SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2011-2012 Regular Session
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SB 1569 (Fuller)
As Introduced February 24, 2012
Hearing date: April 24, 2012
Penal Code
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FIREARMS:
REDUCING WAITING PERIOD TO 72-HOURS
HISTORY
Source:
National Rifle Association and the California Rifle and Pistol Association
Prior Legislation: SB 671 (Lewis) – Chap. 128, Stats. of 1996
Support:
Unknown
Opposition: Brady Campaign Against Gun Violence; California Probation, Parole and
Correctional Association; California State Sheriffs’ Association; California Police
Chiefs Association; Legal Community Against Violence;
KEY ISSUE
SHOULD THE WAITING PERIOD BETWEEN THE TIME A FIREARM IS PURCHASED
AND WHEN THE DEALER MAY DELIVER IT TO THE BUYER BE SHORTENED FROM
10 DAYS TO 72 HOURS?
PURPOSE
The purpose of this bill is to shorten the waiting period between the time a firearm is
purchased and when the dealer may deliver it to the buyer from 10 days to 72 hours.
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Existing federal law requires licensed firearms dealers, before they may deliver a firearm to a
purchaser, to perform a background check on the purchaser through the federal National Instant
Criminal Background Check System (“NICS”). (18 U.S.C §§ 921, et seq.)
Existing law requires all sales, loans, and transfers of firearms to be processed through or by a
state-licensed firearms dealer or a local law enforcement agency. (Penal Code § 27545.)
Existing law provides that there is a 10-day waiting period when purchasing a firearm through a
firearms dealer. During which time, a background check is conducted and, if the firearm is a
handgun, a handgun safety certificate is required prior to delivery of the firearm. (Penal Code §§
26815, 26840(b) and 27540.)
This bill would shorten the waiting period between the time a firearm is purchased and when the
dealer may deliver it to the buyer from 10 days to 72 hours.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
(“ROCA”)
In response to the unresolved prison capacity crisis, since early 2007 it has been the policy of the
chair of the Senate Committee on Public Safety and the Senate President pro Tem to hold
legislative proposals which could further aggravate prison overcrowding through new or
expanded felony prosecutions. Under the resulting policy known as “ROCA” (which stands for
“Receivership/Overcrowding Crisis Aggravation”), the Committee has held measures which
create a new felony, expand the scope or penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the prison overcrowding crisis by
expanding the availability or length of prison terms (such as extending the statute of limitations
for felonies or constricting statutory parole standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011 Public Safety Realignment)
which may be punishable in jail and not prison (Penal Code section 1170(h)) would be subject to
ROCA because an offender’s criminal record could make the offender ineligible for jail and
therefore subject to state prison. Under these principles, ROCA has been applied as a contentneutral, provisional measure necessary to ensure that the Legislature does not erode progress
towards reducing prison overcrowding by passing legislation which could increase the prison
population. ROCA will continue until prison overcrowding is resolved.
For the last several years, severe overcrowding in California’s prisons has been the focus of
evolving and expensive litigation. On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern District of California established a
Receivership to take control of the delivery of medical services to all California state prisoners
confined by the California Department of Corrections and Rehabilitation (“CDCR”). In
December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit
on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12,
2010, a three-judge federal panel issued an order requiring California to reduce its inmate
population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000
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inmates -- within two years. The court stayed implementation of its ruling pending the state’s
appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel
in its entirety, giving California two years from the date of its ruling to reduce its prison
population to 137.5 percent of design capacity, subject to the right of the state to seek
modifications in appropriate circumstances. Design capacity is the number of inmates a prison
can house based on one inmate per cell, single-level bunks in dormitories, and no beds in places
not designed for housing. Current design capacity in CDCR’s 33 institutions is 79,650.
On January 6, 2012, CDCR announced that California had cut prison overcrowding by more than
11,000 inmates over the last six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the inmate population in California’s 33
prisons must be no more than the following:
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167 percent of design capacity by December 27, 2011 (133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
The original rationale behind the ten-day waiting period for firearms purchases in
California was twofold:
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To provide a firearms retailers an opportunity to do a thorough
background check on the purchaser through the California Department of
Justice, and the National Instant Criminal Background Check System
(NICS) before relinquishing possession of the firearm and,
To provide the purchaser with a “cooling off” period, in case the purchaser
might be purchasing the firearm in a fit of rage that would pose a threat to
his or her safety and that of others.
The State currently faces a lawsuit in federal court over the State’s waiting period
procedures in Silvester v. Harris. While the basis of that lawsuit is focused on the
logic of a waiting period for existing gun owners, the litigants in Silvester v.
Harris note that representatives of the State Department of Justice indicated when
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SB 950, (Chapter 944 of 2001) was approved, the Department of Justice would be
supportive of an additional reduction in the waiting period at some point. In
addition to other provisions, SB 950 required a current statewide database of all
residents who are prohibited by state or federal law from owning or possessing
firearms. In light of this database and given the technological advancements since
1996 when the current waiting period was dropped from 15 days to 10, it seems
needless to make a firearms purchaser wait 10 days before being allowed to
possess their legally purchased firearm.
If for no other reason than to avoid additional litigation, the State should reexamine the need for a 10-day waiting period.
While some disagree, the fact remains that firearms ownership in the United
States is still a right granted under the 2nd amendment to the Constitution. This
right has been upheld by the Supreme Court as recently as 2010 in the McDonald
v. Chicago landmark decision. And, As Dr. Martin Luther King once said, “a
right delayed is a right denied.”
