BILL ANALYSIS
AB 1498
Page 1
Date of Hearing: April 21, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1498 (De Leon) - As Amended: April 2, 2009
As Proposed to be Amended in Committee
SUMMARY : Expands the list of misdemeanor offenses for which a
person may not possess a firearm for 10 years to include
carrying a concealed weapon in a vehicle; carrying a loaded
firearm, as specified; possession of an assault weapon; and any
misdemeanor committed for the benefit of a criminal street gang,
as specified.
EXISTING LAW :
1)Provides a person is guilty of carrying a concealed firearm
when he or she does any of the following: carries concealed
within any vehicle which is under his or her control or
direction any pistol, revolver, or other firearm capable of
being concealed upon the person; carries concealed upon his or
her person any pistol, revolver, or other firearm capable of
being concealed upon the person; or causes to be carried
concealed within any vehicle in which he or she is an occupant
any pistol, revolver, or other firearm capable of being
concealed upon the person. [Penal Code Section 12025(a)(1) to
(3).]
2)States any person who has been convicted of a felony under the
laws of the United States, the State of California, or any
other state, government, or country or of an offense involving
violent use of a firearm, or who is addicted to the use of any
narcotic drug, and who owns, purchases, receives, or has in
his or her possession or under his or her custody or control
any firearm is guilty of a felony. [Penal Code Section
12021(a).]
3)Provides that any person who has been convicted of a felony or
of an offense involving violent use of a firearm, when that
conviction results from certification by the juvenile court
for prosecution as an adult in an adult court, as specified,
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and who owns or has in his or her possession or under his or
her custody or control any firearm is guilty of a felony.
[Penal Code Section 12021(b).]
4)States any person who has been convicted of various
misdemeanors, and who, within 10 years of the conviction,
owns, purchases, receives, or has in his or her possession or
under his or her custody or control, any firearm is guilty of
a public offense, which shall be punishable by imprisonment in
a county jail not exceeding one year or in the state prison;
by a fine not exceeding $1,000; or by both that imprisonment
and fine. The court, on forms prescribed by DOJ, shall notify
DOJ of persons subject to this provision. [Penal Code Section
12021(c).]
5)States any person who is convicted of a public offense
punishable as a felony or a misdemeanor, which is committed
for the benefit of, at the direction of or in association
with, any criminal street gang with the specific intent to
promote, further, or assist in any criminal conduct by gang
members, shall be punished by imprisonment in the county jail
not to exceed one year, or by imprisonment in the state prison
for one, two, or three years, provided that any person
sentenced to imprisonment in the county jail shall be
imprisoned for a period not to exceed one year, but not less
than 180 days, and shall not be eligible for release upon
completion of sentence, parole, or any other basis, until he
or she has served 180 days. If the court grants probation or
suspends the execution of sentence imposed upon the defendant,
it shall require as a condition thereof that the defendant
serve 180 days in a county jail. [Penal Code Section
186.22(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : "In 2008 in the City of Los Angeles
alone, 11,314 crimes were committed with a firearm. A handgun
was used in 5,319 of those crimes and an assault weapon was
used in 27. As of March 2009, 2,449 crimes have involved a
firearm. A handgun was used in 1,149 and an assault weapon
was used in 8. Extrapolating those numbers, and we find that
statewide thousands of crimes are committed annually by
criminals.
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"A study published in the Journal of the American Medical
Association found that handgun purchasers who had prior
convictions for non-violent, firearm-related offenses such as
carrying a concealed firearm in public, but none for violent
offenses, were at increased risk for later violent offenses.
"On a local level, this legislative proposal has been considered
as a local ordinance in the City of Los Angeles by City
Council members Jack Weiss and Janice Hahn. However, to
expand the list of crimes included in Penal Code Section
12021(c) and add an individual to the California Department of
Justice prohibited possessor list, state legislation is
necessary.
"GOAL: PREVENT GUN OWNERSHIP BY GANG MEMBERS AND THOSE
CONVICTED OF GUN RELATED CRIMES: This proposal has two goals.
First, by preventing gun ownership for 10 years targeting
individuals who have committed certain gun-related
misdemeanors, it would cure some of the infirmities in the
prohibited possessor laws. Second, the law would target
misdemeanor gang offenders and prevent gun ownership for 10
years by individuals who would be likely to commit more
serious gun and gang-related crimes in the future. This
proposal does not limit the rights of law abiding people.
