BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

                                                                     2
                                                                     3
                                                                     1
          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  




                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageB

          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:




                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageC


                 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  




                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageD

               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.   




                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageE

               (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




                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageF


          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  




                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageG

          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  




                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageH

               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  
               ----------------------
          <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.









                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageI

               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  
               ----------------------
          <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.




                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageJ

               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.   
               ----------------------
          <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).




                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageK


               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  

































                                                                     (More)











          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  




                                                                     (More)







                                                              AB 231 (Ting)
                                                                      PageM

          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.  












                                                              AB 231 (Ting)
                                                                      PageN

                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.


                                   ***************