Generations Firearm- Legislative Notes

Remember the only way to test a law is through trial

SB 1243 makes legal the defensive display of a firearm for the purpose of deescalating a potentially violent conflict. This statute makes it legal for law-abiding gun owners to display their firearm to someone threatening them or a loved one.

SB 1113 will allow right-to-carry permit holders to carry a gun into restaurants and bars as long as they don't consume alcohol and as long as the establishments don’t have prohibitive signage posted. This measure will allow RTC permit holders to defend themselves and their families while dining out.

SB 1168. The bill allows gun owners to keep firearms in their locked vehicles while parked in a publicly-accessible parking lot.

Legislative Notes

FACT SHEET FOR S.B. 1243

justification; defensive display of firearm

Purpose:



            Justifies the defensive display of a firearm under specific circumstances.

Background:

            It is unlawful for a person to threaten or intimidate, by word or conduct, to cause physical injury to another person, punishable as a class 1 misdemeanor (A.R.S. § 13-1202). A person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect oneself against the use or attempted use of unlawful physical force.

Justification defenses describe conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct. Arizona law codifies many of these justification defenses, including self-defense, defense of others or property, threatening or use of force in crime prevention and duress (A.R.S. Title 13, Chapter 4). Justification defenses are not affirmative defenses and a defendant must prove any affirmative defense by a preponderance of the evidence. If evidence of justification is presented by the defendant, the state must prove beyond a reasonable doubt that the defendant did not act with justification (A.R.S. § 13-205).

A.R.S. § 13-706 classifies the following offenses as a serious offense: 1) first degree murder; 2) second degree murder; 3) manslaughter; 4) aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument; 5) sexual assault; 6) any dangerous crime against children; 7) arson of an occupied structure; 8) armed robbery; 9) burglary in the first degree; 10) kidnapping; and 11) sexual conduct with a minor under 15 years of age. A violent crime is classified as any criminal act that results in death or physical injury or any criminal use of a deadly weapon or dangerous instrument (A.R.S. § 13-901.03).

A.R.S. § 13-105 defines firearm as any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will expel, is designed to expel or may readily be converted to expel a projectile by the action of an explosive. Firearm does not include a firearm in permanently inoperable condition.

In 2008, former Governor Janet Napolitano vetoed H.B. 2629 relating to the defensive display of a firearm. The Governor states in her veto message that H.B. 2629 is a dangerous escalation that would put the public’s safety and law enforcement at risk by creating the ability to display, take hold of and expose a firearm during a verbal dispute. The Governor also indicated that H.B. 2629 is largely unnecessary because current justification laws allow, with some exceptions, a person to display a firearm against another person if a reasonable person in his circumstance would believe he is under the threat of deadly physical force.

            There is no anticipated fiscal impact to the state General Fund associated with this legislation.

Provisions:

1.      Justifies the defensive display of a firearm by a person against another, when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against use or attempted use of unlawful physical or deadly force unless the person does any of the following:

a)      intentionally provokes another person to use or attempt to use unlawful physical force.

b)      uses a firearm during the commission of a serious offense or violent crime.

2.      Specifies that there is no requirement for the defensive display of a firearm before the use of physical force or threatened use of physical force by a person who is otherwise justified in the use or threatened use of physical force.

3.      Defines defensive display of a firearm as:

a)      verbally informing another person that the person possesses or has available a firearm.

b)      exposing or displaying a firearm in a manner that a reasonable person would understand was meant to protect the person against another’s use or attempted use of unlawful or deadly physical force.

c)      placing the person’s hand on a firearm while the firearm is contained in a holster, pocket, purse or other means of containment or transport.

4.      Becomes effective on the general effective date.

Prepared by Senate Research

June 4, 2009

DPH/ly

ARIZONA STATE SENATE

Forty-ninth Legislature, First Regular Session

AMENDED

FACT SHEET FOR S.B. 1113

handguns; restaurants; posting

(NOW: restaurants; handguns; posting)

Purpose



            Allows, under specified circumstances, a person with a concealed carry weapons (CCW) permit to carry a concealed handgun into the licensed premises of an on-sale retailer (an establishment that sells alcohol for consumption on or off the premises). Makes changes to permit requirements for reserve officers as well as classifications and liability involving weapons on the on-sale retail premises.

Background

The Department of Public Safety (DPS) issues a CCW permit to an applicant who meets the following eligibility requirements: a) is a resident of Arizona or a U.S. citizen; b) is 21 years of age or older; c) is not under indictment for and has not been convicted in any jurisdiction of a felony; d) does not suffer from mental illness and has not been adjudicated mentally incompetent or committed to a mental institution; e) is not unlawfully present in the U.S.; and f) satisfactorily completes a firearms safety training program approved by DPS (A.R.S. § 13-3112).

