not prohibited by state or federal law;
  2. Present proof of age and identity. The applicant must be 18 years of age or older to obtain a unique serial number or mark of identification for a firearm that is not a handgun, and must be 21 years of age or older to obtain a unique serial number or mark of identification for a handgun;
  3. Provide a description of the firearm that he or she owns or intends to manufacture or assemble, in a manner prescribed by the department; and
  4. Have a valid firearm safety certificate or handgun safety certificate.

There are no provisions in existing law that prevent a person from buying an 80% lower receiver^[1] and then making it into a fully functional firearm. Because 80% lower receivers are not considered firearms, a person purchasing them does not have to go through a federal firearms dealer, and does not have to undergo a background check. According to the author, SB 1407 will help to close this loophole.

1. Lower Receivers: There are no provisions in existing law that prevents a person from buying an 80% lower receiver and then making it into a fully functional firearm. According to Tactical Machining, “An 80% Receiver is a partially completed piece of material that requires special tooling and skills to be completed and considered a firearm.” (http://www.tacticalmachining.com/80-lower-receiver.html.) Because 80% lower receivers are not considered firearms, a person purchasing them does not have to go through a federal firearms dealer, and does not have to undergo a background check. Additionally, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) "firearms that began as receiver blanks have been recovered after shooting incidents, from gang members and from prohibited people after they have been used to commit crimes.” (https://www.atf.gov/firearms/qa/have-firearms-made-unmarked-receiver-blanks-been-recovered-after-being-used-crime.) "ATF successfully traces crime guns to the first retail purchaser in most instances. ATF starts with the manufacturer and goes through the entire chain of distribution to find who first bought the firearm from a licensed dealer. Because receiver blanks do not have markings or serial numbers, when firearms made from such receiver blanks are found at a crime scene, it is usually not possible to trace the firearm or determine its history, which hinders crime gun investigations jeopardizing public safety.” (https://www.atf.gov/firearms/qa/can-functioning-firearms-made-receiver-blanks-be-traced.)
2. Santa Monica Shooting: According to a July 15, 2013, briefing prepared by the Minority Staff of the Committee on Energy and Commerce, United States House of Representatives:

On June 7, 2013, John Zawahri, 23, killed five people and injured several more during a shooting rampage that lasted approximately 13 minutes in Santa Monica, California. He first shot and killed his father, Samir Zawahri, and brother, Christopher, at their home. He then pulled over and carjacked Laurie Sisk, forcing her to drive at gunpoint to Santa Monica College. Zawahri shot at numerous cars, pedestrians, and a bus en route, killing the college’s groundskeeper, Carlos Franco, and his daughter, Marcela. Upon arriving at the campus, he then fatally shot another woman, Margarita Gomez. He then entered the school library, where he attempted to kill several library patrons who were hiding in a safe room. Police, who had been alerted to the shooting and to Zawahri’s location by numerous 911 calls, exchanged gunfire in the library with the shooter and pronounced him dead at the scene. According to authorities, Zawahri fired approximately 100 rounds in total.

Zawahri had a history of mental illness. In 2006, a teacher at his high school discovered Zawahri researching assault weapons online. School officials contacted the police and he was subsequently admitted to the psychiatric ward at the University of California, Los Angeles Medical Center. Zawahri attempted to buy a weapon in 2011, but a background check conducted by the California Department of Justice found him ineligible and denied the purchase. The reasons for this denial have not been publicly released.

Zawahri used a modified AR-15 rifle in the shooting and also carried a .44-caliber handgun. He possessed more than 1,300 rounds of ammunition. The AR-15 rifle is the same type of gun used in the mass shootings that occurred in Aurora, Colorado, and Newtown, Connecticut. The AR-15 firearm held 30 rounds. California state law bans the sale of AR-15 rifles with a magazine capacity greater than ten rounds. Authorities believe that Zawahri assembled his AR-15 rifle using parts he bought in pieces from a number of different sources, including an 80% completed lower receiver. Police found a drill press at Zawahri’s home, a tool that can make holes in the lower receiver to complete the weapon. (Citations Omitted.)

1. Governor's Veto Message of 2013's SB 808 (De Leon): SB 808 required serial numbers on lower receivers. The governor vetoed the bill with the following message:

"I am returning Senate Bill 808 without my signature.

"SB 808 would require individuals who build guns at home to first obtain a serial number and register the weapon with the Department of Justice.

"I appreciate the author's concerns about gun violence, but I can't see how adding a serial number to a homemade gun would significantly advance public safety."

1. Argument in Support: According to the California Police Chiefs Association, "the California Police Chiefs Association supports Senate Bill 1407, which would require a person who manufactures or assembles a firearm, or owns a firearm that does not bear a serial number, to apply to the Department of Justice for a unique serial number or other identifying mark.

"There are no provisions in existing law that prevent a person from manufacturing or buying an 80% lover receivers – the basis of a firearm – and then making it into a fully functional firearm. Furthermore, the accessibility of these parts have become increasingly easier to acquire with the invention of 3D printers. Because 80% lower receivers are not considered firearms, a person purchasing them does not have to go through a federal firearms dealer, and does not have to undergo a background check. This has created a loophole that allows prohibited felons, gang members, and mentally ill individuals to obtain firearms against the intent of our laws.

"California has some of the strictest regulations in the nation. The laws are meant to keep our neighborhoods safer and aid law enforcement's fight against gun violence, while still protecting the rights of responsible gun owners. Essential to each is the ability to track and verify the ownership of each firearm in the state. It is detrimental to public safety and law enforcement's ability to solve crimes if there are innumerable firearms in circulation without serialization or registration. If we do not begin to address this problem now, the number of shootings involving untraceable firearms will become a much heavier burden on law enforcement, and the victims of gun violence, in the future."

1. Argument in Opposition: According to the Firearms Policy Coalition, "On behalf of Firearms Policy Coalition, I respectfully submit our opposition to Senate Bill 1407 (de Leon), a measure that seeks to retroactively assign a serial number to every firearm in existence dating back at least 48 years for long guns and 50 years for handguns, take the property of those who bother to actually comply and criminalize and incarcerate residents and visitors for mere possession of any firearm or family heirloom that does not have a serial number, even though firearms manufactured prior to 1968 were not required to be serialized.

"SB 1407 will cost millions to implement and enforce, even with the predictably modest public compliance. It is laughable to think that those with criminal intent will comply-- leaving only those law abiding residents who were informed of the new law and how to comply with it as potential test cases.

"SB 1407 requires gun owners to apply for, and affix, a Department of Justice (DOJ) -provided serial number to ALL un-serialized legally acquired firearms dating back around 50 years.

"Oddly, if anyone were to comply with the provisions of this measure and apply for a serial number, they would then lose all interest in the property as SB 1407 prohibits the sale or transfer of those weapons that were serialized according to the bill. This means that mere compliance is a loss of property and inheritance. The measure does not seem to contemplate community property. After the death of a firearm owner who actually complied, will the DOJ be sending in teams of police to confiscate the over-night contraband?

"In order to implement this measure, the California Department of Justice (DOJ) will have to create all new regulations, forms, databases and policies. DOJ will have to hire, shift or contract with dozens of full time staffers in order to take on this ambitious task. Given the DOJ’s track record with other programs, databases and inefficient use of special and general funds…we are not optimistic.

"There are hundreds of thousands, and perhaps even millions – of personally assembled and un-serialized firearms in California today. SB 1407 makes no provision for how the Department will communicate with these lawful gun owners and inform them of their new obligations and criminal liabilities under your proposed law. Even if the Department could create and implement such a massive outreach program, SB 1407 does not provide any funding to pay for it. That defect is a terminal one.

"Next, SB 1407 fails to address the bill’s effects on the Department of Justice itself. How will the Department pay for handling such a massive influx of applications and maintain its other mandated firearms-related services without causing unconstitutional delays? We note here that DOJ already has a number of state and federal lawsuits against it because of its continuing failure to respect law-abiding Californians’ Second Amendment civil rights.

"What happens to the thousands of law-abiding gun owners that will doubtlessly end up waiting for the Department to wade through the mile-high stack of new background checks and serial number applications? Will they be excused from the enforcement of SB 1407’s penalties, or will these good people end up further burdening our court system and adding to our already seriously overcrowded prisons?

