BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1527|
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THIRD READING
Bill No: AB 1527
Author: Portantino (D)
Amended: 4/10/12 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 6/26/12
AYES: Hancock, Calderon, Liu, Price, Steinberg
NOES: Anderson, Harman
SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/6/12
AYES: Kehoe, Alquist, Lieu, Price, Steinberg
NOES: Walters, Dutton
ASSEMBLY FLOOR : 44-29, 5/3/12 - See last page for vote
SUBJECT : Openly carrying long guns
SOURCE : California Police Chiefs Association
Peace Officer Research Association of
California
DIGEST : This bill (1) makes it a misdemeanor, punishable
by up to six months in a county jail, or a fine of up to
$1,000, or both, for a person to carry an unloaded firearm
that is not a handgun on his/her person outside a vehicle
while in an incorporated city or city and county; (2) makes
this offense punishable by up to one year in the county
jail, or a fine of up to $1,000, or both, if the firearm
and unexpended ammunition capable of being fired from that
firearm are in the immediate possession of that person and
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the person is not in lawful possession of that firearm; (3)
establishes numerous exemptions from this prohibition; (4)
creates an exemption from the existing prohibition against
carrying an exposed and unloaded handgun outside a vehicle
in a public place for a licensed hunter while actually
engaged in the training of a dog for the purpose of using
the dog in hunting that is not prohibited by law, or while
transporting the firearm while going to or returning from
that training; and (5) creates an exemption from the
existing prohibition against carrying an exposed and
unloaded handgun outside a vehicle in a public place for a
person in compliance with specified provisions related to
carrying a firearm in airports and commuter passenger
terminals, as specified.
ANALYSIS : Existing law makes it a misdemeanor punishable
by imprisonment in the county jail not to exceed six
months, by a fine not to exceed $1,000, or both, for any
person to carry an exposed and unloaded handgun outside a
vehicle upon his/her person while in any public place or on
any public street in an incorporated city, or in any public
place or public street in a prohibited area of an
unincorporated county. (Penal Code (PEN) Section
26350(a)(1))
Existing law makes the crime of openly carrying an unloaded
handgun punishable by imprisonment in the county jail not
to exceed one year, or by a fine not to exceed $1,000, or
by that fine and imprisonment if the handgun and unexpended
ammunition capable of being discharged from that firearm
are in the immediate possession of the person and the
person is not the registered owner of the firearm. (PEN
Section 26350(a)(2))
Existing law prohibits the carrying of a loaded firearm on
his/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. This offense
is a misdemeanor, punishable by up to one year in the
county jail, a fine of up to $1,000, or both, unless
various aggravating circumstances are present, in which
case this offense it is punishable as a felony. (PEN
Section 25850)
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Existing law provides that a firearm shall be deemed to be
loaded for the purposes of PEN 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. (PEN Section 16840(b))
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:
A felony where the person has previously been convicted
of any felony or of any crime made punishable by the
Dangerous Weapons Control Law;
A felony where the firearm is stolen and the person knew
or had reasonable cause to believe that the firearm was
stolen;
A felony where the person is an active participant in a
criminal street gang;
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
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firearm;
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.
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 Department of
Justice (DOJ) as the registered owner of the firearm.
(PEN Section 25858(c))
This bill makes it a misdemeanor punishable by imprisonment
in a county jail not to exceed six months, or by a fine not
to exceed $1,000, or both, for a person to carry an
unloaded firearm that is not a handgun on his/her person
outside a vehicle while in an incorporated city or city and
county, and makes this offense punishable by imprisonment
in the county jail not exceeding one year, or by a fine not
to exceed $1,000, or both, if the firearm and unexpended
ammunition capable of being fired from that firearm are in
the immediate possession of that person and the person is
not in lawful possession of that firearm.
This bill states that the sentencing provisions of this
prohibition shall not preclude prosecution under other
specified provisions of law with a penalty that is greater.
This bill states that the provisions of this prohibition
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 provides that the provisions relating to the
carrying of an unloaded firearm that is not a handgun on
his/her person outside a vehicle in specified areas does
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not apply under any of the following circumstances:
By a person when done within a place of business, a place
of residence, or on private property, or if done with the
permission of the owner or lawful possessor of the
property.
When the firearm is either in a locked container or
encased and it is being transported directly from any
place where a person is not prohibited from possessing
that firearm and the course of travel includes only those
deviations that are reasonably necessary under the
circumstances.
