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SP1200
06-23-2010, 8:18 PM
In reviewing police reports for a local lawyer I'm working with, I'm Seeing the term "Assault rifle" being used by LE when referring to a legal semi-auto rifle(s). I am seeing this in many cases of clients that are not even charged with gun crimes but other charges such as DV, DUI, and possession. It seems the term 'Assault Rifle' is being used to make the charged crime seem more harsh. Or rather the term is used to taint the case.

NOTE: For clarification, I am not referring to the term Assault Weapon, but rather the term Assault Rifle when referring to Evil black rifles that are in legal configuration. When looking up the definition on Wikipedia "An assault rifle is loosely defined as a selective fire rifle designed for combat that uses an intermediate cartridge and a detachable magazine." Ok so then this loosely term Assault rifle should only apply to machine guns correct?

I'm just wondering because we are about to go to prelim for a defendant who was found with "Numerous Assault Rifles" in his house. And I'm sure LE is going to use this term in court. I haven't yet, but was wondering about discussing with the attorney about if it's possible for him to object to the term 'Assault Rifles,' and requesting the term to be stricken form the police reports and replaced with just "Numerous rifles." I know this is not a trial, but can he file a motion to have the term changed, or do anything about this?

Is this even possible? I'm not a lawyer, nor a law student. Just a guy trying to help out a local friend lawyer sort some gun cases he knows nothing about...

Lateralus
06-23-2010, 8:24 PM
The law doesn't read Wikipedia, it reads penal code. Assault rifle is VERY well defined by California in PC 12276.1

If you want to help, you can distribute flowcharts to LE Agencies. You can PM me should you or your lawyer need copies to send out. Police, in my opinion, should be referring to the rifles by Make and Model rather than "Assault Rifle".

383green
06-23-2010, 8:27 PM
The law doesn't read Wikipedia, it reads penal code. Assault rifle is VERY well defined by California in PC 12276.1

If I'm not mistaken, "assault weapon" is defined by PC 12276 and PC 12276.1, not "assault rifle".

wildhawker
06-23-2010, 8:41 PM
Have the attorney call us at (800) 556-2109.

Please also see the flowchart (http://www.calguns.net/caawid/flowchart.pdf) for more useful info on semiauto rifles.

In reviewing police reports for a local lawyer I'm working with, I'm Seeing the term "Assault rifle" in police reports when referring to a legal semi-auto rifles.

When looking up the definition on Wikipedia "An assault rifle is loosely defined as a selective fire rifle designed for combat that uses an intermediate cartridge and a detachable magazine." Ok so then this loosely term Assault rifle should only apply to machine guns correct?

I'm just wondering because we are about to go to prelim for a defendant who was found with "Numerous Assault Rifles" in his house. And I'm sure LE is going to use this term in court.

I haven't yet, but was wondering about discussing with the attorney about if it's possible for him to object to the term 'Assault Rifles,' and requesting the term to be stricken form the police reports and replaced with just "Numerous rifles." I know this is not a trial, but can he file a motion to have the term changed, or do anything about this?

Is this even possible? I'm not a lawyer, nor a law student. Just a guy trying to help out a local friend lawyer sort some gun cases he knows nothing about...

SP1200
06-23-2010, 9:00 PM
The law doesn't read Wikipedia, it reads penal code. Assault rifle is VERY well defined by California in PC 12276.1

If you want to help, you can distribute flowcharts to LE Agencies. You can PM me should you or your lawyer need copies to send out. Police, in my opinion, should be referring to the rifles by Make and Model rather than "Assault Rifle".

I know the law doesn't read wikipedia. I doubt we can hand the judge, DDA, and recorders a flow chart and ask them to kindly not say "Assault Rifle." And I've noticed that even tough Sonoma County LE has the flow chart, they still continue to use the term "Assault Rifle" when referring to EBR's. Just wondering if we can challenge this on a legal level.

If I'm not mistaken, "assault weapon" is defined by PC 12276 and PC 12276.1, not "assault rifle".

Exactly. I thought I made this clear. We are not talking about Assault Weapons. Just the term Assault rifles in reference to legal rifles.

Just to recap: The client did not have any AW's. Just legal rifles in which LE refereed to them as "Assault rifles." No AW charges have been filed.

Have the attorney call us at (800) 556-2109.

Please also see the flowchart (http://www.calguns.net/caawid/flowchart.pdf) for more useful info on semiauto rifles.

