BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 180 (Bonta)                                              
          As Amended May 23, 2013
          Hearing date:  June 18, 2013
          Government Code; Penal Code
          SM:mc


                              FIREARMS: STATE PREEMPTION  

                                       HISTORY

          Source:  Author

          Prior Legislation: SB 1315 (De León) - Chapter 214, Statutes of  
          2012

          Support: California Medical Association; California State  
                   Conference of the National Association for the  
                   Advancement of Colored People; City of Oakland; Law  
                   Center to Prevent Gun Violence; Peralta Community  
                   College District

          Opposition:California Waterfowl Association; National Rifle  
          Association; California Rifle and
                   Pistol Association
                   
          Assembly Floor Vote:  Ayes  46 - Noes  29



                                         KEY ISSUE
           
          SHOULD THE LEGISLATURE PROVIDE THAT, NOTWITHSTANDING THE EXISTING  




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                                                             AB 180 (Bonta)
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          LAW ESTABLISHING THE INTENTION OF THE LEGISLATURE TO OCCUPY THE  
          WHOLE FIELD OF REGULATION OF THE REGISTRATION OR LICENSING OF  
          COMMERCIALLY MANUFACTURED FIREARMS, THE CITY OF OAKLAND MAY ENACT AN  
          ORDINANCE OR REGULATION THAT IS MORE RESTRICTIVE THAN STATE LAW  
          REGULATING THE REGISTRATION OR LICENSING OF COMMERCIALLY  
          MANUFACTURED FIREARMS?




                                       PURPOSE

          The purpose of this bill is to provide that, notwithstanding the  
          existing law establishing the intention of the Legislature to  
          occupy the whole field of regulation of the registration or  
          licensing of commercially manufactured firearms, the City of  
          Oakland may enact an ordinance or regulation that is more  
          restrictive than state law regulating the registration or  
          licensing of commercially manufactured firearms.

           Existing law  provides that it is the intention of the  
          Legislature to occupy the whole field of regulation of the  
          registration or licensing of commercially manufactured firearms  
          as encompassed by the provisions of the Penal Code, and such  
          provisions shall be exclusive of all local regulations, relating  
          to registration or licensing of commercially manufactured  
          firearms, by any political subdivision as defined.  (California  
          Government Code § 53071.)  

           Existing law  provides that no permit or license to purchase,  
          own, possess, keep, or carry, either openly or concealed, shall  
          be required of any citizen of the United States or legal  
          resident over the age of 18 years who resides or is temporarily  
          within this state, and who is not within the excepted classes  
          prescribed, to purchase, own, possess, keep, or carry, either  
          openly or concealed, a handgun within the citizen's or legal  
          resident's place of residence, place of business, or on private  
          property owned or lawfully possessed by the citizen or legal  
          resident.  (Penal Code § 25605(b).)  




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                                                             AB 180 (Bonta)
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           This bill  would provide that, notwithstanding the existing law  
          establishing the intention of the Legislature to occupy the  
          whole field of regulation of the registration or licensing of  
          commercially manufactured firearms as encompassed by the  
          provisions of the Penal Code, the City of Oakland may enact an  
          ordinance or regulation that is more restrictive than state law  
          regulating the registration or licensing of commercially  
          manufactured firearms as encompassed by the Penal Code.

                    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  




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          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  
          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  




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               or criminal activity for which there is no other  
               reasonable, appropriate remedy.

                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               State law provides for the exclusive regulation and  
               licensing of commercially manufactured firearms by the  
               state.  AB 180 would allow the City of Oakland to  
               enact an ordinance or regulation relating to the  
               registration of firearms or the licensing of their  
               owners.  This regulation or ordinance would only apply  
               to Oakland's residents and must be in accordance with  
               federal law.


























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          2.  Preemption  

          Preemption occurs when a higher level of government removes  
          regulatory power from a lower level of government.  For example,  
          Congress may remove legislative authority from the states in  
          certain areas.  Likewise, state governments may, in some cases,  
          remove local legislative authority.  The strongest form of  
          preemption occurs when a higher level of government expressly  
          removes that power or expressly reserves that power.  In  
          California, regulation and licensing of firearms has been  
          expressly preempted by state government.  

