BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1154


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          Date of Hearing:   April 21, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 1154  
          (Gray) - As Introduced February 27, 2015


          SUBJECT:  THE CALIFORNIA PUBLIC RECORDS ACT: APPLICATIONS FOR  
          LICENSES AND LICENSES TO CARRY CONCEALED FIREARMS


          KEY ISSUE:  SHOULD THE HOME ADDRESSES AND TELEPHONE NUMBERS OF  
          ALL APPLICANTS AND LICENSEES FOR LICENSES TO CARRY CONCEALED  
          WEAPONS (CCW), RATHER THAN JUST CERTAIN PUBLIC OFFICIALS, BE  
          EXEMPT FROM PUBLIC DISCLOSURE IN RESPONSE TO A REQUEST FOR  
          PUBLIC RECORDS MADE PURSUANT TO THE CALIFORNIA PUBLIC RECORDS  
          ACT, DESPITE THE FACT THAT INFORMATION ABOUT APPLICANTS AND  
          LICENSEES IS PRESUMED TO BE PUBLIC? 

                                      SYNOPSIS

          Under this bill, co-sponsored by two gun rights organizations,  
          the National Rifle Association (NRA) and the California Rifle  
          and Pistol Association, the home addresses, and telephone  
          numbers of those who apply for a license, as well as those who  
          are granted a license, to carry a concealed firearm (CCW) would  
          no longer be open to public scrutiny.  (The names of CCW  
          licensees and applicants, including those of prosecutors, public  
          defenders, peace officers, judges, court commissioners, and  
          magistrates are subject to public disclosure under current law,  
          which this bill does not seek to change for either those  
          officials, or for all CCW licensees and applicants.)  The author  
          and supporters, including law enforcement organizations  








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          including the California Police Chiefs Association and the  
          California State Sheriffs Association, argue that the bill is  
          justified by preventing the risk of harm to CCW licensees and  
          applicants.  They cite a recent incident in which a New York  
          paper published the names of licensed CCW licensees, saying  
          "such action place lawful concealed carry holders at risk to  
          criminals who may target their home to steal firearms."   
          Opponents, the California Newspaper Publishers and the  
          California Broadcasters Association point out that there are  
          many reasons why information about CCW licensees is helpful to  
          the media, public, and researchers, including to ensure that  
          government officials are abiding by the law and not favoring  
          friends and contributors when granting or denying CCW  
          applications.  They assert that AB 1154 provides only a highly  
          speculative benefit to CCW applicants and licensees while  
          significantly impairing public oversight of a key agency of  
          government.


          SUMMARY:  Exempts certain information contained in applications  
          and licenses to carry concealed weapons from public records  
          laws.  Specifically, this bill exempts from the California  
          Public Records Act the home addresses and telephone numbers of  
          licensees and applicants set forth in documents regarding  
          licenses to carry firearms.  


          EXISTING LAW:  


          1)It is a crime for a person to carry a firearm concealed on his  
            person or in his vehicle without a permit.  (Penal Code  
            Section 25400.) 
          2)Authorizes a county sheriff or a city police chief to issue a  
            permit to carry a concealed weapon (CCW) to a county or city  
            resident if the person is of good moral character, there is  
            good cause for the issuance, and the applicant has completed a  
            firearm safety course.  (Penal Code Sections 26150, 26155,  
            26170, and 26215.) 








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          3)Requires a record of the CCW to be maintained in the office of  
            the issuing authority and with the Department of Justice.   
            (Penal Code Sections 26220 and 26220.)  


           4)Requires applications for CCWs to include name, occupation,  
            residence and business address, the licensee's age, height,  
            weight, color of eyes and hair, and the reason for desiring a  
            CCW, as well as a description of the weapon for which the  
            permit is sought.  (Penal Code Section 26175.)


          5)Provides pursuant to the California Public Records Act that  
            all records maintained by local and state governmental  
            agencies are open to public inspection unless specifically  
            exempt.  (Government Code Sections 6250 et seq.  All further  
            statutory references are to the Government Code, unless  
            otherwise indicated.) 


          6)Defines "public records" to include any writing containing  
            information relating to the conduct of the public's business  
            prepared, owned, used, or retained by any state or local  
            agency regardless of physical form or characteristics.   
            (Section 6252(e).)  The records of weapons permit holders  
            maintained by the sheriff are public records.  (62 Ops. Cal.  
            Atty. Gen. 402.)


