Existing law, subject to exceptions, provides that any person who has been convicted of certain misdemeanors may not, within 10 years of the conviction, own, purchase, receive, possess, or have under their custody or control, any firearm. Under existing law, a violation of this prohibition is punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding $1,000, or by both that imprisonment and fine. Existing law makes it a misdemeanor or a felony for a person who is prohibited from owning or possessing a firearm pursuant to these provisions to own, possess, or have under their custody or control, any ammunition or reloaded ammunition.

This bill would add to the list of misdemeanors, the conviction for which is subject to those prohibitions, misdemeanor offenses of violating the 10-year prohibition on possessing a firearm specified above.

The bill would also apply the above 10-year prohibition to a person who has been convicted of 2 or more specified misdemeanors, or 2 or more convictions of a single specified misdemeanor, in a 3-year period involving alcohol intoxication or possession of certain controlled substances for sale and would make a violation punishable as an infraction. The bill would impose a new 10-year prohibition to a person who commits another of those misdemeanors during the initial 10-year prohibition period, and would make a violation punishable as an infraction. The bill would also make it an infraction for a person prohibited from owning or possessing a firearm pursuant to these provisions to own, possess, or have under their custody or control, any ammunition or reloaded ammunition. By changing the definition of a crime, and by creating new crimes, this bill would impose a state-mandated local program.

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.

Date of Hearing: June 25, 2019

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 55

Author:(Jackson) – As Amended Ver:May 17, 2019

SUMMARY: Makes it a crime to possess a firearm within 10 years of conviction of specified alcohol and drug related misdemeanors that occur within a designated time period. Specifically, this bill:

1. Imposes a 10-year prohibition on owning or possessing a firearm, ammunition, or reloaded ammunition to a person who has been convicted of the following:
   
   1. A second conviction for possession with the intent to sell specified controlled substances, including synthetic cannabanoids and ketamine, or vehicular manslaughter while intoxicated, in any combination, in a three-year period.
      
   2. A third or subsequent conviction for DUI related offenses, which occurs within 10 years of the first offense.
      
   3. Committing another of those misdemeanors listed above during the initial 10-year prohibition period.
      
2. Specifies a violation of this prohibition would be a misdemeanor punishable by imprisonment in a county jail for up to six months, a fine of up to $500, or both the fine and imprisonment.
   
3. Specifies that these prohibitions are not retroactive to the extent that, although the convictions that occurred prior to January 1, 2020 may be counted as priors, the conviction that ultimately results in the firearms prohibition must occur after January 1, 2020.

EXISTING LAW:

1. Provides that persons convicted of specified serious or violent misdemeanors are prohibited from possession of firearms for a period of 10 years after a conviction for specified serious/violent misdemeanors and that a violation is punishable as a misdemeanor with imprisonment up to one year or as a state prison felony. (Pen. Code, § 29805, subd. (a).)
   
2. Includes within the list of misdemeanors triggering a 10 year firearm prohibition the crimes of stalking, sexual battery, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, and threats of bodily injury or death. The list includes a number of other misdemeanor crimes as well. (Penal Code, § 29805, subd. (a).)
   
3. Provides that persons convicted of a felony are prohibited for their lifetimes from owning or possessing a firearm. (Pen. Code, § 29800, subd. (a)(1).)
   
4. Specifies that a felon in possession of a firearm is guilty of a felony with a maximum of three years in the state prison. (Pen. Code, § 29800, subd. (a)(1).)
   
5. Prohibits a person from possessing or owning a firearm that is subject to specified restraining orders related to domestic violence and punishes a violation of the prohibition as a misdemeanor with a maximum sentence of one year in the county jail. (Pen. Code, § 29825.)
   
6. Specifies that any person who is convicted, on or after January 1, 2019, of a misdemeanor violation of domestic violence, and who subsequently owns or has possession of a firearm is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year or guilty of a felony punishable by up to three years in the state prison. (Penal Code, § 29805, subd. (b).)
   
7. Specifies that a person who has been taken into custody on a 72-hour hold because that person is a danger to himself, herself, or to others, assessed as specified, and admitted to a designated facility because that person is a danger to himself, herself, or others, shall not own or possess any firearm for a period of five years after the person is released from the facility. (Welf. and Inst. Code, 8103, subd (f)(1(A)).)
   
8. States that a person prohibited from possessing a firearm, as specified is prohibited from possessing ammunition. (Pen. Code, § 30305, subd. (a)(1).)
   
9. Provides for an automated system for tracking firearms and assault weapon owners who might fall into a prohibited status.  The online database, which is currently known as the Armed Prohibited Persons Systems (APPS), cross-references all handgun and assault weapon owners across the state against criminal history records to determine persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon. (Pen. Code, § 30000, et seq.)
10. Prohibits persons who know or have reasonable cause to believe that the recipient is prohibited from having firearms and ammunition to supply or provide the same with firearms or ammunition. (Pen. Code, §§ 27500 and 30306; and Welf. & Inst. Code, § 8101.)

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, "California law seeks to remove firearms from the possession of people likely to misuse them. There are several classes of people prohibited from possessing firearms including felons, people addicted to narcotics, the mentally ill, and persons subject to a protective order. Included also are people who commit certain misdemeanors.
   
   “While there is little evidence linking many of the above actions/behaviors to firearm abuse, a strong correlation has been shown between certain alcohol-/drug-related misdemeanor convictions and future gun violence. Among the most direct of these studies was performed at the Violence Prevention Research Program (VPRP) at U.C. Davis which is part of the University of California Firearm Violence Research Center (UCFC) and which has for more than thirty years conducted firearm research and policy development.
   
   “SB 55 adds several crimes which this research has shown to be linked to later firearm violence to the list of criminal convictions that result in a 10-year prohibition on firearm ownership. Multiple crimes must be committed within a certain time period to invoke the prohibition.
   
   “Research by VPRP and others has shown that convictions for some non-violent crimes involving drugs and alcohol correlate strongly to a later conviction for a firearm-related crime -- in some instances a four-to-five-times greater chance of a future crime.
   
   “In an effort to prevent future gun violence, this bill adds these research-correlated drug and alcohol convictions to the list of 10-year prohibitions. They are:
   
   • Possession with intent to sell synthetic cannabinoid drugs;
   
   • Possession with intent to sell certain tranquilizers;
   
   • Possession with intent to sell ketamine;
   
   • Vehicular manslaughter while intoxicated;
   
   • Driving while under the influence of alcohol; and
   
   • Causing an injury while driving under the influence of alcohol
   
   “The prohibition applies when a person commits the above drug crimes or vehicular manslaughter two times within a three-year period, or is convicted of three DUIs within a ten-year period.
   
   “The prohibition is for ten years because research indicates that persons who have not been convicted of any crimes within a ten-year period are almost as unlikely to commit a crime as persons who have never been convicted of a crime.”
   
