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View Full Version : theoretical 90-day registration period of lower is added


ohsmily
11-29-2005, 8:23 PM
I understand that some people are hoping that by bringing a stripped non-list AR lower into CA and pinning the mag, the DOJ might, at some point, add that brand of lower to the list and allow the current owners with in the state to register the lower as a a full on "assault weapon."

I fully understand the theory and the legality of bringing a stripped non-list AR in.

HOWEVER, my question is, where in HARROTT v. COUNTY OF KINGS does it address this registration period everyone is hoping for. I browsed the entire case (I am a law student with access to westlaw), including the infuriating dissenting opinion (gun-grabber), and I didn't see anything about allowing a 90 day registration period. I read something about a 90 day period, but it seemed more like a period for the CA AG to add the model to the list and inform the public and dealers about it.

If someone would like, I can post the entire opinion off of WestLaw for people to read and decide for themselves.

I am also going to re-read it and take a closer look at this issue.

-Adam

ohsmily
11-29-2005, 8:33 PM
I don't see anything in the following about registration or "grandfathering" for those who already possess the lowers and allowing them to make them assault weapons. Basically, what it seems you would end up with, is the equivalent of a FAB-10 or Vulcan (but with your own pinned magazine style lower). They might grandfather in your lower as configured in its present condition (with pinned mag), but beyond that, people are just hoping against hope.

"The Attorney General shall promulgate a list that specifies all firearms designated as assault weapons in Section 12276 or declared to be assault weapons pursuant to this section. The Attorney General shall file that list with the Secretary of State for publication in the California Code of Regulations. Any declaration that a specified firearm is an assault weapon shall be implemented by the Attorney General who, within 90 days, shall promulgate an amended list which shall include the specified firearm declared to be an assault weapon. The Attorney General shall file the amended list with the Secretary of State for publication in the California Code of Regulations. [] Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, pertaining to the adoption of rules and regulations, shall not apply to any list of assault weapons promulgated pursuant to this section."

Pouchey
11-29-2005, 9:40 PM
I don't understand how it is just that they can charge you a single penny. If they made it some sort of tax (yay!) I could understand, what can you do? But how can they reasonably ask for the public to recoup the cost of processing when they took it upon themselved to create the extra work. Tax dollars from the general fund can pay for their clerical tasks. Just because it is a firearms issue we are forced to carry the dole. My tax dollars go to pay for various liberal minded adjendas where I enjoy no personal gain, but what can you do?

Oh well, I am sure there are numerous other excersises such as this where I am unknowingly screwed everyday.

BTW, way to read the whole text Ted!

ohsmily
11-29-2005, 9:56 PM
http://caag.state.ca.us/firearms/dwcl/12275.htm
Scroll down to Article 3, 12285

Gotcha...It isn't part of the Harrott decision that allows for the possibility of the 90 day registration period; Rather, it is part of the assault weapons statute.

Thank you for the clarification.

--Adam

bwiese
11-29-2005, 10:43 PM
Gotcha... It isn't part of the Harrott decision that allows for the possibility of the 90 day registration period; Rather, it is part of the assault weapons statute.

Yep. The registration window is 90 days. I am not sure if the announcement/declaration window is 90 days before that, or actually during that.

I believe there's probably some announcement period, then a registration period. To combine both might well be legally inadequate.

I do recall that when the Kasler decision came out in mid-August 2000, the AR/AK registration due date was Jan. 23, 2001! The DOJ sent out its Kasler memo (Information Bulletin No. 2000-04-FD) on 8/22/00. So that's exactly 5 - Five! - months.

[Note that AR/AK reg date was over 2 weeks after the end of the SB23 reg period. Thus if you had not filed registration on your AR/AK on or before 12/31/00, between 1/1/2001 and 1/23/2001 it needed to have its pistol grip off during this time to have been legal during this short period.]

artherd
11-30-2005, 12:08 AM
any person who lawfully possessed an assault weapon prior to the date it was specified as an assault weapon pursuant to Section 12276.5 shall register the firearm within 90 days

'specified' is vauge, since pursuant to 12276.5, the DOJ may only 'issue a temporary suspension on the transfer or sale' and then must 'within 30 days hold a trial in a supior court' to actually determine if a subject wepon is an Assault Weapon.

