View Full Version : Bullet Buttons: Why plain meaning of "detachable magazine" doesn't apply

01-01-2009, 4:30 PM
Buried in a thread that I doubt many read was concern that the plain meaning of "detachable magazine" would be used in a court instead of the validly adopted definition in the California Code of Regulations.

First, I want to re-write the text of the Penal Code (http://caselaw.lp.findlaw.com/cacodes/pen/12275-12278.html) as it actually reads when combined with the CCR (http://ag.ca.gov/firearms/regs/chapter39.pdf) so that everyone can see why the Bullet Button makes a semiautomatic centerfire rifle with a detachable magazine not an AW.

12276.1. (a) Notwithstanding Section 12276, "assault weapon" shall also mean any of the following:
(1) A semiautomatic, centerfire rifle that has the capacity to accept 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.[A]nd any one of the following:

The text above is what happens when you substitute the CCR's validly adopted regulatory definition of "detachable magazine." There were two compelling reasons that this definition was adopted. First was that CA DOJ felt it was clear that belted ammunition and the concept of limiting a rifle to taking no more than 10 round capacity feeding devices was important and part of the legislative intent. Second, they had to deal with a very difficult issue that an imprecise definition of "detachable magazine" could lead to the accidental criminalization of SKS's that wouldn't otherwise have been considered "SKS with detachable magazine" which were already prohibited in 12276 (a)(11). You can see the history by reading the Final Statement of Reasons for the 2000 rulemaking (http://ag.ca.gov/firearms/regs/fsor.pdf) where these were adopted.

The 2000 rulemaking was specifically delegated to DOJ by the Legislature at the time of passage of SB-23 here:

12276.5 (c) The Attorney General shall adopt those rules and regulations that may be necessary or proper to carry out the purposes and intent of this chapter.

A couple of folks who appear to have some legal education have recently tried to say that a court isn't bound by these regulations. However, that's not the case - especially when dealing with criminal matters. I wanted to post some sections from a recent 4th District Appeals Court case entitled Yabsley v. Cingular Wireless, LLC (http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/165/1526.html&search=administrative+regulations) (2008) 165 Cal.App.4th 1526 (August 18, 2008 - requires a free login to findlaw.)

The background on the case is that Cingular is forced to charge sales tax on the full value of certain phones when sold at a discount with service. The requirement comes from a validly adopted regulation at BOE that also contains a safe harbor for complying with the regulation. Yabsley sued saying that the extra $12 he had to pay was an deceptive or unfair business practice. Here is what the court had to say about validly adopted administrative regulations where the Legislature had specifically delegated rulemaking authority.

Regulation 1585 Has the Force and Effect of a Statute and Provides a "Safe Harbor"


[3] Relying on Krumme v. Mercury Ins. Co. (2004) 123 Cal.App.4th 924 , Yabsley contends that statutes can provide a safe harbor, but administrative regulations cannot. In Krumme , the appellate court [165 Cal.App.4th 1534] rejected an insurance company's argument that regulations adopted by the Insurance Commissioner provided a safe harbor. Citing Cel-Tech as authority, the Krumme court said in a footnote: "These materials are not germane to our analysis because our Supreme Court has held that only statutes can create a safe harbor." ( Id. at p. 940, fn. 5.) Cel-Tech , however, dealt with statutes enacted by the Legislature, and the safe harbor they created. There was no reference to regulations. Like the trial court here, we conclude that there is nothing in the Cel-Tech decision purporting to limit the safe harbor doctrine to statutes enacted by the Legislature. fn. 3

[4] The Legislature has delegated to the Board the job of promulgating regulations relating to the administration and enforcement of the tax statutes. (Rev. & Tax. Code, § 7051; Gov. Code, §§ 11342.1, 11342.2.) [5] The Administrative Procedure Act (APA) subjects proposed agency regulations to certain procedural requirements as a condition to their becoming effective. (Gov. Code, §§ 11340 et seq.) Pursuant to the APA, "No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State . . . ." ( Id. , § 11340.5, subd. (a).) If a rule constitutes a regulation within the meaning of the APA (other than an emergency regulation, which may not remain in effect more than 120 days), it may not be adopted, amended or repealed except in conformity with "basic minimum procedural requirements." ( Id. , § 11346, subd. (a).)

The APA requires that the agency give the public notice of its proposed regulatory action (Gov. Code, §§ 11346.4, 11346.5), issue a complete text of the proposed regulation with a statement of the reasons for it ( id. , § 11346.2, subds. (a), (b)), give interested parties an opportunity to comment on the proposed regulation ( id. , § 11346.8), respond in writing to public comments ( id. , §§ 11346.8, subd. (a), 11346.9), and forward a file of all materials on which the agency relied in the regulatory process to the Office of Administrative Law ( id. , § 11347.3, subd. (c)), which reviews the regulation for consistency with the law, clarity, and necessity ( id. , §§ 11349.1, 11349.3). "These requirements promote the APA's goals of bureaucratic responsiveness and public engagement in agency rulemaking." ( Morning Star Co. v. State Bd. of [165 Cal.App.4th 1535] Equalization (2006) 38 Cal.4th 324 , 333.) Any regulation or order of repeal that substantially fails to comply with these requirements may be judicially declared invalid. (Gov. Code, § 11350; California Advocates for Nursing Home Reform v. Bontá (2003) 106 Cal.App.4th 498 , 507.)

