BILL ANALYSIS Ó
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 144|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 144
Author: Portantino (D), et al
Amended: 6/1/11 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-2, 6/7/11
AYES: Hancock, Liu, Price, Steinberg
NOES: Anderson, Harman
NO VOTE RECORDED: Calderon
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 46-29, 5/16/11 - See last page for vote
SUBJECT : Open Carrying of unloaded handguns
SOURCE : California Police Chiefs Association
DIGEST : This bill (1) makes it a misdemeanor punishable
by up to six months in jail and a $1,000 fine to openly
carry an unloaded handgun on ones person or in a vehicle;
(2) makes it a misdemeanor punishable by up to one year in
county jail and a $1,000 fine to openly carry an unlawfully
possessed unloaded handgun and ammunition in public in an
incorporated city; (3) establishes specified exceptions to
this prohibition; (4) makes it a misdemeanor, punishable by
up to six months in jail and a fine of up to $1,000 for the
driver of a vehicle to knowingly allow a person to bring an
openly carried, unloaded handgun into the vehicle; and (5)
makes conforming and nonsubstantive technical changes to
CONTINUED
AB 144
Page
2
affected statutes.
ANALYSIS : Existing law defines "handgun" as any
"pistol," "revolver," or "firearm capable of being
concealed upon the person." (Penal Code Section 16640(a).)
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/she:
Carries concealed within any vehicle which is under
his/her control or direction any pistol, revolver, or
other firearm capable of being concealed upon the person.
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.
Carries concealed upon his/her person any pistol,
revolver, or other firearm capable of being concealed
upon the person. (Penal Code Section 25400(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:
A felony where the person has previously been convicted
of any felony or of any crime made punishable by the
Dangerous Weapons Control Law.
A felony where the firearm is stolen and the person knew,
or had reasonable cause to believe, that the firearm was
stolen.
A felony where the person is an active participant in a
criminal street gang.
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
CONTINUED
AB 144
Page
3
firearm.
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.
An alternate felony-misdemeanor where:
o 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.
o The person is not listed with the Department of
Justice (DOJ) as the registered owner of the firearm.
(Penal Code Section 25400(c).)
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
25600, 25605, 25610, 25505-25595, 25450-25475, 25615-25655,
and 26150-26255.)
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:
A license to carry concealed a pistol, revolver, or other
firearm capable of being concealed upon the person.
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.
CONTINUED
AB 144
Page
4
(Penal Code Sections 26150-26255.)
Existing law prohibits the carrying of a loaded firearm on
his/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 25400(c) and
provide numerous exceptions and limitation to this
prohibition. (Penal Code Section 25850.)
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
16840(b).)
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.
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:
A felony where the person has previously been convicted
CONTINUED
AB 144
Page
5
of any felony or of any crime made punishable by the
Dangerous Weapons Control Law.
A felony where the firearm is stolen and the person knew
or had reasonable cause to believe that the firearm was
stolen.
A felony where the person is an active participant in a
criminal street gang.
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.
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.
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 25858(c).)
Existing law, the "Gun-Free School Zone Act," 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 626.9.)
Existing law provides that any person who has ever been
convicted of a felony and who owns or has in his/her
possession or under his/her custody or control a firearm is
guilty of a felony, punishable by 16 months, two or three
CONTINUED
AB 144
Page
6
years in prison. (Penal Code Section 29800(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
would know was in the performance of his/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,
two or three years. (Penal Code Section 417(c).)
This bill provides that it shall be a misdemeanor,
punishable by up to six months in the county jail, a fine
of up to $1,000, or both, for any person to carry an
exposed and unloaded handgun outside a vehicle upon his/her
person or inside or on a vehicle, whether or not on his/her
person, while in:
A public place or public street in an incorporated city
or city and county.
A public street in a prohibited area of an unincorporated
area of a county or city and county.
A public place in a prohibited area of a county or city
and county.
