BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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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?
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(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.
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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
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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
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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
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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).)
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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).
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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).
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