Thanks wildhawker, I might have him do that if we need to, but isn't their a simple route? The client has not been charged with any gun crimes, but rather a MJ possession. I know CGF is hesitant to assist in these cases involving firearms and medical MJ. Last I checked they were not offering assistance in these cases. I'm well familial with the flow chart. The client had (6) KD KR5 rifles with BB and 10 rounds mags. NOT AW's. However in the police report the sheriffs department taints the case by referring to the clients collection of legal rifles as "Numerous Assault Rifles." Could you be so kind as to tell me what I can do? Or what I can advise him to do? Is there a motion we can file? Or can we just simply object every time the term is used in court?

Josh3239
06-23-2010, 9:05 PM
Then object, if it doesn't meet California's definition of an AW than it isn't an AW. End of story.

bwiese
06-23-2010, 9:50 PM
I know CGF is hesitant to assist in these cases involving firearms and medical MJ. Last I checked they were not offering assistance in these cases. I'm well familial with the flow chart. The client had (6) KD KR5 rifles with BB and 10 rounds mags. NOT AW's. However in the police report the sheriffs department taints the case by referring to the clients collection of legal rifles as "Numerous Assault Rifles." Could you be so kind as to tell me what I can do? Or what I can advise him to do? Is there a motion we can file? Or can we just simply object every time the term is used in court?

1. Objection is justfied, flowcharts are useful references, many
PDs use 'em.

The lawyer, being informed such guns are legal nonAWs, will
(should) know what to do.

The situation is not unlike someone having a can of drycleaning
fluid and the DA calls it a Molotov cocktail because there's
a washcloth in the bathroom.


2. If client were brought up on AW charges we may well help with that
*segment*; sometimes we have to "defend the gun". If he were
brought up on "guns + drugs" charges, we'd obviously stay away from
that -- but support for defense of technical gun matters is fine.

We never want a legit OLL to be branded in court as an AW.

joedogboy
06-23-2010, 10:25 PM
The police are showing a lack of professionalism, and scary "hot button" terms are being used to prejudice the case. This could easily backfire on them, and is certainly not in the best traditions of law enforcement.

It is important that the prosecution be able to prove that there were "numerous assault rifles" present, otherwise they (prosecution and police) will look like liars.

I would suggest bringing in firearms experts to testify that an assault rifle is capable of semi-automatic or full automatic/burst fire, and then asking the prosecution to show that the defendants rifles meet that definition, or withdraw their claim.
I would then suggest using that evidence of misinformation to cast a very reasonable doubt on everything else in their case - "Since you admit that you lied when you claimed that my client possessed assault rifles, why should we believe you when you claim x?".

This is why it is important for LEOs to be truthful and accurate in their reporting.

SP1200
06-23-2010, 11:09 PM
Humm... interesting above. Thanks guys. Looking in to the paper work. I see the Felony Complaint. The client is being charged with:

11358 HS
11359 HS
With firearms enhancements.

"Numerous rifles & handguns"
PC 12022(a)(1)

I see...the prosecutions idea is to prove that clients medical MJ garden was for profit thus a felony, but that will be impossible for DDA to prove as client was legitimate patient with permanent disabilities and doctors recommendations. The MJ charges are a toss. We are not worried about that aspect. There is no evidence this person has ever done anything illegal. It seems this gal was raided because of neighbors complaints about previous tenets that were growing and had high traffic. SOCO did "knock and talk" and client said that she did have "firearms" on the property as well as a "medical grow" when asked. SOCO said that client said she had firearms and MJ, and that they smelled MJ. They then conducted a "terry search" of the immediate vicinity (But not the client her self) that happened to be the clients garage 20 feet from where she was standing engaged. There is a curtilage issue that I shouldn't discuss at this time.

I'm assuming that LE is going to say. Client admitted to having firearms and MJ. They smelled MJ. Then upon conducting a terry search seen the MJ and the firearms, and that was PC for a warrant. Warrant was signed by the judge 2 hours AFTER the search! I will add. Client says that LE did Lie on their report. It is her word against theirs, but however do to other cases involving the same officers, we are pushing this case out as far as possible, while we wait for other possible events to unfold.

The inventory of firearms said:
"AK47" But Actual Centuray Arms WASR 10/63
"AR15" But Actual KD KR5's

Now. I notice the Felony Complaint says: "Numerous rifles & handguns" But the actual police reports says "Numerous Assault Rifles." In court a few months ago for settlement the DDA said to the judge that "the case was complex" as the client...and I quote... "had a bunch of guns." given that the DDA offered the client a 1 felony plea deal, and client said said no. This is turning in to a gun situation. Meaning that the DDA want's client to take a felony in order to keep her property and to prevent her from owning firearms in the future.

This is of concern to me, as I an am a true believer in RTKBA.

