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View Full Version : Listed lower vs. OLL being only difference and conviction?


Porterhouse
02-05-2011, 6:05 PM
Does anyone here happen to know of a case where someone was charged and convicted of owning/possessing an AW that was built with a receiver specifically listed on Appendix A, B or C yet was fitted with a bullet button and a 10 round mag and was legal in terms of barrel length, overall length, etc?

I'm curious if a good defense lawyer has argued such a case where the only physical difference between being an illegal AW and a supposedly legal arm is a roll stamp that shows up on one of the three appendices.

zhyla
02-05-2011, 6:07 PM
I can't imagine it being a common occurrence to know enough to install a bullet button but not enough to replace the offending lower.

rromeo
02-05-2011, 7:00 PM
zhyla, most people outside of California don't know California gun laws. I know plenty of people that know about bullet buttons but not the lists.

Ford8N
02-05-2011, 7:12 PM
It's a good question and a good lawyer would rip it up. The OLL receiver and an "evil" receiver are identical except for the roll mark. The OLL movement has only been around in California for a few years. The more these things that are bought and become more common the less relevant the "list" law makes sense. So if you want to help make all the AW laws weaker, encourage every gun owner or potential gun owner to get as many OLL's into the state as possible. Exercise your Second Amendment rights in California by buying an OLL firearm.

hoffmang
02-05-2011, 7:48 PM
You'd be convicted. A criminal challenge of this issue is a bad idea. A civil challenge is ok to poor as there are other better ways to attack the issue.

-Gene

Porterhouse
02-05-2011, 7:54 PM
I suspect there were a great many people who owned ARs in California who were afraid to register them and they never did forcing them to send their pride and joys to reside with their parents in Sedona.

Over the years with the advent of the bullet button, the once horrid black rifle could easily be made (supposedly) legal (in its current configuration) with the installation of a bullet button and a 10 round magazine were it not for the roll stamps on the lower identifying it as a On List Lower.

It it was an Off List Lower with the same bullet button and magazine the offending pistol grip, grenade/flare launcher, flash suppressor, etc. suddenly become no problem. The only physical change to the firearms being it now has a lower without an offending model number and serial number.

I suppose a tough prosecutor could hammer away on the fact that if someone knew to install the bullet button and 10 round magazine, they also knew to get another lower yet the fact remains, the only difference is the roll marks on the lower. I wonder what a good defense lawyer could do with that?

Porterhouse
02-05-2011, 8:08 PM
You'd be convicted. A criminal challenge of this issue is a bad idea. A civil challenge is ok to poor as there are other better ways to attack the issue.

-Gene
If the Off List Lower/BB/10 round mag combination is concretely legal I would think a good defense attorney would be fairly successful in defending someone where the only physical illegality of their firearm was the information roll stamped onto its lower receiver. A fairly decent acid test for the Off List Lower/BB/10 round mag combination as well.

Don29palms
02-05-2011, 8:34 PM
If the Off List Lower/BB/10 round mag combination is concretely legal I would think a good defense attorney would be fairly successful in defending someone where the only physical illegality of their firearm was the information roll stamped onto its lower receiver. A fairly decent acid test for the Off List Lower/BB/10 round mag combination as well.

I am not a lawyer but I wouldn't try it!

The stripped lower is what is registered as the firearm. If the stripped lower is on a category 1 or category 2 list and not properly registered posession can potentially get you a felony charge for having a banned by name firearm.

bwiese
02-05-2011, 8:56 PM
Does anyone here happen to know of a case where someone was charged and convicted of owning/possessing an AW that was built with a receiver specifically listed on Appendix A, B or C yet was fitted with a bullet button and a 10 round mag and was legal in terms of barrel length, overall length, etc?

I'm curious if a good defense lawyer has argued such a case where the only physical difference between being an illegal AW and a supposedly legal arm is a roll stamp that shows up on one of the three appendices.

Other than Gene, a lot of posters above are speculating outside reality.

Now, I don't think we've heard of any these case. I do recall there was a Fresno case that went sideways in favor of the defense due to a bit of good lawyering and because the prosection was all over the map, didn't really understand the gun laws or guns, and didn't really know what they had.

A lawyer has the duty to get the best outcome for his client first, instead of fighting battles for others. That means not tilting at windmills. A good gun lawyer having an otherwise-clean client popped for possessing a BB'd *listed* rifle would try to force the AB2728 route - work it down to a nuisance charge, surrender the gun, pay a small fine for the nuisance and walk away. The client can then walk down the street and buy a Stag or a Noveske and "lather, rinse, repeat".

