BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2668 (Galgiani) 8
As Amended June 24, 2010
Hearing date: June 29, 2010
Penal Code
SM:dl
WEAPONS IN THE CAPITOL
HISTORY
Source: Assembly Sergeants-at-Arms and the California Highway
Patrol
Prior Legislation: AB 830 (Speier) - Chap. 437, Stats of 1995
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD THE POSSESSION OF SPECIFIED WEAPONS, INCLUDING UNLOADED
FIREARMS, IN OR ON THE GROUNDS OF THE STATE CAPITOL BUILDING OR THE
LEGISLATIVE OFFICE BUILDING BE A MISDEMEANOR?
PURPOSE
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The purpose of this bill is to make it a misdemeanor to possess
specified weapons, including unloaded firearms, in or on the
grounds of the State Capitol Building or the Legislative Office
Building.
Current law provides that any person who brings or possesses
within any state or local public building, as defined, or at any
meeting required to be open to the public, as specified, any of
the following is guilty of a public offense punishable by
imprisonment in a county jail for not more than one year, or in
the state prison for 16 months, two or three years:
Any firearm.
Any deadly weapon described in Section 653k or 12020.
Any knife with a blade length in excess of four inches,
the blade of which is fixed or is capable of being fixed in
an unguarded position by the use of one or two hands.
Any unauthorized tear gas weapon.
Any taser or stun gun, as defined in Section 244.5.
Any instrument that expels a metallic projectile, such
as a BB or pellet, through the force of air pressure, CO[2]
pressure, or spring action, or any spot marker gun or paint
gun.
This prohibition does not apply to any of the following:
A person who possesses weapons in, or transports weapons
into, a court of law to be used as evidence.
o A duly appointed peace officer as defined in
Chapter 4.5 (commencing with Section 830) of Title 3
of Part 2, a retired peace officer with authorization
to carry concealed weapons as described in subdivision
(a) of Section 12027, a full-time paid peace officer
of another state or the federal government who is
carrying out official duties while in California, or
any person summoned by any of these officers to assist
in making arrests or preserving the peace while he or
she is actually engaged in assisting the officer.
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This exception shall not apply to any person who
brings or possesses any weapon specified therein
within any courtroom if he or she is a party to an
action pending before the court.
A person holding a valid license to carry the firearm,
as specified.
A person who has permission to possess that weapon
granted in writing by a duly authorized official who is in
charge of the security of the state or local government
building.
A person who lawfully resides in, lawfully owns, or is
in lawful possession of, that building with respect to
those portions of the building that are not owned or leased
by the state or local government.
A person licensed or registered as an Alarm Service
Operator, acting within the course and scope of his or her
duties, as specified, who has been hired by the owner or
manager of the building if the person has permission of a
resident of the building
o A person who, for the purpose of sale or
trade, brings any weapon that may otherwise be
lawfully transferred, into a gun show, as specified.
o A person who, for purposes of an authorized
public exhibition, brings any weapon that may
otherwise be lawfully possessed, into a gun show, as
specified.
As used in this section, "state or local public building" means
a building that meets all of the following criteria:
It is a building or part of a building owned or leased
by the state or local government, if state or local public
employees are regularly present for the purposes of
performing their official duties. A state or local public
building includes, but is not limited to, a building that
contains a courtroom.
It is not a building or facility, or a part thereof,
that is referred to in Section 171c, 171d, 626.9, 626.95,
or 626.10 of this code, or in Section 18544 of the
Elections Code.
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It is a building not regularly used, and not intended to
be used, by state or local employees as a place of
residence. (Penal Code 171b.)
Current law provides that any person, except a duly appointed
peace officer as specified, a full-time paid peace officer of
another state or the federal government who is carrying out
official duties while in California, any person summoned by any
such officer to assist in making arrests or preserving the peace
while he is actually engaged in assisting such officer, a member
of the military forces of this state or the United States
engaged in the performance of his duties, or a person holding a
valid license to carry the firearm, as specified, who brings a
loaded firearm into, or possesses a loaded firearm within, the
State Capitol, any legislative office, any office of the
Governor or other constitutional officer, or any hearing room in
which any committee of the Senate or Assembly is conducting a
hearing, or upon the grounds of the State Capitol, which is
bounded by 10th, L, 15th, and N Streets in the City of
Sacramento, shall be punished by imprisonment in the county jail
for a period of not more than one year, a fine of not more than
one thousand dollars ($1,000), or both such imprisonment and
fine, or by imprisonment in the state prison. (Penal Code
171c.)
