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bwiese
05-18-2006, 12:48 PM
REBUTTAL TO DOJ 5/9/06 MEMO

On 5/9/06 DOJ FD issued an unsigned, undated memo (written by Mary Hollister) regarding various aspects of California AW laws and 'off-list' AR/AK receivers. Commentary in blue.

The Department of Justice (hereafter the Department) has received numerous inquiries from the public and firearms industry personnel about the legality of various AR15/AK47 “series” style firearms that have not been named by the Department as “series” assault weapons. The Department believes that the public and law enforcement are best served by reference to the generic definition of assault weapons set forth in SB23, rather than reliance upon a scheme of identifying assault weapons by name. Therefore, the Department will not update the list of “series” assault weapons.

Do note this memo in no way stops the politically embarassing problem of forgetting to update the list of banned guns for the last 5 years.

After all, detachable magazines on off-list rifles are still legal: thousands of these rifles missing only a cheap plastic pistol grip are perfectly legal. They shoot just fine, and can legally accept legally-owned high-capacity detachable magazines as long as no other features like a telestock or a flash hider are present. This configuration is clearly not described in PC §12276.1.

SB23 has banned the possession, sale and manufacture of firearms with the characteristics of assault weapons as defined in California Penal Code §12276.1 since January 1, 2000. A semiautomatic centerfire rifle with the capacity to accept a detachable magazine and any of the generic features listed in Penal Code §12276.1(a)(1) is contraband unless it was registered prior to January 1, 2001. It is illegal to manufacture, cause to be manufactured, distribute, transport, import, keep for sale, offer or expose for sale, give or lend such a weapon, except as permitted by law.

A correction is necessary. While SB23 registration period ended 12/31/00, the DOJ allowed any self-identified AR15 or AK47 pattern firearm to be registered during the Kasler gap (the period Jan 1 01 thru Jan 22, 01) – regardless of attached features.

This means that in the 22 days of Jan 2001, a bare AR or AK receiver could have been registered as an assault weapon, and characteristic features added or changed later.

Law enforcement officials, firearm dealers and the public should be aware that semiautomatic centerfire rifles that are modified to be temporarily incapable of accepting detachable magazines, but can be restored to accommodate detachable magazines, are assault weapons if they have any of the features listed in §12276.1(a)(1).

When a semiauto centerfire rifle is equipped with a fixed magazine – that is, one that not considered a detachable magazine in regulatory code – it's not capable of accepting a detachable magazine. California Code of Regulations, Section §978.20(a), defines term detachable magazine in relation to the §12276.1(a)(1) generic assault weapon definition:

“[D]etachable magazine’ means any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required. A bullet or ammunition cartridge is considered a tool.

Ammunition feeding device includes any belted or linked ammunition, but does not include clips, en bloc clips, or stripper clips that load cartridges into the magazine.”

Rifles with fixed 10-round magazines affixed to the rifle honor the converse of the §978.20(a) definition. Such fixed magazines require “tools and time” to remove and are not detachable magazines, and thus the §12276.1(a)(1) generic definition is not triggered.

There is no concept of permancy of attachment or amount of time to remove codified in the relevant regulations. If magazine takes a tool or tools to change, and isn't readily replaceable in the normal course of operation of the rifle, it isn't a detachable magazine. An affixed nondetachable magazine means the rifle cannot be capable of accepting a detachable magazine. In fact, this regulatory definition establishes standards for removal!

Fixed-magazine “off-list” rifles are simply not described by the statutory definition of assault weapon, since the triggering “detachable magazine” attribute was not instantiated. Rifles approved by DOJ with fixed magazines can readily be reconfigured into allowing a detachable magazine with a tool as simple as a pocketknife.

Furthermore, the concept that a rifle equipped with a fixed magazine not desrcibed by §978.20(a) is still capable of accepting a detachable magazine requires a “construction”. A DOJ letter signed by Deputy Attorney General Tim Rieger indicates that “constructive possession” concepts do not apply to any assault weapon features:


3. Would possession of a completely unassembled Category 3 “assault weapon” constitute an unlawful possession of an “assault weapon”? In practical terms, if someone has removed any SB23 offending feature(s) from their rifle so that it is no longer an “assault weapon”, are they in violation of the law if they continue to possess the removed features along with the rifle?

• No.

5. Does the possession of all necessary components that could be used to assemble a Category 3 “assault weapon”, if possessed in a disassembled state, constitute unlawful possession of an assault weapon?

• Same question as #3 – the answer is no.


