BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1934| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 1934 Author: Saldana (D), et al Amended: 6/30/10 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 4-3, 6/22/10 AYES: Leno, Cedillo, Hancock, Steinberg NOES: Cogdill, Huff, Wright SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 46-30, 6/1/10 - See last page for vote SUBJECT : Open carrying of unloaded handguns SOURCE : Author DIGEST : This bill prohibits the open carrying of unloaded handguns in public, except as specified. ANALYSIS : Existing law defines handgun as any pistol, revolver, or firearm capable of being concealed upon the person. (Penal Code Section 12001(a)(2).) Existing law prohibits carrying a concealed weapon, loaded or unloaded, unless granted a permit to do so. Except as otherwise provided, a person is guilty of carrying a concealed firearm when he or she: 1. Carries concealed within any vehicle which is under his CONTINUED AB 1934 Page 2 or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person. 2. Causes to be concealed within any vehicle in which the person is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person. 3. Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person. (Penal Code Section 12025(a).) Existing law provides that carrying a concealed firearm is generally a misdemeanor, punishable by up to one year in a county jail; by a fine of up to $1,000; or both. However, there are several circumstances in which carrying a concealed weapon may be punishable as a felony or alternate felony-misdemeanor: 1. A felony where the person has previously been convicted of any felony or of any crime made punishable by the Dangerous Weapons Control Law. 2. A felony where the firearm is stolen and the person knew, or had reasonable cause to believe, that the firearm was stolen. 3. A felony where the person is an active participant in a criminal street gang. 4. A felony where the person is not in lawful possession of the firearm, as defined, or the person is within a class of persons prohibited from possessing or acquiring a firearm. 5. An alternate felony-misdemeanor where the person has been convicted of a crime against a person or property or of a narcotics or dangerous drug violation. 6. An alternate felony-misdemeanor where: A. Both the concealable firearm and the unexpended ammunition for that firearm are either in the immediate possession of the person or readily AB 1934 Page 3 available to that person or where the firearm is loaded. B. The person is not listed with the Department of Justice (DOJ) as the registered owner of the firearm. (Penal Code Section 12025(b).) Existing law provides a number of exceptions and limitations to the prohibition on carrying a concealed firearm including methods to lawfully carry firearms in a vehicle, a home, or a business, etc. (Penal Code Sections 12025.5, 12026, 12026.1, 12026.2, 12027, and 12050.) Existing law authorizes the sheriff of a county, or the chief or other head of a municipal police department of any city or city and county, upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying satisfies any one of specified conditions, and has completed a course of training, as specified, to issue to that person a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person in either one of the following formats: 1. A license to carry concealed a pistol, revolver, or other firearm capable of being concealed upon the person. 2. Where the population of the county is less than 200,000 persons according to the most recent federal decennial census, a license to carry loaded and exposed in only that county a pistol, revolver, or other firearm capable of being concealed upon the person. (Penal Code Section 12050 .) Existing law prohibits the carrying of a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or a prohibited area of unincorporated territory. The penalty provisions for this prohibition are substantially similar to those provided in Penal Code Section 12025(b) and provide numerous exceptions and limitation to this prohibition. (Penal Code Section 12031.) AB 1934 Page 4 Existing law provides that a firearm shall be deemed to be loaded for the purposes of Penal Code Section 12031 when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm; except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder. (Penal Code Section 12031(g).) Existing law provides in the Fish and Game Code that it is unlawful to possess a loaded rifle or shotgun in any vehicle or conveyance or its attachments which is standing on or along or is being driven on or along any public highway or other way open to the public. (Fish and Game Code Section 2006.) Existing law provides that a rifle or shotgun shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell in the firing chamber but not when the only cartridges or shells are in the magazine. (Id.) Existing law provides that carrying a loaded firearm is generally a misdemeanor, punishable by up to one year in a county jail; by a fine of up to $1,000; or both. However, there are several circumstances in which the penalty may be punishable as a felony or alternate felony-misdemeanor: 1. A felony where the person has previously been convicted of any felony or of any crime made punishable by the Dangerous Weapons Control Law. 2. A felony where the firearm is stolen and the person knew or had reasonable cause to believe that the firearm was stolen. 