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
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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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