BILL ANALYSIS
AB 2351
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Date of Hearing: April 11, 2000
Counsel: Fredericka McGee
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
AB 2351 (Zettel) - As Amended: April 5, 2000
SUMMARY : Creates an exemption for any firearm identified by USA
Shooting to be eligible to be used in one of its sanctioned,
Olympic-style competition or programs. Specifically, this bill :
1)Provides an exception to the statute prohibiting the
possession of an assault weapon for a firearm used exclusively
in Olympic-style shooting competition and programs.
2)Provides that any firearm, including any pistol, revolver, or
other firearm capable of being concealed, sanctioned by USA
Shooting, used in Olympic-style international shooting
competition, is exempt from the requirements of the
Roberti-Roos Assault Weapons Control Act of 1989 (RRAWCA).
3)Requires the Executive Director of USA Shooting to submit a
list of the eligible pistols, revolvers, or other firearms
capable of being concealed upon the person that are eligible
to be used in USA Shooting sanctioned events to the Department
of Justice (DOJ).
EXISTING LAW
1)Provides a generic definition of assault weapons and makes
manufacturing, importing, selling, lending, or giving of a
large-capacity magazine (any ammunition feeding device with
the capacity to accept more that 10 rounds) an alternate
felony/misdemeanor with specified exceptions. (Penal Code
Section 12276.1.
2)Prohibits the sale, manufacturing, distribution,
transportation, importation possession or lending of assault
weapons in California. (RRAWCA, including Penal Code Section
12280.)
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3)Contains a list which enumerates by model and manufacturer of
semiautomatic rifles, pistols, and shotguns deemed to be
assault weapons. (Penal Code Section 12276.)
4)Authorizes the Attorney General to file a petition in the
Superior Court to declare that additional weapons are
prohibited because they are essentially identical to weapons
on the list of prohibited assault weapons. (Penal Code
Section 12276.5(a).)
5)Allows a person who lawfully possessed an assault weapon prior
to June 1, 1989 to register the weapon with the DOJ and to
keep the weapon under specified restrictions. (Penal Code
Section 12285.)
6)Provides that any person who lawfully possessed a firearm that
was subsequently declared to be an assault weapon may register
the weapon within 90 days of the declaration. (Penal Code
Section 12285(b)(1).)
7)Provides that any person who unlawfully possesses an assault
weapon is guilty of a public offense punishable by
imprisonment in the state prison for 16 months, 2 or 3 years,
or by imprisonment in the county jail not exceeding one year.
However, if the person presents proof the weapon was lawfully
possessed prior to the effective date of the Act, it is
punishable as an infraction. (Penal Code Section 12280(b).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "I have
introduced AB 2351 because of a concern raised by one of my
constituents, Lauren Santibinez, who is an Olympic target
shooting competitor and who resides in my district.
"SB 23 bans possession of Olympic-style pistols used in
Olympic-style shooting competitions. This bill will exempt
such weapons used for Olympic style competitions to allow
Californians the opportunity to compete."
2)Background : On January 1, 2000, Penal Code Section 12276.1
was added and provides a further definition of assault weapon
than the list of weapons listed in Penal Code Section 12276.
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Very shortly thereafter, an issue arose regarding Olympic
target shooters in the San Diego Union-Tribune . The story
referenced a 17 year old woman involved in competitive
shooting who may have been impacted by SB 23 because the law
does not allow the loan of an assault pistol to a minor and
her competition pistol may have been restricted. Committee
staff has been advised that Ms. Santibinez is now 18,
therefore, her father can legally loan her the pistol. While
many custom-made target pistols may fall into the category of
the assault weapon under the new law, however Committee staff
has only received information of one incident occurring in
California.
3)Pending Supreme Court Case : There has been ongoing litigation
pertaining to the authority under Roberti-Roos of the Attorney
General to add additional "look alike" weapons to the assault
weapons list. The California Court of Appeal Third Appellate
District, held on March 4, 1998, "[t]he 'add-on' provision of
the Act, embodied in Section 12276.5, is unconstitutional and
unenforceable" ( Kasler v. Lungren , 61 Cal.App.4th 1237). The
appellate court also added language that the entire act may be
subject to challenge on equal protection grounds. On May 20,
1998, the California Supreme Court granted review of the
appellate decision and oral arguments were recently heard.
(S069522 - 1998 Cal. LEXIS 3194).
