BILL ANALYSIS Ó
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.
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<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.
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