BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 363|
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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
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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
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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
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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
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(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
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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
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SUPPORT/OPPOSITION: SEE ABOVE
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