CONCEALED WEAPON LICENSES

House Bill 4530 as passed by the House

Sponsor: Rep. Michael Green

House Bill 4532 as passed by the House

Sponsor: Rep. Steve Vear

House Bill 4533 as passed by the House

Sponsor: Rep. Gloria Schermesser

House Bill 4534 as passed by the House

Sponsor: Rep. Michael Kowall

House Bill 4535 as passed by the House

Sponsor: Rep. Sue Tabor

House Bill 4537 as passed by the House

Sponsor: Rep. Stephen Ehardt

House Bill 4538 as passed by the House

Sponsor: Rep. Ken Bradstreet

House Bill 4545 as passed by the House

Sponsor: Rep. Eileen DeHart

Committee: Conservation and Outdoor

House Bill 4531 as passed by the House

Sponsor: Rep. Gene DeRossett

House Bill 4536 as passed by the House

Sponsor: Rep. Rick Johnson

House Bill 4540 as passed by the House

Sponsor: Rep. Bruce Patterson

House Bill 4542 as passed by the House

Sponsor: Rep. Larry Julian

House Bill 4543 as passed by the House

Sponsor: Rep. Raymond Basham

House Bill 4544 as passed by the House

Sponsor: Rep. Jim Howell

House Bill 4634 as passed by the House

Sponsor: Rep. Jennifer Faunce

Committee: Constitutional Law and Ethics

Second Analysis (7-26-99)THE APPARENT PROBLEM:

Many citizens view as unfair current laws which grant county "gun boards" the entire authority for reviewing applications for carrying concealed weapons (CCW). They cite the fact that not only must a person who applies for a license establish that he or she is qualified, he or she also has the burden of establishing that there is a special need for such a license. Also, it is maintained that, while some county gun boards have liberal policies and grant thousands of licenses each year, other boards are extremely restrictive in their policies and grant licenses only to certain citizens, such as elected officials or former police officers.

Under current law, there are 83 separate county CCW licensing boards. Each board has three members, representing the sheriff, prosecutor, and state police. (For details on current requirements, see Background Information.) Many people believe that each of these gun boards should be required to use uniform standards for granting CCW licenses. In response, legislation has been introduced to require that specific

criteria be used to determine whether a CCW license should be granted.

The legislation on CCW licensing boards is intended to provide uniform standards across the state. However, since it is anticipated that it would have the effect of increasing the number of CCW permits issued in the state, some people maintain that such proposals should be "balanced" by legislation that would provide stricter penalties for various violations of the state's gun laws. In addition, some gun owners maintain that current restrictions under the Natural Resources and Environmental Protection Act (NREPA) and the Penal Code regarding the transportation of firearms is confusing. For example, under the NREPA, a person may carry a hunting weapon while going to and from a hunting or target

shooting area if the weapon is unloaded and enclosed in a case or the trunk of a vehicle; and under the Penal Code a person may transport firearms only for certain purposes, but only if a person has a hunting license, to and from a place of repair, from the place of purchase, or from one place of business, or a home, to another. It has been suggested that these laws could be clarified.

THE CONTENT OF THE BILLS:

Currently, licenses to carry concealed weapons are issued by one of 83 separate county "gun boards." An applicant has the burden of establishing that he or she has a special need for such a license. House Bill 4530 would amend the handgun licensure act (MCL 28.421 et al.) to change the rules and procedures by which citizens may apply for and receive licenses to carry concealed weapons. House Bills 4534, 4535, 4536, 4540, 4542, 4543, 4544, and 4634 would amend the Michigan Penal Code (MCL 750.226 et al.) to increase the penalties for various violations, and to add a new section to the code making it a felony to have an unregistered firearm.

In addition, House Bills 4531, 4532, 4533, 4537. 4538 and 4545 would amend various acts: some to delete current restrictions regarding the transportation of firearms; some to conform to the provisions of House Bill 4530; others to exempt certain information concerning concealed weapon licenses from provisions of the Open Meetings Act and the Freedom of Information Act, to establish civil liability for law enforcement agencies when they lost or damaged pistols that had been seized, and to establish a fund to reimburse county prosecuting attorneys for expenses involving firearm crimes. These bills are each tie-barred to House Bill 4530. All the bills would take effect on September 30, 1999.

House Bill 4530

House Bill 4530 would amend the title of the handgun licensure act to specify that certain conduct against individuals applying for or receiving concealed weapon permits, or against individuals who acted -- or refused to act -- as references for these individuals, would be prohibited; and to prescribe remedies and penalties. In addition, among other provisions, the bill would replace current provisions concerning concealed weapons licenses with provisions that would:

• Require that county sheriffs, local law enforcement agencies, and county clerks issue license application kits to all applicants.




• Require that each handgun licensing board issue a license if a person is a U.S. citizen, is 21 years of age (or age 18 to 21 if required for employment), has never been convicted of a felony, has never been committed due to mental illness or found guilty but mentally ill of a crime, and meets other specific requirements.




• Permit an applicant to appeal a denial or restriction to the circuit court for the judicial district in which the applicant lived.




• Require that the Department of State Police create and maintain a computerized data base to keep track of applicants.




• Require that license applicants complete a firearm safety education course that has 8 hours of instruction and 3 hours of shooting range time.




• Require that a license be revoked if a licensee is charged with legal intoxication, and require license suspension for other misdemeanors involving intoxication.




• Prohibit a licensee from carrying a concealed weapon in certain public places, such as a school, theater, sports arena, library, or hospital, which have posted "no concealed weapons allowed" signs.




Legislative Intent. The legislation states that: "It is the intent of the legislature to create a standardized system for issuing concealed pistol licenses to prevent criminals and other violent individuals from obtaining

licenses to carry a concealed pistol, to allow law abiding residents to obtain a license to carry a concealed pistol, and to prescribe the rights and responsibilities of individuals who have obtained a license to carry a concealed pistol. It is also the intent of the legislature to grant an applicant the right to know why his or her application for a concealed pistol license is denied and to create a process by which an applicant may appeal that denial."




County Concealed Weapon Licensing Boards. Under House Bill 4530, each county would continue to have a concealed weapon licensing board with exclusive authority over issuing or denying licenses to carry a concealed pistol to residents of that county. The boards would review the concealed weapon license applications of county residents, determine whether or not to issue a license, and perform other duties as required by law. The boards would continue to have the following persons or their designees as members: the county prosecuting attorney, the county sheriff, and the director of the Department of State Police. The prosecuting attorney or his or her designee would act as the board's chairperson and the county clerk would serve as the clerk of the board. Two members would constitute a quorum; however, the business of the board would be conducted by a majority vote of all of its members.




Record Purchase Requirements. An individual who received a license to carry a concealed pistol under the bill would not be required to also get a license to purchase, carry, or transport a pistol. If a person with a license purchased a pistol, the seller would have to complete a sales record in triplicate as provided by the state police, including the individual's concealed weapon license number. The seller would retain one copy of the record, provide a copy to the purchaser and forward the original to the state police within 10 days of the purchase. The state police would be able to promulgate rules to implement this. The triplicate record purchase requirements would not apply to wholesalers or those purchasing antiques. A person who made a materially false statement on a sales record would be guilty of a felony punishable by imprisonment for up to four years, a fine of up to $2,500, or both.

Application for license. In order to receive a license to carry a concealed pistol, an individual would have to obtain and complete an application form provided by the director of the Department of State Police. County sheriffs, local law enforcement agencies, and county clerks would be required to provide an application kit during normal business hours to anyone who wanted to apply for a license to carry a concealed pistol. The kit would contain an application form, fingerprint cards, and written information regarding the procedures involved in obtaining a license, including where the individual could receive the necessary training to qualify for such a license, the applicant's right to appeal the denial of a license, and the form required for making an appeal. An individual who was denied an application kit and obtained an order of mandamus, directing the licensing board to provide him or her with the kit, would be awarded actual and reasonable costs, plus attorney fees, for obtaining the order. The concealed weapon licensing board would be required to retain a copy of each application as an official record.




Information received by a concealed weapon licensing board would be considered confidential and could not be disclosed except for the purposes of the act. The applicant would be able to indicate on the application form whether he or she needed a temporary license while waiting for the regular license to be issued. The applicant would have to file the completed application with the county clerk during normal business hours. The licensing board would have to provide each applicant with a copy of a compilation of the state's firearms laws created by the Legislative Service Bureau. The compilation would be provided to the applicant at the time the application was submitted and the board would have to require the applicant to sign a written statement indicating that he or she had received a copy of the compilation. An individual would not be eligible to receive a license until he or she had signed the statement.




