BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 231 (Ting)
As Amended May 6, 2013
Hearing date: June 18, 2013
Penal Code
SM:mc
SAFE STORAGE OF FIREARMS
HISTORY
Source: Author
Prior Legislation:SB 9 (Soto) - Chap. 126, Stats of 2001
AB 1142 (Soto) - 1999 vetoed
Support: American Academy of Pediatrics; California Chapters of
the Brady Campaign to Prevent Gun Violence; Law Center
to Prevent Gun Violence; San Francisco District
Attorney; one individual
Opposition:National Rifle Association; California Association of
Federal Firearms Licensees; California Attorneys for
Criminal Justice; California Waterfowl Association
Assembly Floor Vote: Ayes 46 - Noes 30
KEY ISSUE
SHOULD A PERSON WHO KEEPS A LOADED FIREARM WITHIN ANY PREMISES THAT
ARE UNDER THE PERSON'S CUSTODY OR CONTROL AND NEGLIGENTLY STORES OR
LEAVES A LOADED FIREARM IN A LOCATION WHERE THE PERSON KNOWS, OR
REASONABLY SHOULD KNOW, THAT A CHILD IS LIKELY TO GAIN ACCESS TO THE
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FIREARM, BE GUILTY OF THE CRIME OF CRIMINAL STORAGE OF A FIREARM IN
THE THIRD DEGREE, A MISDEMEANOR, UNLESS REASONABLE ACTION IS TAKEN
BY THE PERSON TO SECURE THE FIREARM AGAINST ACCESS BY THE CHILD?
PURPOSE
The purpose of this bill is to provide that if a person keeps
any loaded firearm within any premises that are under the
person's custody or control and negligently stores or leaves a
loaded firearm in a location where the person knows, or
reasonably should know, that a child is likely to gain access to
the firearm, that person would be guilty of the crime of
criminal storage of a firearm in the third degree, a
misdemeanor, unless reasonable action is taken by the person to
secure the firearm against access by the child.
Current law provides that, except as specified, a person commits
the crime of "criminal storage of a firearm of the first degree"
if all of the following conditions are satisfied:
The person keeps any loaded firearm within any premises
that are under the person's custody or control.
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.
The child obtains access to the firearm and thereby
causes death or great bodily injury to the child or any
other person. (Penal Code § 25100.)
Criminal storage of a firearm in the first degree is punishable
as a felony by imprisonment in a county jail for 16 months, or
two or three years, by a fine not exceeding $10,000 or both, or
as a misdemeanor 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 § 25110(a).)
Current law provides that, except as specified, a person commits
the crime of "criminal storage of a firearm of the second
degree" if all of the following conditions are satisfied:
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The person keeps any loaded firearm within any premises
that are under the person's custody or control.
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.
The child obtains access to the firearm and thereby
causes injury, other than great bodily injury, to the child
or any other person, or carries the firearm and draws or
exhibits the firearm, as specified. (Penal Code §
25100(b).)
Criminal storage of a firearm in the second degree is punishable
by imprisonment in a county jail not exceeding one year, by a
fine not exceeding $1,000, or both. (Penal Code § 25110(b).)
Current law provides that, if all of the following conditions
are satisfied, a person shall be punished by imprisonment in a
county jail not exceeding one year, by a fine not exceeding
$1,000, or both:
The person keeps a pistol, revolver, or other firearm
capable of being concealed upon the person, loaded or
unloaded , within any premises that are under the person's
custody or control.
The person knows or reasonably should know that a child
is likely to gain access to that firearm without the
permission of the child's parent or legal guardian.
The child obtains access to that firearm and thereafter
carries that firearm off-premises. (Penal Code §
25200(a).)
Current law provides that, if all of the following conditions
are satisfied, a person shall be punished by imprisonment in a
county jail not exceeding one year, by a fine not exceeding
$5,000, or both:
The person keeps any firearm within any premises that
are under the person's custody or control.
The person knows or reasonably should know that a child
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is likely to gain access to the firearm without the
permission of the child's parent or legal guardian.
The child obtains access to the firearm and thereafter
carries that firearm off-premises to any public or private
preschool, elementary school, middle school, high school,
or to any school-sponsored event, activity, or performance,
whether occurring on school grounds or elsewhere. (Penal
Code § 25200(b).)
