On August 14, 2020, the Ninth Circuit ended California’s ban on large capacity magazines (LCMs). The court held that Penal Code 32310’s ban on LCMs violates the Second Amendment.1 Learn more in our article on California gun laws.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is the current law regarding high-capacity magazines?
- 2. What was Benitez’s reasoning?
- 3. What is the law under California Penal Code 32310?
- 4. Are there legal defenses to PC 32310 violations?
- 5. Penalties, punishment, sentences
- 6. Related offenses
1. What is the current law regarding high-capacity magazines?
On August 14, 2020, the Ninth Circuit affirmed the March 29, 2019 ruling of U.S. District Judge Roger Benitez, thereby lifting the State ban on large capacity magazines. His decision came while hearing a case that tried to reinstate a law that allowed some gun owners to possess them.
The magazines in question had been prohibited since 2000. But, at that time, the law said that those who owned them before were allowed to keep them. In 2016, this provision was removed, meaning no gun owners could possess a large capacity magazine.
After this removal, the California branch of the National Rifle Association (“NRA”) sued and asked for the reinstatement of the provision (that was struck down in 2016). This is the case that Judge Benitez recently ruled on. At the present moment, it is unclear if the court struck down:
- the decision that banned former gun owners from possessing high-capacity magazines, or
- the entire language of Penal Code 32310.
2. What was Benitez’s reasoning?
Judge Benitez made his decision while stating that Penal Code 32310 violated Californians’ Second Amendment right to own firearms.
He also provided some scenarios in which a large capacity magazine could assist someone trying to protect himself from a crime.
This reasoning comes as a surprise for those that support the ban. These people contend that the ban helps deter mass shootings.
3. What is the law under California Penal Code 32310?
Under Penal Code 32310(a), it is a crime if any person:
manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine…
Penal Code 32310(c) went on to make it a crime for a person to possess a large capacity magazine, regardless of the date is was acquired. But as of the Ninth Circuit ruling described above, possessing large capacity magazines is no longer a crime.2
A “large capacity magazine” means any ammunition feeding device with the capacity to hold more than 10 rounds.3
According to California law, any of the following are not large capacity magazines:
- a feeding device that has been altered so that it cannot hold more than 10 rounds;
- a .22 caliber tube ammunition feeding device; and,
- a tubular magazine that is contained in a lever-action firearm.4
Large capacity magazines were also prohibited under California Penal Code 16590, the State’s statute governing “generally prohibited weapons.”5
Please note that certain people and/or situations are exempt from prosecution with regards to large capacity magazines. For example, members of law enforcement agencies may sell, transfer, or possess these ammunition holders.6
3.1. Penal Code 32310 was upheld as constitutional before recent decision
PC 32310 is a relatively new law. It arose out of California Senate Bill 1446, which Gov. Brown signed into law in 2016. The California Penal Code was amended to include PC 32310 after the signing.
Some parties challenged the new law and stated it was unconstitutional in that it violated gun owners’ equal protection rights. The United States District Court for the Eastern District of California, however, recently upheld SB 1446 and PC 32310. The Court ruled that the new law is constitutional and does not violate any rights.7
4. Are there legal defenses to PC 32310 violations?
Possessing LCMs is no longer a crime. But manufacturing and selling them may still be illegal (the law is still unclear).
A person accused under Penal Code 32310 can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is critical for an accused to hire an attorney for the best defense.
Three common defenses to PC 32310 accusations are:
4.1. Coerced confession
This defense applies to the situation where a defendant was charged under PC 32310 following a confession.
California law states that police may not use overbearing measures to coerce a confession.
If a party can show that the police coerced him into a confession, then:
- The judge may exclude the confession from evidence; or,
- The case could get dropped if the party was pressured into confessing to a crime he didn’t commit.
In many PC 32310 cases, suspects are often arrested and accused after an undercover officer buys a large capacity magazine from them. Any later charges under Penal Code 32310, though, must get dropped if the officer lured a suspect into committing the crime.
This “luring” is known as entrapment. It applies to overbearing official conduct on the part of police officers, like pressure, harassment, fraud, flattery, or threats. Entrapment is an acceptable legal defense provided that the accused shows he only committed the crime because of the entrapment.
4.3. No probable cause
This line of defense tries to exclude evidence that is being used against a defendant for a PC 32310 violation.
California law says that a police officer must have probable cause to detain or arrest a suspect. “Probable cause” essentially means that there is a reasonable belief that someone committed a crime (based on all of the circumstances).
