PDA

View Full Version : Memo on AW List Mechanics


BillJr
03-01-2006, 4:10 PM
On calgunlaws.com they just posted a memo that discusses how the AW list can be expanded and related issues. Have not read it all, but it looks interesting. Hopefully the following link will work.

http://www.calgunlaws.com/

The intro from the site reads as follows:
Recently, the California Department of Justice has announced that it intends to expand the list of firearms designated as "assault weapons" by adding certain firearms to the list of firearms deemed "AK 47 Series" or "Colt AR-15 Series" type "assault weapons" under the Assault Weapon Control Act (AWCA). This has raised concern among the firearms community. We have been contacted with a multitude of questions regarding the DOJ's authority to add firearms to the list of "assault weapons." In response, we have provided a list of answers and explanations to questions surrounding the DOJ "assault weapon" add-on laws, which can be found here. The questions include:
1. How does a firearm get designated as an "assault weapon?"
2. How does a firearm get designated as "AK 47 series" or "Colt AR-15 series" "assault weapon?"
3. Can other firearms that are not "AK 47 series" or "Colt AR-15 series" firearms be deemed "assault weapons by the California Department of Justice?
4. What is involved in the hearing to determine if a firearm can be added to the list of "assault weapons" under Section 12276.5?
5. Can anybody participate if there is a hearing to determine whether a firearm is an "assault weapon?"
6. What if the court is wrong in it's ruling?
7. How are we supposed to know about when the DOJ takes action to designate more firearms as "assault weapons?"
8. How are we suposed to know about the actual expansion of the definition of "assault weapons?"
9. Can I register my firearm that the DOJ has suddenly deemed to be an "assault weapon?"
10. Can I sell or otherwise transfer my firearm that has suddenly been deemed to be either an "AK 47 series" "assault weapon" or a "Colt AR-15 series" "assault weapon" by the California Department of Justice in 2006?

EBWhite
03-01-2006, 4:14 PM
someone copy and paste the PDF files with the answers, it says error for me.

C.G.
03-01-2006, 4:26 PM
someone copy and paste the PDF files with the answers, it says error for me.

Way too long to copy and paste; basically, just an expanded version of what Bill wrote a while back.

bwiese
03-01-2006, 4:33 PM
Way too long to copy and paste; basically, just an expanded version of what Bill wrote a while back.

Not quite. Just saw it/read it - this is done by a real lawyer. Yes, we both covered some of the same ground, but:

Note that there is one special angle of attack, likely used in a strategy to invalidate some of the AW law. However it may not be good for us off-list lower guys if this happens early on:


It is unclear, however, whether the DOJ can still meet the burden required for adding firearms to the list of “assault weapons,” in light of Penal Code section 12276.1 being added in 2000. “Assault weapon” law has evolved over past 17 years from regulating specific makes and models of firearms with “assault weapon” features to regulating the features themselves. It is questionable, given this evolution, whether the DOJ can legitimately add new firearms to the “assault weapon” list, since Penal Code section 12276.1 already regulates “assault weapon” features. In other words, how can a firearm be deemed an “assault weapon” if it possesses none of the features that the legislature expressly defined as being “assault weapon” features? Wouldn’t the removal of “assault weapon” features from a firearm be deemed more than a “minor” alternation or “slight modification?” These questions cannot be answered with binding authority until a challenge is brought and heard before a court.

This argument could destroy the "named bare receiver is an AW" concept. If argument carried to its full extent, a stripped down Colt AR15 receiver would not be an AW intrinsically. This is an issue to be hammered out in court, likely.

At the end of the document there's also interesting discussion about Jackson v. DOJ where apparently an AW permit was revoked because he didn't also register his AW!!!


The registration requirement, however, is universal. According to the court in Jackson v.
Department of Justice (2001) 85 Cal.App.4th 1334, 1348, even persons in possession of "assault weapons" permits must register firearm:

The fact that section 12286 does not explicitly require the holders of assault weapon permits to comply with the general restrictions imposed under section 12285, and the fact that petitioner's permit does not explicitly restrict the retail sales it authorizes to registered assault weapons, provide no basis upon which to relieve persons who hold an assault weapon permit of the registration requirements that apply generally to all who possess such firearms. Accordingly, we conclude that the trial court properly ruled that petitioner violated the Act, and that respondent's refusal to renew his permit on that basis was therefore justified.