2. Individuals Prohibited from Possessing Firearms in California: California has several laws that prohibit certain persons from purchasing firearms. All felony convictions lead to a lifetime prohibition, while a conviction of specified misdemeanors result in a 10-year prohibition. A person may be prohibited from possessing a firearm due to a protective order or as a condition of probation. If a person communicates to his or her psychotherapist a serious threat of physical violence against a reasonably-identifiable victim or victims, the person is prohibited from owning or purchasing a firearm for five years, starting from the date the psychotherapist reports to local law enforcement the identity of the person making the threat. (Welf. & Inst. Code, § 8100, subd. (b)(1).) If a person is admitted into a facility because that person is a danger to himself, herself, or to others, the person is prohibited from owning or purchasing a firearm for five years. (Welf. & Inst. Code, § 8103, subd. (f).) For the provisions prohibiting a person from owning or possessing a firearm based on a serious threat of violence or based on admittance into a facility as a threat to self or others, the person has the right to request a hearing whereby the person could restore his or her right to own or possess a firearm if a court determines that the person is likely to use firearms or other deadly weapons in a safe and lawful manner. (Welf. & Inst. Code, §§ 8100, subd. (b)(1) and 8103, subd. (f).)
   
   DOJ developed the Armed Prohibited Persons System (APPS) for tracking handgun and assault weapon owners in California who may pose a threat to public safety. (Pen. Code, § 30000 et seq.) APPS collects information about persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon. DOJ receives automatic notifications from state and federal criminal history systems to determine if there is a match in the APPS for a current California gun owner. DOJ also receives information from courts, local law enforcement and state hospitals as well as public and private mental hospitals to determine whether someone is in a prohibited status. When a match is found, DOJ has the authority to investigate the person’s status and confiscate any firearms or weapons in the person's possession. Local law enforcement also may request from DOJ the status of an individual, or may request a list of prohibited persons within their jurisdiction, and conduct an investigation of those persons. (Pen. Code, § 30010.)
   
   This bill would make it a crime to possess a firearm within 10 years of conviction of specified alcohol and drug related misdemeanors that occur within a designated time period. From a logistical standpoint, it will be difficult for DOJ to determine whether a conviction for one of the offenses in this bill triggers a firearm prohibition. Because this bill does not require prohibition upon conviction for crimes specified in this bill unless it occurs within a certain time period of other convictions, DOJ would have to examine the conviction records in each case to determine if a prohibition was warranted. This would involve a significant amount of resources if the process could not be automated.
3. California Prohibits Possession of Firearms for Specified Misdemeanor Convictions That Involve Violence or the Threat of Violence: Existing law prohibits possession of a firearm for 10 years if a person is convicted of specified misdemeanors that involve violence or the threat of violence. The list of violent misdemeanors, conviction of which triggers the firearm prohibition, contains over 30 offenses. That list of misdemeanors includes the crimes of stalking, assault with a deadly weapon, battery with serious bodily injury, brandishing a firearm of deadly weapon, assault with force likely to produce great bodily injury, battery on a peace officer, sexual battery, and threats of bodily injury or death, possession of prohibited ammunition, and various crimes involving misuse of a firearm. (Penal Code, § 29805.) The misdemeanors triggering firearm prohibition in this bill are not consistent with the nature of misdemeanors on the current list.
   
4. APPS Backlog: DOJ cross-references APPS with five other databases including the California Restraining and Protective Order System (CARPOS), a statewide database of individuals subject to a restraining order. New individuals are added to the APPS database on an ongoing basis as the system identifies and matches individuals in California who are prohibited from purchasing or possessing firearms. DOJ is required to complete an initial review of a match in the daily queue of APPS within seven days of the match being placed in the queue. (Pen. Code, § 30020.)
   
   DOJ has limited resources to investigate and seize firearms from persons on the list. Since the early 2000s, DOJ has requested additional funding to decrease the backlog. The APPS has largely been funded by fees collected when an individual purchases a firearm, which is deposited in the Dealer’s Record of Sale (DROS) Special Account. However, the DROS Special Account has experienced operational shortfalls since 2012-13. In 2013, the Legislature appropriated $24 million with SB 140 (Leno), Chapter 2, Statutes of 2013, to aid the DOJ in reducing the backlog to its current levels, but the DOJ has been unable to eliminate it entirely. Adding new categories of prohibited person increases the number of people on the APPS list. This bill would increase the number of prohibited persons on the APPS list.
   
   An AP article from March 2019, discussed the APPS backlog. The article pointed out that $24 million given to DOJ in 2013 provided with the intent that those funds would be sufficient to clear the backlog. But despite clearing a record 10,681 cases in 2018, the department still had about 9,400 active cases as of March 2019, about 800 fewer than it did a year ago. (https://www.apnews.com/d92903c08d52411fae595954896df659)
   
   Attorney General Becerra was quoted in the article and stated “More cases are coming in than our 50 agents can process, and so if we don’t do something ... we will continue to see an incremental rise in the number of cases that we haven’t touched,” Becerra said. “No one wants that.” (Id.)
   
5. Argument in Support: According to the Los Angeles County Supervisors, “SB 55 also would apply that ten-year prohibition to individuals who have been convicted of two or more specified misdemeanors, or two or more convictions of a single specified misdemeanor in a three-year period, including misdemeanors related to possession of a controlled substance with intent to sell and driving under the influence of alcohol and/or drugs. Finally, this bill would make it a misdemeanor for an individual prohibited from owning or possessing a firearm pursuant to these provisions to own, possess, or have under their custody or control, any ammunition or reloaded ammunition.
   
   “The County's Department of Public Health (DPH), and their Injury and Violence Prevention Program (IVPP) indicate that the Journal of the American Medical Association conducted a study analyzing purchasers of handguns in California and found that purchasers with at least one prior misdemeanor conviction were more than seven times as likely as those with no prior criminal history to be charged with a new offense after a handgun purchase. DPH-IVPP indicates that prohibitions for misdemeanors are grounded in research that shows low-level violent offenders are more likely than other groups to commit more serious violent crimes in the future. A 1998 study led by Dr. Garen Wintemute found that handgun purchasers who had more than one prior conviction for a violent offense were 10 times as likely to be charged with new criminal activity, and 15 times as likely to be charged with murder, rape, robbery, or aggravated assault, as were those with no prior criminal history. DPH-IVPP notes that the study also found nonviolent misdemeanor offenders to be at an increased — though substantially lower — risk for later violent offenses.”
   
6. Argument in Opposition: According to the Peace Officer Research Association of California, “Current law provides that any person who has been convicted of certain misdemeanors may not, within 10 years of the conviction, own, purchase, receive, possess, or have under their custody or control, any firearm. SB 55 would add possession with intent to sell synthetic cannabinoid drugs, possession with intent to sell certain tranquilizers, possession with intent to sell ketamine, vehicular manslaughter while intoxicated, public intoxication such that the person ‘is unable to exercise care for his or her own safety or the safety of others’ or such that the person obstructs a public way, driving while under the influence of alcohol, and causing an injury while driving under the influence of alcohol to the list of misdemeanors, thus, a conviction would violate the 10-year prohibition on possessing a firearm.
   
