BILL ANALYSIS Ó
AB 1154
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Date of Hearing: April 28, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1154 (Gray) - As Amended April 23, 2015
SUMMARY: Exempts from public-record laws the phone numbers and
street addresses contained in applications and licenses to carry
concealed weapons. Specifically, this bill:
1)Exempts from the California Public Records Act the telephone
numbers and home addresses, except city and zip code, of
licensees and applicants of permits to carry concealed weapons
(CCW).
2)Specifies that this exemption shall not be construed as
prohibiting the disclosure of public records relating to the
reason that an application for a CCW was granted or denied.
3)Makes technical, non-substantive changes.
EXISTING LAW:
1)Authorizes a county sheriff or a city police chief to issue a
permit for a CCW to a county or city resident if the person is
of good moral character, there is good cause for the issuance,
the person meets the residency requirements, and the applicant
has completed a firearm safety course. (Pen. Code, §§ 26150,
subd. (a), & 26155, subd. (a).)
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2)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) A license to carry a concealed handgun upon his or her
person; or,
b) 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. (Pen. Code, §§
26150, subd. (b), & 26155, subd. (b).)
3)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. (Pen. Code, § 26175, subd. (c).)
4)Requires that the fingerprints of each CCW applicant be taken
and submitted to the Department of Justice (DOJ). (Pen. Code,
§ 26185.)
5)Provides criminal penalties for knowingly filing a false
application for a concealed weapon license. (Pen. Code, §
26180.)
6)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. (Pen. Code, § 26220.)
7)Requires a record of the CCW to be maintained in the office of
the issuing authority and with the DOJ. (Pen. Code, § 26225.)
8)Requires the licensee notify the licensing authority in
writing of any change of address within 10 days. (Pen. Code,
§ 26210.)
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9)Provides pursuant to the California Public Records Act (PRA)
that all records maintained by local and state governmental
agencies are open to public inspection unless specifically
exempt. (Gov. Code, §§ 6250 et seq.)
10)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. (Gov.
Code, § 6252, subd. (e).) The records of weapons permit
holders maintained by the sheriff are public records. (62
Ops. Cal.Atty.Gen. 402.)
11)Exempts from disclosure under the PRA information in CCW
applications which indicates when or where applicants are
vulnerable to attack or concerns applicants' medical or
psychological histories or that of family members. (Gov.
Code, § 6254, subd. (u)(1).)
12)Exempts from disclosure under the PRA the home address and
telephone number of prosecutors, public defenders, peace
officers, judges, court commissioners, and magistrates that
are set forth in applications for licenses or in CCWs. (Gov.
Code, § 6254, subds. (u)(2) & (3).)
13)Requires an agency to justify withholding any record by
demonstrating that the record in question is exempt under
express provisions of the PRA or that on the facts of the
particular case, the public interest served by not disclosing
the record clearly outweighs the public interest served by
disclosure of the record. (Gov. Code, § 6255, subd. (a).)
14)Authorizes any person to institute proceedings for injunctive
or declarative relief or writ of mandate in any court of
competent jurisdiction to enforce his or her right to inspect
or to receive a copy of any public record or class of public
records under this chapter. (Gov. Code, § 6258.)
FISCAL EFFECT: Unknown
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COMMENTS:
1)Author's Statement: According to the author, "In California,
individuals must register their firearms with the California
Department of Justice (DOJ). State law prohibits the DOJ from
releasing that information to anyone other than law
enforcement and court officials.
"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 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
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permits can be monitored by citizens and stakeholders without
providing a one-stop-shop for offenders to collect sensitive
location and contact data."
2)Background: It is a crime for a person to carry a firearm
concealed on his person or in his vehicle without a permit.
(Pen. Code, § 25400.) County sheriffs and city police chiefs
are the only officials authorized to issue a permit to carry a
concealed weapon. (Pen. Code, §§ 26150, 26155, 26170 &
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. (Pen. Code, §§ 26150, 26155 &
26170.) 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 (Pen.
Code, § 26225), and records regarding these official actions
are considered public records like other decisions to grant or
deny a governmental permit.
3)CBS, Inc. v. Block (1986) 42 Cal.3d 646: In 1983, CBS made a
PRA request seeking information regarding CCW permits issued
in Los Angeles County for purposes of investigating potential
abuses by the Sheriff's Department. The sheriff refuse to
release any information and litigation ensued. (Id. at p.
649.) The California Supreme reviewed the case to decide
whether the press and the public should be prohibited from
obtaining the information contained in CCA applications.
(Ibid.)
The Court recognized there were competing societal concerns,
namely transparency and the right to privacy of the
individuals whose information was on file. (Id. at p. 651.)
The Court rejected the arguments that release of this
information would allow criminals to plan crimes against
licensees, finding it "conjectural at best." (Id. at p. 652.)
"A mere assertion of possible endangerment does not 'clearly
outweigh' the public interest in access to these records.
(Ibid.) The Court noted that the law permits deletion of any
information indicating times and places where an individual
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would be vulnerable to attack. (Ibid.)
The Court also rejected the argument that release of the
information would violate an individual's right to privacy
protected by the California Constitution. "While some 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. It is a privilege to carry a
concealed weapon." (Id. at p. 654.) Making this information
public serves the purpose of allowing "the public to ensure
that public officials are acting properly in issuing licenses
for legitimate reasons." (Ibid.)
