BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 7 5 5 SB 755 (Wolk) As Amended April 3, 2013 Hearing date: April 16, 2013 Penal Code SM:mc FIREARMS POSSESSION: PROHIBITED PERSONS HISTORY Source: Author Prior Legislation: SB 819 (Leno) - Chap. 743, Stats. 2011 AB 302 (Beall) - Chap. 344, Stats. 2010 AB 161 (Steinberg) - Chap. 754, Stats. 2003 AB 950 (Brulte) - Chap. 944, Stats. 2001 Support: California Chapters of the Brady Campaign to Prevent Gun Violence; Youth Alive!; California Church Impact; Moms Demand Action for Gun Sense in America; CLUE California; Law Center to Prevent Gun Violence; Laguna Woods Democratic Club; Violence Prevention Coalition of Orange County; PICO California; Doctors for America; Lutheran (More) SB 755 (Wolk) Page 2 Office of Public Policy - California; The Christy Lynn Wilson Foundation; Bend the Arc: Jewish Partnership for Justice; Courage Campaign; several letters from private citizens Opposition:California Public Defenders Association; California Right to Carry; National Rifle Association; California Association of Federal Firearms Licensees; California Rifle and Pistol Association; several phone calls from private citizens KEY ISSUES SHOULD SPECIFIED OFFENSES BE ADDED TO THE LIST OF MISDEMEANORS THAT RESULT IN A 10-YEAR PROHIBITION ON FIREARMS POSSESSION? SHOULD A VIOLATION OF TWO OR MORE SPECIFIED MISDEMEANORS RELATED TO SUBSTANCE ABUSE WITHIN A THREE-YEAR PERIOD RESULT IN A 10-YEAR PROHIBITION ON FIREARMS POSSESSION? SHOULD PERSONS ORDERED INTO OUTPATIENT TREATMENT DUE TO MENTAL ILLNESS, AS SPECIFIED, BE PROHIBITED FROM POSSESSING FIREARMS WHILE SUBJECT TO ASSISTED OUTPATIENT TREATMENT? PURPOSE The purpose of this bill is to (1) add specified offenses to the list of misdemeanors that result in a 10-year prohibition on firearms possession; (2) specify certain misdemeanors related to substance abuse for which a violation of two or more within a three-year period will result in a 10-year prohibition on firearms possession; and (More) SB 755 (Wolk) Page 3 (3) provide that persons ordered into outpatient treatment due to mental illness, as specified, will be prohibited from possessing firearms while subject to assisted outpatient treatment. Background Checks on Firearms Purchases Current law : requires that firearms dealers obtain certain identifying information from firearms purchasers and forward that information, via electronic transfer to Department of Justice (DOJ) to perform a background check on the purchaser to determine whether he or she is prohibited from possessing a firearm (Pen Code § 28160-28220); and requires that, upon receipt of the purchaser's information, DOJ shall examine its records, as well as those records that it is authorized to request from the State Department of Mental Health pursuant to Section 8104 of the Welfare and Institutions Code, in order to determine if the purchaser is prohibited from purchasing a firearm. (Penal Code § 28220.) Persons Prohibited From Possessing Firearms Current Federal law provides that it shall be unlawful for the following people to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce: Any person - who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; who is a fugitive from justice; who is an unlawful user of or addicted to any (More) SB 755 (Wolk) Page 4 controlled substance, as defined; who has been adjudicated as a mental defective or who has been committed to a 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; who is subject to a court order that - o was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; o 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; 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 who has been convicted in any court of a misdemeanor crime of domestic violence. (18 USC § 922(g).) Current California law provides that certain people are prohibited from owning or possessing a firearm. This includes: Lifetime Ban (More) SB 755 (Wolk) Page 5 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; 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.) Current law provides that a violation of these provisions is a felony. ( Id. ) 10-Year Ban Anyone convicted of numerous misdemeanors involving violence or threats of violence. (Penal Code § 29805.) Current law provides that a violation of these provisions is a wobbler, as specified. ( Id. ) 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).) Current law provides that the violation of these provisions is a wobbler, as specified. ( Id. ) Temporary Bans (More) SB 755 (Wolk) Page 6 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 the violation of these provisions is a wobbler or a misdemeanor, as specified. ( Id. ) Armed Prohibited Persons File The Attorney General maintains an online database known as the Armed Prohibited Persons File ("APPS"). The purpose of APPS is to cross-reference persons who have ownership or possession of a firearm on or after January 1, 1991, as indicated by a record in the Consolidated Firearms Information System, and who, subsequent to the date of that ownership or possession of a firearm, fall within a class of persons who are prohibited from owning or possessing a firearm. The information contained in APPS is only be available to specified entities through the California Law Enforcement Telecommunications System, for the purpose of determining if persons are armed and prohibited from possessing firearms. (Penal Code § 30000.) This bill would add the following misdemeanor offenses to those for which a conviction results in a 10-year prohibition on possession of a firearm: obstructing or resisting an executive office by force or threat of force (Penal Code § 69); removing a weapon from the presence of a peace officer while resisting arrest (Penal Code § 148(b)); willful disobedience of a criminal street gang injunction (Penal Code § 166(a)(10); active participation in a criminal street gang (Penal Code § 186.22(a)); (More) SB 755 (Wolk) Page 7 commission of an offense for the benefit of a street gang (Penal Code § 186.22(b)); sale of a firearm without a license (Penal Code § 26500); sale of ammunition to an underage person (Penal Code § 30300); possession of ammunition by a person prohibited from possessing a firearm (Penal Code § 30305); sale or supplying