[6] The status of regulations promulgated by the Board was described by our Supreme Court in Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7: "[R]egulations adopted by an agency to which the Legislature has confided the power to 'make law,' and which, if authorized by the enabling legislation, bind this and other courts as firmly as statutes themselves . . . ." The rule that valid administrative regulations have the force and effect of law has been reiterated in dozens of California cases. (See, e.g., Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392 , 401; California Teachers Assn. v. Calif. Com. on Teacher Credentialing (2003) 111 Cal.App.4th 1001 , 1008.) Many cases also have upheld safe harbors created by administrative regulations. (See, e.g., Dowhal v. SmithKline Beecham Consumer Healthcare (2004) 32 Cal.4th 910 , 918 [regulation adopted under Proposition 65 providing safe harbor for consumer product warning labels]; Environmental Law Foundation v. Wykle Research, Inc. (2005) 134 Cal.App.4th 60 , 62 [same]; In re Vaccine Cases (2005) 134 Cal.App.4th 438 , 448 [same]; People ex rel. Lungren v. Cotter & Co. (1997) 53 Cal.App.4th 1373 , 1377-1378 [same]; Ingredient Communication Council, Inc. v. Lungren (1992) 2 Cal.App.4th 1480 , 1485-1486 [same]; Pulaski v. Occupational Safety & Health Stds. Bd. (1999) 75 Cal.App.4th 1315 , 1332-1333 [upholding validity of safe harbor regulation regarding standards for employers to reduce repetitive motion injuries]; see also Marshall v. Bankers Life & Casualty Co. (1992) 2 Cal.4th 1045 , 1054-1055 [discussing safe harbor provided by ERISA regulation].)

[7] "'Because agencies granted such substantive rulemaking power are truly "making law," their quasi-legislative rules have the dignity of statutes.'" ( Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493 , 503.) Regulation 1585 has the "force and effect" and the "dignity" of a statute. Therefore, it may, and does, provide a safe harbor to Cingular.

Bottom line: You can safely rely on complying with the definition of "detachable magazine" in 11 C.C.R. 5469.

Fighting FUD again, and again, and again...


01-01-2009, 7:54 PM
I was looking on the CA DOJ's website for 11 C.C.R. 5469, but could not find it.

Do you have a link to the CA DOJ's website (that I can send to a friend) that defines a "detachable magazine" that requires the use a of a tool...


01-01-2009, 8:04 PM
I had linked the term "CCR" above to the CA DOJ's rulemaking but here is the link in full: http://ag.ca.gov/firearms/regs/chapter39.pdf


01-02-2009, 4:40 PM
Interesting case and "safe harbor" argument. I wanted to say that I regret how far off track the locked thread got; I usually avoid debating on the internet and realize I was out of my lane. Happy New Year and continued success with the Calguns foundation.

01-02-2009, 6:57 PM
Interesting case and "safe harbor" argument. I wanted to say that I regret how far off track the locked thread got; I usually avoid debating on the internet and realize I was out of my lane. Happy New Year and continued success with the Calguns foundation.


It's not a case. It's a very long line of cases. Delegated rulemaking that is APA compliant is as good as the statute. Does this satisfy you that 11 CCR 5496 (a) is the law?

To attack bullet buttons based on the CCR definition of "detachable magazine" being infirm can't be done in a criminal case against a rifle owner. It has to be done in a civil case against the state agency for an incorrect/improper rulemaking as the defendant isn't responsible for the regulations - just like Cingular. The case would have to be DA v. Brown, not People v. Gunowner. We've seen a DA attack DOJ in Hunt v. Lockyer where SA Ignatius Chinn commented on one method of creating non detachable magazine in this sworn testimony ( in that case. In a People v. Gunowner case, all the DA can attempt to prove is that the firearm is one that can accept a "detachable magazine" as defined in the CCR. Note that it's the rifle, not the magazine, that matters.


01-02-2009, 7:59 PM
No disagreement that regulations have the force of law unless and until they get knocked down; I don't think a civil case against the DOJ is going to be happening any time soon. (If I did disagree I would be breaking a New Year's resolution if I argued about it on the internet.:D)

01-02-2009, 8:04 PM
(If I did disagree I would be breaking a New Year's resolution if I argued about it on the internet.:D)

Ah, but the internet has come a long way. One can actually have valid and interesting argument on the internet these days - arguments that end up having actual offline consequences.

I personally enjoy living in the future. Our little Army of Davids (http://www.amazon.com/Army-Davids-Technology-Ordinary-Government/dp/1595550542) continues to do great things.