I'd lean towards the interpreation that one must reg said AW 90days AFTER the trial court CONCLUDES it is an assault weapon. Temporary Suspension != Specification.

CPC 12276.5. (a) Upon request by the Attorney General filed in a verified petition in a superior court of a county with a population of more than 1,000,000, the superior court shall issue a declaration of temporary suspension of the manufacture, sale, distribution, transportation, or importation into the state, or the giving or lending of a firearm alleged to be an assault weapon within the meaning of Section 12276 because the firearm is either of the following:
(1) Another model by the same manufacturer or a copy by another manufacturer of an assault weapon listed in subdivision (a), (b), or (c) of Section 12276 which is identical to one of the assault weapons listed in those subdivisions except for slight modifications or enhancements including, but not limited to, a folding or retractable stock; adjustable sight; case deflector for left-handed shooters; shorter barrel; wooden, plastic or metal stock; larger magazine size; different caliber provided that the caliber exceeds .22 rimfire; or bayonet mount. The court shall strictly construe this paragraph so that a firearm which is merely similar in appearance but not a prototype or copy cannot be found to be within the meaning of this paragraph.
(2) A firearm first manufactured or sold to the general public in California after June 1, 1989, which has been redesigned, renamed, or renumbered from one of the firearms listed in subdivision (a), (b), or (c) of Section 12276, or which is manufactured or sold by another company under a licensing agreement to manufacture or sell one of the firearms listed in subdivision (a), (b), or (c) of Section 12276, regardless of the company of production or distribution, or the country of origin.
(b) Upon the issuance of a declaration of temporary suspension by the superior court and after the Attorney General has completed the notice requirements of subdivisions (c) and (d), the provisions of subdivision (a) of Section 12280 shall apply with respect to those weapons.
(c) Upon declaration of temporary suspension, the Attorney General shall immediately notify all police, sheriffs, district attorneys, and those requesting notice pursuant to subdivision (d), shall notify industry and association publications for those who manufacture, sell, or use firearms, and shall publish notice in not less than 10 newspapers of general circulation in geographically diverse sections of the state of the fact that the declaration has been issued.
(d) The Attorney General shall maintain a list of any persons who request to receive notice of any declaration of temporary suspension and shall furnish notice under subdivision (c) to all these persons immediately upon a superior court declaration. Notice shall also be furnished by the Attorney General by certified mail, return receipt requested (or substantial equivalent if the person who is to receive the notice resides outside the United States), to any known manufacturer and California distributor of the weapon which is the subject of the temporary suspension order or their California statutory agent for service. The notice shall be deemed effective upon mailing.
(e) After issuing a declaration of temporary suspension under this section, the superior court shall set a date for hearing on a permanent declaration that the weapon is an assault weapon. The hearing shall be set no later than 30 days from the date of issuance of the declaration of temporary suspension. The hearing may be continued for good cause thereafter. Any manufacturer or California distributor of the weapon which is the subject of the temporary suspension order has the right, within 20 days of notification of the issuance of the order, to intervene in the action. Any manufacturer or California distributor who fails to timely exercise its right of intervention, or any other person who manufacturers, sells, or owns the assault weapon may, in the court's discretion, thereafter join the action as amicus curiae.
(f) At the hearing, the burden of proof is upon the Attorney General to show by a preponderance of evidence that the weapon which is the subject of the declaration of temporary suspension is an assault weapon. If the court finds the weapon to be an assault weapon, it shall issue a declaration that it is an assault weapon under Section 12276. Any party to the matter may appeal the court's decision. A declaration that the weapon is an assault weapon shall remain in effect during the pendency of the appeal unless ordered otherwise by the appellate court.
(g) The Attorney General shall prepare a description for identification purposes, including a picture or diagram, of each assault weapon listed in Section 12276, and any firearm declared to be an assault weapon pursuant to this section, and shall distribute the description to all law enforcement agencies responsible for enforcement of this chapter. Those law enforcement agencies shall make the description available to all agency personnel.
(h) The Attorney General shall promulgate a list that specifies all firearms designated as assault weapons in Section 12276 or declared to be assault weapons pursuant to this section. The Attorney General shall file that list with the Secretary of State for publication in the California Code of Regulations. Any declaration that a specified firearm is an assault weapon shall be implemented by the Attorney General who, within 90 days, shall promulgate an amended list which shall include the specified firearm declared to be an assault weapon. The Attorney General shall file the amended list with the Secretary of State for publication in the California Code of Regulations. Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, pertaining to the adoption of rules and regulations, shall not apply to any list of assault weapons promulgated pursuant to this section.
(i) 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.

