BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1135 Hearing Date: May 10, 2016
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|Author: |Levine |
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|Version: |May 4, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Firearms: Assault Weapons
HISTORY
Source: Author
Prior Legislation: SB 47 (Yee) - died in Assembly
Appropriations, 2013
SB 249 (Yee) - died in Assembly Appropriations,
2012
AB 2728 (Klehs) - Ch. 793, Statutes of 2006
SB 238 (Perata) - Ch. 499, Statutes of 2003
SB 626 (Perata) - Ch. 937, Statutes of 2001
SB 23 (Perata) - Ch. 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; Coalition Against Gun Violence, a Santa
Barbara County Coalition; Law Center to Prevent Gun
Violence
Opposition: Crossroads of the West; California Sportsman's
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Lobby; California State Sheriffs' Association;
Firearms Policy Coalition; Outdoor Sportsmen's
Coalition of California; National Rifle Association;
National Shooting Sports Foundation; Safari Club
International
Assembly Floor Vote: Not Relevant
PURPOSE
The purpose of this bill is to: (1) amend the definition of
assault weapon to refer to a firearm that has one of several
specified military-style features and does not have a "fixed
magazine" rather than a firearm that has one of those features
and "has the capacity to accept a detachable magazine;" (2)
define "fixed magazine" as "an ammunition feeding device
contained in, or permanently attached to, a firearm in such a
manner that the device cannot be removed without disassembly of
the firearm action"; (3) provide that any person who was
eligible to register an assault weapon and lawfully possessed
such a weapon prior to January 1, 2017, would be exempt from
penalties, if the person registers the weapon by January 1,
2018; (4) require that any person who from January 1, 2001, to
December 31, 2016, lawfully possessed an assault weapon that
does not have a fixed magazine, as defined, register the firearm
before January 1, 2018, with the Department of Justice (DOJ), as
specified; (5) provide that this registration be submitted
online, as specified; (6) authorize DOJ to charge a fee of up to
$15 per person but not to exceed the reasonable processing costs
of the department for this registration; and (7) require DOJ to
establish procedures for the purpose of carrying out this
registration requirement and to specify that these procedures
shall be exempt from the Administrative Procedure Act.
Current law contains legislative findings and declarations that
the proliferation and use of assault and .50 BMG rifles 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 .50 BMG rifles and to establish a
registration and permit procedure for their lawful sale and
possession. (Penal Code § 30505.)
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Current law defines "assault weapon" as one of certain specified
rifles and pistols (Penal Code § 30510) or as:
A semiautomatic, centerfire rifle that has the capacity
to accept a detachable magazine and has at least one of the
following:
o A pistol grip that protrudes conspicuously beneath
the action of the weapon;
o A thumbhole stock;
o A vertical handgrip;
o A folding or telescoping stock;
o A grenade launcher or flare launcher;
o A flash suppressor; or,
o A forward handgrip.
A semiautomatic, centerfire rifle that has a fixed
magazine with the capacity to accept more than 10 rounds;
A semiautomatic, centerfire rifle that has an overall
length of less than 30 inches;
A semiautomatic pistol that has the capacity to accept a
detachable magazine and has at least one of the following:
o A threaded barrel, capable of accepting a flash
suppressor, forward handgrip, or silencer;
o A second handgrip;
o A shroud that is attached to, or partially or
completely encircles, the barrel that allows the bearer
to fire the weapon without burning his or her hand,
excepting a slide that encloses the barrel; or
o The capacity to accept a detachable magazine at some
location outside of the pistol grip.
A semiautomatic pistol with a fixed magazine that has
the capacity to accept more than 10 rounds;
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
detachable magazine; and
Any shotgun that has a revolving cylinder. (Penal Code
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§ 30515.)
Current law defines a "detachable magazine" as any ammunition
feeding device that can be removed readily from the firearm with
neither disassembly of the firearm action nor use of a tool
being required. A bullet or ammunition cartridge is considered
a tool. Ammunition feeding device includes any belted or linked
ammunition, but does not include clips, en bloc clips, or
stripper clips that load cartridges into the magazine. (11 Cal.
Code of Regs. § 5469.)
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 ".50 BMG rifle and cartridge," as
specified. (Penal Code §§ 30525, 30530.)
