BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1134 Hearing Date: July 14, 2015
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|Author: |Mark Stone |
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|Version: |June 16, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Firearms: Concealed Firearm Licenses
HISTORY
Source: California State Sheriffs' Association and Los Angeles
County Sheriff's Department
Prior Legislation:None known
Support: Unknown
Opposition:California Rifle and Pistol Association; Firearms
Policy Coalition; Gun Owners of California; Law Center
to Prevent Gun Violence (unless amended); National
Rifle Association
Assembly Floor Vote: 51 - 26
PURPOSE
The purpose of this legislation is to allow a sheriff to: 1)
require an applicant, who resides in a city with a municipal
police department, to apply for a concealed carry license, renew
a license, or amend a license to carry a concealed handgun
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through the chief of police or other head of the municipal
police department in lieu of the sheriff, provided that the
chief or other head of the municipal police department agrees to
process those applications; and 2) review any denial by the
chief or other head of an application for a license or for the
renewal of a license, as specified.
Existing law states that a county sheriff or municipal police
chief may issue a license to carry a handgun capable of being
concealed upon the person upon proof of all of the following:
The person applying is of good moral character (Penal
Code §§ 26150 and 26155(a)(1));
Good cause exists for the issuance (Penal Code §§ 26150
and 26155(a)(2));
The person applying meets the appropriate residency
requirements (Penal Code §§ 26150 and 26155(a)(3)); and,
The person has completed the appropriate training
course, as specified. (Penal Code §§ 26150 and
26155(a)(4)).
Existing law states that a county sheriff or a chief of a
municipal police department may issue a license to carry a
concealed handgun in either of the following formats:
A license to carry a concealed handgun upon his or her
person (Penal Code §§ 26150 and 26155(b)(1)); or,
A license to carry a loaded and exposed handgun if the
population of the county, or the county in which the city
is located, is less than 200,000 persons according to the
most recent federal decennial census. (Penal Code §§ 26150
and 26155(b)(2).)
Existing law provides that a chief of a municipal police
department shall not be precluded from entering into an
agreement with the sheriff of the county in which the city is
located for the sheriff to process all applications for
licenses, or renewal of licenses, to carry a concealed handgun
upon the person. (Penal Code § 26155(b)(3).)
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Existing law provides that a license to carry a concealed
handgun is valid for up to two years, three years for judicial
officers, or four years in the case of a reserve or auxiliary
peace officer. (Penal Code § 26220.)
Existing law provides that a license may include any reasonable
restrictions or conditions that the issuing authority deems
warranted. (Penal Code § 26200.)
Existing law states that the fingerprints of each applicant are
taken and submitted to the Department of Justice (DOJ).
Provides criminal penalties for knowingly filing a false
application for a concealed weapon license. (Penal Code §§
26180 and 26185.)
Existing law requires the fingerprints of each applicant for a
license to carry a concealed handgun be taken and two copies on
forms prescribed by the DOJ and be forwarded to DOJ. Upon
receipt of the fingerprints and the required fee, DOJ must
promptly furnish the forwarding licensing authority a report of
all data and information pertaining to any applicant of which
there is a record in its office, including information as to
whether the person is prohibited by state or federal law from
possessing, receiving, owning, or purchasing a firearm. (Penal
Code § 26185(a).)
Existing law states that if the license applicant has previously
applied to the same licensing authority for a license to carry
firearms and the applicant's fingerprints and fee have been
previously forwarded to DOJ, the licensing authority must note
the previous identification numbers and other data that would
provide positive identification in the files of DOJ on the copy
of any subsequent license submitted DOJ and no additional
application form or fingerprints are required. (Penal Code §
26185(b).)
Existing law states that if a license applicant has a license
issued and the applicant's fingerprints have been previously
forwarded to DOJ the licensing authority must note the previous
identification numbers and other data that would provide
positive identification in
the files of DOJ on the copy of any subsequent license
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submitted to DOJ and no additional fingerprints are required.
(Penal Code § 26185(c).)
Existing law states that each applicant for a new license to
carry a concealed handgun, or for the renewal of a license, must
pay at the time of filing the application a fee determined by
DOJ. The fee cannot exceed the application processing costs of
DOJ. (Penal Code § 26190(a).)
