DEPARTMENT OF JUSTICE Division of Law Enforcement Bureau of Firearms

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Division of Law Enforcement
      Bureau of Firearms

2007 Legislative Update – What’s New?
Law Enforcement Gun Release – How is it going?
Law Enforcement Confiscation and Release of
 Firearms/Dangerous Weapons
Mental Health and Domestic Violence Confiscation
 and Release Protocol
Automated Firearm System Overview/Crime Guns
                     Programs & Services

   Firearms Licensing and Permits
   Automated Firearms System/Crime Gun
   Firearms Eligibility Clearances
   Firearms Dealer & Manufacturer Inspections
   New Firearms Laws Implementation
   Firearms Laws Training
   Armed Prohibited Persons Enforcement

   New Firearm Laws Summary

Legislative Bill Room (916)445-2323
            Assembly Bill 2129
   Existing Law: The courts are mandated to issue protective
    order that includes a firearm prohibition if good cause
    exists. Relinquishment of any firearms owned or
    possessed by subject is required. (1/1/2006)

   AB 2129: Requires a person who is served with a
    temporary restraining order or injunction to surrender
    firearms within 24 hours without regard as to whether the
    person is present in court.

   Requires subject of temporary restraining order or
    injunction to present a surrender receipt to the court within
    48 hours of being served.
         Law Enforcement Gun
           Release (LEGR)
 Became effective January 1, 2005 - PC 12021.3
 Requires a person to submit a LEGR directly to DOJ prior
  to the return of the firearm by a LE agency

 $20 DOJ Processing Fee to applicant
 $3 For each additional handgun
 DOJ fee is waived if it is determined the firearm is stolen
  prior to the agency taking custody of it

   Local authorities may charge an additional administrative
    fee for storage of the firearms if authorized by local
    ordinance, regulation, or resolution. ($$$$)
           LEGR (continued)

   LEA cannot return a firearm to an individual
    unless a DOJ gun release letter with gold
    seal is presented to the LEA.

   LEA must verify via AFS that the firearm is
    not stolen.

   Handguns are recorded by DOJ in AFS in
    the individual’s name who seeks the return.
           LEGR (continued)
   If the person is prohibited from firearms, do
    not return the firearm despite any court
    order to do so!

   Prohibited person may sell/transfer
    firearms to a 12071 PC licensed firearms

   Forward prohibited person/firearm
    information to the prosecuting agency.
           LEGR (continued)
   Disposition of Firearms-Pursuant to PC 12028

      – Record purpose in AFS – For Official Use Only

    – DESTRUCTION - After 180 days notice or court order



               WHAT DOES DOJ DO?
   Automated Firearm System - Stolen Handguns
   DMV Records - Driver’s License or State Identification for
    Positive Identification
   Criminal History –Felony convictions/certain
    misdemeanors (12021/12021.1 PC)
   Mental Health Files – certain mental health commitments
    (8100 or 8103 WIC pursuant to 8102 WIC)
   Wanted Persons System
   Restraining Order System
   NICS Criteria – federal databases - military/immigration
   Register the handguns for agency verification
Firearm Confiscation &
  Release of Firearms
 Dangerous Weapons

–   What is a “dangerous weapon”?
–   What is an “assault weapon”?
–   Should it be destroyed?
–   Protocol?
Confiscation of Firearms
    Protocol Forms
   Peace Officer Quick Reference Guide
   Firearms Receipt and Notice of Rights
   Law Enforcement Agency Checklist
   Prosecutor Checklist
   Court Checklist

   All protocol forms are available for download by
    the LEA on CLEW in PDF format.

