February 2023 Legislation/Litigation Update
February Focus— California SB 2, as amended, Portantino. Firearms.
Existing law prohibits a person from carrying a concealed firearm or carrying a loaded firearm in public. Existing law authorizes a licensing authority, as specified, if good cause exists for the issuance, and subject to certain other criteria including, among other things, the applicant is of good moral character and has completed a specified course of training, to issue a license to carry a concealed handgun or to carry a loaded and exposed handgun, as specified. Under existing law, the required course of training for an applicant is no more than 16 hours and covers firearm safety and laws regarding the permissible use of a firearm.
This bill would require the licensing authority to issue or renew a license if the applicant is not a disqualified person for the license and the applicant is at least 21 years of age. The bill would remove the good character and good cause requirements from the issuance criteria. Under the bill, the applicant would be a disqualified person if they, among other things, are reasonably likely to be a danger to self, others, or the community at large, as specified. This bill would add the requirement that the applicant be the recorded owner, with the Department of Justice, of the pistol, revolver, or other firearm capable of being concealed upon the person. This bill would change the training requirement to be no less than 16 hours in length and would add additional subjects to the course including, among other things, the safe storage and legal transportation of firearms. The bill would require an issuing authority, prior to that issuance, renewal, or amendment to a license, if it has direct access to the designated department system to determine if the applicant is the recorded owner of the pistol, revolver, or other firearm. The bill would require an issuing authority without access to that system to confirm the ownership with the sheriff of the county in which the agency is located. By requiring local agencies to issue licenses for concealed firearms, this bill would create a state-mandated local program.
The bill would require a licensing authority to provide the applicant notice if a new license or license renewal is denied or revoked. If an application is denied or a license is revoked based on a determination that the applicant is a disqualified person, the bill would permit the applicant to request a hearing to challenge the license denial or revocation, and require the licensing authority to inform the applicant of the ability to seek a hearing. If a new license or license renewal is denied or revoked for any other reason, the bill would authorize the applicant to seek a writ of mandate from a superior court within 30 days of receipt of notice of denial or revocation, and require the licensing authority to inform the applicant of the ability to seek a writ of mandate. By imposing new duties on local licensing authorities, this bill would create a state-mandated local program.
Existing law requires an agency issuing a license described above to set forth specified information on the license, including, among other things, the licensee’s name, occupation, and reason for desiring a license to carry the weapon.
This bill would revise that information to include, among other things, the licensee’s driver’s license or identification number, fingerprints, and information relating to the date of expiration of the license, and would remove the requirement that the license detail the reason for desiring a license to carry the weapon.
Existing law requires an applicant for a license described above to provide fingerprints, as specified. Existing law exempts an applicant from this requirement if they have previously applied to the same licensing authority and the applicant’s fingerprints have previously been forwarded to the department, as specified, and instead requires that authority to note data that would provide positive identification in the files of the department, on the copy of any subsequent license submitted to the department.
This bill would require the department to notify the licensing authority if the department is unable to ascertain, among other things, the final disposition of an arrest or criminal charge under state or federal law that would prohibit the person from possessing, receiving, owning, or purchasing a firearm. The bill would require the licensing authority to instead collect the applicant’s fingerprint that would provide that positive identification in the files of the department, as specified. This bill would prohibit a license from being issued or renewed unless the department reports to a licensing authority that the applicant is eligible to possess, receive, own, or purchase a firearm.
Existing law requires a licensing authority to charge an additional fee in an amount equal to reasonable processing costs for a new license. Existing law also prohibits a licensing authority from imposing, among other things, a requirement or condition that an applicant pay additional funds or obtain liability insurance.
This bill would authorize a licensing authority to charge the additional processing cost fee for a license renewal and would permit the licensing authority to collect the first 50% of the fee upon filing of the application. The bill also removes the prohibition on licensing authority requirements for additional fees or liability insurance.
Existing law requires that licenses and applications for licenses be uniform throughout the state, and to be submitted upon forms prescribed by the Attorney General. When revising the standard application form for licenses, existing law requires the Attorney General to convene a committee to review and revise the existing application form. Existing law requires the Attorney General to develop a uniform license that may be used as indicia of proof of licensure throughout the state. Existing law also requires the committee to convene to review and revise the design standard for a uniform license.
