(1)Existing law generally prohibits the possession or transfer of assault weapons, except for the sale, purchase, importation, or possession of assault weapons by specified individuals, including law enforcement officers. Under existing law, assault weapon means, among other things, a semiautomatic centerfire rifle or a semiautomatic pistol that has the capacity to accept a detachable magazine and has any one of several specified attributes, including, for rifles, a thumbhole stock, and for pistols, a 2nd handgrip.

This bill would revise this definition of assault weapon to mean a semiautomatic centerfire rifle or a semiautomatic pistol that does not have a fixed magazine but has any one of those specified attributes. The bill would also define fixed magazine to mean an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action.

By expanding the definition of an existing crime, the bill would impose a state-mandated local program.

(2)Existing law makes any person who, within this state, possesses an assault weapon, except as otherwise provided, guilty of a misdemeanor or a felony.

This bill would exempt from punishment under that prohibition a person who possessed an assault weapon prior to January 1, 2017, if specified requirements are met.

(3)Existing law requires that, with specified exceptions, any person who, prior to January 1, 2001, lawfully possessed an assault weapon prior to the date it was defined as an assault weapon, and which was not specified as an assault weapon at the time of lawful possession, register the firearm with the Department of Justice. Existing law permits the Department of Justice to charge a fee for registration of up to $20 per person but not to exceed the actual processing costs of the department. Existing law, after the department establishes fees sufficient to reimburse the department for processing costs, requires fees charged to increase at a rate not to exceed the legislatively approved annual cost-of-living adjustment for the departments budget or as otherwise increased through the Budget Act. Existing law requires those fees to be deposited into the Dealers Record of Sale Special Account. Existing law, the Administrative Procedure Act, establishes the requirements for the adoption, publication, review, and implementation of regulations by state agencies.

This bill would require that any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as defined, and including those weapons with an ammunition feeding device that can be removed readily from the firearm with the use of a tool, register the firearm with the Department of Justice before January 1, 2018, but not before the effective date of specified regulations. The bill would permit the department to increase the $20 registration fee as long as it does not exceed the reasonable processing costs of the department. The bill would also require registrations to be submitted electronically via the Internet utilizing a public-facing application made available by the department. The bill would require the registration to contain specified information, including, but not limited to, a description of the firearm that identifies it uniquely and specified information about the registrant. The bill would permit the department to charge a fee of up to $15 per person for registration through the Internet, not to exceed the reasonable processing costs of the department to be paid and deposited, as specified, for purposes of the registration program. The bill would require the department to adopt regulations for the purpose of implementing those provisions and would exempt those regulations from the Administrative Procedure Act. The bill would also make technical and conforming changes.

(4)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law generally prohibits the possession or transfer of assault weapons, except for the sale, purchase, importation, or possession of assault weapons by specified individuals, including law enforcement officers. Under existing law, assault weapon means, among other things, a semiautomatic, semiautomatic centerfire rifle or a semiautomatic pistol that has the capacity to accept a detachable magazine and has any one of specified attributes, including, for rifles, a thumbhole stock, and for pistols, a second handgrip.

This bill would define detachable magazine to mean an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily from the firearm with the use of a tool.

By expanding the definition of an existing crime, the bill would impose a state-mandated local program.

(2)Existing law requires that any person who, within this state, possesses an assault weapon, except as otherwise provided, be punished as a felony or for a period not to exceed one year in a county jail.

This bill would exempt from punishment under that provision a person who initially possessed an assault weapon prior to January 1, 2017, and until July 1, 2018, if specified requirements are met.

(3)Existing law requires that, with specified exceptions, any person who, prior to January 1, 2001, lawfully possessed an assault weapon prior to the date it was defined as an assault weapon, and which was not specified as an assault weapon at the time of lawful possession, register the firearm with the Department of Justice. Existing law permits the department to charge a fee for registration of up to $20 per person but not to exceed the actual processing costs of the department. Existing law, after the department establishes fees sufficient to reimburse the department for processing costs, requires fees charged to increase at a rate not to exceed the legislatively approved annual cost-of-living adjustment for the departments budget or as otherwise increased through the Budget Act. Existing law requires those fees to be deposited into the Dealers Record of Sale Special Account. Existing law, the Administrative Procedure Act, establishes the requirements for the adoption, publication, review, and implementation of regulations by state agencies.

This bill would require that any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon with an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including a weapon with an ammunition feeding device that can be removed readily from the firearm with the use of a tool, to register the firearm with the department before July 1, 2018, but not before the effective date of specified regulations. The bill would permit the department to charge a registration fee not to exceed the reasonable processing costs of the department. This bill would also require registrations to be submitted electronically via the Internet utilizing a public-facing application made available by the department. This bill would require the registration to contain specified information, including, but not limited to, a description of the firearm that identifies it uniquely and specified information about the registrant. The bill would require the department to adopt regulations for the purpose of implementing these provisions and would exempt those regulations from the Administrative Procedure Act. This bill would also make technical and conforming changes.

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law generally prohibits the possession or transfer of assault weapons, except for the sale, purchase, importation, or possession of assault weapons by specified individuals, including law enforcement officers. Under existing law, assault weapon means, among other things, a semiautomatic, centerfire rifle or a semiautomatic pistol that has the capacity to accept a detachable magazine and has any one of specified attributes, including, for rifles, a thumbhole stock, and for pistols, a second handgrip.

This bill would define detachable magazine to mean an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily from the firearm with the use of a tool.

By expanding the definition of an existing crime, the bill would impose a state-mandated local program.

(2)Existing law requires that any person who, within this state, possesses an assault weapon, except as otherwise provided, be punished as a felony or for a period not to exceed one year in a county jail.

This bill would exempt from punishment under that provision a person who initially possessed an assault weapon prior to January 1, 2017, and until July 1, 2018, if specified requirements are met.

(3)Existing law requires that, with specified exceptions, any person who, prior to January 1, 2001, lawfully possessed an assault weapon prior to the date it was defined as an assault weapon, and which was not specified as an assault weapon at the time of lawful possession, register the firearm with the Department of Justice. Existing law permits the department to charge a fee for registration of up to $20 per person but not to exceed the actual processing costs of the department. Existing law, after the department establishes fees sufficient to reimburse the department for processing costs, requires fees charged to increase at a rate not to exceed the legislatively approved annual cost-of-living adjustment for the departments budget or as otherwise increased through the Budget Act. Existing law requires those fees to be deposited into the Dealers Record of Sale Special Account. Existing law, the Administrative Procedure Act, establishes the requirements for the adoption, publication, review, and implementation of regulations by state agencies.

This bill would require that any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon with an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including a weapon with an ammunition feeding device that can be removed readily from the firearm with the use of a tool, to register the firearm with the department before July 1, 2018, but not before the effective date of specified regulations. The bill would permit the department to charge a registration fee not to exceed the reasonable processing costs of the department. This bill would also require registrations to be submitted electronically via the Internet utilizing a public-facing application made available by the department. This bill would require the registration to contain specified information, including, but not limited to, a description of the firearm that identifies it uniquely and specified information about the registrant. The bill would require the department to adopt regulations for the purpose of implementing these provisions and would exempt those regulations from the Administrative Procedure Act. This bill would also make technical and conforming changes.

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

 THIRD READING  

Bill No: AB 1664

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/14/16

AYES: Hancock, Glazer, Leno, Liu, Monning

NOES: Anderson, Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 6/20/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 43-31, 6/1/16 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill (1) amends the definition of assault weapon to refer to a firearm that has one of several specified military-style features and does not have a “fixed magazine” rather than a firearm that has one of those features and “has the capacity to accept a detachable magazine;” (2) defines “fixed magazine” as “an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action;” (3) provides that any person who was eligible to register an assault weapon and lawfully possessed such a weapon prior to January 1, 2017, would be exempt from penalties, if the person registers the weapon by January 1, 2018; (4) requires that any person who from January 1, 2001, to December 31, 2016, lawfully possessed an assault weapon that does not have a fixed magazine, as defined, register the firearm before January 1, 2018, with the Department of Justice (DOJ), as specified; (5) provides that this registration be submitted online, as specified; (6) authorizes DOJ to charge a fee of up to $15 per person but not to exceed the reasonable processing costs of the DOJ for this registration; and (7) requires DOJ to establish procedures for the purpose of carrying out this registration requirement and to specify that these procedures shall be exempt from the Administrative Procedure Act.

