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jemaddux
08-23-2006, 4:01 PM
This was brought up to me and I have been thinking about it and wondering what others think.

If I was to have a websight and I was to post to the general public something like "Buy cars that may or may not be California smog legal and I will smog them within 90 days and make them legal to own", then four months later say never mind, I would be in serious trouble. I could have all kinds of legal action taken against me. Correct?

From DOJ letter:

"Accordingly, the Department is currently in the process of identifying those firearms in the state that are variations, with minor differences, of AR-15/AK 47 “series” weapons. Once this process is complete, the Department will promulgate a list and file it with the Secretary of State=s office. Concurrently, the Department will begin updating the Assault Weapon
Identification Guide which is currently available via the Department=s website at http://ag.ca.gov/firearms/forms/index.html. Once the list of newly identified Aseries@ weapons is filed with the Secretary of State, citizens who possess those weapons will have 90 days to register them with the Department of Justice."

Now according to DOJ, they didn't say might list, might be able to register them, we are thinking about doing this. They stated they "WILL" do this and "CITIZENS WHO POSSES THOSE WEAPONS WILL HAVE 90 DAYS TO REGISTER THEM"

We all bought these being told by DOJ we "WILL" be able to register them and now they are really trying to make us felons and seeing if there is a way to take them away from us.

Isn't there any legal action that can be taken on our part before they are able to screw with us even more?

I need people to take off the tin hats right now and to really think. I had a very long talk with J.A. over at DOJ today. He stated that they have about 300 letters all together with some emails (I know I know that most likely more but this is what he stated). They are going through each one trying to see what each has to say then they will discuss what DOJ can do if anything. One statement that was made was that DOJ feels that SB2728 will pass and they are hoping it does, why he would not state.

My feelings over our talk was that they will keep delaying this and delaying this and then add it as they wanted to. Now SB2728 passes, and with the new wording they claim has always been there they are just now stating what was really meant and they then have the right to destroy the firearms. I know some people are saying they can't do that, they can't do that but they have done this before with the SKS having people turn them in and then saying oooppsss we were wrong but sorry we don't have them any more (if memory serves me right).

Now, isn't there anything we can do to force them to do what they stated they would to begin with? Just thinking out loud here.

bwiese
08-23-2006, 4:22 PM
We all bought these being told by DOJ we "WILL" be able to register them and now they are really trying to make us felons and seeing if there is a way to take them away from us.

Not all of us did. But a significant fraction did, as evidenced by the huge spike in sales after several letters signed by the Deputy AG, as well as the Feb 3 memo (which she wrote but left unsigned), indicated they DOJ would list soon and that essentially they'd just have to get things compiled and published.

The Deputy AG (Firearms) has dug herself in a huge hole w/regards to 'detrimental reliance': 20,000+ or more receivers were purchased specifically because she said they would be listed. Just because she retracted it a few weeks later - after my public excoriation/rebuttal of it, (and a far deeper one in rough agreement w/mine, done by real lawyers roughly simultaneously) does not mean it did not have effect. The NRA lawyer's rebuttal to the infamous Cat 4 memo is included in the huge submission to the DOJ for the comment process (Aug 16 meeting) on proposed regulatory change.

One of the other interesting things here is that the Cat 4 memo clearly shows that the DOJ was willing to live with (and used) existing fixed magazine definintion if they could be registered as Cat 4-restricted guns (legally impossible), before they changed horses in the middle of the stream...
I assure you actions are in place to head this off - read the info at calgunlaws.com


BTW AB2728 will not effect OLLs as long as rifle configured correctly.

jemaddux
08-23-2006, 4:38 PM
BTW AB2728 will not effect OLLs as long as rifle configured correctly.


(f)
“capacity to accept a detachable magazine” means capable of accommodating a detachable magazine, but shall not be construed to include a firearm that has been permanently altered so that it cannot accommodate a detachable magazine.

All it would take after Jan 1, 2007 is one DA office to say well I think this has the "capacity to accept" and with AB2728 (Notice corrected from SB) they could think they have the right to destroy the firearms. Once destroyed what could you do about it?

bwiese
08-23-2006, 4:43 PM
(f)
“capacity to accept a detachable magazine” means capable of accommodating a detachable magazine, but shall not be construed to include a firearm that has been permanently altered so that it cannot accommodate a detachable magazine.

That's a proposed regulatory change. It hasn't happened yet. It can't happen - read the NRA response on calgunlaws.

