BILL ANALYSIS Ó AB 1563 Page 1 Date of Hearing: April 29, 2014 Counsel: Shaun Naidu ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 1563 (Donnelly) - As Amended: April 22, 2014 SUMMARY : Requires the Department of Justice (DOJ) to issue a license to carry a concealed handgun, as specified. Specifically, this bill : 1)Requires DOJ to issue a license to carry a concealed handgun upon the person within 30 days, except as specified, of submission of a completed application, which consists of the following: a) An application form signed by the applicant; b) Fingerprints submitted to DOJ, except as provided; c) A fee, not more than $100, to pay the reasonable costs for DOJ to complete a criminal background check, and if approved, a license to carry a concealed handgun; d) For a new license and renewal of a license, a training course acceptable to DOJ, that does not exceed 8 hours and that includes instruction, at a minimum, on firearm safety and the law requiring the permissible use of a firearm, except as specified; and, e) Two recent passport-size color full face photographs of the applicant. 2)Provides that DOJ is not to issue a license to a person who is prohibited from possessing a firearm under state or federal law. 3)Requires DOJ, if the license is denied, to provide written notice that explains the reason for the denial and the process by which the applicant may appeal the denial. 4)Provides that a license issued pursuant to the above AB 1563 Page 2 provisions is valid throughout the state except upon a premise where possession or carrying a firearm is prohibited by state or federal law. 5)Requires that applications for licenses or amendments to licenses, amendments to licenses, and licenses to be uniform throughout the state, on forms prescribed by the Attorney General, and include a section summarizing the statutory provisions of state law that results in the automatic denial or revocation of a license and the following information: a) The name, residence address, telephone number, driver's license and state of issue, if the applicant has a valid driver's license, and, at the option of the applicant, the applicant's email address; b) The applicant's date and place of birth, height, weight, eye color, and hair color; c) Unambiguous responses to the same or materially similar questions contained in Sections 11 to 14, inclusive, of Part 1 of Form 4473, issued by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives; and, d) Other information, as specified. 6)Prohibits DOJ from charging more than $25 to process an amendment to a license, and if required, to issue a new license. Provides that a new license issued for the purpose of incorporating an amendment shall not constitute a renewal license or extend the period of validity of the license. 7)Provides that an applicant shall not be required to complete any additional application or form for a license, or to provide any information other than that necessary to complete the application form, except to clarify or interpret information provided by the applicant on the application form. 8)Provides that a signed application for a license to carry a concealed handgun constitutes a waiver of confidentiality and a written request that all federal, state, and local agencies, as well as private mental health institutions and other health care facilities, release information relevant to the applicant's eligibility for a license to an inquiring court or law enforcement agency. AB 1563 Page 3 9)Provides that a license shall be valid for a period of 5 years unless canceled by the licensee or revoked for cause, and may be renewed within 120 days prior to the license's expiration date, except as provided. 10)Provides that a person who submits an application knowing that any statement contained therein is false is guilty of a misdemeanor. 11)Provides that a person who knowingly makes a false statement on the application regarding any of the following is guilty of a felony: a) The denial or revocation of a license, or the denial of an amendment to a license, issued pursuant to this article; b) A criminal conviction; c) A finding of not guilty by reason of insanity; d) The use of a controlled substance; e) A dishonorable discharge from military service; f) A commitment to a mental institution; or, g) A renunciation of U.S. citizenship. 12)Requires a licensee to notify DOJ in writing within 30 days of any change in the licensee's place of residence. EXISTING LAW : 1)Allows a county sheriff or municipal police chief to issue a license to carry a handgun capable of being concealed upon the person upon proof of all of the following: a) The person applying is of good moral character; b) Good cause exists for the issuance; c) The person applying meets the appropriate residency requirements; and, AB 1563 Page 4 d) The person has completed the appropriate training course, as specified. (Pen. Code, §§ 26150 & 26155, subd. (a).) 2)Allows a county sheriff or a chief of a municipal police department to issue a license to carry a concealed handgun in either of the following formats: a) A license to carry a concealed handgun upon his or her person; or, b) A license to carry a loaded and exposed handgun if the population of the county, or the county in which the city is located, is less than 200,000 persons according to the most recent federal decennial census. (Pen. Code, §§ 26150 & 26155, subd. (b)(2).) 