Statute prohibits possession of a firearm on the licensed premises of an on-sale retailer, with specified exceptions. It also prohibits a licensee or employee of a licensee from serving, selling or furnishing spirituous liquor to a person who is in possession of a firearm while on the licensed premises of an on-sale retailer, with some exceptions. A violation of these provisions is a class 2 misdemeanor (A.R.S. § 4-246). Statute defines an on-sale retailer as any person operating an establishment where spirituous liquors are sold in the original container for consumption on or off the premises or in individual portions for consumption on the premises (A.R.S. § 4-101(24)).



            In 2005, Governor Janet Napolitano vetoed S.B. 1363, which would have allowed possession of a firearm on the premises of an on-sale retailer if the licensee had not posted a notice prohibiting it and would have prohibited a person in possession of a firearm on the premises of an on-sale liquor retailer from consuming spirituous liquor. The Governor noted in her veto message that, although she supports the Second Amendment, she could not support this legislation because the concerns of Arizona’s law enforcement organizations and the property owners that would be affected by the legislation were not addressed.

             Any potential fiscal impact is undetermined at this time, but an increase in penalties for certain violations may increase incarceration.

Provisions

Handguns in Restaurants

1.      Allows a CCW permit holder, volunteer posse or reserve members with Arizona Peace Officer Standards and Training Board (AzPOST) approved firearms training and former law enforcement officers, under specified circumstances, to carry a concealed handgun into the on-sale retail premises where food is sold for on-site consumption prepared in a kitchen located on the premises, unless the licensee posts a sign at the primary entrance or entrances prohibiting the possession of weapons on the premises.

2.      Requires, for prohibiting firearms on the on-sale retail premises, the signs:

a)      be posted in a conspicuous location.

b)      contain a pictogram showing a firearm within a red circle and a diagonal red line across the firearm.

c)      contain the words “NO FIREARMS ALLOWED PURSUANT TO A.R.S. § 4-229”, with the letters to be at least three fourths of a vertical inch and all other letters to be at least one half of a vertical inch.

d)     be composed of block capital letters printed in black on white laminated paper at a minimum weight of one hundred ten pound index.

e)      lettering and pictogram to consume a space at least six inches by nine inches.

3.      Permits, notwithstanding posting requirements, a person in possession of a handgun to enter the licensed premises for a limited time for the specific purpose of seeking emergency aid or determining whether a sign prohibiting firearms has been posted.

4.      Classifies, as a class 3 misdemeanor, the consumption of alcohol by a person in possession of a firearm while on the licensed premises of an on-sale retailer.

5.      Exempts from a violation a) an on-duty sheriff’s volunteer posse member who has received AzPOST approved firearms training and possesses a firearm while on the licensed premises of an on-sale retailer knowing such possession is prohibited, and b) a licensee or employee who knowingly serves alcohol to the sheriff’s volunteer posse member.

6.      Removes the defense that a licensee or employee “requested assistance” of a peace officer to remove a person from the lawful exhibition or display of a firearm in conjunction with a meeting, show, class or similar event, and applies the “requested assistance” defense to a violation by a licensee or employee who knowingly permits a person in possession of a firearm to remain on the licensed premises or serves, sells or furnishes alcohol to a person in possession of a firearm on the licensed premises.

7.      Specifies that an on-sale retailer who does not post a sign prohibiting weapons is not liable in damages to any person who is injured or to the survivors of any person killed or for property damage which is alleged to have been caused by another’s actions involving a handgun on the on-sale retailer’s licensed premises unless the on-sale retailer is grossly negligent or acts willfully and maliciously with intent to harm.

Reserve Officers

8.      Allows the sheriff to authorize members of the sheriff’s volunteer posse who have received and passed firearms training approved by the AzPOST to carry a deadly weapon without a CCW permit while on duty.

9.      Excludes the following persons from misconduct involving weapons charges as a result of carrying a concealed deadly weapon without a permit:

a)      a member of the sheriff’s volunteer posse or reserve organization who has received and passed firearms training that is approved by AzPOST and who is authorized by the sheriff to carry a concealed weapon.

b)      an individual who has honorably served as a law enforcement officer in the U.S. for at least ten consecutive years and who can produce law enforcement photographic identification stating this service.

10. Excludes from CCW permit training requirements a person who is an AzPOST certified full authority peace officer and who volunteers in a law enforcement agency’s reserve program.

11. Specifies that, notwithstanding any other law and except for statutory restrictions, a peace officer shall not be prohibited from carrying a firearm if the peace officer is in compliance with AzPOST firearm requirements.

12. Increases, from a class 3 to a class 2 felony, the offense of misconduct involving weapons in furtherance of any act of terrorism or knowing or having reason to know that the deadly weapon will be used to facilitate any act of terrorism.