And even despite all the above, significant lenity issues arise upon any insistence upon a ‘capable of accepting…’ interpretation implying existence of capability even if a nondetachable magazine is affixed. When ambiguous words or phrases in criminal statutes and regulations can be readily interpreted in multiple ways, ambiguities must be resolved in favor of criminal defendants; if a criminal statute or regulation does not clearly outlaw conduct, the defendant cannot be penalized. Even the Jun 2001 Harrott decision, which dealt with California assault weapon issues, delved into such lenity matters.

The Department intends to exercise its power pursuant to Penal Code section 12276.5(i) to adopt regulations as “necessary or proper to carry out the purposes and intent” of California law to ban assault weapons in the state.”

This statement is an obvious admission of the necessity of changing regulations, since the current combination of laws and regulations simply doesn’t describe the fixed-magazine rifles discussed here as assault weapons.

It's important to note that DOJ changing existing regulations regarding detachable magazines will create major issues for existing legal SKS rifles, since these rifles’ 10-round fixed magazines are readily removable in very short order – they are just not removable in normal course of rifle operation, and are not CCR §978.20(a)-defined “detachable magazines”. If magazines such as the SKS fixed magazine ends up being regarded as a detachable magazine through redefinition or reinterpretation, the rifle will be considered an assault weapon (as “SKS with detachable magazine” firearms are banned by PC §12276.1(a)(11).

Any future restriction of scope of applicability of regulatory definitions to AR and AK “series” members is insufficient, as Harrott ruled that, to be regarded as an AR or AK “series” member, it must first be promulgated as such by DOJ. It would the be listed in regulatory code as banned (with a consequent opening of a registration period for existing owners) - otherwise it's not a "series" member. Owners, trial courts and other parties have no obligation to determine series membership (other than examining it against the list of banned "series" members), and thus any DOJ directives regarding AR & AK “series” must only apply to makes/models of rifles and receivers that have been formally listed.

Existing firearms which were legally acquired, owned, and maintained – and which transition into assault weapons status by DOJ fiat, either by identification/declaration as a ‘series member’, or via transition by regulatory redefinition – must be allowed registration by DOJ. There's no statutory support whatsoever for any surrender of existing legally-owned, legally-acquired firearms, nor any mandate forcing modification of legal firearms. One primary, unarguable goal of CA AW registration laws is they were structured to avoid seizure/surrender of existing firearms (and consequent property rights issues concerning seized legally owned firearms declared to be assault weapons.)

Individuals who own firearms that meet the generic definition of assault weapons banned by SB23 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.

This is readily apparent. Individuals owning what was just described above have committed crimes described by PC 12280(b), at the very least, and perhaps PC 12280(a).

However, individuals owning an “off-list” rifle receiver with an affixed non-detachable magazine (compliant with the converse of the CCR §978.20(a) definition) have committed no crimes since they do not have a firearm banned by name, nor is that firearm described by any generic definition (which, in turn, is shaped by regulatory definitions of key features.

It remains illegal to possess assault weapons banned by name (either in statute or regulation), unless those assault weapons are registered and possessed in accordance with state law. The time limits for registration, which depend on the make and model of the assault weapon, are set forth in Penal Code §12285.

Old news.

JWC6
05-18-2006, 1:09 PM
thank you Bill

Joe
05-18-2006, 1:31 PM
good read:)

resistor
05-18-2006, 1:37 PM
So, in a nutshell, the "new memo" STILL doesnt mean squat.

I think I'll celebrate and go get ANOTHER lower. ahhaahhahahahah!!!

PeteyG
05-18-2006, 1:45 PM
Great read,

you are my hero Bill.

Pete

Glasshat
05-18-2006, 1:48 PM
Bill -
I know the DOJ is just trying to promote more confusion with their memos and I know I shouldn't bother to read them, but I do. So now I'm confused just as they planned.
Please clear this up for me: isn't the 5/9/06 memo going backwards? I mean, didn't the Ca Supreme Court look at all the info and determine that the "scheme of identifying assault weapons by name" is the DOJ's responsibility and it is up to the DOJ to name the weapons by manufacturer, model, etc. so that the general public doesn't have to interpret generic descriptions as the 5/9/06 insists we should?

five.five-six
05-18-2006, 1:48 PM
were all going to jail

shopkeep
05-18-2006, 2:04 PM
This is only the beginning. By the time Bill is done ripping up this memo they'll have a new one out. Then after November elections they'll quietly list. They aren't going down without a fight first, and neither are we.

On a side note, I think I'll build a Carbon Fiber rifle to kill some time.

kenc9
05-18-2006, 2:10 PM
If the DOJ or any other body change the
"""detachable magazine in regulatory code""" and create a formerly legal Semi-Auto rifle into an assault rifle...Does that have to go to a Reg. period? Or is this a grey area that would have to go to court to decide? Anyone know?
Great post!

