BILL ANALYSIS Ó AB 144 Page 1 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 AB 144 Page 2 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 AB 144 Page 3 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); AB 144 Page 4 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. AB 144 Page 5 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).] AB 144 Page 6 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 AB 144 Page 7 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 AB 144 Page 8 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 AB 144 Page 9 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 AB 144 Page 10 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 AB 144 Page 11 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 AB 144 Page 12 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