The application would have to be signed under oath and include the following: the applicant's legal name and the address of his or her primary residence, and, if appropriate, a statement indicating that the applicant resides in a city, village, or township that has a police department. Certain testimony would have to be included with the application, such as statements indicating the following:




• that the applicant met the criteria for a license to carry a concealed pistol,




• whether the applicant has a history of mental illness that would disqualify him or her from receiving a license ("mental illness" would be defined under the bill to mean a substantial disorder of thought or mood that significantly impaired judgment, behavior, capacity to recognize reality, or ability to cope with

the ordinary demands of life, and which would include -- but not be limited to -- clinical depression.),




• whether the applicant has been convicted in this state or elsewhere for an assaultive crime,




• whether the applicant had been dishonorably discharged from the U.S. Armed Forces,




• whether the applicant sought a temporary license, pending issuance of a regular license, and the facts supporting issuance of the temporary license,




• the names, residential addresses, and telephone numbers of two references,




• that the concealed weapon licensing board would have access to any record relating to the applicant's eligibility to receive a license, and to the applicant's medical records that relate to his or her statements about history of mental illness. However, the applicant could request that these records or information be reviewed by the board in a closed session which the applicant and his or her representative would have the right to attend. Information received regarding these records or information would be confidential and could not be disclosed to any person except for the purposes of determining whether to issue a concealed weapon license to the applicant.




Finally, the application would also have to contain a conspicuous warning that an application was executed under oath, and that intentionally making a material false statement on the application would be a felony punishable by imprisonment for up to 4 years, a fine of up to $2,500, or both.




Fees. Each applicant would pay a $49 fee for an application. The fee would be divided between the county and the state -- $20 would go to the county treasurer to be deposited in the county's general fund and credited to the county clerk and $29 would be forwarded to the state treasurer for deposit into the state general fund to the credit of the Department of State Police.




Fees for a license renewal would be $35, payable to the county for deposit in the general fund of the county. An individual who was licensed to carry a concealed pistol as of September 30, 1999, would be eligible for a license renewal at the prescribed fee. This provision would apply regardless of whether the license issued before September 30, 1999, was restricted. The firearm safety requirements specified under the bill would be waived for an individual who was licensed on or after September 30, 1999, and who was applying for a license renewal.




Requirements for license. Each county sheriff would be required to verify an applicant's eligibility for a license on behalf of the concealed weapon licensing board, using the Law Enforcement Information Network (LEIN) to verify that an applicant met the requirements. In order to be eligible to receive a concealed weapon license an individual would have to:




• be at least 21 years old, or at least 18 years old if the individual were required to carry a concealed weapon as part of his or her employment. (A license issued to an 18-,19-, or 20- year-old under this exception would only allow the individual to carry a concealed weapon in the course of his or her employment);




• be a citizen of the United States or a resident legal alien, and a resident of Michigan who has resided in the state for at least six months;




• not be the subject of a LEIN order or disposition entered as the result of his or her involuntary hospitalization or alternative treatment under the Mental Health Code or legal incapacity under the Revised Probate Code; or due to the existence of an injunction or restraining order for domestic violence or stalking under the provisions of the Revised Judicature Act; or for having been declared not guilty of any crime by reason of insanity, or having been released from incarceration subject to conditions or restrictions placed upon him or her for the protection of others, under the Code of Criminal Procedure;




• not be prohibited under the Michigan Penal Code from having a firearm;




• never have been convicted of a felony in this state or elsewhere (a felony would include a violation of a law designated as a felony, or a violation of law punishable by imprisonment for more than one year), have no other felony charges pending, and have had no convictions or confinement for a specified criminal offense for the eight years immediately prior to the application ("specified criminal offenses" would include a drunk driving, second offense, violation; hindering or obstructing a weights and measures enforcement officer; hindering, obstructing, assaulting, or committing bodily injury upon a director or other authorized representative under the Motor

Fuels Quality Act; negligent, careless, or reckless operation of a vessel resulting in crippling or death; exhibiting or providing sexually explicit materials to minors; assault or domestic assault; aggravated assault or aggravated domestic assault; solicitation to commit a felony; impersonating an officer; stalking; careless, reckless, or negligent use of a firearm; or a violation of a substantially corresponding law of the United States, another state, or a local unit of another state);




• not have been dishonorably discharged from the U.S. Armed Forces;




• never have been found guilty, but mentally ill, of a crime, and not offered a plea of insanity;




• never been subject to an order of involuntary commitment due to mental illness;




• not suffer from a diagnosed mental illness at the time of applying, regardless of whether he or she is receiving treatment ("mental illness" would mean a substantial disorder of thought or mood that significantly impaired judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life, including, but not limited to, clinical depression; and "treatment" would mean care, or any therapeutic service, including, but not limited to, the administration of a drug, and any other service for the treatment of a mental illness);




• not be under a court order of legal incapacity in this state or any other state; and,




• show evidence of knowledge or training in the safe use and handling of a pistol (see below);




In addition, the board would have to determine that issuing a license to the applicant would not threaten the safety of the applicant or any other person. The bill would specify that a determination under this provision would be based only upon the actions of, or statements of, the applicant.




Fingerprinting. As part of the application process, the applicant would be required to have two sets of fingerprints taken. The fingerprints would be taken by the local county sheriff on forms supplied in the application kit. The sheriff's office would be required to take the applicant's fingerprints within three business days after the applicant's request to be fingerprinted. The fingerprints would be forwarded immediately - one set of fingerprints would be sent to the FBI or an entity designated by the FBI and the other would be sent to the Department of State Police. Both sets of prints would be compared by the appropriate subdivision of each agency, with the print records retained by each agency. The FBI would then send a report of its comparisons to the Department of State Police. Within 10 days of receiving the FBI's report the department would be required to send copies of the results of both fingerprint comparisons to the county sheriff that took the fingerprints and to the concealed weapon licensing board for the county where the applicant resides. The FBI would be required to return the fingerprints to the department and the department would be required to destroy the prints immediately, unless the comparison report wasn't received within 30 days after the application was completed. If the fingerprint comparison was not received by the board within 30 days, the board would be required to issue the applicant a temporary license. In such cases, the temporary license would expire after 180 days, or as soon as the fingerprint report was received.




Licenses. Subject to the receipt of the fingerprinting results, the concealed weapon licensing board would be required to issue a license to any applicant who had properly submitted an application and whose application indicated that he or she was eligible to have a license within 30 business days after proper submission of the application. The board could also contact the references provided by the applicant.

The board would be allowed to investigate an applicant, including, where possible, contacting his or her local police department, provided that the investigation was restricted only to an applicant's eligibility, and the investigation would end after that determination was made. The board could also contact references provided by the applicant. The board could also require the applicant to appear before the board at a mutually agreed upon time for a conference. The applicant's failure or refusal to appear for such a conference, without good reason, would be grounds for denial of a license.




A full license would be valid for five years and could be renewed in the same manner as the original license. However, a license renewal would be subject to lower fees and would not require fingerprints. In order to renew a license after January 1, 2000, a license holder would be required to present a signed statement to the board certifying that he or she had completed no less that three hours of review of the training required for initial licensing since receiving the license, including

firing range time in the six months immediately preceding the renewal application.

A person who applied for a license to carry a concealed pistol for the first time before September 30, 1999 would have to complete firearm safety training (see below). A person who was licensed as of that date would be eligible for a renewal license, regardless of whether that license was restricted or not.




Temporary License. An applicant could be given a temporary license under two circumstances:




• pending the issuance of a full license, if the licensing board determined that there was probable cause to believe that the applicant or his or her family would be endangered by the applicant's inability to obtain a license immediately, or if the applicant's fingerprint report was not received within 30 days. A temporary license would be issued in a form provided by the state police. The license would be unrestricted and would be valid for no more than 180 days, with the opportunity to renew the license for one additional period of no more than 180 days. The applicant would be required to surrender the temporary license to the board upon issuance or denial of the full license,




• if an applicant's fingerprint comparison was not received by the board within 30 days, the board would be required to issue the applicant a temporary license. In such cases, the temporary license would expire after 180 days, or as soon as the fingerprint report was received.