This bill provides that it shall be a misdemeanor
punishable by imprisonment in a county jail for up to one
year, a fine of up to $1,000, or both, for any person to
carry an exposed and unloaded handgun inside or on a
vehicle, whether or not on his/her person, while in a
public place or public street in an incorporated city or
city and county is, if both of the following conditions
exist:
CONTINUED
AB 144
Page
7
The handgun and unexpended ammunition capable of being
discharged from that handgun are in the immediate
possession of that person.
The person is not in lawful possession of that handgun.
This bill provides that the above-stated provisions shall
not preclude prosecution under any other law with a penalty
that is greater.
This bill provides that the above-stated 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 provides that, notwithstanding the fact that the
term "an unloaded handgun" is used in this section; each
handgun shall constitute a separate and distinct offense.
This bill provides that the crime of openly carrying an
unloaded handgun does not apply to, or affect, the
following:
The open carrying of an unloaded handgun by any peace
officer or by an honorably retired peace officer
authorized to carry a handgun, as specified.
The open carrying of an unloaded handgun by any person
authorized to openly carry a loaded handgun, as
specified.
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.
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.
CONTINUED
AB 144
Page
8
The open carrying of an unloaded handgun upon the person
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.
The open carrying of an unloaded handgun by a licensed
hunter while engaged in lawful hunting.
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.
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.
The open carrying of an unloaded handgun upon the person
within a gun show, as specified.
The open carrying of an unloaded handgun within a school
zone, as defined, with the written permission of the
school district superintendent, his/her designee, or
equivalent school authority.
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.
The open carrying of an unloaded handgun by any person
while engaged in the act of making or attempting to make
a lawful arrest.
The open carrying of an unloaded handgun incident to
loaning, selling, or transferring the same, as specified,
so long as that handgun is possessed within private
CONTINUED
AB 144
Page
9
property and the possession and carrying is with the
permission of the owner or lessee of that private
property.
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.
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 rehearsing or practicing, or
while the participant or authorized employee or agent is
at that production event or rehearsal or practice.
The open carrying of an unloaded handgun upon the person
incident to obtaining an identification number or mark
assigned for that handgun from the DOJ.
The open carrying of an unloaded handgun upon the person
at any established target range, whether public or
private, while the person is using the handgun upon the
target range.
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/she is
actually engaged in assisting that officer.
The open carrying of an unloaded handgun upon the person
incident to any of the following:
o Complying with requirements for importing that
handgun or curio or relic into California.
o Reporting disposition of a handgun to DOJ, as
specified.
CONTINUED
AB 144
Page
10
o The sale or transfer of that firearm to a
government entity, as specified.
o Complying with requirements related to the transfer
of a handgun obtained by gift or inheritance.
o Complying with requirements for taking possession
or title of that handgun.
The open carrying of an unloaded handgun incident to a
private party transfer through a licensed firearms
dealer.
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.
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.
The open carrying of an unloaded handgun at the request
of a sheriff or chief or other head of a municipal police
department.
The open carrying of an unloaded handgun upon the person
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.
The open carrying of an unloaded handgun upon the person
when all of the following conditions are satisfied:
o 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.
o The unloaded handgun is to be auctioned or
otherwise sold for the nonprofit public benefit mutual
benefit corporation.
o The unloaded handgun is delivered by a licensed
dealer.
CONTINUED
AB 144
Page
11
The open carrying of an unloaded handgun by a person
authorized to carry a handgun in the State Capitol or
residences of the Governor or other constitutional
officers.
The open carrying of an unloaded handgun by authorized
public transit officials, as specified.
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 in lawful
possession of that handgun.
The carrying of an unloaded handgun if the handgun is
carried either in the locked trunk of a motor vehicle or
in a locked container.
This bill provides that the "Gun Free School Zones Act"
described above does not apply to or affect the following
persons:
A security guard authorized to openly carry an
unloaded handgun pursuant to the provisions of this
bill.