-ken

kantstudien
05-18-2006, 2:16 PM
Bill, I have to ask why you keep submitting your rebuttals in a public forum? The DOJ responds directly to your rebuttals as evidenced by their constant memo "revisions." Why are you showing them your hand? Shouldn't this be tucked-away in your secret bag of ninja-tricks to use in a court-case or something?

bwiese
05-18-2006, 2:17 PM
If the DOJ or any other body change the
"""detachable magazine in regulatory code""" and create a formerly legal Semi-Auto rifle into an assault rifle...Does that have to go to a Reg. period? Or is this a grey area that would have to go to court to decide? Anyone know?


The gun lawyers I spoke to believe that any transition from legal firearm to AW not brought about by the owner (i.e., by DOJ fiat) has to trigger a reg period.
That could well screw up the adoption of new regulations.

The DOJ may try not to, but that's what injunctions are for.

bwiese
05-18-2006, 2:19 PM
Please clear this up for me: isn't the 5/9/06 memo going backwards? I mean, didn't the Ca Supreme Court look at all the info and determine that the "scheme of identifying assault weapons by name" is the DOJ's responsibility and it is up to the DOJ to name the weapons by manufacturer, model, etc. so that the general public doesn't have to interpret generic descriptions as the 5/9/06 insists we should?

Yes, but this doesn't involve that. This is playing games with other elements. They've said they not going to list. Harrott just dealt w/listing standards - not generic features issues.

bwiese
05-18-2006, 2:22 PM
Bill, I have to ask why you keep submitting your rebuttals in a public forum? The DOJ responds directly to your rebuttals as evidenced by their constant memo "revisions." Why are you showing them your hand? Shouldn't this be tucked-away in your secret bag of ninja-tricks to use in a court-case or something?

There's behind-the-scenes informal talks already going on btwn various gun lawyers and DOJ. The DOJ does something and these guys respond, "you can't do that cr*p". There are no big secrets.

They may already even know these things at the time of posting The Memo, and certainly afterwards.

I don't think they thought of the SKS thing, though.

TKo_Productions
05-18-2006, 2:46 PM
There's behind-the-scenes informal talks already going on btwn various gun lawyers and DOJ.

and thats EXACTLY what the DOJ wants. We have no formal means to force the DOJ to list.

Our only option is to make it more controversial for the DOJ not to list, than it for them to list. Now how are we going to go about doing that?

bwiese
05-18-2006, 3:47 PM
For this reason, all my lowers (which I have not built up, and have no intention to build up in the short term, not because of the memo situation, but because of my schedule and budget pressures) are currently being outfitted with pistol grips and fixed mags, and nothing else (no LPK, no upper, no stock). This guarantees that they will be in the set of legal non-AW rifles that would be affected by a DoJ change to the regulation that defines "capacity to accept detachable magazine", thereby making more likely that I would have legal standing to force registration.


Good man.

I did a similar thing in 1999 when I got my receivers. I knew SB23 was active but did not wanna be accused of building AWs after the reg. So all my lowers got pistol grips affixed. As it turned out Kasler made them all AWs in Aug of 2000 regardless of features so it was moot.

blacklisted
05-18-2006, 4:01 PM
I've already secured some cheap plastic pistol grips. They weren't 99 cents, but they were $3.79. Now I just need a few more mag catches and one more 10 round mag :D

There's no hurry due to the mandatory comment period.

James R.
05-18-2006, 4:06 PM
I too have taken all my lowers and put basic DPMS LPK's in, attached the pistol grip, fixed 10 round Bushy mags with the Prince 50 kit, tossed on, "the gapper" and am working on getting some QD takedown pins. All of them will be in a state ready to receive an upper by the months end.

On top of that I may be tempted to photograph them in this configuration sitting on top of a prominent newspaper with the date in plain view. Probably not necessary, but I'm one to go overboard with such things ;-)

Regards,

James R.

blacklisted
05-18-2006, 4:07 PM
I too have taken all my lowers and put basic DPMS LPK's in, attached the pistol grip, fixed 10 round Bushy mags with the Prince 50 kit, tossed on, "the gapper" and am working on getting some QD takedown pins. All of them will be in a state ready to receive an upper by the months end.

On top of that I may be tempted to photograph them in this configuration sitting on top of a prominent newspaper with the date in plain view. Probably not necessary, but I'm one to go overboard with such things ;-)

Regards,

James R.



http://i22.photobucket.com/albums/b343/ebolamonkey/oslife.jpg

No need to go overboard :D

Choptop
05-18-2006, 4:17 PM
So, in a nutshell, the "new memo" STILL doesnt mean squat.