"SB 1407 forces law enforcement officers into the job of identifying a firearm’s age, which, in many cases, is impossible. Firearms that have been in common use for lawful purposes for decades or centuries, such as model 1911 handguns and AR- 15 semi-automatic rifles, made prior to the federal serialization requirement in 1968 are virtually, if not outright, the same as those that will be made after SB 1407 would take effect.

"How will law enforcement determine the difference? Put simply, without destructive metallurgical tests on every gun they encounter, there is no way to know. (Even then, the certainty is not absolute.) SB 1407 will place well-intentioned peace officers into the compromising position of either choosing to not enforce SB 1407 or seizing personal property and/or arresting people with no assurances as to the legal authority for those actions. This bill creates massive cost exposure for the state and local governments through its certain outcome of civil rights lawsuits on claims of Second, Fourth, and Fifth Amendment violations.

"SB 1407 fails to account for the educational costs necessitated for law enforcement education to inform officers which guns fall into the exempted class at any given time. Additionally, any firearm manufactured in 1968 will be considered an exempted curio or relic as a matter of law, just two years after the proposed implementation of SB 1407. This moving target will continue in perpetuity, creating an ever-growing list of exempted firearms for which law enforcement officers will need to be educated.

"Finally, many firearms assembled at home hold substantial monetary value for the sheer fact that they are rare or novel replicas of a historically significant gun. Forced destruction of property will undoubtedly lead to thousands of takings and damage claims against the state.

"SB 1407 adds enormous direct and social costs not limited to the fiscal and policy issues noted above. The bill also presents tangible constitutional conflicts and sets local law enforcement up for expensive litigation and damage awards.

"For these reasons we respectfully ask for you to reject this measure."

1. Related Legislation: AB 1673 (Gipson), expands the definition of "firearm" to include the frame or receiver of the weapon or a frame or receiver "blank, casting or machined body" that is designed and clearly identifiable as a component of a functional weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion. AB 1673 is awaiting a hearing in Senate Public Safety.
2. Prior Legislation:
   1. SB 808 (De León), of the 2013-2014 Legislative Session, required a person, commencing January 1, 2016, to apply to and obtain from the Department of Justice (DOJ) a unique serial number or other mark of identification prior to manufacturing or assembling a firearm. AB 808 was vetoed by the governor.
   2. AB 809 (Feuer), Statutes of 2011, Chapter 745, conformed requirements for reporting and record retention involving the transfer of long guns with those of handguns.
      
   3. AB 302 (Beall), Statutes of 2010, Chapter 344, required that by July 1, 2012, specified mental health facilities shall report to the DOJ exclusively by electronic means when a person is admitted to that facility either because that person was found to be a danger to themselves or others, or was certified for intensive treatment for a mental disorder, as specified.

REGISTERED SUPPORT / OPPOSITION:

Support

California Academy of Family Physicians

California Chapters of the Brady Campaign

California Police Chiefs Association

Opposition

Firearms Policy Coalition
Gun Owners of California

California Rifle and Pistol Association

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

1. According to Tactical Machining, “An 80% Receiver is a partially completed piece of material that requires special tooling and skills to be completed and considered a firearm.” (http://www.tacticalmachining.com/80-lower-receiver.html.) ↑

 THIRD READING  

Bill No: SB 1407

Author: De León (D), et al.

Amended: 5/11/16

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 4/19/16

AYES: Hancock, Glazer, Leno, Liu, Monning

NOES: Anderson, Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

SUBJECT: Firearms: identifying information

SOURCE: Author

DIGEST: This bill requires (1) a person, commencing July 1, 2018, to apply to and obtain from the Department of Justice (DOJ) a unique serial number or other mark of identification prior to manufacturing or assembling a firearm, as specified; and (2) by January 1, 2019, any person who, as of July 1, 2018, owns a firearm that does not bear a serial number assigned to it to obtain a unique serial number or other mark of identification prior to manufacturing or assembling a firearm, as specified.

ANALYSIS:

Existing law:

1. Requires licensed importers and licensed manufacturers to identify each firearm imported or manufactured by using the serial number engraved or cast on the receiver or frame of the weapon, in such manner as prescribed by the Attorney General. (18 U.S.C. § 923(i).)
2. Makes it illegal, under the United States Undetectable Firearms Act of 1988, to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm that is not as detectable by walk-through metal detection as a security exemplar containing 3.7 ounces of steel, or any firearm with major components that do not generate an accurate image before standard airport imaging technology. (18 U.S.C. § 922(p).)
3. Prohibits a person, firm, or corporation licensed to manufacture firearms pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code from manufacturing firearms in California, unless the person, firm or corporation is also licensed under California law. This prohibition does not apply to a person licensed under federal law, who manufactures less than 100 firearms a calendar year. (Penal Code § 29010.)
4. Makes it illegal to change, alter, remove, or obliterate the name of the maker, model, manufacturer’s number, or other mark of identification on any pistol, revolver, or any other firearm, without first having secured written permission from the DOJ to make that change, alteration, or removal. Anyone who is found to have violated this section shall be punished by imprisonment pursuant to subdivision (h) of Section 1170. (Penal Code § 23900.)
5. Allows the DOJ, upon request, to assign a distinguishing number or mark of identification to any firearm whenever the firearm lacks a manufacturer’s number or other mark of identification, or whenever the manufacturer’s number or other mark of identification, or a distinguishing number or mark assigned by the department has been destroyed or obliterated. (Penal Code § 23910.)
6. Makes it misdemeanor, with limited enumerated exceptions, for any person to buy, receive, dispose of, sell, offer to sell or have possession any pistol, revolver, or other firearm that has had the name of the maker or model, or the manufacturer’s number or other mark of identification changed, altered, removed, or obliterated. (Penal Code §§ 23920 and 23925.)
7. Requires a person be at least 18 years of age to purchase a rifle or shotgun. To purchase a handgun, a person must be at least 21 years of age. As part of the Dealers’ Record of Sale (DROS) process, the purchaser must present “clear evidence of identity and age” which is defined as a valid, non-expired California Driver’s License or Identification Card issued by the Department of Motor Vehicles. (Penal Code §§ 27510 and 16400.)
8. Requires purchasers to present a handgun safety certificate prior to the submission of DROS information for a handgun or provide the dealer with proof of exemption pursuant to California Penal Code Section 31700. Beginning on January 1, 2015, this requirement was extended to all firearms. (Penal Code § 26840.)
9. Requires that firearms dealers obtain certain identifying information from firearms purchasers and forward that information, via electronic transfer to DOJ to perform a background check on the purchaser to determine whether he or she is prohibited from possessing a firearm. (Penal Code §§ 28160-28220.)
10. Requires firearms to be centrally registered at the time of transfer or sale by way of transfer forms centrally compiled by the DOJ. The DOJ is required to keep a registry from data sent to DOJ indicating who owns what firearm by make, model, and serial number and the date thereof. (Penal Code § 11106(a) and (c).)
11. Requires that, upon receipt of the purchaser’s information, DOJ shall examine its records, as well as those records that it is authorized to request from the State Department of Mental Health pursuant to Section 8104 of the Welfare and Institutions Code, in order to determine if the purchaser is prohibited from purchasing a firearm because of a prior felony conviction or because they had previously purchased a handgun within the last 30 days, or because they had received inpatient treatment for a mental health disorder, as specified. (Penal Code § 28220.)
12. Allows the DOJ to require the dealer to charge each firearm purchaser a fee not to exceed $14, except that the fee may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations. This fee, known as the DROS fee, shall be no more than is necessary to fund specific codified costs. (Penal Code § 28225.)
13. Allows the DOJ to charge a fee sufficient to reimburse it for each of the following but not to exceed $14, except that the fee may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations:
    1. For the actual costs associated with the preparation, sale, processing, and filing of forms or reports required or utilized pursuant to any provision listed in subdivision (a) of Section 16585.
    2. For the actual processing costs associated with the submission of a DROS to the department.
    3. For the actual costs associated with the preparation, sale, processing, and filing of reports utilized pursuant to Sections 26905, 27565, or 28000, or paragraph (1) of subdivision (a) of Section 27560.
    4. For the actual costs associated with the electronic or telephonic transfer of information pursuant to Section 28215. (Penal Code § 28230.)
14. Requires the Attorney General to establish and maintain an online database to be known as the Prohibited Armed Persons File. The purpose of the file is to cross-reference persons who have ownership or possession of a firearm on or after January 1, 1991, as indicated by a record in the Consolidated Firearms Information System, and who, subsequent to the date of that ownership or possession of a firearm, fall within a class of persons who are prohibited from owning or possessing a firearm. (Penal Code § 30000.)

