BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 144
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          Date of Hearing:   April 12, 2011
          Chief Counsel:      Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                AB 144 (Portantino) - As Introduced:  January 13, 2011


           SUMMARY  :   Makes it a misdemeanor for any person to carry an 
          exposed and unloaded handgun outside a vehicle upon his or her 
          person while in any public place or on any public street in an 
          incorporated city, or in any public place or public street in a 
          prohibited area of an unincorporated county.   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 for any person to 
            carry an exposed and unloaded handgun outside a vehicle upon 
            his or her person while in any public place or on any public 
            street in an incorporated city, or in any public place or 
            public street in a prohibited area of an unincorporated 
            county.

          2)Makes the crime of openly carrying an unloaded handgun 
            punishable by imprisonment in the county jail not to exceed 
            one year, or by a fine not to exceed $1,000, or by that fine 
            and imprisonment if the handgun and unexpended ammunition 
            capable of being discharged from that firearm are in the 
            immediate possession of the person and the person is not the 
            registered owner of the firearm.

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

          4)Provides 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.

          5)States that notwithstanding the fact that the term "an 








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            unloaded handgun" is used in this section, each handgun shall 
            constitute a separate and distinct offense.

          6)Provides that the crime of openly carrying an unloaded handgun 
            does not apply to, or affect, 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;

             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 








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               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 
               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);









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             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;

             ii)  The open carrying of an unloaded handgun by a person in 
               the scope and course of training by an individual to become 
               a sworn peace officer;

             jj)  The open carrying of an unloaded handgun in the course 
               and scope of training to in order to be licensed to carry a 
               concealed weapon;

             aaa) The open carrying of an unloaded handgun at the request 
               of a sheriff or chief or other head of a municipal police 
               department;

             bbb) The open carrying of an unloaded handgun within a place 
               of business, within a place of residence, or on private 
               property if done with the permission of the owner or lawful 
               possessor of the property;

             ccc) The open carrying of an unloaded handgun when all of the 
               following conditions are satisfied:

               i)     The open carrying occurs at an auction or similar 
                 event of a nonprofit or mutual benefit corporation event 
                 where firearms are auctioned or otherwise sold to fund 
                 activities.

               ii)    The unloaded handgun is to be auctioned or otherwise 
                 sold for the nonprofit public benefit mutual benefit 
                 corporation.

               iii)   The unloaded handgun is delivered by a licensed 
                 dealer.

               iv)    The open carrying of an unloaded handgun does not 
                 apply to person authorized to carry handguns in the State 
                 Capitol or residences of the Governor or other 
                 constitutional officers.









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               v)     The open carrying of an unloaded handgun on publicly 
                 owned land, if the possession and use of a handgun is 
                 specifically permitted by the managing agency of the land 
                 and the person carrying the handgun is the registered 
                 owner of the handgun.

          7)The offense of openly carrying an unloaded handgun if all of 
            the following apply:

             a)   The handgun is carried on a public street or in a public 
               place in a prohibited area of an unincorporated area of a 
               county that is less than 200,000 persons, as specified.

             b)   The person carrying the handgun is the registered owner 
               of the handgun.

             c)   The area where that person is carrying that handgun is 
               not a public street or a public place in a prohibited area 
               of an unincorporated territory of a county where that 
               unincorporated area is completely bordered by an 
               incorporated city.

          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."  ÝPenal 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.  ÝPenal Code Section 12025(a).]









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          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 
               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.  ÝPenal 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 








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            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."  ÝPenal Code Section 
            12031(g).]

          6)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.) 

          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 








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               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.  ÝPenal Code Section 12031(b).]

          8)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.)

          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.  ÝPenal 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.  ÝPenal 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.  ÝPenal Code Section 
            417(c).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :  

           1)Author' Statement  :  According to the author, "The absence of a 
            prohibition on 'open carry' has created an increase in 
            problematic instances of guns carried in public, alarming 
            unsuspecting ting individuals causing issues for law 








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            enforcement.

          "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 with few details other than 
            one or more people are present at a location and are armed.

          "In these tense situations, the slightest wrong move by the gun 
            carrier could be construed as threatening by the responding 
            officer, who may feel compelled to respond in a manner that 
            could be lethal.  In this situation, the practice of 'open 
            carry' creates an unsafe environment for all parties involved: 
             the officer, the gun-carrying individual, and for any other 
            individuals nearby as well.

          "Additionally, the increase in 'open carry' calls has placed to 
            law enforcement has taxed departments dealing with 
            under-staffing and cutbacks due to the current fiscal climate 
            in California, preventing them from protecting the public in 
            other ways."

