Statute of limitation for "standard capacity" magazine possession?

[achee]

I need a little bit of clarification on this. So possession of over-10-round magazines is not control but the tranfser, manufacturing of them is. So if a person possesses such an item. Is it up to them to prove to the authorities that they had legally possessed this item prior to the ban date or is it the responsibility of the authorities to prove that he did not?

Now also, let's say for argument sake, someone does break the law and does purchase such a magazine. Let's say he imported it in 2001, after the ban has commenced. Now, the fact that he possesses this magazine is not against the law. The fact that he imported it in 2001 is against the law. Is there a statute of limitation on how far back a prosecutor can prosecute such a crime? As far as I know, all crimes (except for murder) have some statute of limitation.

I am just asking this to better understand the law. I am in no way implying that I plan to break the law or in any way advocating it so please don't take this the wrong way.

Andrew

[PanzerAce]

I do not think that there is a statute of limitations. Because I THINK that the law specifically bans you from owning normal cap magazines purchased/acquired after 2000. as such, you would always be breaking the law with this, because you continue to posses it.

On the other hand though: Dont go down this road Andrew, you dont want to go there.

[Anonymous Coward]

I brought this up before - see quote of the law here (it's not the correct one because you don't get into state prison for high cap mags. so the statute is even shorter):
http://www.calguns.net/calgunforum/showpost.php?p=93735&postcount=14

It seems like when you'd be caught now you couldn't be convicted for a legal act that expired (since possession isn't a crime). But I wouldn't bet on it. You'd probably be charged and need a lawyer ($$$) and your magazines are gone too.

[bwiese]

In America, you don't have to prove your innocence. They have to prove your guilt.

Note that private property has less rights than you yourself do so the standard for seizure is somewhat less than the standard for arrest.

[Scotty]

If you are innocent until proven guilty, why do they haul your butt to jail first?

[jtyoshi]

In court your innocent until proven guilty...,
To the cops, DA, and other enforcement your guilty until proven innocent:D

[Sundowner]

I'm lost on this issue. I thought that if I have normal-capacity mags which I acquired before the ban (which I have), then I'm permitted to keep them. If he has mags with no dates, how does anyone know when he got them? Is the burden of proof (in this case, of purchase) on him? Doesn't sound right.

[Chaingun]

This law is going to affect everyone born after 2000, otherwise it really has no bearing yet unless someone gets caught importing a complete standard mag.

This law is going to make felons out of our kids if they are in possession of a standard capacity mag. without someone of age.

[monkey]

Two things...

1) Innocent until proven guilty is a very naive because it assumes all the burden is on the prosecutor. It's not. Proving guilt has a lower threshold on some crimes than on others. There exist many crimes for which it is an "Affirmative Defense" meaning all they need to do is prove you are in possession of X, in which case it's up to you to prove it is exempted or grandfathered, etc. Assault Weapon possession under the former Crime Bill was an issue of Affirmative Defense, all they had to do was prove it's an Assault Weapon and that you possess it (very easy), charge you with the crime, then it was up to you to prove it was a pre-ban weapon or otherwise exempt. This is no longer the case with the expiration of the federal AW ban, but there a many other crimes that apply like this and the Hi-Cap Magazine Ban is no different. If you are caught driving into California with a box of hi-caps, that is a chargable offense in itself because importation of hi-caps is illegal under most conditions. They would not have to prove you didn't have them with you prior to the ban date OR that you didn't have them with you when you left California. That would be up to you to prove you did, an Affirmative Defense. Most laws that feature an effective date after which the action is illegal create the "Affirmative Defense" scenario. Things like possessing AWs in California is easy to clear up almost instantly because you can provide the registration form or they can call DOJ and determine if the possession is illegal. LE would give the gun back and you'd be on your way, no case to forward on to the state's attorney. Magazines however are far more difficult to prove legality because most people do not keep receipts or records for such things. If LE catches you with a box of them while crossing the AZ-CA border and you cannot prove compliance with the law, it would be up to them whether or not they wanted to make a case of it and if they did forward the case to the state attorney, it would be up them to determine of there is a viable, winable case to prosecute. Point is you are highly vulnerable because you cannot prove compliance, even if you truly were. The State Attorney's Office is not the bad guy here, they know the room for abuse here and are not going to prosecute unless the violation is clearcut and in the public good. Taking advantage of your reasonable lack of record keeping is not doing the public much at all, so it's unlikely they would file charges. But you don't want to leave it up to a faceless prosecutor somewhere to decide to take you on or not, so be aware of how the law works and don't assume it's innocent until proven guilty here, that LE or the State has to prove when you had that 30-round magazine. They don't.