This bill:

1. Defines “manufacturing” or “assembling” a firearm as “to fabricate or construct a firearm, or to fit together the component parts of a firearm to construct a firearm.”
2. Requires, commencing July 1, 2018, any person who manufactures or assembles a firearm to:
   1. Apply to the DOJ for a unique serial number or other mark of identification, as specified;
   2. Engrave or permanently affix the unique serial number or other mark to that firearm, as specified, within 10 days of manufacturing or assembling the firearm; and
   3. Notify the DOJ once the serial number or other mark is affixed to the firearm, as specified.
3. States that by January 1, 2019, any person who, as of July 1, 2018, owns a firearm that does not bear a serial number, as specified, must:
   1. Apply to the DOJ for a unique serial number or other mark of identification, as specified;
   2. Engrave or permanently affix the unique serial number or other mark to that firearm, as specified, within 10 days of manufacturing or assembling the firearm; and,
   3. Notify the DOJ once the serial number or other mark is affixed to the firearm, as specified.
4. Specifies, prior to the DOJ providing the person with a unique serial number or other mark, the person must:
   1. Present proof the applicant is not prohibited by state or federal law.
   2. Present proof of age and identity. The applicant must be 18 years of age or older to obtain a unique serial number or mark of identification for a firearm that is not a handgun, and must be 21 years of age or older to obtain a unique serial number or mark of identification for a handgun.
   3. Provide a description of the firearm that he or she owns or intends to manufacture or assemble, in a manner prescribed by the department.
   4. Have a valid firearm safety certificate or handgun safety certificate.
5. Prohibits the sale or transfer of ownership of a firearm manufactured or assembled pursuant to the provisions of this bill, but allows for the transfer, surrender, or sale of a firearm to a law enforcement agency, as specified.
6. Exempts the following from the provisions of this bill:
   1. A firearm that has a serial number assigned, as specified.
   2. A firearm made or assembled prior to December 16, 1968, that is not a handgun.
   3. A firearm which was entered into the centralized registry, as specified, prior to July 1, 2018, as being owned by a specific individual or entity if that firearm has assigned to it a distinguishing number or mark of identification to that firearm by virtue of the department accepting entry of that firearm into the centralized registry.
   4. An antique firearm and curio and relic, as specified.
7. Provides if the firearm is a handgun, a violation of this section is punishable by imprisonment in a county jail not to exceed one year, or by a fine not to exceed $1,000, or by both that fine and imprisonment. For all other firearms, a violation of this section is punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed $1,000, or by both that fine and imprisonment. Each firearm found to be in violation of this section constitutes a distinct and separate offense. This section does not preclude prosecution under any other law providing for a greater penalty.
8. Requires the DOJ to maintain electronic records of all persons that receive a unique serial number or other mark, and notify the DOJ that it has been engraved or affixed to the firearm.
9. Requires DOJ to maintain and make available upon request information concerning both of the following:
   1. The number of serial numbers issued, as specified.
   2. The number of arrests for violations of Section 29180.
10. Allows the DOJ to charge a fee for applications to administer the costs of electronic tracking and would authorize the DOJ to use the DROS account to cover actual costs associated with this bill.

Comments

This bill requires any person who manufactures or assembles a firearm to first obtain a serial number from the DOJ and demonstrate that he or she is not prohibited from owning firearms. Specifically, any person who manufactures or assembles a firearm will be required to:

• Obtain a unique serial number or other mark from the DOJ prior to making or assembling a firearm;
• Engrave or permanently affix the unique serial number or other mark to the firearm within 10 days of making or assembling the firearm; and,
• Notify the DOJ once the serial number or other mark is affixed to the firearm.

Prior to the DOJ providing the person with a unique serial number or other mark, the person must:

• Present proof the applicant is not prohibited by state or federal law.
• Present proof of age and identity. The applicant must be 18 years of age or older to obtain a unique serial number or mark of identification for a firearm that is not a handgun, and must be 21 years of age or older to obtain a unique serial number or mark of identification for a handgun.
• Provide a description of the firearm that he or she owns or intends to manufacture or assemble, in a manner prescribed by the department.
• Have a valid firearm safety certificate or handgun safety certificate.

There are no provisions in existing law that prevent a person from buying an 80% lower receiver and then making it into a fully functional firearm. Because 80% lower receivers are not considered firearms, a person purchasing them does not have to go through a federal firearms dealer, and does not have to undergo a background check. According to the author, this bill will help to close this loophole.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• One-time costs of $75,000 (Special Fund*) for the DOJ to promulgate regulations.
• One-time costs to the DOJ in the range of $2 million (Special Fund*) for enhancements to various automation systems. Costs include staffing, overtime, external consultants, and software development. Ongoing costs for storage, updates and maintenance are estimated to be in the hundreds of thousands of dollars annually.
• Start-up costs to the DOJ of $365,000 (Special Fund*) to process and verify an estimated 15,000 applications to register 30,000 firearms. Annual costs in the range of $100,000 (Special Fund*) for ongoing administration of the program to process an estimated 1,000 applications to register 2,000 firearms, verify required information, assign serial numbers, and input data. The $25 fee per application would cover start-up costs but would not sustain the ongoing costs of the program (1,000 applications would only generate $25,000 in fee revenue).
• Non-reimbursable local enforcement costs (Local Funds) offset to a degree by fine revenue to the extent violations of the new registration requirements occur.
• Potential court-related costs (General Fund**) for new misdemeanor filings.
• While the impact of this bill independently on local jails is likely to be minor, the cumulative effect of expanded misdemeanors could create General Fund cost pressure on capital outlay, staffing, programming, the courts, and other resources in the context of criminal justice realignment.
• DROS Account – Appropriations staff noted that the DROS Account is structurally imbalanced, with an estimated year-end fund balance of less than $1 million in FY 2016-17. As a result, an appropriation from another fund source, potentially the General Fund, would be required to support the activities required by this bill.

** Trial Court Trust Fund

SUPPORT: (Verified 5/17/16)

California Academy of Family Physicians

California Police Chiefs Association

OPPOSITION: (Verified 5/17/16)

California Rifle and Pistol Association

Gun Owners of California

Firearms Policy Coalition

National Rifle Association of America

ARGUMENTS IN SUPPORT: According to the California Police Chiefs Association:

The California Police Chiefs Association supports Senate Bill 1407, which would require a person who manufactures or assembles a firearm, or owns a firearm that does not bear a serial number, to apply to the Department of Justice for a unique serial number or other identifying mark.

There are no provisions in existing law that prevent a person from manufacturing or buying an 80% lower receiver—the basis of a firearm—and then making it into a fully functional firearm. Furthermore, the accessibility of these parts have become increasingly easier to acquire with the invention of 3D printers. Because 80% lower receivers are not considered firearms, a person purchasing them does not have to go through a federal firearms dealer, and does not have to undergo a background check. This has created a loophole that allows prohibited felons, gang members, and mentally ill individuals to obtain firearms against the intent of our laws.

California has some of the strictest firearm regulations in the nation. The laws are meant to keep our neighborhoods safer and aid law enforcements fight against gun violence, while still protecting the rights of responsible gun owners. Essential to each, in the ability to track and verify the ownership of each firearm in the state. It is detrimental to public safety and law enforcement’s ability to solve crimes if there are innumerable firearms in circulation without serialization or registration. If we do not begin to address this problem now, the number of shootings involving untraceable firearms will become a much heavier burden on law enforcement, and the victims of gun violence, in the future.

