BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 108 (Yee)
As Amended April 1, 2013
Hearing date: April 16, 2013
Penal Code
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STORAGE OF FIREARMS
HISTORY
Source: Author
Prior Legislation:SB 9 (Soto) - Chap. 126, Stats of 2001
AB 1142 (Soto) - (1999) - Vetoed
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Support: California Chapters of the Brady Campaign to Prevent
Gun Violence; Law Center to Prevent Violence;
California State PTA; South County Citizens Against Gun
Violence; Partnership to End Domestic Violence; Christy
Lynn Wilson Foundation; California State Conference of
the National Association for the Advancement of Colored
People; City and County of San Francisco; Coalition
against Gun Violence; United Educators of San
Francisco; Violence Prevention Coalition; letters from
several individuals
Opposition:California Right to Carry; California Sportsman's
Lobby; Outdoor Sportsmen's Coalition of California;
Safari Club International; Shasta County Sheriff,
National Rifle Association of America; California Rifle
and Pistol Association Inc.; letters and phone calls
from several individuals
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KEY ISSUE
SHOULD THE FAILURE TO STORE A FIREARM IN A LOCKED CONTAINER
WHILE THE LAWFUL OWNER OR POSSESSOR OF THAT FIREARM IS AWAY FROM
HIS OR HER RESIDENCE BE A CRIME, AS SPECIFIED?
PURPOSE
The purpose of this bill is to (1) require that a person who is
18 years of age or older and who is the owner, lessee, renter,
or other legal occupant of a residence, while outside of that
residence, store in that residence any firearm that he or she
owns or has lawful possession of in a locked container or other
specified ways; (2) provide that a first violation involving a
long gun would be an infraction, punishable by a fine not
exceeding $100, a second violation involving any firearm or a
first violation involving a handgun, would be an infraction,
punishable by a fine not exceeding $1,000, and a third or
subsequent violation, would be a misdemeanor, punishable by up
to six months in the county jail, a fine of up to $1,000, or
both; and (3) provide that each firearm that is not stored in
compliance with its provisions constitutes a distinct and
separate offense.
Firearm Storage Requirements
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
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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:
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:
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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
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:
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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.
(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 every person is responsible, not only
for the result of his or her willful acts, but also for an
injury occasioned to another by his or her want of ordinary care
or skill in the management of his or her property or person,
except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself or herself. The
design, distribution, or marketing of firearms and ammunition is
not exempt from the duty to use ordinary care and skill that is
required by this section. (Civil Code § 1714.)
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Current law provides that civil liability for any injury to the
person or property of another proximately caused by the
discharge of a firearm by a minor under the age of 18 years
shall be imputed to a parent or guardian having custody and
control of the minor for all purposes of civil damages, and such
parent or guardian shall be jointly and severally liable with
such minor for any damages resulting from such act, if such
parent or guardian either permitted the minor to have the
firearm or left the firearm in a place accessible to the minor;
the liability imposed by this section is in addition to any
liability otherwise imposed by law. However, no person, or
group of persons collectively, shall incur liability under this
section in any amount exceeding $30,000 for injury to or death
of one person as a result of any one occurrence or, subject to
the limit as to one person, exceeding $60,000 for injury to or
death of all persons as a result of any one such occurrence.
(Civil Code § 1714.3.)
This bill would provide that a person who is 18 years of age or
older and who is the owner, lessee, renter, or other legal
occupant of a residence, shall not, while outside of that
residence, store in that residence a firearm that he or she owns
or has lawful possession of unless the firearm is stored in one
of the following ways:
The firearm is within a locked container.
The firearm is disabled by a firearm safety device.
The firearm is within a locked gun safe.
The firearm is within a locked trunk.
The firearm is locked with a locking device as described
in Section 16860, which has rendered the firearm
inoperable.
This bill would provide that a violation of its provisions is
punishable as follows:
A first violation involving a firearm that is not a
handgun, as an infraction, punishable by a fine not
exceeding $100.
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For a second violation involving any firearm or a first
violation involving a handgun, as an infraction, punishable
by a fine not exceeding $1,000.
For a third or subsequent violation, as a misdemeanor,
punishable by up to six months in the county jail, a fine
of up to $1,000, or both.
This bill provides that a violation of its provisions are
cumulative, and shall not be construed as restricting the
application of any other law. However, an act or omission
punishable in different ways by different provisions of law
shall not be punished under more than one provision.
