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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 01-23-2013, 7:25 AM
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Default 2013 CA SB 127 Gaines Firearms Prohibition mentally ill

Gotta admit I'm a bit at a loss to find the changes they say here, but in the description, they say it removes the authority of a judge to certify a previously adjudicated mentally ill or conservatee is now able to possess a firearm:

Quote:
LEGISLATIVE COUNSEL'S DIGEST


SB 127, as introduced, Gaines. Firearms: mentally disordered
persons: possession.
Existing law prohibits a person who has been adjudicated by a
court of any state to be a danger to others as a result of a mental
disorder or mental illness, or who has been adjudicated to be a
mentally disordered sex offender, after October 1, 1955, from
receiving or possessing any firearm or any other deadly weapon unless
the person has been issued a certificate by the court of
adjudication stating that the person may possess a firearm or any
other deadly weapon. A person who violates or attempts to violate
this provision is guilty of a felony or a misdemeanor.
This bill would prohibit persons adjudicated to be a danger
pursuant to the above provisions after January 1, 2014, from
receiving or possessing any firearm or any other deadly weapon and
remove the authority of a court to issue a certificate for that
person to possess a firearm or any other deadly weapon.
Because a
violation of above prohibition would be a crime, this bill would
impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 8103 of the Welfare and Institutions Code is
amended to read:
8103. (a) (1) No Except as provided in
paragraph (2), no person who , after October 1, 1955,
has been adjudicated by a court of any state to be a danger to
others as a result of a mental disorder or mental illness, or who has
been adjudicated to be a mentally disordered sex offender, shall
purchase or receive, or attempt to purchase or receive, or have in
his or her possession, custody, or control any firearm or any other
deadly weapon unless there has been issued to the person a
certificate by the court of adjudication upon release from treatment
or at a later date stating that the person may possess a firearm or
any other deadly weapon without endangering others, and the person
has not, subsequent to the issuance of the certificate, again been
adjudicated by a court to be a danger to others as a result of a
mental disorder or mental illness.
(2) No person who, after January 1, 2014, has been adjudicated by
a court of any state to be a danger to others as a result of a mental
disorder or mental illness, or who has been adjudicated to be a
mentally disordered sex offender, shall purchase or receive, or
attempt to purchase or receive, or have in his or her possession,
custody, or control, any firearm or any other deadly weapon.

