(1)Existing law requires any person who manufactures more than 3 firearms in a year to be licensed by the state as a firearms manufacturer. Existing law prohibits any person from using a three-dimensional printer to manufacture a firearm unless that person is a state-licensed firearms manufacturer. Existing law prohibits any person from using a computer numerical control (CNC) milling machine to manufacture a firearm unless the person is a federally licensed manufacturer or importer.

This bill would instead require anybody who uses a three-dimensional printer or CNC milling machine to manufacture a firearm to be a state-licensed manufacturer.

(2)Existing law prohibits the sale, purchase, possession, or receipt of a CNC milling machine that has the sole or primary function of manufacturing firearms to or by anybody in the state other than a federally licensed manufacturer or importer.

This bill would also prohibit the sale, purchase, possession, or receipt of a three-dimensional printer that has the sole or primary function of manufacturing firearms to or by any person in the state other than a state-licensed firearms manufacturer, as specified.

(3)Existing law commencing on July 1, 2023, requires a firearm industry member, as defined, to take reasonable precautions to ensure that they do not sell, distribute, or provide a firearm-related product, as defined, to a downstream distributor or retailer who fails to establish reasonable controls or adhere to laws pertaining to unfair methods of competition, unfair or deceptive acts or practices, and false advertising, and prohibits a firearm industry member from manufacturing, marketing, importing, or offering for sale a firearm-related product that is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety, and also authorizes a person who has suffered harm, or the Attorney General, or city or county attorneys, to bring a civil action against a firearm industry member for an act or omission in violation of these requirements

This bill would add three-dimensional printers and CNC milling machines, as specified, to the definition of firearm-related products.

(4)The bill would additionally provide that a civil action may be brought against a person who distributes any code or digital instructions to a specified person for the manufacture of a firearm using a three-dimensional printer or CNC milling machine, or who violates specified provisions relating to the use, sale, marketing, advertising, transfer, possession, purchase, or receipt of a CNC milling machine or three-dimensional printer. The bill would specify that a person is strictly liable for any personal injury or property damage, as specified, caused by any firearm manufactured using the distributed code or manufactured by a CNC milling machine, three-dimensional printer, or similar machine. The bill would authorize the Attorney General, a county counsel, or a city attorney to bring an action seeking a civil penalty not to exceed $25,000 for each violation as well as injunctive relief.

(5)The bill would declare its provisions to be severable.

(6)By expanding existing 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.

(1)Existing law requires any person who manufactures more than 3 firearms in a year to be licensed by the state as a firearms manufacturer. Existing law prohibits any person from using a three-dimensional printer to manufacture a firearm unless that person is a state-licensed firearms manufacturer. Existing law prohibits any person from using a computer numerical control (CNC) milling machine to manufacture a firearm unless the person is a federally licensed manufacturer or importer.

This bill would instead require anybody who uses a three-dimensional printer or CNC milling machine to manufacture a firearm to be a state-licensed manufacturer.

(2)Existing law prohibits the sale, purchase, possession, or receipt of a CNC milling machine that has the sole or primary function of manufacturing firearms to or by anybody in the state other than a federally licensed manufacturer or importer.

This bill would also prohibit the sale, purchase, possession, or receipt of a three-dimensional printer that has the sole or primary function of manufacturing firearms to or by any person in the state other than a state-licensed firearms manufacturer, as specified.

(3)Existing law commencing on July 1, 2023, requires a firearm industry member, as defined, to take reasonable precautions to ensure that they do not sell, distribute, or provide a firearm-related product, as defined, to a downstream distributor or retailer who fails to establish reasonable controls or adhere to laws pertaining to unfair methods of competition, unfair or deceptive acts or practices, and false advertising, and prohibits a firearm industry member from manufacturing, marketing, importing, or offering for sale a firearm-related product that is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety, and also authorizes a person who has suffered harm, or the Attorney General, or city or county attorneys, to bring a civil action against a firearm industry member for an act or omission in violation of these requirements

This bill would add three-dimensional printers and CNC milling machines, as specified, to the definition of firearm-related products.

(4)The bill would additionally provide that a civil action may be brought against a person who distributes any code or digital instructions to a specified person for the manufacture of a firearm using a three-dimensional printer or CNC milling machine, or who violates specified provisions relating to the use, sale, marketing, advertising, transfer, possession, purchase, or receipt of a CNC milling machine or three-dimensional printer. The bill would specify that a person is strictly liable for any personal injury or property damage, as specified, caused by any firearm manufactured using the distributed code or manufactured by a CNC milling machine, three-dimensional printer, or similar machine. The bill would authorize the Attorney General, a county counsel, or a city attorney to bring an action seeking a civil penalty not to exceed $25,000 for each violation as well as injunctive relief.

(5)The bill would declare its provisions to be severable.

(6)By expanding existing 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.

(1)Existing law requires any person who manufactures more than 3 firearms in a year to be licensed by the state as a firearms manufacturer. Existing law prohibits any person from using a three-dimensional printer to manufacture a firearm unless that person is a state-licensed firearms manufacturer. Existing law prohibits any person from using a computer numerical control (CNC) milling machine to manufacture a firearm unless the person is a federally licensed manufacturer or importer.

This bill would instead require anybody who uses a three-dimensional printer or CNC milling machine to manufacture a firearm to be a state-licensed manufacturer.

(2)Existing law prohibits the sale, purchase, possession, or receipt of a CNC milling machine that has the sole or primary function of manufacturing firearms to or by anybody in the state other than a federally licensed manufacturer or importer.

This bill would also prohibit the sale, purchase, possession, or receipt of a three-dimensional printer that has the sole or primary function of manufacturing firearms to or by any person in the state other than a state-licensed firearms manufacturer, as specified.

(3)Existing law commencing on July 1, 2023, requires a firearm industry member, as defined, to take reasonable precautions to ensure that they do not sell, distribute, or provide a firearm-related product, as defined, to a downstream distributor or retailer who fails to establish reasonable controls or adhere to laws pertaining to unfair methods of competition, unfair or deceptive acts or practices, and false advertising, and prohibits a firearm industry member from manufacturing, marketing, importing, or offering for sale a firearm-related product that is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety, and also authorizes a person who has suffered harm, or the Attorney General, or city or county attorneys, to bring a civil action against a firearm industry member for an act or omission in violation of these requirements

This bill would add three-dimensional printers and CNC milling machines, as specified, to the definition of firearm-related products.

(4)The bill would additionally provide that a civil action may be brought against a person who distributes any code or digital instructions to a specified person for the manufacture of a firearm using a three-dimensional printer or CNC milling machine, or who violates specified provisions relating to the use, sale, marketing, advertising, transfer, possession, purchase, or receipt of a CNC milling machine or three-dimensional printer. The bill would specify that a person is strictly liable for any personal injury or property damage, as specified, caused by any firearm manufactured using the distributed code or manufactured by a CNC milling machine, three-dimensional printer, or similar machine. The bill would authorize the Attorney General, a county counsel, or a city attorney to bring an action seeking a civil penalty not to exceed $25,000 for each violation as well as injunctive relief.

(5)The bill would declare its provisions to be severable.

(6)By expanding existing 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.

(1)Existing law requires any person who manufactures more than 3 firearms in a year to be licensed by the state as a firearms manufacturer. Existing law prohibits any person from using a three-dimensional printer to manufacture a firearm unless that person is a state-licensed firearms manufacturer. Existing law prohibits any person from using a computer numerical control (CNC) milling machine to manufacture a firearm unless the person is a federally licensed manufacturer or importer.

This bill would instead require anybody who uses a three-dimensional printer or CNC milling machine to manufacture a firearm to be a state-licensed manufacturer.

(2)Existing law prohibits the sale, purchase, possession, or receipt of a CNC milling machine that has the sole or primary function of manufacturing firearms to or by anybody in the state other than a federally licensed manufacturer or importer.

This bill would also prohibit the sale, purchase, possession, or receipt of a three-dimensional printer that has the sole or primary function of manufacturing firearms to or by any person in the state other than a state-licensed firearms manufacturer, as specified.

(3)Existing law commencing on July 1, 2023, requires a firearm industry member, as defined, to take reasonable precautions to ensure that they do not sell, distribute, or provide a firearm-related product, as defined, to a downstream distributor or retailer who fails to establish reasonable controls or adhere to laws pertaining to unfair methods of competition, unfair or deceptive acts or practices, and false advertising, and prohibits a firearm industry member from manufacturing, marketing, importing, or offering for sale a firearm-related product that is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety, and also authorizes a person who has suffered harm, or the Attorney General, or city or county attorneys, to bring a civil action against a firearm industry member for an act or omission in violation of these requirements

This bill would add three-dimensional printers and CNC milling machines, as specified, to the definition of firearm-related products.

(4)The bill would additionally provide that a civil action may be brought against a person who distributes any code or digital instructions to a specified person for the manufacture of a firearm using a three-dimensional printer or CNC milling machine, or who violates the above-provisions specified provisions relating to the use, sale, marketing, advertising, transfer, possession, purchase, or receipt of a CNC milling machine or three-dimensional printer. The bill would specify that a person is strictly liable for any personal injury or property damage, as specified, caused by any firearm manufactured using the distributed code or manufactured by a CNC milling machine, three-dimensional printer, or similar machine. The bill would authorize the Attorney General, a county counsel, or a city attorney to bring an action seeking a civil penalty not to exceed $25,000 for each violation as well as injunctive relief.

(5)The bill would declare its provisions to be severable.

(6)By expanding existing 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.

(1)Existing law requires any person who manufactures more than 3 firearms in a year to be licensed by the state as a firearms manufacturer. Existing law prohibits any person from using a three-dimensional printer to manufacture a firearm unless that person is a state-licensed firearms manufacturer. Existing law prohibits any person from using a CNC computer numerical control (CNC) milling machine to manufacture a firearm unless the person is a federally licensed manufacturer or importer.

This bill would instead require anybody who uses a three-dimensional printer or CNC milling machine to manufacture a firearm to be a state-licensed manufacturer.

(2)Existing law prohibits the sale, purchase, possession, or receipt of a CNC milling machine that has the sole or primary function of manufacturing firearms to or by anybody in the state other than a federally licensed manufacturer or importer.

This bill would also prohibit the sale, purchase, possession, or receipt of a three-dimensional printer that has the sole or primary function of manufacturing firearms to or by any person in the state other than a state-licensed firearms manufacturer, as specified.

(3)Existing law commencing on July 1, 2023, requires a firearm industry member, as defined, to take reasonable precautions to ensure that they do not sell, distribute, or provide a firearm-related product, as defined, to a downstream distributor or retailer who fails to establish reasonable controls or adhere to laws pertaining to unfair methods of competition, unfair or deceptive acts or practices, and false advertising, and prohibits a firearm industry member from manufacturing, marketing, importing, or offering for sale a firearm-related product that is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety, and also authorizes a person who has suffered harm, or the Attorney General, or city or county attorneys, to bring a civil action against a firearm industry member for an act or omission in violation of these requirements

This bill would add three-dimensional printers and CNC milling machines, as specified, to the definition of firearm-related products.

(4)The bill would additionally provide that a civil action may be brought against a person who distributes any code or digital instructions to a specified person for the manufacture of a firearm using a three-dimensional printer or CNC milling machine. machine, or who violates the above-provisions relating to the use, sale, transfer, possession, purchase, or receipt of a CNC milling machine or three-dimensional printer. The bill would specify that a person is strictly liable for any personal injury or property damage damage, as specified, caused by any firearm manufactured using the distributed code. code or manufactured by a CNC milling machine, three-dimensional printer, or similar machine. The bill would authorize the Attorney General, a county counsel, or a city attorney to bring an action seeking a civil penalty not to exceed $25,000 for each violation as well as injunctive relief.

(5)The bill would declare its provisions to be severable.

(6)By expanding existing 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.

(1)Existing law requires any person who manufactures more than 3 firearms in a year to be licensed by the state as a firearm firearms manufacturer. Existing law prohibits any person from using a three-dimensional printer to manufacture a firearm unless that person is a state-licensed firearms manufacturer. Existing law prohibits any person from using a CNC milling machine to manufacture a firearm unless the person is a federally licensed manufacturer or importer.

This bill would instead require anybody who uses a three dimensional three-dimensional printer or CNC milling machine to manufacture a firearm to be a state-licensed manufacturer.

(2)Existing law prohibits the sale, purchase, possession, or receipt of a CNC milling machine that has the sole or primary function of manufacturing firearms to or by anybody in the state other than a federally licensed manufacturer or importer.

This bill would instead also prohibit the sale, purchase, possession, or receipt of a three dimensional three-dimensional printer or CNC milling machine that has the sole or primary or intended function of manufacturing firearms to or by any person in the state other than a state-licensed firearm firearms manufacturer, as specified.

(3)Existing law commencing on July 1, 2023, requires a firearm industry member, as defined, to take reasonable precautions to ensure that they do not sell, distribute, or provide a firearm-related product, as defined, to a downstream distributor or retailer who fails to establish reasonable controls or adhere to laws pertaining to unfair methods of competition, unfair or deceptive acts or practices, and false advertising, and prohibits a firearm industry member from manufacturing, marketing, importing, or offering for sale a firearm-related product that is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety, and also authorizes a person who has suffered harm, or the Attorney General, or city or county attorneys, to bring a civil action against a firearm industry member for an act or omission in violation of these requirements

This bill would add three-dimensional printers and CNC milling machines, as specified, to the definition of firearm-related products.

(4)The bill would additionally provide that a civil action may be brought against a person who distributes any code or digital instructions for the manufacture of a firearm using a three-dimensional printer or CNC milling machine. The bill would specify that a person is strictly liable for any personal injury or property damage caused by any firearm manufactured using the distributed code.

(5)The bill would declare its provisions to be severable.

(6)By expanding existing 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.

(1)Existing law requires any person who manufactures more than 3 firearms in a year to be licensed by the state as a firearm manufacturer. Existing law prohibits any person from using a three-dimensional printer to manufacture a firearm unless that person is a state-licensed firearms manufacturer. Existing law prohibits any person from using a CNC milling machine to manufacture a firearm unless the person is a federally licensed manufacturer or importer.

This bill would instead require anybody who uses a three dimensional printer or CNC milling machine to manufacture a firearm to be a state-licensed manufacturer.

(2)Existing law prohibits the sale, purchase, possession, or receipt of a CNC milling machine that has the sole function of manufacturing firearms to or by anybody in the state other than a federally licensed manufacturer or importer.

This bill would instead prohibit the sale, purchase, possession, or receipt of a three dimensional printer or CNC milling machine that has the primary or intended function of manufacturing firearms to or by any person in the state other than a state-licensed firearm manufacturer, as specified.

(3)Existing law commencing on July 1, 2023, requires a firearm industry member, as defined, to take reasonable precautions to ensure that they do not sell, distribute, or provide a firearm-related product, as defined, to a downstream distributor or retailer who fails to establish reasonable controls or adhere to laws pertaining to unfair methods of competition, unfair or deceptive acts or practices, and false advertising, and prohibits a firearm industry member from manufacturing, marketing, importing, or offering for sale a firearm-related product that is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety, and also authorizes a person who has suffered harm, or the Attorney General, or city or county attorneys, to bring a civil action against a firearm industry member for an act or omission in violation of these requirements

This bill would add three-dimensional printers and CNC milling machines, as specified, to the definition of firearm-related products.

(4)The bill would additionally provide that a civil action may be brought against a person who distributes any code or digital instructions for the manufacture of a firearm using a three-dimensional printer or CNC milling machine. The bill would specify that a person is strictly liable for any personal injury or property damage caused by any firearm manufactured using the distributed code.

(5)The bill would declare its provisions to be severable.

(6)By expanding existing 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.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1089

Author:(Gipson)

As Amended Ver:September 1, 2023

Majority vote

SUMMARY

Defines three-dimensional (3D) printers and includes such devices in the statutes regulating the manufacture of firearms. Requires persons to relinquish certain 3D printers. Expands firearm civil liability laws to include the use of computer numerical control (CNC) machines and 3D printers. Imposes strict civil liability on persons who unlawfully distribute 3D firearm manufacturing codes or who unlawfully possess or transfer specified CNC machines or 3D printers. Prevents persons from advertising CNC machines or 3D printers in a manner that would promote the unlawful use of such devices.

Senate Amendments

1. Prohibit a person from knowingly or recklessly transferring, advertising, or marketing a CNC machine or 3D printer in a manner that causes or promotes the unlawful manufacturing of firearms.
2. Provide that there is a rebuttable presumption a person is knowingly or recklessly transferring or marketing a CNC machine or 3D printer if:
3. The totality of the circumstances indicate the advertising or marketing is targeted at purchasers seeking to manufacture firearms or otherwise promotes the utility of the device for such use; and,
4. The person sells the CNC machine or 3D printer without verifying that the purchaser or transferee is a state or federally licensed firearms manufacturer.
5. Authorize civil actions for individuals who suffer harm due to a person unlawfully transferring, advertising, or marketing a CNC machine or 3D printer, in violation of these provisions.
6. Authorize the Attorney General, county counsels, or city attorneys, to bring civil actions on behalf of individuals harmed by the unlawful transfer, advertising, or marketing of CNC machines or 3D printers, as specified.
7. Make technical, non-substantive changes.

COMMENTS

As Passed by the Assembly: This bill defined three-dimensional (3D) printers and included such devices in the statutes regulating the manufacture of firearms. Required persons to relinquish certain 3D printers. Expanded firearm civil liability laws to include the use of computer numerical control (CNC) machines and 3D printers. Imposed strict civil liability on persons who unlawfully distribute 3D firearm manufacturing codes or who unlawfully possess or transfer specified CNC machines or 3D printers.

Major Provisions:

1. Included a "firearm manufacturing machine" in the definition of a "firearm-related product" for purposes of the Firearm Industry Responsibility Act.
2. Defined a "firearm manufacturing machine," in the civil liability context, as a 3D printer or CNC milling machine that is marketed or sold as, or reasonably designed or intended to be used to manufacture or produce a firearm.
3. Authorized civil actions against persons who knowingly distribute, or cause to be distributed, any digital firearm manufacturing code to a non-exempt person, if a firearm produced by such code is used to inflict personal injury or property damage.
4. Authorized civil actions against a person who knowingly and unlawfully uses, possesses, or otherwise transfers specified CNC milling machines or 3D printers, if a firearm produced by such devices is used to inflict personal injury or property damage.
5. Stated that, in such civil actions, a person shall be strictly liable for any resulting personal injury or property damage, as specified.
6. Exempted military members from such civil actions if they distributed the digital firearm manufacturing code if they were acting within the scope of their employment, and also exempts law enforcement agencies, forensic laboratories, and federally-licensed firearm manufacturers.
7. Authorized the Attorney General, county counsel, or a city attorney to bring such civil actions and limits the civil penalty to no more than $25,000.
8. Provided that a prevailing plaintiff in such civil actions is entitled to reasonable attorney's fees.
9. Specified that only state-licensed firearms manufacturers can use CNC milling machines and 3D printers to manufacture firearms.
10. Defined a "state-licensed firearms manufacturer" as a person licensed to manufacture firearms under California state law.
11. Made it a crime to sell, transfer, or possess a CNC milling machine or 3D printer that has a sole or primary function of manufacturing firearms, unless it is done by a state-licensed manufacturer.
12. Required a person who possesses a 3D printer that has the sole or primary function of manufacturing a firearm before July 1, 2024, to do the following within 90 days of that date in order to not be in violation of state law:
13. Sell or transfer the device to a state-licensed firearms manufacturer,
14. Sell or transfer the device to a businessperson that sells such devices to state-licensed firearms manufacturers,
15. Take the device out of state,
16. Give the device to a law enforcement agency, or;
17. Otherwise lawfully terminate possession of the device.

According to the Author

"Even before the COVID-19 pandemic, stories from families of gun violence have kept me up at night. My own son and his fiancé were victims… and this issue has only gotten worse in our communities. For communities alike, gun violence is a wildfire that we work diligently trying to contain. And the casualties are our babies, sisters, brothers, friends, and acquaintances - all deserving of life but were cut short of their potential. To say that this issue is personal to me is an understatement, and sending thoughts and prayers just isn't enough. AB 1089 will close the loop on ghost guns and getting one step closer to getting illegal guns off the street. My heart breaks every single time I hear of another life lost from senseless gun violence. Not one more rally. Not one more vigil. Not one more shooting. We need the comprehensive solutions - this is wholeheartedly about saving lives, and nothing less."

Arguments in Support

According to the bill's sponsor, Giffords, "…Despite the enormous positive impact California's ghost gun reform legislation has had in reforming most ghost gun product sellers' business practices, certain companies have openly declared, including in court filings, that they are continuing to sell ghost gun manufacturing machines as an effort to circumvent California's regulations on ghost gun kits and components. These digitally programmable machines are designed to enable untrained amateurs to produce firearm frames or receivers with the press of a button, either by additive manufacturing (from a 3-D printer) or subtractive manufacturing (from a CNC milling machine that carves the product out of metal or other material). Instead of selling ghost gun kits, these sellers claim that they are selling merely the machines, unformed material, and digital files for use in those machines.

We believe they are very clearly violating both the spirit and letter of California law. For instance, AB 1621 (Gipson) already enacted some important restrictions on the sale, purchase, and use of digitally programmable CNC milling machines that have the sole or primary function of manufacturing firearms. AB 1621 (Gipson) also unambiguously prohibited any person who does not have a federal firearm manufacturer's license from using such machines to produce any number of firearms. AB 2156 (Wicks) similarly prohibited using 3-D printers to produce any number of firearms without both a California and federal manufacturer's license.

Nonetheless, irresponsible companies have continued to sell machines that are explicitly designed and marketed as ghost gun manufacturing machines (including a CNC milling machine called "the Ghost Gunner" sold by Defense Distributed) while dubiously and deceptively claiming that these same machines do not have the "primary" purpose of manufacturing firearms. The seller of the Ghost Gunner machine describes it as "the most popular way of finishing unserialized rifles and pistols in the comfort and privacy of home" and informs California buyers only that they buy ghost gun manufacturing machines "at their own risk." Similarly, sellers on "Ghostguns.com" market a 3D printing ghost gun manufacturing machine called "The Ender" along with files for printing plastic components of undetectable firearms. Companies like these marketing ghost gun manufacturing machines continue to fail to inform unlicensed customers that it is now unambiguously unlawful in California to use either a CNC milling or a 3-D printer to manufacture or in any way produce firearms (including completed or unfinished frames and receivers) without a firearm manufacturer's license.

Additionally, there is need to consolidate and standardize provisions that were separately enacted by AB 1621 and AB 2156 which separately regulated CNC milling machines and 3- D printers, respectively. For instance, while California law now prohibits unlicensed manufacturers from using a 3-D printer to produce firearms, state law does not regulate the purchase, possession, or sale of 3-D printers that are designed or marketed as ghost gun manufacturing 3-D printers; only AB 1621 included purchase, possession, and sale restrictions on CNC milling ghost gun machines. Additionally, while AB 1621 (Gipson) required a federal firearm manufacturer license to use CNC milling machines to produce firearms, AB 2156 (Wicks) required both a federal and state firearm manufacturer license to use a 3-D printer to produce firearms. (The federal license is a prerequisite under state law for a California firearm manufacturer license). Consolidating and standardizing these statutes will promote compliance and public safety.

AB 1089 (Gipson) would help urgently and unequivocally address these threats and shut down these companies' dangerous and irresponsible attempts to circumvent California's new ghost gun reforms. This legislation would build on the strong ghost gun reforms California enacted last year by clarifying and strengthening California's limitations on the sale of ghost gun manufacturing machines and by strengthening efforts to hold individuals accountable for harms caused by their distribution of digital blueprints for printing and manufacturing guns and key firearm components…"

Arguments in Opposition

According to the Gun Owners of California, "As currently written, the bill would ban any 3-D or CNC machine for the simple reason that they are capable of manufacturing unserialized firearms – as well as a host of other products. According to 3D Sourced, "3D printing has grown to impact almost every major industry worldwide in some capacity." According to their research in which they showcase developments in the 3D printing sector, hospitals are increasingly turning to 3D printing for uses in orthopedics, surgical implants, and custom surgical instruments. It also dominates the hearing aid industry and it's uses are increasingly popular in the fields of dental prosthetics as well as auto parts production and jewelry.

It's an overreach to ban a product because a tiny subsection of our society chooses to make a item that is used for an unlawful goal; the fact remains that the significant majority of 3D uses are responsible and law-abiding, and those individuals should not be penalized for the misdeeds of a few.

I believe we should get down to the business of reducing crime, rather than penalizing the lawful for the misdeeds of the unlawful – it will never have its anticipated resolution. For those who are interested in stemming the tide of illegal weapons, we share a common desire, and GOC believes we can cooperatively move towards this goal."

FISCAL COMMENTS

According to the Senate Appropriations Committee, "Unknown, potentially significant court workload cost pressures in order adjudicate actions brought under the expanded criminal and civil liability provisions of AB 1089 (Trial Court Trust Fund, General Fund). See Staff Comments for additional detail."

