BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
4
2
7
SB 427 (De León)
As Amended April 13, 2011
Hearing date: April 26, 2011
Penal Code
SM:mc
AMMUNITION SALES AND POSSESSION OF FIREARM BY
A PERSON UNDER A GANG INJUNCTION
HISTORY
Source: Author
Prior Legislation: AB 2358 (De León) - 2010, failed passage on
Senate Floor
AB 1663 (Hagman) - 2010, failed passage in Assembly
Public Safety
AB 962 (De León) - Ch. 628, Stats. 2009
AB 2062 (De León) - 2008, held in Senate
Appropriations Committee
AB 362 (De León) - 2007, held in Senate
Appropriations Committee
SB 271 (Cedillo) - Ch. 34, Stats. 2007
AB 1471 (Feuer) - Ch. 572, Stats. 2007
AB 996 (Ridley-Thomas) - 2006, vetoed
AB 352 (Koretz) - 2006, died in conference
SB 357 (Dunn) - 2005, amended to remove relevant
provisions
AB 2714 (Torrico) - 2005-06, vetoed
SB 1152 (Scott) - 2003-04, vetoed
SB 2034 (Lockyer) - Ch. 631, Stats. 1998
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Support: Legal Community Against Violence; California Chapters
of the Brady Campaign to Prevent Gun Violence
Opposition:American Civil Liberties Union (unless amended);
California Association of Firearms Retailers;
California Rifle and Pistol Association; National Rifle
Association; National Shooting Sports Foundation, Inc.
KEY ISSUES
SHOULD IT BE A MISDEMEANOR FOR A PERSON WHO IS ENJOINED FROM
ENGAGING IN ACTIVITY PURSUANT TO A NUISANCE INJUNCTION ISSUED
AGAINST THAT PERSON AS A MEMBER OF A CRIMINAL STREET GANG, AS
DEFINED, TO POSSESS ANY FIREARM?
SHOULD HANDGUN AMMUNITION BE ALLOWED TO BE PURCHASED OVER THE
INTERNET OR THROUGH OTHER MEANS OF REMOTE ORDERING IF A HANDGUN
AMMUNITION VENDOR, AS DEFINED, IN CALIFORNIA INITIALLY RECEIVES THE
AMMUNITION AND PROCESSES THE TRANSFER IN COMPLIANCE WITH SPECIFIED
REQUIREMENTS?
SHOULD IT BE REQUIRED THAT COPIES OF HANDGUN AMMUNITION SALES
RECORDS BE TRANSMITTED TO THE COUNTY SHERIFF OR CHIEF OF POLICE IF
REQUIRED BY LOCAL LAW?
SHOULD IT BE PROHIBITED, EXCEPT AS SPECIFIED, FOR VENDORS TO PROVIDE
AMMUNITION SALES INFORMATION TO ANY THIRD PARTY WITHOUT THE WRITTEN
CONSENT OF THE PURCHASER OR TRANSFEREE?
SHOULD IT BE REQUIRED THAT RECORDS OF AMMUNITION SALES, AS
SPECIFIED, THAT ARE NO LONGER REQUIRED TO BE MAINTAINED BE DESTROYED
IN A MANNER THAT PROTECTS THE PRIVACY OF THE PURCHASER?
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SHOULD LAW ENFORCEMENT OFFICIALS AUTHORIZED TO INSPECT AMMUNITION
SALES RECORDS BE PERMITTED TO COPY THOSE RECORDS FOR INVESTIGATORY
OR ENFORCEMENT PURPOSES?
SHOULD AMMUNITION VENDORS BE REQUIRED TO PROVIDE WRITTEN NOTICE TO
THE LOCAL POLICE CHIEF OR COUNTY SHERIFF OF THE VENDOR'S INTENT TO
CONDUCT BUSINESS IN THE JURISDICTION, AND OBTAIN ANY REGULATORY OR
BUSINESS LICENSE REQUIRED BY THE JURISDICTION FOR AMMUNITION
SELLERS?
