BILL ANALYSIS �
AB 2549
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Date of Hearing: April 24, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2549 (Hall) - As Introduced: February 24, 2012
SUMMARY : Allows a peace officer who purchases an assault weapon
with his or her own money to keep that firearm upon retirement.
Specifically, this bill :
1)Requires that the verifiable written authorization from an
officer's employer necessary to exempt the officer from
restrictions on possession of an assault weapon include
language specifying that the use of the weapon "is for law
enforcement purposes, whether on or off duty."
2)Provides that a peace officer who purchases an assault weapon
or .50 Browning Machine Gun (BMG) rifle on or after January 1,
2013 can only purchase one such weapon and is not authorized
to purchase another unless he or she has relinquished the
original weapon and also transferred registration of the
weapon out of his or her name.
3)Provides that if a peace officer lawfully purchases and
registers an assault weapon or .50 BMG rifle and subsequently
honorably retires from the law enforcement agency where he or
she was employed, the officer shall notify the Department of
Justice (DOJ) of his or her change in status and continued
ownership of the weapon.
4)States that the term "honorably retired" includes all peace
officers who have qualified for and accepted a service or
disability retirement, but does not include an officer who has
agreed to a service retirement in lieu of termination.
5)Requires DOJ to develop a program authorizing a retired
officer to file a "change of status" form for the purpose of
keeping an assault weapon upon retirement.
6)Requires the DOJ to develop and adopt a form for this purpose.
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7)Allows the DOJ to charge the retired officer seeking to file
the change of status form a fee to cover the reasonable cost
of providing this service.
EXISTING LAW :
1)Contains legislative findings and declarations that the
proliferation and use of assault and .50 BMG rifles poses a
threat to the health, safety, and security of all citizens of
California. (Penal Code Section 30505.)
2)States legislative intent to place restrictions on the use of
assault weapons and .50 BMG rifles and to establish a
registration and permit procedure for their lawful sale and
possession. (Penal Code Section 30505.)
3)Defines an "assault weapon", as specified. (Penal Code
Sections 30510 and 30515.)
4)Defines a ".50 BMG rifle and cartridge", as specified. (Penal
Code Sections 30525 and 30530.)
5)Makes the manufacture, distribution, transportation,
importation, sale, gift or loan of an assault weapon or a .50
BMG rifle a criminal offense. (Penal Code Section 30600.)
6)Makes the possession of assault weapons a criminal offense,
subject to certain exceptions. (Penal Code Section 30605.)
7)Exempts the DOJ, law enforcement agencies, military forces,
and other specified agencies from the prohibition against
sales to, purchase by, importation of, or possession of
assault weapons or .50 BMG rifles. (Penal Code Section
30625.)
8)Allows specified sworn peace officers to possess or use
assault weapons for law enforcement purposes, whether on or
off duty. �Penal Code Section 30630(a).]
9)Allows specified sworn peace officers to purchase and possess
assault weapons with their own money provided that the peace
officer has verifiable written authorization from his or her
employer to possess or receive the specific assault weapon and
also that the officer registers it with the DOJ. �Penal Code
Section 30630(b).]
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10)Requires that any person who lawfully possesses an assault
weapon, as specified, must register the firearm with DOJ, as
specified. (Penal Code Section 30900 et. seq.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2549
clarifies the practice used prior to the Attorney General's
opinion that if an officer legally purchases an assault weapon
for law enforcement purposes with their own money and
registers that weapon in their own name, they are allowed to
keep that firearm for their own protection after they retire.
"This measure would require the retired peace officer to notify
the Department of Justice (DOJ) as to their retired status,
pay a small fee for the DOJ to make those changes to their
files and be subject to all of the laws that currently apply
to persons owning assault weapons who were authorized to do so
prior to the ban."
2)Purchase and Possession of Assault Weapons by Peace Officers :
The Assault Weapons Control Act (AWCA) provides for peace
officer exceptions for the general prohibitions on the
purchase and possession of assault weapons. Existing law
allows the sale to or purchase of assault weapons by specified
state and federal law enforcement agencies for the possession
or use by sworn peace officers for law enforcement purposes
for use in the discharge of their official duties. (Penal
Code Section 30625.)
Existing law also allows specified sworn peace officers to
possess or use assault weapons for law enforcement purposes,
whether on or off duty. �Penal Code Section 30630(a).] This
section essentially permits an officer to receive and use a
weapon that is lawfully owned by a qualified law enforcement
agency.