VOTES:

ASM PUBLIC SAFETY: 7-1-0

YES: Jones-Sawyer, Alanis, Bonta, Bryan, Jackson, Santiago, Zbur

NO: Lackey

ASM JUDICIARY: 8-0-3

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas

ABS, ABST OR NV: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 11-2-3

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Ortega

NO: Megan Dahle, Mathis

ABS, ABST OR NV: Dixon, Robert Rivas, Sanchez

ASSEMBLY FLOOR: 64-8-8

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Davies, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO: Megan Dahle, Vince Fong, Gallagher, Lackey, Mathis, Joe Patterson, Ta, Waldron

ABS, ABST OR NV: Chen, Dixon, Essayli, Flora, Hoover, Jim Patterson, Sanchez, Wallis

SENATE FLOOR: 32-6-2

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

NO: Dahle, Grove, Jones, Nguyen, Niello, Seyarto

ABS, ABST OR NV: Hurtado, Ochoa Bogh

UPDATED

VERSION: September 1, 2023

CONSULTANT: Mureed Rasool / PUB. S. / (916) 319-3744 FN: 0001892

 THIRD READING  

Bill No: AB 1089

Author: Gipson (D), et al.

Amended: 9/1/23 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-1, 6/27/23

AYES: Wahab, Bradford, Skinner, Wiener

NOES: Ochoa Bogh

SENATE JUDICIARY COMMITTEE: 10-1, 7/11/23

AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Stern, Wiener

NOES: Niello

SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

ASSEMBLY FLOOR: 64-8, 5/30/23 - See last page for vote

SUBJECT: Firearms

SOURCE: Brady Campaign

Giffords Law Center to Prevent Gun Violence

DIGEST:

This bill includes three-dimensional (3D) printers in several statutes regulating the manufacture of firearms, and to expand the applicability of existing civil liability laws to various conduct related to computer numerical control machines (CNC) and 3D printers.

ANALYSIS:

Existing law:

1. Defines a “firearm,” in certain provisions of the Penal Code, such as those relating to firearm enhancements and requirements related to lost and stolen firearms, as, “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” (Pen. Code, § 16520, subd. (a).)
2. Defines a firearm, for other specified provisions of the Penal Code, such as those relating to prohibitions on possession and transfer, among others, as the frame or receiver of the weapon, including both a completed frame or receiver or a firearm precursor part. (Pen. Code, §16520, subd. (b).)
3. Defines a “firearm precursor part” as “any forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm, or that is marketed or sold to the public to become or be used as the frame or receiver of a functional firearm once completed, assembled or converted.” (Pen. Code, § 16531, subd. (a).)
4. Prohibits any person or corporation from manufacturing more than three firearms in this state over the course of a year unless they are licensees. (Pen. Code, § 29010, subd. (a).)
5. Prohibits a person, firm or corporation from using a 3D printer to manufacture any firearm, including a frame or receiver, or any firearm precursor part, unless that person, firm or corporation has a manufacturer’s license. (Pen. Code, § 29010, subd. (b).)
6. Defines “three-dimensional printer, for the purposes of the prohibition above, as a computer-aided manufacturing device capable of producing a three-dimensional object from a three-dimensional digital model through an additive manufacturing process that involves the layering of two-dimensional cross sections formed of a resin or similar material that are fused together to form a three-dimensional object. (Pen. Code, § 29010, subd. (b).)
7. Provides that violations of the prohibitions above are misdemeanors. (Pen. Code, § 29010, subd. (d).)
8. Provides that the Department of Justice (DOJ) shall accept applications for, and shall grant licenses permitting, the manufacture of firearms within this state. (Pen. Code § 29050, subd. (a).)
9. Prohibits the DOJ from granting a license unless and until the applicant presents proof of all of the following:
   1. A valid license to manufacture firearms issued by the Federal Government;
   2. Any regulatory or business license required by local government;
   3. A valid seller’s permit or resale certificate issued by the State Board of Equalization, if applicable; and,
   4. A certificate of eligibility issued by the DOJ. (Pen. Code, § 29050, subd. (b).)
10. Provides that a licensee’s license cannot be valid for more than one year from the date of issuance. (Pen. Code, § 29050, subd. (c).)
11. Requires the DOJ to maintain a centralized list of all persons licensed to manufacture firearms. (Pen. Code § 29060.)
12. Provides that a firearms manufacturer’s license can be revoked and that a licensee may become permanently ineligible to hold a license, as specified. (Pen. Code § 29065.)
13. Makes it a misdemeanor for a person to knowingly possess a firearm without a valid state or federal serial number. (Pen. Code, § 23920.)
14. States that prior to manufacturing or assembling a firearm (not including precursor parts) that does not have a valid state or federal serial number, a person must:
    1. Apply to the DOJ for a serial number,
    2. Describe the firearm they intend to assemble, and;
    3. Provide their date of birth, address and full name. (Pen. Code, § 29180, subd. (b)(1).)
15. Requires that within 10 days of manufacturing or assembling a firearm (not including precursor parts), they must engrave or permanently affix the serial number previously provided to them by the DOJ and notify the DOJ of such. (Pen. Code, § 29180, subd. (b)(2)-(3).)
16. Prohibits persons or corporations from using a CNC milling machine to manufacture a firearm or firearm precursor part unless they are a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (a).)
17. States that it is unlawful to sell, offer to sell, or transfer a CNC milling machine that has the sole or primary function of manufacturing firearms to any person aside from a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (b).)
18. Provides that it is unlawful to possess, purchase, or receive a CNC milling machine that has the sole or primary function of manufacturing firearms unless a person is a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (c).)
19. Exempts air carriers, certain business persons, and other specified persons from the prohibition on possessing, purchasing, transferring or selling specified CNC milling machines. (Pen. Code, § 29185, subd. (d).)
20. Provides that violations of the above prohibitions regarding CNC milling machines are punishable as misdemeanors. (Pen. Code, § 29185, subd. (f).)
21. Establishes the “Firearm Industry Responsibility Act” (FIRA) which allows for civil actions to be brought against firearm industry members who deal in abnormally dangerous firearm-related products. (Civ. Code, § 3273.50 et seq.)
22. Defines, for the purposes of FIRA, “firearm-related product” as a firearm, ammunition, a firearm precursor part, a firearm component, firearm manufacturing machine, and a firearm accessory that meets any of several specified conditions. (Civ. Code, §3273.50, subd. (d).)
23. Authorizes any resident of, or visitor to, California, other than an officer or employee of a state or local governmental entity in this state, to bring a civil action against any person who knowingly traffics in illegal firearms and in firearm parts in the state. Also requires persons who bring lawsuits against enforcement of firearms laws to pay for the attorney’s fees of the state if the state prevails. (Bus. & Prof. Code, § 22949.60 et seq.; Civ. Code, § 1021.11)

This bill:

1. Includes a "firearm manufacturing machine" in the definition of a "firearm-related product" for purposes of Firearm Industry Responsibility Act (FIRA), and defines the term as a 3D printer, as defined in Section 29185 of the Penal Code, or CNC milling machine that is marketed or sold as, or reasonably designed or intended to be used to manufacture or produce a firearm.
2. Provides that a civil action may be brought against a person who knowingly:
   1. Distributes or causes to be distributed, by any means including the internet, any digital firearm manufacturing code to any person in California who is not a federally licensed firearm manufacturer, member of the Armed Forces of the United States or the National Guard while on duty and acting in the scope of their employment, or any law enforcement agency or forensic laboratory; or
   2. Commits an act that violates Penal Code Section 29185, such as by unlawfully using, selling, offering to sell, or otherwise transferring specified CNC milling machines or 3D printers, or possessing, purchasing, or receiving such a machine that has the sole or primary function of manufacturing firearms, even if such conduct does not result in a conviction under section 29185.
3. Provides that a person who commits one of the above acts shall be strictly liable for any personal injury or property damage inflicted by the use of a firearm that is manufactured or produced using the digital firearm manufacturing code that they distributed or caused to be distributed, or that is manufactured by means of a CNC milling machine, a 3D printer, or a similar machine.
4. Specifies that such strict liability does not include any injury or property damage sustained by a person who commits the unlawful act that subjects them to strict liability.
5. Provides that the Attorney General, county counsel, or city attorney may bring an action in any court of competent jurisdiction to establish that a person has violated these provisions, and that they may seek a civil penalty not to exceed $25,000 for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.
6. Specifies that the remedies provided above are cumulative and shall not be construed as restricting any other rights, causes of action, claims, or defenses available under any other law.
7. Provides that a prevailing plaintiff in the civil actions set forth above is entitled to recover reasonable attorney’s fees and costs.
8. Defines the terms “digital firearm manufacturing code,” “federally licensed firearms manufacturer,” “firearm,” and “three-dimensional printer” for the purposes of the civil liability provisions above.
9. Prohibits a person from selling, offering to sell, transferring, advertising, or marketing a CNC milling machine or 3-D printing machine in a manner that knowingly or recklessly causes another person in California to engage in conduct prohibited by Penal Code Section 29185, or in a manner that otherwise knowingly or recklessly aids, abets, promotes, or facilitates conduct prohibited by that section.
10. Creates a rebuttable presumption that a person has violated this prohibition if both of the following are true:
    1. The person offers to sell, advertises, or markets a CNC milling machine or 3-D printer in a manner that, under the totality of the circumstances, is targeted at purchasers seeking to manufacture firearms or that otherwise affirmatively promotes the machine or printer’s utility in manufacturing firearms, regardless of whether the machine or printer is otherwise described or classified as having any other capabilities; and
    2. The person sells or transfers the CNC milling machine or 3-D printer as described without verifying that the purchaser or transferee in California is a federally licensed firearms manufacturer or not otherwise prohibited from purchasing or using the machine or printer to manufacture firearms under Penal Code Section 29185.
11. Provides that a person who has suffered harm because of conduct in violation of these provisions, including conduct in violation of Penal Code Section 29185 that was precipitated by a violation of the above Civil Code sections, may bring a suit in a court of competent jurisdiction to seek appropriate relief.
12. Provides that such appropriate relief may include injunctive relief sufficient to prevent the person and any other defendant from further violating the law, compensatory or statutory damages, punitive damages, reasonable attorney’s fees and costs, and any other appropriate relief necessary to enforce the title and remedy the harm caused by the violation.
13. Allows the Attorney General or any county counsel or city attorney, in the name of the people of California, to bring an action in an court of competent jurisdiction to establish that a person has violated these provisions or Penal Code Section 29185, and seek a civil penalty not more than $25,000 for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.
14. Prohibits under the Penal Code any person, other than a state-licensed firearms manufacturer, from using a CNC milling machine or 3D printer to manufacture a firearm, and makes such conduct punishable as a misdemeanor.
15. Makes it crime punishable as a misdemeanor to sell, offer to sell, transfer, possess, purchase, or receive a CNC milling machine or 3D printer that has a sole or primary function of manufacturing firearms, unless it is done by a state-licensed manufacturer.
16. Exempts from the above Penal Code provisions the following:
    1. A person who is engaged in the business of selling manufacturing equipment to a state-licensed firearms manufacturer, and who possesses a CNC milling machine or 3-D printer with the intent to sell or transfer the CNC milling machine or 3-D printer to a state-licensed firearms manufacturer;
    2. A common carrier licensed under state law, or a motor carrier, air carrier or carrier affiliated with an air carrier as specified, or an authorized agent of any such carrier, when acting in the course and scope of duties incident to the receipt, processing, transportation, or delivery of property;
    3. A person who possessed a CNC milling machine or 3-D printer that has the sole or primary function of manufacturing firearms before June 30, 2022, and who, within 90 days of that date, takes one of several specified actions to terminate possession of the machine; and
    4. A person who possesses, before July 1, 2024, a 3-D printer that has the sole or primary function of manufacturing firearms, and who does one of the following within 90 days of that date takes one of several specified actions to terminate possession of the machine.
17. Exempts from these Penal Code sections any member of the Armed Forces of the United States or the National Guard, while on duty and acting within the scope and course of their employment, or any law enforcement agency or forensic laboratory.
18. Defines “state-licensed firearms manufacturer” for the purposes of these Penal Code sections as a person licensed to manufacture firearms under California state law, consistent with the definition of the term in other provisions of existing law.
19. Defines “three-dimensional printer” for the purposes of these Penal Code sections as a computer-aided manufacturing device capable of producing a three-dimensional object from a three-dimensional model through additive manufacturing process that involves the layering of two-dimensional cross sections formed of a resin or similar material that are fused together to form a three-dimensional object.
20. Contains a severability clause.

Comments

According to the author, “Assembly Bill 1089 seeks to build on California’s recently enacted ghost gun reforms by closing additional gaps and creating a civil cause of action to assist in accountability and enforcement against companies whose sale or advertising practices unfairly and deceptively induce California buyers to illegally obtain and use ghost gun manufacturing machines without a manufacturer’s license.”

On June 30, 2022, Governor Newsom signed AB 1621 (Gipson, Chapter 76, Statutes of 2022), a comprehensive measure aimed at curbing the ghost gun epidemic, in large part via revising state regulations regarding firearm “precursor parts,” or components that may be readily convertible into usable firearms. The bill also established several provisions of law limiting the acquisition, possession, purchase and use of CNC milling machines that have the sole or primary function of manufacturing firearms by any entity except for a federally licensed firearms manufacturer or importer, subject to various exceptions (i.e. for common carriers and entities that sell CNC machines to manufacturing licensees). Another exemption applies to persons who possessed a CNC milling machine before the effective date of those restrictions (June 30, 2022), and within 90 days of that date terminates possession of the machine in one of several specified manners. Existing law also provides for the licensure of firearms manufacturers within the California.

This bill extends the CNC restrictions established by AB 1621 to 3D printers that have the sole or primary function of manufacturing firearms, and modifies the exemptions related to federally licensed firearms manufacturers to instead refer to state licensed firearms manufacturers. This latter change is largely pro forma, as a federal manufacturer’s license is a prerequisite of a state license. This bill also adopts AB 1621’s CNC machine relinquishment provisions for 3D printers, and provides that a person who possessed a 3D printer before July 1, 2024, and within 90 days of that date relinquishes possession of the printer in a manner provided is exempt from the above restrictions.

Another section of this bill makes various changes to California’s law regarding civil liability for firearm-related damage. Specifically, this bill creates two new civil causes of action against persons who knowingly distribute a digital firearm manufacturing code or commits an act that violates the Penal Code on unlawfully using or selling CNC milling machines and 3-D printers, and holds the person strictly liable for any personal injury or property damage from such acts.

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

According to the Senate Appropriations Committee, unknown, potentially significant court workload cost pressures in order adjudicate actions brought under the expanded criminal and civil liability provisions of AB 1089 (Trial Court Trust Fund, General Fund).

SUPPORT: (Verified 9/1/23)

Brady Campaign (co-source)

Giffords Law Center to Prevent Gun Violence (co-source)

Consumer Attorneys of California

Everytown for Gun Safety Action Fund

Peace Officers’ Research Association of California

OPPOSITION: (Verified 9/1/23)

California Rifle and Pistol Association, Inc.

Defendingconstitutionalrights.com

ASSEMBLY FLOOR: 64-8, 5/30/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Davies, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NOES: Megan Dahle, Vince Fong, Gallagher, Lackey, Mathis, Joe Patterson, Ta, Waldron

NO VOTE RECORDED: Chen, Dixon, Essayli, Flora, Hoover, Jim Patterson, Sanchez, Wallis

Prepared by: Alex Barnett / PUB. S. /

9/2/23 16:58:21

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 1089 (Gipson) - Firearms

Bill Summary:

AB 1089 would regulate three-dimensional printers and CNC milling machines as firearms related products, and would require anybody who uses a three-dimensional printer or CNC milling machine to manufacture a firearm to be a state-licensed manufacturer.

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

The following information is revised to reflect amendments

adopted by the committee on September 1, 2023

Fiscal Impact:

Unknown, potentially significant court workload cost pressures in order adjudicate actions brought under the expanded criminal and civil liability provisions of AB 1089 (Trial Court Trust Fund, General Fund).

Committee Amendments:

Add a co-author.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 1089 (Gipson) - Firearms

Bill Summary:

AB 1089 would regulate three-dimensional printers and CNC milling machines as firearms related products, and would require anybody who uses a three-dimensional printer or CNC milling machine to manufacture a firearm to be a state-licensed manufacturer.

Fiscal Impact:

Unknown, potentially significant court workload cost pressures in order adjudicate actions brought under the expanded criminal and civil liability provisions of AB 1089 (Trial Court Trust Fund, General Fund). See Staff Comments for additional detail.

Background:

The epidemic of gun violence in the United States can be attributed to the ubiquitous prevalence of firearms in the country. Some estimates place the current number of firearms in civilian possession in the United States at 433.9 million, and both possession and production have been growing in recent years. Historically, firearms have been produced by licensed manufacturers in factories and sold through licensed gun dealers. Federal law requires all guns manufactured in the United States and imported from abroad to have serial numbers, typically displayed on the back of the frame. Serial numbers and extensive regulations on manufacturers help ensure firearms can be traceable, and are only sold to those legally able to possess them. Thus, those intending to avoid the licensing of firearms or to evade firearms being traced back to the owner have historically attempted to file off the serial number from a firearm’s frame.

However, “ghost guns” have provided an incredibly easy avenue for such individuals to evade the firearm licensing and other regulations. Ghost guns are unserialized and firearms that can be bought online and assembled at home and can be manufactured by an unlicensed buyer with parts that can be acquired without a background check or manufacturing license. Because of this, ghost guns are also difficult for law enforcement to trace. One way in which “ghost guns” are produced is through computer numerical control (CNC) milling machines. CNC milling machines are machines capable of automatically processing raw materials such as metal, plastic, wood or composite into digitally modeled shapes based solely on programed instructions, without the need for a human operator. CNC milling machines use subtractive manufacturing: essentially breaking down a raw material until the desired product is created. 3-D printers, by contrast, use an additive manufacturing process that lays down consecutive layers of material to generate various products. 3-D printers have grown significantly in popularity in recent years, with the designs for guns built through 3-D printers becoming widely available online. One company known as “Ghost Gunner” is currently marketing its latest CNC milling machine, the Ghost Gunner 3, which costs only $2,500 and comes with programmed code to complete several fully functional assault-style weapons.

Proposed Law:

• Includes a "firearm manufacturing machine" in the definition of a "firearm-related product" for purposes of Firearm Industry Responsibility Act (FIRA), and defines the term as a 3D printer or CNC milling machine that is marketed or sold as, or reasonably designed or intended to be used to manufacture or produce a firearm.
• Provides that a civil action may be brought against a person who knowingly:
  • Distributes or causes to be distributed, by any means including the internet, any digital firearm manufacturing code to any person in California who is not a federally licensed firearm manufacturer, member of the Armed Forces of the United States or the National Guard while on duty and acting in the scope of their employment, or any law enforcement agency or forensic laboratory; or
  • Commits an act that violates existing law prohibits the manufacture of firearms, as specified, such as by unlawfully using, selling, offering to sell, or otherwise transferring specified CNC milling machines or 3D printers, or possessing, purchasing, or receiving such a machine that has the sole or primary function of manufacturing firearms, even if such conduct does not result in a conviction.
• Provides that a person who commits one of the above acts shall be strictly liable for any personal injury or property damage inflicted by the use of a firearm that is manufactured or produced using the digital firearm manufacturing code that they distributed or caused to be distributed, or that is manufactured by means of a CNC milling machine, a 3D printer, or a similar machine.
• Specifies that such strict liability does not include any injury or property damage sustained by a person who commits the unlawful act that subjects them to strict liability.
• Provides that the Attorney General, county counsel, or city attorney may bring an action in any court of competent jurisdiction to establish that a person has violated these provisions, and that they may seek a civil penalty not to exceed $25,000 for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.
• Specifies that the remedies provided above are cumulative and shall not be construed as restricting any other rights, causes of action, claims, or defenses available under any other law.
• Provides that a prevailing plaintiff in the civil actions set forth above is entitled to recover reasonable attorney’s fees and costs.
• Provides that a person who has suffered harm because of conduct in violation of these provisions may bring a suit in a court of competent jurisdiction to seek appropriate relief.
• Provides that such appropriate relief may include injunctive relief sufficient to prevent the person and any other defendant from further violating the law, compensatory or statutory damages, punitive damages, reasonable attorney’s fees and costs, and any other appropriate relief necessary to enforce the title and remedy the harm caused by the violation.
• Allows the Attorney General or any county counsel or city attorney, in the name of the people of California, to bring an action in an court of competent jurisdiction to establish that a person has violated these provisions, and seek a civil penalty not more than $25,000 for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.
• Prohibits any person, other than a state-licensed firearms manufacturer, from using a CNC milling machine or 3D printer to manufacture a firearm, and makes such conduct punishable as a misdemeanor.
• Makes it a misdemeanor to sell, offer to sell, transfer, possess, purchase, or receive a CNC milling machine or 3D printer that has a sole or primary function of manufacturing firearms, unless it is done by a state-licensed manufacturer.
• Creates specific exemptions from misdemeanor liability for persons who sell or transfer their three-dimensional printer or CNC machine to a licensed manufacturer, remove it from the state, relinquish it to a law enforcement agency, or otherwise dispose of the prohibited item.

Related Legislation:

• SB 1327 (Hertzberg, Ch. 146, Stats. 2022) established privately-enforced civil causes of action against any person who manufactures or causes to be manufactured, distributes, transports, or imports into the state, or causes to be distributed or transported or imported into the state, keeps for sale or offers or exposes for sale, or gives or lends any firearm lacking a required serial number, assault weapon, .50 BMG rifle, or firearm precursor part, as specified.
• AB 2571 (Bauer-Kahan, Ch. 77, Stats. 2022) prohibited firearm industry members from advertising or marketing, as defined, firearm-related products to minors. The bill restricts the use of minors’ personal information in connection with marketing or advertising firearm-related products to those minors.
• AB 1621 (Gipson, Ch. 76, Stats. 2022), among other things, prohibited the sale, transfer, or possession of an unserialized firearm precursor part, except as specified, and explicitly prohibits the possession or transfer of a firearm without a serial number or mark of identification.

Staff Comments:

The bill creates a private cause of action and would hold persons who manufacture firearms without a license strictly liable for any injuries caused by such firearms. The bill would also impose misdemeanor liability for violators of its provsions. It is unknown how many additional civil and criminal actions would be brought as a result of the implementation of this bill. However, it generally costs about $8,000 to operate a courtroom for one eight-hour day. Although courts are not funded on the basis of workload, increased pressure on the trial courts and staff may create a need for increased funding for courts from the General Fund (GF) to perform existing duties. Numerous trial court operations are funded through the imposition and collection of criminal fines and fees. However, the Legislature has reduced and eliminated criminal fines and fees over the past decade. As a result, the 2023-24 budget includes an ongoing annual allocation of $105.1 million backfill from the General Fund in order to address declining revenue to the Trial Court Trust Fund.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 1089 (Gipson) - Firearms

Bill Summary:

AB 1089 would regulate three-dimensional printers and CNC milling machines as firearms related products, and would require anybody who uses a three-dimensional printer or CNC milling machine to manufacture a firearm to be a state-licensed manufacturer.

Fiscal Impact:

Unknown, potentially significant court workload cost pressures in order adjudicate actions brought under the expanded criminal and civil liability provisions of AB 1089 (Trial Court Trust Fund, General Fund). See Staff Comments for additional detail.

Background:

The epidemic of gun violence in the United States can be attributed to the ubiquitous prevalence of firearms in the country. Some estimates place the current number of firearms in civilian possession in the United States at 433.9 million, and both possession and production have been growing in recent years. Historically, firearms have been produced by licensed manufacturers in factories and sold through licensed gun dealers. Federal law requires all guns manufactured in the United States and imported from abroad to have serial numbers, typically displayed on the back of the frame. Serial numbers and extensive regulations on manufacturers help ensure firearms can be traceable, and are only sold to those legally able to possess them. Thus, those intending to avoid the licensing of firearms or to evade firearms being traced back to the owner have historically attempted to file off the serial number from a firearm’s frame.

However, “ghost guns” have provided an incredibly easy avenue for such individuals to evade the firearm licensing and other regulations. Ghost guns are unserialized and firearms that can be bought online and assembled at home and can be manufactured by an unlicensed buyer with parts that can be acquired without a background check or manufacturing license. Because of this, ghost guns are also difficult for law enforcement to trace. One way in which “ghost guns” are produced is through computer numerical control (CNC) milling machines. CNC milling machines are machines capable of automatically processing raw materials such as metal, plastic, wood or composite into digitally modeled shapes based solely on programed instructions, without the need for a human operator. CNC milling machines use subtractive manufacturing: essentially breaking down a raw material until the desired product is created. 3-D printers, by contrast, use an additive manufacturing process that lays down consecutive layers of material to generate various products. 3-D printers have grown significantly in popularity in recent years, with the designs for guns built through 3-D printers becoming widely available online. One company known as “Ghost Gunner” is currently marketing its latest CNC milling machine, the Ghost Gunner 3, which costs only $2,500 and comes with programmed code to complete several fully functional assault-style weapons.