Addressing the strange differentiation of a BB'd Stag being legal but, say, a BB'd Bushmaster XM15 being illegal should ony be done outside of a criminal defense and would be an attack on grounds of what's essentially commercial discrimination/favoritism. This is not something you do in the midst of a criminal trial, and it would require the cooperation of a variety of gun mfgrs that who have 'listed' makes/models :)

However, I would expect a new fleet of folks to come out of the woods - likely old guys that hid their rifles over the last 20 years - and think the BulletButton will make their Colt, Bushmaster, etc. banned-by-name gun legal. These folks are prototypcially stubborn and not really tied into the gun rights community and their knowledge of gun laws is mostly by rumor.

wash
02-05-2011, 9:58 PM
If it was as easy as saying there is no real difference between listed lowers and an OLL, CGF lawyers would be all over it.

It might not go down like this but I think the key is scrutiny. In Heller v. D.C., it was decided that handguns could not be banned inside the home because they are the preferred arm for self defense which is the core right protected by the second amendment.

The California "Assault Weapon" ban is similar but the second amendment argument might not be able to overturn the ban unless we have strict scrutiny.

We might not get strict scrutiny for every gun regulation but if we do things right, I think a ban should have to satisfy strict scrutiny to be constitutional (which means we should be able to defeat the "assault weapon" ban without even mentioning OLLs).

Any way, deciding to fight the ban with the argument that an OLL is no different than a listed lower is a Gorski style move. We need to make sure our lawsuits are a sure thing. CGF is working toward the day that they can file a sure thing lawsuit against the ban. The first important step is getting a scrutiny standard set in the 9'th district which should happen ~soon with the Nordyke decision. Once a standard is set then CGF will know what the next step must be.

jamesob
02-05-2011, 11:52 PM
a $100 lower isn't worth $10,000.00 inlegal fees.

Porterhouse
02-06-2011, 12:26 AM
If it was as easy as saying there is no real difference between listed lowers and an OLL, CGF lawyers would be all over it.

It might not go down like this but I think the key is scrutiny. In Heller v. D.C., it was decided that handguns could not be banned inside the home because they are the preferred arm for self defense which is the core right protected by the second amendment.

The California "Assault Weapon" ban is similar but the second amendment argument might not be able to overturn the ban unless we have strict scrutiny.

We might not get strict scrutiny for every gun regulation but if we do things right, I think a ban should have to satisfy strict scrutiny to be constitutional (which means we should be able to defeat the "assault weapon" ban without even mentioning OLLs).

Any way, deciding to fight the ban with the argument that an OLL is no different than a listed lower is a Gorski style move. We need to make sure our lawsuits are a sure thing. CGF is working toward the day that they can file a sure thing lawsuit against the ban. The first important step is getting a scrutiny standard set in the 9'th district which should happen ~soon with the Nordyke decision. Once a standard is set then CGF will know what the next step must be.
I didn't ask what I did to see if it would be a good schema to overturn the California AW Ban. I was just curious if someone had faced this situation in a criminal setting and how their representation handled it. I was also curious if a court had actually accepted a firearm built with an OLL/BB/10 round magazine always inserted as one that is legal to own.

wash
02-06-2011, 7:18 AM
There have been several instances where "assault weapon" charges have been dropped because it was determined that the rifle was not an "assault weapon".

There is one case I know of where someone got away with a listed lower but that was more due to the incompetent prosecution than the defense lawyer who was actually quite good. What it came down to is that the prosecutor thought the gun was a featured "assault weapon" and never bothered to check by name. Once it was determined to not be featured, the owner was found not guilty.

That's not something anyone should count on.

Porterhouse
02-06-2011, 8:27 AM
There have been several instances where "assault weapon" charges have been dropped because it was determined that the rifle was not an "assault weapon".

There is one case I know of where someone got away with a listed lower but that was more due to the incompetent prosecution than the defense lawyer who was actually quite good. What it came down to is that the prosecutor thought the gun was a featured "assault weapon" and never bothered to check by name. Once it was determined to not be featured, the owner was found not guilty.

That's not something anyone should count on.
That's not at all what I was asking about in my original posting.

javalos
02-06-2011, 8:49 AM
The argument of a rifle built with an "evil" receiver and having a bullet button and a limited magazine would be very shaky, if not a losing case. There are better ways to use our energy and this is certainly a waste of it. The whole reason Californians can have legal AR's and even legal AK's is because of the receiver not being on the ban list list and we urge and support any and all Californians and newcomers to this state to know the law and comply with it. An evil receiver is what it is..illegal! Regardless of bullet button or magazine!

