BILL ANALYSIS �
AB 144
Page 1
Date of Hearing: April 12, 2011
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 144 (Portantino) - As Introduced: January 13, 2011
SUMMARY : Makes it a misdemeanor for any person to carry an
exposed and unloaded handgun outside a vehicle upon his or her
person while in any public place or on any public street in an
incorporated city, or in any public place or public street in a
prohibited area of an unincorporated county. Specifically,
this bill :
1)Makes it a misdemeanor punishable by imprisonment in the
county jail not to exceed six months, by a fine not to exceed
$1,000, or by both a fine and imprisonment for any person to
carry an exposed and unloaded handgun outside a vehicle upon
his or her person while in any public place or on any public
street in an incorporated city, or in any public place or
public street in a prohibited area of an unincorporated
county.
2)Makes the crime of openly carrying an unloaded handgun
punishable by imprisonment in the county jail not to exceed
one year, or by a fine not to exceed $1,000, or by that fine
and imprisonment if the handgun and unexpended ammunition
capable of being discharged from that firearm are in the
immediate possession of the person and the person is not the
registered owner of the firearm.
3)States that the sentencing provisions of this prohibition
shall not preclude prosecution under other specified
provisions of law with a penalty that is greater.
4)Provides that the provisions of this prohibition 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.
5)States that notwithstanding the fact that the term "an
AB 144
Page 2
unloaded handgun" is used in this section, each handgun shall
constitute a separate and distinct offense.
6)Provides that the crime of openly carrying an unloaded handgun
does not apply to, or affect, the following:
a) The open carrying of an unloaded handgun by any peace
officer or by an honorably retired peace officer authorized
to carry a handgun;
b) The open carrying of an unloaded handgun by any person
authorized to carry a loaded handgun;
c) The open carrying of an unloaded handgun as merchandise
by a person who is engaged in the business of
manufacturing, wholesaling, repairing or dealing in
firearms and who is licensed to engaged in that business or
an authorized representative of that business;
d) The open carrying of an unloaded handgun by duly
authorized military or civil organizations while parading,
or the members thereof when at the meeting places of their
respective organizations;
e) The open carrying of an unloaded handgun by a member of
any club or organization organized for the purpose of
practicing shooting at targets upon established target
ranges, whether public or private, while the members are
using handguns upon the target ranges or incident to the
use of a handgun at that target range;
f) The open carrying of an unloaded handgun by a licensed
hunter while engaged in lawful hunting;
g) The open carrying of an unloaded handgun incident to
transportation of a handgun by a person operating a
licensed common carrier or an authorized agent or employee
thereof when transported in conformance with applicable
federal law;
h) The open carrying of an unloaded handgun by a member of
an organization chartered by the Congress of the United
States or nonprofit mutual or public benefit corporation
organized and recognized as a nonprofit tax-exempt
organization by the Internal Revenue Service while an
AB 144
Page 3
official parade duty or ceremonial occasions of that
organization;
i) The open carrying of an unloaded handgun within a gun
show;
j) The open carrying of an unloaded handgun within a school
zone, as defined, with the written permission of the school
district superintendent, his or her designee, or equivalent
school authority;
aa) The open carrying of an unloaded handgun when in
accordance with the provisions relating to the possession
of a weapon in a public building or State Capitol;
bb) The open carrying of an unloaded handgun by any person
while engaged in the act of making or attempting to make a
lawful arrest;
cc) The open carrying of an unloaded handgun incident to
loaning, selling, or transferring the same, so long as that
handgun is possessed within private property and the
possession and carrying is with the permission of the owner
or lessee of that private property;
dd) The open carrying of an unloaded handgun by a person
engaged in firearms-related activities, while on the
premises of a fixed place of business which is licensed to
conduct and conducts, as a regular course of its business,
activities related to the sale, making, repair, transfer,
pawn, or the use of firearms, or related to firearms
training;
ee) The open carrying of an unloaded handgun by an
authorized participant in, or an authorized employee or
agent of a supplier of firearms for, a motion picture,
television, or video production or entertainment event when
the participant lawfully uses the handgun as part of that
production or event or while the participant or authorized
employee or agent is at that production event;
ff) The open carrying of an unloaded handgun incident to
obtaining an identification number or mark assigned for
that handgun from the Department of Justice (DOJ);
AB 144
Page 4
gg) The open carrying of an unloaded handgun by a person
when that person is summoned by a peace officer to assist
in making arrests or preserving the peace while he or she
is actually engaged in assisting that officer; or,
hh) The open carrying of an unloaded handgun incident to a
private party transfer through a licensed firearms dealer;
ii) The open carrying of an unloaded handgun by a person in
the scope and course of training by an individual to become
a sworn peace officer;
jj) The open carrying of an unloaded handgun in the course
and scope of training to in order to be licensed to carry a
concealed weapon;
aaa) The open carrying of an unloaded handgun at the request
of a sheriff or chief or other head of a municipal police
department;
bbb) The open carrying of an unloaded handgun within a place
of business, within a place of residence, or on private
property if done with the permission of the owner or lawful
possessor of the property;
ccc) The open carrying of an unloaded handgun when all of the
following conditions are satisfied:
i) The open carrying occurs at an auction or similar
event of a nonprofit or mutual benefit corporation event
where firearms are auctioned or otherwise sold to fund
activities.
