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