bwiese
11-30-2005, 9:13 AM
'specified' is vauge, since pursuant to 12276.5, the DOJ may only 'issue a temporary suspension on the transfer or sale' and then must 'within 30 days hold a trial in a supior court' to actually determine if a subject wepon is an Assault Weapon.

I'd lean towards the interpreation that one must reg said AW 90days AFTER the trial court CONCLUDES it is an assault weapon. Temporary Suspension != Specification.

Well that's for non-AR/non-AK weapons that have to go thru courts.

For guns 'identified' as AR/AK series no courts are involved.

I could be wrong but it seems to me there's gotta be some period of promulgation - "Hey, we're announcing Burpguns Q16A is an assault weapon and will be posted in Calif Code of Regulation". I think the time it hits CCR and updated CCR is published is when "go" time is for 90 day registration window.

It's likely that CA DOJ will send out an info bulletin to all dealers like the one they released in August 22 2000 when Kasler finalized ("2000-04-FD") which specifies the whens. The DOJ regulatory/administrative authority granted to them can likely allow them to specify (within reason) when the 90-day reg period starts and how long 'announcement' period after identification period lasts...

artherd
11-30-2005, 11:21 AM
Well that's for non-AR/non-AK weapons that have to go thru courts.

For guns 'identified' as AR/AK series no courts are involved.


Bill, are you sure about that? I thought Harrott put the onous of a decision purusant to 12276.5 as the only mechanism by which an additional 'series' AR/AKs may be defined and banned? The DOJ does not need *furthur state level legislation passed* (which they WOULD need in order to ban say a Mini-14) but they do need to have a county level hearing pursuant to 12276.5 in order to so much as add an AR/AK to the Roster

I could be very wrong here however. Need to review the case again.

I do belive you are right about some level of admistrative authority in granting the 90day window. Historically they have erred on the side of caution (5mos with Kalser as you say.) LOL 'Burpguns."

bwiese
11-30-2005, 12:57 PM
Bill, are you sure about that?

I thought Harrott put the onus of a decision purusant to 12276.5 as the only mechanism by which an additional 'series' AR/AKs may be defined and banned?

Yes, I am. Dug into it a week ago.

Harrott v. Kings County indeed confirms authority of DOJ to identify and add new AR15 & AK "series" items to the Roster of AR15 and AK Series Weapons - as opposed to the DOJ/Attorney General having to get a temporary, then permanent declaration from certain superior courts for other types of assault weapons.

Harrott confirmed that ARs/AKs, and only AR/AK weapons, can be 'identified', promulgated, etc. by DOJ as series members without the court declaration procedure.

From Harrott directly:
Our decision today - upholding the Attorney General' s authority to identify series assault weapons pursuant to section 12276, subdivision (e), but holding that a trial court may not find a semiautomatic firearm a series assault weapon under section 12276, subdivision (e), unless the firearm has first been included in the list of series assault weapons promulgated by the Attorney General pursuant to section 12276.5, subdivision (h) - is compelled by our examination of the legislative history of the AWCA.
and:

... Although we hold the Attorney General has the authority to determine that certain semiautomatic firearms are assault weapons by simply identifying them as such in the list published by the Attorney General in the California Code of Regulations, that authority applies only to the two types of firearms defined in section 12276 by the use of the term series, namely, the AK47 series and the Colt AR-15 series. (See fn. 3, ante.)

