BILL ANALYSIS AB 1934 Page 1 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; AB 1934 Page 2 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 AB 1934 Page 3 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 AB 1934 Page 4 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 AB 1934 Page 5 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 AB 1934 Page 6 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 AB 1934 Page 7 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. AB 1934 Page 8 "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 AB 1934 Page 9 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. AB 1934 Page 10 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