BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 124 (De León)
As Introduced January 26, 2011
Hearing date: April 12, 2011
Penal Code
SM:mc
DEFINITIONS OF HANDGUN AMMUNITION AND
ARMOR-PIERCING AMMUNITION
HISTORY
Source: Author
Prior Legislation: AB 962 (De León) - Chap. 628, Stats. 2009
ABX1-13 - Chap. 31, Stats. 1994
Initiative Measure (Prop. 115) - approved June 5,
1990, Stats. of 1993
Support: Alameda Police Department; City of Arcadia; Association
for Los Angeles Deputy Sheriffs; Berkeley Police
Department; City of Beverly Hills; Brady Campaign to
Prevent Gun Violence; California Chapters; Chico Police
Department; City of Healdsburg; Imperial Police
Department; Inglewood Police Department; Legal
Community Against Violence; Los Angeles County
Probation Officers Union; Los Angeles Police Protective
League; Modesto Police Department; Oakland Police
Department; Oxnard Police Department; Peace Officers
Research Association of California; Riverside Sheriff's
Association; Sacramento Police Department; San
Bernardino Police Department; San Francisco Police
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Department; Santa Ana Police Department; City of South
Pasadena; Stockton Police Department; Vallejo Police
Department
Opposition:California Association of Firearms Retailers;
California Rifle and Pistol Association; California
Sportmans' Lobby, Inc.; Crossroads of the West Gun
Shows; National Shooting Sports Foundation, Inc.;
Outdoor Sportsmen's Coalition of California;
Responsible Citizens of California; Safari Club
International; Redline Ballistics; Gun Owners of
California; National Rifle Association; one private
citizen
KEY ISSUES
SHOULD HANDGUN AMMUNITION BE DEFINED AS "AMMUNITION FOR USE IN
PISTOLS, REVOLVERS, AND OTHER FIREARMS CAPABLE OF BEING CONCEALED
UPON THE PERSON, NOTWITHSTANDING THAT THE AMMUNITION MAY ALSO BE
USED IN SOME RIFLES," WITH SPECIFIED EXEMPTIONS?
SHOULD THE DEFINITION OF ARMOR-PIERCING AMMUNITION BE AMENDED TO
READ: "'HANDGUN AMMUNITION DESIGNED TO PENETRATE METAL OR ARMOR'
MEANS ANY AMMUNITION, EXCEPT A SHOTGUN SHELL, THAT IS CAPABLE OF
PENETRATING A BODY VEST OR BODY SHIELD WHEN DISCHARGED FROM A
HANDGUN," WITH ADDITIONAL SPECIFIED CHARACTERISTICS?
SHOULD SEVERAL STATUTES THAT REFER TO "HANDGUN AMMUNITION DESIGNED
PRIMARILY TO PENETRATE METAL OR ARMOR" BE CONFORMED BY DELETING THE
WORD "PRIMARILY"?
PURPOSE
The purpose of this bill is to (1) define handgun ammunition as
"ammunition for use in pistols, revolvers, and other firearms
capable of being concealed upon the person, notwithstanding that
the ammunition may also be used in some rifles, with specified
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exemptions; (2) amend the definition of armor-piercing
ammunition to read: handgun ammunition designed to penetrate
metal or armor' means any ammunition, except a shotgun shell,
that is capable of penetrating a body vest or body shield when
discharged from a handgun," with additional specified
characteristics; and (3) conform several statutes that refer to
"handgun ammunition designed primarily to penetrate metal or
armor" by deleting the word "primarily" from each of these
statutes.
Handgun Ammunition
Current law defines "handgun ammunition" as "ammunition
principally for use in pistols, revolvers, and other firearms
capable of being concealed upon the person, notwithstanding that
the ammunition may also be used in some rifles" and exempting,
as specified:
ammunition designed and intended to be used in an
antique firearm and,
blanks. (Penal Code § 16650.)