2) Statute of Limitations: These exist for most crimes, except murder and a few others. The Statute begins with the day a case and its evidence makes it to the prosecutor. Once a prosecutor (local, state or federal) has been made aware of evidence of a crime (law enforcement has forwarded the case), the clock is ticking. Minimum time limitations are usually 2-3 years and a violation of the magazine ban is no exception. Once the state attorney's office has been forwarded a case relating to the violation of this law, they have a certain amount of time to file charges. Possession is not a chargeable offense as it's not a violation of law, but transfer is, from both the giving and receiving end.

The way to stay out of trouble with hi-cap magazines is make sure you are never caught in a possible transfer or importation scenario. Since possession is not a violation, make sure that's all you are doing. While leaving the state with legally possessed hi-caps is legal, returning with them is "importation" and you could be put into a position to prove otherwise.

[turbosimon]

This law is going to affect everyone born after 2000, otherwise it really has no bearing yet unless someone gets caught importing a complete standard mag.

This law is going to make felons out of our kids if they are in possession of a standard capacity mag. without someone of age.



Are there any ways to distinguish the mags manufactured before or after the ban?

[ohsmily]

Two things...

1) If you are caught driving into California with a box of hi-caps, that is a chargable offense in itself because importation of hi-caps is illegal under most conditions. They would not have to prove you had them with you prior to the ban date OR that you had them with you when you left California. That would be up to you, an Affirmative Defense. Most laws that feature an effective date after which the action is illegal create the "Affirmative Defense" scenario.



You are wrong buddy...

The burden is on the state to show that you didn't possess those magazines before jan 1, 2000. You are allowed to bring your mags out of state to shoot and then bring them back in...so, there is no "rebuttable presumption" there (btw, rebuttable presumption is the term you were looking for, not affirmative defense). So, in the situation you described, if they searched your car and found receipts for newly purchased magazines, you might be screwed...otherwise, you would be in the same situation as someone who is driving to the range with them, they would have to prove you didn't possess them before 2000 in some other way.

So, quit scaring people about the "big, bad state". I agree there are some situations where mere possession of something leaves a rebuttable presumption that you violated the law (meaning all they would have to prove beyond a reasonable doubt is that you possessed the NFA item and it would be up to you to prove in some way that you had some other valid reason to have the items), BUT, possessing full capacity magazines is not one of these situations...

[shopkeep]

Are there any ways to distinguish the mags manufactured before or after the ban?

As far as I know there's no way to tell. This is especially true when you consider that people can repair or refurbish their magazines. So a magazine from 1999 could have the appearance of a new magazine (and many do!).

In short it is virtually impossible to enforce possession. I have yet to hear about anyone being charged with import or manufacture either.

Remember that there are two groups of people: those who had these magazines before 2000 and those that didn't. Find out which one you belong in.

[achee]

[QUOTE=monkey]Two things...

1) Innocent until proven guilty is a bit naive because proving guilt has a lower threshold on some crimes than on others. There exist many crimes for which it is an "Affirmative Defense" meaning all they need to do is prove you are in possession of X, in which case it's up to you to prove it is exempted or grandfathered, etc. Assault Weapon possession under the former Crime Bill was an issue of Affirmative Defense, all they had to do was prove it's an Assault Weapon and that you possess it (very easy), charge you with the crime, then it was up to you to prove it was a pre-ban weapon or otherwise exempt. This is no longer the case with federal AWs, but there a many other crimes that apply like this and the Hi-Cap Magazine Ban is no different. If you are caught driving into California with a box of hi-caps, that is a chargable offense in itself because importation of hi-caps is illegal under most conditions. They would not have to prove you had them with you prior to the ban date OR that you had them with you when you left California. That would be up to you, an Affirmative Defense. Most laws that feature an effective date after which the action is illegal create the "Affirmative Defense" scenario.
QUOTE]