If a person was stopped or arrested without probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. The exclusion of evidence regarding large capacity magazines could result in the dismissal or reduction in charges.
5. Penalties, punishment, and sentencing
If charged as a misdemeanor, the crime is punishable by imprisonment in a county jail for up to one year.8
If charged as a felony, the crime is punishable by imprisonment in a county jail for a term of:
- 16 months;
- Two years; or,
- Three years.9
The possession of a large capacity magazine is no longer a crime. When it was a crime, it was is punished differently than the other illegal acts under Penal Code 32310. The possession of a large capacity magazine was a wobblette offense, meaning that it could be punished as either a California infraction or a misdemeanor.
If charged as an infraction, the crime was punishable by a fine not to exceed $100 per each magazine.10
If charged as a misdemeanor, the crime was punishable by:
- A fine of up to $100 (per magazine); and/or;
- A sentence of up to one year in a county jail.11
6. Related offenses
There are three crimes related to illegal acts with large capacity magazines. These are:
- Carrying a concealed weapon – PC 25400;
- Carrying a loaded weapon – PC 25850; and,
- Assault weapon crimes – PC 30600
6.1. Carrying a Concealed Weapon – PC 25400
Penal Code 25400 PC, California’s carrying a concealed weapon law, makes it a crime for a person to carry a concealed firearm on his person or in his vehicle.12
This law applies to both loaded and unloaded firearms.
Further, a person must know that he is concealing a gun to be guilty under PC 25400.13
Absent aggravating circumstances, carrying a concealed firearm is a misdemeanor. If convicted of this misdemeanor, a person may be punished with:
- Up to one year in a county jail; and/or,
- A maximum fine of $1,000.14
A PC 25400 violation can be charged as a felony if certain aggravating circumstances are present in a case (e.g., the defendant has a prior conviction of a California firearm offense).
6.2. Carrying a Loaded Weapon – PC 25850
California Penal Code 25850 PC makes it a crime to carry a loaded firearm in a vehicle or public place.15
A “public place” is any place which is open to common and general use and is readily accessible by anyone wishing to go there.16
As with the crime of carrying a concealed weapon under PC 25400, most Penal Code 25850 crimes will be charged as misdemeanors. If so, they are punishable by:
- Up to one year in a county jail; and/or,
- A maximum fine of $1,000.17
However, as with charges under PC 25400, acts of carrying a loaded weapon can be charged as a felony if certain aggravating factors are present in a case.
6.3. Assault Weapon Crimes – PC 30600
Penal Code 30600 PC is California’s law regarding assault weapons and .50 BMG (Browning Machine Gun) rifles. It prohibits:
- giving away,
- lending, and/or
assault weapons and BMG rifles, except in very specific circumstances.
The penalties for violating PC 30600 will vary from minor infractions to very severe felonies. These are punishable by both a fine and/or a prison term. The specific penalty will vary depending on the specific act a defendant commits and the underlying facts of the case.
On June 4, 2021, a federal judge overturned California’s ban on assault weapons on the grounds that it violates the constitutional right to bear arms under the Second Amendment. But assault weapons remain illegal in California while the state appeals the ruling.18
For further assistance…
If you or someone you know has been accused of a crime, we invite you to contact us for a free consultation.
- Duncan v. Becerra, No. 19-55376, D.C. No. 3:17-cv-01017-BEN-JLB (9th Cir, August 14, 2020), affirming Duncan v. Becerra, 366 F. Supp. 3d 1131 (Southern District of California, 2019)(“California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.”); Teri Figueroa, 9th Circuit ends California ban on high-capacity magazines, LA Times (August 14, 2020).
- California Penal Code 32310(c) PC; see note 1.
- California Penal Code 16740 PC; see note 1.
- See same.
- California Penal Code 16590 PC; see note 1.
- California Penal Code 33225 PC.
- The court case is Wiese v. Becerra.
- California Penal Code 32310(a) PC.
- See same.
- California Penal Code 32310(c) PC.
- See same.
- California Penal Code 25400 PC.
- See same.
- California Penal Code 25400(c)(7).
- California Penal Code 25850 PC.
- California Jury Instructions – Criminal – CALCJI 16.431.
- California Penal Code 25850(c) PC.
- California Penal Code 30600 PC; Don Thompson, California’s three-decade-old ban on assault weapons is unconstitutional, federal judge rules, Los Angeles Times (June 4, 2021)(“U.S. District Judge Roger Benitez of San Diego ruled that the state’s definition of illegal military-style rifles unlawfully deprives law-abiding Californians of weapons commonly allowed in most other states and by the U.S. Supreme Court.”).