PIRATE14
08-23-2006, 4:50 PM
(f)
“capacity to accept a detachable magazine” means capable of accommodating a detachable magazine, but shall not be construed to include a firearm that has been permanently altered so that it cannot accommodate a detachable magazine.

All it would take after Jan 1, 2007 is one DA office to say well I think this has the "capacity to accept" and with AB2728 (Notice corrected from SB) they could think they have the right to destroy the firearms. Once destroyed what could you do about it?

This is what concerns me as well.....AB2728 gives your local DA power to say geez this is public nuciance, regardless of configuration and destroy your weapon.....by they time you take action your rifle is gone and if you sue you'll end blowing 5K-10K on a 1k rifle, and you'll get no sympathy from the legal system......

While it does, nothing legally on paper to the OLL situation, all the DOJ needs to do is find DA that support their cause and they'll pick batches of OLL from gunshows, FFL, whoever and claim these are a public nuciance.....maybe this is why they seem happy???

PIRATE14
08-23-2006, 4:52 PM
That's a proposed regulatory change. It hasn't happened yet. It can't happen - read the NRA response on calgunlaws.

True......status quo....so far.

TKo_Productions
08-23-2006, 4:52 PM
It's always been repeated that the DOJ memos have no legal standing: that they merely express the DOJ interpretation/intent. Also, it bares keeping in mind that none of the memos released have been dated or signed.

I understand why people would perpetuate that line of thought, but I can't believe that a government agency is immune to any liability regarding the statements they make.

Like you said, the public relied on the authority of the DOJ regarding the assurances made in those memos, and now the DOJ can simply rescind that by pulling one memo, replacing it with another, and acting as if the previous one had never existed. The DOJ must to be held responsible for their communications. If they're not, and the DOJ continues to publish letters and then rescind on those declarations (ala the Eagle Arms AR-10 letter) then they've lost all credibility, integrity, and believability.

How can a department held with the authority of interpreting and applying law have such a horrible record of interpretation? (SKS fiasco and subsequent buy-back, Robinson Armament M96, the whole debacle with assault weapons (particularly for LEO) being permitted to register AFTER SB23 well into 2001, and now this whole OLL situation with their interpretation and redefining of "detachable magazine")

These aren't slight fumbles, they're catastrophic failures in interpretation and application of codified law.

I'm no lawyer, so this is all basically my opinion, I think someone like Chuck Michels would have to be asked about the DOJs liability regarding their communications, memos, and statements.

bwiese
08-23-2006, 4:53 PM
This is what concerns me as well.....AB2728 gives your local DA power to say geez this is public nuciance, regardless of configuration and destroy your weapon.....by they time you take action your rifle is gone and if you sue you'll end blowing 5K-10K on a 1k rifle, and you'll get no sympathy from the legal system......

While it does, nothing legally on paper to the OLL situation, all the DOJ needs to do is find DA that support their cause and they'll pick batches of OLL from gunshows, FFL, whoever and claim these are a public nuciance.....maybe this is why they seem happy???

No it doesn't. 2728 is amended. OLL-based rifles in proper configuration are legal rifles. 2728 does not change that. I've already talked to The Smart People. (The receiver stuff is eliminated!).

All it does is offer an alternative, easier, cost-free prosecutorial path for AW possession, and saves DOJ duty to list new guns. It's cheaper to lose a gun then spend $10-$20K for an attorney to fight a felony charge, and cheaper for the DA office to not have to charge a felony and get some court fees/fine in process and "get a gun off the streets" and act like they're doing something.

bwiese
08-23-2006, 4:57 PM
It's always been repeated that the DOJ memos have no legal standing: that they merely express the DOJ interpretation/intent. Also, it bares keeping in mind that none of the memos released have been dated or signed.

I understand why people would perpetuate that line of thought, but I can't believe that a government agency is immune to any liability regarding the statements they make.

Like you said, the public relied on the authority of the DOJ regarding the assurances made in those memos, and now the DOJ can simply rescind that by pulling one memo, replacing it with another, and acting as if the previous one had never existed. The DOJ must to be held responsible for their communications. If they're not, and the DOJ continues to publish letters and then rescind on those declarations (ala the Eagle Arms AR-10 letter) then they've lost all credibility, integrity, and believability.



The whole detrimental reliance issue - the fact that 25,000+ people bought lowers BECAUSE the Deputy AG said they WILL be listed - is enormous.

