BILL ANALYSIS Ó AB 1154 Page 1 Date of Hearing: April 28, 2015 Counsel: Sandra Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair AB 1154 (Gray) - As Amended April 23, 2015 SUMMARY: Exempts from public-record laws the phone numbers and street addresses contained in applications and licenses to carry concealed weapons. Specifically, this bill: 1)Exempts from the California Public Records Act the telephone numbers and home addresses, except city and zip code, of licensees and applicants of permits to carry concealed weapons (CCW). 2)Specifies that this exemption shall not be construed as prohibiting the disclosure of public records relating to the reason that an application for a CCW was granted or denied. 3)Makes technical, non-substantive changes. EXISTING LAW: 1)Authorizes a county sheriff or a city police chief to issue a permit for a CCW to a county or city resident if the person is of good moral character, there is good cause for the issuance, the person meets the residency requirements, and the applicant has completed a firearm safety course. (Pen. Code, §§ 26150, subd. (a), & 26155, subd. (a).) AB 1154 Page 2 2)States that a county sheriff or a chief of a municipal police department may issue a license to carry a concealed handgun in either of the following formats: a) A license to carry a concealed handgun upon his or her person; or, b) A license to carry a loaded and exposed handgun if the population of the county, or the county in which the city is located, is less than 200,000 persons according to the most recent federal decennial census. (Pen. Code, §§ 26150, subd. (b), & 26155, subd. (b).) 3)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. (Pen. Code, § 26175, subd. (c).) 4)Requires that the fingerprints of each CCW applicant be taken and submitted to the Department of Justice (DOJ). (Pen. Code, § 26185.) 5)Provides criminal penalties for knowingly filing a false application for a concealed weapon license. (Pen. Code, § 26180.) 6)Provides that a license to carry a concealed handgun is valid for up to two years, three years for judicial officers, or four years in the case of a reserve or auxiliary peace officer. (Pen. Code, § 26220.) 7)Requires a record of the CCW to be maintained in the office of the issuing authority and with the DOJ. (Pen. Code, § 26225.) 8)Requires the licensee notify the licensing authority in writing of any change of address within 10 days. (Pen. Code, § 26210.) AB 1154 Page 3 9)Provides pursuant to the California Public Records Act (PRA) that all records maintained by local and state governmental agencies are open to public inspection unless specifically exempt. (Gov. Code, §§ 6250 et seq.) 10)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. (Gov. Code, § 6252, subd. (e).) The records of weapons permit holders maintained by the sheriff are public records. (62 Ops. Cal.Atty.Gen. 402.) 11)Exempts from disclosure under the PRA information in CCW applications which indicates when or where applicants are vulnerable to attack or concerns applicants' medical or psychological histories or that of family members. (Gov. Code, § 6254, subd. (u)(1).) 12)Exempts from disclosure under the PRA the home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates that are set forth in applications for licenses or in CCWs. (Gov. Code, § 6254, subds. (u)(2) & (3).) 13)Requires an agency to justify withholding any record by demonstrating that the record in question is exempt under express provisions of the PRA or that on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (Gov. Code, § 6255, subd. (a).) 14)Authorizes any person to institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter. (Gov. Code, § 6258.) FISCAL EFFECT: Unknown AB 1154 Page 4 COMMENTS: 1)Author's Statement: According to the author, "In California, individuals must register their firearms with the California Department of Justice (DOJ). State law prohibits the DOJ from releasing that information to anyone other than law enforcement and court officials. "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 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 AB 1154 Page 5 permits can be monitored by citizens and stakeholders without providing a one-stop-shop for offenders to collect sensitive location and contact data." 2)Background: It is a crime for a person to carry a firearm concealed on his person or in his vehicle without a permit. (Pen. Code, § 25400.) County sheriffs and city police chiefs are the only officials authorized to issue a permit to carry a concealed weapon. (Pen. Code, §§ 26150, 26155, 26170 & 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. (Pen. Code, §§ 26150, 26155 & 26170.) 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 (Pen. Code, § 26225), and records regarding these official actions are considered public records like other decisions to grant or deny a governmental permit. 3)CBS, Inc. v. Block (1986) 42 Cal.3d 646: In 1983, CBS made a PRA request seeking information regarding CCW permits issued in Los Angeles County for purposes of investigating potential abuses by the Sheriff's Department. The sheriff refuse to release any information and litigation ensued. (Id. at p. 649.) The California Supreme reviewed the case to decide whether the press and the public should be prohibited from obtaining the information contained in CCA applications. (Ibid.) The Court recognized there were competing societal concerns, namely transparency and the right to privacy of the individuals whose information was on file. (Id. at p. 651.) The Court rejected the arguments that release of this information would allow criminals to plan crimes against licensees, finding it "conjectural at best." (Id. at p. 652.) "A mere assertion of possible endangerment does not 'clearly outweigh' the public interest in access to these records. (Ibid.) The Court noted that the law permits deletion of any information indicating times and places where an individual AB 1154 Page 6 would be vulnerable to attack. (Ibid.) The Court also rejected the argument that release of the information would violate an individual's right to privacy protected by the California Constitution. "While some 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. It is a privilege to carry a concealed weapon." (Id. at p. 654.) Making this information public serves the purpose of allowing "the public to ensure that public officials are acting properly in issuing licenses for legitimate reasons." (Ibid.) 4)Need for Transparency: Over the years, some elected sheriffs have been accused of unequally applying CCW regulations by dispensing permits to campaign contributors without regard to the statutory requirements. For example, former Los Angeles Sheriff Lee Baca was accused favoring those who have given gifts or campaign contributions when dispensing CCW permits