BILL ANALYSIS                                                                                                                                                                                                    







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

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          SB 396 (Hancock)                                            
          As Amended April 3, 2013 
          Hearing date: April 16, 2013
          Penal Code
          SM:dl

                                HIGH CAPACITY MAGAZINES  

                                       HISTORY

          Source:  Author

          Prior Legislation: SB 776 (Hancock) - (2009) died in this  
          Committee
                       SB 23 (Perata) - Chap. 129, Statutes of 1999
                       Roberti-Roos Assault Weapons Control Act of 1989  
          (Chapter 19,  3, Stats. of 1989.)

          Support: California Church Impact; California Chapters of the  
                   Brady Campaign to Prevent Gun Violence; Individual  
                   Chapters of the Brady Campaign from the following  
                   Counties and regions: Antelope Valley, Contra Costa,  
                   Long Beach, Los Angeles, Marin, Napa, Nevada, Oakland,  
                   Orange County, Pomona, San Joaquin, Sacramento Valley,  
                   San Diego, San Fernando Valley, San Francisco, San  
                   Mateo, Santa Barbara, Santa Clara, Santa Cruz, South  
                   Bay LA, and Tri City Alameda County; California  
                   Federation of Teachers; City of Oakland; Coalition  
                   Against Gun Violence; Emeryville Police Department;  
                   Contra Costa County Supervisor John Gioia; Oakland  
                   Police Department; Violence Prevention Coalition of  
                   Orange County; Youth Alive!; Friends Committee on  
                   Legislation of California; Auburn Area Democratic Club;  




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                   Moms Demand Action for Gun Sense in America (San  
                   Francisco Bay Area Chapter); California State PTA; PICO  
                   California; Doctors for America; Law Center to Prevent  
                   Gun Violence; Violence Prevention Coalition; CLUE  
                   California; El Cerrito Police Department; Democratic  
                   Women of Santa Barbara County; National Council of  
                   Jewish Women; South County Citizens against Gun  
                   Violence; Bend the Arc: Jewish Partnership for Justice;  
                   Courage Campaign; Christy Lynn Foundation; letters from  
                   several individuals

          Opposition:California Right to Carry; Shasta County Sheriff;  
                   California Rifle and Pistol Association, Inc.;  
                   California Association of Federal Firearms Licensees;  
                   National Rifle Association; California Public Defenders  
                   Association (oppose unless amended); letters and phone  
                   calls from several individuals


                                        KEY ISSUES
           
          BEGINNING JULY 1, 2014, SHOULD THE POSSESSION OF ANY AMMUNITION  
          MAGAZINE THAT IS CAPABLE OF HOLDING MORE THAN 10 ROUNDS OF  
          AMMUNITION BE PROHIBITED, EXCEPT AS SPECIFIED?

          SHOULD THE DEFINITION OF "LARGE-CAPACITY MAGAZINE" INCLUDE A FEEDING  
          DEVICE THAT HAD A CAPACITY OF MORE THAN 10 ROUNDS BUT HAS BEEN  
          PERMANENTLY MODIFIED TO HOLD NO MORE THAN 10 ROUNDS OF AMMUNITION?

          SHOULD IT BE REQUIRED THAT ANY PERSON WHO, PRIOR TO JULY 1, 2014,  
          LEGALLY POSSESSES A LARGE-CAPACITY MAGAZINE DISPOSE OF THAT MAGAZINE  
          BY REMOVING IT FROM THE STATE, SELLING THE LARGE-CAPACITY MAGAZINE  
          TO A LICENSED FIREARMS DEALER BEFORE JULY 1, 2014, DESTROYING IT, OR  
          SURRENDERING IT TO A LAW ENFORCEMENT AGENCY FOR DESTRUCTION?