(2)
(3) The court shall immediately notify the Department
of Justice of the court order finding the individual to be a person
described in paragraph (1) or (2) . The court shall also
notify the Department of Justice of any certificate issued as
described in paragraph (1).
(b) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of murder, mayhem, a violation of
Section 207, 209, or 209.5 of the Penal Code in which the victim
suffers intentionally inflicted great bodily injury, carjacking or
robbery in which the victim suffers great bodily injury, a violation
of Section 451 or 452 of the Penal Code involving a trailer coach, as
defined in Section 635 of the Vehicle Code, or any dwelling house, a
violation of paragraph (1) or (2) of subdivision (a) of Section 262
or paragraph (2) or (3) of subdivision (a) of Section 261 of the
Penal Code, a violation of Section 459 of the Penal Code in the first
degree, assault with intent to commit murder, a violation of Section
220 of the Penal Code in which the victim suffers great bodily
injury, a violation of Section 18715, 18725, 18740, 18745, 18750, or
18755 of the Penal Code, or of a felony involving death, great bodily
injury, or an act which poses a serious threat of bodily harm to
another person, or a violation of the law of any other state or the
United States that includes all the elements of any of the above
felonies as defined under California law, shall purchase or receive,
or attempt to purchase or receive, or have in his or her possession
or under his or her custody or control any firearm or any other
deadly weapon.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1).
(c) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of any crime other than those
described in subdivision (b) shall purchase or receive, or attempt to
purchase or receive, or shall have in his or her possession,
custody, or control any firearm or any other deadly weapon unless the
court of commitment has found the person to have recovered sanity,
pursuant to Section 1026.2 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1). The court shall also notify the Department of Justice
when it finds that the person has recovered his or her sanity.
(d) (1) No person found by a court to be mentally incompetent to
stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code or
the law of any other state or the United States, shall purchase or
receive, or attempt to purchase or receive, or shall have in his or
her possession, custody, or control, any firearm or any other deadly
weapon, unless there has been a finding with respect to the person of
restoration to competence to stand trial by the committing court,
pursuant to Section 1372 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be mentally incompetent as
described in paragraph (1). The court shall also notify the
Department of Justice when it finds that the person has recovered his
or her competence.
(e) (1) No person who has been placed under conservatorship by a
court, pursuant to Section 5350 or the law of any other state or the
United States, because the person is gravely disabled as a result of
a mental disorder or impairment by chronic alcoholism, shall purchase
or receive, or attempt to purchase or receive, or shall have in his
or her possession, custody, or control, any firearm or any other
deadly weapon while under the conservatorship if, at the time the
conservatorship was ordered or thereafter, the court which imposed
the conservatorship found that possession of a firearm or any other
deadly weapon by the person would present a danger to the safety of
the person or to others. Upon placing any person under
conservatorship, and prohibiting firearm or any other deadly weapon
possession by the person, the court shall notify the person of this
prohibition.
(2) The court shall immediately notify the Department of Justice
of the court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession by the
person as described in paragraph (1). The notice shall include the
date the conservatorship was imposed and the date the conservatorship
is to be terminated. If the conservatorship is subsequently
terminated before the date listed in the notice to the Department of
Justice or the court subsequently finds that possession of a firearm
or any other deadly weapon by the person would no longer present a
danger to the safety of the person or others, the court shall
immediately notify the Department of Justice.
(3) All information provided to the Department of Justice pursuant
to paragraph (2) shall be kept confidential, separate, and apart
from all other records maintained by the Department of Justice, and
shall be used only to determine eligibility to purchase or possess
firearms or other deadly weapons. Any person who knowingly furnishes
that information for any other purpose is guilty of a misdemeanor.
All the information concerning any person shall be destroyed upon
receipt by the Department of Justice of notice of the termination of
conservatorship as to that person pursuant to paragraph (2).
(f) (1) No person who has been (A) taken into custody as provided
in Section 5150 because that person is a danger to himself, herself,
or to others, (B) assessed within the meaning of Section 5151, and
(C) admitted to a designated facility within the meaning of Sections
5151 and 5152 because that person is a danger to himself, herself, or
others, shall own, possess, control, receive, or purchase, or
attempt to own, possess, control, receive, or purchase any firearm
for a period of five years after the person is released from the
facility. A person described in the preceding sentence, however, may
own, possess, control, receive, or purchase, or attempt to own,
possess, control, receive, or purchase any firearm if the superior
court has, pursuant to paragraph (5), found that the people of the
State of California have not met their burden pursuant to paragraph
(6).
.

See next post
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Old 01-23-2013, 7:28 AM
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Continued