"EXPANDING THE LIST OF PROHIBITED POSSESSORS MAKES SENSE: Penal
Code Section 12021(c) mandates that individuals convicted of
felony or certain misdemeanor offenses be prohibited from
possessing a firearm for 10 years from the date of their
conviction. However, two important firearm-related
misdemeanor offenses are absent from that list; carrying a
concealed weapon (Penal Code Section 12025) and possessing an
assault weapon (Penal Code Section 12280). Reasonable gun
safety regulations would dictate that if an individual abuses
his right to possess a weapon by doing so illegally, he should
lose that right for a period of time.
"Further, individuals who have been convicted of committing
misdemeanor gang crimes should also have their right to
possess a firearm restricted for the time already mandated by
law (10 years). A gang enhancement to any misdemeanor is
proof of gang affiliation and activity and is reason to
prevent that individual from possessing firearms.
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"The measure includes misdemeanor burglary because law
enforcement agencies indicate that this is frequently a crime
committed by people who later commit more serious,
particularly gun-related gang, crimes. In order to try to
prevent proliferation of more serious crimes, burglary should
be added to the list of misdemeanors for which an individual
is prohibited from possessing a firearm for 10 years.
"POSSESSORS OF ILLEGAL AND DEADLY ASSAULT WEAPONS SHOULD LOSE
THEIR RIGHT TO OWN GUNS: Assault weapons have been used in
many high profile cases including Columbine, the shooting at
the 101 California Street building in San Francisco, and the
mall shootings in Omaha, Nebraska. The Washington D.C. area
snipers also used assault weapons. Just last month, an
assault weapon was involved in the killing of Oakland police
officers. California law already bans possession of an
assault weapon. Therefore, if an individual possesses a
weapon already banned in California, that person should lose
the privilege to own any kind of firearm for at least the
prescribed 10-year period. "
2)Second Amendment and Firearms Prohibition : The Second
Amendment to the United States Constitution was ratified in
1791 and states, "A well regulated militia, being necessary to
the security of a free state, the right of the people to keep
and bear arms, shall not be infringed". (U.S. Const., 2nd
Amend.) For many years, courts have wrestled with the
question of whether the Second Amendment protects the
individual's right to own a weapon. However, after the
seminal United States Supreme Court ruling in U.S. v. Miller
(1939) 307 U.S. 178, it seemed relatively settled that the
operative term in the Second Amendment is "militia" and that
must be considered in interpreting and applying the Second
Amendment; most scholars on the issue agreed." In United
States vs. Cruikshank (1875) [92 U.S. 542], the Supreme Court
held that the Second Amendment guaranteed states the right to
maintain militias but did not guarantee to individuals the
right to possess guns. Subsequently, in United States vs.
Miller (1939), the Court upheld a federal law banning the
interstate transportation of certain firearms. Miller, who
had been arrested for transporting a double-barreled sawed-off
shotgun from Oklahoma to Arkansas, sought the protection of
the Second Amendment.
The Court rejected Miller's argument, asserting that "we cannot
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say that the Second Amendment guarantees the right to keep and
bear such an instrument. . . . As currently interpreted, the
Second Amendment does not pose a significant constitutional
barrier to the enactment or enforcement of gun control laws,
whether passed by Congress, state legislatures or local
governments." [Stephens & Scheb, American Constitutional Law,
Vol. II; Civil Rights and Liberties (hereinafter American
Constitutional Law) 2008, pg. 10.]
"For many years following the Supreme Court's decision in United
States vs. Miller, the orthodox opinion among academics and
federal appeals courts alike was that the Second Amendment to
the United States Constitution did not protect possession of
firearms unrelated to service in the lawfully established
militia." [Merkel, Parker v. District of Columbia and the
Hollowness of the Originalist Claims to Principled Neutrality
(hereinafter Merkel) 18 Geo. Mason U. Civil Right L. Journal
251, 251.]
In June of 2008, the United States Supreme Court ruled in
District of Columbia vs. Heller that a District of Columbia
ban on possession of a handgun was an unconstitutional
violation of the 2nd Amendment [District of Columbia vs.
Heller (hereinafter Heller) (2008) 128 S. Ct. 2783, 2797.]
The Court stated:
"Putting all of these textual elements together, we find that
they guarantee the individual right to possess and carry
weapons in case of confrontation. This meaning is strongly
confirmed by the historical background of the Second
Amendment. We look to this because it has always been widely
understood that the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right. The very
text of the Second Amendment implicitly recognizes the
pre-existence of the right and declares only that it 'shall
not be infringed.' As we said in United States v. Cruikshank,
92 U.S. 542, 553, 23 L. Ed. 588 (1876), '[t]his is not a right
granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence. The Second
Amendment declares that it shall not be infringed . . . . ' "
[Heller at 2797.]
