BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
1
3
6
AB 1363 (Davis) 3
As Amended April 13, 2009
Hearing date: June 16, 2009
Penal Code
SM:br
HANDGUNS: OPEN - CARRY LICENSES
HISTORY
Source: Los Angeles County Sheriff's Department
Prior Legislation: SB 146 (Johnson) - Chap. 408, Stats. 1997
Support: California Brady Campaign Chapters; Legal Community
Against Violence
Opposition:None
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUE
SHOULD THE LAW BE CLARIFIED THAT A LICENSE TO OPENLY CARRY A
LICENSED HANDGUN IS VALID ONLY IN THE COUNTY IN WHICH THAT LICENSE
WAS ISSUED?
(More)
AB 1363 (Davis)
PageB
PURPOSE
The purpose of this bill is to clarify that any licenses issued,
as specified, by a sheriff or police chief in a jurisdiction
with a population under 200,000, to openly carry a loaded
handgun, are valid only within the county in which they are
issued.
Existing law provides that, subject to a number of specified
exceptions, a person is guilty of carrying a loaded firearm
when he or she carries a loaded firearm on his or her person
or in a vehicle while in any public place or on any public
street in an incorporated city or in any public place or on
any public street in a prohibited area of unincorporated
territory. (Penal Code 12031 (a)(1).)
Existing law provides that carrying a loaded firearm in public,
as specified, is punishable, as follows:
Where the person previously has been convicted of any
felony, or of any crime made punishable by this chapter, as
a felony.
Where the firearm is stolen and the person knew or had
reasonable cause to believe that it was stolen, as a
felony.
Where the person is an active participant in a criminal
street gang, as defined, as a felony.
Where the person is not in lawful possession of the
firearm, as defined in this section, or is within a class
of persons prohibited from possessing or acquiring a
firearm, as specified, as a felony.
Where the person has been convicted of a crime against a
person or property, or of a narcotics or dangerous drug
violation, by imprisonment in the state prison, or by
imprisonment in a county jail not to exceed one year, by a
fine not to exceed one thousand dollars ($1000), or by both
that imprisonment and fine.
Where the person is not listed with the Department of
Justice as the registered owner of the pistol, revolver, or
other firearm capable of being concealed upon the person,
(More)
AB 1363 (Davis)
PageC
by imprisonment in the state prison, or by imprisonment in
a county jail not to exceed one year, or by a fine not to
exceed one thousand dollars ($1000), or both that fine and
imprisonment.
In all cases other than those specified above, as a
misdemeanor, punishable by imprisonment in a county jail
not to exceed one year, by a fine not to exceed one
thousand dollars ($1000), or by both that imprisonment and
fine.
(Penal Code 12031 (a)(2).)
Existing law provides an exception to the prohibition against
carrying a loaded firearm in public for holders of licenses to
carry concealed handguns. (Penal Code 12031 (b)(6).)
Existing law provides that the sheriff of a county or the chief
or other head of a municipal police department of any city or
city and county, upon proof that the person applying is of good
moral character, that good cause exists for the issuance, and
that the person applying either lives or works in the county (or
city in the case of a police chief), as specified, and has
completed a course of training as specified, may issue to that
person a license to carry a pistol, revolver, or other firearm
capable of being concealed upon the person in either one of the
following formats:
A license to carry concealed a pistol, revolver, or
other firearm capable of being concealed upon the person.
Where the population of the county is less than 200,000,
persons according to the most recent federal decennial
census, a license to carry loaded and exposed in that
county a pistol, revolver, or other firearm capable of
being concealed upon the person.
(Penal Code 12050 (a)(1)(A) & (B), emphasis added.)
Existing law provides that, if the license is one to carry
concealed a pistol, revolver, or other firearm capable of being
concealed upon the person, then it may not be revoked solely
because the licensee changes his or her place of residence to
another county if the licensee has not breached any conditions
(More)
AB 1363 (Davis)
PageD
or restrictions set forth in the license and has not become
prohibited by state or federal law from possessing, receiving,
owning, or purchasing a firearm. However, any license issued to
private citizens, as specified, shall expire 90 days after the
licensee moves from the county of issuance if the licensee's
place of residence was the basis for issuance of the license.
(Penal Code 12050 (f)(4)(B).)