           2)Argument in Support  :  According to the  Legal Community Against 
            Violence  , "Over the past two years, members of the so-called 
            'open carry movement' have held numerous carrying events in 
            public places like coffee shops, restaurants, and public 
            parks.  These events have shocked Californians statewide, 
            because the open carrying of handguns creates serious public 
            safety concerns.  Open carrying intimidates the public, wastes 
            law enforcement resources, and presents opportunities for 
            injury and death due to the accidental or intentional use of 
            firearms.  This conduct needlessly increases the likelihood 
            that everyday interpersonal conflicts will turn into deadly 
            shootouts.

          "Open carrying poses particular challenges for law enforcement 
            officers who must respond to 911 calls from concerned citizens 
            about people carrying guns in public.  A state issued by the 
            San Mateo County Sheriff's Office described the significant 
            dangers that open carrying creates:

          "  'Open carry create a potentially very dangerous situation.  
            When police are called to a "man with a gun" call they 
            typically are responding to a situation about which they have 
            few details other than that one or more people are present at 
            a location and are armed.  . . .  Consequently, the law 








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            enforcement response is one of "hypervigilant urgency" in 
            order to protect the public from an armed threat.  Should the 
            gun carrying person fail to comply with a law enforcement 
            instruction or move in a way that could be construed as 
            threatening, the police are forced to respond in kind for 
            their own protection.   . . .  Simply put, it is not 
            recommended to open carry firearms.'

          "Although California law requires openly carried firearms to 
            remain unloaded, this does little to improve public safety, 
            since state law also permits the carrying of ammunition.  The 
            ability to carry firearms and ammunition makes the distinction 
            between loaded and unloaded weapons almost meaningless, as 
            open carry advocates have boasted about their abilities to 
            load their weapons in a matter of seconds."

           3)Argument in Opposition  :  According to the  National Rifle 
            Association  , "Should AB 144 pass, it will wreak havoc on CA's 
            California's concealed weapons (CCW) permitting system.  In 
            most areas of California, CCW permits are rarely issued, and 
            are a usually reserved for those with political clout and the 
            wealthy elite.  Because of this reality, 'open carrying' is 
            the only method available to the overwhelming majority of 
            law-abiding individuals who wish to carry a firearm for 
            self-defense.  Accordingly, by banning the open carrying of 
            even unloaded firearms, AB 144 effectively shuts the door on 
            the ability of law-abiding Californians to carry a firearm for 
            self-defense at all. 

          "In fact, a recent 9th Circuit District Court decision expressly 
            relied on the ability to 'open carry' as the basis for its 
            decision to uphold the government's current policy denying CCW 
            application unless the applicant demonstrates some special 
            need or 'good cause' beyond that of general self-defense.

          "In that case, Peruta v. County of San Diego, several Plaintiffs 
            challenged the government's CCW permitting scheme.  The suit 
            alleged that the permitting scheme violated the Second 
            Amendment because CCW applications are typically denied where 
            the applicant identifies only a generalized self-defense need 
            as the 'good cause' required by Cal. Pen. Code section 12050.  
            And even though the Second Amendment requires the government 
            to afford law abiding citizens the ability to 'bear' or 
            'carry' firearms for self-defense - without discretion as to 
            who may be qualified to exercise that right - the Court ruled 








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            that the County's policy of requiring specific threats of 
            harm, as opposed to general 'self-defense' need, did not 
            violate the Second Amendment because the state already 
            authorizes constitutional means of carrying a firearm for 
            self-defense.  That means of carry is found in section 12031, 
            which permits the carrying of an unloaded firearm that may be 
            loaded by the individual in a self-defense emergency.

          "  'ÝA]s a practical matter, should the need for self-defense 
            arise, nothing in section 12031Ý(j)] restricts the open carry 
                                                               of unloaded firearms and ammunition for instant loading.'  . . 
            .  'As a consequence, the Court declines to assume that 
            section 12031 places an unlawful burden on the right to carry 
            a firearm for self-defense?"

          "  '(Order Denying Plaintiff's Motion for Partial Summary 
            Adjudication and Granting Defendant's Motion for Summary 
            Judgment at 8:8-10, 8:21-22, Peruta v. County of San Diego, 
            No. 09-2371 (S.D. Cal. 2010).'

          "If not for the lawful ability to openly carry a firearm that 
            may be loaded for self-defense, the County's entire CCW scheme 
            of requiring 'good cause' beyond that of self-defense would 
            have been ruled unconstitutional in Peruta."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Chapters of the Brady Campaign to Prevent Gun 
          Violence
          California Police Chiefs Association, Inc.
          City of West Hollywood
          Friends Committee on Legislation of California
          Legal Community Against Violence
          Peace Officer Research Association of California

           Opposition 
           
          Bay Area Open Carry Movement
          California Rifle and Pistol Association
          Californians for Natural Rights
          Capitol Resource Family Impact
          Contra Costa Open Carry
          Gun Owners of California








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          Intelligent Recycling Solutions
          National Rifle Association
          Responsible Citizens of California
          South Bay Open Carry
          131 private individuals
           

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