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View Full Version : DOJ obligation to list 2000 vs. 2006


MaxQ
05-11-2006, 1:01 PM
In Information Bulletin 2000-04-FD, dated 8/22/2000, the DOJ clearly recognizes that they have an obligation to identify AR and AK copycats/clones as AWs. Apparently, the only reasons the DOJ hadn't previously identified series weapons or used the add-on provisions, were that they were awaiting the Kasler decision and the affirmation ot the constitutionality of the AWCA.

An integral part of the AWCA is the provision in Penal Code section 12276.5, which allows the Attorney General to add-on additional weapons which are similar to those listed in subdivisions (a), (b) and (c) of section 12276. In addition, and separate from the add-on provision, Penal Code section 12276, subdivisions (e) and (f), state that all AK “series” and AR-15 “series” weapons are controlled assault weapons even if they are “other models that are only variations, with minor differences, regardless of manufacturer.” There are many copycat/clone “series” AK and AR-15 assault weapons.

The add-on provision of Penal Code section 12276.5 was a major subject of the Kasler litigation which began in 1992. During the pendency of the litigation and due to questions about the constitutionality of the AWCA, Attorney General Daniel Lungren, and later Attorney General Bill Lockyer, did not use the add-on provision to regulate other weapons, nor did the Department of Justice identify the “series” weapons listed in the separate provisions of Penal Code section 12276, subdivisions (e) and (f). “Series” weapons continued to be manufactured, imported into California, sold, purchased and possessed within California without regard to Penal Code section 12276, subdivisions (e) and (f).

In 1999 the Legislature expanded the assault weapons definition by adding Penal Code section 12276.1, which identifies assault weapons by characteristics. The Kasler decision has affirmed the Attorney General’s authority to identify assault weapons with both the add-on provisions of Penal Code section 12276.5 and identify the “series” AK and AR-15 assault weapons pursuant to Penal Code section 12276 (e) and (f). Removal of assault weapon characteristics does not eliminate the need to register AK and AR-15 “series” weapons.

Department of Justice Obligation
To date, multiple legislative sessions have passed legislation to control assault weapons under three governors. Now with the concurrence of the California Supreme Court, the legislative, executive and judicial branches of government have directly addressed the control of assault weapons. In light of the recent Supreme Court’s determination that the Act is constitutional, the Department of Justice is obligated to identify and enforce the statute with respect to AK and AR-15 copycat/clone “series” weapons. To assist the public in identifying these assault weapons, the Department of Justice has identified the attached list of “series” weapons. The Department of Justice, with the assistance of experts and other interested parties in the assault weapons field, plans to publish a more current list by October 1, 2000. Thereafter, individuals who lawfully possessed these copycat/clone “series” weapons will have 90 days, October 2, 2000, through December 31, 2000, to register these “series” assault weapons with the Department of Justice. For those who are currently in possession of these assault weapons, the Department of Justice will begin accepting registrations for these copycat/clone “series” assault weapons immediately.

As we all know, the Harrott decision concluded that if it's not a specifically named series member, it's not an AW, and the AG has exclusive authority to make that determination. In 2000, it was the determination of the AG/DOJ that all the then off-list ARs and AKs (copycats/clones) were series members, thus the Kasler list. Today's AR/AK off-list situation is no different than the post Kasler decision, pre Kasler list situation. This is irrespective of SB23, and if anything, is reinforced by Harrott. Any detachable mag definition has no impact on the equivalency of a stripped Stag-15 receiver to a stripped Colt AR-15 or Bushmaster XM15 receiver.

PanzerAce
05-11-2006, 1:08 PM
Thumbs up, this is a good find. Do you have a link to this, or a image of it or something?

MaxQ
05-11-2006, 1:16 PM
It's on the info bulletin page:

http://ag.ca.gov/firearms/infobuls/index.html

http://ag.ca.gov/firearms/infobuls/200004.pdf

bwiese
05-11-2006, 1:19 PM
[This is the DOJ Firerarms Div FD2000-04 bulletin. It's on the DOJ Firearms Div website.]

MaxQ, it is good that you also noted that any applicability or restriction of 'the memo' to AR/AK would depend on these receivers being identified and formally listed by DOJ as series members.

However 12276.1 holds generically so this may not be enforced as AR/AK specific.

While the DOJ says it's 'obligated' to list, there's really no codifed duty to examine the market on a continious basis and identify new AR/AK series members, and to find guns or receivers that need 12276.5 court 'add on' petitions to be banned. In fact that continuous activity would likely require staffing and budget.

It perhaps could be interpreted as intent, but intent is very murky on laws that have been revised 4-5 times over 15+ years and that are very specific and detailed - so much so that if additional intent were to be intended, it would have been included and voted upon by legislature previously.

MaxQ
05-11-2006, 1:29 PM
Yep, I agree. It was their perceived duty at the time, and like an opinion, that can change...


It perhaps could be interpreted as intent, but intent is very murky on laws that have been revised 4-5 times over 15+ years and that are very specific and detailed - so much so that if additional intent were to be intended, it would have been included and voted upon by legislature previously.

You could also contend that the legislature felt the AWCA and SB23 (and Harrott) sufficiently authorized the DOJ to adequately regulate additional series members.

Liberty Rules
05-11-2006, 5:05 PM
While the DOJ says it's 'obligated' to list, there's really no codifed duty to examine the market on a continious basis and identify new AR/AK series members, and to find guns or receivers that need 12276.5 court 'add on' petitions to be banned. In fact that continuous activity would likely require staffing and budget.

While they can argue that they have no duty to actively canvas the market, how then do they excuse the fact that they refuse to list even those makes/models that they do in fact identify. Case in point--in the course of their operations, DOJ issues letters to people on a regular basis concluding that a particular make/model is prohibited in their opinion. Thus, even if they had no duty to survey the market, how can they justify refusing to list those that they already HAVE identified in the normal course of operations? They cannot. They are hiding the ball while at the same time stating that they will prosecute unknowing consumers. That's unethical.

Fjold
05-11-2006, 5:35 PM
Keep finding those things. What they do is add up to a "preponderance of evidence" and make any court case easier to fight. Lawyers love those type of admissions. :D

artherd
05-11-2006, 9:24 PM
While the DOJ says it's 'obligated' to list, there's really no codifed duty to examine the market on a continious basis and identify new AR/AK series members, and to find guns or receivers that need 12276.5 court 'add on' petitions to be banned. In fact that continuous activity would likely require staffing and budget.
What if they were served notice via Certified Mail? :D (wait, I've done that to 'em already :)

FreedomIsNotFree
05-11-2006, 11:52 PM
What if they were served notice via Certified Mail? :D (wait, I've done that to 'em already :)


HAHAHA....I would have paid money to see the look on the agents face when he opened up your letter and read it......he was probably thinking.."who the hell does this guy think he is...telling us what to do....huh...."

One thing is for sure.....they cant claim they were not aware of the off-list situation.....