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View Full Version : Large Cap Mag guidance sought


choprzrul
01-31-2010, 9:37 PM
I have read the wiki on CGF and read through 12020. I fully understand that simple possession of >10 capacity magazines is not regulated.

Simple possession of a large-capacity magazine is not prohibited.

The wiki also states:

The penalty for violating Penal Code 12020 is a "wobbler" with a statute of limitations of three years.

I am reading this with the understanding that the following hypothetical situation, while strictly illegal, is permitted due to the statute of limitations:

A person move to CA in 2005 and brings his high capacity pistol mags along not being aware of CA laws. Those mags stay packed away until this year when this person decides to once again get into shooting again. Since the "import" (in this case the illegal part of 12020) occured 5 years prior, the statute of limitations has expired on prosecution of this infraction. Here are some general questions that surround this situation:

1. Obviously an un-knowing LEO can arrest for having the high cap mag, but without being able to prove when import occured, what is the chance of being found guilty? Assuming smart enough to keep mouth shut, or perhaps on the advice of council, actually testify that import occurred beyond statute of limitations.

2. Can the mag be confiscated?

3. Along with possessing, can said mags be used?

4. Is McDonald going to make this all go away?

I am looking at this as being in the clear once 3 years passes. The burden of proof is on the prosecution and simple possession is not in violation of 12020.

Eagerly awaiting comments.

Purple K
01-31-2010, 9:45 PM
1. Typically you'd be arrested. The Officer will expect the DA to sort it out. You'll most likely need to retain an attorney.
2. Yes, they'll confiscate it. You'll have to win your case to get it back.

Uriah02
01-31-2010, 9:55 PM
The problem is if you knowingly imported the magazines then they might get you something else. This whole hypothetical situation sounds to be in the legal gray area at the very least. Something I am unsure of is the weapon which you'd use to shoot those magazines because the status of the weapon changes when you use those legally gray area magazines. From my understanding only pre-ban magazines could be used.
I don't know why people think McDonald is going to rid the nation of gun laws in general. When it is ruled in the 2nd amendment's favor the laws on the books will need to be individually challenged to be repealed/declared unconstitutional, much like the slow process of registering handguns in DC has gone...

Hopi
01-31-2010, 10:01 PM
1. Obviously an un-knowing LEO can arrest for having the high cap mag, but without being able to prove when import occured, what is the chance of being found guilty? Assuming smart enough to keep mouth shut, or perhaps on the advice of council, actually testify that import occurred beyond statute of limitations.


Why would a police officer arrest you for; importing, manufacturing, or exposing for sale a large capacity magazine, unless you are actively engaged in any of those activities? As you've said, simple possession is not controlled.

Further, a DA would need to produce solid evidence of any of the above activities for them to prosecute. Without that, a 2-minute call from a competent lawyer would clear that up.





Something I am unsure of is the weapon which you'd use to shoot those magazines because the status of the weapon changes when you use those legally gray area magazines. From my understanding only pre-ban magazines could be used.



What do you mean by this?

dantodd
01-31-2010, 10:04 PM
If you keep your mouth shut it is the prosecutors job to prove that you illegally brought the magazines into the state and that the statute of limitations has not expired. I know that some have discussed the issue of the "uncovering" of a crime starting the clock on statute of limitations rather than the commission of the crime. I am not versed in the case law on statute of limitations but Merck v. Reynolds is before SCOTUS right now addressing when the statute of limitations starts.

Lone_Gunman
01-31-2010, 11:08 PM
Posession of +10 mags is not regulated. Do not tell them when or where the mags came from. AFAIK there has been 1 sucsessful prosecution of a hi-cap mag charge and it was an add on charge to some other violation. Since posession is not regulated there is really nothing that can be done to you if you CLAM UP AND CALL A LAWYER OR THE CGF. Read the sticky at the top of this forum titled "If you get in trouble for your guns please call the CGF" or something like that.

Cokebottle
02-01-2010, 12:02 AM
From my understanding only pre-ban magazines could be used.
No such thing as "pre-ban magazines" anymore.

That term applied to the federal AW ban of 1994 that prohibited the manufacture and importation of NEW high capacity magazines for purposes other than LE/Military.
That law did not prohibit the sale or transfer, even across state lines.
That law expired in 2004, so the term "pre-ban" is legally meaningless today.