Carrying a concealed pistol. A license holder would be required to have the license in his or her possession anytime he or she was actually carrying a concealed pistol and would be required to show the license and his or her driver license or Michigan personal identification card to a police officer at the officer's request. Failure to comply with an officer's request or failure to carry one's concealed pistol license would be a state civil infraction, and the court would be required to notify the appropriate concealed weapon licensing board.




If an individual was discovered carrying a concealed weapon without a license, the weapon could be seized by a peace officer immediately without any hearing or other procedure. However, if the licensee had his or her driver's license or Michigan ID and the officer




were able to verify that the individual had a license

through the LEIN system, then the pistol would not be subject to forfeiture.




If the individual had no license to carry a concealed pistol, the weapon would be forfeited to the state for carrying or possessing a weapon in violation of state law. However, a license holder whose pistol was seized for failing to show his or her license to a police officer would be able to reclaim the pistol by showing his or her license to an authorized employee of the law enforcement agency holding the weapon within 45 days of the weapon's seizure. If the weapon was not claimed within 45 days, the law enforcement agency could dispose of the weapon in the same manner as if the owner had been unlicensed.




Firearm Safety Training. An applicant would have to show that he or she had knowledge or training in the safe handling of a pistol. In order to adequately provide the required knowledge and training, a firearms safety program and instructor would have to be certified by this state or a national or state firearms training organization and provide instruction in at least the following areas: the safe use and handling of a pistol; ammunition knowledge and fundamentals of handgun shooting; handgun shooting positions; firearms and the law, including civil liability issues; avoiding criminal attack and controlling violent confrontations; and Michigan's laws regarding carrying a concealed pistol. The course would have to include at least eight hours of instruction with three hours of firing range time and provide a certificate of completion.




A person or entity that provided instruction or training would be immune from civil liability for damages to any person or property caused by the person who was trained, unless the trainer were grossly negligent.




These educational requirements would be waived for an individual licensed on or after September 30, 1999, who was applying for a license renewal, except that the applicant would have to sign and present a statement certifying completion of at least three hours review of the required training since receiving his or her license, and that the training included firing range time in the six months immediately preceding the renewal application. The education requirements would not be waived for an individual who was licensed before September 30, 1999, and who was applying for a license renewal for the first time.





Alcohol restrictions on license holders. A license holder would be prohibited from carrying a concealed pistol while he or she was under the influence of alcohol or a controlled substance or while having a bodily alcohol content (BAC) of 0.02 grams or greater per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. A peace officer who believed that a license holder was violating this prohibition could require the license holder to submit to a chemical analysis. The officer would first have to inform the license holder that he or she could refuse to submit to the test, but if he or she did refuse his or her license could be revoked or suspended and/or the officer could get a court order to require the license holder to submit to the test. The officer would also have to inform the license holder that if he or she submitted, he or she could choose who would perform the test. If the license holder refused to submit to the test or if the test was made and the results indicated a prohibited level of alcohol, the officer would be required to promptly report the refusal or violation in writing to the concealed weapon licensing board that issued the license.




The collection and testing of blood, breath, or urine for chemical analysis would be conducted in the same manner as such specimens are collected and tested for alcohol- and drug-related driving violations under the Michigan Vehicle Code.




A license holder who was found to be in violation of these restrictions would be subject to the following penalties:




• If the licensee had a BAC of .02 or more but less than .08 grams, he or she would be guilty of a state civil infraction and could be punished by a fine of $100. The court could also order the licensing board that had issued the individual's license to revoke the license for one year and the board would be required to comply.




• If the licensee had a BAC of .08 to .10, he or she would be guilty of a misdemeanor, punishable by imprisonment for up to 93 days, or $100, or both. The court could order the licensing board to revoke the individual's license for up to three years, and the board would be required to comply.




• If the person had a BAC of .10 grams or more or was under the influence of alcohol, a controlled substance, or a combination of drugs and alcohol, the

licensee would be guilty of a misdemeanor punishable by imprisonment for no more than 93 days and/or a fine of $100. The court would be required to order the appropriate licensing board to revoke the individual's license permanently.




The provisions against carrying a concealed pistol while intoxicated would not prohibit a licensee with any bodily alcohol content from transporting his or her pistol in the locked trunk of his or her motor vehicle or unloaded and separated from its ammunition in a locked compartment or container if the vehicle didn't have a trunk.




Restriction on where a person could carry a concealed pistol under a license. Although an employer, including a police agency, could not prohibit an employee from either applying for and receiving a concealed weapon license or carrying a concealed weapon in compliance with such a license, an employer could prohibit an employee from carrying a concealed pistol during the course of his or her employment.




Further, a person could not carry a concealed weapon on the premises of certain institutions that posted signs saying "No concealed weapons allowed." These institutions would include churches, government buildings, theaters, sports arenas, public or private day care centers, child care agencies, or child placing agencies, hospitals, bars and certain restaurants, libraries, and schools. A violation of this provision would be a misdemeanor punishable by up to 93 days imprisonment, a fine of up to $100, or both. A second offense would be a misdemeanor punishable by one year imprisonment, a fine of up to $500, or both. A third or subsequent offense would be a felony, punishable by up to four years in prison, a fine of up to $2,500, or both.




Notification and reporting of crimes committed by license holders. If a license holder were charged with having committed a violent felony, felony, or specified criminal offense, the prosecuting attorney would be required to promptly notify the licensing board that had issued the license holder's license. The prosecuting attorney would also have to promptly notify the board of the disposition of the charge. If the license holder were convicted of the crime, the prosecuting attorney would be required to indicate to the board whether the crime had involved brandishing or use of a pistol, the license holder had been carrying




a pistol during the commission of the crime, or if no pistol had been carried by the license holder during the commission of the crime. The state police would be required to provide a form for reporting this information.




If the concealed weapon licensing board was notified that a licensee had been charged with a felony or specified criminal offense, the board would immediately suspend the individual's license until there was a final disposition of the charge and would send notice of the suspension to the person's last known address. The notice would provide information that the individual was entitled to a prompt hearing on the suspension. The bill would specify that the individual would be entitled to 10 days notice of the hearing.




Each year the chair of the board would be required to compile and provide a report to the Department of State Police by a date determined by the director of the department. The report would contain the information reported by the prosecuting attorneys and the information provided by the courts for failure to show a license to a peace officer, refusal to submit to a chemical test as required under the bill, or having any bodily alcohol content while carrying a concealed pistol.




Denials, revocations and appeals. A license that had been issued based on an application containing a material false statement would be void from the date it was issued.




Within five business days after denying a person's application for a concealed pistol license, a concealed weapon licensing board would be required to inform the applicant in writing of the reasons for the denial and of the applicant's right to appeal the board's decision to the circuit court. The explanation of the board's decision would have to include a statement of the facts supporting the denial, and copies of any writings, photographs, records, or other documentary evidence used to support the denial.




If the concealed weapon licensing board was notified that a licensee had been charged with a felony or specified offense, the board would be required to immediately suspend the individual's license pending the final disposition of the case. Notice of the suspension would have to be sent to the licensee's last known address as indicated in the board's records. The notice would have to inform the licensee that he or she was entitled to a prompt hearing on the suspension. Upon the licensee's written request, the board would have to hold such a hearing.




A concealed weapon licensing board could revoke any license it issued if it determined that the individual was not eligible to have received the license or that the license holder had committed any violation of the act, except that a person could not have a license revoked for failing to show his or her license to a peace officer. However, if the board determined that the license holder had been found responsible for three or more civil infraction violations of the handgun licensure act, the board would be required to hold a hearing and could suspend the individual's license for no more than one year. Except where the licensee was charged with a felony or specified crime, in order to revoke a license the board would have to issue a written complaint and provide the license holder an opportunity for a hearing before the board. The board would be required to give the individual at least seven days notice prior to the hearing. Notice would have to be served personally or by certified mail delivered to the individual's last known address. The clerk of the board would be authorized to administer an oath to anyone who testified before the board in such a hearing.




An applicant could appeal the board's decision to deny a license, fail to issue a license, or to issue a restricted license to the circuit court for the judicial district where he or she resides. An appeal of a denial, failure to issue a license, or issuance of a restricted license would be determined by a review of the record for error. However, a hearing on an appeal would be a trial de novo (from the beginning -- of the application and qualifications, not of the process) if the licensing board's decision was based on the grounds that issuing a license would threaten the safety of the applicant or another person. Witnesses would be sworn and a verbatim record would have to be taken. If the court determined that the licensing board's decision to deny or fail to issue a license or restricted license was erroneous, it would be required to order the licensing board to issue one. If the court determined that the board's denial of a license was arbitrary and capricious, it would be required to order the board to pay the applicant's actual costs and actual attorney fees for the appeal; and if the court affirmed a board denial for a license, it would have to order the applicant to pay the board's actual costs and actual attorney fees for the appeal.