                                       PURPOSE

          The purpose of this bill is to (1) prohibit, beginning July 1,  




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          2014, possession of any ammunition magazine that is capable of  
          holding more than 10 rounds of ammunition, except as specified;  
          (2) amend the definition of large-capacity magazine to include a  
          feeding device that had a capacity of more than 10 rounds but  
          has been permanently modified to hold no more than 10 rounds of  
          ammunition; and (3) and require that any person who, prior to  
          July 1, 2014, legally possesses a large-capacity magazine  
          dispose of that magazine by removing it from the state, selling  
          the large-capacity magazine to a licensed firearms dealer before  
          July 1, 2014, destroying it, or surrendering it to a law  
          enforcement agency for destruction.

          Current Federal Law
          
           Current federal law  ,  the federal assault weapons law (the  
          Violent Crime Control and Law Enforcement Act, H.R. 3355, Pub.L.  
          103-322,) became effective on September 13, 1994, and banned the  
          possession of "assault weapons" and "large capacity ammunition  
          feeding devices," defined as a magazine capable of holding more  
          than ten rounds of ammunition, manufactured after that date.   
          That law expired in 2004 and has not been reenacted.

          Current California Law
          
          Current law  defines a "large-capacity magazine" as "any  
          ammunition feeding device with the capacity to accept more than  
          10 rounds, but shall not be construed to include any of the  
          following: 

                 A feeding device that has been permanently altered so  
               that it cannot accommodate more than 10 rounds. 
                 A .22 caliber tube ammunition feeding device. 
                 A tubular magazine that is contained in a lever-action  
               firearm."

          (Penal Code  16740.)

           Current law  provides that, except as specified, commencing  
          January 1, 2000, any person in this state who manufactures or  




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          causes to be manufactured, imports into the state, keeps for  
          sale, or offers or exposes for sale, or who gives, or lends, any  
          large-capacity magazine is punishable by imprisonment in a  
          county jail not exceeding one year or imprisonment for 16  
          months, two or three years pursuant to penal code section  
          1170(h).  (Penal Code  32310.)

           Current law  provides that, upon a showing that good cause  
          exists, the Department of Justice may issue permits for the  
          possession, transportation, or sale between a licensed firearms  
          dealer and an out-of-state client, of large-capacity magazines.   
          (Penal Code  32315.)

           Current law  provides that, except as specified, any  
          large-capacity magazine is a nuisance and is subject to an  
          injunction against its possession, manufacture or sale, and is  
          subject to confiscation and summary destruction.  (Penal Code   
          32390.)

           This bill  would prohibit, beginning July 1, 2014, possession of  
          any ammunition magazine that is capable of holding more than 10  
          rounds of ammunition, except as specified.

           This bill  would amend the definition of high capacity magazine  
          to include a feeding device that had a capacity of more than 10  
          rounds but has been permanently modified to hold no more than 10  
          rounds of ammunition.

           This bill  would require that any person who, prior to July 1,  
          2014, legally possesses a large-capacity magazine dispose of  
          that magazine by removing it from the state, selling the  
          large-capacity magazine to a licensed firearms dealer before  
          July 1, 2014, destroying it, or surrendering it to a law  
          enforcement agency for destruction.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  




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          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 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 oppose 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."  




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          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.  

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unsettled.  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  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.




                                      COMMENTS

          1.  Need For This Bill  

          According to the author:

               In 1999, the Legislature passed SB 23 (Perata) which  
               prohibited the possession of assault weapons, such as  
               the AK-47 and created a generic definition of an  
               assault weapon.  As part of that legislation, the  
               importation, manufacture and sale of large capacity  




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               ammunition magazines was strictly prohibited.   
               However, the possession of high capacity magazines was  
               not prohibited.

               Federal law also outlawed possession of high capacity  
               magazines as part of the 1994 federal assault weapons  
               ban but allowed current owners to keep them under a  
               "grandfathering" provision.  The federal assault  
               weapons ban was allowed to expire in 2004.  Research  
               has shown that, prior to the implementation of the  
               federal assault weapons ban, these high capacity  
               magazines were used in between 14 and 26% of guns used  
               in crime. 