Thus, under Jackson, once the registration 90 grace period has lapsed, the firearm must
be registered in order for it to be possessed in California. It is important to note, however, that the Department of Justice argued a position in Jackson that contradicts letters issued by the Deputy Attorney General of the Firearms Division at the Department of Justice, which state that registration is not required if the person in possession of the firearms has an "assault weapons" permit. As contrary to the Department of Justices’ and firearm retailers’ common belief, Jackson holds that dealers are required to register each “assault weapon.”

ohsmily
03-01-2006, 4:44 PM
This argument could destroy the "named bare receiver is an AW" concept. If argument carried to its full extent, a stripped down Colt AR15 receiver would not be an AW intrinsically. This is an issue to be hammered out in court, likely.


And while this would allow us to import and possess "named receivers" (in compliance with sb23 and category 1 definition), it would prevent us from building them OR any of our currently off-list lowers into SB23 rifles.

This would cripple the current laws and cause a complete redrafting and revote on AW law.

But, as is noted in the document, it requires a test case.

Racefiend
03-01-2006, 4:51 PM
Bill, I believe the quoted passage only refers to adding assault rifles to the list under 12276.5. Adding series assault rifles falls under a different process, which I do not believe that passage referrs to.

But one quote I did like was this one:


1. HOW DOES A FIREARM GET DESIGNATED AS AN “ASSAULT WEAPON”?
Under the AWCA, a firearm can be legally designated as an "assault weapon" in any of
four separate ways.
First, a firearm is an "assault weapon" if it is identified by type or model number in the
statutory list contained in Penal Code section 12276. For example, the "Norinco 56" is expressly
listed as an "assault weapon." The firearms specifically listed by make and model in Penal Code
Section 12276 are called Category 1 "assault weapons."
Second, a firearm can be designated as an "assault weapon" if it is designated as either an
"AK 47 Series" type or "Colt AR 15 Series" type firearm listed generally in Section 12276 and
named specifically in named specifically in the California Code of Regulations and the DOJ’s
“Assault Weapon Identification Guide.” These firearms are called Category 2 "assault
weapons."
Third, a firearm can be added to the designated "assault weapon" list through Penal Code
section 12276.5. These firearms are called "12276.5 Type" "assault weapons." This 12276.5 list
can be expanded by going through a judicial approval process, as described below.
Fourth, a firearm can be an “assault weapon” if it possesses certain identified
characteristics listed in Penal Code section12276.1. For example, a rifle is an "assault weapon"
if it is a semiautomatic, center fire rifle that has the capacity to accept a detachable magazine and
possesses a pistol grip that protrudes conspicuously beneath the action of the weapon. See Penal
Code Section 12276.1(a)(1)(A).

Notice the second method. It states that weapons added under the series clause would still be classified as category 2 assault rifles. This would nullify the DOJ's recent memo about creating a category 4 assault rifle.

Of course that entire PDF was just opinion, so we can't really say one way or the other yet anyways.

Christian

eje
03-01-2006, 5:10 PM
Note that there is one special angle of attack, likely used in a strategy to invalidate some of the AW law. However it may not be good for us off-list lower guys if this happens early on:
***
This argument could destroy the "named bare receiver is an AW" concept. If argument carried to its full extent, a stripped down Colt AR15 receiver would not be an AW intrinsically. This is an issue to be hammered out in court, likely.

The passage you quoted is pretty interesting. I think that if and when the DOJ adds off-list, stripped receivers to the AW list, one could make a pretty good argument that the DOJ exceeded its authority because stripped "Series" receivers aren't really "other models that are only variations, with minor differences, of those models listed in [PC 12276] subdivision (a)" i.e. because they don't have any of the evil AW features that the previously listed models do. See PC 12276(e). Not sure who would want to do that, but if the DOJ was inclined not to list off-list AR receivers, it could probably justify its inaction by saying that stripped recievers don't meet the definition of "series" firearms at PC 12276(d).

On another note, can anyone spot any incorrect dates in this "memo"? I'm afraid it suffers from some of the same sloppiness as the DOJ memo.;)

bwiese
03-01-2006, 5:22 PM
On another note, can anyone spot any incorrect dates in this "memo"? I'm afraid it suffers from some of the same sloppiness as the DOJ memo.;)

Yeah, Jan 1 2002 cuttoff for SB23 guns???

