BILL ANALYSIS SENATE COMMITTEE ON Public Safety Senator Bruce McPherson, Chair A 2003-2004 Regular Session B 5 0 AB 50 (Koretz) As Amended June 2, 2003 Hearing date: July 1, 2003 Penal Code and Uncodified Law SH:br .50 CALIBER BMG RIFLES AND AMMUNITION : REGULATION - PROHIBITIONS - PENALTIES HISTORY Source: Trauma Center; Brady Campaign to Prevent Gun Violence; City of Los Angeles (co-sponsors) Prior Legislation: AB 2222 (Koretz/2002) - Assembly Committee on Public Safety; failed passage Support: Los Angeles County District Attorneys Association; California Nurses Association; Los Angeles Police Chief; Los Angeles County Sheriff's Department; California Organization of Police and Sheriffs (COPS); League of California Cities; Legal Community Against Violence; Coalition to Stop Gun Violence; California Chapter, American College of Emergency Physicians; Women Against Gun Violence; Physicians for a Violence-free Society; Community Wellness Partnership of Pomona; Consumer Federation of California Opposition:Fifty Caliber Shooters Association, Inc. (FCSA); Howard Jarvis Taxpayers Association; National Rifle Association; Safari Club International; Outdoor (More) AB 50 (Koretz) Page 2 Sportsman's Coalition of California; California Sportsman's Lobby, Inc.; EDM Arms; President of McMillan Brothers Rifle Co, Inc; California Rifle and Pistol Association; Fifty Caliber Shooters Policy Institute; NRA Members' Council of Silicon Valley; Gun Owners of California; President, the ROBAR Companies, Inc.; President, ArmaLite, Inc.; one individual letter Assembly Floor Vote: Ayes 43 - Noes 28 KEY ISSUES SHOULD .50 CALIBER BMG RIFLES, AS DEFINED, BE ADDED TO THE ROBERTI-ROOS ASSAULT WEAPONS CONTROL ACT OF 1989, THEREBY REQUIRING REGISTRATION; GENERALLY PROHIBITING POSSESSION, MANUFACTURE, AND IMPORTATION OR SALE - WITH SPECIFIED EXEMPTIONS; AND APPLYING PENALTIES FOR "UNLAWFUL" POSSESSION, AS SPECIFIED? SHOULD .50 BMG RIFLE AMMUNITION, AS DEFINED, BE ADDED TO THE LIST OF ITEMS WHICH MAKES A PERSON SUBJECT TO AN ALTERNATE FELONY/MISDEMEANOR IF HE OR SHE MANUFACTURES OR CAUSES TO BE MANUFACTURED, IMPORTS INTO THE STATE, KEEPS FOR SALE, OR OFFERS OR EXPOSES FOR SALE, OR WHO GIVES, LENDS, OR POSSESSES ANY OF THOSE ITEMS, WITH SPECIFIED EXEMPTIONS? SHOULD .50 CALIBER BMG RIFLES BE ADDED TO FIREARMS PENALTY ENHANCEMENT PROVISIONS IN LAW, SO THAT, FOR EXAMPLE, AN ASSAULT ON ANY PERSON - CURRENTLY A WOBBLER IF WITH A FIREARM NOT A MACHINEGUN OR ASSAULT WEAPON - IS INSTEAD A FELONY PUNISHABLE BY 4, 8, OR 12 YEARS IN THE STATE PRISON IF COMMITTED WITH A .50 CALIBER BMG RIFLE? SHOULD NUMEROUS RELATED CHANGES IN LAW BE MADE? PURPOSE The purpose of this bill is to (1) add .50 caliber BMG rifles, as defined, to the Roberti-Roos Assault Weapons Control Act of 1989, thereby requiring registration; generally prohibiting (More) AB 50 (Koretz) Page 3 possession, manufacture, and importation or sale - with specified exemptions; and applying penalties for "unlawful" possession, as specified; (2) add .50 BMG rifle ammunition, as defined, to the list of items which makes a person subject to an alternate felony/misdemeanor if he or she manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any of those items, with specified exemptions; (3) add .50 caliber BMG rifles to firearms penalty enhancement provisions in law, so that, for example, an assault on any person - currently a wobbler if with a firearm not a machinegun or assault weapon - is instead a felony punishable by 4, 8, or 12 years in the state prison if committed with a .50 caliber BMG rifle; and (4) make numerous related changes in law be made. Existing law prohibits specified persons from owning or possessing firearms, including all felons who are subject to that prohibition for life. (Penal Code 12021 and 12021.1.) Existing law provides that no person prohibited from owning or possessing a firearm under Section 12021 or 12021.1 of the Penal Code or Section 8100 or 8103 of the Welfare and Institutions Code shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition and states that "ammunition" shall include, but not be limited to, any bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with a deadly consequence. Violations are punishable as an alternate felony/misdemeanor. (Penal Code 12316(b).) Existing law defines as a "restricted" destructive device as any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun (smooth or rifled bore) conforming to the definition of a "destructive device" found in subsection (b) of Section 179.11 of Title 27 of the Code of Federal Regulations, shotgun ammunition (single projectile or shot), antique rifle, or an antique cannon. For purposes of this section, the term "antique cannon" means any cannon manufactured before January 1, 1899, which has been rendered incapable of firing or for (More) AB 50 (Koretz) Page 4 which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade. The