BILL ANALYSIS �
AB 2182
Page 1
Date of Hearing: April 24, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2182 (Torres) - As Amended: April 10, 2012
SUMMARY : Requires a peace officer to arrest any person for
violating provisions of law that prohibit the carrying of a
concealed weapon in an airport without a concealed weapons
permit. Specifically, this bill :
1)Requires that a peace officer must arrest a person for
violating the provisions of law prohibiting the carrying of
concealed firearms when the offense occurs within an airport,
as defined, in an area to which access is controlled by the
inspection of persons and property, and would require the
peace officer to confiscate the firearm.
2)Establishes a rebuttable presumption that the area to which
access is controlled by the inspection of persons and property
begins wherever signs have been posted notifying airport users
that the possession of restricted items is prohibited.
EXISTING LAW :
1)Specifies that in any case in which a person is arrested for
an offense declared to be a misdemeanor, including a violation
of any city or county ordinance, and does not demand to be
taken before a magistrate, that person shall, instead of being
taken before a magistrate, be released according to the
procedures set forth by this chapter, although nothing
prevents an officer from first booking an arrestee. If the
person is released, the officer or his or her superior shall
prepare in duplicate a written notice to appear in court,
containing the name and address of the person, the offense
charged, and the time when, and the place where, the person
shall appear in court. If the person is not released prior to
being booked and the officer in charge of the booking or his
or her superior determines that the person should be released,
the officer or his or her superior shall prepare a written
notice to appear in a court.
AB 2182
Page 2
2)States that in any case in which a person is arrested for a
misdemeanor violation of a protective court order involving
domestic violence the person shall be taken before a
magistrate instead of being released according to the
procedures set forth in this chapter, unless the arresting
officer determines that there is not a reasonable likelihood
that the offense will continue or resume or that the safety of
persons or property would be imminently endangered by release
of the person arrested. Prior to adopting these provisions,
each city, county, or city and county shall develop a protocol
to assist officers to determine when arrest and release is
appropriate, rather than taking the arrested person before a
magistrate. The county shall establish a committee to develop
the protocol, consisting of, at a minimum, the police chief or
county sheriff within the jurisdiction, the district attorney,
county counsel, city attorney, representatives from domestic
violence shelters, domestic violence councils, and other
relevant community agencies.
3)Provides that whenever any person is arrested by a peace
officer for a misdemeanor, that person shall be released
unless one of the following is a reason for non-release, in
which case the arresting officer may release the person,
except as specified, or the arresting officer shall indicate,
on a form to be established by his or her employing law
enforcement agency, which of the following was a reason for
the non-release �Penal Code Section 853.6(i)]:
a) The person arrested was so intoxicated that he or she
could have been a danger to himself or herself or to
others.
b) The person arrested required medical examination or
medical care or was otherwise unable to care for his or her
own safety.
c) The person was arrested under one or more of the
circumstances listed in Sections 40302 and 40303 of the
Vehicle Code, specifically failure to present satisfactory
identification, the person fails to sign the promise to
appear, or the person demands to be taken before a
magistrate.
d) There were one or more outstanding arrest warrants for
AB 2182
Page 3
the person.
e) The person could not provide satisfactory evidence of
personal identification.
f) The prosecution of the offense or offenses for which the
person was arrested, or the prosecution of any other
offense or offenses, would be jeopardized by immediate
release of the person arrested.
g) There was a reasonable likelihood that the offense or
offenses would continue or resume, or that the safety of
persons or property would be imminently endangered by
release of the person arrested.
h) The person arrested demanded to be taken before a
magistrate or refused to sign the notice to appear.
i) There is reason to believe that the person would not
appear at the time and place specified in the notice. The
basis for this determination shall be specifically stated.
j) The person was subject to specified bail provisions.
4)States that a peace officer may arrest a person in obedience
to a warrant, or without a warrant, may arrest a person
whenever any of the following circumstances occur �Penal Code
Section 836(a)]:
a) The officer has probable cause to believe that the
person to be arrested has committed a public offense in the
officer's presence.
b) The person arrested has committed a felony, although not
in the officer's presence.
c) The officer has probable cause to believe that the
person to be arrested has committed a felony, whether or
not a felony, in fact, has been committed.
5)Provides that any time a peace officer is called out on a
domestic violence call, it shall be mandatory that the officer
make a good faith effort to inform the victim of his or her
right to make a citizen's arrest. This information shall
include advising the victim how to safely execute the arrest.
AB 2182
Page 4
�Penal Code Section 836(b).]
6)States that when a peace officer is responding to a call
alleging a violation of a domestic violence protective or
restraining order the officer is required to make a lawful
arrest of the person without a warrant and take that person
into custody whether or not the violation occurred in the
presence of the arresting officer. The officer shall, as soon
as possible after the arrest, confirm with the appropriate
authorities or the Domestic Violence Protection Order Registry
that a true copy of the protective order has been registered,
unless the victim provides the officer with a copy of the
protective order. �Penal Code Section 836(c)(1).]
7)States that the person against whom a protective order has
been issued shall be deemed to have notice of the order if the
victim presents to the officer proof of service of the order,
the officer confirms with the appropriate authorities that a
true copy of the proof of service is on file, or the person
against whom the protective order was issued was present at
the protective order hearing or was informed by a peace
officer of the contents of the protective order. �Penal Code
Section 836(c)(2).]