If the person possessing the firearm reasonably believes
that he or she is in grave danger because of
circumstances forming the basis of a current restraining
order issued by a court against another person or persons
who has or have been found to pose a threat to his/her
life or safety, as specified.
By any peace officer or by an honorably retired peace
officer if that officer may carry a concealed firearm, as
specified.
By any person to the extent that person is authorized to
openly carry a loaded firearm as a member of the military
of the United States.
As merchandise by a person who is engaged in the business
of manufacturing, wholesaling, repairing or dealing in
firearms and who is licensed to engaged in that business
or an authorized representative or agent of that
business.
By a duly authorized military or civil organization, or
the members thereof, while parading or rehearsing or
practicing parading, when at the meeting place of the
organization.
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
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ranges or incident to the use of a handgun at that target
range.
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.
By a member of an organization chartered by the Congress
of the United States or nonprofit mutual or public
benefit corporation organized and recognized as a
nonprofit tax-exempt organization by the Internal Revenue
Service while an official parade duty or ceremonial
occasions of that organization.
Within a licensed gun show.
Within a school zone, as defined, with the written
permission of the school district superintendent, his/her
designee, or equivalent school authority.
When in accordance with the provisions relating to the
possession of a weapon in a public building or State
Capitol.
By any person while engaged in the act of making or
attempting to make a lawful arrest.
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.
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 or while the participant
or authorized employee or agent is at that production
event.
Incident to obtaining an identification number or mark
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assigned for that handgun from the DOJ.
At any established public target range while the person
is using that firearm upon the target range.
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.
Complying with specified provisions of law relating to
the regulation of firearms.
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 approve by the Commission on
Peace Officer Standards and Training.
Incident to, and in the course and scope of, training of
or by an individual to become licensed to carry a
concealed weapon.
Incident to and at the request of a sheriff or chief or
other head of a municipal police department.
If all of the following conditions are satisfied:
o The open carrying occurs at an auction or similar
event of a nonprofit or mutual benefit corporation
event where firearms are auctioned or otherwise sold
to fund activities;
o The unloaded firearm that is not a handgun is to be
auctioned or otherwise sold for the nonprofit public
benefit mutual benefit corporation; and
o The unloaded firearm that is not a handgun is to be
delivered by a licensed firearms dealer.
o By a person who has permission granted by Chief
Sergeants at Arms of the State Assembly and the State
Senate to possess a concealed firearm within the State
Capitol.
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o By a person exempted from the prohibition against
carrying a loaded firearm within the Governor's
Mansion.
o By a person who is responsible for the security of
a public transit system who has been authorized by the
public transit authority's security coordinator, in
writing, to possess a weapon within a public transit
system.
o On publicly owned land, if the possession and use
of a handgun is specifically permitted by the managing
agency of the land and the person carrying the handgun
is the registered owner of the handgun.
o The carrying of an unloaded firearm that is not a
handgun by a person who holds a specified permit.
o By a licensed hunter while actually engaged in
training a dog for the purpose of using the dog in
hunting that is not prohibited by law, or while
transporting the firearm while going to or returning
form the training.
o By a person in compliance with specified provisions
related to carrying a firearm in an airport.
o By a person who is engaged in the business of
manufacturing ammunition and who is licensed to engage
in that business, or an authorized representative or
authorized agent of the person while the firearm is
being used in the lawful course and scope of the
licensee's activities, as specified.
This bill states that, for purposes of the prohibition on
openly carrying an unloaded firearm that is not a handgun,
the definition of "firearm" does not include any antique
firearm.
This bill exempts security guards and retired peace
officers who are authorized to carry an unloaded firearm
that is not a handgun from the prohibition against
possessing a firearm in a school zone.
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This bill exempts from the prohibition against carrying an
exposed and unloaded handgun outside a vehicle in a public
place a licensed hunter while actually engaged in the
training of a dog for the purpose of using the dog in
hunting that is not prohibited by law, or while
transporting the firearm while going to or returning from
that training.
This bill exempts from the prohibition against carrying an
exposed and unloaded handgun outside a vehicle in a public
place a person in compliance with specified provisions
related to carrying a firearm in airports and commuter
passenger terminals.
This bill makes conforming technical changes.
Prior Legislation
AB 144 (Portantino), Chapter 725, Statutes of 2011, passed
the Senate Floor (21-18) on 9/8/11.
