BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 249
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          Date of Hearing:   July 3, 2012
          Counsel:                Milena Blake


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                      SB 249 (Yee) - As Amended:  June 27, 2012


           SUMMARY  :   Prohibits any person from importing, making, selling, 
          loaning, transferring or possessing any conversion kit, as 
          specified, designed to convert certain firearms with a fixed 
          magazine into firearms with a detachable magazine.  
          Specifically,  this bill  :   

          1)States that any person who imports, makes, sells, loans, 
            transfers or possesses any conversion kit, as specified, shall 
            be punished by a fine of $1,000, imprisonment in the county 
            jail for up to one year, or by both the fine and imprisonment. 
             This prohibition does not apply to the following:

             a)   The sale to, transfer to, or loan to, importation of, or 
               possession of a conversion kit by the Department of 
               Justice, police department, sheriffs' offices, marshals' 
               offices, the Department of Corrections and Rehabilitation, 
               the Department of the California Highway Patrol, district 
               attorneys' offices, the Department of Fish and Game, the 
               Department of Parks and Recreation, or the military or 
               naval forces of this state or of the United States, or any 
               federal law enforcement agency for use in the discharge of 
               their official duties.

             b)   The transfer by or loan by the specified law enforcement 
               agencies of a conversion kit to sworn peace officer members 
               of those agencies for law enforcement purposes.

             c)   The possession of conversion kits by sworn peace officer 
               members of specified law enforcement agencies for law 
               enforcement purposes.

             d)   The manufacture of, possession of, or importation of a 
               conversion kit by any person who is issued an assault 
               weapon permit, as specified.









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             e)   The sale by, loan of, or transfer of a conversion kit by 
               a person who is issued an assault weapon permit, as 
               specified, to any of the following:

               i)     Specified law enforcement agencies; 

               ii)    Entities and persons who have been issued assault 
                 weapon permits, as specified;  

               iii)   Federal military and law enforcement agencies;

               iv)    Law enforcement and military agencies of other 
                 states; or, 

               v)     Foreign governments and agencies approved by the 
                 United States State Department.

             f)   A person who is the executor or administrator of an 
               estate that includes a conversion kit that is possessed in 
               accordance with, and disposed of as authorized by, the 
               probate court, if the disposition is otherwise permitted by 
               this section.

             g)   The possession of and sale or transfer of a conversion 
               kit by a person incident to relinquishing the conversion 
               kit, as specified.

             h)   The transfer by a person authorized to possess a 
               conversion kit by this section to any licensed gun dealer 
               for the purposes of servicing or repair from any person who 
               is legally entitled to possess it pursuant to this section.

             i)   The possession of a conversion kit by any licensed gun 
               dealer who received the conversion kit for servicing or 
               repair. 

             j)   The transfer of possession of a conversion kit received 
               by any licensed gun dealer for servicing or repair to a 
               gunsmith for purposes of accomplishing service or repair of 
               that conversion kit.  A transfer is permissible only to a 
               gunsmith who is in the dealer's employ or a gunsmith with 
               whom the dealer has contracted for gunsmithing services.

             aa)  The transfer of possession of any conversion kit by any 
               person referred to in the previous paragraph to either the 








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               licensed gun dealer from whom it was received or to a 
               person otherwise referred to in that paragraph.

             bb)  The return of any conversion kit initially received by 
               any licensed gun dealer pursuant to this section to the 
               person from whom he or she received it if that recipient is 
               legally entitled to possess that conversion kit pursuant to 
               this section.

             cc)  The possession of a conversion kit by the registered 
               owner of an assault weapon if the conversion kit is 
               possessed at that person's residence, place of business, or 
               other property owned by that person.

          2)Defines "conversion kit" as any combination of parts that, 
            when affixed to a firearm with a fixed magazine, are designed 
            and intended to convert that firearm into an assault weapon, 
            as specified, or any part that when affixed to a firearm with 
            a fixed magazine, is designed solely and exclusively to 
            convert that firearm into an assault weapon, as specified.  

          3)States that this section will become operative July 1, 2013.  

          4)States that if more than one conversion kit is involved in any 
            violation, there shall be a distinct and separate offense for 
            each violation.  

          5)States that the provisions of this section are cumulative and 
            shall not be construed as restricting the application of any 
            other law.  However, an act or omission punishable in 
            different ways by different provisions of law shall not be 
            punished under more than one provision.

          6)Adds conversion kits, as defined, to the list of assault 
            weapons the possession is determined to be a public nuisance, 
            and for which the Attorney General, a district attorney or 
            city attorney may file a civil action in lieu of a criminal 
            prosecution.  This fine may be up to $100 for the conversion 
            kit, and $50 for each additional kit.  This section will 
            become operative July 1, 2013.


          7)Allows and individual to relinquish a conversion kit to a 
            police or sheriff's department. 









                                                                  SB 249
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           EXISTING LAW  :

          1)Contains legislative findings and declarations that the 
            proliferation and use of assault and .50 BMG rifles poses a 
            threat to the health, safety, and security of all citizens of 
            California.  (Penal Code Section 30505.)

