BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1446|
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THIRD READING
Bill No: SB 1446
Author: Hancock (D), et al.
Amended: 3/28/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 4-3, 4/19/16
AYES: Hancock, Leno, Liu, Monning
NOES: Anderson, Glazer, Stone
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SUBJECT: Firearms: magazine capacity
SOURCE: Author
DIGEST: This bill, commencing July 1, 2017, prohibits the
possession of large-capacity magazines, as specified.
ANALYSIS:
Existing law:
1) Banned the possession of "assault weapons" and "large
capacity ammunition feeding devices," defined as a magazine
capable of holding more than 10 rounds of ammunition,
manufactured after that date. That 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, expired in 2004 and has not been
reenacted.
2) Defines a "large-capacity magazine" as any ammunition
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feeding device with the capacity to accept more than 10
rounds, but shall not be construed to include any of the
following:
a) A feeding device that has been permanently altered so
that it cannot accommodate more than 10 rounds.
b) A .22 caliber tube ammunition feeding device.
c) A tubular magazine that is contained in a lever-action
firearm. (Penal Code § 16740.)
3) 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, 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.)
4) 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 $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 §
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32311.)
5) 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.)
6) 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:
1)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
$100 upon the first offense, by a fine not to exceed $500 upon
the third or subsequent offense.
2) 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:
a) Remove the large-capacity magazine from the state.
b) Prior to July 1, 2017, sell the large-capacity
magazine to a licensed firearms dealer.
c) Destroy the large-capacity magazine.
d) Surrender the large-capacity magazine to a law
enforcement agency for destruction.
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3) Exempts the following:
a) 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.
b) A licensed gunsmith for the purpose of maintenance,
repair or modification of the large-capacity magazine, as
specified.
c) 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.
d) 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.
e) A forensic laboratory or any authorized agent or
employee thereof in the course and scope of his or her
authorized activities.
f) 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.
g) Any person lawfully in possession of a firearm that
the person obtained prior to January 1, 2000 if no
magazine that holds 10 or less rounds of ammunition is
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compatible with that firearm and that person possesses the
large-capacity magazine solely for use with that firearm.
4) Makes a number of conforming changes to the Penal Code.
Background
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 imposes criminal penalties for
possession of high capacity magazines in California.
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,
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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.)
Comments
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 Fifth
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
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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
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.
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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.
(Fesjian v. Jefferson, 399 A.2d 861, 865-866 (1979).)
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, 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
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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 bill exempts retired sworn peace officers
from the ban on the possession of large-capacity magazines.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
SUPPORT: (Verified5/17/16)
American Academy of Pediatrics, California
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
City of Oakland
City of Santa Monica
Cleveland School Remembers
Coalition Against Gun Violence
Courage Campaign
David Alvarez, Councilmember, City of San Diego
Eric Garcetti, Mayor of the City of Los Angeles
Law Center to Prevent Gun Violence
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Physicians for Social Responsibility
Rabbis Against Gun Violence
Violence Prevention Coalition of Greater Los Angeles
Youth ALIVE!
OPPOSITION: (Verified5/17/16)
California State Sheriffs' Association
Firearms Policy Coalition
Gun Owners of California
National Rifle Association
Outdoor Sportsman's Coalition of California
Safari Club International Foundation
The California Sportsman's Lobby
ARGUMENTS 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
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
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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.
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.
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ARGUMENTS 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
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
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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
prosecutions of otherwise law abiding person whose only
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"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.
Prepared by:Jessica Devencenzi / PUB. S. /
5/19/16 10:37:24
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