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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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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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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