               High capacity ammunition magazines are ammunition  
               feeding devices that hold more than ten rounds of  
               ammunition.  These mega-magazines can hold upwards of  
               100 rounds of ammunition and allow a shooter to  
               rapidly fire without reloading. 

               High capacity magazines are not designed for hunting  
               or target shooting.  High capacity magazines are  
               military designed devices. They are designed for one  
               purpose only -- to allow a shooter to fire a large  
               number of bullets in a short period of time.

               This bill will make clear that possession of these  
               "mega-magazines" is also prohibited.  Law enforcement  
               officers have told us that, because the Penal Code  
               currently fails to specifically prohibit possession,  
               the law is very difficult to enforce. This needs to be  
               fixed and this measure addresses that by prohibiting  
               the possession.

               Prohibiting possession of these high capacity  
               magazines is just one important part of the  
               comprehensive strategy being proposed today to reduce  
               gun violence in California.





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          2.  High Capacity Magazines in Both Long Guns and Handguns  

          Many rifles and handguns that use a detachable ammunition  
          magazine can accept a high capacity magazine, meaning a magazine  
          that can hold more than 10 rounds of ammunition. On a  
          semiautomatic handgun or rifle, one bullet is fired per  
          trigger-pull. The effect of attaching a high capacity magazine  
          is to allow the shooter to rapidly fire as many rounds as the  
          magazine holds, as fast as they can pull the trigger. A high  
          capacity magazine typically holds 30 rounds but some have been  
          designed to hold as many as 100 rounds. Since January 1, 2000,  
          California has banned the importation, manufacture or sale of  
          high capacity magazines. (Penal Code  32310, 32390.) These  
          magazines have also been deemed a public nuisance and are,  
          therefore, subject to confiscation and destruction, although  
          this requires a prosecutor to obtain a civil injunction, which  
          is costly and time-consuming. (Penal Code  18010.) The  
          Department of Justice states that sellers are currently  
          circumventing the ban on sale of these magazines in California  
          by selling all the parts necessary to construct them as "repair  
          kits," which are then easily assembled in a matter of minutes.  
          Because possession is not prohibited, once the magazine is  
          assembled, law enforcement is unable to take any action at that  
          point. This bill would impose the same criminal penalties for  
          possession of high capacity magazines as currently exist for  
          their importation, manufacture or sale in California.

          Many mass shootings, as well as other shootings with fewer  
          victims, have involved the use of high capacity magazines. The  
          Violence Policy Center, a Washington D.C. - based nonprofit  
          research group, compiled a list of 34 such mass shootings in the  
          United States that have involved the use of high capacity  
          magazines. Most recently these include the massacre at Sandy  
          Hook Elementary School in Newtown, Connecticut, in which the  
          shooter used several 30-round magazines and killed 28 people,  
          the Aurora Colorado movie theater massacre last July, in which  
          the shooter used a 100-round magazine and left 12 dead and 58  
          wounded, and the shooting in Tucson, Arizona on January 8, 2011,  
          in which the shooter used a Glock 19 pistol with a 33-round  




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          magazine, killing 6 and wounding another 13. One of those  
          wounded was U.S. Representative Gabrielle Giffords, who is now  
          urging Congress to reinstate the federal ban on high capacity  
          ammunition magazines.

               WASHINGTON - A halting but riveting  Gabrielle Giffords   
               told Congress on Wednesday that it must act now to  
               stem gun violence, telling senators "too many children  
               are dying" just two years after she was shot at  
               point-blank range and suffered brain damage.


               The former Democratic Arizona congresswoman, who  
               struggles to walk and is partially blind, stoutly read  
               a brief statement in a high-pitched, almost childlike  
               voice as her husband, retired astronaut  Mark Kelly  ,  
               sat at her side in a packed and dramatically hushed  
               hearing room.


               "Speaking is difficult, but I must say something  
               important. Violence is a big problem. Too many  
               children are dying. Too many children," Giffords said.