3. A felony where the person is an active participant in a criminal street gang. 4. A felony where the person is not in lawful possession of the firearm, as defined, or the person is within a class AB 1934 Page 5 of persons prohibited from possessing or acquiring a firearm. 5. An alternate felony-misdemeanor punishable by imprisonment in the state prison; by imprisonment in a county jail not to exceed one year; by a fine not to exceed $1,000; or by both that imprisonment and fine where the person has been convicted of a crime against a person or property or of a narcotics or dangerous drug violation. 6. An alternate felony-misdemeanor punishable by imprisonment in the state prison; by imprisonment in a county jail not to exceed one year; by a fine not to exceed $1,000; or by both that imprisonment and fine where the person is not listed with the DOJ as the registered owner of the firearm. (Penal Code Section 12031(b).) Existing law prohibits a person, without appropriate permission, as specified, from possessing a firearm within an area that the person knew or reasonably should have known was a "school zone," defined as an area in or on the grounds of or within 1,000 feet of the grounds of any public or private K-12 school. (Penal Code Section 629.9.) Existing law provides that any person who has ever been convicted of a felony and who owns or has in his or her possession or under his or her custody or control a firearm is guilty of a felony, punishable by 16 months, 2 or 3 years in prison. (Penal Code 12021(b).) Existing law provides that every person who, except in self-defense, draws or exhibits any firearm in public, loaded or unloaded, in the presence of another person, in a rude, angry or threatening manner is guilty of a misdemeanor and shall be imprisoned for not less than three months nor more than one year in the county jail; fined $1,000; or both. (Penal Code Section 417(a).) Existing law provides that every person who, except in self-defense, draws or exhibits any firearm, loaded or unloaded, in a rude, angry or threatening manner in public, in the presence of a peace officer, who a reasonable person AB 1934 Page 6 would know was in the performance of his or her duty, is guilty of an alternate misdemeanor/felony and shall be imprisoned for not less than nine months and up to one year in the county jail or in the state prison for 16 months, 2 or 3 years. (Penal Code Section 417(c).) This bill makes it a misdemeanor, punishable by up to six months in jail, a fine of up to $1000, or both, for a person to carry an exposed and unloaded handgun outside a vehicle on his or her person while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of an unincorporated territory. This bill states that it does not preclude prosecution under any other law with a penalty greater than is set forth in this section. This bill provides that its provisions are cumulative, and shall not be construed as restricting the application of any other law. However, an act or omission punishable in different ways by different provisions of law shall not be punished under more than one provision. This bill exempts the following circumstances from the prohibition proposed by this bill: 1. The open carrying of an unloaded handgun by any peace officer or any honorably retired peace officer if he or she may carry a concealed firearm pursuant to Section 12027 or a loaded firearm pursuant to Section 12031. 2. The open carrying of an unloaded handgun by any person to the extent that person may carry a loaded firearm pursuant to Section 12031. 3. The open carrying of an unloaded handgun as merchandise by a person who is engaged in the business of manufacturing, importing, wholesaling, repairing, or dealing in firearms and who is licensed to engage in that business or the authorized representative or authorized agent of that person while engaged in the lawful course of the business. AB 1934 Page 7 4. The open carrying of an unloaded handgun by duly authorized military or civil organizations while parading or while rehearsing or practicing parading, or the members thereof when at the meeting places of their respective organizations. 5. The open carrying of an unloaded handgun by a member of any club or organization organized for the purpose of practicing shooting at targets upon established target ranges, whether public or private, while the members are using handguns upon the target ranges or incident to the use of a handgun at that target range. 6. The open carrying of an unloaded handgun by a licensed hunter while engaged in lawful hunting or while transporting that handgun when going to or returning from that hunting expedition. 7. The open carrying of an unloaded handgun incident to transportation of a handgun by a person operating a licensed common carrier or an authorized agent or employee thereof when transported in conformance with applicable federal law. 8. The open carrying of an unloaded handgun by a member of an organization chartered by the Congress of the United States or a nonprofit mutual or public benefit corporation organized and recognized as a nonprofit tax-exempt organization by the Internal Revenue Service while on official parade duty or ceremonial occasions of that organization or while rehearsing or practicing for official parade duty or ceremonial occasions. 9. The open carrying of an unloaded handgun within a gun show conducted pursuant to Sections 12071.1 and 12071.4. 10.The open carrying of an unloaded handgun within a school zone, as defined in Section 626.9, with the written permission of the school district superintendent, his or her designee, or equivalent school authority. 