Difference between revisions of "The Safe Handgun List"

Latest revision as of 21:49, 7 January 2016

The California Roster of Handguns Certified for Sale

The Roster is a restriction on CA FFLs; they may not transfer off-Roster handguns to non-exempt buyers. This has nothing to do with new or used guns, it relates to who it is might be the seller.

The Roster does not apply to ownership or possession.

The Roster does not apply to handguns imported to California by people moving into the state.

The Roster does not apply to handguns transferred through the Private Party Transfer process, using an FFL.

The Roster does not apply to handguns transferred through the intrafamilial process or to inherited handguns.

History

The California Roster of Handguns Certified for Sale is sometimes called the "Safe Handgun List", because the establishing legislation, SB15 in 1999 referred to unsafe handguns.

Penal Code 32000 (was 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 shall be punished by imprisonment in a county
jail not exceeding one year.

Penal Code 32015 (was 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 part. The roster shall
list, for each firearm, the manufacturer, model number, and model
name.

The bill went into effect January, 2001. The author was Senator Richard G. Polanco (D-Los Angeles).

An Anecdote

Stephen Helsley, a senior DOJ official, tells this story:

A	Okay. Well, what triggered me on the handgun part of it
was -- as I'm prone to do, I'll tell you a little story. When the
unsafe handgun bill was being presented by Senator Roberti, I
came into the hearing room as Simon Hayes, who's chief counsel
for the Senate Public Safety Committee, was briefing him before
he presented the bill; had a copy of Gun Digest in his hand,
pointing to it, and when the discussion broke up, I went to Simon
and said, "What was the Senator doing?" He looked at his shoes
and they looked up at me and he said, "Senator Polanco asked me
what part of the gun the barrel was."

Now, he's the guy that wrote the unsafe handgun bill, said it had
to do with handguns blowing up and, of course, there's no test
for that in the law. 

There have been two major modifications since then: Senator Scott’s 2003 SB 489 for loaded chamber indicator/magazine disconnect, and Assembly Member Feuer’s 2007 AB 1471, microstamping.

AB 1471 has a 'bug':

... provided that the Department of Justice certifies that the
technology used to create the imprint is available to more than
one manufacturer unencumbered by any patent restrictions.

The sole known 'microstamping' provider, NanoMark Technologies (Todd Lizotte), has a patent on the process.

May 17, 2013 - CA-DOJ certifies microstamping as 'available'

The Department of Justice posted this file Information Bulletin 2013-BOF-03. With this certification, the microstamping becomes a required 'gating factor' for a handgun to be added to the Roster.

Other changes

2007-2008 bill AB 2235, Mr DeSaulnier's "owner-authorized handguns" bill, failed passage.

In the 2009-2010 session, Mr DeSaulnier (now in the Senate), showing remarkable persistence in a bad cause, introduced similar legislation regarding owner-authorized handguns - SB 697.

Process

A manufacturer or an importer (and ONLY those - 11 CCR § 4070 and § 4071) submits a handgun for testing. They must supply THREE copies of the gun to be tested, and pay a fee. (Penal Code 31905) Fees are set at Title 11 of the California Code of Regulations, Section 4072 (11 CCR 4072) at $200 per model to initially get on the Roster, and $200 per model per year to remain on the Roster.

The gun must pass a defined firing requirement (Penal Code 31905 (was 12127) ) and a drop safety test (Penal Code 31910 (was 12128)). It must also meet other requirements in effect at the time it is submitted for testing: as of May 17, 2013, a magazine disconnect and a loaded chamber indicator and 'microstamping' for semi-automatic handguns.

Once a tested gun is added to the Roster, a manufacturer may certify that additional models are different from the tested model only in ‘minor’ attributes:

32030 (was 12131.5.)    
(a) A firearm shall be deemed to satisfy the requirements of
subdivision (a) of Section 32015 if another firearm made by
the same manufacturer is already listed and the unlisted
firearm differs from the listed firearm only in one or more of
the following features:
  (1) Finish, including, but not limited to, bluing, 
chrome-plating, oiling, or engraving.
  (2) The material from which the grips are made.
  (3) The shape or texture of the grips, so long as the
difference in grip shape or texture does not in any way alter
the dimensions, material, linkage, or functioning of the
magazine well, the barrel, the chamber, or any of the
components of the firing mechanism of the firearm.
  (4) Any other purely cosmetic feature that does not in any
way alter the dimensions, material, linkage, or functioning of
the magazine well, the barrel, the chamber, or any of the
components of the firing mechanism of the firearm.

Each model must be individually added to the Roster and each requires the annual fee. It is entirely the choice of the manufacturer which models will be added to the Roster in this fashion.

See also California Administrative Code, Title 11, Section 4070(b)

(b) Within ten (10) days of the receipt of the initial annual
listing fee and a request from a manufacturer/importer to have
a handgun model added to the Roster pursuant to Penal Code
section 32030, the DOJ will determine whether the
handgun model may be listed without testing. After the
determination that the model may be listed, the DOJ will add
the handgun model to the Roster. The listing will be valid for
one year from the date the model was added to the Roster, and
shall be renewed as set forth in section 4071 of these
regulations.

Duration

Once a handgun is on the Roster, it can remain there, unchanged, so long as the responsible party continues to pay the annual fee. The expiration dates which appear in the Roster listings are the due dates for those fees.

Effective January 1, 2015, all 'due dates' have been changed to January 1 of the year; Penal Code 32015 (a) was amended to include

Commencing January 1, 2015, the annual fee shall be paid
on January 1, or the next business day, of every year.

The California Department of Justice may choose to retest handguns on the Roster (11 CCR § 4073), either randomly or with reason to believe there is a problem. Handguns which fail retesting are removed from the Roster. Testing criteria are the same as those used for original certification.

A manufacturer may occasionally allow the gun to lapse. California Code of Regulations (11 CCR § 4074) provides the submitter may request the gun be recertified (retested), and if the gun passes testing it may be returned to the Roster.

New Requirements

Amendments to the law so far have been written to include language such as

(5) Commencing January 1, 2007, for all center fire semiautomatic
pistols that are not already listed on the roster pursuant to
Section  12131, it does not have both a chamber load indicator and 
if it has a  detachable magazine, a magazine disconnect mechanism.

That is, if a pistol is already tested and listed on the Roster at the time new requirements become law, that pistol is NOT affected and does NOT need the new features or capabilities.

The Legislature may choose to write amendments to this law differently in the future.

Microstamping

"Microstamping", a requirement for a handgun to be added to the Roster, is listed in Penal Code 31910(b)(7)

(7) (A) Commencing January 1, 2010, for all semiautomatic
pistols that are not already listed on the roster pursuant to
Section 32015, it is not designed and equipped with a 
microscopic array of characters that identify the make, model,
and serial number of the pistol, etched or otherwise imprinted
in two or more places on the interior surface or internal
working parts of the pistol, and that are transferred by
imprinting on each cartridge case when the firearm is fired,
provided that the Department of Justice certifies that the
technology used to create the imprint is available to more
than one manufacturer unencumbered by any patent restrictions.

This was added by 2007's AB 1471.

As noted, the Department of Justice issued a memo asserting the 'technology' clause has been satisfied.

Effects

California FFLs may not transfer handguns which are not on the Roster unless the individual or guns or kind of transaction are listed as exceptions.

Current exceptions include:

1. peace officers with official identification;
2. gifts from out-of-state immediate family members (who are defined as parents, grandparents, children and grandchildren only; brothers and other familial relationships are not included);
3. curios and relics;
4. Olympic pistols listed in Penal Code 12132(h)(2);
5. private party transactions (PPT)Penal Code 12132(a) PPT is described in Penal Code 12082;
6. Single shot pistols that meet certain dimensional and other requirements in Penal Code 12133 (a) and (b) and described further below.
7. Single-action revolvers (basically any standard size single-action: Colt, Ruger, Uberti, etc) that fit the following criteria are exempt from the Roster (Penal Code 12133) described further below.

A note on 'just frames'

Occasionally a buyer wishes to customize a gun, starting from a frame and adding suitable parts, etc.

No 'just frames' are on the Roster; there are only complete handguns. In order to receive a frame, the transaction must be Roster-exempt

• intrafamilial
• Private Party Transfer
• buyer is exempt from the Roster

Other exempt transactions and conditions

No long guns are affected.

Handguns moved into the state by new residents are not affected by the Roster. (No transfer occurs; no interaction with FFLs is required.)

Transfers between immediate family members using the Operation of Law or Intrafamilial Handgun Transaction Report are not affected by the Roster. This procedure was established in 1994 with AB 2470.(No interaction with FFLs is required.)

Curio and Relic (C&R) handguns are exempt. Penal Code 32110(g)

Pawning and redeeming from pawn are not subject to the Roster. (Penal Code 32110(f))

Giving a handgun to a gunsmith for repair, and receiving that handgun back are exempt. (Penal Code 32110(d) and (e))

Certain Olympic-type competition pistols are exempted in the text of the statute, and supplemented in this list

Penal Code (PC) section 32105 exempts 
certain qualifying competitive Olympic pistols from the 'unsafe
handgun' provisions of Penal Code section 12125, et seq., and the
assault weapon provisions of Penal Code section 12275, et seq. In
addition to pistols specified in the statutes, the Department of
Justice (DOJ) is authorized to exempt pistols based on
recommendations from AUSA Shooting@ the national governing body for
international shooting competition in the United States. The Roster
of Exempted Olympic Competition Pistols established by the
Department of Justice pursuant to Section 5455 of Division 5 of
Title 11of the California Code of Regulations identifies all of the
Olympic pistols that are exempt from the "unsafe handgun" and
assault weapon provisions.

General government transactions are exempt (Penal Code 32000(b)(4):

The sale or purchase of any pistol, revolver or other firearm
capable of being concealed upon the person, if the pistol,
revolver, or other firearm is sold to, or purchased by, the
Department of Justice, any police department, any sheriff's
official, any marshal's office, the Youth and Adult
Correctional Agency, the California Highway Patrol, any
district attorney's office, or the military or naval forces of
this state or of the United States for use in the discharge of
their official duties.

Certain single-action revolvers and single shot handguns are exempt: Penal Code 32100:

(a) Article 4 (commencing with Section 31900) and Article 5
(commencing with Section 32000) 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:
  (1) Was originally manufactured prior to 1900 and is a curio or
relic, as defined in Section 478.11 of Title 27 of the Code of
Federal Regulations.
  (2) 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.
  (3) 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.
  (b) Article 4 (commencing with Section 31900) and Article 5
(commencing with Section 32000) shall not apply to a single-shot
pistol with a barrel length of not less than six inches and that has
an overall length of at least 101/2 inches when the handle, frame or
receiver, and barrel are assembled.

When does the Roster usually apply?

These seven conditions are the most likely to be encountered by non-law enforcement handgun buyers/transferees who live in California:

1) Buys a handgun from a CA FFL -- must be on the Roster (except for the Single-action revolver exception - See above).

2) Buys a handgun from another CA resident (ANY other CA resident, including LEO) at a CA FFL -- this is a CA 'private party transfer'; Roster does not apply.

3) Buys a handgun from a NON-CA resident at a CA FFL -- this is an interstate transfer; must be on the Roster (except for the Single-action revolver exception - See above).

4) Buys a handgun from a NON-CA resident (or NON-CA FFL), shipped to a CA FFL -- this is an interstate transfer; must be on the Roster (except for the Single-action revolver exception - See above).

5) Receives a handgun from immediate family (grandparent, parent, child) who LIVE IN CA -- Roster does not apply, FFL not required, file OPLAW form.

6) Receives a handgun from immediate family (grandparent, parent, child) who DO NOT LIVE IN CA -- Roster does not apply, Federal law says FFL required because this is an interstate transfer.

7) Inherits a handgun from a deceased immediate family (grandparent, parent, child) member -- Roster does not apply, FFL not required (exception to Federal interstate transfer), file OPLAW form.

A Brief "How To Do It" Interstate, Intrafamily

For an interstate intrafamily handgun transfer, an FFL is required because of Federal law. (Don't count on either the California Department of Justice or many FFLs to remember Federal law.) Filing just a form with the State does not meet the requirements of Federal law.

The out of state family member may bring the handgun to a CA FFL, or ship it to the FFL if the FFL is willing to accept shipment from a non-FFL.

Off-roster handguns may not be sold, but intrafamily gifts are transferable.

• Provide a letter of gift - something like

<Date>
I, Joe Blow, want my son, John Blow, to have
this nice Colt Python revolver, S/N 123456.

Signed, Joe Blow

• John comes to the CA FFL and does paperwork
• If the handgun is off-roster, the FFL completes the Roster-exemption part of DROS screen and writes in "27870PC intrafamily transfer".
• The FFL keeps (a copy of) the gift letter in his files just in case of audit questions.
• Since this transfer will run through DROS, no other form is needed.

Note that this is still an interstate transfer, and the FFL may charge any fee for this service he may think appropriate.

Hat-tip to CalGunner and Calguns Foundation Board Member Bill Wiese for the process description.

Safety

It is arguable that the law has little relationship to any useful definition of 'safety'. Most notably, a gun tested and certified and added to the Roster cannot be transferred by dealers if the model is removed from the Roster for non-payment of the annual fee. With no mechanical changes, a gun would go from 'not unsafe' to something else overnight.

Modifications are permitted

Once purchased, an owner may have a manufacturer or other gunsmith modify a handgun to a different configuration from that required to be on the Roster. Ownership and use of a modified handgun remain legal, presuming no other laws are violated (e.g. manufacturing a California 'assault weapon').

Such a modified handgun could not be resold in California by a licensed dealer, but could be sold according to the exceptions noted above..

A Special Note on the Taurus Judge

Taurus, USA sells a revolver called the Judge.

The Penal Code at 17180 says

 "short-barreled shotgun" means any of the following:
  (a) A firearm that is designed or redesigned to fire a fixed
shotgun shell and has a barrel or barrels of less than 18 inches in
length.

This definition applies to the Judge, with its three inch barrel.

33215. Except as provided in Sections 33220 and 33225 and in
Chapter 1 (commencing with Section 17700) of Division 2 of Title 2,
any person in this state who manufactures or causes to be
manufactured, imports into the state, keeps for sale, or offers or
exposes for sale, or who gives, lends, or possesses any
short-barreled rifle or short-barreled shotgun is punishable by
imprisonment in a county jail not exceeding one year or in the state
prison.

This is not an issue with the Roster. Until Penal Code 33215 is amended, the Taurus Judge is illegal in California.

Judge and similar weapons as 'AOW'

It is possible to deal with the Judge as an 'any other weapon' - consult your FFL for further information. See also James Bardwell's article at AR15.com and AOWs in California.

Legal Challenges

"Heller II"

After Heller, Washington, DC adopted substantially all of California's Roster restrictions.

Alan Gura, attorney for the plaintiff in Heller, has filed a brief (April 13, 2009) arguing the Roster concept violates the Second Amendment (page 10).

II. DEFENDANTS’ HANDGUN ROSTERING PROGRAM VIOLATES THE 
SECOND AMENDMENT IN THAT IT BANS PROTECTED HANDGUNS. 
The handguns banned by Defendants’ rostering program –
including guns without CLIs and/or magazine disconnect
mechanisms, guns that have not been (and cannot be) submitted
by their manufacturer for government testing, and guns that
would be perfectly acceptable by the government but for lack of
an annual listing fee – are all nonetheless handguns of the
kind in common use protected by the Second Amendment. None of
these characteristics render a firearm “dangerous or unusual”
or establish that it is not of the kind in common use for 
lawful purposes. 
...
Having been ordered by the Supreme Court not to ban handguns
because handguns, as a class of arms, have Second Amendment
protection regardless of the city’s safety theories, the city
cannot come back less than a year later and ban handguns merely
because they are deemed “unsafe.” The three handguns denied
Plaintiffs by operation of Defendants’ handgun rostering 
program are plainly within the Second Amendment’s protection.
That this legislation is defiant of the Supreme Court’s
decision is illustrated by its operative banning of Paul St.
Lawrence’s High Standard .22 Buntline-style revolver – the
exact same gun the Supreme Court ordered the city not to ban
less than one year ago. This gun might not appear on the city’s
list of approved handguns, but according to the Supreme Court,
it appears in the Second Amendment. 

The brief further argues that the Roster violates equal protection (page 12):

DEFENDANTS’ HANDGUN ROSTERING PROGRAM VIOLATES THE FIFTH 
AMENDMENT AS IT DEPRIVES INDIVIDUALS OF DUE PROCESS.  
It has long been understood that the Fifth Amendment’s
guarantee of due process includes the concept that individuals
may not be deprived of the equal protection of the law. Bolling
v. Sharpe, 347 U.S. 497, 499 (1954). Because the handgun
rostering program is riddled with exceptions, and inherently
yields inconsistent results, it invites serious questions about
Plaintiffs’ rights to equal protection. 
...
These and other senseless distinctions are inevitable
considering the audacious mission of the handgun roster law: to
make a complete list of all lawful handguns, and substitute the
design and feature preferences of legislators and regulators
for that of a market comprising hundreds of millions of people
over the course of generations. That this project intrudes into
the exercise of a fundamental right calls for its abandonment.

Calguns Foundation Files Suit, April 30, 2009

SAF, CALGUNS FOUNDATION CHALLENGES CALIFORNIA HANDGUN BAN SCHEME

For Immediate Release: 4/30/2009

BELLEVUE, WA and REDWOOD CITY, CA – The Second Amendment Foundation, The Calguns Foundation and four California residents today filed a lawsuit challenging a California state law and regulatory scheme that arbitrarily bans handguns based on a roster of “certified” handguns approved by the State. This case parallels a similar case filed in Washington, DC, Hanson v. District of Columbia.

California uses this list despite a ruling by the U.S. Supreme Court last summer that protects handguns that ordinary people traditionally use for self-defense, and a recent ruling by the Ninth Circuit Court of Appeals that the Second Amendment applies to state and local governments. The California scheme will eventually ban the purchase of almost all new handguns.

Attorney Alan Gura, representing the plaintiffs in this case, noted that California “tells Ivan Peña that his rights have an expiration date based on payment of a government fee. Americans are not limited to a government list of approved books, or approved religions,” he said. “A handgun protected by the Second Amendment does not need to appear on any government-approved list and cannot be banned because a manufacturer does not pay a special annual fee.”

See the thread at Calguns.

Complaint filed in US District Court for the Eastern District of California.

Preliminary Timeline and Course of the Suit

See the Peña v Cid page.

The California Department of Justice is constitutionally obligated to defend the suit.

First results from the District Court are possible at the end of August, 2009.

It is nearly certain the opinion at the District Court will be appealed to the Ninth Circuit.