BILL ANALYSIS                                                                                                                                                                                                    




                                                                  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