BILL ANALYSIS
AB 2022
Page 1
Date of Hearing: May 5, 1998
Consultant: Dia S. Poole
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Don Perata, Chair
AB 2022 (Wright) - As Amended: April 15, 1998
I. SHOULD LICENSES TO CARRY CONCEALED WEAPONS (CCW)
BE VALID FOR MORE THAN ONE YEAR?
II. SHOULD CHIEFS AND SHERIFFS ISSUE CCW LICENSES FOR
PERSONS EMPLOYED OR DOING BUSINESS BUT NOT RESIDING IN A
COUNTY OR CITY?
III. SHOULD PERSONS WITH DOMESTIC VIOLENCE RESTRAINING
ORDERS BE PERMITTED TO OBTAIN A LICENSE?
IV. SHOULD APPLICABLE FEES BE INCREASED?
V. SHOULD LAW ENFORCEMENT IMMUNITY PROVISIONS BE
ADDED?
SUMMARY : Modifies criteria and application processes for
licenses to carry a concealed pistol, revolver, or other firearm
capable of being concealed upon the person ("pistol carry
license"). Specifically, this bill :
1) Requires persons to complete training requirements before
being issued a pistol carry license.
2) Changes residency requirements for the issuance of pistol
carry licenses as follows:
a) Allows a sheriff to issue a pistol carry permit to any
person who meets any one of the following conditions:
i. Is a resident of the county or a city within the
county.
ii. Is employed within or spends a substantial period of
time conducting business within the county or a city
within the county.
iii. Has acquired a current domestic violence restraining
order from a court in another county.
b) Allows a chief of police to issue a pistol carry permit to
any person who meets one of the following conditions:
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i. Is a resident of the city or city and county.
ii. Is employed within or spends a substantial period of
time conducting business within the city or city and
county.
iii. Has acquired a current domestic violence restraining
order from a court in another city.
c) Provides that the license issued on the basis of the
applicant's place of business is valid for up to 90 days.
d) Provides that pistol carry licenses are generally valid
for up to two years, except as provided in Provision 2(c).
3) Increases local license processing fees from $3 to $40 for
issuances and renewals with a cost of living adjustment.
4) Increases local license processing fees from $3 to $10 for
amendments with a cost of living adjustment.
5) Immunizes a public agency for any injury caused by the
issuance, denial, suspension or revocation of, or the failure
or refusal to issue, deny, suspend. or revoke any pistol
carry license.
6) Immunizes any sheriff, chief of police, or their public
employees from any liability for any injury caused by his or
her issuance, denial, suspension or revocation of, or the
failure or refusal to issue, deny, suspend. or revoke any
pistol carry license.
EXISTING LAW :
1) Vests discretion in the chief of police or a county sheriff
to issue a license to carry concealed a pistol, revolver, or
other firearm capable of being concealed (handgun) upon the
person or in a vehicle to an applicant ("pistol carry
license"). (Penal Code Section 12050.) Current law includes
these features:
a) An applicant is not entitled to a pistol carry license.
b) Except in the case of his or her reserve officers, a chief
may not issue a pistol carry license to a person who
resides outside that city.
c) Except in the case of his or her reserve officers, a
sheriff may not issue a pistol carry license to a person
who resides outside that county or city within the county.
d) In the case of his or her reserve officers, a chief or
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sheriff may issue a pistol carry license to his or her
reserve officers irrespective of where they reside.
e) The applicant must be of "good moral character."
f) "Good cause" for issuance of the permit must exist in the
determination of the issuing agency.
g) The permit may contain "any reasonable restrictions or
conditions which the issuing agency deems warranted,
including restrictions as to the time, place or manner" of
carrying the pistol.
h) The applicant is legally prohibited from possessing a
firearm if he or she is within a prohibited class due to a
specified criminal record, mental disorder, or drug and/or
alcohol abuse history.
i) Pistol carry licenses for private citizens are valid for
one year; permits for reserve peace officers are valid for
three years.
j) In a county with less than 200,000 population, the license
may allow the open carrying of a loaded pistol.
k) A permit holder may apply for an amendment to his or her
permit to add or delete authority to carry a handgun, or
to modify any restrictions.
l) The permit holder must notify the issuing authority within
10 days if he or she moves out of the county of issuance.
m) If a license is granted to carry a concealed handgun, it
may not be revoked solely because the permit holder has
moved.
n) A pistol carry license to openly carry a loaded pistol is
automatically revoked if the holder moves to a county with
a population in excess of 200,000.