Quote:
(2) (A) For each person subject to this subdivision, the facility
shall immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the Department of
Justice, containing information that includes, but is not limited to,
the identity of the person and the legal grounds upon which the
person was admitted to the facility.
Any report submitted pursuant to this paragraph shall be
confidential, except for purposes of the court proceedings described
in this subdivision and for determining the eligibility of the person
to own, possess, control, receive, or purchase a firearm.
(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.
(3) Prior to, or concurrent with, the discharge, the facility
shall inform a person subject to this subdivision that he or she is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of five years. Simultaneously,
the facility shall inform the person that he or she may request a
hearing from a court, as provided in this subdivision, for an order
permitting the person to own, possess, control, receive, or purchase
a firearm. The facility shall provide the person with a form for a
request for a hearing. The Department of Justice shall prescribe the
form. Where the person requests a hearing at the time of discharge,
the facility shall forward the form to the superior court unless the
person states that he or she will submit the form to the superior
court.
(4) The Department of Justice shall provide the form upon request
to any person described in paragraph (1). The Department of Justice
shall also provide the form to the superior court in each county. A
person described in paragraph (1) may make a single request for a
hearing at any time during the five-year period. The request for
hearing shall be made on the form prescribed by the department or in
a document that includes equivalent language.
(5) Any person who is subject to paragraph (1) who has requested a
hearing from the superior court of his or her county of residence
for an order that he or she may own, possess, control, receive, or
purchase firearms shall be given a hearing. The clerk of the court
shall set a hearing date and notify the person, the Department of
Justice, and the district attorney. The people of the State of
California shall be the plaintiff in the proceeding and shall be
represented by the district attorney. Upon motion of the district
attorney, or on its own motion, the superior court may transfer the
hearing to the county in which the person resided at the time of his
or her detention, the county in which the person was detained, or the
county in which the person was evaluated or treated. Within seven
days after the request for a hearing, the Department of Justice shall
file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The court shall set the hearing
within 30 days of receipt of the request for a hearing. Upon showing
good cause, the district attorney shall be entitled to a continuance
not to exceed 14 days after the district attorney was notified of the
hearing date by the clerk of the court. If additional continuances
are granted, the total length of time for continuances shall not
exceed 60 days. The district attorney may notify the county mental
health director of the hearing who shall provide information about
the detention of the person that may be relevant to the court and
shall file that information with the superior court. That information
shall be disclosed to the person and to the district attorney. The
court, upon motion of the person subject to paragraph (1)
establishing that confidential information is likely to be discussed
during the hearing that would cause harm to the person, shall conduct
the hearing in camera with only the relevant parties present, unless
the court finds that the public interest would be better served by
conducting the hearing in public. Notwithstanding any other law,
declarations, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code shall be admissible at the
hearing under this section.
(6) The people shall bear the burden of showing by a preponderance
of the evidence that the person would not be likely to use firearms
in a safe and lawful manner.
(7) If the court finds at the hearing set forth in paragraph (5)
that the people have not met their burden as set forth in paragraph
(6), the court shall order that the person shall not be subject to
the five-year prohibition in this section on the ownership, control,
receipt, possession, or purchase of firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(8) Where the district attorney declines or fails to go forward in
the hearing, the court shall order that the person shall not be
subject to the five-year prohibition required by this subdivision on
the ownership, control, receipt, possession, or purchase of firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the Department of Justice shall, within
15 days, delete any reference to the prohibition against firearms
from the person's state mental health firearms prohibition system
information.
(9) Nothing in this subdivision shall prohibit the use of reports
filed pursuant to this section to determine the eligibility of
persons to own, possess, control, receive, or purchase a firearm if
the person is the subject of a criminal investigation, a part of
which involves the ownership, possession, control, receipt, or
purchase of a firearm.
(g) (1) No person who has been certified for intensive treatment
under Section 5250, 5260, or 5270.15 shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase, any firearm for a period of five years.
Any person who meets the criteria contained in subdivision (e) or
(f) who is released from intensive treatment shall nevertheless, if
applicable, remain subject to the prohibition contained in
subdivision (e) or (f).
(2) (A) For each person certified for intensive treatment under
paragraph (1), the facility shall immediately submit a report to the
Department of Justice, on a form prescribed by the department,
containing information regarding the person, including, but not
limited to, the legal identity of the person and the legal grounds
upon which the person was certified. Any report submitted pursuant to
this paragraph shall only be used for the purposes specified in
paragraph (2) of subdivision (f).
(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.
(3) Prior to, or concurrent with, the discharge of each person
certified for intensive treatment under paragraph (1), the facility
shall inform the person of that information specified in paragraph
(3) of subdivision (f).
(4) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, control, receive, or purchase firearms. At
the time the petition is filed, the clerk of the court shall set a
hearing date and notify the person, the Department of Justice, and
the district attorney. The people of the State of California shall be
the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or on its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of his or her
detention, the county in which the person was detained, or the county
in which the person was evaluated or treated. Within seven days
after receiving notice of the petition, the Department of Justice
shall file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The district attorney shall be
entitled to a continuance of the hearing to a date of not less than
14 days after the district attorney was notified of the hearing date
by the clerk of the court. The district attorney may notify the
county mental health director of the petition, and the county mental
health director shall provide information about the detention of the
person that may be relevant to the court and shall file that
information with the superior court. That information shall be
disclosed to the person and to the district attorney. The court, upon
motion of the person subject to paragraph (1) establishing that
confidential information is likely to be discussed during the hearing
that would cause harm to the person, shall conduct the hearing in
camera with only the relevant parties present, unless the court finds
that the public interest would be better served by conducting the
hearing in public. Notwithstanding any other provision of law, any
declaration, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at the
hearing under this section. If the court finds by a preponderance of
the evidence that the person would be likely to use firearms in a
safe and lawful manner, the court may order that the person may own,
control, receive, possess, or purchase firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(h) For all persons identified in subdivisions (f) and (g),
facilities shall report to the Department of Justice as specified in
those subdivisions, except facilities shall not report persons under
subdivision (g) if the same persons previously have been reported
under subdivision (f).
Additionally, all facilities shall report to the Department of
Justice upon the discharge of persons from whom reports have been
submitted pursuant to subdivision (f) or (g). However, a report shall
not be filed for persons who are discharged within 31 days after the
date of admission.
(i) Every person who owns or possesses or has under his or her
custody or control, or purchases or receives, or attempts to purchase
or receive, any firearm or any other deadly weapon in violation of
this section shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code or in a county jail
for not more than one year.
(j) "Deadly weapon," as used in this section, has the meaning
prescribed by Section 8100.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution
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Old 01-23-2013, 8:06 AM
live2suck live2suck is offline
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leginfo link