          7)Information in license applications which indicates when or  
            where applicants are vulnerable to attack or concerns  
            applicants' medical or psychological histories or family  
            members is exempt from disclosure under the California's  
            Public Records Act.  (Section 6254(u)(1).)  


           8)The home address and telephone number of prosecutors, public  








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            defenders, peace officers, judges, court commissioners, and  
            magistrates that are set forth in applications for licenses or  
            in licenses to carry firearms are specifically exempt from  
            disclosure under the California Public Records Act.  (Section  
            6254(u)(2)and (3).)  


           FISCAL EFFECT:  As currently in print this bill is keyed fiscal.
          COMMENTS:  The author states the reason for the bill as follows:  



               When it comes to concealed carry permits, an individual  
               must apply for the permit with his/her County Sheriff or  
               local police department. While individuals must comply with  
               all firearm laws when apply for the permit, including a  
               background check and the 10 day waiting period, their  
               application information, including home address and phone  
               number, is public record unless they are a judge, peace  
               officer, district attorney, public defender, or other  
               protected public official.

               This discrepancy creates significant privacy concerns for  
               law abiding concealed carry permit holders who are put at  
               risk of being targeted by criminals for home invasion and  
               gun theft. Crime victims who may choose to own a firearm  
               for the purpose of safety and protection also risk having  
               their private information obtained or disseminated making  
               it easier for an offender to locate them to inflict further  
               harm.

               AB 1154 would protect the homes addresses and phone numbers  
               of permit holders without restricting access to law  
               enforcement, courts, district attorneys, and public  
               defenders. The bill would extend the same protections that  
               public officials receive to all concealed carry permit  
               holders.

               This issue is especially pertinent given a recent case in  








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               New York where a newspaper published the names and  
               addresses of 44,000 gun permit holders in the form of an  
               interactive online map. The public availability of this  
               information caused significant safety and privacy concerns.  
               California's concealed carry permit holders are currently  
               exposed to the same risk.

               AB 1154 strikes a balance between government transparency  
               and personal privacy. It ensures the issuance of concealed  
               carry permits can be monitored by citizens and stakeholders  
               without providing a one-stop-shop for offenders to collect  
               sensitive location and contact data.


          This bill is co-sponsored by two gun rights organizations, the  
          National Rifle Association (NRA) and the California Rifle and  
          Pistol Association.  In support of the bill, the NRA states:


               An individual exercising his or her Second Amendment rights  
               should not be put at risk of being a victim of gun theft by  
               the public exposure of their private information and  
               enactment of this concealed handgun license holders [sic.]  
               protection legislation would prevent such abuse.  The  
               privacy of carry permit holders in 43 states is now  
               protected by laws similar to AB 1154.


          The California State Sheriffs Association, representing sheriffs  
          who are authorized to issue (or deny) CCWs, supports the bill  
          "if amended" to remove paragraph four of subdivision (u) of  
          Section 6254, providing that "This section shall not be  
          construed as prohibiting the disclosure of public records  
          relating to the reason an application for a license to carry a  
          firearm pursuant to Section 26150, 26155, 26170, or 26215 of the  
          Penal Code was granted or denied."  However, given that records  
          of weapon permit holders maintained by the sheriff are public  
          records (62 Ops. Cal. Atty. Gen. 402), such an amendment seems  
          inconsistent with existing law. "While some of the holders of  








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          concealed weapon licenses may prefer anonymity, it is doubtful  
          that such preferences outweigh the "fundamental and necessary"  
          right of the public to examine the bases upon which such  
          licenses are issued. It is a privilege to carry a concealed  
          weapon."  (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 654.)   


          Current Law Empowers Specified Law Enforcement Officials To Make  
          Decisions Regarding The Issuance of Concealed Weapons Permits,  
          Which Are Treated As Public Records Similar To Other  
          Governmental Licenses.  It is a crime for a person to carry a  
          firearm concealed on his person or in his vehicle without a  
          permit.  (Penal Code Section 25400.)  A small number of local  
          government officials (county sheriffs and city police chiefs)  
          are the only officials authorized to issue a permit to carry a  
          concealed weapon.  (Penal Code Sections 26150, 26155, 26170, and  
          26215.)  This decision involves the exercise of official  
          discretion involving a determination of whether the person is of  
          good moral character and there is good cause for the issuance of  
          the license.  The county sheriff and police chiefs have  
          "extremely broad discretion concerning the issuance of concealed  
          weapons licenses."  (Gifford v. City of Los Angeles (2001) 88  
          Cal.App.4th 801, 805.)  The issuing official is required to  
          maintain a record of these applications and licenses, and  
          records regarding these official actions are considered public  
          records like other decisions to grant or deny a governmental  
          permit. 