2) The processing costs that local agencies may charge for
issuance, renewals and amendments to pistol carry licenses
may not exceed $3. (Penal Code Section 12054).
3) Makes carrying a concealed pistol a misdemeanor punishable up
to one year in the county jail. (Penal Code Section 12025.)
4) Permits carrying an exposed and unloaded pistol.
5) Provides that a public agency is immune for any injury caused
by the issuance, denial, suspension or revocation of, or the
failure or refusal to issue, deny, suspend, or revoke any
permit, license certificate, approval or order or similar
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authorization where the public entity or an employee of the
public entity is authorized by enactment to determine whether
or not such authorization should be issued, denied,
suspended, or revoked. (Government Code section 818.4)
6) Provides that a public employee is immune from any liability
for any injury caused by his or her issuance, denial,
suspension or revocation of, or the failure or refusal to
issue, deny, suspend. or revoke any permit, license
certificate, approval or order or similar authorization where
he or she is authorized by enactment to determine whether or
not such authorization should be issued, denied, suspended,
or revoked. (Government Code Section 821.2)
COMMENTS :
1) Author's Statement . According to the author, "AB 2022 is an
attempt to bring some uniformity and fairness to the issuance of
concealed carry permits and to eliminate arbitrariness of how
permits are unevenly issued around the state. This bill does not
take away the discretionary authority of sheriffs or police
chiefs. More than 30 states in the last ten years have moved to
a 'shall' issue state. The undisputed facts are that the
expanded issuance of concealed weapons around the country has not
resulted in problems or crimes by permit holders. This bill is a
more modest attempt to address a number of issues including a
lack of uniform standards, lack of training, abuse in fees and
other arbitrary obstacles hindering the application or granting
of permits."
2) Interim Hearing on CCW Issuance . On November 18, 1997, this
Committee held an interim hearing on the issue of carry
permits. The central issue was whether Californians should
be entitled to carry concealed weapons unless specifically
prohibited due to a specified criminal record, mental
disorder, and/or drug and alcohol abuse history. National
experts on gun laws offered testimony and data to this
Committee.
3) AB 2022 .
a) Training requirements . In 1991, the Legislature required
a basic firearms safety certificate (after a two- to
four-hour course) for a person who anticipates the
purchase or transfer of a handgun and person who is a
loaned handgun. However, under current law, training is
not required prior to issuance of a pistol carry license.
This bill requires a course of training that may be any
course acceptable to the licensing authority, up to 16
hours, and must include instruction on at least firearm
safety and the law regarding the permissible use of a
firearm.
b) Ambiguity . This bill provides that if the licensee's
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place of business was the basis for issuance of the license
as specified, the license is valid for up to 90 days.
However, if the basis for issuance was a person's employment
within a city, county, or city and county, the license
appears to be valid up to two years.
IS THIS THE AUTHOR'S INTENT?
c) Longer license period . California's one-year license may
be the shortest in the United States. New York, generally
viewed as very restrictive state, provides for a
three-year license in New York City and five years on the
suburban Long Island counties. As a practical matter,
most licenses in this state are renewed on a continual
basis. Does the yearly renewal impose an administrative
burden in rural areas. This bill increases the license to
a period up to two years. Local agencies could still
issue shorter licenses.
d) Fees . Currently, the processing fees at the local level
cannot exceed $3 and does not include DOJ processing costs
associated with fingerprint checks. In addition, the cost
for amending a license is $3.00.
This bill increases the local processing cost to an amount
up to $40 and provides for a cost of living adjustment
(COLA). In addition, the license amendment fee is
increased to an amount up to $10 and is placed on a COLA
basis.
4) Residency Requirements .
a) History .
i. Pre-1997 legislation . Since at least 1953 when the
current Penal Code Section 12050 was first enacted,
sheriffs and police chiefs have been authorized to issue
licenses to carry concealed handguns. Boards of police
commissioners and city and town marshals were once given
such authority as well, but that authority was eliminated
in 1969.
