Existing law, subject to certain exceptions, makes it a crime,
punishable either as a felony or a misdemeanor, for any person to
possess any assault weapon, as defined. However, if a person charged
with a first-time violation of that offense presents proof that he
or she lawfully possessed the assault weapon within a specified
period, and has since registered the weapon or relinquished it, the
offense is punishable as an infraction, if the person has also
complied with specified conditions, and the firearm would be returned
to the person, subject to exceptions.
This bill would eliminate the provisions authorizing return of the
firearm and instead provide for destruction of the assault weapon.
Existing codified provisions specify that the law forbidding the
possession, transfer, or sale of assault weapons does not apply to
possession by a retired peace officer of a weapon sold or transferred
to that officer by his or her employing agency upon retirement, or
to that sale or transfer. These provisions have been held by the
Ninth Circuit Court of Appeals in Silveira v. Lockyer (2002) 312 F.3d
1052 to violate the equal protection clause of the United States
Constitution.
This bill would repeal the provisions exempting retired peace
officers from the application of the assault weapon ban.
(b) Except as provided in Section 12288, and in subdivisions (c)
and (d), any person who, within this state, possesses any assault
weapon, except as provided in this chapter, is guilty of a public
offense and upon conviction shall be punished by imprisonment in the
state prison, or in a county jail, not exceeding one year. However,
if the person presents proof that he or she lawfully possessed the
assault weapon prior to June 1, 1989, or prior to the date it was
specified as an assault weapon, and has since registered any other
lawfully obtained firearm specified by Section 12276 or 12276.5
pursuant to Section 12285 or relinquished them pursuant to Section
12288, a first-time violation of this subdivision shall be an
infraction punishable by a fine of up to five hundred dollars ($500),
but not less than three hundred fifty dollars ($350), if the person
has otherwise possessed the firearm in compliance with subdivision
(c) of Section 12285. In these cases, the assault weapon shall be
destroyed pursuant to Section 12028.
