DC Roster Case: DC Attempts to Fold

[hoffmang]

This morning, the District of Columbia filed the following notice (http://www.hoffmang.com/firearms/dc-roster/notice_061709.pdf) in the Hanson v DC (http://wiki.calgunsfoundation.org/index.php/Hanson_v_District_of_Columbia) case and the following emergency regulations (http://www.hoffmang.com/firearms/dc-roster/regs_061709.pdf). This is an attempt to moot the Roster challenge in DC by significantly broadening which handguns are considered on a newly created DC Roster. Here is SAF's press release (http://www.saf.org/viewpr-new.asp?id=298).

However, the new roster still doesn't allow the High Standard revolver that was the firearm in the Heller case to be registered...

We will be reviewing that and the exact status of the XD BiTone as well as looking closer at the new regulations.

Note that this is quite useful to have a California Federal Court take judicial notice that the District of Columbia agrees that the California Roster is likely unconstitutional.

-Gene

[PolishMike]

Note that this is quite useful to have a California Federal Court take judicial notice that the District of Columbia agrees that the California Roster is likely unconstitutional.

-Gene


Care to expand a bit?

[bigcalidave]

Well now.. They take the rosters from cali, mass and MARYLAND, and they add the bit we complain about here with different finishes being ok...
Still a damn restriction!!

Nobody wants to get it right, do they.

[DDT]

Well now.. They take the rosters from cali, mass and michigan, and they add the bit we complain about here with different finishes being ok...
Still a damn restriction!!

Nobody wants to get it right, do they.

Deck Chairs, Titanic, rearrange.

[demnogis]

Looks like they form their "roster" from other states with the most controls on firearms ownership.

I can't wait for the CA roster to get taken down and the chain reaction it will have nationally for prohibitions on ownership like DC intends.

[DDT]

Maybe they're just trying to help other states instead of just California?

[Untamed1972]

Looking at Heller's situation vs. CA:

When the CA roster was put into effect that did not preclude ownership of previously owned handguns that did not make the list.

Although Heller owned his gun "illegally". That ban was struck down which meant the his gun was never actually "illegal". Correct?

So once the handgun ban was struck down then anyone who owned a handgun should be grandfathered in. Since the DC roster should only apply at most to guns purchased AFTER the roster was put into effect.

Correct?

[grammaton76]

What's useful here is that DC is strictly federal, and they are more or less admitting that the CA ban doesn't pass constitutional muster.

If a constitutional test is to be applied to California's roster, the fun thing is that on a federal level it has already failed, so if our case here in CA escalates, there's already precedent.

This may pressure CA's court system into just folding on the Roster since they know things won't go well at the appellate level.

[Legasat]

Keeping fingers crossed...

[Untamed1972]

What's useful here is that DC is strictly federal, and they are more or less admitting that the CA ban doesn't pass constitutional muster.

If a constitutional test is to be applied to California's roster, the fun thing is that on a federal level it has already failed, so if our case here in CA escalates, there's already precedent.

This may pressure CA's court system into just folding on the Roster since they know things won't go well at the appellate level.

So then really the only question that remains is that of: "is having any kind of roster at all constitutional?"

[sgtlmj]

Well now.. They take the rosters from cali, mass and michigan, and they add the bit we complain about here with different finishes being ok...
Still a damn restriction!!

Nobody wants to get it right, do they.

There is no roster in Michigan. The only weird thing we have concerning handguns is that anything under 30" must be registered as a handgun. This is actually an advantage because one could register an AK underfolder as a pistol and carry it loaded in their vehicle under their CPL, whereas a standard long gun would need to be unloaded and cased.

Sorry for the drift.

[yellowfin]

Gee, now that you mention it, all rifles with barrels under 16" is kind of an arbitrary list too.

[grammaton76]

So then really the only question that remains is that of: "is having any kind of roster at all constitutional?"

That's getting just a touch ahead of ourselves here.

They could probably make a point that a roster would pass constitutional muster if it were only keeping mechanically unsafe handguns out of the hands of the militia. However, paying a big fee to list and mag disconnect safeties, etc... probably not so defensible.

[Maestro Pistolero]

Although Heller owned his gun "illegally"

I don't believe Heller stored the weapon in the district until after the case was settled.

Gura has said he will not rest until the roster is history. If he is successful, combined with incorporation in the 9th, it looks very good for for the demise of the roster in CA. Gura's position is that there is no way to have any list that includes all of the firearms protected under the second amendment. I love this guy. His common sense and mild demeanor are the perfect presentation for such a fierce 2A litigator.

Having the D.C. local Government on the ropes is an excellent position to be in, considering what goes for D.C., will likely go for the rest of the country after the next SCOTUS term.

[bigcalidave]

There is no roster in Michigan. The only weird thing we have concerning handguns is that anything under 30" must be registered as a handgun. This is actually an advantage because one could register an AK underfolder as a pistol and carry it loaded in their vehicle under their CPL, whereas a standard long gun would need to be unloaded and cased.

Sorry for the drift.

Fixed that, I meant maryland. Nobody will really know out here :P

[Rivers]

Even if the roster dies, what if any impact does that have on the 10-round magazine capacity limit? Aren't those separate laws?

[truthseeker]

THEY ARE WEASELS!!

Seems to me that they are trying to perform "damage control" before they loose their case!

Man, I am saddened that our government is trying to pull this crap.

It seems this issue is becoming a battle of who can argue their point more concisely rather than what the freakin 2A of the U.S. Constitution says!

[bwiese]

Even if the roster dies, what if any impact does
that have on the 10-round magazine capacity limit? Aren't those separate laws?

Yes.

Bottom line, the Roster will fail.

What could happen is the *inverse* - where, on its own time & budget, the state test guns and if they're grossly unsafe, they're then banned from sale. That might well receive court support. But blanket bans for no reason, for trivial reasons, or for not paying to stay on a list all will go away.