Concealed weapon license data bank and annual report. The Department of State Police would be

required to use information from concealed weapon licensing applications to create and maintain a

computerized data base to keep track of who applied for licenses to carry concealed weapons. Information in the data base would be confidential and would not be subject to Freedom of Information Act (FOIA) provisions. The data base would contain only the following information about each applicant:




• The names, addresses and county of residence of all applicants.




• Where applicable, the concealed weapon license number, its expiration date, and any restriction on a license issued to a person under the age of 21 for use during his or her employment.




• If the applicant had been denied a license after the effective date of the bill, the reasons for that denial. An explanation of why a license had been denied would be deleted from the data base if the individual were later issued a license.




• A statement of all criminal charges pending and convictions against the applicant during the license period.




• A statement of all civil infractions of the handgun licensure act pending or obtained against the applicant during the course of the license period.




In addition, the data base would contain the following information regarding the behavior of licensees, categorized by offense:




• The number convicted or found responsible for civil infractions of the handgun licensure act or for criminal violations, including the number of crimes in each category that had involved the brandishing or use of a pistol, carrying a pistol during the commission of a crime, and the number where the license holder had not used a pistol during the commission of the crime.

• The number that had criminal charges pending, dismissed, and findings of not responsible or not guilty.




The information contained in the data base would be entered into the LEIN and would only be released for the purposes of the act or for law enforcement purposes. The state police would be required to file an annual report with the Secretary of the Senate and the Clerk of the House of Representatives. The report would have to contain all of the following information for each county concealed weapon licensing board:




• The number of applications received, licenses issued, licenses denied, licenses revoked, and the number of applications pending at the time of the report.




• The categories for the denials and categories for revocation.




• The mean and median amount of time and the longest and shortest times taken by the FBI to supply the fingerprint comparison report (this could be derived from a statistically significant sample).




• The number of suicides by persons licensed to carry a concealed pistol.




• The costs incurred per permit in each county.




Repealers. House Bill 4530 would repeal current provisions concerning concealed weapons license fees, concealed weapon licensing boards, forfeiture of firearms, and the waiver of renewal fees under the handgun licensure act for retired police officers.




House Bills 4531-4533, 4537. 4538 and 4545




House Bill 4531 would amend the governmental immunity act to make a law enforcement agency civilly liable when it lost or damaged a pistol it had seized. House Bills 4532 and 4537 would amend separate acts to change current provisions on transporting and registering firearms. In addition, House Bills 4533, 4538, and 4545 would amend various acts to exempt certain information concerning concealed weapon licenses from provisions of the Open Meetings Act and the Freedom of Information Act, and to establish a fund to reimburse county prosecuting attorneys for expenses involving firearm crimes.




House Bill 4531 would amend Public Act 170 of 1964, the governmental immunity act (MCL 691.1407a), to specify that a law enforcement agency that seized a pistol under the handgun licensure act would be civilly liable to the owner of the pistol for negligently or intentionally losing or damaging the pistol. (House Bill 4530, which would amend the handgun licensure act, provides for the seizure and forfeiture of guns under certain circumstances.)




Currently, under Section 231a of the Michigan Penal Code (MCL 750.231a), a person carrying an unloaded pistol or antique firearm, which is wrapped or in a container, and is in the trunk of a vehicle, is excluded

from the current prohibition against carrying a concealed weapon under certain circumstances, including if the person is going to or from a hunting or target shooting area or an antique firearm demonstration or sale; if the person has a valid hunting license, or proof of valid membership in a pistol shooting-range facility; or if the person is going from the place of purchase or from a place of repair to his or her home or place of business, or is moving goods from one place of abode or business to another. House Bill 4532 would amend the code to specify that any person could carry an unloaded pistol or antique firearm provided that it was unloaded, in a wrapper or container, and in the trunk of a vehicle.




House Bill 4533 would amend the handgun licensure act (28.434) to establish a Firearm Law Enforcement Fund, from which reimbursements would be made to county prosecuting attorneys for the expenses incurred in prosecuting crimes involving the unlawful possession, use, or distribution of firearms.




Transportation of Firearms. Under Part 435 of the Natural Resources and Environmental Protection Act (NREPA), which regulates hunting and fishing licenses, a person may "carry, transport, or possess" a hunting weapon without owning a hunting license while going to and from certain activities, such as target practice or trap or skeet shooting grounds, if the weapons are either in a case or the trunk of a car, or are unloaded or unstrung. House Bill 4537 would amend the NREPA (MCL 324.43513) to delete the requirement that the individual be conveying the weapon to a specific place. Instead, the bill would specify that a person could transport or possess (the bill would delete "carry" from these provisions) these types of weapons in a vehicle, without a hunting license, provided that the firearm was unloaded in both barrel and magazine, or the bow or crossbow was unstrung and enclosed in a case, and in each case the weapon was carried in the vehicle's trunk. If a vehicle had no trunk, the weapon would have to be in a location that was not readily accessible to the occupants of the vehicle.




The act also specifies currently that, regardless of whether it is open hunting season or whether the person has a license, a hunting weapon may also be carried, transported, possess, or discharged if the person is not engaged in hunting but is engaged in target practice, the person is -- or is accompanied by -- the owner of the property, and if no remuneration is paid to the property owner for the activities. House

Bill 4537 would delete "transport" from these provisions and would specify that they would not apply to a person who is hunting as provided by law.




House Bill 4538 would amend the Open Meetings Act (MCL 15.268) to expand the list of conditions under which a public body may meet in closed session to include consideration of information in an application to carry a concealed pistol that concerns the applicant's mental health history, if requested by the applicant.




House Bill 4545 would amend the Freedom of Information Act (MCL 15.243) to exempt from disclosure as a public record any information in a license application, or in a CCW license, which identified the applicant or licensee.




House Bills 4534-4536, 4540, 4542-4544, and 4634




House Bills 4534-4536, 4540, 4542-4544, and 4634 would amend the Michigan Penal Code (MCL 750.226 et al.) to increase the penalties imposed for certain crimes committed by CCW licensees when guns were involved, and to address forfeiture of firearms.




Disposal of Forfeited Firearms. House Bills 4534 and 4535 would amend the Michigan Penal Code (MCL 750.239) to provide for the disposition of firearms that had been forfeited under the provisions of House Bill 4530. House Bill 4534 would amend Section 239 of the code to specify that a concealed pistol carried in violation of the code would be subject to the forfeiture provisions of the firearms act (MCL 28.425g). House Bill 4535 would also amend Section 239 of the code to specify that the director of the Department of State Police, or his or her designee, could conduct one or more public auctions to sell forfeited firearms to persons who were legally qualified to own them. (Note: Both bills would amend the same section of the code)




House Bill 4536 would add a new section (MCL 750.568) to the Michigan Penal Code that would prohibit a person from having, using, transporting, selling, buying, carrying, shipping, receiving, or distributing a firearm within Michigan that he or she knew (or had reason to know) was not registered as required by law or was not properly registered as required by law due to a material false statement by any person. The new section would not apply to a

firearm that wasn't required to be registered by Michigan or federal law. Violations of the section would be felonies punishable by imprisonment for up to 4 years or a fine up to $2,500, or both.




House Bill 4540 would amend the Michigan Penal Code (750.321) to modify penalties for manslaughter. The penalty for manslaughter is currently up to 15 years imprisonment, a fine of up to $7,500, or both. The bill would increase the maximum sentence to 25 years for a person who was licensed to carry a concealed pistol and who committed manslaughter by using a pistol. Further, the bill would set a maximum sentence of 45 years for a person who committed manslaughter by using a firearm (whether or not he or she was a concealed weapon licensee) and who had previously been convicted of manslaughter or murder in this state or elsewhere.