All other guns that are not AR/AK 'series' guns must go thru the court temporary, then permanent, "add-on" declaration procedure:
In order to have any other semiautomatic firearms declared assault weapons within the meaning of section 12276, the Attorney General must utilize the add-on procedure set forth in section 12276.5.

... the add-on procedure being where DOJ/AG goes to superior court in county w/population > 1Million, and asks for temporary then permanent declaration as an AW.


The DOJ does not need *furthur state level legislation passed* (which they WOULD need in order to ban say a Mini-14) .....
{snip}
.... but they do need to have a county level hearing pursuant to 12276.5 in order to so much as add an AR/AK to the DOJ Roster

The first statement is true; both latter statements are not. A plain currently-legal Mini14 could indeed be declared as an AW in add-on hearing (see below); and no county superior court 'add-on' hearing is needed for ARs/AKs since DOJ has authority there.

(That is, the thinking is this: ARs/AKs are already listed as AWs, and the DOJ can use its expert authority to find other similar members.)

There is NO additional state legislation needed to add any guns to any list. The combination of (1) DOJ authority for 'series' guns, (2) SB23 readily interpretable ban on characteristic features, and (3) ability to attempt court declaration of a gun as an AW, all combine to give complete control of AWs - and firearms ready to be declared as AWs.

Note that there is the (faint, but real) risk of a court add-on procedure declaring a gun as an AW even if it really isn't much of an AW. The court might well consider factors like seizure at crime scenes/arrests, 'sporting' purposes, similar guns already banned, etc. However, if close enough to ordinary rifles, 'legislative intent' could be found that these shouldn't be banned due to the detailed specificity of overall CA AW law, and the court declaration decision on such guns might be ruled in error upon appeal.

I'd bet it is far far more likely for off-list AR/AKs to get 'identified' and registered than for DOJ/AG ever to go thru court proceedings for other guns, esp as SB23 generally and unfortunately does its job, in combination with hicap mag ban.

Harrott did raise the prospects of challenging in court DOJ 'identification' of a 'series' weapon if substantial differences existed:
And, of course, the Attorney General's identification of a particular firearm as a series assault weapon would, in an appropriate case, be subject to challenge on the ground the firearm in question did not satisfy the standard set forth in section 12276, subdivision (e), namely that the variations between it and the AK47 series or the Colt AR-15 series were more than "minor."

Summarizing again key things from AW laws in combination w/Harrott:

DOJ/AG has authority to identify & promulgate 'series' (AR & AK weapons) itself without "add-on" court procedure - but only for ARs/AKs;


Such DOJ decisions about 'series' weapons are challengable if they go too far off the reservation;


Non-AR/non-AK (i.e., non-'series') weapons must be determined to be AWs by superior court add-on procedure, and not just by DOJ fiat of 'identification' & promulgation;


In either case of DOJ identification or court declaration, a 90-day registration window is triggered. (Whether a promulgation/notification precedes this or can run concurrently is up in the air, but the Aug 22 2000 DOJ Info Bulletin seemed to allow adequate notification time in addition to 90 day reg window.)




I do belive you are right about some level of admistrative authority in granting the 90day window. Historically they have erred on the side of caution (5mos with Kalser as you say.) LOL 'Burpguns."

Yeah, the 5 months appears to be 60 day promulgation + 90 day reg window (entirely separate from SB23 'by features' reg window ending 12/31/00). This 60 day period may vary and depend upon something like release calendar for Calif. Code of Regulations, which I think is the real reference standard for 'promulgation'.

BTW I did discuss this stuff here in a bit more detail in this thread, maybe you missed it..

http://www.calguns.net/calgunforum/showthread.php?t=24885

delloro
11-30-2005, 1:53 PM
check out the California Administrative Procedures Act (Government Code §§ 11340 et seq.) for some guidance

bwiese
11-30-2005, 1:59 PM
Thanks Delloro!

Will look into it tonite...

Not a big thing really - if it's announced, everyone will be sending in their reg papers ASAP ;)