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AB-2358 Firearms: return of custody.(2019-2020)

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Date Published: 02/18/2020 09:00 PM
AB2358:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2358


Introduced by Assembly Member Petrie-Norris

February 18, 2020


An act to amend Sections 33850, 33855, 33865, and 33870 of the Penal Code, relating to firearms.


LEGISLATIVE COUNSEL'S DIGEST


AB 2358, as introduced, Petrie-Norris. Firearms: return of custody.
(1) Existing law requires a person who claims title to a firearm that is in the custody of a court or law enforcement agency and wishes to have it returned to make an application for a determination by the Department of Justice as to whether the applicant is eligible to possess a firearm. Existing law requires the application to be submitted via the California Firearms Application Reporting System (CFARS). Existing law requires the application to provide the firearm’s make, model, caliber, barrel length, type, country of origin, and serial number, identification number, or identification mark. If the firearm is not a handgun and does not have a serial number, identification number, or identification mark, existing law requires that the application have a place to note that fact.
This bill would delete the provisions for noting a firearm that is not a handgun and does not have a serial number, identification number, or identification mark, and would instead require the application to have a place to note that the firearm is an antique and does not have a serial number, identification number, or identification mark. The bill would require an applicant for the return of a firearm to establish a CFARS account and to advise the department whether the firearm is self-manufactured, self-assembled, an antique, or if the firearm was made or assembled prior to December 16, 1968, and is not a handgun. The bill would allow the department to request photos from the law enforcement agency that has custody of the firearm in an effort to assist in the evaluation of the weapons legality. By imposing additional duties on local law enforcement agencies, this bill would impose a state-mandated local program.
(2) Existing law requires an agency or court that has direct access to the Automated Firearms System (AFS) to verify that a firearm subject to an application for return is not listed as stolen and that firearm has been recorded in the name of the individual who seeks its return.
This bill would delete that provision and would instead prohibit the Department of Justice from processing an application to determine the applicant’s eligibility to possess a firearm until the firearm has been accurately entered into the AFS by the law enforcement agency that has custody of the weapon. By imposing additional duties on local law enforcement agencies, this bill would impose a state-mandated local program.
(3) If a law enforcement agency determines that an applicant is the legal owner of a firearm deposited with the agency and that the applicant is prohibited from possessing a firearm, existing law requires, if the firearm is otherwise legal, that the applicant be entitled to sell or transfer the firearm to a licensed dealer.
This bill would prohibit a law enforcement agency from causing or allowing a firearm to be dismantled or altered so that the firearm is no longer an illegal firearm in order to release the firearm to the owner.
(4) 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 33850 of the Penal Code, as added by Section 10 of Chapter 780 of the Statutes of 2018, is amended to read:

33850.
 (a) Any person who claims title to any firearm, ammunition feeding device, or ammunition that is in the custody or control of a court or law enforcement agency and who wishes to have the firearm, ammunition feeding device, or ammunition returned shall make application for a determination by the Department of Justice as to whether the applicant is eligible to possess a firearm, ammunition feeding device, or ammunition. The application shall be submitted electronically via the California Firearms Application Reporting System (CFARS) and Each applicant shall establish a California Firearms Application Reporting System (CFARS) account and submit the application via CFARS. The application shall include the following:
(1) The applicant’s name, date and place of birth, gender, telephone number, and complete address.
(2) Whether the applicant is a United States citizen. If the applicant is not a United States citizen, the application shall also include the applicant’s country of citizenship and the applicant’s alien registration or I-94 number.
(3) If the seized property is a firearm, the firearm’s make, model, caliber, barrel length, type, country of origin, and serial number, provided, however, that if the firearm is not a handgun an antique and does not have a serial number, identification number, or identification mark assigned to it, there shall be a place on the application to note that fact. The applicant shall also advise the department whether the firearm is self-manufactured, self-assembled, an antique, or if the firearm was made or assembled prior to December 16, 1968, and is not a handgun. The department may request photos from the law enforcement agency that has custody of the firearm in an effort to assist in the evaluation of the weapon’s legality.
(4) For residents of California, the applicant’s valid California driver’s license number or valid California identification card number issued by the Department of Motor Vehicles. For nonresidents of California, a copy of the applicant’s military identification with orders indicating that the individual is stationed in California, or a copy of the applicant’s valid driver’s license from the applicant’s state of residence, or a copy of the applicant’s state identification card from the applicant’s state of residence. Copies of the documents provided by non-California residents shall be notarized.
(5) The name of the court or law enforcement agency holding the firearm, ammunition feeding device, or ammunition.