ANALYSIS:

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 § 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 § 30505.)
3. Defines “assault weapon” as one of certain specified rifles and pistols (Penal Code § 30510) or as:
   1. A semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and has at least one of the following: a pistol grip that protrudes conspicuously beneath the action of the weapon; a thumbhole stock; a vertical handgrip; a folding or telescoping stock; a grenade launcher or flare launcher; a flash suppressor; or, a forward handgrip.
   2. A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds;
   3. A semiautomatic, centerfire rifle that has an overall length of less than 30 inches;
   4. A semiautomatic pistol that has the capacity to accept a detachable magazine and has at least one of the following: a threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer; a second handgrip; a shroud that is attached to, or partially or completely encircles, the barrel that allows the bearer to fire the weapon without burning his or her hand, excepting a slide that encloses the barrel; or, the capacity to accept a detachable magazine at some location outside of the pistol grip;
   5. A semiautomatic pistol with a fixed magazine that has the capacity to accept more than 10 rounds;
   6. A semiautomatic shotgun that has both of the following: a folding or telescoping stock; and a pistol grip that protrudes conspicuously beneath the action of the weapon, thumbhole stock, or vertical handgrip;
   7. A semiautomatic shotgun that has the ability to accept a detachable magazine; and
   8. Any shotgun that has a revolving cylinder. (Penal Code § 30515.)
4. Defines a “detachable magazine” as any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool. Ammunition feeding device includes any belted or linked ammunition, but does not include clips, en bloc clips, or stripper clips that load cartridges into the magazine. (11 Cal. Code of Regs. § 5469.)
5. Provides that unlawful possession of an assault weapon is an alternate felony-misdemeanor and shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 (16 months, two or three years). Notwithstanding the above, a first violation of these provisions is punishable by a fine not exceeding $500 if the person was found in possession of no more than two firearms and certain specified conditions are met. (Penal Code § 30605.)
6. Provides that any person who within California manufactures, imports into California, offers for sale, or who gives or lends any assault weapon with specified exceptions is guilty of a felony punishable by imprisonment in state prison for four, six, or eight years. (Penal Code § 30600.)
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 § 30625.)
8. Requires that any person who lawfully possesses an assault weapon, as specified, must register the firearm with DOJ, as specified. (Penal Code § 30900 et. seq.)

This bill:

1. Amends the definition of assault weapon to refer to a firearm that has one of several specified features and does not have a “fixed magazine” rather than a firearm with one of those features and the “capacity to accept a detachable magazine.”
2. Defines “fixed magazine” as “an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action.”
3. Provides that, notwithstanding the new definition of assault weapon contained in this bill, any person who possessed an assault weapon prior to January 1, 2017, is exempt from punishment pursuant to Section 30605, if all of the following are applicable:
   1. Prior to January 1, 2017, the person was eligible to register that assault weapon pursuant to subdivision (c) of Section 30900;
   2. The person lawfully possessed that assault weapon on January 1, 2017; and
   3. The person registers the assault weapon by January 1, 2018, a specified.
4. Provides that any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as defined in Section 30515, including those weapons with an ammunition feeding device that can be removed readily from the firearm with the use of a tool, shall register the firearm before January 1, 2018, with the DOJ pursuant to those procedures that the DOJ may establish.
   1. Registrations shall be submitted electronically via the Internet utilizing a public-facing application made available by the DOJ.
   2. The registration shall contain a description of the firearm that identifies it uniquely, including all identification marks, the date the firearm was acquired, the name and address of the individual from whom, or business from which, the firearm was acquired, as well as the registrant’s full name, address, telephone number, date of birth, sex, height, weight, eye color, hair color, and California driver’s license number or California identification card number.
   3. The DOJ may charge a fee of up to fifteen dollars ($15) per person but not to exceed the reasonable processing costs of the DOJ. The fee shall be paid by debit or credit card at the time that the electronic registration is submitted to the DOJ. The fee shall be deposited in the Dealers’ Record of Sale Special Account.
   4. The DOJ shall establish procedures for the purpose of carrying out this subdivision. These procedures shall be exempt from the Administrative Procedure Act.

Background

As the Court of Appeal explained, in 1999, the Assault Weapons ban was amended to expand the definition of an assault weapon to include a definition by the generic characteristics, specifically, to include a “semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine” in addition to one of several specified characteristics, such as a grenade launcher or flash suppressor. (SB 23, Perata, Chapter 129, Statutes of 1999, § 7 et seq.) SB 23’s generic definition of an assault weapon was intended to close the loophole in the law created by its definition of assault weapons as only those specified by make and model. Regulations promulgated after the enactment of SB 23 define a detachable magazine as “any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool.” (11 CFR § 5469(a).) In response to this definition, a new feature has been developed by firearms manufacturers to make semi-automatic rifles “California compliant,” the bullet button.

This bill amends the definition of assault weapon to a firearm that has one of several specified features and does not have a “fixed magazine,” rather than a firearm that has one of those features and “has the capacity to accept a detachable magazine.” It also defines, “fixed magazine” as “an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action.” So, a semiautomatic rifle could have a detachable magazine, as long as it does not also have any features or it could have the features as long as it had a fixed magazine. The purpose of this change is to clarify that equipping a weapon with a “bullet button” magazine release does not take that weapon outside the definition of an assault weapon.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Registration process: Estimated costs to the DOJ of $1.8 million in FY 2016-17, $1.5 million in FY 2017-18, and $40,000 (DROS Account*/General Fund) annually thereafter, to be offset in whole or in part by fees collected from registrants once fully implemented. Staff notes the DROS Account is structurally imbalanced, and current revenues are insufficient to cover the costs of this bill. As a result, a General Fund appropriation may be required to enable completion of the activities within the timelines prescribed and to support the ongoing costs of this measure.
• State prisons: Potentially significant increase in annual state incarceration costs (General Fund) to the extent the revised definition of “assault weapon” results in additional firearms violations. For every 10 new commitments to state prison (five each for manufacturing and possession), additional annual costs of $290,000, compounding to $1.2 million for overlapping sentences assuming the middle term of the triads for violations of both manufacturing and possession.
• Local agencies: Potential future increase in local enforcement and incarceration costs for unlawful possession or sale/manufacture of assault weapons.
• Firearms sales: Potentially significant near-term loss of sales tax revenue (General Fund) to the extent the revised definition of “assault weapon” results in a reduction in sales of firearms newly prohibited under the bill’s provisions. Future year impacts could be somewhat mitigated to the extent consumers shift to purchases of alternative firearms.
• APPS enforcement: Unknown, potential increase in DOJ enforcement costs (Special Fund*) to the extent additional persons are placed on the armed prohibited persons list resulting from the provisions of this measure.

* Dealers’ Record of Sale (DROS) Account – Senate Appropriations staff notes the DROS Account is structurally imbalanced, with an estimated reserve balance of less than $1 million by year-end FY 2016-17. Current revenues to the DROS Account are insufficient to cover the costs of this bill in conjunction with the numerous other legislative measures requiring funding from the DROS Account, should they be enacted. As a result, an appropriation from an alternate fund source, potentially the General Fund, may be required to support the costs of this measure.

SUPPORT: (Verified 6/22/16)

All Saints Church

California Chapters of the Brady Campaign to Prevent Gun Violence

California Chapter of the American College of Emergency Physicians

City of Long Beach

City of Santa Monica

Cleveland School Remembers

Coalition Against Gun Violence, a Santa Barbara County Coalition

Laguna Woods Democratic Club

Law Center to Prevent Gun Violence

Physicians for Social Responsibility, San Francisco Bay Area Chapter

OPPOSITION: (Verified 6/22/16)

California Sportsman's Lobby

California State Sheriffs' Association

California Waterfowl

California Rifle and Pistol Association

Crossroads of the West Gun Shows

Firearms Policy Coalition

Gun Owners of California

National Rifle Association of America

National Shooting Sports Foundation

Outdoor Sportsmen's Coalition of California

Safari Club International

ARGUMENTS IN SUPPORT: The California Chapters of the Brady Campaign to Prevent Gun Violence state:

Unfortunately, firearm manufactures have found ways to enable the dangerous quick reloading that the California’s assault weapons law sought to ban. For example, the “bullet button” is a feature that enables the firearm owner to use a bullet or other pointed object to quickly detach and replace the weapon’s ammunition magazine. Because the use of a bullet or other “tool” is required to remove the magazine, the sale of bullet button-equipped guns has been allowed, even though the California assault weapons law prohibits weapons that have “the capacity to accept a detachable magazine.” In fact, in the first eleven months after the retention of records for long guns became operational (January 1, 2014 to December 2, 2014), there were 50,574 sales or transfers of military-style weapons with a bullet-button or other similar feature that allows for the rapid exchange of the magazine.

The California Brady Campaign Chapters support clarifying and strengthening California’s assault weapons law as proposed by AB 1664. The bill redefines detachable magazine as an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily from the firearm with the use of a tool. A weapon that has a detachable magazine, as defined, and any one of the military-style features would be unlawful.

AB 1664 would require any person who lawfully possessed from January 1, 2001 to December 31, 2016 an assault weapon as defined in the bill to register the weapon before July 1, 2018 with the California Department of Justice. This record would enable law enforcement to disarm the person through the Armed Prohibited Persons System program if the person were to become prohibited from possessing firearms and assist law enforcement in the tracing of crime guns.

ARGUMENTS IN OPPOSITION: The California Sheriffs’ Association states:

California has some of the strictest gun laws in the nation, yet gun violence continues to plague our state. We must continue to take steps to keep guns out of the hands of criminals and other prohibited persons. That said, this measure would make little progress toward that goal. Instead, this measure would ban the sale of many commonly owned and sold rifles that do not fall under the current regulatory scheme. In doing so, AB 1664 would likely result in the allocation of law enforcement resources to regulating the gun-owning practices of otherwise law-abiding persons at the expense of efforts to keep firearms out of the hands of criminals and other persons that should not be armed.