Current law provides that, commencing February 1, 2011, the
delivery or transfer of ownership of handgun ammunition may only
occur in a face-to-face transaction with the deliverer or
transferor being provided bona fide evidence of identity from
the purchaser or other transferee, except as specified. (Penal
Code § 30312(a).)
Current law imposes several requirements on handgun ammunition
sellers, including that they obtain and record the
identification of purchasers and make that information available
to law enforcement upon request. (Penal Code §§ 30345, et seq.)
Current law provides that it is a misdemeanor, punishable by up
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to 6 months in county jail, a fine of up to $1,000, or by both,
to do any of the following:
Sell any ammunition or reloaded ammunition to a person
under 18 years of age.
Sell any ammunition or reloaded ammunition designed and
intended for use in a handgun to a person under 21 years of
age. Where ammunition or reloaded ammunition may be used
in both a rifle and a handgun, it may be sold to a person
who is at least 18 years of age, but less than 21 years of
age, if the vendor reasonably believes that the ammunition
is being acquired for use in a rifle and not a handgun.
Supplies, delivers, or gives possession of any
ammunition to any minor who the person, corporation, or
dealer knows, or using reasonable care should know, is
prohibited from possessing that ammunition at that time, as
specified.
Proof that a person, corporation, or dealer, or his or
her agent or employee, demanded, was shown, and acted in
reasonable reliance upon, bona fide evidence of majority
and identity shall be a defense to any criminal prosecution
under this section. (Penal Code § 30300.)
Amor-Piercing Ammunition
Current law provides that all murder which is perpetrated by
means of a destructive device or explosive, a weapon of mass
destruction, knowing use of ammunition designed primarily to
penetrate metal or armor, poison, lying in wait, torture, or by
any other kind of willful, deliberate, and premeditated killing,
or which is committed in the perpetration of, or attempt to
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perpetrate, arson, rape, carjacking, robbery, burglary, mayhem,
kidnapping, train wrecking, or any act punishable under Section
206, 286, 288, 288a, or 289, or any murder which is perpetrated
by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the
intent to inflict death, is murder of the first degree. All
other kinds of murders are of the second degree. (Penal Code §
189.<1>)
Current law provides that the foregoing section, Penal Code
section 189, as amended by voter initiative (Prop. 115), "? may
not be amended by the Legislature except by statute passed in
each house by roll call vote entered in the journal, two-thirds
of the membership concurring, or by a statute that becomes
effective only when approved by the electors." (Stats. 1990, §
30, p. A-256.)
Current law provides that any person who, while armed with a
firearm in the commission or attempted commission of any felony,
has in his or her immediate possession ammunition for the
firearm designed primarily to penetrate metal or armor, shall
upon conviction of that felony or attempted felony, in addition
and consecutive to the punishment prescribed for the felony or
attempted felony, be punished by an additional term of 3, 4, or
10 years. (Penal Code § 12022.2.)
Current law provides that any person, firm, or corporation who,
within this state knowingly possesses any handgun ammunition
designed primarily to penetrate metal or armor is guilty of a
public offense punishable by up to one year in the county jail,
16 months, 2, or 3 years in the state prison, a fine of up to
$5,000, or both. (Penal Code § 30315.)
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<1>1 SB 1080, Chap. 711, Stats. 2010, and SB 1115, Chap. 178,
Stats. 2010, recast and renumbered most statutes relating to
deadly weapons without any substantive change to those statutes.
Those changes will become operative January 1, 2012. All
references to affected code sections will be to the revised
version unless otherwise indicated.
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Current law provides that any person, firm, or corporation who,
within this state, manufactures, imports, sells, offers to sell,
or knowingly transports any handgun ammunition designed
primarily to penetrate metal or armor is guilty of a felony and
upon conviction thereof shall be punished by imprisonment in
state prison, or by a fine of up to $5,000, or both. (Penal
Code § 30320.)