3)Provides that a chief of a municipal police department shall not be precluded from entering into an agreement with the sheriff of the county in which the city is located for the sheriff to process all applications for licenses, or renewal of licenses, to carry a concealed handgun upon the person. (Pen. Code, § 26155, subd. (c).) 4)Provides criminal penalties for knowingly filing a false application for a concealed weapon license. (Pen. Code, § 26180.) 5)Provides that the fingerprints of each applicant are taken and submitted to DOJ. (Pen. Code, § 26185.) 6)Provides that a license may include any reasonable restrictions or conditions that the issuing authority deems warranted, which shall be listed on the license. (Pen. Code, § 26200.) Provides that a license to carry a concealed handgun is valid for up to two years, three years for judicial officers, or four years in the case of a reserve or auxiliary peace officer. (Pen. Code, § 26220.) FISCAL EFFECT : Unknown COMMENTS : AB 1563 Page 5 1)Author's Statement : According to the author, "Recently, the federal Ninth Circuit Court of Appeals correctly held that the Second Amendment to the United States Constitution protects a fundamental, pre-existing right to bear arms for self-defense outside of our homes. Californians were free to exercise their rights until 1923, when the Legislature enacted its first ban on the carry of concealed handguns in public, and in 1967, with the passage of the Mulford Act, a ban on the carry of openly-displayed loaded firearms. Unfortunately, the lack of a right to keep and bear arms in our state constitution subjected generations of Californians to increasing limitations and burdens on their rights. "As a byproduct of unconstitutional laws and local policies, only about 56,000 California residents were able to defend their lives and those of their families outside of their homes in 2013. Given recent court decisions and tangible demand on the part of law-abiding people, the number of carry licensees is sure to skyrocket to possibly as many as 1.4 million Californians over the next 24 months should data from the majority of the other states be any indicator. "Furthermore, a great disparity in policy and process across hundreds of California licensing authorities begs for a standardized process that respects Second Amendment rights, conforms to precedent, and furthers the state's narrowly-tailored interest in regulating the right to carry. "This bill fixes California's carry license system by implementing a fair, efficient, and effective framework that eliminates the burden on local law enforcement while still requiring background checks, ensuring public safety." 2)Peruta v. County of San Diego : For approving a license to carry a concealed firearm, the County of San Diego required that an applicant show that good cause exists for issuance of the license and provided that generalized self defense could not serve as good cause. Mr. Peruta, a San Diego County resident, contested the condition as unconstitutionally abridging his Second Amendment right to bear arm. The U.S. District Court for the Southern District of California ruled against Mr. Peruta in a summary judgment, and Mr. Peruta appealed. In a 2-to-1 decision, the U.S. Court of Appeals for the Ninth Circuit held that "the Second Amendment does require that the states permit some form of carry for self-defense AB 1563 Page 6 outside the home." (Peruta v. County of San Diego (2014) 742 F.3d 1144, 1172.) The majority went on to state that "concealed carry per se does not fall outside the scope of the right to bear arms; but insistence upon a particular mode of carry does." (Ibid.) The dissent felt that the county's "good cause" policy fell squarely within the Supreme Court's definition of a presumptively lawful regulatory measure. On February 27, 2014, the Department of Justice, on behalf of the state, filed a motion to intervene for the purpose of seeking further review of the decision. The state's motion is currently awaiting a ruling by the court. 3)Practical Considerations : This bill changes California's current concealed carry system for firearms from "may issue" to "shall issue." Moreover, this bill will take the issuance of licenses out of the control of local municipalities and place it with the state, specifically DOJ. The changes proposed in this bill raise many policy considerations this committee may wish to examine. This bill repeals existing law that requires a licensee to apply to the licensing authority for an amendment to the license to "[a]dd or delete authority to carry a particular pistol, revolver, or other firearm capable of being concealed upon the person" (Pen. Code, § 26215, subd. (a)(1).) and allows for the concealed carry of presumably any handgun by a person who acquires a license. By requiring a person to apply for an amendment to the license to add or delete the authority to carry a particular firearm, the licensing authority can ensure that the weapon is properly registered to the licensee. The policy shift presented by this bill could allow people to carry concealed handguns that are stolen, not registered, or registered to someone else. The author states that moving responsibility of issuing concealed carry licenses from county sheriffs and local police chiefs to the state eliminates the burden on local law enforcement. This bill, however, also