          2)States legislative intent to place restrictions on the use of 
            assault weapons and .50 BMG rifles and to establish a 
            registration and permit procedure for their lawful sale and 
            possession.  (Penal Code Section 30505.)

          3)Defines an "assault weapon", as specified.  (Penal Code 
            Sections 30510 and 30515.)

          4)Defines a ".50 BMG rifle and cartridge", as specified.  (Penal 
            Code Sections 30525 and 30530.)

          5)Makes the manufacture, distribution, transportation, 
            importation, sale, gift or loan of an assault weapon or a .50 
            BMG rifle a criminal offense.  (Penal Code Section 30600.)  

          6)Makes the possession of assault weapons a criminal offense, 
            subject to certain exceptions.  (Penal Code Section 30605.)  

          7)Exempts the DOJ, law enforcement agencies, military forces, 
            and other specified agencies from the prohibition against 
            sales to, purchase by, importation of, or possession of 
            assault weapons or .50 BMG rifles.  (Penal Code Section 
            30625.)

          8)Requires that any person who lawfully possesses an assault 
            weapon, as specified, must register the firearm with DOJ, as 
            specified.  (Penal Code Section 30900 et. seq.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  : According to the author, "SB 249 addresses 
            the issue created by a tool that has the capability to convert 
            many semi-automatic rifles with magazine locking devices into 
            assault weapons.  The 'Mag Magnet,' a tool advertised as 
            illegal to use in the state of California, is a part designed 
            and intended to convert a magazine locking device into a 








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            standard magazine release.  The implication of the use of this 
            part for law enforcement safety and the welfare of the public 
            is the instant conversation of featured semi-automatic rifles 
            into illegal category 3 assault weapons, as defined by Penal 
            Code 30515.

          "A prohibition against a part which transforms a legal firearm 
            into an illegal assault weapon will not affect the vast 
            majority of law abiding gun owners.  With the latest 
            amendments removing the provision referring to a 'combination 
            of parts,' the intention of SB 249 remains intact while 
            reducing varying broad interpretations of the definition of a 
            conversion kit.  While the accelerating proliferation of 
            semi-automatic rifles with magazine locking devices is 
            troubling to many, laws and regulations ought to be reviewed 
            and clarified for gun owners, law enforcement, and public 
            safety."

           2)Background  : According to information provided by the author, 
            "The problem this bill seeks to remedy concerns 'conversion 
            kits,' which, in combination with a magazine locking device, 
            is a tool that transforms some fixed magazine firearms into 
            assault weapons.  One such conversion kit is a tool called a 
            'Mag Magnet.'  Since the tool defeats a firearm's magazine 
            locking device, the 'Mag Magnet' is illegal to use within the 
            state of California.  If a person possesses a firearm that has 
            one or more features specified in Penal Code 30515 and affixes 
            a 'Mag Magnet' to a firearm's magazine locking device, the 
            person is in possession of an illegal category 3 assault 
            weapon.

          "This bill would prohibit any person, with certain exceptions, 
            from importing, making, selling, loaning, transferring, or 
            possessing any conversion kit and makes violations subject to 
            criminal penalties.  This bill also makes possession of a 
            conversion kit a public nuisance and authorizes an individual 
            to relinquish a conversion kit to local law enforcement.  SB 
            249 would become operative on July 1, 2012, in order to give 
            proper notice to the public.

          "With certain exceptions, existing law prohibits possession of 
            an assault weapon and makes violations a criminal offense. 
            Penal Code section 30515 defines an assault weapon as a 
            'semiautomatic, centerfire rifle that has the capacity to 
            accept a detachable magazine' and any one of several specified 








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            features.  Although statute does not define a detachable 
            magazine, California Department of Justice (DOJ) regulation 
            defines a detachable magazine as 'any ammunition feeding 
            device that can be removed readily from the firearm with 
            neither disassembly of the firearm action nor use of a tool 
            being required.  A bullet or ammunition cartridge is 
            considered a tool.' (11 CCR § 5469(a))

            "Existing law and regulation has resulted in gun manufacturers 
            producing firearms that meets the definition of an assault 
            weapon in section 30515, yet are legal due to a set of parts 
            that locks a magazine in place called a bullet button.  The 
            bullet button is a modified release mechanism that is not 
            considered to be detachable since a tool is required to eject 
            the magazine from the weapon.  Manufactures maintain that the 
            firearm has a fixed magazine, which is neither detachable nor 
            readily removed since a tool is necessary.  Yet the firearms 
            in question clearly have the capacity to accept a detached 
            magazine, therefore conflicting with the legislative intent to 
            reduce the proliferation of assault weapons and subverting the 
            assault weapon ban."

           3)Takings Issues  :  Both the federal government and the states 
            have the authority to take private property when necessary for 
            government activities, but there is a limitation on this 
            power.  The Fifth Amendment to the U.S. Constitution states:  
            "nor shall private property be taken for public use without 
            just compensation."  For a legal analysis under the takings 
            clause one must consider the following:  Is there a taking of 
            property; if so, is it for public use; if so, is "just 
            compensation" paid?