Current law exempts the DOJ, law enforcement agencies, military
forces, and other specified agencies from the prohibition
against sales to, purchase by, importation of, or possession of
assault weapons or .50 BMG rifles. (Penal Code § 30625.)
Current law requires that any person who lawfully possesses an
assault weapon, as specified, must register the firearm with
DOJ, as specified. (Penal Code § 30900 et. seq.)
This bill would amend the definition of assault weapon to refer
to a firearm that has one of several specified features and does
not have a "fixed magazine" rather than a firearm with one of
those features and the "capacity to accept a detachable
magazine."
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This bill would define "fixed magazine" as "an ammunition
feeding device contained in, or permanently attached to, a
firearm in such a manner that the device cannot be removed
without disassembly of the firearm action."
This bill would provide that, notwithstanding the new definition
of assault weapon contained in this bill, any person who
possessed an assault weapon prior to January 1, 2017, is exempt
from punishment pursuant to Section 30605, if all of the
following are applicable:
Prior to January 1, 2017, the person was eligible to
register that assault weapon pursuant to subdivision (c) of
Section 30900;
The person lawfully possessed that assault weapon on
January 1, 2017; and
The person registers the assault weapon by January 1,
2018, a specified.
This bill would provide that any person who, from January 1,
2001, to December 31, 2016, inclusive, lawfully possessed an
assault weapon that does not have a fixed magazine, as defined
in Section 30515, including those weapons with an ammunition
feeding device that can be removed readily from the firearm with
the use of a tool, shall register the firearm before January 1,
2018, with the department pursuant to those procedures that the
department may establish.
Registrations shall be submitted electronically via the
Internet utilizing a public-facing application made
available by the department.
The registration shall contain a description of the
firearm that identifies it uniquely, including all
identification marks, the date the firearm was acquired,
the name and address of the individual from whom, or
business from which, the firearm was acquired, as well as
the registrant's full name, address, telephone number, date
of birth, sex, height, weight, eye color, hair color, and
California driver's license number or California
identification card number.
The department may charge a fee of up to fifteen dollars
($15) per person but not to exceed the reasonable
processing costs of the department. The fee shall be paid
by debit or credit card at the time that the electronic
registration is submitted to the department. The fee shall
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be deposited in the Dealers' Record of Sale Special
Account.
The department shall establish procedures for the
purpose of carrying out this subdivision. These procedures
shall be exempt from the Administrative Procedure Act.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
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demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Bullet Button: San Bernardino Shooting
On December 2, 2015, 14 people were killed and 21 were seriously
injured in a mass shooting at the Inland Regional Center in San
Bernardino, California. The perpetrators of this mass shooting
used firearms that were legally purchased in California.
A carveout in a California gun law reportedly allowed for
the legal purchase of two assault-style rifles that were
used in the San Bernardino shooting Wednesday, which killed
14 people and injured 21 others, though the weapons were
later altered illegally.
Many guns in the style of the two AR-15 semiautomatic
rifles, a .223-caliber DPMS Model A15 and a Smith & Wesson
M&P15, are banned under a 1989 California gun law targeting
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assault weapons. The law specifically targets assault
rifles with magazines that are detachable by hand, in order
to prevent users from reloading quickly and inflicting mass
damage.
But if the guns are equipped with a "bullet button," as the
Wall Street Journal reports the San Bernardino shooters'
were, they're perfectly legal to sell. Instead of removing
a magazine by hand, the shooter must press a recessed
button that is only accessible using the tip of a bullet or
another small tool. Technically, this does not classify as
a "detachable magazine," so the guns are allowed. In
practice, the method still allows users to swap out
magazines within seconds. Gunmakers began making bullet
buttons after California passed its harsher gun laws,
according to the Associated Press.
But in this case, the weapons were additionally altered in
a way that violated the California law, the Journal
reports, allowing one to use higher-capacity magazines than
permitted.
The two gunmen fired 65 to 75 rounds during the attack and
then another 76 rounds in a later shootout with police,
according to officials. They had more than 1,400 more
assault rifle rounds on their bodies and in their vehicle.
(This Gun Law May Have Let the San Bernardino Attackers
Shoot Faster, Victor Luckerson, Time Magazine, December 4,
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2015,
http://time.com/4136757/san-bernardino-shooting-gun-law-bull
et-button/.)
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
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. 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. The grandfather clause, however, imposes
significant restrictions on the use of weapons that
are registered pursuant to its provisions.
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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.
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
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procedure by which models may be added to the list.
The 1999 amendments to the AWCA statute add a third
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.
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. (Silveira v.
Lockyer, 312 F.3d 1052, 1057-1059 (9th Cir. Cal. 2002)
(footnotes omitted; citations omitted).)
3. Constitutional Questions
The constitutionality of California's assault weapons ban has
been upheld by both the California Supreme Court (Kasler v.
Lockyer, 23 Cal. 4th 472 (2000)), and the federal Court of
Appeal. (Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) (as
amend. Jan. 27, 2003).) While the California Supreme Court
rejected allegations that the law violated equal protection
guarantees, the separation of powers, and failed to provide
adequate notice of what was prohibited under the law, the Ninth
Circuit Court of Appeal decision in Silveira was based largely
on its interpretation of the Second Amendment right to keep and
bear arms. The Second Amendment to the Constitution states, "A
well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall
not be infringed." (United States Const. Amend. 2.) The
Silveira Court based its ruling on the widely-held
interpretation of the Second Amendment known as the "collective
rights" view, that the right secured by the Second Amendment
relates to firearm ownership only in the context of a "well
regulated militia." (Silveira v. Lockyer, 312 F.3d 1052, 1086
(9th Cir. Cal. 2002).)
The Silveira Court's interpretation of the meaning of the Second
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Amendment has since been squarely rejected by the U.S. Supreme
Court in District of Columbia v. Heller, 554 U.S. 570 (2008) and
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). Whether
the Heller and McDonald cases mean that California's assault
weapons ban violates the Second Amendment, and is therefore
unconstitutional, is a different matter.
In Heller, the Supreme Court rejected the "collective rights"
view of the Second Amendment, and, instead endorsed the
"individual rights" interpretation, that the Second Amendment
protects the right of each citizen to firearm ownership. After
adopting this reading of the Second Amendment, the Supreme Court
held that federal law may not prevent citizens from owning a
handgun in their home. (District of Columbia v. Heller, 554
U.S. 570, 683-684.) In the McDonald case, the Supreme Court
extended this ruling to apply to laws passed by the 50 states.
(McDonald v. City of Chicago, 130 S. Ct. 3020, 3050.)
While the Supreme Court has held it is unconstitutional to
prohibit citizens from owning a handgun in the home for
self-defense, it has also stated that the right secured by the
Second Amendment does not prohibited laws banning certain types
of weapons for civilian use, specifically, "M-16 rifles and the
like." Whether the specific prohibitions contained in
California's existing assault weapons ban, or those proposed in
this bill, are consistent with the right guaranteed under the
Second Amendment was not specifically resolved by the decisions
in Heller and McDonald.
4.How This Bill Would Change the Existing Assault Weapons Ban
As the Court of Appeal explained, in 1999, the Assault Weapons
ban was amended to expand the definition of an assault weapon to
include a definition by the generic characteristics,
specifically, to include a "semiautomatic, centerfire rifle that
has the capacity to accept a detachable magazine" in addition to
one of several specified characteristics, such as a grenade
launcher or flash suppressor. (SB 23 (Perata) Stats. 1999, Ch.
129, § 7 et seq.) SB 23 was enacted in response to the
marketing of so-called "copycat" weapons, firearms that were
substantially similar to weapons on the prohibited list but
differed in some insignificant way, perhaps only the name of the
weapon, thereby defeating the intent of the ban. "SB 23 takes
weapons that are made, then modified, named and re-named off the
market. It fixes the loophole in current law that bans guns by
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name, not by capability, by providing a generic definition of
the weapons." (Committee analysis of SB 23 (Perata), Assembly
Public Safety Committee.)
SB 23's generic definition of an assault weapon was intended to
close the loophole in the law created by its definition of
assault weapons as only those specified by make and model.
