On June 25, 2022, President Joseph R. Biden signed the Bipartisan Safer Communities Act into law. The first major federal gun safety legislation to be passed since the Federal Assault Weapons Ban of 1994, the Act is intended to make our streets and communities safer.
Federal law prohibits a person from possessing a firearm if they have been “convicted in any court of a misdemeanor crime of domestic violence.” (18 U.S.C. § 922(d)(9).) Prior to the Bipartisan Safer Communities Act, this prohibition only applied to persons who were in a particular type of domestic relationship with the victim, such as spouses, persons with a child in common, persons cohabitating as spouses, and persons similarly situated to spouses. It did not include persons in dating relationships who do not live together, an omission commonly known as the “boyfriend” loophole.
This federal firearm prohibition now extends to persons who have a “current or recent former dating relationship with the victim.” (18 U.S.C. § 921(a)(33).) However, there are limitations to this new law. First, offenders who are convicted of first-time domestic violence crimes based on a dating relationship are prohibited from firearms possession for only five years. Offenders who receive a second such conviction, or who are convicted based on all the other types of intimate partner relationships are banned from owning firearms for life. Second, this new prohibition does not apply retroactively. For the five-year prohibition based on a dating relationship to apply, the misdemeanor domestic violence conviction must have occurred after the date the law was enacted on June 25, 2022.
California connection: Federal law allows states to enact more robust firearm prohibitions for those who are convicted of domestic violence misdemeanor crimes, which California already has done. Under existing California law, domestic violence crimes include persons in non-cohabiting dating relationships (See Pen. Code, §§ 273.5, 243, subdivision (e).), and a domestic violence conviction results in a ten-year or lifetime firearms prohibition depending on the classification of the crime (i.e., misdemeanor or felony) and the specific statute under which the person was convicted. (See Pen. Code, §§ 29800, 29805.).
Under federal law, background checks are required for any person who wants to purchase a firearm from a federally licensed dealer, including those persons between 18 and 21. Federal law does not require background checks for firearms sold by unlicensed firearms sellers (e.g., non-dealers who sell guns online or at gun shows).
For sales to persons under 21 years of age through a federally licensed dealer, the Bipartisan Safer Communities Act expands the background check requirement to require a review of juvenile records, including checks of state databases and with local law enforcement, to determine whether the individual has a juvenile record that meets criteria under existing federal law that disqualifies them from purchasing a firearm.
California connection: Under existing California law, the California Department of Justice checks juvenile records for all firearm sales to determine whether a person can lawfully own and possess a firearm. (Pen. Code, § 29820.) Further, persons convicted of certain crimes as a juvenile are prohibited from possessing a firearm until their 30th birthday. (Pen. Code, § 29820.) Finally, under California law, a person under 21 years of age cannot purchase a handgun and is limited to purchasing certain long guns only if they meet certain exemptions. (Pen. Code, §§ 27505, 27510.)
The Bipartisan Safer Communities Act increases federal grant funding for states to implement crisis intervention programs, such as “red flag laws” and court programs like Veterans’ Courts, Drug and DUI Courts, and Mental Health Courts.
Red flag laws allow law enforcement, family members, doctors, teachers, and other concerned persons to petition a court to remove a person’s firearms for a period of time if they believe the person is a threat to themselves or others. If a state chooses to use any of this new funding to implement a red flag law (California’s red flag law authorizes courts to issue Gun Violence Restraining Orders), the Bipartisan Safer Communities Act requires the state to meet certain due process, evidentiary, and standard of proof requirements during the removal proceeding.
California connection: Under existing California law, Gun Violence Restraining Orders (GVROs) permit law enforcement officers, employers, immediate family members, certain coworkers (with employer approval), and teachers (with supervisor approval) to petition a court to suspend a person’s legal access to firearms and ammunition for a period of up to five years. (Pen. Code, § 18100 et seq.) These removal procedures also have due process, evidentiary, and standard of proof requirements.
A “straw purchase” occurs when one person buys a firearm on behalf of another person. Straw purchases are potentially dangerous because the true purchaser of the firearm may be trying to avoid detection—often because they are prohibited from owning firearms or because they are engaged in the illegal trafficking of firearms.
The Bipartisan Safer Communities Act establishes new, specific criminal offenses for straw purchasers and provides enhanced penalties if such a firearm is used in a serious crime like terrorism or drug trafficking. (18 USC §§ 922, 932.) Additionally, the Act expands current federal law by criminalizing the smuggling of firearms out of the country (previously, federal law only prohibited smuggling of firearms into the country). (18 USC § 924.)
California connection Existing California law prohibits straw purchases. (Pen. Code, §§ 27515, 27520.) Additionally, California law prohibits any dealers in California from importing firearms into the state unless the dealer is on the state’s centralized list of licensed firearms dealers, the state’s centralized list of federal firearms licensee exempted from the state’s licensing requirement, or the state’s centralized list of firearms manufacturers. (Pen. Code, § 28465.)
Under federal law, only a person licensed as a dealer may “engage in the business” of selling firearms. (18 USC §§ 921, 922.) The definition of “engage in the business” generally excludes persons who occasionally sell firearms as a hobby, and thus those persons are not required to perform background checks on purchasers.
The Bipartisan Safer Communities Act modified the definition of what it means to “engage in the business” of selling firearms. Previously, the definition was limited to those who sell firearms “with the principal objective of livelihood and profit.” (18 U.S.C. § 921(a)(21)). This set a very high bar for federal prosecutors. The definition has now been expanded to include persons who sell firearms “to predominantly earn a profit.” (18 USC § 921(a)(21). “To ‘predominantly earn a profit’ means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.” (18 USC § 921(a)(22).) Functionally, this is expected to further limit who can sell firearms without first obtaining a federal firearms license.
California connection Under California law, a person is prohibited from selling or transferring a firearm unless the sale or transfer is conducted through a California licensed dealer or unless one of a few narrow exceptions applies. (See Pen. Code, §§ 26500, 26505.)