This bill would provide that any person who brings or possesses,
within the State Capitol, any legislative office, any hearing
room in which any committee of the Senate or Assembly is
conducting a hearing, the Legislative Office Building at 1020 N
Street in the City of Sacramento, or upon the grounds of the
State Capitol, which is bounded by 10th, L, 15th, and N Streets
in the City of Sacramento, any of the following, is guilty of a
misdemeanor punishable by imprisonment in a county jail for a
period not to exceed one year, or by a fine not exceeding
$1,000, or by both that fine and imprisonment, if the area is
posted with a statement providing reasonable notice that
prosecution may result from possession of any of these items:
Any firearm.
Any deadly weapon described in Section 653k or 12020.
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Any knife with a blade length in excess of four inches,
the blade of which is fixed or is capable of being fixed in
an unguarded position by the use of one or two hands.
Any unauthorized tear gas weapon.
Any stun gun, as defined in Section 244.5.
Any instrument that expels a metallic projectile, such
as a BB or pellet, through the force of air pressure, CO2
pressure, or spring action, or any spot marker gun or paint
gun.
Any ammunition as defined in Section 12316.
Any explosive as defined in Section 12000 of the Health
and Safety Code.
This bill states that its provisions would not apply to the
following:
A duly appointed peace officer as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, a
retired peace officer with authorization to carry concealed
weapons as described in subdivision (a) of Section 12027, a
full-time paid peace officer of another state or the
federal government who is carrying out official duties
while in California, or any person summoned by any of these
officers to assist in making arrests or preserving the
peace while he or she is actually engaged in assisting the
officer.
A person holding a valid license to carry the firearm
pursuant to Article 3 (commencing with Section 12050) of
Chapter 1 of Title 2 of Part 4, and who has permission
granted by the Chief Sergeants at Arms of the State
Assembly and the State Senate to possess a concealed weapon
upon the premises described in subdivision (a).
A person who has permission granted by the Chief
Sergeants at Arms of the State Assembly and the State
Senate to possess a weapon upon the premises described in
subdivision (a).
This bill states that its provisions shall not preclude
prosecution under any other law with a penalty greater than is
set forth in this section.
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This bill states that its provisions are cumulative, and shall
not be construed as restricting the application of any other
law. However, an act or omission punishable in different ways
by different provisions of law shall not be punished under more
than one provision.
This bill makes a technical change to existing law to conform
with these provisions.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons
have become places "of extreme peril to the safety of
persons" they house, . . . (Governor Schwarzenegger's
Oct. 4, 2006 Prison Overcrowding State of Emergency
Declaration), while contributing little to the safety
of California's residents, . . . . California
"spends more on corrections than most countries in the
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world," but the state "reaps fewer public safety
benefits." . . . . Although California's existing
prison system serves neither the public nor the
inmates well, the state has for years been unable or
unwilling to implement the reforms necessary to
reverse its continuing deterioration. (Some citations
omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
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adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Sponsored by the Assembly Sergeants-at-Arms and the
California Highway Patrol, Assembly Bill 2668 is a
clean-up bill to existing law affecting the possession
of weapons within the State Capitol building.
There are 75,000 to 80,000 visitors a month to the
Capitol; 3 to 6 Concealed Weapons Permits a month are
granted; and 7 to 10 off duty peace officers with
weapons a month are permitted.
In order to provide the California Highway Patrol and
the Sergeants-at-Arms the proper tools to deal with
the safety of all Capitol employees, the law needs to
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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be re-defined to remove ambiguities.
AB 2668 clarifies the Penal Code to more closely
mirror the law relating to the possession of weapons
in other state or local buildings, and will allow law
enforcement to carry out their job more efficiently.