   The Law Enforcement Gun Release application
    and No Longer in Possession forms are available
    on Firearms Division website.
       Confiscation & Release
   Any firearm owned/possessed in violation of :

    – PC 12021, PC 12021.1 (felony & qualifying 10 year
      prohibiting misdemeanor convictions)
    – W&I 8103 (mental health prohibitions)
    – PC12101 (minors)

   Any firearm used in the commission/attempted
    commission of a misdemeanor or felony (juvenile included)
    Confiscation & Release
   Conviction required (or adjudication in Juvenile
    Court) – Can be based on “guilty” or “no contest
    plea” after a jury trial

   Based on crime involving use of a firearm

   True finding of a firearm enhancement following a
    conviction of another crime
    Confiscation & Release
   Contraband
     – Can not be sold to the public
     – Must be destroyed
     – No court order needed for destruction

   Non-Contraband
     – Court order necessary
     – Can be sold once a year to 12071 PC licensed
       Domestic Violence
         Mental Health

The question is to release or not to release?
           Mental Health
Who Qualifies?
 Person detained/apprehended for
  examination of their mental condition
 Person described in Section 8100 or 8103

 Who owns/has in their possession or control
 Any firearm or other deadly weapon

   The weapon shall be confiscated by law
             Mental Health
            Who is prohibited?
   5 Year prohibition
    – 5150 WIC - Taken into custody
    – 5151 WIC – Assessed and evaluated AND
    – 5152 WIC – Admitted to the mental health facility

   Lifetime prohibition
    – 5250 WIC - 14 day certifications
    – 5350 WIC - 30 day certifications
    – Conservatorship by court order
              Mental Health
   LEA taking possession has 30 days to initiate
    a petition to Superior Court for a hearing to
    determine if returning the firearm would likely
    endanger person/others

   Time extension possible – but request must
    be filed within 60 days after subject’s release

   LEA must notify subject of the necessity to
    contact court clerk to schedule a hearing.
           Mental Health
 – LEA may file petition for order of default

    – LEA must prove (preponderance of the
      evidence) subject would NOT be likely to
      use the firearm in a safe/lawful manner

    – If returned – LEGR still applies
            Tarasoff Reporting
              8100(b) WIC
 Person who communicates to a licensed
  psychotherapist a serious threat of physical
  violence against a reasonably identifiable victim
 Psychotherapist reports to law enforcement
 Law Enforcement reports to DOJ -
 DOJ notifies individual by certified mail of six-
  month firearms prohibition
 Call DOJ for Tarasoff Report Forms

   To determine a person’s eligibility to purchase and/or
    possess firearms
   For law enforcement purposes only if the person is
    subject to a criminal investigation that involves
    ownership, possession, control, receipt, carrying, or
    purchase of firearms
   Released for superior court proceedings for reinstatement
    of firearm rights
   Over one million records in the system
   CJIS data base – inquiry only access via CLETS by name
       Domestic Violence

   Firearm must be held at least 48 hours

   Firearms must be available for release
    within 5 days – then owner must submit
    LEGR letter to LEA for release

   LEA apply for an ex parte order to retain
    firearm longer if return of the firearm is
    likely to endanger victim/reporting person
       Domestic Violence

   Ex parte order must be filed within 60 days
    of possession (up to 90 days with good

   LEA must notify subject via registered
    mail of the necessity to contact the court
    clerk to schedule a hearing
               Domestic Violence
   If No Response/Request
     – Nuisance by default

   If Response/Request
     – Court shall set a hearing no later than 30 days from the
        date of request

    – Court shall order firearm returned (unless shown return
      of the firearm is likely to endanger victim/reporting
      party or restraining order is in effect)

    – If court does not order the return
           Subject has right to second hearing in 12 months
         11108 PC
Entry of Firearms into AFS
Why is this so Important?
Automated Firearms
   The law (11108 PC) requires firearms in the
    custody of a law enforcement agency as stolen,
    lost, found, recovered, held for safekeeping, or
    under observation shall be entered into AFS.

