BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 5 6 7 SB 567 (Jackson) As Amended April 1, 2013 Hearing date: April 16, 2013 Penal Code SM:mc DEFINITION OF SHOTGUN HISTORY Source: Author Prior Legislation: AB 2728 (Klehs) - Chapter 793, Statutes of 2006 SB 238 (Perata) - Chapter 499, Statutes of 2003 SB 626 (Perata) - Chapter 937, Statutes of 2001 SB 23 (Perata) - Chapter 129, Statutes of 1999 Roberti-Roos Assault Weapons Control Act - Ch. 19, § 3, Stats. 1989 Support: California Chapters of the Brady Campaign to Prevent Gun Violence; California Church Impact; Coalition Against Gun Violence; Youth Alive!; Moms Demand Action for Gun Sense in America; CLUE California; Violence Prevention Coalition of Orange County; Laguna Woods Democratic Club; PICO California; Law Center to Prevent Gun Violence; The Christy Lynn Wilson Foundation; Bend the Arc: Jewish Partnership for Justice; Courage Campaign; several letters from private citizens (More) SB 567 (Jackson) Page 2 Opposition:California Right to Carry; National Rifle Association; California Association of Federal Firearms Licensees; California Rifle and Pistol Association; several letters and phone calls from private citizens KEY ISSUES SHOULD THE DEFINITION OF "SHOTGUN" BE AMENDED TO DELETE LANGUAGE STATING THAT TO BE CONSIDERED A SHOTGUN, THE WEAPON MUST BE "INTENDED TO BE FIRED FROM THE SHOULDER?" SHOULD THE DEFINITION OF "SHOTGUN" BE AMENDED TO ADD LANGUAGE TO STATE THAT A SHOTGUN MAY INCLUDE A WEAPON WITH A RIFLED BORE, AS WELL AS A SMOOTH BORE? PURPOSE The purpose of this bill is to amend the definition of "shotgun" to (1) delete language stating that to be considered a shotgun, the weapon must be "intended to be fired from the shoulder," and (2) add language to state that a shotgun may include a weapon with a rifled bore, as well as a smooth bore. Current law defines the following shotguns as assault weapons: A semiautomatic shotgun that has both of the following: o a folding or telescoping stock; and o a pistol grip that protrudes conspicuously beneath the action of the weapon, thumbhole stock, or vertical handgrip. A semiautomatic shotgun that has the ability to accept a (More) SB 567 (Jackson) Page 3 detachable magazine. Any shotgun with a revolving cylinder. (Penal Code § 30515(a)(6) - (8).) Current law contains legislative findings and declarations that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of California. (Penal Code § 30505.) Current law states legislative intent to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. (Penal Code § 30505.) Current law provides that unlawful possession of an assault weapon is an alternate felony-misdemeanor and shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 (16 months, two or three years). Notwithstanding the above, a first violation of these provisions is punishable by a fine not exceeding $500 if the person was found in possession of no more than two firearms and certain specified conditions are met. (Penal Code § 30605.) Current law provides that any person who within California manufactures, imports into California, offers for sale, or who gives or lends any assault weapon with specified exceptions is guilty of a felony punishable by imprisonment in state prison for four, six, or eight years. (Penal Code § 30600.) Current law defines a "shotgun" as a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger. (Penal Code § 17190.) This bill would amend the definition of "shotgun" to delete (More) SB 567 (Jackson) Page 4 language stating that to be considered a shotgun, the weapon must be "intended to be fired from the shoulder" and add language to state that a shotgun may include a weapon with a rifled bore, as well as a smooth bore. 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 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 (More) SB 567 (Jackson) Page 5 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. 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: Under California's existing assault weapons ban, smooth bored shotguns with revolving cylinders are classified as assault weapons and are illegal to sell, use or possess in this state. Gun makers have begun manufacturing this same banned shotgun, but with a (More) SB 567 (Jackson) Page 6 "rifled" bore which is not specifically banned in California even though it shoots the same ammunition. Because California's current definition of banned assault weapons does not cover this newly designed shotgun that manufacturers are now producing, the definition needs to be updated to close a loophole that manufacturers are exploiting. The new "rifled" bore shotgun with a revolving cylinder has characteristics similar to the "Street Sweeper" shotgun that has been named as a banned assault shotgun since the Roberti-Roos Assault Weapons Act of 1989. The same firearm was deemed to be a Federal "destructive device" in 1994. Failure to update the law to add "rifled" bore shotguns with revolving cylinders to the ban on "smooth" bored shotguns with revolving cylinders could result in "Street Sweeper" guns reappearing on California streets. 2. Background - The Genesis and Evolution of the Assault Weapons Ban in California. The origin of and subsequent modifications to the assault weapons ban in California are described by the federal Court of Appeal in the following extended excerpt from Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) (as amend. Jan. 27, 2003): In response to a proliferation of shootings involving semi-automatic weapons, the California Legislature passed the Roberti-Roos Assault Weapons Control Act ("the AWCA") in 1989. The immediate cause of the AWCA's enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton, California. An individual armed with an AK-47 semi-automatic weapon opened fire on the schoolyard, where three hundred pupils were enjoying their morning recess. Five children aged 6 to 9 were killed, and (More) SB 567 (Jackson) Page 7 one teacher and 29 children were wounded. The California Assembly met soon thereafter in an extraordinary session called for the purpose of enacting a response to the Stockton shooting. The legislation that followed, the AWCA, was the first legislative restriction on assault weapons in the nation, and was the model for a similar federal statute enacted in 1994. The AWCA renders it a felony offense to manufacture in California any of the semi-automatic weapons specified in the statute, or to possess, sell, transfer, or import into the state such weapons without a permit.1 The statute contains a grandfather clause that permits the ownership of assault weapons by individuals who lawfully purchased them before the statute's enactment, so long as the owners register the weapons with the state Department