BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 585 (Leno)
As Introduced February 27, 2009
Hearing date: April 14, 2009
Food and Agricultural Code
SM:br
FIREARMS - PROHIBITING SALES AT THE COW PALACE
HISTORY
Source: District Attorney of San Francisco
Prior Legislation: AB 2948 (Leno) - failed passage, Senate Floor
SB 1733 (Speier) - failed passage, Assembly Floor
HR 26 (Machado) - 2000; not heard, Assembly
Committee on Public Safety
AB 1575 (Machado) - as amended 5-24-99 and deleted
by amendments 7-1-99; Senate Committee on Public
Safety
AB 1107 (Ortiz) - 1998; failed Assembly Committee
on Appropriations
Support: Brady Campaign to Prevent Gun Violence, California
Chapters; Legal Community Against Violence
Opposition:National Rifle Association; California Association of
Firearm Retailers; California Outdoor Heritage
Alliance; California Rifle and Pistol Association;
California Sportsman's Lobby, Inc.; Crossroads of the
West Gun Shows; National Shooting Sports Foundation,
Inc.; Outdoor Sportsman's Coalition of California;
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Safari Club International Foundation and Safari Club
International; Western Fairs Association; numerous
private citizens
KEY ISSUE
SHOULD FIREARMS OR AMMUNITION SALES BE PROHIBITED ON THE STATE
PROPERTY KNOWN AS THE COW PALACE?
PURPOSE
The purpose of this bill is to prohibit firearms or ammunition
sales on the state property known as the Cow Palace.
Existing law provides the following pertaining to the Cow
Palace, a state-owned facility managed by Agricultural District
1-A:
Defines "state designated fairs" as fairs, as
specified, that may receive financial support or are
otherwise governed pursuant to specified sections of
law. The district agricultural associations and their
locations are as follows: . . . (2) District 1-A,
held in the City of San Francisco.
Provides that the state is divided into agricultural
districts, including "District 1-A is the County of
San Mateo and the City and County of San Francisco."
(Food and Agricultural Code 3851 and 3853.)
Provides that an association, with the approval of
both the Department of Food and Agriculture and the
Department of General Services, may do any of the
following:
(a) Contract.
(b) Purchase, acquire, hold, sell, exchange, or
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convey any interest in real or personal property and
beautify or improve that property, as specified.
(c) Lease, let, or grant licenses for the use of its
real estate or personal property, or any portion of
that property, to any person or public body for
whatever purpose may be approved by the board.
(d) Use or manage its real estate or personal
property, or any portion of that property, for any or
all of the purposes of this section jointly with any
lessee, sublessee, or licensee, or otherwise use or
manage the property in connection with the lease,
sublease, or license which is made or granted.
(e) Lease or let its real property for public park,
recreational, or playground purposes.
(f) Rent or permit the use of its premises for any
purpose which is beneficial to the agricultural
industry, including, but not limited to, the holding of
sales or auctions of cattle or other livestock.
(g) Contract with any county or county fair
association for holding a fair jointly with the county
or county fair association. The joint fair is a
district fair of the association.
(h) Make permanent improvements upon publicly owned
real property adjacent to real property of the district
when the improvements materially benefit the property
of the district.
(i) Pledge any and all revenues, moneys, accounts,
accounts receivable, contract rights, and other rights
to payment of whatever kind, pursuant to such terms and
conditions as are approved by the board, as specified.
Existing law generally requires that the sale, loan or transfer
of a firearm (handguns, rifles and shotguns) in California -
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including private party transactions and including transactions
at gun shows - must be conducted through a state licensed
firearms dealer or through a local sheriff's department in
counties of less than 200,000 population. A 10-day waiting
period, background check, and Handgun Safety Certificate for
handgun transfers are required prior to delivery of the firearm.
Firearms dealers are allowed to conduct business only in their
licensed premises, sell their gun inventory at gun shows or
events, or process private sales or transfers of any firearms at
gun shows or events. Handgun purchases are limited to no more
than one per 30-day period. Transferees must be California
residents and no person under age 21 may buy a handgun and no
person under 18 years of age may buy a rifle or shotgun. (Penal
Code 12071, 12072, 12082, and 12084.) Numerous other
requirements in law pertain to the transfer of firearms,
including prohibited categories of persons who may not possess
firearms. There are a number of criminal penalties applicable
to those firearm provisions. (Penal Code 12021 and 12021.1.)
Existing law (including the Gun Show Enforcement and Security
Act of 2000) places a number of specified requirements on gun
show operators, attendees at gun shows, and the Department of
Justice. (Penal Code 12071.1 and 12071.4.)
Existing law prohibits bringing specified weapons within any
state or local building, punishable as an alternate
misdemeanor/felony, with specified exceptions, including:
(7) (A) A person who, for the purpose of sale or
trade, brings any weapon that may otherwise be
lawfully transferred, into a gun show conducted
pursuant to Sections 12071.1 and 12071.4.
(B) A person who, for purposes of an authorized
public exhibition, brings any weapon that may
otherwise be lawfully possessed, into a gun show
conducted pursuant to Sections 12071.1 and 12071.4.
Existing law provides that unless a different penalty is
expressly provided, a violation of any provision of this code is
a misdemeanor. (Food & Ag. Code 9.)
