BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1446       Hearing Date:    April 19, 2016    
          
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          |Author:    |Hancock                                              |
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          |Version:   |March 28, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JRD                                                  |
          |           |                                                     |
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                        Subject:  Firearms: Magazine Capacity



          HISTORY

          Source:   Author

          Prior Legislation:SB 396 (Hancock) - failed on the Assembly  
          Floor, subsequently 
                         amended, 2013  
                         SB 776 (Hancock) - died in this Committee, 2009 
                         SB 23 (Perata) - Chap. 129, Statutes of 1999 
                         Roberti-Roos Assault Weapons Control Act of 1989  
                         (Chapter 19,  3, Stats. of 1989.)

          Support:  American Academy of Pediatrics; California Academy of  
                    Family Physicians; California Chapter of the American  
                    College of Emergency Physicians; California Chapters  
                    of the Brady Campaign to Prevent Gun Violence;  
                    California Church IMPACT; City of Long Beach; Courage  
                    Campaign; City of Oakland; Mayor of the City of Los  
                    Angeles; City of Santa Monica; David Alvarez,  
                    Councilmember, City of San Diego; Cleveland School  
                    Remembers; Coalition Against Gun Violence; Law Center  
                    to Prevent Gun Violence; Physicians for Social  
                    Responsibility; Rabbis Against Gun Violence; Youth  
                    ALIVE!; Violence Prevention Coalition of Greater Los  
                    Angeles








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          Opposition:The California Sportsman's Lobby; Firearms Policy  
                    Coalition; Gun Owners of California; Outdoor  
                    Sportsman's Coalition of California; Safari Club  
                    International Foundation; California State Sheriffs'  
                    Association; National Rifle Association

            
          PURPOSE

          The purpose of this bill is to, commencing July 1, 2017,  
          prohibit the possession of large-capacity magazines, as  
          specified.  
          
          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.

          Existing 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.)

          Existing law provides that, except as specified, commencing  
          January 1, 2000, any person in this state who manufactures or  
          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).  "Manufacturing" includes both fabricating a magazine  
          and assembling a magazine from a combination of parts,  









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          including, but not limited to, the body, spring, follower, and  
          floor plate or end plate, to be a fully functioning  
          large-capacity magazine. (Penal Code  32310.) 


          Existing law provides that, commencing January 1, 2014, any  
          person in this state who knowingly manufactures or causes to be  
          manufactured, imports into the state, keeps for sale, or offers  
          or exposes for sale, or who gives, lends, buys, or receives any  
          large capacity magazine conversion kit is punishable by a fine  
          of not more than one thousand dollars ($1,000) or imprisonment  
          in a county jail not to exceed six months, or by both that fine  
          and imprisonment. This section does not apply to a fully  
          assembled large-capacity magazine.  A "large capacity magazine  
          conversion kit" is a device or combination of parts of a fully  
          functioning large-capacity magazine, including, but not limited  
          to, the body, spring, follower, and floor plate or end plate,  
          capable of converting an ammunition feeding device into a  
          large-capacity magazine.  (Penal Code  32311.)

          Existing 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.)

          Existing 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 provides that, except as specified, commencing July 1,  
          2017, any person in this state who possesses any large-capacity  
          magazine, regardless of the date the magazine was acquired, is  
          guilty of an infraction punishable by a fine not to exceed one  
          hundred dollars ($100) upon the first offense, by a fine not to  
          exceed five hundred dollars ($500) upon the third or subsequent  
          offense.

          This bill requires that a person who, prior to July 1, 2017,  
          legally possesses a large-capacity magazine dispose of that  
          magazine by any of the following means:










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            Remove the large-capacity magazine from the state.

            Prior to July 1, 2017, sell the large-capacity magazine to a  
              licensed firearms dealer.

            Destroy the large-capacity magazine.

            Surrender the large-capacity magazine to a law enforcement  
              agency for destruction.

          This bill exempts the following:  

                 An individual who honorably retired from being a sworn  
               peace officer, as specified or an individual who honorably  
               retired from being a sworn federal law enforcement officer,  
               who was authorized to carry a firearm in the course of  
               scope of that officer's duties, as specified. 

                 A licensed gunsmith for the purpose of maintenance,  
               repair or modification of the large-capacity magazine, as  
               specified. 

                 Any federal, state or local historical society, museum  
               or institutional society, museum or institutional  
               collection which is open to the public, provided that the  
               large-capacity magazine is property housed, secured from  
               unauthorized handling and unloaded.

