BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 170 (Bradford)
As Amended May 29, 2013
Hearing date: June 11, 2013
Penal Code
SM:mc
CORPORATE OWNERSHIP OF ASSAULT WEAPONS
HISTORY
Source: Author
Prior Legislation: SB 2053 (Killea) - Chap. 1010, Statutes of
1994
Support: American Federation of State, County, and Municipal
Employees (AFSCME); California Chapters of the Brady
Campaign to Prevent Gun Violence; Coalition Against Gun
Violence; Law Center to Prevent Gun Violence
Opposition:Gun Owners of California; National Rifle Association;
one individual
Assembly Floor Vote: Ayes 49 - Noes 24
KEY ISSUES
SHOULD A "PERSON," FOR PURPOSES OF THE ASSAULT WEAPONS BAN, BE
DEFINED AS AN INDIVIDUAL, EXCEPT AS SPECIFIED?
SHOULD A "PERSON," FOR PURPOSES OF THE BAN ON THE MANUFACTURE,
IMPORTATION, AND DISTRIBUTION OF ASSAULT WEAPONS, AND SPECIFIED
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PROVISIONS REGARDING LICENSED FIREARMS DEALERS WITH PERMITS TO
SELL ASSAULT WEAPONS, BE DEFINED AS AN INDIVIDUAL, PARTNERSHIP,
CORPORATION, LIMITED LIABILITY COMPANY, ASSOCIATION, OR ANY
OTHER GROUP OR ENTITY, REGARDLESS OF HOW IT WAS CREATED?
(CONTINUED)
BEGINNING JANUARY 1, 2014, SHOULD THE DEPARTMENT OF JUSTICE BE
PROHIBITED FROM ISSUING A PERMIT TO POSSESS AN ASSAULT WEAPON, A .50
BMG RIFLE, OR A MACHINE GUN, AS SPECIFIED TO A PARTNERSHIP,
CORPORATION, LIMITED LIABILITY COMPANY, ASSOCIATION, OR ANY OTHER
GROUP OR ENTITY, REGARDLESS OF HOW THE ENTITY WAS CREATED?
PURPOSE
The purpose of this bill is to (1) provide that the definition
of a "person," for purposes of the assault weapons ban, is an
individual, except as specified; (2) provide that, for purposes
of the ban on the manufacture, importation and distribution of
assault weapons, and specified provisions regarding licensed
firearms dealers with permits to sell assault weapons, a
"person" is defined as an individual, partnership, corporation,
limited liability company, association, or any other group or
entity, regardless of how it was created; (3) provide that
starting January 1, 2014, the Department of Justice will be
prohibited from issuing a permit to possess an assault weapon, a
.50 BMG rifle, or a machine gun, as specified, to a partnership,
corporation, limited liability company, association, or any
other group or entity, regardless of how the entity was created;
and (4) make conforming changes, including changes relating to
annual inspections, for security and safe storage purposes, of
certain permitees possessing assault weapons or .50 BMG rifles,
as specified.
Current law defines "person," as used in specified Penal Code
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provisions relating to assault weapons and .50 BMG rifles, to
mean an individual, partnership, corporation, limited liability
company, association, or any other group or entity, regardless
of how it was created. (Penal Code § 16970.)
Current law provides that it is unlawful for any person, as
defined above to include any partnership, corporation, limited
liability company, association, or any other group or entity,
regardless of how it was created, to advertise the sale of
prohibited weapons, as specified. (Penal Code § 17505.)
Current law defines a licensed gun dealer, for purposes of
specified Penal Code sections relating to registration and sale
of assault weapons and repair of assault weapons, to mean a
person who has a license to sell assault weapons, as specified.
(Penal Code § 16790.)
Current law provides that it is a felony, punishable by
imprisonment for four, six, or eight years in state prison, for
any person who within California manufactures, distributes,
transports, or imports into California, keeps or offers for
sale, or who gives or lends any assault weapon or .50 BMG rifle,
with specified exceptions. Current law also provides for an
enhanced sentence of one year to any person who transfers,
lends, sells, or gives any assault weapon or .50 BMG rifle to a
minor. (Penal Code § 30600.)
Current law provides that, notwithstanding any other provision
of law, any person who commits another crime while violating
specified offenses regarding possession, manufacture and sale of
assault weapons may receive an additional, consecutive
punishment of one year in addition and consecutive to the
punishment, including enhancements, for the other crime. (Penal
Code
§ 30615.)
Current law requires any person who lawfully acquired an assault
weapon within specified time periods to register the firearm
with the Department of Justice (DOJ), as specified. (Penal Code
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§ 30900 et. seq.)
Current law requires any person who wishes to acquire an assault
weapon or .50 BMG rifle to obtain a permit from DOJ. A
satisfactory showing that good cause exists must be found by DOJ
for issuance of a permit. (Penal Code § 31000.)
Current law allows DOJ to issue permits for the possession,
manufacture, and/or transportation of machine guns upon a
satisfactory showing that good cause exists for the issuance of
a permit to an applicant who is 18 years of age or older.