Sheriffs are generally supportive of efforts to create appropriate penalties for persons who steal firearms and for criminals who are found to possess firearms. We have supported bills that create mechanisms to keep firearms away from certain persons, including in the form of gun violence restraining orders. Ultimately, we do not believe AB 1664 will be successful in keeping firearms away from dangerous persons.

ASSEMBLY FLOOR: 43-31, 6/1/16

AYES: Alejo, Atkins, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Dababneh, Dodd, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon

NOES: Achadjian, Travis Allen, Arambula, Bigelow, Brough, Chávez, Cooley, Dahle, Frazier, Beth Gaines, Gallagher, Gray, Grove, Harper, Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Medina, Melendez, Obernolte, Olsen, Patterson, Salas, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Chang, Cooper, Daly, Eggman, Hadley, Rodriguez

Prepared by: Jessica Devencenzi / PUB. S. /

6/30/16 9:22:10

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 1664 (Levine) - Firearms: assault weapons

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1664 would update California’s regulation of “assault weapons,” as follows:

• Amends the definition of assault weapon to refer to a firearm that has one of several specified military-style features and does not have a “fixed magazine” rather than a firearm that has one of those features and “has the capacity to accept a detachable magazine”.
• Defines “fixed magazine” as “an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action.
• Requires that any person who from January 1, 2001, to December 31, 2016, lawfully possessed an assault weapon that does not have a fixed magazine, as defined, register the firearm via online submission before January 1, 2018, with the Department of Justice (DOJ), as specified.
• Authorizes DOJ to charge a fee of up to $15 per person not to exceed the reasonable processing costs for this registration.

Fiscal Impact:

• Registration process: Estimated costs to the DOJ of $1.8 million in FY 2016-17, $1.5 million in FY 2017-18, and $40,000 (DROS Account*/General Fund) annually thereafter, to be offset in whole or in part by fees collected from registrants once fully implemented. Staff notes the DROS Account is structurally imbalanced, and current revenues are insufficient to cover the costs of this bill. As a result, a General Fund appropriation may be required to enable completion of the activities within the timelines prescribed and to support the ongoing costs of this measure.
• State prisons: Potentially significant increase in annual state incarceration costs (General Fund) to the extent the revised definition of “assault weapon” results in additional firearms violations. For every 10 new commitments to state prison (five each for manufacturing and possession), additional annual costs of $290,000, compounding to $1.2 million for overlapping sentences assuming the middle term of the triads for violations of both manufacturing and possession.
• Local agencies: Potential future increase in local enforcement and incarceration costs for unlawful possession or sale/manufacture of assault weapons.
• Firearms sales: Potentially significant near-term loss of sales tax revenue (General Fund) to the extent the revised definition of “assault weapon” results in a reduction in sales of firearms newly prohibited under the bill’s provisions. Future year impacts could be somewhat mitigated to the extent consumers shift to purchases of alternative firearms.
• APPS enforcement: Unknown, potential increase in DOJ enforcement costs (Special Fund*) to the extent additional persons are placed on the armed prohibited persons list resulting from the provisions of this measure.

*Dealers’ Record of Sale (DROS) Account – Staff notes the DROS Account is structurally imbalanced, with an estimated reserve balance of less than $1 million by year-end FY 2016-17. Current revenues to the DROS Account are insufficient to cover the costs of this bill in conjunction with the numerous other legislative measures requiring funding from the DROS Account, should they be enacted. As a result, an appropriation from an alternate fund source, potentially the General Fund, may be required to support the costs of this measure.

Background:

The enactment of the assault weapons ban in California is described by the federal Court of Appeal from Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), in part, as follows: “In response to a proliferation of shootings involving semi-automatic weapons, the California Legislature passed the Roberti-Roos Assault Weapons Control Act (“the AWCA”) in 1989. The immediate cause of the AWCA’s enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton, California. An individual armed with an AK-47 semi-automatic weapon opened fire on the schoolyard, where three hundred pupils were enjoying their morning recess. Five children aged 6 to 9 were killed, and one teacher and 29 children were wounded.”

The codified legislative findings and declarations of the AWCA state, in part, “that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 30510 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession.”

The AWCA was amended by SB 23 (Perata) Chapter 129/1999 to expand the definition of an assault weapon to include a definition based on its generic characteristics in addition to one of several specified features. SB 23 was enacted in response to the marketing of so-called “copycat” weapons – firearms that were substantially similar to weapons on the prohibited list but slightly different, perhaps only by the name of the weapon, thereby circumventing the ban. The more general definition of an assault weapon enacted under SB 23 was intended to remove the allowance of such copycat weapons that the law previously authorized by its definition of an assault weapon as only those listed by specified make and model.

This bill seeks to address the issue regarding the definition of an assault weapon as it pertains to what constitutes a “detachable magazine.” Regulations promulgated after the enactment of SB 23 define a detachable magazine as, “any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool.” (11 CFR § 5469(a)) In response to this definition, features such as the “bullet button” have been developed by firearms manufacturers that enable easy detachment of a magazine with the use of a “tool” and are thus not classified as a “detachable magazine.” As a result, firearms with features such as the “bullet button” do not fall within the current definition of an assault weapon.

Proposed Law:

This bill would redefine “assault weapon” to refer to a firearm that has one of several specified military-style features and does not have a “fixed magazine,” rather than a firearm that has one of those features and “has the capacity to accept a “detachable magazine.” This bill:

• Defines “fixed magazine” as “an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action.
• Requires that any person who from January 1, 2001, to December 31, 2016, lawfully possessed an assault weapon that does not have a fixed magazine, as defined, register the firearm via online submission utilizing a public-facing application before January 1, 2018, with the DOJ.
• Provides that notwithstanding the new definition of “assault weapon,” any person who possessed an assault weapon prior to January 1, 2017, is exempt from punishment pursuant to PC 30605, if all of the following are applicable:
  • Prior to January 1, 2017, the person was eligible to register that assault weapon pursuant to PC 30900(c).
  • The person lawfully possessed that assault weapon on January 1, 2017.
  • The person registers the assault weapon by January 1, 2018, as specified above.
• Authorizes DOJ to charge a fee of up to $15 per person not to exceed the reasonable processing costs of the DOJ. Fees are to be deposited in the DROS Account. Requires the fee to be paid by debit or credit card at the time the electronic registration is submitted to the DOJ.
• Requires the DOJ to adopt regulations to implement the registration requirements.

Related Legislation: AB 1135 (Levine) 2016 is identical to this measure. AB 1135 is pending on the Assembly Floor.

SB 880 (Hall) 2016 is nearly identical to this measure. SB 880 is pending hearing in the Assembly Committee on Appropriations.

Prior Legislation:

SB 47 (Yee) 2013 was substantially similar to this measure. SB 47 was held on the Suspense File of the Assembly Committee on Appropriations.

SB 249 (Yee) 2012 was substantially similar to this measure. SB 249 was held on the Suspense File of the Assembly Committee on Appropriations.

Staff Comments:

The DOJ has indicated costs of $1.8 million in FY 2016-17, $1.5 million in FY 2017-18, and $40,000 (DROS Fund) annually thereafter to redesign the existing Assault Weapon Registration (AWR) system with a new web user interface to enable online registration of the specified firearms, to be fully offset by fees. The existing AWR application is over 15 years old, and due to its inflexibility and lack of technical support, DOJ has indicated it cannot be modified for the new business requirements. The new application would be public facing for applicants to complete the personal and firearm information along with the required fee payable upon registration. The software development project is estimated to take 12 months to complete. Given the projected year-long process to develop the system, it is unclear whether the requirement for all persons to register their firearms via online submission before January 1, 2018, could be accomplished.

Staff notes the DROS Account is structurally imbalanced, with a projected reserve balance of less than $1 million at year end FY 2016-17. In order for the DOJ to fully fund the associated costs of the mandates of this bill, an appropriation of funds, potentially from the General Fund, would be required, as the estimated costs cannot be absorbed in FY 2016-17. With either the aforementioned appropriation or delayed implementation of the bill, the DOJ would have time to submit a Budget Change Proposal to request additional resources via the FY 2017-18 budget process. Finally, a new revenue source would need to be identified, as current revenues in the DROS Account are insufficient, and it is unknown at this time whether revenue from registration fees will be sufficient to cover the ongoing costs of this measure.

Under existing law, unlawful possession of an assault weapon is an alternate felony-misdemeanor punishable as a felony by imprisonment in a county jail for 16 months, two or three years (or in state prison with a current or prior serious or violent felony), or as a misdemeanor by imprisonment in a county jail for up to one year. Under specified circumstances, a first violation for unlawful possession of an assault weapon could result in a fine. Current law also provides that any person who within the state imports, manufactures, offers for sale, or who gives or lends any assault weapon, is guilty of a felony punishable by imprisonment in state prison or county jail for four, six, or eight years. By narrowing the scope of firearms that are legal in the state, this bill expands the scope of the aforementioned crimes.

Arrest information from the DOJ indicates an increasing number of violations of possession of an assault weapon since 2010, with 825 arrests in 2012. Arrest data for felony violations for the import, sale, manufacture, or loan of an assault weapon reflect a decreasing trend, with 124 arrests in 2012. According to the CDCR, 58 individuals in 2011 and 22 individuals in 2012 were committed to state prison specific to these crimes.

