BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 1 3 6 AB 1363 (Davis) 3 As Amended April 13, 2009 Hearing date: June 16, 2009 Penal Code SM:br HANDGUNS: OPEN - CARRY LICENSES HISTORY Source: Los Angeles County Sheriff's Department Prior Legislation: SB 146 (Johnson) - Chap. 408, Stats. 1997 Support: California Brady Campaign Chapters; Legal Community Against Violence Opposition:None Assembly Floor Vote: Ayes 77 - Noes 0 KEY ISSUE SHOULD THE LAW BE CLARIFIED THAT A LICENSE TO OPENLY CARRY A LICENSED HANDGUN IS VALID ONLY IN THE COUNTY IN WHICH THAT LICENSE WAS ISSUED? (More) AB 1363 (Davis) PageB PURPOSE The purpose of this bill is to clarify that any licenses issued, as specified, by a sheriff or police chief in a jurisdiction with a population under 200,000, to openly carry a loaded handgun, are valid only within the county in which they are issued. Existing law provides that, subject to a number of specified exceptions, a person is guilty of carrying a loaded firearm when he or she carries 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 in any public place or on any public street in a prohibited area of unincorporated territory. (Penal Code 12031 (a)(1).) Existing law provides that carrying a loaded firearm in public, as specified, is punishable, as follows: Where the person previously has been convicted of any felony, or of any crime made punishable by this chapter, as a felony. Where the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony. Where the person is an active participant in a criminal street gang, as defined, as a felony. Where the person is not in lawful possession of the firearm, as defined in this section, or is within a class of persons prohibited from possessing or acquiring a firearm, as specified, as a felony. Where the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1000), or by both that imprisonment and fine. Where the person is not listed with the Department of Justice as the registered owner of the pistol, revolver, or other firearm capable of being concealed upon the person, (More) AB 1363 (Davis) PageC by imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1000), or both that fine and imprisonment. In all cases other than those specified above, as a misdemeanor, punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1000), or by both that imprisonment and fine. (Penal Code 12031 (a)(2).) Existing law provides an exception to the prohibition against carrying a loaded firearm in public for holders of licenses to carry concealed handguns. (Penal Code 12031 (b)(6).) Existing law provides that 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 either lives or works in the county (or city in the case of a police chief), as specified, and has completed a course of training as specified, may 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: A license to carry concealed a pistol, revolver, or other firearm capable of being concealed upon the person. 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 that county a pistol, revolver, or other firearm capable of being concealed upon the person. (Penal Code 12050 (a)(1)(A) & (B), emphasis added.) Existing law provides that, if the license is one to carry concealed a pistol, revolver, or other firearm capable of being concealed upon the person, then it may not be revoked solely because the licensee changes his or her place of residence to another county if the licensee has not breached any conditions (More) AB 1363 (Davis) PageD or restrictions set forth in the license and has not become prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm. However, any license issued to private citizens, as specified, shall expire 90 days after the licensee moves from the county of issuance if the licensee's place of residence was the basis for issuance of the license. (Penal Code 12050 (f)(4)(B).) Existing law provides that a license to carry a concealed handgun may be issued for any amount of time not to exceed two years from the date of issuance, unless issued to a judge or magistrate (valid for up to three years) or specified custodial employees or reserve peace officers (valid for up to four years). (Penal Code 12050 (a)(2).) Existing law provides that if a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person is granted by the sheriff of a county to an applicant based on the fact that the applicant spends a substantial amount of time employed within that county, such a license is valid only in the county issued and is valid for any period of time not to exceed 90 days from the date of issuance. (Penal Code 12050 (a)(2)(A)(ii).) Existing law provides that if the license is one to carry loaded and exposed a pistol, revolver, or other firearm capable of being concealed upon the person, the license shall be revoked immediately if the licensee changes his or her place of residence to another county. (Penal Code 12050 (f)(4)(B)&(C).) This bill clarifies that any licenses issued, as specified, by a sheriff or police chief in a county with a population under 200,000, to openly carry a loaded handgun, are valid only within the county in which they are issued. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION California continues to face a severe prison overcrowding crisis. The Department of Corrections and Rehabilitation (CDCR) (More) AB 1363 (Davis) PageE currently has about 170,000 inmates under its jurisdiction. Due to a lack of traditional housing space available, the department houses roughly 15,000 inmates in gyms and dayrooms. California's prison population has increased by 125% (an average of 4% annually) over the past 20 years, growing from 76,000 inmates to 171,000 inmates, far outpacing the state's population growth rate for the age cohort with the highest risk of incarceration.