Police Face Liability For Carrying Handguns Deemed "Unsafe" Under New Gun Law

Posted on February 5, 2001

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Replacing Police Firearms Could Cost Millions Police Departments throughout the state are struggling to address their increased liability for firearm accidents inadvertently created by SB 15 - 1999 (Polanco, D-Los Angeles). SB 15 declares every handgun "unsafe" unless it passes a series of state mandated performance tests. Because the bill only allows manufacturers to submit guns for testing, and because only current production handgun models have been submitted by those manufacturers, all previous production models carried by police departments across the state are branded "unsafe" by the law, regardless of their quality and safety features. Although law enforcement agencies are exempt from restrictions on buying the guns under the new law, the is no provision immunizing them from the increased liability resulting from carrying an untested "unsafe" handgun. In response to a Public Records Act request done at the behest of the CRPA and NRA, police departments across the state identified the guns they have approved for on and off duty carry. Most of these firearms have not been tested, and many would not pass even if they were. For example, the unique guns carried by the California Highway Patrol are currently untested and thus "unsafe" under the provisions of the new law. Several attorneys representing city and county governments have already advised their police departments against allowing the guns to be carried by their officers, and have contacted the Attorney General about the increased liability problem. At least one Department, Fresno`s Sheriff, has already revised its policy so officers can`t carry untested guns. Although the Attorney General`s office has denied that police departments face increased exposure, their position is based on the assumption that all police guns would pass the required tests. The Attorney General has not addressed the issue of police liability for carrying guns, either on or off duty, that the department has approved but that would not pass the tests, or whether not testing police guns might itself be negligence. Police practices are also starting to be reviewed by risk assessment departments and municipal insurance companies. Law enforcement agencies may have to spend millions of taxpayer dollars to buy new current production guns to replace the ones they have now in order to avoid costly lawsuits resulting from the use of "unsafe" handguns by their own personnel. This will necessitate their current guns either being destroyed or sold out of state. Jim Erdman, Executive Director of the CRPA, stated: "This is exactly the same situation as if the state, by law, had declared everything except this year`s models of automobiles to be unsafe and made illegal for used car dealers to sell them . . . and it is every bit as unsound in logic and fairness to millions of Californians who either own last year`s model already or would like to shop at a dealership to buy one." Many law enforcement agencies, on advice of legal counsel, are also prohibiting civilian holders of permits to carry concealed weapons from carrying non-current production, untested handgun models. "Since most carry high quality guns they have owned for a long time, the new law will force them to buy another gun that is in current production just to be in compliance with the unintended consequences of SB15," says Erdman. "The real effect of SB15 will be the sale of more guns, not less. And with respect to models not currently in production, many will no doubt be sold illegally on the streets and other places instead of through a licensed firearm dealer. Dealer sales include registration, a criminal and mental history background check, and a buyer`s ten day waiting period. Non-dealer sales do not. This is what happens when bills are rushed through the legislative process without adequate consideration being given to the details of their drafting and implementation. The liability concerns follow a California Legislative Counsel`s Office (which acts as the legal counsel to the State Legislature) opinion issued just last week (#21239) interpreting SB 15 and condemning a California Department of Justice (DOJ) policy allowing dealers to conduct consignment sales of untested handguns. As a result, gun dealers who, relying on the DOJ policy, facilitated private party "consignment" sales of handguns since the first of the year face possible prosecution. The registered handgun sales are subject to invalidation, and the registered guns may be confiscated. And most gun dealers, who relied on private party consignment sales for the majority of their profits, face insolvency.
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