BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2182 (Torres) 2
As Amended April 10, 2012
Hearing date: June 26, 2012
Penal Code
SM:dl
MANDATORY ARREST FOR CARRYING
A CONCEALED FIREARM IN AN AIRPORT
HISTORY
Source: Author
Prior Legislation: None
Support: City of Los Angeles; Los Angeles Airport Peace Officers
Association; Los Angeles County District Attorney's
Office; Peace Officer Research Association of
California (PORAC)
Opposition:California Rifle and Pistol Association; National
Rifle Association
Assembly Floor Vote: Ayes 46 - Noes 25
KEY ISSUES
SHOULD IT BE REQUIRED THAT A PEACE OFFICER, WITH OR WITHOUT A
WARRANT, ARREST ANY PERSON WHO THE OFFICER HAS REASONABLE CAUSE
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TO BELIEVE WAS UNLAWFULLY CARRYING A CONCEALED FIREARM IN THE
SECURE AREA OF AN AIRPORT, AS SPECIFIED?
(CONTINUED)
SHOULD IT BE ESTABLISHED THAT, IN SUCH CASES, THERE IS A REBUTTABLE
PRESUMPTION THAT AN AREA TO WHICH ACCESS IS CONTROLLED BY THE
INSPECTION OF PERSONS AND PROPERTY BEGINS WHEREVER A SIGN HAS BEEN
POSTED NOTIFYING AIRPORT USERS THAT THE POSSESSION OF RESTRICTED
ITEMS IS PROHIBITED?
PURPOSE
The purpose of this bill is to require that a peace officer,
with or without a warrant, arrest any person who the officer has
reasonable cause to believe was unlawfully carrying a concealed
firearm in the secure area of an airport, as specified; (2) in
such circumstances, require that the officer confiscate the
firearm; and (3) establish that, in such cases, there is a
rebuttable presumption that an area to which access is
controlled by the inspection of persons and property begins
wherever a sign has been posted notifying airport users that the
possession of restricted items is prohibited.
Current law provides that a person is guilty of carrying a
concealed firearm when the person does any of the following:
Carries concealed within any vehicle that is under the
person's control or direction any pistol, revolver, or
other firearm capable of being concealed upon the person.
Carries concealed upon the person any pistol, revolver,
or other firearm capable of being concealed upon the
person.
Causes to be carried concealed within any vehicle in
which the person is an occupant any pistol, revolver, or
other firearm capable of being concealed upon the person.
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A firearm carried openly in a belt holster is not concealed
within the meaning of this section.
(Penal Code � 25400.)
Current law 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).):
The officer has probable cause to believe that the
person to be arrested has committed a public offense in the
officer's presence.
The person arrested has committed a felony, although not
in the officer's presence.
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.
Current law provides 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. (Penal Code � 853.6(a)(1).)
Current law provides that in any case in which a person is
arrested for a misdemeanor violation of a protective court order
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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. (Penal Code � 853.6(a)(2).)
Current law 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).):
The person arrested was so intoxicated that he or she
could have been a danger to himself or herself or to
others.
The person arrested required medical examination or
medical care or was otherwise unable to care for his or her
own safety.
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.
There were one or more outstanding arrest warrants for
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the person.
The person could not provide satisfactory evidence of
personal identification.
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.
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.
The person arrested demanded to be taken before a
magistrate or refused to sign the notice to appear.
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.
The person was subject to specified bail provisions.
Current law 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.
(Penal Code Section 836(b).)
Current law 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).)
Current law states that in addition to the authority to make an
arrest without a warrant a peace officer may, without a warrant,
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arrest a person for a violation of carrying a concealed firearm
when all of the following apply (Penal Code Section 836(e).):
The officer has reasonable cause to believe that the
person to be arrested has committed the violation of
carrying a concealed firearm.
The violation occurred within an airport in an area to
which access is controlled by the inspection of persons and
property.
The peace officer makes the arrest as soon as reasonable
cause arises to believe that the person to be arrested has
committed the violation.
Current law prohibits bringing numerous items into the secure
area of an airport, including any firearm. (Penal Code �
171.5.)
This bill would require a peace officer, with or without a
warrant, to arrest a person for carrying a concealed firearm
when all of the following apply:
The officer has reasonable cause to believe that the
person to be arrested has unlawfully carried a concealed
firearm.
The person to be arrested does not have a valid
concealed weapons permit, as specified.
The concealed firearm violation occurred within an
airport, as defined, in an area to which access is
controlled by the inspection of persons and property.
The peace officer makes the arrest as soon as reasonable
cause arises to believe that the person to be arrested has
committed the concealed firearm violation.
This bill would require that, when an arrest is made pursuant to
this subdivision, the officer shall confiscate the firearm.