term "antique rifle" means a firearm conforming to the definition of an "antique firearm" in Section 179.11 of Title 27 of the Code of Federal Regulations. (Penal Code 12301(a)(3).) Existing law provides that any person, firm or corporation who, within this state, sells, offers for sale, possesses or knowingly transports any fixed ammunition of a caliber greater than .60 caliber, except as provided in this chapter, is guilty of a public offense and upon conviction thereof shall be punished by imprisonment in the county jail for a term not to exceed six months or by a fine not to exceed $1,000, or by both such fine and imprisonment. A second or subsequent conviction shall be punished by imprisonment in the county jail for a term not to exceed one year, or by imprisonment in the state prison, or by a fine not to exceed $3,000, or by both such fine and imprisonment. (Penal Code 12304.) Existing law provides that it is an offense for anyone who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses specified prohibited weapons, including certain firearms, punishable by imprisonment in a county jail not exceeding one year, or in the state prison; existing law prohibits items including any cane gun or wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains or consists of any flechette dart, any bullet containing or carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, and other specified items; provides that the prohibition shall not apply to specified persons and circumstances, such as law enforcement and movie props. (Penal Code 12020.) Existing law provides specific enhancements for the criminal (More) AB 50 (Koretz) Page 5 use of firearms, generally punishable as an alternate misdemeanor/felony with a felony punishment applying to assaults on another with a semiautomatic firearm or a machinegun (3, 6, or 9 years and 4, 8, or 12 years, respectively); such assaults upon a peace officer or a firefighter are punishable as a felony punishable by imprisonment in the state prison for 4, 6, or 8 years except that if the firearm is a semiautomatic firearms the prison terms is 5, 7, or 9 years and if the firearm is a machine gun or an assault weapons the prison term is 6, 9, or 12 years. (Penal Code 245.) NOTE: Numerous other penalties are applicable for other crimes committed with a firearm. Existing law creates the "Prohibited Armed Persons File" database maintained by the Department of Justice. (Penal Code 12011.) Existing law provides for various enhancements and sentencing "restrictions" and requirements for crimes committed with a firearm. (Penal Code 12022.) Existing law provides for various enhancements for the personal use of a firearm and that the firearm be deemed a nuisance and disposed of, as specified. (Penal Code 12022.5.) Existing law allows the Department of Justice to issue permits to licensed firearms dealers regarding large capacity magazines and out-of-state clients. (Penal Code 12079.) Existing law generally requires that the sale, loan or transfer of a firearm (handguns, rifles and shotguns) in California must be conducted through a state-licensed firearms dealer or through a local sheriff's department in counties of less than 200,000 population. This requirement is applicable to both purchases from a licensed firearms dealer and private-party transactions, which must be made through a licensed dealer or a local sheriff's department in smaller counties. A 10-day waiting period, background check, and handgun safety certificate for handgun transfers are required prior to delivery of the firearm. (Penal Code 12072(c) and (d) and 12084.) (More) AB 50 (Koretz) Page 6 Existing law requires a license for persons to manufacture firearms in California. (Penal Code 12085.) Existing law provides the following regarding machineguns: Any person, firm or corporation possessing or transporting a machinegun and that does not qualify under one of the statutory exceptions is guilty of a felony, punishable by 4, 6 or 8 years in state prison or by a fine not to exceed $10,000. (Penal Code 12220(a).) Defines a "machinegun" as any weapon that fires more than one shot automatically without manual reloading, by a single function of the trigger, any part or combination of parts designed and intended for use in converting, and any weapon deemed by the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) as readily convertible to a machinegun. (Penal Code 12200.) Authorizes DOJ to issue and revoke permits for the possession, manufacture, transportation and sale of machineguns. (Penal Code 12230, 12233 and 12250.) Existing law provides the following regarding "assault weapons": Prohibits selling, manufacturing, distributing, transporting, importing, possessing or lending semi-automatic assault weapons in California. (The Roberti-Roos Assault Weapons Control Act of 1989, Penal Code 12275-12290.) Any person who unlawfully manufactures an assault