Current law defines "handgun ammunition designed primarily to
penetrate metal or armor" as "any ammunition, except a shotgun
shell or ammunition primarily designed for use in a rifle, that
is designed primarily to penetrate a body vest or body shield,
and has either of the following characteristics:
has projectile or projectile core constructed entirely,
excluding the presence of traces of other substances, from
one or a combination of tungsten alloys, steel, iron,
brass, beryllium copper, or depleted uranium, or any
equivalent material of similar density or hardness.
is primarily manufactured or designed, by virtue of its
shape, cross-sectional density, or any coating applied
thereto, including, but not limited to, ammunition commonly
known as "KTW ammunition," to breach or penetrate a body
vest or body shield when fired from a pistol, revolver, or
other firearm capable of being concealed upon the person."
(Penal Code § 16660.)
Current law provides that nothing in this article shall apply to
or affect the possession of handgun ammunition designed
primarily to penetrate metal or armor by a person who found the
ammunition, if that person is not prohibited from possessing
firearms or ammunition, as specified, and the person is
transporting the ammunition to a law enforcement agency for
disposition according to law. (Penal Code § 30325.)
This bill would delete the word "primarily" from the definition
of "handgun ammunition" so that the definition would read:
"handgun ammunition" is "ammunition for use in pistols,
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revolvers, and other firearms capable of being concealed upon
the person, notwithstanding that the ammunition may also be used
in some rifles" and exempting, as specified:
ammunition designed and intended to be used in an
antique firearm; and
blanks.
This bill would amend the definition of armor-piercing
ammunition to read: "'handgun ammunition designed to penetrate
metal or armor' means any ammunition, except a shotgun shell,
that is capable of penetrating a body vest or body shield when
discharged from a handgun, and has either of the following
characteristics:
(a) has projectile or projectile core constructed entirely,
excluding the presence of traces of other substances, from one
or a combination of tungsten alloys, steel, iron, brass,
beryllium copper, or depleted uranium, or any equivalent
material of similar density or hardness.
(b) is primarily manufactured or designed, by virtue of its
shape, cross-sectional density, or any coating applied
thereto, including, but not limited to, ammunition commonly
known as "KTW ammunition," to breach or penetrate a body vest
or body shield when fired from a pistol, revolver, or other
firearm capable of being concealed upon the person.
This bill would conform several statutes that refer to "handgun
ammunition designed primarily to penetrate metal or armor" by
deleting the word "primarily" from each of these statutes.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
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On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does appear to aggravate the prison overcrowding
crisis described above. The author has agreed to take
amendments to remove the ROCA issue. See Comment # 4, below.
COMMENTS
1. Need for This Bill
According to the author:
SB 124 amends Penal Code section 12323 (Sections 16650
and 16660 under the California Law Revision Commission
renumbering that will take effect next year) to
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clarify the definition of "handgun ammunition" and
cop-killer bullets. The bill deletes the words
"principally for use" and "designed primarily" from
Penal Code section 12323 which the National Rifle
Association and court argued was unconstitutionally
vague. The measure then also updates cross references
to that definition that were included in Proposition
115 (passed in 1990) that creates penalty
enhanceÝments] for the use of such ammunition in the
course of a felony or murder.
2. Background - AB 962 and the Ruling in Parker v. State of
California, et al.
AB 962 (De León), Chapter 628, Statutes of 2009, imposed several
requirements on handgun ammunition sellers, including the
requirement that they obtain personal identification information
from buyers and retain that information for inspection by law
enforcement upon request. (Penal Code §§ 30345, et seq.) On
January 31, 2011, a Superior Court in Fresno ruled that the
definition of "handgun ammunition" contained in sections
12060(b) and 12318(b)(2) (now renumbered as section 16650) was
unconstitutionally vague, rendering invalid the provisions of
sections 12060, 12061 (now renumbered as sections 30345, et
seq.) and 12318. Each of these sections were enacted pursuant
to AB 962.<2> As a result of this finding, the Court enjoined
the State Attorney General from enforcing those statutes.