Miscellaneous

13. Makes technical and conforming changes.

14. Becomes effective on signature of the Governor.

Amendments Adopted by Committee

·    Adopted the strike everything amendment.

Amendments Adopted by the Committee of the Whole

1.      Expands the persons exempted from CCW training requirements, carrying a deadly weapon without a CCW permit and possessing a firearm on the on-sale retailer’s licensed premises.

2.      Changes sign requirements for an on-sale retailer who prohibits firearms.

3.      Changes the liability provisions for an on-sale retailer who allows weapons.

Senate Action

JUD                 6/8/09     DPA/SE     4-3-0-0

3^rd Read           6/16/09                     18-10-2-0

Prepared by Senate Research

June 29, 2009

CEW/DPH/tam

House of Representatives

SB 1168

federal monies; report

Now: storage; firearms; motor vehicles

Sponsor: Senator Pearce R

DPA S/E

Committee on Appropriations

DPA

Caucus and COW

X

As Transmitted to the Governor

SB 1168 prevents property owners, tenants, employers and businesses from prohibiting the storage or transport of lawfully possessed firearms in locked and privately-owned vehicles parked in a parking lot, parking garage, or other designated parking area.

History

Arizona Revised Statutes (A.R.S.) § 13-3101 defines deadly weapon as “anything that is designed for lethal use, including a firearm.” A.R.S. § 13-3102 outlines misconduct involving deadly weapons. Actions that are classified as misconduct involving deadly weapons include knowingly:

Ø      Carrying a concealed weapon without a permit;

Ø      Manufacturing, possessing, transporting, selling or transferring a prohibited weapon;

Ø      Possessing a deadly weapon if the person is a prohibited possessor;

Ø      Selling or transferring a deadly weapon to a prohibited possessor;

Ø      Defacing a deadly weapon;

Ø      Using or possessing a deadly weapon during any felony drug offense;

Ø      Discharging a firearm at an occupied structure to assist a criminal street gang, syndicate or racketeering enterprise;

Ø      Carrying a deadly weapon in a public establishment or public event after being asked by the operator of the establishment or sponsor of the event to remove the weapon;

Ø      Entering a public polling place with a deadly weapon;

Ø      Possessing a deadly weapon on school grounds;

Ø      Entering a nuclear or hydroelectric generating station with a deadly weapon;

Ø      Supplying, selling or giving possession or control of a firearm to another person if it is known that the other person will use the firearm in the commission of any felony; and

Ø      Using, possessing or exercising control over a deadly weapon in an act of terrorism.

A.R.S. § 13-3108 outlines the ordinances, rules or taxes that a political subdivision of this state is permitted to enact relating to the transportation, possession, carrying, sale, transfer or use of firearms. It also prohibits a political subdivision from requiring the licensing or registration of firearms. Under A.R.S. § 13-3108, a political subdivision of the state cannot ban the ownership, purchase, sale or transfer of firearms.

Provisions

·          Mandates that a property owner, tenant, public or private employer, and business entity shall not establish, maintain or enforce a policy that prohibits a person from lawfully transporting or storing any firearm that is both:

Ø      In the person’s locked and privately owned motor vehicle or in a locked compartment on the person’s privately owned motorcycle.

Ø      Not visible from the outside of the motor vehicle or motorcycle.

·          Stipulates that any policy or rule that is established or maintained, or that the attempted enforcement of any policy or rule that would violate the prescribed mandate, is null and void, and is deemed contrary to public policy.

·          Specifies inapplicability stemming from state and federal prohibition, motor vehicle ownership and the following:

Ø      Property owners, tenants, public or private employers or businesses that provide a parking lot, parking garage or other area designated for parking motor vehicles that;

v      Are secured by a fence or other physical barrier;

v      Limit access by a guard or other security measure;

v      Provide temporary and secure firearm storage; and

v      Allow for the immediate retrieval of the firearm on exit from the premises.

Ø      Property owners, tenants, public or private employers or businesses that:

v      Provide alternate parking in a location reasonably proximate to the primary parking area: and

v      Do not charge a fee for such parking.

Ø      Nuclear Generating stations that:

v      Have a secured and gated or fenced parking lot, parking garage or other area designated for parking motor vehicles; and

v      Provide temporary and secure firearm storage.

Ø      Parking lots, parking garages or other areas designated for parking motor vehicles that are on an owner or tenant occupied single family detached residence.

Ø      Department of Defense contractors located in whole or in part on a U.S. military installation.

Ø      Includes a legislative intent clause.

---------- DOCUMENT FOOTER ---------

Forty-ninth Legislature

First Regular Session 2          July 2, 2009

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Generations Firearm

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“A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

- Second Amendment to the Constitution