8)Provides that if a suspect commits an assault or battery upon
a current or former spouse, fiance, fiancee, a current or
former cohabitant with whom the suspect currently is having or
has previously had an engagement or dating relationship, a
person with whom the suspect has parented a child, a child of
the suspect, a child whose parentage by the suspect is the
subject of an action under the Uniform Parentage Act, a child
of a person in one of the above categories, any other person
related to the suspect by consanguinity or affinity within the
second degree, or any person who is 65 years of age or older
and who is related to the suspect by blood or legal
guardianship, a peace officer may arrest the suspect without a
warrant where both of the following circumstances apply �Penal
Code Section 836(d)]:
a) The peace officer has probable cause to believe that the
person to be arrested has committed the assault or battery,
whether or not it has in fact been committed.
b) The peace officer makes the arrest as soon as probable
cause arises to believe that the person to be arrested has
AB 2182
Page 5
committed the assault or battery, whether or not it has in
fact been committed.
9)States that in addition to the authority to make an arrest
without a warrant a peace officer may, without a warrant,
arrest a person for a violation of carrying a concealed
firearm when all of the following apply �Penal Code Section
836(e)]:
a) The officer has reasonable cause to believe that the
person to be arrested has committed the violation of
carrying a concealed firearm.
b) The violation occurred within an airport in an area to
which access is controlled by the inspection of persons and
property.
c) The peace officer makes the arrest as soon as reasonable
cause arises to believe that the person to be arrested has
committed the violation.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California
airports experience too many cases where individuals
unlawfully carry firearms into secured areas. In 2011, there
were 64 incidents at California airports where concealed
firearms were discovered at security checkpoints. Of those
cases, only 34 resulted in arrests.
"Under existing state law, there are scenarios that require
mandatory arrest for carrying a firearm at an airport. There
are other scenarios where no arrest is made and instead an
individual is cited and released for carrying a firearm into a
secure or sterile area of an airport. Unfortunately, the
inconsistency in state law allows for different treatment of
gun-carrying individuals for the same violation of airport
security regulations and state firearm laws.
"California law needs to be clarified in order to ensure there
is a consistent application of state firearm laws. Any
individual who endangers the safety of travelers, law
enforcement and airport staff by unlawfully carrying a firearm
AB 2182
Page 6
to an airport should be subject to arrest. Furthermore,
current law places sworn peace officers at airports in
compromising position should he or she be pressured to treat
the case differently if the perpetrator is known to be a
person that could exert influence or wield power.
"AB 2182 ensures that safety of California airports by adopting
a policy of zero tolerance for individuals who intentionally
or recklessly endanger the security of other passengers by
unlawfully carrying firearms into airports."
2)The General Rule for All Misdemeanors is that Offenders are
Cited and Released : In general, all misdemeanor offenses
involve citing and releasing alleged offenders unless certain
specified criteria are met. Officers are instructed to
release alleged misdemeanants unless one of the following
criteria is met. Specifically, this criteria is:
a) There was a reasonable likelihood that the offense or
offenses would continue or resume, or that the safety of
persons or property would be imminently endangered by
release of the person arrested.
b) The person arrested was so intoxicated that he or she
could have been a danger to himself or herself or to
others.
c) The person arrested required medical examination or
medical care or was otherwise unable to care for his or her
own safety.
d) The person was arrested under one or more of the
circumstances listed in Vehicle Code Sections 40302 and
40303, specifically failure to present satisfactory
identification, the person fails to sign the promise to
appear, or the person demands to be taken before a
magistrate.
e) There were one or more outstanding arrest warrants for
the person.
f) The person could not provide satisfactory evidence of
personal identification.
g) The prosecution of the offense or offenses for which the
AB 2182
Page 7
person was arrested, or the prosecution of any other
offense or offenses, would be jeopardized by immediate
release of the person arrested.
h) The person arrested demanded to be taken before a
magistrate or refused to sign the notice to appear.
i) There is reason to believe that the person would not
appear at the time and place specified in the notice. The
basis for this determination shall be specifically stated.
j) The person was subject to specified bail provisions.
If an officer fails to cite and release a misdemeanant, he or
she must document which of the above factors were present and
prevented the cite and release. Additionally, provisions for
domestic violence offenses and restraining order violations
prevent citation and release; those will be discussed in the
following section.
The author has indicated that a reason for the introduction of
this bill is that the law is inconsistently applied. In some
instances, officers book and arrest individuals for bringing
firearms into secure areas of airports and in other instances
the officers cite and release alleged offenders. However,
this is the case for virtually every misdemeanor codified in
California. Treating the offense of carrying a firearm into a
secure area of an airport differently from other (potentially
much more dangerous) misdemeanors would be an inconsistency.
Officers are given a modicum of discretion in determining
whether to book or release an alleged misdemeanant. Police
officers are in the best position to judge the facts and
circumstances of each case. The Penal Code has outlined a
series of exceptions to the general rule which requires the
citation and release of misdemeanor offenders. Those
exceptions include an examination of overall public safety,
and whether the release of the offender would endanger the
persons or property.
3)Domestic Violence Exception to the General Cite and Release
Rule: As stated above, the Legislature has deemed that
domestic violence offenses and specified restraining order
violations involving domestic violence or stalking require
that alleged offenders be arrested and booked in lieu of
citing and releasing them. Given a long history of officers
AB 2182
Page 8
being called to homes and being told that everything was fine
and no violence had occurred and then finding a brutalized
spouse on the next visit, a policy was created to exempt these
cases from the default cite and release policy for most
misdemeanor offenses. These types of cases pose unique
circumstances which justify this treatment.
No evidence has been produced that the possession of firearms
in secure areas of airports requires the same treatment of
removing police officer discretion to determine if public
safety is at risk. Perhaps if a series of cases existed where
individuals committed this offense and officers cited and
released the offenders and those individuals later went on
shooting sprees, then the removal of officer discretion would
be justified. At present, there are many misdemeanors in the
Penal Code which involve violence or firearms which still
permit officers to use their training and discretion to
determine if arresting and booking the offender is necessary.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
California Rifle and Pistol Association
National Rifle Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744