               She enunciated each word slowly and clearly, and  
               punctuated her remarks at several points by looking up  
               abruptly, as if her head was a personal exclamation  
               point.


               "We must do something," she said. "It will be hard,  
               but the time is now. You must act. Be bold. Be  
               courageous. Americans are counting on you."


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               Both she and her husband own guns and back the Second  
               Amendment. However, they have become critics of the  
               National Rifle Association, pushing for a new assault  
               weapons ban, universal background checks and a ban on  
               high-capacity magazines.


                                    * * * * * * *


               In his own testimony, Kelly said that a limit on the  
               size of ammunition magazines, as proposed by Obama,  
               could have saved lives in the Tucson attack that  
               killed six and wounded his wife.


               He said the gunman emptied his high-capacity  
               ammunition clip in 15 seconds, firing 33 bullets. If  
               the shooter had used a 10-round clip, 9-year-old  
               Christina-Taylor Green, who was struck by bullet No.  
               13, "would be alive today," Kelly said.


               "I'm certainly willing to give up my right to own a  
               high-capacity magazine to bring back that young girl,"  
               he said.

          ("Gabby Giffords Says 'Too Many Children Are Dying' During  
          Emotional Plea to Senate Committee for Stricter Gun Control,"  
          New York Daily News, January 30, 2013,  
          http://www.nydailynews.com/news/politics/gabby-giffords-senate-gu 
          n-control-hearing-report-article-1.1251013#ixzz2MnHJGkby  )

          A high capacity magazine increases the number of people that can  
          be killed or wounded in a short period of time with even a  
          conventional handgun or rifle. Perhaps the most dramatic and  
          horrifying example of this occurred in 2011 when a man opened  
          fire on teenagers at a summer youth camp in Norway, killing 69  
          and wounding another 110, using a semi-automatic rifle, the .223  




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          caliber Ruger Mini-14. The Mini-14 does not contain any of the  
          features commonly associated with military-style assault  
          weapons, is perfectly legal in California, and is a popular  
          rifle with ranchers. What made that weapon such a monstrously  
          effective tool of mass murder is the fact that the killer was  
          able to rapidly reload one magazine after another of ammunition.  
          According to the Norwegian newspaper Aftenposten, Norway forbids  
          sale of ammunition magazines for hunting rifles that hold more  
          than three rounds. The killer stated that he bought 10 30-round  
          magazines by mail-order from a supplier in the United States.  
          (Norway Shooter: Ammo Clips Were From U.S., Politico, July 28,  
          2011, http://www.politico.com/news/stories/0711/60154.html.)


          3.  The Federal Assault Weapons Ban Has Been Allowed to Expire  

          The Federal Assault Weapons Ban was passed as a portion of the  
          Violent Crime Control and Law Enforcement Act on September 13,  
          1994.  In addition to banning assault weapons, the Act also  
          banned the possession, manufacture or transfer of large capacity  
          ammunition feeding devices, or high capacity magazines.  The Act  
          expired on September 13, 2004 and was not reenacted.  

          Like the assault weapons ban, whether citizens should be allowed  
          to own high-capacity magazines is one of the contested issues in  
          the debate over what constitutes reasonable gun regulation.

               "Anyone who's thought seriously about armed  
               self-defense knows why honest Americans - private  
               citizens and police alike - choose magazines that hold  
               more than 10 rounds. Quite simply, they improve good  
               people's odds in defensive situations," Chris W. Cox,  
               the executive director of the National Rifle  
               Association's legislative institute wrote in a piece  
               posted online. He called the ban a "dismal failure."


               The federal prohibition on high-capacity magazines and  
               assault weapons was spurred in part by the 1989 mass  




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               killing in Stockton, Calif. Patrick Edward Purdy, a  
               mentally unbalanced drug addict, fired 110 rounds from  
               an AK-47 into a schoolyard, killing five children and  
               wounding 29 others and a teacher. Purdy used a  
               75-round drum magazine and a 35-round banana clip, one  
               of four he carried.  


