BILL ANALYSIS Ó
SB 124
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Date of Hearing: July 5, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 124 (De Leon) - As Amended: April 25, 2011
SUMMARY : Recasts the definition of "handgun ammunition" used
in several sections of the deadly weapon provisions of the Penal
Code to delete the word "primarily" and defines "handgun
ammunition" to mean "capable of being used in pistols".
1)Deletes the word "primarily" from the definition of "handgun
ammunition" so that the definition would read: "handgun
ammunition" is "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" and exempting, as specified:
a) Ammunition designed and intended to be used in an
antique firearm; and,
b) Blanks.
2)Amends the definition of "handgun ammunition" from ammunition
"primarily for use" in pistols to ammunition "capable of being
used" in pistols.
3)Modifies the definition of "handgun ammunition designed to
penetrate metal or armor" to 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,
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brass, beryllium copper, or depleted uranium, or any
equivalent material of similar density or hardness; or,
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.
4)Conforms several statutes that refer to "handgun ammunition
designed primarily to penetrate metal or armor" by deleting
the word "primarily" from each of these statutes.
EXISTING LAW :
1)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:
a) Ammunition designed and intended to be used in an
antique firearm; and,
b) Blanks. (Penal Code Section 16650.)
2)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. ÝPenal
Code Section 30312(a).]
3)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 Sections 30345, et
seq.)
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4)Provides that it is a misdemeanor, punishable by up to six
months in county jail, a fine of up to $1,000, or by both, to
do any of the following:
a) Sell any ammunition or reloaded ammunition to a person
under 18 years of age.
b) 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.
c) 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.
d) 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 Section 30300.)
5)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
perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, or any act punishable
under Penal Code Sections 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
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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 Section 189.)
6)Provides that the foregoing section, Penal Code Section 189,
as amended by voter initiative (Proposition 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, Section 30, p. A-256.)
7)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 Section 12022.2.)
8)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 Section 30315.)
9)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
Section 30320.)
10)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,
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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.
(Penal Code Section 16660.)
11)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 Section 30325.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 124 is the
cop-killer bullet ban protection act which I introduced in
response to a recent court ruling that called into question
the definition of handgun ammunition and by extension, cop
killer bullets.
"SB 124 simply clarifies the definition of cop-killer bullets to
include bullets that are DESIGNED to penetrate body armor when
fired from a handgun. This clarification is designed to
preempt future litigation on this matter and keep cop-killer
bullets illegal in the state of California."
2)Background : This bill amends Penal Code Section 12323
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(Sections 16650 and 16660 under the California Law Commission
renumbering that will take effect next year) to clarify the
definition of "handgun ammunition" and "cop-killer bullets".
This 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. This bill then also updates
cross-references to that definition that were included in
Proposition 115 (passed in 1990) that creates penalty enhances
for the use of such ammunition in the course of a felony or
murder.
3)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
Section 30345, et seq.) On January 31, 2011, a Superior Court
in Fresno ruled that the definition of "handgun ammunition"
contained in Penal Code Sections 12060(b) and 12318(b)(2) (now
renumbered as Penal Code Section 16650) was unconstitutionally
vague, rendering invalid the provisions of Penal Code Sections
12060, 12061 (now renumbered as Penal Code Sections 30345, et
seq.) and 12318. Each of these sections was enacted pursuant
to AB 962. 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 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.)
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4)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. ÝConnally 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, liberty or
property to speculate as to the meaning of penal statutes."
ÝLanzetta v. New Jersey (1939) 306 U.S. 451, 453 (59 S. Ct.
618, 619, 83 L. Ed. 888).] ÝPeople 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.
5)Conflicting Definitions of Handgun Ammunition by the Author's
Bills : This bill redefines "handgun ammunition" as defined in
Penal Code Section 16650 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." However, the author has also redefined
"handgun ammunition" in SB 427 (SB 427 passed this Committee),
which defines "handgun ammunition" as any variety of
ammunition in the following calibers, notwithstanding that the
ammunition may be used in some rifles: .22 rimfire, .25, .32,
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.38, 9mm, 10mm, .40, .44, .45, 5.7x28mm, .357, and .380. The
author has indicated an intent to amend SB 427 to correct the
conflicting language.
6)Argument in Support : According to the Los Angeles Police
Protective League , SB 124 "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 : According to the National Rifle
Association , "Senate Bill 124 was introduced in response to
the recent ruling in Parker v. California, No. 10CECG02116
(Cal. Super. Ct. 2011). That case challenged California Penal
Code sections 12060, 12061, and 12318 on grounds that they
fail to provide sufficient legal notice as to what ammunition
would be regulated as 'handgun ammunition' under those new
laws. Had it taken effect, AB 962 would have banned mail
order sales of 'handgun ammunition' and required registration
and thumb printing for all retail sales of such ammunition.
On January 24, 2011, Fresno Superior Court Judge Jeffrey
Hamilton declared key provisions of Assembly Bill 962 (AB 962)
unconstitutionally vague, in violation of the Due Process
Clause.
"Claiming the Parker decision threatens the validity of
California's long-standing prohibition on ammunition designed
to penetrate body armor, Senator Kevin de León introduced
Senate Bill 124 as a purported attempt to preserve that ban,
and further claiming that the ruling 'jeopardizeÝs]
California's prohibition on minors purchasing ammunition.'
"Senator De León suggests that Parker calls into question the
use of the terms 'principally' and 'primarily' in defining
'handgun ammunition' and 'armor piercing ammunition,'
respectively, and attempts to remedy the statutes' vagueness
by striking those terms in various code sections; some of
which relate to California's armor piercing ammunition
statutes, and some of which do not.
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"Senator De Leon's claims about the impact of the Parker
decision are unfounded, both in fact and in law."
8)Related Legislation : SB 427 (De Leon), provides that,
commencing February 1, 2012, an ammunition vendor shall not
provide ammunition purchaser information to any third party
without the written consent of the purchaser, and requires
that any records no longer required to be maintained be
destroyed in a manner that protects the purchaser who is the
subject of the record. SB 427 also redefines "handgun
ammunition". SB 427 is pending hearing by the Assembly
Appropriations Committee.
9)Prior Legislation : AB 962 (De León), Chapter 628, Statutes of
2009, imposed specified requirements on handgun ammunition
sellers, primarily that sellers collect buyers personal data
and keep a log of such sales, but these amendments remove the
requirement that sellers obtain a vendor's license and the
requirement that the Department of Justice maintain records of
such licenses.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda Police Department
Association for Los Angeles Deputy Sheriffs
California Association of Highway Patrolmen
California Chapters of the Brady Campaign
City of Arcadia
City of Berkeley
City of Beverley Hills
City of Chico
City of Healdsburg
City of Inglewood
City of Imperial Police Department
City of Los Angeles
City of Modesto
City of Oakland
City of Oxnard
City of Sacramento
City of San Bernardino
City and County of San Francisco
City of Santa Ana
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City of South Pasadena
City of Stockton
City of Vallejo
County of Los Angeles
Legal Community Against Violence
Los Angeles County Sheriff's Department
Los Angeles Police Protective League
Los Angeles Probation Officers Union
Peace Officers Research Association of California
Riverside Sheriffs' Association
Opposition
California Association of Firearms Retailers
California Sportsman's Lobby
Crossroads of the West
National Rifle Association
National Shooting Sports Foundation
Outdoor Sportsmen's Coalition of California
Safari Club International
Two private individuals
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744