   “While PORAC agrees that guns need to be kept out of the hands of those who would abuse them, the Department of Justice cannot keep up with the over 20,000 people currently on the ‘prohibited persons’ list. Many of those on the list have been convicted of serious and/or violent felonies. Until California can reduce the serious backlog that currently exists, PORAC feels we should not be adding additional misdemeanants to the list.”
   
7. Related Legislation:
   
   1. SB 120 (Stern), would prohibit a person who is convicted of a misdemeanor violation of carrying a concealed firearm, carrying a loaded firearm, or openly carrying an unloaded handgun, from possessing a firearm for a period of 10 years. SB 120 is awaiting hearing in the Assembly Public Safety Committee.
      
   2. AB 701 (Jones), would lower the penalty to make it a misdemeanor for a person with an outstanding arrest warrant, as specified, to own or possess a firearm. AB 701 is awaiting hearing in the Assembly Appropriations Committee.
      
   3. SB 172 (Portantino), would add criminal storage offenses to those offenses that can trigger a 10 year firearm prohibition. SB 172 is awaiting hearing in the Assembly Public Safety Committee.
      
   4. AB 276 (Friedman), would prohibit any person convicted of specified firearm safe storage provisions preventing access to children or prohibited persons, on or after January 1, 2020, from possessing a firearm for 10 years. AB 276 is pending in the Assembly Public Safety Committee.
      
8. Prior Legislation:
   
   1. AB 3129 (Rubio), Chapter 883, Statutes of 2018, prohibits a person who is convicted on or after January 1, 2019, of a misdemeanor domestic violence offense that currently results in a 10-year prohibition against possessing a firearm, from possessing a firearm for life.
      
   2. AB 785 (Jones-Sawyer), Chapter 784, Statutes of 2017, added two hate crimes to the list of misdemeanors that result in a ban on the right to possess a firearm for 10 years.
      
   3. SB 347 (Jackson), of the 2015-2016 Legislative Session, would have added specified firearms and ammunition misdemeanor offenses to the list of misdemeanors that result in the defendant being prohibited from possessing a firearm for ten years. SB 347 was vetoed by the governor.
      
   4. SB 755 (Wolk), of the 2013-2014 Legislative Session, would have provided that any person convicted of a misdemeanor violation of two or more specified offenses (including DUI) within a three-year period be prohibited from possessing a firearm for 10 years. SB 755 was vetoed by the Governor.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County District Attorney's Office
Alcohol Justice 
Bay Area Student Activists
Brady California United Against Gun Violence
California Chapter of the American College of Emergency Physicians
California Police Chiefs Association
Coalition Against Gun Violence, A Santa Barbara County Coalition
Coalition to Stop Gun Violence
County of Los Angeles Board of Supervisors
Giffords Law Center to Prevent Gun Violence
Laguna Woods Democratic Club
Los Angeles City Attorney 
Los Angeles County Board of Supervisors 
Prosecutors Against Gun Violence
Riverside Sheriffs' Association
Santa Barbara District Attorney
Santa Barbara Women's Political Committee
Ventura County Board of Supervisors
Violence Prevention Coalition of Orange County
Women For: Orange County

Oppose

California Attorneys for Criminal Justice
California Sportsman's Lobby, Inc.
California Waterfowl
Gun Owners of California, Inc.
Outdoor Sportsmen's Coalition of California
Peace Officers Research Association of California
Safari Club International - California Chapters

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 55

Author: Jackson (D)

Amended: 5/17/19

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-1, 3/26/19

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Morrell

NO VOTE RECORDED: Moorlach

SENATE APPROPRIATIONS COMMITTEE: 4-2, 5/16/19

AYES: Portantino, Bradford, Hill, Wieckowski

NOES: Bates, Jones

SUBJECT: Firearms: prohibited persons

SOURCE: Brady California United Against Gun Violence

DIGEST:

This bill adds specified misdemeanor offenses to the list of crimes that result in a 10-year prohibition on owning or possessing a firearm or ammunition, as specified.

ANALYSIS: Existing federal law provides that certain people are prohibited from owning or possessing a firearm: (18 USC § 922(g).) Any person who:

1. Has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
2. Is a fugitive from justice;
3. Is an unlawful user of or addicted to any controlled substance, as defined;
4. Has been adjudicated as a mental defective or who has been committed to a mental institution;
5. Being an alien is illegally or unlawfully in the United States; or except as specified, has been admitted to the United States under a nonimmigrant visa, as defined;
6. Has been discharged from the Armed Forces under dishonorable conditions;
7. Having been a citizen of the United States, has renounced his citizenship; or
8. Is subject to a specified court order.

Existing state law:

1. Provides that certain people are prohibited from owning or possessing a firearm for life, including: (Penal Code §§ 29800, 23515 and 29805.)
   1. Anyone convicted of a felony;
   2. Anyone addicted to a narcotic drug;
   3. Any juvenile convicted of a violent crime with a gun and tried in adult court;
   4. Any person convicted of a federal crime that would be a felony in California and sentenced to more than 30 days in prison, or a fine of more than $1,000;
   5. Anyone convicted of certain violent misdemeanors, e.g., assault with a firearm; inflicting corporal injury on a spouse or significant other, or brandishing a firearm in the presence of a police officer.
2. Provides that a violation of a lifetime ban on possession of a firearm is a felony. (Penal Code §§ 29800, 23515 and 29805.)
3. Provides that anyone convicted of numerous misdemeanors involving violence or threats of violence are subject to a ten-year ban on possession of a firearm. Provides that a violation of these provisions is an alternate felony/misdemeanor. (Penal Code § 29805.)
4. Provides that any person taken into custody, assessed, and admitted to a designated facility due to that person being found to be a danger to themselves or others as a result of a mental disorder, is prohibited from possessing a firearm during treatment and for five years from the date of their discharge. Provides that a violation of these provisions is an alternate felony/misdemeanor. (Welfare and Institutions Code §§ 8100 and 8103(f).)
5. Provides that persons who are bound by a temporary restraining order or injunction or a protective order issued under the Family Code or the Welfare and Institutions Code, may be prohibited from firearms ownership for the duration of that court order. Provides that the violation of these provisions is a wobbler or a misdemeanor, as specified. (Penal Code § 29825.)
6. Requires that firearms dealers obtain certain identifying information from firearms purchasers and forward that information, via electronic transfer to Department of Justice (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.)
7. 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. (Penal Code § 28220.)
8. Requires firearms to be centrally registered at 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. (Penal Code § 11106(a) and (c).)
9. Requires the Attorney General to establish and maintain an online database to be known as Armed Prohibited Persons System (APPS). 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 (CFIS), 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. The information contained in APPS shall only be available to specified entities through the California Law Enforcement Telecommunications System, for the purpose of determining if persons are armed and prohibited from possessing firearms. (Penal Code § 30000.)

