BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1934
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          Date of Hearing:   April 20, 2010
          Chief Counsel:      Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    AB 1934 (Saldana) - As Amended:  April 6, 2010
                       As Proposed to be Amended in Committee


           SUMMARY  :   Makes it a misdemeanor for any person to carry an  
          exposed an unloaded handgun outside a vehicle on his or her  
          person while in any public place or on any public street in an  
          incorporated city.  Specifically,  this bill  : 

          1)Makes it a misdemeanor punishable by imprisonment in the  
            county jail not to exceed six months, by a fine not to exceed  
            $1,000, or by both a fine and imprisonment when any person  
            carries an exposed and unloaded handgun outside a vehicle on  
            his or her person 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 an unincorporated  
            territory.

          2)States that the sentencing provisions of this prohibition  
            shall not preclude prosecution under other specified  
            provisions of law with a penalty that is greater.

          3)States that the provisions of this prohibition are cumulative,  
            and shall not be construed as restricting the application of  
            any other law.  However, an act or omission punishable in  
            different ways by different provisions of law shall not be  
            punished under more than one provision.

          4)Provides that the prohibition against openly carrying a  
            handgun in a public place shall not apply to, or affect, any  
            of the following:

             a)   The open carrying of an unloaded handgun by any peace  
               officer or by an honorably retired peace officer authorized  
               to carry a handgun;

             b)   The open carrying of an unloaded handgun by any person  
               authorized to carry a loaded handgun;








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             c)   The open carrying of an unloaded handgun as merchandise  
               by a person who is engaged in the business of  
               manufacturing, wholesaling, repairing or dealing in  
               firearms and who is licensed to engaged in that business or  
               an authorized representative of that business;

             d)   The open carrying of an unloaded handgun by duly  
               authorized military or civil organizations while parading,  
               or the members thereof when at the meeting places of their  
               respective organizations;

             e)   The open carrying of an unloaded handgun by a member of  
               any club or organization organized for the purpose of  
               practicing shooting at targets upon established target  
               ranges, whether public or private, while the members are  
               using handguns upon the target ranges or incident to the  
               use of a handgun at that target range;

             f)   The open carrying of an unloaded handgun by a licensed  
               hunter while engaged in lawful hunting;

             g)   The open carrying of an unloaded handgun incident to  
               transportation of a handgun by a person operating a  
               licensed common carrier or an authorized agent or employee  
               thereof when transported in conformance with applicable  
               federal law;

             h)   The open carrying of an unloaded handgun by a member of  
               an organization chartered by the Congress of the United  
               States or nonprofit mutual or public benefit corporation  
               organized and recognized as a nonprofit tax-exempt  
               organization by the Internal Revenue Service while an  
               official parade duty or ceremonial occasions of that  
               organization;

             i)   The open carrying of an unloaded handgun within a gun  
               show;

             j)   The open carrying of an unloaded handgun within a school  
               zone, as defined, with the written permission of the school  
               district superintendent, his or her designee, or equivalent  
               school authority;

             aa)  The open carrying of an unloaded handgun when in  








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               accordance with the provisions relating to the possession  
               of a weapon in a public building or State Capitol;

             bb)  The open carrying of an unloaded handgun by any person  
               while engaged in the act of making or attempting to make a  
               lawful arrest;

             cc)  The open carrying of an unloaded handgun incident to  
               loaning, selling, or transferring the same, so long as that  
               handgun is possessed within private property and the  
               possession and carrying is with the permission of the owner  
               or lessee of that private property;

             dd)  The open carrying of an unloaded handgun by a person  
               engaged in firearms-related activities, while on the  
               premises of a fixed place of business which is licensed to  
               conduct and conducts, as a regular course of its business,  
               activities related to the sale, making, repair, transfer,  
               pawn, or the use of firearms, or related to firearms  
               training;

             ee)  The open carrying of an unloaded handgun by an  
               authorized participant in, or an authorized employee or  
               agent of a supplier of firearms for, a motion picture,  
               television, or video production or entertainment event when  
               the participant lawfully uses the handgun as part of that  
               production or event or while the participant or authorized  
               employee or agent is at that production event;

             ff)  The open carrying of an unloaded handgun incident to  
               obtaining an identification number or mark assigned for  
               that handgun from the Department of Justice (DOJ);

             gg)  The open carrying of an unloaded handgun by a person  
               when that person is summoned by a peace officer to assist  
               in making arrests or preserving the peace while he or she  
               is actually engaged in assisting that officer; or,

             hh)  The open carrying of an unloaded handgun incident to a  
               private party transfer through a licensed firearms dealer.