ammunition to a person prohibited from possessing a firearm (Penal Code § 30306); bringing ammunition on school grounds (Penal Code § 30310); carrying a concealed firearm where the person has been convicted of a drug offense or of a crime against a person or property (Penal Code § 24500(c)(5)); carrying a concealed firearm where the firearm was loaded and not registered to the person in possession (Penal Code § 24500(c)(6)); carrying a loaded firearm in public where the person has been convicted of a drug offense or of a crime against a person or property (Penal Code § 25850(c)(5)); carrying a loaded firearm in public where the firearm was not registered to the person in possession. (Penal Code § 25850(c)(6).) This bill would provide that any person convicted of a misdemeanor violation of two or more of the following offenses within a 10-year period who then owns, purchases, receives or has in their possession or under their custody or control, any firearm, is guilty of an alternate felony/misdemeanor, punishable as a felony by 16 months, 2 or 3 years in state prison, or as a misdemeanor by up to a year in the county jail, a fine of up to $1,000, or both: being under the influence of alcohol or a controlled substance while engaged in the practice of dentistry in actual attendance on patients to an extent that impairs his or her ability to conduct the practice of dentistry with safety to patients and the (More) SB 755 (Wolk) Page 8 public (Business and Professions Code § 1700(e)); being under the influence of alcohol or a controlled substance while engaged in the practice of dental hygiene in actual attendance on patients to an extent that impairs his or her ability to conduct the practice of dental hygiene with safety to patients and the public (Business and Professions Code § 1958(e)); practicing medicine while under the influence of any narcotic drug or alcohol to such an extent as to impair his or her ability to conduct the practice of medicine with safety to the public and his or her patients (Business and Professions Code § 2280); any person who, while on duty, sells, dispenses or compounds any drug while under the influence of any dangerous drug or alcoholic beverages shall be guilty of a misdemeanor (Business and Professions Code § 4327); operating any vessel or manipulating water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug (Harbors and Navigation Code § 655(b)); operating any recreational vessel or manipulating any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood (Harbors and Navigation Code § 655(c)); no person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood (Harbors and Navigation Code § 655(d)); operating any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily (More) SB 755 (Wolk) Page 9 injury to any person other than himself or herself (Harbors and Navigation Code § 655(f)); serving as a crew member on any charter boat while under the influence of intoxicating liquor, any drug, or the combined influence of intoxicating liquor and any drug (Harbors and Navigation Code § 655.4(a)); serving as a crew member on any charter boat while under the influence of intoxicating liquor, any drug, or under the combined influence of intoxicating liquor and any drug, and while so serving, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, which act or neglect proximately causes bodily injury to any person other than himself or herself (Harbors and Navigation Code § 655.4(b)); being under the influence of any controlled substance (Health and Safety Code § 11550); vehicular manslaughter while intoxicated (Penal Code § 191.5); public intoxication (Penal Code § 647(f)); operating an aircraft in the air, or on the ground or water, or engaging in parachuting for sport while under the influence of an alcoholic beverage or any drug, or the combined influence of an alcoholic beverage and any drug (Public Utilities Code § 21407.1(a)); operating an aircraft in the air or on the ground or water with 0.04 percent or more, by weight, of alcohol in your blood (Public Utilities Code § 21407.1(b)); riding a bicycle upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug (Vehicle Code § 21200.5); driving a vehicle under the influence of any alcoholic beverage or drug (Vehicle Code § 23152); driving a vehicle under the influence of any alcoholic beverage or drug and causing injury (Vehicle Code § 23153); (More) SB 755 (Wolk) Page 10 driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater while on probation for driving under the influence (Vehicle Code § 23154); possession for sale or distribution of synthetic cannabinoids, as defined (Health and Safety Code § 11357.5); possession for sale or sale of specified controlled substances (Health and Safety Code § 11375); possession for sale or sale of ketamine (Health and Safety Code § 11379.2). This bill would require the Court to notify persons subject to these firearms prohibitions on forms prescribed by the Department of Justice. 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 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 (More) SB 755 (Wolk) Page 11 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 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 oppose 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. The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unsettled. However, in light of the real gains in reducing the prison population that have been made, although even greater 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 (More) SB 755 (Wolk) Page 12 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: Current law prohibits certain individuals from purchasing or possessing firearms or ammunition based on commission of certain crimes, being subject to protective orders, or being deemed mentally ill according to specified sections of law. This bill results from policy recommendations in January 2013 from the Johns Hopkins Bloomberg School of Public Health titled Reducing Gun Violence in America . Research has found a correlation between certain offenses and the propensity to commit firearms related offenses. These include multiple convictions for alcohol or drug abuse. This bill adds a number of crimes to the list [of offenses for which] persons [ ] are subject to a 10 year firearms prohibition as well as those deemed mentally ill and meeting the conditions that make them subject to assisted out-patient treatment. 