I think I'll celebrate and go get ANOTHER lower. ahhaahhahahahah!!!

As will I.

Thank you DOJ, you are now directly responsible for two more centerfire semi-automatic rifles that conform to California law (note: not to memo's that carry no legal weight) entering into the state. Congrats.

xenophobe
05-18-2006, 4:21 PM
Excellent post Bill!

I would suggest you write another paragraph expanding on their use of "permanently alter" and possibly another on "capacity to accept"...

Choptop
05-18-2006, 4:23 PM
Yes, but this doesn't involve that. This is playing games with other elements. They've said they not going to list. Harrott just dealt w/listing standards - not generic features issues.



doenst Harriot actually say...

(paraphrasing) - figuring out if its an illegal gun just by looking at features is too hard, it is either on the illegal list, or not on the illegal list. SB23 STILL applies, one cant build something up that violates it, but in regards to NEW sales, and whether or not one CAN build it up to violate SB23 is moot. If you want to ban its sale, it has to be listed, otherwise it can be sold, and its up to the new owner not to violate any laws when building it.


thats my understanding of it.

I could be wrong.

So all of this memo posturing the DOJ is doing is just that.

bwiese
05-18-2006, 4:32 PM
doenst Harriot actually say...
(paraphrasing) - figuring out if its an illegal gun just by looking at features is too hard, it is either on the illegal list, or not on the illegal list. SB23 STILL applies, one cant build something up that violates it, but in regards to NEW sales, and whether or not one CAN build it up to violate SB23 is moot. If you want to ban its sale, it has to be listed, otherwise it can be sold, and its up to the new owner not to violate any laws when building it.

Determining series membership has been thrown back to AG/DOJ for makes/models, by Harrott decision.

But features sets are a separate thing. When Harrott was handed down, SB23 had just kicked in and was unaddressed other than in passing. Harrott does not deal w/generically defined AWs. So the end result is we can have AR receivers that ain't on the list.

James R.
05-18-2006, 5:17 PM
http://i22.photobucket.com/albums/b343/ebolamonkey/oslife.jpg

No need to go overboard :D

I'm just a patsy!

Regards,

James R.

Sig226
05-18-2006, 5:51 PM
You know this does make sense....From the DOJ perspective...


They don't want to list them simply due to the fact that they will never be able to list them all, all the time. It's simply a logistical nightmare. Even if they could get the money/resources/time to get this done it would cost to much and take too much resource to make it effective.

Instead, what they do is slow everything down with this memo--- At least attempt to slow things down.

They change the CR to make the meaning of "deatchable" and "accept a magazine" to something quite a bit more restricting---something we possibly haven't thought of yet. (IE- Needing 1200deg Solder etc...)

This in turn stops all this "madness", and it ends it in the long run. (Fairly well anyway) However, they will have to let current owners register their rifles as AW, and accept the new 30K assault weapons.

However, they can be sure that the anti-grabbin-mommies won't be beating down the DOJ doors because MORE will not be comming in.

Of course it's not what they wanted--- 30k new AW registrations---but it effectively "stops the bleeding" permanently.

As to if they run with it, or not---At this point Im just watching the show. If/when I can help---speak up, donate, etc--I will. Viciously.

Again, I am happy, no elated, with the fine work that a few citizens of this state have put forth in examining the laws---and MAKING IT POSSIBLE TO PURCHASE THESE AT ALL! Amazing. 4-5 months have gone by and I'm still amazed.

The most prominent reason I made this purchase was for if/when SHTF/TEOTWAWKI, NOLA Katrina, etc. At that point--- I won't be expecting to argue the finer points of if my mag "is detachable".

Again, thanks for all the hard work from those who are dedicated to saving our rights, legally.

Dave

45Auto
05-18-2006, 6:35 PM
Bill, you are 'Da Man! Seriously, you know more about AW law and regulation than anybody I have ever known. If I were in the DOJ, I would hire you as a consultant to help write regulations that made sense. However, its been said that "smart people don't go into politics or government work."

Apostolos
05-18-2006, 8:32 PM
Bill for Governor, I'd vote for him. :)

1911_Mitch
05-18-2006, 11:30 PM
Bill-

Is this something we should be watching??

http://www.oal.ca.gov/emergency_now.htm

bwiese
05-19-2006, 12:16 AM
Bill-
Is this something we should be watching??
http://www.oal.ca.gov/emergency_now.htm

I doubt there's any way they can demonstrate emergency need.
Especially after they've waited 5 years.