AZ CCW News

July 31, 2009

Alan Korwin Friday, 17 July 2009

All anti-rights bills defeated, some pro-rights bills died

Waiting until the last possible moment, Arizona governor Jan Brewer on July 13 signed all eight gun-related bills enacted by the state legislature in 2009. Two crucial bills, Constitutional Carry and penalty reduction for discreet carry without a permit, failed passage at the last minute and didn’t make it to her desk. The eight bills signed into law, which will become effective on Sep. 30, 2009 (except SB 1242, effective immediately), are:

• HB 2569   Smuggling people for profit, involving a deadly weapon
• SB 1113   CCW in liquor-licensed places OK without drinking, unless no-gun signs
• SB 1088   Domestic violence protection extended to romantic or sexual partners
• SB 1168   Parking lots cannot ban firearms locked in vehicles, with exceptions
• SB 1242   Exemptions from CCW and more for more “proper authorities”
• SB 1243   Defensive display of a firearm in self defense defined and protected
• SB 1437   AZ High School Marksmanship Program instructor definition expanded
• SB 1449   Retroactive self-defense clarification (Harold Fish law)

At least 14 gun-related bills were introduced this year, with the few anti-rights bills repudiated early in the session and defeated. One other pro-rights bill died at the end, the effort to reduce required classes to three or four hours for people already well trained in gun use through military, police or private programs. Some 20 legislators walked out very late on the final session (which went all night and ended at 7:30 a.m.) stealing away votes that had been verbally committed and were needed for passage of that and the petty offense amendment for discreet carry without a permit. The pro-rights people were left with 30 votes, and needed 31 to pass the laws.

The entire session was run in a bizarre manner — no legislative work for months in the Senate while the Napolitano deficit was being resolved, then an impossibly crowded and rushed legislative calendar in the final few weeks, with no room for error, adjustment or contemplation. The procedures were a disgraceful humiliating embarrassment to good governance.

Constitutional Carry, which would have allowed law-abiding Arizonans to carry a firearm discreetly — with the same freedom they’ve had since statehood in 1912 to carry openly — got tied up in the Rules committee in the closing days of the session. A late amendment to the bill, which created a conflict with federal law, forced Rules to hold the bill and there wasn’t enough time left in the session to make the needed changes.

The amendment was added by Judiciary chairman Jonathan Paton (R-Tucson), normally a good supporter of RKBA, who insisted he wouldn’t hear the bill without the new language. The amendment criminalized smuggling guns across the Mexican border, which DPS wants even though it’s a federal matter. That carrot might have helped move the cart on Constitutional Carry, which DPS is basically against, but in the end scuttled the bill.

Following standard practice, this year’s changes will be produced as an insert and included with copies of The Arizona Gun Owner’s Guide, posted on our website, and available as a formatted pdf file or plain text for downloading. This is a preliminary analysis for review and comment.

Summarizing this year’s changes:

43, 71, 79, 80 / SB 1113 / §§ 4-229, 4-244, 4-246, 11-441, 13-3102,
13-3112, 38-1102. Carry in restaurants for CCW permitees only

CCW-permit holders can carry in places licensed to serve alcohol, unless the places post official signs from the Dept. of Liquor Licenses banning entry to anyone with a firearm. The ban was written broadly enough to prohibit anyone from carrying, even on-duty police or employees, if signs are posted.

If access is not banned and you possess a firearm, you may not drink. If you enter you have an affirmative defense against prosecution (meaning you must prove your innocence) if you were not informed of the ban, the sign fell down, the sign was posted less than 30 days before you were charged, or you weren’t a resident of the state. The exemption for going in to seek aid in an emergency has been preserved, and you have permission to go in far enough to see if there’s a sign posted.

You can expect to see No Guns Allowed signs springing up all over the state, featuring official wording and an image of a gun inside a red circle with a slash through it. Drinking while carrying in a liquor-serving establishment, or carrying in such a place if it’s posted for no guns, is a class 3 misdemeanor.