[bsim]

I'm confused. From p.2 of the filing:The emergency rules were adopted, inter alia, based on 1) recognition that California permits sale of firearms that have superficial differences to those firearms on its roster;...When did (does) CA permit sales of firearms that have superficial differences to rostered firearms?

[bsim]

And:...Moreover, while the District worked expeditiously to correct perceived flaws in its firearms-regulation regime, the timing of that process was dependent on a number of factors outside the defendants’ control, including potential action by Congress.Is something bigger afoot?

[Maestro Pistolero]

Man, I am saddened that our government is trying to pull this crap.

Me. too. Their way of thinking (i.e. no regard for the constitution) is so foreign to me that I can't begin to get my brain around it. Even more surprising is that it seems to be ALL of them in DC. I mean WTF? Did they all take an oath to desecrate the Second Amendment? Did NONE of them learn to revere the Bill of Rights, or is ignorance that rampant in DC? They need a SCOTUS @$$-whooping that they won't soon forget.

The problem is that the consequences of their actions thus far seem to be few and far between. As we get more and more definitive rulings, I hope that the cost politically, financially and legally will become too much to bear.

We still need to win the hearts and minds. I would love to see an ongoing PR campaign that would change the general public's perception of what it means to be a firearms owner. Gun ownership needs to be restored as the symbol of freedom, and individual responsibility, and liberty that it was for the first two hundred thirty years. We will get no better insurance of the future of the 2A than that.

OT RANT OVER. PLEASE RESUME NORMAL PROGRAMMING.

[Gray Peterson]

And:Is something bigger afoot?

The DC vote with the gun amendment adding onto it.

[aileron]

Deck Chairs, Titanic, rearrange.

Shouldnt that be something like:

titanic.deck_chairs(rearrange)

or

TITANIC deck_chairs("rearrange");

?

I haven't coded in awhile so I need a good refresher, but that should do it. :p

[CaptainGlock]

I'm confused. From p.2 of the filing:When did (does) CA permit sales of firearms that have superficial differences to rostered firearms?

"Cosmetic" changes and changes in grips don't necessarily make for a new model. The Glock 21SF with single-side mag release and Glock rail made the list (without a mag disconnect) because it was ruled "just" a G21 (already on the list) with a grip change. The same argument worked for the G30SF, G20SF and, I think, the G29SF. The other two versions of the G21SF (with ambi mag release and either a Glock or a Picatinny rail) are considered new models.

On the other hand, Glock models with olive-drab frames are considered different models than the black-framed ones, even though they are identical except for the pigment used in the polymer! :confused:

[tiki]

Shouldnt that be something like:

titanic.deck_chairs(rearrange)

or

TITANIC deck_chairs("rearrange");

?

I haven't coded in awhile so I need a good refresher, but that should do it. :p

pushd
mov edx, offset deck_chairs
push edx
mov ecx, offset titanic
push ecx
call rearrange
test al, al
popd

[bigcalidave]

"Cosmetic" changes and changes in grips don't necessarily make for a new model. The Glock 21SF with single-side mag release and Glock rail made the list (without a mag disconnect) because it was ruled "just" a G21 (already on the list) with a grip change. The same argument worked for the G30SF, G20SF and, I think, the G29SF. The other two versions of the G21SF (with ambi mag release and either a Glock or a Picatinny rail) are considered new models.

On the other hand, Glock models with olive-drab frames are considered different models than the black-framed ones, even though they are identical except for the pigment used in the polymer! :confused:

I thought the intent of the CA roster was to not require TESTING of each additional model based on a difference of solely finish, however they have to be added individually to the roster and the fees have to be paid for EACH MODEL AND COLOR... Right?

[Librarian]

pushd
mov edx, offset deck_chairs
push edx
mov ecx, offset titanic
push ecx
call rearrange
test al, al
popd

Bah! Macro programmers. That's what compilers are for!

I'd rather create a 'rearrange' method, so many things can be rarranged, so that call would be something like

Rearrange(TITANIC.deck_chairs);

As distinct from
Rearrange(TITANIC.musicians);
or
Rearrange(LUSITANIA.deck_chairs);

[bohoki]

i'm a bit confused is dc wanting to use ca's active roster or the roster as it stands at the time of the law?

cause it does seem unfair to allow another state control what the local government will allow either way if its as of now or in the future with things falling off the list

[FABIO GETS GOOSED!!!]

Note that this is quite useful to have a California Federal Court take judicial notice that the District of Columbia agrees that the California Roster is likely unconstitutional.

Judicial notice of what, under what federal rule of evidence/procedure? I don't understand what you mean here.

[bruss01]

The 2AF press release sounds like the suit has been won, settled, or mooted by a change in law without giving much in the way of details. What I have read in this thread leads me to believe otherwise - it sounds like PART of the suit has been mooted, and part remains unsettled. Based on Gura's statement that he will press on, am I to understand the suit is still in litigation? It sounds like the issue of Dick Heller's revolver being banned, in direct defiance of the Supreme Court verdict, is sufficient grounds to continue the suit currently filed.

Is there some rule against passing an emergency change in the law you are being sued for, only to quickly change it back once the opposition legal team has dropped the suit and gone home? If not, there should be.

[markw]

Some good stuff here explaining/tracking why it's so screwed up.

http://www.ourcaucus.com

[sreiter]

Bah! Macro programmers. That's what compilers are for!

I'd rather create a 'rearrange' method, so many things can be rarranged, so that call would be something like

Rearrange(TITANIC.deck_chairs);

As distinct from
Rearrange(TITANIC.musicians);
or
Rearrange(LUSITANIA.deck_chairs);

in my world its

TITANIC.deck_chairs(Rearrange)

because rearrange is the function

like

if (rearrange) do;
.
.
enddo

function rearrange;
return true ;
end function;

your app would define all the variables on the titanic and they're attributes (chair is x size, x color, x dimensions, x location on the screen)

titanic.chair
titanic.deck
titanic.life_boat

so you would want to do action on the variable

so to zoom in on a chair., you'd chk cursor location, and if its on a chair, and the click was the correct one, you would;
titanic.chair(increase_chair_size);

increase_chair_size;
titanic.chair.size += 500
end;

[tiki]

Bah! Macro programmers. That's what compilers are for!