2. What This Bill Would Do
Existing law prohibits possession of a variety of dangerous
weapons "within any state or local public building, as defined,
or at any meeting required to be open to the public." (Penal
Code 171b.) However, that section of the Penal Code defines
"state or local public building" to exclude a "building or
facility, or a part thereof, that is referred to in Section
171c." Penal Code section 171c prohibits bringing "a loaded
firearm into, or possesses a loaded firearm within, the State
Capitol, any legislative office, any office of the Governor or
other constitutional officer, or any hearing room in which any
committee of the Senate or Assembly is conducting a hearing, or
upon the grounds of the State Capitol, which is bounded by 10th,
L, 15th, and N Streets in the City of Sacramento."
The net effect of these two provisions is that current law
prohibits:
Bringing a loaded firearm into the State Capitol or on
its grounds or into the Legislative Office Building;
Bringing the following weapons into public buildings,
other than the Capitol or the Legislative Office Building,
or to meetings required to be open to the public:
o Any firearm (loaded or unloaded).
o A switchblade knife, as defined.
o Various illegal weapons.
o Any knife with a blade length in excess of
four inches, the blade of which is fixed or is capable
of being fixed in an unguarded position by the use of
one or two hands.
o Any unauthorized tear gas weapon.
o Any taser or stun gun, as defined.
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o Any instrument that expels a metallic
projectile, such as a BB or pellet, through the force
of air pressure, CO[2] pressure, or spring action, or
any spot marker gun or paint gun.
This bill provides that bringing these weapons, including an
unloaded firearm, into the Capitol Building, onto Capitol
grounds, or into the Legislative Office Building, would be a
misdemeanor punishable by imprisonment in a county jail for a
period not to exceed one year, or by a fine not exceeding
$1,000, or both, if the area is posted with a statement
providing reasonable notice that prosecution may result from
possession of any of these items. This bill contains exceptions
for peace officers and those who have permission from the Chief
Sergeants at Arms of the State Assembly and the State Senate and
are otherwise authorized to carry these weapons.
SHOULD THESE WEAPONS BE BANNED IN THESE BUILDINGS?
3. Constitutional Issues
The Second Amendment to the United States Constitution 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. 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, claimed the law was a
violation of the Second Amendment.
The Court rejected Miller's argument, stating:
In the absence of any evidence tending to show that
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possession or use of a "shotgun having a barrel of
less than eighteen inches in length" at this time has
some reasonable relationship to the preservation or
efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to keep
and bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of
the ordinary military equipment or that its use could
contribute to the common defense.(United States v.
Miller, 307 U.S. 174, 178 (1939).)
"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,
18 Geo. Mason U. Civil Right L. Journal 251, 251.)
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That changed in June 2008, when the United States Supreme Court
ruled in District of Columbia vs. Heller that a District of
Columbia complete ban on possession of a handgun in the home was
an unconstitutional violation of the Second Amendment.
(District of Columbia v. Heller (2008) 128 S. Ct. 2783, 2797.)
After a lengthy discussion of the historical context and meaning
of the somewhat cryptic words of the Second Amendment, 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 [citation omitted] '[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.)
However, in the Heller decision, the Supreme Court also
stated:
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts
routinely explained that the right was not a right to
keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. For example, the
majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues. Although we do not undertake an
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exhaustive historical analysis today of the full scope
of the Second Amendment, nothing in our opinion should
be taken to cast doubt on longstanding prohibitions on
the possession of firearms by felons and the mentally
ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government
buildings , or laws imposing conditions and
qualifications on the commercial sale of arms. n26
FOOTNOTES
n26 We identify these presumptively lawful regulatory
measures only as examples; our list does not purport
to be exhaustive.(District of Columbia v. Heller, 128
S. Ct. 2783, 2816-2817 (2008), citations omitted.)
Therefore, while the Heller decision established that the right
to own a firearm is a personal right, not one limited to
ownership while serving in a "well regulated militia," it also
held that the government may place reasonable restrictions on
that right such as restricting "carrying firearms in sensitive
places such as schools and government buildings." Under the
Heller decision, therefore, this bill does not appear to violate
the Second Amendment.
IS THIS BILL CONSTITUTIONAL?
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