PURPOSE
The purpose of this bill is to (1) provide that it would be a
misdemeanor for a person who is enjoined from engaging in
activity pursuant to a nuisance injunction issued against that
person as a member of a criminal street gang, as defined, to
possess any firearm; (2) provide that handgun ammunition may be
purchased over the Internet or through other means of remote
ordering if a handgun ammunition vendor, as defined, in
California initially receives the ammunition and processes the
transfer in compliance with specified requirements; (3) require
that copies of handgun ammunition sales records be transmitted
to the county sheriff or chief of police if required by local
law; (4 ) prohibit, except as specified, vendors providing
ammunition sales information to any third party without the
written consent of the purchaser or transferee; (5) require that
records of ammunition sales, as specified, that are no longer
required to be maintained shall be destroyed in a manner that
protects the privacy of the purchaser or transferee who is the
subject of the record; (6) provide that law enforcement
officials authorized to inspect ammunition sales records may
copy those records for investigatory or enforcement purposes;
and (7) require vendors to provide written notice to the local
police chief or county sheriff of the vendor's intent to conduct
business in the jurisdiction, and obtain any regulatory or
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business license required by the jurisdiction for ammunition
sellers.
Gang Statutes Generally - Definition of a Street Gang,
Penalties
Existing law defines a "criminal street gang" as any ongoing
organization, association, or group of three or more persons .
. . having as one of its primary activities the commission of
one or more enumerated offenses, having a common name or
identifying sign or symbol, and whose members engage in a
pattern of gang activity. (Pen. Code § 186.22, subd. (f).)
Existing law provides that any person who actively participates
in a criminal street gang with knowledge that its members engage
in or have engaged in a pattern of criminal gang activity and
who promotes, furthers, or assists in any felonious conduct by
members of the gang, is guilty of an alternate
felony-misdemeanor. (Pen. Code § 186.22, subd. (a).) Existing
law does not specifically define what constitutes being a gang
member.
Existing law provides that any person who is convicted of a
felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific
intent to promote, further, or assist in criminal conduct by
gang members, shall receive a specified sentence enhancement or
specified life term. These penalties range from a triad of 2,
3, or 4 years, to a life term with a minimum term of 15 years.
(Pen. Code § 186.22, subd. (b).)
Existing law provides that any person who is convicted of
either a felony or misdemeanor that is committed for the
benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members,
shall be punished by imprisonment in the county jail for up to
one year, or by 1, 2, or 3 years in state prison. (Pen. Code §
186.22, subd. (d).)
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Existing law defines "pattern of criminal gang activity" as the
commission of two or more of enumerated offenses, provided at
least one of the offenses occurred after the effective date of
the statute and the last of the offenses occurred within three
years after a prior offense, and the offenses were committed on
separate occasions, or by two or more persons. (Pen. Code §
186.22, subd. (e).) These offenses need not result in a
conviction, although prosecutors typically prove the pattern
through prior convictions.
Existing law provides that every person who carries a loaded or
unloaded firearm on his or her person, or in a vehicle, during
the commission or attempted commission of any street gang
crimes, as defined, shall, upon conviction of the felony or
attempted felony, be punished by an additional term of
imprisonment in the state prison for one, two, or three years in
the court's discretion. The court shall impose the middle term
unless there are circumstances in aggravation or mitigation. The
court shall state the reasons for its enhancement choice on the
record at the time of sentence. (Penal Code § 12021.5(a).)
Existing law provides that every person who carries a loaded or
unloaded firearm together with a detachable shotgun magazine, a
detachable pistol magazine, a detachable magazine, or a
belt-feeding device on his or her person, or in a vehicle,
during the commission or attempted commission of any street gang
crimes, as defined, shall, upon conviction of the felony or
attempted felony, be punished by an additional term of
imprisonment in the state prison for two, three, or four years
in the court's discretion. The court shall impose the middle
term unless there are circumstances in aggravation or
mitigation. The court shall state the reasons for its
enhancement choice on the record at the time of sentence.
(Penal Code § 12021.5(b).)
Existing Law on Nuisances Generally as Applied to Gangs
Existing California Supreme Court decisions state that the
"touchstone of the public nuisance doctrine" is the "notion of
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the community and its collective values." (People ex. rel Gallo
v. Acuna (1997) 14 Cal.4th 1090, 1109.)
Existing decisional law holds that individual gang members can
be enjoined from creating a nuisance through such acts as
intimidating the public and associating in public view with
other known gang members in a specified geographic area.
(People ex. rel Gallo v. Acuna, supra, 14 Cal.4th 1090, 1110,
1117.)
Existing decisional law provides "ÝF]or the purposes of a gang
injunction an active gang member . . . participates in or acts
in concert with an ongoing . . . association or group of three
or more persons, whether formal or informal, having as one of
its primary activities the commission of acts constituting the
enjoined public nuisance, having a common name or . . . symbol
and whose members individually or collectively engage in the
acts constituting the enjoined public nuisance. The
participation or acting in concert must be more than nominal,
passive, inactive or purely technical." (People v. Englebrecht
(2001) 88 Cal.App.4th 1236, 1261, italics added.)