(Order Denying Plaintiff's Motion for Summary Judgment and
Granting In Part and Denying In Part Defendant's Motion for
Summary Adjudication, Fresno County Superior Court, Case No. 10
CECG 02116, pages 4, 11-17.)
The Court stated:
Because the language of the definition of "handgun
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<2> Old Penal Code section 12318 defines "handgun ammunition by
cross-reference to old section 12323(a), now renumbered section
16650.
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ammunition" fundamentally requires each law
enforcement officer to make a subjective determination
as to whether or not the ammunition at issue is
ammunition "principally for use" in a handgun and then
subjectively apply their own definition to the
situation before them, the definition of "handgun
ammunition" established in section 12060(b) and
12318(b)(2) gives unlimited discretion to each
individual law enforcement officer to determine
arbitrarily if the ammunition at issue is "handgun
ammunition" and to apply their particular
classification of "handgun ammunition" or not to the
specific issue before them. (Id at pages 14-15.)
3. Vagueness Issues
This bill is intended to address the vagueness issue in the
handgun ammunition statutes as well as to modify the definitions
in certain statutes involving armor-piercing ammunition to
address any potential claim of vagueness which might be made in
relation to those statutes. A vague term is unconstitutional
because it fails to give adequate notice to a defendant of what
behavior is prohibited.
That the terms of a penal statute creating a new
offense must be sufficiently explicit to inform those
who are subject to it what conduct on their part will
render them liable to its penalties, is a
well-recognized requirement, consonant alike with
ordinary notions of fair play and the settled rules of
law. And a statute which either forbids or requires
the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its
meaning and differ as to its application, violates the
first essential of due process of law. (Connally v.
General Constr. Co., 269 U.S. 385, 391 (U.S. 1926),
citations omitted.)
The basic premise of the void-for-vagueness doctrine
is that "Ýn]o one may be required at peril of life,
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liberty or property to speculate as to the meaning of
penal statutes." (Lanzetta v. New Jersey (1939) 306
U.S. 451, 453 Ý59 S. Ct. 618, 619, 83 L. Ed. 888].)
(People v. McKay, 27 Cal. 4th 601, 634 (2002), opinion
of Brown, J., concurring and dissenting.)
Penal Code section 16650 defines "handgun ammunition" as
"ammunition principally for use in pistols, revolvers, and other
firearms capable of being concealed upon the person,
notwithstanding that the ammunition may also be used in some
rifles" and exempting, as specified:
ammunition designed and intended to be used in an
antique firearm; and
blanks.
This bill would delete the word "principally" from this
definition. However, it is not clear that this would resolve
the vagueness issue. Defining handgun ammunition as "ammunition
for use in pistols, revolvers, and other firearms capable of
being concealed upon the person, notwithstanding that the
ammunition may also be used in some rifles" would still appear
to contain an element of subjectivity in determining whether a
specific type of ammunition is or is not "for use" in a handgun
or a long gun. Does "for use" mean intended for use in a
handgun by the manufacturer? Or does it mean intended for use
in a handgun by the buyer? Do manufacturers of ammunition
capable of use in both handguns and long guns intend that it be
used only in one or the other? How would that be determined?
DOES THIS DEFINITION GIVE ADEQUATE NOTICE OF WHAT CONSTITUTES
"HANDGUN AMMUNITION"?
4. Suggested Amendment
To address this issue, the author has agreed to amend the bill
to contain the following definition of handgun ammunition:
Penal Code section 16650 (a) As used in this part, "handgun
ammunition" means ammunition capable of being used in
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pistols, revolvers, and other firearms capable of being
concealed upon the person, notwithstanding that the
ammunition may also be used in some rifles.
(b) As used in Section 30312 and in Article 3 (commencing
with Section 30345) of Chapter 1 of Division 10 of Title 4,
"handgun ammunition" does not include either of the
following:
(1) Ammunition designed and intended to be used in an
antique firearm.
(2) Blanks.
