BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 3 6 3 SB 363 (Wright) As Amended April 22, 2013 Hearing date: April 30, 2013 Penal Code SM:mc CRIMINAL STORAGE OF A FIREARM HISTORY Source: Author Prior Legislation:SB 9 (Soto) - Chap. 126, Stats of 2001 AB 1142 (Soto) - vetoed, 1999 Support: California Chapters of the Brady Campaign to Prevent Gun Violence; Coalition Against Gun Violence; South County Citizens Against Gun Violence; one individual Opposition:California Association of Federal Firearms Licensees; California Right to Carry; California Attorneys for Criminal Justice KEY ISSUES SHOULD A PERSON BE GUILTY OF CRIMINAL STORAGE OF A FIREARM WHO KEEPS ANY LOADED FIREARMS WITHIN ANY PREMISES AND KNOWS OR REASONABLY SHOULD KNOW THAT A PERSON WHO IS PROHIBITED FROM POSSESSING A FIREARM IS LIKELY TO GAIN ACCESS TO THE FIREARM, AND THAT PROHIBITED PERSON DOES IN FACT GAIN ACCESS TO THE FIREARM AND THEREBY KILLS OR INJURES SOMEONE? (More) SB 363 (Wright) Page 2 (CONTINUED) SHOULD ANY PERSON WHO OWNS OR POSSESSES ANY FIREARM AND RESIDES WITH AN INDIVIDUAL WHO HE OR SHE KNOWS, OR HAS REASON TO KNOW, IS PROHIBITED FROM POSSESSING, RECEIVING, OWNING, OR PURCHASING A FIREARM PURSUANT TO STATE OR FEDERAL LAW BE REQUIRED TO SECURE THE FIREARM WITHIN A LOCKED CONTAINER, AS DEFINED, OR WITH A LOCKING DEVICE AS DEFINED, OR WITHIN A GUN SAFE AS DEFINED, AND STORE THE FIREARM IN A MANNER THAT THE INDIVIDUAL MAY NOT GAIN ACCESS TO THE FIREARM; AND SHOULD FAILURE TO DO SO BE A MISDEMEANOR PUNISHABLE BY UP TO ONE YEAR IN COUNTY JAIL, A FINE OF UP TO $1,000, OR BY BOTH? PURPOSE The purpose of this bill is to (1) amend the existing crime of "criminal storage of a firearm" to provide that a person who keeps any loaded firearms within any premises and knows or reasonably should know that a person who is prohibited from possessing a firearm under state or federal law is likely to gain access to the firearm, and that prohibited person does in fact gain access to the firearm and thereby kills or injures someone would be guilty of criminal storage of a firearm; (2) require that any person who owns or possesses any firearm and resides with an individual who he or she knows, or has reason to know, is prohibited from possessing, receiving, owning, or purchasing a firearm pursuant to state or federal law to secure the firearm within a locked container, as defined, or with a locking device as defined, or within a gun safe as defined, and store the firearm in a manner that the individual may not gain access to the firearm and specify that a violation of this section is a misdemeanor punishable by up to one year in county jail, a fine of up to $1,000, or by both; and (3) provide that beginning January 1, 2013, the fee charged by the Department of Justice for the handgun safety testing program, as specified, shall be paid on January 1 of every year. (More) SB 363 (Wright) Page 3 Firearms 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 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 (More) SB 363 (Wright) Page 4 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 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 (More) SB 363 (Wright) Page 5 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. (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.) Persons Prohibited From Firearms Ownership Current federal law provides that it is unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any (More) SB 363 (Wright) Page 6 person knowing or having reasonable cause to believe that such person - is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; is a fugitive from justice; is an unlawful user of or addicted to any controlled substance, as defined has been adjudicated as a mental defective or has been committed to any mental institution; who, being an alien - o is illegally or unlawfully in the United States; or o except as specified, has been admitted to the United States under a nonimmigrant visa, as defined; who has been discharged from the Armed Forces under dishonorable conditions; who, having been a citizen of the United States, has renounced his citizenship; is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that - o was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or has been convicted in any court of a misdemeanor crime of domestic violence. (18 United States Code § 922(d).) (More) SB 363 (Wright) Page 7 Current California law provides that certain people are prohibited from owning or possessing a firearm. This includes (not an exhaustive list): Lifetime ban Anyone convicted of a felony. Anyone addicted to a narcotic drug. Any juvenile convicted of a violent crime with a gun and tried in adult court. Any person convicted of a federal crime that would be a felony in California and sentenced to more than 30 days in prison, or a fine of more than $1,000. (Penal Code § 29800(a).) Anyone convicted of certain violent misdemeanors, e.g., assault with a firearm; inflicting corporal injury on a spouse or significant other, brandishing a firearm in the presence of a police officer (Penal Code §§ 29800/23515; 29805; 18 U.S.C. § 921(a)(33)(A)/18 U.S.C. § 922(g)(9).) 10-Year Ban Anyone convicted of numerous misdemeanors involving violence or threats of violence. (Penal Code § 29805.) 