          This Bill Would Exempt CCW Records From Public Disclosure.   
          Under this bill, the home addresses, and telephone numbers of  
          those who apply for a license, as well as those granted a  
          license, to carry a concealed firearm would no longer be open to  
          public scrutiny.  (The names of CCW licensees and applicants,  
          including those of prosecutors, public defenders, peace  
          officers, judges, court commissioners, and magistrates are  
          subject to public disclosure under current law, which this bill  
          does not seek to change for either those officials, or for all  
          CCW licensees and applicants.)  It would therefore no longer be  








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          known how the local officials entrusted with licensing authority  
          have exercised this responsibility, including whether the volume  
          of permits issued was unusually high or low, or how applicants  
          fared in their efforts to obtain a license.  This information  
          may be important because applicants may only apply in the county  
          in which they live, the authority to grant permits is tightly  
          restricted to a few officials, and because the discretion of  
          these government officials is so broad.


          The Principle of The Public Records Act That Governmental  
          Transparency Is Fundamental To Democracy.  Our democratic  
          process relies on the notion that government should be  
          accountable for its actions.  "In order to verify  
          accountability, individuals must have access to government  
          files.  Such access permits checks against the arbitrary  
          exercise of official power and secrecy in the political  
          process."  (CBS, Inc. v. Block, supra, at. p. 651.)  Enacted in  
          1968, the Public Records Act was an attempt to minimize the  
          secrecy in government.  It was passed for the explicit purpose  
          of "increasing freedom of information by giving the public  
          access to information in possession of public agencies."   
          (Ibid.) 


          The issues raised by this bill were addressed by the California  
          Supreme Court more than 25 years ago in CBS, Inc. v. Block.  In  
          that case, the Los Angeles County Sheriff refused to provide  
          information regarding concealed weapons permits to CBS, which  
          had requested the records in connection with an investigation of  
          possible abuses.  At that time, the Orange County Sheriff had  
          issued over 400 licenses, while only 35 licenses had been issued  
          in Los Angeles County.  (CBS, Inc. v. Block, supra, at. p. 654.)  
           The Court determined that "while some of the holders of  
          concealed weapon licenses may prefer anonymity, it is doubtful  
          that such preferences outweigh the 'fundamental and necessary'  
          right of the public to examine the bases upon which such  
          licenses are issued."  (Ibid.)  Without the information  
          contained in those applications and licenses, the Court found  








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          that there was "no method by which the people can ever ascertain  
          whether the law is being fairly and impartially applied."  
          (Ibid.)


          Might This Bill Inadvertently Prevent Public Oversight Of Public  
          Officials Who Wrongly Deny Concealed Weapons License  
          Applications?  As the Block case demonstrates, transparency in  
          official decision making may deter or reveal inappropriate or  
          questionable denial of concealed weapons permits.  


          It is worth noting that home address information about CCW  
          licensees and applicants can be crucial to holding government  
          officials accountable for their actions.  For example, a sheriff  
          of a county may only issue a CCW to an applicant who is "a  
          resident of the county or a city within the county, or the  
          applicant's principal place of employment or business is in the  
          county or a city within the county and the applicant spends a  
          substantial period of time in that place of employment or  
          business."  (Penal Code Section 26150 (a).)  Without the  
          information about where a CCW holder or applicant lives, the  
          public cannot determine whether the CCW was lawfully issued.


          On this point, the California Newspaper Publishers Association  
          argues as follows:


               An example of the importance of this information as a check  
               on potential abuse by officials can be found in the case of  
               former Orange County Sheriff, Brad Gates. In the late  
               1980's, Gates was accused of improperly issuing concealed  
               weapons permits to his cronies and political supporters.  
               The sheriff's own records showed he issued 101 permits to  
               members of the Balboa Bay Club, the Lincoln Club and  
               various other supporters  all  of whom were contributors to  
               his political campaigns. Gates, however, also denied  
               permits to those he considered unfriendly even though the  








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               stated reasons for the permits by the unfriendly applicants  
               were the same as those given by his campaign contributors. 


