(1.) The bill (AB1471, passed in 2007) contains the text, "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."

Todd Lizzotte's firm, ID Dynamics, claims various "microstamping" patents (6886284, 7111423, etc.) regarding marking of spent brass in firearms, and any read-back of data from that brass. These patents are valid 'til somewhere around 2023 (sorry, I don't have exact date… that's the year I recall offhand). It'd be silly to assume Todd Lizotte & co. don't claim their patents occupy the entire field of firearm microstamping.

I will also note there are likely a significant number of other relevant patents, as 'prior art', within the lithography, nanomachining and semiconductor processing fields upon which this technology may well infringe – and/or which would interfere with the regulatory completion of this law, given the requirement to not be "patent encumbered". Note that royalty-free grants of patent rights are not the same legal status as "not being encumbered", and all patent holders are generally obliged to defend their rights against usurping implementations if informed of same.

I do not believe Calif. DOJ – either thru their Bureau of Firearms, or another agency within the Department – can complete a rulemaking process conforming with both statutory & patent law (and which also conforms to Calif.'s Administrative Procedures Act, "APA") before ID Dynamic's patents expire in 2023 (if not voided before on other grounds).

Remember that California's regulatory process is driven through the CA Office of Administrative Law (OAL): to get thru the OAL to a finalized, adopted regulation which is codified in the California Code of Regulations ("CCR"), the supporting regulatory acts cannot conflict with statutory law: they can clarify, and aid in implementation, and refine details – but they cannot extend the reach or scope of the statute. The statute clearly demonstrates the rulemaking process must, at adoption of supporting regulations, allow semiautomatic handgun manufacturers to comply without patent encumbrance. Unless and until that rulemaking is final, new semiautomatic handguns can and will be added to the DOJ's approved handgun "Roster" using pre-microstamping standards.

I also believe an organization such as the Calif. DOJ has neither the budget, the technological acumen, nor the desire to play referee in patent wars between various parties, including major Silicon Valley tech companies. And surely Todd Lizzotte will not abandon his patents: he's in this for money, not charity.

The California rulemaking process is key to this whole matter; from my informed view, AB1471's implementation cannot occur until expiry of Lizotte's patents (as well as any other patents that may be prior art, or which encompass various aspects of microstamping).

(2.) Microstamping's implementation also depends on the continued existence of California's "Roster of Handguns Approved for Sale in California" (also referred to as Roster of Not-unsafe Handguns), as codified in 12125PC et seq ("Unsafe Handguns" chapter). If and when the Rostering matter falls, there's no legal structure under which microstamping can regulate legal handgun sales in California.

California's handgun Roster has a variety of significant legal issues and is currently under Federal challenge, in Peña v. Cid (2:09-cv-01185, PACER case #191444) through a joint effort of The Calguns Foundation and The Second Amendment Foundation. Further progress of this case is on hold until "incorporation" of the Second Amendment is realized at the state level (and not just at the Federal level as resolved by Heller decision).

[A related case, Hanson v. DC, challenged California's handgun Roster as implemented by
Washington, DC. This Roster has already effectively been gutted based on traction from last year's Heller decision - thru emergency rulemaking in an attempt to avert further litigation.]

Bill Wiese
Vice Chair,
The Calguns Foudnation
http://www.calgunsfoundation.org
contact@calgunsfoundation.org

Such techniques have been tried before, with resounding failure. For example, for over 10 years New York, Delaware, and Maryland have maintained "ballistics databases" of bullets and casings on all newly purchased guns. They do this at great expense, with exactly the same idea as microstamping – that they'll be able to identify crime guns by microscopic identifying marks on the bullets and casings left behind.

And in all those years not a single case in any state using this technology has been solved using this information. Maryland recently tried to defund the project, citing a complete lack of results and high cost, but the gun control lobby, complaining that it would set a bad precedent to admit that such a program wasn't working, even if true, put so much pressure on the legislature that they backed down.

Now California wants to waste money it doesn't have, adopting a technology even its own experts agree doesn't work, egged on by no one but a couple of people who stand to make a bundle off it, and rabid anti-gun lobbyists who insist on such projects even when they have already failed. One wonders why the state is broke.

Unfortunately for a pistol like the one that she
held, i.e. an revolver the shells are not left at the scene of the crime. I rarely hear about the fact that most criminals who intend on using a firearm in a crime do not bother to buy a gun dealer. It is not legal for a felon to buy a firearm anyway.