weapon is guilty of a felony, punishable by imprisonment in the state prison for 4r, 6, or 8 years. (Penal Code 12280(a).) Any person who unlawfully possesses an assault weapon is guilty of a public offense, punishable by imprisonment in the state prison for 16 months, 2 or 3 years or by imprisonment in the county jail not exceeding one year. However, if the person presents proof the weapon was lawfully possessed prior (More) AB 50 (Koretz) Page 7 to the effective date of the Act, it is punishable as an infraction as specified. (Penal Code 12280(b).) Allows a person who lawfully possessed an assault weapon prior to June 1, 1989 to register the weapon with the DOJ and to keep the weapon under specified restrictions. (Penal Code 12285.) Contains a list which enumerates, by model and manufacturer, semiautomatic rifles, pistols, and shotguns deemed to be assault weapons. (Penal Code 12276.) Provides a generic definition of "assault weapons" and makes manufacturing, importing, selling, lending, or giving a large-capacity magazine (any ammunition feeding device with the capacity to accept more that 10 rounds) an alternate felony/misdemeanor with specified exceptions. (Penal Code 12276.1.(a) and Penal Code 12020.) Authorizes the Attorney General to file a petition in superior court to declare that additional weapons are prohibited because they are essentially identical to weapons on the list of prohibited assault weapons. (Penal Code 12276.5(a).) This bill does the following: Adds .50 caliber BMG rifle to the Roberti-Roos Assault Weapons Control Act of 1989. Adds .50 BMG rifle ammunition to the list of items which makes a person subject to an alternate felony/misdemeanor if he or she manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any of those items; specific exemptions apply. Specifically, this bill does the following: Provides that any person who commits an assault with a .50 BMG rifle is guilty of a felony, punishable by 4, 8, or 12 years (More) AB 50 (Koretz) Page 8 in state prison. Provides that any person who commits an assault against a peace officer or firefighter with a .50 BMG rifle is guilty of a felony, punishable by 6, 9, or 12 years in state prison. Provides that registration information regarding any person who possesses or owns a .50 BMG rile shall be included in the Prohibited Armed Person File maintained by the Department of Justice (DOJ), as specified. Provides that any person who manufactures, imports, sells, gives, lends, or possesses any .50 BMG cartridge ammunition is guilty of an alternate felony/misdemeanor, punishable by up to one year in county jail or 16 months, 2 or 3 years in state prison, except if it is: a) A relic, curio, memorabilia or display item; b) Permanently altered to prevent use of live ammunition; c) Possessed or owned by or for a federal, state, county, city and county, or city law enforcement agency; d) Possessed or owned by or for a sworn peace officer who is authorized to carry a firearm in the scope and course of his or her employment; e) Possessed or owned by a state-licensed firearms dealer; f) Lent between two individuals, as specified; g) Possessed or owned by a person returning to California who legally possessed the ammunition in California prior to January 1, 2004; h) Given or lent to a gunsmith for maintenance or (More) AB 50 (Koretz) Page 9 repair and subsequently returned to the owner; i) The person has a DOJ permit authorizing possession, transportation or sale; j) Being manufactured for export to sworn peace officers for use within the course and scope of their employment, law enforcement departments and agencies, governmental agencies or the military; k) Being loaned for use as a prop in a motion picture, television, or video production; or, being purchased by a special weapons permit holder for specified purposes; l) Provides that any person who may legally manufacture, import, keep for sale, sale, offer, lend, or possess a .50 BMG rifle pursuant to the Roberti-Roos Act may legally possess the .50 BMG cartridge; m) Provides that any person who may legally manufacture, import, keep for sale, sale, offer, lend, or possess a .50 BMG rifle pursuant to the Roberti-Roos Act may legally possess the .50 BMG cartridge; n) Possessed by a person not otherwise prohibited from possessing a firearm and: - The person possessed the .50 BMG cartridge as of January 1, 2004. - The person possesses the .50 BMG cartridge as a relic, curio, memorabilia, or display item. - The person possesses the .50 BMG cartridge within his or her place of residence, place of business, or on private property owned or lawfully possessed by that person. o) Possessed by a person with a permit from the (More) AB 50 (Koretz) Page 10 Department of Justice to possess a .50 BMG cartridge. Defines a ".50 BMG cartridge" as being: a) 5.54 inches long from the base to the tip of the bullet. b) A cartridge measuring 0.510 