BILL ANALYSIS                                                                                                                                                                                                    







                      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  




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                   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  




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          (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  




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               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




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                 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




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          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));




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                 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  




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               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  




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               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);




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                 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  




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          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  




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               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  




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          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  




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               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  




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               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.








































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          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  




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               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.


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