          (David S. Fallis, Data Indicate Drop in High-Capacity Magazines  
          During Federal Gun Ban, Washington Post, January 10, 2013,  
          http://www.washingtonpost.com/investigations/data-point-to-drop-i 
          n-high-capacity-magazines-during-federal-gun-ban/2013/01/10/d56d3 
               bb6-4b91-11e2-a6a6-aabac85e8036_story.html)

          According the Washington Post, an analysis of data taken from  
          one jurisdiction, the State of Virginia, showed, "During the  
          10-year federal ban on assault weapons, the percentage of  
          firearms equipped with high-capacity magazines seized by police  
          agencies in Virginia dropped, only to rise sharply once the  
          restrictions were lifted in 2004[.]"  

                                   * * * * * * * *

               "I was skeptical that the ban would be effective, and  
               I was wrong," said Garen Wintemute, head of the  
               Violence Prevention Research Program at the University  
               of California at Davis School of Medicine. The  
               database analysis offers "about as clear an example as  
               we could ask for of evidence that the ban was  
               working." 

          (Fallis, supra.)

          4.  The Fifth Amendment "Takings" Clause  

          The "takings clause" of the Fifth Amendment to the United States  
          Constitution states:  "nor shall private property be taken for  
          public use without just compensation."  California law already  
          bans the import, manufacture and sale of high capacity  




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          ammunition magazines, and has declared them a nuisance and  
          subject to confiscation and destruction. (Penal Code  32310,  
          32390, 18010.) Nonetheless, the question has been raised whether  
          adding criminal penalties for possession of these ammunition  
          magazines would constitute a 'taking of private property for  
          public use without just compensation,' in violation of the 5th  
          Amendment. 

          The U.S. Supreme Court has recognized for well over a century a  
          difference between legislative action that results in a taking  
          of private property for public use through a process of eminent  
          domain and a legitimate use of the police power of the state to  
          protect the public health and welfare. In upholding a statute  
          prohibiting the sale of alcohol, the Court stated, 

               The exercise of the police power by the destruction of  
               property which is itself a public nuisance, or the  
               prohibition of its use in a particular way, whereby  
               its value becomes depreciated, is very different from  
               taking property for public use, or from depriving a  
               person of his property without due process of law. In  
               the one case, a nuisance only is abated; in the other,  
               unoffending property is taken away from an innocent  
               owner. 

          (Mugler v. Kansas, 123 U.S. 623, 668-669 (1887); see also  
          Chicago, B. & Q. R. Co. v. Illinois, 200 U.S. 561, 593-594  
          (1906) ("It has always been held that the legislature may make  
          police regulations, although they may interfere with the full  
          enjoyment of private property and though no compensation is  
          given."); Hamilton v. Kentucky Distilleries & Warehouse Co., 251  
          U.S. 146, 157-158 (1919); Bala v. State, 2010 ND 164, P9 (2010):  
          ("Eminent domain takes property because it is useful to the  
          public, while the police power regulates the use of, or impairs  
          rights in, property to prevent detriment to the public interest,  
          and constitutional provisions against taking private property  
          for public use without just compensation impose no barrier to  
          the proper exercise of the police power."); Eggleston v. Pierce  
          County, 64 P.3d 618, 623 (Wash. 2003) ("Police power and the  




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          power of eminent domain are essential and distinct powers of  
          government. Courts have long looked behind labels to determine  
          whether a particular exercise of power was properly  
          characterized as police power or eminent domain. But clearly,  
          not every government action that takes, damages, or destroys  
          property is a taking. 'Eminent domain takes private property for  
          a public use, while the police power regulates its use and  
          enjoyment, or if it takes or damages it, it is not a taking or  
          damaging for the public use, but to conserve the safety, morals,  
          health and general welfare of the public.'")