of an inch to, and including, 0.511 of an inch in diameter. c) A case base diameter for the cartridge measuring 0.800 or an inch to, and including, 0.804 of an inch. d) The cartridge case length is 3.910 inches; or, e) A center-fire cartridge in 50 caliber or .50 BMG. Provides that where a person uses a .50 BMG rifle during the commission of a felony, he or she shall be subject to all the same sentencing enhancements that currently apply to the use of a firearm and that the .50 BMG rifle be deemed a nuisance and disposed of, as specified. Allows the DOJ to issue permits "upon a showing of good cause" for (1) licensed dealers for the possession, transportation, or sale of .50 BMG cartridges to out-of-state clients and (2) for collectors who wish to possess .50 BMG cartridges. Codifies legislative findings and declarations that .50 BMG rifles pose a clear and present terrorist threat to the health, safety and security of all residents and states that it is the legislative intent to establish a registration and permit process for the lawful sale and possession of the .50 BMG rifle. Defines a ".50 BMG rifle" as a center-fire rifle designed or redesigned to fire the .50 BMG cartridge and provides an exemption for any antique firearm, as specified. (More) AB 50 (Koretz) Page 11 Provides that any person who unlawfully manufactures a .50 BMG rifle is guilty of a felony, punishable by 4, 6 or 8 years in state prison. Certain exemptions are provided where the firearm is being manufactured for specified sworn peace officers and law enforcement departments and agencies. Provides that where a person transfers a .50 BMG to a minor, one-year enhancement will be added to the sentence for the underlying crime. Provides that any person who unlawfully possesses a .50 BMG rifle is guilty of a public offense, punishable by imprisonment in the state prison for 16 months, 2 or 3 years or by imprisonment in the county jail not exceeding one year. Includes the .50 BMG rifle within the assault weapons provisions which generally make it a felony to manufacture, distribute, transport, import, keep for sale, offer, give or lend the firearm, with the standard exemptions provided to sworn peace officers and law enforcement departments and agencies. Requires a law enforcement officer who possesses or receives a .50 BMG rifle before January 1, 2004 to register the rifle by July 1, 2004; where the officer receives the .50 BMG rifle after January 1, 2004, he or she is required to register the firearm within 180 days of receipt of the firearm. Allows the lawful manufacture of .50 BMG rifles where the person obtains a DOJ permit. Provides many of the same standard exemptions for the .50 BMG rifle currently are provided under several assault weapon provisions (e.g., manufacturing the firearm for law enforcement, an inheritance, or lending and transporting to a .50 BMG rifle competitive match or league). (More) AB 50 (Koretz) Page 12 Requires that a person who lawfully possesses a .50 BMG rifle as of December 31, 2003 must register the firearm within 180 days with DOJ. Authorizes DOJ to charge a $25 processing fee for registration and allows that fee to be adjusted based on the legislatively approved cost-of-living index. Prohibits the transfer of a .50 BMG rifle other than to a licensed gun dealer, as specified and with the standard exceptions. Establishes a method to register a lawfully owned .50 BMG rifle and provides that a person who registered his or her .50 BMG rifle as an assault weapon will not be required to re-register that firearm. Persons who lawfully possess a .50 BMG rifle and move into this state shall either obtain a machinegun permit or cause the weapon to be delivered to a licensed dealer, as specified. Requires that a person who lawfully possesses a .50 BMG rifle registered with DOJ and intends to use it in a manner other than at a target range, shooting club, while attending a exhibition, or transporting the firearm under specified conditions to obtain a permit authorizing the special uses from DOJ. Provides that a person must obtain a permit from DOJ to lawfully acquire a .50 BMG rifle after January 1, 2004. Authorizes DOJ to issue a permit to a federally licensed manufacturer, upon a finding of good cause for the manufacture of the .50 BMG rifle. Provides that a person may relinquish a .50 BMG rifle to a police or sheriff's department, as specified. Provides the standard provisions relative to police or dispatcher broadcast guidelines also provides for assault weapons. (More) AB 50 (Koretz) Page 13 Requires DOJ to conduct an education campaign to .50 BMG rifle dealers and national associations consisting of providing materials relative to the provisions of this bill to .50 BMG rifle dealers and recognized national associations. Authorizes a licensed firearm dealer to transport, display at gun shows, sell and transfer for the purposes of servicing