          5)Deletes provisions of law that allow a firearm to be carried  
            openly in a belt holster.

          6)Deletes an outdated provision of law that was no longer  








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            operative and was to have been repealed on January 1, 2005  
            that required the Attorney General to submit a report to the  
            Legislature on the race, age, gender, and ethnicity of any  
            person charged with carrying a concealed handgun upon his or  
            her person or in a vehicle.

          7)Exempts the transportation a firearm by a member of an  
            organization, directly to, or directly from, official parade  
            duty or ceremonial occasions of that organization if that  
            organization is chartered by the Congress of the United  
            States, or is a nonprofit mutual or public benefit corporation  
            organized and recognized as a nonprofit tax exempt  
            organization by the Internal Revenue Service.

          8)Makes conforming and nonsubstantive technical changes.

           EXISTING LAW  :

          1)Defines "handgun" as any "pistol," "revolver," or "firearm  
            capable of being concealed upon the person."  [Penal Code  
            Section 12001(a)(2).]

          2)Provides, except as otherwise provided, that a person is  
            guilty of carrying a concealed firearm when he or she:

             a)   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;

             b)   Causes to be concealed within any vehicle in which the  
               person is an occupant any pistol, revolver, or other  
               firearm capable of being concealed upon the person; or,

             c)   Carries concealed upon his or her person any pistol,  
               revolver, or other firearm capable of being concealed upon  
               the person.  [Penal Code Section 12025(a).]

          3)Provides that carrying a concealed firearm is generally a  
            misdemeanor, punishable by up to one year in a county jail; by  
            a fine of up to $1,000; or by both the fine and imprisonment.   
            However, there are six circumstances where the penalty may be  
            punishable as a felony or alternate felony-misdemeanor:

             a)   A felony where the person has previously been convicted  
               of any felony or of any crime made punishable by the  








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               Dangerous Weapons Control Law;

             b)   A felony where the firearm is stolen and the person  
               knew, or had reasonable cause to believe, that the firearm  
               was stolen;

             c)   A felony where the person is an active participant in a  
               criminal street gang;

             d)   A felony where the person is not in lawful possession of  
               the firearm, as defined, or the person is within a class of  
               persons prohibited from possessing or acquiring a firearm;

             e)   An alternate felony-misdemeanor where the person has  
               been convicted of a crime against a person or property or  
               of a narcotics or dangerous drug violation; and,

             f)   An alternate felony-misdemeanor where:

               i)     Both the concealable firearm and the unexpended  
                 ammunition for that firearm are either in the immediate  
                 possession of the person or readily available to that  
                 person or where the firearm is loaded; and,

               ii)    The person is not listed with the DOJ as the  
                 registered owner of the firearm.  [Penal Code Section  
                 12025(b).]

          4)Provides a number of exceptions and limitations to the  
            prohibition on carrying a concealed firearm including methods  
            to lawfully carry firearms in a vehicle, a home, or a  
            business, etc.  (Penal Code Sections 12025.5, 12026, 12026.1,  
            12026.2, 12027, and 12050.)

          5)Defines a "loaded firearm" as "when there is an unexpended  
            cartridge or shell, consisting of a case that holds a charge  
            of powder and a bullet or shot, in, or attached in any manner  
            to, the firearm including, but not limited to, in the firing  
            chamber, magazine, or clip thereof attached to the firearm;  
            except that a muzzle-loader firearm shall be deemed to be  
            loaded when it is capped or primed and has a powder charge and  
            ball or shot in the barrel or cylinder."  [Penal Code Section  
            12031(g).]

          6)Prohibits the carrying of a loaded firearm on his or her  








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            person or in a vehicle while in any public place or on any  
            public street in an incorporated city or a prohibited area of  
            unincorporated territory.  The penalty provisions for this  
            prohibition are substantially similar to those provided in  
            Penal Code Section 12025(b) and provide numerous exceptions  
            and limitation to this prohibition.  (Penal Code Section  
            12031.) 

