BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1934|
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THIRD READING
Bill No: AB 1934
Author: Saldana (D), et al
Amended: 6/30/10 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-3, 6/22/10
AYES: Leno, Cedillo, Hancock, Steinberg
NOES: Cogdill, Huff, Wright
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 46-30, 6/1/10 - See last page for vote
SUBJECT : Open carrying of unloaded handguns
SOURCE : Author
DIGEST : This bill prohibits the open carrying of
unloaded handguns in public, except as specified.
ANALYSIS : Existing law defines handgun as any pistol,
revolver, or firearm capable of being concealed upon the
person. (Penal Code Section 12001(a)(2).)
Existing law prohibits carrying a concealed weapon, loaded
or unloaded, unless granted a permit to do so. Except as
otherwise provided, a person is guilty of carrying a
concealed firearm when he or she:
1. Carries concealed within any vehicle which is under his
CONTINUED
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or her control or direction any pistol, revolver, or
other firearm capable of being concealed upon the
person.
2. 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.
3. 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).)
Existing law 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 both. However,
there are several circumstances in which carrying a
concealed weapon may be punishable as a felony or alternate
felony-misdemeanor:
1. A felony where the person has previously been convicted
of any felony or of any crime made punishable by the
Dangerous Weapons Control Law.
2. A felony where the firearm is stolen and the person
knew, or had reasonable cause to believe, that the
firearm was stolen.
3. A felony where the person is an active participant in a
criminal street gang.
4. 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.
5. 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.
6. An alternate felony-misdemeanor where:
A. Both the concealable firearm and the unexpended
ammunition for that firearm are either in the
immediate possession of the person or readily
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available to that person or where the firearm is
loaded.
B. The person is not listed with the Department of
Justice (DOJ) as the registered owner of the
firearm. (Penal Code Section 12025(b).)
Existing law 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.)
Existing law authorizes 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 satisfies
any one of specified conditions, and has completed a course
of training, as specified, to 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:
1. A license to carry concealed a pistol, revolver, or
other firearm capable of being concealed upon the
person.
2. 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 only
that county a pistol, revolver, or other firearm capable
of being concealed upon the person. (Penal Code Section
12050 .)
Existing law prohibits the carrying of 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 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.)
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Existing law provides that a firearm shall be deemed to be
loaded for the purposes of Penal Code Section 12031 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).)
Existing law provides in the Fish and Game Code that it is
unlawful to possess a loaded rifle or shotgun in any
vehicle or conveyance or its attachments which is standing
on or along or is being driven on or along any public
highway or other way open to the public. (Fish and Game
Code Section 2006.)
Existing law provides that a rifle or shotgun shall be
deemed to be loaded for the purposes of this section when
there is an unexpended cartridge or shell in the firing
chamber but not when the only cartridges or shells are in
the magazine. (Id.)
Existing law 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 both. However,
there are several circumstances in which the penalty may be
punishable as a felony or alternate felony-misdemeanor:
1. A felony where the person has previously been convicted
of any felony or of any crime made punishable by the
Dangerous Weapons Control Law.
2. A felony where the firearm is stolen and the person knew
or had reasonable cause to believe that the firearm was
stolen.
3. A felony where the person is an active participant in a
criminal street gang.
4. A felony where the person is not in lawful possession of
the firearm, as defined, or the person is within a class
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of persons prohibited from possessing or acquiring a
firearm.
5. 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.
6. 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).)
Existing law prohibits a person, without appropriate
permission, as specified, from possessing a firearm within
an area that the 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.)
Existing law 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 12021(b).)
Existing law 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).)
Existing law 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
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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).)
This bill makes it a misdemeanor, punishable by up to six
months in jail, a fine of up to $1000, or both, for a
person to carry 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.
This bill states that it does not preclude prosecution
under any other law with a penalty greater than is set
forth in this section.
This bill provides that its provisions 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.
This bill exempts the following circumstances from the
prohibition proposed by this bill:
1. The open carrying of an unloaded handgun by any peace
officer or any honorably retired peace officer if he or
she may carry a concealed firearm pursuant to Section
12027 or a loaded firearm pursuant to Section 12031.
2. The open carrying of an unloaded handgun by any person
to the extent that person may carry a loaded firearm
pursuant to Section 12031.
3. The open carrying of an unloaded handgun as merchandise
by a person who is engaged in the business of
manufacturing, importing, wholesaling, repairing, or
dealing in firearms and who is licensed to engage in
that business or the authorized representative or
authorized agent of that person while engaged in the
lawful course of the business.