Current law provides that a handgun that a child gains access to
and carries off-premises in violation of this section shall be
deemed "used in the commission of any misdemeanor as provided in
this code or any felony" for the purpose of the authority to
confiscate firearms and other deadly weapons as a nuisance.
(Penal Code § 25200(c).)
Current law provides that the penalties listed above do not
apply if any of the following are true:
The child obtains the firearm as a result of an illegal
entry into any premises by any person.
The firearm is kept in a locked container or in a
location that a reasonable person would believe to be
secure.
The firearm is locked with a locking device, as defined,
which has rendered the firearm inoperable.
The firearm is carried on the person within close enough
range that the individual can readily retrieve and use the
firearm as if carried on the person.
The person is a peace officer or a member of the Armed
Forces or National Guard and the child obtains the firearm
during, or incidental to, the performance of the person's
duties.
The child obtains, or obtains and discharges, the
firearm in a lawful act of self-defense or defense of
another person.
The person who keeps a firearm has no reasonable
expectation, based on objective facts and circumstances,
that a child is likely to be present on the premises.
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(Penal Code
§ 25205.)
Current law requires licensed firearms dealers to post within
the licensed premises a specified notice disclosing the duty
imposed by this chapter upon any person who keeps any firearm.
(Penal Code § 25225.)
Current law 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 §
273a(a).)
Current law 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 § 273a(b).)
This bill provides that a person may be found guilty of criminal
storage of a firearm of the third degree if:
the person keeps any loaded firearm within any premises
that are under the person's custody or control; and
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.
This bill provides that criminal storage of a firearm in the
third degree would be a misdemeanor, punishable by up to six
months in county jail, a fine of up to $1,000, or both.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
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137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
It is clear that something needs to be done when the
unintentional firearm injury and death rate among
children, ages 14 and under, in the United States is
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nine times higher than in 25 other industrialized
countries combined.<1> And when, in 2009, of all the
deaths of young people age 15-19, one in four were
firearm-related.
The presence of unlocked guns in the home increases
the risk of both accidental gun injuries and
intentional shootings. Most unintentional
firearm-related deaths among children occur in or
around the home; 50 percent at the home of the victim,
and 40 percent at the home of a friend or relative. A
recent study found that more than 75 percent of the
guns used in youth suicide attempts and unintentional
injuries were stored in the residence of the victim, a
relative, or a friend.<2> And most unintentional
firearm-related child deaths involve guns that were
loaded and accessible, and occur when children play
with the gun and these mostly happen among children in
the late afternoon, on the weekend, during summer
months, and during the holiday season, when they are
most likely to be unsupervised.<3>
In one-third of gun-owning households, and nearly half
stored guns in unlocked places (49-53%). More than
1/5 of all guns kept in homes (21-22%) were kept both
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<1> Preventing School Violence, US National Library of Medicine
National Institutes of Health.
<2> David C. Grossman, Donald T. Reay & Stephanie A. Baker,
Self-Inflicted and Unintentional Firearm Injuries Among Children
and Adolescents: The Source of the Firearm, 153 Arch. Pediatr.
Adolesc. Med. 875, 875 (Aug. 1999).
<3> University of Rochester Medical Center.
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loaded and unlocked.<4> One third of all households
with children younger than eighteen have a gun and
more than 40 percent of gun-owning households with
children store their guns unlocked.<5>
As many as 75-80 percent of first and second graders
know where their parents' gun is kept.<6> Over
one-third of parents who reported that their son had
not handled a household gun were contradicted by the
child.<7>
AB 231 strengthens California's existing Child Access
Prevention laws and sets an important standard on safe
firearm storage practices around children by imposing
a third degree misdemeanor when a person leaves a
loaded gun in a place where they know, or reasonably
should know, that a minor can access it and fails to
securely store the firearm.
CAP laws prevent firearm injuries caused by children
by limiting their access to firearms and establish
criminal penalties for owners who do not store their
firearms appropriately. CAP laws have been adopted in
27 states and the District of Columbia. Studies of
child access prevention laws have been shown to be
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<4> Via the Brady Campaign website - Johnson, Renee, Tamera
Coyne-Beasley, and Carol W. Runyan., "Firearm Ownership and
Storage Practices, U.S. Households, 1992-2002: A Systematic
Review," American Journal of Preventive Medicine, 27(2) (2004):
173-182.