          7)Provides that carrying a loaded firearm is generally a  
            misdemeanor, punishable by up to one year in a county jail; by  
            a fine of up to $1,000; or by both the fine and imprisonment.   
            However, there are six circumstances where the penalty may be  
            punishable as a felony or alternate felony-misdemeanor:

             a)   A felony where the person has previously been convicted  
               of any felony or of any crime made punishable by the  
               Dangerous Weapons Control Law;

             b)   A felony where the firearm is stolen and the person knew  
               or had reasonable cause to believe that the firearm was  
               stolen;

             c)   A felony where the person is an active participant in a  
               criminal street gang;

             d)   A felony where the person is not in lawful possession of  
               the firearm, as defined, or the person is within a class of  
               persons prohibited from possessing or acquiring a firearm;

             e)   An alternate felony-misdemeanor punishable by  
               imprisonment in the state prison; by imprisonment in a  
               county jail not to exceed one year; by a fine not to exceed  
               $1,000; or by both that imprisonment and fine where the  
               person has been convicted of a crime against a person or  
               property or of a narcotics or dangerous drug violation.

             f)   An alternate felony-misdemeanor punishable by  
               imprisonment in the state prison; by imprisonment in a  
               county jail not to exceed one year; by a fine not to exceed  
               $1,000; or by both that imprisonment and fine where the  
               person is not listed with the DOJ as the registered owner  
               of the firearm.  [Penal Code Section 12031(b).]

          8)Prohibits a person, without appropriate permission, as  
            specified, from possessing a firearm within an area that the  








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            person knew or reasonably should have known was a "school  
            zone", defined as an area in or on the grounds of or within  
            1,000 feet of the grounds of any public or private K-12  
            school.  (Penal Code Section 629.9.)

          9)Provides that any person who has ever been convicted of a  
            felony and who owns or has in his or her possession or under  
            his or her custody or control a firearm is guilty of a felony,  
            punishable by 16 months, 2 or 3 years in prison.  [Penal Code  
            Section 12021(b).]

          10)Provides that every person who, except in self-defense, draws  
            or exhibits any firearm in public, loaded or unloaded, in the  
            presence of another person, in a rude, angry or threatening  
            manner is guilty of a misdemeanor and shall be imprisoned for  
            not less than three months nor more than one year in the  
            county jail; fined $1,000; or both.  [Penal Code Section  
            417(a).]

          11)Provides that every person who, except in self-defense, draws  
            or exhibits any firearm, loaded or unloaded, in a rude, angry  
            or threatening manner in public, in the presence of a peace  
            officer, who a reasonable person would know was in the  
            performance of his or her duty, is guilty of an alternate  
            misdemeanor/felony and shall be imprisoned for not less than  
            nine months and up to one year in the county jail or in the  
            state prison for 16 months, 2 or 3 years.  [Penal Code Section  
            417(c).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Current  
            statutes do not presumptively prohibit the exposed carrying of  
            an unloaded handgun in public areas.  'Open carry' does not  
            require a permit unlike carrying a concealed firearm, for  
            which the applicant must demonstrate responsibility and a need  
            to their respective county sheriff.  As a result, there has  
            been an increase in controversial events where individuals  
            openly carry unloaded handguns in public streets and  
            businesses.  For instance, a group of about 100 armed citizens  
            hoping to make it easier to carry loaded guns in California  
            gathered at a restaurant in the San Francisco Bay area suburbs  
            in February 2010.








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          "People who open carry often carry ammunition separately, which  
            is permitted under current law.  According to  
            CaliforniaOpenCarry.org, '...with a little practice, one can  
            easily load a handgun in under two seconds.'

          "Open carry creates a potentially dangerous situation.  In most  
            cases when a person is openly carrying a firearm, law  
            enforcement is called to the scene.  They may have few details  
            other than that one or more people are present at a location  
            and are armed.  Should the gun-carrying person move in a way  
            that could be construed as threatening, peace officers may  
            feel compelled to respond in a manner that could be lethal and  
            unsafe not only for the gun-carrying individual, but for  
            others nearby as well.