<1> In December of 2006 plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On February 9, 2009, the three-judge federal court panel issued a tentative ruling that included the following conclusions with respect to overcrowding: No party contests that California's prisons are overcrowded, however measured, and whether considered in comparison to prisons in other states or jails within this state. There are simply too many prisoners for the existing capacity. The Governor, the principal defendant, declared a state of emergency in 2006 because of the "severe overcrowding" in California's prisons, which has caused "substantial risk to the health and safety of the men and women who work inside these prisons and the inmates housed in them." . . . A state appellate court upheld the Governor's proclamation, holding that the evidence supported the existence of conditions of "extreme peril to the safety of persons and property." (citation omitted) The Governor's declaration of the state of emergency remains in effect to this day. ---------------------- <1> "Between 1987 and 2007, California's population of ages 15 through 44 - the age cohort with the highest risk for incarceration - grew by an average of less than 1% annually, which is a pace much slower than the growth in prison admissions." (2009-2010 Budget Analysis Series, Judicial and Criminal Justice, Legislative Analyst's Office (January 30, 2009).) (More) AB 1363 (Davis) PageF . . . the evidence is compelling that there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions. . . . Although the evidence may be less than perfectly clear, it appears to the Court that in order to alleviate the constitutional violations California's inmate population must be reduced to at most 120% to 145% of design capacity, with some institutions or clinical programs at or below 100%. We caution the parties, however, that these are not firm figures and that the Court reserves the right - until its final ruling - to determine that a higher or lower figure is appropriate in general or in particular types of facilities. . . . Under the PLRA, any prisoner release order that we issue will be narrowly drawn, extend no further than necessary to correct the violation of constitutional rights, and be the least intrusive means necessary to correct the violation of those rights. For this reason, it is our present intention to adopt an order requiring the State to develop a plan to reduce the prison population to 120% or 145% of the prison's design capacity (or somewhere in between) within a period of two or three years.<2> (More) ---------------------- <2> Three Judge Court Tentative Ruling, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (Feb. 9, 2009). The final outcome of the panel's tentative decision, as well as any appeal that may be in response to the panel's final decision, is unknown at the time of this writing. This bill does not appear to aggravate the prison overcrowding crisis outlined above. COMMENTS 1. Need for This Bill According to the author: Section 12050 of the California Penal Code allows the sheriff of the county or a chief of police to issue a concealed weapons permit (also known as a CCW permit) to applicants they deem acceptable according to prescriptions by law. If approved, the applicant can carry a concealed and loaded gun. This section also allows both sheriffs and police chiefs in a county with a population of less than 200,000 to allow an applicant to carry a loaded and exposed weapon, but only in that county with a population of less than 200,000. Some of these people that have been authorized to carry a loaded and exposed weapon have been going to other counties, with a population of over 200,000, with the loaded and exposed weapon, which is a violation of their CCW authorization. Currently in law, Section 12031 of the California Penal Code, which is the law making it illegal to carry a loaded firearm in public, provides for an exception to an individual who has a CCW permit. However, the exception does not appropriately address the two different CCW authorizations. By making a simple language change to the exception, Section 12031 will properly address the two different CCW authorizations and provide a penalty for individuals who abuse their (More) AB 1363 (Davis) PageH CCW privileges. 2.History of Concealed Weapons/Open Carry Licenses Since at least 1953 when the current Penal Code Section 12050 was first enacted, sheriffs and police chiefs have been authorized to issue licenses to carry concealed weapons and to openly carry loaded weapons (board of police commissioners and city and town marshal were once given such authority as well, but were eliminated in 1969). The existing limitation to issue such licenses to "a resident of the county" was added in 1969. In 1997, the section was amended to permit a sheriff to issue such licenses to any county resident, and further provided that a city police chief may issue these licenses only to city residents. This amendment limited the authority of a chief or other head of a municipal police department of any city to issue these licenses to applicants who are residents of that city. 3.Clarifying the Scope of Open Carry Licenses Currently, Penal Code Section 12050 states that a sheriff or police chief in a county with a population of under 200,000 may issue "a license to carry loaded and exposed in that county a pistol, revolver, or other firearm capable of being concealed upon the person." (Penal Code Section 12050 (a)(1)(A)(ii) and (A)(1)(B)(ii).) This bill amends Section 12050 to state that a sheriff or chief of police may issue "a license to carry [a handgun] loaded and exposed in only that county." Additionally, Penal Code Section 12031 (b)(6) currently provides that the general prohibition against carrying a loaded firearm in public does not apply to "The carrying of pistols, revolvers, or other firearms capable of being concealed upon the person by persons who are authorized to carry those weapons pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of Part 4." This has apparently led some to assert that a license to openly carry a loaded firearm in public is valid statewide. Therefore, this bill also amends Penal Code Section 12031 to state that the exception to the general prohibition on carrying a loaded firearm in public applies to the carrying of AB 1363 (Davis) PageI handguns as authorized in Section 12050, and the sections immediately following it. These two amendments, taken together, should eliminate any ambiguity as to whether a license to openly carry a loaded handgun is valid outside the county in which it was issued. SHOULD THIS CLARIFICATION BE MADE? ***************