Existing criminal law defines a nuisance as anything injurious
to health, indecent, or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with
the enjoyment of life or property by a community, neighborhood,
or considerable number of persons. A nuisance is also anything
that obstructs the passage or use of any navigable waters, or
any public place or highway. Maintaining a nuisance is a
misdemeanor. (Pen. Code §§ 370, 372.)
Existing Law Concerning Gang Injunctions and Related Damage
Claims
Existing law provides that any building or place used by members
of a criminal street gang for committing specified felony
offenses is a nuisance subject to an injunction. (Pen. Code §
186.22a.) The action for injunction may be brought by the
county district attorney in the name of the people, by the city
attorney, or any private person. (Pen. Code § 186.22a, subd.
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(a).)
Existing law , with specified exceptions, provides that the
controlled substance nuisance abatement law (Health & Saf. Code
§ 11570 et seq) shall apply to gang nuisance actions brought
under subdivision (a) of Penal Code Section 186.22a. (Pen. Code
§ 186.22a, subd. (b).) In controlled substance injunctions, the
court can close a building or order the owner to pay damages and
a civil penalty. (Health & Saf. Code § 115811.)
Existing law provides that anything which is injurious to
health, including, but not limited to, the illegal sale of
controlled substances, or is indecent or offensive to the
senses, or an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property, or
unlawfully obstructs the free passage or use, in the customary
manner, of any navigable lake, or river, bay, stream, canal, or
basin, or any public park, square, street, or highway, is a
nuisance. (Civil Code § 3479.)
Existing law provides that the Attorney General, city or
district attorney, upon issuance of an injunction pursuant to
Penal Code Section 186.22a to abate gang activity constituting a
nuisance, or pursuant to the general nuisance abatement
provisions in Civil Code Section 3479, may seek damages on
behalf of the community injured by the nuisance. The recovered
damages shall be deposited into a fund for payment to the
governing body in whose political subdivision the affected
community is located, for use solely for the benefit of the
community that has been injured by the nuisance. (Pen. Code §
186.22a.)
Existing law provides that the facts establishing a gang
nuisance, and thus the facts authorizing a gang injunction, must
be proved by clear and convincing evidence. (People v.
Englebrecht (2001) 88 Cal.App.4th 1236.)
Existing law provides that damages for a gang nuisance "shall be
paid by or collected from assets of the criminal street gang or
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its members." However, "only members of the criminal street
gang who created, maintained or contributed to the creation or
maintenance of the nuisance shall be personally liable to
payment of the damages awarded." (Pen. Code § 186.22a, subd.
(c).)
Existing Law Concerning Ammunition Sales
Existing 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.
Blanks. (Penal Code § 16650.)<1>
Existing 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).)
Existing law imposes several requirements on handgun ammunition
sellers, including that they obtain and record the
identification of purchasers and make that information available
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<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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to law enforcement upon request. A violation of these
record-keeping requirements is a misdemeanor, punishable by up
to six months in county jail, a fine of up to $1,000, or both.
(Penal Code §§ 30352, et seq.)
This bill would provide that a person who is enjoined from
engaging in activity pursuant to a nuisance injunction issued
against that person as a member of a criminal street gang, as
defined, may not own, possess, or have under his or her custody
or control, any firearm. A violation would be a misdemeanor,
punishable by up to six months in county jail, a fine of up to
$1,000, or both.
This bill would provide that handgun ammunition may be purchased
over the Internet or through other means of remote ordering if a
handgun ammunition vendor, as defined, in California initially
receives the ammunition and processes the transfer in compliance
with specified requirements. A violation would be a
misdemeanor, punishable by up to 6 months in jail, a fine of up
to $1,000, or both.
This bill would require that copies of required ammunition sales
records be transmitted to the county sheriff or chief of police
if required by local law. A violation would be a misdemeanor,
punishable by up to six months in county jail, a fine of up to
$1,000, or both.
This bill provides that, commencing February 1, 2012, except for
authorized inspections of these records, no vendor shall provide
the records required to be maintained by ammunition vendors to
any third party without the written consent of the purchaser or
transferee. A violation would be a misdemeanor, punishable by
up to six months in county jail, a fine of up to $1,000, or
both.