Will let 'em know...

eje
03-01-2006, 6:31 PM
Yeah, Jan 1 2002 cuttoff for SB23 guns???

Yep. Paragraph 9 is a little garbled too, looks like a cut and paste gone wrong!!:D

xenophobe
03-01-2006, 7:45 PM
I haven't read the PDF yet, I will after posting this though... We're pretty much guaranteed a victory as I see it now. Naming Brands and Models is definitely Roberti Roos territory and adding names to the list is definitely appending Category 2 weapons.

Something NEW that I have not yet seen discussion on crept into my mind the other night:

Additions to the Penal Code will face high scrutiny and will probably fail if it involves retroactively banning currently unlisted receivers from having features defined by SB-23 registered at a later date (before enactment of any new legislation).

Retroactive legislation is possible in a few circumstances involving property taxes and personal benefits, but in cases where it involves additions to the Penal Code and creates new crimes, it is considered unconstitutional to charge someone for doing something which was perfectly legal before the enactment of any given legislation...

In other words, currently there is no provision in the law that states that a newly listed AW must be in any certain configuration, and any changes to a Category 1 or 2 weapon do not make it any more or less an assault weapon, and if legislation were introduced and passed to make a Category 4 AW, all the receivers purchased between Jan 1, 2000 and the enactment date of such law must be grandfathered into the laws that were in effect when you purchased it, regardless of when they name these receivers.

So no matter what ends up happening, eventually the receivers we are purchasing now will be allowed to have any and all of the features we want, except, if the DOJ decides to never list them, and soley rely on SB-23 for features compliance, and any new legislation that could ban the future importation and sale of receivers in California, which is a pretty tall order, especially for them to serve it up right.

RRangel
03-01-2006, 7:57 PM
No Ex Post Facto?

xenophobe
03-01-2006, 8:11 PM
If that was directed at me, I've never studied law... I assumed that they would try, as the memo said, to enforce SB-23 compliance through the registration process and instead resort to retroactive legislation, and after looking into that possibility, figure that they most likely couldn't. That leaves me to believe that any future legislation concerning these receivers must grandfather currently owend ones.

If that was in regards to the new PDF, I'll quietly silence myself. lol

eje
03-01-2006, 8:49 PM
Let's say the DOJ sits on this for a while, doesn't add any AR series lowers to the list just yet, and in the meantime legislation is enacted that just says that any newly listed and registered AR series firearms may not be configured with prohibited AW features (i.e., PC 12276.1 features). Just assume it's a change in the law that would apply prospectively only. Wouldn't that pretty much be the nail in the coffin? This legislation wouldn't be criminalizing any past conduct that was legal when it was performed, i.e., it wouldn't be an "ex post facto" law. (Presumably, you haven't already built up your off-list lower with SB 23 features thinking it was legal to do that.) Would there be any basis to challenge such legislation simply because it prevented you from doing what you previously thought you were going to able to do once your stripped lower was listed and registered?

Not sure whether this is even a plausible scenario, just wanted to throw it out there.

ohsmily
03-01-2006, 9:22 PM
If that was directed at me, I've never studied law... I assumed that they would try, as the memo said, to enforce SB-23 compliance through the registration process and instead resort to retroactive legislation, and after looking into that possibility, figure that they most likely couldn't. That leaves me to believe that any future legislation concerning these receivers must grandfather currently owend ones.

If that was in regards to the new PDF, I'll quietly silence myself. lol

Unfortunately, you are incorrect about your assertion regarding new legislation. If they pass a new law (not updating the list, but actual new law by the legislature) the only thing that would be grandfathered about our off list lowers would be the fact that we can still own them. It would NOT grant us the ability to add SB23 features or expand what we can do with them. They would not be depriving us of a property interest or changing our rights regarding the lowers. They could easily (assuming they could pass it) draft legislation that grandfathered in our off list lowers as they currently are. They would not be changing the status of our lowers other than declaring that no more could be purchased.

