BILL ANALYSIS Ó
SB 1446
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Date of Hearing: June 14, 2016
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1446 (Hancock) - As Amended March 28, 2016
SUMMARY: Prohibits the possession of large-capacity magazines,
with specified exceptions. Specifically, this bill:
1)Makes it an infraction, commencing July 1, 2017, for any
person who possesses a large-capacity magazine punishable as
follows:
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a) A fine not to exceed $100 for the first offense;
b) A fine not to exceed $250 for the second offense; and,
c) A fine not to exceed $500 for the third or subsequent
offense.
2)Requires a person who, prior to July 1, 2017, legally
possesses a large-capacity magazine to 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; or,
d) Surrender the large-capacity magazine to a law
enforcement agency for destruction.
3)Specifies the following exceptions:
a) An individual who honorably retired from being a sworn
peace officer, or an individual who honorably retired from
being a sworn federal law enforcement officer, who was
authorized to carry a firearm in the course and scope of
that officer's duties;
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b) A federal, state, or local historical society, museum or
institutional society, or museum or institutional
collection, that is open to the public, provided that the
large-capacity magazine is unloaded, properly housed within
secured premises, and secured from unauthorized handling;
c) A person who finds a large-capacity magazine, if the
person is not prohibited from possessing firearms or
ammunition, and possessed it no longer than necessary to
deliver or transport it to the nearest law enforcement
agency;
d) A forensic laboratory, or an authorized agent or
employee thereof in the course and scope of his or her
authorized activities;
e) 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; or,
f) A person lawfully in possession of a firearm that the
person obtained prior to January 1, 2000, if no magazine
that holds 10 or fewer rounds of ammunition is compatible
with that firearm and the person possesses the
large-capacity magazine solely for use with that firearm.
EXISTING LAW:
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1)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) 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; or,
c) A tubular magazine that is contained in a lever-action
firearm. (Pen. Code, § 16740.)
2)States, except as provided, commencing January 1, 2000, any
person in California 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 the
county jail for either a misdemeanor or a felony. (Pen. Code,
§ 32310.)
3)Provides the following exceptions to the prohibition against
manufacturing or causing to be manufactured, importing into
the state, keeping for sale, or offering or exposing for sale,
or giving, or lending, any large-capacity magazine:
a) Government agency charged with law enforcement (Pen.
Code, § 32400);
b) Sworn peace officer who is authorized to carry a firearm
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in the course and scope of that officer's duties (Pen.
Code, § 32405);
c) Sale or purchase by a licensed person (Pen. Code, §
32410);
d) Loan under specified circumstances (Pen. Code, § 32415);
e) Importation by a person in legal possession prior to
January 1, 2000 (Pen. Code, § 32420);
f) Delivery to a gun smith (Pen. Code, § 32425);
g) Person with permit to sell to an out-of-state client
(Pen. Code, § 32430);
h) Entity that operates armored vehicle business (Pen.
Code, § 32435);
i) Manufacture for government agency or military (Pen.
Code, § 32440);
j) Use as a prop (Pen. Code, § 32445); or,
aa) Holder of a special weapons permit for specified
purposes (Pen. Code, § 32450).
4)Declares large-capacity magazines to be a nuisance. (Pen.
Code, § 32390.)
5)Provides that the Attorney General, district attorney, or city
attorney may bring an action to enjoin the manufacture of,
importation of, keeping for sale of, offering or exposing for
sale, giving, lending, or possession of, any item that
constitutes a nuisance under any of the specified code
sections, including the code section relating to
large-capacity magazines. (Pen. Code, § 18010, subd. (a).)
6)States that the weapons listed in the specified code sections
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constituting a nuisance shall be subject to confiscation and
summary destruction whenever found within California. (Pen.
Code, § 18010, subd. (b).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: 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.
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.
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"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)Background: Since January 1, 2000, California has banned the
importation, manufacture and sale of high capacity magazines.
(Pen. Code, §§ 32310 and 32390.) Possession was not banned
but because all other means of obtaining large-capacity
magazines has been prohibited since January 1, 2000,
large-capacity magazines should have phased out naturally over
time, however there continues to be a proliferation of these
magazines 16 years after the law went into effect.
3)Federal Assault Weapons Ban: The federal assault weapons law
(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 10 rounds of ammunition, manufactured after
that date. The federal assault ban contained a grandfather
clause which stated that the ban shall not apply to the
possession of a large-capacity ammunition feeding device
otherwise lawfully possessed within the United States on or
before the date of the enactment of the law. The federal
assault weapons law expired in 2004 and has not been
reenacted.