This bill provides that, for purposes of this subdivision, there
shall be a rebuttable presumption that an area to which access
is controlled by the inspection of persons and property begins
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wherever a sign has been posted notifying airport users that the
possession of restricted items is prohibited.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
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state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
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COMMENTS
1. Need for the Bill
According to the author:
Under existing state law, there are scenarios that
require a mandatory arrest for carrying a firearm at
an airport. For example, a person who has a felony
conviction would automatically be arrested. There are
other scenarios where a peace officer at an airport
can determine to arrest or to cite and release an
individual for carrying a firearm into a secure area
or sterile area of an airport. Unfortunately, the
inconsistency in state law allows for differential
treatment of gun-carrying individuals for the same
violation of airport security regulations and state
firearm laws. This creates the circumstance where two
people who commit the same act can be subject to
different treatment.
2. Officers' Discretion and the Effect of This Bill
In general, officers are required to cite and release persons
they have arrested and charged with misdemeanors unless one of
the following criteria is met:
The person arrested was so intoxicated that he or she
could have been a danger to himself or herself or to
others.
The person arrested required medical examination or
medical care or was otherwise unable to care for his or her
own safety.
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.
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There were one or more outstanding arrest warrants for
the person.
The person could not provide satisfactory evidence of
personal identification.
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.
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.
The person arrested demanded to be taken before a
magistrate or refused to sign the notice to appear.
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.
The person was subject to specified bail provisions.
(Penal Code section 853.6(i).)
If an officer decides to arrest a misdemeanant and take them
into custody rather than to cite and release them, he or she
must document which of the above factors were present. (Id.)
The exception to that rule involves cases of violation of
domestic violence restraining orders. The Legislature has
determined that persons arrested in such cases are to be taken
into custody in lieu of citing and releasing them. Given the
specific dangers inherent in domestic violence offenses and a
problematic history of enforcement of those offenses, this
policy was created to protect victims from imminent harm should
the perpetrator be cited and released. (Penal Code Section
836(c)(1).)
The author has indicated that a reason for the introduction of
this bill is that the law is inconsistently applied. In some
instances, officers arrest individuals for bringing firearms
into secure areas of airports and take them into custody while
in other instances the officers cite and release alleged
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offenders. This is true. As detailed above, in relation to
almost all misdemeanors the law expressly gives officers
discretion to determine whether someone they have arrested for a
misdemeanor should be taken into custody or cited and released.
That is because the officers are considered to be in the best
position to judge the facts and circumstances of each case and
gauge the appropriate action necessary to protect public safety.
The initial question this bill raises is whether there are ever
circumstances in which citing and releasing a person arrested
for this misdemeanor would be the reasonable exercise of a peace
officer's discretion. If there are such circumstances, is there
evidence that peace officers have been abusing their discretion
in this regard? Another issue this bill raises is whether
requiring that all persons arrested for this misdemeanor in an
airport be taken into custody, and never be cited and released,
would lead to a slippery slope whereby successive bills will be
introduced to eliminate an officer's discretion to cite and
release persons arrested for other misdemeanors, further
exacerbating jail overcrowding, one bill at a time?
3. Technical Considerations
It appears that the intent of the author is to eliminate any
discretion and require the arresting officer to take the
arrestee into custody in all cases where an officer charges a
person with the misdemeanor offense of carrying a concealed
firearm in an airport and that person does not possess a license
to carry a concealed firearm. However, the current language of
the bill does not require that the person be taken into custody,
only that they be arrested. Unless the bill specifies that the
person is to be taken into custody, after the person is
arrested, as a misdemeanant, they would still be eligible to be
cited and released.
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To affect the author's intent, the bill would need to be amended
to state that a person arrested and charged with carrying a
concealed weapon in the secure area of an airport, who does not
possess a valid license to carry a concealed firearm, is not
eligible to be cited and released.
4. Statement in Support
The Los Angeles County District Attorney's Office states:
Our office believes that having a firearm in a secure
zone of an airport is a dangerous situation which
should mandate an actual arrest, not just a citation.
5. Statement in Opposition
The National Rifle Association states:
The proposed law takes the officer's discretion away,
and requires the officer to arrest the person who
passes through airport security with a firearm in
their possession.
A firearm is most commonly discovered in an airport
when a carry-on bag, with the firearm enclosed, passes
through airport security without the individual
knowing the firearm is present. In almost all
situations the firearm is seized as evidence because
the person can be charged with carrying a concealed
handgun (a violation of Penal Code section 25400),
carrying a handgun in the sterile environment of the
airport (a violation of section 171.5), if the firearm
is loaded a violation of section 25850, or a violation
of certain municipal codes.
Depending on the officers' discussion with the
individual, the officer decides to either "cite and
release" the individual or conduct a full arrest. In a
lot of these situations the law enforcement agencies
are provided with enough information to believe that
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the carrying of the firearm was inadvertent, this
usually results in the officers "citing and releasing"
the individual.
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