BILL ANALYSIS Ó
AB 231
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Date of Hearing: April 16, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 231 (Ting) - As Amended: April 11, 2013
As Proposed to be Amended in Committee
SUMMARY : Creates the crime of criminal storage in the third
degree, which imposes liability if a person negligently stores
or leaves a loaded firearm in a place where he or she knows, or
reasonably should know, that a child is likely to access it.
Specifically, this bill :
1)Provides that a person may be found guilty of criminal storage
of a firearm of the third degree if all of the following
conditions are satisfied:
a) The person keeps any loaded firearm within any premises
that are under the person's custody or control; and,
b) The person negligently stores the firearm or leaves it
in a place where the person knows or reasonably should know
that a child is likely to gain access to it, unless
reasonable action has been taken to secure the firearm
against access by a child.
2)Specifies that criminal storage of a firearm in the third
degree is punishable as a misdemeanor.
3)Defines a "child" for purposes of the criminal storage
provisions as an individual of 14 years of age or younger.
4)Imputes civil liability for any injury to the person or the
property of another proximately caused by the discharge of a
firearm by a minor under 18 years of age to a parent or
guardian having custody and control of the minor for purposes
of civil damages.
5)Specifies that a parent or guardian shall be jointly and
severally liable with the minor for damages resulting from the
act if the parent or guardian either permitted the minor to
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have the firearm or left it in an accessible place.
6)Specifies that this civil liability is in addition to any
liability otherwise imposed by law.
7)Repeals the prior monetary liability caps imposed per
occurrence.
EXISTING LAW :
1)Provides that a person may be found guilty of criminal storage
of a firearm of the first degree if all of the following
conditions are satisfied:
a) The person keeps any loaded firearm within any premises
that are under the person's custody or control;
b) The person knows or reasonably should know that a child
is likely to gain access to the firearm without the
permission of the child's parent or legal guardian; and,
c) The child obtains access to the firearm and thereby
causes death or great bodily injury to the child or any
other person. [Penal Code Section 25100(a).]
2)Specifies that criminal storage in the first degree is
punishable by imprisonment pursuant to Penal Code Section
1170(h) for 16 months, or two or three years, by a fine not
exceeding $10,000, or by both that imprisonment and fine; or
by imprisonment in a county jail not exceeding one year, by a
fine not exceeding $1,000, or by both that imprisonment and
fine. [Penal Code Section 25110(a).]
3)Provides that a person commits the crime of "criminal storage
of a firearm of the second degree" if all of the following
conditions are satisfied:
a) The person keeps any loaded firearm within any premises
that are under the person's custody or control;
b) The person knows or reasonably should know that a child
is likely to gain access to the firearm without the
permission of the child's parent or legal guardian; and,
c) The child obtains access to the firearm and causes
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injury, other than great bodily injury, to the child or any
other person, or the child carries the firearm to a public
place, or brandishes the firearm. [Penal Code Section
25100(b).]
4)Specifies that criminal storage in the second degree is a
misdemeanor punishable by imprisonment in a county jail not
exceeding one year, by a fine not exceeding $1,000, or by both
that imprisonment and fine. [Penal Code Section 25110(b).]
5)Imposes criminal liability on any person who keeps a pistol,
revolver, or other firearm capable of being concealed upon the
person, loaded or unloaded, within any premise that is under
his or her custody or control and he or she knows, or
reasonably should know, a child is likely to gain access to
that firearm without the permission of the child's parent or
legal guardian, and the child obtains access to that firearm
and thereafter carries that firearm off-premises. This
violation carries a punishment of imprisonment in a county
jail not exceeding one year, by a fine not exceeding $1,000,
or both. [Penal Code Section 25200(a).]
6)Provides that if a person keeps any firearm within any
premises that is under his or her custody or control and he or
she knows, or reasonably should know, a child is likely to
gain access to that firearm without the permission of the
child's parent or legal guardian, and the child obtains access
to that firearm and thereafter carries that firearm to any
public or private preschool, elementary school, middle school,
high school, or to any school-sponsored event, activity or
performance, whether or not on school grounds or elsewhere.
This violation carries a punishment of imprisonment in a
county jail not exceeding one year, by a fine not exceeding
$5,000, or both. [Penal Code Section 25200(b).]