4)Need for Transparency: Over the years, some elected sheriffs
have been accused of unequally applying CCW regulations by
dispensing permits to campaign contributors without regard to
the statutory requirements. For example, former Los Angeles
Sheriff Lee Baca was accused favoring those who have given
gifts or campaign contributions when dispensing CCW permits
because "[m]ore than one out of every 10 permits issued to
civilians went to people on Baca's gift list.
(< http://www.laweekly.com/news/sheriff-lee-baca-and-the-gun-gif
t-connection-2612907 >.) Similarly in 2008, former Orange
County Sheriff Michael Carona was accused of the same type of
favoritism to his campaign contributors.
(< http://articles.latimes.com/2008/nov/08/local/me-carona8 >.)
As recently amended, this bill conforms the release of
information regarding who obtains CCW permits to the same
detail as campaign contribution reports, which releases the
name of the contributor, and the contributor's city and zip
code. (See
< http://cal-access.sos.ca.gov/Campaign/Committees/Detail.aspx?i
d=1333789&session=2013&view=received >.) While this amendment
does appear to afford some transparency as to campaign
contributors, will it be sufficient to investigate favoritism
towards family members, friends, or business associates?
Moreover, is name, city, and zip code sufficient information
to provide public oversight of officials who wrongly deny CCW
permits? Would the disclosure of an individual's street name,
but not street number, allow for more investigation while
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still protecting an individual's privacy?
5)Argument in Support: According to the National Rifle
Association, a co-sponsor of this bill, "The provisions of
Assembly Bill 1154 would provide that the CPRA not be
construed to require the disclosure of private information of
civilian licensed CCW holders. In recent years, a New York
paper published the names of licensed CCW holders. Such
actions 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 protection
legislation would prevent such abuse. The privacy of carry
permit holders in 43 states is now protected by laws similar
to AB 1154."
6)Arguments in Opposition:
a) The California Newspaper Publishers Association writes,
"The legislature has long recognized the strong public
interest in the accessibility of information about CCW
applicants and licensees because of the public's role in
overseeing officials who have the authority to issue these
permits. AB 1154 would prevent the public from knowing
whether officials are issuing permits justly and
impartially or abusing the exercise of their statutorily
delegated discretion.
"In CBS v. Block, 42 Cal.3d 646 (1986), the state Supreme
Court was tasked with determining whether a sheriff's
refusal of a broadcaster's request to inspect and copy
concealed weapons applications submitted to and licenses
issued by a county sheriff violation the public's right to
access information pursuant to the California Public
Records Act. The Court ruled that the information was
disclosable. The Court reasoned, 'Implicit in the
democratic process is 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
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exercise of official power and secrecy in the political
process.' Id at p. 651.
"In reaching its decision in Block the Court summarily
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. Id. at p. 652.
"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
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. ?
"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 bit it would also serve to protect dishonest
officials from public scrutiny by eliminating one of the
only tools to ferret out misconduct."
b) According to the Calguns Foundation, "In CBS, Inc. v.
Block, 42 Cal.3d 646 (1986), the California Supreme Court
held that '[t]he interest of society in ensuring
accountability is particularly strong where the discretion
invested in a government official is unfettered, and only a
select few are granted the special privilege. Moreover the
degree of subjectivity involved in exercising the
discretion cries out for public scrutiny.' Id. at 655. We
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couldn't agree more.
"As you are no doubt aware, two important federal civil
rights lawsuits challenging the application of discretion
by the sheriffs of San Diego County and Yolo County,
respectively, have been consolidated and scheduled for a
June 15 en banc re-hearing by the Ninth Circuit Court of
Appeals. (See Peruta v. Cnty. of San Diego, 9th Cir. No.
10-56971; Richards v. Prieto, 9th. Cir. No. 11-16255.) It
should be noted that CGF is a party to the Richards
matter?.
"Until such time that law-abiding people can exercise their
fundamental, individual right to carry ('bear') loaded,
operable firearms in public for self-defense, the
subjective and unconstitutional application or discretion
under Cal. Penal Code section 26150, et. seq., by nearly
every county sheriff and chief of a municipal police
department in California cries out for exactly the kind of
scrutiny that AB 1154 would shield against.
"While the privacy of gun owners is of paramount importance
to CGF and our supporters, AB 1154 does not accomplish that
laudable goal in any meaningful way and would simply harm
our ability to investigate violations of the Fourteenth
Amendment's Equal Protection Clause and frustrate our
ability to conduct important research into sheriffs' and
police chiefs' applications of discretion through
comparisons of application and license data to state and
federal data on race, income, and other factors based on
the applicants' and licensees' place of residence."
7)Related Legislation:
a) AB 1134 (Stone) authorizes 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. AB 1134 is
pending referral in the Senate Rules Committee.
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b) SB 707 (Wolk) allows a person holding a valid CCW, and a
retired peace officer authorized to carry a concealed or
loaded firearm, to carry the firearm in an area that is
within 1,000 feet of, but not on the grounds of, a public
or private school providing instruction in kindergarten to
grade 12, and deletes the exemption that allows these
people to possess a firearm on the campus of a university
or college. SB 707 is pending hearing in the Senate
Appropriations Committee.
8)Prior Legislation: AB 134 (Logue), of the 2013-2014
Legislative Session, was substantially similar to this bill.
AB 134 was held in the Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Rifle and Piston Association (Co-Sponsor)
National Rifle Association (Co-Sponsor)
California Police Chiefs
California State Sheriffs' Association
Crime Victims United of California
One Private Individual
Opposition
Calguns Foundation
California Broadcasters Association
California Newspaper Publishers Association
Firearms Policy Coalition
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744
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