The 1969 legislation also precluded chiefs and
sheriffs from issuing licenses to out-of-county
residents. The 1969 limitation on the issuance of
out-of-county residents may have been designed to
prevent forum shopping.
The 1969 legislation still allowed a chief of police
of a city within that county to issue a carry permit
to both residents of his or her city as well as to
residents of the county at large. The apparent
rationale for this provision was to allow chiefs to
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issue permits to reserve officers who did not reside
in that city.
ii. 1997 Legislation . In 1997, the Legislature passed
and the Governor signed two bills to address the
residency issue:
a. SB 146 (Johnston) , Chapter 408, Statutes of 1997,
precluded chiefs of police from issuing carry permits
to persons who did not reside in that city. The
impetus for the bill was to prevent a northern
California police chief from issuing permits to
non-city residents who resided in the county.
b. AB 1468 (Runner) , Chapter 744, Statutes of 1997,
allowed chiefs or sheriffs to issue carry permits to
their reserve officers irrespective of their counties
of residence.
b) AB 2022 . This bill essentially repeals SB 146 . In
addition, this bill reverts to pre-1969 law by allowing
the issuance of permits to persons who do not reside in
the county or city.
The residency requirement for city purposes is met if: (i)
the person resides in that city; (ii) is employed within
or spends a "substantial period of time" conducting
business within that city; or (iii) has acquired a current
domestic violence restraining order from a court in
another county.
For county purposes, the residency requirement is met if:
(i) the person resides in that county or a city within the
county; or (ii) is employed within or spends a
"substantial period of time" conducting business within
that city; or (iii) has acquired a current domestic
violence restraining order from a court in another county.
The place of employment or business provision would result
in the issuance of a license for up to 90 days. What is
the purpose or benefit of this provision? Would the
license be renewable, allowing for an indefinite license
as long as a person is employed, owns or does business in
a particular area?
Why are the domestic violence permit provisions needed?
Does any other state have similar provisions? Is there
data showing that firearms in the hands of domestic
violence victims save lives, or are the weapons ultimately
used against them?
DO THE SHERIFFS AND/OR CHIEFS HAVE A POSITION ON THIS
PROVISION?
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SHOULD THE DOMESTIC VIOLENCE AND 90-DAY
BUSINESS/EMPLOYMENT LICENSE PROVISIONS BE DELETED?
5) Immunity Provisions . The author is considering deleting the
immunity provision contained in this bill and, instead, rely
on current law.
a) Overview of existing law and case law . Government Code
Section 818.4 immunizes a public agency for any injury
caused by the issuance, denial, suspension or revocation
of, or the failure or refusal to issue, deny, suspend, or
revoke any permit, license certificate, approval or order
or similar authorization where the public entity or an
employee of the public entity is authorized by enactment
to determine whether or not such authorization should be
issued, denied, suspended, or revoked.
Similarly, Government Code Section 821.2 immunizes a
public employee from any liability for any injury caused
by his or her issuance, denial, suspension or revocation
of, or the failure or refusal to issue, deny, suspend, or
revoke any permit, license certificate, approval or order
or similar authorization where he or she is authorized by
enactment to determine whether or not such authorization
should be issued, denied, suspended, or revoked.
The California Supreme Court has repeatedly held that
Government Code Sections 818.4 and 821.2 in combination
totally and completely immunize public agencies and their
employees from any liability where they take any action on
permits or licenses except where the duty to issue clearly
involves no determination of any kind on the part of the
licensing agency. Nunn v. State of California (1984) 35
Cal.3d 616, 627; Morris v. County of Marin 18 Cal.3d 901,
911-915 (extensive discussion).
Of particular relevance is Nunn . In Nunn , Ceola Nunn as
the executrix of Mr. Nunn's estate brought a wrongful
death action against the State, the head of the Bureau of
Collection and Investigative Services (BCIS) of the
Department of Consumer Affairs, and a community college
district alleging that BCIS negligently delayed
promulgating regulations and failed to issue Mr. Nunn an
exposed firearms permit as a security guard. The
complaint further alleged that the State's conduct thus
prevented Mr. Nunn from being armed and being able to
protect himself when he was shot while on duty as a
security guard at a manufacturing plant in Los Angeles
County.