ARGUMENTS IN OPPOSITION: According to the National Rifle Association:

SB 1407 would make it a crime under California law for an individual to manufacture a firearm without first obtaining California Department of Justice (DOJ) approval to do so and subsequently engraving a DOJ-provided serial number on the firearm.  This legislation should be opposed because it will effectively nullify the long-standing and constitutionally protected activity of building one’s own firearms.  Additionally, SB 1407 will promote the destruction and devaluation of existing firearms without any tangible public safety benefit.

First, precluding an individual from manufacturing a firearm without first obtaining government approval infringes on the longstanding American tradition of manufacturing a personal firearm.  From prior to the Revolution to the Civil War most Americans were intimately involved in constructing and designing their own firearms. (See Peter Jensen-Haxel,3D Printers, Obsolete Firearm Supply Controls, and the Right to Build Self-Defense Weapons Under Heller, 42 Golden Gate U. L. Rev. 447, 477-78 (2012).)  Even though this involvement faded somewhat in other parts of the country with the rise of nineteenth-century industrialization, it remained a fundamental part of Californian identity well into the twentieth-century, as many in the unpopulated frontier of the American West continued to manufacture their own firearms. (Lawrence P. Shelton, California Gunsmiths 1846-1900, 5 (1977).)  This tradition continues to this day, with many Californians manufacturing their own firearms without seeking government permission to do so.

As the U.S. Supreme Court has made clear, the Second Amendment protects the “ancient” and “natural” right to keep and bear arms. (District of Columbia v. Heller, 554 U.S. 570, 599 (2008).)  The Court went to great lengths to explain that the scope of that right is defined by the public’s understanding of the Second Amendment at the time of the founding. (Id. at 605.)  Accordingly, given this unobstructed and long-standing tradition of personally manufacturing firearms stretching from the Revolutionary War to the present, SB 1407’s requirement that individuals receive government approval to manufacture their personal firearms violates the Second Amendment.

Moreover, the restrictions imposed by this legislation are wholly unwarranted.  State and federal laws already prohibit people from possessing dangerous firearms.  For example, it is already illegal for any member of the general public to make or possess an assault weapon. (See Cal. Penal Code §§ 30600 and 30605.)  Similarly, the manufacture and possession of machineguns, short-barreled shotguns and short-barreled rifles are highly regulated under state and federal and law. (26 U.S.C. § 5861; Cal. Penal Code §§ 32625, 33210.)  And potentially dangerous people convicted of felony offenses, subject to a restraining order, or adjudicated mentally defective, already may not possess firearms. (18 U.S.C. § 922(g); Cal. Penal Code §§ 29800, 29825; Cal. Welf. & Inst. Code § 8103.)  Because it is already a crime for people to possess these dangerous firearms, and for potentially dangerous people to possess any firearms, it is highly unlikely that SB 1407 will do anything of use to keep potentially dangerous weapons out of the hands of those who shouldn’t have them. Thus, SB 1407 will only serve to waste scarce law enforcement resources by creating additional red-tape to regulate the activities of responsible firearm owners.

Make no mistake, SB 1407 will effectively end the practice of personally manufacturing firearms in California. Section 5 of this bill requires that each person, within one day of manufacturing or assembling a firearm, affix a unique serial number provided by DOJ, and that the number be engraved in a manner that meets or exceeds the requirements imposed on federally licensed firearms manufactures.  The problem is the federal requirements, designed for companies that are in the business of manufacturing firearms for national distribution, are extensive.  A manufacture must stamp, at a minimum depth of .003 inch, the firearm’s serial number, model, and caliber, as well as the name of the manufacturer, and the city and state where manufactured. 27 C.F.R. § 478.92.  Needless to say, precisely engraving all this information requires highly sophisticated equipment that most Californian manufacturing hobbyists do not have and cannot afford. Thus, SB 1407 will without a doubt price most Californians out of personal firearms manufacturing.

Additionally, this legislation would cause firearm owners to damage and/or significantly diminish the value of their firearms.  This bill etches out minor exceptions to its requirements.  One being the fact that it does not require the markings for a “firearm made or assembled prior to December 16, 1968, that is not a handgun.”  The year 1968 is significant because that is the year the federal Gun Control Act was enacted.  The Gun Control Act significantly enhanced the 1958 Treasury Department regulations promulgated under the Federal Firearms Act, which required that firearms be stamped with a specific serial number.  Gun Control Act of 1968 § 923(i).  While this law creates an exception for non-handguns, it requires handguns made prior to 1968 to be defaced by adding a serial number.  Any make defacing a firearm of that age will result in a diminution of that firearm’s value.

Finally, SB 1407 creates significant confusion over when manufacturers must have their firearms engraved.  Specifically, this bill defines “firearm” to include the unfinished frame or receiver of a weapon that can be “readily converted” to the functional condition of a finished frame or receiver.  Accordingly, personal firearm manufactures are required to obtain and affix a DOJ serial number, at some undefined point in the middle of the manufacturing process when the raw materials for a firearm are “readily convertible” into a firearm.  And to make matters worse, SB 1407 never defines the term “readily convertible,” leaving it up to personal manufactures to guess if they are far enough in the manufacturing process to obtain a serial number and affix it to an unfinished frame and receiver.  If the manufacturer guesses wrong, he or she is guilty of a crime.

Prepared by: Jessica Devencenzi / PUB. S. /

5/18/16 16:28:08

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 1407 (de León) - Firearms: identifying information

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 1407 would require, commencing July 1, 2018, a person to apply to and obtain from the Department of Justice (DOJ) a unique serial number or other mark of identification prior to manufacturing or assembling a firearm, subject to specified exceptions. This bill would require any person who, as of July 1, 2018, owns a firearm that does not bear a serial number, as specified, to apply to the DOJ for a unique serial number or other mark of identification by January 1, 2019.

Fiscal Impact:

• One-time costs of $75,000 (Special Fund*) for the DOJ to promulgate regulations.
• One-time costs to DOJ in the range of $2 million (Special Fund*) for enhancements to various automation systems. Costs include staffing, overtime, external consultants, and software development. Ongoing costs for storage, updates and maintenance are estimated to be in the hundreds of thousands of dollars annually.
• Start-up costs to DOJ of $365,000 (Special Fund*) to process and verify an estimated 15,000 applications to register 30,000 firearms. Annual costs in the range of $100,000 (Special Fund*) for ongoing administration of the program to process an estimated 1,000 applications to register 2,000 firearms, verify required information, assign serial numbers, and input data. The $25 fee per application would cover start-up costs but would not sustain the ongoing costs of the program (1,000 applications would only generate $25,000 in fee revenue).
• Non-reimbursable local enforcement costs (Local Funds) offset to a degree by fine revenue to the extent violations of the new registration requirements occur.
• Potential court-related costs (General Fund**) for new misdemeanor filings.
• While the impact of this bill independently on local jails is likely to be minor, the cumulative effect of expanded misdemeanors could create General Fund cost pressure on capital outlay, staffing, programming, the courts, and other resources in the context of criminal justice realignment.

*Dealers Record of Sale (DROS) Account – Staff notes the DROS Account is structurally imbalanced, with an estimated year-end fund balance of less than $1 million in FY 2016-17. As a result, an appropriation from another fund source, potentially the General Fund, would be required to support the activities required by this bill.

**Trial Court Trust Fund

Background:

From the Senate Committee on Public Safety analysis of this bill, “According to a July 15, 2013, briefing prepared by the Minority Staff of the Committee on Energy and Commerce, United States House of Representatives:

On June 7, 2013, John Zawahri, 23, killed five people and injured several more during a shooting rampage that lasted approximately 13 minutes in Santa Monica, California. He first shot and killed his father, Samir Zawahri, and brother, Christopher, at their home. He then pulled over and carjacked Laurie Sisk, forcing her to drive at gunpoint to Santa Monica College. Zawahri shot at numerous cars, pedestrians, and a bus en route, killing the college’s groundskeeper, Carlos Franco, and his daughter, Marcela. Upon arriving at the campus, he then fatally shot another woman, Margarita Gomez. He then entered the school library, where he attempted to kill several library patrons who were hiding in a safe room. Police, who had been alerted to the shooting and to Zawahri’s location by numerous 911 calls, exchanged gunfire in the library with the shooter and pronounced him dead at the scene. According to authorities, Zawahri fired approximately 100 rounds in total.

