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kenc9
04-10-2006, 2:24 PM
I found this article about DOJ meeting the burden of proof to declare additional assault rifles considering the current AW laws already in tact.

Here is part of the article.

Harrott, at 1155.
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 may be one of the problems "BILL" is having to contend with and causing delays in listing. I am sure he doesn't want another black eye just before elections.

Ken :)

bwiese
04-10-2006, 2:43 PM
This is based on a shaky defense theory that if you have a listed lower without features combination(s), you don't have an assault weapon.

That's something that could be argued as a last ditch defense. The guy who wrote this defends people on AW charges.

Also at this point (almost) no one will protest listing new guns by name :) Once they are registered, that's fine.

glen avon
04-10-2006, 3:05 PM
http://calgunlaws.com/Docs/ASSAULT%20WEAPONS/Articles/76373_1_doj_expands.pdf

VeryCoolCat
04-10-2006, 3:07 PM
I wouldn't mind registering california classified assault weapons, as long as I could still purchase them.

Though most of the time, the decisions pretty much been made before it has gone before a panel/judge and any argument said won't do jack.

kenc9
04-10-2006, 3:44 PM
This is based on a shaky defense theory that if you have a listed lower without features combination(s), you don't have an assault weapon.

That's something that could be argued as a last ditch defense. The guy who wrote this defends people on AW charges.

Also at this point (almost) no one will protest listing new guns by name :) Once they are registered, that's fine.

This firm represents many including the NRA (They say at least)

Our team of attorneys is comprised of constitutional law professors, former District Attorneys, trial lawyers, state legislators, and authors of best-selling firearms law books and articles. Together, our group has unparalleled experience and expertise in firearms law and litigation. Among other things, our attorneys have testified on behalf of clients in agency-rule making proceedings, assisted in drafting firearms legislation, appeared before various administrative and legislative bodies, defended individuals in firearm licensing matters, represented firearms manufacturers in product liability litigation, defended against gun related criminal charges, and brought legal proceedings against state officials to challenge ill-conceived gun laws.

Who needs our unique expertise? Our clients include the National Rifle Association, the California Rifle & Pistol Association, law enforcement agencies and officers, industry trade associations, gun shows, importers, manufacturers, distributors, dealers, indoor and outdoor shooting ranges, special effects companies, prop houses, armories, pyro-technicians, and individuals who face federal and state licensing and compliance issues or criminal charges.

This (new listing) has to be excepted by a court, as I read it and upheld to become law. After that the manufactures and some others may contest it.

It will be interesting to see how this issue plays out. :)

-ken

PIRATE14
04-11-2006, 10:19 PM
Burden of what????

They've already gone through a few iterations of the same thing already.

They had the 89 list....

They've already updated that list once after SB23 took effect.....AUG 2000 time frame and had a registration period after the SB 23 period. There was no mention that you couldn't build a registered AW after that and I am pretty sure that a lot of people registered stripped rcvrs as AW and the State accepted them as such.

So, this will be the third update but not the last to the list and the forth registration period for AW...........fifth if you count the 50 BMG

And yes manufactures will just make another off list lower.....why not....COLT did the same thing to get around the AR-15 model.

jdm49
04-11-2006, 11:20 PM
This is based on a shaky defense theory that if you have a listed lower without features combination(s), you don't have an assault weapon.

That's something that could be argued as a last ditch defense. The guy who wrote this defends people on AW charges.

Also at this point (almost) no one will protest listing new guns by name :) Once they are registered, that's fine.

The California Bushmaster modified Colts and Bushmasters are examples of listed rifles that are documented as legal in a letter from DOJ due to the fact that the welded magazine plate makes them substantially different than the X-15 Stoner design. This is a clear, documented indication that 'named' rifles can be excorcised in the eyes of the DOJ.

It also points out the inconsistency of the legal precedents.

However, unless the legislation changes dramatically, the named listing is struck down, and some sweeping registration occurs, it seems unlikely that one would ever be able to change these into detachable mag AR's. On the other hand, they do represent an 'insurance policy' in case a total ban is legislated in which case you would at least have a fixed mag but otherwise genuine AR-15, M4, etc. for those of us who got into this game 'post ban'... albeit an expensive insurance policy.

xenophobe
04-12-2006, 12:26 AM
This (new listing) has to be excepted by a court, as I read it and upheld to become law. After that the manufactures and some others may contest it.

It does not need to be accepted by a court, but only for AR and AK series firearms/receivers. DOJ has the authority to list AR-15 and AK-47 series at will, and do so by updating the CCR.

The non AR and AK AW add-ons need to be brought to a courtroom and the manufacturers have the right to contest this, but not the other. It is unclear at this time whether the CCR or PC will be updated, but from the sounds of needing court approval, this isn't a CCR matter, it's a court mandated change to the PC.

This is based on a shaky defense theory that if you have a listed lower without features combination(s), you don't have an assault weapon.

Shaky? The best case of wishful thinking would define it as shaky. I call it a lost cause... The DOJ clearly holds, and has always consistently held the position that listed 12276 definition Assault Weapons are banned in any configuration (except for what I mention below)... stripped or not. It is clearly posted in the FAQ section of the CA AG FD website. While SB-23 does not have constructive possession wording, DWCL89 has specific wording that bans, not by features configuration or constructive possession, pieces of metal that are considered by the ATF to be firearms are the assault weapon itself.


The California Bushmaster modified Colts and Bushmasters are examples of listed rifles that are documented as legal in a letter from DOJ due to the fact that the welded magazine plate makes them substantially different than the X-15 Stoner design. This is a clear, documented indication that 'named' rifles can be excorcised in the eyes of the DOJ.

It also points out the inconsistency of the legal precedents.

This has already been argued here. There is no legal precedent that I've heard of based on the modified Colts and Bushmasters, and as far as I'm aware, not one 'letter' of DOJ opinion. Technically they are still banned 'assault weapons', but since they have been modified, the fact that DOJ would probably opine that they choose not to prosecute, rather than deeming them non-AWs. A District DA could definitely bring up charges, and they would most likely be heard. They would have to fight the plaintiff AND the DOJ, but it could easily be done. I don't want to haggle either side of this debate, but if pushed, I see this as a prosecution if so pressed.

glen avon
04-12-2006, 8:19 AM
...While SB-23 does not have constructive possession wording, DWCL89 has specific wording that bans, not by features configuration or constructive possession, pieces of metal that are considered by the ATF to be firearms are the assault weapon itself....

can you point me to that?

jdm49
04-12-2006, 9:11 AM
This has already been argued here. There is no legal precedent that I've heard of based on the modified Colts and Bushmasters, and as far as I'm aware, not one 'letter' of DOJ opinion. Technically they are still banned 'assault weapons', but since they have been modified, the fact that DOJ would probably opine that they choose not to prosecute, rather than deeming them non-AWs. A District DA could definitely bring up charges, and they would most likely be heard. They would have to fight the plaintiff AND the DOJ, but it could easily be done. I don't want to haggle either side of this debate, but if pushed, I see this as a prosecution if so pressed.


I appreciate the lack of a tried court precedent. However, there is a letter from Lockyer's office at DOJ on the acceptability of the sealed magwell California bushmaster weapons based on example weapons presented to the DOJ, so, in that regard, you are not fully informed.

bwiese
04-12-2006, 10:05 AM
I appreciate the lack of a tried court precedent. However, there is a letter from Lockyer's office at DOJ on the acceptability of the sealed magwell California bushmaster weapons based on example weapons presented to the DOJ, so, in that regard, you are not fully informed.

He IS fully informed.

That is an administrative approval letter and is not an official 'opinion letter' from the DOJ, the latter of which has far more legal bearing. The people doing approvals are not necessarily lawyers. While this does offer some protection, I and others feel one of the 58 DAs could argue otherwise, as these were named by make/model.

Now, Harrott has indeed confirmed the DOJ has the legal ability/duty (and supposed expertise) to recognize/identify new AR 'series' members - so it therefore could be argued, by extension, that the DOJ has the ability to say a particular item is no longer a series member even though it is named.

Frankly, I think the two most worrisome edge conditions/inconsistencies in CA AW law - besides skating too closely to the wacky definition of pistol grip - and which could be argued against by local DAs, are:

The (above) fact that DOJ says a named rifle with welded magwell is no longer an AW.

The DOJ saying that a 'by features' (Cat III) rifle registered as an AW does not have to be treated as an AW when features are removed.


To me these are far more worrisome than the CCR 978.20(a) definition of detachable magazine (which in converse defines nondetachable/fixed magazines).

Myself, I'd feel much more comfortable having a fixed-mag rifle on an off-list lower.

And I myself am treating any of my registered AW Imbel FALs as AWs even if features are removed. I know this is extra effort (esp w/shipping) but this is definite grey area.

xenophobe
04-12-2006, 10:44 AM
can you point me to that?

Here's one instance... there are several more. Feel free to look around the DOJ site for them:


# If I registered my SB 23 assault weapon and now I remove the characteristic(s) that make it an assault weapon, can I cancel the registration?

Yes. If the defining characteristics establishing a firearm as an SB 23 assault weapon are removed, it is no longer an assault weapon and the registration may be canceled. However, once the registration is canceled, you can never replace the characteristic(s) that make it an assault weapon, or you will be in possession of an illegal weapon.

THIS APPLIES ONLY TO FIREARMS DEFINED AS ASSAULT WEAPONS BY CHARACTERISTICS (Penal Code section 12276.1, SB 23). THIS DOES NOT APPLY TO ORIGINAL ROBERTI-ROOS ASSAULT WEAPONS OR AK and AR-15 SERIES WEAPONS IN THAT REMOVAL OF THEIR CHARACTERISTICS DOES NOT NEGATE THE REQUIREMENT TO REGISTER THE ASSAULT WEAPON.

This would seem to indicate that their opinion is that removal of 12276.1 defining features (or any combination of parts) does not make this less of an assault weapon. Take a 12276 named firearm, remove the stock, pistol grip, bolt, barrel, flash hider or whatever, and they still consider it an AW.


http://ag.ca.gov/firearms/regagunfaqs.htm#13


I appreciate the lack of a tried court precedent. However, there is a letter from Lockyer's office at DOJ on the acceptability of the sealed magwell California bushmaster weapons based on example weapons presented to the DOJ, so, in that regard, you are not fully informed.

jdm49, any traffic cop could look at the AW Identification Guide, see that the Bushmaster and Colt are both on it and arrest you. They're both named guns, and there is no code in law that states any specific features or changes to these identified AWs makes them any less. Read my response to Glen Avon.

Please present a copy of this letter... Do they declare it not an assault weapon, or sufficiently changed to avoid prosecution? These would be two completely different opinions... I take it they have a letter for the Colt too? I would like to see the specific wording. Category 1 AWs are not defined by feature. They are defined by Make and Model regardless of features.


Thanks Bill! You are indeed right! I also would feel safer with an off-list and pinned mag.

glen avon
04-12-2006, 10:56 AM
Here's one instance... there are several more. Feel free to look around the DOJ site for them:
http://ag.ca.gov/firearms/regagunfaqs.htm#13


but that's not the law. you stated that the dangerous weapons control law states that AW receivers are AWs. I have looked through the law before and did not find that. if you can point me to the law, i.e., the statute in the DWCL stating that, I would appreciate it.

xenophobe
04-12-2006, 11:22 AM
but that's not the law. you stated that the dangerous weapons control law states that AW receivers are AWs. I have looked through the law before and did not find that. if you can point me to the law, i.e., the statute in the DWCL stating that, I would appreciate it.

Well, you are correct that it doesn't say that. However, there is plenty of opinion supporting this, and they have held this consistent view. On the same note, it does not state that the lack of any combination of parts does not make a 12276 named assault weapon a non-assault weapon either.

Here is further opinion, if that matters to you:

http://www.robarm.com/DOJ%20Answers%208Jan04.pdf

jdm49
04-13-2006, 9:08 AM
He IS fully informed.

That is an administrative approval letter and is not an official 'opinion letter' from the DOJ, the latter of which has far more legal bearing. The people doing approvals are not necessarily lawyers. While this does offer some protection, I and others feel one of the 58 DAs could argue otherwise, as these were named by make/model.

Now, Harrott has indeed confirmed the DOJ has the legal ability/duty (and supposed expertise) to recognize/identify new AR 'series' members - so it therefore could be argued, by extension, that the DOJ has the ability to say a particular item is no longer a series member even though it is named.

Frankly, I think the two most worrisome edge conditions/inconsistencies in CA AW law - besides skating too closely to the wacky definition of pistol grip - and which could be argued against by local DAs, are:

The (above) fact that DOJ says a named rifle with welded magwell is no longer an AW.

The DOJ saying that a 'by features' (Cat III) rifle registered as an AW does not have to be treated as an AW when features are removed.


To me these are far more worrisome than the CCR 978.20(a) definition of detachable magazine (which in converse defines nondetachable/fixed magazines).

Myself, I'd feel much more comfortable having a fixed-mag rifle on an off-list lower.

And I myself am treating any of my registered AW Imbel FALs as AWs even if features are removed. I know this is extra effort (esp w/shipping) but this is definite grey area.



The text of the DOJ letter is as follows:

"Concerning your request to evaluate your AR-15 lower modification to the magazine well to take the modified lower AR-15 receiver out of series status, it is the opinion of this department that your modification changes the design to a point that we do not consider it a Stoner X-15 series design.

Therefore, any modification which conforms with the test model kept as evidence by the California Department of Justice Firearms Division as an exemplar is approved.

Sincereley


IGNATIUS CHINN
Special Agent Supervisor
Firearms Division

For BILL LOCKYER
Attorney General"


and apparently there is a record at DOJ which associates the serial number of every rifle purchased from the manufacturer (actually modifier) with the provided example and decision that this letter discusses.

glen avon
04-13-2006, 9:54 AM
Well, you are correct that it doesn't say that. However, there is plenty of opinion supporting this, and they have held this consistent view.

interpretations can change. this, along with the information in the link you provided below, could provide some interesting tension. that's the point I keep making and you seem to keep rejecting. there is a real chance that to save the legislation the DOJ might change or clarify its policy - to the extent there is one - that AW receivers are AWs.

it's not my point to say you are wrong, just to illustrate possible alternative analyses. we ignore those at our own peril.