FROM THE DESK OF C.D. MICHEL

MEMORANDUM

Subject:      Cal. Penal Code Section 171b and Guns in Public Housing
Date:       May 13, 2009


I.     ISSUE:

Could Cal. Penal Code Section 171b apply to guns possessed in certain public housing residences?

II.    SHORT ANSWER

Section 171b could conceivably apply, and prohibit such possession, if there are government employees working in the building (but not residing there) and if the possession is not expressly authorized by the head security official for the building.

III.     STATUTORY SCHEME

A.     Penal Code Section 171b

Penal Code Section 171b(a) provides:

“Any person who brings or possesses within any state or local public building...any of the following is guilty of a public offense punishable by imprisonment in a county jail for not more than one year, or in the state prison: (1) Any firearm.”

1.     Penal Code Section 171b Applies Only To “State or Local Buildings”

For Section 171b to apply, a public housing unit would have to be considered a “state or local public building” under the law. A “state or local building” is defined by Penal Code Section 171b(c).  Penal Code Section 171b(c) provides that a building is a “state or local building” if:

“(1) It is a building or part of a building owned or leased by the state or local government, if state or local public employees are regularly present for the purposes of performing their official duties. A state or local public building includes, but is not limited to, a building that contains a courtroom;
(2) It is not a building or facility, or a part thereof, that is referred to in Section 171c, 171d, 626.9, 626.95, or 626.10 of this code, or in Section 18544 of the Elections Code;

(3) It is a building not regularly used, and not intended to be used, by state or local employees as a place of residence.”

2.     Exceptions to Penal Code Section 171b

Penal Code Section 171b(b) provides exceptions to section 171b(a):

“Subdivision (a) shall not apply to, or affect, any of the following: ...

(4) A person who has permission to possess that weapon granted in writing by a duly authorized official who is in charge of the security of the state or local government building;

(5) A person who lawfully resides in, lawfully owns, or is in lawful possession of, that building with respect to those portions of the building that are not owned or leased by the state or local government.”

IV.     ANALYSIS

A public housing residence may satisfy the criteria for a  “state or local public building”as defined by Section 171b(c) depending upon the type of public housing development it is, whether a public employee resides there. If a public housing residence did satisfy the criteria for a “state or local public building,” Section 171b(a) would apply and make firearm possession illegal, unless an exception provided by Section 171b(b) applied. 

A.     Types of Public Housing Developments

Public housing can generally be separated into three different types:

(1) privately-owned housing with government-subsidized rent;

(2) government-owned housing developments managed by a private company; and

(3) government-owned housing developments managed by a public employee. 

The circumstances may vary among different cities.

1.     Privately-owned Housing With Government-Subsidized Rent

First, Section 171b would likely not apply here because Section 171b requires that a building or part of a building to be “owned” or “leased” by the local government.  Even if a city provided subsidized rent to its residents, unless the city owns or leases the buildings that are designated as “public housing” Section 171b would not apply.


2.     Government-owned Housing Developments Managed by a Private Company

Second, Section 171b would likely not apply to government-owned housing developments managed by a private company.  This is because Section 171b requires a public employee to be “regularly present for the purposes of performing their official duties.” 

It is unlikely that any city employees would be regularly present to perform their job duties if a private management company has been delegated the duty to manage the housing development.  It is more likely that the private management company would hire its own employees to perform the duties related to managing the housing development, such as maintenance and repairs.  However, this can only be verified through an investigation of the actual public housing development within each city.

3.     Government-owned Housing Developments Managed by a Government Employee

Finally, Section 171b may apply to government-owned housing developments managed by a government employee.  This will depend upon whether the government  employee is “regularly present” on the premises, but does not reside there.  Again, this can only be verified on a case-by-case basis of each public housing development within the city.

B.      Case Study: San Francisco Public Housing

1.     San Francisco Housing Authority

The San Francisco Housing Authority (“SFHA”) is responsible for the 45 public housing developments located throughout San Francisco.  Except for Section 8 Housing and the privately managed public housing developments, San Francisco’s housing developments are managed by SFHA employees.

Based on the SFHA Property Mangers Listing, it appears that a number of property managers’ offices are also located within the housing development.  However, there appears to be just as many housing developments that do not have a property manager’s office on the premises since many of the SFHA’s property managers have been assigned to manage more than one housing development.

In addition, according to the SFHA website, 25% of SFHA employees (123 residents) are residents of a San Francisco public housing development.  Thus, there is a very high probability that there is at least one SFHA employee at each of the 45 public housing developments.

2.     Section 171b as Applied to San Francisco Public Housing Developments

Applying Section 171b, generally, to all San Francisco Public housing developments can not be done.  Section 171b must be applied on a case-by-case basis because of the varying possibilities involving whether a government employee is “regularly present for purposes of performing their official duties” and whether a government employee resides at the public housing development.

a.     Section 8 Housing

First, Section 171b would likely not apply here because San Francisco neither owns nor leases the buildings that are designated as Section 8 Housing.  Buildings that are designated as Section 8 Housing are typically privately owned. 

In addition, San Francisco is not involved with any aspect of the lease for the residential space. Although San Francisco does subsidize the monthly rent, the lease is negotiated solely between the lessor and the renter.  The renter, and not San Francisco, is responsible for abiding by the terms of the lease.

b.     SFHA-owned Housing Developments Managed by a Private Company

Second, Section 171b would likely not apply to SFHA-owned housing developments managed by a private company.  This is because Section 171b requires a public employee to be “regularly present for the purposes of performing their official duties.” 

However, further investigation must be conducted into whether any SFHA employees are employed in some capacity within each public housing development before a final conclusion can be made.

c.     SFHA-owned Housing Developments Managed by a Government Employee

Finally, Section 171b may apply to government-owned housing developments managed by a government employee.  This will depend upon whether the government  employee is “regularly present” on the premises, but does not reside there.

For example, if a property manager of a public housing development is employed by the SFHA and also maintains an office there, then the property manager would likely be considered“regularly present for the purposes of performing their official duties.”  Section 171b would then apply to this scenario, but only if the property manager does not regularly use the public housing development as a place of residence. 

Another example may be where a property manager’s office does not exist on the premises of the public housing development, but other public employees of the SFHA are “regularly present for the purposes of performing their official duties.”  Again, Section 171b would then apply to this scenario, but only if the government employee does not regularly use the public housing development as a place of residence.

3.     Guy Montag Doe et al. v. San Francisco Housing Authority et al.

Guy Montag Doe et al. v. San Francisco Housing Authority et al. (Case No. 08-03112 TEH) was filed in the California Northern District Court, by Guy Montag Doe, the National Rifle Association and the Citizens Committee for the Right to Keep & Bear Arms, on June 27, 2008.  The complaint challenged the city’s ban of guns in public housing.  On January 14, 2009, the SFHA reached a settlement with the plaintiffs and allowed residents to possess legal firearms within the SFHA apartment building.

SFHA did not rely upon Section 171b as a defense to its ban of firearms in public buildings.  However, even if it had, the defense may not have been successful.

In Guy Montag Doe et al., the SFHA delegated management and control to John Stewart Company, a private company, to manage Valencia Gardens Housing, the public housing development at issue.  Assuming that there were no government employees “regularly present for the purposes of performing their official duties” because John Stewart Company was managing the public housing development, then Section 171b would not have applied for lack of the presence of a government employee conducting their job duties. 

Furthermore, because of the number of SFHA employees residing in the San Francisco public housing developments, it is probable that a SFHA or other government employee was also residing at Valencia Gardens Housing.  Thus, this would also preclude the SFHA from relying on Section 171b as a defense.

These reasons may be why the SFHA did not utilize Section 171b as a defense. 

V.     CONCLUSION

For the reasons stated above, it is difficult to predict with certainty whether or not Section 171b would be applicable to a city’s public housing development because of the factual variables that are involved and the case-by-case analysis that must be applied. 

If Section 171b is applicable, then it would only be because of a narrow specific set of facts.  Specifically, if there are government employees working in the building, but not residing there, and if the possession is not expressly authorized by the head security official for the building.