               Gates ultimately lost a civil rights suit filed against him  
               by two private investigators who challenged Gates denial of  
               their concealed weapon application seven times. The  
               taxpayers of Orange County ended up footing the bill to pay  
               the federal jury's award to the investigators and the legal  
               costs to defend Gates.


               By exempting from public access the very same information  
               that revealed the widespread abuse of authority that  
               occurred in Orange County, AB 1154 would not only embolden  
               corruption but it would also serve to protect dishonest  
               officials from public scrutiny by eliminating one of the  
               only tools to ferret out misconduct. 


          The California Broadcasters Association adds succinctly, "This  
          data is currently public for a legitimate reason: oversight of  
          those we have entrusted with the authority to issue these  
          highly-prized documents.  The permits are often not easy to  
          acquire as they empower the holder with rights others do not  
          have.  This value can be, and has been a corruptive influence."


          These concerns are not merely theoretical; they have recently  
          been the subject of media reports regarding controversies that  
          the Sheriffs of Los Angeles, Monterey and Stanislaus counties  
          have made decisions about gun permit applications on the basis  
          of political or other considerations that may be inappropriate,  
          according to critics.  (See Sheriff Lee Baca and the Gun-Gift  
          Connection, LA Weekly, Feb, 14, 2013 (available at  
          http://www.laweekly.com/2013-02-14/news/sheriff-lee-baca-conceale 
          d-weapons-permit/full/); Scrutiny For Gun Permits Gets Tighter,  
          San Jose Mercury News, Feb 25, 2102 (available at  
          http://www.mercurynews.com








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          /breaking-news/ci_20033908); Hard To Know If Stanislaus County  
          Sheriff Oks More Concealed Weapon Permits, Modesto Bee, May 24,  
          2010 (available at http://www.modbee.com /2010/05/24/1179400/  
          hard-to-know-if-stanislaus-county.html#storylink=cpy).)


          The Committee may wish to consider whether exempting information  
          about the home addresses and telephone numbers of CCW licensees  
          from disclosure to the public in response to a request for  
          records pursuant to the PRA will interfere with the right of  
          Californians to ascertain if their government is functioning  
          properly.  As is clear from the examples above, individuals and  
          organizations use the information that AB 1154 would exempt from  
          disclosure to determine if agencies that issue licenses to carry  
          handguns are violating the people's Constitutional right to  
          Equal Protection under the law.


          Furthermore, there is a substantial body of evidence that CCW  
          licensees may pose a risk to public safety because, all too  
          often, these private citizens use their concealed handguns to  
          take lives, not to save them.  Concealed Carry Killers is a  
          resource maintained by the Violence Policy Center which includes  
          hundreds of examples of non-self-defense killings by private  
          citizens with permits to carry concealed weapons, including  
          homicides, suicides, mass shootings, murder-suicides, lethal  
          attacks on law enforcement, and unintentional deaths.   
          (  http://concealed carrykillers.org/)   The public nature of CCW  
          information, including information about the home addresses  
          where CCW licensees live, is helpful to the public as a warning  
          that the home may be dangerous.


          Likewise, the public nature of CCW information is helpful to  
          reporters and researchers investigating trends in crime and  
          connections between CCW licensure and gun violence.  According  
          to the Reporters' Committee for Freedom of the Press, such  
          information allowed Mark Alesia, a reporter with The  
          Indianapolis Star, to compare information about CCW licensees  








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          with crime data in two Indiana counties.  (See more at:  
           http://www.rcfp.org/browse-media-law-resources/news-media-law/new 
          s-media-and-law-winter-2013/reporting-gun-permit-data#  
          sthash.VPWWmgQk.dpuf  )  Localized research (i.e. figuring out  
          whether county crime rates correlate with CCW issuance rates) is  
          not possible if the public does not have information about where  
          CCW licensees live.


