BILL ANALYSIS Ó SB 1446 Page 1 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: SB 1446 Page 2 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; SB 1446 Page 3 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: SB 1446 Page 4 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 SB 1446 Page 5 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 SB 1446 Page 6 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. SB 1446 Page 7 "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 SB 1446 Page 8 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.) SB 1446 Page 9 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. SB 1446 Page 10 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 SB 1446 Page 11 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, SB 1446 Page 12 554 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 SB 1446 Page 13 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. SB 1446 Page 14 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 SB 1446 Page 15 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 SB 1446 Page 16 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 SB 1446 Page 17 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 SB 1446 Page 18 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 SB 1446 Page 19