The guns-in-restaurants bill also says: Members of a sheriff’s volunteer posse who have received specified training (AZPOST) can bear arms while on duty, with conditions. A U.S. law enforcement officer with 10 consecutive years of service and a special picture ID can carry concealed without a permit, and their most recent law-enforcement employer must issue the card on request. AZPOST-certified LEOs who volunteer for their agency’s reserve program are exempt from taking the CCW training program. Misconduct with weapons in an act of terrorism is raised to a class 2 felony. Note that terrorism is broadly defined (§13-2301) and this law could be applied beyond the common understanding of terrorism (e.g., a felony with a firearm intended to influence policy or affect the conduct of the state). Another extra guarantee against localities banning LEOs from carrying firearms has been added.

24 / SB 1088 / §13-3601 / Domestic violence expansion

Penalties for domestic-violence offenses, including restraining orders and firearms confiscations, can now be applied, in addition to problems between family members, to people who are or were in “a romantic or sexual relationship.” The law is a response to the case of a woman murdered by her boyfriend. A restraining order was unavailable because they weren’t married. It’s unclear, as always, how much a piece of paper from a court would have influenced a murderer. Now, people in a casual relationship have an enormously powerful weapon they can use on each other in the event of a quarrel — confiscation of any collection of arms and a ban on possession. Questions linger as to how much of a relationship qualifies, which the statute left ambiguous.

55, 70 / SB 1168 / §12-781 / Ban on prohibiting guns in parked vehicles

It’s unlawful for a property owner, tenant, public or private employer or business entity (called the “responsible party” below for brevity) to create a policy or rule that prevents a person from lawfully transporting or storing any firearm in a privately owned motor vehicle if:

1 – the vehicle is locked or the firearm is in a locked compartment on a motorcycle;

2 – the firearm is not visible. Any attempt to do so is null, void, unenforceable and without legal effect.

The ban on gun bans in private vehicles doesn’t apply under four conditions:

1 – possession of the firearm is already banned under federal or state law;

2 – the vehicle is owned or leased by the responsible party
in which case the ban is at their discretion;

3 – the responsible party has a facility secured by a fence or other physical barrier, and also limits access by a guard or other security measure, and the responsible party
provides secure storage with ready access and retrieval, similar to the gun-locker rules for public buildings and events;

4 – compliance with this statute would violate another applicable federal or state law. Nuclear generating stations must comply with gun-locker requirements.

The parking area for a single-family detached residence is exempt from this law. Department of Defense contractors whose property is located wholly or partially on a military base are exempt from this law. A responsible party can provide an alternate parking facility close to the main facility, ban firearms at the main one, and allow them at the alternate facility, as long as they don’t charge any extra fee.

Anticipating possible legal challenges from large corporations or other property owners whose parking space is open to the public, the legislature included a six-point set of findings, rare in state bills, to clarify that:

1 – the state and federal Constitutions provide strong protection for the
fundamental right to keep and bear arms for self defense;

2 – the enjoyment of this right is impaired if people are deprived the right to keep arms in
their vehicles;

3 – people are deprived of their rights if firearms cannot be kept in their private vehicles;

4 – your locked private vehicle is private, not a public space, you have the right to furnish it any way you like that is legal to enhance your comfort, security, ease of movement and
enjoyment of liberty;

5 – parking lot operators are not unduly burdened by the presence of legally possessed property secured within the vehicle by its owner;

6 – this act is for the benefit and protection of people who choose to exercise and enforce their fundamental right to bear arms in self defense in their movements throughout this state, including in their personal motor vehicles.

114 / SB 1243 / §13-421 / Defensive display of firearms protection

“Defensive display of a firearm” means:

1 – Verbally telling someone that you have a firearm or can get one;

2 – Exposing or displaying a gun in a way that a reasonable person would understand means you can protect yourself against illegal physical or deadly physical force;

3 – Placing your hand on a firearm while it is in your pocket, purse or other means of
containment or transport.

Defensive display is justified when and to the extent a reasonable person would believe physical force is immediately necessary to protect yourself against another person’s use or attempted use of unlawful physical or deadly physical force. A defensive display is not required before using or threatening physical force, in a situation where you would be justified in using or threatening physical force.

Defensive display is not justified if you intentionally provoke the other person, or if you use a firearm in the commission of a serious offense or violent crime (defined in §13-706 and §13-901.3).

