BILL ANALYSIS AB 1498 Page 1 Date of Hearing: April 21, 2009 Counsel: Kimberly A. Horiuchi ASSEMBLY COMMITTEE ON PUBLIC SAFETY Jose Solorio, Chair AB 1498 (De Leon) - As Amended: April 2, 2009 As Proposed to be Amended in Committee SUMMARY : Expands the list of misdemeanor offenses for which a person may not possess a firearm for 10 years to include carrying a concealed weapon in a vehicle; carrying a loaded firearm, as specified; possession of an assault weapon; and any misdemeanor committed for the benefit of a criminal street gang, as specified. EXISTING LAW : 1)Provides a person is guilty of carrying a concealed firearm when he or she does any of the following: carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person; carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person; or causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person. [Penal Code Section 12025(a)(1) to (3).] 2)States any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense involving violent use of a firearm, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. [Penal Code Section 12021(a).] 3)Provides that any person who has been convicted of a felony or of an offense involving violent use of a firearm, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court, as specified, AB 1498 Page 2 and who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. [Penal Code Section 12021(b).] 4)States any person who has been convicted of various misdemeanors, and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison; by a fine not exceeding $1,000; or by both that imprisonment and fine. The court, on forms prescribed by DOJ, shall notify DOJ of persons subject to this provision. [Penal Code Section 12021(c).] 5)States any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail. [Penal Code Section 186.22(d).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : "In 2008 in the City of Los Angeles alone, 11,314 crimes were committed with a firearm. A handgun was used in 5,319 of those crimes and an assault weapon was used in 27. As of March 2009, 2,449 crimes have involved a firearm. A handgun was used in 1,149 and an assault weapon was used in 8. Extrapolating those numbers, and we find that statewide thousands of crimes are committed annually by criminals. AB 1498 Page 3 "A study published in the Journal of the American Medical Association found that handgun purchasers who had prior convictions for non-violent, firearm-related offenses such as carrying a concealed firearm in public, but none for violent offenses, were at increased risk for later violent offenses. "On a local level, this legislative proposal has been considered as a local ordinance in the City of Los Angeles by City Council members Jack Weiss and Janice Hahn. However, to expand the list of crimes included in Penal Code Section 12021(c) and add an individual to the California Department of Justice prohibited possessor list, state legislation is necessary. "GOAL: PREVENT GUN OWNERSHIP BY GANG MEMBERS AND THOSE CONVICTED OF GUN RELATED CRIMES: This proposal has two goals. First, by preventing gun ownership for 10 years targeting individuals who have committed certain gun-related misdemeanors, it would cure some of the infirmities in the prohibited possessor laws. Second, the law would target misdemeanor gang offenders and prevent gun ownership for 10 years by individuals who would be likely to commit more serious gun and gang-related crimes in the future. This proposal does not limit the rights of law abiding people. "EXPANDING THE LIST OF PROHIBITED POSSESSORS MAKES SENSE: Penal Code Section 12021(c) mandates that individuals convicted of felony or certain misdemeanor offenses be prohibited from possessing a firearm for 10 years from the date of their conviction. However, two important firearm-related misdemeanor offenses are absent from that list; carrying a concealed weapon (Penal Code Section 12025) and possessing an assault weapon (Penal Code Section 12280). Reasonable gun safety regulations would dictate that if an individual abuses his right to possess a weapon by doing so illegally, he should lose that right for a period of time. "Further, individuals who have been convicted of committing misdemeanor gang crimes should also have their right to possess a firearm restricted for the time already mandated by law (10 years). A gang enhancement to any misdemeanor is proof of gang affiliation and activity and is reason to prevent that individual from possessing firearms. AB 1498 Page 4 "The measure includes misdemeanor burglary because law enforcement agencies indicate that this is frequently a crime committed by people who later commit more serious, particularly gun-related gang, crimes. In order to try to prevent proliferation of more serious crimes, burglary should be added to the list of misdemeanors for which an individual is prohibited from possessing a firearm for 10 years. "POSSESSORS OF ILLEGAL AND DEADLY ASSAULT WEAPONS SHOULD LOSE THEIR RIGHT TO OWN GUNS: Assault weapons have been used in many high profile cases including Columbine, the shooting at the 101 California Street building in San Francisco, and the mall shootings in Omaha, Nebraska. The Washington D.C. area snipers also used assault weapons. Just last month, an assault weapon was involved in the killing of Oakland police officers. California law already bans possession of an assault weapon. Therefore, if an individual possesses a weapon already banned in California, that person should lose the privilege to own any kind of firearm for at least the prescribed 10-year period. " 2)Second Amendment and Firearms Prohibition : The Second Amendment to the United States Constitution was ratified in 1791 and states, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed". (U.S. Const., 2nd Amend.) For many years, courts have wrestled with the question of whether the Second Amendment protects the individual's right to own a weapon. However, after the seminal United States Supreme Court ruling in U.S. v. Miller (1939) 307 U.S. 178, it seemed relatively settled that the operative term in the Second Amendment is "militia" and that must be considered in interpreting and applying the Second Amendment; most scholars on the issue agreed." In United States vs. Cruikshank (1875) [92 U.S. 542], the Supreme Court held that the Second Amendment guaranteed states the right to maintain militias but did not guarantee to individuals the right to possess guns. Subsequently, in United States vs. Miller (1939), the Court upheld a federal law banning the interstate transportation of certain firearms. Miller, who had been arrested for transporting a double-barreled sawed-off