Wednesday, April 13, 2016

What's New in California Gun Laws?


This proposed bill would require all gun dealers in California to install extensive surveillance systems and to maintain all video footage on site for a number of years.  It would prohibit licensed firearms dealers from operating out of their homes and would reaffirm the right of local municipalities to impose more stringent requirements on gun dealers.

The measure is working its way though the Assembly committee process.  It was watered down a little in the Committee on Public Safety last week.  Now it's headed back to the Committee on Privacy & Consumer Protection.

A previous version of the proposal would have required complete video surveillance of the interior and exterior of any licensed gun shop, including the parking lot and areas where inventory is stored, displayed or handled.  It also would have mandated that the store owner maintain all footage on site for a period of 5 years.

As amended, the latest version of the proposed law would only require gun dealers to record transactions.  The video footage must be in color and of sufficient definition to record the facial features of all buyers.  The bill's author dropped provisions that would have mandated surveillance of the exterior and areas of the shop where inventory is stored.  The period of time for which store owners would be responsible for maintaining the footage was also reduced from 5 years to 3 after the most recent amendments.

The stated purpose of the law is to discourage "straw purchases", where a buyer purchases a firearm on behalf of someone else who would be precluded from purchasing the weapon himself or herself.  The actual, intended purpose of the law is to drive California gun dealers out of business by imposing more expensive, onerous regulations.  Straw purchases are a serious problem because they contribute to weapons falling into the hands of dangerous criminals and mentally ill individuals. California already has a robust system in place, however, to track firearms back to their original purchaser if the gun later ends up in the possession of a prohibited person.  All gun buyers in California are already required to present a valid, government-issued photo ID, 2 "proof of residence" documents, and a thumb print.  The gun dealer must make photocopies of these documents and maintain them on file, along with the serial number and a description of the weapon sold. It is not clear to me how video surveillance would be of any real use in identifying an illegal buyer if the dealer already has that person's ID, home address and thumb print on file.  A government-issued photo ID with a thumb print is a much more reliable means of identification than any grainy video surveillance footage.

Current Status of Peruta v. San Diego

This is the case that turned California's CCW licensing scheme on it's head.  It's not really news, but I figured it was time to check in on its current status as this legal dispute slowly navigates our federal court system.

Here's a little background:  Prior to 2014, San Diego County, in accordance with state law, required concealed weapons permit applicants to demonstrate some "good cause" for the issuance of the license.  A permit would be denied unless the applicant could prove that he or she was at a greater risk of harm than the general population. Simply citing the need for self-defense was not sufficient to warrant the issuance of a concealed weapon license.

Mr. Peruta passed the necessary background checks but was denied a concealed firearms permit because he could not demonstrate any specific "good cause" to carry a weapon, beyond self-defense.  His attorneys argued that the state's CCW policy was overly restrictive because it effectively prohibited law-abiding adults from exercising their 2nd Amendment rights in public.  The Federal District Court in San Diego agreed.

Once the law was ruled unconstitutional in the District Court, some local sheriffs around the state immediately began issuing concealed weapons permits, under a relaxed standard, to any applicant who could demonstrate good moral character.

The 9th Circuit Court of Appeals has now taken up the matter and vacated all lower court rulings. Oral arguments were presented in June, 2015, but the court has not published its opinion yet.  An announcement could come at any time -- tomorrow, next month, next year -- your guess is as good as mine.

Until the court provides some guidance, we're left in a sort of legal purgatory.  The issue hasn't been resolved. Once the appellate court makes its ruling, it's a safe bet that the case will eventually make its way to the US Supreme Court.  Things are likely to get even muddier before we see any clarity.  Check back often for updates as they become available.

Updated 6/23/16:  The 9th Circuit delivered its ruling last week.  Judges found that the 2nd Amendment does not guarantee the right to carry concealed weapons outside of the home. Therefore, California's heightened standard for issuance of CCW permits does not unduly infringe upon the right to bear arms.  

AB-1663 & AB-1664

These two proposed laws would effectively ban the "bullet button" in CA.  I've written about them previously, here.

Both measures are currently working their way through the committee process in the State Assembly. They were approved by the Public Safety Committee on March 1, 2016 by votes of 5-2. Now they're awaiting further hearings with the Appropriations Committee. Democrats outnumber Republicans 12-5 on that panel, so their recommendation may be a foregone conclusion.

If the bills are eventually approved by the legislature, there's a good chance that they'll face a veto once they reach the governor's desk.  Jerry Brown rejected a similar proposal in 2012, noting that the measure would likely have no impact on crime and that it would impose an undue burden on lawful sportsmen in California.