This important new law clarifies that a proper defensive reach for or announcement of firearm possession is an acceptable element in the continuum of self defense, and should not be charged as a crime. Improper display of a firearm can be anything from a class 1 misdemeanor (e.g., disorderly conduct) to a class 3 felony (e.g., aggravated assault). It also helps balance out the problematic and arbitrary “threatening exhibition” of a gun allegation that prosecutors can make in charging a felony as a “dangerous offense” (§13-702 and 704). The threat of this extra charge can be used to coerce a plea agreement, and now this is balanced with a specified stipulation of proper display of a gun without firing at a potential assailant.

44 / SB 1437 / §15-714.01 / High school marksmanship training expansion

Instructors for the Arizona Gun Safety Program, a marksmanship course for high school students, can be certified by a national association of firearms owners, in addition to the Arizona Game and Fish Dept.

SB 1449 / Retroactive self defense (Harold Fish law)

In certain cases, “Laws 2006, chapter 199 applies retroactively… regardless of when the conduct underlying the charges occurred.”

The state enacted amendments in 2006 to make it clear that, if a person claims self defense, the state must prove beyond a reasonable doubt that the defendant acted without justification (the appropriate “innocent until proven guilty” standard). One of the laws amended, which had been quietly slipped in by prosecutors without review ten years earlier, forced a defendant to prove innocence, the exact opposite of what American laws
should be (it made you guilty unless you could prove your innocence, a tyrannical standard). Part of these changes became known as the Castle Doctrine — you can stand your ground if attacked, intruders in your home are a legally recognized threat, and self defense was to receive robust protection under the law.

The new rules were supposed to protect people in a predicament like Harold Fish, a school teacher with a clean record out hiking in May 2004. He was attacked by a homeless known troublemaker with violent dogs on a forest trail outside Payson. Mr. Fish, who survived by shooting his assailant three times in the chest at close range, was at first released in what appeared an obvious self defense, but was then attacked by the county attorney, in a trial that reeked of unfairness.

The legislature is here making it clear that people are entitled to the full protection of the law, and the public’s safety will likely be enhanced with this small measure that serves notice on the powers that be. Other problems, like failure to fully inform juries, bad jury instructions, exclusion of exculpatory or illuminating evidence, exorbitant cost and inordinate timeframes, and other potholes in the criminal justice system remain to be fixed.

HB 2569 (§13-2319) and SB 1242 (§13-3102)

Two additional gun laws will affect the statutes in the back of The Arizona Gun Owner’s Guide, but have little direct impact on the general public or the text of the book. §13-2319 is amended to make smuggling people for profit or a commercial purpose a class 2 felony if the offense “involved the use of a deadly weapon or dangerous instrument.” In §13-3102, we find that more “proper authorities” have been exempted from gun laws that restrict the public, like carrying without a permit, concealed carry
in a car without a permit, making, having, transporting or selling prohibited weapons, having a defaced deadly weapon, entering a public establishment or public event with a deadly weapon after being told not to, and more. The new crop of exempt special people includes community correctional officers, detention officers, and special investigators with
DOC or the Dept. of Juvenile Corrections. Other sections of the bill repeat language found in SB 1113, a common practice to help assure passage (if one bill fails, the language gets through in the other bill).

It’s interesting to note that, at the federal level, a growth process like this took place for decades, with a new batch of people added 32 times, until the statute grew so embarrassingly long (one sentence of 741 words) Congress shortened the law by 610 words, cutting out all the named groups, but expanded the impact by simply making it applicable to “any officer or employee of the United States. That statute, 18 USC §1114, makes it a greater crime to kill them than to kill you or me. How that comports with
equal protection under the law is unclear.

Author: Alan Korwin.

Alan Korwin is a founder and two-term past president of the Arizona Book Publishing Association, which has presented him with its Visionary Leadership award, named in his honor, the Korwin Award. He is active with the speaker’s bureau for the non-profit, Wash., D.C.-based news-media watchdog, Accuracy In Media.

Alan’s first book, The Arizona Gun Owner’s Guide , is now in its 23rd edition with more than 100,000 copies in print. He went on to write or co-write seven more books on gun laws, including state guides for California , Florida , Texas and Virginia , the unabridged federal guide Gun Laws of America , and his 11th, which debuted at the 2008 Gun Rights Policy Conference, The Heller Case: Gun Rights Affirmed!

Alan’s blog, PageNine.org, is carried by dozens of paper and online outlets.