7)Exempts a person from prosecution for criminal storage under
any of the following conditions:
a) The child obtains the firearm as a result of an illegal
entry to any premises by any person;
b) The firearm is kept in a locked container or in a
location that a reasonable person would believe to be
secure;
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c) The firearm is carried on the person or within close
enough proximity thereto that the individual can readily
retrieve and use the firearm as if carried on the person;
d) The firearm is locked with a locking device, as
specified, which has rendered the firearm inoperable;
e) The person is a peace officer or a member of the Armed
Forces or the National Guard and the child obtains the
firearm during, or incidental to, the performance of the
person's duties;
f) The child obtains, or obtains and discharges, the
firearm in a lawful act of self-defense or defense of
another person; and,
g) The person who keeps a loaded firearm on premises that
are under the person's custody or control has no reasonable
expectation, based on objective facts and circumstances,
that a child is likely to be present on the premises.
(Penal Code Sections 25105 and 25205.)
8)Requires the district attorney to consider the fact that a
person who allegedly violated the criminal storage provisions
attended a firearm safety course prior to the purchase of the
firearm as a mitigating factor in deciding whether to
prosecute. [Penal Code Sections 25125(a) and 25220(a).]
9)Provides that any person who, under circumstances or
conditions likely to produce great bodily harm or death, and
having the care or custody of any child, willfully causes or
permits that child to be placed in a situation where his or
her person or health is endangered, shall be punished by
imprisonment in a county jail not exceeding one year, or in
the state prison for two, four, or six years. [Penal Code
Section 273a(a).]
10)Provides that anyone who, under circumstances or conditions
other than those likely to produce great bodily harm or death,
and having the care or custody of any child willfully causes
or permits that child to be placed in a situation where his or
her person or health may be endangered, is guilty of a
misdemeanor. [Penal Code Section 273a(b).]
11)Requires licensed firearms dealers to post notice of duties
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regarding storage of firearms accessible to children. (Penal
Code Section 25130.)
12)Defines a "child" for purposes of the criminal storage
provisions as "a person under 18 years of age." (Penal Code
Section 25000.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "What would you
do if you picked up your twelve year old child from their new
friend's house and you saw a loaded gun on the coffee table?
What would you do if you saw your neighbor's three year old
child playing with a loaded gun in their backyard? Would you
call the police? Considering that some 3-year-olds are strong
enough to pull the trigger of many handguns, you may want to.
However, our state's police force wouldn't be able to help
you. In current California law there is no criminal offense
in keeping a gun, whether loaded or unloaded, in a place where
a child can access it, unless the child brings the gun into a
public space. This is in contrast to Texas, New Jersey,
Minnesota, Massachusetts, Maryland and Hawaii, which each have
some form of criminal liability for allowing a child to gain
access to a firearm.
"Furthermore, a recent study found that more than 75% of the
guns used in youth suicide attempts and unintentional injuries
were stored in the residence of the victim, a relative, or a
friend. AB 231 will increase California's Child Access
Prevention laws by making it a misdemeanor to leave a gun
accessible to a child. Studies of child access prevention
laws have been shown to be effective at reducing unintentional
firearm deaths among children. In fact, one study found that
in twelve states where such laws had been in effect for at
least one year, unintentional firearm deaths fell by 23% from
1990-94 among children under 15 years of age. In enacting AB
231, California will be increasing the safety of our most
vulnerable population - our children.
"At the same time, it is of the utmost importance to keep
firearms out of reach of any unauthorized user. AB 231 seeks
to accomplish this by imposing strict, civil liability on
owners of firearms for the deaths and injuries caused by their
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firearms - in the event that an owner loses, lends out, or is
negligent with their firearm. Consider the following
statistics:
a) "More than half of our nation's 77 million handguns are
stored unlocked<1>.
b) "Tens of millions of negligently stored guns sit in
homes throughout America, where they are easily accessible
to unauthorized and dangerous users<2>.
"Strict, civil liability assigns social importance and moral
acceptance that firearm ownership does not stop simply because
the owner is not around, or has failed to establish safety
precautions beyond the scope of themselves. AB 231
incentivizes gun owners to be safely store and closely monitor
their guns, be strict about access to their guns, keep their
guns under lock and key, and follow responsible access
recommendations."
2)Current Law : California currently requires that all firearms
be safely stored. (Penal Code Sections 25100 et seq.) In the
case of loaded firearms, a person may be found guilty of a
misdemeanor or a felony if he or she keeps a loaded firearm
within any premises under his or her custody or control and a
child under 18 years of age obtains and uses it, resulting in
injury or death, or carries it to a public place. In the case
of handguns only, California imposes liability when the child
carries a loaded or unloaded handgun off-premises.
In contrast to current law, the new crime created by this bill,
criminal storage of a firearm in the third degree, does not
require that a child actually obtain access to the firearm.
This bill criminalizes the act of negligently storing a loaded
firearm or leaving it in a place where the person knows, or
reasonably should know, that a child is likely to access it.
In this respect, the new crime appears to be similar to the
child endangerment statute. (Penal Code Section 273a.)