Porterhouse
02-06-2011, 11:21 AM
The argument of a rifle built with an "evil" receiver and having a bullet button and a limited magazine would be very shaky, if not a losing case. There are better ways to use our energy and this is certainly a waste of it. The whole reason Californians can have legal AR's and even legal AK's is because of the receiver not being on the ban list list and we urge and support any and all Californians and newcomers to this state to know the law and comply with it. An evil receiver is what it is..illegal! Regardless of bullet button or magazine!
I didn't ask for an opinion, I asked if anyone had made the argument in court.
As a secondary matter if it has happened it would lend some credence to the belief that a OLL/BB/>= 10 round magazine firearm is indeed legal in CA.

bwiese
02-06-2011, 11:30 AM
.
As a secondary matter if it has happened it would lend some credence to the belief that a OLL/BB/>= 10 round magazine firearm is indeed legal in CA.

No it wouldn't.

PC 12276.1 clearly bans semiauto centerfire rifles with fixed mags holding over 10 rounds - regardless of OLL vs. 'listed' status.

wash
02-06-2011, 8:58 PM
There have been plenty of people convicted of possessing an unregistered "assault weapon" for a listed AR/AK/whatever.

There is a decision that gave us OLLs, I forget the case name. It held that CA could ban by name but not by series. If the argument that a roll mark isn't enough to ban a weapon could work, that decision would have struck the entire "assault weapon" ban.

So I don't know a case exactly like you are asking for, I know of one that wouldn't make sense if your idea worked.

snobord99
02-06-2011, 9:12 PM
If you win this argument in court, go buy a lottery ticket.

You're thinking about this from a practical perspective, not a legal one. Legally, the legislature has decided to make specific lowers illegal and those not on the list are covered by "features." For a court to say "the firearm with the listed lower is no different from one made with an OLL" they would have to go against the clear legislative intent to ban those particular lowers. Few courts (if any) would take that step without finding the statute unconstitutional.

Think of it this way, if the defense could say "your honor, the firearm in question is no different from a legal firearm other than the name etched into the lower," the prosecution could do the same and say "your honor, the firearm in question is no different from an illegal firearm other than the name etched into the lower."

G60
02-06-2011, 9:13 PM
There is a decision that gave us OLLs, I forget the case name.

Harrott v. County of Kings.

i think.

Porterhouse
02-07-2011, 3:43 PM
No it wouldn't.

PC 12276.1 clearly bans semiauto centerfire rifles with fixed mags holding over 10 rounds - regardless of OLL vs. 'listed' status.

<=

Typo.

Porterhouse
02-07-2011, 3:44 PM
Harrott v. County of Kings.

i think.

Really? I will have to look into that.

Porterhouse
02-07-2011, 3:45 PM
If you win this argument in court, go buy a lottery ticket.

You're thinking about this from a practical perspective, not a legal one. Legally, the legislature has decided to make specific lowers illegal and those not on the list are covered by "features." For a court to say "the firearm with the listed lower is no different from one made with an OLL" they would have to go against the clear legislative intent to ban those particular lowers. Few courts (if any) would take that step without finding the statute unconstitutional.

Think of it this way, if the defense could say "your honor, the firearm in question is no different from a legal firearm other than the name etched into the lower," the prosecution could do the same and say "your honor, the firearm in question is no different from an illegal firearm other than the name etched into the lower."

No, I am thinking about a criminal law perspective with real lawyers and a real jury, hence my question.

bwiese
02-07-2011, 4:37 PM
No, I am thinking about a criminal law perspective with real lawyers and a real jury, hence my question.

And again, a real (gun-knowledgable) lawyer will strive for an AB2728 dismissal.

In return, the DA gets some small fine income - instead of $10K+ cost to begin felony trial process - and the local PD gets a free rifle for their SWAT team etc.

An attorney representing a client uses the birds in hand he already has.

bwiese
02-07-2011, 4:42 PM
<=

Typo.

Regardless.

The ONLY possible defense to a 'listed lower' scenario (for rifles at least) would be if the gun were not semiauto and was in fact *manually cycled* - i.e., bolt action or single shot, due to the specific prefatory wording in 12276PC listings applying only to semiautos. [And even then, with the regulatory echo of 12276 in 11 CCR 5495 listing not mentioning 'semiauto' you have a bit of a fight but at least regulations can't extend the law.] Remember also this could be in a metro area with a likely antigun CA judge, making such nonsense have to run up the appeals chain to have a chance of a win.

dantodd
02-07-2011, 5:01 PM
You have rec'd opinion's from both "real lawyers" and those who pay "real lawyers" to fix CA laws. A listed lower is illegal in any center fire rifle configuration. If you know of some applicable case law that supports a defense such as you are contemplating please post it. I am confident it. will get a fair hearing.

Wherryj
02-07-2011, 5:49 PM
I can't imagine it being a common occurrence to know enough to install a bullet button but not enough to replace the offending lower.

I also can't imagine it being a case where the PRK would pass up the chance to charge a productive citizen with the maximum penalty for having the wrong name on their lower.

Wherryj
02-07-2011, 5:52 PM
There have been plenty of people convicted of possessing an unregistered "assault weapon" for a listed AR/AK/whatever.

There is a decision that gave us OLLs, I forget the case name. It held that CA could ban by name but not by series. If the argument that a roll mark isn't enough to ban a weapon could work, that decision would have struck the entire "assault weapon" ban.

So I don't know a case exactly like you are asking for, I know of one that wouldn't make sense if your idea worked.

Unfortunately the same argument could stike the "off list lower" status as well. For now I'd be happy with the status quo on this one.

snobord99
02-07-2011, 5:56 PM
No, I am thinking about a criminal law perspective with real lawyers and a real jury, hence my question.

No, you're not. The point is, practically speaking, the OLL and the listed lower are no different (this is what you're thinking). Legally speaking, they're night and day.

And you can take out the "real jury" aspect. Realistically, this "issue" won't even make it to the jury.

choprzrul
02-07-2011, 5:56 PM
Gene & Bill both said no. That's good enough for me.

.

Porterhouse
02-07-2011, 6:47 PM
Regardless.

The ONLY possible defense to a 'listed lower' scenario (for rifles at least) would be if the gun were not semiauto and was in fact *manually cycled* - i.e., bolt action or single shot, due to the specific prefatory wording in 12276PC listings applying only to semiautos. [And even then, with the regulatory echo of 12276 in 11 CCR 5495 listing not mentioning 'semiauto' you have a bit of a fight but at least regulations can't extend the law.] Remember also this could be in a metro area with a likely antigun CA judge, making such nonsense have to run up the appeals chain to have a chance of a win.
No. If one's lawyer launched a defense based on the difference of two firearms -- one illegal and one legal whose only difference was an ONLL versus OFFLL (yes, I know, I am aware that you feel a lawyer would never do that) and the judge ended-up finding the defendant not guilty based on that argument (equally unlikely in your opinion I'm sure), it would most certainly add weight to the belief that a firearm built with an OFFLL/BB/magazine with a capacity of 10 rounds or less is indeed legal. That would be some very tasty case law for defending the RKBA.

Porterhouse
02-07-2011, 6:50 PM
And again, a real (gun-knowledgable) lawyer will strive for an AB2728 dismissal.

In return, the DA gets some small fine income - instead of $10K+ cost to begin felony trial process - and the local PD gets a free rifle for their SWAT team etc.

An attorney representing a client uses the birds in hand he already has.
I am sure that's true in a practical sense. I just object to you suggesting that something is impossible when it's not impossible. Highly unlikely in practical terms? Sure. Impossible, no.

bwiese
02-07-2011, 6:55 PM
No. If one's lawyer launched a defense based on the difference of two firearms -- one illegal and one legal whose only difference was an ONLL versus OFFLL (yes, I know, I am aware that you feel a lawyer would never do that) and the judge ended-up finding the defendant not guilty based on that argument (equally unlikely in your opinion I'm sure), it would most certainly add weight to the belief that a firearm built with an OFFLL/BB/magazine with a capacity of 10 rounds or less is indeed legal. That would be some very tasty case law for defending the RKBA.


Won't happen, period. You're living in a pie-in-the-sky world.

The case at hand will be "Did Dude possess an unregistered AW or not?"
with a demonstration the gun is indeed an unreg'd AW. The only defense to a possession of an unreg'd AW charge is that the gun was not an AW, not "what an AW should be".

BTW, the risk in defending a possession of an unreg'd AW charge is the DA throwing in a transportation charge too if the gun was found in a vehicle. The transpo charge is a felony and not a wobbler. So fighting too hard can end with real bite-back.