An honorably retired peace officer authorized to
openly carry an unloaded handgun pursuant to the
provisions of this bill.
This bill provides that it shall be a misdemeanor,
punishable by up to 6 months in county jail, a fine of up
to $1,000, or both, for a driver of any motor vehicle or
the owner of any motor vehicle, whether or not the owner of
the vehicle is occupying the vehicle, to knowingly permit
any other person to carry into or bring into the vehicle an
openly carried unloaded handgun, as specified.
This bill makes conforming and nonsubstantive technical
changes.
Related/Prior Legislation
CONTINUED
AB 144
Page
12
AB 1934 (Saldana, 2010) passed the Senate Floor (21-16) on
August 31, 2010. This bill died on Assembly Concurrence;
AB 98 (Cohn, 2005) was held on Suspense in the Assembly
Appropriations Committee; AB 2501(Horton, 2004) failed
passage in the Assembly Public Safety Committee; AB 2828
(Cohn, 2004) failed passage in the Assembly Public Safety
Committee
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 6/28/11)
California Police Chiefs Association (source)
Brady Campaign to Prevent Gun Violence (California
Chapters)
City of Beverly Hills
City of Los Angeles
City of West Hollywood
Coalition Against Gun Violence
Friends Committee on Legislation
Legal Community Against Violence
Los Angeles Sheriff's Department
Peace Officers Research Association of California
OPPOSITION : (Verified 6/28/11)
California Rifle and Pistol Association
California Right To Carry
Capitol Resource Family Impact
Contra Costa Open Carry
Diablo Valley Gun Works
Gun Owners of California
National Rifle Association
Open Carry Organization
Redline Ballistic
Responsible Citizens of California
South Bay Open Carry
ARGUMENTS IN SUPPORT : According to the author's office,
the absence of a prohibition on "open carry" has created an
increase in problematic instances of guns carried in
public, alarming unsuspecting individuals and causing
issues for law enforcement. Simply put, open carry creates
CONTINUED
AB 144
Page
13
a potentially dangerous situation for the Citizens of
California. Often, when an individual is openly carrying a
firearm, law enforcement is called to the scene with few
details other than one or more armed individuals are
present at a location.
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 people who happen to be in
the line of fire.
Additionally, the increase in "open carry" calls 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.
ARGUMENTS IN OPPOSITION : The National Rifle Association
and the California Rifle and Pistol Association state:
By denying individuals the ability to carry an unloaded
firearm, SB 144 directly violates the constitutional
right to keep and bear arms for self-defense. We urge
you to oppose this attack on the rights of the law
abiding population to carry a firearm in case of a
self-defense emergency should they so choose.
In addition, we write to notify you that the problems
facing SB 144 are compounded by the current state of
California's concealed carry weapons (CCW) permitting
system. Should AB 144 pass, it will wreak havoc on
California's CCW permitting system. In most areas of
California, CCW permits are rarely issued, and are
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, SB 144
effectively shuts the door on the ability of
CONTINUED
AB 144
Page
14
law-abiding Californians to carry a firearm for
self-defense at all.
ASSEMBLY FLOOR :
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Davis, Dickinson, Eng, Feuer, Fong, Fuentes,
Furutani, Gatto, Gordon, Hall, Hayashi, Hill, Hueso,
Huffman, Lara, Bonnie Lowenthal, Ma, Mitchell, Monning,
Pan, V. Manuel Pérez, Portantino, Skinner, Solorio,
Swanson, Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Fletcher, Beth Gaines, Garrick, Grove, Hagman, Halderman,
Harkey, Roger Hernández, Huber, Jeffries, Jones, Knight,
Logue, Mansoor, Miller, Morrell, Nestande, Nielsen,
Olsen, Perea, Silva, Smyth, Valadao, Wagner
NO VOTE RECORDED: Galgiani, Gorell, Mendoza, Norby, Torres
RJG:do 6/28/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED