BILL ANALYSIS Ó
AB 1154
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Date of Hearing: April 21, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1154
(Gray) - As Introduced February 27, 2015
SUBJECT: THE CALIFORNIA PUBLIC RECORDS ACT: APPLICATIONS FOR
LICENSES AND LICENSES TO CARRY CONCEALED FIREARMS
KEY ISSUE: SHOULD THE HOME ADDRESSES AND TELEPHONE NUMBERS OF
ALL APPLICANTS AND LICENSEES FOR LICENSES TO CARRY CONCEALED
WEAPONS (CCW), RATHER THAN JUST CERTAIN PUBLIC OFFICIALS, BE
EXEMPT FROM PUBLIC DISCLOSURE IN RESPONSE TO A REQUEST FOR
PUBLIC RECORDS MADE PURSUANT TO THE CALIFORNIA PUBLIC RECORDS
ACT, DESPITE THE FACT THAT INFORMATION ABOUT APPLICANTS AND
LICENSEES IS PRESUMED TO BE PUBLIC?
SYNOPSIS
Under this bill, co-sponsored by two gun rights organizations,
the National Rifle Association (NRA) and the California Rifle
and Pistol Association, the home addresses, and telephone
numbers of those who apply for a license, as well as those who
are granted a license, to carry a concealed firearm (CCW) would
no longer be open to public scrutiny. (The names of CCW
licensees and applicants, including those of prosecutors, public
defenders, peace officers, judges, court commissioners, and
magistrates are subject to public disclosure under current law,
which this bill does not seek to change for either those
officials, or for all CCW licensees and applicants.) The author
and supporters, including law enforcement organizations
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including the California Police Chiefs Association and the
California State Sheriffs Association, argue that the bill is
justified by preventing the risk of harm to CCW licensees and
applicants. They cite a recent incident in which a New York
paper published the names of licensed CCW licensees, saying
"such action place lawful concealed carry holders at risk to
criminals who may target their home to steal firearms."
Opponents, the California Newspaper Publishers and the
California Broadcasters Association point out that there are
many reasons why information about CCW licensees is helpful to
the media, public, and researchers, including to ensure that
government officials are abiding by the law and not favoring
friends and contributors when granting or denying CCW
applications. They assert that AB 1154 provides only a highly
speculative benefit to CCW applicants and licensees while
significantly impairing public oversight of a key agency of
government.
SUMMARY: Exempts certain information contained in applications
and licenses to carry concealed weapons from public records
laws. Specifically, this bill exempts from the California
Public Records Act the home addresses and telephone numbers of
licensees and applicants set forth in documents regarding
licenses to carry firearms.
EXISTING LAW:
1)It is a crime for a person to carry a firearm concealed on his
person or in his vehicle without a permit. (Penal Code
Section 25400.)
2)Authorizes a county sheriff or a city police chief to issue a
permit to carry a concealed weapon (CCW) to a county or city
resident if the person is of good moral character, there is
good cause for the issuance, and the applicant has completed a
firearm safety course. (Penal Code Sections 26150, 26155,
26170, and 26215.)
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3)Requires a record of the CCW to be maintained in the office of
the issuing authority and with the Department of Justice.
(Penal Code Sections 26220 and 26220.)
4)Requires applications for CCWs to include name, occupation,
residence and business address, the licensee's age, height,
weight, color of eyes and hair, and the reason for desiring a
CCW, as well as a description of the weapon for which the
permit is sought. (Penal Code Section 26175.)
5)Provides pursuant to the California Public Records Act that
all records maintained by local and state governmental
agencies are open to public inspection unless specifically
exempt. (Government Code Sections 6250 et seq. All further
statutory references are to the Government Code, unless
otherwise indicated.)
6)Defines "public records" to include any writing containing
information relating to the conduct of the public's business
prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics.
(Section 6252(e).) The records of weapons permit holders
maintained by the sheriff are public records. (62 Ops. Cal.
Atty. Gen. 402.)
7)Information in license applications which indicates when or
where applicants are vulnerable to attack or concerns
applicants' medical or psychological histories or family
members is exempt from disclosure under the California's
Public Records Act. (Section 6254(u)(1).)
8)The home address and telephone number of prosecutors, public
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defenders, peace officers, judges, court commissioners, and
magistrates that are set forth in applications for licenses or
in licenses to carry firearms are specifically exempt from
disclosure under the California Public Records Act. (Section
6254(u)(2)and (3).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: The author states the reason for the bill as follows:
When it comes to concealed carry permits, an individual
must apply for the permit with his/her County Sheriff or
local police department. While individuals must comply with
all firearm laws when apply for the permit, including a
background check and the 10 day waiting period, their
application information, including home address and phone
number, is public record unless they are a judge, peace
officer, district attorney, public defender, or other
protected public official.
This discrepancy creates significant privacy concerns for
law abiding concealed carry permit holders who are put at
risk of being targeted by criminals for home invasion and
gun theft. Crime victims who may choose to own a firearm
for the purpose of safety and protection also risk having
their private information obtained or disseminated making
it easier for an offender to locate them to inflict further
harm.
AB 1154 would protect the homes addresses and phone numbers
of permit holders without restricting access to law
enforcement, courts, district attorneys, and public
defenders. The bill would extend the same protections that
public officials receive to all concealed carry permit
holders.
This issue is especially pertinent given a recent case in
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New York where a newspaper published the names and
addresses of 44,000 gun permit holders in the form of an
interactive online map. The public availability of this
information caused significant safety and privacy concerns.
California's concealed carry permit holders are currently
exposed to the same risk.
AB 1154 strikes a balance between government transparency
and personal privacy. It ensures the issuance of concealed
carry permits can be monitored by citizens and stakeholders
without providing a one-stop-shop for offenders to collect
sensitive location and contact data.
This bill is co-sponsored by two gun rights organizations, the
National Rifle Association (NRA) and the California Rifle and
Pistol Association. In support of the bill, the NRA states:
An individual exercising his or her Second Amendment rights
should not be put at risk of being a victim of gun theft by
the public exposure of their private information and
enactment of this concealed handgun license holders [sic.]
protection legislation would prevent such abuse. The
privacy of carry permit holders in 43 states is now
protected by laws similar to AB 1154.
The California State Sheriffs Association, representing sheriffs
who are authorized to issue (or deny) CCWs, supports the bill
"if amended" to remove paragraph four of subdivision (u) of
Section 6254, providing that "This section shall not be
construed as prohibiting the disclosure of public records
relating to the reason an application for a license to carry a
firearm pursuant to Section 26150, 26155, 26170, or 26215 of the
Penal Code was granted or denied." However, given that records
of weapon permit holders maintained by the sheriff are public
records (62 Ops. Cal. Atty. Gen. 402), such an amendment seems
inconsistent with existing law. "While some of the holders of
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concealed weapon licenses may prefer anonymity, it is doubtful
that such preferences outweigh the "fundamental and necessary"
right of the public to examine the bases upon which such
licenses are issued. It is a privilege to carry a concealed
weapon." (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 654.)
Current Law Empowers Specified Law Enforcement Officials To Make
Decisions Regarding The Issuance of Concealed Weapons Permits,
Which Are Treated As Public Records Similar To Other
Governmental Licenses. It is a crime for a person to carry a
firearm concealed on his person or in his vehicle without a
permit. (Penal Code Section 25400.) A small number of local
government officials (county sheriffs and city police chiefs)
are the only officials authorized to issue a permit to carry a
concealed weapon. (Penal Code Sections 26150, 26155, 26170, and
26215.) This decision involves the exercise of official
discretion involving a determination of whether the person is of
good moral character and there is good cause for the issuance of
the license. The county sheriff and police chiefs have
"extremely broad discretion concerning the issuance of concealed
weapons licenses." (Gifford v. City of Los Angeles (2001) 88
Cal.App.4th 801, 805.) The issuing official is required to
maintain a record of these applications and licenses, and
records regarding these official actions are considered public
records like other decisions to grant or deny a governmental
permit.
This Bill Would Exempt CCW Records From Public Disclosure.
Under this bill, the home addresses, and telephone numbers of
those who apply for a license, as well as those granted a
license, to carry a concealed firearm would no longer be open to
public scrutiny. (The names of CCW licensees and applicants,
including those of prosecutors, public defenders, peace
officers, judges, court commissioners, and magistrates are
subject to public disclosure under current law, which this bill
does not seek to change for either those officials, or for all
CCW licensees and applicants.) It would therefore no longer be
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known how the local officials entrusted with licensing authority
have exercised this responsibility, including whether the volume
of permits issued was unusually high or low, or how applicants
fared in their efforts to obtain a license. This information
may be important because applicants may only apply in the county
in which they live, the authority to grant permits is tightly
restricted to a few officials, and because the discretion of
these government officials is so broad.
The Principle of The Public Records Act That Governmental
Transparency Is Fundamental To Democracy. Our democratic
process relies on the notion that government should be
accountable for its actions. "In order to verify
accountability, individuals must have access to government
files. Such access permits checks against the arbitrary
exercise of official power and secrecy in the political
process." (CBS, Inc. v. Block, supra, at. p. 651.) Enacted in
1968, the Public Records Act was an attempt to minimize the
secrecy in government. It was passed for the explicit purpose
of "increasing freedom of information by giving the public
access to information in possession of public agencies."
(Ibid.)
The issues raised by this bill were addressed by the California
Supreme Court more than 25 years ago in CBS, Inc. v. Block. In
that case, the Los Angeles County Sheriff refused to provide
information regarding concealed weapons permits to CBS, which
had requested the records in connection with an investigation of
possible abuses. At that time, the Orange County Sheriff had
issued over 400 licenses, while only 35 licenses had been issued
in Los Angeles County. (CBS, Inc. v. Block, supra, at. p. 654.)
The Court determined that "while some of the holders of
concealed weapon licenses may prefer anonymity, it is doubtful
that such preferences outweigh the 'fundamental and necessary'
right of the public to examine the bases upon which such
licenses are issued." (Ibid.) Without the information
contained in those applications and licenses, the Court found
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that there was "no method by which the people can ever ascertain
whether the law is being fairly and impartially applied."
(Ibid.)
Might This Bill Inadvertently Prevent Public Oversight Of Public
Officials Who Wrongly Deny Concealed Weapons License
Applications? As the Block case demonstrates, transparency in
official decision making may deter or reveal inappropriate or
questionable denial of concealed weapons permits.
It is worth noting that home address information about CCW
licensees and applicants can be crucial to holding government
officials accountable for their actions. For example, a sheriff
of a county may only issue a CCW to an applicant who is "a
resident of the county or a city within the county, or the
applicant's principal place of employment or business is in the
county or a city within the county and the applicant spends a
substantial period of time in that place of employment or
business." (Penal Code Section 26150 (a).) Without the
information about where a CCW holder or applicant lives, the
public cannot determine whether the CCW was lawfully issued.
On this point, the California Newspaper Publishers Association
argues as follows:
An example of the importance of this information as a check
on potential abuse by officials can be found in the case of
former Orange County Sheriff, Brad Gates. In the late
1980's, Gates was accused of improperly issuing concealed
weapons permits to his cronies and political supporters.
The sheriff's own records showed he issued 101 permits to
members of the Balboa Bay Club, the Lincoln Club and
various other supporters all of whom were contributors to
his political campaigns. Gates, however, also denied
permits to those he considered unfriendly even though the
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stated reasons for the permits by the unfriendly applicants
were the same as those given by his campaign contributors.
Gates ultimately lost a civil rights suit filed against him
by two private investigators who challenged Gates denial of
their concealed weapon application seven times. The
taxpayers of Orange County ended up footing the bill to pay
the federal jury's award to the investigators and the legal
costs to defend Gates.
By exempting from public access the very same information
that revealed the widespread abuse of authority that
occurred in Orange County, AB 1154 would not only embolden
corruption but it would also serve to protect dishonest
officials from public scrutiny by eliminating one of the
only tools to ferret out misconduct.
The California Broadcasters Association adds succinctly, "This
data is currently public for a legitimate reason: oversight of
those we have entrusted with the authority to issue these
highly-prized documents. The permits are often not easy to
acquire as they empower the holder with rights others do not
have. This value can be, and has been a corruptive influence."
These concerns are not merely theoretical; they have recently
been the subject of media reports regarding controversies that
the Sheriffs of Los Angeles, Monterey and Stanislaus counties
have made decisions about gun permit applications on the basis
of political or other considerations that may be inappropriate,
according to critics. (See Sheriff Lee Baca and the Gun-Gift
Connection, LA Weekly, Feb, 14, 2013 (available at
http://www.laweekly.com/2013-02-14/news/sheriff-lee-baca-conceale
d-weapons-permit/full/); Scrutiny For Gun Permits Gets Tighter,
San Jose Mercury News, Feb 25, 2102 (available at
http://www.mercurynews.com
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/breaking-news/ci_20033908); Hard To Know If Stanislaus County
Sheriff Oks More Concealed Weapon Permits, Modesto Bee, May 24,
2010 (available at http://www.modbee.com /2010/05/24/1179400/
hard-to-know-if-stanislaus-county.html#storylink=cpy).)
The Committee may wish to consider whether exempting information
about the home addresses and telephone numbers of CCW licensees
from disclosure to the public in response to a request for
records pursuant to the PRA will interfere with the right of
Californians to ascertain if their government is functioning
properly. As is clear from the examples above, individuals and
organizations use the information that AB 1154 would exempt from
disclosure to determine if agencies that issue licenses to carry
handguns are violating the people's Constitutional right to
Equal Protection under the law.
Furthermore, there is a substantial body of evidence that CCW
licensees may pose a risk to public safety because, all too
often, these private citizens use their concealed handguns to
take lives, not to save them. Concealed Carry Killers is a
resource maintained by the Violence Policy Center which includes
hundreds of examples of non-self-defense killings by private
citizens with permits to carry concealed weapons, including
homicides, suicides, mass shootings, murder-suicides, lethal
attacks on law enforcement, and unintentional deaths.
( http://concealed carrykillers.org/) The public nature of CCW
information, including information about the home addresses
where CCW licensees live, is helpful to the public as a warning
that the home may be dangerous.
Likewise, the public nature of CCW information is helpful to
reporters and researchers investigating trends in crime and
connections between CCW licensure and gun violence. According
to the Reporters' Committee for Freedom of the Press, such
information allowed Mark Alesia, a reporter with The
Indianapolis Star, to compare information about CCW licensees
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with crime data in two Indiana counties. (See more at:
http://www.rcfp.org/browse-media-law-resources/news-media-law/new
s-media-and-law-winter-2013/reporting-gun-permit-data#
sthash.VPWWmgQk.dpuf ) Localized research (i.e. figuring out
whether county crime rates correlate with CCW issuance rates) is
not possible if the public does not have information about where
CCW licensees live.
Is There Evidence Of Harm To Outweigh The Public Interests In
Transparency, Oversight, And Warning? The author and supporters
argue that the bill is justified by preventing the risk of harm
to CCW licensees and applicants. For example, the San
Bernardino County Sheriff-Coroner states:
In recent years, a New York paper published the names of
licensed CCW holders. Such action place lawful concealed
carry holders at risk to criminals who may target their
home to steal firearms. An individual exercising his or
her Second Amendment rights should not be put at risk of
being a victim of gun theft by the public exposure of their
private information, and enactment of this concealed
handgun license holders [sic.] protection legislation would
prevent such abuse."
It should be noted, as explained above, that this bill does not
attempt to shield the names of CCW licensees or applicants. But
to what extent does the public nature of information about the
home addresses of CCW licensees and applicants endanger the
safety of gun owners and their property, as the author and
supporters assert? The author and supporters all cite one
incident in New York in which a New York newspaper posted an
interactive map showing the homes of CCW licensees on its
website. The author states that he believes the posting of that
map directly led to the burglary of the home of one CCW holder.
As evidence, the author cites this report:
http://www.theblaze.com/stories/2013/01/13/house-identified-on-ny
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-papers-gun-map-burglarized
-and-the-robbers-went-straight-for-the-guns/
However, mere correlation between one burglary and one CCW
holder does not equate to proof of causation of even that
particular burglary, let alone burglaries in general. It would
be more helpful to know whether there was a statistically
significant increase in the rate of residential burglaries of
the homes of the CCW licensees whose addresses were publically
disclosed on the newspaper's website. Such a study would
certainly be possible, unless the information about the home
addresses of CCW licensees were no longer public, as proposed by
this bill. However, no such statistical data appears to be
available, or at least has not been produced by the author in
support of this proposal.
Nevertheless, despite the absence of any data showing a link
between crime and public access to the home addresses of CCW
licensees and applicants, the author and supporters of this bill
assert that it is important to prevent an incident like the one
in New York from ever happening in California. According to the
author, "this bill would serve as a prophylactic in preventing
an incident such as occurred in New York." What danger,
exactly, is this bill trying to protect against: a media
organization posting CCW information on its website, or
criminals using home address information about CCW licensees and
applicants to target those homes? Regarding the first perceived
danger --of a media outlet posting CCW information online--it
apparently happened only once, in the State of New York, and
lasted for a brief period, after which the newspaper removed the
information because of a backlash from the public.
( http://www.cnn. com/2012/12/25/us/new-york-gun-permit-map/ )
While it is true that something like this could theoretically
happen in California, there is no evidence that it has happened
or will happen here. If anything, the reaction in New York will
have a chilling effect on other media organizations making
similar disclosures in the future.
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On the other hand, if the perceived danger is that information
about the names and home addresses of CCW licensees and
applicants which is now open to the public in California and has
been public for years, it may make sense to ascertain whether
there is any evidence that criminals have made public records
act requests for concealed weapons license licensees, or whether
the license licensees have consequently been subject to greater
harm than non-license holders. The author has presented no such
data to the Committee. In response to a similar contention in
the Block case, the court dismissed as "conjectural at best,"
the assertion by the sheriff that releasing this information
would allow would-be attackers to more carefully plan their
crime against licensees and would deter those who need a license
from making an application. "The prospect that somehow this
information in the hands of the press will increase the danger
to some licensees cannot alone support a finding in favor of
non-disclosure as to all. A mere assertion of possible
endangerment does not "clearly outweigh" the public interest in
access to these records." (42 Cal.3d 646, 652.)
As the California Newspaper Publishers observe, "AB 1154
provides only a highly speculative benefit to CCW applicants and
licensees while significantly impairing public oversight of a
key agency of government."
REGISTERED SUPPORT / OPPOSITION:
Support
California Rifle and Pistol Association (co-sponsor)
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National Rifle Association (co-sponsor)
California Peace Officers Association
California Police Chiefs Association
California State Sheriffs Association (if amended)
Crime Victims United of California
San Bernardino County Sheriff John McMahon
Opposition
California Broadcasters Association
California Newspaper Publishers Association
Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334
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