This bill provides that any records required to be maintained by
ammunition vendors that are no longer required to be maintained
shall be destroyed in a manner that protects the privacy of the
purchaser or transferee who is the subject of the record. A
violation would be a misdemeanor, punishable by up to six months
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in county jail, a fine of up to $1,000, or both.
This bill provides that law enforcement officials authorized to
inspect ammunition sales records may copy those records for
investigatory or enforcement purposes.
This bill would require that, commencing February 1, 2012, a
handgun ammunition vendor must provide written notice to the
local police chief, or if the vendor is in an unincorporated
area, to the county sheriff, of the vendor's intent to conduct
business in the jurisdiction, and shall obtain any regulatory or
business licenses required by the jurisdiction for ammunition
sellers. A violation would be a misdemeanor, punishable by up
to six months in county jail, a fine of up to $1,000, or both.
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.
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
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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 not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
This bill extends the prohibition of possession,
custody, or control of any ammunition codified under
AB 962 and prohibits anyone under a gang injunction to
possess, or control, any firearm.
Furthermore, due to passage of AB 962, handgun
ammunition vendors are now required to obtain a
thumbprint and other information from ammunition
purchasers. This bill would require the information
described above in connection with the transfer of
handgun ammunition be legibly or electronically
recorded. Given this collection of information, no
ammunition vendor shall provide the information
described above to any 3rd party without the written
consent of the purchaser or transferee.
2. Handgun Ammunition Sales: Privacy Protections and Internet
Sales
AB 962 (De León) (Chap. 628, Stats. of 2009) created, among
others, the following requirements regarding handgun ammunition
sales:
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Commencing February 1, 2011, handgun ammunition vendors
must obtain a thumbprint and other information from
ammunition purchasers, as specified. The information
obtained from the purchaser is required to be maintained on
the premises of the vendor for a period of not less than
five years from the date of the recorded transfer. These
records are subject to inspection by specified law
enforcement officials for specified purposes.
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 of the
purchaser or other transferee.
This bill would provide the following in relation to handgun
ammunition sales:
Require that law enforcement officials be permitted to
make copies of the ammunition sales records that AB 962
required they be allowed to inspect.
Clarify provisions of AB 962 with regard to purchasing
ammunition over the Internet or from a remote seller. This
bill provides that handgun ammunition may be purchased over
the Internet or through other means of remote ordering if a
handgun ammunition vendor, as defined, in California
initially receives the ammunition and processes the
transfer in compliance with specified requirements.
Require that copies of handgun ammunition sales records
shall be transmitted to the county sheriff or chief of
police if required by local law.
Prohibit ammunition vendors from providing ammunition
sales information, as specified, to any third party without
the written consent of the purchaser or transferee.
Require that records of ammunition sales, as specified,
that are no longer required to be maintained be destroyed
in a manner that protects the privacy of the purchaser or
transferee who is the subject of the record.
Require ammunition vendors to provide written notice to
the local police chief, or if the vendor is in an
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unincorporated area, to the county sheriff, of the vendor's
intent to conduct business in the jurisdiction, and shall
obtain any regulatory or business license required by the
jurisdiction for ammunition sellers.
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 record-keeping
requirements 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.)
SB 124 (De León), heard by this Committee on April 12, 2011,
addresses the vagueness issues by rewording the definition of
handgun ammunition.
WOULD THESE PROVISIONS PROVIDE ADEQUATE PRIVACY PROTECTION FOR
AMMUNITION BUYERS?
WILL THESE REQUIREMENTS HELP IDENTIFY SALES OF AMMUNITION TO
PROHIBITED PERSONS?
DO THESE PROVISIONS PLACE UNDUE BURDENS ON AMMUNITION SELLERS OR
BUYERS?
3. Gang Injunctions Generally
Gang injunctions have been issued by courts in Los Angeles on
numerous occasions in the relatively recent past. A gang
injunction in San Jose was the subject of a landmark California
Supreme Court case - People ex rel Gallo v. Acuna (1997) 14
Cal.4th 1090. Other cities in California have pursued and
obtained gang injunctions.
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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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Injunctions against gangs can be obtained under three statutory
provisions: Civil Code Section 3479 (the general nuisance
abatement law), Health and Safety Code Section 11570 (drug house
abatement) and Penal Code Section 186.22a (gang injunctions
specifically). Prosecutors often rely on Civil Code Section
3479 because that section has the broadest application. Civil
Code Section 3479 was the basis for the injunction in the Gallo
v. Acuna matter.