because "[m]ore than one out of every 10 permits issued to civilians went to people on Baca's gift list. (< http://www.laweekly.com/news/sheriff-lee-baca-and-the-gun-gif t-connection-2612907 >.) Similarly in 2008, former Orange County Sheriff Michael Carona was accused of the same type of favoritism to his campaign contributors. (< http://articles.latimes.com/2008/nov/08/local/me-carona8 >.) As recently amended, this bill conforms the release of information regarding who obtains CCW permits to the same detail as campaign contribution reports, which releases the name of the contributor, and the contributor's city and zip code. (See < http://cal-access.sos.ca.gov/Campaign/Committees/Detail.aspx?i d=1333789&session=2013&view=received >.) While this amendment does appear to afford some transparency as to campaign contributors, will it be sufficient to investigate favoritism towards family members, friends, or business associates? Moreover, is name, city, and zip code sufficient information to provide public oversight of officials who wrongly deny CCW permits? Would the disclosure of an individual's street name, but not street number, allow for more investigation while AB 1154 Page 7 still protecting an individual's privacy? 5)Argument in Support: According to the National Rifle Association, a co-sponsor of this bill, "The provisions of Assembly Bill 1154 would provide that the CPRA not be construed to require the disclosure of private information of civilian licensed CCW holders. In recent years, a New York paper published the names of licensed CCW holders. Such actions 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 protection legislation would prevent such abuse. The privacy of carry permit holders in 43 states is now protected by laws similar to AB 1154." 6)Arguments in Opposition: a) The California Newspaper Publishers Association writes, "The legislature has long recognized the strong public interest in the accessibility of information about CCW applicants and licensees because of the public's role in overseeing officials who have the authority to issue these permits. AB 1154 would prevent the public from knowing whether officials are issuing permits justly and impartially or abusing the exercise of their statutorily delegated discretion. "In CBS v. Block, 42 Cal.3d 646 (1986), the state Supreme Court was tasked with determining whether a sheriff's refusal of a broadcaster's request to inspect and copy concealed weapons applications submitted to and licenses issued by a county sheriff violation the public's right to access information pursuant to the California Public Records Act. The Court ruled that the information was disclosable. The Court reasoned, 'Implicit in the democratic process is 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 AB 1154 Page 8 exercise of official power and secrecy in the political process.' Id at p. 651. "In reaching its decision in Block the Court summarily 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. Id. at p. 652. "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 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. ? "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 bit it would also serve to protect dishonest officials from public scrutiny by eliminating one of the only tools to ferret out misconduct." b) According to the Calguns Foundation, "In CBS, Inc. v. Block, 42 Cal.3d 646 (1986), the California Supreme Court held that '[t]he interest of society in ensuring accountability is particularly strong where the discretion invested in a government official is unfettered, and only a select few are granted the special privilege. Moreover the degree of subjectivity involved in exercising the discretion cries out for public scrutiny.' Id. at 655. We AB 1154 Page 9 couldn't agree more. "As you are no doubt aware, two important federal civil rights lawsuits challenging the application of discretion by the sheriffs of San Diego County and Yolo County, respectively, have been consolidated and scheduled for a June 15 en banc re-hearing by the Ninth Circuit Court of Appeals. (See Peruta v. Cnty. of San Diego, 9th Cir. No. 10-56971; Richards v. Prieto, 9th. Cir. No. 11-16255.) It should be noted that CGF is a party to the Richards matter?. "Until such time that law-abiding people can exercise their fundamental, individual right to carry ('bear') loaded, operable firearms in public for self-defense, the subjective and unconstitutional application or discretion under Cal. Penal Code section 26150, et. seq., by nearly every county sheriff and chief of a municipal police department in California cries out for exactly the kind of scrutiny that AB 1154 would shield against. "While the privacy of gun owners is of paramount importance to CGF and our supporters, AB 1154 does not accomplish that laudable goal in any meaningful way and would simply harm our ability to investigate violations of the Fourteenth Amendment's Equal Protection Clause and frustrate our ability to conduct important research into sheriffs' and police chiefs' applications of discretion through comparisons of application and license data to state and federal data on race, income, and other factors based on the applicants' and licensees' place of residence." 7)Related Legislation: a) AB 1134 (Stone) authorizes the sheriff of a county in which a city is located to enter into an agreement with the chief or other head of the municipal police agency in that city for the chief or head of that municipal police agency to process all applications for licenses to carry a concealed handgun upon the person, renewal of those licenses, and amendments to those licenses. AB 1134 is pending referral in the Senate Rules Committee. AB 1154 Page 10 b) SB 707 (Wolk) allows a person holding a valid CCW, and a retired peace officer authorized to carry a concealed or loaded firearm, to carry the firearm in an area that is within 1,000 feet of, but not on the grounds of, a public or private school providing instruction in kindergarten to grade 12, and deletes the exemption that allows these people to possess a firearm on the campus of a university or college. SB 707 is pending hearing in the Senate Appropriations Committee. 8)Prior Legislation: AB 134 (Logue), of the 2013-2014 Legislative Session, was substantially similar to this bill. AB 134 was held in the Assembly Judiciary Committee. REGISTERED SUPPORT / OPPOSITION: Support California Rifle and Piston Association (Co-Sponsor) National Rifle Association (Co-Sponsor) California Police Chiefs California State Sheriffs' Association Crime Victims United of California One Private Individual Opposition Calguns Foundation California Broadcasters Association California Newspaper Publishers Association Firearms Policy Coalition Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 AB 1154 Page 11