Zawahri had a history of mental illness. In 2006, a teacher at his high school discovered Zawahri researching assault weapons online. School officials contacted the police and he was subsequently admitted to the psychiatric ward at the University of California, Los Angeles Medical Center. Zawahri attempted to buy a weapon in 2011, but a background check conducted by the California Department of Justice found him ineligible and denied the purchase. The reasons for this denial have not been publicly released.

Zawahri used a modified AR-15 rifle in the shooting and also carried a .44-caliber handgun. He possessed more than 1,300 rounds of ammunition. The AR-15 rifle is the same type of gun used in the mass shootings that occurred in Aurora, Colorado, and Newtown, Connecticut. The AR-15 firearm held 30 rounds. California state law bans the sale of AR-15 rifles with a magazine capacity greater than ten rounds. Authorities believe that Zawahri assembled his AR-15 rifle using parts he bought in pieces from a number of different sources, including an 80% completed lower receiver. Police found a drill press at Zawahri’s home, a tool that can make holes in the lower receiver to complete the weapon.

There are no provisions in existing laws that prevent a person from buying an 80% lower receiver^[1] and then making it into a fully functional firearm. Because 80% lower receivers are not considered firearms, a person purchasing them does not have to go through a federal firearms dealer, and does not have to undergo a background check.

Proposed Law:

This bill would regulate firearms that are manufactured or assembled by an individual, by requiring a person, commencing July 1, 2018, to do the following:

• Apply for and obtain a unique serial number or other identifying mark from the DOJ prior to manufacturing or assembling a firearm.
• Engrave or permanently affix the unique serial number or mark to the firearm, as specified.
• Notify the DOJ once the serial number or mark is affixed to the firearm.

For any person who, as of July 1, 2018, owns a firearm that does not already bear a serial number, as specified, this bill requires the person to apply to the DOJ for a unique serial number or other mark of identification by January 1, 2019. A violation of the above requirements would be punishable by imprisonment in county jail for up to one year (for handguns) or six months (for other firearms), a fine of up to $1,000, or by both the fine and imprisonment.

This bill prohibits the sale or transfer of ownership of a firearm manufactured or assembled pursuant the bill’s provisions. Additionally, this bill prohibits a person, corporation, or firm from knowingly allowing, aiding, facilitating, or abetting the manufacture or assembly of a firearm by any of a class of specified persons.

This bill provides for the following exemptions from the requirement to obtain a serial number for a self-assembled firearm:

• A firearm that has a serial number or mark of identification assigned to it, as specified.
• A firearm that is not a handgun manufactured or assembled prior to December 16, 1968.
• A firearm which was entered into the centralized registry prior to July 1, 2018, as specified.
• A firearm that has a serial number assigned to it pursuant to federal law, as specified.
• A firearm that is a curio or relic, or an antique firearm, as those terms are defined.

An application to the DOJ for a unique serial number shall only be granted if the applicant:

• Completes a personal firearms eligibility check demonstrating that the applicant is not prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm.
• Presents proof of age and identity, as specified.
• Provides a description of the firearm intended to be manufactured or assembled, in a manner prescribed by the DOJ.
• Has a valid firearm safety certificate or handgun safety certificate.

Additionally, this bill requires the DOJ to:

• Inform applicants who are denied the issuance of a serial number the reasons for the denial in writing.
• Grant or deny all applications within 15 calendar days of the receipt of the application.
• Charge an application fee at DOJ’s request for each serial number or mark it issues in an amount sufficient to reimburse DOJ for the actual costs associated with assigning a distinguishing number or mark to a firearm and for conducting a personal firearms eligibility check, as specified.
• Deposit all funds received in the DROS Account, to be available upon appropriation by the Legislature.
• Adopt regulations to administer the program.
• Maintain and make available upon request the following information:
  • The number of serial numbers issued.
  • The number of arrests for violations of the bill’s provisions.

Related Legislation: AB 857 (Cooper) 2016 is identical to this measure. AB 857 is scheduled to be heard today by this Committee.

AB 1673 (Gipson) 2016 would expand the definition of “firearm” to include the frame or receiver of the weapon or a frame or receiver “blank,” “casting,” or “machined body” that is designed and clearly identifiable as a component of a functional weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion. AB 1673 has been referred to the Suspense File of the Assembly Committee on Appropriations.

Prior Legislation:

SB 808 (de León) was substantially similar to this measure. SB 808 was vetoed by the Governor with the following message:

I am returning Senate Bill 808 without my signature. SB 808 would require individuals who build guns at home to first obtain a serial number and register the weapon with the Department of Justice. I appreciate the author's concerns about gun violence, but I can't see how adding a serial number to a homemade gun would significantly advance public safety.

AB 809 (Feuer) Chapter 745/2011, commencing January 1, 2014, conforms requirements for reporting and record retention involving the transfer of long guns with those of handguns; repeals the prohibition on peace officers and the DOJ from retaining or compiling records of long gun transfers; expands the reporting requirements to apply to the importation of long guns; and expands requirements for firearms dealers to keep a register or record of information pertaining to firearms transactions to include information pertaining to transactions involving all firearms.

AB 1810 (Feuer) 2010 would have provided that firearms reporting and records retention requirements that at the time only applied to handguns also apply to long guns. This bill failed passage on the Senate Floor.

AB 161 (Steinberg) Chapter 754/2003 revised the specific limitations on the use of funds derived from the purchase of firearms by the DOJ and provided that DROS Special Account funds may be used by the DOJ for costs associated with firearms-related regulatory and enforcement activities.

Staff Comments:

This bill requires the DOJ to administer a program to issue serial numbers to individuals for self-assembled firearms through an application process that requires a completed background check, proof of age and identity, a description of the firearm, and proof of a valid firearm or handgun safety certificate. It is estimated it would be an 18-month project for DOJ to make the necessary enhancements to various automation systems, including the California Reporting Information System (CRIS), Consolidated Firearm Information System (CFIS), DROS application, Automated Firearm System (AFS), and the California Information Firearms Gateway.

Estimated one-time costs for these enhancements are $2.1 million (DROS) over 18 months, which includes staffing, overtime, external consultants, and software development. Limited-term staff resources to process and verify an estimated 15,000 applications to register 30,000 firearms would be required at DOJ to handle the population of applications for individuals who owned a non-serialized firearm as of July 1, 2018. Estimated one-time costs of $365,000 include staff to process the applications, verify the required information, assign serial numbers, and input data. Annual costs are estimated in the range of $100,000 for the ongoing administration of the program to process an estimated 1,000 applications to register 2,000 firearms annually. While the $25 DROS fee per application would cover initial costs (15,000 x $25 = $375,000), future applications of 1,000 per year would not sustain the ongoing costs of the program (1,000 x $25 = $25,000).

A violation of the bill’s registration requirements would be punishable by imprisonment in county jail for up to one year (for handguns) or six months (for other firearms), a fine of up to $1,000, or by both the fine and imprisonment, resulting in a potential increase in non-reimbursable local enforcement costs offset to a degree by fine revenue to the extent violations of the new registration requirements occur and are enforced.

The creation of new or expanded misdemeanors has historically been analyzed by this Committee to result in non-reimbursable state mandated costs for local law enforcement and incarceration. Staff notes, however, that the creation and expansion of misdemeanors taken cumulatively could increase the statewide adult jail population to a degree that could potentially impact the flexibility of counties to manage their jail populations recently exacerbated under 2011 Public Safety Realignment. While the provisions of this bill are likely to be minor, the cumulative effect of all new misdemeanors could create unknown General Fund cost pressure on capital outlay, staffing, programming, the courts, and other resources.