The Superior Court entered judgment on the pleadings in
favor of the defendants and Mrs. Nunn as the executrix
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appealed. On appeal, the Supreme Court held that
Government Code Sections 818.4 and 821.2 completely and
thoroughly immunized the Department of Consumers Affairs,
and its employees, and therefore the State, from any and
all liability associated with its actions related to the
issuance of exposed firearms permits to security guards.
The issuance of a firearms permit necessarily involved a
fair amount of discretion and as such was a "discretionary
act" which was absolutely immune from tort liability
pursuant to Sections 818.4 and 821.2.
To the same effect as Nunn are the following decisions
interpreting sections 818.4 and 821.2:
i. People v. Superior Court (Wilson) (1993) 18
Cal.App.4th 31, 37-39. State and employees immune from
liability for failure to revoke driver's license.
ii. Colome v. State Athletic Commission (1996) 47
Cal.App.4th 1444, 1455-1456. State and employees immune
from liability for issuance of boxing license.
iii. Rosenthal v. Vogt (1991) 229 Cal.App.4th 69, 75.
State and employees immune from liability for disbarrment
of attorney.
iv. West v. State (1986) 181 Cal.App.3d 753, 760-761.
State and employees immune from liability for injuries
resulting from issuance of contractors license.
v. Hirsch v. State by and through the Department of
Motor Vehicles (1974) 42 Cal.App.3d 252. State and
employees immune from negligent issuance of vehicle title
and registration by the Department of Motor Vehicles.
b) AB 2022 . This bill adds Penal Code Section 12050.5 to
immunize cities, counties, cities, and counties, their
employees, and chiefs and sheriffs from any injury caused
by the issuance, denial, suspension, or revocation of, or
by the failure or refusal to issue, deny, suspend, or
revoke, any pistol carry license.
IN LIGHT OF THE ABOVE CASE LAW AND EXISTING GOVERNMENT
CODE PROVISIONS, IS IT NECESSARY TO ADD THIS SECTION TO
THE PENAL CODE?
6) Suggested Amendments . Should the following be done?
a) Remove the 90-day place of employment/business and
domestic violence provisions for issuance by chiefs, and
return the bill to current law where chiefs of police may
only issue licenses to city residents.
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b) Retain the 90-day place of business license provision,
issued by sheriffs only, but delete the domestic violence
provisions.
c) Remove the immunity provisions.
7) Additional Reform Issues . Several policy issues are relevant
on the carry issue in general:
a) Who should be the issuing authority ? In most cities,
chiefs only issue permits to reserve officers; in certain
counties (reportedly San Diego and San Mateo), chiefs have
in essence conveyed their issuing authority to the
sheriff. Should California in statute allow chiefs to
"hand off" issuance authority to sheriffs?
b) Penalty issue . Previously, efforts have been made to
impose an alternate felony/misdemeanor (wobbler) penalty
for first-time carrying violations, with proponents
arguing that while carrying certain categories of knives
("dirks and daggers") is a potential felony, while the
illegal carrying of a concealed handgun is not.
Opposition to a penalty increase has been predicated on
numerous grounds ranging from inadvertent violations by
"law-abiding citizens" who own guns and who do not have
accessible ammunition, to a lack of sufficient exemptions,
to potential federal firearms prohibitions for a felony
conviction, and complaints over the issuance process for
pistol carry permits.