This definition creates an objective standard to determine
whether a given type of ammunition is to be considered "handgun
ammunition" for purposes of these statutes, i.e., can the
ammunition be used in a handgun?
SHOULD THIS AMENDMENT BE TAKEN?
5. Armor-Piercing Bullet Statutes; Author's Amendment
Current law generally prohibits the possession and sale of
handgun ammunition designed to penetrate metal or armor. This
bill amends the definition of this kind of ammunition, and in
particular attempts to address the use of the term "designed
primarily to penetrate metal or armor." As currently drafted,
the bill's language employs both "designed to penetrate" and
"capable of penetrating" metal or armor, and in this way would
appear to expand the scope of several existing felonies. To
address this concern (expansion of the scope of existing
felonies) and clarify the definition, the author has agreed to
replace the bill's existing language (section 4 of the bill now
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in print) with the following:
As used in this part, "handgun ammunition designed to
penetrate metal or armor" means any ammunition, except a
shotgun shell that is designed to penetrate a body vest or
body shield when discharged from a handgun, and has either
of the following characteristics:
(a) Has projectile or projectile core constructed entirely,
excluding the presence of traces of other substances, from
one or a combination of tungsten alloys, steel, iron,
brass, beryllium copper, or depleted uranium, or any
equivalent material of similar density or hardness.
(b) Is manufactured or designed, by virtue of its shape,
cross-sectional density, or any coating applied thereto,
including, but not limited to, ammunition commonly known as
"KTW ammunition," to breach or penetrate a body vest or
body shield when fired from a pistol, revolver, or other
firearm capable of being concealed upon the person.
SHOULD THIS AMENDMENT BE TAKEN?
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6. Argument in Support
The Los Angeles Police Protective League states:
The bill Ý ] responds to a ruling brought on by an NRA
lawsuit. SB 124 clarifies the definition of "handgun
ammunition" and cop-killer bullets for the Penal Code
to make certain that court decisions like the one in
Fresno or any future gun lobby lawsuit cannot
invalidate California's ban on cop-killer bullets -
the ones which can pierce armor, and penetrate
protective vests worn by law enforcement officers.
Officers face danger every day and deserve protection
from bullets that are primarily designed and
deliberately used to bring about devastating
penetration damage to their target.
7. Argument in Opposition
The California Association of Firearms Retailers states:
SB 124 would attempt to remove unconstitutional
vagueness by taking the terms "principally" and
"primarily" out of existing law as these terms relate
to the definition of handgun ammunition. The logic
appears to be that, if "principally" and "primarily"
are deleted from relevant code sections, AB 962 will
become constitutionally viable.
A problem with simply removing "principally" and
"primarily" without making other defining changes is
that the remaining language would greatly expand what
is handgun ammunition, and new areas of vagueness
would surface as a result.
The bill would expand the definition of armor piercing
handgun ammunition to mean any ammunition that can be
fired in a handgun that is "capable" of penetrating a
body vest or shield and which possesses any one of
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specified design characteristics, including listed
metallurgy, cross-sectional density and shape of
coating that could facilitate the penetration of such
vest or shield. It would specifically eliminate the
existing statutory exemption for rifle ammunition.
Body vests and shields commonly used by law
enforcement are designed to impede penetration by
traditional handgun ammunition, not centerfire rifle
ammunition.
This bill would sweep in many popular centerfire rifle
cartridges used in specialty handguns for hunting,
competition and other lawful purposes.
Most handguns that can discharge centerfire rifle
ammunition are single shot pistols that, for a variety
of reasons, are not commonly used as crime guns.
Eliminating the current exclusion for rifle ammunition
that can be fired in them would not be of significance
as a crime deterrent.
SB 124 would further make mere possession of any of
the above described rifle ammunition a new felony.
It could make many, if not all, popular centerfire
rifle cartridges illegal to possess. It could, in
effect bring an end to all hunting, competition and
other lawful shooting activities with rifles and with
pistols that can fire rifle ammunition!
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