BILL ANALYSIS Ó
AB 1985
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Date of Hearing: May 6, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1985 (Donnelly) - As Introduced: February 19, 2014
SUMMARY : Allows federal correctional officers to possess and
use assault weapons and other specified firearms while off duty.
Specifically, this bill :
1)Allows any federal correctional agency to purchase, import, or
possess assault weapons or a .50 BMG rifle for use in the
discharge of its official duties.
2)Allows any federal correctional agency to sell or purchase an
unsafe handgun for use in the discharge of its official
duties.
EXISTING LAW :
1)Provides that, notwithstanding any state or local law, a
qualified law enforcement officer, as described, who is
carrying the required specified identification may carry a
concealed firearm that has been shipped or transported in
interstate or foreign commerce, except that this provision
should not be construed to supersede or limit any state law
that either (i) permits private persons or entities to
prohibit or restrict the possession of concealed firearms on
their property or (ii) prohibits or restricts the possession
of firearms on any state or local government property,
installation, building, base, or park. (18 U.S.C. § 926B.)
2)Makes legislative findings and declarations that the
proliferation and use of assault weapons and .50 BMG rifles
pose a threat to the health, safety, and security of all
citizens of California. (Pen. Code, § 30505.)
3)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. (Pen. Code, § 30505.)
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4)Punishes the manufacture, distribution, transportation,
importation, sale, gift, or loan of an assault weapon or a .50
BMG rifle by imprisonment for 4, 6, or 8 years. Provides for
an additional and consecutive punishment of 1 year
imprisonment if the person transfers, lends, sells, or gives
the weapon to a minor. (Pen. Code, § 30600.)
5)Punishes the possession of an assault weapon, except as
specified, by imprisonment not exceeding 1 year or by
imprisonment pursuant to criminal justice realignment and by a
fine, as specified. (Pen. Code, § 30605.)
6)Punishes the possession of a .50 BMG rifle, except as
specified, by a fine of $1,000, imprisonment not exceeding 1
year, or both that fine and imprisonment. (Pen. Code, §
30610.)
7)Exempts from the above restrictions the sale to, purchase by,
importation of, or possession of assault weapons or a .50 BMG
rifle by the Department of Justice (DOJ), police departments,
sheriffs' offices, marshals' offices, the Department of
Corrections and Rehabilitation (CDCR), the Department of
Highway Patrol (CHP), 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. (Pen. Code
§ 30625.)
8)Provides that statutory restrictions, as specified, relating
to assault weapons do not prohibit the possession or use of
assault weapons or a .50 BMG rifle by sworn peace officer
members of those agencies included in the exemption to
purchase, import, or possess assault weapons or a .50 BMG
rifle, for law enforcement purposes, whether on or off duty.
(Pen. Code, § 30630, subd. (a).)
9)Provides that statutory restrictions, as specified, relating
to assault weapons do not prohibit the sale, delivery, or
transfer of an assault weapons or a .50 BMG rifle to, or the
possession of such weapons by, a sworn peace officer member of
an agency included in the exemption to purchase, import, or
possess assault weapons or a .50 BMG rifle if the peace
officer is authorized in writing by the officer's employer to
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possess or receive the weapon. (Pen. Code, § 30630, subd.
(b)(1).)
10)Punishes, except as specified, any person who manufactures,
imports for sale, keeps for sale, offers or exposes for sale,
gives, or lends any unsafe handgun by imprisonment not
exceeding one year. (Pen. Code, § 32000, subd. (a).)
11)Exempts from the above restriction the sale or purchase of an
unsafe handgun if the weapon is sold to, or purchased by, DOJ,
a police department, a sheriff's official, a marshals' office,
CDCR, CHP, any district attorney's office, any federal law
enforcement agency, or the military or naval forces of this
state or of the United States for use in the discharge of
their official duties. (Pen. Code § 32000, subd. (b)(4).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Our Federal
Correction Officers protect us from some of the worst that
society has to offer. It only makes sense that we afford them
the same exemptions that are afforded to our State Law
Enforcement and Correction Officers, as well as our Federal
Law Enforcement Officers. This is especially true since they
deal with members of gangs and terrorist organizations who
will recognize them instantaneously on the street when they
are released from prison. By exempting Federal Correction
Officers, we will not only allow them to protect themselves
but also allow them to protect the citizens of our communities
that they have sworn to serve."
2)The Assault Weapons Control Act : California's Assault Weapons
Control Act (AWCA) provides for peace officer exemptions from
the general prohibitions on the purchase and possession of
assault weapons. Existing law allows the sale to or purchase
of assault weapons by specified law enforcement agencies for
the possession or use by sworn peace officers for law
enforcement purposes for use in the discharge of their
official duties. (Pen. Code, § 30625.)
Officers who work for the exempted agencies also are allowed
to possess or use assault weapons for law enforcement
purposes, whether on or off duty. (Pen. Code, § 30630, subd.
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(a).) This provision essentially permits an officer to
receive and use a weapon that is lawfully owned by a qualified
law enforcement agency.
Moreover, state law currently allows specified sworn peace
officers to purchase assault weapons with their own money
provided that the peace officers have verifiable written
authorization from their employers to possess or receive the
specific assault weapon. These weapons must be registered
with DOJ. (Pen. Code, § 30630, subd. (b)(1) & (2).) This
provision does not restrict peace officers to use such weapons
for law enforcement purposes only.<1>
The list of exempted government agencies was last updated in
1999, when SB 23 (Chapter 129, Statutes of 1999) added the
Department of Fish and Game and the Department of Parks and
Recreation. There were a number of other statewide,
full-authority peace officers that sought an exemption, but
were not added, including those from the Department of
Alcoholic Beverage Control, the Department of Consumer
Affairs, the Department of Motor Vehicle, and Insurance Fraud
investigators.