This bill:

1. Imposes a 10-year prohibition on owning or possessing a firearm, ammunition, or reloaded ammunition to a person who has been convicted of the following:
   
   1. Possessing certain controlled substances for sale or vehicular manslaughter while intoxicated two or more times, in any combination, in a three-year period.
      
   2. Three or more DUI related offenses, with the third offense occurring within 10 years of the second offense, related to reckless driving or driving under the influence of alcohol and/or drugs.
      
   3. Committing another of those misdemeanors listed above during the initial 10-year prohibition period.
      
2. Specifies a violation of this prohibition would be a misdemeanor punishable by imprisonment in a county jail for up to six months, a base fine of up to $500, or both the fine and imprisonment.
   
3. Specifies that these prohibitions are not retroactive to the extent that, although the convictions that occurred prior to January 1, 2020 may be counted as priors, the third conviction that ultimately results in the firearms prohibition must occur after January 1, 2020.

Background

Firearms Prohibitions for Specified Misdemeanor Offenses. As detailed above, current state and federal laws prohibit persons who have been convicted of specific crimes from owning or possessing firearms. For example, anyone convicted of any felony offense is prohibited for life from firearms ownership under both federal and state law. (18 U.S.C. § 922(g); Penal Code § 29800.) California goes further and imposes a 10-year firearms prohibition on persons convicted of numerous misdemeanor offenses that involve either violence or the threat of violence. (Penal Code § 29805.) Additionally, anyone who has been found to be a danger to themselves or others due to mental illness is subject to a five-year prohibition (Welfare and Institutions Code §§ 8100, 8103(f)), and people under domestic violence restraining orders are subject to a prohibition for the duration of that court order. (Penal Code § 29825.)

This bill expands the existing firearms prohibitions by creating a class of misdemeanor offenses related to alcohol or drug intoxication that would result in a 10-year firearms prohibition if a person were convicted of multiple offenses within a specified period.

Armed and Prohibited Persons System (APPS) Mandates on DOJ, Existing

and Growing Backlog, and Budget Shortfalls. The APPS is a database that checks gun sales against records of criminal convictions, mental health holds and domestic violence restraining orders to flag prohibited owners. DOJ cross-references APPS with five other databases including the California Restraining and Protective Order System (CARPOS), a statewide database of individuals subject to a restraining order. New individuals are added to the APPS database on an ongoing basis as the system identifies and matches individuals in California who are prohibited from purchasing or possessing firearms. DOJ is required to complete an initial review of a match in the daily queue of APPS within seven days of the match being placed in the queue. (Pen. Code, § 30020.)

The DOJ has long been working to seize the guns and ammunition of persons on the APPS list. The San Francisco Chronicle recently reported that the Department has reduced the backlog of prohibited persons from over 20,000 in 2013 to less than 9,000 today. However, the list is always growing as new individuals are added to APPS for committing qualifying crimes. Thus, the burden on the DOJ to clear the list is evergreen. In addition, the Legislature and voter initiatives have added new categories of individuals who are prohibited from possessing firearms. For example, as of July 1, 2019, the Background Checks for Ammunition Purchases and Large-Capacity Ammunition Magazine Ban Initiative (Proposition 63 of 2016) requires that DOJ confirm whether an individual seeking to purchase ammunition is authorized to do so, and in the process, DOJ will likely identify additional cases requiring APPS investigations.

Budget shortfalls make clearing the APPS list difficult, as DOJ has limited resources to investigate and seize firearms from persons on the list. Since the early 2000s, DOJ has requested additional funding to decrease the backlog. The APPS has largely been funded by fees collected when an individual purchases a firearm, which is deposited in the Dealer’s Record of Sale (DROS) Special Account. However, the DROS Special Account has experienced operational shortfalls since 2012-13. In 2013, the Legislature appropriated $24 million with SB 140 (Leno), Chapter 2, Statutes of 2013, to aid the DOJ in reducing the backlog to its current levels, but the DOJ has been unable to eliminate it entirely.

DOJ has anticipated that the list will continue to grow as the Legislature adds new categories of persons to the list, and is awaiting the implementation of other mandates. The DOJ has requested $16.9 million be allocated from the state budget on an ongoing basis to support the existing APPS workload and continue addressing the backlog of cases. The Governor’s budget proposal for 2018-19 flagged this funding as a major program change for the DOJ: “The Budget includes a total of $16.9 million General Fund for APPS—$11.3 million to shift the existing APPS program from the Dealers’ Record of Sale Account to the General Fund and $5.6 million General Fund to support increased APPS workload. Shifting these costs to the General Fund provides a more stable fund source for APPS and allows the Dealers’ Record of Sale Account to maintain solvency to continue additional Bureau of Firearms workload.”

The Provisions of This Bill Would Drastically Increase the APPS List. This bill adds additional individuals to APPS, increasing the DOJ’s workload by requiring additional initial reviews of new matches and, ultimately, requiring additional investigations and operations to seize firearms and ammunition. While the DOJ currently faces operational shortfalls to address the exiting backlog, it appears that 2018-19 budget will better fund DOJ’s APPS operations, allowing DOJ to hire additional individuals to work at eliminating the existing and growing backlog.

Though evidence does suggest a connection between substance abuse offenses, Legislators must consider the nuts and bolts of the enforcement of existing prohibitions of firearms and how the expansion contemplated by this bill would impact these efforts.

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

According to the Senate Appropriations Committee:

Department of Justice (DOJ):

These costs would be borne out of the Dealers Record of Sale Special Account (DROS); however, DROS has experienced significant revenue decreases in recent years to the extent that it is structurally imbalanced. The added expense resulting from SB 55 would create cost pressure on the General Fund to backfill any shortage.

Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who own or possess firearm or ammunition as proscribed by this measure. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the governor's proposed 2019-20 budget seeks to appropriate $52.5 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)

*Trial Court Trust Fund

SUPPORT: (Verified 5/16/19)

Brady California United Against Gun Violence (source)

Alcohol Justice

Bay Area Student Activists

California Chapter of the American College of Emergency Physicians

City Attorney of Los Angeles

Coalition Against Gun Violence

Coalition to Stop Gun Violence

District Attorney of Santa Barbara County

Friends Committee on Legislation of California

Giffords Law Center to Prevent Gun Violence

Los Angeles Board of Supervisors

Prosecutors Against Gun Violence

Riverside Sheriffs’ Association

OPPOSITION: (Verified 5/16/19)

California Public Defenders Association

California Sportsman’s Lobby

Outdoor Sportsmen’s Coalition of California

Peace Officers’ Research Association of California

Safari Club International

ARGUMENTS IN SUPPORT: According to Brady United Against Gun Violence:

There is compelling evidence that both acute alcohol intoxication and a history of abuse or dependence are associated with a substantially increased risk of violence in the future. Recent research by the Violence Prevention Research Program (VPRP), home of the new University of California Firearm Violence Research Center, shows that of firearm purchasers with prior DUI convictions, nearly a third (32.8%) were arrested after purchase for a firearm related or violent crime. In fact, they were 4 to 5 times as likely as purchasers with no prior criminal record to be arrested for such a crime. Other research from VPRP found that firearm owners were more likely than non-firearm owners to have more than five drinks on one occasion, to drink and drive, and to have more than 60 drinks in one month. Further, it was found that heavy alcohol use was most common among firearm owners who engaged in behaviors such as carrying a firearm for protection against other people and keeping a firearm at home that was both loaded and not locked away.