(Penal Code § 32650.)
Current law requires DOJ, for every person, firm, or corporation
to whom a permit is issued, to conduct annually an inspection
for security and safe storage purposes and to reconcile the
inventory of permitted firearms, except that a person, firm, or
corporation that has an inventory of fewer than five devices
requiring a DOJ permit is subject to an inspection once every
five years, or more frequently if determined by DOJ. (Penal
Code §§ 31110 and 32670.)
This bill provides that, for purposes of the assault weapons
ban, a "person" is defined as an individual, except as
specified.
This bill provides that, for purposes of provisions which
prohibit the manufacture, importation and distribution of
assault weapons, and provisions regarding specified licensed
firearms dealers with permits to sell assault weapons, a
"person" is defined as an individual, partnership, corporation,
limited liability company, association, or any other group or
entity, regardless of how it was created.
This bill provides that starting January 1, 2014, Department of
Justice will be prohibited from issuing a permit to possess an
assault weapon, a .50 BMG rifle, or a machine gun, as specified,
to a partnership, corporation, limited liability company,
association, or any other group or entity, regardless of how the
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entity was created.
This bill makes conforming changes, including changes relating
to annual inspections, for security and safe storage purposes of
certain permitees possessing assault weapons or .50 BMG rifles,
as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
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24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
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COMMENTS
1. Need for This Bill
According to the author:
A loophole in current law allows a business entity or
organization to share possession of assault weapons
and .50 BMG rifles amongst their members without each
member being subjected to a background check.
AB 170 would prohibit a partnership, corporation,
limited liability company, association, or any other
group or entity from being issued a permit to possess
an assault weapon or a .50 BMG rifle. In doing so,
this bill would ensure that all individuals who
possess these weapons have been through the
appropriate background check.
2. Pending Litigation
Currently, DOJ reads California's assault weapon permit scheme
to allow DOJ to issue permits to acquire or manufacture assault
weapons and .50 BMG rifles in California only to persons who can
pass a background check. Because only individuals (as opposed
to corporations or other organizations) can be subjected to a
background check, DOJ issues assault weapon permits only to
individuals. A firearm manufacturer petitioned the Office of
Administrative Law (OAL) to declare that DOJ's interpretation of
the law as an impermissible "underground regulation." The OAL
issued a nonbinding determination finding that DOJ's policy was
an invalid underground regulation, as it was not adopted as
required by California law relating to regulation formation.
DOJ has filed a petition in Superior Court asking the court to
find that DOJ's interpretation is the only legally tenable
interpretation of the permit scheme and therefore not a
regulation. (California Department of Justice - Bureau of
Firearms v. Office of Administrative Law, Sacramento Superior
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Court, No. 2012-80001279.) This bill would codify DOJ's current
practice of issuing permits to acquire or manufacture assault
weapons and .50 BMG rifles in California only to individuals.
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3. Argument in Support
The California Chapters of the Brady Campaign to Prevent Gun
Violence state:
Existing law requires a person who wishes to acquire
an assault weapon or .50 BMG rifle to obtain a permit
from the Department of Justice. Existing law defines
"person" as an individual, partnership, corporation,
limited liability company, association, or any other
group or entity, regardless of how it was created, for
these permit purposes.
This bill would define "person" as an individual only
for those permit purposes. Currently, people who work
for companies that hold valid corporate permits or
belong to associations or groups with assault weapons
permits may have free access to these regulated
weapons and in some cases are able to take them home.
By limiting permits to individuals only, a higher
degree of accountability is created so that only
individuals who have passed an expanded background
check for an assault weapons permit have access to
these dangerous firearms. This expanded background
check is very thorough and involves interviews with
neighbors, establishment of the need, and periodic
inspection of inventory, security and safe storage.
Assembly Bill 170 would not change the current
practice of the Department of Justice but would put it
in statute.
The public safety is best served when only people that
have completed an expanded assault weapons background
check have access to these dangerous weapons.
4. Argument in Opposition
The National Rifle Association states:
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Currently, the California Department of Justice (DOJ)
only issues "assault weapons"/.50 BMG permits to
business applicants in the name(s) of individual
employees of those businesses. In doing so, the DOJ
restricts the ability of these companies to obtain and
possess regulated firearms. The possession and use of
regulated firearms are essential to provide certified
training to Law Enforcement Agencies and other
government agencies by private businesses.
In 2012 the Office of Administrative Law declared that
the Department of Justice policy of only issuing
"assault weapons" permits in the names of individual
employees to be an illegal "underground regulation."
The DOJ policy of "individual only" issuance policy
(sic) and the provisions required by AB 170, will
place the operations of Government sanctioned and
certified firearms training businesses operations
(sic) in jeopardy each time an individually-permitted
staff member leaves the company. These training
companies are then required to re-apply for a new
permit for another employee, a process that can
currently take a year or more to process (sic), and
can be very costly.
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