I'd rather create a 'rearrange' method, so many things can be rarranged, so that call would be something like

Rearrange(TITANIC.deck_chairs);

As distinct from
Rearrange(TITANIC.musicians);
or
Rearrange(LUSITANIA.deck_chairs);

:puke:
Managed Code

[The Wingnut]

That's getting just a touch ahead of ourselves here.

They could probably make a point that a roster would pass constitutional muster if it were only keeping mechanically unsafe handguns out of the hands of the militia. However, paying a big fee to list and mag disconnect safeties, etc... probably not so defensible.

Indeed, one step at a time...I like that we're essentially turning the left's 'creeping incrementalism' back on them...except there's no need for us to be underhanded about it!

[swaits]

Bleh.. embrace the Ruby.. you won't regret it.

deck_chairs = deck_chairs.sort_by { rand }

[Rivers]

Yes.

Bottom line, the Roster will fail.

What could happen is the *inverse* - where, on its own time & budget, the state test guns and if they're grossly unsafe, they're then banned from sale. That might well receive court support. But blanket bans for no reason, for trivial reasons, or for not paying to stay on a list all will go away.

But is the roster tied to CA's 10-rd magazine limit in any way? Assuming the roster dies or otherwise becomes irrelevant, will CA's 10-rd magazine capacity limit survive?

[Librarian]

:puke:
Managed Code :)

When I think of 'managed code', I think ...

When you're worried about a 20-year project with 10 major releases totaling 9 million or so lines of C (for example, the Informix database product), source code management is kind of important. ;)

[GoodEyeSniper]

What's useful here is that DC is strictly federal, and they are more or less admitting that the CA ban doesn't pass constitutional muster.

If a constitutional test is to be applied to California's roster, the fun thing is that on a federal level it has already failed, so if our case here in CA escalates, there's already precedent.

This may pressure CA's court system into just folding on the Roster since they know things won't go well at the appellate level.

You think there's really any chance of them "just folding" on the roster? I'm truly asking, because I would have no idea, but my gut tells me not in a million years.

When I think of the anti-politicians, and they get to an unwinnable battle, I think of a toddler at the supermarket, laying on the ground screaming until he gets a snickers.

[ivanimal]

You think there's really any chance of them "just folding" on the roster? I'm truly asking, because I would have no idea, but my gut tells me not in a million years.

When I think of the anti-politicians, and they get to an unwinnable battle, I think of a toddler at the supermarket, laying on the ground screaming until he gets a snickers.

Looking at the state of affairs money wise, it would be prudent to cut their losses. But then again when are they ever prudent?

[Maestro Pistolero]

If DC earns the ire of the Supreme Court with their arrogance, I guarantee that the court has ways of bringing them to their knees. So does congress, from whom the DC government derives all of it's authority. May we all live to see the day. . .

[bwiese]

But is the roster tied to CA's 10-rd magazine limit in any way? Assuming the roster dies or otherwise becomes irrelevant, will CA's 10-rd magazine capacity limit survive?

No, why would you expect that?

They are separate bodies of law.

[Shotgun Man]

If DC earns the ire of the Supreme Court with their arrogance, I guarantee that the court has ways of bringing them to their knees. So does congress, from whom the DC government derives all of it's authority. May we all live to see the day. . .

You gotta be kidding me. The democratic congress thinks Heller was wrongly decided. Feinstein et al would love to have its holding eviscerated.

[tiki]

:)

When I think of 'managed code', I think ...

When you're worried about a 20-year project with 10 major releases totaling 9 million or so lines of C (for example, the Informix database product), source code management is kind of important. ;)

Ha ha ha. I said 'managed code' not 'source control' :p
Take those millons of lines and sqeeze them on a 4 MB flash. Oh, and you get to manage your own memory, schedule your own threads and write your own paging system.
A 20 year project with a release every 2 years? How about an architecture change every 9 months? :D

[tiki]

You gotta be kidding me. The democratic congress thinks Heller was wrongly decided. Feinstein et al would love to have its holding eviscerated.

Exactly. I still think they are looking at that as a long term option after a change in the court makeup.

[1JimMarch]

It appears to me that THE most obviously wrong (morally, constitutionally, logically!) part of the California law is where perfectly safe guns automagically become unsafe the moment a manufacturer or importer stops paying a yearly bounty to make them stay safe.

Right?

That appears to be the first part the DC attorneys are ready to run away from, screaming...

[HondaMasterTech]

The roster in California sounds a bit like extortion.

[hoffmang]

Judicial notice of what, under what federal rule of evidence/procedure? I don't understand what you mean here.

I shouldn't have used the technical term. In a case that has arguably always been related, the governmental entity chose to amend its laws which will likely qualify for prevailing party attorney's fees. That's not binding precedent whatsoever, but it is persuasive.

-Gene

[aileron]

pushd
mov edx, offset deck_chairs
push edx
mov ecx, offset titanic
push ecx
call rearrange
test al, al
popd

Hahaha!!!!

:King:

I didn't expect my comment to almost be thread jacking a very important thread. But that was great reading everyone's comments, I was busting up. Moving on...

I also want to know....


Is there some rule against passing an emergency change in the law you are being sued for, only to quickly change it back once the opposition legal team has dropped the suit and gone home? If not, there should be.

[truthseeker]

Judicial notice of what, under what federal rule of evidence/procedure? I don't understand what you mean here.

FABIO, you always make me laugh when you play Devil's Advocate against EVERYTHING that Gene posts.