With regard to the Department of Fish and Game and the
Department of Parks and Recreation, the analysis of SB 23 by
this committee stated:
Fish and Game warden authority extends to anywhere in
California, and they make arrests of armed hunters for
Fish and Game Code violations. These hunters can be
armed with semi-automatic rifles and the arrests can
occur in remote regions. There are 230 sworn Fish and
Game wardens. Similarly, state park rangers are
charged with general law enforcement responsibilities
in the largest state park system in the nation, with
over 80 million visitors. Fish and Game wardens
make up the third largest California state law
----------------------
<1> In Silveira v. Lockyer (9th Cir. 2002) 312 F.3d 1052,
1089-92, the federal court found unconstitutional under equal
protection grounds state law allowing peace officers who are
exempt from AWCA to keep assault weapons into retirement,
allowing for use of the weapons for non-law enforcement
purposes, as it arbitrarily and unreasonably afforded this
privilege to retired officer, who no longer serve law
enforcement purposes, but not others.
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enforcement agency, with 350 sworn officers, and are
currently authorized to carry tactical rifles in some
areas. Fish and Game wardens encounter clandestine
drug laboratories and marijuana planting in remote
areas. In some rural areas, there is only one CHP
officer, one sheriff's deputy, and one park ranger;
they depend heavily on each other for backup when a
dangerous situation arises.
This bill would allow federal correctional officers to have
assault weapons and unsafe handguns off duty. This committee
may wish to examine the purported need of this group to carry
such weapons throughout the state and how that need measures
against the need of other peace officers who have expressed
desire to be included in the exemption from assault weapon
restrictions but were denied. Also, this committee may wish
to consider what state objectives federal correctional
officers would serve by carrying assault weapons, as opposed
to non-assault weapons, while off duty.
3)The Law Enforcement Officers Safety Act (LEOSA) : Irrespective
of California law, the Federal Bureau of Prisons, as a federal
government institution, has the ability to determine if
correctional officers employed at its facilities can have
firearms, and which type of firearms, as provided by federal
law. Congress has given certain federal officers permission
to carry concealed firearms throughout the country, regardless
of a state or local jurisdiction's prohibition otherwise, save
a few exceptions. Specifically, federal statute allows a
"qualified law enforcement officer," who is defined as "an
employee of a governmental agency who is authorized by law to
engage in or supervise the prevention, detection,
investigation, or prosecution of, or the incarceration of any
person for, any violation of law, and has the statutory powers
of arrest or apprehension," to carry a concealed firearm
throughout the country if certain other conditions, including
authorization from the person's agency to carry a firearm, are
met. (18 U.S.C. § 926B, subd. (c).) Additionally, this law
explicitly includes law enforcement officers of the Amtrak
Police Department, the Federal Reserve, and the executive
branch of the federal government as being within the scope of
the definition of a qualified law enforcement officer. (18
U.S.C. § 926B, subd. (f).)
In a memorandum to all staff, the Director of the Federal
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Bureau of Prisons, stated that while this law exempts
qualified current and retired law enforcement officers from
state and local laws prohibiting the carrying of concealed
firearms, it should not be interpreted as doing more than
exempting those qualifying individuals from concealed carry
prohibitions. (Harley G. Lappin, Director of the Federal
Bureau of Prisons, Memorandum on the Guidance Regarding the
Law Enforcement Officers Safety Act (LEOSA) (Feb. 27, 2006) p.
1.) The memorandum further states:
State and local jurisdictions regulate an individual's
ability to obtain a firearms permit or purchase a
firearm in a variety of ways. For example, at least
one jurisdiction has imposed a requirement that an
individual's employer verify the employee's need to
carry a firearm off duty as a condition of his or her
employment. Bureau staff are not required to carry a
firearm off duty as a condition of employment, and,
therefore, the Bureau is not responsible for providing
a letter of necessity or statement to this effect.
(Id. at p. 1, fn. 2.)
It also states that, aside from the carrying of concealed
firearms, "LEOSA's language does not include exemptions from
State and local laws for any other firearms-related
activities, for example, purchasing registering, licensing, or
the permissible use of firearms" and that "[t]here should
never be a time when off-duty staff claim to be carrying a
concealed personal firearm as part of their Bureau employment
or in furtherance of their official Bureau duties." (Id. at
p. 3& 4 [emphasis in original].) Bureau staff representatives
had agreed to all matters that were incorporated into this
memorandum.
4)Argument in Support : The American Federation of Government
Employees, Local 3969 states that federal correctional
officers "should be recognized the same as California State
Peace Officers and other State Law Enforcement Professionals.
Recently the California State Attorney General would not allow
firearms retailers to sell 'off roster weapons' to us and
other Federal Law Enforcement Officers because we are not
specifically recognized in the California Penal Code as
exempted. Attorney Generals in the past have issues
memorandums that did recognize us so this has been the AG
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policy for at least the 9 years I have been a Correctional
Officer. We feel that this should not be one individual's
decision but our elected official's [sic] decision to address
this and treat us equally."
5)Current Legislation : SB 1456 (Nielsen) would add the
Department of Forestry and Fire Protection to the list of
agencies exempt from specified assault weapon restrictions and
would allow law enforcement officers employed by the
department, in the course and scope of the officers'
employment only, to have assault weapons if the department
determines the weapon is necessary. SB 1456 is pending in the
Senate.
6)Prior Legislation : SB 23 (Perata), Chapter 129, Statutes of
1999, among other things, expanded the list of entities
exempted from specified assault weapon restrictions to include
the Department of Fish and Game and the Department of Parks
and Recreation.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of Government Employees, Local 3969
(Sponsor)
Opposition
None
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744