3)Possession of a Firearm : Under existing law, there are
instances in which possession of a handgun is illegal. A
felon may not possess a firearm. [Penal Code Section
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12021(b).] A person who has been convicted of a specified
crime of violence charged as a misdemeanor may not possess a
firearm for a period of 10 years. [Penal Code Section
12021(c)(1).] A person may not possess a firearm in his or
her car except under specific circumstances, as specified.
[Penal Code Section 12025 (a) and (b).] Generally, a person
may not carry a loaded or concealed weapon in public. [Penal
Code Section 12025(a); Penal Code Section 12031(a)(1).]
However, unless a person is otherwise prohibited, nothing in
existing law states a person may not possess a handgun in his
or her home. Penal Code Section 12026(a) and (b) states:
"[Provisions of law prohibiting possession under specified
circumstances] shall not apply to or affect any citizen of the
United States or legal resident over the age of 18 years who
resides or is temporarily within this state, and who is not
[otherwise prohibited] who carries, either openly or
concealed, anywhere within the citizen's or legal resident's
place of residence, place of business, or on private property
owned or lawfully possessed by the citizen or legal resident
any pistol, revolver, or other firearm capable of being
concealed upon the person." [Penal Code Section 12026(a).]
4)Arguments in Support :
a) According to the Brady Campaign to Prevent Gun Violence ,
"Existing law mandates that individuals who have been
convicted of a felony or certain misdemeanor offenses are
prohibited from possessing a firearm. This bill would
expand the list of misdemeanor offenses for which a firearm
prohibition applies. Specifically, conviction for illegal
carrying of a concealed firearm, illegal possession of an
assault weapon and certain gang related activities would
trigger a 10 year prohibition. If a person abuses his
right to possess a firearm by doing so illegally, or
engaged in activity that carries with it a risk of future
violence, such as participation in a gang, then the logical
consequences would be to lose the right to possess a
firearm for a period of time."
b) According to the Office of the Mayor, Antonio
Villaraigosa , "In 2008 there were 1626 gunshot victims and
of those 1050were gang-related incidents. Prohibiting
ownership, possession, purchase or receipt of firearms
would provide safety measures that would lead to a
reduction in crimes involving guns in the City of Los
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Angeles. The City of Los Angeles has made using all means
necessary to prevent gun and gang violence one of its top
priorities."
5)Argument in Opposition : According to Taxpayers for Improving
Public Safety , "Existing law provides that a person convicted
of specified misdemeanor crimes that, within 10 years of the
conviction, owns, purchases, receives or has in his or her
possession or under his or her control any firearm is guilty
of an additional public offense. This bill would add
specified misdemeanor crimes related to possession of a loaded
weapon in public and other activities. While possession of a
loaded weapon in public (PC 12031) arguably sounds serious,
there are many other instances where the act is entirely
without any criminal intent or violence. For example, an
otherwise lawful firearm enthusiast at a public shooting range
may suddenly be in violation of PC 12031 upon stepping over
the boundary of the shooting range and onto an adjoining
property to recover spent cartridges or other equipment while
still holding the loaded firearm. Additionally, after a day
at the shooting range a similar enthusiast who believes they
have no more ammunition in their possession and intends to
lawfully transport the weapon in the vehicle may be found
guilty of PC 12031 based on the presence of a lone loose round
of ammunition that has rolled under a seat, between the seats,
or in some other nook of the vehicle in such a manner that the
individual or individuals are now technically in violation of
the code section. The 10 year prohibition on firearms
ownership and possession was designed to address violent acts,
with criminal intent, which are plausibly linked to incidences
of increased violence due to the presence or access to
firearms. AB 1498 disregards this model entirely and seeks
instead to push California down a slippery slope of
prohibiting firearms owners and possession-and the ability to
adequately protect one's family, self, and home against
harm-for any misdemeanor act."
6)Related Legislation : AB 814 (Krekorian) establishes a
procedure for a defendant who owns, possesses, or has custody
or control of a firearm to sell that firearm to a firearms
dealer or relinquish the firearm to a law enforcement agency
when the defendant has been convicted of a specified offense
and prohibited from owning a firearm. AB 814 pending hearing
by the Assembly Committee on Appropriations.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Chapters of the Brady Campaign to Prevent Gun
Violence
Office of the Mayor, Antonio Villaraigosa
Legal Community Against Violence
Opposition
California Public Defenders Association
Gun Owners of California
Taxpayers for Improving Public Safety
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744