4)Existing Law on Large-Capacity Magazines: Existing law
prohibits the manufacture, importation, keeping for sale,
offering or exposing for sale, giving or lending any
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ammunition magazine with a capacity greater than 10 rounds.
(Pen. Code, § 32310.) The criminal penalty for violating
these prohibitions is an alternate misdemeanor/felony.
Possession is not expressly prohibited and continued
possession of a large-capacity magazine if owned prior to
January 1, 2010 is allowed. (See
< https://oag.ca.gov/firearms/pubfaqs#9 > [as of June 8, 2016].)
Exceptions are also allowed for law enforcement agencies,
permit holders, peace officers, and other specified persons or
entities from the purchase prohibitions on large-capacity
magazines. (Penal Code §§ 32315, 32400-32450.)
This bill expands the large-capacity magazine prohibitions to
include possession of large-capacity magazines, with specified
exceptions, and requires a person who is in lawful possession
of the magazine prior to the bill's enactment to dispose of
it. A violation of these provisions would be punishable as an
infraction with graduated fines.
5)Second Amendment: The Second Amendment to the federal
Constitution provides, "A well regulated militia being
necessary to the security of a free state, the right of the
people to keep and bear arms shall not be infringed." In
District of Columbia v. Heller (2008) 554 U.S. 570, the United
States Supreme Court held that the Second Amendment protects
an individual's right to possess and carry weapons in case of
confrontation. The Court struck down a law banning possession
of handguns in the home.
Subsequently, in McDonald v. City of Chicago (2010) 561 U.S.
3025, 130 S.Ct. 3020, the Court held that Second Amendment
rights are applicable to the states. The majority found the
individual right to bear arms, particularly for self-defense
was fundamental.
However, the Second Amendment does not afford an unlimited
right to own a weapon. "It is not a right to keep and carry
any weapon whatsoever in any manner whatsoever and for
whatever purpose. . . ." (Heller, supra, 554 U.S. at p. 646.)
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As the Court explained in Heller, the right "to keep and
carry arms" is limited to weapons "in common use." (Id. at p.
627.) Moreover, in Heller, the United States Supreme Court
did not strike down neutral licensing and registration as a
condition of possession and the Court also enumerated examples
of presumptively valid government regulation of firearms.
While it can be argued that a ban on large-capacity magazines
could infringe on a person's right to bear arms as protected
by the Second Amendment, this argument would likely be
unsuccessful because the ban, unlike the one challenged in
Heller, does not ban handgun possession outright. Rather, a
ban on large-capacity magazines is analogous to regulating the
type of firearm that can be possessed, which under Heller, is
constitutionally permissible.
6)Local Bans on Large-Capacity Magazines: San Francisco,
Sunnyvale, Los Angeles and Oakland have enacted laws banning
the possession of large-capacity magazines. These local laws
make it a misdemeanor to possess large-capacity magazines
within those jurisdictions. This bill would create a
statewide ban but make a violation of its provisions an
infraction, with graduated fines for repeat offenders. This
bill also provides exceptions that are not found in the local
laws. Should this bill become law, would the local bans that
conflict with the new state law be preempted?
Generally, preemption occurs in two ways: through express
preemption and implied preemption. Express preemption occurs
when a state provides explicitly, in the language of a statute
or constitutional provision, that it intends to remove a lower
government's regulatory authority. Absent an express
statement, courts may infer an intent to take over a field of
regulation, even though there is no express legislative
statement to that effect. This is referred to as implied
preemption. In general, courts may find that a local law is
preempted, and thereby void, if it conflicts directly with
state law by requiring what the state law prohibits, or
prohibiting what the state law requires. (Sherwin-Williams Co.
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v. City of Los Angeles (1993) 4 Cal. 4th 893, 897.) In
addition, when a comprehensive scheme of state regulation
exists on a particular subject matter, many state courts find
that the state legislature thereby indicated an implied intent
to assert exclusive authority over that subject matter.
The San Francisco and Sunnyvale laws have been upheld at the
district court level. (San Francisco Veteran Police Officers
Association v. City and County of San Francisco, 18 F.Supp. 3d
997, 999-1002 (ND Cal. 2014); Fyock v. City of Sunnyvale, 25
F.Supp.3d 1267, 1281 (ND Cal. 2014).) Upon appeal Sunnyvale's
ban has been upheld. (Fyock v. City of Sunnyvale, (9th Cir.
2015) 779 F.3d 991, 999-1001.) The appeal in the San
Francisco case is pending. However, those challenges were
based on the Second Amendment, not preemption, because
currently state law does not prohibit possession of large
capacity magazines. This bill does not provide an express
preemption and it appears that the Legislature only intended
to preempt certain areas of firearms control, not the entire
field. (Suter v. City of Lafayette (1st Cir. 1997) 57 Cal.
App. 4th 1109, 1119.) So whether these local laws are
preempted will depend upon whether their provisions are in
direct conflict with the provisions in this bill.
7)Equal Protection Concerns: This bill contains several
exceptions including possession of a large-capacity magazine
by a retired peace officer. This type of exception has
previously been found to violate the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution.
In Silveira v. Lockyer (9th Cir. 2002), 312 F.3d 1052,
plaintiffs challenged the constitutionality of the California
Assault Weapons Control Act (AWCA). The AWCA banned the
possession of assault weapons by individuals but contained a
grandfather clause allowing the retention of previously owned
assault weapons by the owners, provided that the owners
register them with the state. The act provided an exception
for off-duty officers and retired officers. Plaintiffs
claimed that this exception provided a benefit to off-duty and
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retired officers that are unavailable to the plaintiffs, and
that there is no rational reason that law-abiding citizens
should be treated differently than off-duty and retired peace
officers.
In evaluating the plaintiffs' Equal Protection claim, the Ninth
Circuit Court of Appeal used the rational basis test as its
standard of review, rather than strict scrutiny, because the
court determined that the right to own assault weapons is not
a fundamental right, nor are the plaintiffs part of a
protected class. (Silveira, supra, 315 F.3d at 1087-1088.)
The standard requires the statute to be upheld "if the
classification drawn by the statute is rationally related to a
legitimate state interest." (Id. at 1088.)
As to the off-duty officer provision, the court held that there
is a rational basis for the classification because "off-duty
officers may find themselves compelled to perform law
enforcement functions in various circumstances, and that in
addition it may be necessary that they have their weapons
readily available. Thus, the provision is designed to further
the very objective of preserving the public safety that
underlies the AWCA." (Silveira, supra, 315 F.3d at 1089.)
The retired officer exception, in contrast, was found to be an
arbitrary classification, and therefore unconstitutional. The
court held that this provision was not only unrelated to a
legitimate state interest, it was contrary to the "act's basic
purpose of eliminating the availability of high-powered,
military-style weapons and thereby protecting the people of
California from the scourge of gun violence." (Silveira,
supra, 315 F.3d at 1090.)
After the Silveira ruling, the United States Supreme Court in
District of Columbia v. Heller (2008) 554 U.S. 570 held that
the Second Amendment protects individuals' right to own and
possess firearms, although this does not afford an unlimited
right to "keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. . . ." (Heller, supra,
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554 U.S. at p. 646.) Because this right is protected under
the Second Amendment, strict scrutiny should have been applied
in the Silveira case. However, the result in Silveira would
have been the same, at least in regards to the retired peace
officer exception, because this provision was struck down as
being unconstitutional using a lower standard. Thus, the
provision in the AWCA would not pass constitutional muster
under a heightened standard of scrutiny.
Similar to the rationale in Silveira, if the purpose of this
bill is to eliminate the proliferation of large-capacity
magazines, the exception for retired peace officers is
contrary to the bill's purpose and as evidenced by the
arguments considered and rejected by the court, there is no
legitimate state interest in creating this classification.
The higher standard of strict scrutiny required under Heller
makes it even more likely that the exception provided in this
bill for retired officers violates the Equal Protection
clause.
8)Argument in Support: The California Chapters of the Brady
Campaign states "California had a number of mass shootings
involving large capacity ammunition magazines before the ban
on their sale and transfer in the year 2000 (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
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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."
9)Argument in Opposition: Gun Owners of California argues "[t]o
unequivocally state that 'high-capacity' magazines are not
designed for hunting or target shooting and that such
magazines are 'military designed devices designed for one
purpose only - to allow a shooter to fire a large number of
bullets in a short period of time' is factually inaccurate.
In fact, Modern Sporting Rifles (MSR) are the single largest
selling firearms platforms for competition and hunting
purposes in California, selling well over a million in the
recent past. And, although these firearms may appear to have
the functionality of a military weapon they do not: rather,
they have the capacity to fire only a single round with a
single pull of a trigger.