You must love to argue..er uh discuss issues with Gene.

All I know is I have been compiling a list (for years) of every handgun that I want to own and NONE of them are on the list.

I hope "the list" just plain goes away!

[Bugei]

:puke:
Managed Code

Write your own compiler and call it anything you like.

MoveAllThem(Deckchairs).OnThatThere(Bigboat.Titani c)

Since it's an exercise in futility, you could actually do it as an interpreter instead.

[Bugei]

Looking at the state of affairs money wise, it would be prudent to cut their losses. But then again when are they ever prudent?

And thus a tactic suggests itself; bankrupt DC with litigation. True, they have deep pockets, since they're ruthless enough to tax their citizens into poverty in order to have their way. But if enough people nationwide tossed some money into the pot, I think Gura et al could stay the course long enough to have the local DC politicians dragged through the streets by the same DC citizens.

It's worked for the bad guys in the past. Just keep litigating until you put your enemy out of business. Make it too expensive to continue.

[yellowfin]

But is the roster tied to CA's 10-rd magazine limit in any way? Assuming the roster dies or otherwise becomes irrelevant, will CA's 10-rd magazine capacity limit survive?No, but the 10 round limit fails the "dangerous and unusual" test as they are "in common use".

[command_liner]

The specific issue of the XD Bitone 45 is something I have worked on
for a few years. Across the years I personally pointed out the illegal behavior of the state to Chuck M, Jason, Ed W, Paul P, and even Alan G.

The law permits handgun makers to petition for exemption from
extra testing based on the concept of similarity. The ultimate
example is the Springfield XD in multiple colors. The serialized part,
the frame, was submitted and approved in black, then the other
color polymer frames were petitioned and approved in green and
tan. No retest.

Then came the Bitone, which uses the same _firearm_, meaning the
serialized part, the black frame, as the approved weapon, but the
addition of a stainless steel slide made it so the product was "unsafe".
The state agrees that one can buy an XD slide in some other state,
and one can then legally assemble an XD Bitone in California, and
that the result is "not unsafe" because the original configuration
(all black) was sold in California. The frame is the firearm, so the
slide color does not matter -- only if you buy it from the approved
roster. If you want to buy a firearm that is not on the roster, the
slide color becomes a critical, decisive safety issue.

In sum: you cannot buy a non-unsafe XD Bitone in California, but
if you buy the slide in some other state, resulting assembled XD Bitone
pistol is non-unsafe in California.

Of course, LEOs can buy "unsafe" Bitone XDs here in California.

This fundamental schizophrenic idiocy eventually resulted in the XD
Bitone 45 being part of the current series of lawsuits. This is closely
related to Gene's administrative law ruling on replacement Glock frames.
Despite the law being very clear, the state is taking multiple, contradictory
positions on what constitutes a firearm. In order for the roster to
exist, there has to be a clear definition of a firearm, and there is no
such definition. That is effectively a prohibition, and is arbitrary and
capricious, so it cannot stand.

[FABIO GETS GOOSED!!!]

FABIO, you always make me laugh when you play Devil's Advocate against EVERYTHING that Gene posts.

That would be a full time job. My post count is pretty low actually. But if someone makes a claim like "Note that this is quite useful to have a California Federal Court take judicial notice that the District of Columbia agrees that the California Roster is likely unconstitutional" it's hard to resist.

First, no court is ever going to take judicial notice of the inference that DC agrees that the California roster is likely unconstitutional. There is no authority to take judicial notice of an inference and it's not the only inference that can be drawn from the DC issuing new regs anyway.

If a court took judicial notice of anything, it would be just the fact of the filing of the lawsuit, the notice filing in the DC case, and the new emergency regs. What element of any of the causes of action in a CA case would these judicially noticed facts tend to prove? There is no evidentiary relevance that I can see. So you may not even get these judicially noticed facts into evidence.

It might be an interesting footnote you could drop in a brief to try to support your legal argument that the CA roster is unconstitutional, but without any analysis or explanation from DC what persuasive value does it have? It's like saying we think DC agrees that these features of the CA roster law are unconstitutional because look what happened, they got sued and then they changed their roster law. Duh.

So on the scale of "usefulness" in a CA case it's at the bottom. It's not "quite useful," it's minimally useful or possibly not useful at all. Unlike a published decision out of the DC court, which a CA court might find persuasive, or not.

[bwiese]

This fundamental schizophrenic idiocy eventually resulted in the XD Bitone 45 being part of the current series of lawsuits. This is closelyrelated to Gene's administrative law ruling on replacement Glock frames.

Despite the law being very clear, the state is taking multiple, contradictory positions on what constitutes a firearm. In order for the roster to exist, there has to be a clear definition of a firearm, and there is no such definition. That is effectively a prohibition, and is arbitrary and
capricious, so it cannot stand.

Beautifully stated!

[383green]

First, no court is ever going to take judicial notice of the inference that DC agrees that the California roster is likely unconstitutional. There is no authority to take judicial notice of an inference and it's not the only inference that can be drawn from the DC issuing new regs anyway.

I hate to say it, but I agree with FGG on this. :eek:

[Untamed1972]

I hate to say it, but I agree with FGG on this. :eek:


To me it's kinda like settling out of court in a civil suit where the defendent agrees to pay out a settle with no admission of fault. Without a court ruling or admission by DC that the roster is unconstitutional then it doesn't seem to help the great cause much. Just hits the reset button making you have to go back and attack the new regs again.

And even if DC did make an admission CA would still say: "So what! We can do what we want till a court tells us different."

[FABIO GETS GOOSED!!!]

Only other observation I want to make is the attorney fee/prevailing party comment is just as goofy as the judicial notice comment. Not worth going into though. This is an interesting development in the DC case but there's no need to overstate its significance.

