BILL NUMBER: SB 15 AMENDED 01/25/99
An act to add Chapter 1.3 (commencing with Section 12125) to Title 2 of Part 4 of the Penal Code, relating to firearms.
NOTE: Matl in italics are additions by Polanco. His deletions are shown lined through. Matls in red are added by J. Phillips.
SB 15, as amended, Polanco. Firearms.
Existing law makes it a misdemeanor or felony to manufacture or cause to be manufactured, import into the state, keep for sale, offer or expose for sale, give, lend, or possess specified weapons, but not including an unsafe handgun.
This bill, commencing January 1, 2001, would make it a misdemeanor to manufacture or cause to be manufactured, import into the state for sale, keep for sale, offer or expose for sale, give, or lend any unsafe handgun, except as specified. By creating new crimes, this bill would impose a state-mandated local program.
This bill additionally would require every person licensed to manufacture firearms pursuant to federal law who manufactures firearms in this state and every person who imports into the state for sale, keeps for sale, or offers or exposes for sale any firearm to certify under penalty of perjury that every model, kind, class, style, or type of pistol, revolver, or other firearm capable of being concealed upon the person that he or she manufactures or imports, keeps, or exposes for sale is not a prohibited unsafe handgun. By expanding the crime of perjury, this bill would impose a state-mandated local program.
The bill also would require any pistol, revolver, or other firearm capable of being concealed upon the person manufactured in this state, imported into the state for sale, kept for sale, or offered or exposed for sale, to be tested by an independent laboratory certified by the Department of Justice to determine whether that pistol, revolver, or other firearm capable of being concealed upon the person meets or exceeds specified standards defining unsafe handguns. The bill would require the Department of Justice to certify laboratories for this purpose on or before July 1, 2000.
The bill also would require the Department of Justice, on and after January 1, 2001, to compile, publish, and thereafter maintain a roster listing all of the pistols, revolvers, and other firearms capable of being concealed upon the person that are not unsafe handguns by the manufacturer, model number, and model name. The bill would authorize the department to charge every person in this state who is licensed as a manufacturer of firearms pursuant to federal law, and any person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, or offers or exposes for sale any pistol, revolver, or other firearm capable of being concealed upon the person in this state, an annual fee not exceeding the costs of preparing, publishing, and maintaining the roster.
This bill would make the above provisions inapplicable to specified transactions involving the sale, loan, or transfer of any firearm and to a single-action revolver with specified features.
The bill would state the intent of the Legislature that the Department of Justice pursue an internal loan from special fund revenues available to the department to cover startup costs for the unsafe handgun program established pursuant to the bill. The bill would require the department to repay any loan with the proceeds of fees collected under that program within 6 months.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
THE FOLLOWING IS THE PROPOSED NEW STATUTE:
SECTION 1. Chapter 1.3 (commencing with Section 12125) is added to Title 2 of Part 4 of the Penal Code, to read:
CHAPTER 1.3. UNSAFE HANDGUNS
Section 12125 is about what is illegal, and what the penalties are.
12125. (a) Commencing January 1, 2001, any person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends any unsafe handgun [as defined in this statute] shall be punished by imprisonment in a county jail not exceeding one year.
(b) This section (12125) shall not apply to any of the following:
(1) The manufacture in this state, or importation into this state, of any prototype pistol, revolver, or other firearm capable of being concealed upon the person when the manufacture or importation is for the sole purpose of allowing an independent laboratory certified by the Department of Justice pursuant to Section 12130 to conduct an independent test to determine whether that pistol, revolver, or other firearm capable of being concealed upon the person is prohibited by this chapter, and, if not, for the department to add the firearm to the roster of pistols, revolvers, and other firearms capable of being concealed upon the person that may be sold in this state pursuant to Section 12131.
(2) The importation or lending of a pistol, revolver, or other firearm capable of being concealed upon the person by employees or authorized agents determining whether the weapon is prohibited by this section.
(3) The sale to, purchase by, or possession of, any pistol, revolver, or other firearm capable of being concealed upon the person by the Department of Justice, police departments, sheriffs' officials, marshals' offices, the Department of Corrections, the California Highway Patrol, district attorneys' offices, full-time paid peace officers of other states and the federal government, the federal military forces, the California National Guard, or the State Military Reserve, excluding the unorganized militia, when that weapon would be prevented by this chapter from being sold in this state solely because it fails to meet minimum frame and barrel size prerequisites established by this chapter. Nothing in this chapter shall prohibit the possession or use of any pistol, revolver, or other firearm capable of being concealed upon the person that would be prevented by this chapter from being sold in this state solely because it fails to meet minimum frame size prerequisites by sworn members of these agencies when on duty and the use is within the scope of their duties.