Hm... Interesting point. But the possession of a AW during the Federal AWB days and also today (unregistered) is an offense while the possession of Hi-Cap mags today is not a crime (as far as I know, regardless of when the mags were actually acquired). So does the Affirmative Defense still stand if the possession of item X in and of itself is not a crime but the acquiring of item X is? As I understand your description of the Affirmative Defense above seems to only apply to items whose possession is a crime. Please clarify if I'm wrong.

Andrew

[JALLEN]

If you are innocent until proven guilty, why do they haul your butt to jail first?

You are not guilty when they haul your butt to jail, as you so refreshingly put it. They haul your butt to jail when you are charged with some crime, by indictment or accusation, or by arrest for an offense committed in the presence of the arresting officer, etc. Guilt comes later. You go before a judge and either admit guilt or deny it, whereupon bail is set or refused, and either bail is posted or you stay in the can until trial where your guilt or innocence is established.

The "presumption of innocence" is a technical precept in the law of evidence, affecting the burden of proof, going forward with the evidence, a term of art, but the expression is seized upon, mostly by the guilty, and imbued with all sorts of bogus and misleading notions. It has nothing to do with real life, actually, being an artifice, like a corporation, existing only in legal theory.

[phish]

Guys,

This topic has been hashed out in various iterations both on here and on arfcom to the point the flesh of this horse has long been beaten off the carcass. It's up to you to absorb and understand the meaning of the laws and come to your own logical conclusion as they are presented in the FAQ, numerous past threads, or the CCR itself, but they are pretty explicit and self-explanatory that there should be no need to go on fishing expeditions for validation.

I don't mean to be the "magazine Nazi", but these discussions always rat-hole to the point they seem like borderline trolling.

The long and short of it is: if you bought them before 1/1/00, fine, if not, so solly sailor. Yes, it sucks the sweat off a baboons butt, but that's just the way it is for now.

What you do with this knowledge is entirely up to you, caveat emptor...

[metalhead357]

Dont go down this road Andrew, you dont want to go there.

+1, Amen to that. Dont do it!!!!!!!!

Metalhead

[Anonymous Coward]

2) Statute of Limitations: These exist for most crimes, except murder and a few others. The Statute begins with the day a case and its evidence makes it to the prosecutor.

Do you have anything to back this up? The text of the law I quoted in the other thread clearly says it's the time of the offense that counts, not the start of the prosecution:

"PC 801. 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."

So if you committed the illegal act of importing a high-cap mag in 2001, you cannot convicted for it anymore, because it has been too long since the commission of the offense. Possession is not an offense.

You might still going to be charged with it in the hopes you get a bad lawyer or an incompetent jury. It'll add to the other charges for the things you did to get a LEO's attention :D

[ADDICTEDto.223LOWERS]

In America, you don't have to prove your innocence. They have to prove your guilt.

Note that private property has less rights than you yourself do so the standard for seizure is somewhat less than the standard for arrest.

ive bbeen in and outa court a couple times and ive always had to prove my innocence :mad:

" i swear your honor i was at home that night with my girlfriend... i got a video to prove it!" :o

[MaceWindu]

How about this. Keep your mags to yourself, keep your mouth shut, and use discretion.

I usually don't approach police officers or LE saying,"Gee officer, are these STANDARD capacity magazines legal that you didn't know I had until I approached you and ran my mouth?" :rolleyes:

Some of these questions are out and out silly.

Mace

[RW Dunn]

A big 10/4 on not running the mouth to any one what you got,keep it in the safe and thank god you got it when needed.Plain and simple laws to live by

[RW Dunn]

And another thing 1.Don't beat your wife,G/F or your neighbor,ya their the ones you had to show or brag about your arsenal to now they pissed and you and your gunrights are going bye,bye.2.Dont break the laws (IE selling drugs,doing drugs,being a total moron period.Loseing your gunrights what little we have in the state is basicly all we got.