ARGUMENTS IN OPPOSITION: According to the Peace Officers’ Research Association of California (PORAC):

While PORAC agrees that guns need to be kept out of the hands of those who would abuse them, the Department of Justice cannot keep up with the over 20,000 people currently on the “prohibited persons” list. Many of those on the list have been convicted of serious and/or violent felonies. Until California can reduce the serious backlog that currently exists, PORAC feels we should not be adding additional misdemeanants to the list.

Prepared by: Gabe Caswell / PUB. S. /

5/21/19 9:07:46

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 55 (Jackson) - Firearms: prohibited persons

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 16, 2019

Bill Summary:

SB 55 would add specified misdemeanor offenses to the list of crimes that result in a 10-year prohibition on owning or possessing a firearm or ammunition, as specified.

Fiscal Impact:

• Department of Justice (DOJ):

These costs would be borne out of the Dealers Record of Sale Special Account (DROS); however, DROS has experienced significant revenue decreases in recent years to the extent that it is structurally imbalanced. The added expense resulting from SB 55 would create cost pressure on the General Fund to backfill any shortage.

• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who own or possess firearm or ammunition as proscribed by this measure. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the governor's proposed 2019-20 budget seeks to appropriate $52.5 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)

*Trial Court Trust Fund

Author Amendments:

Clarify retroactivity provisions and correct a drafting error.

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SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 55 (Jackson) - Firearms: prohibited persons

Bill Summary:

SB 55 would add specified misdemeanor offenses to the list of crimes that result in a 10-year prohibition on owning or possessing a firearm or ammunition, as specified.

Fiscal Impact:

• Department of Justice (DOJ): Depending on if this measure is to include convictions that already occurred for purposes of the prohibition or if SB 55 is fully prospective, the department has reported a range of costs. These costs are associated with new personnel and the attendant equipment and operating expenses.

With respect to initial costs (over a few years), at the high end is if the Legislature intends that this measure have full retroactive effect. This would require DOJ to comb through previous years of convictions to determine if the prohibition applies. At the lower end of initial costs would be if the Legislature intends that the prohibition applies to convictions prospectively after the enactment of the bill. Between these two ends is if the Legislature intends to include convictions that have happened already but would require a new conviction to trigger the prohibition (i.e., partial retroactivity). The department reports the following costs and personnel (PY) requirements associated with each option to accomplish the task:

These costs would be borne out of the Dealers Record of Sale Special Account (DROS); however, DROS has experienced significant revenue decreases in recent years to the extent that it is structurally imbalanced. From FY 2017-18 to FY 2018-19, DROS revenues dropped by 22 percent; proposed revenue for FY 2019-20 is projected to remain consistent with 2018-19, however. The FY 2019-20 proposed budget anticipates a beginning balance of $6.159 million, revenues of $21.471 million, expenditures of $24.88 million, and an ending reserve of $2.75 million. Given the operational deficit of DROS, the added expense resulting from SB 55 would create cost pressure on the General Fund to backfill any shortage.

• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who own or possess firearm or ammunition as proscribed by this measure. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the governor's proposed 2019-20 budget seeks to appropriate $52.5 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)

• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found guilty of conduct proscribed by this bill. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)

*Trial Court Trust Fund

Background:

California has several laws that prohibit certain persons from purchasing, possessing, or receiving firearm or ammunition. A felony convictions results in a lifetime prohibition, while a conviction of specified misdemeanors, including crimes of domestic violence and battery on a spouse, cohabitant, or person whom the defendant currently has, or has previously had, a dating or engagement relationship, result in a 10-year prohibition. A person may be prohibited from possessing a firearm due to a protective order or as a condition of probation. If a person communicates to his or her psychotherapist a serious threat of physical violence against a reasonably-identifiable victim or victims, the person is prohibited from owning or purchasing a firearm for five years, starting from the date the psychotherapist reports to local law enforcement the identity of the person making the threat. (Welf. & Inst. Code, § 8100, subd. (b)(1).) Additionally, subject to a right to periodically challenge the prohibition, there is a lifetime firearm prohibition for a person who is admitted into a facility because that person is a danger to self or to others more than once within a year; a person who has one admission within a year is subject to a five-year prohibition after the person is released from the facility. (Welf. & Inst. Code, § 8103, subd. (f).) For the provisions prohibiting a person from owning or possessing a firearm based on a serious threat of violence or based on admittance into a facility as a threat to self or others, the person has the right to request a hearing whereby the person could restore his or her right to own or possess a firearm if a court determines that the person is likely to use firearms or other deadly weapons in a safe and lawful manner. (Welf. & Inst. Code, §§ 8100, subd. (b)(1) and 8103, subd. (f).)

Proposed Law:

This bill would:

• Impose a 10-year prohibition on owning or possessing a firearm, ammunition, or reloaded ammunition to a person who has been convicted of the following:
  • Possessing certain controlled substances for sale or vehicular manslaughter while intoxicated two or more times, in any combination, in a three-year period.
  • Three or more specified offenses, with the third offense occurring within 10 years of the second offense, related to reckless driving or driving under the influence of alcohol and/or drugs.
  • Committing another of those misdemeanors listed above during the initial 10-year prohibition period.
• A violation of this prohibition would be a misdemeanor punishable by imprisonment in a county jail for up to six months, a base fine of up to $500, or both the fine and imprisonment.

Related Legislation:

AB 3129 (Rubio, Ch. 883, Stats. 2018) imposed a lifetime ban on the ownership, purchase, receipt, or possession of firearms on individuals who have been convicted of misdemeanor domestic violence.

AB 1968 (Low, Ch. 861, Stats. 2018) imposed a lifetime firearm prohibition, subject to a right to challenge the prohibition periodically, on individuals who are admitted into designated facilities because of a danger to self or others due to a mental health disorder.

AB 1084 (Melendez, 2013) would have increased the penalty to incarceration in state prison for two, three, or four years when an individual, who has been prohibited from gun possession because the person has been held for specified mental health findings, possesses a gun. AB 1084 failed passage in the Assembly Committee on Public Safety.

AB 1131 (Skinner, Ch. 747, Stat. 2013) increased the period of time that a person is prohibited from possessing a firearm based on a mental illness or mental disorder or a serious threat of violence communicated to a licensed psychotherapist.