and repair of a .50 BMG rifle, as specified. Makes a number of other minor technical amendments. States in uncodified law that it is not the intent of the Legislature in amending Sections 12020 and 12280 of the Penal Code by this act to supersede, restrict, or affect the application of any other law, and to that end the amendments are cumulative. However, an act or omission punishable under different ways by these amended sections and other provisions of law shall not be punished under more than one provision. COMMENTS 1. Need for This Bill According to the author: Fifty BMG caliber sniper rifles and .50 BMG ammunition are armaments designed for military applications involving the destruction of infrastructure and anti-personnel purposes. The military uses these weapons to destroy concrete structures, including bunkers, light armored vehicles, and stationary tactical targets such as fuel storage facilities, aircraft, communications structures and energy transfer stations. (More) AB 50 (Koretz) Page 14 Current California law recognizes 50 BMG caliber sniper rifles and their ammunition the same as any other rifle and does not differentiate between these 50 caliber war weapons and other rifles more commonly used for sport such as a .22, .30-06 or 12 gauge shot gun. Currently to purchase a 50 BMG caliber sniper rifle one only has to complete a background check and wait ten days to receive these extremely destructive war weapons. Current law also requires that records of rifle purchases be destroyed immediately upon conclusion of the sale, thus we currently have no way of knowing who, or how may persons, currently are in legal possession of 50 BMG caliber weapons. 50 BMG caliber weapons and their ammunition have increasingly been manufactured and marketed to civilians over the past several years. There is increasing evidence of these weapons falling into the hands of political extremists and terrorists, and more recently drug and street gangs. The manufacturers of these weapons have been reducing the weight, enhancing portability and lowering the price to own these weapons, so there is currently an expanding proliferation of these war weapons. The facts indicate that 50 BMG caliber sniper weapons and .50 BMG ammunition present a clear and present public health and safety danger to California and the nation. It is time for California to strictly regulate these weapons just as we have other war weapons such as assault weapons by closing off future supplies and requiring those who currently possess them to come forward and register them with the state Department of Justice. 2. Additional Background about the .50 BMG Rifle The Assembly Committee on Public Safety analysis of this bill contains the following: (More) AB 50 (Koretz) Page 15 The .50 caliber sniper rifle weighs between 28 to 60 pounds and comes in bolt action and semiautomatic versions. The term ".50 BMG" stands for Browning machine gun (one of the earliest firearms to use the ammunition) and is a technical designation for the round used in the weapon. The diameter of this type of round is one-half inch (or ".50") and the lengths vary from about three to six inches. Manufacturers of the rifles claim that the rifle is accurate up to 2,000 yards and effective up to 7,500 yards. The .50 BMG cartridge is similar to common hunting calibers. The larger safari hunting cartridges are also available to the public. The .50 caliber ammunition, as well as other rounds used to hunt deer or larger game or for competitive shooting of 600 yards or greater, are capable of piercing through body armor. According to the United States General Accounting Office (GAO), the .50 caliber rifle gained popularity after it was first used in the 1991 Gulf War. It is now available on the open market and advertised in newspapers, magazines and on the Internet. GAO requested and obtained records from ATF [Bureau of Alcohol, Tobacco, and Firearms] regarding companies manufacturing the .50 caliber rifle between 1987 and 1998. The Barrett Company sold over 2,800 .50 caliber rifles in the civilian market. The majority of the weapons, over 2,200, were sold after the Gulf War in 1991. . . . The Military Sniper Weapon Regulation Act of 2001 was reintroduced as Senate Bill S.505 (Feinstein, Schumer, and Kennedy) and failed passage from the Committee on Finance. S.505 would have criminalized the possession of the .50 caliber rifle by most civilians (certificates would be required to legally possess the firearm) and imposes special regulations. S.505 was substantially similar to H.R. 2127, which failed passage as well and would have amended the Internal Revenue Code of 1986 to regulate (More) AB 50 (Koretz) Page 16 specified .50 caliber sniper weapons in the same manner as machineguns and other firearms. . . . The Violence Policy Center has issued two reports on the .50 caliber sniper rifle. [One Shot, One Kill (May 1999) and