Proposed Law:

• Includes a "firearm manufacturing machine" in the definition of a "firearm-related product" for purposes of Firearm Industry Responsibility Act (FIRA), and defines the term as a 3D printer or CNC milling machine that is marketed or sold as, or reasonably designed or intended to be used to manufacture or produce a firearm.
• Provides that a civil action may be brought against a person who knowingly:
  • Distributes or causes to be distributed, by any means including the internet, any digital firearm manufacturing code to any person in California who is not a federally licensed firearm manufacturer, member of the Armed Forces of the United States or the National Guard while on duty and acting in the scope of their employment, or any law enforcement agency or forensic laboratory; or
  • Commits an act that violates existing law prohibits the manufacture of firearms, as specified, such as by unlawfully using, selling, offering to sell, or otherwise transferring specified CNC milling machines or 3D printers, or possessing, purchasing, or receiving such a machine that has the sole or primary function of manufacturing firearms, even if such conduct does not result in a conviction.
• Provides that a person who commits one of the above acts shall be strictly liable for any personal injury or property damage inflicted by the use of a firearm that is manufactured or produced using the digital firearm manufacturing code that they distributed or caused to be distributed, or that is manufactured by means of a CNC milling machine, a 3D printer, or a similar machine.
• Specifies that such strict liability does not include any injury or property damage sustained by a person who commits the unlawful act that subjects them to strict liability.
• Provides that the Attorney General, county counsel, or city attorney may bring an action in any court of competent jurisdiction to establish that a person has violated these provisions, and that they may seek a civil penalty not to exceed $25,000 for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.
• Specifies that the remedies provided above are cumulative and shall not be construed as restricting any other rights, causes of action, claims, or defenses available under any other law.
• Provides that a prevailing plaintiff in the civil actions set forth above is entitled to recover reasonable attorney’s fees and costs.
• Provides that a person who has suffered harm because of conduct in violation of these provisions may bring a suit in a court of competent jurisdiction to seek appropriate relief.
• Provides that such appropriate relief may include injunctive relief sufficient to prevent the person and any other defendant from further violating the law, compensatory or statutory damages, punitive damages, reasonable attorney’s fees and costs, and any other appropriate relief necessary to enforce the title and remedy the harm caused by the violation.
• Allows the Attorney General or any county counsel or city attorney, in the name of the people of California, to bring an action in an court of competent jurisdiction to establish that a person has violated these provisions, and seek a civil penalty not more than $25,000 for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.
• Prohibits any person, other than a state-licensed firearms manufacturer, from using a CNC milling machine or 3D printer to manufacture a firearm, and makes such conduct punishable as a misdemeanor.
• Makes it a misdemeanor to sell, offer to sell, transfer, possess, purchase, or receive a CNC milling machine or 3D printer that has a sole or primary function of manufacturing firearms, unless it is done by a state-licensed manufacturer.
• Creates specific exemptions from misdemeanor liability for persons who sell or transfer their three-dimensional printer or CNC machine to a licensed manufacturer, remove it from the state, relinquish it to a law enforcement agency, or otherwise dispose of the prohibited item.

Related Legislation:

• SB 1327 (Hertzberg, Ch. 146, Stats. 2022) established privately-enforced civil causes of action against any person who manufactures or causes to be manufactured, distributes, transports, or imports into the state, or causes to be distributed or transported or imported into the state, keeps for sale or offers or exposes for sale, or gives or lends any firearm lacking a required serial number, assault weapon, .50 BMG rifle, or firearm precursor part, as specified.
• AB 2571 (Bauer-Kahan, Ch. 77, Stats. 2022) prohibited firearm industry members from advertising or marketing, as defined, firearm-related products to minors. The bill restricts the use of minors’ personal information in connection with marketing or advertising firearm-related products to those minors.
• AB 1621 (Gipson, Ch. 76, Stats. 2022), among other things, prohibited the sale, transfer, or possession of an unserialized firearm precursor part, except as specified, and explicitly prohibits the possession or transfer of a firearm without a serial number or mark of identification.

Staff Comments:

The bill creates a private cause of action and would hold persons who manufacture firearms without a license strictly liable for any injuries caused by such firearms. The bill would also impose misdemeanor liability for violators of its provsions. It is unknown how many additional civil and criminal actions would be brought as a result of the implementation of this bill. However, it generally costs about $8,000 to operate a courtroom for one eight-hour day. Although courts are not funded on the basis of workload, increased pressure on the trial courts and staff may create a need for increased funding for courts from the General Fund (GF) to perform existing duties. Numerous trial court operations are funded through the imposition and collection of criminal fines and fees. However, the Legislature has reduced and eliminated criminal fines and fees over the past decade. As a result, the 2023-24 budget includes an ongoing annual allocation of $105.1 million backfill from the General Fund in order to address declining revenue to the Trial Court Trust Fund.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 1089 (Author:Gipson)

Version: July 3, 2023

Hearing Date: July 11, 2023

Fiscal: Yes

Urgency: No

Consultant: ID

SUBJECT

Firearms

DIGEST

This bill would prohibit the sale, purchase, possession, or receipt of a three-dimensional printer that has the sole or primary function of manufacturing firearms to or by any person in the state other than a state-licensed firearms manufacturer, as specified, and create two new causes of action available to an Attorney General, city or county attorney, or person harmed against a firearm manufacturer who distributes any digital instructions for the manufacture of a firearm or violates specified provisions relating to the use, sale, marketing, advertising, transfer, possession, purchase, or receipt of a Computer Numerical Control (CNC) milling machine or three-dimensional printer.

EXECUTIVE SUMMARY

Gun violence is a significant problem in California that results in harm and death of thousands of people every year. As California has attempted to hold firearm manufacturers responsible when they do not take reasonable precautions to prevent such violence, the specter of “ghost guns” and the machines that can be used to manufacture them have proliferated. When the state passed AB 1621 (Gipson, Ch. 76, Stats. 2022) in 2022, it took major steps to rein in the “ghost gun” manufacturers and computer numerical control (CNC) milling machines and 3-D printers used to manufacture them. However, sellers of such manufacturing machines continue to promote the unlawful use of their machines to manufacture unlicensed ghost guns. To strengthen the law and hold such sellers accountable, AB 1089 will amend the laws to include 3-D printers and CNC milling machines, will create two new causes of action against persons who knowingly distribute a digital firearm manufacturing code or commits an act that violates the Penal Code on unlawfully using or selling CNC milling machines and 3-D printers, and holds the person strictly liable for any personal injury or property damage from such acts. AB 1089 also prohibits a person from selling, offering to sell, transferring, advertising, or marketing a CNC milling machine or 3-D printing machine in a manner that knowingly or recklessly causes another person in California to engage in conduct prohibited by the Penal Code.

AB 1089 is sponsored by the Giffords Law Center to Prevent Gun Violence and is supported by Everytown for Gun Safety Action Fund and the Consumer Attorneys of California. It is opposed by the California Rifle & Pistol Association. The bill passed out of the Senate Committee on Public Safety with a 4 to 1 vote.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Defines a “firearm,” in certain provisions of the Penal Code, such as those relating to firearm enhancements and requirements related to lost and stolen firearms, as, “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” (Pen. Code, § 16520(a).)
2. Defines a firearm, for other specified provisions of the Penal Code, such as those relating to prohibitions on possession and transfer, among others, as the frame or receiver of the weapon, including both a completed frame or receiver or a firearm precursor part. (Pen. Code, §16520(b).)
3. Defines a “firearm precursor part” as “any forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm, or that is marketed or sold to the public to become or be used as the frame or receiver of a functional firearm once completed, assembled or converted.” (Pen. Code, § 16531(a).)
4. Prohibits any person or corporation from manufacturing more than three firearms in this state over the course of a year unless they are licensees. (Pen. Code, § 29010(a).)
5. Prohibits a person, firm or corporation from using a 3-D printer to manufacture any firearm, including a frame or receiver, or any firearm precursor part, unless that person, firm or corporation has a manufacturer’s license. (Pen. Code, § 29010(b).)
6. Defines “three-dimensional printer, for the purposes of the prohibition above, as a computer-aided manufacturing device capable of producing a three-dimensional object from a three-dimensional digital model through an additive manufacturing process that involves the layering of two-dimensional cross sections formed of a resin or similar material that are fused together to form a three-dimensional object. (Pen. Code, § 29010(b).)
7. Provides that violations of the prohibitions above are misdemeanors. (Pen. Code, § 29010(d).)
8. Provides that the Department of Justice (DOJ) shall accept applications for, and shall grant licenses permitting, the manufacture of firearms within this state. (Pen. Code § 29050(a).)
9. Prohibits the DOJ from granting a license unless and until the applicant presents proof of all of the following:
   1. a valid license to manufacture firearms issued by the Federal Government;
   2. any regulatory or business license required by local government;
   3. a valid seller’s permit or resale certificate issued by the State Board of Equalization, if applicable; and,
   4. a certificate of eligibility issued by the DOJ. (Pen. Code, § 29050(b).)
10. Makes it a misdemeanor for a person to knowingly possess a firearm without a valid state or federal serial number. (Pen. Code, § 23920.)
11. Requires that within 10 days of manufacturing or assembling a firearm (not including precursor parts), they must engrave or permanently affix the serial number previously provided to them by the DOJ and notify the DOJ of such. (Pen. Code, §§ 29180(b)(2)-(3).)
12. Prohibits persons or corporations from using a CNC milling machine to manufacture a firearm or firearm precursor part unless they are a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185(a).)
13. States that it is unlawful to sell, offer to sell, or transfer a CNC milling machine that has the sole or primary function of manufacturing firearms to any person aside from a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185(b).)
14. Provides that it is unlawful to possess, purchase, or receive a CNC milling machine that has the sole or primary function of manufacturing firearms unless a person is a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185(c).)
15. Existing law exempts air carriers, certain business persons, and other specified persons from the prohibition on possessing, purchasing, transferring or selling specified CNC milling machines. (Pen. Code, § 29185(d).)
16. Existing law provides that violation of the above prohibitions regarding CNC milling machines is punishable as a misdemeanor. (Pen. Code, § 29185(f).)
17. Establishes the “Firearm Industry Responsibility Act” (FIRA) which allows for civil actions to be brought against firearm industry members who deal in abnormally dangerous firearm-related products. (Civ. Code, § 3273.50 et seq.)
18. Defines, for the purposes of FIRA, a “firearm-related product” as a firearm, ammunition, a firearm precursor part, a firearm component, firearm manufacturing machine, and a firearm accessory that meets any of several specified conditions. (Civ. Code, §3273.50(d).)
19. Authorizes any resident of, or visitor to, California, other than an officer or employee of a state or local governmental entity in this state, to bring a civil action against any person who knowingly traffics in illegal firearms and in firearm parts in the state. Also requires persons who bring lawsuits against enforcement of firearms laws to pay for the attorney’s fees of the state if the state prevails. (Bus. & Prof. Code, § 22949.60 et seq.; Civ. Code, § 1021.11)

This bill:

1. Includes a "firearm manufacturing machine" in the definition of a "firearm-related product" for purposes of Firearm Industry Responsibility Act (FIRA), and defines the term as a 3D printer, as defined in Section 29185 of the Penal Code, or CNC milling machine that is marketed or sold as, or reasonably designed or intended to be used to manufacture or produce a firearm.
2. This bill provides that a civil action may be brought against a person who knowingly:
   1. distributes or causes to be distributed, by any means including the internet, any digital firearm manufacturing code to any person in California who is not a federally licensed firearm manufacturer, member of the Armed Forces of the United States or the National Guard while on duty and acting in the scope of their employment, or any law enforcement agency or forensic laboratory; or
   2. commits an act that violates Penal Code section 29185, such as by unlawfully using, selling, offering to sell, or otherwise transferring specified CNC milling machines or 3D printers, or possessing, purchasing, or receiving such a machine that has the sole or primary function of manufacturing firearms, even if such conduct does not result in a conviction under section 29185.
3. Provides that a person who commits one of the above acts shall be strictly liable for any personal injury or property damage inflicted by the use of a firearm that is manufactured or produced using the digital firearm manufacturing code that they distributed or caused to be distributed, or that is manufactured by means of a CNC milling machine, a 3D printer, or a similar machine.
4. Specifies that such strict liability does not include any injury or property damage sustained by a person who commits the unlawful act that subjects them to strict liability.
5. Provides that the Attorney General, county counsel, or city attorney may bring an action in any court of competent jurisdiction to establish that a person has violated these provisions, and that they may seek a civil penalty not to exceed $25,000 for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.
6. Specifies that the remedies provided above are cumulative and shall not be construed as restricting any other rights, causes of action, claims, or defenses available under any other law.
7. Provides that a prevailing plaintiff in the civil actions set forth above is entitled to recover reasonable attorney’s fees and costs.
8. Defines the terms “digital firearm manufacturing code,” “federally licensed firearms manufacturer,” “firearm,” and “three-dimensional printer” for the purposes of the civil liability provisions above.
9. Prohibits a person from selling, offering to sell, transferring, advertising, or marketing a CNC milling machine or 3-D printing machine in a manner that knowingly or recklessly causes another person in California to engage in conduct prohibited by Penal Code section 29185, or in a manner that otherwise knowingly or recklessly aids, abets, promotes, or facilitates conduct prohibited by that section.
10. Creates a rebuttable presumption that a person has violated this prohibition if both of the following are true:
    1. The person offers to sell, advertises, or markets a CNC milling machine or 3-D printer in a manner that, under the totality of the circumstances, is targeted at purchasers seeking to manufacture firearms or that otherwise affirmatively promotes the machine or printer’s utility in manufacturing firearms, regardless of whether the machine or printer is otherwise described or classified as having any other capabilities; and
    2. The person sells or transfers the CNC milling machine or 3-D printer as described without verifying that the purchaser or transferee in California is a federally licensed firearms manufacturer or not otherwise prohibited from purchasing or using the machine or printer to manufacture firearms under Penal Code Section 29185.
11. Provides that a person who has suffered harm because of conduct in violation of these provisions, including conduct in violation of Penal Code Section 29185 that was precipitated by a violation of the above Civil Code sections, may bring a suit in a court of competent jurisdiction to seek appropriate relief.
12. Provides that such appropriate relief may include injunctive relief sufficient to prevent the person and any other defendant from further violating the law, compensatory or statutory damages, punitive damages, reasonable attorney’s fees and costs, and any other appropriate relief necessary to enforce the title and remedy the harm caused by the violation.
13. Allows the Attorney General or any county counsel or city attorney, in the name of the people of California, to bring an action in an court of competent jurisdiction to establish that a person has violated these provisions or Penal Code Section 29185, and seek a civil penalty not more than $25,000 for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.
14. Prohibits under the Penal Code any person, other than a state-licensed firearms manufacturer, from using a CNC milling machine or 3D printer to manufacture a firearm, and makes such conduct punishable as a misdemeanor.
15. Makes it crime punishable as a misdemeanor to sell, offer to sell, transfer, possess, purchase, or receive a CNC milling machine or 3D printer that has a sole or primary function of manufacturing firearms, unless it is done by a state-licensed manufacturer.
16. Exempts from the above Penal Code provisions the following:
    1. a person who is engaged in the business of selling manufacturing equipment to a state-licensed firearms manufacturer, and who possesses a CNC milling machine or 3-D printer with the intent to sell or transfer the CNC milling machine or 3-D printer to a state-licensed firearms manufacturer;
    2. a common carrier licensed under state law, or a motor carrier, air carrier or carrier affiliated with an air carrier as specified, or an authorized agent of any such carrier, when acting in the course and scope of duties incident to the receipt, processing, transportation, or delivery of property;
    3. a person who possessed a CNC milling machine or 3-D printer that has the sole or primary function of manufacturing firearms before June 30, 2022, and who, within 90 days of that date, does one of the following:
       1. sells or transfers the machine to a federally licensed firearms manufacturer or importer;
       2. sells or transfers the machine to such a person described in subdivision a) above;
       3. removes the machine from California;
       4. relinquishes the machine to a law enforcement agency;
       5. otherwise lawfully terminates possession of the machine.
    4. a person who possesses, before July 1, 2024, a 3-D printer that has the sole or primary function of manufacturing firearms, and who does one of the following within 90 days of that date:
       1. sells or transfers the machine to a state-licensed firearms manufacturer;
       2. sells or transfers the machine to a person described in subdivision a) above;
       3. removes the machine from California;
       4. relinquishes the machine to a law enforcement agency; or
       5. otherwise lawfully terminates possession of the machine.
17. Exempts from these Penal Code sections any member of the Armed Forces of the United States or the National Guard, while on duty and acting within the scope and course of their employment, or any law enforcement agency or forensic laboratory.
18. Defines “state-licensed firearms manufacturer” for the purposes of these Penal Code sections as a person licensed to manufacture firearms under California state law, consistent with the definition of the term in other provisions of existing law.
19. Defines “three-dimensional printer” for the purposes of these Penal Code sections as a computer-aided manufacturing device capable of producing a three-dimensional object from a three-dimensional model through additive manufacturing process that involves the layering of two-dimensional cross sections formed of a resin or similar material that are fused together to form a three-dimensional object.
20. Contains a severability clause.

COMMENTS

1. Author’s statement

According to the author:

Assembly Bill 1089 seeks to build on California’s recently enacted ghost gun reforms by closing additional gaps and creating a civil cause of action to assist in accountability and enforcement against companies whose sale or advertising practices unfairly and deceptively induce California buyers to illegally obtain and use ghost gun manufacturing machines without a manufacturer’s license.

1. The epidemic of gun violence, and the rise of “ghost guns”

The United States has seen a record number of mass shootings so far in 2023, with more than 330 mass shooting through June.^[1] That means there have been nearly two mass shootings in the United States every day of the year. There have now been 21,042 deaths so far from all gun-related events in the United States. While these statistics are alarming, they are in line with the record numbers of the last few years. In 2021, there were 686 mass shootings in total, and 2022 witnessed 636 mass shootings.^[2] In just a two-year period from 2020 through 2021, there were over 88,000 gun violence deaths in this country.^[3] Considering these statistics, combating gun violence and mass shootings is of the most importance for the safety of Californians.

1. The current regulatory environment of firearms in California

Part of this overwhelming epidemic of gun violence is the ubiquitous prevalence of firearms in the United States. Some estimates place the current number of firearms in civilian possession in the United States at 433.9 million, and both possession and production have been growing in recent years.^[4] In 2019 and 2020, 40 million guns were sold in the United States.

Historically, firearms have been produced by licensed manufacturers in factories and sold through licensed gun dealers. Federal law requires all guns manufactured in the United States and imported from abroad to have serial numbers, typically displayed on the back of the frame. Serial numbers and extensive regulations on manufacturers help ensure firearms can be traceable, and are only sold to those legally able to possess them. Thus, those intending to avoid the licensing of firearms or to evade firearms being traced back to the owner have historically attempted to file off the serial number from a firearm’s frame.

However, “ghost guns” have provided an incredibly easy avenue for such individuals to evade the firearm licensing and other regulations. Such “ghost guns” can be manufactured by an unlicensed buyer with parts that can be acquired without a background check or manufacturing license. Because of this, ghost guns are also unserialized and therefore untraceable by law enforcement. One way in which “ghost guns” are produced is through computer numerical control (CNC) milling machines. CNC milling machines are machines capable of automatically processing raw materials such as metal, plastic, wood or composite into digitally modeled shapes based solely on programed instructions, without the need for a human operator. CNC milling machines use subtractive manufacturing: essentially breaking down a raw material until the desired product is created. 3-D printers, by contrast, use an additive manufacturing process that lays down consecutive layers of material to generate various products. 3-D printers have grown significantly in popularity in recent years, with the designs for guns built through 3-D printers becoming widely available online. One company known as “Ghost Gunner” is currently marketing its latest CNC milling machine, the Ghost Gunner 3, which costs only $2,500 and comes with programmed code to complete several fully functional assault-style weapons.^[5]

There has been an explosion in the use and proliferation of such ghost guns. In Los Angeles alone, the LAPD recovered 1,921 ghost guns in 2021, more than double the amount recovered in 2020.^[6] Since 2017, the department has seen a 400% increase in ghost gun seizures. Just last year, in Sacramento, a man used an unregistered homemade automatic rifle to kill his three daughters, a chaperone, and himself in a local church.^[7] At the time of the shooting, the killer was under a restraining order prohibiting him from possessing a firearm.

Until recently, California law only imposed restrictions on parties that manufactured or assembled firearm components, or “firearm precursor parts,” and parties that knowingly possessed unserialized firearms, but it did not regulate the sale of such parts. In 2019, the Legislature adopted AB 879 (Gipson, Ch. 730, Stats. of 2019), which established a new regulatory framework for firearm precursor parts, and required, among other things, that all such parts to be sold in-person through a licensed vendor.^[8] Under AB 879, the sale of precursor parts is regulated in much the same manner as the sale of ammunition.^[9]

However, AB 879 did not specifically regulate or reach CNC milling machines or 3-D printers. Thus, in 2022 the Legislature passed AB 1621 (Gipson, Ch. 76, Stats. of 2022), a comprehensive measure aimed at curbing the ghost gun epidemic, in large part via revising state regulations regarding firearm “precursor parts,” or components that may be readily convertible into usable firearms. The bill also established several provisions of law limiting the acquisition, possession, purchase and use of CNC milling machines that have the sole or primary function of manufacturing firearms by any entity except for a federally licensed firearms manufacturer or importer, subject to various exceptions. One exemption applied to persons who possessed a CNC milling machine before the effective date of those restrictions (June 30, 2022), and within 90 days of that date terminated possession of the machine in one of several specified manners.

1. This bill would address “ghost guns” by holding manufacturers and those who aim to manufacture such guns liable

To strengthen California’s laws regulating the manufacture of firearms by CNC milling machines and 3-D printers and prevent manufacturers from marketing their products for illegal uses like manufacturing unlicensed firearms, AB 1089 makes a number of changes to the current statutory scheme and establishes two new civil causes of action. It extends the CNC restrictions established by AB 1621 to 3-D printers that have the sole or primary function of manufacturing firearms, and modifies the exemptions related to federally licensed firearms manufacturers to instead refer to state licensed firearms manufacturers. The bill also adopts AB 1621’s CNC machine relinquishment provisions for 3-D printers, and provides that a person who possesses a 3-D printer before July 1, 2024, and within 90 days of that date relinquishes possession of the printer in a manner provided, is exempt from the above restrictions and liability. While there may be some constitutional concerns relating to just compensation and the Takings Clause with the relinquishment provisions, those issues were addressed by the Senate Public Safety Committee that appropriately has jurisdiction over the Penal Code; thus, this analysis will not re-examine these questions here.

AB 1089 also creates two causes of action. The first, added to the Civil Code as section 3273.60, against a person who either knowingly distributes or causes to be distributed a digital firearm manufacturing code. This first cause of action also is available if a person uses, sells, offers to sell, or otherwise transfers a CNC milling machine or 3-D printer, or possesses, purchases, or receives a CNC milling machine or 3-D printer that has the sole or primary function of manufacturing firearms. If an individual has committed one of these covered acts, they will be held strictly liable for any personal injury or property damage inflicted by the use of a firearm created through their liable actions. A claim under this first cause of action could be brought in a court of competent jurisdiction by the Attorney General, a county counsel, or city attorney, who can seek injunctive relief to prevent further violations of the law as well as a civil penalty of up to $25,000.

The second cause of action, added to the Civil Code as section 3273.62, targets those who sell, offer to sell, transfer, advertise, or market a CNC milling machine or 3-D printer that causes another person to engage in conduct that would be illegal under Penal Code 29185. Conduct illegal under that Penal Code is the use, sale, offer to sell, transfer of a CNC milling machine or 3-D printer, or the possession, purchase, or receiving of such a machine whose sole or primary function is to manufacture firearms by a person not a state-licensed firearms manufacturer. To be liable the individual must have sold, offered to sell, transferred, advertised, or marketed the CNC milling machine or 3-D printer in a manner that recklessly causes the other person to engage in such conduct prohibited by Penal Code section 29185.

However, this second cause of action also includes a rebuttable presumption. Under its provisions, a rebuttable presumption applies if a person offers to sell, advertises, or markets the CNC milling machine or 3-D printer in a manner that, in the totality of the circumstances, is targeted at purchasers seeking to manufacture firearms, or that otherwise affirmatively promotes the machine’s utility in manufacturing firearms, and if the person sells or transfers the machine without verifying that the purchaser is a federally-licensed firearms manufacturer or other person permitted to possess such a machine.

This second cause of action can be brought by the Attorney General, a county counsel or city attorney, but also can be brought by any person who has suffered harm because of the conduct that violates the bill’s provisions, or because of illegal conduct by someone whose actions were precipitated by a violation of the bill’s civil code sections. A person who suffered harm may request injunctive relief, compensatory or statutory damages, punitive damages, reasonable attorney’s fees and costs, and any other appropriate relief necessary to enforce the bill’s provisions and remedy the harm caused.