http://leginfo.legislature.ca.gov/fa...201320140SB127

This does not give me warm fuzzies, so now the mentally disabled aren't allowed cooking utensils or power tools?

Quote:
SECTION 1.
Section 8103 of the Welfare and Institutions Code is amended to read:

8103.
(a) (1) No Except as provided in paragraph (2), no person who, after October 1, 1955, has been adjudicated by a court of any state to be a danger to others as a result of a mental disorder or mental illness, or who has been adjudicated to be a mentally disordered sex offender, shall purchase or receive, or attempt to purchase or receive, or have in his or her possession, custody, or control any firearm or any other deadly weapon unless there has been issued to the person a certificate by the court of adjudication upon release from treatment or at a later date stating that the person may possess a firearm or any other deadly weapon without endangering others, and the person has not, subsequent to the issuance of the certificate, again been adjudicated by a court to be a danger to others as a result of a mental disorder or mental illness.

(2) No person who, after January 1, 2014, has been adjudicated by a court of any state to be a danger to others as a result of a mental disorder or mental illness, or who has been adjudicated to be a mentally disordered sex offender, shall purchase or receive, or attempt to purchase or receive, or have in his or her possession, custody, or control, any firearm or any other deadly weapon.

(2)
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Last edited by live2suck; 01-23-2013 at 8:12 AM..
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Old 01-23-2013, 8:28 AM
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Quote:
Originally Posted by live2suck View Post
leginfo link

http://leginfo.legislature.ca.gov/fa...201320140SB127

This does not give me warm fuzzies, so now the mentally disabled aren't allowed cooking utensils or power tools?
No, it's been defined specifically here

Quote:
(e) "Deadly weapon," as used in this section and in Sections 8101,
8102, and 8103, means any weapon, the possession or concealed
carrying of which is prohibited by any provision listed in Section
16590 of the Penal Code.

