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. ***************