House Bill 4542 would amend the felony firearm provisions of the Michigan Penal Code (MCL 750.227b). Currently, generally, it is a separate felony to carry a firearm when committing (or attempting to commit) another felony. This firearm felony currently carries a mandatory term of imprisonment for 2 years for a first offense, 5 years for a second offense, and 10 years for a third or subsequent offense. (There are certain felonies excepted from the "felony firearm" provisions, including: selling a firearm or ammunition to someone under indictment for, or convicted of, a felony; carrying a concealed weapon without a licensee; off-duty licensees carrying loaded weapons; and removing identifying marks from firearms. The bill would add others to the list of exceptions; see below.)

Under the bill, the penalties could be enhanced where the violation involved the discharge of a firearm and if that discharge caused an injury to a person. If the violation involved the discharge of a firearm, the penalty would be set at from 2 to 4 years for a first offense, from 5 to 7 years for a second offense, and from 10 to 12 years for a third or subsequent offense. If the violation involved the discharge of a firearm and resulted in the physical injury of a person, the penalty would be from 2 to 7 years for a first offense, from 5 to 10 years for a second offense, and from 10 to 15 years for a third or subsequent offense.




Further, for a violator holding a concealed weapon license and carrying a pistol, whether concealed or not, the penalty for a firearm felony would be set at from 2 to 4 years. If the violation involved the discharge of a firearm, the penalty would be from 2 to 5 years, and if the violation involved the discharge of a firearm and resulted in the physical injury of a person, the penalty would be from 2-8 years.




The bill would exempt from the firearm felony law the following additional felonies:




• Having unregistered or improperly registered firearms (MCL 750.230a, proposed by House Bill 4536);




• Intentionally aiming a firearm, without malice, at another person (MCL 750.233);




• Discharging a firearm intentionally aimed, without malice, at another person if the other person isn't hurt (MCL 750.234);




• Having a firearm in a depository financial institution, a church or house of religious worship, a court, a theater, a sports arena, a day care center, a hospital, or an establishment with a liquor license (MCL 750.234d);




• Injuring someone by discharging a firearm intentionally aimed, but without malice, at them (MCL 750.235);




• Having or using a firearm while drunk or under the influence of "any exhilarating or stupefying" drug (MCL 750.237);




• Stealing someone's firearm (MCL 750.357b).




The bill would add the following to the list of crimes to which the firearm felony provisions would apply:




• Assault, assault and battery, or domestic assault (MCL 750.81);




• Assault with serious injury (MCL 750.81a); and




• Stalking (MCL 750.411h).




House Bill 4543 would amend the Michigan Penal Code (MCL 750.227 et al.) to increase the penalties for various violations involving guns. Currently, certain offenses in the code are misdemeanors, generally punishable by imprisonment for up to 90 days, a fine of up to either $100 or $500, or both. Generally, the bill would amend the code to change the maximum imprisonment to 93 days for a misdemeanor, and to make second and subsequent offenses felonies punishable by imprisonment for up to

4 years, a fine of up to $2,500, or both. (Note: 93 days is the threshold for fingerprinting and entry into

the Law Enforcement Information Network. For additional information, see Background Information.) The bill would amend the following sections:




Section 227. Currently, under the code, it is a felony to carry certain knives and other "dangerous weapons," and to carry a concealed pistol without a license. The felony is punishable by imprisonment for up to five years, a fine of up to $2,500, or both. House Bill 4543 would amend the code to change the penalties for a violation concerning carrying a concealed pistol without a license, as follows: a first offense would be a felony, punishable by imprisonment for up to ten years, a fine of up to $5,000, or both; a second violation would be a felony, punishable by imprisonment for up to 15 years, a fine of up to $5,000, or both; and a third or subsequent violation would be a felony, punishable by imprisonment for up to 20 years, a fine of up to $10,000, or both. Under the bill, the penalties would be served consecutively with any other term of imprisonment imposed for any other violation arising from the same transaction




Section 233. The bill would make the following changes: The penal code has several misdemeanors involving intentionally but without malice aiming a firearm at someone. (1) Under section 233 of the penal code it is a misdemeanor with unspecified penalties to intentionally, but without malice, aim a firearm at someone. The bill would specify that the misdemeanor would be punishable by imprisonment for up to 93 days, a fine up to $100, or both, and would make second and subsequent offenses felonies punishable by imprisonment for up to 4 years, a fine of up to $2,500, or both. The bill also would add a new provision making it a 4-year felony for someone who was licensed to carry a concealed pistol to violate this section of the penal code while carrying a pistol, whether concealed or not, when committing the violation.




Section 234. Under section 234 of the penal code it is a misdemeanor, punishable by imprisonment in the county jail for up to one year, fine of $500, or both, to discharge a firearm intentionally but without malice aimed at someone. The bill would make it a 4-year felony for second and subsequent violations, and add a 4-year felony for the same violation when committed by someone with a concealed pistol license while carrying a pistol. In addition, the optional fine for each violation would be $2,500. Under section 234a of the penal code, it is a felony (punishable by imprisonment for up to 4 years, a fine of up to $2,000, or both) to discharge a firearm intentionally from a vehicle, snowmobile, or off-road vehicle (ORV) in a manner that could endanger another person's safety. The bill would make it an 8-year felony for second and subsequent violations, and add an 8-year felony for the same violation when committed by someone with a concealed pistol license while carrying a pistol, whether concealed or not. In addition, the optional fine for each violation would be $5,000. However, none of these provisions would apply to a peace officer, or an individual who discharged a firearm in self-defense or in another's defense.




It is a misdemeanor (punishable by imprisonment for up to 90 days, a fine of up to $100, or both) under section 234d of the penal code to have a firearm on certain premises (including depository financial institutions, houses of religious worship, courts, theaters, sports arenas, day care centers, hospitals, and bars). The bill would raise the maximum imprisonment for the misdemeanor to 93 days, and add a 4-year felony for second and subsequent violations. In addition, the bill would expand the current reference to "court;" instead, the bill would refer to a "building or part of a building owned or leased by this state or a local unit of government of this state." The bill would also clarify that the exemption for a person licensed by Michigan or another state to carry a concealed weapon is subject to the requirements of the firearms act.




Brandishing a firearm in public is a 90-day misdemeanor under section 234e of the penal code (section 234e). The bill would define "brandish" to mean "to exhibit or display in an aggressive or menacing manner," raise the misdemeanor imprisonment maximum to 93 days, and add 4-year felonies for second and subsequent violations and for violations by concealed pistol licensees carrying a pistol.




The penal code prohibits individuals younger than 18 from having firearms in public except under the direct supervision of someone 18 or older (section 234f). Violations are 90-day misdemeanors. The bill would change the 90 days to 93 days, and add a 4-year felony for second and subsequent violations.




Section 235. Under Section 235 of the penal code, it is a misdemeanor punishable by imprisonment in the

county jail for up to one year, a fine of up to $500, or both, to injure someone by discharging a firearm "intentionally but without malice" pointed at them. The bill would increase this penalty to two years and $1,000. In addition, the bill would add 4-year felonies for second and subsequent violations and for violations by concealed pistol licensees carrying a pistol.

Section 237. Under section 237 of the penal code, anyone under the influence of "intoxicating liquor or any exhilarating or stupefying drug" who carries or has a firearm in his or her possession or control or who uses ("in any manner") or discharges a firearm is guilty of a misdemeanor with unspecified penalties. The bill would amend this section to add to the misdemeanor possession of a firearm (in addition to specifying "under the influence of intoxicating or an exhilarating or stupefying drug") "while having a bodily alcohol content of .08 or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine," and specify that the misdemeanor was punishable by up to 93 days' imprisonment, a fine up to $100, or both. The bill also would add two new felonies for discharging a firearm while drunk or under the influence of drugs. One felony would be for simple discharge, and would carry a penalty of imprisonment for up to two years, a fine of up to $2,500, or both. The second felony would apply to those with concealed pistol licenses, and would be punishable by up to four years in prison, a fine of up to $2,500, or both. The bill also would define "intoxicating liquor" (but not "exhilarating or stupefying drugs") by reference to the Michigan Liquor Control Code of 1998.




The bill would also increase the penalties for subsequent violations of possession of a weapon in a weapon-free school zone. Under the bill, a second violation would be a felony, punishable by imprisonment for up to 15 years, a fine of up to $5,000, or both. A third or subsequent violation would be a felony punishable by imprisonment for up to 20 years, a fine of up to $10,000, or both. The bill would also clarify that the exemption for a person licensed by Michigan or another state to carry a concealed weapon is subject to the requirements of the firearms act.