This bill provides that each firearm that is not stored in
compliance with its provisions constitutes a distinct and
separate offense.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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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 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 oppose 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 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. 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
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reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Unauthorized access to a firearm far too often results
in unintentional or self-inflicted gunshot wounds, or
the firearm being used in the commission of a crime.
These instances of unauthorized access commonly occur
when the owner of the firearm does not have possession
of the firearm and the firearm was not safely secured.
Although existing law specifies firearm owners must
own a firearm safety device, use of the device is not
mandatory.
Senate Bill 108 would require a person to safely
secure a firearm in one of several specified ways when
the person leaves a residence where a firearm is
stored. Senate Bill 108's requirement upholds an
owner's interest in self-defense while at one's
residence while decreasing the likelihood of
unauthorized access and use of a firearm. Each firearm
not safely stored in the prescribed manner constitutes
a distinct and separate offense.
2. Expanding Firearms Storage Requirements
For over 20 years California has made firearms owners criminally
liable if they store their firearms in such a way that the owner
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 guardian and a child then does, in fact, gain access
and commits various offenses with the firearm. (Penal Code §§
25100, 25200.) Firearms owners are relieved of that liability,
however, if the firearm was stored in a locked container, as
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defined, or if the firearm was locked with a locking device, as
defined, which has rendered the firearm inoperable, or under
other specified circumstances. (Penal Code § 25205.)
This bill would expand that policy by requiring all firearms
owners to lock up their firearms when they are not at home,
regardless of whether they have a reasonable belief that
children might gain access to them. Additionally, the bill
specifies acceptable methods of storing a firearm. The bill
provides that the following would constitute legal methods of
storage of a firearm when the owner is not home:
The firearm is within a locked container.
The firearm is disabled by a firearm safety device.
The firearm is within a locked gun safe.
The firearm is within a locked trunk.
The firearm is locked with a locking device as described
in Section 16860, which has rendered the firearm
inoperable.
3. Constitutional Considerations
The Second Amendment of the Constitution states, "A well-
regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not
be infringed." (United States Const. Amend. 2.) For years,
courts and commentators have interpreted that language to mean
that the right secured by the Second Amendment relates to
firearm ownership only in the context of a "well-regulated
militia." This is known as the "collective rights"
interpretation. In the landmark case of District of Columbia v.
Heller, the United States Supreme Court rejected the "collective
rights" view of the Second Amendment, and, instead, endorsed the
"individual rights" interpretation, that the Second Amendment
protects the right of each citizen to firearm ownership. After
adopting this reading of the Second Amendment, the Supreme Court
held that federal law may not prevent citizens from owning a
handgun in their home. (District of Columbia v. Heller, 554 U.S.
570, 683-684.) Two years later, in McDonald v. City of Chicago,
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the Supreme Court extended this ruling to apply to laws passed
by the 50 states. (McDonald v. City of Chicago, 130 S. Ct. 3020
(2010).)
One question this bill poses is whether requiring firearms
owners to keep their firearms inoperable while they are away
from home violates the right to home defense, as recognized in
Heller. After deciding that the Second Amendment protects an
individual right to firearm ownership, the Court applied that to
the law in question:
We turn finally to the law at issue here. As we have
said, the law totally bans handgun possession in the
home. It also requires that any lawful firearm in the
home be disassembled or bound by a trigger lock at all
times, rendering it inoperable.
As the quotations earlier in this opinion demonstrate,
the inherent right of self-defense has been central to
the Second Amendment right. The handgun ban amounts to
a prohibition of an entire class of "arms" that is
overwhelmingly chosen by American society for that
lawful purpose. The prohibition extends, moreover, to
the home, where the need for defense of self, family,
and property is most acute. Under any of the standards
of scrutiny that we have applied to enumerated
constitutional rights, banning from the home "the most
preferred firearm in the nation to 'keep' and use for
protection of one's home and family," would fail
constitutional muster.
(District of Columbia v. Heller, 554 U.S. 570, 628-629 (2008)
(citations and footnotes omitted).)