4. Gang Membership and the Effect of This Bill
This bill would prohibit firearm ownership by anyone enjoined by
a nuisance injunction as a "member of a criminal street gang."
What constitutes membership in a gang is not defined in
statutory law. Rather, what constitutes a gang is defined in
law: A gang is an association of three or more persons. It has
a symbol or name and has committed specified offenses as a
primary activity. (Pen. Code § 186.22, subd. (f).)
Contrary to general assumptions, being a gang member is not a
crime. Rather, it is a crime to actively participate in a
criminal street gang. Further, a defendant is subject to
enhanced penalties for crimes committed for the benefit of a
gang.<3> (Pen. Code § 186.22, subds. (a) and (b).)
How law enforcement agencies identify or "validate" a person as
a member of a gang is controversial. Prosecutors typically try
to prove a defendant's gang membership through law enforcement
expert witnesses. Police officers, often special gang
intelligence units, make contact with young men in gang areas.
The officers ask the young men if they belong to gangs.
Affirmative responses are typically recorded on cards and
included in gang data bases. Officers may note whether the
young man has visible tattoos indicating gang membership. Gang
intelligence officers also collect information from other
officers, citizens and other gang members. Gang papers and
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<3> The elements of gang enhancements and special gang penalty
provisions are complex. A complete understanding of gang
penalties are not necessary for the discussion on this bill.
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other items may be seized during arrests or photographed in
contacts with alleged gang members. Prosecutors may also
introduce court verdicts that a crime was gang-related to prove
that a particular defendant is a member of a gang. A prosecutor
may display tattoos of the defendant to the jury, or may display
tattoos of persons with whom the defendant was arrested. (See,
generally, People v. Gardeley (1996) 14 Cal.4th 605 and In re
Nathaniel C. (1991) 228 Cal.App.990 for representative examples
of gang evidence in criminal trials.)
Separate dissenting opinions by both Justice Mosk and Justice
Chin in Gallo criticized how gang members were identified and
"validated" in that San Jose injunction. Justice Mosk noted
that San Jose validated defendants as gang members through a
process that was substantially looser than the Penal Code
definition of active participation in a gang. Validation
included admission of membership, statements of informants,
wearing of gang-related clothing, et cetera. Justice Mosk noted
that using such criteria, the Los Angeles County Sheriff has
estimated that approximately 50% of African-American males
between the ages of 21-24 are gang members. (People ex rel
Gallo v. Acuna, supra, pp. 1132-1133, fn. 1, dissenting op. of
Mosk, J.) Justice Chin noted, "Under these criteria, the City
would consider a person to be a member of a Sureo gang if, for
example, that person on two occasions wore baggy pants, blue
clothes, or 'Los Angeles Raiders' garments." (Id. at 1130.)
Nuisance injunctions are an equitable remedy which may be
fashioned by a judge as necessary to address the specific nature
of the public nuisance involved in a particular case.
Injunctions ordered to abate a public nuisance may become
permanent. To be permanently enjoined from engaging in activity
found to create a public nuisance does not require that the
enjoined party has committed any criminal offense. Therefore,
the effect of this bill could be to prohibit people who may not
have committed any crime from firearm ownership for life. This
prohibition would appear to remain even if the enjoined party
moved away from the area and had no further contact with any
other enjoined party for years. This prohibition could also
prevent that person from ever holding any type of employment
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that requires possession of a firearm, such as police officer or
security guard. Because gun ownership is, to some degree, a
Constitutionally protected right (see District of Columbia v.
Heller, 554 U.S. 570 (2008)), this provision of SB 427 could
violate due process guarantees.
In the Acuna case, discussed above, the California Supreme Court
found the gang nuisance injunction imposed there did not violate
the due process rights of the enjoined parties in part due to
the fact that it only restricted the parties' behavior within a
small geographical area. (People ex rel. Gallo v. Acuna, 14
Cal. 4th at 1122.) Because the potential lifetime ban on
firearm ownership would not be limited to any specified
geographical area, it may impinge on Constitutionally protected
rights beyond the extent to which the Court has found
permissible. It would also apply to all such nuisance
injunctions, regardless of the nature of the nuisance the
injunction was imposed to abate. In an appropriate case, it
appears a court could impose a firearms ban under current law
provided that the ban was narrowly tailored to address the
specific nuisance at issue.