Quote:
16590. As used in this part, "generally prohibited weapon" means
any of the following:
(a) An air gauge knife, as prohibited by Section 20310.
(b) Ammunition that contains or consists of a flechette dart, as
prohibited by Section 30210.
(c) A ballistic knife, as prohibited by Section 21110.
(d) A belt buckle knife, as prohibited by Section 20410.
(e) A bullet containing or carrying an explosive agent, as
prohibited by Section 30210.
(f) A camouflaging firearm container, as prohibited by Section
24310.
(g) A cane gun, as prohibited by Section 24410.
(h) A cane sword, as prohibited by Section 20510.
(i) A concealed dirk or dagger, as prohibited by Section 21310.
(j) A concealed explosive substance, other than fixed ammunition,
as prohibited by Section 19100.
(k) A firearm that is not immediately recognizable as a firearm,
as prohibited by Section 24510.
(l) A large-capacity magazine, as prohibited by Section 32310.
(m) A leaded cane or an instrument or weapon of the kind commonly
known as a billy, blackjack, sandbag, sandclub, sap, or slungshot, as
prohibited by Section 22210.
(n) A lipstick case knife, as prohibited by Section 20610.
(o) Metal knuckles, as prohibited by Section 21810.
(p) A metal military practice handgrenade or a metal replica
handgrenade, as prohibited by Section 19200.
(q) A multiburst trigger activator, as prohibited by Section
32900.
(r) A nunchaku, as prohibited by Section 22010.
(s) A shobi-zue, as prohibited by Section 20710.
(t) A short-barreled rifle or short-barreled shotgun, as
prohibited by Section 33215.
(u) A shuriken, as prohibited by Section 22410.
(v) An unconventional pistol, as prohibited by Section 31500.
(w) An undetectable firearm, as prohibited by Section 24610.
(x) A wallet gun, as prohibited by Section 24710.
(y) A writing pen knife, as prohibited by Section 20910.
(z) A zip gun, as prohibited by Section 33600.
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Old 01-23-2013, 1:14 PM
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I don't understand the point of this bill. Federal law already imposes a lifetime firearms prohibition when someone is adjudicated as being mentally defective. AFAIK there are no appeals allowed unless the state has implemented a means to appeal (and CA never has). State law does allow for an appeal from state prohibitions, but it doesn't matter even if someone wins, since the federal prohibition is not affected.

Welfare and Institutions Code 8100 already applies the prohibitions to "any firearm or any other deadly weapon" so he isn't broadening the law to include deadly weapons (they are already included).

So... once again, I don't understand the point of this bill. Is this a political maneuver by Gaines to show that he is tough on crime, or is he not aware of the federal law provisions (or doesn't care)? Something else?
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Old 01-23-2013, 1:33 PM
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Originally Posted by GrizzlyGuy View Post
I don't understand the point of this bill.
While a Republican he's a politician. It's pandering, just like his opponents on the left.

Gaines also wants to force you to wear helmets while skiing and had a hand in banning alcohol on the American and Sacramento Rivers during summer holidays. He's one of those Republicans who wants you to think he cares about liberty, but in reality it's just lip service.
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Old 01-23-2013, 1:55 PM
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Quote:
Originally Posted by NorCalMik View Post
While a Republican he's a politician. It's pandering, just like his opponents on the left.

Gaines also wants to force you to wear helmets while skiing and had a hand in banning alcohol on the American and Sacramento Rivers during summer holidays. He's one of those Republicans who wants you to think he cares about liberty, but in reality it's just lip service.
I'm not quite sure who he's pandering to though. His true audience might be quite well over the heads of his actual constituents.
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Old 01-23-2013, 2:01 PM
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Quote:
Originally Posted by GrizzlyGuy View Post
I don't understand the point of this bill. Federal law already imposes a lifetime firearms prohibition when someone is adjudicated as being mentally defective. AFAIK there are no appeals allowed unless the state has implemented a means to appeal (and CA never has). State law does allow for an appeal from state prohibitions, but it doesn't matter even if someone wins, since the federal prohibition is not affected.

So... once again, I don't understand the point of this bill. Is this a political maneuver by Gaines to show that he is tough on crime, or is he not aware of the federal law provisions (or doesn't care)? Something else?
Maybe he's catering to a California that seeks to be held to its' own standards, not the feds. federal law can always change.
California went its' own way on immigration laws, drug laws, and treaties with other countries involving greenhouse gas, so its' not like this would be breaking new ground
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Old 01-23-2013, 2:16 PM
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Originally Posted by AyatollahGondola View Post
I'm not quite sure who he's pandering to though. His true audience might be quite well over the heads of his actual constituents.
Think statewide office once termed out.
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