(6)The signature of the applicant and the date of signature.

(7)

(6) Any person furnishing a fictitious name or address or knowingly furnishing any incorrect information or knowingly omitting any information required to be provided for the application, including any notarized information pursuant to paragraph (4), shall be guilty of a misdemeanor.
(b) A person who owns a firearm that is in the custody of a court or law enforcement agency and who does not wish to obtain possession of the firearm, and the firearm is an otherwise legal firearm, and the person otherwise has right to title of the firearm, shall be entitled to sell or transfer title of the firearm to a licensed dealer or a third party that is not prohibited from possessing that firearm. Any sale or transfer to a third party pursuant to this subdivision shall be conducted pursuant to Section 27545.
(c) A person who owns an ammunition feeding device or ammunition that is in the custody of a court or a law enforcement agency and who does not wish to obtain possession of the ammunition or ammunition feeding device, and the ammunition feeding device or ammunition is otherwise legal, shall be entitled to sell or otherwise transfer the ammunition feeding device or ammunition to a licensed firearms dealer or ammunition vendor or a third party that is not prohibited from possessing that ammunition feeding device or ammunition. Any sale or other transfer of ammunition to a third party pursuant to subdivision (b) shall be conducted through an ammunition vendor in accordance with the procedures set forth in Article 4 (commencing with Section 30370) of Chapter 1 of Division 10.
(d) Any person furnishing a fictitious name or address, or knowingly furnishing any incorrect information or knowingly omitting any information required to be provided for the application, including any notarized information pursuant to paragraph (4) of subdivision (a), is punishable as a misdemeanor.
(e) This section shall become operative on July 1, 2020.

SEC. 2.

 Section 33855 of the Penal Code, as added by Section 7.6 of Chapter 864 of the Statutes of 2018, is amended to read:

33855.
 A law enforcement agency or court that has taken custody of any firearm, ammunition feeding device, or ammunition shall not return the firearm, ammunition feeding device, or ammunition to any individual unless all of the following requirements are satisfied:
(a) The individual presents to the agency or court notification of a determination by the department pursuant to Section 33865 that the person is eligible to possess a firearm, ammunition feeding device, or ammunition. In the case of a firearm, the department shall not issue this determination unless and until the firearm has been accurately entered into the Automated Firearms System (AFS) pursuant to Sections 11108.2 and 33865 by the law enforcement agency that has custody of the weapon.

(b)If the seized property is a firearm and the agency or court has direct access to the Automated Firearms System, the agency or court has verified that the firearm is not listed as stolen pursuant to Section 11108.2, and that the firearm has been recorded in the Automated Firearms System in the name of the individual who seeks its return.

(c)

(b) If the firearm has been reported lost or stolen pursuant to Section 11108.2, a law enforcement agency shall notify the owner or person entitled to possession pursuant to Section 11108.5. However, that person shall provide proof of eligibility to possess a firearm pursuant to Section 33865.

(d)

(c) This section does not prevent the local law enforcement agency from charging the rightful owner or person entitled to possession of the firearm the fees described in Section 33880. However, an individual who is applying for a background check to retrieve a firearm that came into the custody or control of a court or law enforcement agency pursuant to Section 33850 shall be exempt from the fees in Section 33860, provided that the court or agency determines the firearm was reported stolen to a law enforcement agency prior to the date the firearm came into custody or control of the court or law enforcement agency, or within five business days of the firearm being stolen from its owner. The court or agency shall notify the Department of Justice of this fee exemption in a manner prescribed by the department.