In addition to these two new civil causes of action, AB 1089 amends sections of the Penal Code related to crimes stemming from the use, sale, possession, or similar actions of a CNC milling machine or 3-D printer without a license or appropriate exception. Because the criminal code is beyond the jurisdiction of this committee, the bill’s amendments to the Penal Code will not be substantially covered in this analysis.^[10]

1. This law is not violative of the Second Amendment

The Second Amendment to the United States Constitution states that “a well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” (U.S. Const., Amend. II.) For 217 years after the Second Amendment’s ratification, no law regulating the possession of firearms was found by the United States Supreme Court to violate the amendment’s provisions. However, that changed in 2008 with the case D.C. v. Heller. In that case, the Supreme Court ruled along ideological lines that a District of Columbia law banning the possession of handguns violated the Second Amendment. (District of Columbia v. Heller, 554 U.S. 570 (2008).) The Court held for the first time that the Second Amendment protected an individual right to possess a firearm unconnected with service in a militia for use of that firearm for traditionally lawful purposes like self-defense within the home. Two years later, the Supreme Court reaffirmed, again along ideological lines, that the Second Amendment protected the right to keep and bear arms for the purpose of self-defense, and further held that the Second Amendment was fully applicable to the states. (McDonald v. City of Chicago, 561 U.S. 742 (2010).)

In D.C. v. Heller, the Supreme Court devised a two-step analysis. The analysis required that first it must be determined whether the law at issue regulates activity that falls within the scope of the Second Amendment right as originally understood, and if so, then the court is to determine how close the law comes to the core of the Second Amendment right, and the severity of the law’s burden on that right. However, the Court also stated in Heller that its opinion should “not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (Heller, 554 U.S. at 626.) The Court further notes in a footnote that these “presumptively lawful regulatory measures” are examples not meant to be exhaustive. (Id., at 626, n. 26.) Under this precedent, the Tenth Circuit Court of Appeal determined that the National Firearms Act’s requirements that firearms dealers and manufacturers register and pay taxes annually was constitutional under this category of “presumptively lawful regulatory measures.” (U.S. v. Cox, 906 F.3d 1170 (10th Cir. 2018).)

The Supreme Court revisited its Second Amendment jurisprudence in the case New York State Rifle & Pistol Association v. Bruen. In that case, the Court determined that the two-step analysis it had previously outlined in Heller was “one step too many.” (N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 U.S. 2111 (2022).) Instead, the Court created a new standard: if the Second Amendment’s plain text covers the individual’s conduct, it is presumptively protected, and the government must demonstrate that the regulation is consistent with the nation’s historical tradition of firearm regulation. (N.Y. State Rifle & Pistol Ass’n, 142 U.S. at 2126.)

The Court’s assertions in Heller that its decisions should not cast doubt on the legality of conditions and qualifications on the commercial sale of arms was not disturbed by the Court’s New York State Rifle & Pistol Association decision. That case does not mention regulations on the sale of arms at all. Thus, as a threshold matter, the restrictions set by AB 1089 on the manufacture and sale of firearm manufacturing machines relate solely to the commercial sale and production of arms, and the Supreme Court’s jurisprudence casts no doubt on the constitutionality of the bill’s provisions. Its provisions are analogous to the provisions of the National Firearms Act that were upheld as constitutional under U.S. v. Cox. Unlike the laws at issue in Heller or New York State Rifle & Pistol Association, the laws created by AB 1089 deal with the machines that can be used to manufacture firearms, and not specifically with firearms themselves.

If this is not probative enough of AB 1089’s constitutionality, an analysis of the law through New York State Rifle & Pistol Association’s standard certainly is. The Second Amendment’s terms relate to the bearing and keeping of arms, not to producing them. The plain text of its clauses and a traditional understanding of those terms clearly do not encompass the production or sale of firearms. To require “keep and bear arms” to include the production and commercial sale of arms would be to create a right wholly nonexistent in Second Amendment case law to date. Even if the Second Amendment were to be reinvented to cover regulations on firearm manufacturing, the regulation in AB 1089 prohibiting the unlicensed use, possession, sale, or transfer of manufacturing equipment is consistent with the nation’s historical tradition of regulation of firearm manufacturing. All variety of laws throughout all of the states of the nation place limits on the manufacture and commercial sale of firearms. The federal government itself also has a variety of laws regulating the sale, import, and production of firearms. Thus, it has long been historical tradition in the United States and all of its states to regulate firearm manufacturing and commercial sales.

Moreover, AB 1089’s prohibitions are meant to ensure that the state’s existing laws requiring that producers of firearms are licensed can be enforced in the complex context of highly-mobile CNC milling machines and 3-D printers; they are not about banning altogether the manufacture of guns through such machines. If AB 1089 were to become law, CNC milling machines will continue to be legal, as long as the users and possessors of such machines are licensed to use them. Such regulation is incredibly necessary, as the author has pointed out, as CNC milling machines and 3-D printers can be used to circumvent the state’s regulation of firearms and produce extremely deadly firearms untraceable to their seller or manufacturer. As such, AB 1089 is ultimately a bill about enforcement of the state’s existing regulations on firearms manufacturing, and does not prohibit the possession or licensed manufacture of firearms. Thus, while opponents may attempt to argue that it violates the Second Amendment of the United States Constitution, an examination of the bill and Second Amendment case law clearly debunks such arguments.

1. This bill is not violative of the Protection of Lawful Commerce of Arms Act (PLCAA)

Another potential challenge to AB 1089 is the Protection of Lawful Commerce in Arms Act of 2005 (PLCAA). The PLCAA prohibits a “qualified civil liability action” in federal or state court against a manufacturer or seller of a qualified product for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties or other relief resulting from the criminal misuse of a firearm. (15 U.S.C. §§ 7902-7903.) The PLCAA aims to preempt state laws that impose liability on manufacturers, sellers, and trade associations for the misuse of firearms by third parties.

However, the PLCAA includes multiple exceptions that are applicable here. First, the law does not preempt “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.” (15 U.S.C. § 7903(5)(A)(iii).) That exception includes instances where the manufacturer or seller aided, abetted, or conspired with another person to sell or dispose of the firearm knowing, or having reasonable cause to believe, that the actual buyer of the firearm was prohibited from possessing or receiving the firearm under subdivisions (g) and (n) of section 922 of Chapter 18 of the United States Code. The PLCAA also includes an exception for when a manufacturer or seller engages in negligence per se or negligent entrustment, which occurs when the seller knows, or reasonably should know, the person to whom the seller is providing the product is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.

The PLCAA likely would not apply to AB 1089 for a variety of reasons. First, under the standards set out in AB 1089, most acts violative of the bill’s provisions would likely also fall within the exceptions to the PLCAA’s preemption. AB 1089’s liability attaches when a seller or manufacturer knowingly sells the CNC milling machine or 3-D printer, firearm manufacturing code, or components to another that is not licensed or otherwise authorized to have such devices. AB 1089’s other liability provisions providing for liability when a manufacturer has acted recklessly can likely fit within the PLCAA’s negligent entrustment exception as well.

Moreover, the PLCAA is designed to address the manufacturers and sellers of firearms, ammunition, or a component part of a firearm or ammunition, and thus arguably does not reach the selling of CNC milling machines and 3-D printers. These machines, while used to produce firearms, are not the firearm or a component part of a firearm. Because the PLCAA is a federal law, it also requires that the acts involved in its provisions happen through interstate commerce, such that the United States Congress has authority to regulate it. However, AB 1089 is not exclusive to transactions that take place across state lines; so even if the PLCAA was applicable to AB 1089 suits, it could only be applicable to suits that involve interstate commerce.

1. Arguments in support

According to the Giffords Law Center to Prevent Gun Violence, the sponsor of the bill:

This bill will build on the strong ghost gun reforms enacted last year by strengthening, standardizing, and further clarifying California laws governing the sale, purchase, use, and possession of digitally programmable ghost gun manufacturing machines and to limit the distribution of the digital code blueprints used in conjunction with these ghost gun manufacturing machines to produce firearms and firearm components without background checks, serial numbers, safety tests, sale records, or other gun safety requirements.

With your leadership last year, California took strong action to comprehensively address the ghost gun crisis, especially through passage of AB 1621 (Gipson) and AB 2156 (Wicks). Most of AB 1621’s provisions took effect immediately upon receiving the Governor’s signature on June 30, 2022. This vital law now ensures, among other things, that the sale of key ghost gun components in California are subject to the same gun safety laws as the sale of fully assembled firearms, including background checks, sale records, serial numbers, and dealer licensing requirements.

AB 1621 (Gipson) and AB 2156 (Wicks) also included complementary provisions to limit the number of firearms private individuals could assemble or manufacture without obtaining a manufacturer’s license, require unlicensed firearm manufacturers to keep any firearms they manufacture only for personal use instead of subsequent distribution or sale, and to prohibit unlicensed manufacturers from using digitally programmable machines, such as 3-D printers and computerized numerical control (CNC) milling machines, to manufacture firearms.

Since enactment, these reforms have had immediate impacts in driving leading ghost gun companies to reform their business practices and/or stop selling unregulated ghost gun products into California. Public safety is far stronger today than it was last year, thanks to these reforms.

Despite the enormous positive impact California's ghost gun reform legislation has had in reforming most ghost gun product sellers’ business practices, certain companies have openly declared, including in court filings, that they are continuing to sell ghost gun manufacturing machines as an effort to circumvent California's regulations on ghost gun kits and components. These digitally programmable machines are designed to enable untrained amateurs to produce firearm frames or receivers with the press of a button, either by additive manufacturing (from a 3-D printer) or subtractive manufacturing (from a CNC milling machine that carves the product out of metal or other material). Instead of selling ghost gun kits, these sellers claim that they are selling merely the machines, unformed material, and digital files for use in those machines.

We believe they are very clearly violating both the spirit and letter of California law. For instance, AB 1621 (Gipson) already enacted some important restrictions on the sale, purchase, and use of digitally programmable CNC milling machines that have the sole or primary function of manufacturing firearms. AB 1621 (Gipson) also unambiguously prohibited any person who does not have a federal firearm manufacturer’s license from using such machines to produce any number of firearms. AB 2156 (Wicks) similarly prohibited using 3-D printers to produce any number of firearms without both a California and federal manufacturer’s license.

Nonetheless, irresponsible companies have continued to sell machines that are explicitly designed and marketed as ghost gun manufacturing machines (including a CNC milling machine called “the Ghost Gunner” sold by Defense Distributed) while dubiously and deceptively claiming that these same machines do not have the "primary" purpose of manufacturing firearms. The seller of the Ghost Gunner machine describes it as “the most popular way of finishing unserialized rifles and pistols in the comfort and privacy of home” and informs California buyers only that they buy ghost gun manufacturing machines “at their own risk.” Similarly, sellers on “Ghostguns.com” market a 3D printing ghost gun manufacturing machine called “The Ender” along with files for printing plastic components of undetectable firearms. Companies like these marketing ghost gun manufacturing machines continue to fail to inform unlicensed customers that it is now unambiguously unlawful in California to use either a CNC milling or a 3-D printer to manufacture or in any way produce firearms (including completed or unfinished frames and receivers) without a firearm manufacturer's license.

Additionally, there is need to consolidate and standardize provisions that were separately enacted by AB 1621 and AB 2156 which separately regulated CNC milling machines and 3-D printers, respectively. For instance, while California law now prohibits unlicensed manufacturers from using a 3-D printer to produce firearms, state law does not regulate the purchase, possession, or sale of 3-D printers that are designed or marketed as ghost gun manufacturing 3-D printers; only AB 1621 included purchase, possession, and sale restrictions on CNC milling ghost gun machines. Additionally, while AB 1621 (Gipson) required a federal firearm manufacturer license to use CNC milling machines to produce firearms, AB 2156 (Wicks) required both a federal and state firearm manufacturer license to use a 3-D printer to produce firearms. (The federal license is a prerequisite under state law for a California firearm manufacturer license). Consolidating and standardizing these statutes will promote compliance and public safety.

1. Arguments in opposition

According to the California Rifle & Pistol Association, which opposes AB 1089:

The author is bringing forth legislation that is doubtful of reaching its purported goals. The use of 3D printers and CNC milling machines have tremendous applications throughout our lives ranging from current needs in medicine, science, exploration, entertainment, housing, and more. Law-abiding citizens utilize these technologies daily without causing issues. The author is focusing on a criminal element and chooses to punish the law-abiding while not addressing the criminal element.

The CRPA is in support of getting firearms out of the hands of criminals but does not support criminalizing the law-abiding. According to the Assembly Appropriation Committee’s fiscal impacts report, there are unknown costs that will directly impact court costs, workload, and prioritization of cases. The report highlights that the Department of Justice (CADOJ) could need additional financial resources into the millions if this bill is enacted. CADOJ has repeatedly fallen short of legislative expectations in implementing laws passed by the legislature over several years. CADOJ has numerous current projects they seem to be unable to meet general performance standards to keep Californians safe.

The increase to the Department of Corrections is unknown currently and is in stark contrast to the Legislature’s direction of lowering the number of inmates through early release programs and repeatedly voting against extending incarceration terms.

CRPA will continue to support sound legislation to reduce crime and get criminals off our streets and out of our communities. Our motto for 150 years has been “Be Safe” and we will support sound legislation that does so. For the foregoing reasons, the California Rifle & Pistol Association strongly opposes AB 1089.

SUPPORT

Giffords Law Center to Prevent Gun Violence (sponsor)
Everytown for Gun Safety Action Fund

Consumer Attorneys of California

Peace Officers’ Research Association of California (PORAC)

Brady Campaign

Brady California

OPPOSITION

California Rifle & Pistol Association

RELATED LEGISLATION

Pending Legislation:

SB 241 (Min, 2023) requires a licensee and any employees that handle firearms to annually complete specified training. The bill requires the Department of Justice to develop and implement a training course, as specified, including a testing certification component. The bill authorizes the department to adopt regulations to carry out its provisions. SB 241 is currently before the Assembly Appropriations Committee.

AB 97 (Rodriguez, 2023) requires the Department of Justice (DOJ) to report data on arrests and prosecutions of specified misdemeanor offenses related to unserialized firearms. This bill is pending before the Senate Appropriations Committee.

Prior Legislation:

SB 1327 (Hertzberg, Ch. 146, Stats. 2022) established privately-enforced civil causes of action against any person who manufactures or causes to be manufactured, distributes, transports, or imports into the state, or causes to be distributed or transported or imported into the state, keeps for sale or offers or exposes for sale, or gives or lends any firearm lacking a required serial number, assault weapon, .50 BMG rifle, or firearm precursor part, as specified.

AB 2571 (Bauer-Kahan, Ch. 77, Stats. 2022) prohibited firearm industry members from advertising or marketing, as defined, firearm-related products to minors. The bill restricts the use of minors’ personal information in connection with marketing or advertising firearm-related products to those minors.

AB 1621 (Gipson, Ch. 76, Stats. 2022), among other things, prohibited the sale, transfer, or possession of an unserialized firearm precursor part, except as specified, and explicitly prohibits the possession or transfer of a firearm without a serial number or mark of identification.

AB 1594 (Ting, Ch. 98, Stats. 2022) established a firearm industry standard of conduct, and would prohibit a firearm industry member from manufacturing, marketing, importing, offering for wholesale sale, or offering for retail sale a firearm-related product that is abnormally dangerous and likely to create an unreasonable risk of harm to public health and safety. Also authorized a person harmed in California, the Attorney General, or city or county attorneys to bring civil action against firearm industry member for an act or omission in violation of the firearm industry standard of conduct.

AB 452 (Friedman, Ch. 199, Stats. 2022) required local educational agencies to inform parents, through a notice, of California’s child access prevention laws and other firearm laws.

SB 118 (Committee on Budget, Ch. 29, Stats. 2020), adjusted the timeline for implementation of AB 879 (Gipson, Ch. 730, Stats. 2019).

AB 879 (Gipson, Ch. 730, Stats. 2019) required, commencing July 1, 2022, that the sale of a firearm precursor part by any party be conducted by or processed through a licensed firearm precursor part vendor. (Pen. Code § 30412.) It also prohibited certain persons from owning or possessing firearm precursor parts and provides other limitations on such parts. (Pen. Code § 30400 et seq.)

AB 2156 (Wicks, Ch. 142, Stats. 2022) expanded the prohibitions on the manufacture of firearms without a state license including reducing the number of guns a person may manufacture without a license and prohibiting the use of a three-dimensional printer to manufacture any firearm without a license from the California Department of Justice. Chaptered.

AB 857 (Cooper, Ch. 60, Stats. 2016) required (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. Chaptered.

PRIOR VOTES:

Senate Public Safety Committee (Ayes 4, Noes 1)

Assembly Floor (Ayes 64, Noes 8)

Assembly Appropriations Committee (Ayes 11, Noes 2)

Assembly Judiciary Committee (Ayes 8, Noes 0)

Assembly Public Safety Committee (Ayes 7, Noes 1)

**************

1. Ana Faguy, “U.S. Sees Record Number of Mass Shootings Halfway Through 2023,” Forbes (Jul. 3, 2023), available at https://www.forbes.com/sites/anafaguy/2023/07/03/us-sees-record-number-of-mass-shootings-halfway-through-2023/?sh=5e3a9f68360f. ↑

2. “Mass Shootings in the United States,” Everytown for Gun Safety Support Fund (Mar. 2023), available at https://everytownresearch.org/mass-shootings-in-america/. ↑

3. “Past Summary Ledgers,” Gun Violence Archive (Jul. 4, 2023), available at https://www.gunviolencearchive.org/past-tolls. ↑

4. Jennifer Mascia, “How Many Guns are Circulating in the U.S.?” The Trace (Mar. 6, 2023), available at https://www.thetrace.org/2023/03/guns-america-data-atf-total/#:~:text=In%202020%2C%20the%20group%20reported,civilian%20possession%20is%20433.9%20million.%E2%80%9D. ↑

5. https://ghostgunner.net/product/ghost-gunner-3-deposit/ ↑

6. “Ghost Guns in California,” Giffords Law Center (Jun. 30, 2023), available at https://giffords.org/lawcenter/state-laws/ghost-guns-in-california/. ↑

7. Don Thompson, “Man Used ‘ghost gun’ to kill 3 daughters in church,” NBC Bay Area (Mar. 6, 2022 at 6:11 pm), available at https://www.nbcbayarea.com/news/california/man-used-ghost-gun-to-kill-3-daughters-in-church/2829422/. ↑

8. Cal. Pen. Code §§ 30400 et seq., 30412. ↑

9. Compare Cal. Pen. Code §§ 16531-16532 and Cal. Pen. Code §§ 30210-30395. ↑

10. For a detailed analysis of the penal code provisions of this bill, please see the Senate Committee on Public Safety analysis of AB 1089 (Gipson) prepared for the June 27, 2023 hearing. ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 1089 Hearing Date: June 27, 2023

Subject: Firearms

HISTORY

Source: Brady Campaign; Giffords Law Center to Prevent Gun Violence

Prior Legislation: SB 1327 (Hertzberg, Ch. 146, Stats. of 2022)

AB 1594 (Ting, Ch. 98, Stats. of 2022)

AB 1621 (Gipson, Ch. 76, Stats. of 2022)

AB 2156 (Wicks, Ch. 142, Stats. of 2022)

AB 2571 (Bauer-Kahan, Ch. 77, Stats. of 2022)

Support: Consumer Attorneys of California; Peace Officers Research Association of California

Opposition: California Rifle & Pistol Association, Inc.

Assembly Floor Vote: 64 - 8

PURPOSE

The purpose of this bill is to include three-dimensional (3D) printers in several statutes regulating the manufacture of firearms, and to expand the applicability of existing civil liability laws to various conduct related to computer numerical control machines (CNC) and 3D printers.

Existing law defines a “firearm,” in certain provisions of the Penal Code, such as those relating to firearm enhancements and requirements related to lost and stolen firearms, as, “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” (Pen. Code, § 16520, subd. (a).)

Existing law defines a firearm, for other specified provisions of the Penal Code, such as those relating to prohibitions on possession and transfer, among others, as the frame or receiver of the weapon, including both a completed frame or receiver or a firearm precursor part. (Pen. Code, §16520, subd. (b).)

Existing law defines a “firearm precursor part” as “any forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm, or that is marketed or sold to the public to become or be used as the frame or receiver of a functional firearm once completed, assembled or converted.” (Pen. Code, § 16531, subd. (a).)

Existing law prohibits any person or corporation from manufacturing more than three firearms in this state over the course of a year unless they are licensees. (Pen. Code, § 29010, subd. (a).)

Existing law prohibits a person, firm or corporation from using a 3D printer to manufacture any firearm, including a frame or receiver, or any firearm precursor part, unless that person, firm or corporation has a manufacturer’s license. (Pen. Code, § 29010, subd. (b).)

Existing law defines “three-dimensional printer, for the purposes of the prohibition above, as a computer-aided manufacturing device capable of producing a three-dimensional object from a three-dimensional digital model through an additive manufacturing process that involves the layering of two-dimensional cross sections formed of a resin or similar material that are fused together to form a three-dimensional object. (Pen. Code, § 29010, subd. (b).)

Existing law provides that violations of the prohibitions above are misdemeanors. (Pen. Code, § 29010, subd. (d).)

Existing law provides that the Department of Justice (DOJ) shall accept applications for, and shall grant licenses permitting, the manufacture of firearms within this state. (Pen. Code § 29050, subd. (a).)

Existing law prohibits the DOJ from granting a license unless and until the applicant presents proof of all of the following:

• • A valid license to manufacture firearms issued by the Federal Government;
  • Any regulatory or business license required by local government;
  • A valid seller’s permit or resale certificate issued by the State Board of Equalization, if applicable; and,
  • A certificate of eligibility issued by the DOJ. (Pen. Code, § 29050, subd. (b).)
    

Existing law provides that a licensee’s license cannot be valid for more than one year from the date of issuance. (Pen. Code, § 29050, subd. (c).)

Existing law requires the DOJ to maintain a centralized list of all persons licensed to manufacture firearms. (Pen. Code § 29060.)

Existing law provides that a firearms manufacturer’s license can be revoked and that a licensee may become permanently ineligible to hold a license, as specified. (Pen. Code § 29065.)

Existing law makes it a misdemeanor for a person to knowingly possess a firearm without a valid state or federal serial number. (Pen. Code, § 23920.)

Existing law states that prior to manufacturing or assembling a firearm (not including precursor parts) that does not have a valid state or federal serial number, a person must:

• • Apply to the DOJ for a serial number,
    
  • Describe the firearm they intend to assemble, and;
    
  • Provide their date of birth, address and full name. (Pen. Code, § 29180, subd. (b)(1).)
    

Existing law requires that within 10 days of manufacturing or assembling a firearm (not including precursor parts), they must engrave or permanently affix the serial number previously provided to them by the DOJ and notify the DOJ of such. (Pen. Code, § 29180, subd. (b)(2)-(3).)

Existing law prohibits persons or corporations from using a CNC milling machine to manufacture a firearm or firearm precursor part unless they are a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (a).)

Existing law states that it is unlawful to sell, offer to sell, or transfer a CNC milling machine that has the sole or primary function of manufacturing firearms to any person aside from a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (b).)

Existing law provides that it is unlawful to possess, purchase, or receive a CNC milling machine that has the sole or primary function of manufacturing firearms unless a person is a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (c).)

Existing law exempts air carriers, certain business persons, and other specified persons from the prohibition on possessing, purchasing, transferring or selling specified CNC milling machines. (Pen. Code, § 29185, subd. (d).)

Existing law provides that violations of the above prohibitions regarding CNC milling machines are punishable as misdemeanors. (Pen. Code, § 29185, subd. (f).)

Existing law establishes the “Firearm Industry Responsibility Act” (FIRA) which allows for civil actions to be brought against firearm industry members who deal in abnormally dangerous firearm-related products. (Civ. Code, § 3273.50 et seq.)

Existing law for the purposes of FIRA, defines “firearm-related product” as a firearm, ammunition, a firearm precursor part, a firearm component, firearm manufacturing machine, and a firearm accessory that meets any of several specified conditions. (Civ. Code, §3273.50, subd. (d).)

Existing law authorizes any resident of, or visitor to, California, other than an officer or employee of a state or local governmental entity in this state, to bring a civil action against any person who knowingly traffics in illegal firearms and in firearm parts in the state. Also requires persons who bring lawsuits against enforcement of firearms laws to pay for the attorney’s fees of the state if the state prevails. (Bus. & Prof. Code, § 22949.60 et seq.; Civ. Code, § 1021.11)

This bill includes a "firearm manufacturing machine" in the definition of a "firearm-related product" for purposes of FIRA.

This bill, for the purposes of FIRA, defines “firearm manufacturing machine” as a 3D printer, as defined in this bill the Penal Code, or CNC milling machine that is marketed or sold as, or reasonably designed or intended to be used to manufacture or produce a firearm.