Voting from the Rooftops (October 2001).] Both reports stated that the unregulated sale of military sniper rifles to civilians creates a danger to national security as the rifles have the ability to shoot down aircraft. The second report also states that at least 25 Barrett .50 caliber sniper rifles were sold to the Al Qaeda network. [Voting from the Rooftops, pages 1 and 7, citing the transcript of the trial, United States of America v. Usama bin Laden, et al., United States District Court, Southern District of New York, February 14, 2001, pp. 18-19; "Al-Qaeda's Business Empire," Jane's Intelligence Review (August 1, 2001).] However, opponents of this bill provided an article which states that the Barrett .50 caliber sniper rifles were shipped in the late 1980's when the United States was supporting Afghanistan against the Soviet government. [Kopel, Dave. Guns and (Character) Assassination. December 21, 2001.] According to the article, Ronnie Barrett, President of Barrett Firearms stated, "The rifles were picked up by United States government trucks, shipped to United States government bases, and shipped to those Afghan freedom fighters." 3. .50 Caliber Sporting Associations The Fifty-Caliber Shooter's Association (FCSA) was established in 1985 and conducts 1,000-yard shooting competitions. FCSA sponsors approximately eight to ten 1,000-yard rifle matches per year in various places thought the continental United States. FCSA is affiliated with the National Rifle Association and has almost 2,000 members. GAO investigators reported that FCSA appeared to be an organization of law-abiding citizens engaged in legitimate sporting activity. (More) AB 50 (Koretz) Page 17 The United States Congress created the Civilian Marksmanship Program (CMP). The CMP's original purpose was to provide civilians with an opportunity to learn and practice marksmanship skills so they would be skilled marksmen if later called to serve in the United States military. Over the years, the emphasis of CMP shifted to focus on youth development through marksmanship. CMP promotes firearm safety training and rifle practice for all qualified United States citizens, with special emphasis on youth. CMP operates through a network of affiliated shooting clubs and associations that includes every state in the United States. The clubs and associations offer firearms safety training and marksmanship courses as well as the opportunity for continued practice and competition. The California Rifle and Pistol Association, Inc., is the designated California CMP association. There are 72 CMP-affiliated clubs. 4. Penalty Issues Involving This Bill This bill adds a new firearm to the Roberti-Roos Act, with felony penalties applicable for persons who possess such weapons in the future without registration, as specified. This bill also adds .50 caliber cartridges to Penal Code Section 12020, thus making possession and trade in such cartridges subject to a wobbler penalty, as specified. However, a person who has any felony convictions, as well as specified misdemeanor convictions, is already subject to a felony penalty for possessing firearms and an alternate felony/misdemeanor for possessing ammunition. Since the persons subject to those penalties would already be subject to similar penalties for possessing .50 BMG rifles and ammunition, this bill technically does not create any new three-strikes exposure. This bill does make the current wobbler penalty for assault with any firearm - other than a machinegun or assault weapon - that would now apply to the use of a .50 BMG rifle not otherwise a semiautomatic weapon a straight felony penalty punishable by 4, 8, or 12 years in prison. However, if a .50 BMG rifle is added (More) AB 50 (Koretz) Page 18 to the assault weapons law, that new increased penalty is arguably appropriate. Regardless, it does not technically create any new three-strikes exposure. 5. Criminalizing the .50 BMG Cartridge This bill "criminalizes" the .50 BMG cartridge by adding it to Penal Code Section 12020. This bill then provides a list of specified exemptions for those cartridges in that section for private parties who do not otherwise have "registered" .50 caliber rifle (law enforcement and others are of course exempted as well): (b)(15) Any plastic toy handgrenade, or any metal military practice handgrenade or metal replica handgrenade, or any .50 BMG cartridge , that is a relic, curio, memorabilia, or display item, that is filled with a permanent inert substance or that is otherwise permanently altered in a manner that prevents ready modification for use as a grenade, or live ammunition . (b)(24) The importation of a .50 BMG cartridge by a person who lawfully possessed the .50 BMG cartridge in the state prior to January 1, 2004, lawfully took it out of the state, and is returning to the state with the .50 BMG cartridge previously lawfully possessed in the state. (35) The