          Generally, preemption occurs in two ways: through  express  
          preemption  and  implied preemption  .  Express preemption occurs  
          when a state provides explicitly, in the language of a statute  
          or constitutional provision that it intends to remove a lower  
          government's regulatory authority.  Absent an express statement,  
          courts may infer an intent to take over a field of regulation,  
          even though there is no express legislative statement to that  
          effect.  This is referred to as implied preemption.  In general,  
          courts may find that a local law is preempted if it conflicts  
          directly with state law by requiring what the state law  
          prohibits, or prohibiting what the state law requires.  In  
          addition, when a comprehensive scheme of state regulation exists  
          on a particular subject matter, many state courts find that the  
          state legislature thereby indicated an implied intent to assert  
          exclusive authority over that subject matter.

          California expressly preempts local governments from regulating  
          in the areas of registration or licensing of firearms;  
          manufacture, sale or possession of imitation firearms; and  
          licensing or permitting with respect to the purchase, ownership,  
          possession or carrying of a concealable firearm in the home or  
          place of business.  (Government Code §§ 53071, 53071.5, Penal  
          Code 
          § 25605(b).)  In other areas, courts have found that local  
          governments have a great deal of authority to regulate firearms  
          and ammunition in their communities. For example, courts have  
          rejected preemption challenges to many local firearms and  




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          ammunition laws, including the location and operation of  
          firearms dealers, and the sale and possession of firearms and  
          ammunition on county-owned property.  (See, Suter v. City of  
          Lafayette (1997) 57 Cal.App.4th 1109, 1119.)

          This bill would carve out an exception to the statute which  
          asserts state preemption of "regulation of the registration or  
          licensing of commercially manufactured firearms as encompassed  
          by the provisions of the Penal Code," to allow the City of  
          Oakland to enact an ordinance or regulation that is more  
          restrictive than state law regulating the registration or  
          licensing of commercially manufactured firearms as encompassed  
          by the Penal Code.

          Last year the Legislature approved a somewhat similar measure,  
          removing the state preemption of any local ordinances regarding  
          the manufacture, sale, or possession of imitation firearms, BB  
          devices, and air rifles within the County of Los Angeles.  (SB  
          1315 (de León) - Chapter 214, Statutes of 2012.)

          3.  Argument in Support  

          The City of Oakland states:

               As you are undoubtedly aware, Oakland's police  
               department is short staffed and the City is facing a  
               search for a new police chief, who will be the third  
               in two years.  Violence in Oakland has increased in  
               recent years, the vast majority of which is due to  
               illegal firearms entering the city.  Tougher and  
               flexible regulation is needed on the local level to  
               effectively reduce crime in Oakland.  If our 646  
               officers, a ten year low number, are to be effective  
               in combating crime, tougher licensing and registration  
               must be part of that effort.

          4.  Argument in Opposition  

          The California Waterfowl Association states:











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               CWA opposes this measure because it would conflict  
               with the longstanding, statewide regulation of  
               firearms, of (sic) field of law which is currently  
               fully occupied by the Penal Code, and ultimately lead  
               to a patchwork of inconsistent local laws.  In doing  
               so, it would only further add to the complexity of  
               firearms laws in California, creating unnecessary  
               confusion for gun owners and likely increasing  
               enforcement costs.  In particular, AB 180 would  
               threaten to make criminals out of well intentioned gun  
               owners who move into the City of Oakland but remain  
               unaware of the existence of any local firearm  
               restrictions.

               It should be noted that state law recently required  
               the registration of both shotguns and rifles (per AB  
               809 (Feuer) in 2011) but that there has neither been  
               adequate time nor a meaningful, peer reviewed study to  
               determine its full impact.  Allowing a local entity to  
               enact its own registration requirements so soon after  
               statewide registration was already mandated is  
               therefore unnecessary.


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