                 Any person who finds the large-capacity magazine, if the  
               person is not prohibited from possessing firearms or  
               ammunition pursuant to federal or state law, and the person  
               possessed the large-capacity magazine no longer than  
               necessary to deliver or transport the same to a law  
               enforcement agency for that agency's disposition according  
               to the law. 

                 A forensic laboratory or any authorized agent or  
               employee thereof in the course and scope of his or her  
               authorized activities. 

                 The receipt or disposition of a large-capacity magazine  
               by a trustee of a trust, or an executor or administrator of  
               an estate, including an estate that is subject to probate,  
               that includes a large-capacity magazine. 









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                 Any person lawfully in possession of a firearm that the  
               person obtained prior to January 1, 2000 if no magazine  
               that holds ten (10) or less rounds of ammunition is  
               compatible with that firearm and that person possesses the  
               large-capacity magazine solely for use with that firearm.  

          This bill makes a number of conforming changes to the Penal  
          Code. 

                    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.   









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          (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  
          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.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  
               ammunition magazines was strictly prohibited.   









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               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.

          2.High Capacity Magazines in Both Long Guns and Handguns


          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.)  This bill would impose criminal penalties for  
          possession of high capacity magazines in California.









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          According to a report released by the Violence Policy Center in  
          December of 2015, 


               Since 1980, there have been at least 50 mass shootings (3  
               or more fatalities) where the shooter used high-capacity  
               ammunition magazines. A total of 436 people were killed in  
               these shootings and 425 were wounded. This number is likely  
               a significant undercount of actual incidents since there is  
               no consistent collection or reporting of this data. Even in  
               many high-profile shootings information on magazine  
               capacity is not released or reported.

          (http://www.vpc.org/fact_sht/VPCshootinglist.pdf.) 


          There were at least three mass shootings involving  
          large-capacity magazines in 2015.  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 four  
          high capacity magazines.  In July of 2015, six people were  
          killed (including the shooter) and two were wounded in a  
          shooting at the Navy Operational Support Center and Marine Corps  
          Reserve Center, in Chattanooga, Tennessee. The perpetrator used  
          multiple 30-round magazines. On June 17, 2015, a shooting at the  
          Emanuel African Methodist Episcopal Church, in Charleston, South  
          Carolina, left nine people dead.  The perpetrator used 13-round  
          magazines. (Id.)

             3.   California:  Local Ordinances Banning the Possession of  
               Large-Capacity Magazines
          
          San Francisco, Sunnyvale and, most recently, Los Angeles have  
          enacted ordinances that prohibit the possession of  
          large-capacity magazines.  These ordinances are consistent with  
          the provisions of this legislation.<1> Each of these ordinances  
          has been challenged and litigation is on-going.  


          ---------------------------
          <1> This legislation differs from the ordinances insofar as it  
          makes possession of a large-capacity magazine an infraction,  
          rather than a misdemeanor. 








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          San Francisco's ordinance was challenged on Second Amendment  
          grounds.  San Francisco Veteran Police Officers Association v.  
          the City and County of San Francisco, 18 F.Supp. 3d 997,  
          999-1002 (ND Cal. 2014.)  The district court denied the  
          plaintiff's motion for a preliminary injunction:

               Here, the balance of the equities lies in favor of San  
               Francisco. If a preliminary injunction is denied, then  
               plaintiffs will have to resort to using magazines that  
               can accept ten rounds or fewer. Moreover, San  
               Francisco will return plaintiffs' surrendered  
               magazines back to them if the ordinance is ultimately  
               found unconstitutional. These considerations are  
               vastly outweighed by the demonstrated need to remove  
               magazines from circulation that are capable of  
               accepting more than ten rounds. Such magazines allow  
               mass killers to shoot more victims before reloading,  
               multiplying the number of deaths (Zimring Decl.   
               16-19). If a mass murderer has to reload because he or  
               she does not have a magazine with the capacity to  
               accept more than ten rounds, there is a better chance  
               that someone present will subdue him or her sooner  
               (Van Aken Decl., Exhs. 18, 22-23).

