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The Fleecing of California's Gun Purchasers

Craig DeLuz

April 10, 2013

[Publisher's Note:  As part of an ongoing effort to bring original, thoughtful commentary to you here at the FlashReport, I am pleased to present this column from Craig DeLuz. Deluz is the Legislative Advocate for the California Association of Federal Firearms Licensees - Flash]

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This week, the California State Assembly Appropriations Committee will be considering a measure that demonstrates the absolute worst in government incompetence and thievery. SB 140 (Leno) outright steals money from a fund entirely paid for (and supposedly dedicated to) law-abiding gun owners to fund the Department of Justice’s (DOJ) failed firearms enforcement program.

These are the folks who, earlier this year, admitted that there could be tens of thousands of individuals in possession of firearms who have been deemed prohibited from doing so. Both the New York Times and the Los Angeles Times have chronicled the utter failure of DOJ to maintain and enforce the prohibited persons list. So what is their answer? Taking more money from an account designed only to support background checks -- with no accountability for performance or any explanation as to why the DOJ has a straight-‘F’ report card, and yet continues to shuffle surplus money to their pet projects.

To understand why having a surplus is a problem (and, especially, why using it to support general fund matters) is improper, one must first understand how the surplus funds came to be. A $19 or $15 Dealer’s Record of Sale (DROS) fee is collected by the State of California as an integral part of every firearm transaction. These fees are exclusively paid by firearm purchasers or transferees at dealers to start the background check and 10-day waiting period. The Penal Code commands that the fee “shall be no more than is necessary” for the Department of Justice to perform only those duties expressly articulated in that section; namely, to conduct a background check on those acquiring firearms through a licensed dealer and to operate an electronic system for the sending and receiving of information related to those firearm transactions.

For years, the Department has unlawfully over-collected DROS fees from law-abiding gun owners -- gun owners who spent money and time to comply with the law and submit to the background check process. Where the DROS fees should have been lowered years ago to account for the massive surplus (basically, unconstitutionally assessed taxed), the DOJ has stubbornly refused to lower the fees in spite of substantial evidence of their bad faith accounting.

SB 140 is nothing more than the State stealing millions of dollars from those who paid the DROS fee with the understanding those monies would be [collected and] used by the State in accordance with the law. Now, in SB 140, the State of California is telling those gun owners that it is perfectly acceptable to break the law... just as long as there is a convenient political rationalization for it.

The California Constitution bars the over-collection of fees to discourage governments from finding new and creative ways to tax people outside of proper authority and process. Here, DOJ unconstitutionally assessed a tax to a specific class of people -- law-abiding gun owners -- and SB 140 comes behind to finish the heist, clean up the evidence, and close the door behind them.

Gun owners must not twice be forced to bear the burden of the DOJ’s incompetence and falling months behind on providing even the most basic statutorily-mandated (and user-supported) services - like timely background checks and DROS processing. (Note: litigation against DOJ over insane DROS service delays is forthcoming from Second Amendment civil rights group The Calguns Foundation.) Outrageously, the Department is now seeking even more time to perform basic background checks (AB 500 - Ammiano), all while sitting on millions of dollars of “surplus” fees.

SB 140 seeks to take an additional $24 Million of unlawfully and unconstitutionally-collected DROS funds to compensate for the failure of DOJ and more than 500 local law enforcement agencies not enforcing existing gun laws.

SB 140’s $24 million raid is in addition to the already-appropriated $22.9 million set aside for DOJ from the DROS account in the proposed budget.

DOJ has already trained, at taxpayers’ expense, thousands of California peace officers on how to use the Armed Prohibited Person database over the past several years - which yielded pitifully-little enforcement activity. This is in no small part due to the high number of inaccuracies that have been found in the list.

If the Legislature desires to fix the Department’s failings to support a statewide general law enforcement goal, it should do so with general fund monies -- not funds that were collected from gun owners for background checks.

It is absolutely irrational, morally bankrupt, and Constitutionally-improper to burden law-abiding Californians with the cost of DOJ’s thievery. No matter what might be claimed by the measure’s supporters, SB 140 sends a strong -- but wrong -- message to California’s kids: it’s fine to steal, as long as you’re the State.

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Craig DeLuz is a long time conservative activist who currently serves as the Legislative Advocate for the California Association of Federal Firearms Licensees (CAL-FFL). He can be reached at cdeluz@calffl.org.

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