-- END --

1. According to Tactical Machining, “An 80% Receiver is a partially completed piece of material that requires special tooling and skills to be completed and considered a firearm.” (http://www.tacticalmachining.com/80-lower-receiver.html.) ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 1407 Hearing Date: April 19, 2016

Subject: Firearms: Identifying Information

HISTORY

Source: Author

Prior Legislation: SB 808 (De León) – 2013, vetoed

AB 809 (Feuer) – Chap. 745, Stats. of 2011

AB 302 (Beall) – Chap. 344, Stats. of 2010

AB 1810 (Feuer) – 2010, failed passage on the Senate floor

AB 161 (Steinberg) – Chap. 754, Stats. of 2003

AB 950 (Brulte) – Chap. 944, Stats. of 2001

AB 2188 (Scott) – Chap. 398, Stats. of 1998

Support: California Academy of Family Physicians; California Police Chiefs Association

Opposition: California Rifle and Pistol Association; Gun Owners of California; National Rifle Association of America

PURPOSE

The purpose of this legislation is to require: (1) a person, commencing July 1, 2018, to apply to and obtain from the Department of Justice (DOJ) a unique serial number or other mark of identification prior to manufacturing or assembling a firearm, as specified; and (2) by January 1, 2019, any person who, as of July 1, 2018, owns a firearm that does not bear a serial number assigned to it to obtain a unique serial number or other mark of identification prior to manufacturing or assembling a firearm, as specified.

Existing federal law requires licensed importers and licensed manufacturers to identify each firearm imported or manufactured by using the serial number engraved or cast on the receiver or frame of the weapon, in such manner as prescribed by the Attorney General. (18 U.S.C. § 923(i).)

Under existing federal law, the United States Undetectable Firearms Act of 1988 makes it illegal to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm that is not as detectable by walk-through metal detection as a security exemplar containing 3.7 oz of steel, or any firearm with major components that do not generate an accurate image before standard airport imaging technology. (18 U.S.C. § 922(p).)

Existing law prohibits a person, firm, or corporation licensed to manufacture firearms pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code from manufacturing firearms in California, unless the person, firm or corporation is also licensed under California law. This prohibition does not apply to a person licensed under federal law, who manufactures less than 100 firearms a calendar year. (Penal Code § 29010.)

Existing law makes it illegal to change, alter, remove, or obliterate the name of the maker, model, manufacturer’s number, or other mark of identification on any pistol, revolver, or any other firearm, without first having secured written permission from the Department of Justice (DOJ) to make that change, alteration, or removal. Anyone who is found to have violated this section shall be punished by imprisonment pursuant to subdivision (h) of Section 1170. (Penal Code § 23900.)

Existing law allows the Department of Justice, upon request, to assign a distinguishing number or mark of identification to any firearm whenever the firearm lacks a manufacturer’s number or other mark of identification, or whenever the manufacturer’s number or other mark of identification, or a distinguishing number or mark assigned by the department has been destroyed or obliterated. (Penal Code § 23910.)

Existing law makes it misdemeanor, with limited enumerated exceptions, for any person to buy, receive, dispose of, sell, offer to sell or have possession any pistol, revolver, or other firearm that has had the name of the maker or model, or the manufacturer’s number or other mark of identification changed, altered, removed, or obliterated. (Penal Code §§ 23920 and 23925.)

Existing law requires a person be at least 18 years of age to purchase a rifle or shotgun. To purchase a handgun, a person must be at least 21 years of age. As part of the Dealer Record of Sales (DROS) process, the purchaser must present “clear evidence of identity and age” which is defined as a valid, non-expired California Driver’s License or Identification Card issued by the Department of Motor Vehicles. (Penal Code §§ 27510 and 16400.)

Existing law requires purchasers to present a handgun safety certificate prior to the submission of DROS information for a handgun or provide the dealer with proof of exemption pursuant to California Penal Code Section 31700. Beginning on January 1, 2015, this requirement was extended to all firearms. (Penal Code § 26840.)

Existing law requires that firearms dealers obtain certain identifying information from firearms purchasers and forward that information, via electronic transfer to DOJ to perform a background check on the purchaser to determine whether he or she is prohibited from possessing a firearm. (Penal Code §§ 28160-28220.)

Existing law requires firearms to be centrally registered at the time of transfer or sale by way of transfer forms centrally compiled by the Department of Justice. The Department of Justice is required to keep a registry from data sent to DOJ indicating who owns what firearm by make, model, and serial number and the date thereof. (Penal Code § 11106(a) and (c).)

Existing law requires that, upon receipt of the purchaser’s information, DOJ shall examine its records, as well as those records that it is authorized to request from the State Department of Mental Health pursuant to Section 8104 of the Welfare and Institutions Code, in order to determine if the purchaser is prohibited from purchasing a firearm because of a prior felony conviction or because they had previously purchased a handgun within the last 30 days, or because they had received inpatient treatment for a mental health disorder, as specified. (Penal Code § 28220.)

Existing law allows the Department of Justice to require the dealer to charge each firearm purchaser a fee not to exceed $14, except that the fee may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations. This fee, known as the DROS fee, shall be no more than is necessary to fund specific codified costs. (Penal Code § 28225.)

Under existing law, the Department of Justice may charge a fee sufficient to reimburse it for each of the following but not to exceed fourteen dollars ($14), except that the fee may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations:

• For the actual costs associated with the preparation, sale, processing, and filing of forms or reports required or utilized pursuant to any provision listed in subdivision (a) of Section 16585.
• For the actual processing costs associated with the submission of a Dealers’ Record of Sale to the department.
• For the actual costs associated with the preparation, sale, processing, and filing of reports utilized pursuant to Sections 26905, 27565, or 28000, or paragraph (1) of subdivision (a) of Section 27560.
• For the actual costs associated with the electronic or telephonic transfer of information pursuant to Section 28215.
  
• Any costs incurred by the Department of Justice to implement this section shall be reimbursed from fees collected and charged pursuant to this section. No fees shall be charged to the dealer pursuant to Section 28225 for implementing this section. (Penal Code § 28230.)

Under existing law, the Attorney General shall establish and maintain an online database to be known as the Prohibited Armed Persons File. The purpose of the file is to cross-reference persons who have ownership or possession of a firearm on or after January 1, 1991, as indicated by a record in the Consolidated Firearms Information System, and who, subsequent to the date of that ownership or possession of a firearm, fall within a class of persons who are prohibited from owning or possessing a firearm. (Penal Code § 30000.)

This bill defines “manufacturing” or “assembling” a firearm as “to fabricate or construct a firearm, or to fit together the component parts of a firearm to construct a firearm.”

This bill, commencing July 1, 2018, requires any person who manufactures or assembles a firearm to:

• • Apply to the Department of Justice for a unique serial number or other mark of identification, as specified;
    
  • Within ten days of manufacturing or assembling the firearm, to engrave or permanently affix the unique serial number or other mark to that firearm, as specified; and,
    
  • Notify the DOJ once the serial number or other mark is affixed to the firearm, as specified.

This bill states that by January 1, 2019, any person who, as of July 1, 2018, owns a firearm that does not bear a serial number, as specified, must:

• Apply to the Department of Justice for a unique serial number or other mark of identification, as specified.
  • Within ten days of manufacturing or assembling the firearm, to engrave or permanently affix the unique serial number or other mark to that firearm, as specified; and,
    
  • Notify the DOJ once the serial number or other mark is affixed to the firearm, as specified.

This bill specifies, prior to the DOJ providing the person with a unique serial number or other mark, the person must:

• • Present proof the applicant is not prohibited by state or federal law.
  • Present proof of age and identity. The applicant must be 18 years of age or older to obtain a unique serial number or mark of identification for a firearm that is not a handgun, and must be 21 years of age or older to obtain a unique serial number or mark of identification for a handgun.
  • Provide a description of the firearm that he or she owns or intends to manufacture or assemble, in a manner prescribed by the department.
  • Have a valid firearm safety certificate or handgun safety certificate.

This bill prohibits the sale or transfer of ownership of a firearm manufactured or assembled pursuant to the provisions of this legislation, but allows for the transfer, surrender, or sale of a firearm to a law enforcement agency, as specified.

This bill exempts the following from the provisions of this legislation:

• A firearm that has a serial number assigned, as specified.
• A firearm made or assembled prior to December 16, 1968, that is not a handgun.
• A firearm which was entered into the centralized registry, as specified, prior to July 1, 2018, as being owned by a specific individual or entity if that firearm has assigned to it a distinguishing number or mark of identification to that firearm by virtue of the department accepting entry of that firearm into the centralized registry.
• An antique firearm, as specified.