SB 755 (Wolk, 2013) would have prohibited a person who has been ordered by a court to undergo assisted outpatient treatment from purchasing or possessing any firearm or other deadly weapon while subject to assisted outpatient treatment. SB 755 was vetoed by the governor, who stated that he was “not persuaded that it is necessary to bar gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve the misuse of a firearm.”

Staff Comments:

The fiscal impact of this bill with respect to court costs cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of a defendant, and the factors unique to each case. As the crime expanded upon by SB 55 is punishable as a misdemeanor with the potential for incarceration, certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier and more complex court proceedings. Consequently, to the extent that the court adjudicates a dozen or more of these new crimes, on average, that otherwise would not have been filed or resulted in a criminal action but for the alleged violation of a prohibited person possessing firearm or ammunition, court costs of this bill would surpass the Suspense File threshold.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: SB 55 Hearing Date: March 26, 2019

Subject: Firearms: Prohibited Persons

HISTORY

Source: Author

Prior Legislation: SB 755 (Wolk) Vetoed 2013

Support: Alcohol Justice; Bay Area Student Activists; Brady California United Against Gun Violence; California Chapter of the American College of Emergency Physicians; City Attorney of Los Angeles; Coalition Against Gun Violence; Coalition to Stop Gun Violence; District Attorney of Santa Barbara County; Friends Committee on Legislation of California; Giffords Law Center to Prevent Gun Violence; Los Angeles Board of Supervisors; Prosecutors Against Gun Violence; Riverside Sheriffs’ Association

Opposition: American Civil Liberties Union of California; California Public Defenders Association; California Sportsman’s Lobby; Outdoor Sportsmen’s Coalition of California; Safari Club International

PURPOSE

The purpose of this bill is to add alcohol and drug crimes to the list of misdemeanors that result in a 10-year prohibition on firearms possession.

Existing law provides that certain people are prohibited from owning or possessing a firearm for life, including: (Penal Code §§ 29800, 23515 and 29805.)

1. Anyone convicted of a felony;
   
2. Anyone addicted to a narcotic drug;
   
3. Any juvenile convicted of a violent crime with a gun and tried in adult court;
   
4. Any person convicted of a federal crime that would be a felony in California and sentenced to more than 30 days in prison, or a fine of more than $1,000;
   
5. Anyone convicted of certain violent misdemeanors, e.g., assault with a firearm; inflicting corporal injury on a spouse or significant other, or brandishing a firearm in the presence of a police officer.
   

Existing law provides that a violation of a lifetime ban on possession of a firearm is a felony. (Penal Code §§ 29800, 23515 and 29805.)

Existing law provides that anyone convicted of numerous misdemeanors involving violence or threats of violence are subject to a ten-year ban on possession of a firearm. Provides that a violation of these provisions is an alternate felony/misdemeanor. (Penal Code § 29805.)

Existing law provides that any person taken into custody, assessed, and admitted to a designated facility due to that person being found to be a danger to themselves or others as a result of a mental disorder, is prohibited from possessing a firearm during treatment and for five years from the date of their discharge. Provides that a violation of these provisions is an alternate felony/misdemeanor. (Welfare and Institutions Code §§ 8100 and 8103(f).)

Existing law provides that persons who are bound by a temporary restraining order or injunction or a protective order issued under the Family Code or the Welfare and Institutions Code, may be prohibited from firearms ownership for the duration of that court order. Provides that the violation of these provisions is a wobbler or a misdemeanor, as specified. (Penal Code § 29825.)

Existing law requires that firearms dealers obtain certain identifying information from firearms purchasers and forward that information, via electronic transfer to Department of Justice (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 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. (Penal Code § 28220.)

Existing law requires firearms to be centrally registered at 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. (Penal Code § 11106(a) and (c).)

Existing law requires the Attorney General to establish and maintain an online database to be known as Armed Prohibited Persons System (APPS). 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 (CFIS), 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. The information contained in APPS shall only be available to specified entities through the California Law Enforcement Telecommunications System, for the purpose of determining if persons are armed and prohibited from possessing firearms. (Penal Code § 30000.)

Existing federal law provides, that certain people are prohibited from owning or possessing a firearm: (18 USC § 922(g).) Any person who:

1. Has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
2. Is a fugitive from justice;
3. Is an unlawful user of or addicted to any controlled substance, as defined;
4. Has been adjudicated as a mental defective or who has been committed to a mental institution;
5. Being an alien is illegally or unlawfully in the United States; or except as specified, has been admitted to the United States under a nonimmigrant visa, as defined;
6. Has been discharged from the Armed Forces under dishonorable conditions;
7. Having been a citizen of the United States, has renounced his citizenship; or
8. Is subject to a specified court order.

This bill would add misdemeanor offenses to those for which a conviction results in a 10-year prohibition on possession of a firearm.

This bill specifies that any person who has been convicted of misdemeanor violations of 2 or more of any of the following offenses, or convicted of 2 or more misdemeanor violations of any one of the following offenses, within a 3-year period, and who, within 10 years of the second conviction, owns, purchases, receives, or has in their possession or under custody or control, any firearm, is guilty of a misdemeanor:

1. Possession of specified controlled substances with intent to sell.
   
2. Gross vehicular manslaughter, while intoxicated.
3. Disorderly conduct, public intoxication.
   
4. Driving under the influence.
   

This bill provides that any person, subject to the restrictions in this bill, who is prohibited from owning, purchasing, receiving, or having in their custody or control any firearm, who is subsequently convicted of a misdemeanor violation of any other specified firearm possession prohibition during the prohibitory period, and who, within 10-years of the subsequent conviction, owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a misdemeanor.

COMMENTS

1. Need for This Bill

According to the author:

California law seeks to remove firearms from the possession of people likely to misuse them. There are several classes of people from whom firearms are taken including felons, people addicted to narcotics, the mentally ill, and persons subject to a protective order. Included also are people who commit certain misdemeanors.

Recent research evidences a strong correlation between certain alcohol/drug-related misdemeanor convictions and future gun violence. SB 55 adds several crimes this research has shown to be linked to later firearm violence to the list of criminal convictions that result in a 10-year prohibition on firearm ownership. The crimes must be committed twice within a three-year period to invoke the prohibition.

In 2016, the Legislature established the University of California Firearm Violence Research Center (UCFC), located at University of California at Davis. UCFC works with the Violence Prevention Re-search Program (VPRP) which for more than thirty years has conducted firearm research and policy development.

Research by VPRP and others has shown that convictions for some non-violent crimes involving drugs and alcohol correlate strongly to a later conviction for a firearm-related crime -- in some instances a four- or five-times greater chance of a future crime.

In an effort to prevent future gun violence, this bill adds these research-correlated drug and alcohol convictions to the list of 10-year prohibitions. They are:

1. Possession with intent to sell synthetic cannabinoid drugs;
2. Possession with intent to sell certain tranquilizers;
3. Possession with intent to sell ketamine;
4. Vehicular manslaughter while intoxicated;
5. Public intoxication such that the person “is unable to exercise care for his or her own safety or the safety of others” or such that the person obstructs a public way;
6. Driving while under the influence of alcohol; and
7. Causing an injury while driving under the influence of alcohol

The prohibition applies when a person commits two of the above offenses (or commits the same offense twice) within a three-year period.