   11108 PC: Reports of serialized property stolen, lost, found, recovered, or under
    observation; stolen non-serialized property. Each Sheriff or Police Chief executive
    shall submit descriptions of serialized property which has been reported stolen, lost,
    found, recovered, or under observation, directly into the appropriate Department of
    Justice Automated Property System for firearms, stolen bicycles, stolen vehicles, or
    other property, as the case may be. Reports of non-serialized property which has
    unique characteristics or inscriptions permitting accurate identification shall be sent
    by each Sheriff or Police Chief Executive directly to the Special Services Section of
    the Department of Justice by letter or teletype.
          What Happens?
   Some search warrants are supported on
    probable cause information received from
    you and/or via AFS.

   Possible Ramifications:
    – Search warrant is signed by judge.
    – No firearms are recovered because they are in
      your agency’s custody but not entered into
    – There may be LEA civil and individual officer
      punitive damage liability attached, especially if
      there are any personal injury and/or property
      damages claimed!
       AFS Requirements
   Records entered into AFS must contain
    supporting documentation for all data fields and
    be based on master case record maintained by
    the agency.

   The master case record must be available at all
    times to verify an AFS hit promptly. CJIS policy
    requires the agency to:

    – Respond to the inquiring agency within 10 minutes
    – Provide 24-hour/7days a week coverage to ensure that
      10 minute confirmation
         AFS Records and
         Retention Periods
   Stolen – Indefinite
   Evidence – 10 years
   Found – Indefinite
   Lost – Indefinite
   Safekeeping – Indefinite
   Crime Gun – 10 years
   Institutional Registration – Indefinite
   Under Observation – Indefinite
   Retain for Official Use – Indefinite
   Destroyed - Indefinite
    Historical Records and
      Retention Periods
 Assault Weapon Registration* - Indefinite
 Buy – Indefinite
 Consignment – 3 years
 Dealer’s Record of Sale (DROS)* - Indefinite
 CCW License* - Varies
 Pawn – 3 years-Indefinite
 Pawn Redemption – 3 years
 Sold @ Auction – 3 years
 New Resident Report* - Indefinite
   Historical Records and
Retention Periods (continued)
   C & R Collector’s Report* - Indefinite
   Voluntary Registration/Firearm Ownership*
     – Indefinite
   Operation of Law* - Indefinite
   Serial Number Assigned* - Indefinite
   Serial Number Restored* - Indefinite
   No Longer Owned* - Indefinite

  *Entered by DOJ
                Crime Guns
  •   LEAs shall report to DOJ, all available
      information necessary to identify and
      trace the history of all recovered firearms:

      • Illegally possessed
      • Used in a crime
      • Suspected of being used in a crime

Note: If firearm appears to be involved in suicide
or attempted suicide – enter as a crime gun.
         Firearm Tracing
   The systematic process of tracking the
    history of a firearm from:
     – point of manufacture
     – through a wholesaler
     – through the retail chain of custody
     – to the original retail purchaser.

• A Trace is initiated via a Crime Gun Record
  entry in the AFS.

• DOJ forwards this information to the National
  Tracing Center. (8-10 days for routine trace)
Obliterated Serial Number

    Guns with obliterated serial numbers must
    be routinely traced by law enforcement
    agencies. There is a STRONG possibility
    of raising at least a partial serial number in
    most cases. Obliterated serial numbers
    are the single strongest indicator of
    firearms trafficking!             11108.9 PC

  Information Bulletin: 99-BFS-04
  DOJ-CA Criminalistics Institute (916) 227-3575
      AFS Assistance
        Phone 916 227-3589
        Fax   916 227-3530
•   Data Base
•   Stolen Hits from DROS
•   10 minute Hit Confirmations
•   Off Line Searches
•   Certifications/Subpoenas
   FAQs or E-Mail DOJ direct
   Information Bulletins
   On-Line Forms and Publications
   Regulations
   Assault Weapon Guide
   2006 California Firearms Laws Booklet
   Full Text of Dangerous Weapons Laws
     – View On-Line or Download
 Firearms Information Line

Telephone: 916.263.4887