"Further, it's important to acknowledge the Roberti-Roos Assault
Weapons Control Act of 1989 states 'It is not, however, the
intent of the Legislature by this chapter to place
restrictions on the use of those weapons which are primarily
designed and intended for hunting, target practice, or other
legitimate sports or recreational activities.' (Penal Code
section 12275.5). By focusing on the weapon - rather than
those eager to commit heinous acts, nothing will be achieved
in the pursuit of public safety."
10)Related Legislation:
a) SB 1235 (de León) creates a new regulatory framework for
the purchase and sale of ammunition in California. SB 1235
will be heard by this Committee today.
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b) AB 1663 (Chiu) amends the definition of an assault
weapon as it pertains to rifles and defines "detachable
magazines" and "fixed magazines". AB 1663 was held on the
Committee on Appropriations' Suspense File.
c) AB 1664 (Levine) redefines what constitutes an assault
weapon in order to close the bullet button loophole. AB
1664 is pending referral from the Senate Committee on
Rules.
d) SB 880 (Hall), among other provisions, amends the
definition of "assault weapon" and defines "fixed magazine"
as "an ammunition feeding device contained in, or
permanently attached to, a firearm in such a manner that
the device cannot be removed without disassembly of the
firearm action." SB 880 is pending hearing by this
Committee.
11)Prior Legislation:
a) SB 396 (Hancock), Chapter 318, Statutes of 2014, would
have prohibited the possession of large-capacity magazines,
regardless of the date that the magazine was acquired. SB
396 failed passage on the Assembly Floor and was
subsequently amended to a different subject matter with a
new author and signed into law.
b) SB 776 (Hancock), of the 2009-2010 Legislative Session,
among other provisions, would have prohibited the
possession of large-capacity magazines commencing January
1, 2011, with specified exceptions, and would have required
registration for large-capacity magazines that are subject
to those exceptions. SB 776 died in the Senate Committee
on Public Safety.
c) SB 626 (Perata), Chapter 937, Statutes of 2001, exempts
the manufacture of a large-capacity magazine for certain
law enforcement agents, peace officers, government
agencies, the military, or for export, and specifies
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additional magazines that are not included within the
definition of "large-capacity magazine."
d) SB 23 (Perata), Chapter 129, Statutes of 1999, made it
an alternate felony/misdemeanor, commencing January 1,
2000, for any person to manufacture or cause to be
manufactured, import into California, keep for sale, offer
or expose for sale, give away, or lend any large-capacity
magazine with specified exceptions.
e) SB 1483 (Perata), of the 1999-2000 Legislative Session,
would have exempted tubular magazines contained in
lever-action firearms from the "large-capacity magazine"
restrictions, and exempts the manufacture of
"large-capacity magazines" for use by specific law
enforcement agencies, peace officers, and firearm
licensees. SB 1483 passed this Committee, but was later
amended and became a vehicle for an unrelated matter.
f) AB 357 (Roos), Chapter 19, Statutes of 1989, established
the Roberti-Roos Assault Weapons Control Act of 1989 which
prohibited the manufacture in California of any of the
semi-automatic weapons specified in the statute, or the
possession, sale, transfer, or importation into the state
of such weapons without a permit. AB 357 contained a
grandfather clause that permits the ownership of assault
weapons by individuals who lawfully purchased them before
its enactment, so long as the owners register the weapons
with the Department of Justice.
REGISTERED SUPPORT / OPPOSITION:
Support
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American College of Emergency Physicians, California Chapter
California Academy of Family Physicians
California Chapters of the Brady Campaign
California Church IMPACT
California State PTA
City of Long Beach
City of Los Angeles
City of Oakland
City of Santa Monica
Cleveland School Remembers
Coalition Against Gun Violence, a Santa Barbara County Coalition
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Courage Campaign
David Alvarez, Councilmember for the City of San Diego
Law Center to Prevent Gun Violence
Physicians for Social Responsibility, Sacramento Chapter
Physicians for Social Responsibility, San Francisco Bay Area
Chapter
Rabbis Against Gun Violence
Violence Prevention Coalition of Greater Los Angeles
Youth ALIVE!
Opposition
California Rifle and Pistol Association
California Sportsman's Lobby
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California State Sheriffs' Association
Firearms Policy Coalition
Gun Owners of California
National Rifle Association of America
Outdoor Sportsmen's Coalition of California
Rick Farinelli, County of Madera Supervisor
Safari Club International Foundation
San Bernardino County Sheriff
Analysis Prepared by:Stella Choe / PUB. S. / (916)
319-3744
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