BILL ANALYSIS                                                                                                                                                                                                    




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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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