5-Year Ban Anyone convicted of specified misdemeanors. Any person taken into custody, assessed, and admitted to a designated facility due to that person being found to be a danger to themselves or others as a result of a mental disorder, is prohibited from possessing a firearm during treatment and for five years from the date of their discharge. (Welfare and Institutions Code §§ 8100, 8103(f).) Temporary Bans (More) SB 363 (Wright) Page 8 Current law provides that persons who are bound by a temporary restraining order or injunction or a protective order issued under the Family Code or the Welfare and Institutions Code, may be prohibited from firearms ownership for the duration of that court order. (Penal Code § 29825.) Current law provides that no person, corporation, or dealer shall sell, supply, deliver, or give possession or control of a firearm to anyone whom the person, corporation, or dealer knows or has cause to believe is prohibited from possessing a firearm, as specified. Violation is generally a misdemeanor, punishable by up to six months in county jail, a fine of up to $1,000 or both. However, violations may be punishable as a felony, with varying prison terms, where a variety of aggravating circumstances are present. (Penal Code §§ 27500, 27590.) Current law requires the Department of Justice (DOJ) to compile, publish, and thereafter maintain a roster listing all of the pistols, revolvers, and other firearms capable of being concealed upon the person that have been tested by a certified testing laboratory, have been determined not to be unsafe handguns, and may be sold in this state, as specified. The roster shall list for each firearm the manufacturer, model number, and model name. DOJ may charge an annual fee to firearms manufacturers and importers for the costs of implementing this program of handgun safety testing, as specified. (Penal Code § 32015.) This bill would amend the existing crime of "criminal storage of a firearm" to provide that a person who keeps any loaded firearms within any premises and knows or reasonably should know that a person who is prohibited from possessing a firearm pursuant to state or federal law is likely to gain access to the firearm, and that prohibited person does in fact gain access to the firearm and thereby kills or injures someone would be guilty of criminal storage of a firearm. If the prohibited person causes death or great bodily injury, this would be 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 (More) SB 363 (Wright) Page 9 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. If the prohibited person causes injury, other than great bodily injury, or carries the firearm and draws or exhibits the firearm, as specified, this would be punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $1,000, or both. This bill would also require that any person who owns or possesses any firearm and resides with an individual who he or she knows, or has reason to know, is prohibited from possessing, receiving, owning, or purchasing a firearm pursuant to state or federal law to secure the firearm within a locked container, as defined, or with a locking device as defined, or within a gun safe as defined, and store the firearm in a manner that the individual may not gain access to the firearm. A violation of this section would be a misdemeanor punishable by up to one year in a county jail, a fine of up to $1,000, or both. This bill would provide that, beginning January 1, 2013, the fee charged by DOJ for the handgun safety testing program, as specified, shall be paid on January 1 of every year. 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 (More) SB 363 (Wright) Page 10 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 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 (More) SB 363 (Wright) Page 11 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: A firearm owner may legally own a firearm and keep a firearm in his or her own home. However, a problem arises when a person who is prohibited from owning or possessing a firearm is residing in the same home as the person who legally owns a firearm. This means that the prohibited person could potentially have "possession" and access to the firearm because it is stored under the same roof. This is similar to what happened in the tragic Connecticut School shooting on December 14, 2012. Adam Lanza took his mother's firearms and used them to kill his mother, and the 20 children and six adults at Sandy Hook Elementary School. If his mother had stored the firearms safely, and away from her son, who (More) SB 363 (Wright) Page 12 had a history of mental instability, it would have made it harder for Mr. Lanza to access the firearms and commit the gruesome crimes. By imposing a duty on persons who legally own firearms to safely store them when they know, or have reason to know, that they are living with someone who is prohibited from owning or possessing a firearm, the chances that a prohibited person could access and use a firearm is greatly reduced. Firearm owners must recognize that owning a firearm comes with certain responsibilities, one of which is to make sure that they are safely stored so that that prohibited, and possibly dangerous persons with whom they reside, cannot access them. 2. Providing Access to Firearms to Prohibited Persons Many people are prohibited by either federal or state law, or both, from owning firearms for a variety