          "When responding to calls from concerned citizens, law  
            enforcement agents must determine whether the guns are  
            actually unloaded. In light of the state's current economic  
            crisis, is the practice of openly carrying a handgun in public  
            areas a drain on public safety resources?

          "Customers generally worry for their safety when someone carries  
            a firearm into a business.  Thus, many businesses, including  
            Buckhorn Grill, California Pizza Kitchen, and Peet's Coffee &  
            Tea, have recognized this concern and have prohibited  
            customers from openly carrying handguns in their  
            establishments."

           2)Argument in Support  :  According to the  Legal Community Against  
            Violence  , "Over the past year, members of the so-called 'open  
            carry movement' have shocked Californians statewide by holding  
            carrying events in public places like coffee shops,  
            restaurants, and public parks.  Open carry advocates seek to  
            normalize the carrying of firearms in public places, and use  
            open carrying to protest what they see as unjust state  
            firearms laws, including California's common-sense  
            restrictions on the issuance of concealed firearms licenses.

          "While member of the open carry movement argue that they are  
            just 'exercising their rights," the open carrying of firearms  
            intimidates the public, wastes law enforcement resources, and  
            creates opportunities for injury and death due to the  
            accidental or intentional use of firearms.  This conduct also  
            needlessly increases the likelihood that every day  








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            interpersonal conflicts will turn into deadly shootouts."

           3)Argument in Opposition  :  According to the  Gun Owners of  
            California  , "The Supreme Court of the United States (SCOTUS)  
            held in Heller v. Washington DC that the Second Amendment is  
            an individual right intimately tied to the natural right of  
            self-defense and that the Federal government could not deny  
            that right.  SCOTUS will announce its decision this June in  
            McDonald v. Chicago as to whether the Heller decision will be  
            incorporated thereby also preventing state and local  
            governments from infringing upon that right.

          "We believe that a ban on 'open carrying' of unloaded handguns  
            will bring a chilling effect on the constitutional rights of  
            all citizens.  Since the Second Amendment includes both the  
            right to keep and bear arms, the government of California is  
            going to have to come to grips as to how bearing will take  
            place.  As long as Carry Concealed Weapons Permits (CCWs) are  
            not available to the vast majority of law-abiding citizens in  
            California, the only other option is open carry.

          "The argument that citizens legally expressing their rights  
            causes some to e intimidated or uncomfortable is a vapid  
            excuse for curtailing both the First and Second Amendment  
            rights of any citizen.  It may make some people feel  
            uncomfortable or intimidated to hear someone espousing  
            communist or nazi or racist beliefs in the public square, but  
            as long as they are not breaking the law by exercising their  
            hate-filled beliefs into actual subversion of the country,  
            their rights of free speech, no matter how detestable, are  
            protected even if it makes some people uncomfortable.  That is  
            freedom!"

           4)Prior Legislation  .

             a)   AB 98 (Cohn), of the 2005-06 Legislative Session, would  
               have prohibited the carrying of an unloaded and exposed  
               handgun on the person or in a vehicle.  AB 98 was held in  
               the Assembly Appropriations Committee.

             b)   AB 2828 (Cohn), of the 2003-04 Legislative Session,  
               would have prohibited carrying an unloaded, exposed handgun  
               on public streets of cities and in vehicles.  AB 2828  
               failed passage in this Committee.









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             c)   AB 2501(Horton), of the 2003-04 Legislative Session,  
               would have prohibited carrying an unloaded and exposed  
               handgun in any public place if unexpended ammunition is  
               readily available unless the handgun is in a locked  
               container.  AB 2501 failed passage in this Committee.

           REGISTERED SUPPORT / OPPOSITION :   

           Support 
           
          California Chapters of the Brady Campaign to Prevent Gun  
          Violence
          Legal Community Against Violence
          Orange County Chapter of the Brady Campaign to Prevent Gun  
          Violence
          Violence Prevention Coalition of Orange County
          Coalition Against Gun Violence, Santa Barbara County
          Mayor, City of West Hollywood

           Opposition 
           
          California Rifle and Pistol Association
          Gun Owners of California
          National Rifle Association
          One Private Citizen


           Analysis Prepared by :    Gregory Pagan / PUB. S. / (916)  
          319-3744