BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 8 0 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 (More) AB 180 (Bonta) Page 2 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).) (More) AB 180 (Bonta) Page 3 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 (More) AB 180 (Bonta) Page 4 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 (More) AB 180 (Bonta) Page 5 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. (More) 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 (More) AB 180 (Bonta) Page 7 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: AB 180 (Bonta) Page 8 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. ***************