BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 363| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 363 Author: Wright (D) Amended: 4/22/13 Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 6-0, 4/30/13 AYES: Hancock, Anderson, Block, De León, Liu, Steinberg NO VOTE RECORDED: Knight SENATE APPROPRIATIONS COMMITTEE : 5-0, 5/13/13 AYES: De León, Hill, Lara, Padilla, Steinberg NO VOTE RECORDED: Walters, Gaines SUBJECT : Firearms: criminal storage: unsafe handguns: fees SOURCE : Author DIGEST : This bill provides that any person who owns or possesses any firearm and resides with an individual who he/she knows is prohibited from possessing, receiving, owning, or purchasing a firearm be required to secure the firearm within a locked container, as defined, and store the firearm in a manner that the individual may not gain access to the firearm. ANALYSIS : Existing law: 1.Provides that, except as specified, a person commits the crime of "criminal storage of a firearm of the first degree" if all CONTINUED SB 363 Page 2 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. C. The child obtains access to the firearm and thereby causes death or great bodily injury to the child or any other person. D. 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. 1.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: 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. C. 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. Criminal storage of a firearm in the second degree is punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $1,000, or both. 1.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 CONTINUED SB 363 Page 3 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. This bill: 1.Amends 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 is guilty of criminal storage of a firearm. If the prohibited person causes death or great bodily injury, this 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. If the prohibited person causes injury, other than great bodily injury, or carries the firearm and draws or exhibits the firearm, as specified, this is punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $1,000, or both. 2.Requires that any person who owns or possesses any firearm and resides with an individual who he/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 is a misdemeanor punishable by up to one year in a county jail, a fine of up to $1,000, or both. 3.Provides that, beginning January 1, 2015, the fee charged by DOJ for the handgun safety testing program, as specified, shall be paid on January 1 of every year. Background CONTINUED SB 363 Page 4 A recent decision by the federal Eighth Circuit Court of Appeals 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 disposing of any firearm or ammunition to a prohibited person. 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. Sec. 924(a)(2), 18 USC Sec. 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, existing 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 Sec. 27500) While there does not appear to be any published opinion to this effect, a California court could, as the Eighth Circuit Court of Appeals 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes According to the Senate Appropriations Committee: Likely minor, if any, increase in state incarceration costs (General Fund) for additional felony convictions under the expanded definition of the criminal storage of firearms law resulting in great bodily injury or death. There have been no commitments to state prison over the past three years for this offense. Potential increase in county jail incarceration costs CONTINUED SB 363 Page 5 (Local) for misdemeanor convictions related to violations of the criminal storage of firearms law. Non-reimbursable local enforcement costs offset to a degree by fine revenue. No net impact on fee revenues. Potential fee revenue increase in FY 2014-15 (Special Fund*) due to the annual fee payment shift to January 1 of each year effective January 1, 2015. SUPPORT : (Verified 5/15/13) California Chapters of the Brady Campaign to Prevent Gun Violence Coalition Against Gun Violence South County Citizens Against Gun Violence OPPOSITION : (Verified 5/15/13) California Association of Federal Firearms Licensees California Attorneys for Criminal Justice California Right to Carry ARGUMENTS IN SUPPORT : According to the author's office: A firearm owner may legally own a firearm and keep a firearm in his/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 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 CONTINUED SB 363 Page 6 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. ARGUMENTS IN OPPOSITION : The California Attorneys for Criminal Justice write, "This bill would require an owner of a pistol, revolvers, or other firearms able to be concealed to be secured in a locked container in order to prevent possession of the firearm from a prohibited person. This bill would make the violations of this requirement a misdemeanor punishable by imprisonment in county jail and/or fine. First, we believe that many citizens have firearms in their homes for protection and that having these firearms always locked up or with trigger locks because there may be a prohibited person in the house defeats this purpose. The current bill makes access to children an exception but most people in that instance lock their weapons during the day and have them at the ready only when they have an immediate fear or at night. Second, the language of the bill makes a person liable if they know or have reason to know a person is prohibited from possessing a firearm. In fact the police will make arrests on the presumption and the accused will then have to go through the process of proving their innocence. This will be a burden on the arrestee and the courts. Third, the word "resides" has a very broad meaning. When several people live in one residence, even if related, and keep separate rooms, you can bet the police will arrest everyone in the residence and let the courts sort out the persons liable under this section. The fact that it is a misdemeanor will still require court appearances, legal fees, and court time to sort this out." JG:ej 5/15/13 Senate Floor Analyses CONTINUED SB 363 Page 7 SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED