BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 108
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          Date of Hearing:  August 13, 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
          Contra Costa County Board of Supervisors
          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
          One Private Individual

           Opposition 
           
          California Association of Federal Firearms Licensees
          California Rifle and Pistol Association
          California Sportsman's Lobby
          California Waterfowl Association
          Gun Owners of California
          Long Beach Police Officers Association
          National Rifle Association
          Outdoor Sportsmen's Coalition of California 
          Safari Club International
          Shasta County Sheriff
          Eight private individuals
           

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744 










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