PIRATE14
08-23-2006, 5:00 PM
No it doesn't. 2728 is amended. OLL-based rifles in proper configuration are legal rifles. 2728 does not change that. I've already talked to The Smart People. (The receiver stuff is eliminated!).

All it does is offer an alternative, easier, cost-free prosecutorial path for AW possession, and saves DOJ duty to list new guns. It's cheaper to lose a gun then spend $10-$20K for an attorney to fight a felony charge, and cheaper for the DA office to not have to charge a felony and get some court fees/fine in process and "get a gun off the streets" and act like they're doing something.

Okay....but I still don't like it, something about the DOJ being too happy about it......:mad:

MonsterMan
08-23-2006, 5:16 PM
The regulation change regarding the magazine only pertains to rifles with the sb23 features. If you have a centerfire rifle that accepts a detachable magazine with no other sb23 features, your ok (gripless OLL, Mini14,etc). If you have a rifle with a pistol grip and it has a fixed mag or a open magwell, then you are in violation. As I understand it, it won't touch gripless OLL's or "Permenently" altered rifles (once we figure out what "permanent" is).

MM

jemaddux
08-23-2006, 5:19 PM
That's a proposed regulatory change. It hasn't happened yet. It can't happen - read the NRA response on calgunlaws.


I read ever word of the NRA response and that is what concerns me even more. One part of it even states that one person from DOJ namely A.M. is willing to go as far as illegally pushing things forward and letting the NRA sue later. Did you read that also? If they were to add this we should be grandfathered in but were not going to be because they are already stating it was "ALWAYS THERE". We just didn't know it was always there. And as Pirate said, do you want to be the one sitting there at a show and have all you stuff taken and have to sue to get it back? Pirate and I are legal dealers as are others here and I really don't care to hear about this happening to anyone. I am just putting some stuff out that needs to be thought about.

bwiese
08-23-2006, 5:27 PM
I read ever word of the NRA response and that is what concerns me even more. One part of it even states that one person from DOJ namely A.M. is willing to go as far as illegally pushing things forward and letting the NRA sue later. Did you read that also? If they were to add this we should be grandfathered in but were not going to be because they are already stating it was "ALWAYS THERE". We just didn't know it was always there. And as Pirate said, do you want to be the one sitting there at a show and have all you stuff taken and have to sue to get it back? Pirate and I are legal dealers as are others here and I really don't care to hear about this happening to anyone. I am just putting some stuff out that needs to be thought about.


The fact the DOJ had contraditory approval letters for other guns, etc. is the key. When something can be interpreted in two ways - esp with a 6-year history of DOJ guidance with a huge paper trail - there's all sorts of lenity issues.

Relax, the right people are handling this.

jemaddux
08-23-2006, 5:28 PM
Okay....but I still don't like it, something about the DOJ being too happy about it......:mad:


This is again my concern. He was very happy and very hopeful it would pass. Just because they won't have to deal with it any more they think? Just remember who wrote and ask yourself if anything good could come out of it, a Democrate that is in with Boxer and Fienstien or frankinstien or how ever you spell it, he is also a serious tree hugger. Do you really think anything he was to write could have anything good for us in it?:eek:

artherd
08-24-2006, 12:12 AM
Two words; Reliance Damages.

artherd
08-24-2006, 12:16 AM
by they time you take action your rifle is gone and if you sue you'll end blowing 5K-10K on a 1k rifle, and you'll get no sympathy from the legal system...

While it does, nothing legally on paper to the OLL situation, all the DOJ needs to do is find DA that support their cause and they'll pick batches of OLL from gunshows, FFL, whoever and claim these are a public nuciance.....maybe this is why they seem happy???
Haven't they learned that there are enough of us willing to drop $15k on a $3k (or $1k) rifle to give them pause before they take unlawful action?

bwiese
08-24-2006, 12:37 AM
Two words; Reliance Damages.

Close enough: Deputy AG A.M. has really set DOJ up for a big detrimental reliance situation.

A half-dozen of her signed memos in late Jan. and her Feb. 3 "Category 4" memo asserted that lowers would indeed be registered in the very near future (i.e., making a list, checking it twice...)

.... this triggered the MASSIVE sales spurt in mid-Feb to March. I'm convinced this got us from 15K in early Feb to 30K by mid-March. Many of those folks didn't see the FAQ and bought lowers just because they thought they WOULD be ARs and WOULD be registered - rumor spread like wildfire after her paper trail.

artherd
08-24-2006, 12:56 AM
Yes, right around 01-feb everything went crazy when DOJ attorneys certified in writing that the OLLs would be 'listed'. Relying on that fact, Californians spent around $6million of their hard earned dollars directly on retail price of lower recievers.