ii) The unloaded handgun is to be auctioned or otherwise
sold for the nonprofit public benefit mutual benefit
corporation.
iii) The unloaded handgun is delivered by a licensed
dealer.
iv) The open carrying of an unloaded handgun does not
apply to person authorized to carry handguns in the State
Capitol or residences of the Governor or other
constitutional officers.
AB 144
Page 5
v) The open carrying of an unloaded handgun on publicly
owned land, if the possession and use of a handgun is
specifically permitted by the managing agency of the land
and the person carrying the handgun is the registered
owner of the handgun.
7)The offense of openly carrying an unloaded handgun if all of
the following apply:
a) The handgun is carried on a public street or in a public
place in a prohibited area of an unincorporated area of a
county that is less than 200,000 persons, as specified.
b) The person carrying the handgun is the registered owner
of the handgun.
c) The area where that person is carrying that handgun is
not a public street or a public place in a prohibited area
of an unincorporated territory of a county where that
unincorporated area is completely bordered by an
incorporated city.
8)Makes conforming and nonsubstantive technical changes.
EXISTING LAW :
1)Defines "handgun" as any "pistol," "revolver," or "firearm
capable of being concealed upon the person." �Penal Code
Section 12001(a)(2).]
2)Provides, except as otherwise provided, that a person is
guilty of carrying a concealed firearm when he or she:
a) 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;
b) Causes to be concealed within any vehicle in which the
person is an occupant any pistol, revolver, or other
firearm capable of being concealed upon the person; or,
c) Carries concealed upon his or her person any pistol,
revolver, or other firearm capable of being concealed upon
the person. �Penal Code Section 12025(a).]
AB 144
Page 6
3)Provides that carrying a concealed firearm is generally a
misdemeanor, punishable by up to one year in a county jail; by
a fine of up to $1,000; or by both the fine and imprisonment.
However, there are six circumstances where the penalty may be
punishable as a felony or alternate felony-misdemeanor:
a) A felony where the person has previously been convicted
of any felony or of any crime made punishable by the
Dangerous Weapons Control Law;
b) A felony where the firearm is stolen and the person
knew, or had reasonable cause to believe, that the firearm
was stolen;
c) A felony where the person is an active participant in a
criminal street gang;
d) A felony where the person is not in lawful possession of
the firearm, as defined, or the person is within a class of
persons prohibited from possessing or acquiring a firearm;
e) An alternate felony-misdemeanor where the person has
been convicted of a crime against a person or property or
of a narcotics or dangerous drug violation; and,
f) An alternate felony-misdemeanor where:
i) Both the concealable firearm and the unexpended
ammunition for that firearm are either in the immediate
possession of the person or readily available to that
person or where the firearm is loaded; and,
ii) The person is not listed with the DOJ as the
registered owner of the firearm. �Penal Code Section
12025(b).]
4)Provides a number of exceptions and limitations to the
prohibition on carrying a concealed firearm including methods
to lawfully carry firearms in a vehicle, a home, or a
business, etc. (Penal Code Sections 12025.5, 12026, 12026.1,
12026.2, 12027, and 12050.)
5)Defines a "loaded firearm" as "when there is an unexpended
cartridge or shell, consisting of a case that holds a charge
of powder and a bullet or shot, in, or attached in any manner
AB 144
Page 7
to, the firearm including, but not limited to, in the firing
chamber, magazine, or clip thereof attached to the firearm;
except that a muzzle-loader firearm shall be deemed to be
loaded when it is capped or primed and has a powder charge and
ball or shot in the barrel or cylinder." �Penal Code Section
12031(g).]