It is unknown how many persons will be convicted under the expanded scope of these crimes, though it is assumed the convictions could likely be highest in the near-term. For every 10 individuals (assuming convictions for both manufacturing/sale and possession), increased state incarceration costs are estimated at $290,000 (General Fund) per year, compounding to $1.2 million due to overlapping sentences (assuming the middle terms of the 4, 6, 8 year triad for manufacturing and 16 month, 2, 3 year triad for possession with a prior), based on the range of potential costs to accommodate extended state prison sentences. To the extent the number of individuals impacted is greater/less or the average sentence imposed is longer/shorter than estimated, annual costs would be impacted accordingly.

To the extent the provisions of this bill have the effect of reducing the number of semi-automatic rifles currently sold, there would be an impact to both local and state sales tax revenues. It is estimated that Californians spend over $400 million annually on rifle purchases. The impact to sales tax revenue cannot be estimated with certainty and would be dependent on numerous factors including the purchasing decisions of consumers. It is estimated that any revenue impact would likely occur in the near term, with the impact in future years projected to be somewhat mitigated to the extent consumers shift to purchases of alternative and/or newly developed firearms.

To the extent the provisions of this bill serve to reduce the incidence of firearms-related injuries and death, potential future cost savings could be substantial. A study by the non-profit Pacific Institute for Research and Evaluation (PIRE) reported over 105,000 incidences of firearm injury and death in 2010 nationally, with an estimated societal cost of over $174 billion in work lost, medical care, insurance, criminal justice expenses, and pain and suffering. At a unit level, the study reported a governmental cost of $187,000 to $582,000 per firearm fatality in medical and mental health care, emergency services, and administrative and criminal justice costs. The estimated societal cost per firearm injury or fatality, including lost work productivity and quality of life was reported at nearly $430,000 to $5 million, respectively.

Proposed Author Amendments: Technical amendments specify contingent enactment with SB 880 (Hall).

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 1664 Hearing Date: June 14, 2016

Subject: Firearms: Assault Weapons

HISTORY

Source: Author

Prior Legislation: SB 47 (Yee) – died in Assembly Appropriations, 2013

SB 249 (Yee) – died in Assembly Appropriations, 2012

AB 2728 (Klehs) – Ch. 793, Statutes of 2006

SB 238 (Perata) – Ch. 499, Statutes of 2003

SB 626 (Perata) – Ch. 937, Statutes of 2001

SB 23 (Perata) – Ch. 129, Statutes of 1999

Roberti-Roos Assault Weapons Control Act – Ch. 19, § 3, Stats. 1989

Support: All Saints Church; California Chapters of the Brady Campaign to Prevent Gun Violence; California Chapter of the American College of Emergency Physicians; City of Long Beach; City of Santa Monica; Cleveland School Remembers; Coalition Against Gun Violence, a Santa Barbara County Coalition; Laguna Woods Democratic Club; Law Center to Prevent Gun Violence; Physicians for Social Responsibility, San Francisco Bay Area Chapter

Opposition: California Sportsman's Lobby; California State Sheriffs' Association; California Waterfowl; California Rifle and Pistol Association; Crossroads of the West Gun Shows; Firearms Policy Coalition; Gun Owners of California; National Rifle Association of America; National Shooting Sports Foundation; Outdoor Sportsmen's Coalition of California; Safari Club International

Assembly Floor Vote: 43 - 31

PURPOSE

The purpose of this bill is to (1) define “detachable magazine” as “an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily from the firearm with the use of a tool”; (2) provide that any person who was eligible to register an assault weapon and lawfully possessed such a weapon prior to January 1, 2017, would be exempt from penalties, if the person registers the weapon by July 1, 2018; (3) provide that this registration be submitted online, as specified; (4) authorize DOJ to charge a fee not to exceed the reasonable processing costs of the department for this registration; and (5) require DOJ to establish procedures for the purpose of carrying out this registration requirement and to specify that these procedures shall be exempt from the Administrative Procedure Act.

Current law 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 § 30505.)

Current law 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 § 30505.)

Current law defines “assault weapon” as one of certain specified rifles and pistols (Penal Code § 30510) or as:

• • A semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and has at least one of the following:
    
    • A pistol grip that protrudes conspicuously beneath the action of the weapon;
    • A thumbhole stock;
    • A vertical handgrip;
    • A folding or telescoping stock;
    • A grenade launcher or flare launcher;
    • A flash suppressor; or,
    • A forward handgrip.
      
  • A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds;
  • A semiautomatic, centerfire rifle that has an overall length of less than 30 inches;
  • A semiautomatic pistol that has the capacity to accept a detachable magazine and has at least one of the following:
    
    • A threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer;
    • A second handgrip;
    • A shroud that is attached to, or partially or completely encircles, the barrel that allows the bearer to fire the weapon without burning his or her hand, excepting a slide that encloses the barrel; or
    • The capacity to accept a detachable magazine at some location outside of the pistol grip.
      
  • A semiautomatic pistol with a fixed magazine that has the capacity to accept more than 10 rounds;
  • A semiautomatic shotgun that has both of the following:
    
    • A folding or telescoping stock; and
    • A pistol grip that protrudes conspicuously beneath the action of the weapon, thumbhole stock, or vertical handgrip.
  • A semiautomatic shotgun that has the ability to accept a detachable magazine; and
  • Any shotgun that has a revolving cylinder. (Penal Code § 30515.)

Current law defines a “detachable magazine” as any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool. Ammunition feeding device includes any belted or linked ammunition, but does not include clips, en bloc clips, or stripper clips that load cartridges into the magazine. (11 Cal. Code of Regs. § 5469.)

Current law provides that unlawful possession of an assault weapon is an alternate felony-misdemeanor and shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 (16 months, two or three years). Notwithstanding the above, a first violation of these provisions is punishable by a fine not exceeding $500 if the person was found in possession of no more than two firearms and certain specified conditions are met. (Penal Code § 30605.)

Current law provides that any person who within California manufactures, imports into California, offers for sale, or who gives or lends any assault weapon with specified exceptions is guilty of a felony punishable by imprisonment in state prison for four, six, or eight years. (Penal Code § 30600.)

Current law defines a “.50 BMG rifle and cartridge,” as specified. (Penal Code §§ 30525, 30530.)

Current law 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 § 30625.)

Current law requires that any person who lawfully possesses an assault weapon, as specified, must register the firearm with DOJ, as specified. (Penal Code § 30900 et. seq.)

This bill states legislative intent to effectuate the Roberti-Roos Assault Weapons Control Act of 1989 and to close the bullet button loophole by redefining "detachable magazine."

This bill defines a “detachable magazine” as “an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily from the firearm with the use of a tool.”

This bill provides that, notwithstanding the new definition of assault weapon contained in this bill, the penalties for the possession of an assault weapon under this provision shall not apply to any person who initially possessed such a weapon before January 1, 2017, and until July 1, 2018, if both of the following are applicable:

• • During the person's possession, he or she was eligible to register that assault weapon, as specified; and,
  • The person lawfully possessed that assault weapon before January 1, 2017.

This bill provides that any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as specified, including those weapons with an ammunition feeding device that can be removed readily from the firearm with the use of a tool, shall register the firearm with the Department of Justice (DOJ) before July 1, 2018, pursuant to DOJ-established procedures.

This bill requires registrations be submitted electronically via the Internet utilizing a public-facing application made available by the DOJ.

This bill mandates that the registration contain a description of the firearm which identifies it uniquely, including: all identification marks; the date the firearm was acquired; the name and address of the individual from whom, or business from which, the firearm was acquired; and the registrant's full name, address, telephone number, date of birth, sex, height, weight, eye color, hair color, and California driver's license number or California identification card number.

This bill allows the DOJ to charge a registration fee, not to exceed the reasonable processing costs, payable by debit or credit card at the time of submission of the electronic registration. The fee shall be deposited in the Dealers' Record of Sale Special Account.

This bill requires the DOJ to establish registration procedures and exempts these procedures from the Administrative Procedure Act.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

The Roberti-Roos Assault Weapons Control Act of 1989, and subsequent enhancements in 1999 and 2004, banned assault weapons in California.

These laws define prohibited assault weapons to include firearms that have both the capacity to accept a detachable magazine and one of a list of specific military-style features.

The law, however, does not define the term “detachable magazine.”

Unfortunately, current regulations define “detachable magazine” in a manner that runs counter to both the spirit and the letter of the state’s assault weapons law.

Under the regulations, if any “tool,” including a bullet, is required to release a firearm’s magazine, then the weapon does not fall within the scope of the ban.

As a way to circumvent the law, firearm manufacturers developed a new feature to make military-style weapons compliant in California, the bullet button.

The bullet button allows a shooter to use a bullet or other tool to quickly detach and replace the gun’s ammunition magazine. Because the use of a bullet or other “tool” is required to remove the magazine, the magazine is not considered detachable making the firearm legal. However, these guns are functionally operating in the same manner as illegal assault weapons. This bill seeks to close that loophole.