shotgun from Oklahoma to Arkansas, sought the protection of the Second Amendment. The Court rejected Miller's argument, asserting that "we cannot AB 1498 Page 5 say that the Second Amendment guarantees the right to keep and bear such an instrument. . . . As currently interpreted, the Second Amendment does not pose a significant constitutional barrier to the enactment or enforcement of gun control laws, whether passed by Congress, state legislatures or local governments." [Stephens & Scheb, American Constitutional Law, Vol. II; Civil Rights and Liberties (hereinafter American Constitutional Law) 2008, pg. 10.] "For many years following the Supreme Court's decision in United States vs. Miller, the orthodox opinion among academics and federal appeals courts alike was that the Second Amendment to the United States Constitution did not protect possession of firearms unrelated to service in the lawfully established militia." [Merkel, Parker v. District of Columbia and the Hollowness of the Originalist Claims to Principled Neutrality (hereinafter Merkel) 18 Geo. Mason U. Civil Right L. Journal 251, 251.] In June of 2008, the United States Supreme Court ruled in District of Columbia vs. Heller that a District of Columbia ban on possession of a handgun was an unconstitutional violation of the 2nd Amendment [District of Columbia vs. Heller (hereinafter Heller) (2008) 128 S. Ct. 2783, 2797.] The Court stated: "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed . . . . ' " [Heller at 2797.] 3)Possession of a Firearm : Under existing law, there are instances in which possession of a handgun is illegal. A felon may not possess a firearm. [Penal Code Section AB 1498 Page 6 12021(b).] A person who has been convicted of a specified crime of violence charged as a misdemeanor may not possess a firearm for a period of 10 years. [Penal Code Section 12021(c)(1).] A person may not possess a firearm in his or her car except under specific circumstances, as specified. [Penal Code Section 12025 (a) and (b).] Generally, a person may not carry a loaded or concealed weapon in public. [Penal Code Section 12025(a); Penal Code Section 12031(a)(1).] However, unless a person is otherwise prohibited, nothing in existing law states a person may not possess a handgun in his or her home. Penal Code Section 12026(a) and (b) states: "[Provisions of law prohibiting possession under specified circumstances] shall not apply to or affect any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not [otherwise prohibited] who carries, either openly or concealed, anywhere within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident any pistol, revolver, or other firearm capable of being concealed upon the person." [Penal Code Section 12026(a).] 4)Arguments in Support : a) According to the Brady Campaign to Prevent Gun Violence , "Existing law mandates that individuals who have been convicted of a felony or certain misdemeanor offenses are prohibited from possessing a firearm. This bill would expand the list of misdemeanor offenses for which a firearm prohibition applies. Specifically, conviction for illegal carrying of a concealed firearm, illegal possession of an assault weapon and certain gang related activities would trigger a 10 year prohibition. If a person abuses his right to possess a firearm by doing so illegally, or engaged in activity that carries with it a risk of future violence, such as participation in a gang, then the logical consequences would be to lose the right to possess a firearm for a period of time." b) According to the Office of the Mayor, Antonio Villaraigosa , "In 2008 there were 1626 gunshot victims and of those 1050were gang-related incidents. Prohibiting ownership, possession, purchase or receipt of firearms would provide safety measures that would lead to a reduction in crimes involving guns in the City of Los AB 1498 Page 7 Angeles. The City of Los Angeles has made using all means necessary to prevent gun and gang violence one of its top priorities." 5)Argument in Opposition : According to Taxpayers for Improving Public Safety , "Existing law provides that a person convicted of specified misdemeanor crimes that, within 10 years of the conviction, owns, purchases, receives or has in his or her possession or under his or her control any firearm is guilty of an additional public offense. This bill would add specified misdemeanor crimes related to possession of a loaded weapon in public and other activities. While possession of a loaded weapon in public (PC 12031) arguably sounds serious, there are many other instances where the act is entirely without any criminal intent or violence. For example, an otherwise lawful firearm enthusiast at a public shooting range may suddenly be in violation of PC 12031 upon stepping over the boundary of the shooting range and onto an adjoining property to recover spent cartridges or other equipment while still holding the loaded firearm. Additionally, after a day at the shooting range a similar enthusiast who believes they have no more ammunition in their possession and intends to lawfully transport the weapon in the vehicle may be found guilty of PC 12031 based on the presence of a lone loose round of ammunition that has rolled under a seat, between the seats, or in some other nook of the vehicle in such a manner that the individual or individuals are now technically in violation of the code section. The 10 year prohibition on firearms ownership and possession was designed to address violent acts, with criminal intent, which are plausibly linked to incidences of increased violence due to the presence or access to firearms. AB 1498 disregards this model entirely and seeks instead to push California down a slippery slope of prohibiting firearms owners and possession-and the ability to adequately protect one's family, self, and home against harm-for any misdemeanor act." 6)Related Legislation : AB 814 (Krekorian) establishes a procedure for a defendant who owns, possesses, or has custody or control of a firearm to sell that firearm to a firearms dealer or relinquish the firearm to a law enforcement agency when the defendant has been convicted of a specified offense and prohibited from owning a firearm. AB 814 pending hearing by the Assembly Committee on Appropriations. AB 1498 Page 8 REGISTERED SUPPORT / OPPOSITION : Support California Chapters of the Brady Campaign to Prevent Gun Violence Office of the Mayor, Antonio Villaraigosa Legal Community Against Violence Opposition California Public Defenders Association Gun Owners of California Taxpayers for Improving Public Safety Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916) 319-3744