This bill provides that a civil action may be brought against a person who knowingly:

• • Distributes or causes to be distributed, by any means including the internet, any digital firearm manufacturing code to any person not exempted as specified.
  • Unlawfully uses, possesses, or otherwise transfers specified CNC milling machines or 3D printers, even if this conduct does not result in a conviction.

This bill provides that a person who commits one of the above acts shall be strictly liable for any personal injury or property damage inflicted by the use of a firearm that is manufactured or produced using the digital firearm manufacturing code that they distributed or caused to be distributed, or that is manufactured by means of a CNC milling machine, a 3D printer, or a similar machine.

This bill provides that the Attorney General, county counsel, or city attorney may bring an action in any court of competent jurisdiction to establish that a person has violated the above provisions and may seek a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.

This bill provides that a prevailing plaintiff in the civil actions set forth above is entitled to recover reasonable attorney’s fees and costs.

This bill defines the terms “digital firearm manufacturing code” and “federally licensed firearms manufacturer” for the purposes of the civil liability provisions above.

This bill prohibits any person, other than a state-licensed firearms manufacturer, from using a CNC milling machine or 3D printer to manufacture a firearm.

This bill makes it a crime to sell, transfer, or possess a CNC milling machine or 3D printer that has a sole or primary function of manufacturing firearms, unless it is done by a state-licensed manufacturer.

This bill requires a person who possesses a 3D printer that has the sole or primary function of manufacturing a firearm before July 1, 2024, to do the following within 90 days of that date in order to not be in violation of state law:

• • Sell or transfer the device to a state-licensed firearms manufacturer
  • Sell or transfer the device to a businessperson that sells such devices to state-licensed firearms manufacturers,
  • Take the device out of state,
  • Give the device to a law enforcement agency, or;
  • Otherwise lawfully terminate possession of the device.

This bill defines “state-licensed firearms manufacturer” as a person licensed to manufacture firearms under California state law, consistent with the definition of the term in other provisions of existing law.

This bill contains a severability clause.

COMMENTS

1. Need for This Bill

According to the Author:

Assembly Bill 1089 seeks to build on California’s recently enacted ghost gun reforms by closing additional gaps and creating a civil cause of action to assist in accountability and enforcement against companies whose sale or advertising practices unfairly and deceptively induce California buyers to illegally obtain and use ghost gun manufacturing machines without a manufacturer’s license.

1. The Persistent Ghost Gun Crisis

In the United States, traditional firearms are produced by licensed manufacturers and sold through licensed gun dealers. Federal law requires all guns manufactured in the United States and imported from abroad to have serial numbers, typically displayed on the back of the frame. By contrast, “ghost guns” are manufactured in parts – also known as “firearm precursor parts – which can be acquired without a background check and can easily be assembled by an unlicensed buyer. Ghost guns are designed to avoid regulation by being sold in DIY kits containing their component parts, which, individually, are unregulated, but when assembled form a fully functional firearm. Ghost guns are also unserialized, meaning they cannot be traced by law enforcement. According to recent reporting by the New York Times:

The criminal underground has long relied on stolen weapons with filed-off serial numbers, but ghost guns represent a digital-age upgrade, and they are especially prevalent in coastal blue states with strict firearm laws. Nowhere is that truer than in California, where their proliferation has reached epidemic proportions […] Over the past 18 months, the officials said, ghost guns accounted for 25 to 50 percent of firearms recovered at crime scenes. The vast majority of suspects caught with them were legally prohibited from having guns.^[1]

Advances in home firearm manufacturing technology and the general untraceability of ghost guns have made them the weapon of choice for those seeking to commit crime. And California remains at the epicenter of the ghost gun crisis: in Los Angeles alone, the LAPD recovered 1,921 ghost guns in 2021, more than double the amount recovered in 2020.^[2] In 2022, DOJ agents recovered 54 ghost guns as part of the Armed Prohibited Persons System Program, representing a 575% increase since 2018, when only 8 ghost guns were seized.^[3]

1. Manufacture of Firearms Using 3D Printers and Computer Numerical Control (CNC) Milling Machines

Computer numerical control (CNC) milling machines are machines capable of automatically processing raw materials such as metal, plastic, wood or composite into digitally modeled shapes based solely on programed instructions, without the need for a human operator. CNC milling machines use subtractive manufacturing: essentially breaking down a raw material until the desired product is created. 3D printers, by contrast, use an additive manufacturing process which lays down consecutive layers of material to generate various products. 3D printers have grown significantly in popularity in recent years - the first 3D-printed gun, the “Liberator,” was produced in 2013, and since then its design has become widely available online.^[4] Since 2013, however, the quality and design of 3D printed firearms have improved significantly, and the process has become more widespread. For instance, a company known as “Ghost Gunner” is currently marketing its latest CNC milling machine, the Ghost Gunner 3, which costs only $2,500 and comes with programmed code to complete several fully functional assault-style weapons.^[5] A review of an earlier model noted that the machine, worked so well that it may signal a new era in the gun control debate, one where the barrier to legally building an untraceable, durable, and deadly semiautomatic rifle has reached an unprecedented low point in cost and skill.”^[6] In 2019 the FBI tested a newer 3D-printed firearm design and concluded the firearm was functional and lethal as designed. While most commercial-grade polymer 3D printers are unaffordable for most individuals, academic and industry experts state that motivated individuals can use more affordable 3D printers to print and subsequently strengthen the quality and reliability of a 3D printed firearm.^[7]

In December 2021, the U.S. Office of the Inspector General (OIG) conducted an audit of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regarding that agency’s response readiness related to 3D printed firearms, and concluded that ATF’s threat assessment and technological awareness was lacking. According to the report, ATF had not considered 3D-printed firearms a priority because few of them have been confirmed to have been used in crimes that the ATF has investigated.^[8] However, this outdated approach is likely to change due to the ATFs recent promulgation of a federal regulatory rule that modernizes the definition of a firearm and makes clear that parts that are readily convertible to functional weapons – or frames and receivers of weapons – are subject to the same regulations as traditional firearms.^[9] Under that rule, while the updated definition of “frame or receiver” does not include 3D printed firearms, it does require that receivers or parts kits be serialized for tracking and sent to federal firearms licensees (dealers) before being transferred to buyers.

1. Effect of This Bill

On June 30, 2022, Governor Newsom signed AB 1621 (Gipson, Ch. 76, Stats. of 2022), a comprehensive measure aimed at curbing the ghost gun epidemic, in large part via revising state regulations regarding firearm “precursor parts,” or components that may be readily convertible into usable firearms. The bill also established several provisions of law limiting the acquisition, possession, purchase and use of CNC milling machines that have the sole or primary function of manufacturing firearms by any entity except for a federally licensed firearms manufacturer or importer, subject to various exceptions (i.e. for common carriers and entities that sell CNC machines to manufacturing licensees). Another exemption applies to persons who possessed a CNC milling machine before the effective date of those restrictions (June 30, 2022), and within 90 days of that date terminates possession of the machine in one of several specified manners.^[10] Existing law also provides for the licensure of firearms manufacturers within the California.^[11]

This bill extends the CNC restrictions established by AB 1621 to 3D printers that have the sole or primary function of manufacturing firearms, and modifies the exemptions related to federally licensed firearms manufacturers to instead refer to state licensed firearms manufacturers. This latter change is largely pro forma, as a federal manufacturer’s license is a prerequisite of a state license. The bill also adopts AB 1621’s CNC machine relinquishment provisions for 3D printers, and provides that a person who possessed a 3D printer before July 1, 2024, and within 90 days of that date relinquishes possession of the printer in a manner provided is exempt from the above restrictions.

1. Double Referral

Another section of this bill makes various changes to California’s law regarding civil liability for firearm-related damage. Specifically, the bill expands firearm civil liability laws to include the use of CNC milling machines and 3D printers, and imposes strict liability for injuries and property damage caused by firearms manufactured with unlawfully distributed 3D firearm manufacturing codes and unlawfully possessed CNC machines and 3D printers. Because these provisions are within the Judiciary Committee’s jurisdiction, this bill has been double-referred and the civil liability issues will be fully analyzed by that committee.

1. Fifth Amendment Considerations

The Fifth Amendment to the United States Constitution provides, in part, that private property shall not be taken for public use without just compensation. There are generally two types of ‘takings’ under the Fifth Amendment: “physical” takings in which the government literally takes the property from its owner, and “regulatory” takings in which the government restricts the owner’s right so much as to deprive them of all economically beneficial use of the property.^[12] The United States Supreme Court has established that “a state statute that substantially furthers important public policies may so frustrate distinct investment-backed expectations as to amount to a ‘taking.’ Put another way, while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.^[13] It is also well-settled that a regulation adopted under a state’s police power to protect the public, health, safety or welfare is not a taking, even if the taking reduces the value of the property. ^[14]

Because this bill requires current owners to relinquish possession of 3D printers that have the sole or primary function of manufacturing firearms, it may be considered as imposing a ‘taking’ under the Fifth Amendment. Of particular relevance here is a recent Ninth Circuit case which examined, in part, whether California’s ban on extended capacity magazines constituted a regulatory taking.^[15] Under that ban, an owner of a large-capacity magazine was required to choose one of four options: they could modify the magazine to accommodate fewer rounds, sell the magazine to a firearms dealer, remove the magazine to another state, or turn it over to law enforcement for destruction. The Ninth Circuit reasoned that California’s ban on extended capacity magazines was not a regulatory facial taking in part because there was no record demonstrating the relinquishment procedures deprived owners of all economically beneficial use of the property with respect to every owner of an extended capacity magazine. It was also not a facial physical taking as, “[m]andating the sale, transfer, modification, or destruction of a dangerous item cannot reasonably be considered a taking akin to a physical invasion of a rental building or the physical confiscation of raisins.”^[16] This case provides a useful, although not perfect, analogy to this bill, which gives owners of 3D printers various options that, taken together, do not deprive these owners of all economically beneficial use of the printers. In any event, it is entirely possible that this bill will see legal challenges on this issue.

1. Argument in Support

According to Brady California, one of the bill’s co-sponsors:

[G]iven their unregulated and untraceable nature, ghost guns are increasingly the weapons of choice for criminals in California and their use has boomed over the last few years. In Los Angeles, for instance, the number of ghost guns seized has increased by approximately 400% since 2017. In 2020, the LAPD confiscated 813 ghost guns, while in the first 11 months of 2021, the LAPD had already confiscated 1,780 ghost guns. San Diego, San Francisco, and other cities and counties across California have seen similar proliferation of these weapons. Every day, Californians are being killed, injured, and traumatized because ghost guns are not sufficiently regulated in the state and country.

President Biden issued an executive order in June 2021 directing the Attorney General to address the issue, and on April 11, 2022, the Attorney General issued a final rule that treats unfinished frames and receivers as firearms. This is an important step forward but it has not removed the need for states to take action, as the federal regulations are likely to be challenged in court and executive orders are subject to change when there is a change in administration. California has taken strong action, but additional clarification and strengthening is needed.

Just last year, California passed two of the strongest laws regulating ghost guns AB 1621 (Gipson) and AB 2156 (Wicks). Both of these bills, AB 1621 (Gipson) and AB 2156 (Wicks), in part worked to prohibit unlicensed manufacturers from using digitally programmable machines, such as 3-D printers and computerized numerical control (CNC) milling machines, to manufacture firearms. However, despite the immediate and life saving impact of the passage and implementation of these bills, we are already seeing certain ghost gun industry members working diligently to find a way around the law, and subsequently continuing to sell ghost gun manufacturing machines. These machines are specifically designed to allow anyone to produce firearms or firearm frames or receivers with little more than a press of a button and the sellers are claiming that despite selling these machines with the necessary files and materials to manufacture a gun or gun parts, that they are just selling machines and that the sales are permitted under the law because they claim that their primary purpose is not to manufacture firearms. These industry members are intentionally circumventing the intended purpose of both AB 1621 and AB 2156 and this bill can prevent them from doing so.

This bill will strengthen and clarify the law to preclude the unregulated use of these machines to manufacture firearms or firearm frames or receivers, by requiring a California-issued firearm manufacturer license in order to lawfully use any 3-D printer or CNC milling machine to manufacture a firearm, including a completed or unfinished frame or receiver of a firearm and in order to lawfully possess or purchase a 3-D printer or CNC milling machine that has the primary or intended function of manufacturing firearms. It would also make it unlawful to sell, offer to sell, or transfer a 3-D printer or CNC milling machine that has the primary or intended function of manufacturing firearms to anyone who is not a licensed manufacturer.

These changes are necessary to address the intentional and dangerous attempts to circumvent California’s lifesaving ghost gun reforms.

-- END –

1. Thrush, Glenn. “’Ghost Guns’: Firearm Kits Bought Online Fuel Epidemic of Violence.” Originally published 14 November 2021; updated 26 January 2022. https://www.nytimes.com/2021/11/14/us/ghost-guns-homemade-firearms.html ↑

2. “Ghost Guns Recoveries and Shootings.” Published by Everytown for Gun Safety. Last Updated 8 April 2022. Ghost Guns Recoveries and Shootings | Everytown Research & Policy ↑

3. California Department of Justice Releases 2022 Armed and Prohibited Persons System Program Annual Report | State of California - Department of Justice - Office of the Attorney General ↑

4. “The Liberator – the world’s first 3d printed handgun.” The Liberator – the world's first 3D printed handgun · V&A (vam.ac.uk) ↑

5. https://ghostgunner.net/product/ghost-gunner-3-deposit/ ↑

6. “I made an untraceable AR-15 Ghost Gun in my office – and it was easy.” WIRED Magazine. 3 June, 2015. https://www.wired.com/2015/06/i-made-an-untraceable-ar-15-ghost-gun/ ↑

7. “Audit of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ Monitoring of 3-D Firearm Printing Technology.” Office of the Inspector General. Published December 2021. https://oig.justice.gov/sites/default/files/reports/22-016.pdf ↑

8. Ibid. ↑

9. Federal Register :: Definition of “Frame or Receiver” and Identification of Firearms – adopted August 24, 2022. ↑

10. Under PC §29185(d)(3), an individual seeking to get rid of a CNC milling machine per the bill’s requirements may sell or transfer the machine to a licensed manufacturer, a business that sells to licensed manufacturers, may remove the machine from California or relinquish the machine to law enforcement, or may otherwise lawfully terminate possession. ↑

11. Under Penal Code §29050(b), in order to obtain a state firearm manufacturing license, an applicant must have a federal license, any regulatory or business license required by local government, a valid seller’s permit issued by the Board of Equalization, and a certificate of eligibility issued by DOJ. ↑

12. See: “The Fifth Amendment: Physical and Regulatory Takings” ↑

13. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) ↑

14. Hadacheck v. Sebastian, 239 U.S. 394 (1915) ↑

15. Duncan v. Bonta 19 F.4th 1087 (2021) [vacated and remanded by the Supreme Court for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S.Ct. 2111]; ↑

16. Id. at 1112, 1113. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 1089

Author:(Gipson)

As Amended Ver:April 19, 2023

Majority vote

SUMMARY

Defines three-dimensional (3D) printers and includes such devices in the statutes regulating the manufacture of firearms. Requires persons to relinquish certain 3D printers. Expands firearm civil liability laws to include the use of computer numerical control (CNC) machines and 3D printers. Imposes strict civil liability on persons who unlawfully distribute 3D firearm manufacturing codes or who unlawfully possess or transfer specified CNC machines or 3D printers.

Major Provisions

1. Includes a "firearm manufacturing machine" in the definition of a "firearm-related product" for purposes of the Firearm Industry Responsibility Act.
2. Defines a "firearm manufacturing machine," in the civil liability context, as a 3D printer or CNC milling machine that is marketed or sold as, or reasonably designed or intended to be used to manufacture or produce a firearm.
3. Authorizes civil actions against persons who knowingly distribute, or cause to be distributed, any digital firearm manufacturing code to a non-exempt person, if a firearm produced by such code is used to inflict personal injury or property damage.
4. Authorizes civil actions against a person who unlawfully uses, possesses, or otherwise transfers specified CNC milling machines or 3D printers, if a firearm produced by such devices is used to inflict personal injury or property damage.
5. States that, in such civil actions, a person shall be strictly liable for any resulting personal injury or property damage, as specified.
6. Exempts military members from such civil actions if they distributed the digital firearm manufacturing code if they were acting within the scope of their employment, and also exempts law enforcement agencies, forensic laboratories, and federally-licensed firearm manufacturers.
7. Authorizes the Attorney General, county counsel, or a city attorney to bring such civil actions and limits the civil penalty to no more than $25,000.
8. Provides that a prevailing plaintiff in such civil actions is entitled to reasonable attorney’s fees.
9. Specifies that only state-licensed firearms manufacturers can use CNC milling machines and 3D printer to manufacture firearms.
10. Defines a "state-licensed firearms manufacturer" as a person licensed to manufacture firearms under California state law.
11. Makes it a crime to sell, transfer, or possess a CNC milling machine or 3D printer that has a sole or primary function of manufacturing firearms, unless it is done by a state-licensed manufacturer.
12. Requires a person who possesses a 3D printer that has the sole or primary function of manufacturing a firearm before July 1, 2024, to do the following within 90 days of that date in order to not be in violation of state law:
13. Sell or transfer the device to a state-licensed firearms manufacturer,
14. Sell or transfer the device to a businessperson that sells such devices to state-licensed firearms manufacturers,
15. Take the device out of state,
16. Give the device to a law enforcement agency, or;
17. Otherwise lawfully terminate possession of the device.

COMMENTS

According to the Author

"Even before the COVID-19 pandemic, stories from families of gun violence have kept me up at night. My own son and his fiancé were victims… and this issue has only gotten worse in our communities. For communities alike, gun violence is a wildfire that we work diligently trying to contain. And the casualties are our babies, sisters, brothers, friends, and acquaintances - all deserving of life but were cut short of their potential. To say that this issue is personal to me is an understatement, and sending thoughts and prayers just isn’t enough. AB 1089 will close the loop on ghost guns and getting one step closer to getting illegal guns off the street. My heart breaks every single time I hear of another life lost from senseless gun violence. Not one more rally. Not one more vigil. Not one more shooting. We need the comprehensive solutions - this is wholeheartedly about saving lives, and nothing less."

Arguments in Support

According to the bill’s sponsor, Giffords, "…Despite the enormous positive impact California's ghost gun reform legislation has had in reforming most ghost gun product sellers’ business practices, certain companies have openly declared, including in court filings, that they are continuing to sell ghost gun manufacturing machines as an effort to circumvent California's regulations on ghost gun kits and components. These digitally programmable machines are designed to enable untrained amateurs to produce firearm frames or receivers with the press of a button, either by additive manufacturing (from a 3-D printer) or subtractive manufacturing (from a CNC milling machine that carves the product out of metal or other material). Instead of selling ghost gun kits, these sellers claim that they are selling merely the machines, unformed material, and digital files for use in those machines.

We believe they are very clearly violating both the spirit and letter of California law. For instance, AB 1621 (Gipson) already enacted some important restrictions on the sale, purchase, and use of digitally programmable CNC milling machines that have the sole or primary function of manufacturing firearms. AB 1621 (Gipson) also unambiguously prohibited any person who does not have a federal firearm manufacturer’s license from using such machines to produce any number of firearms. AB 2156 (Wicks) similarly prohibited using 3-D printers to produce any number of firearms without both a California and federal manufacturer’s license.

Nonetheless, irresponsible companies have continued to sell machines that are explicitly designed and marketed as ghost gun manufacturing machines (including a CNC milling machine called "the Ghost Gunner" sold by Defense Distributed) while dubiously and deceptively claiming that these same machines do not have the "primary" purpose of manufacturing firearms. The seller of the Ghost Gunner machine describes it as "the most popular way of finishing unserialized rifles and pistols in the comfort and privacy of home" and informs California buyers only that they buy ghost gun manufacturing machines "at their own risk." Similarly, sellers on "Ghostguns.com" market a 3D printing ghost gun manufacturing machine called "The Ender" along with files for printing plastic components of undetectable firearms. Companies like these marketing ghost gun manufacturing machines continue to fail to inform unlicensed customers that it is now unambiguously unlawful in California to use either a CNC milling or a 3-D printer to manufacture or in any way produce firearms (including completed or unfinished frames and receivers) without a firearm manufacturer's license.

Additionally, there is need to consolidate and standardize provisions that were separately enacted by AB 1621 and AB 2156 which separately regulated CNC milling machines and 3- D printers, respectively. For instance, while California law now prohibits unlicensed manufacturers from using a 3-D printer to produce firearms, state law does not regulate the purchase, possession, or sale of 3-D printers that are designed or marketed as ghost gun manufacturing 3-D printers; only AB 1621 included purchase, possession, and sale restrictions on CNC milling ghost gun machines. Additionally, while AB 1621 (Gipson) required a federal firearm manufacturer license to use CNC milling machines to produce firearms, AB 2156 (Wicks) required both a federal and state firearm manufacturer license to use a 3-D printer to produce firearms. (The federal license is a prerequisite under state law for a California firearm manufacturer license). Consolidating and standardizing these statutes will promote compliance and public safety.

AB 1089 (Gipson) would help urgently and unequivocally address these threats and shut down these companies’ dangerous and irresponsible attempts to circumvent California’s new ghost gun reforms. This legislation would build on the strong ghost gun reforms California enacted last year by clarifying and strengthening California's limitations on the sale of ghost gun manufacturing machines and by strengthening efforts to hold individuals accountable for harms caused by their distribution of digital blueprints for printing and manufacturing guns and key firearm components…"

Arguments in Opposition

According to the Gun Owners of California, "As currently written, the bill would ban any 3-D or CNC machine for the simple reason that they are capable of manufacturing unserialized firearms – as well as a host of other products. According to 3D Sourced, "3D printing has grown to impact almost every major industry worldwide in some capacity." According to their research in which they showcase developments in the 3D printing sector, hospitals are increasingly turning to 3D printing for uses in orthopedics, surgical implants, and custom surgical instruments. It also dominates the hearing aid industry and it’s uses are increasingly popular in the fields of dental prosthetics as well as auto parts production and jewelry.

It's an overreach to ban a product because a tiny subsection of our society chooses to make a item that is used for an unlawful goal; the fact remains that the significant majority of 3D uses are responsible and law-abiding, and those individuals should not be penalized for the misdeeds of a few.

I believe we should get down to the business of reducing crime, rather than penalizing the lawful for the misdeeds of the unlawful – it will never have its anticipated resolution. For those who are interested in stemming the tide of illegal weapons, we share a common desire, and GOC believes we can cooperatively move towards this goal."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Costs (Trial Court Trust Fund (TCTF), General Fund (GF)) of an unknown but potentially significant amount to the courts to adjudicate civil and criminal cases brought under this bill. The bill creates a new private right of action, adds authority for public prosecutors to enforce civil violations, and creates new crimes, all of which will contribute to the workload of the courts. Although courts are not funded on the basis of workload, increased pressure on the TCTF may create a need for increased funding for courts from the GF. If funding is not provided for the new workload created by this bill, it may result in delays and prioritization of court cases.
2. Costs (GF) to the Department of Justice (DOJ) of an unknown but potentially significant amount. This bill authorizes the Attorney General and other public prosecutors to enforce civil violations relating to manufacture of firearms using CNC machines and 3D printers. Civil litigation costs will depend on how many actions DOJ brings and whether DOJ prevails and can recover attorneys’ fees. DOJ may also incur costs enforcing the bill’s requirement that current owners of 3D printers dispose them if they are primarily used to manufacture firearms. Total costs to DOJ may be in the hundreds of thousands to low millions of dollars annually.
3. Potential non-reimbursable annual costs (local funds, GF) to counties for incarceration resulting from the crimes created by this bill. The average annual cost to incarcerate a defendant in county jail is approximately $29,000. If 10 defendants statewide are sentenced annually to an average of six months in county jail for violating the 3D printer prohibition, the total cost to counties would be $145,000. California county jails are increasingly overcrowded, particularly since the enactment of the Realignment Act in 2011. Although new crimes are not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the GF because the state has historically granted new funding to counties to offset overcrowding after the 2011 Realignment Act.

VOTES

ASM PUBLIC SAFETY: 7-1-0

YES: Jones-Sawyer, Alanis, Bonta, Bryan, Jackson, Santiago, Zbur

NO: Lackey

ASM JUDICIARY: 8-0-3

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas

ABS, ABST OR NV: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 11-2-3

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Ortega

NO: Megan Dahle, Mathis

ABS, ABST OR NV: Dixon, Robert Rivas, Sanchez

UPDATED

VERSION: April 19, 2023

CONSULTANT: Mureed Rasool / PUB. S. / (916) 319-3744 FN: 0000885

Date of Hearing: May 10, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1089

Author:(Gipson) – As Amended Ver:April 19, 2023

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

SUMMARY:

This bill expands civil and criminal liability related to the manufacture of firearms using computer numerical control (CNC) machines and 3D printers.