This bill provides if the firearm is a handgun, a violation of this section is punishable by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. For all other firearms, a violation of this section is punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. Each firearm found to be in violation of this section constitutes a distinct and separate offense. This section does not preclude prosecution under any other law providing for a greater penalty.

This bill requires the DOJ to maintain electronic records of all persons that receive a unique serial number or other mark, and notify the DOJ that it has been engraved or affixed to the firearm.

This bill requires DOJ to maintain and make available upon request information concerning both of the following:

• The number of serial numbers issued, as specified.
• The number of arrests for violations of Section 29180.

This bill allows the DOJ to charge a fee for applications to administer the costs of electronic tracking and would authorize the DOJ to use the Dealer Record of Sales (DROS) account to cover actual costs associated with this legislation.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

Under the Gun Control Act of 1968, it is illegal for an unlicensed person to make a firearm for sale or distribution. However a loophole in the law allows for the construction of firearms by unlicensed individuals so long as the firearms are made for personal use and not sold or transferred. These homemade guns are assembled through the purchase of unfinished receivers, or 80 percent completed lower receivers. Unfinished receivers, the engine of a firearm, are not technically considered firearms because of their incomplete stage and thus do not require a serial number or background check for purchase. With an unfinished receiver, a firearm parts kit, and basic drilling machinery, an individual can assemble a fully functional firearm without being subject to the requirements placed on all other firearms transactions—no serialization or background check on the owner.

This loophole poses an increasingly daunting challenge for law enforcement. As reported in the Sac Bee (December 19, 2015) “California black market surges for ‘ghost guns’,” there is an emerging black market for these homemade guns, or ghost guns, because they allow criminals and other dangerous individuals to circumvent background checks and other California firearms laws, including the state’s assault weapons ban. Because these firearms are assembled privately and do not produce a sales record, no one knows they exist until a crime is committed. Federal and state officials have seized hundreds of these weapons in a series of ongoing undercover operations.

Another telling example is the June 2013 shooting in Santa Monica by John Zawahri, who killed five people using a gun assembled at home. Although Zawahri was denied a firearms purchase by the Department of Justice because of mental illness concerns, he was able to skirt the law by purchasing a lower receiver online, which he modified to craft the AR-15 style rifle that was used in the shooting. Similarly, just law year, ghost guns were used in a murder-suicide in Walnut Creek.

The development of technologies that make the manufacture of weapons accessible to the general public raises questions about whether homemade guns are being made by gang members, felons, and other prohibited individuals. Without specific measures that address the dangers posed by these self-made guns, criminals will exploit the technologies at the expense of public safety—as is proving to be the case throughout the state.

2. Recent Events

According to a July 15, 2013, briefing prepared by the Minority Staff of the Committee on Energy and Commerce, United States House of Representatives:

On June 7, 2013, John Zawahri, 23, killed five people and injured several more during a shooting rampage that lasted approximately 13 minutes in Santa Monica, California. He first shot and killed his father, Samir Zawahri, and brother, Christopher, at their home. He then pulled over and carjacked Laurie Sisk, forcing her to drive at gunpoint to Santa Monica College. Zawahri shot at numerous cars, pedestrians, and a bus en route, killing the college’s groundskeeper, Carlos Franco, and his daughter, Marcela. Upon arriving at the campus, he then fatally shot another woman, Margarita Gomez. He then entered the school library, where he attempted to kill several library patrons who were hiding in a safe room. Police, who had been alerted to the shooting and to Zawahri’s location by numerous 911 calls, exchanged gunfire in the library with the shooter and pronounced him dead at the scene. According to authorities, Zawahri fired approximately 100 rounds in total.

Zawahri had a history of mental illness. In 2006, a teacher at his high school discovered Zawahri researching assault weapons online. School officials contacted the police and he was subsequently admitted to the psychiatric ward at the University of California, Los Angeles Medical Center. Zawahri attempted to buy a weapon in 2011, but a background check conducted by the California Department of Justice found him ineligible and denied the purchase. The reasons for this denial have not been publicly released.

Zawahri used a modified AR-15 rifle in the shooting and also carried a .44-caliber handgun. He possessed more than 1,300 rounds of ammunition. The AR-15 rifle is the same type of gun used in the mass shootings that occurred in Aurora, Colorado, and Newtown, Connecticut. The AR-15 firearm held 30 rounds. California state law bans the sale of AR-15 rifles with a magazine capacity greater than ten rounds. Authorities believe that Zawahri assembled his AR-15 rifle using parts he bought in pieces from a number of different sources, including an 80% completed lower receiver. Police found a drill press at Zawahri’s home, a tool that can make holes in the lower receiver to complete the weapon. (Citations Omitted.)

The manufacturing and selling of illegal guns continues to be an issue in California:

Manufacturing and selling illegal guns -- including so-called “ghost guns” -- is the most common type of investigation the Sacramento Bureau of Alcohol Tobacco and Firearms deals with.

“Ghost guns” are missing a serial number and have been manufactured with parts likely bought online.

“In this office we find quite a few of them and we have made a number of cases over the last few years of people that are selling these firearms for profit, and I would expect that we continue to make those types of cases,” said ATF spokesman Graham Barlowe.

Last October, two brothers were indicted for illegally manufacturing and selling guns in Sacramento. Agents seized 345 guns as part of that investigation.

Daniel Crowninshield, who is also known as “Dr. Death,” was also indicted last year for manufacturing unlicensed firearms, using computer-controlled machines at a North Sacramento metal shop.

In Elk Grove, machinist Richard Gray usually restores cars at his shop, but said he has had people bring in parts claiming they need a broken gun fixed.

“But (I) then started realizing that wasn’t exactly what they were doing. What they were really doing was trying to create a gun that didn't have any serial numbers on it,” Gray said.

Now, Gray said he won’t accept any type of firearm.

“We just tell them straight up that we’re not in that kind of business.” 

He’s a supporter for stricter legislation on assembling guns, but thinks it’ll make illegal gun manufacturers more desperate.

“They’re gonna go someplace else. They’re gonna get the parts and bring them in here by hook or crook,” he said.

There are several websites dedicated to selling parts to build any firearm.

“We do have cases ongoing at this time, and as I said, I would expect that we’ll have cases, we’ll be opening cases in the months and year following until, really until there’s a change in the way that we see this problem,” Barlowe said.

(Dana Griffin, ATF: 'Ghost guns' a growing trend in Sacramento area, August 6, 2015, http://www.kcra.com/news/atf-ghost-guns-a-growing-trend-in-sacramento-area/34586452.)

In 2016, the federal grand jury returned an indictment against Craig Mason, of Auburn, charging him with unlawful dealing and manufacturing firearms:

According to court documents, Mason and others involved in the scheme sold the parts necessary to assemble a firearm. Mason operated a workshop on his property that he used to manufacture firearms by converting AR-15-style blanks into lower receivers.

A “blank” is a metal casting that is not considered a firearm by ATF. It is converted into a “lower receiver” by using a drill press or automated machine to create the precise shape and space necessary for the lower receiver to accept the parts that will allow the firing of a projectile. These parts (e.g., the hammer, bolt or breechlock, and firing mechanism) are the internal mechanical parts that combine with a trigger, firing pin, and other parts to form a functioning firearm. Once the blank is converted to a lower receiver, it is considered firearm by statute, even if there is no barrel, handle, or trigger, etc., and it is subject to regulation.

On April 23, 2013, Mason manufactured two AR-15-style lower receivers for an ATF confidential informant. Despite being told that the confidential informant had been to prison and therefore prohibited from possessing a firearm, Mason created the firearms and sold his services to the confidential informant.

(https://www.atf.gov/news/pr/auburn-man-indicted-illegally-manufacturing-firearms.)

3. Effect of This Legislation

SB 1407 would require any person who manufactures or assembles a firearm to first obtain a serial number from the DOJ and demonstrate that he or she is not prohibited from owning firearms. Specifically, any person who manufactures or assembles a firearm will be required to:

• Obtain a unique serial number or other mark from the Department of Justice

prior to making or assembling a firearm;

• Within ten days of making or assembling to engrave or permanently affix the unique serial number or other mark to the firearm; and,
• Notify the Department of Justice once the serial number or other mark is affixed to the firearm.