Several studies discussing the relationship between alcohol/drug-related crimes and firearms abuse informed this policy and are listed below with a short explanation of the conclusion drawn by each study.

Firearms, alcohol and crime: convictions for driving under the influence (DUI) and other alcohol-related crimes and risk for future criminal activity among authorized purchasers of handguns, Garen J Wintemute, Mona A Wright, Alvaro Castillo-Carniglia, Aaron Shev, Magdalena Cerdá; Inj Prev 2018; 24:68–72. doi:10.1136/injuryprev-2016-042181. Prior alcohol-related convictions were associated with a fourfold to fivefold increase in risk of arrest for a violent or firearm-related crime.

Alcohol Use and Firearm Violence, Charles C. Branas, SeungHoon Han, and Douglas J. Wiebe; Epidemiologic Reviews Vol. 38, 2016; January 24, 2016 and Alcohol misuse, firearm violence perpetration, and public policy in the United States, Garen J. Wintemute, Prev.Med. (2015), http://dx.doi.org/10.1016/j.ypmed.2015.04.015. Regarding other states’ laws restricting firearm possession to alcohol abusers.

Alcohol criteria endorsement and psychiatric and drug use disorders among DUI offenders: greater severity among women and multiple offenders, McCutcheon, Heath, Addict Behav 2009; 34(5): 432-439. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2855219/. People with multiple DUIs are significantly more likely to commit violent and non-traffic offenses than people with just one DUI.

Mental disorder and threats made by noninstitutionalized people with weapons in the national Comorbidity Survey replication, Casiano, Belik, Waldmar. J Nerv Ment Dis 20008: 196(6): 437-445. Persons who reported threatening others with a firearm were 3 times more likely to report a history of alcohol consumption that met standard criteria for alcohol abuse or dependence.

“Persons convicted of two or more crimes involving drugs or alcohol within a three-year period would be prohibited from firearm purchase for a period of 10 years.” “Consensus Recommendations for Reforms to Federal Gun Policies” from Reducing Gun Violence in America, Ed. Webster, D. W. & Vernick, J. S., Johns Hopkins Univ. Press (2013), p. 260.

2. Firearms Prohibitions for Specified Misdemeanor Offenses

As detailed above, current state and federal laws prohibit persons who have been convicted of specific crimes from owning or possessing firearms. For example, anyone convicted of any felony offense is prohibited for life from firearms ownership under both federal and state law. (18 U.S.C. § 922(g); Penal Code § 29800.) California goes further and imposes a 10-year firearms prohibition on persons convicted of numerous misdemeanor offenses that involve either violence or the threat of violence. (Penal Code § 29805.) Additionally, anyone who has been found to be a danger to themselves or others due to mental illness is subject to a five-year prohibition (Welfare and Institutions Code §§ 8100, 8103(f)), and people under domestic violence restraining orders are subject to a prohibition for the duration of that court order. (Penal Code § 29825.)

This bill would expand the existing firearms prohibitions by creating a class of misdemeanor offenses related to alcohol or drug intoxication that would result in a 10-year firearms prohibition if a person were convicted of two or more of them within a three-year period.

3. Armed and Prohibited Persons System (APPS) Mandates on DOJ, Existing and Growing Backlog, and Budget Shortfalls:

The APPS is a database that checks gun sales against records of criminal convictions, mental health holds and domestic violence restraining orders to flag prohibited owners. DOJ cross-references APPS with five other databases including the California Restraining and Protective Order System (CARPOS), a statewide database of individuals subject to a restraining order. New individuals are added to the APPS database on an ongoing basis as the system identifies and matches individuals in California who are prohibited from purchasing or possessing firearms. DOJ is required to complete an initial review of a match in the daily queue of APPS within seven days of the match being placed in the queue. (Pen. Code, § 30020.)

The DOJ has long been working to seize the guns and ammunition of persons on the APPS list. The San Francisco Chronicle recently reported that the Department has reduced the backlog of prohibited persons from over 20,000 in 2013 to less than 9,000 today.^[1] However, the list is always growing as new individuals are added to APPS for committing qualifying crimes. Thus, the burden on the DOJ to clear the list is evergreen. In addition, the Legislature and voter initiatives have added new categories of individuals who are prohibited from possessing firearms. For example, as of July 1, 2019, the Background Checks for Ammunition Purchases and Large-Capacity Ammunition Magazine Ban Initiative (Proposition 63 of 2016) requires that DOJ confirm whether an individual seeking to purchase ammunition is authorized to do so, and in the process, DOJ will likely identify additional cases requiring APPS investigations.

Budget shortfalls make clearing the APPS list difficult, as DOJ has limited resources to investigate and seize firearms from persons on the list. Since the early 2000s, DOJ has requested additional funding to decrease the backlog. The APPS has largely been funded by fees collected when an individual purchases a firearm, which is deposited in the Dealer’s Record of Sale (DROS) Special Account. However, the DROS Special Account has experienced operational shortfalls since 2012-13. In 2013, the Legislature appropriated $24 million with SB 140 (Leno), Chapter 2, Statutes of 2013, to aid the DOJ in reducing the backlog to its current levels, but the DOJ has been unable to eliminate it entirely.

DOJ has anticipated that the list will continue to grow as the Legislature adds new categories of persons to the list, and is awaiting the implementation of other mandates. The DOJ has requested $16.9 million be allocated from the state budget on an ongoing basis to support the existing APPS workload and continue addressing the backlog of cases. The Governor’s budget proposal for 2018-19 flagged this funding as a major program change for the DOJ: “The Budget includes a total of $16.9 million General Fund for APPS—$11.3 million to shift the existing APPS program from the Dealers’ Record of Sale Account to the General Fund and $5.6 million General Fund to support increased APPS workload. Shifting these costs to the General Fund provides a more stable fund source for APPS and allows the Dealers’ Record of Sale Account to maintain solvency to continue additional Bureau of Firearms workload.”^[2]

3. The Provisions of This Bill Would Drastically Increase the APPS List

This bill would add additional individuals to APPS, increasing the DOJ’s workload by requiring additional initial reviews of new matches and, ultimately, requiring additional investigations and operations to seize firearms and ammunition. While the DOJ currently faces operational shortfalls to address the exiting backlog, it appears that 2018-19 budget will better fund DOJ’s APPS operations, allowing DOJ to hire additional individuals to work at eliminating the existing and growing backlog.

Each year in California there are tens of thousands of people convicted of a second offense driving under the influence conviction. According to the most recent report from the Department of Motor Vehicles (DMV) on the California DUI Management Information System^[3] between the years of 2005 and 2015 an average of 37,255 Californians convicted of second offense DUIs per year. Those numbers do not include combinations of drunk in public offenses, possession for sale offenses, or vehicular manslaughter offenses.