Should the penalty proposed in AB 2469 (Burton, 1994) be
adopted, which makes it a wobbler to unlawfully carry an
un-registered handgun with accessible ammunition? AB 2469
(Burton) passed the Assembly in 1994. AB 304 contained a
similar provision as it passed the Assembly in 1997.
c) Open Carrying of pistols and revolvers . Under current
state law, save in school zones and in public buildings,
it is not illegal to openly carry an unloaded and exposed
handgun within a vehicle or on a city street. Further
discussion is warranted on the state prohibiting:
i. The open and concealed carrying of any loaded or
unloaded handgun on the person within incorporated cities,
with the necessary exemptions; and
ii. The open and concealed carrying of handguns within
vehicles anywhere, with the necessary exemptions.
d) Occupational licensing issues . Under current law, the
Department of Consumer Affairs (DCA) requires persons in
the security field to obtain a DCA firearms permit. In
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addition, to conceal that firearm, a local concealed
firearm license is required. Is the current system
working or should DCA, with appropriate safeguards, issue
concealed handgun licenses to security personnel? Most
states now require security personnel to obtain concealed
carry licenses from the applicable state licensing
agencies. Such a proposal was part of AB 53 (W. Murray)
of the 1995-1996 Legislative Session.
8) Related Legislation .
a) AB 1795 (Runner) is set to be heard today by this
Committee. AB 1795 does the following:
i. Increases the valid license period from one to three
years for licenses to carry pistols, revolver, and other
firearms capable of being concealed upon the person
("pistol carry licenses") for judges and full-time court
commissioners or magistrates of federal and California
courts.
ii. Provides that the home address and telephone number
for active and retired peace officers, judges, magistrates
and full-time court commissioners of California Courts of
Record and the federal courts, contained on applications
for pistol carry licenses and the actual licenses, are
exempt from disclosure pursuant to the California Public
Records Act (PRA).
b) AB 1868 (Lempert) adds to the list of special
circumstances for the death penalty first-degree murder
where the defendant intentionally killed the victim or
children, or both, who were persons protected under a
restraining order or protective order against the
defendant.
9) Support .
a) The Outdoor Sportsmen's Coalition of California . The
Coalition writes, "California's concealed weapons permit
issuing system is in need of total reform. The current
law is a detriment rather than a benefit to California
residents. AB 2022 will make some of the needed changes
in existing law...."
b) The Sports & Arms Show Producers of America (SASPA) .
SASPA writes, "...AB 2022 will improve the conditions
under which concealed weapons permits are issued in
California. Ultimately, the Sports and Arms Shop
Producers of America desire to see the enactment of "shall
issue" legislation. In the meantime, however, AB 2022
will provide some much needed relief."
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10) Opposition .
a) The Alameda County Chiefs of Police and Sheriff's
Association (ACCPSA) . ACCPSA writes, "In our judgment,
the bill weakens existing controls over the issuance of
concealed weapons licenses, serves no valid purpose, and
adds unnecessary administrative tasks.
"Under existing law, 'CCW' licenses are issued on a
year-to-year basis by the sheriff or the chief of police
of the jurisdiction in which an applicant resides. That
provision is sensible for a number of reasons: It
enhances consistency by limiting the number and role of
persons authorized to issue the licenses; it gives issuing
authority to the individual - the chief of police or the
sheriff - who is most directly responsible for law
enforcement and public safety in the particular community,
and it limits licenses to a time span that reasonably
protects against interim circumstances that could cause
license denial or revocation.
"AB 2022 would abolish these beneficial provisions by
granting licensing authority to law enforcement officials
in other jurisdictions and by eliminating the requirement
for annual CCW renewal. In addition, the bill would
inappropriately prohibit a chief of police or sheriff from
requiring an applicant to provide proof of adequate
liability insurance, it would mandate each licensing
department to structure and furnish a course of
instruction for applicants, and it would require each
department to prepare extensive annual statistical reports
concerning CCW applications."
b) Handgun Control, Inc. (HCI) . HCI argues that AB 2022 will
allow applicants to "'shop' around for a CCW license to
find a sheriff/chief willing to issue a CCW license when
the sheriff/chief in the city/county in which they reside
does not want to issue a CCW license," and believes "CCW
applicants should continue to apply for a license with the
sheriff or police chief in the county or city in which
they reside."
REGISTERED SUPPORT/OPPOSITION :
Support
California Investor's Mutual
California Sportsman's Lobby, Inc.
Doris Tate Crime Victims Bureau
Outdoor Sportsmen's Coalition of California
Sports & Arms Show Producers of America
Opposition
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Alameda County Chiefs of Police and Sheriff's Association
Handgun Control, Inc.
Analysis prepared by : Dia S. Poole / apubs / (916) 445-3268