          Specifically in the context of the regulation of firearms,  
          courts have held that prohibiting possession of dangerous  
          weapons is a valid exercise of the government's police power not  
          to be confused with the power of imminent domain.  In 1978,  
          Washington, D.C. passed a law prohibiting the ownership of  
          certain types of weapons, including those that could fire more  
          than 13 rounds without reloading.  The law was quickly  
          challenged by a several gun owners who had legally purchased  
          such weapons before the law went into effect and were thus  
          required to dispose of them or be in violation of the law.  They  
          claimed this amounted to a taking by the government, without  
          just compensation, in violation of the Fifth Amendment.  The  
          Court of Appeals for the District of Columbia held:

               Petitioners' third constitutional challenge alleges  
               that D.C. Code 1978 Supp.,  6-1820(c) provides for a  
               taking of their property without just compensation in  
               violation of the Fifth Amendment. That section of the  
               Code provides three alternatives for disposition  
               within seven days of a firearm denied registration.   
               The unsuccessful applicant may (1) "peaceably  
               surrender" the firearm to the chief of police, (2)  
               "lawfully remove" the firearm from the District for as  
               long as he retains an interest in the firearm, or (3)  
               "lawfully dispose" of his interest in the firearm.   
               Petitioners' argument is that the second and third  
               alternatives require, under the terms imposed by the  
               Federal Gun Control Act of 1968, 18 U.S.C.  922  




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               (1970), a quick "forced sale" of the firearms at less  
               than fair market value to a dealer in firearms, while  
               the first alternative would provide not even a salvage  
               value return.

               Assuming, arguendo, that the statute authorized a  
               "taking," we note that the Fifth Amendment prohibits  
               taking of "private property . . . for public use,  
               without just compensation."  Such a taking for the  
               public benefit under a power of eminent domain is,  
               however, to be distinguished from a proper exercise of  
               police power to prevent a perceived public harm, which  
               does not require compensation  . Lamm v. Volpe, 449 F.2d  
               1202, 1203 (10th Cir. 1971).  That the statute in  
               question is an exercise of legislative police power  
               and not of eminent domain is beyond dispute  . The  
               argument of petitioner, therefore, lacks merit.

          (Fesjian v. Jefferson, 399 A.2d 861, 865-866 (1979), emphasis  
          added.)

          If banning possession of high capacity magazines, as this bill  
          proposes, required that the state compensate all current owners  
          of these items, the same requirement would be applicable to  
          legislation that bans any dangerous weapon or substance. This  
          would lead to absurd results. For example, in 2009 the  
          Legislature approved a ban on importation, manufacture, sale or  
          possession of hard plastic knuckles, a weapon that had often had  
          a sharp edge and could pass undetected through a magnetometer.  
          (AB 714 (Feuer) Chap. 121, Stats. of 2009, Penal Code  21710.)  
          The Legislature did not deem it necessary or appropriate to  
          provide compensation to the owners of these weapons. Similarly,  
          in 2008, legislation outlawed possession of a plant known as  
          Khat, and its synthetic equivalent due to fears of abuse due to  
          its psychoactive properties. (AB 1141 (Anderson) Chap. 292,  
          Stats. of 2008, Health and Safety Code  11055.) Again, no  
          compensation was offered to current owners of the plant or drug.  
          Prohibiting possession of these dangerous weapons and substances  
          was undertaken pursuant to the government's police power 'to  




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          prevent a perceived public harm,' and, accordingly, the  
          Legislature did not deem it necessary to compensate current  
          owners of these weapons or substances. As the Supreme Court has  
          stated, "Government hardly could go on if to some extent values  
          incident to property could not be diminished without paying for  
          every such change in the general law." (Pennsylvania Coal Co. v.  
          Mahon, 260 U.S. 393, 413 (1922).)




































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          5.  Argument in Support  

          The California Chapters of the Brady Campaign to Prevent Gun  
          Violence states:

               Since January 2000, California law has prohibited the  
               manufacture, importation, sale, gift, or loan of any  
               large capacity ammunition magazine capable of holding  
               more than ten rounds. SB 396 would add a prohibition  
               on possessing large capacity magazines, regardless of  
               the date the magazine was acquired.  