Specifically, this bill:

1. Authorizes a civil action against a person who knowingly does either of the following:
2. Distributes or causes to be distributed any digital firearm manufacturing code, unless to a recipient authorized to possess the code.
3. Uses a CNC machine or 3D printer to manufacture a firearm, even if they have not been criminally convicted of doing so.
4. Provides that a person who commits an act described in 1) that results in personal injury or property damage inflicted by a firearm shall be held strictly liable, unless that person was authorized to commit the act.
5. Authorizes the Attorney General, county counsel, or city attorney to enforce the above-described civil violations in court and seek a civil penalty and injunctive relief.
6. Provides that a prevailing plaintiff shall be entitled to recover reasonable attorney’s fees and costs.
7. Makes it a crime for anyone except a state-licensed manufacturer to sell, transfer, or possess a CNC milling machine or 3D printer that has a sole or primary function of manufacturing firearms.
8. Requires a person who possesses a 3D printer that has the sole or primary function of manufacturing a firearm before July 1, 2024, to dispose of it, as specified, within 90 days of that date in order to not be in violation of state law.

FISCAL EFFECT:

1. Costs (Trial Court Trust Fund (TCTF), General Fund (GF)) of an unknown but potentially significant amount to the courts to adjudicate civil and criminal cases brought under this bill. The bill creates a new private right of action, adds authority for public prosecutors to enforce civil violations, and creates new crimes, all of which will contribute to the workload of the courts. Although courts are not funded on the basis of workload, increased pressure on the TCTF may create a need for increased funding for courts from the GF. If funding is not provided for the new workload created by this bill, it may result in delays and prioritization of court cases.
2. Costs (GF) to the Department of Justice (DOJ) of an unknown but potentially significant amount. This bill authorizes the Attorney General and other public prosecutors to enforce civil violations relating to manufacture of firearms using CNC machines and 3D printers. Civil litigation costs will depend on how many actions DOJ brings and whether DOJ prevails and can recover attorneys’ fees. DOJ may also incur costs enforcing the bill’s requirement that current owners of 3D printers dispose them if they are primarily used to manufacture firearms. Total costs to DOJ may be in the hundreds of thousands to low millions of dollars annually.
3. Potential non-reimbursable annual costs (local funds, GF) to counties for incarceration resulting from the crimes created by this bill. The average annual cost to incarcerate a defendant in county jail is approximately $29,000. If 10 defendants statewide are sentenced annually to an average of six months in county jail for violating the 3D printer prohibition, the total cost to counties would be $145,000. California county jails are increasingly overcrowded, particularly since the enactment of the Realignment Act in 2011. Although new crimes are not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the GF because the state has historically granted new funding to counties to offset overcrowding after the 2011 Realignment Act.

COMMENTS:

1. Author’s Statement. According to the author:

Assembly Bill 1089 seeks to build on California’s recently enacted ghost gun reforms by closing additional gaps and creating a civil cause of action to assist in accountability and enforcement against companies whose sale or advertising practices unfairly and deceptively induce California buyers to illegally obtain and use ghost gun manufacturing machines without a manufacturer’s license.

1. Background. 3D printing is an additive manufacturing process that lays down consecutive layers of polymer or other material to create objects. Certain 3D printers can also manufacture firearms, creating self-manufactured firearms completely outside of regulated firearms manufacturers and dealers. Unauthorized self-manufactured firearms are known as “ghost guns” because they do not have serial numbers and are untraceable by law enforcement agencies. It is illegal to possess a ghost gun in California. Last year, the Legislature passed statutes regulating who can possess a CNC milling machine with a sole or primary function of manufacturing firearms. (AB 1621 (Gipson) Chapter 76, Statutes of 2021-2022.) This bill extends those regulations to 3D printers that are primarily used to manufacture firearms, further restricting the ability of anyone except state-authorized firearms manufacturers to own and use these machines.

This bill also expands civil liability for injuries resulting from a firearm manufactured by a CNC machine or a 3D printer. It creates a private right of action and allows a public prosecutor to bring a civil action against any party involved in the production process of the 3D printed firearm – including the manufacturer of the 3D printer, someone who distributed the code that enables printing of the firearm, and the person who actually prints the firearm. Under this bill, each of those parties would be subject to strict liability for injuries and property damage resulting from the 3D printed firearm.

1. Prior Legislation. SB 1327 (Hertzberg), Chapter 146, Statutes of 2022, created a private right of action for various conduct related to firearms.
   

AB 1594 (Ting), Chapter 98, Statutes of 2022, among other things, established a firearm industry standard of conduct and prohibited firearm industry members from marketing abnormally dangerous firearm-related products.

AB 1621 (Gipson), Chapter 76, Statutes of 2022, in part, established various restrictions on the possession, sale, and transfer of CNC machines.

AB 2156 (Wicks), Chapter 142, Statutes of 2022, in part, defined a 3D printer, and restricted persons or corporations from using a 3D printer to manufacture any firearm, frame, receiver, or precursor part.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 18, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

ABPCA Bill Id:AB 1089

Author:(Gipson) – As Amended Ver:March 29, 2023

As Proposed to be Amended

SUBJECT: illegal firearms and firearm parts: strict liability

KEY ISSUE: should individuals who unlawfully distribute computer codes to manufacture firearms via 3-D printer, as well as manufacturers and others in the supply chain, be strictly liable for the injuries and property damage caused by these dangerous and illegal firarms?

SYNOPSIS

California has led the nation in protecting consumers by imposing strict liability for distribution of dangerous and defective products. As a general rule, “[e]veryone is responsible, not only for the result of [their] willful acts, but also for an injury occasioned to another by [their] want of ordinary care of skill in the management of [their] property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury [on themselves].” (Civil Code Section 1714 (a).) But one important public policy exception to the rule of negligence allows injured consumers to recover for injuries caused by dangerous and defective products without having to prove negligence by manufacturers and others in the products’ supply chains as California courts have authorized since the early 1960s. Another theory of strict liability is the doctrine of ultrahazardous activity. It provides that one who undertakes an ultrahazardous activity is liable to every person who is injured as a proximate result of that activity, regardless of the amount of care they use. Strict liability can be imposed for criminal liability in areas of law that are subject to strong police regulation by defining “malum prohibitum” offenses that impose liability in the absence of criminal intent. Lawmakers have wide latitude to declare an offense and to exclude, or include, elements of knowledge and diligence.

This bill, sponsored by Giffords, seeks to do just that. The bill defines and regulates three-dimensional (3D) printers that are used to manufacture firearms; expands firearm civil liability laws to include the use of computer numerical control (CNC) machines and 3D printers; and imposes strict civil liability for injuries and property damage caused by firearms manufactured with unlawfully distributed 3D firearm manufacturing codes and unlawfully possessed CNC machines and 3D printers. Given that the Assembly Public Safety Committee has primary jurisdiction over the bill and thoroughly analyzed the majority of the bill that addresses criminal liability when it heard and passed the bill (by a vote of 7-1) last month, this analysis will focus only on the bill’s provisions relating to civil liability.

The analysis explains that whether under the theory that firearms manufactured by these unlawful means are defective products, constitute an ultrahazardous activity, or constitute a “malum prohibitum” offense, it is possible that a distributor of a digital firearm manufacturing code, or manufacturer or seller of a firearm produced via 3D printer or CNC milling machine could be held strictly liable under existing [common] law principles for injuries caused by these firearms. But because lawmakers have wide latitude to declare an offense and to exclude, or include, elements of knowledge and diligence, it seems perfectly reasonable to impose such strict liability via statute, as this bill proposes to do. This is especially true given that the regulation of firearm manufacturing and sales is an area of law that is subject to such strong police regulation.

The author proposes a number of amendments to broaden the effect of both its regular civil liability provision and its strict liability so, among other things, that they cover those who manufacture these illegal firearms as well as those who distribute the codes that are necessary to manufacture some of the firearms. It prohibits those engaged in the illegal activity from taking advantage of these liability provisions by suing other wrongdoers in the supply chain, authorizes the recovery of reasonable attorney’s fees and costs, and allows public prosecutors to enforce the law. The bill is support by a number of organizations that advocate to end gun violence, medical groups, community political organizations and PORAC. It is opposed by Gun Owners of California.

SUMMARY: Defines and regulates three-dimensional (3D) printers that are used to manufacture firearms; expands firearm civil liability laws to include the unlawful possession and use of computer numerical control (CNC) machines and 3D printers to manufacture firearms; and imposes strict civil liability for injuries and property damage caused by firearms unlawfully manufactured by such means. Specifically, this bill:

1. Includes a “firearm manufacturing machine” in the definition of a “firearm-related product” for purposes of the Firearm Industry Responsibility Act.
2. Defines a “firearm manufacturing machine,” in the civil liability context, as a 3D printer or CNC milling machine that is marketed or sold as, or reasonably designed or intended to be used to manufacture or produce a firearm.
3. Authorizes a civil action against a person who knowingly does either of the following:
4. Distributes or causes to be distributed, by any means, including the internet, any digital firearm manufacturing code to any other person in this state who is not a federally-licensed firearms manufacturer, member of the Armed Forces of the United States or the National Guard, while on duty and acting within the scope and course of employment, or any law enforcement agency or forensic laboratory.
5. Commits an act that violates Section 29185 of the Penal Code, regardless of whether the act results in a conviction.
6. Provides that a person who commits an act described in 3) shall be strictly liable for any personal injury or property damage inflicted by the use of a firearm that is manufactured or produced using the digital firearm manufacturing code that they distribute or cause to be distributed, or that is manufactured by means of a CNC milling machine, a three-dimensional printer, or a similar machine.
7. Makes an exception to 4) for any injury or property damage sustained by a person who commits an unlawful act described in 3).
8. Authorizes the Attorney General, county counsel, or city attorney to bring an action in any court of competent jurisdiction to establish that a person has violated this section and may seek a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.
9. Provides that a prevailing plaintiff shall be entitled to recover reasonable attorney’s fees and costs.
10. Defines the following terms for purposes of the bill:
11. “Digital firearm manufacturing code” means any digital instruction in the form of computer-aided design files or other code or instructions stored and displayed in electronic format as a digital model that may be used to program a CNC milling machine, 3D printer, or other machine, to manufacture a firearm, including frames, receivers, and precursor parts.
12. “Federally-licensed firearms manufacturer” means a person, firm, corporation, or other entity that holds a valid license to manufacture firearms issued pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and regulations issued pursuant thereto.
13. Makes it a crime to sell, transfer, or possess a CNC milling machine or 3D printer that has a sole or primary function of manufacturing firearms, unless by a state-licensed manufacturer.
14. Provides that the remedies provided by this section are cumulative and shall not be construed as restricting any other rights, causes of action, claims, or defenses available under any other law.
15. Requires a person who possesses a 3D printer that has the sole or primary function of manufacturing a firearm before July 1, 2024, to do the following within 90 days of that date in order to not be in violation of state law:
16. Sell or transfer the device to a state-licensed firearms manufacturer,
17. Sell or transfer the device to a businessperson that sells such devices to state-licensed firearms manufacturers,
18. Take the device out of state,
19. Give the device to a law enforcement agency, or;
20. Otherwise lawfully terminate possession of the device.
21. Contains a severability clause.

EXISTING LAW:

1. Pursuant to case law, provides that “a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” (Greenman v. Yuba Power Prods., Inc. (1963) 59 Cal. 2d 57, 62.) 
2. Pursuant to the Product Recall Safety and Protection Act, prohibits the manufacture, remanufacture, retrofit, distribution, or sale of a product that is unsafe knowing that the product is unsafe, and that no commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer shall manufacture, remanufacture, distribute, sell at wholesale or retail, contract to sell or resell, lease, or sublet, or otherwise place into the stream of commerce, a product that is unsafe, knowing that the product is unsafe. (Health and Safety Code Section 108044 (a).)
3. Defines a “firearm,” in certain parts of the Penal Code as, “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” (Penal Code Section 16520 (a).)
4. Defines a “firearm” for specified other provisions in the Penal Code, as including the frame or receiver, or a firearm precursor part; including the provision governing CNC milling machines. (Penal Code Section 16520 (b)(17).)
5. Defines a “firearm precursor part” as “any forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm, or that is marketed or sold to the public to become or be used as the frame or receiver of a functional firearm once completed, assembled or converted.” (Penal Code Section 16531 (a).)
6. Prohibits any person or corporation from manufacturing more than three firearms in this state over the course of a year unless they are licensees. (Penal Code Section 29010 (a).)
7. Defines “three-dimensional printer” and prohibits any person or corporation from manufacturing a firearm through use of a 3D printer unless they are a licensee. (Penal Code Section 29010 (b).)
8. Prohibits persons or corporations from using a CNC milling machine to manufacture a firearm or firearm precursor part unless they are a federally licensed firearms manufacturer or importer. (Penal Code Section 29185 (a).)
9. States that it is unlawful to sell, offer to sell, or transfer a CNC milling machine that has the sole or primary function of manufacturing firearms to any person aside from a federally licensed firearms manufacturer or importer. (Penal Code Section 29185 (b).)
10. Provides that it is unlawful to possess, purchase, or receive a CNC milling machine that has the sole or primary function of manufacturing firearms unless a person is a federally licensed firearms manufacturer or importer. (Penal Code Section 29185 (c).)
11. Exempts air carriers, certain business persons, and other specified persons from the prohibition on possessing or selling specified CNC milling machines. (Penal Code Section 29185 (d).)
12. Establishes the “Firearm Industry Responsibility Act” which allows for civil actions to be brought against firearm industry members who deal in abnormally dangerous firearm-related products. (Civil Code Section 3273.50 et seq.)
13. Authorizes any resident of, or visitor to, California, other than an officer or employee of a state or local governmental entity in this state, to bring a civil action against any person who knowingly traffics in illegal firearms and in firearm parts in the state. Also requires persons who bring lawsuits against enforcement of firearms laws to pay for the attorney’s fees of the state if the state prevails. (Bus. & Prof. Code Section 22949.60 et seq.; Civil Code Section 1021.11.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: This bill, sponsored by Giffords, includes provisions dealing with both civil and criminal liability. The bill defines and regulates three-dimensional (3D) printers that are used to manufacture firearms; expands firearm civil liability laws to include the use of computer numerical control (CNC) machines and 3D printers; and imposes strict civil liability for injuries and property damage caused by firearms manufactured with unlawfully distributed 3D firearm manufacturing codes and unlawfully possessed CNC machines and 3D printers. According to the author:

Assembly Bill 1089 seeks to build on California’s recently enacted ghost gun reforms by closing additional gaps and creating a civil cause of action to assist in accountability and enforcement against companies whose sale or advertising practices unfairly and deceptively induce California buyers to illegally obtain and use ghost gun manufacturing machines without a manufacturer’s license.

Given that the Assembly Public Safety Committee has primary jurisdiction over the bill and thoroughly analyzed the majority of the bill that addresses criminal liability when it heard and passed the bill (by a vote of 7-1) last month, this analysis will focus only on the bill’s provisions relating to civil liability.

California has led the nation in protecting consumers by imposing strict liability for distribution of dangerous and defective products. As a general rule, “[e]veryone is responsible, not only for the result of [their] willful acts, but also for an injury occasioned to another by [their] want of ordinary care of skill in the management of [their] property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury [on themselves].” (Civil Code Section 1714 (a).) According to the California Supreme Court, Section 1714 embodies a fundamental principle of liability for failure to exercise such care, and that “it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by Civil Code Section 1714, no such exception should be made unless clearly supported by public policy.”  (Rowland v. Christian (1968) 69 Cal. 2d 108, 112.) 

One important public policy exception to the rule of negligence allows injured consumers to recover for injuries caused by dangerous and defective products without having to prove negligence by manufacturers and others in the products’ supply chains. The landmark decision of Greenman v. Yuba Power Prods., Inc. (1963) 59 Cal. 2d 57, firmly established that “a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” (Id. at p. 62.) Strict liability in tort is not based on the law of warranty, either express or implied, nor is it based on negligence. Its purpose is to insure that the costs of injuries resulting from defective products be borne by the makers of the products rather than the injured individual. (Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 31.)

Another theory of strict liability is the doctrine of ultrahazardous activity. It provides that “one who undertakes an ultrahazardous activity is liable to every person who is injured as a proximate result of that activity, regardless of the amount of care he uses.” (Pierce v. Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 85, internal citations omitted.) Whether an activity is ultrahazardous is a question of law to be determined by the court. (Luthringer v. Moore (1948) 31 Cal.2d 489, 496.)

The Restatement of Torts Second, section 519, provides:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Restatement of Torts Second, section 520, provides that in determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) Existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) Likelihood that the harm that results from it will be great;

(c) Inability to eliminate the risk by the exercise of reasonable care;

(d) Extent to which the activity is not a matter of common usage;

(e) Inappropriateness of the activity to the place where it is carried on; and

(f) Extent to which its value to the community is outweighed by its dangerous attributes.

Strict liability in this context has been confined to “consequences which lie within the extraordinary risk posed by the abnormally dangerous activity and is limited to the ‘class of persons who are threatened by the abnormal danger, and the kind of damage they may be expected to incur.’ ” (Goodwin v. Reilley (1985) 176 Cal.App.3d 86, 92, citing Prosser & Keeton, The Law of Torts (5th ed. 1984) § 75, p. 562.) “The important factor is that certain activities under certain conditions may be so hazardous to the public generally, and of such relative infrequent occurrence, that it may well call for strict liability as the best public policy.” (Luthringer, supra, 31 Cal.2d at p. 500.)

Lawmakers have wide latitude to declare an offense and to exclude, or include, elements of knowledge and diligence. (Lambert v. California (1957) 355 U.S. 225, 228.) This latitude extends even to criminal statutes. In areas subject to strong police regulation, the state may impose "the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger." [Citation omitted.] (People v. Martin (1989) 211 Cal.App.3d 699, 714-715.) The Legislature has the authority to enact malum prohibitum provisions for which no intent or negligence is required. (Liquid Chemical Corp. v. Department of Health Services (1991) 227 Cal.App.3d 1682, 1707.) Strict liability criminal offenses, otherwise termed public welfare offenses, are generally “regulatory offenses, not common law crimes[,] … [are] classified as ‘malum prohibitum’ rather than ‘malum in se,’ [and] are punishable despite the absence of criminal intent in any of the accepted senses.” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 17, p. 220; see People v. Rubalcava (2000) 23 Cal.4th 322, 331 [96 Cal. Rptr. 2d 735, 1 P.3d 52] (Rubalcava) [strict liability offenses completely eliminate “ ‘the requirement of a “guilty mind” with respect to an element of a crime’ ” but in general intent crime “guilty mind” is shown by defendant's knowing and intentional participation in the proscribed act].) Thus, strict liability offenses include “ ‘illegal sales of intoxicating liquor, … sales of impure or adulterated food or drugs, … sales of misbranded articles, … violations of traffic regulations, and … violations of general police regulations, … passed for the safety, health or well-being of the community.’ ” (1 Witkin & Epstein, Cal. Criminal Law, supra, Elements, § 17, at pp. 221–222.) (People v. Blick (2007) 153 Cal.App.4th 759, 770.)

Application of strict liability principles to firearms that are unlawfully and unsafely manufactured via CNC Milling Machines and 3D printers. California has enacted a comprehensive set of laws regulating the manufacturing and sale of firearms in California to ensure that firearms manufactured and sold to the public are not defective and subject to requirements such as licensing and record keeping. For example, no handgun may be manufactured within California, imported into California for sale, lent, given, kept for sale, or offered/exposed for sale unless that handgun model has passed firing, safety, and drop tests and is certified for sale in California by the Department of Justice (DOJ). All firearms (long guns and handguns) purchased in California must be accompanied by a firearm safety device (FSD) that has passed required safety and functionality tests and is listed on the DOJ’s official roster of approved firearm safety devices. To purchase or acquire a firearm, you must have a valid Firearm Safety Certificate (FSC). To obtain an FSC, you must score at least 75% on an objective written test pertaining to firearm laws and safety requirements. Prior to taking possession of a firearm, you must successfully perform a safe handling demonstration with the firearm being purchased or acquired. (See California Office of the Attorney General, “California Firearms Laws Summary” (2021), available at https://oag.ca.gov/system/files/media/cfl2021.pdf.)

3D printing is an additive manufacturing process which lays down consecutive layers of material to create objects. This differs from the more traditional method of subtractive manufacturing like wood carving, laser cutting, and CNC milling, which all take a block of material and either cut, drill, mill, or machine off parts. (Jandyal et al. 3D printing – A review of processes, materials and applications in industry 4.0. (Oct. 7, 2021) at p. 33.) Certain 3D printers can also manufacture firearms. Whereas early prototypes could successfully fire only a single round or a few shots before it was destroyed in the process (OIG Report at pp. 10-11), the quality and design of 3D printed firearms have improved significantly. In 2019, the FBI tested a 3D printed firearm design and concluded that the firearm was functional and lethal as designed. (Id. at p. 14.) While most commercial-grade polymer 3D printers are unaffordable for most individuals, academic and industry experts state that motivated individuals can use more affordable 3D printers to print and subsequently strengthen the quality and reliability of a 3D printed firearm. (OIG Report at p. 13.)

Nevertheless, guns that are manufactured in plastic via 3D printers by definition could never qualify for listing on DOJ’s roster of not unsafe handguns and allowed to lawfully be sold in California. They would never pass the definitional criteria (i.e. for a pistol to have a positive manually operated safety device and a chamber load indicator), firing test (requiring 600 rounds to be fired from each handgun in a certified testing laboratory) that apply to all handguns sold in the state. In fact, the reason why guns are manufactured via 3D printers, CNC milling machines, and similar devices is to evade all of these safety laws (as well as requirements that all sales be conducted via licensed dealers, with buyers subjected to background checks and records of handgun sales being retained for law enforcement purposes).

Whether under the theory that firearms manufactured by these unlawful means are defective products, constitute an ultrahazardous activity, or constitute a “malum prohibitum” offense, it is possible that a distributor of a digital firearm manufacturing code, or manufacturer or seller of a firearm produced via 3D printer or CNC milling machine could be held strictly liable under existing [common] law principles for injuries caused by these firearms. However, as the U.S. Supreme Court acknowledges, “Lawmakers have wide latitude to declare an offense and to exclude, or include, elements of knowledge and diligence.” (Lambert v. California, supra, 355 U.S. at p. 228.) Therefore, it seems perfectly reasonable to impose such strict liability via statute, as this bill proposes to do, especially given that the regulation of firearm manufacturing and sales is an area of law that is subject to such strong police regulation.

Author’s amendments. The bill in print authorizes a civil action for damages only against a person who knowingly distributes or causes to be distributed a digital firearm manufacturing code. It imposes no such liability on those who use digital firearm manufacturing codes to unlawfully manufacture guns. Last year, California enacted laws regulating who can possess a CNC milling machine that had a sole or primary function of manufacturing firearms (and is used to produce untraceable “ghost guns”; how such CNC machines can be transported, transferred, and, if a person was in unauthorized possession, how they must be dispensed with. (AB 1621 (Gipson) Chapter 76, Statutes of 2021-2022.) Therefore, it seems reasonable to impose similar civil liability on persons who violate the provisions of AB 1621. The bill, as proposed to be amended, would do so.

The bill in print also imposes strict liability for all injuries and property damage caused by a gun produced only by means of a digital firearm manufacturing code and then only on the distributor of the code. The bill in print would not impose such liability on the manufacturer of the gun, for example. Those who manufacture a firearm via a CNC milling machine, a three-dimensional printer, or a similar machine—or even sell or possess such an illegal machine-- should have the same liability as a person who distributes a code necessary for the manufacture of a firearm via a CNC milling machine, a three-dimensional printer, or a similar machine. If a gun produced via that process is later used to cause an injury or property damage, all parties involved in the production process should be subject to strict liability for the injuries and property damage. The bill, as proposed to be amended by the author, would do just that. This is consistent with strict liability principles that everyone in the supply chain of a defective or inherently dangerous product is responsible for injuries caused by the defective product.

A plaintiff who is injured as a result of the offenses outlined in the bill would be able to recover not only the damages for personal injuries and property damage, but also reasonable attorney’s fees and costs. As proposed to be amended, the bill would authorize the Attorney General, county counsel, or city attorney to bring an action in any court of competent jurisdiction to establish that a person has violated this section and may seek a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law. Like a private party, the public prosecutors would also be able to recover reasonable attorney’s fees and costs.

Not all injured parties would be able to recovery under the bill’s strict liability provision. The bill, as proposed to be amended, clarifies that its strict liability provision does not apply to any injury or property damage sustained by a person who commits an unlawful act described in the bill. For example, if the gun maker were injured when the gun exploded, they could not sue the distributor of the digital firearm manufacturing code (or anyone else in the chain of distribution). A wrongdoer should not be able to profit from their misdeeds and would not be able to do so under the bill as it is proposed to be amended.