Prior to the DOJ providing the person with a unique serial number or other mark, the person must:

• • Present proof the applicant is not prohibited by state or federal law.
  • Present proof of age and identity. The applicant must be 18 years of age or older to obtain a unique serial number or mark of identification for a firearm that is not a handgun, and must be 21 years of age or older to obtain a unique serial number or mark of identification for a handgun.
  • Provide a description of the firearm that he or she owns or intends to manufacture or assemble, in a manner prescribed by the department.
  • Have a valid firearm safety certificate or handgun safety certificate.

There are no provisions in existing law that prevent a person from buying an 80% lower receiver^[1] and then making it into a fully functional firearm. Because 80% lower receivers are not considered firearms, a person purchasing them does not have to go through a federal firearms dealer, and does not have to undergo a background check. According to the author, SB 1407 will help to close this loophole.

4. Senate Bill 808 Veto Message

In 2014, the Governor vetoed a virtually identical piece of legislation, SB 808 (De León), stating:

I am returning Senate Bill 808 without my signature.

SB 808 would require individuals who build guns at home to first obtain a serial number and register the weapon with the Department of Justice.

I appreciate the author’s concerns about gun violence, but I can't see how adding a serial number to a homemade gun would significantly advance public safety.

5. Argument in Support

According to the California Police Chiefs Association:

The California Police Chiefs Association supports Senate Bill 1407, which would require a person who manufactures or assembles a firearm, or owns a firearm that does not bear a serial number, to apply to the Department of Justice for a unique serial number or other identifying mark.

There are no provisions in existing law that prevent a person from manufacturing or buying an 80% lower receiver—the basis of a firearm—and then making it into a fully functional firearm. Furthermore, the accessibility of these parts have become increasingly easier to acquire with the invention of 3D printers. Because 80% lower receivers are not considered firearms, a person purchasing them does not have to go through a federal firearms dealer, and does not have to undergo a background check. This has created a loophole that allows prohibited felons, gang members, and mentally ill individuals to obtain firearms against the intent of our laws.

California has some of the strictest firearm regulations in the nation. The laws are meant to keep our neighborhoods safer and aid law enforcements fight against gun violence, while still protecting the rights of responsible gun owners. Essential to each, in the ability to track and verify the ownership of each firearm in the state. It is detrimental to public safety and law enforcement’s ability to solve crimes if there are innumerable firearms in circulation without serialization or registration. If we do not begin to address this problem now, the number of shootings involving untraceable firearms will become a much heavier burden on law enforcement, and the victims of gun violence, in the future.

6. Argument in Opposition

According to the National Rifle Association:

SB 1407 would make it a crime under California law for an individual to manufacture a firearm without first obtaining California Department of Justice (DOJ) approval to do so and subsequently engraving a DOJ-provided serial number on the firearm.  This legislation should be opposed because it will effectively nullify the long-standing and constitutionally protected activity of building one’s own firearms.  Additionally, SB 1407 will promote the destruction and devaluation of existing firearms without any tangible public safety benefit.

First, precluding an individual from manufacturing a firearm without first obtaining government approval infringes on the longstanding American tradition of manufacturing a personal firearm.  From prior to the Revolution to the Civil War most Americans were intimately involved in constructing and designing their own firearms. (See Peter Jensen-Haxel,3D Printers, Obsolete Firearm Supply Controls, and the Right to Build Self-Defense Weapons Under Heller, 42 Golden Gate U. L. Rev. 447, 477-78 (2012).)  Even though this involvement faded somewhat in other parts of the country with the rise of nineteenth-century industrialization, it remained a fundamental part of Californian identity well into the twentieth-century, as many in the unpopulated frontier of the American West continued to manufacture their own firearms. (Lawrence P. Shelton, California Gunsmiths 1846-1900, 5 (1977).)  This tradition continues to this day, with many Californians manufacturing their own firearms without seeking government permission to do so.

As the U.S. Supreme Court has made clear, the Second Amendment protects the “ancient” and “natural” right to keep and bear arms. (District of Columbia v. Heller, 554 U.S. 570, 599 (2008).)  The Court went to great lengths to explain that the scope of that right is defined by the public’s understanding of the Second Amendment at the time of the founding. (Id. at 605.)  Accordingly, given this unobstructed and long-standing tradition of personally manufacturing firearms stretching from the Revolutionary War to the present, SB 1407’s requirement that individuals receive government approval to manufacture their personal firearms violates the Second Amendment.

Moreover, the restrictions imposed by this legislation are wholly unwarranted.  State and federal laws already prohibit people from possessing dangerous firearms.  For example, it is already illegal for any member of the general public to make or possess an assault weapon. (See Cal. Penal Code §§ 30600 and 30605.)  Similarly, the manufacture and possession of machineguns, short-barreled shotguns and short-barreled rifles are highly regulated under state and federal and law. (26 U.S.C. § 5861; Cal. Penal Code §§ 32625, 33210.)  And potentially dangerous people convicted of felony offenses, subject to a restraining order, or adjudicated mentally defective, already may not possess firearms. (18 U.S.C. § 922(g); Cal. Penal Code §§ 29800, 29825; Cal. Welf. & Inst. Code § 8103.)  Because it is already a crime for people to possess these dangerous firearms, and for potentially dangerous people to possess any firearms, it is highly unlikely that SB 1407 will do anything of use to keep potentially dangerous weapons out of the hands of those who shouldn’t have them. Thus, SB 1407 will only serve to waste scarce law enforcement resources by creating additional red-tape to regulate the activities of responsible firearm owners.

Make no mistake, SB 1407 will effectively end the practice of personally manufacturing firearms in California. Section 5 of this bill requires that each person, within one day of manufacturing or assembling a firearm, affix a unique serial number provided by DOJ, and that the number be engraved in a manner that meets or exceeds the requirements imposed on federally licensed firearms manufactures.  The problem is the federal requirements, designed for companies that are in the business of manufacturing firearms for national distribution, are extensive.  A manufacture must stamp, at a minimum depth of .003 inch, the firearm’s serial number, model, and caliber, as well as the name of the manufacturer, and the city and state where manufactured. 27 C.F.R. § 478.92.^[1]  Needless to say, precisely engraving all this information requires highly sophisticated equipment that most Californian manufacturing hobbyists do not have and cannot afford.  Thus, SB 1407 will without a doubt price most Californians out of personal firearms manufacturing.

Additionally, this legislation would cause firearm owners to damage and/or significantly diminish the value of their firearms.  This bill etches out minor exceptions to its requirements.  One being the fact that it does not require the markings for a “firearm made or assembled prior to December 16, 1968, that is not a handgun.”  The year 1968 is significant because that is the year the federal Gun Control Act was enacted.  The Gun Control Act significantly enhanced the 1958 Treasury Department regulations promulgated under the Federal Firearms Act, which required that firearms be stamped with a specific serial number.  Gun Control Act of 1968 § 923(i).  While this law creates an exception for non-handguns, it requires handguns made prior to 1968 to be defaced by adding a serial number.  Any make defacing a firearm of that age will result in a diminution of that firearm’s value.

Finally, SB 1407 creates significant confusion over when manufacturers must have their firearms engraved.  Specifically, this bill defines “firearm” to include the unfinished frame or receiver of a weapon that can be “readily converted” to the functional condition of a finished frame or receiver.  Accordingly, personal firearm manufactures are required to obtain and affix a DOJ serial number, at some undefined point in the middle of the manufacturing process when the raw materials for a firearm are “readily convertible” into a firearm.  And to make matters worse, SB 1407 never defines the term “readily convertible,” leaving it up to personal manufactures to guess if they are far enough in the manufacturing process to obtain a serial number and affix it to an unfinished frame and receiver.  If the manufacturer guesses wrong, he or she is guilty of a crime.

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1. According to Tactical Machining, “An 80% Receiver is a partially completed piece of material that requires special tooling and skills to be completed and considered a firearm.” (http://www.tacticalmachining.com/80-lower-receiver.html.) ↑