2. Bullet Button: San Bernardino Shooting

On December 2, 2015, 14 people were killed and 21 were seriously injured in a mass shooting at the Inland Regional Center in San Bernardino, California. The perpetrators of this mass shooting used firearms that were legally purchased in California,

A carveout in a California gun law reportedly allowed for the legal purchase of two assault-style rifles that were used in the San Bernardino shooting Wednesday, which killed 14 people and injured 21 others, though the weapons were later altered illegally.

Many guns in the style of the two AR-15 semiautomatic rifles, a .223-caliber DPMS Model A15 and a Smith & Wesson M&P15, are banned under a 1989 California gun law targeting assault weapons. The law specifically targets assault rifles with magazines that are detachable by hand, in order to prevent users from reloading quickly and inflicting mass damage.

But if the guns are equipped with a “bullet button,” as the Wall Street Journal reports the San Bernardino shooters’ were, they’re perfectly legal to sell. Instead of removing a magazine by hand, the shooter must press a recessed button that is only accessible using the tip of a bullet or another small tool. Technically, this does not classify as a “detachable magazine,” so the guns are allowed. In practice, the method still allows users to swap out magazines within seconds. Gunmakers began making bullet buttons after California passed its harsher gun laws, according to the Associated Press.

But in this case, the weapons were additionally altered in a way that violated the California law, the Journal reports, allowing one to use higher-capacity magazines than permitted.

The two gunmen fired 65 to 75 rounds during the attack and then another 76 rounds in a later shootout with police, according to officials. They had more than 1,400 more assault rifle rounds on their bodies and in their vehicle.

(This Gun Law May Have Let the San Bernardino Attackers Shoot Faster, Victor Luckerson, Time Magazine, December 4, 2015, http://time.com/4136757/san-bernardino-shooting-gun-law-bullet-button/.)

3. Background – The Genesis and Evolution of the Assault Weapons Ban in California

The origin of and subsequent modifications to the assault weapons ban in California are described by the federal Court of Appeal in the following extended excerpt from Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) (as amend. Jan. 27, 2003).

In response to a proliferation of shootings involving semi-automatic weapons, the California Legislature passed the Roberti-Roos Assault Weapons Control Act (“the AWCA”) in 1989. The immediate cause of the AWCA’s enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton, California. An individual armed with an AK-47 semi-automatic weapon opened fire on the schoolyard, where three hundred pupils were enjoying their morning recess. Five children aged 6 to 9 were killed, and one teacher and 29 children were wounded.

The California Assembly met soon thereafter in an extraordinary session called for the purpose of enacting a response to the Stockton shooting. The legislation that followed, the AWCA, was the first legislative restriction on assault weapons in the nation, and was the model for a similar federal statute enacted in 1994. The AWCA renders it a felony offense to manufacture in California any of the semi-automatic weapons specified in the statute, or to possess, sell, transfer, or import into the state such weapons without a permit. The statute contains a grandfather clause that permits the ownership of assault weapons by individuals who lawfully purchased them before the statute’s enactment, so long as the owners register the weapons with the state Department of Justice. The grandfather clause, however, imposes significant restrictions on the use of weapons that are registered pursuant to its provisions. Approximately forty models of firearms are listed in the statute as subject to its restrictions. The specified weapons include “civilian” models of military weapons that feature slightly less firepower than the military-issue versions, such as the Uzi, an Israeli-made military rifle; the AR-15, a semi-automatic version of the United States military’s standard-issue machine gun, the M-16; and the AK-47, a Russian-designed and Chinese-produced military rifle. The AWCA also includes a mechanism for the Attorney General to seek a judicial declaration in certain California Superior Courts that weapons identical to the listed firearms are also subject to the statutory restrictions.

The AWCA includes a provision that codifies the legislative findings and expresses the legislature’s reasons for passing the law:

The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in [the statute] based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities.

In 1999, the legislature amended the AWCA in order to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semiautomatic weapons. The amended AWCA retains both the original list of models of restricted weapons, and the judicial declaration procedure by which models may be added to the list. The 1999 amendments to the AWCA statute add a third method of defining the class of restricted weapons: The amendments provide that a weapon constitutes a restricted assault weapon if it possesses certain generic characteristics listed in the statute. Examples of the types of weapons restricted by the revised AWCA include a “semiautomatic, center-fire rifle that has a fixed magazine with the capacity to accept more than 10 rounds,” and a semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and also features a flash suppressor, a grenade launcher, or a flare launcher. The amended AWCA also restricts assault weapons equipped with “barrel shrouds,” which protect the user’s hands from the intense heat created by the rapid firing of the weapon, as well as semiautomatic weapons equipped with silencers. (Silveira v. Lockyer, 312 F.3d 1052, 1057-1059 (9th Cir. Cal. 2002) (footnotes omitted; citations omitted).)

4. Constitutional Questions

The constitutionality of California’s assault weapons ban has been upheld by both the California Supreme Court (Kasler v. Lockyer, 23 Cal. 4th 472 (2000)), and the federal Court of Appeal. (Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) (as amend. Jan. 27, 2003).) While the California Supreme Court rejected allegations that the law violated equal protection guarantees, the separation of powers, and failed to provide adequate notice of what was prohibited under the law, the Ninth Circuit Court of Appeal decision in Silveira was based largely on its interpretation of the Second Amendment right to keep and bear arms. The Second Amendment to the Constitution states, “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.” (United States Const. Amend. 2.) The Silveira Court based its ruling on the widely-held interpretation of the Second Amendment known as the “collective rights” view, that the right secured by the Second Amendment relates to firearm ownership only in the context of a “well regulated militia.” (Silveira v. Lockyer, 312 F.3d 1052, 1086 (9th Cir. Cal. 2002).)

The Silveira Court’s interpretation of the meaning of the Second Amendment has since been squarely rejected by the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). Whether the Heller and McDonald cases mean that California’s assault weapons ban violates the Second Amendment, and is therefore unconstitutional, is a different matter.

In Heller, the Supreme Court rejected the “collective rights” view of the Second Amendment, and, instead endorsed the “individual rights” interpretation, that the Second Amendment protects the right of each citizen to firearm ownership. After adopting this reading of the Second Amendment, the Supreme Court held that federal law may not prevent citizens from owning a handgun in their home. (District of Columbia v. Heller, 554 U.S. 570, 683-684.) In the McDonald case, the Supreme Court extended this ruling to apply to laws passed by the 50 states. (McDonald v. City of Chicago, 130 S. Ct. 3020, 3050.)

While the Supreme Court has held it is unconstitutional to prohibit citizens from owning a handgun in the home for self-defense, it has also stated that the right secured by the Second Amendment does not prohibited laws banning certain types of weapons for civilian use, specifically, “M-16 rifles and the like.” Whether the specific prohibitions contained in California’s existing assault weapons ban, or those proposed in this bill, are consistent with the right guaranteed under the Second Amendment was not specifically resolved by the decisions in Heller and McDonald.

5. How This Bill Would Change the Existing Assault Weapons Ban

As the Court of Appeal explained, in 1999, the Assault Weapons ban was amended to expand the definition of an assault weapon to include a definition by the generic characteristics, specifically, to include a “semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine” in addition to one of several specified characteristics, such as a grenade launcher or flash suppressor. (SB 23 (Perata) Stats. 1999, Ch. 129, § 7 et seq.) SB 23 was enacted in response to the marketing of so-called “copycat” weapons, firearms that were substantially similar to weapons on the prohibited list but differed in some insignificant way, perhaps only the name of the weapon, thereby defeating the intent of the ban. “SB 23 takes weapons that are made, then modified, named and re-named off the market. It fixes the loophole in current law that bans guns by name, not by capability, by providing a generic definition of the weapons.” (Committee analysis of SB 23 (Perata), Assembly Public Safety Committee.)

SB 23’s generic definition of an assault weapon was intended to close the loophole in the law created by its definition of assault weapons as only those specified by make and model. Regulations promulgated after the enactment of SB 23 define a detachable magazine as “any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool.” (11 CFR § 5469(a).) In response to this definition, a new feature has been developed by firearms manufacturers to make semi-automatic rifles “California compliant,” the bullet button.

In 2012, researchers at the nonprofit Violence Policy Center in Washington, D.C. released a paper describing the phenomenon of the bullet button and its effect on California’s assault weapons ban:

The “Bullet Button”–Assault Weapon Manufacturers’ Gateway to the California Market

Catalogs and websites from America’s leading assault rifle manufacturers are full of newly designed “California compliant” assault weapons. Number one and two assault weapon manufacturers Bushmaster and DPMS, joined by ArmaLite, Colt, Sig Sauer, Smith & Wesson, and others are all introducing new rifles designed to circumvent California’s assault weapons ban and are actively targeting the state in an effort to lift now-sagging sales of this class of weapon. They are accomplishing this with the addition of a minor design change to their military-style weapons made possible by a definitional loophole: the “bullet button.” [Please see the Appendix beginning on page six for 2012 catalog copy featuring “California compliant” assault rifles utilizing a “bullet button” from leading assault weapon manufacturers.]

California law bans semiautomatic rifles with the capacity to accept a detachable ammunition magazine and any one of six enumerated additional assault weapon characteristics (e.g., folding stock, flash suppressor, pistol grip, or other military-style features).