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4. The open carrying of an unloaded handgun by duly
authorized military or civil organizations while
parading or while rehearsing or practicing parading, or
the members thereof when at the meeting places of their
respective organizations.
5. 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.
6. The open carrying of an unloaded handgun by a licensed
hunter while engaged in lawful hunting or while
transporting that handgun when going to or returning
from that hunting expedition.
7. 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.
8. The open carrying of an unloaded handgun by a member of
an organization chartered by the Congress of the United
States or a nonprofit mutual or public benefit
corporation organized and recognized as a nonprofit
tax-exempt organization by the Internal Revenue Service
while on official parade duty or ceremonial occasions of
that organization or while rehearsing or practicing for
official parade duty or ceremonial occasions.
9. The open carrying of an unloaded handgun within a gun
show conducted pursuant to Sections 12071.1 and 12071.4.
10.The open carrying of an unloaded handgun within a school
zone, as defined in Section 626.9, with the written
permission of the school district superintendent, his or
her designee, or equivalent school authority.
11.The open carrying of an unloaded handgun when in
accordance with the provisions of Section 171b.
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12.The open carrying of an unloaded handgun by any person
while engaged in the act of making or attempting to make
a lawful arrest.
13.The open carrying of an unloaded handgun incident to
loaning, selling, or transferring the same in accordance
with Section 12072 or any of the exemptions from
subdivision (d) of Section 12072 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.
14.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.
15.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, as part of rehearsing or
practicing for participation in that production or
event, or while the participant or authorized employee
or agent is at that production or event, or rehearsal or
practice for that production or event.
16.The open carrying of an unloaded handgun incident to
obtaining an identification number or mark assigned for
that handgun from the Department of Justice pursuant to
Section 12092.
17.The open carrying of an unloaded handgun at established
target ranges, whether public or private, while the
person is using the handgun upon the target ranges.
18.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.
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19.The open carrying of an unloaded handgun incident to:
A. Complying with paragraph (2) or (3) of
subdivision (f) of Section 12072 as it pertains to
that handgun.
B. Subdivision (l) of Section 12078 as it pertains
to that handgun.
Paragraph (6) of subdivision (a) of Section 12078 as
it pertains to that handgun.
C. Complying with subdivision (c) or (i) of Section
12078 as it pertains to that handgun.
20.The open carrying of an unloaded handgun incident to
and in the course and scope of training of or by an
individual to become a sworn peace officer as part of
a course of study approved by the Commission on Peace
Officer Standards and Training.
21.The open carrying of an unloaded handgun incident to
and in the course and scope of training of or by an
individual to become licensed pursuant to Section
12050 as part of a course of study necessary or
authorized by the person authorized to issue the
license pursuant to Section 12050.
22.The open carrying of an unloaded handgun incident to
and at the request of a sheriff or chief or other head
of a municipal police department.
23.The open carrying of an unloaded handgun by a person
when done within a place of business, a place of
residence, or on private property, if done with the
permission of a person who by virtue of subdivision
(a) of Section 12026, may carry openly an unloaded
handgun within that place of business, place of
residence, or on that private property owned or
lawfully possessed by that person.
24.The open carrying of an unloaded handgun at an auction
or similar event of a nonprofit public benefit or
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mutual benefit corporation at which firearms are
auctioned or otherwise sold to fund the activities of
that corporation or the local chapters of that
corporation if that handgun is a handgun that is to
be auctioned or otherwise sold for that nonprofit
public benefit or mutual benefit and it is to be
delivered by a person licensed pursuant to, and
operating in accordance with Section 12071.
This bill provides that motwithstanding the fact that the
term "an unloaded handgun" is used in this section, each
handgun shall constitute a distinct and separate offense
under this section.
This bill provides that for purposes of this section, the
following shall apply:
1. A handgun shall be deemed unloaded if it is not "loaded"
within the meaning of subdivision (g) of Section 12031.
2. The term "prohibited area" means any place where it is
unlawful to discharge a weapon.