Now we have prelim readiness coming up. As a armature firearms consultant what should I recommended?
A Motion to suppress firearm evidence? Or do we wait for LEO to use the term "Assault rifles" then simply object?

Like I said. The medical MJ is of no concern. It's the DDA's effort to paint this client out to be a homeland terrorist threat because she had guns, gold, silver, and pot...

bwiese
06-23-2010, 11:35 PM
Your friend's situation shows the whole problem with MMJ.

And if the DDA wanted to call a friendly Fed US Atty with time on his hands, there could still be room for "being armed with sale-weight drugs". Because MJ is still Federally illegal no matter what Prop 215 says.

Your friend's gun issues are not necessarily assault weapons related. His situation would still be that even if he had a rack of Remington 700s and some revolvers. Yes, his guns aren't AWs; if bogus AW charges for those guns are filed we will help that particular matter. But ultimately this is a drug case.

SP1200
06-24-2010, 12:04 AM
Yes. There are a lot is issues with MMJ and homeowners RTKBA. The whole growing thing seems to require them to be ready for self/home/defense, thus presents a big problem.

There are a LOT of these cases popping up, and these clients have no idea. They are coming in every day! This is seriously making me considering law school.

Another client had a M14 Arms corp 7.62 with detach mag. He didn't know that the flash suppressor was an EF. LE is calling that one an AW and charging as such. I recommended having a firearms expert inspect that rifle to make sure it's not a muzzle break, but a Flash suppressor. I know those can be tricky.

As far as the above case goes. It is a drug case, but the "drugs" are not the issue. The MMJ was state legal. As far as a pass off to the feds, attorney believes is highly unlikely. I was just concerned on the RTKBA issue, and how the DDA seems to be trying to prejudice the case with the trem "Assault rifles."

If it's as simple as an objection during a prelim readiness, or the actual prelim it's self, then that's it. But if there are other things I need to get the attorney on beforehand, then i would need to advise him. He's a good "drug" attorney, but knows essentially nothing about firearms, like really, lol, nothing.

I would really like to get him trained up on the firearm issues, I encourage him to sign up for calguns, but the poor guy really doesn't have the time. He's to busy with all the pot cases and keeps calling me, then I get all passionate. It has taken me years to learn the gun laws, and I can't imagine how he could take the time to learn the issues involving firearms while taking on his current MMJ case load.

bwiese
06-24-2010, 12:10 AM
Yes. There are a lot is issues with MMJ and homeowners RTKBA. The whole growing thing seems to require them to be ready for self/home/defense, thus presents a big problem.

There are a LOT of these cases popping up, and these clients have no idea. They are coming in every day! This is seriously making me considering law school.

Another client had a M14 Arms corp 7.62 with detach mag. He didn't know that the flash suppressor was an EF. LE is calling that one an AW and charging as such. I recommended having a firearms expert inspect that rifle to make sure it's not a muzzle break, but a Flash suppressor. I know those can be tricky.

As far as the above case goes. It is a drug case, but the "drugs" are not the issue. The MMJ was state legal. As far as a pass off to the feds, attorney believes is highly unlikely. I was just concerned on the RTKBA issue, and how the DDA seems to be trying to prejudice the case with the trem "Assault rifles."

If it's as simple as an objection during a prelim readiness, or the actual prelim it's self, then that's it. But if there are other things I need to get the attorney on beforehand, then i would need to advise him. He's a good "drug" attorney, but knows essentially nothing about firearms, like really, lol, nothing.

I would really like to get him trained up on the firearm issues, I encourage him to sign up for calguns, but the poor guy really doesn't have the time. He's to busy with all the pot cases and keeps calling me, then I get all passionate. It has taken me years to learn the gun laws, and I can't imagine how he could take the time to learn the issues involving firearms while taking on his current MMJ case load.

Again,
1. the assault rifles aren't.
2. if he can defend the guns+drugs situation, fine: AWs don't matter.
3. I would worry that CA law (armed in commission of felony) might
(and prob) does not exclude Federal felonies.

SP1200
06-24-2010, 12:40 AM
Again,
1. the assault rifles aren't.
2. if he can defend the guns+drugs situation, fine: AWs don't matter.
3. I would worry that CA law (armed in commission of felony) might
(and prob) does not exclude Federal felonies.

I'm sorry. I was afraid of this. Anytime anyone mentions MMJ with firearms I see this style of demeanor and frustration. That is sad for me as I respect you, CGF, and every free person who chooses to participate in their given liberties, federal or state.

Thanks for your time Bill.
I'm sorry to bother you with this nonsense.