This bill would authorize the Attorney General to revise the standard form for licenses and the design standard if the committee does not revise the form or issue a design standard within a specified time period.
Under existing law, it is a crime to bring a firearm into a state or local building, and makes it a crime to bring a loaded firearm into, or upon the grounds of, any residence of the Governor, any other constitutional officer, or Member of the Legislature. Existing law exempts a licensee from that prohibition if, among other things, the licensee has a valid license to carry the firearm.
This bill would remove those exemptions, except as specified. The bill would make it a crime to bring an unloaded firearm into, or upon the grounds of, any residence of the Governor, any other constitutional officer, or Member of the Legislature. The bill would also prohibit a licensee from carrying a firearm to specified locations, including, among other places, a building designated for a court proceeding and a place of worship, as defined, with specific exceptions. By expanding the scope of an existing crime, the bill would impose a state-mandated local program.
Existing law prohibits a person from knowingly possessing a firearm in a sterile area of an airport, passenger vessel terminal, or public transit facility, as defined.
This bill would additionally prohibit a person from knowingly possessing a firearm in any building, real property, or parking area under the control of an airport or passenger vessel terminal, as specified. By expanding the scope of an existing crime, the bill would impose a state-mandated local program.
Existing law, the Gun-Free School Zone Act of 1995, makes it a crime to possess a firearm in a place that the person knows, or reasonably should know, is a school zone. Existing law defines a school zone as an area in, or on the grounds of, a public or private school providing instruction in kindergarten or grades 1 to 12, inclusive, or within a distance of 1,000 feet from the grounds of the public or private school. Existing law provides exceptions to that crime, including if a person with a valid concealed carry license who is carrying the firearm described in the license in an area that is not in, or on the grounds of, a public or private school and when a firearm is an unloaded pistol, revolver, or other firearm capable of being concealed on the person and is in a locked container or within the locked trunk of a motor vehicle.
This bill would revise the exception for a person who has a valid concealed carry license to permit them to carry a specified firearm in an area that is not within any building, real property, or parking area under the control of a public or private school, or on a street or sidewalk immediately adjacent to a building, real property, or parking area under the control of that public or private school, as specified.
Existing law requires a licensing authority to revoke a license to carry a firearm if the licensing authority is notified by the department or the licensing authority determines that a licensee is prohibited from possessing, receiving, owning, or purchasing a firearm under state or federal law.
This bill would also require a licensing authority to revoke a license if, among other things, a licensee has provided inaccurate or incomplete information on their application for a new license or license renewal.
Existing law authorizes a licensing authority to impose reasonable restrictions on the time, place, manner, and circumstances when a licensee may carry a firearm capable of being concealed.
While carrying a firearm, this bill would prohibit a licensee from, among other things, consuming an alcoholic beverage or controlled substance and from falsely representing that the licensee is a peace officer.
The bill would authorize the department to adopt emergency regulations to implement the concealed firearm licensing system, as specified.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Note: to find current, reliable information on any bill before the California legislature you can go to: https://leginfo.legislature.ca.gov/faces/home.xhtml
Legislation
California AB 28, as introduced, Gabriel. Firearms: gun violence protection tax.
Existing law imposes various taxes, including taxes on the privilege of engaging in certain activities. The Fee Collection Procedures Law, the violation of which is a crime, provides procedures for the collection of certain fees and surcharges.
This bill would state the intent of the Legislature to enact legislation that would enact a tax to fund measures to protect against gun violence on firearms and ammunition.
California AB 29, as introduced, Gabriel. Firearms: California Do Not Sell List.
Existing law makes possession of a firearm by certain classes of persons, including a convicted felon, a person convicted of specified misdemeanors, a person has been found mentally incompetent to stand trial, a person has been found not guilty of specified crimes by reason of insanity, or a person has been placed under conservatorship, a crime. Existing law additionally makes it a crime to sell or give possession of a firearm to these classes of persons prohibited from owning a firearm.
Existing law requires the Department of Justice, upon submission of firearm purchaser information by a licensed firearm dealer, to examine its records to determine whether a potential firearm purchaser is prohibited by state of federal law from possessing, receiving, owning, or purchasing a firearm. Existing law requires the department to participate in the National Instant Criminal Background Check System.