Finally, existing law allows specified sworn peace officers to
purchase assault weapons with their own money provided that
the peace officer has verifiable written authorization from
his or her employer to possess or receive the specific assault
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weapon. These weapons must be registered with DOJ. �Penal
Code Section 30630(b)(1) and (2).] Notably, this section does
not restrict peace officers to use such weapons for law
enforcement purposes only.
3)Silveira v. Lockyer (9th Cir. 2002) 312 F.3rd 1052 : As
originally enacted, the AWCA authorized specific law
enforcement agencies to buy and possess assault weapons, and
allowed individual officers of those agencies to use and
possess the weapon in the court of their duties. In 1999, the
Legislature broadened the officer exception in two ways.
First, officers permitted by their department to possess
assault weapons in the discharge of their official duties were
permitted to do so whether on or off duty. Second, an
exception for retired peace officers was created, providing
that the general restrictions on possession and use of assault
weapons did not apply to a retired officer who receives the
weapon upon retirement from his or her official duties.
Subsequently, California residents who either owned assault
weapons or wanted to purchase them filed suit alleging the
AWCA violated the Second Amendment. Additionally, some of the
plaintiffs raised equal protection challenge to the provisions
allowing police officers to possess those weapons while
off-duty, and allowing retired police officers to possess
assault weapons after retirement. The court held that the
exemption allowing off-duty law enforcement officers to
possess assault weapons did not violate principles of equal
protection. But the court did hold that there was no rational
basis for an exception to allow for possession of prohibited
weapons by retired police officers. The court said, "We . . .
can discern no legitimate state interest in permitting retired
peace officers to possess and us for their personal pleasure
military-style weapons. Rather, the retired officers
exception arbitrarily and unreasonably affords a privilege to
one group of individuals that is denied to others, including
plaintiffs." (Silveira, supra, 312 F.3rd at p. 1091.)
4)Attorney General Opinion No. 09-901 : San Diego Sheriff Gore
requested an opinion as to whether a peace officer who
purchases and registers an assault weapon in order to use the
weapon for law enforcement purposes is permitted to continue
to possess the assault weapon after retirement. In response,
the California Attorney General issued an opinion finding that
a peace officer who purchases and registers an assault weapon
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in order to use the weapon for law enforcement purposes, as
allowed under what was then Penal Code Section 12280(f)(2)
�now Penal Code Section 30630(b)], is not permitted upon his
or her retirement to continue to possess that assault weapon
because a retired law enforcement officer is not authorized to
engage in law enforcement activities. The Attorney General
opinion concluded that the rule of Silveira, supra, 312 F.3rd
1052, applies in this situation as well. �93
Ops.Cal.Atty.Gen. 130 (Dec. 31, 2010).]
5)Takings Issues : Both the federal government and the states
have the authority to take private property when necessary for
government activities. But there is a limitation on this
power. The Fifth Amendment to the federal constitution
states: "nor shall private property be taken for public use
without just compensation." For a legal analysis under the
takings clause one must consider the following: Is there a
taking of property; if so, is it for public use; if so, is
"just compensation" paid?
A possessory taking occurs when the government confiscates or
physically occupies property. If the government requires a
retired police officer to relinquish an assault weapon he or
she legally acquired with his or her own money, a taking of
property occurs.
In order for the taking to be valid, it must be for public use
and just compensation must be paid. The Supreme Court has
expansively defined "public use" so that almost any taking
will meet this requirement. A taking is for public use so
long as the government is taking property to achieve a
legitimate government purpose and so long as the taking is a
reasonable way to achieve this goal. �Hawaii Housing
Authority v. Midkiff (1984) 467 U.S. 229.] The intent to stop
the proliferation and use of assault weapons would appear to
be a legitimate government purpose, and restrictions on who
can possess those weapons would be a reasonable means of
achieving this goal.
However, one must consider the issue of just compensation.
Current law does not provide a buyback program to compensate a
retired officer who purchased an assault weapon with his or
her own money for its relinquishment. Thus, this bill might
alleviate some potential takings issues presented by mandated
relinquishment of the weapon upon retirement.
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6)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. __,
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. As the Court explained in Heller, the
right "to keep and carry arms" is limited to weapons "in
common use." (Heller, supra, 554 U.S. at p. 627.) At least
one court has held that Heller does not invalidate the statute
prohibiting the possession of assault rifles. �See People v.
James (2009) 174 Cal.App.4th 662, 676.] 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. Thus, there appear to be
no Second Amendment issues with the provisions of this bill.