The law that the Supreme Court struck down in Heller required
the firearms owner to render the firearm inoperable while they
were at home . This bill would require that the firearms be
locked or otherwise rendered inoperable while the owner is not
home. While it is not possible to state with complete certainty
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how the Supreme Court would have ruled if it had been
considering this exact proposal, the Court did give a strong
indication when it stated that its ruling did not, "suggest the
invalidity of laws regulating the storage of firearms to prevent
accidents." (District of Columbia v. Heller, 554 U.S. 570, 632
(2008).)
4. Cohabitants
This bill raises a practical question regarding access of
co-habitants to firearms for self-defense. For example, if a
person is living with a spouse, roommate or partner and owns a
firearm, this bill appears to require the person to lock up the
firearm when he or she goes out. Does this then impinge on the
spouse, roommate or partner's Second Amendment rights? Would
this bill require each person in that situation to own their own
firearm, if they want access to a firearm for self-defense while
they are home?
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The author's office has suggested that the firearm owner in this
situation could be considered to have loaned the firearm to the
cohabitant. Normally, all firearms transfers in California must
take place through a licensed dealer. Penal Code section 27880
states that that requirement does not apply to the loan of a
firearm between persons who are personally known to each other,
if all of the following requirements are satisfied:
The loan is infrequent, as defined in Section 16730.
The loan is for any lawful purpose.
The loan does not exceed 30 days in duration.
If the firearm is a handgun, the individual being loaned
the handgun has a valid handgun safety certificate.
Section 16730 defines "infrequent" as less than 6 transactions
per year for handguns and, for other firearms, "occasional and
without regularity." This would seem to have limited application
in the situation involving cohabitants.
5. Related Legislation
SB 363(Wright) would require anyone living with a person who is
prohibited from possessing a firearm due to having been found to
be a danger to themselves or others, as specified, to keep any
firearms in the home secured. (To be heard in Senate Public
Safety April 16, 2013.)
AB 231 (Ting) would amend the criminal storage of a firearm
statute to make this a strict liability crime. That is, to
provide that a person would be guilty of this crime whenever a
child obtains access to the firearm without permission of the
child's parent or legal guardian, regardless of whether the
owner knew or reasonably should have known that a child was
likely to gain access to the firearm without the permission of
the child's parent or legal guardian. Additionally, the firearm
owner would be strictly liable for any damage resulting from the
child gaining access to the firearm. (Pending in Assembly Public
Safety, not currently scheduled to be heard.)
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AB 500 (Ammiano) would require all firearm owners who reside
with a prohibited person to keep their firearms either locked up
or disabled with a firearm safety device whenever they are not
at home. (Pending in Assembly Appropriations.)
6. Statement in Support
The California Chapters of the Brady Campaign to Prevent Gun
Violence states:
Senate Bill 108 provides that any person 18 years of
age or older may not keep in their residence when they
are away from their home a firearm, unless the firearm
is either stored in a gun safe or otherwise disabled
with a locking safety device. For purposes of
clarity, this bill defines the term "residence" and
specifies that antique firearms are excluded from this
requirement. Each firearm improperly stored would
constitute a distinct and separate offense.
In order to prevent the deadly consequences of
unlocked guns in the home, at least one state has gone
further. Massachusetts, for example, has adopted a
law requiring a firearm owner to secure his or her
firearm in a locked container, or use a trigger lock,
when the firearm is not carried by the owner or within
the owner's immediate control. The law was challenged
by several parties as an infringement of the Second
Amendment. The Massachusetts Supreme Court recently
ruled that the law was constitutional and was
consistent with the right of self-defense in the home
outlined in the Heller case.
Unlocked guns in the home pose a significant public
safety threat. They are often subject to theft or
involved in acts of domestic violence, accidental
shootings or suicide. Had the guns that Adam Lanza
used recently in Newtown Connecticut been properly
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secured there might be 20 first graders still alive
today.
Senator Yee's bill takes a significant step in the
right direction, though we would prefer to see a bill
crafted more along the model of the Massachusetts law.
We ask for your AYE vote on SB 108 and hope to see it
strengthened.
7. Statement in Opposition
Safari Club International states:
Hunters are very careful how they store their firearms
and do not object to the intent of SB 108. However,
the bill provides limited options for methods of
storage (proposed section 25235). There are other
effective options which are not listed, such as
storage in a locked room or locked closet of a
residence.
SCI requests that the bill be amended to add a new
paragraph (6) to subdivision (a) of section 25235 to
allow for "other effective means of storage that would
prevent children and unauthorized users from obtaining
possession of or from discharging the stored firearm."
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