11.The open carrying of an unloaded handgun when in accordance with the provisions of Section 171b. AB 1934 Page 8 12.The open carrying of an unloaded handgun by any person while engaged in the act of making or attempting to make a lawful arrest. 13.The open carrying of an unloaded handgun incident to loaning, selling, or transferring the same in accordance with Section 12072 or any of the exemptions from subdivision (d) of Section 12072 so long as that handgun is possessed within private property and the possession and carrying is with the permission of the owner or lessee of that private property. 14.The open carrying of an unloaded handgun by a person engaged in firearms-related activities, while on the premises of a fixed place of business which is licensed to conduct and conducts, as a regular course of its business, activities related to the sale, making, repair, transfer, pawn, or the use of firearms, or related to firearms training. 15.The open carrying of an unloaded handgun by an authorized participant in, or an authorized employee or agent of a supplier of firearms for, a motion picture, television or video production, or entertainment event when the participant lawfully uses the handgun as part of that production or event, as part of rehearsing or practicing for participation in that production or event, or while the participant or authorized employee or agent is at that production or event, or rehearsal or practice for that production or event. 16.The open carrying of an unloaded handgun incident to obtaining an identification number or mark assigned for that handgun from the Department of Justice pursuant to Section 12092. 17.The open carrying of an unloaded handgun at established target ranges, whether public or private, while the person is using the handgun upon the target ranges. 18.The open carrying of an unloaded handgun by a person when that person is summoned by a peace officer to assist in making arrests or preserving the peace while he or she is actually engaged in assisting that officer. AB 1934 Page 9 19.The open carrying of an unloaded handgun incident to: A. Complying with paragraph (2) or (3) of subdivision (f) of Section 12072 as it pertains to that handgun. B. Subdivision (l) of Section 12078 as it pertains to that handgun. Paragraph (6) of subdivision (a) of Section 12078 as it pertains to that handgun. C. Complying with subdivision (c) or (i) of Section 12078 as it pertains to that handgun. 20.The open carrying of an unloaded handgun incident to and in the course and scope of training of or by an individual to become a sworn peace officer as part of a course of study approved by the Commission on Peace Officer Standards and Training. 21.The open carrying of an unloaded handgun incident to and in the course and scope of training of or by an individual to become licensed pursuant to Section 12050 as part of a course of study necessary or authorized by the person authorized to issue the license pursuant to Section 12050. 22.The open carrying of an unloaded handgun incident to and at the request of a sheriff or chief or other head of a municipal police department. 23.The open carrying of an unloaded handgun by a person when done within a place of business, a place of residence, or on private property, if done with the permission of a person who by virtue of subdivision (a) of Section 12026, may carry openly an unloaded handgun within that place of business, place of residence, or on that private property owned or lawfully possessed by that person. 24.The open carrying of an unloaded handgun at an auction or similar event of a nonprofit public benefit or AB 1934 Page 10 mutual benefit corporation at which firearms are auctioned or otherwise sold to fund the activities of that corporation or the local chapters of that corporation if that handgun is a handgun that is to be auctioned or otherwise sold for that nonprofit public benefit or mutual benefit and it is to be delivered by a person licensed pursuant to, and operating in accordance with Section 12071. This bill provides that motwithstanding the fact that the term "an unloaded handgun" is used in this section, each handgun shall constitute a distinct and separate offense under this section. This bill provides that for purposes of this section, the following shall apply: 1. A handgun shall be deemed unloaded if it is not "loaded" within the meaning of subdivision (g) of Section 12031. 2. The term "prohibited area" means any place where it is unlawful to discharge a weapon. 3. The term "public place" shall have the same meaning as in Section 12031. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 8/2/10) Association of Bay Area Governments Brady Campaign to Prevent Gun Violence, California Chapters Brady Campaign to Prevent Gun Violence, Orange County Chapter California Police Chiefs Association City and County of San Francisco City of Berkeley City of Los Angeles City of Los Angeles (Mayor approved resolution by City Council to support AB 1934) City of Santa Barbara AB 1934 Page 11 City of West Hollywood, Office of the Mayor Coalition Against Gun Violence, Santa Barbara County Councilmember Kevin McCarty, City of Sacramento Councilmember Marti Emerald, City of San Diego County of Los Angeles Sheriff's Department Friends Committee on Legislation of California Interfaith Council of Contra Costa County LA Times Editorial Board Legal Community Against Violence Long Beach Police Officers Association Peace Officer Research Association of California Police Department, City and County of San Francisco San Jose Councilmember