3. The term "public place" shall have the same meaning as
in Section 12031.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/2/10)
Association of Bay Area Governments
Brady Campaign to Prevent Gun Violence, California Chapters
Brady Campaign to Prevent Gun Violence, Orange County
Chapter
California Police Chiefs Association
City and County of San Francisco
City of Berkeley
City of Los Angeles
City of Los Angeles (Mayor approved resolution by City
Council to support
AB 1934)
City of Santa Barbara
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City of West Hollywood, Office of the Mayor
Coalition Against Gun Violence, Santa Barbara County
Councilmember Kevin McCarty, City of Sacramento
Councilmember Marti Emerald, City of San Diego
County of Los Angeles Sheriff's Department
Friends Committee on Legislation of California
Interfaith Council of Contra Costa County
LA Times Editorial Board
Legal Community Against Violence
Long Beach Police Officers Association
Peace Officer Research Association of California
Police Department, City and County of San Francisco
San Jose Councilmember Ash Kalra, District 2
SD Union Tribune Editorial Board
SF Chronicle Editorial Board
Violence Prevention Coalition of Greater Los Angeles
Violence Prevention Coalition of Orange County
Women Against Gun Violence
Youth ALIVE!
OPPOSITION : (Verified 8/2/10)
California Rifle and Pistol Association, Inc.
Kittles Outdoor Sport Co.
National Rifle Association of America
Responsible Citizens of California
ARGUMENTS IN SUPPORT : According to the author's office,
"As part of a growing "open carry movement" in California,
gun enthusiasts have been openly carrying unloaded handguns
in public places like coffee shops and restaurants, and at
political rallies. Open carry advocates seek to normalize
the carrying of firearms in public places. Their
threatening and confrontational conduct intimidates the
public, wastes law enforcement resources and needlessly
increases the risk of firearm-related deaths and injuries."
The California Police Chiefs Association states, "Current
statutes do not presumptively prohibit the exposed carrying
of an unloaded handgun in public areas. "Open carry" does
not require a permit. By contrast, carrying a concealed
firearm does require the applicant to demonstrate
responsibility and a need to their respective police chief
or county sheriff. As a result, there has been an increase
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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.
"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. The California Police Chiefs
Association would submit that in the context of the state's
current economic challenges that the practice of openly
carrying a handgun in public areas has created an
additional drain on police services that are already
stretched thin."
ARGUMENTS IN OPPOSITION : The California Rifle and Pistol
Association states, "On behalf of the membership of the
California Rifle and Pistol Association (CRPA), I am
expressing our opposition to AB 1934 for many reasons,
including the following:
AB 1934 does not take into account public and
private lands used by the public for outdoor
recreation purposes.
Hunters, fishermen, hikers, campers, and others
would not be able to openly carry a handgun while
recreating on vast tracts of public land.
Unarmed individuals would be at risk in remote
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areas with no means to protect themselves.
AB 1934's checkerboard approach to allowing
individuals to carry a loaded or unloaded handgun
outside of a vehicle in remote areas and not in a
prohibited areas adjacent to remote areas (e.g.,
campgrounds, going to and from campgrounds, returning
from fishing to a campground, crossing a designated
dirt road or trail, etc.) would cause confusion for
the public and make law abiding citizens into
criminals because they may not be aware of the
specific prohibited areas.
Many remote areas do not have cell phone coverage
making it impossible to call for law enforcement help.
Even if a person were able to call for help, the time
for law enforcement to respond would be too long to be
of any assistance. As an example, having a handgun
could literally mean the difference between life and
death in the case of a predatory mountain lion attack.
Pepper spray is not always effective at halting
dangerous animals and predators. And, in the case of
attacks, you will not have time to open a locked gun
case to defend yourself.
People need the option to carry a handgun for self
defense. Backcountry areas are known to harbor
illegal meth labs and marijuana gardens. The criminal
element that engages in these activities pose a threat
to hunters, fishermen, hikers, campers, and anyone who
uses public lands and private timberlands open to the
public for recreational purposes.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Block, Blumenfield,
Bradford, Brownley, Buchanan, Charles Calderon, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fong, Fuentes, Furutani, Hall, Hayashi, Hernandez,
Hill, Huffman, Jones, Lieu, Bonnie Lowenthal, Ma,
Monning, Nava, V. Manuel Perez, Portantino, Ruskin,
Salas, Saldana, Skinner, Solorio, Swanson, Torlakson,
Torres, Torrico, Yamada, John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Blakeslee,
Caballero, Conway, Cook, DeVore, Emmerson, Fletcher,
Fuller, Gaines, Galgiani, Garrick, Gilmore, Hagman,
Harkey, Huber, Jeffries, Knight, Logue, Miller, Nestande,
Niello, Nielsen, Norby, Silva, Smyth, Tran, Villines
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NO VOTE RECORDED: Tom Berryhill, Mendoza, Audra Strickland,
Vacancy
RJG:do 8/3/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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