There are many ways that this bullet marking technology could be bypassed. One very simple way is to load your own ammunition. Loading ammunition is very easy,weighing each item carefully. Many serous target shooters load their own. Some people even cast their own bullets. Unless you ban home loading of ammunition, and prohibit all imports of primers and other
parts you would not be able to guarantee that this ammunition would have an identifying mark.

Another way that this marking technology
would be bypassed is by the theft of a weapon. Certainly some of the weapons used by criminals have been stolen, therefore the bullets left
at the scene would not lead to the criminal. In the 1970s I had a very fine Parker Brothers shotgun stolen. It went into a criminal's hands
at that moment, and who knows my Grandfather's prized quail gun may have robbed a bank.

I am glad you had the time to check out microstamping. As the co-inventor of the technique I am always glad when people get a chance to evaluate it.

We have been developing the technology since late 1993.

What has been baffling to me is the method forensic scientists use to evaluate technology such as microstamping.

Microstamping helps identify firearms when no firearm is recovered at a crime scene. This happens, approximately 45% of the time. In these cases if no witnesses come forward, the case goes cold.

The issue is, does this help in tracking the source of illeagl firearms. The answer is a resounding yes.

Even is Fred Tulleners, worse case scenario, 50% of the time, which is 100% more information than they have now. The question is whether 50% more opportunities to trace firearms back to the source is better than 0%. Firearms make there way into the criminal network; the question is whether it would be better to identify the firearm the first time it is used in a heinous crime or possibly recover it after it has been used in several crimes?

What I believe, Mr. Tulleners should have considered is benchmark the technology against existing firearm identification technology. Many times, the arguments about not using microstamping are the same issues facing existing forensic techniques, such as planting evidence, defacing the firearm, switching barrels, switching pins, etc.

These arguments are also face existing firearm identification techniques. For example a colleague sent me an image of a .40 cal cartridge and a 9 mm cartridge fired from the same firearm. He had just changed the barrel, which he can buy without a problem. That alone would make it nearly impossible for the NIBIN system, or CoBIS (NY) or RBID (MD) to identify the firearm. All technology has limitations; the question is how intelligent are common criminals?

Take for instance, NIBIN, National Integrated Ballistic Information Network.

They have loaded into the imaging database approximately 1.2 million images of crime scene cartridges. I have been told NIBIN has made about ~22,000 matches. Most of these matches are just confirmations that the cartridges found at crimes scene are matched internally to other images within the database, they are no convictions or matches to actual firearms. But, let's just say these are sold matches.

That means the NIBIN system has a success rate of about 1.8% so far in ~10 years.

Most of the analysis on microstamping to date focused on the technology as a function of the firearm instead of its intended use, as trace evidence for an investigative lead. It is well established that traditional firearms examination is based on the premise that a firearm doesn’t produce 100% of the marks each time it is fired. In a forensic handbook I recently purchased it states a recovered firearm should be test fired greater than 5 times or more so that sufficient markings can be identified on each cartridge or projectile for a possible match.

I agree with Mr. Tulleners, funding should be directly towards street level work. That is benefit of microstamping, no cost to the state. Take for instance the cost, I have produced the markings and reduced the process time down to a level where the price per firearm would be <$5.00. There are only approximately 900,000 semiautomatic handguns manufactured each year. That is a total cost of $4.5 Million, for implementation across the entire USA.

The ATF’s NIBIN platform costs tax payers at the state and the national levels nearly $60 million per year. CoBIS in NY cost NY tax payers nearly ~$4 million per year.

However, for law enforcement to target trafficking they need solid INTEL to work with. The trace system is the only way to accomplish this.

Trafficking in firearms is a pattern crime, you need data to identify a pattern, and at that point you can apply resources to set stings or use other methods to identify and arrest traffickers.

So, what is the cost of microstamping? To law enforcement it is zero cost, because the technology is just another type of tool mark they current analyze. All the tools for analysis exist in the forensic lab. There is no new infrastructure.

When you benchmark existing methods of firearm and toolmarks analysis with microstamping you realize all firearms currently microstamp. Current microstamps are random, unintentional markings that are transferred from machining marks and surface roughness created during the manufacture of the firearm.

Our technique “Ballistic ID Microstamping” just adds in a few features on the same scale, however the marks are "intentional", taking the form of a code that can be used to recover the serial number of the firearm.

Simply put, microstamping is just a method to increase the quality of the physical evidence left at a crime scene.

When analyzing the technology you need to treat it as trace evidence. What I feel has been demonstrated in the research papers done on non-optimized firing pins, is that the researchers approached the technology from a function of the firearm, instead of the ability to extract evidence.

If you have any questions, please contact me.

Best regards,
Todd Lizotte
Co-inventor of Microstamping