[Joe]

thanks for the update. tagged for later reading

[hoffmang]

Only other observation I want to make is the attorney fee/prevailing party comment is just as goofy as the judicial notice comment.

That's far less so. If you sue a city on a 1983 and they change the law to moot your case you have a decent chance of being considered the prevailing party for an award of attorney's fees.

-Gene

[383green]

If you sue a city on a 1983 and they change the law to moot your case you have a decent chance of being considered the prevailing party for an award of attorney's fees.

I don't know whether that'll float, but let's take it to the lake and find out! :43:

[FABIO GETS GOOSED!!!]

That's far less so. If you sue a city on a 1983 and they change the law to moot your case you have a decent chance of being considered the prevailing party for an award of attorney's fees.

If DC mooted the case tomorrow by scrapping its entire roster law, the plaintiffs would have no chance of being considered the prevailing party for an award of attorney's fees.

[N6ATF]

Surely the records will show a similar result, one way or the other. Get out your cites!

[hoffmang]

If DC mooted the case tomorrow by scrapping its entire roster law, the plaintiffs would have no chance of being considered the prevailing party for an award of attorney's fees.

Farrar v. Hobby, 506 U.S. 103, 109 (1992)


[T]o qualify as a prevailing party, a civil rights
plaintiff must obtain at least some relief on the merits
of his claim. The plaintiff must obtain an enforceable
judgment against the defendant from whom fees are sought
or comparable relief through a consent decree or
settlement. . . . In short, a plaintiff "prevails" when
actual relief on the merits of his claim materially
alters the legal relationship between the parties by
modifying the defendant's behavior in a way that directly
benefits the plaintiff.


It's not a slam dunk, but it sure looks like the plaintiffs suit altered the legal relationship between the parties by modifying DC's behaviour in a way that directly benefits the plaintiffs.

-Gene

[luvtolean]

The specific issue of the XD Bitone 45 is something I have worked on
for a few years. Across the years I personally pointed out the illegal behavior of the state to Chuck M, Jason, Ed W, Paul P, and even Alan G

Is the black slide made of the same material the Bitone is (Stainless)?

[FABIO GETS GOOSED!!!]

It's not a slam dunk, but it sure looks like the plaintiffs suit altered the legal relationship between the parties by modifying DC's behaviour in a way that directly benefits the plaintiffs.

Actually it is a slam dunk. If the defendant voluntarily modifies its behavior without the court ordering it to, the plaintiff cannot be the prevailing party under the federal fee shifting statutes. No judicial relief, no fees (Farrar).

Here (http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=08-3727&submit=showdkt&yr=08&num=3727) is a recent opinion squarely deciding the point in a civil rights case that was mooted through voluntary action. This is just one example, there is no controversy here. The courts have decided this over and over and over again after Buckhannon.

DC's voluntary action without a court order does not "likely qualify for prevailing party attorney's fees," it does not qualify for prevailing party attorney's fees at all.

So for purposes of a CA federal court taking judicial notice that DC agrees that the CA roster is likely unconstitutional, or persuasive value as qualifying for prevailing party attorney's fees, the new DC regs are not "quite useful," they are totally useless.

[command_liner]

Is the black slide made of the same material the Bitone is (Stainless)?

The Bitone slide is stainless, but that does not matter. The slide is
not the firearm. The slide could be made of peanut butter and fairy
dust. The state freely admits this. A Bitone assembled in California
from a XD frame and a Bitone slide is "not unsafe". Just like if you
add a laser sight and powder coat the slide black -- still "not unsafe".

Read, then re-read Cal Pen 12131.5 and 12001.

Worse yet, for the state, the state already admits that re-formulating
the material that _is_ the firearm, that is the polymer used to make
the frame, does not change the functionality when the color changes.

Even worse for the state is that it says it is perfectly OK to change
the nickle content of the slide, but it does define how much nickle
content change is a problem. A little nickle on the slide is OK,
but more than a little nickle on the slide somehow makes the frame,
which is the firearm, "unsafe".

[DDT]

Why doesn't every mfg just get together and decide to give ONE part model name to all California guns. I would suggest FU-CA. That way they could simply submit one to the state for "testing" and be done with it. We already know that that major changes to the design of a firearm (such as Glock has made) doesn't cause a firearm to fall off the register. So, as long as an XD is only model labeled as an XD who cares WHAT that actual gun looks like?

[kap]

Changes can only be minor, so submitting one handgun or part number does not work. Major changes would require the new firearm to have all the current CA handgun features and be submitted for drop testing.

# 12131.5. (a) A firearm shall be deemed to satisfy the requirements of subdivision (a) of Section 12131 if another firearm made by the same manufacturer is already listed and the unlisted firearm differs from the listed firearm only in one or more of the following features:
(1) Finish, including, but not limited to, bluing, chrome-plating, oiling, or engraving.
(2) The material from which the grips are made.
(3) The shape or texture of the grips, so long as the difference in grip shape or texture does not in any way alter the dimensions, material, linkage, or functioning of the magazine well, the barrel, the chamber, or any of the components of the firing mechanism of the firearm.
(4) Any other purely cosmetic feature that does not in any way alter the dimensions, material, linkage, or functioning of the magazine well, the barrel, the chamber, or any of the components of the firing mechanism of the firearm.
(b) Any manufacturer seeking to have a firearm listed under this section shall provide to the Department of Justice all of the following:
(1) The model designation of the listed firearm.
(2) The model designation of each firearm that the manufacturer seeks to have listed under this section.
(3) A statement, under oath, that each unlisted firearm for which listing is sought differs from the listed firearm only in one or more of the ways identified in subdivision (a) and is in all other respects identical to the listed firearm.
(c) The department may, in its discretion and at any time, require a manufacturer to provide to the department any model for which listing is sought under this section, to determine whether the model complies with the requirements of this section.