Factor in entire gun purchases, lost time, gas & lodging, the direct reliance could easily total in the tens of millions.

Parts of ************'s response letter might be held to be a written contract compelling her to list, or be in breach.

anotherone
08-24-2006, 2:13 AM
Parts of ************'s response letter might be held to be a written contract compelling her to list, or be in breach.

I'm probably just up too late tonight, but I'm going to say my five cents here. At this point I am almost certain that some sort of registration period is inevitable, as is some sort of expansion of the ban. They're not going to let these recievers continue to flow into the state with legal configurations, but they're also not willing to be the ones who open registration. I think it's acceptable to them if the courts force registration as a result of them attempting to circumvent the law; which may I mention the Roberti-Roos act specifies that firearms will be registered NOT confiscated.

jemaddux
08-24-2006, 1:48 PM
detrimental reliance



Ok, I'll be the stupid one here and ask, what does detrimental reliance mean?:D

jemaddux
08-24-2006, 1:56 PM
I guess what I am really wondering is after thinking about the question is there a way we could all throw in say $20 bucks each ( I have had customers say they would pay even more ) and hire a legal person to force the issue of them saying they would open a reg period. Maybe some letter writing, maybe even having to go to court. Just was a thought:D .

artherd
08-24-2006, 2:16 PM
Ok, I'll be the stupid one here and ask, what does detrimental reliance mean?:D
http://en.wikipedia.org/wiki/Estoppel <-decent plain english explination. (scroll down to "reliance-based estoppel" )

bwiese
08-24-2006, 2:26 PM
Ok, I'll be the stupid one here and ask, what does detrimental reliance mean?:D

Broadly speaking - and a real attorney can give you the real answer - it's related to concept promissory estoppel.

In the OLL case, some (but not all) folks rationally took an action based on the reliance of a gov't employee's various memos, culminating with the Cat 4 memo. (You have to be rationally dealing with the right employee: a phone clerk at the DOJ doesn't count.) Calgunners were frequently told by many, including myself, that reg may or may not happen, and not to buy a lower with any hope that listing would happen.

But a senior political appointee with both management and legal authority saying in a long paper trail they WILL be listed, and 15,000-20,000 people making their purchases based on that assurance, is a whole 'nuther thing. Especially when a parallel situation existed in 1999, the "buy your guns NOW" year (because of SB23 1/00-12/31/00 reg period and ...1/23/01 Kasler overhang) .

Most of these folks never read the FAQ, were not Calguns or NRA members, esp in LA area - I wasn't even aware of the vast extent of Southland OLL sales until mid-March when I got wind of an internal estimate that there were 30K lowers? DROSes? by then. It seems that things more than doubled after the late Jan letters from the Deputy AG and the Feb 3 Cat 4 memo were issued.

Things took off like wildfire after the DOJ missives; I think most of the Calguns folks had or were acquiring theirs in January.

Many southland dealers were selling OLLs without clear information on what is or isn't legal - or perhaps, more likely, it was ignored due to nature of customers - and I don't think some of the 18-24 year olds buying these realized the level of detail needed to be observed to comply with the law, since they weren't law-abiding Calguns members and just thought it was good enough to be 'off-list' without regard to configuration.

jemaddux
08-24-2006, 7:04 PM
I guess what I am really wondering is after thinking about the question is there a way we could all throw in say $20 bucks each ( I have had customers say they would pay even more ) and hire a legal person to force the issue of them saying they would open a reg period. Maybe some letter writing, maybe even having to go to court. Just was a thought:D .


So I am guessing here that no one thinks we can do this or what?

bwiese
08-24-2006, 7:07 PM
So I am guessing here that no one thinks we can do this or what?

$20 is way too little, OK?

40K x $500 = $20M. That starts to talk, but nothing's guaranteed.

anotherone
08-24-2006, 7:52 PM
I could be mistaken, but at this point in time I am relatively confident that a registration period is in our future. The DOJ has decided that it will not open the registration period itself, but the paper trail and course of their actions has made registration almost inevitable. Legal precident and the AW ban has always resulted in registration NOT confiscation.

