BILL ANALYSIS �
AB 2549
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Date of Hearing: May 2, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 2549 (Hall) - As Introduced: February 24, 2012
Policy Committee: Public
SafetyVote: 4-2
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill authorizes a retired peace officer who purchased an
assault weapon or .50 BMG rifle with his or her own money, while
a peace officer, to keep that weapon upon retirement.
Specifically, this bill:
1)Requires the written authorization from an officer's employer
necessary to exempt the officer from restrictions on
possession of an assault weapon or .50 BMG rifle to include
language specifying the weapon is for law enforcement
purposes, whether on or off duty.
2)Limits a peace officer to one assault or .50 BMG.
3)Provides that an honorably retired peace officer who lawfully
purchased and registered an assault weapon or .50 BMG rifle
while employed as a peace officer may keep the weapon but must
notify the Department of Justice (DOJ) of his or her change in
employment status.
4)Requires the Department of Justice (DOJ) to develop a program
authorizing a retired officer to file a "change of status"
form for the purpose of keeping an assault weapon or .50 BMG
rifle upon retirement, and authorizes DOJ to charge the
retired officer a fee to cover the reasonable cost of
providing this service.
FISCAL EFFECT
Minor costs, less than $100,000, to DOJ to develop a process for
retired officers to file a change-of-status form. The bill
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authorizes DOJ to charge a fee to cover the reasonable cost of
the process.
COMMENTS
1)Rationale . The author and sponsor, the Peace Officers Research
Association of California PORAC), contend this bill clarifies
common practice, the understanding of which has been muddied
in recent years.
2)Possession of assault weapons by peace officers allowed .
Current law exempts peace officers from the ban on assault
weapons and authorizes them to purchase and possess assault
weapons, whether on or off duty.
3)Possession of assault weapons by retired peace officers
prohibited .
a) Silveira v. Lockyer (9th Cir. 2002). As originally
enacted in 1989, the Assault Weapons Control Act (AWCA)
authorized specified law enforcement agencies to possess
assault weapons, and allowed individual officers of those
agencies to use and possess the weapon in the course of
their duties. In 1999, the Legislature broadened the
exception to allow officers permitted to possess assault
weapons in the discharge of their official duties to do so
on or off duty, and to specify the general restrictions on
possession and use of assault weapons did not apply to a
retired officer who carries over the weapon upon
retirement.
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 an equal protection challenge to
provisions allowing peace officers to possess those weapons
while off-duty, and allowing retired officers to possess
assault weapons after retirement. The court held the
off-duty law enforcement exemption was valid. But the court
held there was no rational basis for an exception to allow
for possession of prohibited weapons by retired police
officers. The court said it could "discern no legitimate
state interest in permitting retired peace officers to
possess and use for their personal pleasure military-style
weapons. Rather, the retired officers exception
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arbitrarily and unreasonably affords a privilege to one
group of individuals that is denied to others, including
plaintiffs."
b) SB 238 (Perata), Statutes of 2003, deletes the exemption
for retired peace officers from the ban on assault weapons,
pursuant to the Ninth Circuit Court of Appeal ruling in
Silverira v Lockyer on December 5, 2002.
c) California Attorney General Opinion . In 2010, Attorney
General Jerry Brown issued an opinion stating that a peace
officer who purchases and registers an assault weapon in
order to use the weapon for law enforcement purposes, as
allowed under what was then Penal Code Section 12280(f)(2),
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 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).]
4)The rationale/need for retired peace officers to possess
assault weapons and .50 BMG rifles is not clear .
5)Would this bill authorize assault weapon possession by retired
peace officers only prospectively? As noted in the Assembly
Public Safety analysis, Penal Code Section 3 provides, "No
part of �the Penal Code] is retroactive, unless expressly so
declared." This bill does not contain language regarding
whether its provisions should apply retroactively, therefore,
the presumption will be that this bill applies prospectively
only. Considering, however, that SB 238 deleted the
prohibition exemption for retired peace officers in 2003, as
the Attorney General opinion issued in 2010, there are retired
officers who purchased and registered assault weapons and are
now in possession of contraband due to their change in status.
6)Support. According to PORAC, "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
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they retire."
7)Opposition. According to the National Rifle Association, this
bill does not go far enough. "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 AB 2549 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."
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081