House Bill 4544 would amend the Michigan Penal Code (MCL 750.357b) to increase the maximum penalty, from 5 years to 15 years, for the felony of larceny of a firearm. In addition, the bill would add a new crime. Under the bill, a person who possessed a firearm, knowing or having reason to know that it was stolen, would be guilty of a felony punishable for imprisonment for up to 10 years, a fine of up to $2,500, or both.




House Bill 4634 would amend the Michigan Penal Code (750.226). Currently, it is a felony, punishable for up to 5 years imprisonment, a fine of up to $2,500, or both, to possess a pistol or other firearm, or another dangerous weapon, with the intent to use it unlawfully against another person. The bill would specify that a person who was licensed to carry a concealed weapon and who violated this provision while carrying a pistol would be guilty of a felony punishable for up to 10 years imprisonment, a fine of up to $5,000, or both.




BACKGROUND INFORMATION:




County CCW Licensing Boards. Under Michigan's current system, each of the 83 county concealed weapon licensing boards is made up of the county prosecuting attorney, the county sheriff, and the director of the Department of State Police, or their authorized representatives. The prosecuting attorney or his or her representative is the chairperson of the board. The board is required to meet at least once per month and at other times at the call of the chair. These boards have the exclusive authority to grant an applicant a license to carry a concealed pistol on their person within the rules provided by state law.




In order to receive a license or permit to carry a concealed weapon (CCW license or permit) a person must fill out and submit an application to the county sheriff for the county where the applicant resides. The application forms require general information about the applicant and the applicant must indicate his or her reasons for needing a CCW permit and sign the application under oath. Depending upon where the applicant resides, the completed application form must be approved by the applicant's local chief of police or township supervisor. In such cases, if the application is not approved the applicant has ten days to appeal the objection in writing to the licensing board.




In addition, the applicant must have two sets of fingerprints taken by the local police or county sheriff; one set is checked by the state police while the other is sent to the FBI. Both sets are checked against existing records and reports are sent to the county clerk. The board is prohibited from issuing a license unless it receives a report from the state police and the FBI indicating that the comparisons of the fingerprints do not show that the applicant was convicted of or

confined for a felony during the eight years preceding the application. A temporary permit for a period of not more than 30 days may be issued while waiting for the comparison reports. The Department of State Police retains the fingerprint cards.




Upon receiving the application and the fingerprint reports, the board notifies the applicant of the time and date of the board's meeting at which the applicant is to appear. At the meeting, the board reviews the application and the fingerprint report, and interviews the applicant. After the applicant's qualifications are reviewed and the interview is completed, the board votes on the request. A majority is required for approval. Restrictions as the board deems necessary may be placed upon the license. There are generally three types of licenses: target, range, and hunting permits allowing the licensee to carry a pistol to and from shooting sites; home, bank, and business permits allowing the licensee to carry a pistol during the course of employment; and general carry permits allowing a licensee to carry a pistol without restrictions or with only limited restrictions.




A licensing board is prohibited from issuing a license to anyone who: is under the age of 18, is not a United States citizen, or has resided in the state for less than six months. In addition, the applicant cannot have been convicted of a felony in Michigan or elsewhere during the preceding eight years, or be subject to an order or disposition entered into the Law Enforcement Information Network (LEIN) system for any of the following:

• involuntary commitment under the Mental Health Code,




• a finding of legal incapacity under the Revised Probate Code,




• a domestic violence or anti-stalking restraining order,




• a condition of bail that prohibits handgun ownership, or




• a finding of not guilty by reason of insanity.




In addition, the board must find that the applicant has good reason to fear injury to his or her person or property, or has other proper reasons for having a license to carry a concealed weapon, and is a suitable person to have such a license.

The current fee for a license is $10, which is paid only if the license is approved. Three dollars go to the state treasurer, while the other seven dollars go to the county's general fund. A license is valid for three years and can be renewed by filing a new application and paying the $10 fee. After receiving a license, the licensee is required to carry his or her license on his or her person while carrying a concealed weapon and must show the license to a police officer at the officer's request. The license itself contains identifying information, including a thumb print of the licensee and a list of any carrying restrictions. A pistol carried in violation of the act is subject to seizure and forfeiture.




A license may be revoked by the board upon notification from a magistrate that the license holder has been convicted of violating any provision of the license, or has been convicted of a felony. The board may also revoke a license when it determines that the reasons for granting the license have ceased to exist or that the license holder is unfit to carry a concealed pistol. A license may not be revoked without a written complaint and hearing by the board with at least seven days' notice to the licensee by personal service or registered mail to his or her last known address.




Michigan Penal Code. In 1994, the legislature enacted laws to provide a penalty of up to 93 days' imprisonment for certain low level offenses. The enhanced penalties were adopted, in part, because the 93-day penalty would trigger statutory fingerprinting and criminal reporting requirements. When a person is arrested for an offense carrying a penalty exceeding 92 days, he or she is fingerprinted and the fingerprints are sent to the Criminal Records Division of the Department of State Police and the Federal Bureau of Investigation. As a result, a number of state law violations provide misdemeanor penalties of up to 93 days imprisonment, including larceny, embezzlement, receiving and concealing stolen property, and malicious destruction of property involving property worth less than $200; domestic assault; first offenses of drunk driving and/or driving with a suspended license; and third degree retail fraud. These changes have allowed for better tracking of prior offenses when the offenders are prosecuted under state law. In addition, since local units of government often adopt ordinances based on state statutes, legislation has been proposed under House Bills 4580-85 to amend various local government enabling statutes to allow penalties of imprisonment for up to 93 days. The penalties

would be incurred for a violation of an ordinance that substantially corresponds to a violation of state law that is a misdemeanor for which the maximum period of imprisonment is 93 days.




FISCAL IMPLICATIONS:




House Bill 4530. According to the House Fiscal Agency, the bill would result in an indeterminate increase in state costs and revenues. The Department of State Police (DSP) would incur costs to enforce the regulations specified under the bill. In addition, approximately $112,000 in costs would be incurred as follows:




*$60,000 to upgrade the department's computerized database to process and store CCW license application records,




*Operating costs for the database: $40,000 annually for one additional FTE position, and $12,000 in annual maintenance costs.




In addition, costs would be incurred for each applicant. Based on the experience of other states that have adopted "shall-issue" legislation in recent years, the HFA estimates that there would be 25,000 to 100,000 applicants for CCW licenses in the first year. Each applicant would have to submit fingerprints to county local gun boards for delivery to the FBI and the DSP for background checks. The HFA estimates that the cost of processing each set of fingerprints would be $39, or $10 less than the $29 fee charged each applicant. Therefore, revenue from the fees would be between $725,000 and $2.9 million, and fingerprinting costs would be between $975,000 and $3.9 million.




House Bill 4531. The HFA estimates that the bill, which would hold law enforcement agencies civilly liable if they seized and subsequently lost or damaged a pistol, would result in indeterminate costs to the DSP, depending upon how often such events occurred.




House Bills 4532, 4533, and 4538. According to the HFA, the bills would have no fiscal impact.




(Analyses dated 7-8-99 and 7-23-99)




House Bill 4535. The HFA says that the bill would result in indeterminate revenue to the state from auctions at which forfeited firearms would be sold.




(Analyses dated 7-7-99 and 7-8-99)

House Bills 4534, 4536, 4543, 4544, and 4634. The HFA estimates that the bills would result in an indeterminate increase in state and local costs, depending upon how many additional offenders received criminal sanctions or increased periods of incarceration. To the extent that the bills increased collections of penal fines, they could increase fine revenues going to local libraries.

(Analyses dated 7-22-99 and 7-23-99)




House Bills 4540 and 4542. The HFA estimates that House Bill 4540 would result in an indeterminate increase in state costs, depending upon how many offenders received increased periods of incarceration. House Bill 4542 would also increase the maximum allowable terms of incarceration, and would increase penalties so that persons sentenced under the felony firearm provisions of the Michigan Penal Code would be sent to prison, rather than receiving probation or a jail term. The HFA estimates that this would have an indeterminate fiscal impact on the state. (7-23-99)




ARGUMENTS:




For:

House Bill 4530 is needed to eliminate the current arbitrary and capricious system of issuing concealed weapon licenses. Under the current system, approval of an application for a permit can often depend on who you know on the gun board rather than on objective grounds. Many supporters of the bill assert that in some counties the applications of deserving people have been rejected for no good reason, while the applications of former police officers and judges or others with close ties to the members of the gun board are routinely granted. In addition, applicants are required to bear the burden of showing that they should be granted a license and most people whose applications are denied are never told why the application was not approved, nor are they given an opportunity to contest the board's decision. This process is entirely different from any other licensing process. It should be changed to place the burden on the government rather than the citizen and to create a more uniform, and therefore more fair, basis for deciding who should be granted a license.




The bill will assure that every Michigan citizen has the same equal, fair, and impartial opportunity to obtain a CCW permit. Law-abiding citizens would know before applying what criteria they needed to meet in order to receive a license. If the license was denied, a citizen would have the right to know why it was

denied and could appeal the denial and have a court hear and decide whether or not the application should have been approved. As with all other licenses, the government would have the burden of proving that its denial of the license was for a valid reason. The bill is a vast improvement over the current process, creating a system that is objective and uniform throughout the state, placing the burden of proof on the government, giving citizens fair warning about the criteria to be met, and allowing citizens due process and a right to appeal the decision of the board.




For:

One of the best means of self protection is to own a gun, and an even better means is to carry a gun on one's person. While a gun in the home can be used to deter, scare off, or, if necessary, wound or kill intruders, it is of little help when a person is away from home. Without a CCW permit, people are forced to put themselves at risk whenever they leave home.




In addition, allowing more honest citizens to carry guns benefits not only those citizens who are armed but also serves to protect those who choose not to carry a gun. According to some studies, confrontations with criminals where the would-be victim has a gun are more likely to end with would-be attacker fleeing than with shots being fired. Further, those who resist attempted robberies or rape with a gun are half as likely as their unarmed counterparts to be injured.




In 1996 only nine states allowed their citizens to carry concealed weapons. Currently, though, there are 31 states that allow citizens to carry concealed weapons. Many of these states have seen their crime rates drop significantly during this time period. According to a University of Chicago study, concealed handgun laws reduced murder by 8.5 percent and severe assault by 7 percent from 1977 to 1992.

Response:

The University of Chicago study fails to take into account that, of the states included in the study, only Florida had a significant drop in its crime rate. Furthermore, the study also fails to note that overall crime rates have dropped during the time period of the study. Finally, conclusions drawn by the study are contradicted by the fact that during the same time period murder rates also fell dramatically in places with very strict concealed carry laws, like Boston, New York, and Los Angeles.




For:

The provisions of House Bill 4530 would make it easier to obtain a concealed weapon license in Michigan. However, there is some concern that this might be construed to mean that the state is relaxing its gun laws. In answer to this concern, other bills in the package provide increased penalties for certain crimes. In some cases, new penalties would be provided; in other cases, current penalties would be changed from misdemeanors to felonies, and increased penalties would be provided for second and subsequent offenses. Further, penalties would be increased for certain offenses if the violator was a concealed weapon licensee. This is seen as a particularly important precaution if the state is to allow more citizens to carry concealed weapons. In addition, under the provisions of House Bill 4536, it would be a felony to have a firearm if one knew that it wasn't registered. These provisions signify that the state intends to enforce tough gun laws.

Response:

Representatives of such organizations as Brass Roots and the Law Enforcement Alliance of America object to House Bill 4536's prohibition against having an unregistered firearm. The organizations maintain that neither state nor federal laws require that guns be registered: the firearms act specifies only that a gun must be licensed and that it must be presented to a local police department for a safety inspection (MCL 28.422 et al.), and federal firearms regulations require only that a gun be registered if it is purchased from a dealer.




For:

As part of the continuing focus on gun violence, the bills would send a message to criminals that crimes committed by those who use or carry a gun would have consequences beyond those currently imposed. For example, House Bills 4540 and 4542 would increase the penalties imposed for certain crimes in situations committed by CCW licensees if guns were involved. In addition, under House Bill 4634, the maximum penalties currently imposed on a CCW licensee for carrying a pistol with the intention of using it against another person would be doubled.




Statistics also indicate that the number of illegal weapons available on the streets is rising. (In a 1993 survey, 59 percent of grades 6 through 12 students reported that they knew where to get a gun if they needed it, and one-third of these said they could get a gun within an hour [Harris, L., "A Survey of





Experiences, Perceptions, and Apprehension about

Guns among Young People in America," LH Research, Inc., the Harvard School of Public Health, Cambridge MA, July, 1993]). To deter future violators, House Bill 4544 would triple the amount of prison time that could be imposed for stealing a firearm, and would make it a felony to own a firearm if one knew it was stolen.

Response:

In testimony presented to the House Constitutional Law and Ethics Committee, a member of the Michigan Coalition for Responsible Gun Owners (MCRGO) called the provisions of these bills discriminatory. According to MCRGO, CCW licensees would receive a higher punishment than common criminals for the same crime under the provisions of House Bills 4540, 4542, and 4634. The testimony also questions why peace officers aren't held to the same standards as CCW licensees under the provisions of House Bill 4542.




For:

The package of legislation concerning concealed weapons specifies, under House Bill 4530, that the handgun of an individual who is discovered carrying a concealed weapon without a license can be seized by a peace officer and forfeited to the state. However, the owner can, in some instances, get the gun back by showing his or her license. In response to fears that valuable guns might be lost or damaged in these circumstances, House Bill 4531 would amend the act outlining governmental immunity to require that law enforcement agencies would be civilly liable to gun owners if they were negligent and this did, in fact, happen.




Against:

The provisions of House Bill 4530 stem from the philosophy that any law abiding citizen should be able to carry a concealed weapon. However, according to testimony presented to the House Conservation and Outdoor Recreation Committee by representatives from the Office of Attorney General, recent polls indicate that the concept of arming people on demand is not supported by a majority of Michigan adults. Moreover, one consequence of the bill could be that an easy availability of guns in purses, pockets, and in glove boxes would lead to more guns being lost or stolen, and more children being intentionally and accidentally victimized by them. This is especially frightening when one considers that, even with current restrictions, firearms are the third leading cause of




death for children between the ages of five and fifteen.

The testimony also included the results of a survey of students conducted by USA Today, which reported that nearly one million students had carried a gun to school during the 1997-98 school year, and that 51 percent of the students had threatened to harm a teacher and 63 percent another student. If the survey is accurate, then it is reasonable to believe that young people who see a parent put a pistol in his pocket or her purse would see no reason why they, too, could not protect themselves by carrying a gun. Once it becomes generally acceptable that everyone may carry a concealed weapon, not having a permit could be a mere technicality to an adolescent.




The testimony also notes that the nation's murder rate is at a 22-year low, the crime rate has dropped for the past six years, and Department of Justice statistics show a significant decrease in youth gun violence in the U.S. in recent years. In fact, this decrease coincides with the passage of the 1993 Brady Handgun Violence Prevention Act, or "Brady Law." Conversely, states with liberal gun laws experienced a significantly smaller drop in the crime rate between 1996 and 1997. Citing Federal Bureau of Investigation (FBI) uniform crime reports, the testimony noted that the 29 states that had liberal CCW laws at that time had a crime rate decrease of 2.1 percent, in comparison with 4.4 percent for the states with strict CCW laws; and the rate of violent crime for states with liberal CCW laws decreased by three percent, versus 4.9 percent in states with strict laws. In addition, according to the testimony, the three states with the most liberal gun laws -- Louisiana, Nevada, and Alaska -- had the country's highest firearm fatalities in during 1996.




It would appear that, as noted in the testimony, the bill is attempting to fix a system that isn't broken. In fact, in recognition of the fact that strict CCW laws are effective, voters in Missouri have recently rejected efforts to pass a bill similar to House Bill 4530. Similarly, governors in Ohio and Colorado have recently promised to veto any liberalized CCW bills that are presented to them.




Against:

In an April 28, 1999, letter directed to members of the Oakland Medical Society encouraging opposition to House Bill 4530, Dr. Barbara Meyer Lucas, Chair of the Public Health Committee of the Wayne County Medical Society, makes note of the following:




• it is estimated that handguns are present in one out of four homes in the U.S.,




• more than half of handgun owners report that they keep the guns unlocked at home; and many report keeping guns loaded and readily available,




• approximately 1.2 million latchkey children have access to guns when they come home from school,




• in a 1993 national survey, 59 percent of students in grades 6 through 12 reported that they knew where to get a gun if they needed it; and one-third of these said they could get a gun within an hour,




• 5,264 children age 16 and under were charged with carrying a concealed weapon in Wayne County between 1990 and 1998,




• 102 people die in the U.S. from gunshot wounds, including 15 children and teens under the age of 20, on an average day,




• a gun in the home increases the risk of domestic homicide threefold,




• for every instance in which a gun at home is used to kill in self-defense, 43 fatal shootings of family members or friends occur in suicides, non-justifiable homicides, and accidents.




Against:

As written, the bills contain several provisions that alarm the Michigan Press Association (MPA). For example, under House Bill 4545, information on a CCW license application or permit would be exempt from disclosure as a public record under the provisions of the Freedom of Information Act (FOIA). The MPA notes that this would prevent the public from knowing whether or not the new licensing process was effective or not. This is of special importance since House Bill 4350 contains a "catch-all" provision that would allow CCW licensing boards to deny a permit for various reasons. Members of the press should be allowed to hear this information so that the public can be informed. (The MPA also notes that the press was the first entity to point out that there were problems with current licensing restrictions.)

Response:

Information on a CCW license application or permit should be exempt from disclosure under FOIA. The bills have been introduced as a means of allowing law-abiding citizens to protect themselves against criminals. Therefore, it makes no sense to give criminals open access to records that would let them know who was -- and who was not -- carrying concealed weapons and possibly use the information to commit crimes.

Rebuttal:

It is extremely unlikely that a criminal would fill out a FOIA request to find out if a person owned a concealed weapon, since he or she would then be leaving a trail of evidence if the information were used to commit a crime.




Against:

The current CCW permit should be retained. The reason there are different standards from one county to another is because the need is different from one county to another. The current system allows for local control over who gets to carry a concealed weapon in that county. Worse, the provisions of House Bill 4530, although ameliorated by some training requirements and other restrictions, will make Michigan a "shall issue" state. The gun boards will be required to issue a concealed pistol license to anyone who meets the criteria set forth in the bill. The current requirement that a person seeking a license show some need for the license is far safer for everyone and serves to limit the possession of such licenses to those who can prove a degree of need.




The proliferation of gun ownership will also, in spite of the training requirements, increase the risk of accidental shootings. Although the eight-hour training requirement would be an improvement if those provisions stood alone, it should be noted that members of the police force receive years of firearms training and accidents still happen; imagine the potential for increased accidents with large numbers of persons carrying concealed weapons who have only the required eight hours of training.




Furthermore, if enacted, the bill will simply lead to proliferation of guns on the streets, and an "old west" mentality where every argument is "solved" by the use of a gun. According to studies in Texas, where laws similar to those proposed in the bills have already been enacted, out of the 151,433 people who were issued concealed weapon licenses, 946 were arrested -- 263 for felonies. Of the 683 misdemeanor arrests, 194 were weapons-related charges and 215 were for driving while intoxicated. Family violence was involved in 42 of the arrests -- one for murder, one for attempted murder and seven for aggravated assault with a deadly weapon. The experiences in Texas and

no doubt in other states clearly show that requiring the issuance of a CCW license increases the risk that licensees will not only include law abiding citizens.




Response:

The Texas study fails to take into account a number of factors. First, of the 946 arrests, nearly 30 percent resulted in dropped charges or acquittals. Second, 20 percent of the weapons-related offenses for which license holders were arrested were for failure to have their license in their possession. Therefore, the numbers are somewhat exaggerated; a better comparison would have been to look at the number of convictions. Furthermore, many of the more severe crimes cited did not involve the use of a weapon, nor did many of the crimes involve activities that could be realistically described as an abuse of the privileges of the license. Therefore, most of the criminal activity described really has no bearing on Texas' concealed weapon licensing policy.

Rebuttal:

To dismiss the findings of the report as irrelevant, because the crimes committed by the possessors of CCW licenses have not as yet been random shootings or other gun violence, is illogical. The crimes are significant when weighing the reasonableness of adopting a "shall issue" policy for providing concealed weapons licenses. Supporters of more liberal policies for carrying concealed weapons often support their arguments by asserting that all they wish to do is allow law abiding citizens to carry guns. Unfortunately, the Texas study shows that without further precautions, "shall issue" laws result in a fairly large number of not-so-law-abiding citizens being given licenses. Even though none of these less-than-law-abiding licensees has gone on a rampage with his or her concealed weapon, the fact remains that clearly the "shall issue" process allows for concealed weapons licenses to be put into the hands of people who do not obey the laws, thus putting the general public at greater risk.

Response:

Even so, the results of the study, when taken in context, show that the criminal activity of persons with concealed weapons permits is an extremely small portion of the overall number of crimes committed. For example, of the 1,477 murders, only six involved concealed weapons holders; of 8,376 forcible rapes, only 18 were committed by CCW licensees; and of 80,613 aggravated assaults, only 234 were committed by CCW licensees.





Against:

The "shall issue" provisions of House Bill 4530, along with the de novo standard of review, would require the gun board to prove to the circuit court that the license was properly denied. Proving the propriety of the board's decision at a de novo hearing would certainly

involve more time and expense for prosecutors, circuit courts, and local police than is required under the current system and, without funding from the state, could impose an unfunded mandate in violation of the provisions of Article 9, Section 29 of the state constitution. In addition, several other provisions may also create unfunded mandates, although to a lesser extent -- for example, the requirements that the local police and sheriff departments distribute "concealed weapon application kits", and that the board immediately give unsuccessful applicants a written explanation of the denial.




These provisions require new activities or increase the level of activity for the local units of government without providing an appropriation. House Bill 4533, which would establish a Firearm Law Enforcement Fund, should require that money from the fund be provided to local units of government to reduce these costs.

Response:

As written, House Bill 4533 is overly vague. The bill specifies only that deposits into the proposed fund "may be received from any source." There is no guarantee that any fund will be available to compensate either county prosecuting attorneys' expenses or local units of government.




Against:

House Bill 4543 does not go far enough. The Law Enforcement Alliance of America points out that, while the act prohibits having a firearm on certain premises, such as a theater, sports arena, day care center, or hospital, or for possessing a weapon in a weapon-free school zone, certain exemptions to this prohibition are granted to persons such as peace officers, or those who are armed on the premises with the permission of the owner. The alliance maintains that sections 233 and 234 of the act, which provide penalties for persons who intentionally, but without malice, aim or discharge a firearm at another person, should similarly provide exemptions. In this case, the exemptions should be provided to persons involved in a sports activity such as hunting or target practice.






House Bill 4543 also contains several inconsistencies. For example, in testimony before the House committee, the Michigan Coalition for Responsible Gun Owners pointed out that provisions of the bill which concern aiming or discharging a firearm without malice, or brandishing a firearm in public, would specify higher penalties for crimes committed by persons who are licensed to carry concealed weapons than for those who aren't licensed. (In each situation, the bill specifies that commission of these acts would be a misdemeanor if the violator is unlicensed, and a felony if the person is licensed). According to the coalition, the same penalties should be applied to everyone. Otherwise, the provisions could be interpreted to mean that concealed weapon permittees are "not to be trusted."




In addition, the Law Enforcement Alliance of America points out that, while House Bill 4543 would provide severe penalties for a person who intentionally, but without malice, aims or discharges a firearm at another person, no exemption is provided for a person who does so in self defense.




POSITIONS:




The National Rifle Association (NRA) supports the bills. (7-15-99)




The Michigan Coalition for Responsible Gun Owners (MCRGO) supports the bills. (7-15-99)




The Law Enforcement Alliance of America supports the bills. (7-13-99)




The Michigan United Conservation Clubs (MUCC) supports the bills. (7-13-99)




The Michigan Rifle and Pistol Association supports the bills. (7-13-99)




The Department of State Police does not oppose the "shall issue" provisions of House Bill 4530, provided that procedures are established to deny licenses to those who don't qualify and local gun boards have some control over the process. (7-12-99)




The Michigan Sheriffs' Association has no position on the bills. The association maintains that gun licensing should remain a local issue. (7-15-99)






The Michigan Partnership to Prevent Gun Violence (MPPGV) opposes the bills. (7-13-99)




The Michigan Catholic Conference (MCC) opposes the "shall issue" provisions of House Bill 4530. (7-14-99)




The Michigan Fraternal Order of Police does not support the bills, as written. The organization maintains that firearm safety training, which is required under House Bill 4530, should be administered by the state. (7-15-99)



















Analyst: R. Young




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This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.