Fyathyrio
06-24-2010, 12:58 AM
It seems to me that this lawyer who admits he doesn't have a good grasp on the weapons related charges owes it to his client to find somebody who does...check post #4 and follow that advice. I'm willing to bet that'd be much more effective then discussing it here in the open.

SP1200
06-24-2010, 1:05 AM
^ Preferred. However CGF has made it clear that they do not want any possible "drug' cases. So what's the point of contacting them? If the defendant is being charged with AW possession then CGF would defend the firearm it's self, but as Bill has stated this isn't that clear of a situation.

I'm sorry I even started this thread. I thought I had a real simple question about how to defend against the term "Assault rifle" in court. But apparently i guess, it's not so simple.

Fyathyrio
06-24-2010, 1:39 AM
Just because they may not take it on for free doesn't mean they won't talk about the case at all. As mentioned, they may be willing to handle the weapon part without dealing with the drug issue. Lawyer will never know if he doesn't call and ask.

IMHO, if I found out my lawyer was asking some random guy for advice instead of seeking out the qualified pro...I just might punch him in the throat. At the very least present me the option so I can decide for myself.

Manic Moran
06-24-2010, 7:29 AM
Courts often will allow 'subject matter expert' books to be used as supporting evidence for definitions, even if there is no such in the penal code. If you can provide a couple of reputable-looking books such as "The collector's Guide to Rifles" or some such, or a US Army document such as FSTC-CW-07-03-70, small arms identification guide.
http://207.234.249.73/gunfax/fstcp67.jpg showing a consistent definition.

NTM

wildhawker
06-24-2010, 7:33 AM
^ Preferred. However CGF has made it clear that they do not want any possible "drug' cases. So what's the point of contacting them? If the defendant is being charged with AW possession then CGF would defend the firearm it's self, but as Bill has stated this isn't that clear of a situation.

I'm sorry I even started this thread. I thought I had a real simple question about how to defend against the term "Assault rifle" in court. But apparently i guess, it's not so simple.

I'm not sure how Bill or I could have been clearer. We may not "take the case", as it were, but it's important that we ensure the non-AW rifles do not become AWs in any case.

If the client is brought up on AW charges, the attorney should get in touch.

berto
06-24-2010, 7:36 AM
Call CGF. They have an interest in the rifles not being wrongly identified in court. CGF can offer guidance in a limited manner. Please take advantage of their knowledge as calling costs you nothing but a little time.

Untamed1972
06-24-2010, 7:39 AM
Why not just object to the term as prejudicial by stating that under CA law they are legally configured "semi-automatic rifles" and use of the term "assault rifle" is meant solely to cast the accused in a bad light and that per X firearms references a semi-automatic rifle does meet the defintion of an "assualt rifle".

SP1200
06-24-2010, 12:04 PM
Why not just object to the term as prejudicial by stating that under CA law they are legally configured "semi-automatic rifles" and use of the term "assault rifle" is meant solely to cast the accused in a bad light and that per X firearms references a semi-automatic rifle does meet the defintion of an "assualt rifle".

Perfect! This is the answer I was looking for. Thank you. Thanks to everyone. See this client is NOT begin charged with any AW charges. Nor does the DDA claim she had any AW's. Its the prejudicial trem assault rifles that I was wondering about.

I'm not sure how Bill or I could have been clearer. We may not "take the case", as it were, but it's important that we ensure the non-AW rifles do not become AWs in any case.

If the client is brought up on AW charges, the attorney should get in touch.

Brandon I understand. You and Bill have made it clear. And I appreciate that. But like Bill said, this isn't a gun case, this is a drug case. The client isn't being charged with firearm possession, but rather drug possession, and the firearms and term "assault rifles" are being used to prejudice the drug case.

If the client is charged with any BS AW charges later, I will make sure the attorney gets in touch with CGF as I know it is of benefit to make sure no non-aw gets branded as one in court. I understand this.

Thanks everyone.

Whiskey_Sauer
06-24-2010, 12:47 PM
If the client does not get charged with weapons-related charges, the attorney needs to make a motion in limine to exclude evidence regarding firearms. As a part of this motion in limine, the attorney could also object to the use of the term "assault rifle" on the grounds that it is prejudicial and inflammatory, with little or no probative value on any material issue (i.e., a motion to exclude under section 352 of the Evidence Code). Also, the objection to the term "assault rifle" lacks factual or legal foundation. That's where the definitional argument comes into play.

SP1200
06-24-2010, 1:26 PM
If the client does not get charged with weapons-related charges, the attorney needs to make a motion in limine to exclude evidence regarding firearms. As a part of this motion in limine, the attorney could also object to the use of the term "assault rifle" on the grounds that it is prejudicial and inflammatory, with little or no probative value on any material issue (i.e., a motion to exclude under section 352 of the Evidence Code). Also, the objection to the term "assault rifle" lacks factual or legal foundation. That's where the definitional argument comes into play.

I see. Awesome input Whiskey I really appreciate it. It's nice to read and understand the procedure and thanks for explaining it, rather of just saying "call me"
Would this motion to suppress firearm evidence be prepared and heard before the prelim?

Whiskey_Sauer
06-24-2010, 1:46 PM
Would this motion to suppress firearm evidence be prepared and heard before the prelim?

No, a motion in limine is heard at trial, and is typically used to keep prejudicial evidence away from the jury.

A motion to suppress is something different. That's a motion to suppress evidence that was improperly obtained, typically as a result of an unlawful search.

Assuming the client is not charged with weapons charges, or 12022, you won't spend too much time objecting to the gun evidence at a prelim. The attorney can object to the gun evidence on the grounds of relevance, but ultimately, it's the jury trial where you're going to try to get the evidence excluded. And I know one judge in Sonoma County that is very 2A-friendly, so who knows, the attorney might get away with it at trial.

But as for the prelim, the judge will probably let the evidence in, unless the DA is just wasting an undue amount of time on the issue.

joedogboy
06-24-2010, 3:42 PM
Why not just object to the term as prejudicial by stating that under CA law they are legally configured "semi-automatic rifles" and use of the term "assault rifle" is meant solely to cast the accused in a bad light and that per X firearms references a semi-automatic rifle does meet the defintion of an "assualt rifle".

You could also go one step beyond this and use this as an example of how the prosecution and police in the case have bent/broken the law to try to ensure that the client doesn't receive a fair trial.

Argument 1: This shows that the police and prosecution have knowingly been lying, so we can't trust anything else they have to say - move to dismiss.

Argument 2: If they are so incompetent that they can't correctly identify a rifle, why should the people believe that they can correctly do anything else - move to dismiss.

This is why it is important for police and prosecutors to be scrupulously honest and fair when dealing with suspects. Their mis-steps in the firearms portion of this could cost them a guilty verdict for the drug portion.

The underlying pro-LEO message here is for cops to get your coworkers on the ball about doing their jobs properly, so they don't let the "team" down.

Shotgun Man
06-24-2010, 3:47 PM
You could also go one step beyond this and use this as an example of how the prosecution and police in the case have bent/broken the law to try to ensure that the client doesn't receive a fair trial.

Argument 1: This shows that the police and prosecution have knowingly been lying, so we can't trust anything else they have to say - move to dismiss.

Argument 2: If they are so incompetent that they can't correctly identify a rifle, why should the people believe that they can correctly do anything else - move to dismiss.

I would let him call it an assault rifle at the prelim, and on cross, make him look like a fool. These are occasions lawyers enjoy.

At the prelim, another similar tact would be to object the first time he says assault rifle-- lack of foundation (both as him calling it an AR and him being an expert).

Then watch him try to lay the foundation for it being an assault rifle. He can't. Ask to take him on voir dire. At that point, ask him to cite any source that would define the guns in question as an assault rifle. Cite your own esteemed tomes-- Jayne's maybe? Refer him to his own sheriff's manual and the penal code and ask him for the definition of assault rifle.

Shotgun Man
06-24-2010, 5:46 PM
If the client does not get charged with weapons-related charges, the attorney needs to make a motion in limine to exclude evidence regarding firearms. As a part of this motion in limine, the attorney could also object to the use of the term "assault rifle" on the grounds that it is prejudicial and inflammatory, with little or no probative value on any material issue (i.e., a motion to exclude under section 352 of the Evidence Code). Also, the objection to the term "assault rifle" lacks factual or legal foundation. That's where the definitional argument comes into play.

The OP said that the client was being charged with firearms enhancement although I don't think he cited them specifically.

A motion in limine is kind of misplaced. At jury trial, the lawyer wants to completely exclude any testimony concerning firearms, however the issue of firearms is certainly relevant to the firearms enhancement which the jury has to decide. So a motion in limine would be denied out of hand.

The proper motion is one to bifurcate the firearms enhancement. The issue of firearms is not necessarily relevant to the substantive charge. If the judge grants the motion to bifurcate, the jury would decide the firearms issue after the trial on guilt of the MJ offense. That is only fair.

A judge would likely grant the motion unless the prosecution strived to make the gun testimony relevant to the main charge by saying that the guns were part of the defendant's drug dealing business or contriving some such similar theory.

Whiskey_Sauer
06-25-2010, 11:33 AM
That's why I said, "If the client does not get charged with weapons-related charges."