of reasons, as detailed above. This bill addresses the issue of firearm possession by a person who resides with a person who is prohibited by law from owning a firearm. Current California law makes it a crime for any person to sell, supply, deliver, or give possession or control of a firearm to anyone whom the person knows or has cause to believe is prohibited from possessing a firearm. (Penal Code § 27500, emphasis added.) Parallel federal law makes it a crime for any person to "sell or otherwise dispose" of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is prohibited from possessing a firearm. (18 U.S.C. § 922(d).) A recent decision by the federal Eighth Circuit Court of Appeal upheld the conviction of a man who had allowed such a "prohibited person" to stay in his RV and disclosed to his guest the location of his firearms in the RV. (United States v. Stegmeier, 701 F.3d 574 (8th Cir. 2012).) The Court found that this constituted a violation of the federal law prohibiting (More) SB 363 (Wright) Page 13 disposing of any firearm or ammunition to a prohibited person. [A] recipient's possession is sufficient proof that a defendant disposed of a firearm. Constructive possession is "control over the place where the firearm was located, or control, ownership, or dominion of the firearm itself." Even assuming Stegmeier did not give Kelley title or ownership of the firearm, he did give Kelley full, unrestricted control over the RV where the firearm was. Stegmeier believes that the district court knew the case was weak because there was no evidence that Kelley actually possessed the firearm. However, the jury may use circumstantial evidence. It heard evidence that Stegmeier gave Kelley access to the entire RV and disclosed the specific location of the firearm. When police located it outside of the closet - near Kelley's wallet - Stegmeier said that Kelley "must have moved it." There is sufficient evidence for the jury to find that Stegmeier provided a firearm to a prohibited person. (United States v. Stegmeier, 701 F.3d 574, 579-580 (8th Cir. 2012)(citations omitted).) Thus residing with a person who you know, or have reason to know, is prohibited from owning a firearm for any reason, and giving that person access to any firearms you possess whether that person actually uses the firearm to cause harm or not has been found to be a crime under federal law. (U.S. v. Stegmeier, supra, 18 U.S.C. 922(d).) The penalty for violation under federal law is up to 10 years in prison and a fine of up to $250,000. (18 U.S.C. § 924(a)(2), 18 USC § 3571.) Whether permitting access to firearms to a cohabitant who is prohibited from possessing a firearm is currently a violation of California law is not clear. As noted above, current California law provides that "no person, corporation, or dealer shall sell, supply, deliver, or give possession or control of a firearm to anyone whom the person, corporation, or dealer knows or has cause to believe is prohibited from possessing a firearm." (Penal Code § 27500.) While there does not appear to be any (More) SB 363 (Wright) Page 14 published opinion to this effect, a California court could, as the Eighth Circuit Court of Appeal recently did, find that anyone living with a person who is prohibited from possessing a firearm has the duty to deny access to the firearm by the prohibited person. (More) 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, 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 who live with prohibited persons to keep their firearms stored in such a way as to deny access to the prohibited cohabitant violates the firearm owner's 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 (More) SB 363 (Wright) Page 16 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 the owner is home. This bill would require that any firearms owned by a person who resides with a prohibited person be locked or otherwise rendered inoperable "in a manner that the individual may not gain access to the firearm." How the holding in Heller might be applied to a person residing with a person who is prohibited from possessing a firearm is not clear. 4. Sentencing Considerations This bill expands the categories of the existing crime for criminal storage of firearms. The felony penalty for this offense applies where the access causes death or great bodily injury. Currently, there are no persons in prison for this offense. There currently are more than 19,000 armed prohibited persons in California. 5. 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 (to be heard in Senate Appropriations Committee on April 29, 2013). SB 363 (Wright) Page 17 AB 231 (Ting) would amend the criminal storage of a firearm statute to create "criminal storage of a firearm in the third degree" if the 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, unless reasonable action is taken by the person to secure the firearm against access by the child. Additionally, would impose civil liability on parents for any injury to the person or property of another proximately caused by the discharge of a firearm by a minor under 18 years of age if the parent or guardian either permitted the minor to have the firearm or left the firearm in a place accessible to the minor (pending in Assembly Appropriations). 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). ***************