AB 1934 (Saldana, 2010) died on Assembly Concurrence.
AB 98 (Cohn, 2005) held on Suspense in the Assembly
Appropriations Committee.
AB 2501(Horton, 2004) failed passage in the Assembly Public
Safety Committee.
AB 2828 (Cohn, 2004) failed passage in the Assembly Public
Safety Committee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Potential ongoing court costs of $24,000 to $48,000
(General Fund) for 50 to 100 additional misdemeanor
filings per year.
Potential non-reimbursable local enforcement and
incarceration costs, offset to a degree by fine revenue.
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While the impact of this bill independently is likely to
be minor, the cumulative effect of all new misdemeanors
could create General Fund cost pressure on capital
outlay, staffing, programming, the courts, and other
resources in the context of recently enacted 2011 Public
Safety Realignment.
SUPPORT : (Verified 8/8/12)
California Police Chiefs Association (co-source)
Peace Officer Research Association of California
(co-source)
California Chapters of the Brady Campaign Against Gun
Violence
California Peace Officers Association
Coalition Against Gun Violence
Law Center to Prevent Gun Violence
Los Angeles Sheriff's Department
Women Against Gun Violence
OPPOSITION : (Verified 8/8/12)
California Rifle and Pistol Association
National Association for Gun Rights
National Rifle Association of America
Save Our State
ARGUMENTS IN SUPPORT : The Peace Officer Research
Association states:
The practice by individuals and organizations to
"openly carry" firearms in public places in order to
challenge law enforcement and firearms statutes in
California is increasing in frequency. While PORAC
understands that most of these open carry
demonstrations are being done by law abiding citizens,
it places law enforcement and the public in a
precarious and possible dangerous situation. Most
often, law enforcement is called to the scene based on
a citizen or merchant complaint. When the officer
arrives at the scene, it is their obligation to
question those persons carrying the firearms and to
inquire as to whether the firearm is loaded. Until
that officer has physically seen if the firearm is
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loaded, that officer must assume that their lives and
the lives of those around them may be in danger.
Again, these situations are potentially dangerous and
should not occur in a public place wherein any number
of things could go wrong. We believe this bill will be
very helpful in preventing these potentially unsafe
incidents from happening.
ARGUMENTS IN OPPOSITION : The National Association for
Gun Rights states, "Rifles and shotguns are hardly the
weapons of choice for the common criminal. This is yet
another attempt to prohibit something because it 'looks
scary.' In a recent press release, Assemblyman Anthony
Portantino admitted this bill is merely retaliation against
law-abiding citizens who chose to peacefully exercise their
First Amendment right of free speech in support of their
Second Amendment rights after passage of last year's Open
Carry Ban. Punishing citizens for engaging in lawful
public demonstration is an outrageous abuse of power,
further infringing on their constitutionally protected
rights. Currently twenty-eight states allow for the Open
Carry of firearms in some form without a permit, and an
additional thirteen allow Open Carry with a permit. Eight
states and the District of Colombia ban open carry; half of
which are remnants of the 'Jim Crow' era where the intent
was to prevent African-Americans from possessing firearms.
Open Carry should be viewed in the same light as Ý ]
concealed carry: if a person is legally able to purchase a
firearm, it is not the place of the state to deny their
right to carry it."
ASSEMBLY FLOOR : 44-29, 5/3/12
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bradford, Brownley, Buchanan, Butler,
Charles Calderon, Campos, Carter, Cedillo, Davis,
Dickinson, Eng, Feuer, Fong, Fuentes, Galgiani, Gatto,
Gordon, Hayashi, Hill, Hueso, Huffman, Lara, Bonnie
Lowenthal, Ma, Mendoza, Mitchell, Monning, Pan,
Portantino, Skinner, Solorio, Swanson, Torres,
Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Bill Berryhill, Chesbro, Conway, Cook,
Donnelly, Beth Gaines, Garrick, Gorell, Grove, Hagman,
Halderman, Harkey, Huber, Jeffries, Jones, Knight, Logue,
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Mansoor, Miller, Morrell, Nestande, Nielsen, Norby,
Olsen, Perea, Silva, Valadao, Wagner
NO VOTE RECORDED: Bonilla, Fletcher, Furutani, Hall, Roger
Hernández, V. Manuel Pérez, Smyth
RJG:d 8/8/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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