[DDT]

Changes can only be minor, so submitting one handgun or part number does not work. Major changes would require the new firearm to have all the current CA handgun features and be submitted for drop testing.

What changes? The model doesn't have to be re-rested. I believe that the code you are quoting only defines when a new model doesn't need testing.

[Librarian]

Washington Post on DC's latest move
http://www.washingtonpost.com/wp-dyn/content/article/2009/06/19/AR2009061901822.html?sid=ST2009061901861
h/t Eugene Volokh

D.C. Expands List Of Allowed Guns To Avert Lawsuit

By Tim Craig
Washington Post Staff Writer
Saturday, June 20, 2009

The D.C. government released emergency regulations yesterday that greatly expand the models of handguns that District residents can own, a shift designed to stave off another lawsuit over its compliance with the Second Amendment.

The new regulations, which come as the District continues to grapple with last year's Supreme Court decision that threw out the city's gun ban, will allow residents to legally obtain at least 1,000 additional types and models of handguns.

City leaders sought to play down the effects of the new regulations, but gun rights advocates said they were another boost to their efforts to undo the District's long-held restrictions on personal possession of weapons.

"We are gratified the District is recognizing their approach is unworkable and unconstitutional," said Alan Gura, who was the lead attorney in the District of Columbia v. Heller Supreme Court case. "There is now a whole new universe of guns that will now be available."

In addition to permitting guns in the District that are legal in California, the city will also allow residents to apply to register handguns that are permissible in Massachusetts and Maryland.
...

[HondaMasterTech]

I like how they refer to their "compliance"... They think that what they are doing now isnt infringing on the 2nd amendment.

[mblat]

so... considering that "Heller" gun still not on the list..... how does it really change things?

[hoffmang]

DC's voluntary action without a court order does not "likely qualify for prevailing party attorney's fees," it does not qualify for prevailing party attorney's fees at all.

Buckhannon Bd. & Care Home, Inc. v. West Va. Dept of Health & Human Res., 121 S. Ct. 1835 (2001) (http://supct.law.cornell.edu/supct/html/99-1848.ZS.html) is the actual controlling case and it looks like you're right. I personally hadn't looked at this issue deeply since before then on a different matter (cryptography.) Amusing that Ginsburg took the position that used to be the norm.

So for purposes of a CA federal court taking judicial notice that DC agrees that the CA roster is likely unconstitutional, or persuasive value as qualifying for prevailing party attorney's fees, the new DC regs are not "quite useful," they are totally useless.
Let's watch and see.

so... considering that "Heller" gun still not on the list..... how does it really change things?
DC announced to the court and attorneys and later the media in DC this morning that they'd put out another "emergency regulation." We're presuming that that one will allow the Heller gun to be registered as well.

-Gene

[HondaMasterTech]

The emergency regulation should read, "After well deserved consideration it is our conclusion that we have disregarded the 2nd amendment for far too long. Effective immediately no person shall be denied their constitutionally protected right to keep and bear arms."

[GoodEyeSniper]

It appears to me that THE most obviously wrong (morally, constitutionally, logically!) part of the California law is where perfectly safe guns automagically become unsafe the moment a manufacturer or importer stops paying a yearly bounty to make them stay safe.

Right?

That appears to be the first part the DC attorneys are ready to run away from, screaming...

It's the same thing with automotive "CARB approved" parts. For instance, a cold air intake, it's just a pipe, with a filter on the end, with a few vacuum/sensor connections, depending on the car. But if a smaller company doesn't fork over the dough, they're not environmentally friendly, and your car becomes unsmoggable.

[N6ATF]

DC announced to the court and attorneys and later the media in DC this morning that they'd put out another "emergency regulation." We're presuming that that one will allow the Heller gun to be registered as well.

What's the "Heller gun" again? Didn't he want to register a 1911 and they defined it as a machine gun?

The emergency regulation should read, "After well deserved consideration it is our conclusion that we have disregarded the 2nd amendment for far too long. Effective immediately no person shall be denied their constitutionally protected right to keep and bear arms."

"And these specific code numbers, all that relate to gun possession by law-abiding citizens are heretofore repealed, retroactive to 1776: _________"

[Librarian]

What's the "Heller gun" again? Didn't he want to register a 1911 and they defined it as a machine gun?


"The handgun at issue in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), was a High Standard 9-shot revolver in .22 with a 9.5" Buntline-style barrel."
From Hanson v DC

[bwiese]

It's the same thing with automotive "CARB approved" parts. For instance, a cold air intake, it's just a pipe, with a filter on the end, with a few vacuum/sensor connections, depending on the car. But if a smaller company doesn't fork over the dough, they're not environmentally friendly, and your car becomes unsmoggable.

Not quite true, and a poor example - not parallel.

CARB EOs do not involve fundamental constitutional rights. And there's substantial risk changing certain parts - including the items you mention - could raise the emissions profile of the car. Most boneheads don't know how EFI/engine control works and think an I&M smog test down at the corner ship is good enough for compliance.

Back when I was doing this, it didn't cost that much at all for actual 'approval' by CARB to get an EO for your part (the number you print on a sticker so the smog referree passes you even though it looks nonstandard on visual inspection or on diagnostic readout).

The actual testing done by the private certified 'bag house' lab with all its instrumentation is the expensive part - that costs $8K minimally, often likely more - esp as my experience doing this was over 11 yrs ago.

[nooner]

Not quite true, and a poor example - not parallel.

CARB EOs do not involve fundamental constitutional rights. And there's substantial risk changing certain parts - including the items you mention - could raise the emissions profile of the car. Most boneheads don't know how EFI/engine control works and think an I&M smog test down at the corner ship is good enough for compliance.

Back when I was doing this, it didn't cost that much at all for actual 'approval' by CARB to get an EO for your part (the number you print on a sticker so the smog referree passes you even though it looks nonstandard on visual inspection or on diagnostic readout).