6)Prohibits the carrying of 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 a prohibited area of
unincorporated territory. The penalty provisions for this
prohibition are substantially similar to those provided in
Penal Code Section 12025(b) and provide numerous exceptions
and limitation to this prohibition. (Penal Code Section
12031.)
7)Provides that carrying a loaded firearm is generally a
misdemeanor, punishable by up to one year in a county jail; by
a fine of up to $1,000; or by both the fine and imprisonment.
However, there are six circumstances where the penalty may be
punishable as a felony or alternate felony-misdemeanor:
a) A felony where the person has previously been convicted
of any felony or of any crime made punishable by the
Dangerous Weapons Control Law;
b) A felony where the firearm is stolen and the person knew
or had reasonable cause to believe that the firearm was
stolen;
c) A felony where the person is an active participant in a
criminal street gang;
d) A felony where the person is not in lawful possession of
the firearm, as defined, or the person is within a class of
persons prohibited from possessing or acquiring a firearm;
e) An alternate felony-misdemeanor punishable by
imprisonment in the state prison; by imprisonment in a
county jail not to exceed one year; by a fine not to exceed
$1,000; or by both that imprisonment and fine where the
person has been convicted of a crime against a person or
property or of a narcotics or dangerous drug violation.
f) An alternate felony-misdemeanor punishable by
AB 144
Page 8
imprisonment in the state prison; by imprisonment in a
county jail not to exceed one year; by a fine not to exceed
$1,000; or by both that imprisonment and fine where the
person is not listed with the DOJ as the registered owner
of the firearm. �Penal Code Section 12031(b).]
8)Prohibits a person, without appropriate permission, as
specified, from possessing a firearm within an area that the
person knew or reasonably should have known was a "school
zone", defined as an area in or on the grounds of or within
1,000 feet of the grounds of any public or private K-12
school. (Penal Code Section 629.9.)
9)Provides that any person who has ever been convicted of a
felony and who owns or has in his or her possession or under
his or her custody or control a firearm is guilty of a felony,
punishable by 16 months, 2 or 3 years in prison. �Penal Code
Section 12021(b).]
10)Provides that every person who, except in self-defense, draws
or exhibits any firearm in public, loaded or unloaded, in the
presence of another person, in a rude, angry or threatening
manner is guilty of a misdemeanor and shall be imprisoned for
not less than three months nor more than one year in the
county jail; fined $1,000; or both. �Penal Code Section
417(a).]
11)Provides that every person who, except in self-defense, draws
or exhibits any firearm, loaded or unloaded, in a rude, angry
or threatening manner in public, in the presence of a peace
officer, who a reasonable person would know was in the
performance of his or her duty, is guilty of an alternate
misdemeanor/felony and shall be imprisoned for not less than
nine months and up to one year in the county jail or in the
state prison for 16 months, 2 or 3 years. �Penal Code Section
417(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author' Statement : According to the author, "The absence of a
prohibition on 'open carry' has created an increase in
problematic instances of guns carried in public, alarming
unsuspecting ting individuals causing issues for law
AB 144
Page 9
enforcement.
"Open carry creates a potentially dangerous situation. In most
cases when a person is openly carrying a firearm, law
enforcement is called to the scene with few details other than
one or more people are present at a location and are armed.
"In these tense situations, the slightest wrong move by the gun
carrier could be construed as threatening by the responding
officer, who may feel compelled to respond in a manner that
could be lethal. In this situation, the practice of 'open
carry' creates an unsafe environment for all parties involved:
the officer, the gun-carrying individual, and for any other
individuals nearby as well.
"Additionally, the increase in 'open carry' calls has placed to
law enforcement has taxed departments dealing with
under-staffing and cutbacks due to the current fiscal climate
in California, preventing them from protecting the public in
other ways."
2)Argument in Support : According to the Legal Community Against
Violence , "Over the past two years, members of the so-called
'open carry movement' have held numerous carrying events in
public places like coffee shops, restaurants, and public
parks. These events have shocked Californians statewide,
because the open carrying of handguns creates serious public
safety concerns. Open carrying intimidates the public, wastes
law enforcement resources, and presents opportunities for
injury and death due to the accidental or intentional use of
firearms. This conduct needlessly increases the likelihood
that everyday interpersonal conflicts will turn into deadly
shootouts.