possession of a .50 BMG cartridge if all of the following conditions are met: (A) The person is not prohibited by Section 12021, 12021.1, or 12101 of this code, or by Section 8100 or 8103 of the Welfare and Institutions Code from possessing firearms or ammunition. (B) The person possessed the .50 BMG cartridge as of January 1, 2004. (C) The person possesses the .50 BMG cartridge as a relic, curio, memorabilia, or display item. (D) The person possesses the .50 BMG cartridge within his or her place of residence, place of business, or on (More) AB 50 (Koretz) Page 19 private property owned or lawfully possessed by that person. This bill also includes an exemption in Section 12020 for persons issued a Department of Justice permit pursuant to amendments made to Section 12079 by adding a new subdivision (b) - that section currently applies to permits for large-capacity magazines and includes a "good cause" requirement; it may or may not be clear how a collector establishes "good cause" for collecting ammunition: Upon a showing that good cause exists, the Department of Justice may issue permits for the possession of .50 BMG cartridges to persons who wish to possess them as collectors. Those amendments regarding exemptions are intended to address questions that may arise about making criminals of persons who possess something that has previously not been illegal. Cartridges do not have dates of production. It is not possible to estimate how many persons currently may possess .50 BMG cartridges, nor how many of those persons may become aware of the new penalties that would become the law effective January 1, 2004, if this bill is enacted. SHOULD .50 BMG CARTRIDGES BE MADE ILLEGAL - WITH SPECIFIED EXEMPTIONS - AS PROPOSED BY THIS BILL? As noted in the Purpose section above, existing Penal Code Section 12301 criminalizes ammunition larger than .60 caliber in the destructive devices chapter of the dangerous weapons laws and Section 12304 provides the following penalty: . . . any person, firm or corporation who, within this state, sells, offers for sale, possesses or knowingly transports any fixed ammunition of a caliber greater than .60 caliber, except as provided in this chapter, is guilty of a public offense and upon conviction thereof shall be punished by imprisonment in the county jail for a term not to exceed six months or by a fine not to exceed $1,000, or by both such fine and (More) AB 50 (Koretz) Page 20 imprisonment. A second or subsequent conviction shall be punished by imprisonment in the county jail for a term not to exceed one year, or by imprisonment in the state prison, or by a fine not to exceed $3,000, or by both such fine and imprisonment. WOULD IT BE APPROPRIATE TO ADD .50 BMG CARTRIDGES TO SECTIONS 12301 AND 12304 RATHER THAN SECTION 12020, OR TO CREATE A SECTION WITH LANGUAGE SIMILAR TO SECTIONS 12301 AND 12304? NOTE: See this Committee's analysis of SB 929 (Speier) for a discussion (especially Comments #4 and 5) about the determination of punishment for Sections 12020 and 12304 if a person possesses more than one of the same prohibited items. Following website contains information about military issue .50 caliber ammunition and includes the following: The caliber .50 cartridge consists of a cartridge case, primer, propelling charge, and the bullet. The term bullet refers only to the small-arms projectile. There are eight types of ammunition issued for use in the caliber .50 machine gun. The tips of the various rounds are color-coded to indicate their type. The ammunition is linked with the M2 or M9 metallic links for use in the machinegun. Pictures and additional information all at: http://www.biggerhammer.net/barrett/fas/ NOTE: Penal Code Section 12020(a)(1) currently criminalizes "any bullet containing or carrying an explosive agent." 6. Other Issues Raised by This Bill Both the original Roberti-Roos Act and the generic definition of assault weapons added by SB 23 (Perata) - Chapter 129, Statutes of 1999 - allowed a first time offense for possession of an assault weapon (no more than two) lawfully owned or possessed prior to the date that the Roberti-Roos Act took effect or (More) AB 50 (Koretz) Page 21 "prior to the date that it was specified as an assault weapon" - Penal Code Section 12280(b) and (c). [NOTE: This bill does change one reference to "firearms" in the (c) to "assault weapons" but the current infraction language would not apply to .50 BMG rifles, regardless, since while .50 BMG rifles are added to the Roberti-Roos Act, they are not stated to be "assault weapons." It may have been a bit clearer to leave in the title change as previously proposed without the member "tombstone".] This bill does not contain a similar option for a first time offense involving .50 BMG rifles. WOULD IT BE APPROPRIATE TO ALLOW A FIRST TIME OFFENSE INVOLVING POSSESSION OF A .50 BMG RIFLE SIMILAR TO THE OPTION ORIGINALLY PROVIDED