The actual testing done by the private certified 'bag house' lab with all its instrumentation is the expensive part - that costs $8K minimally, often likely more - esp as my experience doing this was over 11 yrs ago.Legally it may not involve constitutional rights because it is considered a privilege, which I disagree with since the government shouldn't be regulating that part of my life anyway, among many others.

And actually the fact is all that should matter is whether it can pass the sniffer or not period, end of story. The visual inspection is BS. And the "boneheads" can blow up their car if they want to, who cares?

Approval paid for one car part and another similar part that didn't pay the extortion being illegal? Come on, get real.

The K&N filtercharger kit is simply an open element filter with a little shield bolted directly to the MAF. They paid the extortion and it is legal in CA. Another product from a different manufacturer which sells the exact same open element K&N filter bolted directly to the MAF with a little shield and did not pay the extortion money is illegal. That sir is a complete joke and it is beyond irrational to attempt to defend that practice.

And back when I was repairing cars at a bay area dealer I did know more than a little something about EFI.

[artherd]

And actually the fact is all that should matter is whether it can pass the sniffer or not period, end of story.

Actually it's not - a full OEM emission test is significantly more costly and involved than the sniffers at smog stations (even the enhanced dyno tests.) Things like warmup/cool-down rates come into play.

What the sniffer is designed to do, is detect gross mis-operation of an OEM vehicle that DID pass the tests.

That said, I question the science and ethics behind much of automotive emissions law.

[FABIO GETS GOOSED!!!]

Let's watch and see.


What will be interesting to watch and see is how many plaintiffs are left standing because of DC mooting claims. Seems to me that's the real story here. Then they'll have to look for another plaintiff who says her ability to defend herself in the home with a usable firearm is meaningfully impeded because she likes two-tone handguns but not OD or black ones, haha.

[7x57]

And actually the fact is all that should matter is whether it can pass the sniffer or not period, end of story. The visual inspection is BS. And the "boneheads" can blow up their car if they want to, who cares?


At this point it can't be done; the stations don't have the equipment to do it properly. I mentioned this once
here. (http://www.calguns.net/calgunforum/showpost.php?p=2421599&postcount=11)

I also wrote up what I remembered in more detail in reply to a PM; here is my side of the conversation:


Well, this is what I remember, which may or may not be accurate. The current protocol tests the emissions at two speeds, 25 and 35 mph I think, and also I think isn't under full load. This is by no means a decent test of the engine's performance under driving conditions!

He didn't get this technical, but what I suspect happens is that a few manufacturer's samples get a much fuller test, and that data is used to construct a two-parameter curve, which is put in the software. Then your car is tested at just two speeds and those two data points are plugged into the software to produce a prediction. I think that's why parts have to be approved--the state has to have worked out how to estimate the real-world performance from only two points.

What he told me is that Texas did it right--their test protocol is at several different speeds and load conditions, much more like actual driving, and that is enough information to predict the emissions no matter what you've done to your engine. His expression was that in Texas you can put an aircraft engine in your car and it doesn't matter as long as it passes smog.

Now, the bad news is that the people who actually do the tests, even at test-only stations, are unskilled labor who can't even be relied on to remember what is in their certification test booklet (he was a bit blunter, but that's the gist). So basically they can't do anything at all except the one thing they've been trained to do, certainly not do a different protocol. The state would have to have a new cert. program or dramatically upgrade their existing one.

Here's the worse news--from what he said, I suspect it isn't merely the test protocol but also the test equipment itself. He seemed to indicate that to do something like Texas' program it would have had to be done when they went to OBD II, because they were already upgrading all the equipment and would have needed to choose better (and probably more expensive) equipment to do a real test. I may have misunderstood and it may just be the protocol, but what I remember is the impression that there was a serious infrastructure issue. So I don't think CA even has the option to do better now without massive changes.


I'm all in favor of people having total liberty with their vehicles and staying legal, but it sounds like a difficult sell.

One problem is something the test-only guy (not the referee he sent me to because my situation was too complicated for him): it's too easy to cheat. He said the state should never have let private garages or test-only businesses (like his!) do the testing anyway, because it's trivial to cheat and everyone does it. When a small businessman says that his industry should not exist and the state should have just done it if it wanted something like honesty, you know there is something seriously wrong with the law. The referee confirmed the ubiquity of cheating--at one point I said to him "all this trouble is because I tried to be legal instead of just going to a station that would cheat, isn't it?" He said yeah, I could have gotten a pass at most street corner stations in LA.




Approval paid for one car part and another similar part that didn't pay the extortion being illegal? Come on, get real.


Well, certainly it's irrational and anti-freedom, but how could it be anything else? This is California, and those are two primary enduring qualities of California law. So far as I can tell, you could do pretty well betting that whenever Sacramento has two choices, it will choose the one that is more complex, harder to follow, more expensive, and creates more bureaucracy. It's just the way they roll.

Consider Hawaii--vastly anti-gun, but apparently not as irrational. From what little I've seen, their oppressive and infringing laws are too simple to have the kinds of loopholes Calguns has exploited so well here. Part of Calguns' success is that CA isn't even good at being evil. And CGF can exploit that in court, as we see already in DC's frantic attempts to change their roster rules rather than have to justify California's intensely ridiculous rules about color, renewal, and the like in federal court. :43:

7x57

[hoffmang]

What will be interesting to watch and see is how many plaintiffs are left standing because of DC mooting claims. Seems to me that's the real story here. Then they'll have to look for another plaintiff who says her ability to defend herself in the home with a usable firearm is meaningfully impeded because she likes two-tone handguns but not OD or black ones, haha.

You misunderstand me. I suggest you observe the impact the DC case has on the California case. I'm confident you underestimate it.

Pending reading the second "emergency regulation" due early next week, it looks like there aren't going to be any usual handguns you can't get. Preliminary research is that the Maryland list is quite expansive and very easy to get handguns added to.