Existing law allows the licensing authority of any city, city
and county, or county to charge an additional fee in an amount
equal to the actual costs for processing the application for a
new license, including any required notices, excluding
fingerprint and training costs, but in no case to exceed one
hundred dollars ($100), and must transmit the additional fee, if
any, to the city, city and county, or county treasury. The
first 20 percent of this additional local fee may be collected
upon filing of the initial application. The balance of the fee
shall be collected only upon issuance of the license. (Penal
Code § 26190(b).)
Existing law allows the licensing authority to charge an
additional fee, not to exceed twenty-five dollars ($25), for
processing the application for a license renewal, and shall
transmit an additional fee, if any, to the city, city and
county, or county treasury. (Penal Code § 26190(c).)
Existing law states that a license to carry a concealed handgun
cannot be issued if DOJ determines that the person is prohibited
by state or federal law from possessing, receiving, owning, or
purchasing a firearm. A license must be revoked by the local
licensing authority if at any time either the local licensing
authority is notified by DOJ that a licensee is prohibited by
state or federal law from owning or purchasing firearms, or the
local licensing authority determines that the person is
prohibited by state or federal law from possessing, receiving,
owning, or purchasing a firearm. If at any time DOJ determines
that a licensee is prohibited by state or federal law from
possessing, receiving, owning, or purchasing a firearm, DOJ
shall
immediately notify the local licensing authority of the
determination. (Penal Code § 26195.)
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This bill states that a sheriff may require an applicant who
resides in a city with a municipal police department to apply
for a license, renew a license, or amend a license through the
chief of police or other head of the municipal police department
in lieu of the sheriff, provided that the chief or other head of
the municipal police department agrees to process those
applications. As part of that processing, if an applicant is
denied a license or renewal of a license, the chief or other
head of the municipal police department shall inform the
applicant that the denial may be reviewed, at the sheriff's
discretion, if requested by the applicant. The sheriff may, but
is not required to, review the denial by the chief or other head
of an application for a license or for the renewal of a license.
This bill states that when reviewing the denial of a license or
denial of the renewal of a license because the applicant is not
of good moral character, the sheriff may rely on the findings,
background check, or other investigation conducted by the
municipal police department. If the sheriff determines upon
review that the applicant is of good moral character, the
sheriff may issue or renew a license pursuant, as specified.
This bill states when reviewing the denial of a license or
denial of the renewal of a license because the applicant does
not demonstrate good cause for a license, the sheriff shall
review that determination de novo. If the sheriff determines
upon review that the applicant demonstrates good cause for a
license, the sheriff may issue or renew a license, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
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On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity." (
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
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COMMENTS
1. Need for This Legislation
According to the author:
Existing law allows the county sheriff or the chief of
the city police department to grant licenses to carry
concealed firearms. In addition, existing law also
allows a police chief to enter in an agreement with
the sheriff so that the sheriff handles and processes
all concealed carry weapon (CCW) permits from a city.
However, there is nothing in existing law that allows
the sheriff to defer to a police chief in handling CCW
applications. I agree with the California Sheriffs in
that the police chief, whose department may be more
familiar with city residents than a county sheriff,
can be better positioned to make a determination that
a person should be granted a CCW.
2. Lu v. County of Los Angeles
The Los Angeles County Sheriff's Department (LASD) instituted a
policy requiring applicants for licenses to carry a concealed
handgun to apply with the police chief in the city in which the
person resides, rather than the sheriff. In 2013, the Los
Angeles Superior Court held that the existing law did not,
specifically, provide for that option and ordered the LASD to
process all applications filed with the LASD. (Lu v. County of
Los Angeles, BC480493). The court stated:
Plaintiffs seek to require Defendants to exercise
their statutory duty to determine whether applicants
for licenses to carry handguns are of good moral
character, are residents of the County, and have good
cause for the licenses, as required by Penal Code §§
17020 and 26150-26225. Plaintiffs each seek a license
to carry handguns pursuant to Penal Code § 26150, et
seq., and assert that they should not have to apply to
their own cities for issuance of a concealed weapons
license (CCW), as it violates their constitutional
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rights under the 14th Amendment to be prohibited from
going directly to the Los Angeles Sheriff's Department
(LASD). . .
Defendants seek summary judgment/adjudication arguing
that the policy requiring residents to seek a CCW
permit from their respective city before seeking a CCW
permit from the LASD does not violate the law,
Plaintiffs fail to prove essential elements of their
causes of action for violation of equal protection
under the 14th Amendment of the U.S. Constitution,
Platiniffs are not entitled to writ, injunctive, or
declaratory relief as they cannot show that the LASD's
policy is arbitrary, capricious, or without support,
and naming the LASD and Sheriff Baca as defendants is
redundant of suing the County of Los Angeles.
Plaintiffs argue that this case is really only about
whether the LASD must follow the law as written by the
legislature and as interpreted by the California Court
of Appeal. The Second District Court of Appeal has
expressly ruled that Penal Code §§26150-26225 impose a
duty on the LASD to make an investigation and
determine an application for a CCW permit on an
individual basis. The sole issue in this case is
whether the LASD has to follow that law.
The court goes on to find:
Plaintiffs' opposition heavily relies on Salute v.
Pitchess, 61 Cal. App. 3d 557 (1976) to support their
argument that Defendants are violating the law. The
court finds that the discussion in Saulte supports
denial of this motion.
In Salute the plaintiffs "were duly licensed private
investigators" seeking CCW permits. See Id., at p.
559. The Court acknowledged that "[t]he petitioners
allege, and the sheriff admits, that the sheriff has a
fixed policy of not granting applications under
section 12050 except in a limited number of cases."
See Id., at p. 560. In Salute, that policy was stated
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as follows:
"The Sheriff's policy is not to issue any
concealed weapons permit to any person, except
for judges who express concern for their personal
safety. In special circumstances, the request of
a public officer holder who expresses concern for
his personal safely would be considered. . ." and
"the outstanding permits issued by the Sheriff
are only 24 in number." See Salute, Id.
Plaintiffs successfully argue that the LASD's current
policy in this matter is akin to the improper "fixed
policy" in Salute. Here the LASD admits that, where
the applicant lives in an incorporated city which is
not policed by the LASD, it has a policy requiring
that before the LASD will consider and application for
a CCW permit such applicant must first apply with the
Chief of Police of the city in which the resident
lives and be denied a CCW permit. (Motion, Rogers
Dec., 9) Such a policy is similar to a fixed policy
of only granting a limited number of applications
because in essence the LASD will not consider any
applications that have not been first tendered to the
local Chief of Polic[e] of the applicable city.
It is clear to this court that the decision in Salute
was meant to address strict policies by the LASD that
ultimately result in the agency not considering
applications on a case-by-case basis. The Court
stated the following:
While the court cannot compel a public officer to
exercise his discretion in any particular manner,
it may direct him to exercise that discretion. We
regard the case at bench as involving a refusal
of the sheriff to exercise the discretion given
him by the statute. Section 12050 imposes only
three limits on the grant of an application to
carry a concealed weapon: the applicant must be
of good moral character, show good cause and be a
resident of the county. To determine, in
advance, as a uniform rule, that only selected
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public officials can show good cause it to refuse
to consider the existence of good cause on the
part of citizens generally and is an abuse of,
and not an exercise of, discretion. (Emphasis
added.) See Salute, Id.
The Court further stated that "[i]t is the duty of the
sheriff to make such an investigation and
determination, on an individual basis, on every
application under section 12050." See Id, at p.
560-561.
Defendants have instituted an improper policy
requiring certain applicants such as Plaintiffs to
first apply with their city's Chief of Police before
filing a separate application with the LASD. While
this court cannot direct Defendants how to exercise
their discretion in making the good cause
determination during the application process, this
court can direct LASD to exercise its discretion and
consider the application without first requiring the
applicant to seek the CCW permit with his/her local
policy chief. Indeed, Penal Code §26175(g) says "[a]n
applicant shall not be required to complete any
additional application or form for a license, or to
provide any information other than that necessary to
complete the standard application form described in
subdivision (a), except to clarify or interpret
information provided by the applicant on the standard
application form." LASD's policy effectively requires
Plaintiffs to present two (2) applications-first to
the local Chief of Polic[e] and then to LASD. This is
not proper. LASD's policy in this case is not
consistent with the statutory scheme for issuance of
CCW permits as set forth in Penal Code §§26150, et
seq., and the policy is not consistent with the Salute
case.
The court ultimately denied defendants motion for summary
judgment and issued a writ of mandamus (mandate) ordering
defendants "to consider the applications of all persons seeking
a CCW permit in the first instance without requiring any
applicant to first seek a CCW permit with his/her local police
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chief or city." This matter is currently pending review by the
California Court of Appeals.
3. Effect of This Legislation
The version of this legislation that passed out of the Assembly
would have simply authorized the sheriff of a county in which a
city is located to enter into an agreement with the chief or
other head of the municipal police agency in that city for the
chief or head of that municipal police agency to process all
applications for licenses to carry a concealed handgun upon the
person, renewal of those licenses, and amendments to those
licenses. This legislation was amended in the Senate to,
additionally, allow a sheriff, at his or her discretion, to
review a police chief's denial of a CCW request.
The proponents of AB 1134 state that this legislation is
necessary to allow a sheriff to defer to a police chief in
handling CCW applications. Specifically, the California State
Sheriffs' Association states,
AB 1134 amends the law so that sheriffs may, but are
not required to, enter into agreements with police
chiefs to handle CCW applications. Recent amendments
clarify that if such an agreement exists, it would
only apply to the resident of a police chief's city.
We believe that the police chief, whose department may
be more familiar with city residents than a county
sheriff, can be better positioned to make the
determination that a person should be granted a CCW.
In these cases, we believe the sheriff and police
chief should be allowed to enter into an agreement, if
both parties agree. However, this measure also
specifies that a sheriff may, but is not required to,
review the denials of applications. This will ensure
CCWs are issued to those qualified under the Penal
Code.
Given that the proponents argue that a police chief "whose
department may be more familiar with city residents than a
county sheriff, can be better position to make the determination
that a person should be granted a CCW," members may wish to
consider whether allowing a sheriff to review a police chief's
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decision to deny a CCW advances public safety.
4. Issues with This Legislation
Sheriff Review of the Police Chief Decision:
This bill states that when reviewing the denial of a license, or
denial of the renewal of a license, because the applicant is not
of good moral character, the sheriff may rely on the findings,
background check, or other investigation conducted by the
municipal police department. And,
when reviewing the denial of a license or denial of the renewal
of a license because the applicant does not demonstrate good
cause for a license, the sheriff shall review that determination
de novo. It is unclear why a review of a denial based on a
failure to show good moral character would be treated
differently than a review of a failure to show good cause.
Background Check:
When applying for a license to carry a concealed firearm an
applicant must be fingerprinted and pay a fee to DOJ to do a
background check. Should the individual pass the background
check and be issued a license, DOJ notifies the agency that
requested the background of any new prohibiting criminal
offense. It is unclear whether a sheriff, who is reviewing a
decision made by another law enforcement agency, would require
an individual to resubmit fingerprints. If the sheriff does not
require fingerprints to be resubmitted, the sheriff would not
receive subsequent arrest information.
Fees Charged for Concealed Carry Permits:
Existing law allows the licensing authority of any city, city
and county, or county to charge fee in an amount equal to the
actual costs for processing the application for a new CCW and
the licensing authority may collect 20 percent of its fee upon
the filing of the application. (Penal Code § 26190(b).) It is
unclear whether a sheriff, who is reviewing a denial by a police
chief, would treat the review as a new application and charge an
additional fee.
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5. Argument in Support
According to the Los Angeles County Sheriff's Department:
Existing law authorizes the sheriff of a county, or
the chief or other head of a municipal police
department, upon proof that the person applying is of
good moral character, that good cause exists, and that
the person applying satisfies certain conditions, to
issue a license for the person to carry a concealed
handgun, as specified. Existing law provides that the
chief or other head of a municipal police department
is not precluded from entering into an agreement with
the sheriff of eh county in which the city is located
for the sheriff to process all applications for
licenses for a person to carry a concealed handgun,
renewal of those licenses, and amendments to those
licenses.
AB 1134 would provide that the sheriff of the county
in which the city is located is not precluded from
entering into an agreement with the chief or other
head of a municipal police department to process all
applications for licenses for a person to carry a
concealed handgun, renewals of those licenses, and
amendments to those licenses.