It should be noted that the bill imposes strict liability on those who “knowingly” engage in the wrongful acts prohibited by the bill. As explained above, strict liability can be imposed in the civil context in the absence of any mental state, whether that means knowledge of the risk, intent to cause harm, or even attempts to avoid harm and injury. It can be imposed in the criminal context by completely eliminating “the requirement of a ‘guilty mind’ with . . . the defendant's knowing and intentional participation in the proscribed act” (People v. Rubalcava, supra, 23 Cal.4th at p. 331). The bill’s version of strict civil liability that imposes a knowledge requirement therefore has a softened/modified version of pure strict liability principles.

As proposed to be amended, Section 2 of the bill would read as follows:

3343.9. (a) An A civil action may be brought against a person who, by any means, including the internet, knowingly does either of the following:

(1) distributes, Distributes or causes to be distributed, by any means, including the internet, any digital firearm manufacturing code to any other person in this state who is not a federally-licensed firearms manufacturer, member of the Armed Forces of the United States or the National Guard, while on duty and acting within the scope and course of employment, or any law enforcement agency or forensic laboratory.

(2) Commits an act that violates Section 29185 of the Penal Code, regardless of whether the act results in a conviction.

(b) (1) A person who distributes, or causes to be distributed, any digital firearm manufacturing code as commits an act described in subdivision (a) shall be strictly liable for any personal injury or property damage inflicted by the use of a firearm that was is manufactured or produced using the digital firearm manufacturing code that was they distributed or caused to be distributed, or that is manufactured by means of a CNC milling machine, a three-dimensional printer, or a similar machine.

(2) This subdivision does not apply to any injury or property damage sustained by a person who commits an unlawful act described in subdivision (a).

(c) This section does not apply to, or affect the distribution of a digital firearm manufacturing code to, any member of the Armed Forces of the United States or the National Guard, while on duty and acting within the scope and course of employment, or any law enforcement agency or forensic laboratory, or to any state-licensed firearms manufacturer as defined in Section 29185 of the Penal Code

The Attorney General, county counsel, or city attorney may bring an action in any court of competent jurisdiction to establish that a person has violated this section and may seek a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each violation, as well as injunctive relief sufficient to prevent the person and any other defendant from further violating the law.

(d) A prevailing plaintiff shall be entitled to recover reasonable attorney’s fees and costs.

(e) As used in this section, “digital the following definitions apply:

(1) “Digital firearm manufacturing code” means any digital instructions in the form of computer-aided design files or other code or instructions stored and displayed in electronic format as a digital model that may be used to program a CNC milling machine, a three-dimensional printer, or a similar machine, to manufacture or produce a firearm, including a completed frame or receiver or a firearm precursor part

(2) “Federally-licensed firearms manufacturer” means a person, firm, corporation, or other entity that holds a valid license to manufacture firearms issued pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and regulations issued pursuant thereto.

(f) The remedies provided by this section are cumulative and shall not be construed as restricting any other rights, causes of action, claims, or defenses available under any other law.

ARGUMENTS IN SUPPORT: Giffords, sponsor of the bill, writes the following in support:

AB 1089 (Gipson) would help urgently and unequivocally address these threats and shut down these companies’ dangerous and irresponsible attempts to circumvent California’s new ghost gun reforms. This legislation would build on the strong ghost gun reforms California enacted last year by clarifying and strengthening California's limitations on the sale of ghost gun manufacturing machines and by strengthening efforts to hold individuals accountable for harms caused by their distribution of digital blueprints for printing and manufacturing guns and key firearm components.

More specifically, this bill would . . . Make people strictly liable in civil court for any harms they cause by knowingly distributing to unlicensed individuals the digital code for programming ghost gun manufacturing machines to mill, print, or otherwise produce firearms.

These efforts will help urgently address dangerous attempts to undermine California’s lifesaving ghost gun reforms before they can take root and fuel the next generation proliferation of unregulated ghost guns in our communities.

Consumer Attorneys of California similarly observe that the bill’s restrictions on surreptious and illegal gun manufacturing would save lives and hold wrongdoers accountable:

Irresponsible companies have continued to sell machines that are explicitly designed as ghost gun manufacturing machines while deceptively claiming that these machines do not have the "primary" purpose of manufacturing firearms. In 2022, a man named David Mora fatally shot his three daughters using a homemade semi-automatic rifle. Mora, at the time, was under a restraining order which prohibited the possession of a firearm. Authorities do not know how or when he obtained it, but it is clear that the manufacturing of “ghost guns” are still an issue at large.

AB 1089 will prohibit the sale, purchase, possession, or receipt of a three-dimensional printer or CNC milling machine that primarily manufactures firearms to or by any person in the state other than a state-licensed firearm manufacture. AB 1089 will enforce this provision by providing that civil action can be brought up against any person who distributes any code or digital instructions for the manufacture of a firearm using a three-dimensional printer or CNC milling machine.

ARGUMENTS IN OPPOSITION: Gun Owners of California write the following in opposition to the bill:

As currently written, the bill would ban any 3-D or CNC machine for the simple reason that they are capable of manufacturing unserialized firearms – as well as a host of other products. According to 3D Sourced, “3D printing has grown to impact almost every major industry worldwide in some capacity.” According to their research in which they showcase developments in the 3D printing sector, hospitals are increasingly turning to 3D printing for uses in orthopedics, surgical implants, and custom surgical instruments. It also dominates the hearing aid industry and it’s uses are increasingly popular in the fields of dental prosthetics as well as auto parts production and jewelry.

It's an overreach to ban a product because a tiny subsection of our society chooses to make a item that is used for an unlawful goal; the fact remains that the significant majority of 3D uses are responsible and law-abiding, and those individuals should not be penalized for the misdeeds of a few.

REGISTERED SUPPORT / OPPOSITION:

Support

Brady Campaign

Brady Campaign California

California Medical Association

California Nurses Association

Consumer Attorneys of California

Everytown for Gun Safety Action Fund

Giffords

Indivisible CA Statestrong

Indivisible Yolo

Peace Officers Research Association of California (PORAC)

Opposition

Gun Owners of California

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334

Date of Hearing: March 28, 2023

Counsel: Mureed Rasool

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

REVISED

As Proposed to be Amended in Committee

SUMMARY:

Defines three-dimensional (3D) printers and includes such devices in the statutes regulating the manufacture of firearms. Requires persons to relinquish certain 3D printers. Expands firearm civil liability laws to include the use of computer numerical control (CNC) machines and 3D printers. Imposes strict civil liability on persons who unlawfully distribute 3D firearm manufacturing codes. Specifically, this bill:

1. Includes a “firearm manufacturing machine” in the definition of a “firearm-related product” for purposes of the Firearm Industry Responsibility Act.
   
2. Defines a “firearm manufacturing machine,” in the civil liability context, as a 3Dprinter or CNC milling machine that is marketed or sold as, or reasonably designed or intended to be used to manufacture or produce a firearm.
   
3. Authorizes civil actions against persons who knowingly distribute any digital firearm manufacturing code when a firearm produced by such code and imposes strict liability when it is used to inflict personal injury or property damage.
   
4. Exempts military members from such civil actions if they distributed the digital firearm manufacturing code if they were acting within the scope of their employment, and also exempts law enforcement agencies, forensic laboratories, and state-licensed firearm manufacturers regardless of whether they were acting within the scope of their employment.
   
5. Defines “digital firearm manufacturing code” as any digital instruction in the form of computer-aided design files or other code or instructions stored and displayed in electronic format as a digital model that may be used to program a CNC milling machine, 3D printer, or other machine, to manufacture a firearm, including frames, receivers, and precursor parts.
   
6. Specifies that only state-licensed firearms manufacturers are exempt from CNC milling machines and 3D printer regulations on manufacturing firearms.
   
7. Defines a “state-licensed firearms manufacturer” as a person licensed to manufacture firearms under California state law.
   
8. Makes it a crime to sell, transfer, or possess a CNC milling machine or 3D printer that has a sole or primary function of manufacturing firearms, unless by a state-licensed manufacturer.
   
9. Requires a person who possesses a 3D printer that has the sole or primary function of manufacturing a firearm before July 1, 2024, to do the following within 90 days of that date in order to not be in violation of state law:
   
10. Sell or transfer the device to a state-licensed firearms manufacturer,
    
11. Sell or transfer the device to a businessperson that sells such devices to state-licensed firearms manufacturers,
    
12. Take the device out of state,
    
13. Give the device to a law enforcement agency, or;
    
14. Otherwise lawfully terminate possession of the device.
    
15. Contains a severability clause.
    

EXISTING LAW:

1. Defines a “firearm,” in certain parts of the Penal Code as, “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” (Pen. Code, § 16520, subd. (a).)
   
2. Defines a “firearm” for specified other provisions in the Penal Code, as including the frame or receiver, or a firearm precursor part; including the provision governing CNC milling machines. (Penal Code §16520, subd. (b)(17).)
   
3. Defines a “firearm precursor part” as “any forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm, or that is marketed or sold to the public to become or be used as the frame or receiver of a functional firearm once completed, assembled or converted.” (Pen. Code, § 16531, subd. (a).)
   
4. Prohibits any person or corporation from manufacturing more than three firearms in this state over the course of a year unless they are licensees. (Pen. Code, § 29010, subd. (a).)
   
5. Defines “three-dimensional printer” and prohibits any person or corporation from manufacturing a firearm through use of a 3D printer unless they are a licensee. (Pen. Code, § 29010, subd. (b).)
   
6. Defines a “licensee” as a person or corporation that the DOJ has confirmed possesses a federal license to manufacture firearms, necessary local government licenses, a certificate of eligibility issued by the DOJ, is on a DOJ maintained centralized list, and other specified requirements. (Pen. Code, § 29050.)
   
7. Provides that a licensee’s license cannot be valid for more than one year from the date of issuance. (Pen. Code, § 29050, subd. (c).)
   
8. Makes it a misdemeanor for a person to knowingly possess a firearm without a valid state or federal serial number. (Pen. Code, § 23920.)
   
9. States that prior to manufacturing or assembling a firearm (not including precursor parts) that does not have a valid state or federal serial number, a person must:
   
10. Apply to the DOJ for a serial number,
    
11. Describe the firearm they intend to assemble, and;
    
12. Provide their date of birth, address and full name. (Pen. Code, § 29180, subd. (b)(1).)
    
13. Requires that within 10 days of manufacturing or assembling a firearm (not including precursor parts), they must engrave or permanently affix the serial number previously provided to them by the DOJ and notify the DOJ of such. (Pen. Code, § 29180, subd. (b)(2)-(3).)
    
14. Prohibits persons or corporations from using a CNC milling machine to manufacture a firearm or firearm precursor part unless they are a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (a).)
    
15. States that it is unlawful to sell, offer to sell, or transfer a CNC milling machine that has the sole or primary function of manufacturing firearms to any person aside from a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (b).)
    
16. Provides that it is unlawful to possess, purchase, or receive a CNC milling machine that has the sole or primary function of manufacturing firearms unless a person is a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (c).)
    
17. Exempts air carriers, certain business persons, and other specified persons from the prohibition on possessing or selling specified CNC milling machines. (Pen. Code, § 29185, subd. (d).)
    
18. Establishes the “Firearm Industry Responsibility Act” which allows for civil actions to be brought against firearm industry members who deal in abnormally dangerous firearm-related products. (Civ. Code, § 3273.50 et seq.)
    
19. Authorizes any resident of, or visitor to, California, other than an officer or employee of a state or local governmental entity in this state, to bring a civil action against any person who knowingly traffics in illegal firearms and in firearm parts in the state. Also requires persons who bring lawsuits against enforcement of firearms laws to pay for the attorney’s fees of the state if the state prevails. (Bus. & Prof. Code, § 22949.60 et seq.; Civ. Code, § 1021.11)
    

FEDERAL LAW

1. Prohibits, in part, the taking of private property for public use without just compensation. (U.S. Const. amend. V.)
2. 1

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Even before the COVID-19 pandemic, stories from families of gun violence have kept me up at night. My own son and his fiancé were victims… and this issue has only gotten worse in our communities. For communities alike, gun violence is a wildfire that we work diligently trying to contain. And the casualties are our babies, sisters, brothers, friends, and acquaintances - all deserving of life but were cut short of their potential. To say that this issue is personal to me is an understatement, and sending thoughts and prayers just isn’t enough. AB 1089 will close the loop on ghost guns and getting one step closer to getting illegal guns off the street. My heart breaks every single time I hear of another life lost from senseless gun violence. Not one more rally. Not one more vigil. Not one more shooting. We need the comprehensive solutions - this is wholeheartedly about saving lives, and nothing less.”
   
2. 3D Printing in General: 3D printing is an additive manufacturing process which lays down consecutive layers of material to create objects. This differs from the more traditional method of subtractive manufacturing like wood carving, laser cutting, and CNC milling, which all take a block of material and either cut, drill, mill, or machine off parts. (Jandyal et al. 3D printing – A review of processes, materials and applications in industry 4.0. (Oct. 7, 2021) <https://reader.elsevier.com/reader/sd/pii/S2666412721000441?token=908AF5C6C38EEF951C10B187DE0F05F7A207AD8CB919B05D12C08BC5EBE01883314CAB5F86ACE0FC723A50808F855E4A&originRegion=us-east-1&originCreation=20230324020851> [as of Mar. 23, 2023] at p. 33.)
   
   3D printers use digital files containing three-dimensional data to create physical objects out of a variety of different materials. 3D printing has been used to make furniture, automotive and aviation parts, sculptures, hearing aids, prosthetics, and artificial teeth. 3D printing has been used to create prosthetic arms and hands for victim of violence in Sudan. NASA’s 3D printing research includes food printing, such as 3D-printed pizza. (PC Magazine. 3D Printing: What You Need to Know. (Updated Jul. 1, 2020) <https://www.pcmag.com/news/3d-printing-what-you-need-to-know> [as of Mar. 23, 2023].)
   
3. 3D Printed Firearms: Certain 3D printers can also manufacture firearms. In December 2021, the U.S. Office of Inspector General (OIG) conducted an audit of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in regards to 3D printed firearms and ATF’s response readiness. The OIG’s report provides a comprehensive look into the danger 3D printed firearms pose. 3D printed firearms became prominent in 2013, when a company released its designs on the Internet for a fully functional, fully 3D printed firearm called the “Liberator.” (OIG. Audit of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ Monitoring of 3-D Firearm Printing Technology. (hereafter OIG Report) (Dec. 2021) <https://oig.justice.gov/sites/default/files/reports/22-016.pdf> [as of Mar. 13, 2023].)
   
   The ATF tested the Liberator and concluded it could successfully fire a single or a few shots before it was destroyed in the process. (OIG Report at 10-11.) Since 2013, however, the quality and design of 3D printed firearms have improved significantly. In 2019 the FBI tested another 3D printed firearm design and concluded the firearm was functional and lethal as designed. (Id. at 14.) While most commercial-grade polymer 3D printers are unaffordable for most individuals, academic and industry experts state that motivated individuals can use more affordable 3D printers to print and subsequently strengthen the quality and reliability of a 3D printed firearm. (OIG Report at 13.) The OIG estimated that the full cost for 3D printing a 9 millimeter handgun frame and adding unregulated firearm components (such as the barrel, trigger, slide, magazine, etc.) was around $700. (Ibid.) For similarly 3D printing and assembling an AR-15 style rifle it was around $840. (Ibid.) The OIG noted that these prices reflect the range of cost for similar firearms purchased from a firearms dealer. (Ibid.)
   
   When it comes to 3D firearm blueprint files, the files containing the manufacturing schematics, the US government had for years restricted their dissemination. Based on that, a private company that distributed 3D firearm blueprints sued the federal government. The US government initially defended against the lawsuit, however, in 2018, the Trump administration did an about face, and agreed to settle the lawsuit and remove 3D firearm blueprints from any restrictions. Twenty-two state Attorney Generals sued to prevent the change from taking effect, however, they eventually lost their lawsuit. The dissent in that case noted that previously the U.S. government had argued distribution of the files would irreparably harm the U.S.’ national security interest. (Washington v. United States Dep't of State (2021) 996 F.3d 552; Courthouse News Service. Ninth Circuit Lifts Ban on 3D-Printed Gun Blueprints. (Apr. 27, 2021) <https://www.courthousenews.com/ninth-circuit-lifts-ban-on-3d-printed-gun-blueprints/> [as of Mar. 23, 2023].)
   
   According to the OIG’s 2021 report, the ATF has not considered 3D printed firearms a priority because few of them have been confirmed to have been used in crimes that the ATF has investigated. (OIG Report at 12.) Of course it was an ATF decision in 2015 that deemed unfinished firearm receivers as “not firearms,” which led to the mass proliferation of ghost guns (firearms without any type of legally required serial number) stemming from such unfinished firearm receivers being found by law enforcement all over the country. (Governing. Why Outlawing Ghost Guns Didn’t Stop America’s Largest Maker of Ghost Gun Parts. (Aug. 28, 2022) <https://www.governing.com/now/why-outlawing-ghost-guns-didnt-stop-americas-largest-maker-of-ghost-gun-parts> [as of Mar. 23, 2023].) According to the ATF’s own numbers, law enforcement recovered 1,758 ghost guns at crimes scenes in 2016; in 2021 that number had jumped to 19,344. (Ibid.) That type of proliferation may likely occur with 3D printed ghost guns. It may already be occurring at least with 3D printed firearm components.
   
   In Fort Worth, Texas, a police officer reached out to the ATF after he noticed a surge in gang shooting where officers found handguns with a “switch” on them. A handgun switch is a Lego-sized device that can be installed on a handgun to allow it to shoot fully automatic. An ATF official stated that these switches allowed the handguns to fire faster than guns used by the military. The ensuing ATF investigation uncovered that these switches were being illegally 3D printed out of an apartment, and investigators were told by the suspect that between two 3D printers, about 400 machine gun conversion devices could be made daily. (CBS. (Jan. 10, 2023) <https://www.cbsnews.com/texas/news/3d-printers-used-to-make-illegal-handgun-switches-magnifies-the-challenge-for-law-enforcement/> [as of Mar. 23, 2023].)
   
4. What This Bill Does: This bill has a number of provisions that include both civil and criminal liability. Since this bill has been double referred to the Assembly Judiciary Committee, issues involving civil liability will not be discussed. Relevant here are the provisions that establish criminal liability. These provisions seek to further the regulation of firearm manufacturing devices.
   
   Last year, California enacted laws regulating who can possess a CNC milling machine that had a sole or primary function of manufacturing firearms. (AB 1621 (Gipson) Chapter 76, Statutes of 2021-2022.) AB 1621, in part, also outlined how such CNC machines can be transported, transferred, and, if a person was in unauthorized possession, how they must be dispensed with. This bill, in part, would include 3D printers that have a sole or primary function of manufacturing firearms, in the transportation, transfer, and possession laws that AB 1621 outlined for CNC machines.
   
   Part of this bill also deletes references to “firm” or “corporation” when it comes to firearm manufacturing laws, and simply leaves “person.” This is a nonsubstantive change because the Penal Code defines “person” as including a corporation. (Pen. Code, § 7.)
   
5. Takings Claims: The Fifth Amendment of the U.S. Constitution provides, in part, that private property shall not be taken for public use without just compensation. That said, there are times when a government can justly deprive an individual of their property. A recent Ninth Circuit case examined, in part, whether California’s ban on extended capacity magazines constituted a facial regulatory taking. (Duncan v. Bonta (2021) (hereafter Duncan) 19 F.4th 1087 [vacated and remanded by the Supreme Court for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S.Ct. 2111]; see Def. Distributed v. Bonta (2022) U.S. Dist. LEXIS 195839 [finding that Bruen primarily focused on the right to keep or bear arms, not regulations on manufacturing].)
   
   This bill would require persons with CNC milling machines or 3D printers with the sole or primary function of manufacturing firearms to relinquish them by July 1, 2024, or 90 days thereafter, either by sale, legal transfer, removal from the state, relinquishment to law enforcement, or otherwise lawful termination of possession, even though these items were legally purchased and possessed. This bill does not provide for any sort of compensation for that property. Moreover, while the bill would allow for sale or legal transfer of the CNC machine or 3D printer, it could not be sold or transferred to any civilian in the state.
   
   The Ninth Circuit found that California’s ban on extended capacity magazines was not a regulatory facial taking in part because there was no record demonstrating the relinquishment procedures deprived owners of all economically beneficial use of the property with respect to every owner of an extended capacity magazine. (Duncan, 19 F.4th at 1112.) It was also not a facial physical taking as, “[m]andating the sale, transfer, modification, or destruction of a dangerous item cannot reasonably be considered a taking akin to a physical invasion of a rental building or the physical confiscation of raisins.” (Id. at 1113.)
   
   Last year, AB 1621 mandated the relinquishment of CNC milling machines that had the sole or primary function of manufacturing firearms in a manner that was similar to the relinquishment procedures for extended capacity magazines. Arguably, it is plausible to analogize this situation to the Duncan case because such a device could be considered dangerous and the relinquishment procedures were similar to the procedures for extended capacity magazines. This bill would take AB 1621’s mandated relinquishment procedures and classifications for CNC machines and extend them to 3D printers, making it plausibly arguable that this bill’s requirements regarding 3D printers would also possibly be analogous to the Duncan case.
   
6. Argument in Support: According to the bill’s sponsor, Giffords, “…Despite the enormous positive impact California's ghost gun reform legislation has had in reforming most ghost gun product sellers’ business practices, certain companies have openly declared, including in court filings, that they are continuing to sell ghost gun manufacturing machines as an effort to circumvent California's regulations on ghost gun kits and components. These digitally programmable machines are designed to enable untrained amateurs to produce firearm frames or receivers with the press of a button, either by additive manufacturing (from a 3-D printer) or subtractive manufacturing (from a CNC milling machine that carves the product out of metal or other material). Instead of selling ghost gun kits, these sellers claim that they are selling merely the machines, unformed material, and digital files for use in those machines.
   
   We believe they are very clearly violating both the spirit and letter of California law. For instance, AB 1621 (Gipson) already enacted some important restrictions on the sale, purchase, and use of digitally programmable CNC milling machines that have the sole or primary function of manufacturing firearms. AB 1621 (Gipson) also unambiguously prohibited any person who does not have a federal firearm manufacturer’s license from using such machines to produce any number of firearms. AB 2156 (Wicks) similarly prohibited using 3-D printers to produce any number of firearms without both a California and federal manufacturer’s license.
   
   Nonetheless, irresponsible companies have continued to sell machines that are explicitly designed and marketed as ghost gun manufacturing machines (including a CNC milling machine called “the Ghost Gunner” sold by Defense Distributed) while dubiously and deceptively claiming that these same machines do not have the "primary" purpose of manufacturing firearms. The seller of the Ghost Gunner machine describes it as “the most popular way of finishing unserialized rifles and pistols in the comfort and privacy of home” and informs California buyers only that they buy ghost gun manufacturing machines “at their own risk.” Similarly, sellers on “Ghostguns.com” market a 3D printing ghost gun manufacturing machine called “The Ender” along with files for printing plastic components of undetectable firearms. Companies like these marketing ghost gun manufacturing machines continue to fail to inform unlicensed customers that it is now unambiguously unlawful in California to use either a CNC milling or a 3-D printer to manufacture or in any way produce firearms (including completed or unfinished frames and receivers) without a firearm manufacturer's license.
   
   Additionally, there is need to consolidate and standardize provisions that were separately enacted by AB 1621 and AB 2156 which separately regulated CNC milling machines and 3- D printers, respectively. For instance, while California law now prohibits unlicensed manufacturers from using a 3-D printer to produce firearms, state law does not regulate the purchase, possession, or sale of 3-D printers that are designed or marketed as ghost gun manufacturing 3-D printers; only AB 1621 included purchase, possession, and sale restrictions on CNC milling ghost gun machines. Additionally, while AB 1621 (Gipson) required a federal firearm manufacturer license to use CNC milling machines to produce firearms, AB 2156 (Wicks) required both a federal and state firearm manufacturer license to use a 3-D printer to produce firearms. (The federal license is a prerequisite under state law for a California firearm manufacturer license). Consolidating and standardizing these statutes will promote compliance and public safety.
   
   AB 1089 (Gipson) would help urgently and unequivocally address these threats and shut down these companies’ dangerous and irresponsible attempts to circumvent California’s new ghost gun reforms. This legislation would build on the strong ghost gun reforms California enacted last year by clarifying and strengthening California's limitations on the sale of ghost gun manufacturing machines and by strengthening efforts to hold individuals accountable for harms caused by their distribution of digital blueprints for printing and manufacturing guns and key firearm components…”
   
7. Argument in Opposition: According to the Gun Owners of California, “As currently written, the bill would ban any 3-D or CNC machine for the simple reason that they are capable of manufacturing unserialized firearms – as well as a host of other products. According to 3D Sourced, “3D printing has grown to impact almost every major industry worldwide in some capacity.” According to their research in which they showcase developments in the 3D printing sector, hospitals are increasingly turning to 3D printing for uses in orthopedics, surgical implants, and custom surgical instruments. It also dominates the hearing aid industry and it’s uses are increasingly popular in the fields of dental prosthetics as well as auto parts production and jewelry.
   
