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