8,500 CCW Permits in Orange County, 0 Incidents of Misuse

Orange County Sheriff Sandra Hutchins was among the group of county sheriffs who issued CCW permits under the relaxed standard, following the Peruta decision in San Diego. Currently, 8,500 OC residents hold licenses to carry concealed firearms.

According to an article published in the Orange County Register on 4/6/16, there have been exactly 0 reported incidents of CCW license holders misusing their weapons in Orange County.  Of the 8,500 people who carry concealed weapons daily, not a single one has pulled out his / her piece in a road rage incident or bowling dispute ("Mark it '0'! He was over the line!").

Lt. Gov. Gavin Newsom Backs Gun Control Ballot Measure

Lt. Gov. Newsom and a coalition of gun control groups claim to have collected enough signatures to qualify their proposal for the November ballot.

The initiative would outlaw the possession of high-capacity magazines and would require background checks to purchase ammunition.

California already prohibits the manufacture, importation and sales of high-capacity magazines. Gun owners who lawfully possessed the magazines before the ban, however, are currently allowed to keep them.  Newsom's proposed law would require gun owners to surrender their high-capacity magazines to police, sell them to a licensed dealer, or take them out of the state.

Since high-capacity magazines are widely available for purchase in all neighboring states (and since criminals are generally willing to break the law), prohibiting the possession of high-capacity magazines is likely to have zero actual impact on violent crime in California.

And since ammunition can easily be manufactured at home, imposing burdensome restrictions on the sale and purchase of ammo is likely to encourage more shooters to handload their own rounds in the garage.  No other state currently requires background checks to purchase ammo.

The whole initiative reeks of an opportunistic career politician, desperate for media attention in an election year.  Imposing more complicated restrictions on law-abiding gun owners is unlikely to have any appreciable effect on crime.  As previously noted, all of the items described in Gavin Newsom's proposed law are widely available for purchase in every state that borders California. Since criminals are generally undeterred by pesky things like "laws", they will continue to acquire and import those items at will.  News flash: felons are already prohibited from possessing firearms and ammunition in California.  This law will not prevent bad guys from gaining access to guns.  It will, however, make shooting sports more expensive and inconvenient for the rest of us.

If you or a loved one has questions about guns or weapons in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.

Orange County Gun Lawyer

Thursday, April 7, 2016

Fullerton Police Use New Oral Swabs to Test Drivers for Drugs

The Fullerton Police Department has been participating in a pilot program to test some new anti-DUI technology. Since 2013, the agency has experimented with oral swabs that supposedly detect the presence of marijuana, cocaine, amphetamine, opiates and benzodiazepine (Xanax) in a suspect's saliva.

The tests may indicate the presence or absence of specific drugs in the suspect's saliva, but they do not reliably measure the quantity or concentration of those drugs. Since they cannot accurately quantify the drugs that they detect, they are not very helpful in determining the suspect's actual degree of impairment. Clinical tests have also delivered very mixed results regarding the reliability of the new tests. The vice president of one company that manufactures the machines claims that his product is 99% accurate. The Sacramento PD, however, has had another experience. In one study, the department tested 34 drivers. Of those 34, 6 tested falsely positive and one tested falsely negative for drugs.

For now, the new oral swabs are only used as an investigative tool to help the police establish "probable cause" to make an arrest. Once the police have a good reason to believe that their suspect is driving a car while impaired, the suspect is arrested and transported to jail, where more reliable blood tests can be administered.

In California, there is currently no legal limit to clearly define when a driver is "impaired" by THC, amphetamine or other drugs. In order to sustain a conviction for driving under the influence of drugs, prosecutors must prove that the driver was so impaired by some substance -- or by some combination of substances -- that he could not operate his vehicle with the skill and care of an ordinary, sober driver (whatever that means). Typically, police will draw blood from subjects who they've arrested on suspicion of drugged driving. They will prepare reports to detail their observations of the subject.  Those reports will describe the subject's driving and performance on field sobriety tests. Based on the results of blood tests, combined with the totality of the officer's personal observations, prosecutors will attempt to prove that the subject was too impaired to safely drive a car.

The new oral swabs are one more piece of the puzzle that prosecutors will now use to combat drugged driving.  Driving under the influence of drugs is one of the hottest, most talked-about issues in local policing today.  Somebody recently decided that "Satanic death cults" are passe. "Driving under the influence of drugs" is the new danger lurking in suburbia. The Orange County District Attorney has deputies specifically assigned to prosecute these kinds of cases full-time. They receive grants from MADD to fund their efforts. The grants create a financial incentive for law enforcement agencies to devote disproportionate resources to combat a problem that may or may not actually exist (and to convict people who may or may not actually be dangerous).

If you or a loved one is accused of DUI or driving under the influence of drugs in Orange County, call us for a free consultation. (714) 449-3335. Ask for John. Thanks for reading.

Fullerton DUI Lawyer