Ash Kalra, District 2 SD Union Tribune Editorial Board SF Chronicle Editorial Board Violence Prevention Coalition of Greater Los Angeles Violence Prevention Coalition of Orange County Women Against Gun Violence Youth ALIVE! OPPOSITION : (Verified 8/2/10) California Rifle and Pistol Association, Inc. Kittles Outdoor Sport Co. National Rifle Association of America Responsible Citizens of California ARGUMENTS IN SUPPORT : According to the author's office, "As part of a growing "open carry movement" in California, gun enthusiasts have been openly carrying unloaded handguns in public places like coffee shops and restaurants, and at political rallies. Open carry advocates seek to normalize the carrying of firearms in public places. Their threatening and confrontational conduct intimidates the public, wastes law enforcement resources and needlessly increases the risk of firearm-related deaths and injuries." The California Police Chiefs Association states, "Current statutes do not presumptively prohibit the exposed carrying of an unloaded handgun in public areas. "Open carry" does not require a permit. By contrast, carrying a concealed firearm does require the applicant to demonstrate responsibility and a need to their respective police chief or county sheriff. As a result, there has been an increase AB 1934 Page 12 in controversial events where individuals openly carry unloaded handguns in public streets and businesses. For instance, a group of about 100 armed citizens hoping to make it easier to carry loaded guns in California gathered at a restaurant in the San Francisco Bay area suburbs in February 2010. "People who open carry often carry ammunition separately, which is permitted under current law. According to CaliforniaOpenCarry.org, "... with a little practice, one can easily load a handgun in under two seconds." "Open carry creates a potentially dangerous situation. In most cases when a person is openly carrying a firearm, law enforcement is called to the scene. They may have few details other than that one or more people are present at a location and are armed. Should the gun-carrying person move in a way that could be construed as threatening, peace officers may feel compelled to respond in a manner that could be lethal and unsafe not only for the gun-carrying individual, but for others nearby as well. "When responding to calls from concerned citizens, law enforcement agents must determine whether the guns are actually unloaded. The California Police Chiefs Association would submit that in the context of the state's current economic challenges that the practice of openly carrying a handgun in public areas has created an additional drain on police services that are already stretched thin." ARGUMENTS IN OPPOSITION : The California Rifle and Pistol Association states, "On behalf of the membership of the California Rifle and Pistol Association (CRPA), I am expressing our opposition to AB 1934 for many reasons, including the following: AB 1934 does not take into account public and private lands used by the public for outdoor recreation purposes. Hunters, fishermen, hikers, campers, and others would not be able to openly carry a handgun while recreating on vast tracts of public land. Unarmed individuals would be at risk in remote AB 1934 Page 13 areas with no means to protect themselves. AB 1934's checkerboard approach to allowing individuals to carry a loaded or unloaded handgun outside of a vehicle in remote areas and not in a prohibited areas adjacent to remote areas (e.g., campgrounds, going to and from campgrounds, returning from fishing to a campground, crossing a designated dirt road or trail, etc.) would cause confusion for the public and make law abiding citizens into criminals because they may not be aware of the specific prohibited areas. Many remote areas do not have cell phone coverage making it impossible to call for law enforcement help. Even if a person were able to call for help, the time for law enforcement to respond would be too long to be of any assistance. As an example, having a handgun could literally mean the difference between life and death in the case of a predatory mountain lion attack. Pepper spray is not always effective at halting dangerous animals and predators. And, in the case of attacks, you will not have time to open a locked gun case to defend yourself. People need the option to carry a handgun for self defense. Backcountry areas are known to harbor illegal meth labs and marijuana gardens. The criminal element that engages in these activities pose a threat to hunters, fishermen, hikers, campers, and anyone who uses public lands and private timberlands open to the public for recreational purposes. ASSEMBLY FLOOR : AYES: Ammiano, Arambula, Bass, Beall, Block, Blumenfield, Bradford, Brownley, Buchanan, Charles Calderon, Carter, Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans, Feuer, Fong, Fuentes, Furutani, Hall, Hayashi, Hernandez, Hill, Huffman, Jones, Lieu, Bonnie Lowenthal, Ma, Monning, Nava, V. Manuel Perez, Portantino, Ruskin, Salas, Saldana, Skinner, Solorio, Swanson, Torlakson, Torres, Torrico, Yamada, John A. Perez NOES: Adams, Anderson, Bill Berryhill, Blakeslee, Caballero, Conway, Cook, DeVore, Emmerson, Fletcher, Fuller, Gaines, Galgiani, Garrick, Gilmore, Hagman, Harkey, Huber, Jeffries, Knight, Logue, Miller, Nestande, Niello, Nielsen, Norby, Silva, Smyth, Tran, Villines AB 1934 Page 14 NO VOTE RECORDED: Tom Berryhill, Mendoza, Audra Strickland, Vacancy RJG:do 8/3/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****