<5> Schuster M.A. et al. Firearm Storage Patterns in U.S. Homes
With Children. American Journal of Public Health
2000;90(4):588-594, p. 590.
<6> Boston Children's Hospital.
<7> Via Harvard Injury Control Research Center website:
Parental misperceptions about their children and firearms.
Annals of Pediatric and Adolescent Medicine. 2006; 160:542-4.
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effective at reducing unintentional firearm deaths
among children. 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.<8>
A 2005 study found that the practices of keeping
firearms locked, unloaded, and storing ammunition in a
locked location separate from firearms serves as a
protective measure to reduce youth suicide and
unintentional injury in homes with children and
teenagers where guns are stored.<9>
While California has two CAP laws in code, they both
address what can happen after a child gains access to
a loaded firearm and either:
1) Uses it to cause injury, death or destruction; or
2) Takes the firearm to a public space, such as a
school.
This is in sharp 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.
This law is not over burdensome as California already
requires the purchase, or proof of purchase, of a
safety device when purchasing a firearm. This bill is
simply requiring the owner to use that device, or if
not that device, than place their loaded firearm in a
way that a child cannot access it.
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<8> Via Law Center to Prevent Gun Violence website, Peter
Cummings et al., State Gun Safe Storage Laws and Child Mortality
Due to Firearms, 278 JAMA 1084, 1084 (Oct. 1997).
<9> Via Law Center to Prevent Gun Violence, David C. Grossman
et al., Gun Storage Practices and Risk of Youth Suicide and
Unintentional Firearm Injuries, 293 JAMA 707, 711-13 (2005).
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By strengthening California's Child Access Prevention
laws, we will be proactively taking a large step
forward in protecting one of our state's most
vulnerable populations - our children.
2. Current Law and What This Bill Will Do
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California currently requires that all firearms be safely
stored. (Penal Code §§ 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.
This proposed new crime is similar to the existing child
endangerment statute. (Penal Code § 273a(a).)
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 those exceptions.
3. Related Legislation
SB 108 (Yee) would require all firearm owners to keep their
firearms either locked up or disabled with a firearm safety
device whenever they are not at home. (At Assembly Desk.)
SB 363 (Wright) would amend the criminal firearm storage
provisions to apply to a person who resides with someone who is
prohibited from owning a firearm and would require all firearm
owners who reside with a prohibited person to store their
firearms in a manner that the prohibited person may not gain
access to the firearms. (Pending in Assembly Public Safety.)
AB 500 (Ammiano) would require all firearm owners who reside
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with a prohibited person to keep their firearms either locked up
or disabled with a firearm safety device whenever they are not
at home.
4. Argument in Support
The San Francisco District Attorney states:
Studies have found that CAP laws reduce firearm
related deaths by increasing firearm owner
responsibility. Unfortunately, California's CAP laws
are ineffective because they do not emphasize
prevention. Current law only imposes penalties if the
negligent storage of a firearm leads to a child's
access and results in damages, injury, death, or the
firearm having been brought into a public place such
as a school. Statistics indicate that more than 40%
of gun owning households with children store their
guns unlocked. With such staggering figures, we need
to put greater emphasis on the safe storage of weapons
so that we may avoid unauthorized access.
AB 231 will help prevent tragic consequences of
firearm death, injury and damage before they occur for
our most vulnerable population - children.
5. Argument in Opposition
The California Waterfowl Association states:
CWA opposes this measure because it would create a
significant disincentive for someone to loan a firearm
to another person for hunting or other legitimate
sporting purposes. In particular, the bill would make
it more difficult for young people who cannot legally
purchase firearms on their own to actively participate
in hunting and related activities, which conflicts
with the California Department of Fish and Wildlife
(DFW) and many conservation nonprofits' efforts to
encourage greater youth participation in the outdoors.
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As a result, there would be less wildlife
conservation funding available to DFW due to decreased
hunting and associated stamp/tag revenues, as well as
a reduction in federal Pittman - Robertson Act monies.
On a related note, AB 231 would also increase
liability for hunter education instructors and others
who volunteer to train individuals in the safe
handling of firearms and marksmanship. Currently,
there is a shortage of such instructors in many areas
of the state, with prospective students often having
to drive considerable distances or wait several weeks
or even months in order to obtain classes. We believe
AB 231 would exacerbate the situation by creating new
liability concerns which would effectively reduce the
number of willing instructors.
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