(e)

(d) This section shall become operative on July 1, 2020.

SEC. 3.

 Section 33865 of the Penal Code, as added by Section 16 of Chapter 780 of the Statutes of 2018, is amended to read:

33865.
 (a) When the Department of Justice receives a completed application pursuant to Section 33850 accompanied by the fee required pursuant to Section 33860, it shall conduct an eligibility check of the applicant to determine whether the applicant is eligible to possess a firearm, ammunition feeding device, or ammunition.
(b) The department shall have 30 days from the date of receipt to complete the background check, unless the background check is delayed by circumstances beyond the control of the department. The applicant may contact the department via the California Firearms Application Reporting System (CFARS) to inquire about the reason for a delay.
(c) If the department determines that the applicant is eligible to possess the firearm, ammunition feeding device, or ammunition, the department shall provide the applicant with written notification that includes the following:
(1) The identity of the applicant.
(2) A statement that the applicant is eligible to possess a firearm, ammunition feeding device, or ammunition.
(3) If applicable, a description of the firearm by make, model, and serial number, provided, however, that if the firearm is not a handgun an antique and does not have a serial number, identification number, or identification mark assigned to it, that fact shall be noted.
(d) The department shall enter a law enforcement gun release record of the firearm into the Automated Firearms System (AFS), provided, however, that if the firearm is not a handgun an antique and does not have a serial number, identification number, or identification mark assigned to it, that fact shall be noted in AFS.
(e) If the department approves the application and the firearm is not registered or recorded in the applicant’s name at the time of the application and is not an assault weapon or prohibited firearm, the firearm shall automatically be recorded in the applicant’s name.

(e)

(f) If the department denies the application, and the firearm is an otherwise legal firearm, the department shall notify the applicant of the denial and provide a form for the applicant to use to sell or transfer the firearm to a licensed dealer.

(f)

(g) If the department denies the application, the applicant shall receive notification via CFARS from the department explaining the reason for the denial and information regarding the appeal process.
(h) The department shall not process any application received pursuant to this section unless and until the firearm has been accurately entered into the AFS pursuant to Section 11108.2 by the law enforcement agency that has custody of the weapon.

(g)

(i) This section shall become operative on July 1, 2020.

SEC. 4.

 Section 33870 of the Penal Code, as added by Section 18 of Chapter 780 of the Statutes of 2018, is amended to read:

33870.
 (a) If a law enforcement agency determines that the applicant is the legal owner of any firearm, ammunition feeding device, or ammunition deposited with the agency, that the applicant is prohibited from possessing any firearm, ammunition feeding device, or ammunition, and that the firearm, ammunition feeding device, or ammunition is otherwise legal, the applicant shall be entitled to sell or transfer the firearm, ammunition feeding device, or ammunition to a licensed firearms dealer, or licensed ammunition vendor, as applicable. If the property in the custody of the law enforcement agency is an illegal firearm, the law enforcement agency shall not, under any circumstances, cause or allow the firearm to be dismantled or altered so that the firearm is no longer an illegal firearm in order to release the firearm pursuant to this chapter. If a law enforcement agency determines that the applicant is prohibited from owning or possessing any firearm, ammunition feeding device, or ammunition and the prohibition will expire on a specific ascertainable date, whether or not that date is specified in a court order, the applicant shall be entitled to have the firearm, ammunition feeding device, or ammunition stored by a licensed firearms dealer or licensed ammunition vendor, as applicable, for the duration of the prohibition period pursuant to Section 29830.
(b) If the firearm, ammunition feeding device, or ammunition has been lost or stolen, it shall be restored to the lawful owner pursuant to Section 11108.5 upon the owner’s identification of the property, proof of ownership, and proof of eligibility to possess a firearm, ammunition feeding device, or ammunition pursuant to Section 33865.
(c) This section does not prevent the local law enforcement agency from charging the rightful owner of the property the fees described in Section 33880.
(d) This section shall become operative on July 1, 2020.

SEC. 5.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.