of Justice.2 The grandfather clause, however, imposes significant restrictions on the use of weapons that are registered pursuant to its provisions.3 Approximately forty models of firearms are listed in the statute as subject to its restrictions. The specified weapons include "civilian" models of military weapons that feature slightly less firepower than the military-issue versions, such as the Uzi, an Israeli-made military rifle; the AR-15, a semi-automatic version of the United States military's standard-issue machine gun, the M-16; and the AK-47, a Russian-designed and Chinese-produced military rifle. The AWCA also includes a mechanism for the Attorney General to seek a judicial declaration in certain California Superior Courts that weapons identical to the listed firearms are also subject to the statutory restrictions.4 FOOTNOTES n1 Semiautomatic weapons differ from fully automatic machine guns in the following respects: Automatic (More) SB 567 (Jackson) Page 8 weapons feed ammunition into the gun's chamber immediately after the firing of each bullet, so that the weapon will continue to reload and fire continuously so long as the trigger is depressed. Purchase and ownership of automatic weapons has been restricted by the federal government since the days of Al Capone and the machine gun violence associated with the Prohibition Era. In contrast to automatic weapons, only one bullet is fired when the user of a semi-automatic weapon depresses the trigger, but another is automatically reloaded into the gun's chamber. Thus, by squeezing the trigger repeatedly and rapidly, the user can release many rounds of ammunition in a brief period of time -- certainly many more than the user of a standard, manually-loaded weapon. Moreover, the semi-automatic weapons known as assault weapons contain large-capacity magazines, which require the user of the weapon to cease firing to reload relatively infrequently because the magazines contain so much ammunition. Consequently, users of such weapons can "spray-fire" multiple rounds of ammunition, with potentially devastating effects. n2 An individual who lawfully obtained an assault weapon prior to the enactment of the AWCA may avoid the requirement of registering it with the state if he renders the weapon permanently inoperable, relinquishes it to a state law enforcement agency, sells it to a licensed California firearms dealer, or removes it from the State of California. n3 A person who has registered an assault weapon may possess the weapon only at his own residence, his place of business, certain private and public clubs organized for the purpose of target shooting, certain fire-arms exhibitions approved by law enforcement agencies, or on specified public lands. Additionally, an assault (More) SB 567 (Jackson) Page 9 weapon owner may transport his registered weapon to any of the above locations only so long as he complies with the methods of transportation prescribed in the statute. n4 Unless otherwise noted, citations to statutory provisions in this opinion refer to the sections of the AWCA as codified in the California Penal Code. The AWCA includes a provision that codifies the legislative findings and expresses the legislature's reasons for passing the law: The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in [the statute] based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities. In 1999, the Legislature amended the AWCA in order to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semiautomatic weapons. The amended AWCA retains both the original list of models of restricted weapons, and the judicial declaration procedure by which models may be added to the list. The 1999 amendments to the AWCA statute add a third (More) SB 567 (Jackson) Page 10 method of defining the class of restricted weapons: The amendments provide that a weapon constitutes a restricted assault weapon if it possesses certain generic characteristics listed in the statute.5 Examples of the types of weapons restricted by the revised AWCA include a 'semiautomatic, center-fire rifle that has a fixed magazine with the capacity to accept more than 10 rounds,' and a semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and also features a flash suppressor, a grenade launcher, or a flare launcher. The amended AWCA also restricts assault weapons equipped with 'barrel shrouds,' which protect the user's hands from the intense heat created by the rapid firing of the weapon, as well as semiautomatic weapons equipped with silencers. FOOTNOTES n5 The reason that the legislature defined the restricted assault weapons generically, by feature, is that after the enactment of the AWCA, gun manufacturers began to produce 'copycat' weapons in order to evade the statute's restrictions. These weapons varied only slightly from the models listed in the act, but were different enough from those models that they evaded the law's restrictions. (Silveira v. Lockyer, 312 F.3d 1052, 1057-1059 (9th Cir. Cal. 2002) (citations omitted).) (More) 3. How This Bill Would Change the Existing Assault Weapons Ban This bill addresses issues that have arisen regarding the current definition of a shotgun, and whether, like the adaptations made to the definition of other assault weapons, it needs to be adjusted to keep pace with, as the Silveira Court put it, the "technological developments in the manufacture of semiautomatic weapons." The current definition of shotgun is incorporated into the definition of what types of shotguns are considered assault weapons. That definition appears to be out-of-date in that to be considered a shotgun, the weapon must have a smooth bore, as opposed to a rifled bore. New designs of shotguns are now appearing on the market with rifled bores for greater accuracy. Some of these weapons also come equipped with a revolving cylinder, which would bring them within the definition of an assault weapon in California; but for the fact that, if they have a rifled bore, they do not meet the definition of a shotgun. This would appear to run contrary to the intent of the assault weapons ban. This bill would amend the definition of shotgun to include those with a rifled bore. This bill also expands the definition of shotgun by deleting the requirement that to be considered a shotgun, the weapon must "intended to be fired from the shoulder." 4. Sentencing Considerations This bill would amend the definition of shotguns, which are assault weapons. The punishment for unlawful possession of an assault weapon is a wobbler; the felony punishment is 16 months, 2 or 3 years imprisonment pursuant to Penal Code section 1170(h). Currently, there are 8 people in prison under Penal Code section 30605. *************** (More) SB 567 (Jackson) Page 12