The California ban is TOTALLY different.
The California ban specifies that a magazine is legal if it was POSSESSED by a person WITHIN CALIFORNIA prior to Jan 1, 2000.

After Jan 1, 2000, the manufacture, sale, lending, gifting, importation, and by default, transfer of high capacity magazines became illegal.
The state understands that magazines wear out.
You ARE allowed to purchase repair parts, and can completely rebuild an old magazine into a new one, just so long as you never have more ASSEMBLED magazines than you did on Jan 1, 2000.

So, if at any time prior to Jan 1, 2000, you had a high-capacity magazine in your possession, that specific magazine (or it's rebuilt replacement) would be legal to bring back into the state. Example, you were an AZ resident and brought your guns to California on a hunting trip, or you purchased a magazine here while on vacation. You can TODAY, legally move from AZ to CA and bring that/those magazines with you.

The burden of proof is on the state. You do not have to keep receipts.
If they can dig up a financial transaction that shows you made the purchase after Jan 1, 2000, then they would have a case... otherwise, they have no proof. Even if the magazine is dated or otherwise is obviously "new", they still have no proof that it wasn't a remanufactured replacement for an older magazine, and you are not required to keep the old parts.

One "gotcha" would be if the magazine is for a gun that did not exist prior to the ban, such as the new Springfield XDm. It is not compatible with the magazines from the XD or the HS2000.
OTOH, HS2000 magazines would be legal, and they would be legal to use in a Springfield XD, so long as the required modification does not render them unusable in the original gun (and it doesn't).
You don't have to even own the original gun.

Before the ban went into effect, a lot of people bought high capacity magazines for AR and AK rifles that they did not own.

bigcalidave
02-01-2010, 2:52 AM
Ok new rule, if you say you read the wiki, post a link to the wiki when you make the thread. That will keep people who DON'T know the laws from posting incorrect info as a response !!! Don't be dedeyed.

http://wiki.calgunsfoundation.org/index.php/FAQ#Magazine_Questions

As for the original question. Why are you scared about being arrested for possessing high capacity magazines? Cops see them ALL THE TIME. We have MILLIONS of them in california. It's not unusual, and the odds would be incredible for you to be arrested for it. The most simple explanation if the situation were to arise is that simple possession is not illegal. Have them tell you what law they are arresting you for. Arresting you for possession, then changing the charge to (manufacturing, importing, etc) and trying to find evidence that you may have done that is a false arrest.

GrizzlyGuy
02-01-2010, 7:34 AM
If you keep your mouth shut it is the prosecutors job to prove that you illegally brought the magazines into the state and that the statute of limitations has not expired. I know that some have discussed the issue of the "uncovering" of a crime starting the clock on statute of limitations rather than the commission of the crime. I am not versed in the case law on statute of limitations but Merck v. Reynolds is before SCOTUS right now addressing when the statute of limitations starts.

+1

Merck v. Reynolds (http://www.scotuswiki.com/index.php?title=Merck_%26_Co.%2C_Inc._v._Richard_R eynolds) regards federal statute of limitations for a federal crime, but fortunately, our state law makes it clear that the timer begins when the crime was committed (when the mags were illegally imported). From 801 PC (http://law.onecle.com/california/penal/801.html):

Except as provided in Sections 799 and 800, prosecution for an
offense punishable by imprisonment in the state prison shall be
commenced within three years after commission of the offense.

choprzrul
02-01-2010, 10:09 AM
I don't know why people think McDonald is going to rid the nation of gun laws in general. When it is ruled in the 2nd amendment's favor the laws on the books will need to be individually challenged to be repealed/declared unconstitutional, much like the slow process of registering handguns in DC has gone...

Ok, I figured that everyone would know that a positive McDonald outcome would not automatically negate all gun laws nationwide. I didn't think that I would need to articulate this every time that I post something, but that appears to be incorrect. For clarification:

4. Is McDonald going to make this all go away?

4. Is McDonald going to make this all go away if the decision is renedered by the Supreme Court of the United States and after successfull challenges in courts to overturn current gun laws that run afoul of the court's decision?

I am hoping that this provides the necessary level of clarity.