BILL ANALYSIS Ó
SB 108
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Date of Hearing: July 2, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 108 (Yee) - As Amended: June 27, 2013
SUMMARY : Criminalizes the failure of a firearm owner over 18
years of age to lock up his or her firearms as specified when he
or she leaves the property. Specifically, this bill :
1)States 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 as specified.
2)Specifies the acceptable methods of storing a firearm when the
owner is not home:
a) The firearm is within a locked container;
b) The firearm is disabled by a firearm-safety device;
c) The firearm is within a locked gun safe;
d) The firearm is within a locked trunk; or,
e) The firearm is locked with a specified locking device
which has rendered the firearm inoperable.
3)Defines a "residence" as "the lawfully possessed dwelling unit
in any structure intended or used for human habitation,
including, but not limited to, houses, condominiums, rooms,
motels, hotels, time-shares, and recreational and other
vehicles where human habitation occurs."
4)Defines the term "outside of that residence" as "any distance
beyond the property lines of the property where the structure
is located, except in the case of recreational and other
vehicles."
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5)Establishes the following punishment scheme for violating
these safe-storage provisions:
a) A first violation involving a firearm that is not a
handgun is an infraction punishable by a fine not exceeding
$100.
b) A first violation involving a handgun, or second
violation involving any firearm, is an infraction
punishable by a fine not exceeding $1,000.
c) A third or subsequent violation is punishable as a
misdemeanor.
6)Provides that the provisions of this section 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.
7)Specifies that each firearm that is not stored in compliance
the provisions constitutes a distinct and separate offense.
8)Creates an exception to the requirement that the loan of a
firearm be conducted through a firearms dealer if all of the
following conditions are met:
a) The person loaning the firearm is its registered owner;
b) The loan occurs within the lender's place of residence
or private property, except for property that is zoned for
commercial, retail, or industrial activity;
c) The individual receiving the firearm is not a person
prohibited from possessing a firearm under state or federal
law;
d) The individual receiving the firearm is 18 years of age
or older; and,
e) The firearm does not leave the property where the loan
occurs.
EXISTING LAW :
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1)Provides that a person may be found guilty of criminal storage
of a firearm of the first degree if all of the following
conditions are satisfied:
a) The person keeps any loaded firearm within any premises
that are under the person's custody or control;
b) 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; and,
c) The child obtains access to the firearm and thereby
causes death or great bodily injury to the child or any
other person. [Penal Code Section 25100(a).]
2)Specifies that criminal storage in the first degree is
punishable by imprisonment pursuant to Penal Code Section
1170(h) for 16 months, or two or three years, by a fine not
exceeding $10,000, or by both that imprisonment and fine; or
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 Section 25110(a).]
3)Provides that a person commits the crime of "criminal storage
of a firearm of the second degree" if all of the following
conditions are satisfied:
a) The person keeps any loaded firearm within any premises
that are under the person's custody or control;
b) 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; and,
c) The child obtains access to the firearm and causes
injury, other than great bodily injury, to the child or any
other person, or the child carries the firearm to a public
place, or brandishes the firearm. [Penal Code Section
25100(b).]
4)Specifies that criminal storage in the second degree is a
misdemeanor punishable 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 Section 25110(b).]
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5)Imposes criminal liability on any person who keeps a pistol,
revolver, or other firearm capable of being concealed upon the
person, loaded or unloaded, within any premise that is under
his or her custody or control and he or she knows, or
reasonably should know, a child is likely to gain access to
that firearm without the permission of the child's parent or
legal guardian, and the child obtains access to that firearm
and thereafter carries that firearm off-premises. This
violation carries a punishment of imprisonment in a county
jail not exceeding one year, by a fine not exceeding $1,000,
or both. [Penal Code Section 25200(a).]
6)Provides that if a person keeps any firearm within any
premises that is under his or her custody or control and he or
she knows, or reasonably should know, a child is likely to
gain access to that firearm without the permission of the
child's parent or legal guardian, and the child obtains access
to that firearm and thereafter carries that firearm to any
public or private preschool, elementary school, middle school,
high school, or to any school-sponsored event, activity or
performance, whether or not on school grounds or elsewhere.
This violation carries a punishment of imprisonment in a
county jail not exceeding one year, by a fine not exceeding
$5,000, or both. [Penal Code Section 25200(b).]