-Gene

[7x57]

Pending reading the second "emergency regulation" due early next week, it looks like there aren't going to be any usual handguns you can't get. Preliminary research is that the Maryland list is quite expansive and very easy to get handguns added to.


Quite clearly DC is more concerned with the principle that they get to decide what you can have than they are with any specific gun. They are fighting for the principle that they are permitted to Infringe, not to keep any gun at all out of DC. My guess is they'll concede on any gun at all, except probably demon-infested NFA weapons ("everyone" knows those are totally different and pants-wettingly evil), if that's what it takes to establish their power to Infringe and to interfere with making choices. There are few clearer demonstrations that this is about control of citizens and not in any way about guns per se.

So the question is, what are the odds that they'll be able to keep some kind of roster or other mechanism to establish their power to control? What are the odds that we can actually strike down the idea instead of the implementation?

7x57

[hoffmang]

So the question is, what are the odds that they'll be able to keep some kind of roster or other mechanism to establish their power to control? What are the odds that we can actually strike down the idea instead of the implementation?


Long term, the chances are very good that we can stop such things. However, by actually moving to a reasonable position, other less reasonable restrictions around the country become more important to attack first/next.

It's likely that the final ruling in Peña may be useful to attack rosters in the more general case for example.

-Gene

[Sobriquet]

You misunderstand me. I suggest you observe the impact the DC case has on the California case. I'm confident you underestimate it.

Pending reading the second "emergency regulation" due early next week, it looks like there aren't going to be any usual handguns you can't get. Preliminary research is that the Maryland list is quite expansive and very easy to get handguns added to.

-Gene

For anyone who is interested, here is a link to Maryland's Safe Gun Roster:

http://www.mdsp.org/services/handgun.asp

Two questions: First, is there a magazine capacity restriction in D.C.? If so, what will happen if they adopt Maryland's list which includes firearms that are only designed for "hi-cap" magazines? The model that immediately jumped into my mind (which is on the Maryland list) is the HK P7M13. I'm not aware of any 10 round magazines for that weapon, but it's on the list.

My second question is that if the roster is so exhaustive as to include all common firearms... what's the government's claimed purpose of having a roster at all?

[7x57]

My second question is that if the roster is so exhaustive as to include all common firearms... what's the government's claimed purpose of having a roster at all?

To keep themselves in your decision loop--oh, wait, you said "claimed," not "actual." My bad. :p

7x57

[yellowfin]

Maryland itself is a great place to attack the concept of may issue because it shares its federal circuit with Virginia, possibly making it more likely to rule favorably. I wonder if any CCW suits are in the works for there. Does anyone know?

[N6ATF]

My second question is that if the roster is so exhaustive as to include all common firearms... what's the government's claimed purpose of having a roster at all?

"For the childruuuunnnn!"

[Sobriquet]

"For the childruuuunnnn!"

Is that a French kid or something?

[N6ATF]

That's the whiny tone they use to justify any and all restrictions of freedom, of which history's greatest dictators would be proud.

:rolleyes:

[Sobriquet]

It was a joke. Not a great joke, but a joke.

[sierratangofoxtrotunion]

automotive emissions law.

I'm interested in the automotive emissions law discussion, but I wouldn't want to contribute to the thread-jack any more than I am. Maybe in off-topic...

[yellowfin]

Everytime I hear the "for the children" line I really wish to see someone counter "My kids want their guns, so what about them?"

[DDT]

To keep themselves in your decision loop--oh, wait, you said "claimed," not "actual." My bad. :p


I believe it is much more nefarious than that. As long as they can get a ruling that permits them to be the "keeper of the list" they can wait out the current court. Gt a gun unfriendly SCOTUS and suddenly guns start disappearing from the list.

[7x57]

I believe it is much more nefarious than that. As long as they can get a ruling that permits them to be the "keeper of the list" they can wait out the current court. Gt a gun unfriendly SCOTUS and suddenly guns start disappearing from the list.

Oh, undoubtedly that is how it would work in practice even if no one planned it that way (though I doubt that); the social dynamics would drive it without any need for conspiracy theories. Provide the opportunity, and when the time comes someone will exploit it. :chris:

There's no other reason to be in the decision loop than to interfere with decisions sooner or later. :eek:

If I said anything that would leave that in doubt, I will anoint myself with sackcloth and ashes and repudiate it most abjectly. :banghead:

7x57

[Sobriquet]

Is there a magazine capacity restriction in D.C.? If so, what will happen if they adopt Maryland's list which includes firearms that are only designed for "hi-cap" magazines? The model that immediately jumped into my mind (which is on the Maryland list) is the HK P7M13. I'm not aware of any 10 round magazines for that weapon, but it's on the list.

Anyone?

[Librarian]

Anyone?

I don't find such a mag-capacity limit.

2 places to look - Westlaw worked, the 'official' DC page just fails to bring up any data.

SUBTITLE J. PUBLIC SAFETY, Unit A. Firearms Control Regulations, Subchapter I. General Provisions.

§ 7-2501.01. Definitions.

They've fixed their 'machine gun' definition, it seems, with their March 31 2009 amendment: (10) "Machine gun" means any firearm which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term "machine gun" shall also include the frame or receiver of any such firearm, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a firearm into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person., and that's where they put the CA AW law stuff at (3)(A).

The MG definition, I think, was the functional limit on mag size and guns which could accept such a mag. Old version, no longer in force said "(10) 'Machine gun' means any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot:

"(A) Automatically, more than 1 shot by a single function of the trigger;

"(B) Semiautomatically, more than 12 shots without manual reloading."

From Westlaw (http://government.westlaw.com/linkedslice/default.asp?SP=DCC-1000).

[yellowfin]

Is there standing for an estoppel suit if the initial suit falls through?

[hoffmang]

There is a 10 round limit for magazine capacity. In fact even possession is banned.

-Gene