BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          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?






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                                                            AB 1363 (Davis)
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                                       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,  




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                                                            AB 1363 (Davis)
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               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  




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                                                            AB 1363 (Davis)
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          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)  




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                                                            AB 1363 (Davis)
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          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).)



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                                                            AB 1363 (Davis)
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               . . .  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>








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          <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  




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                                                            AB 1363 (Davis)
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              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)
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          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?



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