               Although there will be some occasions when a  
               law-abiding citizen needs more than ten rounds to  
               defend himself or his family, the record shows that  
               such occasions are rare. This will be even rarer in a  
               dense urban area like San Francisco where police will  
               likely be alerted at the outset of gunfire and come to  
               the aid of the victim. Nonetheless, in those rare  
               cases, to deprive the citizen of more than ten shots  
               may lead to his or her own death. Let this point be  
               conceded. In assessing the balance of equities, those  
               rare occasions must be weighed against the more  
               frequent and documented occasions when a mass murderer  
               with a gun holding eleven or more rounds empties the  
               magazine and slaughters innocents. One critical  
               difference is that whereas the civilian defender  
               rarely will exhaust the up-to-ten magazine, the mass  
               murderer has every intention of firing every round  
               possible and will exhaust the largest magazine  
               available to him. On balance, more innocent lives will  
               be saved by limiting the capacity of magazines than by  









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               allowing the previous regime of no limitation to  
               continue. 

               (Id. at 1005.)

          Similarly, Sunnyvale's ordinance was challenged on Second  
          Amendment grounds.  The district could denied the plaintiff's  
          preliminary injunction motion, holding that the plaintiffs were  
          unlikely to succeed on the merits given Sunnyvale's "compelling  
          government interest of public safety."  (Fyock v. the City of  
          Sunnyvale, 25 F.Supp.3d 1267, 1281 (ND Cal. 2014.).)   The court  
          stated: 

               [P]revention of gun violence lies at the heart of the  
               Sunnyvale ordinance. See Spitaleri Decl. Exh. A at 1  
               ("the People of Sunnyvale find that the violence and  
               harm caused by and resulting from both the intentional  
               and accidental misuse of guns constitutes a clear and  
               present danger to the populace, and find that sensible  
               gun safety measures provide some relief from that  
               danger and are of benefit to the entire community").   
               Sunnyvale submits substantial evidence that a ban on  
               the possession of magazines having a capacity to  
               accept more than ten rounds may reduce the threat of  
               gun violence.  For example, Professor Koper opines in  
               his declaration that the Sunnyvale law "has the  
               potential to (1) reduce the number of crimes committed  
               with [large capacity magazines]; (2) reduce the number  
               of shots fired in gun crimes; (3) reduce the number of  
               gunshot victims in such crimes; (4) reduce the number  
               of wounds per gunshot victim; (5) reduce the lethality  
               of gunshot injuries when they do occur; and (6) reduce  
               the substantial societal costs that flow from  
               shootings." Koper Decl.  57. Professor Koper, relying  
               on a study assessing the 1994 federal assault weapons  
               ban, also states that magazines having a capacity to  
               accept more than ten rounds "are particularly  
               dangerous because they facilitate the rapid firing of  
               high numbers of rounds. This increased firing capacity  
               thereby potentially increases injuries and deaths from  
               gun violence." Id.  7. Studies also show that the  
               banned magazines are used in 31% to 41% of gun murders  
               of police. Id.  18.










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               Plaintiffs respond that Sunnyvale's ordinance will  
               have little effect because criminal users of firearms  
               will not comply with the law. Kleck Decl.  28-29.  
               However, Sunnyvale provides data showing that, among  
               69 mass shootings, 115 of 153-or 75%-of the guns used  
               were obtained legally. Allen Decl.  18. Professor  
               Koper refutes this argument with evidence that  
               prohibitions on magazines having a capacity to accept  
               more than ten rounds reduce the availability of such  
               magazines to criminals. Id.  47-52. In that sense,  
               even if the Sunnyvale law has minimal compliance among  
               potential criminal firearm users and is difficult to  
                                                                                     enforce by police, it may still reduce gun crime by  
               restricting the banned magazines' availability.


               Plaintiffs also argue that Sunnyvale's ban will have a  
               negative impact on public safety because it imposes  
               magazine size limits on those acting in self-defense.  
               This evidence is relatively unpersuasive for three  
               reasons. First, studies of the NRA Institute for  
               Legislative Action database demonstrates that  
               individuals acting in self-defense fire 2.1-2.2 shots  
               on average. Allen Decl.  6-9. It is rare that anyone  
               will need to fire more than ten rounds in  
               self-defense. Id. Second, although Plaintiffs provide  
               several anecdotes of instances when having a magazine  
               with the capacity to accept more than ten rounds was  
               necessary for self-defense, Plaintiffs do not supply  
               any quantitative data showing that banning such  
               magazines would negatively impact public safety. See  
               Ayoob Decl.  5-16. The fact that Plaintiffs only  
               present anecdotal examples rather than quantitative  
               studies suggests that in only very rare circumstances  
               is it necessary to possess a larger magazine in  
               self-defense.