This bill would require the Department of Justice to develop and launch a secure Internet-based platform to allow a person who resides in California to voluntarily add their own name to the California Do Not Sell List. The bill would require the department to ensure that information on the list is uploaded and reflected in the National Instant Criminal Background Check System. The bill would make it a crime, punishable as misdemeanor or a felony, to transfer a firearm to a person who is validly registered on the California Do Not Sell List. By creating a new crime, this bill would impose a state-mandated local program.
The bill would allow a person registered on the list to file a petition in Superior Court requesting to have their name removed from the registry. The bill would require the court to hold a hearing and order removal of the person’s name if they establish by a preponderance of the evidence that they are not at elevated risk of suicide.
The bill would require the State Department of Public Health to create and distribute informational materials about the California Do Not Sell List to general acute care hospitals and acute psychiatric hospitals. The bill would specify that a person presenting in a general acute care hospital or acute psychiatric hospital who is at a substantially elevated risk of suicide should be presented with these informational materials. The bill would specify that any suicide hotline maintained or operated by an entity funded in whole or in part by the state should generally inform callers on how to access the California Do Not Sell List Internet-based platform.
California SB 8, as introduced, Blakespear. Firearms.
Existing law authorizes a court to issue a temporary gun violence restraining order prohibiting a person from possessing a firearm or ammunition if there is reasonable cause to believe that a person poses a significant danger of harm to themselves or to another person by having a firearm.
This bill would state the intent of the Legislature to enact legislation relating to gun violence prevention.
California SB 54, as introduced, Skinner. Firearms.
Existing law requires any firearm sold, transferred, or manufactured in this state to include certain firearm safety devices and the packaging of any firearm and any descriptive material that accompany any firearm to bear a label with a specified warning statement. Existing law makes a violation of these provisions punishable by a fine on the first offense, a fine and prohibition from the manufacturing or selling of firearms in this state for 30 days on the second offense, and a permanent prohibition from the manufacturing or selling of firearms in this state on the third offense.
This bill would make technical, non-substantive changes to these provisions.
California AB 92, as introduced, Connolly. Body armor: prohibition.
Existing law makes it a felony for a person who has been convicted of a violent felony to purchase, own, or possess body armor. Existing law authorizes a person subject to that prohibition, whose employment, livelihood, or safety is dependent on the ability to legally possess and use body armor, to file a petition for an exception to the prohibition with the chief of police or county sheriff of the jurisdiction in which the person seeks to possess and use the body armor, as provided.
This bill would repeal those provisions and instead make it a felony for a person to commit any violent felony while possessing a firearm and in the course of and in furtherance of that crime they wear body armor. The bill would make it a misdemeanor for any person to purchase or take possession of body armor, unless they are employed in specified professions. The bill would additionally make it a misdemeanor for a person, firm, or corporation to sell or deliver body armor to any person not engaged in one of those professions. The bill would require a seller to verify that a transferee is from an eligible profession, as specified. The bill would authorize the Department of Justice to expand the list of eligible professions if the duties of the profession may expose an individual engaged in the profession to serious physical injury that may be prevented or mitigated by the wearing of body armor, or if the duties of the profession are necessary to facilitate the lawful purchase, sale, or use of body armor.
California AB 97, as introduced, Rodriguez. Firearms: unserialized firearms.
Existing federal law requires a commercially produced firearm to be etched or otherwise inscribed by the manufacturer with a unique serial number. Existing state law prohibits the alteration, removal, or obliteration of that serial number. A violation of this prohibition is punishable as a felony. Existing law also prohibits the transfer or possession of a firearm with a serial number that has been altered, removed, or obliterated. A violation of this prohibition is punishable as a misdemeanor.
Existing law requires a person, other than a licensed manufacturer, who assembles or manufactures a firearm, or any person who possesses an unserialized firearm, to obtain a unique serial number from the Department of Justice and to inscribe that serial number on the firearm, as specified. A violation of this requirement is punishable as a misdemeanor.
This bill would make the possession of an unserialized firearm or possession of a firearm with an altered, removed, or obliterated serial number punishable as a felony. By increasing the punishment for these crimes, this bill would impose a state-mandated local program.
California SB 241, as introduced, Min. Firearms: dealer requirements.
Existing law prohibits any person from selling, leasing, or transferring any firearm unless the person is licensed as a firearms dealer, as specified. Existing law prescribes certain requirements and prohibitions for licensed firearms dealers. A violation of any of these requirements or prohibitions is grounds for forfeiture of a firearms dealer’s license.
This bill would require a licensee and any employees that handle firearms to annually complete specified training. The bill would require the Department of Justice to develop and implement an online training course, as specified, including a testing certification component.
California AB 36, as introduced, Gabriel. Domestic violence protective orders: possession of a firearm.
Existing law prohibits a person subject to a protective order, as defined, from owning, possessing, purchasing, or receiving a firearm while that protective order is in effect and makes a willful and knowing violation of a protective order a crime.
This bill would state the intent of the Legislature to enact legislation to extend that prohibition for an additional 3 years after the expiration of a protective order, unless the court finds the person to not be a threat to public safety.
California AB 27, as introduced, Ta. Sentencing: firearms enhancements.
Existing law generally authorizes a court to dismiss an action or to strike or dismiss an enhancement in the furtherance of justice. Existing law requires a court to dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
This bill would also prohibit a court from dismissing a firearms-related enhancement, as defined.
California SB 243, as introduced, Seyarto. Sales and Use Tax Law: exemption: gun safety systems.
Existing state sales and use tax laws impose a tax on retailers measured by the gross receipts from the sale of tangible personal property sold at retail in this state, or on the storage, use, or other consumption in this state of tangible personal property purchased from a retailer for storage, use, or other consumption in this state. The Sales and Use Tax Law provides various exemptions from those taxes.
This bill would, until January 1, 2028, exempt from those taxes the gross receipts from the sale in this state of, and the storage, use, or other consumption in this state of, a gun safety system, as defined.
Note: to find current, reliable information on any bill before the California legislature you can go to: https://leginfo.legislature.ca.gov/faces/home.xhtml
Litigation
A status conference on Miller v Bonta, Duncan v Bonta, and Rhode v Bonta was held 13 December in Judge Benitez’ court.
Judge Benitez indicated that he wants to see these cases completed at the trial court level in a timely manner. He questioned the value of the state bringing in testimony from experts in “history and tradition” and rejected this testimony. The judge indicted that he may combine the three cases and hold hearings on all three at once. The judge indicated that he was not sympathetic to the state trying to delay the process or confuse any of the issues.
Miller v Bonta is the challenge to the “assault weapon” ban, Duncan v Bonta is the challenge to the “High-Capacity Magazine” ban, and Rhode v Bonta is the challenge to the state requiring background checks for ammunition purchases.
Nguyen v Bonta is a challenge to the California “1 in 30” law limiting purchases of handguns or center-fire semi-auto rifles to 1 in 30 days. The judge has asked for briefs regarding how this case should be handled in light of the Bruen decision.
Boland v Bonta is a lawsuit challenging the California “Not-Unsafe” handgun roster. Following the first court date, the judge has requested supplemental briefs from both parties before ruling. The first brief is due in February and limited to 20 pages. The response briefs are due in March and are limited to 10 pages.
Rupp v Bonta, a challenge to the California Assault Weapon Bans, had been pending the Bruen decision. This case has been remanded back to the trial court for further proceedings consistent with the Bruen decision. This case is now scheduled behind the Miller v Bonta case, which also challenges the “Assault Weapon Ban”.
Young v Hawaii challenges the state of Hawaii carry restrictions. The certiorari petition was granted, the Supreme Court vacated the Ninth Circuit judgement, and remanded the case back to the Ninth Circuit Court of Appeals for further consideration in light of New York State Rifle and Pistol Association v Bruen. The Ninth Circuit remanded the case back to the trial court.
Doe v Bonta is a lawsuit filed by the NRA to block the release of gun owner’s personal information to UC Davis and other, unspecified, “research organizations” due to SB 173. Information has already been given to UC Davis and accidentally released to the public. The honorable Larry Alan Burns, the United States District Court Judge hearing the case, has ordered supplemental briefs regarding the effects of NYSRPA v Bruen on the standard to be used in deciding this case.
Renna v Bonta on the California Unsafe handgun roster has been remanded back to the trial court. Currently calendared for March of 2023.
Respectfully submitted,
David Smith