Regulations promulgated after the enactment of SB 23 define a
detachable magazine as "any ammunition feeding device that can
be removed readily from the firearm with neither disassembly of
the firearm action nor use of a tool being required. A bullet
or ammunition cartridge is considered a tool." (11 CFR §
5469(a).) In response to this definition, a new feature has
been developed by firearms manufacturers to make semi-automatic
rifles "California compliant," the bullet button.
In 2012, researchers at the nonprofit Violence Policy Center in
Washington, D.C. released a paper describing the phenomenon of
the bullet button and its effect on California's assault weapons
ban:
The "Bullet Button"-Assault Weapon Manufacturers'
Gateway to the California Market
Catalogs and websites from America's leading assault
rifle manufacturers are full of newly designed
"California compliant" assault weapons. Number one
and two assault weapon manufacturers Bushmaster and
DPMS, joined by ArmaLite, Colt, Sig Sauer, Smith &
Wesson, and others are all introducing new rifles
designed to circumvent California's assault weapons
ban and are actively targeting the state in an effort
to lift now-sagging sales of this class of weapon.
They are accomplishing this with the addition of a
minor design change to their military-style weapons
made possible by a definitional loophole: the "bullet
button." [Please see the Appendix beginning on page
six for 2012 catalog copy featuring "California
compliant" assault rifles utilizing a "bullet button"
from leading assault weapon manufacturers.]
California law bans semiautomatic rifles with the
capacity to accept a detachable ammunition magazine
and any one of six enumerated additional assault
weapon characteristics (e.g., folding stock, flash
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suppressor, pistol grip, or other military-style
features).
High-capacity detachable ammunition magazines allow
shooters to expel large amounts of ammunition quickly
and have no sporting purpose.1 However, in
California an ammunition magazine is not viewed as
detachable if a "tool" is required to remove it from
the weapon. The "bullet button" is a release button
for the ammunition magazine that can be activated with
the tip of a bullet. With the tip of the bullet
replacing the use of a finger in activating the
release, the button can be pushed and the detachable
ammunition magazine removed and replaced in seconds.
Compared to the release process for a standard
detachable ammunition magazine it is a distinction
without a difference.
1 Department of the Treasury Study on the Sporting
Suitability of Modified Semiautomatic Assault Rifles,
April 1998. (Bullet Buttons, The Gun Industry's
Attack on California's Assault Weapons Ban, Violence
Policy Center, Washington D.C., May 2012. )
This bill would amend the definition of assault weapon to a
firearm that has one of several specified features and does not
have a "fixed magazine," rather than a firearm that has one of
those features and "has the capacity to accept a detachable
magazine." It would also define, "fixed magazine" as "an
ammunition feeding device contained in, or permanently attached
to, a firearm in such a manner that the device cannot be removed
without disassembly of the firearm action." So, a semiautomatic
rifle could have a detachable magazine, as long as it does not
also have any features or it could have the features as long as
it had a fixed magazine. The purpose of this change is to
clarify that equipping a weapon with a "bullet button" magazine
release does not take that weapon outside the definition of an
assault weapon.
This bill would also require any person who, from January 1,
2001, to December 31, 2016, lawfully possessed an assault weapon
that does not have a fixed magazine, as defined, including those
weapons with an ammunition feeding device that can be removed
readily from the firearm with the use of a tool, in other words,
those weapons with a "bullet button" magazine release, to
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register the firearm before January 1, 2018, with the department
pursuant to those procedures that the department may establish.
Because the bill would clarify that these are assault weapons,
this provision is consistent with the existing law that requires
assault weapons, lawfully possessed, to be registered with DOJ.
5. Related Legislation
This committee heard and passed (5-2) Senate Bill 880 (Hall) on
April 19, 2016, which is virtually identical to this bill.
6. Technical Amendments
Section 2 should be amended to read:
Notwithstanding the meaning of "assault weapon" under
Section 30515, as amended by the act that added this
section, Section 30605 does not apply to the possession of
an assault weapon by a person who has possessed the assault
weapon prior to January 1, 2017, if all of the following
are applicable:
(a) Prior to January 1, 2017, the person was would have
been eligible to register that assault weapon pursuant to
subdivision (c) (b) of Section 30900.
(b) The person lawfully possessed that assault weapon prior
to January 1, 2017.
(c) The person registers the assault weapon by January 1,
2018, in accordance with subdivision (b) of Section 30900.
- END -
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