(4) Firearms listed as curios or relics, as defined in Section 178.11 of Title 27 of the Code of Federal Regulations.
(c) Violations of subdivision (a) are cumulative with respect to each handgun and shall not be construed as restricting the application of any other law. [That is, each gun will be a different count.] However, an act or omission punishable in different ways by this section and other provisions of law shall not be punished under more than one provision, but the penalty to be imposed shall be determined as set forth in Section 654.
[Section 12126 is definition of "unsafe handgun" that applies in 12125-12133]
12126. As used in this chapter, [i.e., 12125-12133] "unsafe handgun" means any pistol, revolver, or other firearm capable of being concealed upon the person, as defined in subdivision (a) of Section 12001, for which any of the following is true:
(a) For a revolver:
(1) It has an overall frame length of less than four and one-half inches measured on a line parallel to the barrel.
(2) It has a barrel length less than three inches.
(3) It does not have a safety device that, either automatically in the case of a double-action firing mechanism, or by manual operation in the case of a single-action firing mechanism, causes the hammer to retract to a point where the firing pin does not rest upon the primer of the cartridge.
(4) It does not meet the firing requirement for handguns pursuant to Section 12127.
(5) It does not meet the drop safety requirement for handguns pursuant to Section 12128.
(b) For a pistol:
(1) It does not have a positive manually operated safety device.
(2) It has a combined length and height less than 10 inches with the height (right angle measurement to the barrel without magazine or extension) less than four inches and the length less than six inches.
(3) It does not meet the firing requirement for handguns pursuant to Section 12127.
(4) It does not meet the drop safety requirement for handguns pursuant to Section 12128.
[Section 12127 is the firing requirement test.]
12127. (a) As used in this chapter[12125-12133], the "firing requirement for handguns" means a test in which the manufacturer provides three handguns of the make and model for which certification is sought, these handguns not being in any way modified from those that would be sold if certification is granted, to an independent testing laboratory certified by the Attorney General pursuant to Section 12130. The laboratory shall fire 600 rounds from each gun, stopping after each series of 50 rounds has been fired for 5 to 10 minutes to allow the weapon to cool, stopping after each series of 100 rounds has been fired to tighten any loose screws and clean the gun in accordance with the manufacturer's instructions, and stopping as needed to refill the empty magazine or cylinder to capacity before continuing. The ammunition used shall be of the type recommended by the handgun manufacturer in the user manual, or if none is recommended, any standard ammunition of the correct caliber in new condition. A handgun shall pass this test if each of the three test guns meets both of the following:
(1) Fires the first 20 rounds without a malfunction that is not due to faulty magazine or ammunition.
(2) Fires the full 600 rounds with no more than six malfunctions that are not due to faulty magazine or ammunition and without any crack or breakage of an operating part of the handgun that increases the risk of injury to the user.
(b) If a pistol or revolver fails the requirements of either paragraph (1) or (2) of subdivision (a) due to either a faulty magazine or faulty ammunition, the pistol or revolver shall be retested from the beginning of the "firing requirement for handguns" test. A new model [they mean "unit"]of the pistol or revolver that failed due to a faulty magazine or ammunition may be submitted for the test to replace the pistol or revolver that failed.
(c) As used in this section, [(12127)] "malfunction" means a failure to properly feed, fire, or eject a round, or failure of a pistol to accept or reject a manufacturer-approved magazine, or failure of a pistol's slide to remain open after a manufacturer-approved magazine has been expended.
[Section 12128 is the drop safety test. ]
12128. As used in this chapter[(12125-12133)], the "drop safety requirement for handguns" means that at the conclusion of the firing requirements for handguns described in Section 12127, the same certified independent testing laboratory shall subject the same three handguns of the make and model for which certification is sought, to the following test:
A primed case (no powder or projectile) shall be inserted into the chamber. For pistols, the slide shall be released, allowing it to move forward under the impetus of the recoil spring, and an empty magazine shall be inserted. For both pistols and revolvers, the weapon shall be placed in a drop fixture capable of dropping the pistol from a drop height of 1m + 1cm (39.4 + 0.4 in.) onto the largest side of a slab of solid concrete having minimum dimensions 7.5 X 15 X 15 cm (3 X 6 X 6 in). The drop distance shall be measured from the lowermost portion of the weapon to the top surface of the slab. The weapon shall be dropped from a fixture and not from the hand. The weapon shall be dropped in the condition that it would be in if it were dropped from a hand (cocked with no manual safety applied). If the design of a pistol is such that upon leaving the hand a "safety" is automatically applied by the pistol, this feature shall not be defeated. An approved drop fixture is a short piece of string with the weapon attached at one end and the other end held in an air vise until the drop is initiated.