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This bill amends the Food and Agriculture Code to provide that
no officer, employee, operator, or any lessee of District 1-A,
as defined, may contract for, authorize, or allow, the sale of
any firearm or ammunition, as defined, on the property or in the
buildings that comprise the Cow Palace property in San Mateo
County and the City and County of San Francisco or any successor
or additional property owned, leased, or otherwise occupied or
operated by the district. A violation of these provisions would
be a misdemeanor.
This bill includes the following definitions regarding that
prohibition:
. . . "firearm" means the term as included in subdivisions
(b), (c), and (d) of Section 12001 of the Penal Code.
The term "ammunition" includes assembled ammunition for use in
a firearm and components of ammunition including smokeless and
black powder, and any projectile capable of being fired from a
firearm with deadly consequence.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
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
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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.
. . . 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
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<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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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>
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 the Bill
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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).
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According to the author:
The Board of Supervisors for the City and County of
San Francisco and the County of San Mateo have
adopted resolutions on unanimous votes to seek
Legislative help to end the gun shows at the Cow
Palace. The state-owned facility straddles both
counties, and is located near the Sunnydale public
housing project and the communities of Visitacion
Valley, Bayview-Hunters Point and the Mission
District. These communities have been plagued by
violence for many years. But, unlike similar
facilities owned by the county in which they are
located, the Cow Palace is owned and operated by the
California Department of Agriculture's Division of
Fairs and Expositions. For this reason, local
residents have no control over the types of events
that take place at the facility.
Because the Cow Palace is a state-owned facility,
legislation is needed to provide the neighboring
residents and communities with local control
equivalent to communities with county-run
facilities. SB 585 would finally provide the
communities of San Francisco and San Mateo with an
outcome that the counties of Alameda, Marin and Los
Angeles have been able to implement at similar
locally cited facilities.
2. First Amendment Issues
As stated by the author, several counties have banned firearms
on county property with the result that gun shows are prohibited
on county property as well. Unlike the Cow Palace and venue at
the California Exposition site in Sacramento which are state
property, most fairs are held on county or city property.
Adopting bans on firearms on county property is partially the
result of court cases pertaining to county bans on gun shows in
general.
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In 1997 the Ninth Circuit of the United States Court of Appeals
held that Santa Clara County violated the First Amendment to the
United States Constitution by preventing the operation of gun
shows in the county. The Court explained that since guns were
legal to sell, an offer to sell a gun at a gun show is a
constitutionally protected exercise of free expression under the
First Amendment. However, the Ninth Circuit explained that if
the county had made the sale of guns at the fairgrounds illegal
through an ordinance (and assuming the county had the authority
to do so), it would not violate the First Amendment to prohibit
gun shows. (Nordyke v. Santa Clara County, 110 F.3d 707 (9th
Cir. 1997).) Instead, the county, which owned the Santa Clara
Fairgrounds, had inserted a clause in a lease to attempt to
prevent the lessee from subleasing the fairgrounds to gun shows.
Thus, gun shows were not illegal. The county had attempted to
prevent them by contract.
Therefore, this bill, which by state law would outlaw sales of
firearms on this state property, does not appear to violate the
First Amendment because it would not infringe upon legal
commercial expression.
3. No Conflict with Existing Law
Existing law imposes a general ban on bringing weapons including
firearms into state buildings; however, there is an express
exception for gun shows. (Penal Code 171b (b)(7)(A).) This
bill's language that its provisions apply, "notwithstanding any
other law" would avoid any conflict with Penal Code Section
171b.
4. Argument in Favor
The Legal Community Against Violence states:
In light of growing evidence of illegal activities
associated with gun shows, several local governments in
California have adopted ordinances to regulate gun
shows that are held on their property. Los Angeles
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County, for example, adopted an ordinance prohibiting
the sale of firearms and ammunition on county-owned
property. Other counties, including Alameda County and
Marin County, have adopted ordinances prohibiting the
possession of firearms and ammunition on county-owned
property.
SB 585 would prohibit the sale of firearms and
ammunition at the Cow Palace, a facility located in San
Mateo County and the City and County of San Francisco,
across from the Sunnydale public housing project and
near Visitacion Valley Bayview-Hunters Point and the
Mission District, communities that have long been
plagued by gun violence. This legislation is needed
because the Cow Palace is owned by the state and thus,
cannot be regulated at the local level. The Boards of
Supervisors in San Mateo County and in the City and
County of San Francisco have, however, adopted
resolutions unanimously asking the Legislature to take
action to prohibit gun shows at the Cow Palace.
5. Argument Against
Crossroads of the West Gun Shows states:
Firearms sales at gun shows are conducted through a
dealer licensed in accordance with California law. The
dealer retains custody of the firearm during the
ten-day waiting period and sends the buyer's
information to the state Department of Justice, which
conducts a criminal and mental history background check
to determine if the person is in a category prohibited
from possessing firearms.
. . . . . . .
There is no compelling reason to ban guns shows at the
Cow Palace. Banning them will not increase public
safety nor decrease crime. However it would send many
gun sales now lawfully conducted through licensed
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firearms dealers at gun shows into the streets or other
unlawful venues. Law enforcement, which now is able to
track those sales, would lose their ability to do so.
In this respect, gun shows do fulfill a valid need that
results in a public benefit.
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