               Finally, Plaintiffs' evidence does little to show that  
               the Sunnyvale ordinance is not substantially related  
               to the achievement of an important government  
               interest. Means-end scrutiny is meant, inter alia, to  
               subject laws to additional examination when there is a  









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               fear that they may trample on individual rights. See  
               Heller, 554 U.S. at 634-35. Here, Plaintiffs are  
               concerned that the Sunnyvale law infringes their  
               Second Amendment rights, and Sunnyvale argues that its  
               citizens voted for the law out of concern for public  
               safety. Whether or not the law is ultimately effective  
               is yet to be seen. But for now, Sunnyvale has  
               submitted pages of credible evidence, from study data  
               to expert testimony to the opinions of Sunnyvale  
               public officials, indicating that the Sunnyvale  
               ordinance is substantially related to the compelling  
               government interest in public safety. While Plaintiffs  
               present evidence that the law will not be successful,  
               the court cannot properly resolve that question. The  
               court is persuaded that Sunnyvale residents enacted  
               Measure C out of a genuine concern for public safety,  
               and that the law, with its many exceptions and narrow  
               focus on just those magazines having a capacity to  
               accept more than ten rounds, is reasonably tailored to  
               the asserted objective of protecting the public from  
               gun violence.  (Id. at 1280-81.)



          The Court goes on to state: 

               The court concludes that Plaintiffs are not likely to  
               succeed on the merits. Although Plaintiffs demonstrate  
               that the Sunnyvale ordinance imposes some burden on  
               Second Amendment rights, that burden is relatively  
               light. The Sunnyvale law passes intermediate scrutiny,  
               as the court-without making a determination as to the  
               law's likely efficacy-credits Sunnyvale' s voluminous  
               evidence that the ordinance is substantially tailored  
               to the compelling government interest of public  
               safety. This determination is based on the record as  
               it stands at this early preliminary injunction stage  
               of the case. At this time, the court only holds that,  
               upon this surely incomplete record, Plaintiffs have  
               failed to prove that they are likely to succeed on the  
               merits.  (Id. at 1281.)


          Plaintiff's appealed this ruling to the Ninth Circuit Court of  









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          Appeals.   The Ninth Circuit affirmed the ruling and upheld the  
          Sunnyvale ordinance.  (Fyock v. City of Sunnyvale, 799 F. 3d  
          991, 999-1001.)

          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  
          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).)


          Specifically in the context of the regulation of firearms,  
          courts have held that prohibiting possession of dangerous  









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          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 (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.  











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


          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  
          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).)


          5.  Exception for Retired Peace Officers


          The assault weapons ban in California (AWCA) allowed law  
          enforcement agencies to sell or transfer assault weapons to a  
          sworn peace officer upon that officer's retirement.   This  
          provision was challenged in Silveira v. Lockyer, 312 F.3d 1052  
          (9th Cir. 2002).   The Ninth Circuit held: 



               We thus can discern no legitimate state interest in  
               permitting retired peace officers to possess and use for  
               their personal pleasure military-style weapons.  Rather,  









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               the retired officers exception arbitrarily and unreasonably  
               affords a privilege to one group of individuals that is  
               denied to others, including plaintiffs.


               In sum, not only is the retired officers' exception  
               contrary to the legislative goals of the AWCA, it is wholly  
               unconnected to any legitimate state interest. A statutory  
               exemption that bears no logical relationship to a valid  
               state interest fails constitutional scrutiny. The 1999 AWCA  
               amendments include, however, a severability provision  
               providing that should any portion of the statute be found  
               invalid, the balance of the provisions shall remain in  
               force. Accordingly, because the retired officers' exception  
               is an arbitrary classification in violation of the  
               Fourteenth Amendment, we sever that provision,   
               12280(h)-(i), from the AWCA.


          (Id. at 1091-92.) 


          Like the AWCA, this legislation exempts retired sworn peace  
          officers from the ban on the possession of large-capacity  
          magazines.   


          DOES THIS LEGISLATION RAISE FOURTEENTH AMENDMENT CONCERNS?


          SHOULD THIS LEGISLATION CONTAIN A SEVERABILITY PROVISION SIMILAR  
          TO THE AMENDMENTS TO THE AWCA? 