FOR ASSAULT WEAPONS IN THE ROBERTI-ROOS ACT? This bill does add the following language to the existing law - Penal Code Section 12289 - that requires the Department of Justice to "conduct a public education and notification program regarding the registration of assault weapons" which also includes outreach to local law enforcement agencies and public service announcements on local media: For .50 BMG rifles, the department's education campaign shall provide materials to dealers of .50 BMG rifles, and to recognized national associations that specialize in .50 BMG rifles. This bill does not provide any additional funding for that .50 BMG rifle public education and notification program. ARE THE PUBLIC EDUCATION PROVISIONS OF THIS BILL APPROPRIATE TO MEET THE GOALS OF THIS BILL? 7. Support for This Bill The City of Los Angeles - which is in the process, possibly now complete, of adopting a local ban on .50 Caliber firearms - writes in support of this bill that: (More) AB 50 (Koretz) Page 22 The .50 caliber rifle is an extremely powerful weapon that has the capability to accurately strike targets more than a mile away. According to law enforcement agencies, seizures of .50 caliber rifles have become more prevalent as supplies have increased and the prices have declined. A Congressional staff investigative report discovered that these weapons ". . . have ended up in the hands of suspected terrorist groups, a mentally ill cop killer, and drug trafficking cartels." Some have suggested that these weapons will quickly be adopted for use in urban violence thus exacerbating the crime situation in the City of Los Angeles. The Brady Campaign to Prevent Gun Violence letter in support includes the following: The sale of 50-caliber armor-piercing weapons with sniper accuracy to anyone who is 18 years old and can pass a basic background check represent a clear threat to the safety of all Californians. Weapons that are capable of shooting down airlines and police helicopters from a great distance should never be sold to civilians, and especially not when we are battling terrorism. (More) 8. Opposition to This Bill The NRA opposition to this bill includes the following: . . . The proponents of AB 50 claim that .50 caliber rifles constitute a "terrorist threat" to the citizens of California. But no evidence has been presented to the legislature, that .50 caliber rifles have been used in any crimes in California. The fact is that, the major California law enforcement groups representing both the Sheriffs and Police Chiefs do not support AB 50. Even the National Transportation Safety Administration when asked about the potential threat of .50 caliber rifles in a New York Times article published on Jan. 30, 2003, the agency was quoted as saying "We just don't feel it is high on the list of potential threats". The provisions of AB 50 would also ban the possession of .50 caliber cartridges. There are thousands of collectors, military museums and retired military veterans that have collected the 50 caliber cartridges as curios and keepsakes. There are no provisions in AB 50 to fund any public education campaign to inform Californians how they can avoid becoming criminals. In 1990, it is estimated that the Department of Justice spent a quarter of a million dollars in costs associated with administering, enforcing and informing the public about the passage of the so-called "Assault Weapons" legislation. The costs of AB 50 will also be substantial. If there is no public education campaign, thousands of veterans, collectors and shooters would find themselves in legal peril if they do not dispose of the .50 caliber cartridges and register their rifles within the short time allowed by AB 50. Californians that fail to comply with AB 50 will lose their right to possess (More) AB 50 (Koretz) Page 24 firearms for the rest of their lives. 9. Legislative Findings in This Bill This bill includes the following legislative findings about .50 BMG rifles (page 21, lines 32-40, and page 22, lines 1-5): (b) The Legislature hereby finds and declares that the proliferation and use of .50 BMG rifles, as defined in Section 12278 [added by this bill], poses a clear and present terrorist threat to the health, safety, and security of all residents of, and visitors to, this state, based upon findings that those firearms have such a high capacity for long distance and highly destructive firepower that they pose an unacceptable risk to the death and serious injury of human beings, destruction or serious damage of vital public and private buildings, civilian, police and military vehicles, power generation and transmission facilities, petrochemical production and storage facilities, and transportation infrastructure. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of these rifles and to establish a registration and permit procedure for their lawful sale and possession. ***************