High-capacity detachable ammunition magazines allow shooters to expel large amounts of ammunition quickly and have no sporting purpose.¹ However, in California an ammunition magazine is not viewed as detachable if a “tool” is required to remove it from the weapon. The “bullet button” is a release button for the ammunition magazine that can be activated with the tip of a bullet. With the tip of the bullet replacing the use of a finger in activating the release, the button can be pushed and the detachable ammunition magazine removed and replaced in seconds. Compared to the release process for a standard detachable ammunition magazine it is a distinction without a difference.

1 Department of the Treasury Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles, April 1998. (Bullet Buttons, The Gun Industry’s Attack on California’s Assault Weapons Ban, Violence Policy Center, Washington D.C., May 2012. )

This bill would amend the definition of “detachable magazine” as “an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily from the firearm with the use of a tool.” The purpose of this change is to clarify that equipping a weapon with a “bullet button” magazine release does not take that weapon outside the definition of an assault weapon.

This bill would also require any person who, from January 1, 2001, to December 31, 2016, lawfully possessed an assault weapon that has a detachable magazine to register the firearm before July 1, 2018, with the department pursuant to those procedures that the department may establish. Because the bill would clarify that these are assault weapons, this provision is consistent with the existing law that requires assault weapons, lawfully possessed, to be registered with DOJ.

6. 2016 Bullet Button Bills

The Senate Public Safety Committee has already heard and passed two bullet button bills, SB 880 (Hall) and AB 1135 (Levine). While the intent of this legislation is “to close the bullet button loophole,” it takes a slightly different approach than SB 880 and AB 1135. SB 880 and AB 1135 amend the definition of assault weapon to a firearm that has one of several specified features and does not have a “fixed magazine,” rather than a firearm that has one of those features and “has the capacity to accept a detachable magazine.” This legislation, instead, adds a definition of “detachable magazine” to the Penal Code. This approach would likely put the Penal Code definition in conflict with the regulatory definition of “detachable magazine” – thus requiring that DOJ modify or delete its definition. The other primary difference between the bills is that SB 880 and AB 1135 place a cap of fifteen-dollars on the amount that DOJ can charge for registration. This legislation does not have a cap and, instead, allows DOJ to charge a fee “no more than the reasonable processing costs of the department.”

7. Argument in Support

The California Chapters of the Brady Campaign to Prevent Gun Violence:

California’s existing assault weapons statute prohibits semi-automatic centerfire rifles or semiautomatic pistols that have the capacity to accept a detachable magazine and are equipped with any of the following features: a pistol grip, a thumbhole stock, a folding or telescoping stock, a grenade or flare launcher, a flash suppressor, or a forward pistol grip. These features are not found on sporting guns and were designed specifically to facilitate the killing of human beings in battle.

The California Brady Campaign Chapters support prohibiting military-style semi-automatic assault weapons. The rapid and controlled spray of bullets associated with assault weapons is a threat to police officers, families, and communities. As was shown by the tragedy at Sandy Hook School and more recently in San Bernardino, an assault weapon escalates the lethality and number of victims in a mass shooting incident.

Unfortunately, firearm manufactures have found ways to enable the dangerous quick reloading that the California’s assault weapons law sought to ban. For example, the “bullet button” is a feature that enables the firearm owner to use a bullet or other pointed object to quickly detach and replace the weapon’s ammunition magazine. Because the use of a bullet or other “tool” is required to remove the magazine, the sale of bullet button-equipped guns has been allowed, even though the California assault weapons law prohibits weapons that have “the capacity to accept a detachable magazine.” In fact, in the first eleven months after the retention of records for long guns became operational (January 1, 2014 to December 2, 2014), there were 50,574 sales or transfers of military-style weapons with a bullet-button or other similar feature that allows for the rapid exchange of the magazine.

The California Brady Campaign Chapters support clarifying and strengthening California’s assault weapons law as proposed by AB 1664. The bill redefines detachable magazine as an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily from the firearm with the use of a tool. A weapon that has a detachable magazine, as defined, and any one of the military-style features would be unlawful.

AB 1664 would require any person who lawfully possessed from January 1, 2001 to December 31, 2016 an assault weapon as defined in the bill to register the weapon before July 1, 2018 with the California Department of Justice. This record would enable law enforcement to disarm the person through the Armed Prohibited Persons System program if the person were to become prohibited from possessing firearms and assist law enforcement in the tracing of crime guns.

8. Argument in Opposition

According to the California Sheriffs Association:

On behalf of the California State Sheriffs' Association (CSSA), I regret to inform you that we are opposed to Assembly Bill 1664, which would expand the California definition of “assault weapon” by defining the term “detachable magazine” as an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action or with the use of a tool.

California has some of the strictest gun laws in the nation, yet gun violence continues to plague our state. We must continue to take steps to keep guns out of the hands of criminals and other prohibited persons. That said, this measure would make little progress toward that goal. Instead, this measure would ban the sale of many commonly owned and sold rifles that do not fall under the current regulatory scheme. In doing so, AB 1664 would likely result in the allocation of law enforcement resources to regulating the gun-owning practices of otherwise law-abiding persons at the expense of efforts to keep firearms out of the hands of criminals and other persons that should not be armed.

Sheriffs are generally supportive of efforts to create appropriate penalties for persons who steal firearms and for criminals who are found to possess firearms. We have supported bills that create mechanisms to keep firearms away from certain persons, including in the form of gun violence restraining orders. Ultimately, we do not believe AB 1664 will be successful in keeping firearms away from dangerous persons.

-- END –

(Without Reference to File)

ASSEMBLY THIRD READING

ATR Bill Id:AB 1664

Author:(Levine, et al.)

As Amended Ver:May 31, 2016

Majority vote

SUMMARY: Redefines what constitutes an assault weapon in order to close the bullet button loophole. Also requires registration of weapons (which were previously not prohibited) which now fall under the new definition. Specifically, this bill:

1. States legislative intent to effectuate the Roberti-Roos Assault Weapons Control Act of 1989 and to close the bullet button loophole by redefining "detachable magazine."
2. Defines a "detachable magazine" as "an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily from the firearm with the use of a tool."
3. Provides that, notwithstanding the new definition of assault weapon contained in this bill, the penalties for the possession of an assault weapon under this provision shall not apply to any person who initially possessed such a weapon before January 1, 2017, and until July 1, 2018, if both of the following are applicable:
   1. During the person's possession, he or she was eligible to register that assault weapon, as specified; and,
   2. The person lawfully possessed that assault weapon before January 1, 2017.
4. Provides that any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as specified, including those weapons with an ammunition feeding device that can be removed readily from the firearm with the use of a tool, shall register the firearm with the Department of Justice (DOJ) before July 1, 2018, pursuant to DOJ-established procedures.
5. Requires registrations be submitted electronically via the Internet utilizing a public-facing application made available by the DOJ.
6. Mandates that the registration contain a description of the firearm which identifies it uniquely, including: all identification marks; the date the firearm was acquired; the name and address of the individual from whom, or business from which, the firearm was acquired; and the registrant's full name, address, telephone number, date of birth, sex, height, weight, eye color, hair color, and California driver's license number or California identification card number.
7. Allows the DOJ to charge a registration fee, not to exceed the reasonable processing costs, payable by debit or credit card at the time of submission of the electronic registration. The fee shall be deposited in the Dealers' Record of Sale Special Account.
8. Requires the DOJ to establish registration procedures and exempts these procedures from the Administrative Procedure Act.

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.
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.
3. Prohibits several categories of assault weapons:
   1. Specified firearms listed by name and others listed by series;
   2. Semiautomatic centerfire rifles or semiautomatic pistols having the capacity to accept a detachable magazine and also having one of several specified characteristics;
   3. Semiautomatic centerfire rifles or semiautomatic pistols with a fixed magazine having the capacity to hold more than 10 rounds;
   4. Semiautomatic centerfire rifles with an overall length of less than 30 inches;
   5. Semiautomatic shotguns having two specified characteristics;
   6. Semiautomatic shotguns having the capacity to accept a detachable magazine; and,
   7. Any shotgun with a revolving cylinder.
4. Defines a "detachable magazine" as any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool. Ammunition feeding device includes any belted or linked ammunition, but does not include clips, en bloc clips, or stripper clips that load cartridges into the magazine.
5. Bans the manufacture, distribution, transportation, importation, sale, gift or loan of an assault weapon.
6. Makes the possession of an assault weapon a criminal offense, subject to certain exceptions.
7. Defines a ".50 BMG rifle" as "a center fire rifle that can fire a .50 BMG cartridge and is not already an assault weapon or a machinegun."
8. Bans the manufacture, distribution, transportation, importation, sale, gift, loan, or possession of .50 BMG rifles.
9. 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.
10. Requires that any person who lawfully possesses an assault weapon prior to the date it was specified as an assault weapon to register the firearm with DOJ, as specified.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Significant cost to DOJ (Dealers' Record of Sale Account), $1 million in 2016-17, $1.5 million in 2017-18, and $700,000 annually thereafter. DOJ estimates one million additional assault weapons will be registered to 250,000 different owners. These costs include additional staff, one time cost to adoption of regulations, and one-time information technology development to implement a public-facing application that allows the public to register firearms classified as assault weapons. AB 1664 allows DOJ to charge a fee to cover reasonable processing costs of DOJ.
2. The use of a "new" assault weapon by an individual in the commission of a crime may result in additional time served in state prison or county jail. Also, failure to register an assault weapon is a misdemeanor. These additional costs may be moderate, however, difficult to quantify:
3. According to the California Department of Corrections (CDCR), the contracted out-of-state bed rate is $29,000. If two individuals serve four additional years in state prison, the first year cost would be $58,000, $116,000 the second, $174,000 the third, and $232,000 every year thereafter.
4. Local costs for incarceration are nonreimbursable, but are offset to a degree by fine revenue.