          6.  Argument in Support


          According to the California Chapters of the Brady Campaign to  
          Prevent Gun Violence: 

               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 1446 is a narrow bill that  









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               would add a prohibition on possessing large capacity  
               magazines, as defined in the bill, regardless of the  
               date the magazine was acquired.  Current and retired  
               police officers would be exempt from the prohibition.

               Mass shootings involving large capacity magazines have  
               demonstrated the tragic carnage caused by these  
               magazines.  The shooters in the recent San Bernardino  
               tragedy as well as the gunmen in Santa Monica (2013),  
               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, until  
               2014, magazine conversion kits were being sold in  
               California.  These kits, containing parts to repair  
               large capacity magazines, were legally purchased and  
               later assembled into new large capacity magazines.   
               Since the possession of large capacity magazines is  
               permissible, this practice, which clearly evaded the  
               intent of the law, was able to increase the  
               proliferation of large capacity magazines in the  
               state.  SB 1446 would enable the enforcement of  
               existing law regarding large capacity magazines.    










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               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 their  
               possession.  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 1446 and  
               are in full support.     

          7.  Argument in Opposition

          The Firearms Policy Coalition states in opposition to this bill:  


               Most firearms sold in America today, and certainly the  
               highest by volume sold, such as AR-15s and  
               semi-automatic handguns, come standard from the  
               factory with magazines that hold more than ten rounds.  
               Law enforcement agencies and peace officers purchase  
               those same firearms with those same magazines because  
               they are standard kit -- and, most importantly,  
               because no one wants to be under-armed in a  
               self-defense situation. 

               Furthermore, many magazines are altered and made  
               "California Legal" at some point of manufacture. Given  
               this, SB 1446 would immediately make most full size  
               handguns inoperable as it bans any magazine that has  
               been permanently altered to only accept 10 rounds or  
               less, creating a taking of constitutionally protected  
               property. 

               Many people have purchased permanently altered  
               magazines to be compliant with California's ever  
               growing body of law surrounding firearms and have  
               based their consumer choices on this being the law of  
               the land. Now the goal posts would appear to be moving  
               yet again. 

               SB 1446 is simply an unconstitutional taking of  
               personal property and an express infringement on the  
               fundamental civil rights of all Californians. The  









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               measure creates significant criminal liability for  
               items currently -- and lawfully -- possessed by  
               hundreds of thousands, if not millions, of  
               Californians. Depriving people of  
               Constitutionally-protected civil rights by  
               criminalizing the possession of items commonplace to  
               gun owners is poor policy and invites litigation. 

               Even more disturbing, SB 1446 invites a deepening  
               wedge between the police and non-police as it protects  
               "honorably retired peace officers" from the  
               dispossession of their personal property. This wanton  
               violation of the 14th amendment to the United States  
               Constitution creates a caste system of civilians-  
               those who used to be police officers and those who  
               weren't.


               According to the federal civil rights case Silveira v.  
               Lockyer (9th Cir. 2002), 312 F.3d 1052, retired peace  
               officers are not allowed to maintain the "assault  
               weapons" they acquired through exemptions they held as  
               active duty peace officers. When they became non-peace  
               officers through separation from their employer, they  
               became civilians. 

               The State will need to track all of the magazines  
               purchased by peace officers, should they become  
               former, retired or " honorably retired" to ensure the  
               state's expressed interest in controlling these  
               firearms parts is met and can confiscate magazines  
               from peace officers who retire early, resign, are  
               fired or are otherwise not deemed " honorably  
               retired". 

               With no appropriation for outreach in SB 1446, and the  
               untold millions of magazines in circulation, we fear  
               widespread, inadvertent non-compliance and a revolving  
               door of lives upended by the deluge of criminal  
               prosecutions in every courthouse in the state as  
               everyday people become overnight criminals. An  
               appropriation today may save millions of dollars later  
               as the inventory of these parts is significant and the  
               outreach is non-existent, creating a potential wave of  









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               prosecutions of otherwise law abiding person whose  
               only "crime" was possession of ammunition feeding  
               devices (including those of 10 rounds or less) that  
               were lawfully acquired. 

               Without pre-emption, firearms parts owners may be  
               subject to a withering hail of statutes and ordinances  
               aimed at them with different penalties depending on  
               which jurisdiction prosecutes first. Ironically, some  
               local laws are more severe than the proposed state  
               statute. 
                                          


                                      -- END -