          Is There Evidence Of Harm To Outweigh The Public Interests In  
          Transparency, Oversight, And Warning?  The author and supporters  
          argue that the bill is justified by preventing the risk of harm  
          to CCW licensees and applicants.  For example, the San  
          Bernardino County Sheriff-Coroner states:


               In recent years, a New York paper published the names of  
               licensed CCW holders.  Such action place lawful concealed  
               carry holders at risk to criminals who may target their  
               home to steal firearms.  An individual exercising his or  
               her Second Amendment rights should not be put at risk of  
               being a victim of gun theft by the public exposure of their  
               private information, and enactment of this concealed  
               handgun license holders [sic.] protection legislation would  
               prevent such abuse."


          It should be noted, as explained above, that this bill does not  
          attempt to shield the names of CCW licensees or applicants.  But  
          to what extent does the public nature of information about the  
          home addresses of CCW licensees and applicants endanger the  
          safety of gun owners and their property, as the author and  
          supporters assert?  The author and supporters all cite one  
          incident in New York in which a New York newspaper posted an  
          interactive map showing the homes of CCW licensees on its  
          website.  The author states that he believes the posting of that  
          map directly led to the burglary of the home of one CCW holder.   
          As evidence, the author cites this report:  
           http://www.theblaze.com/stories/2013/01/13/house-identified-on-ny 








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          -papers-gun-map-burglarized  
          -and-the-robbers-went-straight-for-the-guns/  


          However, mere correlation between one burglary and one CCW  
          holder does not equate to proof of causation of even that  
          particular burglary, let alone burglaries in general.  It would  
          be more helpful to know whether there was a statistically  
          significant increase in the rate of residential burglaries of  
          the homes of the CCW licensees whose addresses were publically  
                                                                               disclosed on the newspaper's website.  Such a study would  
          certainly be possible, unless the information about the home  
          addresses of CCW licensees were no longer public, as proposed by  
          this bill.  However, no such statistical data appears to be  
          available, or at least has not been produced by the author in  
          support of this proposal.


          Nevertheless, despite the absence of any data showing a link  
          between crime and public access to the home addresses of CCW  
          licensees and applicants, the author and supporters of this bill  
          assert that it is important to prevent an incident like the one  
          in New York from ever happening in California.  According to the  
          author, "this bill would serve as a prophylactic in preventing  
          an incident such as occurred in New York."  What danger,  
          exactly, is this bill trying to protect against: a media  
          organization posting CCW information on its website, or  
          criminals using home address information about CCW licensees and  
          applicants to target those homes?  Regarding the first perceived  
          danger --of a media outlet posting CCW information online--it  
          apparently happened only once, in the State of New York, and  
          lasted for a brief period, after which the newspaper removed the  
          information because of a backlash from the public.   
          (  http://www.cnn. com/2012/12/25/us/new-york-gun-permit-map/  )   
          While it is true that something like this could theoretically  
          happen in California, there is no evidence that it has happened  
          or will happen here.  If anything, the reaction in New York will  
          have a chilling effect on other media organizations making  
          similar disclosures in the future.  








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          On the other hand, if the perceived danger is that information  
          about the names and home addresses of CCW licensees and  
          applicants which is now open to the public in California and has  
          been public for years, it may make sense to ascertain whether  
          there is any evidence that criminals have made public records  
          act requests for concealed weapons license licensees, or whether  
          the license licensees have consequently been subject to greater  
          harm than non-license holders.  The author has presented no such  
          data to the Committee.  In response to a similar contention in  
          the Block case, the court dismissed as "conjectural at best,"  
          the assertion by the sheriff that releasing this information  
          would allow would-be attackers to more carefully plan their  
          crime against licensees and would deter those who need a license  
          from making an application.  "The prospect that somehow this  
          information in the hands of the press will increase the danger  
          to some licensees cannot alone support a finding in favor of  
          non-disclosure as to all.  A mere assertion of possible  
          endangerment does not "clearly outweigh" the public interest in  
          access to these records."  (42 Cal.3d 646, 652.)


          As the California Newspaper Publishers observe, "AB 1154  
          provides only a highly speculative benefit to CCW applicants and  
          licensees while significantly impairing public oversight of a  
          key agency of government."


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Rifle and Pistol Association (co-sponsor)









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          National Rifle Association (co-sponsor)


          California Peace Officers Association


          California Police Chiefs Association


          California State Sheriffs Association (if amended)


          Crime Victims United of California


          San Bernardino County Sheriff John McMahon


          Opposition


          California Broadcasters Association


          California Newspaper Publishers Association




          Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334
















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