---------------------------
<1> Lock, Stock and Barrel: Civil Liability for Allowing
Unauthorized Access to Firearms, Andrew J. McClurgi
<2> Lock, Stock and Barrel: Civil Liability for Allowing
Unauthorized Access to Firearms, Andrew J. McClurgi
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The existing statutes on criminal storage of a firearm contain a
number of exceptions to the crime. Some of these include
circumstances where the firearm is stored in a locked
container or when it is locked with a locking device. This
bill does not change any of the exceptions.
The Department of Justice has informed this Committee that in
2012, there were 33 arrests for criminal storage of a firearm
in the first degree. These arrests resulted in one
conviction. In the same year, there were four arrests for
criminal storage of a firearm in the second degree; however,
none of these arrests resulted in conviction.
3)Effectiveness of the Firearm Storage Laws : A study by the
Harborview Injury Prevention and Research Center, published in
the Journal of the American Medical Association in 1997,
looked at whether gun safe storage laws reduced child
mortality for children under age 15. The study found the
states that had laws concerning the storage of firearms
experienced fewer unintentional shooting deaths among children
younger than age 15. The study also showed that the safe
storage laws were associated with a modest decrease in both
suicides and homicides among young children, as well as some
decline in unintentional shooting deaths among older teenagers
and young adults.
4)Argument in Support : According to the California Chapter of
the Brady Campaign to Prevent Gun Violence , "In tort law,
strict liability is the imposition of liability on a party
without a finding of fault. The claimant need only prove that
the harmful act occurred and that the defendant was
responsible. The law assigns strict liability to situations
considered to be inherently dangerous. It discourages
reckless behavior and needless loss by forcing potential
defendants to take every possible precaution. Unsafe storage
of firearms constitutes behavior that is inherently dangerous.
"The Centers for Disease Control and Prevention has claimed
that, on average, one child dies every three days in
accidental deaths in the United States. Research indicates
that CAP laws are correlated with a reduction in unintentional
gun deaths by 23 percent and gun suicides among teens by 11
percent. Research has also shown that one third of the homes
with a child under 18 have a gun, and more than 40 percent of
gun owning households with children store their gun unlocked.
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Clearly, this behavior is inherently dangerous and deserving
of the strict liability standard. In addition, AB 231 imposes
strict liability on individuals who lose, loan or are
otherwise negligent with their firearms.
"The time has come to update our criminal storage laws.
Research has shown that Child Access Prevention laws save
lives."
5)Argument in Opposition : The National Rifle Association of
America argues, "This legislation will do nothing to reduce
California's violent crime problem and only turn law-abiding
gun owners into criminals whether or not anything harmful
actually happens, and regardless of whether there was any
misconduct on the part of the gun owner. Ultimately, AB 231
is an ill-conceived proposal that places drastic and
unprecedented liability on those who choose to exercise their
fundamental rights to keep and bear arms."
6)Related Legislation :
a) AB 500 (Ammiano) imposes safe storage requirements when
prohibited persons reside in a household with violations a
misdemeanor. AB 500 is pending hearing by the Assembly
Appropriations Committee.
b) SB 108 (Yee) requires firearm in a residence be stored
in one of certain specified ways, including in a gun safe
or by using a firearm safety device. Violation of these
provisions would be an offense punishable as an infraction,
or for subsequent violations, as an infraction or
misdemeanor. SB 108 is pending hearing by the Senate
Public Safety Committee.
c) SB 363 (Wright) imposes safe storage requirements when a
person prohibited from possessing a firearm or deadly
weapon pursuant to Section 8100 or 8103 of the Welfare and
Institutions Code is likely to gain access to the firearm.
SB 363 is pending hearing by the Senate Public Safety
Committee.
7)Prior Legislation :
a) AB 2029 (Connelly), Chapter 956, Statutes of 1991,
established criminal liability for negligent storage of a
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firearm.
b) AB 491 (Keeley), Chapter 460, Statutes of 1997, expanded
the negligent storage law to include a situation where a
child carries the gun to a public place and changed the
definition of a child from under age 14 to under age 16.
c) AB 1142 (Soto), of the 1999-2000 Legislative Session,
proposed to raise the age of a child to under age 18 for
storage of firearm laws, and added the misdemeanor for
firearm storage that results in a child taking the firearm
to school or a school-related activity. AB 1142 was
vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
Brady Campaign to Prevent Gun Violence, California Chapters
Opposition
California Association of Federal Firearms Licensees
California Attorneys for Criminal Justice
California Rifle and Pistol Association, Inc.
California Right to Carry
California Sportsman's Lobby
Gun Owners of California Incorporated
National Rifle Association of America
Outdoor Sportsman Coalition of California
Safari Club International
Three private individuals
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744