removes local law enforcements' ability to tailor the concealed carry of firearm to meet the needs specific to their jurisdiction. Existing law allows the licensing authority to place reasonable time, place, manner, and circumstances restrictions on a license to carry a concealed weapon. (Pen. Code, § 26200, subd. (a).) Under the provisions of this bill, a licensee would be allowed to carry a concealed handgun anywhere in the state except AB 1563 Page 7 where restricted by state or national law. Consequently, any local measures put in place restricting the carry of firearm would be preempted by this bill. Additionally, given the shift of responsibility in administering the licensing program from the local level to the state level, this committee may wish to examine the feasibility of implementing the provisions of this bill. The Department of Justice has informed this committee that the department would not be able to implement the licensing process outlined in this bill by January 1, 2015, which is when this bill would take effect if it were enacted during this legislative session. (Telephone interview with Deputy Attorney General, Office of Legislative Affairs (Apr. 23, 2014).) 4)Drafting Error : Penal Code section 26155, subdivision (n) created by this bill cross references Penal Code section 21650. The cross reference should be to Penal Code section 26150. 5)Argument in Support : As argued by the California Association of Federal Firearms Licensees , "AB 1563 offers a meaningful solution to a fast-growing problem by instituting a fair, efficient, and effective framework that aligns California with other 'shall issue' states and creates a uniform, reliable means to apply for and be issued a license to carry." 6)Argument in Opposition : The Law Center to Prevent Gun Violence argues "Although proponents of this bill may argue that the bill is required by the Ninth Circuit's recent decision in Peruta v. County of San Diego, that argument has no merit. In Peruta, a divided 2-1 panel held that a county must issue a permit to any individuals who request one, regardless of whether they can demonstrate any good cause to carry a gun in public, as long as they meet the other statutory requirements to obtain a permit. The Peruta decision, however, has been widely criticized, is not yet final, and may still be reviewed en banc. Indeed, such review is warranted given that the three other federal Courts of Appeal that have considered concealed carry laws similar to California's have upheld them. Moreover, Peruta said nothing about the 'good moral character' requirement, which was not at issue in that case." AB 1563 Page 8 7)Prior Legislation : a) AB 871 (Jones), of this Legislative Session, would have provided that "good cause" for the issuance of a license to carry a concealed handgun by a sheriff of a county or a chief of a municipal police force includes, but is not limited to, personal protection or self-defense. AB 871 failed passage in this committee. b) AB 2376 (Halderman), of the 2011-12 Legislative Session, would have defined "good cause" for the issuance of a license to carry a concealed handgun, by a sheriff of a county or a chief of a municipal police force, to include, but not limited to, if the applicant has a report on file with a law enforcement agency evidencing that he or she is a victim of a hate crime. AB 2376 failed passage in this committee. c) AB 2615 (Jones), of the 2011-12 Legislative Session, would have provided that "good cause" for the issuance of a license to carry a concealable firearm includes, but is not limited to, self-defense and personal protection. AB 2615 failed passage in this committee. d) AB 357 (Knight), of the 2009-10 Legislative Session, would have deleted the "good cause" requirement for the issuance of a license to carry a concealed handgun upon the person and would have required issuance if the applicant was of good moral character and met other criteria relating to residency and training. AB 357 failed passage in this committee. e) AB 2053 (Miller), of the 2009-10 Legislative Session, would have defined "good cause" for the issuance of a license to carry a concealed handgun upon the person to include self-defense, defending the life of another, or preventing crime in which human life is threatened. AB 2053 failed passage in this committee. f) AB 462 (Haynes), of the 2003-04 Legislative Session, would have defined "good cause" for the issuance of a license to carry a concealed handgun upon the person to include if the applicant has a report on file with a law enforcement agency evidencing that he or she is a victim of domestic violence or stalking and has obtained a AB 1563 Page 9 restraining order against a specified individual or is the victim of a hate crime. AB 462 failed passage in this committee. g) SB 1283 (Haynes), of the 2001-02 Legislative Session, would have defined "good cause" for the issuance of a license to carry a concealed handgun upon the person to include a victim of domestic violence who has obtained a restraining order or is a victim of a hate crime. SB 1283 failed passage in the Senate Public Safety Committee. REGISTERED SUPPORT / OPPOSITION : Support California Association of Federal Firearms Licensees (Sponsor) Opposition Brady Campaign to Prevent Gun Violence Law Center to Prevent Gun Violence Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744