2. Background Checks, State and Federal
Both state and federal law require licensed firearms dealers to perform background checks on
prospective firearms purchasers before the weapon may be delivered, to determine whether the
purchaser falls into a category of persons prohibited by law from purchasing or possessing
firearms. However, the background checks performed in California are, according to the state
Department of Justice (DOJ), more extensive than those performed by the federal NICS
background check.
The Federal National Instant Criminal Background Check System (“NICS”)
The Brady Handgun Violence Prevention Act of 1993 originally imposed a five-day waiting
period on handgun purchases for law enforcement to review the background of a prospective
purchaser. The five-day waiting period has now been replaced with an instant check system,
which can be extended to three days when the results of the check are not clear. (18 U.S. C. §
921, et seq.) If the firearms dealer has not been notified within three business days that the sale
would violate federal or state laws, the sale may proceed by default. (18 U.S.C. § 922(t)(1).)
In complying with federal firearms background check requirements (the “Brady Act”), states
have the option of serving as a state Point of Contact (“POC”) and conducting their own NICS
checks, or having those checks performed by the Federal Bureau of Investigation (FBI). FBI
checks are provided at no charge; state law determines the cost of background checks performed
by the state (POC).
A licensed firearms dealer initiates a NICS check by contacting the FBI or state POC (typically
by telephone or computer) after the prospective purchaser has provided a government-issued
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photo I.D. and completed a federal Firearms Transaction Record. (27 Code of Fed.Regs. §
478.124(c)(4).) The FBI or POC must then conduct a name-based search of federal and state
databases. FBI searches include three federal databases:
 The National Crime Information Center (NCIC), which includes records regarding
wanted persons (fugitives) and persons subject to protective/restraining orders;
 The Interstate Identification Index, which contains state criminal history records; and
 The NICS Index, which contains records of other persons prohibited under federal law
from receiving or possessing firearms.
(Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S.
Department of Justice, National Instant Criminal Background Check System (NICS) Operations
2010, at page 1.)
Once the initial search is complete, the FBI or POC notifies the dealer that the sale: 1) may
proceed; 2) may not proceed; or 3) is delayed pending further investigation. The NICS check is
valid for a single transaction for up to 30 calendar days from the date NICS was initially
contacted. (27 Code of Fed.Regs. § 478.102(c).) The 30-day period covers only a single
transaction. The transaction may, however, involve the transfer of multiple firearms.
As noted above, if the initial NICS check does not come back “clean,” but the reason for that
cannot be determined within 3 days, the firearms dealer, the sale may proceed by default. (18
U.S.C. § 922(t)(1).) As a result of these “approvals by default,” in 2010, the NICS Section
referred 2,955 cases to the federal Bureau of Alcohol Tobacco and Firearms to retrieve firearms
that were sold to persons later determined to be prohibited. (Criminal Justice Information
Services Division of the Federal Bureau of Investigation, U.S. Department of Justice, National
Instant Criminal Background Check System (NICS) Operations 2010, at page 15.) No
information is available to determine how successful federal law enforcement authorities were in
retrieving those firearms.
Background Checks in California
According to DOJ:
All firearm purchaser-related background checks properly submitted by dealers through the DOJ
Dealer Record of Sale (DROS) Entry System initiate a CA Basic Firearms Eligibility Check
(BFEC). This process includes name-based checks (not fingerprint based checks) for records in
the following state/federal databases:
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California Automated Criminal History System (ACHS);
California Restraining and Protective Order System (CARPOS);
California Wanted Persons System (WPS);
California Mental Health Firearms Prohibition System (MHFPS);
California Department of Motor Vehicles (DMV) for ID validation;
The federal Interstate Identification Index (III) database;
Federal National Crime Information Center (NCIC) database;
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Federal National Instant Criminal Background Check System (NICS); and
Federal Immigration Customs and Enforcement (ICE) database.
In addition to checking databases that the federal NICS does not check, and tracking down
information that is not automated, unlike the federal NICS check, if DOJ is unable to receive
complete information in connection with the background check within the 10-day waiting period
has run, according to DOJ, they will instruct the firearms dealer not to release the firearm to the
purchaser until they have resolved the issue and determined that the purchaser is not a prohibited
person.
3. What This Bill Would Do
This bill would shorten the waiting period in California to take possession of a firearm from 10
days to 72 hours. The issue this raises is whether, given the type of background checks that are
conducted in California, 72 hours is sufficient to adequately determine that the buyer is legally
entitled to possess a firearm. Aside from giving law enforcement the opportunity to conduct
background checks, the other rationale for a waiting period is to give the buyer a chance to “cool
off” in the event they are trying to obtain a gun in an emotionally-charged state of mind that may
be tempered with the passage of time. This bill raises the issue whether 72 hours is long enough
to accomplish a “cooling off” under those circumstances.
4. Statement in Opposition
The Brady Campaign Against Gun Violence states:
There are two important reasons why this proposal is bad public policy and
should be rejected by the legislature.
First, based on our conversations with personnel at the Bureau of Firearms, who
are responsible for performing background checks, it often takes a full 10 days to
perform a complete and thorough records check, particularly in case of first time
purchasers. In other states where a three day waiting period is in place, if the
background checking authority is unable to complete their work in three days, the
dealer is required to turn over the firearm to the purchaser without the check
having been completed. A shorter waiting period significantly increases the
probability that a firearm may be sold or given to a person who is otherwise
prohibited from purchase or possession.
The second, and perhaps the more important, reason for maintaining a 10 day
waiting period is that it provides a “cooling off period”. Often, crimes are
committed in the heat of passion and the period of time between application for a
firearm and final possession allows for emotions to subside. Many in the law
enforcement community view the waiting period as a way of saving lives and is
therefore in interest of public safety.
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