However, if they update the list with these lowers, then there is no way they would prevail if they attempted to create a 4th tier of AW's.

artherd
03-01-2006, 10:47 PM
Retroactive legislation is possible in a few circumstances involving property taxes and personal benefits, but in cases where it involves additions to the Penal Code and creates new crimes, it is considered unconstitutional to charge someone for doing something which was perfectly legal before the enactment of any given legislation...

Yes this is basic ex post facto, but all it applies to is (newly) criminalizing past conduct. Since currently it is already a crime to put a PG on an unlisted lower, the past conduct is already illegal and not protected.

All that said, DOJ simply lacks the authority to create a 4th category of AWs, just as they lacked the authority to invent a new registration period for the SKS Sporters (another case where DOJ made a bad call and the courts slapped 'em down.)

TKo_Productions
03-01-2006, 11:02 PM
Let's say the DOJ sits on this for a while, doesn't add any AR series lowers to the list just yet, and in the meantime legislation is enacted that just says that any newly listed and registered AR series firearms may not be configured with prohibited AW features (i.e., PC 12276.1 features). Just assume it's a change in the law that would apply prospectively only. Wouldn't that pretty much be the nail in the coffin? This legislation wouldn't be criminalizing any past conduct that was legal when it was performed, i.e., it wouldn't be an "ex post facto" law. (Presumably, you haven't already built up your off-list lower with SB 23 features thinking it was legal to do that.) Would there be any basis to challenge such legislation simply because it prevented you from doing what you previously thought you were going to able to do once your stripped lower was listed and registered?

Not sure whether this is even a plausible scenario, just wanted to throw it out there.

This is exactly why we need 'push' the issue. Why sit by and let the DOJ work with legislators for the exact scenario that you've describe? Lets not give the DOJ anymore time regarding this issue! We need to force the DOJ to act and open up a registration period so that we can get these receivers listed! Otherwise, the status quo isn't going to change. At least once they're listed we'll have legal standing to take this mess to court.

xenophobe
03-01-2006, 11:36 PM
Whoah people... hold a sec. I don't think my last post clearly reflected what I was thinking... let me try again.

1) I know that there are restrictions set forth by SB-23. I am not building illegal assault weapons. I have plenty of registered toys. Not part of the discussion. I know what is mostly legal here.

2) If these 'unlisted' lowers were named and forced to be registered now, the DOJ states they shall "enforce this restriction through the assault weapon registration process," because, as Bill points out in his internal 17 pager that there is no basis in law for this, and if these new receivers are listed, SB-23 pretty much goes out the window. Let's assume this is true.

3) Assume new legislation is enacted creating a 4th Category of AWs, prohibiting features that are allowable in the first three. (one which would also attempt banning the importation and sale of AR type receivers through other means, possibly using fire control component spec/description, magazine dimension spec (which is what I'm worried about), or through some other means that does not specifically add these lowers to the AW list by name.

Assume everything above is true for the sake of my arguement.

If new legislation is enacted preventing any firearms that are added to the list from having features that would make it an assault weapon by SB-23 definition, would it be possible or likely that the new regulations would apply to receivers purchased before this possible future enactment date?

Could any new legislation alter the fact that if these were not listed now, that future registration could require SB-23 compliance, even in a registered AW status for products legally owned before the enactment date?

I'm sorry if any of this is confusing, I'm stepping beyond my knowlege into a world of speculation. lol

ohsmily
03-02-2006, 8:02 AM
Whoah people... hold a sec. I don't think my last post clearly reflected what I was thinking... let me try again.

1) I know that there are restrictions set forth by SB-23. I am not building illegal assault weapons. I have plenty of registered toys. Not part of the discussion. I know what is mostly legal here.

2) If these 'unlisted' lowers were named and forced to be registered now, the DOJ states they shall "enforce this restriction through the assault weapon registration process," because, as Bill points out in his internal 17 pager that there is no basis in law for this, and if these new receivers are listed, SB-23 pretty much goes out the window. Let's assume this is true.

3) Assume new legislation is enacted creating a 4th Category of AWs, prohibiting features that are allowable in the first three. (one which would also attempt banning the importation and sale of AR type receivers through other means, possibly using fire control component spec/description, magazine dimension spec (which is what I'm worried about), or through some other means that does not specifically add these lowers to the AW list by name.

Assume everything above is true for the sake of my arguement.