The following six drops shall be performed:
(a) Normal firing position with barrel horizontal.
(b) Upside down with barrel horizontal.
(c) On grip with barrel vertical.
(d) On muzzle with barrel vertical.
(e) On either side with barrel horizontal.
(f) If there is an exposed hammer or striker, on the rearmost point of that device, otherwise on the rearmost point of the weapon.
The primer shall be examined for indentations after each drop. If indentations are present, a fresh primed case shall be used for the next drop.
The handgun shall pass this test if each of the three test guns does not fire the primer.
[Section 12129 is requirements for manufacturers, importers and dealers to certify something as a condition of doing business.]
12129. Every person who is licensed as a manufacturer of firearms pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code who manufactures firearms in this state, and every person who imports into the state for sale, keeps for sale, or offers or exposes for sale any firearm, shall certify under penalty of perjury and any other remedy provided by law that every model, kind, class, style, or type of pistol, revolver, or other firearm capable of being concealed upon the person that he or she manufactures or imports, keeps, or exposes for sale is not an unsafe handgun as prohibited by this chapter.
[Section 12130 is the requirement that concealable guns be tested and that the DOJ certify labs for testing.]
12130. (a) Any pistol, revolver, or other firearm capable of being concealed upon the person manufactured in this state, imported into the state for sale, kept for sale, or offered or exposed for sale, shall be tested within a reasonable period of time by an independent laboratory certified pursuant to subdivision (b) to determine whether that pistol, revolver, or other firearm capable of being concealed upon the person meets or exceeds the standards defined in Section 12126.
(b) On or before July 1, 2000, the Department of Justice shall certify laboratories to verify compliance with the standards defined in Section 12126. The department may charge any laboratory that is seeking certification to test any pistol, revolver, or other firearm capable of being concealed upon the person pursuant to this chapter a fee not exceeding the costs of certification.
(c) The certified testing laboratory shall, at the manufacturer's or importer's expense, test the firearm and submit a copy of the final test report directly to the Department of Justice along with a prototype of the weapon. The department shall notify the manufacturer or importer of its receipt of the final test report and the department's determination as to whether the firearm tested may be sold in this state.
[Section 12131 is requirement that DOJ maintain a roster of the guns that can be sold in the state because they have been proven "safe."]
12131. (a) On and after January 1, 2001, the Department of Justice shall compile, publish, and thereafter maintain a roster listing all of the pistols, revolvers, and other firearms capable of being concealed upon the person that have been tested by a certified testing laboratory, have been determined not to be unsafe handguns, and may be sold in this state pursuant to this title. The roster shall list, for each firearm, the manufacturer, model number, and model name.
(b) The department shall include on the roster any pistol, revolver, or other firearm capable of being concealed upon the person listed as a curio or relic, as defined in Section 178.11 of Title 27 of the Code of Federal Regulations.
(c) (1) The department may charge every person in this state who is licensed as a manufacturer of firearms pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code, and any person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, or offers or exposes for sale any pistol, revolver, or other firearm capable of being concealed upon the person in this state, an annual fee not exceeding the costs of preparing, publishing, and maintaining the roster pursuant to subdivisions (a) and (b).
(2) Any pistol, revolver, or other firearm capable of being concealed upon the person that is manufactured by a manufacturer who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, or offers or exposes for sale any pistol, revolver, or other firearm capable of being concealed upon the person in this state, and who fails to pay any fee required pursuant to paragraph (1), may be excluded from the roster.
[Section 12132 is some exemptions from 12125-12133.]
12132. This chapter shall not apply to any of the following:
(a) The transfer of any firearm pursuant to Section 12082 or 12084 in order to comply with subdivision (d) of Section 12072.
(b) The transfer of any firearm between immediate family members that is exempt from the provisions of subdivision (d) of Section 12072 pursuant to subdivision (c) of Section 12078.
(a) The sale, loan, or transfer of any firearm pursuant to Section 12082 or 12084 in order to comply with subdivision (d) of Section 12072.
(b) The sale, loan, or transfer of any firearm that is exempt from the provisions of subdivision (d) of Section 12072 pursuant to any applicable exemption contained in Section 12078, if the sale, loan, or transfer complies with the requirements of that applicable exemption to subdivision (d) of Section 12072.
(c) The sale, loan, or transfer of any firearm as described in paragraph (3) of subdivision (b) of Section 12125.
[THE ABOVE CHANGES WERE ONLY CLARIFICATION. THE NEW "(c)" IS JUST THE LAW ENFORCEMENT EXEMPTION IN THE FIRST PART OF THIS PROPOSED STATUTE.]