7)Is a Retroactivity Provision Necessary ? Penal Code Section 3
provides, "No part of �the Penal Code] is retroactive, unless
expressly so declared", meaning that "�a] new statute is
generally presumed to operate prospectively absent an express
declaration of retroactivity or a clear and compelling
implication that the Legislature intended otherwise." �People
v. Hayes (1989) 49 Cal.3d 1260, 1274.] This bill does not
contain language regarding whether its provisions should apply
retroactively; therefore, the presumption will be that this
bill applies prospectively only. However, given the Attorney
General opinion issued December 2010, there are now retired
officers who legally purchased and registered assault weapons
and now are in possession of contraband due to their change in
status. Therefore, it seems to make sense to have the
provisions of this bill apply retroactively.
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8)Application to Retired Officers Only : The change of status
provisions of this bill apply to an officer who has "honorably
retired" from the law enforcement agency, defined as including
"all peace officers who have qualified for, and have accepted,
a service or disability retirement" but not "an officer who
has agreed to a service retirement in lieu of termination."
However, there appear to be other scenarios under which an
officer is no longer associated with a law enforcement agency
but could still be in possession of an assault weapon. For
example, an officer might be laid off from an agency due to
budget restrictions. There is no recourse for these officers
under the provisions of this bill. Should there be change of
status provisions for other officers who are separated from
their agencies in good standing, but for reasons other than
retirement or a work-related disability?
9)Argument in Support : According to the Peace Officers Research
Association of California , the sponsor of this bill,
"Currently, under the Penal Code an active peace officer may
purchase and use an assault weapon, as defined, with their own
money for law enforcement purposes. Prior to the Attorney
General's opinion, if that officer legally purchased and used
the firearm for law enforcement purposes, and registered that
firearm in their own name, the officer maintained possession
of that firearm when they retired. In 2010, the Attorney
General opined that when an officer retires, they become a
"normal citizen," therefore the assault weapon ban that
applies to normal citizens should apply to retired peace
officers.
"AB 2549 simply clarifies and codifies the practice being used
prior to the Attorney General's opinion that if an officer
legally purchases an assault weapon for law enforcement
purposes with their own money and registers that weapon in
their own name, they are allowed to keep that firearm for
their own protection after they retire. The legislation would
require the retired peace officer to notify the Department of
Justice (DOJ) as to their retired status, pay a small fee for
the DOJ to make those changes to their files and be subject to
all of the laws that currently apply to citizens owning
assault weapons who were grandfathered in prior to the ban.
"It should be noted that peace officers generally keep their
duty weapons and other firearms purchased because there have
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been many instances where officers come into contact in their
daily lives with some of the criminals they may have arrested
while working as a peace officer and have had threats to
themselves and their families."
10)Argument in Opposition : According to the National Rifle
Association , "The provisions of Assembly Bill 2549 attempt to
stop the confiscation of Californians who currently serve as
Law Enforcement Officer. The bill while well intentioned,
does not deal with many of the fundamental legal issues that
have been created by the firearms policies and regulations of
the California Department of Justice.
"One specific section of AB2549 will ONLY allow an LE officer to
retain ONE of the personally owned regulated firearms if they
leave the issuing agency, the rest of the firearms owned by
the officer will confiscated and /or surrendered for
disposal."
11)Related Legislation :
a) AB 2460 (Dickinson) specifies that DOJ, police
departments, sheriffs' officials, marshals' offices,
California Department of Corrections and Rehabilitation,
California Highway Patrol, district attorneys' offices, and
military or naval forces of the State of California may not
sell or otherwise transfer the ownership of an unsafe
handgun to any entity or person that is not otherwise
exempted from possession of an unsafe handgun.
b) AB 829 (Knight) allows a retired reserve peace officer
who served for 15 years to carry a concealed handgun. AB
828 failed passage in this Committee.
12)Prior Legislation :
a) AB 2728 (Klehs), Chapter 793, Statutes of 2006, made the
possession of unregistered assault weapons and .50 BMG
rifles in violation of the Penal Code a nuisance, allowing
for their destruction.
b) SB 238 (Perata), Chapter 499, Statutes of 2003, repealed
the retiree exemption for retired peace officers who
acquired assault weapons, which was found to be
unconstitutional in Silveira v. Lockyer, supra, 312 F.3d.
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1052.
c) SB 626 (Perata), Chapter 937, Statutes of 2001, created
a procedure to allow officers who were authorized to
acquire and possess assault weapons by their agencies but
who paid for them personally to keep them but to register
the weapons with DOJ.
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.
REGISTERED SUPPORT / OPPOSITION :
Support
Peace Officers Research Association of California (Sponsor)
Opposition
California Rifle and Pistol Association
National Rifle Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744