COMMENTS: According to the author, "Killing machines have no place on our streets and gun violence must not be tolerated. This legislation closes a loophole in law that allows military-style assault rifles to be sold legally in California. We raise our children in communities, not war zones."

Analysis Prepared by: Sandy Uribe/ PUB. S. / (916) 319-3744 FN: 0003142

Date of Hearing: April 13, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1664

Author:(Levine) – As Introduced Ver:January 14, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill redefines what constitutes an assault weapon, by defining detachable magazine, and requires registration of weapons (previously not prohibited) which now fall under the new definition. Specifically, this bill:

1. Defines a "detachable magazine" as "an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily from the firearm with the use of a tool."
2. Provides that, notwithstanding the new definition of assault weapon contained in this bill, the penalties for the possession of an assault weapon under this provision do apply if specific conditions are met. Also, all other existing prohibitions on possession, sale or manufacture of assault weapons apply to firearms redefined as assault weapons under this bill.
3. Requires the Department of Justice (DOJ) to adopt regulations, by July 1, 2018, to provide for the registration of those firearms affected by this bill that were lawfully possessed between January 1, 2001 and December 31, 2016, and requires registrations be submitted electronically via the Internet utilizing a public-facing application made available by the DOJ.
   

FISCAL EFFECT:

1. Significant cost to DOJ (Dealers’ Record of Sale Account), $1 million in 2016-17, $1.5 million in 2017-18, and $700,000 annually thereafter. DOJ estimates one million additional assault weapons will be registered to 250,000 different owners. These costs include additional staff, one time cost to adoption of regulations, and one-time information technology development to implement a public-facing application that allows the public to register firearms classified as assault weapons. AB 1664 allows DOJ to charge a fee to cover reasonable processing costs of DOJ.
2. The use of a “new” assault weapon by an individual in the commission of a crime may result in additional time served in state prison or county jail. Also, failure to register an assault weapon is a misdemeanor. These additional costs may be moderate, however, difficult to quantify:
3. According to the California Department of Corrections (CDCR), the contracted out-of-state bed rate is $29,000. If two individuals serve four additional years in state prison, the first year cost would be $58,000, $116,000 the second, $174,000 the third, and $232,000 every year thereafter.
4. Local costs for incarceration are nonreimbursable, but are offset to a degree by fine revenue.

COMMENTS:

1. Background. In response to a proliferation of shootings involving semi-automatic weapons, the California Legislature passed the Roberti-Roos Assault Weapons Control Act (AWCA) in 1989. The immediate cause of the AWCA's enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton, California. An individual armed with an AK-47 semi-automatic weapon opened fire on the schoolyard, where 300 pupils were enjoying their morning recess. Five children ages six to nine were killed, and one teacher and 29 children were wounded. In 1999, the Legislature amended the AWCA in order to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semiautomatic weapons.

Current law defines an “assault weapon” as one of certain specified rifles and pistols, including some that have the capacity to accept a detachable magazine. Through regulations, current law defines a “detachable magazine” as any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool. Ammunition feeding device includes any belted or linked ammunition, but does not include clips, en bloc clips, or stripper clips that load cartridges into the magazine.

Current law also provides that unlawful possession of an assault weapon is an alternate felony-misdemeanor and it is punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment for 16 months, two or three years. However, a first violation of these provisions is punishable by a fine not exceeding $500 if the person was found in possession of no more than two firearms and certain specified conditions are met.

Furthermore, under current law, any person who within California manufactures, imports into California, offers for sale, or who gives or lends any assault weapon with specified exceptions is guilty of a felony punishable by imprisonment in state prison for four, six, or eight years.

1. Purpose. According to the author, AB 1664 closes the bullet button loophole that permits the sale of military-style assault rifles in California.

High capacity magazines High-capacity detachable ammunition magazines allow shooters to expel large amounts of ammunition quickly. In California, an ammunition magazine is not viewed as detachable if a “tool” is required to remove it from the weapon. The “bullet button” is a release button for the ammunition magazine that can be activated with the tip of a bullet. With the tip of the bullet replacing the use of a finger in activating the release, the button can be pushed and the detachable ammunition magazine removed and replaced in seconds. By codifying the definition a detachable magazine, this bill addresses the heart of the limitations in the AWCA, and fulfills its original intent: to prohibit firearms that have the ability to detach a magazine and rapidly reload. Effectively, AB 1664 prohibits the future sale, purchase, manufacture, importation, or transfer in California of semi-automatic rifles that can accept detachable magazines.

The use of an assault weapon in the commission of a crime carries additional punishments, and in some cases the sentence is served in state prison instead of county jail. By expanding the universe of assault weapons, this bill will result in additional commitments to county jails and state prison.

1. Support. According to the Law Center to Prevent Gun Violence, "California's assault weapons ban does not define the term 'detachable magazine,' however. Perplexingly, current DOJ regulations define 'detachable magazine' in a manner that runs counter to both the spirit and the letter of the state's assault weapons ban. Under these regulations' definition, a weapon is not considered to have a detachable magazine, and is therefore not a prohibited assault weapon, if a 'tool' is used to release the firearm's magazine instead of a shooter's finger alone. The regulations specifically state that 'a bullet or an ammunition feeding device is considered a tool.'

"AB 1664 would further the letter and the spirit of California's assault weapons law by adding a statutory definition of 'detachable magazine' to clarify that the bullet button weapons are illegal assault weapons."

1. Opposition: The California Sportsman's Lobby states, “A ban on future sales of these popular sporting rifles by defining them to be assault weapons would only serve to deny California sportsmen quality rifles, and according to the National Rifle Association, "AB 1664 would subject the state to unnecessary litigation. By banning what amounts to millions of the most common hunting and sporting rifles, AB 1663 (sic) clearly conflicts with this direct guidance from the Supreme Court and is thus plainly unconstitutional. "
   
2. Related Legislation: SB 1663 Chiu takes a different approach, it amends the definition of an assault weapon as it pertains to rifles and defines "detachable magazines" and "fixed magazines." It also requires a registration program, but caps the fee at $15. SB 1663 is also scheduled for hearing in today.
   
3. Prior Legislation:
   
   1. SB 47 (Yee), of the 2013-2014 Legislative Session, would have closed the bullet button loophole by redefining an assault weapon in statute as 'a semiautomatic, centerfire rifle that does not have a fixed magazine' and has any one of several specified features. SB 47 was held on this Committee’s Suspense file.
      
   2. SB 374 (Steinberg), of the 2013-2014 Legislative Session, would have closed the bullet button loophole by redefining an assault weapon as it pertains to rifles and defines "detachable magazines" and "fixed magazines." Specifies that rifles which are not assault weapons have fixed magazines. SB 347 was vetoed by the Governor. In his veto message, the Governor stated, in part:

“The State of California already has some of the strictest gun laws in the country, including bans on military-style assault rifles and high-capacity ammunition magazines.

Moreover, hundreds of thousands of current gun owners would have to register their rifles as assault weapons and would be banned from selling or transferring them in the future.

I don't believe that this bill's blanket ban on semi-automatic rifles would reduce criminal activity or enhance public safety enough to warrant this infringement on gun owners' rights.”

1. SB 249 (Yee), of the 2011-12 Legislative Session, would have prohibited any person from importing, making, selling, loaning, transferring or possessing any conversion kit designed to convert certain firearms with a fixed magazine into firearms with a detachable magazine. SB 249 was held on this Committee’s Suspense file.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: March 1, 2016

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Redefines what constitutes an assault weapon in order to close the bullet button loophole. Also requires registration of weapons (which were previously not prohibited) which now fall under the new definition. Specifically, this bill:

1. States legislative intent to effectuate the Roberti-Roos Assault Weapons Control Act of 1989 and to close the bullet button loophole by redefining "detachable magazine."
   
2. Defines a "detachable magazine" as "an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily from the firearm with the use of a tool."
   
3. Provides that, notwithstanding the new definition of assault weapon contained in this bill, the penalties for the possession of an assault weapon under this provision shall not apply to any person who initially possessed such a weapon before January 1, 2017, and until July 1, 2018, if both of the following are applicable:
   
   1. During the person's possession, he or she was eligible to register that assault weapon, as specified; and,
      
   2. The person lawfully possessed that assault weapon before January 1, 2017.
      
4. Provides that any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as specified, including those weapons with an ammunition feeding device that can be removed readily from the firearm with the use of a tool, shall register the firearm with the Department of Justice (DOJ) before July 1, 2018, pursuant to DOJ-established procedures.
   
