BILL ANALYSIS                                                                                                                                                                                                    Ó

                                                                    SB 1446

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          Date of Hearing:  June 14, 2016

          Counsel:               Stella Choe


                       Reginald Byron Jones-Sawyer, Sr., Chair

          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  


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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  

          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  

             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, §  

             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


          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  

          "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  

            "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  

          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  
            <  > [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  

          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  
          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  

             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  

          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.




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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  

          Rabbis Against Gun Violence

          Violence Prevention Coalition of Greater Los Angeles

          Youth ALIVE!



          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)  


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