"Open carrying poses particular challenges for law enforcement
officers who must respond to 911 calls from concerned citizens
about people carrying guns in public. A state issued by the
San Mateo County Sheriff's Office described the significant
dangers that open carrying creates:
" 'Open carry create a potentially very dangerous situation.
When police are called to a "man with a gun" call they
typically are responding to a situation about which they have
few details other than that one or more people are present at
a location and are armed. . . . Consequently, the law
AB 144
Page 10
enforcement response is one of "hypervigilant urgency" in
order to protect the public from an armed threat. Should the
gun carrying person fail to comply with a law enforcement
instruction or move in a way that could be construed as
threatening, the police are forced to respond in kind for
their own protection. . . . Simply put, it is not
recommended to open carry firearms.'
"Although California law requires openly carried firearms to
remain unloaded, this does little to improve public safety,
since state law also permits the carrying of ammunition. The
ability to carry firearms and ammunition makes the distinction
between loaded and unloaded weapons almost meaningless, as
open carry advocates have boasted about their abilities to
load their weapons in a matter of seconds."
3)Argument in Opposition : According to the National Rifle
Association , "Should AB 144 pass, it will wreak havoc on CA's
California's concealed weapons (CCW) permitting system. In
most areas of California, CCW permits are rarely issued, and
are a usually reserved for those with political clout and the
wealthy elite. Because of this reality, 'open carrying' is
the only method available to the overwhelming majority of
law-abiding individuals who wish to carry a firearm for
self-defense. Accordingly, by banning the open carrying of
even unloaded firearms, AB 144 effectively shuts the door on
the ability of law-abiding Californians to carry a firearm for
self-defense at all.
"In fact, a recent 9th Circuit District Court decision expressly
relied on the ability to 'open carry' as the basis for its
decision to uphold the government's current policy denying CCW
application unless the applicant demonstrates some special
need or 'good cause' beyond that of general self-defense.
"In that case, Peruta v. County of San Diego, several Plaintiffs
challenged the government's CCW permitting scheme. The suit
alleged that the permitting scheme violated the Second
Amendment because CCW applications are typically denied where
the applicant identifies only a generalized self-defense need
as the 'good cause' required by Cal. Pen. Code section 12050.
And even though the Second Amendment requires the government
to afford law abiding citizens the ability to 'bear' or
'carry' firearms for self-defense - without discretion as to
who may be qualified to exercise that right - the Court ruled
AB 144
Page 11
that the County's policy of requiring specific threats of
harm, as opposed to general 'self-defense' need, did not
violate the Second Amendment because the state already
authorizes constitutional means of carrying a firearm for
self-defense. That means of carry is found in section 12031,
which permits the carrying of an unloaded firearm that may be
loaded by the individual in a self-defense emergency.
" '�A]s a practical matter, should the need for self-defense
arise, nothing in section 12031�(j)] restricts the open carry
of unloaded firearms and ammunition for instant loading.' . .
. 'As a consequence, the Court declines to assume that
section 12031 places an unlawful burden on the right to carry
a firearm for self-defense?"
" '(Order Denying Plaintiff's Motion for Partial Summary
Adjudication and Granting Defendant's Motion for Summary
Judgment at 8:8-10, 8:21-22, Peruta v. County of San Diego,
No. 09-2371 (S.D. Cal. 2010).'
"If not for the lawful ability to openly carry a firearm that
may be loaded for self-defense, the County's entire CCW scheme
of requiring 'good cause' beyond that of self-defense would
have been ruled unconstitutional in Peruta."
REGISTERED SUPPORT / OPPOSITION :
Support
California Chapters of the Brady Campaign to Prevent Gun
Violence
California Police Chiefs Association, Inc.
City of West Hollywood
Friends Committee on Legislation of California
Legal Community Against Violence
Peace Officer Research Association of California
Opposition
Bay Area Open Carry Movement
California Rifle and Pistol Association
Californians for Natural Rights
Capitol Resource Family Impact
Contra Costa Open Carry
Gun Owners of California
AB 144
Page 12
Intelligent Recycling Solutions
National Rifle Association
Responsible Citizens of California
South Bay Open Carry
131 private individuals
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744