6. Argument in Opposition
According to the Firearms Policy Coalition:
Assembly Bill 1134 isn't about California's sheriffs
having a newly recognized "need" at all. Rather, AB
1134 is a means for sheriffs to abrogate important
ministerial duties and re-introduce treacherous
political dynamics into a system methodically crafted
by the Legislature to establish reasonable and uniform
procedural standards.
And the political precedent that would be set by
passing Assembly Bill 1134 is frightening. AB 1134
stands for the proposition that if a local agency
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ignores for decades the Legislature's well-considered
mandates, gets sued for it, and loses in court, the
Legislature will save that agency from responsibility
by passing a bill to bail them out.
If California's sheriffs are concerned about
processing an increasing number of carry license
applications, a better solution would be to remove
that burden from them entirely by way of a
standardized, objective, and fair process at the state
level.
In any case, a municipality's recalcitrance to follow
the Legislature's mandates should not be rewarded.
According to the Law Center to Prevent Gun Violence, which
is opposed unless the bill is amended:
[R]ecent amendments to AB 1134 would make current law
even more asymmetrical, not less. As amended, the bill
would still authorize county sheriffs to enter into
agreements with the chiefs of local police departments
allowing the police chief to process all CCW permit
applications by his or her city's residents. But AB
1134 would now also grant sheriffs the power to
unilaterally review and overrule local police
departments' considered, final determinations on CCW
permit applications. Oddly, the bill would provide no
parallel authority for local police departments to
review sheriffs' final determinations on CCW
applications after entering into an agreement allowing
all CCW applications to be processed by the sheriff.
This proposed asymmetry is arbitrary, confusing, and
simply inconsistent with AB 1134's original purpose of
promoting efficient, effective, and informed review of
CCW applications by local law enforcement agencies.
Such agencies should be authorized, but not required,
to decide between themselves whether to provide
secondary review of CCW applications by either agency.
As amended, AB 1134 would now also require a sheriff,
when reviewing a local police department's denial of a
CCW application for failure to show good cause, to
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"review that determination de novo," or from the
beginning, meaning that the sheriff would be required
to repeat the entire application process anew without
being able to use any of the information or insights
gleaned by the local police department in denying that
application. Therefore, instead of promoting
coordination between local law enforcement agencies on
a matter of significant concern to public safety, this
bill would actually require sheriffs reviewing police
department determinations to actively ignore the
police departments' findings in these cases. We
believe such a requirement is ill-considered. If
sheriffs and police chiefs wish to adopt such a
constraint, they should be authorized, but not
required, to do so.
Instead, we recommend that AB 1134 be amended to
include clear, symmetrical language providing both
sheriffs and local police departments the same
authority
to enter into whatever agreements regarding CCW permit
applications would suit the needs of their own
communities and respective agencies. Accordingly, we
recommend that AB 1134 be amended to state as follows,
with proposed new language italicized in bold:
Cal. Penal Code § 26150:
(c) Nothing in this chapter shall preclude the
sheriff of the county in which the city is
located from entering into an agreement with the
chief or other head of a municipal police
department of a city for the chief or other head
of a municipal police department to process all
applications for licenses, renewals of licenses,
and amendments to licenses, pursuant to this
chapter. Such an agreement may authorize, but is
not required to authorize, the sheriff to review
any determination made by the chief or other head
of a municipal police department of a city
regarding the applications.
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Cal. Penal Code § 26155:
(c) Nothing in this chapter shall preclude the
chief or other head of a municipal police
department of any city from entering an agreement
with the sheriff of the county in which the city
is located for the sheriff to process all
applications for licenses, renewals of licenses,
and amendments to licenses, pursuant to this
chapter. Such an agreement may authorize, but is
not required to authorize, the chief or other
head of a municipal police department of a city
to review any determination made by the sheriff
regarding the applications.
These amendments would improve efficiency, clarity,
and public safety by giving law enforcement agencies
clear, symmetrical authority to enter into agreements
regarding CCW permit applications in their own
communities as they deem fit. These amendments would
cleanly correct the asymmetry in existing law, answer
the legal uncertainty created by Lu v. Baca, and avert
the potential negative consequences of AB 1134's
arbitrary, confusing, and asymmetrical language as
currently written.
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