Though evidence does suggest a connection between substance abuse offenses, Legislators must consider the nuts and bolts of the enforcement of existing prohibitions of firearms and how the expansion contemplated by this bill would impact these efforts.

4. Calculation of Offense Timing and Implementation of the Resulting Prohibition

This bill requires that individuals who commit two or more specified offenses within a three-year period are banned from possessing a firearm in California. The bill does not make clear who or how that information will be tracked, the offender will be notified that they are not prohibited, and how that information will be transmitted to DOJ. Additionally, under existing law, offenses such as second-offense DUI is tracked within a ten-year period. It is unclear how the tracking of offenses within three year will be done, and how the prohibitions that result from those offenses will be implemented.

5. Veto Message for SB 755 (Wolk), 2013

In 2013, then Senator Lois Wolk ran a very similar measure through the California Legislature. The bill was enrolled with the Secretary of State. Then Governor Jerry Brown vetoed the bill with the following veto message:

I am returning Senate Bill 755 without my signature.

This bill adds substance-abuse offenses and court orders to undergo mental health outpatient treatment to criteria that result in a 10-year prohibition on firearms possession.

I am not persuaded that it is necessary to bar gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve misuse of a firearm.

6. Argument in Support

According to Brady United Against Gun Violence:

Existing law prohibits persons who have been convicted of certain crimes from possessing firearms for varying lengths of time. Prohibiting high risk individuals from acquisition and possession of firearms is a longstanding and widely accepted approach to firearm violence prevention and is a priority policy goal for Brady California. There is strong evidence that denial of purchases reduces risk for future firearm-related and violent crime by at least 25% among those directly affected.

Senate Bill 55 places a ten-year firearm prohibition on those who have been convicted of two or more drug or alcohol related misdemeanor offenses within a three-year period. These convictions include driving under the influence of alcohol (DUI), public intoxication that is unsafe, vehicular manslaughter while intoxicated, or possession with intent to sell certain controlled substances. Under the bill, a person who commits another of these misdemeanors during the initial prohibition period will be subject to a new ten-year prohibition. Finally, SB 55 adds to the list of misdemeanor crimes that carry a 10-year firearm prohibition any violation of the prohibition.

There is compelling evidence that both acute alcohol intoxication and a history of abuse or dependence are associated with a substantially increased risk of violence in the future. Recent research by the Violence Prevention Research Program (VPRP), home of the new University of California Firearm Violence Research Center, shows that of firearm purchasers with prior DUI convictions, nearly a third (32.8%) were arrested after purchase for a firearm related or violent crime. In fact, they were 4 to 5 times as likely as purchasers with no prior criminal record to be arrested for such a crime. Other research from VPRP found that firearm owners were more likely than non-firearm owners to have more than five drinks on one occasion, to drink and drive, and to have more than 60 drinks in one month. Further, it was found that heavy alcohol use was most common among firearm owners who engaged in behaviors such as carrying a firearm for protection against other people and keeping a firearm at home that was both loaded and not locked away.

In light of the research findings and correlation between alcohol related offenses and firearm related crime, it stands to reason that a temporary firearm prohibition accompanying these alcohol convictions would add significantly to public safety. These people are already engaged in risky behavior – two times within three years. Adding firearms to the mix elevates the risk. The combination of alcohol abuse and firearms in situations of domestic violence or high suicide risk is particularly dangerous.

The Brady Campaign believes that a key strategy for reducing firearm injury and death is to keep firearms out of the hands of individuals who, based on their condition or past behavior, are determined to be at risk of future acts of violence. Alcohol misuse has long been recognized as a major risk factor for all forms of violence and we applaud you for introducing this measure.

7. Argument in Opposition

According to the ACLU of California:

Current law subjects people with misdemeanors involving violence or threats of violence to a 10-year prohibition (current Pen. Code § 29805) and prohibits gun possession for those who are addicted to narcotics (Pen. Code § 29800). Additionally, anyone who has been found to be a danger to themselves or others due to mental illness is subject to a five-year prohibition (Welf. & Inst. Code §§ 8100, 8103(f)). This bill would expand the existing firearms prohibitions by creating a new class of non-violent misdemeanor offenses related to alcohol or drugs, including public intoxication, driving under the influence, and possession with intent to sell certain controlled substances, that would result in a 10-year firearms prohibition if a person had two or more convictions within a three-year period.

To the extent that misuse of alcohol and drugs have been correlated with an increased risk of gun-related violence, the most effective way to address that risk is to treat the root causes of the behaviors, including substance use and mental health issues, unemployment, and other social or economic stressors. Criminalizing actions that are legal for those who have not had prior involvement with the justice system will expose people subjected to this law to even more incarceration, and will ultimately do more harm than good.

Those who are convicted of the offenses included in SB 55 already face significant jail time and fines for the offense itself. The criminal justice consequences of this bill that could follow them for a decade will not only worsen our state’s over-incarceration problem but will also have a disproportionate impact on communities of color. Even though Black and white people use drugs at similar rates,^[4] Black people are far more likely to be arrested for drug-related misdemeanors, public intoxication, and driving under the influence.^[5]

The ACLU of California does not oppose gun control measures that regulate the acquisition, use, or possession of guns, so long as those regulations further the interests of public health, safety, or welfare, and are consistent with civil liberties principles like equal protection. Unfortunately, SB 55 fails to strike this balance. For these reasons, the ACLU of California respectfully opposes this bill.

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1. See APPS 2018 Annual Report to the Legislature, published Mar. 1, 2019; see also Alexei Koseff, California struggles to seize guns from people who shouldn’t have them, San Francisco Chronicle, Feb. 18, 2019, available at https://www.sfchronicle.com/politics/article/California-struggles-to-seize-guns-from-people-13624039.php. ↑

2. The Legislative Analysis Office (LAO) has recommended an alternative to the Governor’s proposal to help the DROS Special Account avoid insolvency. LAO recommends providing $16.9 million from the General Fund to support existing and increased APPS workload, and approving 26 new positions requested to continue addressing the backlog. LAO notes that this funding will provide DOJ with the level of funding necessary for which there is “workload justification.” (The 2019-20 Budget: Analysis of Governor’s Criminal Justice Proposals, Legislative Analysists Office, Feb. 2019, available at https://lao.ca.gov/Publications/Report/3940.) ↑

3. https://www.dmv.ca.gov/portal/wcm/connect/848b335c-1360-4473-a35d-4da3345c666a/S5-257.pdf?MOD=AJPERES&CVID= ↑

4. Substance Abuse and Mental Health Services Administration, Results from the 2014 National Survey on Drug Use and Health: Detailed Tables, (2015), Table 1.19B. At: https://www.samhsa.gov/data/sites/default/files/NSDUH-DetTabs2014/NSDUH-DetTabs2014.pdf ↑

5. California Department of Justice, Crime in California (2017). At: https://openjustice.doj.ca.gov/downloads/pdfs/cd17.pdf ↑