          A possessory taking occurs when the government confiscates or 
            physically occupies property.  If the government requires a 
            retired police officer to relinquish an assault weapon he or 
            she legally acquired with his or her own money, a taking of 
            property occurs.  In order for the taking to be valid, it must 
            be for public use and just compensation must be paid.  The 
            United States Supreme Court has expansively defined "public 
            use" so that almost any taking will meet this requirement.  A 
            taking is for public use so long as the government is taking 
            property to achieve a legitimate government purpose and so 
            long as the taking is a reasonable way to achieve this goal.  
            İHawaii Housing Authority v. Midkiff (1984) 467 U.S. 229.]  
            The intent to stop the proliferation and use of assault 








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            weapons would appear to be a legitimate government purpose, 
            and restrictions on who can possess those weapons would be a 
            reasonable means of achieving this goal.

            However, one must consider the issue of just compensation.  
            This bill does not contain any provision compensating the 
            owner of a conversion kit, purchased lawfully before the 
            implementation of this law, for the taking of that conversion 
            kit.  

           4)Second Amendment  :  The Second Amendment to the federal 
            Constitution provides, "A well regulated militia being 
            necessary to the security of a free state, the right of the 
            people to keep and bear arms shall not be infringed."  In 
            District of Columbia v. Heller (2008) 554 U.S. 570, the United 
            States Supreme Court held that the Second Amendment protects 
            an individual's right to possess and carry weapons in case of 
            confrontation.  The Court struck down a law banning possession 
            of handguns in the home.  

          Subsequently, in McDonald v. City of Chicago (2010) 561 U.S. __, 
            130 S.Ct. 3020, the Court held that Second Amendment rights 
            are applicable to the states.  The majority found the 
            individual right to bear arms, particularly for self-defense 
            was fundamental.  

          However, the Second Amendment does not afford an unlimited right 
            to own a weapon.  As the Court explained in Heller, the right 
            "to keep and carry arms" is limited to weapons "in common 
            use."  (Heller, supra, 554 U.S. at p. 627.)  At least one 
            court has held that Heller does not invalidate the statute 
            prohibiting the possession of assault rifles.  İSee People v. 
            James (2009) 174 Cal.App.4th 662, 676.]  Moreover, in Heller, 
            the United States Supreme Court did not strike down neutral 
            licensing and registration as a condition of possession and 
            the Court also enumerated examples of presumptively valid 
            government regulation of firearms.  Thus, there appear to be 
            no Second Amendment issues with the provisions of this bill.

           5)Legislative Counsel Letter  :  According to the Legislative 
            Counsel Bureau, "An issue is raised whether there provisions 
            would constitute a taking without just compensation in 
            violation of the Fifth Amendment to the United States 
            Constitution and Section 19 of Article I of the California 
            Constitution." 








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           6)Regulatory Process  : On June 21, 2012, a coalition of gun 
            violence prevention groups, including the Brady Center to 
            Prevent Gun Violence, the Law Center to Prevent Gun Violence, 
            the Violence Policy Center, and the Violence Prevention 
            Coalition of Greater Los Angeles, sent a letter to Attorney 
            General Kamala Harris.  This letter was also copied to this 
            committee.  The letter reads, in part:

          "The current regulations run counter to the intent of 
            California's assault weapons law and undermine its 
            effectiveness.  The bullet button facilitates precisely the 
            sort of quick reloading- and potential for mass mayhem- that 
            the California assault weapons ban prohibits.  Moreover, since 
            the regulations classify billet button-equipped firearms as 
            not having the capacity to accept a detachable ammunition 
            magazine, these guns can incorporate virtually the full range 
            of banned assault weapon features (folding or telescoping 
            stock, flash suppressor, pistol grip, etc.).   

          "The continued sale of firearms equipped with bullet buttons is 
            the result of regulations adopted by the Department of Justice 
            under another Attorney General.  As a result, we believe it 
            makes sense for your administration, with the rich technical 
            expertise your staff possesses, to confront this issue though 
            the regulatory process."

           7)Prior Legislation  : 

             a)   SB 23 (Perata), Chapter 129, Statutes of 1999, made it 
               an alternate felony/misdemeanor, commencing January 1, 
               2000, for any person to manufacture or cause to be 
               manufactured, import into California, keep for sale, offer 
               or expose for sale, give away, or lend any large-capacity 
               magazine with specified exceptions.

             b)   AB 2728 (Klehs), Chapter 793, Statutes of 2006, made the 
               possession of unregistered assault weapons and .50 BMG 
               rifles in violation of the Penal Code a nuisance, allowing 
               for their destruction.


           REGISTERED SUPPORT / OPPOSITION  :

           Support 








                                                                 SB 249
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          None
           
            Opposition 
           
          American Arms Group, Inc.
          Calguns Foundation
          California Association of Federal Firearms Licensees
          California Association of Firearm Retailers
          California Rifle and Pistol Association, Inc. 
          Gun Owners of California
          National Rifle Association
          National Shooting Sports Foundation
          Taxpayers for Improving Public Safety
          2 Private Individuals
          11,072 Electronically Generated Unsigned Letters (See 
           www.StopSB249.com  ) 


           Analysis Prepared by  :    Milena Blake / PUB. S. / (916) 319-3744