It's going to be interesting to see how this thing goes down in the court system. The DOJ obviously feels very strongly about this issue and is only going to leave the stage when it's dragged off kicking and screaming. Naturally, the off-list movement feels the same way so a legal battle is assured once the DOJ finally decides to take action that will bring us there (such as adopting the regulations, etc). The ball is in their court right now.

jemaddux
08-24-2006, 8:30 PM
$20 is way too little, OK?

40K x $500 = $20M. That starts to talk, but nothing's guaranteed.


Thats your opinion. Has anyone sat down and talked with anyone to say what would it take to get some legal letters out? Maybe a letter written that could get a little attention of enough of them came into the DOJ? I just find this hard to swallow that our only choice is to wait and see what happens.

jemaddux
08-24-2006, 8:37 PM
I could be mistaken, but at this point in time I am relatively confident that a registration period is in our future. The DOJ has decided that it will not open the registration period itself, but the paper trail and course of their actions has made registration almost inevitable. Legal precident and the AW ban has always resulted in registration NOT confiscation.

It's going to be interesting to see how this thing goes down in the court system. The DOJ obviously feels very strongly about this issue and is only going to leave the stage when it's dragged off kicking and screaming. Naturally, the off-list movement feels the same way so a legal battle is assured once the DOJ finally decides to take action that will bring us there (such as adopting the regulations, etc). The ball is in their court right now.


I agree with you on this. It would seem that a reg period will have to happen. But as we have all seen and heard they don't always follow the rules. Nothing in the NRA letter says anything about them having to reg if they change the regs. What to stop them from saying we don't have to, take us to court and in maybe ten years from now you can register them. My opinion on this would be to make a little noise and make sure they know they are going to have to open a registration period. But again, its just my opinion on this.

anotherone
08-24-2006, 9:42 PM
I agree with you on this. It would seem that a reg period will have to happen. But as we have all seen and heard they don't always follow the rules. Nothing in the NRA letter says anything about them having to reg if they change the regs. What to stop them from saying we don't have to, take us to court and in maybe ten years from now you can register them. My opinion on this would be to make a little noise and make sure they know they are going to have to open a registration period. But again, its just my opinion on this.

What it really comes down to is No Ex-Post Facto. We aquired and built our rifles lawfully.

artherd
08-25-2006, 12:32 AM
So I am guessing here that no one thinks we can do this or what?
It can be done, but $20's too low a number. We're not quite at that stage yet, but be assured for now that there are plans in place should DOJ push it that hard. One of the most effective orgazational and financial firearms powers (NRA) is working on this. If a legal challenge is called for, they will be involved somehow.

I realize we all want to storm the castle, but let's be paitient and at least fling some diseased horses in first. Heck, we should be sure and ask if there's a (legal)war going on in the first place, right now all we're doing is writing nasty letters.

tacticalcity
08-25-2006, 11:24 AM
From what I understand, the current version of this bill does not have the "capacity to accept" verbage in it. This is something the Attorney General wants to add to it. However, there is significant opposition to him adding it. So it is likely, he won't be able to.

As the bill is currently written it appears to do only 2 things.

1) Eliminates the AG from having to list. This means he can't be held responsible by his fellow anti-gun friends for our guns.

2) Changes the law so that having an illegal AW is no worse than a speeding ticket, where as right now it is a felony with serious jail time.

They removed the language about the lower, so your OLL will still be legal.

If it passes as it is written today, then it is a good thing.

However, if the AG is successful in adding the capacity to accept verbage, then it is not.

So keep your fingers crossed, and don't panic just yet!

adamsreeftank
08-25-2006, 11:46 AM
...

1) Eliminates the AG from having to list. This means he can't be held responsible by his fellow anti-gun friends for our guns.

2) Changes the law so that having an illegal AW is no worse than a speeding ticket, where as right now it is a felony with serious jail time.

...


1) What it does is prevent any future (Republican) AG from BEING ABLE to list. I don't think it is about anyone being held responsible. It's about making sure we can never register.

2) Are you sure about that? Can you show the language that states having an AWs will no longer be a felony? Doesn't it just give the DA discretion? Which is entirely different.

I still say it is a bad bill that needs to be opposed.

grammaton76
08-25-2006, 11:48 AM
2) Changes the law so that having an illegal AW is no worse than a speeding ticket, where as right now it is a felony with serious jail time.

Close. It creates the OPTION, for the DA, of making it like a speeding ticket. It does not require the DA to go after that, instead of the greater offense.

Bay area DA's, for example, are still more than able to go for the jugular on AW charges.