4)Federal Law : The federal assault weapons law became effective
on September 13, 1994 and banned the possession of "assault
weapons" and "large capacity ammunition feeding devices"
manufactured after that date; the federal law did not ban or
regulate those items manufactured before that date. The
federal definition of assault weapons first includes a list of
named weapons - similar but not identical to the Roberti-Roos
list of weapons - and then contains a "two characteristics"
generic definition (18 USC 922 (a)(30).) The federal law also
contains a lengthy list of weapons that are not assault
weapons.
5)Can the Legislature Delegate its Power to a Private Entity ?
The Constitutional non-delegation rule requires that only the
Legislature can define crimes and penalties. ( People v.
Figueroa (1999) 68 Cal.App.4th 1409, 1414; See also People v.
Wright (1982) 30 Cal.3d 705). An unconstitutional delegation
of legislative power occurs when the Legislature confers upon
an administrative agency unrestricted authority to make
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fundamental policy decisions. However, if the Legislature
provides a clear test or standard, the discretion to carry out
the legislative purposes by rules or regulations may be given
to a board or officer.
Legislative authorization to an industrial or professional
association is invalid where a statute empowers the private
industry to initiate or enact rules having legal force.
(Witkin, Constitutional Law Sections 129 and 130.) The RRAWCA
identifies criminal conduct relative to firearms and also set
forth penalties for unlawful conduct. The Act establishes
fundamental policy decisions relative to the control of
assault weapons.
The California Supreme Court reviewed whether the Legislature
unconstitutionally delegated its authority to the private
insurance industry in King v. Meese (1987) 43 C.3d 1217. In
King , the plaintiffs sought to prevent enforcement of the
Financial Responsibility Act, which makes it an infraction for
a motorist stopped for a moving violation to fail to provide
proof of financial responsibility. It was alleged that since
the insurance companies decide who can obtain insurance and at
what price, the Legislature failed to provide sufficient
guidelines to insurers making those decisions. The Court
held that where a statute merely permits a private seller to
decide to whom to sell, and at what price, it is not
unconstitutional. (Id. at 1234) Therefore, when AB 2351 is
reviewed in conjunction with the RRAWCA, they must provide
sufficient guidelines to ensure that the delegation of
authority to USA Shooting is appropriate in order to withstand
a constitutional challenge.
6)Should a Finite List of Exempt Guns be Identified in this
Bill ? USA Shooting may be able to provide the Legislature
with a list of guns currently being used by Olympic-style
shooting competitors. The list can also be limited to those
firearms being used by California competitors. If it is later
determined that additional or substitute firearms need to be
included on the list of exempted firearms, further legislative
action can be taken at that time. If the "add-on" approach is
upheld by the Supreme Court decision in the Kasler case, DOJ
may be able to utilize the same approach to exempt new weapons
based on recommendations from USA Shooting.
7)Is it More Appropriate to Register Individuals Rather Than
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Exempting Certain Firearms ? If there are only a few
Californians who are involved in the Olympic-style
competition, it may be appropriate to grant very limited
permits valid for short periods of time. DOJ may use its
existing authority to issue permits to people engaged in
Olympic-level competition for the possession and/or
acquisition of assault weapons that are also legitimate
competition pistols. The Legislature can also provide, in
this bill, DOJ with strict guidelines to grant those permits.
The guidelines may include minimum age requirements,
psychological evaluations, as well as the standard background
check.
8)Should Exempt Firearms be Subject to the Requirements of SB
15 ? SB 15 (Polanco), Chapter 248, Statutes of 1999,
establishes strict safety standards for handguns sold after
January 1, 2001. This bill does not appear to require that
exempt firearms meet the safety standards in SB 15. Any
firearm currently owned or that is sold prior to January 1,
2001 could not be subject to these safety requirements.
9)Related Legislation : SB 23 (Perata), Chapter 129, Statutes of
1999. SB 15 (Polanco), Chapter 248, Statutes of 1999. AB
1265 (Wright) failed passage in the Assembly Public Safety
Committee.
10)Prior Legislation . AB 2560 (Perata), of the 1997-98
Legislative Session, was vetoed by the Governor. AB 23
(Perata), of the 1997-98 Legislative Session, died on Assembly
Floor in 1998.
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General's Office
California Peace Officers' Association
California Police Chiefs Association
USA Shooting (National Governing Body for the Olympic Shooting
Sports)
Opposition
None on file
AB 2351
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Analysis Prepared by : Fredericka McGee / PUB. S. / (916)
319-3744