2. Firearms Prohibitions for Misdemeanor Offenses As detailed above, current state and federal laws prohibit persons who have been convicted of specific crimes from owning or possessing firearms. For example, anyone (More) SB 755 (Wolk) Page 13 convicted of any felony offense is prohibited for life from firearms ownership under both federal and state law. (18 U.S.C. § 922(g); Penal Code § 29800.) California goes further and imposes a 10-year firearms prohibition on persons convicted of numerous misdemeanor offenses that involve either violence or the threat of violence. (Penal Code § 29805.) Additionally, anyone who has been found to be a danger to themselves or others due to mental illness is subject to a five-year prohibition (Welfare and Institutions Code §§ 8100, 8103(f)), and people under domestic violence restraining orders are subject to a prohibition for the duration of that court order. (Penal Code § 29825.) This bill would expand the number of misdemeanor convictions resulting in a 10-year prohibition by adding a number of offenses involving violence or threats of violence, gang-related activity and firearms-related activity. This bill would also prohibit persons under court-ordered outpatient therapy due to mental illness from firearm purchase or possession while subject to that assisted outpatient therapy. This bill would expand the existing firearms prohibitions by creating a class of misdemeanor offenses related to alcohol or drug intoxication that would result in a 10-year firearms prohibition if a person were convicted of two or more of them within a three-year period. 3. Arguments in Support The California Chapters of the Brady Campaign to Prevent Gun Violence states: Senate Bill 755 also adds to the class of prohibited persons those who have been convicted of two or more drug or alcohol related offenses within a three year period. Both State and federal law prohibit persons who are addicted to narcotics from possessing firearms but this law (More) SB 755 (Wolk) Page 14 is not particularly effective because there is no database of addicted persons. The law is completely silent with regard to alcohol abuse and firearm possession. The journal Injury Prevention reports that, "There is a large body of scientific evidence that people who abuse alcohol or illicit drugs are at increased risk of committing acts of violence or self harm." If drug and alcohol abusers are at higher risk of committing violence, then it stands to reason that these individuals should also be prohibited from possessing firearms. A follow up study by Dr. Garen Wintemute found that firearm owners were more likely than non firearm owners to have more than five drinks on one occasion, to drink and drive and to have more than 60 drinks in one month. Further, he found that heavy alcohol use was most common among firearm owners who engaged in behaviors such as carrying a firearm for protection against other people and keeping a firearm at home that was both loaded and not locked away. We believe that adding drug and alcohol related offenses as a prohibited category for firearm possession would add significantly to public safety. Senate Bill 755 also creates a ten year prohibition on firearm possession for individuals who have been ordered into Assisted Outpatient Treatment (AOT) under Laura's Law (AB 1421, 2002). This provision of the bill, while a good idea, will impact a small number of people. Most individuals who are under AOT court orders have been repeatedly committed for involuntary mental health treatment under WIC §5150, or have been incarcerated, and are therefore likely already to be in a prohibited class. However, there is a small group that may have committed themselves (More) SB 755 (Wolk) Page 15 for inpatient treatment voluntarily and are not prohibited under existing law. These persons are also considered a danger to self or others and should have a firearm prohibition as well. (More) 4. Arguments in Opposition The California Public Defenders Association states: If the purpose of the bill is to limit persons, who because of their conviction of these crimes, makes it more dangerous for them to possess a firearm, hence, a firearm control bill, this bill misses the mark because it adds offenses to the firearms ban which have no nexus to either firearm use or dangerousness. For example, the bill would add to the list of offenses that trigger the 10-year ban on firearm possession, a number of Vehicle Code violations, such as two convictions for driving under the influence (VC 23152). It would include in the ban persons convicted of being a crew member of a charter boat, and doing so while under the influence of alcohol or drugs (H&N 655.4). It would include in the ban persons convicted of flying an airplane while under the influence (Public Utilities code 21407.1), or simply being drunk in public (PC 647(f)). It would also include certain violations of the Business & Professions Code. None of these offenses have any nexus to firearms, or their use. None of these offenses are of the type that would make possession of a firearm more dangerous to the public. On the other hand, the purpose of this bill may be to simply increase penalties for conviction of the added offenses. Unfortunately, the increased penalty of a 10-year firearm possession ban has no real deterrent effect to people committing these offenses. If that were the purpose, why not take away the right to vote for people convicted of the added offenses? Why the right (More) SB 755 (Wolk) Page 17 to possess a firearm? Again, there is no nexus between the proposed additional penalty and the offense itself. 5. Sentencing Considerations As explained in detail above, this bill would expand the scope of the current wobbler that applies to persons who violate the 10-year ban on owning or possessing a firearm by adding categories of offenses to these provisions. Committee staff is unaware of any estimates for the potential impact of this bill on the prison population. By way of reference, there currently are 12 inmates in prison for conviction of these crimes in their current scope. ***************