   It's an overreach to ban a product because a tiny subsection of our society chooses to make a item that is used for an unlawful goal; the fact remains that the significant majority of 3D uses are responsible and law-abiding, and those individuals should not be penalized for the misdeeds of a few.
   
   I believe we should get down to the business of reducing crime, rather than penalizing the lawful for the misdeeds of the unlawful – it will never have its anticipated resolution. For those who are interested in stemming the tide of illegal weapons, we share a common desire, and GOC believes we can cooperatively move towards this goal.”
   
8. Prior Legislation:
   
   1. SB 1327 (Hertzberg), Chapter 146, Statutes of 2021-2022, created a private right of action for various conduct related to firearms.
      
   2. AB 1594 (Ting), Chapter 98, Statutes of 2021-2022, among other things, established a firearm industry standard of conduct and prohibited firearm industry members from marketing abnormally dangerous firearm-related products.
      
   3. AB 1621 (Gipson), Chapter 76, Statutes of 2021-2022, in part, established various restrictions on the possession, sale, and transfer of CNC machines.
      
   4. AB 2156 (Wicks), Chapter 142, Statutes of 2021-2022, in part, defined a 3D printer, and restricted persons or corporations from using a 3D printer to manufacture any firearm, frame, receiver, or precursor part.
      
   5. AB 2571 (Bauer-Kahan), Chapter 77, Statutes of 2021-2022, restricted firearms from being marketed to minors.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Giffords (Sponsor)

Brady Campaign (Co-Sponsor)

Brady Campaign California (Co-Sponsor)

California Medical Association

California Nurses Association

Consumer Attorneys of California

Everytown for Gun Safety Action Fund

87 Private Individuals

Opposition

Gun Owners of California, INC.

Analysis Prepared by:

Date of Hearing: March 28, 2023

Counsel: Mureed Rasool

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Changes the definition of computer numerical control (CNC) machines and three-dimensional (3D) printers for purposes of regulating the manufacture of firearms. Requires persons to relinquish certain CNC machines and 3D printers. Expands firearm civil liability laws to include the use of CNC machines and 3D printers. Imposes strict civil liability on persons who unlawfully distribute 3D firearm manufacturing codes. Specifically, this bill:

1. Includes a “firearm manufacturing machine” in the definition of a “firearm-related product” for purposes of the Firearm Industry Responsibility Act.
   
2. Defines a “firearm manufacturing machine” as a three-dimensional printer or a CNC milling machine that is marketed or sold as, or reasonably designed or intended to be used to manufacture or produce a firearm.
   
3. Authorizes civil actions that impose strict liability on persons who knowingly distribute any digital firearm manufacturing code when a firearm produced by such a code is used to inflict personal injury or cause property damage.
   
4. Exempts military members from such civil actions if they distributed the digital firearm manufacturing code while on duty and acting within the scope of their employment. Also exempts law enforcement agencies, forensic laboratories, and state-licensed firearm manufacturers regardless of whether they were acting within the scope of their employment.
   
5. Defines “digital firearm manufacturing code” as any digital instruction in the form of computer-aided design files or other code or instructions stored and displayed in electronic format as a digital model that may be used to program a CNC milling machine, 3D printer, or other machine, to manufacture a firearm, including frames, receivers, and precursor parts.
   
6. Specifies that only state-licensed firearms manufacturers are exempt from CNC milling machine and 3D printer regulations on manufacturing firearms.
   
7. Defines a “state-licensed firearms manufacturer” as a person licensed to manufacture firearms under California state law.
   
8. Makes it a crime to sell, transfer, or possess a CNC milling machine or 3D printer that has a primary or intended function of manufacturing firearms, unless done by a state-licensed manufacturer.
   
9. States that CNC milling machines or 3D printers have a primary or intended function of manufacturing firearms if they are “marketed or sold to the public in a manner that advertises that they may be used to manufacture firearms, or in a manner that knowingly or recklessly promotes the machine’s use in manufacturing firearms, … regardless of whether the machine or printer is otherwise described or classified as having other functions or as a general-purpose machine or printer.”
   
10. Requires a person who possesses a CNC milling machine or 3D printer that has a primary or intended function of manufacturing a firearm before January 1, 2024, to do the following within 90 days of that day in order to not be in violation of state law:
    
11. Sell or transfer the device to a state-licensed firearms manufacturer,
    
12. Sell or transfer the device to a businessperson that sells such devices to state-licensed firearms manufacturers,
    
13. Take the device out of state,
    
14. Give the device to a law enforcement agency, or;
    
15. Otherwise lawfully terminate possession of the device.
    
16. Contains a severability clause.
    

EXISTING LAW:

1. Defines a “firearm,” in certain parts of the Penal Code as, “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” (Pen. Code, § 16520, subd. (a).)
   
2. Defines a “firearm” for other specified provisions of the Penal Code, as including the frame or receiver, or a firearm precursor part; including the provision governing CNC milling machines. (Pen. Code, §16520, subd. (b)(17).)
   
3. Defines a “firearm precursor part” as “any forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm, or that is marketed or sold to the public to become or be used as the frame or receiver of a functional firearm once completed, assembled or converted.” (Pen. Code, § 16531, subd. (a).)
   
4. Prohibits any person or corporation from manufacturing more than three firearms in this state over the course of a year unless they are licensees. (Pen. Code, § 29010, subd. (a).)
   
5. Defines “three-dimensional printer” as specified, and prohibits any person or corporation from manufacturing a firearm through use of a 3D printer unless they are a licensee. (Pen. Code, § 29010, subd. (b).)
   
6. Defines a “licensee” as a person or corporation that the DOJ has confirmed possesses a federal license to manufacture firearms, necessary local government licenses, a certificate of eligibility issued by the DOJ, is on a DOJ maintained centralized list, and other specified requirements. (Pen. Code, § 29050.)
   
7. Provides that a license to manufacture firearms cannot be valid for more than one year from the date of issuance. (Pen. Code, § 29050, subd. (c).)
   
8. Makes it a misdemeanor for a person to knowingly possess a firearm without a valid state or federal serial number. (Pen. Code, § 23920.)
   
9. States that prior to manufacturing or assembling a firearm (not including precursor parts) that does not have a valid state or federal serial number, a person must:
   
10. Apply to the DOJ for a serial number;
    
11. Describe the firearm they intend to assemble; and,
    
12. Provide their date of birth, address and full name. (Pen. Code, § 29180, subd. (b)(1).)
    
13. Requires that within 10 days of manufacturing or assembling a firearm (not including precursor parts), a person must engrave or permanently affix the serial number previously provided to them by the DOJ and notify the DOJ of such. (Pen. Code, § 29180, subd. (b)(2)-(3).)
    
14. Prohibits persons or corporations from using a CNC milling machine to manufacture a firearm or firearm precursor part unless they are a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (a).)
    
15. States that it is unlawful to sell, offer to sell, or transfer a CNC milling machine that has the sole or primary function of manufacturing firearms to any person aside from a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (b).)
    
16. Provides that it is unlawful to possess, purchase, or receive a CNC milling machine that has the sole or primary function of manufacturing firearms unless a person is a federally licensed firearms manufacturer or importer. (Pen. Code, § 29185, subd. (c).)
    
17. Exempts air carriers, certain business persons, and other specified persons from the prohibition on possessing or selling specified CNC milling machines. (Pen. Code, § 29185, subd. (d).)
    
18. Defines the word “person” as including a corporation as well as a natural person. (Pen. Code, § 7.)
    
19. Establishes the “Firearm Industry Responsibility Act” which allows for civil actions to be brought against firearm industry members who deal in abnormally dangerous firearm-related products. (Civ. Code, § 3273.50 et seq.)
    
20. Authorizes any resident of, or visitor to, California, other than an officer or employee of a state or local governmental entity in this state, to bring a civil action against any person who knowingly traffics in illegal firearms and in firearm parts in the state. Also requires persons who bring lawsuits against enforcement of firearms laws to pay for the attorney’s fees of the state if the state prevails. (Bus. & Prof. Code, § 22949.60 et seq.; Civ. Code, § 1021.11.)
    

FEDERAL LAWProhibits, in part, the taking of private property for public use without just compensation. (U.S. Const. amend. V.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Even before the COVID-19 pandemic, stories from families of gun violence have kept me up at night. My own son and his fiancé were victims… and this issue has only gotten worse in our communities. For communities alike, gun violence is a wildfire that we work diligently trying to contain. And the casualties are our babies, sisters, brothers, friends, and acquaintances - all deserving of life but were cut short of their potential. To say that this issue is personal to me is an understatement, and sending thoughts and prayers just isn’t enough. AB 1089 will close the loop on ghost guns and getting one step closer to getting illegal guns off the street. My heart breaks every single time I hear of another life lost from senseless gun violence. Not one more rally. Not one more vigil. Not one more shooting. We need the comprehensive solutions - this is wholeheartedly about saving lives, and nothing less.”
   
2. 3D Printing in General: 3D printing is an additive manufacturing process which lays down consecutive layers of material to create objects. This differs from the more traditional method of subtractive manufacturing like wood carving, laser cutting, and CNC milling, which all take a block of material and either cut, drill, mill, or machine off parts. (Jandyal et al. 3D printing – A review of processes, materials and applications in industry 4.0. (Oct. 7, 2021) <https://reader.elsevier.com/reader/sd/pii/S2666412721000441?token=908AF5C6C38EEF951C10B187DE0F05F7A207AD8CB919B05D12C08BC5EBE01883314CAB5F86ACE0FC723A50808F855E4A&originRegion=us-east-1&originCreation=20230324020851> [as of Mar. 23, 2023] at p. 33.)
   
   3D printers use digital files containing three-dimensional data to create physical objects out of a variety of different materials. 3D printing has been used to make furniture, automotive and aviation parts, sculptures, hearing aids, prosthetics, and artificial teeth. 3D printing has been used to create prosthetic arms and hands for victim of violence in Sudan. NASA’s 3D printing research includes food printing, such as 3D-printed pizza. (PC Magazine. 3D Printing: What You Need to Know. (Updated Jul. 1, 2020) <https://www.pcmag.com/news/3d-printing-what-you-need-to-know> [as of Mar. 23, 2023].)
   
3. 3D Printed Firearms: Certain 3D printers can also manufacture firearms. In December 2021, the U.S. Office of Inspector General (OIG) conducted an audit of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in regards to 3D printed firearms and ATF’s response readiness. The OIG’s report provides a comprehensive look into the danger 3D printed firearms pose. 3D printed firearms became prominent in 2013, when a company released its designs on the Internet for a fully functional, fully 3D printed firearm called the “Liberator.” (OIG. Audit of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ Monitoring of 3-D Firearm Printing Technology. (hereafter OIG Report) (Dec. 2021) <https://oig.justice.gov/sites/default/files/reports/22-016.pdf> [as of Mar. 13, 2023].)
   
   The ATF tested the Liberator and concluded it could successfully fire a single or a few shots before it was destroyed in the process. (OIG Report at 10-11.) Since 2013, however, the quality and design of 3D printed firearms have improved significantly. In 2019 the FBI tested another 3D printed firearm design and concluded the firearm was functional and lethal as designed. (Id. at 14.) While most commercial-grade polymer 3D printers are unaffordable for most individuals, academic and industry experts state that motivated individuals can use more affordable 3D printers to print and subsequently strengthen the quality and reliability of a 3D printed firearm. (OIG Report at 13.) The OIG estimated that the full cost for 3D printing a 9 millimeter handgun frame and adding unregulated firearm components (such as the barrel, trigger, slide, magazine, etc.) was around $700. (Ibid.) For similarly 3D printing and assembling an AR-15 style rifle it was around $840. (Ibid.) The OIG noted that these prices reflect the range of cost for similar firearms purchased from a firearms dealer. (Ibid.)
   
   When it comes to 3D firearm blueprint files, the files containing the manufacturing schematics, the US government had for years restricted their dissemination. Based on that, a private company that distributed 3D firearm blueprints sued the federal government. The US government initially defended against the lawsuit, however, in 2018, the Trump administration did an about face, and agreed to settle the lawsuit and remove 3D firearm blueprints from any restrictions. Twenty-two state Attorney Generals sued to prevent the change from taking effect, however, they eventually lost their lawsuit. The dissent in that case noted that previously the U.S. government had argued distribution of the files would irreparably harm the U.S.’ national security interest. (Washington v. United States Dep't of State (2021) 996 F.3d 552; Courthouse News Service. Ninth Circuit Lifts Ban on 3D-Printed Gun Blueprints. (Apr. 27, 2021) <https://www.courthousenews.com/ninth-circuit-lifts-ban-on-3d-printed-gun-blueprints/> [as of Mar. 23, 2023].)
   
   According to the OIG’s 2021 report, the ATF has not considered 3D printed firearms a priority because few of them have been confirmed to have been used in crimes that the ATF has investigated. (OIG Report at 12.) Of course it was an ATF decision in 2015 that deemed unfinished firearm receivers as “not firearms,” which led to the mass proliferation of ghost guns (firearms without any type of legally required serial number) stemming from such unfinished firearm receivers being found by law enforcement all over the country. (Governing. Why Outlawing Ghost Guns Didn’t Stop America’s Largest Maker of Ghost Gun Parts. (Aug. 28, 2022) <https://www.governing.com/now/why-outlawing-ghost-guns-didnt-stop-americas-largest-maker-of-ghost-gun-parts> [as of Mar. 23, 2023].) According to the ATF’s own numbers, law enforcement recovered 1,758 ghost guns at crimes scenes in 2016; in 2021 that number had jumped to 19,344. (Ibid.) That type of proliferation may likely occur with 3D printed ghost guns. It may already be occurring at least with 3D printed firearm components.
   
   In Fort Worth, Texas, a police officer reached out to the ATF after he noticed a surge in gang shooting where officers found handguns with a “switch” on them. A handgun switch is a Lego-sized device that can be installed on a handgun to allow it to shoot fully automatic. An ATF official stated that these switches allowed the handguns to fire faster than guns used by the military. The ensuing ATF investigation uncovered that these switches were being illegally 3D printed out of an apartment, and investigators were told by the suspect that between two 3D printers, about 400 machine gun conversion devices could be made daily. (CBS. (Jan. 10, 2023) <https://www.cbsnews.com/texas/news/3d-printers-used-to-make-illegal-handgun-switches-magnifies-the-challenge-for-law-enforcement/> [as of Mar. 23, 2023].)
   
4. What This Bill Does: This bill has a number of provisions that include both civil and criminal liability. Since this bill has been double referred to the Assembly Judiciary Committee, issues involving civil liability will not be discussed. Relevant here are the provisions that establish criminal liability. These provisions seek to further the regulation of firearm manufacturing devices.
   
   Last year, California enacted laws regulating who can possess a CNC milling machine that had a sole or primary function of manufacturing firearms. (AB 1621 (Gipson) Chapter 76, Statutes of 2021-2022.) AB 1621, in part, also outlined how such CNC machines can be transported, transferred, and, if a person was in unauthorized possession, how they must be dispensed with. Part of this bill also deletes references to “firm” or “corporation” when it comes to firearm manufacturing laws, and simply leaves “person.” This is a nonsubstantive change because the Penal Code defines “person” as including a corporation. (Pen. Code, § 7.) Another part of this bill defines and includes 3D printers in the regulations for CNC milling machines.
   
   However, this bill would also expose someone to criminal liability depending on whether they market their CNC machine or 3D printer in a certain manner. Previously, a CNC machine would be subject to firearm manufacturing laws if its “sole or primary function” was to manufacture firearms. This bill would make a CNC machine, or a 3D printer, be subject to firearm manufacturing laws if their primary or intended function is to manufacture firearms. This bill further defines an “intended function” as depending on whether the machine or printer is marketed or advertised in a manner indicating it may be used to manufacture firearms. As mentioned by some of the bill’s supporters, the reason behind this language is due to the ability of advanced CNC machines and 3D printers to manufacture firearms without it being the sole or primary function of the device.

This language is problematic as it would treat identical devices differently depending on actions not related to their actual function. For example, a vendor may possess a 3D printer that is capable of manufacturing a firearm, but it may also be capable of manufacturing a number of other objects. Under this bill, the vendor would not necessarily be subject to firearm device manufacturing laws unless they began marketing the 3D printer in a manner indicating that it could be used to manufacture firearms. This is regardless of the fact that the 3D printer is the same device as before. Is it good public policy to create a legal artifice of this sort? An analogous situation would be the state’s sale of controlled substances laws. (Health & Saf. Code, § 11352.) In order to be punished for selling a controlled substance, which could lead to incarceration for up to five years, it must be proven that the substance sold was actually a controlled substance. (Ibid.) The gravamen of the offense is that there was in fact a controlled substance sold. There is another statute that prohibits selling a substance under the pretense that it is a controlled substance, however it is punishable by up to three years of incarceration. (Health & Saf. Code, § 11355.) Conflating the definition of CNC machines and 3D printers to include essentially a restriction on their marketing leads to the question, why not simply create a statute that restricts the marketing of CNC machines and 3D printers if the marketing is for firearm manufacturing purposes? Last year, AB 2571 (Bauer-Kahan) Chapter 77, Statutes of 2021-2022, restricted the marketing of firearms to minors. AB 2571 has, at this point, withstood preliminary judicial scrutiny. (Junior Sports Magazines Inc. v. Bonta (2022) U.S. Dist. LEXIS 193730.)

1. Takings Issues: The Fifth Amendment of the U.S. Constitution provides, in part, that private property shall not be taken for public use without just compensation. That said, there are times when a government can justly deprive an individual of their property. A recent Ninth Circuit case decided, in part, whether California’s ban on extended capacity magazines constituted a facial regulatory taking. (Duncan v. Bonta (2021) (hereafter Duncan) 19 F.4th 1087 [vacated and remanded by the Supreme Court for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S. Ct. 2111]; see Def. Distributed v. Bonta (2022) U.S. Dist. LEXIS 195839 [finding that Bruen primarily focused on the right to keep or bear arms, not regulations on manufacturing].)
   
   This bill would require persons with CNC milling machines or 3D printers with the primary or intended function of manufacturing firearms to relinquish them by January 1, 2024, or 90 days thereafter, either by sale, legal transfer, removal from the state, relinquishment to law enforcement, or otherwise lawful termination of possession, even though these items were legally purchased and possessed. This bill does not provide for any sort of compensation for that property.
   
   The Ninth Circuit found that California’s ban on extended capacity magazines was not a regulatory facial taking in part because there was no record demonstrating the relinquishment procedures deprived owners of all economically beneficial use of the property with respect to every owner of an extended capacity magazine. (Duncan, 19 F.4th at 1112.) It was also not a facial physical taking as, “[m]andating the sale, transfer, modification, or destruction of a dangerous item cannot reasonably be considered a taking akin to a physical invasion of a rental building or the physical confiscation of raisins.” (Id. at 1113.)
   
   Last year, AB 1621 mandated the relinquishment of CNC milling machines that had the sole or primary function of manufacturing firearms. Arguably, this was analogous to the Duncan case because such a device could be considered dangerous and the relinquishment procedures may not have deprived owners of all economically beneficial use of the property. This bill, however, would require relinquishment of a CNC machine or a 3D printer because the definition has changed to include an ‘intended’ function (i.e. its marketing). This bill would classify a CNC machine or 3D printer due to the way it is being marketed without any regard to the actual capability of the device itself. This brings into question whether the device could be properly characterized as “dangerous.” Would the requirement to relinquish property that is otherwise legal but for the way it has been marketed constitute an improper taking?
   
2. Argument in Support: According to the bill’s sponsor, Giffords, “…Despite the enormous positive impact California's ghost gun reform legislation has had in reforming most ghost gun product sellers’ business practices, certain companies have openly declared, including in court filings, that they are continuing to sell ghost gun manufacturing machines as an effort to circumvent California's regulations on ghost gun kits and components. These digitally programmable machines are designed to enable untrained amateurs to produce firearm frames or receivers with the press of a button, either by additive manufacturing (from a 3-D printer) or subtractive manufacturing (from a CNC milling machine that carves the product out of metal or other material). Instead of selling ghost gun kits, these sellers claim that they are selling merely the machines, unformed material, and digital files for use in those machines.
   
   “We believe they are very clearly violating both the spirit and letter of California law. For instance, AB 1621 (Gipson) already enacted some important restrictions on the sale, purchase, and use of digitally programmable CNC milling machines that have the sole or primary function of manufacturing firearms. AB 1621 (Gipson) also unambiguously prohibited any person who does not have a federal firearm manufacturer’s license from using such machines to produce any number of firearms. AB 2156 (Wicks) similarly prohibited using 3-D printers to produce any number of firearms without both a California and federal manufacturer’s license.
   
   “Nonetheless, irresponsible companies have continued to sell machines that are explicitly designed and marketed as ghost gun manufacturing machines (including a CNC milling machine called “the Ghost Gunner” sold by Defense Distributed) while dubiously and deceptively claiming that these same machines do not have the "primary" purpose of manufacturing firearms. The seller of the Ghost Gunner machine describes it as “the most popular way of finishing unserialized rifles and pistols in the comfort and privacy of home” and informs California buyers only that they buy ghost gun manufacturing machines “at their own risk.” Similarly, sellers on “Ghostguns.com” market a 3D printing ghost gun manufacturing machine called “The Ender” along with files for printing plastic components of undetectable firearms. Companies like these marketing ghost gun manufacturing machines continue to fail to inform unlicensed customers that it is now unambiguously unlawful in California to use either a CNC milling or a 3-D printer to manufacture or in any way produce firearms (including completed or unfinished frames and receivers) without a firearm manufacturer's license.
   
   “Additionally, there is need to consolidate and standardize provisions that were separately enacted by AB 1621 and AB 2156 which separately regulated CNC milling machines and 3- D printers, respectively. For instance, while California law now prohibits unlicensed manufacturers from using a 3-D printer to produce firearms, state law does not regulate the purchase, possession, or sale of 3-D printers that are designed or marketed as ghost gun manufacturing 3-D printers; only AB 1621 included purchase, possession, and sale restrictions on CNC milling ghost gun machines. Additionally, while AB 1621 (Gipson) required a federal firearm manufacturer license to use CNC milling machines to produce firearms, AB 2156 (Wicks) required both a federal and state firearm manufacturer license to use a 3-D printer to produce firearms. (The federal license is a prerequisite under state law for a California firearm manufacturer license). Consolidating and standardizing these statutes will promote compliance and public safety.
   
   “AB 1089 (Gipson) would help urgently and unequivocally address these threats and shut down these companies’ dangerous and irresponsible attempts to circumvent California’s new ghost gun reforms. This legislation would build on the strong ghost gun reforms California enacted last year by clarifying and strengthening California's limitations on the sale of ghost gun manufacturing machines and by strengthening efforts to hold individuals accountable for harms caused by their distribution of digital blueprints for printing and manufacturing guns and key firearm components…”
   
3. Argument in Opposition: According to the Gun Owners of California, “As currently written, the bill would ban any 3-D or CNC machine for the simple reason that they are capable of manufacturing unserialized firearms – as well as a host of other products. According to 3D Sourced, “3D printing has grown to impact almost every major industry worldwide in some capacity.” According to their research in which they showcase developments in the 3D printing sector, hospitals are increasingly turning to 3D printing for uses in orthopedics, surgical implants, and custom surgical instruments. It also dominates the hearing aid industry and it’s uses are increasingly popular in the fields of dental prosthetics as well as auto parts production and jewelry.
   
   “It's an overreach to ban a product because a tiny subsection of our society chooses to make a item that is used for an unlawful goal; the fact remains that the significant majority of 3D uses are responsible and law-abiding, and those individuals should not be penalized for the misdeeds of a few.
   
   “I believe we should get down to the business of reducing crime, rather than penalizing the lawful for the misdeeds of the unlawful – it will never have its anticipated resolution. For those who are interested in stemming the tide of illegal weapons, we share a common desire, and GOC believes we can cooperatively move towards this goal.”
   
4. Prior Legislation:
   
   1. SB 1327 (Hertzberg), Chapter 146, Statutes of 2021-2022, created a private right of action for various conduct related to firearms.
      
   2. AB 1594 (Ting), Chapter 98, Statutes of 2021-2022, among other things, established a firearm industry standard of conduct and prohibited firearm industry members from marketing abnormally dangerous firearm-related products.
      
   3. AB 1621 (Gipson), Chapter 76, Statutes of 2021-2022, in part, established various restrictions on the possession, sale, and transfer of CNC machines.
      
   4. AB 2156 (Wicks), Chapter 142, Statutes of 2021-2022, in part, defined a 3D printer, and restricted persons or corporations from using a 3D printer to manufacture any firearm, frame, receiver, or precursor part.
      
   5. AB 2571 (Bauer-Kahan), Chapter 77, Statutes of 2021-2022, restricted firearms from being marketed to minors.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Giffords (Sponsor)

Brady Campaign (Co-Sponsor)

Brady Campaign California (Co-Sponsor)

California Medical Association

California Nurses Association

Consumer Attorneys of California

Everytown for Gun Safety Action Fund

87 Private Individuals

Opposition

Gun Owners of California, INC.

Analysis Prepared by: