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Capitol: Search warrants are not the problem

I worked on the legislation that established the California Department of Justice Armed and Prohibited Persons System, on behalf of my former employer, State Senator Steve Peace, who was a joint author of the law. My present boss, State Senator Don Perata, has spearheaded continuing efforts to secure funds so that the department can upgrade its computers, which will help implement this specific program.

As the article "Tempting fate" in New Times (April 10) describes, the automated system identifies registered owners of firearms who have become ineligible to possess the weapons because of criminal convictions, mental defects, or restraining orders subsequent to their purchases. Our concern was not just handguns, though that was the primary thrust, but any gun on file where registration was mandated or allowed, including assault weapons, .50 BMG rifles, and normal rifles and shotguns.

The specific impetus for the legislation was not an incident in California, but a shooting in February 2000 in Illinois, which has a licensing system. In that case, a murderer was a twice-convicted felon who had legally acquired firearms before he had a criminal record. He was licensed to possess guns because the systems did not cross-check past registrations against subsequent convictions. Even though he was prohibited and in possession of firearms, there was no way for law enforcement to discover he was armed, and he was left to commit homicide.

The law resulting from SB 950 requires the DOJ to compare firearms records going back to 1991, when comprehensive handgun registration requirements went into effect, with criminal/prohibited person records to identify owners who are no longer allowed to possess firearms. SB 950 also required DOJ develop an online database so police officers can cross-check gun-owner records with prohibited-person records during routine traffic stops and other procedures.

At the time, it was envisioned that the DOJ would deploy a special team to assist local law enforcement agencies in investigating and taking action against handgun and other firearms owners who become ineligible to possess their weapons. The Department of Justice at least several times a year does enforcement actions. The last time, according to their website, was in December 2007.

The Department of Justice has indicated that its special agents have trained approximately 500 sworn local law enforcement officials in 196 police departments and 35 sheriff's departments on how to use the database during firearms investigations. The department has also conducted 50 training sessions on how to use the vehicle-mounted California Law Enforcement Telecommunications System terminals to access the database. Also, the department actively interfaces with a number of agencies in terms of enforcement actions.

At the time that SB 950 was under consideration, there were several concerns raised about proof of possession. They have been largely resolved, such that the APPS lists with a high degree of certainty prohibited individuals who do actually have guns.

Regarding enforcement, I was taken somewhat by surprise about the perceived inability to obtain search warrants that local police expressed in your article. The California Supreme Court and appellate courts in other states have repeatedly noted that in the case of firearms and certain other types of property, common experience shows that persons usually keep these items in their residences or on their persons. Given the fact that probable cause falls somewhere in the range of 25 percent to 30 percent likelihood, if it can be shown that the person took possession of the gun, probable cause is easily established. To my knowledge, the DOJ has not had problems in convincing judges to issue search warrants when it does 950 enforcement.

There are also specific relinquishment orders issued directly by the courts--usually in restraining-order or mental-health cases--that require gun transfers to a state-licensed dealer or a law enforcement agency and the filing of proof in such cases. In those cases, a police officer can do a "knock and talk" to ask for proof that the relinquishment order was obeyed. The easiest way to prove compliance is a formal receipt in a DOJ format that the guns were relinquished.

If a person asserts that he or she disposed of the guns but no re-registration of the guns is on file, then either that person has admitted to an illegal transfer or the dealer who acquired the gun violated his or her responsibilities.

During hearings of SB 950 in 2001, the head of the California Department of Justice Firearms Division at the time noted that if a prohibited individual could not prove compliance, a peace officer would be acting in accordance with his or her responsibilities to immediately apply for an oral warrant from a judge to search the premises for the guns and to place the premises under "lock down" from outside while awaiting the warrant. In fact, the United States Supreme Court and the California Supreme Court have approved of this process.

Finally, in January, the State Senate passed SB 327 by Sen. Carole Migden (D-SF/Marin) on a bipartisan 34-1 vote. The bill is awaiting action in the State Assembly. SB 327 is a comprehensive handgun registration reform bill. One of its provisions will make SB 950 enforcement easier. That provision requires gun dealers to notify the Department of Justice in all cases when a handgun is delivered to a person who was cleared to take possession. This should finally resolve the "taking possession" issue.


INFOBOX: Editor's note

The state is busy spending a quarter-billion dollars of Homeland Security funds this year alone to ferret out would-be terrorists, but can't find money to confiscate weapons from Californians who definitely are imminent threats. There's no need for wiretaps, sleuths, or black-bag jobs to uncover them as New Times reported ("Tempting fate," April 10) the California Department of Justice has a list of 9,000 violent felons, mental patients, and other residents who have no business owning a gun but are armed to the teeth and dangerous. Neither the San Luis Obispo Police Department nor the County Sheriff's Department plans to disarm the locals on the list, which the state DOJ estimates will balloon to 60,000 names and addresses in total, unless manpower becomes available for the task. Since January of last year, 1,280 prohibited persons and 11 incarcerated persons have been removed from the database statewide.

Irwin J. Nowick is a Senior Consultant to the California Senate Rules Committee.

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