The difficulty involved in getting oneself removed from a
gang-related nuisance injunction is
the subject of another bill which the Committee approved earlier
this session, SB 296 (Wright). SB 296 would establish a process
whereby a person subject to a gang injunction could petition for
an exemption or relief from the injunction in whole or in part
by establishing that they are not a gang member. SB 296 is
currently pending in the Senate Appropriations Committee.
SHOULD BEING NAMED IN A GANG-RELATED NUISANCE INJUNCTION BE
SUFFICIENT GROUNDS TO PROHIBIT OWNERSHIP OF A FIREARM
POTENTIALLY FOR LIFE?
5. Argument in Support
The Legal Community Against Violence states:
SB 427, similar to last year's AB 2358, improves local
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law enforcement's ability to use handgun ammunition
sales records to prosecute prohibited purchases by
requiring vendors to:
Notify local law enforcement of their intent to
conduct business within the jurisdiction;
Obtain any regulatory or business license
required for ammunition sellers by the jurisdiction;
and
Transmit copies of sale records to local law
enforcement if required by local law.
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SB 427 also confirms that handgun ammunition may be
sold via mail order or the Internet, as long as it is
sent to a vendor who can complete the sale in a
face-to-face transaction with the purchaser. Finally,
the bill clarifies that no handgun ammunition vendor
may provide any information from sales records to any
third party without the purchaser's written consent,
and requires the destruction of any sales records that
the vendor is no longer required to maintain in a
manner that protects the purchaser's privacy.
In his signing statement for AB 962, Governor
Schwarzenegger concluded, "Assembly Bill 962
reasonably regulates access to ammunition and improves
public safety without placing undue burdens on
consumers." SB 427 enhances the effectiveness of this
law while protecting the privacy of handgun ammunition
purchasers.
6. Arguments in Opposition
The California Association of Firearms Retailers states:
The bill would necessitate that handgun retailers
expend considerable time and funds to transmit
non-existent daily records of handgun ammunition sales
to local law enforcement officials if so requested by
local ordinance.
The requirement to keep a registry of handgun
ammunition sales and handgun ammunition purchasers was
created by AB 962 (Statutes of 2009). AB 962 has
since been determined to be unconstitutional and is
thus not operative. Accordingly, the registry of
handgun ammunition sales that SB 427 would require be
transmitted to local law enforcement does not exist.
It would be operationally impossible for ammunition
vendors to comply with
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SB 427 (De León)
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SB 427.
The majority of firearms retailers are small
businesses, and the new costs of complying with SB
427, if it were possible, would be a major expense and
time consuming burden.
The provisions of SB 427, like those of its
inoperative predecessor, could cause affected small
businesses in California to decline and with them a
loss of jobs. The state's business climate has
suffered a great deal in recent years. This bill
would only make matters worse.
CAFR believes that if enacted, SB 427 like its
predecessor (AB 962) would not prove to be cost
effective for law enforcement in solving crimes. It
would, however, prove to be very detrimental to the
operation of the affected small businesses in
California. It would cost the state jobs and tax
revenue.
The American Civil Liberties Union states:
We have expressed serious concern about the abuses
that flow from the use of civil gang injunctions.
These injunctions allow law enforcement to apply
special rules to a particular group of people that
they convince a court have caused such a nuisance that
each of those rules is deserved. The injunctions
typically ban both illegal activity and otherwise
lawful conduct. They have the effect of making
protected conduct criminally punishable.
SB 427 raises significant due process issues by
allowing prosecutors to impose a rule that they
haven't proven to a court is necessary. Gang
injunctions are remedies that are supposed to be
tailored by a judge to the nuisance proved at trial -
often proved by default judgment. Due process
SB 427 (De León)
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requires that injunctions be no more burdensome to the
defendant than necessary to provide complete relief to
the plaintiff, particularly where fundamental rights
are at issue. If the evidence doesn't support a flat
ban on gun possession, it should not be imposed
legislatively.
Some jurisdictions are starting to use "gang
injunctions" for criminal groups such as those engaged
in tagging that haven't shown any tendency to violence
that would warrant a firearm restriction, much less a
statewide one. As it stands, if prosecutors want a no
weapons clause - there is nothing stopping a judge
from ordering it - if the evidence proves a need at
trial. If someone on an injunction is caught with a
weapon, they are already violating the injunction, and
face contempt violations.
Given the number of individuals in the state of
California who have been placed on gang injunctions
with no hearing, often with little evidence that they
are actually gang members, the bill unjustifiably
risks criminalizing people twice. We urge you to
delete section 1 of the bill.
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