7)Exempts a person from prosecution for criminal storage under
any of the following conditions:
a) The child obtains the firearm as a result of an illegal
entry to any premises by any person;
b) The firearm is kept in a locked container or in a
location that a reasonable person would believe to be
secure;
c) The firearm is carried on the person or within close
enough proximity thereto that the individual can readily
retrieve and use the firearm as if carried on the person;
d) The firearm is locked with a locking device, as
specified, which has rendered the firearm inoperable;
e) The person is a peace officer or a member of the Armed
Forces or the National Guard and the child obtains the
firearm during, or incidental to, the performance of the
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person's duties;
f) The child obtains, or obtains and discharges, the
firearm in a lawful act of self-defense or defense of
another person; and,
g) The person who keeps a loaded firearm on premises that
are under the person's custody or control has no reasonable
expectation, based on objective facts and circumstances,
that a child is likely to be present on the premises.
(Penal Code Sections 25105 and 25205.)
8)Requires the district attorney to consider the fact that a
person who allegedly violated the criminal storage provisions
attended a firearm safety course prior to the purchase of the
firearm as a mitigating factor in deciding whether to
prosecute. [Penal Code Sections 25125(a) and 25220(a).]
9)Requires licensed firearms dealers to post notice of duties
regarding storage of firearms accessible to children. (Penal
Code Section 25130.)
10)Defines a "child" for purposes of the criminal storage
provisions as "a person under 18 years of age." (Penal Code
Section 25000.)
11)Requires, generally, that firearms loans occur through a
licensed firearms dealer. (Penal Code Section 27545.)
12)Contains several exemptions from the dealer-involvement
lending requirement, including loans for use in a
target-shooting facility (Penal Code Section 27910); loans
between persons known to each other if infrequent and not in
excess of 30 days (Penal Code Section 27880); loans between
adults which occur when the lender is present at all times and
do not exceed 3 days (Penal Code Section 27885).
13)Prohibits, generally, but subject to exceptions, the lending
of a firearm to a person who is under 21 years of age. [Penal
Code Section 27505(a).]
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "Unauthorized
access to a firearm far too often results in unintentional or
self-inflicted gunshot wounds, or a criminal gaining access
through theft and the firearm being used in a crime. These
instances of unauthorized access commonly occur when the owner
of the firearm is not at their residence and the firearm was
not safely secured. Although existing law specifies firearm
owners must own a firearm safety device or safe before taking
possession of the firearm, use of the device or safe is not
mandatory.
"Senate Bill 108 would require a person to safely secure a
firearm in one of several specified ways when a person leaves
a residence where a firearm is stored. Senate Bill 108's
common sense requirement upholds an individual's interest in
self-defense while decreasing the likelihood of gun violence
due to unauthorized access."
2)Expanding Firearm Storage Requirements : California currently
requires that all firearms be safely stored. (Penal Code
Sections 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
does not require that a child, or any other person, actually
access the firearm. This bill criminalizes the act of leaving
one's property without securing one's firearms, regardless of
the circumstances. Thus, it is a significant expansion of the
safe-storage provisions and more burdensome than current law.
For example, if a firearm owner goes to a neighbor's house to
borrow a cup of sugar, he or she must comply with the new
storage provisions or be subject to criminal liability
regardless of whether minors, prohibited persons, or anyone
else is present or has access to the firearm.
Moreover, this bill uses a property-line test to determine when
a person is in violation of the law. In this respect, this
bill does not distinguish between the firearm owner who lives
in a city and one who lives in a rural area. A firearm owner
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living on a ranch could be one-half acre away from his or her
unsecured weapon, but not be subject to the law based on the
size of the property. In contrast, a city-dweller could be 10
feet from his or her firearm but subject to compliance because
he or she is "outside the residence" as that term is defined
in this bill. As a result, the property-line test does not
seem to provide a logical nexus to a firearm owner's ability
to prevent either an accident or unauthorized access to the
firearm.
3)Methods of Storage : The bill deems five exclusive methods of
storage as appropriate: in a locked container, gun safe, or
trunk, or a specified locking device or firearm safety device.
Arguably, there are other effective options to safety store a
firearm which are not listed, such as storage in a locked room
or locked closet within a residence.
4)Effectiveness of the Firearm Storage Laws : A study published
in the Journal of Trauma, Injury, Infection, and Critical Care
in 2006, looked at whether Child Access Prevention (CAP) laws
reduced unintentional firearm deaths among children. The
study found the states that had laws concerning the storage of
firearms experienced fewer unintentional shooting deaths among
children younger than age 14 compared with states not enacting
such laws. However, in a comparison group of older adults
ranging from ages 55 to 74 (a population less likely to have
young children living in the home), there was no indication
that safe-storage laws had an effect on unintentional firearm
death rates. (See .)
The provisions of this bill apply to all firearm owners,
regardless of whether they live with children, live with an
adult co-habitant, or live alone.