               Recent mass shootings involving large capacity  
               magazines have demonstrated the tragic carnage caused  
               by these magazines.  The shooters in Fort Hood,  
               Tucson, Aurora, and Newtown were able to injure or  
               kill large numbers of people very quickly because of  
               their ability to shoot a large number of bullets in a  
               very short period of time.  Jared Loughner, who was  
               able to rapidly fire 31 bullets in 15 seconds without  
               reloading, killed six people and wounded thirteen  
               others in Tucson.  The shooting ended when bystanders  
               tackled the gunman while he was reloading.  Nine year  
               old Christina-Taylor Green was shot by the thirteenth  
               bullet - had there been a magazine limit of ten  
               rounds, she might be alive today.  

               California had a number of mass shootings involving  
               large capacity ammunition magazines before the ban on  
               their sale and transfer in year 2000 (in San Ysidro,  
               Stockton, San Francisco and Orange).   Other rampage  
               shootings involving large capacity magazines have  
               happened since then - and will happen again - because  
               of the prevalence of large capacity magazines and the  
               difficulty of enforcing existing law.  It is nearly  
               impossible to prove when a large capacity magazine was  
               acquired or whether the magazine was illegally  
               purchased after the 2000 ban.  Furthermore, "magazine  
               repair kits" are now being sold in California.  These  




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                                                           SB 396 (Hancock)
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               kits, containing parts to repair large capacity  
               magazines, are legally purchased and later assembled  
               into new large capacity magazines.  Since the  
               possession of large capacity magazines is permissible,  
               this practice, which clearly evades the intent of the  
               law, is difficult to stop.  SB 396 would enable the  
               enforcement of existing law regarding large capacity  
               magazines.    

               With average use, magazines typically last about  
               twelve years.   It is now time to end the  
               grandfathering of large capacity magazines and  
               exploitation of the law by prohibiting the possession  
               of these magazines.   Serious hunters do not use large  
               capacity magazines.  A prohibition on the sale,  
               transfer, and possession of large capacity magazines  
               clearly furthers public safety.  The California Brady  
               Campaign Chapters appreciate your introduction of SB  
               396 and are in full support.  

          6.    Argument in Opposition  

          The Shasta County Sheriff states:

               I am strongly opposed to Senate Bill 396. Existing law  
               defines firearm magazine capacity. This bill would add  
               that the magazine be only of a sufficient length to  
               accommodate 10 rounds. This bill would also prohibit  
               the possession, sale, lending, offering, giving, etc.  
               of any current or existing large capacity magazine.  
               This bill not only restricts magazines but would  
               render certain firearms such as semi-automatic  
               handguns inoperable due to grip and magazine design.

               Currently, there are literally millions of magazines  
               with capacity greater than 10 rounds. Existing law  
               exempts or grandfathers in such magazines. This law  
               would make current law abiding citizens who possess  
               such magazines into criminals. If citizens would be  











                                                           SB 396 (Hancock)
                                                                     Page 19



               required to turn in high capacity magazines, they  
               would need to be compensated for them at fair market  
               value. This would cost the state hundreds of millions  
               to reimburse citizens, all at a time when the state  
               should be saving money.

               This bill improperly and unreasonably places unfounded  
               mandates on local agencies, such mandates need to be  
               properly funded. This bill does nothing to address the  
               causes of gun violence, such as criminal behavior,  
               mental illness, or substance abuse. There are plenty  
               of gun related laws, enforce them. Strict enforcement,  
               vigorous prosecution, and harsh sentences will address  
               criminals, reduce violence, and save lives.


          7.    Sentencing Considerations
           
          This bill would amend the definition of "large-capacity  
          magazine" for purposes of California's assault weapons laws.   
          The punishment for a violation of this provision is a wobbler;  
          the felony punishment is 16 months, 2 or 3 years imprisonment  
          (Penal Code section 1170 (h).).  Currently, there are no inmates  
          in state prison for this offense. 



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