5. Requires registrations be submitted electronically via the Internet utilizing a public-facing application made available by the DOJ.
   
6. Mandates that the registration contain a description of the firearm which identifies it uniquely, including: all identification marks; the date the firearm was acquired; the name and address of the individual from whom, or business from which, the firearm was acquired; and the registrant's full name, address, telephone number, date of birth, sex, height, weight, eye color, hair color, and California driver's license number or California identification card number.
7. Allows the DOJ to charge a registration fee, not to exceed the reasonable processing costs, payable by debit or credit card at the time of submission of the electronic registration. The fee shall be deposited in the Dealers' Record of Sale Special Account.
8. Requires the DOJ to establish registration procedures and exempts these procedures from the Administrative Procedure Act.

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. (Pen. Code, § 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. (Pen. Code, § 30505.)
   
3. Prohibits several categories of assault weapons:
   
   1. Specified firearms listed by name and others listed by series (Pen. Code, § 30510);
      
   2. Semiautomatic centerfire rifles or semiautomatic pistols having the capacity to accept a detachable magazine and also having one of several specified characteristics;
      
   3. Semiautomatic centerfire rifles or semiautomatic pistols with a fixed magazine having the capacity to hold more than 10 rounds;
      
   4. Semiautomatic centerfire rifles with an overall length of less than 30 inches;
      
   5. Semiautomatic shotguns having two specified characteristics;
      
   6. Semiautomatic shotguns having the capacity to accept a detachable magazine; and,
      
   7. Any shotgun with a revolving cylinder. (Pen. Code, § 30515.)
      
4. Defines a "detachable magazine" as any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool. Ammunition feeding device includes any belted or linked ammunition, but does not include clips, en bloc clips, or stripper clips that load cartridges into the magazine. (11 Cal. Code Regs. Section 5469.)
   
5. Bans the manufacture, distribution, transportation, importation, sale, gift or loan of an assault weapon. (Pen. Code, § 30600, subd. (a).)
   
6. Makes the possession of an assault weapon a criminal offense, subject to certain exceptions. (Pen. Code, § 30605.)
   
7. Defines a ".50 BMG rifle" as "a center fire rifle that can fire a .50 BMG cartridge and is not already an assault weapon or a machinegun." (Pen. Code, § 30530.)
   
8. Bans the manufacture, distribution, transportation, importation, sale, gift, loan, or possession of .50 BMG rifles. (Pen. Code §§ 30600 & 30610.)
   
9. 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. (Pen. Code, § 30625.)
   
10. Requires that any person who lawfully possesses an assault weapon prior to the date it was specified as an assault weapon to register the firearm with DOJ, as specified. (Pen. Code, § 30900 et. seq.)
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Killing machines have no place on our streets and gun violence must not be tolerated. This legislation closes a loophole in law that allows military-style assault rifles to be sold legally in California. We raise our children in communities, not war zones."
   
2. Bullet Button: California law bans semiautomatic rifles with the capacity to accept a detachable ammunition magazine and which also have any one of six enumerated weapon characteristics (e.g., folding stock, flash suppressor, pistol grip, or other military-style features). The term 'detachable magazine' is not defined in statute. In response, firearm manufacturers have developed a new feature to make military-style weapons compliant in California, the bullet button.
   
   The bullet button is a "device allows gun owners to pop out their magazines quickly by inserting the tip of a bullet or some other small tool into a button on the side of their weapons. Since the magazine requires a tool to release it -- and cannot be released by hand -- it is not considered 'detachable' under California law." (<http://www.nytimes.com/2012/12/
   20/us/lessons-in-politics-and-fine-print-in-assault-weapons-ban-of-90s.html?pagewanted=
   all&_r=1&>.)
   
   This bill amends the statute defining assault weapons by defining a detachable magazine as "an ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action, including an ammunition feeding device that can be removed readily with the use of a tool." The purpose of this change is to clarify that equipping a weapon with a bullet button magazine release does not take that weapon outside of the definition of an assault weapon.
   
3. Governor's Veto Message: In 2013, the Legislature passed SB 374 (Steinberg) which attempted to close the bullet button loophole by redefining an assault weapon. SB 374 required a fixed magazine, but eliminated the six prohibited features from the definition in current law. However, SB 374 was vetoed by the Governor. In his veto message, the Governor said, "The State of California already has some of the strictest gun laws in the country, including bans on military-style assault rifles and high-capacity ammunition magazines.
   
   "While the author's intent is to strengthen these restrictions, this bill goes much farther by banning any semi-automatic rifle with a detachable magazine. This ban covers low-capacity rifles that are commonly used for hunting, firearms training, and marksmanship practice, as well as some historical and collectible firearms. Moreover, hundreds of thousands of current gun owners would have to register their rifles as assault weapons and would be banned from selling or transferring them in the future."
   
4. 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. 742, 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.
   
5. Registration Provisions: This bill would not prohibit the possession of any firearm that is currently legally owned. This bill would require that the owner of a firearm that is currently not considered an assault weapon, but which would be deemed such under the new definition, to register the firearm with the DOJ before July 1, 2018. In this manner, this bill would avoid takings issues because the owner of a weapon which had been legally acquired does not have to relinquish it.
   
6. Argument in Support: According to the Law Center to Prevent Gun Violence, "The ability to accept a detachable magazine allows a shooter to quickly reload an assault weapon to continue firing and killing without interruption.
   
   "California's assault weapons ban does not define the term 'detachable magazine,' however. Perplexingly, current DOJ regulations define 'detachable magazine' in a manner that runs counter to both the spirit and the letter of the state's assault weapons ban. Under these regulations' definition, a weapon is not considered to have a detachable magazine, and is therefore not a prohibited assault weapon, if a 'tool' is used to release the firearm's magazine instead of a shooter's finger alone. The regulations specifically state that 'a bullet or an ammunition feeding device is considered a tool.'

"The gun industry has exploited this bizarre and dangerous loophole in recent years by marketing 'California compliant' assault weapons that are equipped with a 'bullet button.' These weapons are the functional equivalents of illegal assault weapons in every respect, except that the shooter uses a bullet, instead of his or her finger, to depress the button that releases the weapon's magazine….

"AB 1664 would further the letter and the spirit of California's assault weapons law by adding a statutory definition of 'detachable magazine' to clarify that the bullet button weapons are illegal assault weapons."

1. Arguments in Opposition:
   
   1. The California Sportsman's Lobby states, "By defining, for purpose of the definition of an assault weapon, a detachable magazine to be a magazine (ammunition feeding device) that can be removed without disassembly of a firearm's action, including a magazine that can be removed readily from a firearm with the use of a too (such as a bullet button magazine), this bill would further expand the definition of an assault weapon and would thus ban the future sale of many modern sporting rifles commonly used for hunting, firearms training, including hunter safety training, and marksmanship practice.
      
      "There is no justifiable reason to ban them.
      
      "A ban on future sales of these popular sporting rifles by defining them to be assault weapons would only serve to deny California sportsmen quality rifles.
      
      "The focus of the Legislature should not be on firearms, but on the people who actually do commit crimes involving the use or possession of firearms such as criminals, the mentally ill, and users of mind altering drugs and other substances."
      
   2. According to the National Rifle Association, "AB 1664 would subject the state to unnecessary litigation. In District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the Supreme Court explained in detail that the Second Amendment prohibits government from banning the possession of arms 'typically possessed by law-abiding citizens for lawful purposes' or 'those in common use.' Id. at 624-25. By banning what amounts to millions of the most common hunting and sporting rifles, AB 1663 (sic) clearly conflicts with this direct guidance from the Supreme Court and is thus plainly unconstitutional. "
      
2. Related Legislation: AB 1663 (Chiu) takes a different approach to closing the bullet button loophole. AB 1663 will be heard by this committee today.
   
3. Prior Legislation:
   
   1. SB 47 (Yee), of the 2013-2014 Legislative Session, would have closed the bullet button loophole by redefining an assault weapon in statute as 'a semiautomatic, centerfire rifle that does not have a fixed magazine' and has any one of several specified features. SB 47 was held on the Assembly Appropriations Committee suspense file.

• 1. SB 374 (Steinberg), of the 2013-2014 Legislative Session, would have closed the bullet button loophole by redefining an assault weapon as it pertains to rifles and defines "detachable magazines" and "fixed magazines." Specifies that rifles which are not assault weapons have fixed magazines. SB 347 was vetoed by the Governor.
     
  2. SB 249 (Yee), of the 2011-12 Legislative Session, would have prohibited any person from importing, making, selling, loaning, transferring or possessing any conversion kit designed to convert certain firearms with a fixed magazine into firearms with a detachable magazine. SB 249 was held in the Assembly Appropriations Committee suspense file.

REGISTERED SUPPORT / OPPOSITION:

Support

Brady Campaign to Prevent Gun Violence – California Chapters
Cleveland School Remembers
Coalition Against Gun Violence
Law Center to Prevent Gun Violence

Opposition

California Sportsman's Lobby
California State Sheriffs' Association
Crossroads of the West Gun Shows
Firearms Policy Coalition
National Rifle Association of America
National Shooting Sports Foundation
Outdoor Sportsmen's Coalition of California
Safari Club International

Two private individuals

Analysis Prepared by: