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bwiese
05-09-2006, 3:47 PM
Spoke w/gun lawyer. (Let's not play guessing games about his name.) We discussed the memo.

He agrees w/me that changing a definition of detachable mag could trigger AW status, and that likely would force a reg period.

However, his conversations w/senior DOJ personnel indicate they maybe aren't gonna redefine that so he's not yet sure what tack they're taking.

As of now, this IS JUST A MEMO. It has no force of law. Calm down.

We actually have a lot going for us.

Also: EVIL GRIPLESS RIFLES W/O FLASH HIDERS OR TELESTOCKS ARE STILL PERFECTLY LEGAL.

gh429
05-09-2006, 3:51 PM
Hey Bill, what are your thoughts as to the best course of action for us to take to force registration? I'm drawing blanks here!

As for the memo being just a memo, I would have to disagree and hope you will change your position also. You seem to have always been conservative in subjecting gun owners to legal liability - I'm of the opinion that there would be substantial risk for prosecution of "sporting conversions" based on the DOJ memo.

bwiese
05-09-2006, 3:56 PM
Hey Bill, what are your thoughts as to the best course of action for us to take to force registration? I'm drawing blanks here!

As for the memo being just a memo, I would have to disagree and hope you will change your position also. You seem to have always been conservative in subjecting gun owners to legal liability - I'm of the opinion that there would be substantial risk for prosecution of "sporting conversions" based on the DOJ memo.

Memos have no legal force. The regulatory + statutory law is CLEAR to me.

People with off-list rifles are still subject to harrassment just because many cops don't even know about them.

If they had a leg to stand on they'd say "you'll be arrested" and outline criminal charges. Instead, they discuss definitions and the fact that they are gonna do future regulation updates.

If they rejigger definitions to trigger AW status, that's a net plus!

gh429
05-09-2006, 4:01 PM
Memos have no legal force. The regulatory + statutory law is CLEAR to me.

People with off-list rifles are still subject to harrassment just because many cops don't even know about them.

If they had a leg to stand on they'd say "you'll be arrested" and outline criminal charges. Instead, they discuss definitions and the fact that they are gonna do future regulation updates.

If they rejigger definitions to trigger AW status, that's a net plus!

Hmm, they way I read the memo - "Law enforcement officials... should be aware... are assault weapons if they have features listed in 12276.1" means do not pass go, do not collect $200, go straight to jail to me... I'm not sure if you can get any more green-light on prosecution than that...

the_quark
05-09-2006, 4:16 PM
The translation of this memo is "Having an AR with a fixed magazine that requires tools to remove and one or more 12276(a)(1) features is illegal. The Deparment intends to excercise its power to adopt regulations in order to make this illegal."

Or, more clearly, "This is illegal and we'll be changing the rule to make it illegal."

Sorry, what? You can't have it both ways. If it's currently illegal, no "excercise [of] power" is needed to clarify the rule. If it's not currently illegal, the rule will need to be updated in order for it to be illegal. Until they begin the rule-update process, this is just FUD, plain and simple.

My prediction is that they won't actually ever update the rule. I'd lay slim odds they try to update the rule but claim it does not actually trigger a reg period ("all these are now illegal, anyone who owns one now has an unregistered assault weapon, please be nice and turn them into your local sheriff"). I think they have asbolutely no intention of making a rules change that will trigger a new reg period, and they're perfectly happy with all of us having pinned-mag lowers that are technically legal while they blow FUD to try to scare people away from them.

383green
05-09-2006, 4:18 PM
The new memo clearly expresses DOJ's intention to not update the "list". I was under the impression that the Harrott decision affirmed that the DOJ has the responsibility to update the "list" as necessary in order to execute upon the intention of the by-name ban legislation (ugh, I don't think I worded that very well).

It seems to me that this now gives somebody grounds to take legal action to try to force the DOJ to update the "list", as they have now officially stated that they do not intend to do so, while it seems to me that they're required to do so. I do not know the proper legal term for this type of action, or if I'm even just blowing hot wind. I hope that somebody other than Glen Avon can comment upon this.

If there's some legal action that we can take to light a fire under DOJ's butt, let's do it now. I'm sick and tired of waiting.

gh429
05-09-2006, 4:21 PM
Dude it's illegal because the DOJ says it is and will be illegal until you write the check to your lawyer to explain to the judge why and how the DOJ violated the law by redefining the definition of "capacity to accept." IF the judge doesn't laugh in your face and dimisses the case then it is not illegal. Until that point it is illegal, and anyone involved in the criminal justice system from your local cop, to the CHP, to the ATF, to the DA will treat it as such...

FreedomIsNotFree
05-09-2006, 4:27 PM
The new memo clearly expresses DOJ's intention to not update the "list". I was under the impression that the Harrott decision affirmed that the DOJ has the responsibility to update the "list" as necessary in order to execute upon the intention of the by-name ban legislation (ugh, I don't think I worded that very well).

It seems to me that this now gives somebody grounds to take legal action to try to force the DOJ to update the "list", as they have now officially stated that they do not intend to do so, while it seems to me that they're required to do so. I do not know the proper legal term for this type of action, or if I'm even just blowing hot wind. I hope that somebody other than Glen Avon can comment upon this.

If there's some legal action that we can take to light a fire under DOJ's butt, let's do it now. I'm sick and tired of waiting.

I read the same thing in the court case about the DOJ having to update the list.....can somebody please post the portion of the decision that spoke to this.....?...thanks.

Pthfndr
05-09-2006, 6:41 PM
I read the same thing in the court case about the DOJ having to update the list.....can somebody please post the portion of the decision that spoke to this.....?...thanks.

Section 12276.5, subdivision (h) directs the Attorney General to
“promulgate a list that specifies all firearms designated as assault weapons in
Section 12276 or declared to be assault weapons pursuant to this section.

But that really does not tell the whole story. You need to read the entire 48 page decision, because the court recognized the fact that the case came before the court PRIOR to SB23 going into effect. That's why the AG is not required to list anymore.

http://www.rkba.org/judicial/harrott-kings-county-casupct.pdf

NwG
05-09-2006, 7:09 PM
Here is a question,
The Harrott case had a lot to do with regular people and regular cops haveing a hard time telling what was illegal and what was. A good deal of the ruleing was to use the list to make to a sure thing what was illegal.

Well when this is all said and done, if this is indeed what the DOJ plans to do.. It is going to be pretty hard for Joe-public and Joe-LEO to figure out what is ok and what is not...

We may have something to go on here ???

leelaw
05-09-2006, 7:10 PM
Stop bringing rational thought into this - I need an excuse to act like a loon! ;)

hoffmang
05-09-2006, 7:27 PM
All,

To echo quark here - you have no guarantees you will not get arrested. If you are doing something that would expose you to arrest, make sure you have $10K laying around. $5K is your worst case bail and $5K is your worst case legal retainer. If your in the bay area, call Don Kilmer. He probably will not need $5K, maybe $1K (Don will kill me for low balling his rates :p ) When the DA looks at the case and reads the laws he'll take a swing at getting a plea bargain. Then he'll realize he has a loser and will either delay and not press or just drop charges.

As long as you stick with Bill W's letter of the law outlined in the FAQ and use a real and honest magazine pinning mechanism, you will be fine.

If you really want to be sure, take some photos of your magazine pinning method and mail them to yourself certified mail leaving the envelope sealed. That protects you from a DA or LEO with an allen wrench.

Ford8N
05-09-2006, 7:34 PM
Here is a question,
The Harrott case had a lot to do with regular people and regular cops haveing a hard time telling what was illegal and what was. A good deal of the ruleing was to use the list to make to a sure thing what was illegal.

Well when this is all said and done, if this is indeed what the DOJ plans to do.. It is going to be pretty hard for Joe-public and Joe-LEO to figure out what is ok and what is not...

We may have something to go on here ???


The whole offlist situation is confusing. I feel sorry for LEO's. Now it looks like SKS's are a problem.

gh429
05-09-2006, 7:41 PM
All,

To echo quark here - you have no guarantees you will not get arrested. If you are doing something that would expose you to arrest, make sure you have $10K laying around. $5K is your worst case bail and $5K is your worst case legal retainer. When the DA looks at the case and reads the laws he'll take a swing at getting a plea bargain. Then he'll realize he has a loser and will either delay and not press or just drop charges.

You would hope. Or you get a DA that calls the DOJ Firearms Division who says "lets take this all the way, a conviction would strengthen our position, you have all the help you need..."

hoffmang
05-09-2006, 7:45 PM
DOJ can opine in an usigned memo all they want, but at the end of the day your local DA has to decide how much effort to put into a loser case and what the re-election implications of that loser case are.

Being the DA that attempted to prosecute and lost is a career limiting move (CLM.)

James R.
05-09-2006, 7:56 PM
"Individuals who own firearms that meet the generic definition of assault weapons banned by SB 23 must do one of the following in order to comply with existing law: remove the features, sell the firearm (without the features), or permanently alter the firearm so that it cannot accept a detachable magazine."

Ughh what exactly does that achieve? Welcome to the Department of Redundancy Department. This memo is really poorly tossed together, I fail to see how selling the rifle (note it doesn't say out of state or to an AW dealer) w/o SB23 evil features on it does anything towards satisfying the law.

Regards,

James R.

50 Freak
05-09-2006, 7:56 PM
Just remember a DA and your DOJ are pretty much the same animal. Both will use threats and the posibility of jail time to force you into plea bargaining.

Even though they know they have no chance of willing. They will lead you to think the other way. They will do this up until a jury trial just to push you. But if you hold your course they will eventually drop the case as they are just bullies picking on poor civilians that don't have tons of money to fight back.

You'll hardly ever hear of them going after someone with a 7 figure bank account unless they have pictures of him killing the pope. Even then they are reluctant to do so and only do it as a way to make a political name for themselves. And even then it's a gamble cause if they lose....

hoffmang
05-09-2006, 8:09 PM
50Freak,

Not everyone on here is incapable of mounting a strong and expensive defense :D

Those of us who can afford that defense start thinking about hiring a lawyer and forcing our local DA to opine...

artherd
05-09-2006, 8:51 PM
A memo is a memo. I will see if I can get my laser printer to print it out on some toiletpaper, that's what I think of it.

We have codified and case law. Untill either changes, I am not altering my behavior one iota. Wanna charge me? Great! I'll see your sorry *** in court, and one of us will walk away still holding their job. I own the company so guess who that'll be?

zenthemighty
05-09-2006, 8:53 PM
I hope the DoJ takes this course of action for a couple reasons:

1. By redifining SB23 to encompass our off list rifles the DoJ essentially invalidates their earlier cat 4 argument.

2. if they try to force modification or surrender without a reg. period it opens the door for us to start litigation without the need for someone to bite the bullet and get arrested. It becomes a property rights issue. The NRA should be VERY willing to jump in on this due to the national precendence it could set.

3. Lets face it.. the DoJ is just stalling. Lockyear knows that him allowing 30,000 assault weapons to be registered can blow up on him more than allowing 30,000 "Off list rifles" into the state... Off list rifle just isn't that deadly souding... He'll wait until after the election to do anything about this. Perhaps we need a new name for em? Evil Black California Rifle?

From now on I'm just going to watch the penal codes for changes. The political double talk BS is annoying. Just goes to prove that Lockyear is nothing but another politician.. full of hot air.