Existing law provides that a license to carry a concealed
handgun may be issued for any amount of time not to exceed two
years from the date of issuance, unless issued to a judge or
magistrate (valid for up to three years) or specified custodial
employees or reserve peace officers (valid for up to four
years). (Penal Code 12050 (a)(2).)
Existing law provides that if a license to carry a pistol,
revolver, or other firearm capable of being concealed upon the
person is granted by the sheriff of a county to an applicant
based on the fact that the applicant spends a substantial amount
of time employed within that county, such a license is valid
only in the county issued and is valid for any period of time
not to exceed 90 days from the date of issuance. (Penal Code
12050 (a)(2)(A)(ii).)
Existing law provides that if the license is one to carry
loaded and exposed a pistol, revolver, or other firearm capable
of being concealed upon the person, the license shall be
revoked immediately if the licensee changes his or her place of
residence to another county. (Penal Code 12050
(f)(4)(B)&(C).)
This bill clarifies that any licenses issued, as specified, by a
sheriff or police chief in a county with a population under
200,000, to openly carry a loaded handgun, are valid only within
the county in which they are issued.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
(More)
AB 1363 (Davis)
PageE
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
(More)
AB 1363 (Davis)
PageF
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
(More)
----------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Section 12050 of the California Penal Code allows the
sheriff of the county or a chief of police to issue a
concealed weapons permit (also known as a CCW permit)
to applicants they deem acceptable according to
prescriptions by law. If approved, the applicant can
carry a concealed and loaded gun. This section also
allows both sheriffs and police chiefs in a county
with a population of less than 200,000 to allow an
applicant to carry a loaded and exposed weapon, but
only in that county with a population of less than
200,000.
Some of these people that have been authorized to
carry a loaded and exposed weapon have been going to
other counties, with a population of over 200,000,
with the loaded and exposed weapon, which is a
violation of their CCW authorization. Currently in
law, Section 12031 of the California Penal Code,
which is the law making it illegal to carry a loaded
firearm in public, provides for an exception to an
individual who has a CCW permit. However, the
exception does not appropriately address the two
different CCW authorizations. By making a simple
language change to the exception, Section 12031 will
properly address the two different CCW authorizations
and provide a penalty for individuals who abuse their
(More)
AB 1363 (Davis)
PageH
CCW privileges.
2.History of Concealed Weapons/Open Carry Licenses
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 weapons and to
openly carry loaded weapons (board of police commissioners and
city and town marshal were once given such authority as well,
but were eliminated in 1969). The existing limitation to issue
such licenses to "a resident of the county" was added in 1969.
In 1997, the section was amended to permit a sheriff to issue
such licenses to any county resident, and further provided that
a city police chief may issue these licenses only to city
residents. This amendment limited the authority of a chief or
other head of a municipal police department of any city to issue
these licenses to applicants who are residents of that city.
3.Clarifying the Scope of Open Carry Licenses
Currently, Penal Code Section 12050 states that a sheriff or
police chief in a county with a population of under 200,000 may
issue "a license to carry loaded and exposed in that county a
pistol, revolver, or other firearm capable of being concealed
upon the person." (Penal Code Section 12050 (a)(1)(A)(ii) and
(A)(1)(B)(ii).) This bill amends Section 12050 to state that a
sheriff or chief of police may issue "a license to carry [a
handgun] loaded and exposed in only that county."
Additionally, Penal Code Section 12031 (b)(6) currently provides
that the general prohibition against carrying a loaded firearm
in public does not apply to "The carrying of pistols, revolvers,
or other firearms capable of being concealed upon the person by
persons who are authorized to carry those weapons pursuant to
Article 3 (commencing with Section 12050) of Chapter 1 of Title
2 of Part 4." This has apparently led some to assert that a
license to openly carry a loaded firearm in public is valid
statewide. Therefore, this bill also amends Penal Code Section
12031 to state that the exception to the general prohibition on
carrying a loaded firearm in public applies to the carrying of
AB 1363 (Davis)
PageI
handguns as authorized in Section 12050, and the sections
immediately following it. These two amendments, taken together,
should eliminate any ambiguity as to whether a license to openly
carry a loaded handgun is valid outside the county in which it
was issued.
SHOULD THIS CLARIFICATION BE MADE?
***************