If new legislation is enacted preventing any firearms that are added to the list from having features that would make it an assault weapon by SB-23 definition, would it be possible or likely that the new regulations would apply to receivers purchased before this possible future enactment date?

Could any new legislation alter the fact that if these were not listed now, that future registration could require SB-23 compliance, even in a registered AW status for products legally owned before the enactment date?

I'm sorry if any of this is confusing, I'm stepping beyond my knowlege into a world of speculation. lol

Your post is confusing b/c you conflict yourself more than once...BUT, if these lowers were listed now (a big IF), then no, new legislation would not affect the currently listed lowers that are reg'ed as AW's. In the end, if they are registered as AW's, they can have SB23 features (subsequent to going to court to declare that is the case). Then, later if the legislature passes a law about new lowers (off list lowers coming in) those will be affected, but not the ones that were already reg'ed as AW's before the law passed. If the law passed, it COULD affect lowers acquired before the law (ones that have not been listed and reg'ed), but not ones that are currently reg'ed as AW's (the "first round" off list lowers).

shopkeep
03-02-2006, 11:16 AM
Bill, you are living proof of why law school shouldn't be a prerequisite to take the BAR exam.

We definitely need to do something soon to regain the initiative. Back in December we screwed the DOJ with the group buys and high volume sales. We basically denied them the ability to act proactively and forced them into a reactive position.

The memo demonstrates their desire to act proactively, and we're giving them way too much time to do so. We need to act quickly to get back on the offensive. It's time to open pandora's box and get this thing on TV.

Rumpled
03-02-2006, 11:51 AM
Bill, you are living proof of why law school shouldn't be a prerequisite to take the BAR exam.



Uh, it isn't. There are mechanisms to serve like an "apprentice" and sit for the bar.

ohsmily
03-02-2006, 11:55 AM
Uh, it isn't. There are mechanisms to serve like an "apprentice" and sit for the bar.

Correct, law school is not required to take the Bar Exam in all instances. However, if you do NOT graduate from an accredited law school, then you will not be able to practice in Federal Court nor will you be able to practice law in another state unless you go through a similar procedure there to be admitted.

xenophobe
03-02-2006, 1:42 PM
Your post is confusing b/c you conflict yourself more than once...BUT, if these lowers were listed now (a big IF), then no, new legislation would not affect the currently listed lowers that are reg'ed as AW's. In the end, if they are registered as AW's, they can have SB23 features (subsequent to going to court to declare that is the case). Then, later if the legislature passes a law about new lowers (off list lowers coming in) those will be affected, but not the ones that were already reg'ed as AW's before the law passed. If the law passed, it COULD affect lowers acquired before the law (ones that have not been listed and reg'ed), but not ones that are currently reg'ed as AW's (the "first round" off list lowers).

The post is confusing because the law and what DOJ intends to do are conflicting. My main question is still:

So they can create a new Penal Code section NOW that says 'any off-list reciever purchased after Jan 1, 2000 cannot have the features of an AW once listed and registered an AW?

I thought by nature of law that any new determination or new Penal Code would only apply to items purchased after any specific enactment date...

ohsmily
03-02-2006, 2:01 PM
The post is confusing because the law and what DOJ intends to do are conflicting. My main question is still:

So they can create a new Penal Code section NOW that says 'any off-list reciever purchased after Jan 1, 2000 cannot have the features of an AW once listed and registered an AW?


YES!!!!!! b/c they aren't denying you anything that you are entitled to RIGHT NOW. They could even create a whole new law (which they will) that will allow registration of current non-AW's but will not allow for SB23 features. This could cover all semiauto centerfire detachable mag rifles. Just b/c they might pass a law in the future banning the sale of new mini-14's and M1A's does NOT mean that current owners of those rifles will be able to add SB23 features to them.

Question: can you add SB23 features to your rifle right now? NO!

So, they can change/amend current law so that lowers added AFTER the law change will not be granted the ability to have sb23 features. So, the status of your rifle would not change...they would not be "taking anything away from you" or depriving you of a vested property interest.

BUT...if they didn't pass a new law and updated the list first (under current law) THEN a new law would not be able to take away the SB23 ability of the reg'ed lower (which will have to be fought for in court b/c DOJ says they will create a 4th tier)

xenophobe
03-02-2006, 2:19 PM
Okay, I think I was getting a little too technical in my mind. haha.