The Department of Justice has informed this Committee that in
2012, there were 33 arrests for criminal storage of a firearm
in the first degree. These arrests resulted in one
conviction. In the same year, there were four arrests for
criminal storage of a firearm in the second degree; however,
none of these arrests resulted in conviction.
5)Argument in Support : According to the Law Center to Prevent
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Gun Violence , "The decision to have a gun in one's home brings
with it significant risks, particularly if the weapon is
unsecured and accessible to children or other unauthorized
users. In 2010, 488 people in California were hospitalized
due to unintentional firearm injuries, and 27 people were
killed. That same year, 1465 people statewide committed
suicide with firearms. Guns in the home are also frequently
stolen; nationwide, over 150,000 guns were reported lost or
stolen in 2008 alone.
"These risks can be mitigated by locking and storing firearms so
that they are inaccessible to unauthorized users. SB 108
would require every firearm owner to store any firearm within
a locked container, gun safe, or trunk, or equip the weapon
with a locking device while the owner is outside of his or her
residence. California law currently requires every gun sale
to be accompanied by the sale of a Department of
Justice-approved 'firearm safety device,' i.e., a trigger
lock, gun safe, or other locking mechanism, but does not
require a firearms owner to actually keep his or her guns
locked and stored when the weapons are not under the owner's
control."
6)Argument in Opposition : The California Waterfowl Association
(CWA) writes, "CWA opposes this measure because it would
unreasonably increase hunters and other gun owners' criminal
liability. In particular, SB 108 is overly broad by the
open-ended manner in which it defines 'residence,' as well as
by its application to the storage of unloaded firearms.
"Please note that there are already significant penalties
provided in the Penal Code for the 'criminal storage of a
firearm,' which appropriately focuses on cases where someone
keeps a loaded firearm on premises under his or her control
and knows that a child is likely to gain access to it
(Sections 25100 and 25110). In light of this existing law, we
question whether it is necessary to create entirely new
sections of the Penal Code to address this.
"It should be noted that most firearm owners already store their
ammunition and firearms separately and lock their homes while
they are away to prevent them from being stolen or misused.
"In addition, SB 108 is impractical. For example, should a
firearm owner simply want to visit his neighbor or walk down
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his street for a short period of time, under the bill he would
be required to first secure all of his firearms, including
those which are already unloaded. In addition, those
traveling on hunting or other sporting trips would now be
effectively requires to bring with them a firearm safety
device(s) when visiting motels or even using motor homes."
7)Related Legislation :
a) SB 363 (Wright) requires 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. SB 363 is
pending hearing by the Assembly Appropriations Committee.
b) AB 231 (Ting) creates the crime of criminal storage in
the third degree, which imposes liability if a person
negligently stores or leaves a loaded firearm in a place
where he or she knows, or reasonably should know, that a
child is likely to access it. AB 231 is pending hearing by
the Senate Appropriations Committee.
c) AB 500 (Ammiano) establishes safe gun storage
requirements when persons prohibited from owning a gun live
in a household where a gun is present. AB 500 is pending
hearing by the Senate Public Safety Committee.
8)Prior Legislation :
a) SB 9 (Soto), Chapter 126, Statutes of 2011, expanded the
scope of the storage of firearm laws by changing the
definition of a child from a person under the age of 16 to
a person under the age of 18, and created a misdemeanor for
any person who negligently allows a child to access a
firearm if the child then takes the firearm to school.
b) AB 1142 (Soto), of the 1999-2000 Legislative Session,
proposed to raise the age of a child to under age 18 for
storage of firearm laws, and would have added the
misdemeanor for firearm storage that results in a child
taking the firearm to school or a school-related activity.
AB 1142 was vetoed.
c) AB 491 (Keeley), Chapter 460, Statutes of 1997, amended
the criminal storage laws by changing the definition of a
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child from under age 14 to under age 16, and added the
misdemeanor for a person who stores a weapon capable of
being concealed on his or her premises which a child then
takes off of the premises.
REGISTERED SUPPORT / OPPOSITION :
Support
California Chapter of the American College of Emergency
Physicians
California Chapters of the Brady Campaign to Prevent Gun
Violence
California Partnership to End Domestic Violence
California State Conference of the National Association for the
Advancement of Colored People
California State PTA
City and County of San Francisco
Law Center to Prevent Gun Violence
San Francisco District Attorney
Santa Barbara Coalition Against Gun Violence
South County Citizens Against Gun Violence
United Educators of San Francisco
Violence Prevention Coalition of Greater Los Angeles
Opposition
California Rifle and Pistol Association
California Sportsman's Lobby
California Waterfowl Association
Gun Owners of California
National Rifle Association
Outdoor Sportsmen's Coalition of California
Safari Club International
Shasta County Sheriff
Six private individuals
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744