[Section 12133 is exemptions from the entire proposed statute (chapter).]
12133. The provisions of this chapter [(12125-12133)]shall not apply to a single-action revolver that has at least a five-cartridge capacity with a barrel length of not less than three inches, and meets any of the following specifications:
(a) Was originally manufactured prior to 1900 and is a curio or relic, as defined in Section 178.11 of Title 27 of the Code of Federal Regulations.
(b) Has an overall length measured parallel to the barrel of at least seven and one-half inches when the handle, frame or receiver, and barrel are assembled.
(c) Has an overall length measured parallel to the barrel of at least seven and one-half inches when the handle, frame or receiver, and barrel are assembled and that is currently approved for importation into the United States pursuant to the provisions of paragraph (3) of subsection (d) of Section 925 of Title 18 of the United States Code.
SEC. 2. It is the intent of the Legislature that the Department of Justice pursue an internal loan from special fund revenues available to the department to cover startup costs for the program established pursuant to Section 1 of this act. Any loan shall be repaid with the proceeds of fees collected under that program within six months.
SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless otherwise specified, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution.
2. New 12125(b)(3) would exclude police, etc. from the ban for those handguns that are "unsafe" only because they are too small.
3. New 12125(c) would make each "unsafe handgun" a separate count.
4. New 12126 defines "unsafe handgun." The definitions include some size requirements, safety device reqts, and two test reqts. Subsection (a) is for revolvers; (b) is for pistols (semiauto handguns). Note that, although the initial sentence includes "or other firearm capable of being concealed upon the person," no definition is included for anything other than a pistol (semiauto handgun) or revolver.
5. New 12127 is the "firing test" requirement applicable to pistols and revolvers. Subsection (a) requires test by an independent lab certified by the Attorney General. It requires the mfr to submit to such lab three units exactly like those he proposes to sell in the state, and of the same "make" and "model," and pay for the testing. No relief is stated for guns that differ only in certain minor respects (like finish, grips or sights). No relief is specified for mfrs/importers having already acquired equivalent or even more stringent testing, even if to meet requirements of the federal govt or another state. So, a mfr or importer could very likely have to buy different tests to satisfy every state (or city) that makes such a law.
The subsection requires firing of 600 rounds, with 5-10 minute pauses for cooling after each 50 rounds, and requires cleaning and screw-tightening after each 100 rounds.
6. New 12127(b) requires testing from the beginning if a pistol or revolver fails due to faulty ammo or faulty magazine. It tries to allow a fresh unit to be used for the retest, but mistakenly allows "a new model."
7. New 12127(c) defines "malfunction" for purposes of the test. It includes a pistol's slide not remaining open after the last bullet in the magazine is fired.
8. New 12128 gives the requirements for the "drop safety" test. It requires the same lab to subject the same handgun to this test. Basically, the test consists of dropping the handgun with a primed case in the chamber a height of 1 meter in each of 6 different orientations. It must be dropped on a slab of concrete of a specified minimum size (3x6x6 inches).
9. New 12129 requires the manufacturer, importer, and seller all to "certify under penalty of perjury and any other remedy provide by law that every model, kind, class, style, or type of pistol, revolver, or other firearm capable of being concealed upon the person... is not an unsafe handgun as prohibited by this chapter" even though 12130 later requires that the DOJ notify the mfr or importer as to whether the firearm may be sold in the state. This could be a problem because it makes these people responsible for ensuring that their guns pass the two tests even though the state would be requiring the tests to be performed by labs it certifies. It also raises again the question as to what differences might be considered insignificant. It would be most probable that even the slightest difference would require separate test.
10. New 12130(a), strictly speaking, requires every individual pistol, revolver or firearm capable of being concealed upon the person made, imported, of offered for sale in the state to be tested to determine if the gun meets or exceeds the standards stated in the "unsafe handgun" definition. This is presumably intended to apply only to different models rather than each individual handgun. Even so, the sentence requires testing of firearms "capable of being concealed upon the person" even though the "unsafe handgun" definition doesn't say anything about standards for other than pistols and revolvers. In effect, it would require submission of a derringer to the lab so the lab could say the standard says nothing about such guns.
11. New 12131 has provisions for the DOJ to maintain and distribute a roster of the "good" guns. Mfrs, importers & dealers are charged annually for the cost to maintain the roster.
12. New 12132 provides that private party transfers (via dealers) are exempt. Note that this would leave sale of used handguns by dealers virtually impossible unless the dealer functioned as a private party buying from a private party, then selling to another private party. Dealers would likely have some problem doing this, such as running into some kind of transaction frequency limit.
13. New 12133 includes an exemption for single action revolvers meeting certain requirements.