A much better defense of an unreg'd AW charge that could have some traction [with a client that wanted to go for broke, which we haven't found] - and which would only apply to pre-2000 guns - was confusion over 'registration'. DOJ did little or nothing to disambiguate 4473+DROS from AW registration even though they were statutorily required to educate and promulgate [and (for SB23 guns) the definitions were not adopted until 3/4 of the way thru the 1 year reg window in 2000 - that is, the regulatory process threw out most of the window.] There'd be no real obligation for someone to 'reregister' if the DOJ has his information, the consumer shouldn't have to determine if the left hand vs. the right hand of the DOJ has the information with this confusion - and the FFL has an agency relationship with the DOJ and is the 'front desk' for the DOJ in relation to retail transactions.

The only other defense of *certain* 'listed' AWs is a clarity issue on "Is that gun really listed?" ... i.e, is that a Colt Match Target or a Colt MT6400? Or is "Match Target (all)" a valid listing, considering Harrott? (Risk here is of devolving into a son-of-Harrott appeals chain which we absolutely don't need.)

bwiese
02-07-2011, 7:12 PM
I am sure that's true in a practical sense. I just object to you suggesting that something is impossible when it's not impossible. Highly unlikely in practical terms? Sure. Impossible, no.

I deal with the way things work in the real world and have opportunities to talk to real live gun lawyers.

You're looking for a slot machine and a rabbit's foot and a Hail Mary pass.

snobord99
02-07-2011, 7:24 PM
No. If one's lawyer launched a defense based on the difference of two firearms -- one illegal and one legal whose only difference was an ONLL versus OFFLL (yes, I know, I am aware that you feel a lawyer would never do that) and the judge ended-up finding the defendant not guilty based on that argument (equally unlikely in your opinion I'm sure), it would most certainly add weight to the belief that a firearm built with an OFFLL/BB/magazine with a capacity of 10 rounds or less is indeed legal. That would be some very tasty case law for defending the RKBA.

Except "case law" from a trial judge is basically useless and you can almost bet your life that an appeals court would not come to the conclusion you're hoping for. The risk for bad case law coming from this FAR outweighs the possibility of it bringing us good useful case law.

You don't quite seem to understand the court's role in interpreting the law and the legislature's role in passing the law.

snobord99
02-07-2011, 7:26 PM
I deal with the way things work in the real world and have opportunities to talk to real live gun lawyers.

You're looking for a slot machine and a rabbit's foot and a Hail Mary pass.

I disagree. He's looking for a unicorn. Highly unlikely? Sure. Impossible? No.

Californio
02-07-2011, 7:29 PM
Porterhouse have you ever been in a State Court of Law? I have, three times, for Civil Business Issues. At the State Level I have not been impressed by the competency of the Judges to even understand the issues at hand. You want to take it to the Criminal level and play "depends what is is" with the Judge and Night School DA. Logically you are correct its just Roll Marks but in the end you will loose because at the State level its a crap shoot with grade "C" attorneys.

Stay as far away from State Court's as you can. They don't use reason or logic, if they even comprehend the issue at all.

Don29palms
02-07-2011, 7:56 PM
If you have a listed lower and it's not registered you have broken the law whether or not the only difference is the roll stamp.

This kind of argument reminds me of the case where a lady hit a guy with her car and he came half way through the windshield. She drove home and parked her car in the garage with the guy still barely breathing and bleeding to death but was still alive when she went into the house. The next day the cops came to her house and found the dead guy in the windshield of her car. The lady was arrested. Her lawyer said she wasn't guilty of murder or manslaughter because the guy was still alive when she parked her car and that nobody is obligated to give assistant to an injured person.

Well needless to say she got conivicted and sentenced to prison.

bwiese
02-07-2011, 8:15 PM
If you have a listed lower and it's not registered you have broken the law whether or not the only difference is the roll stamp.

Don, simple possession of a listed lower is indeed NOT RECOMMENDED but is likely defendable since it's not semiautomatic, nor centerfire, nor a rifle. Legilslative analysis of AB2728 in 2007 (written by DOJ) seems to agree with this.

Nevertheless it's not worth the fight, esp given that LRB Arms OLL lowrs are $59.95 in bulk.

Don29palms
02-07-2011, 8:28 PM
Don, simple possession of a listed lower is indeed NOT RECOMMENDED but is likely defendable since it's not semiautomatic, nor centerfire, nor a rifle. Legilslative analysis of AB2728 in 2007 (written by DOJ) seems to agree with this.

Nevertheless it's not worth the fight, esp given that LRB Arms OLL lowrs are $59.95 in bulk.

I understand Bill but this whole thread of "I want to break the law and then say it's not my fault because I have a BS arguement" is extremely wrong on alot of levels.

wash
02-07-2011, 8:45 PM
It's pretty cut and dried, the legislature banned every firearm on that list.

That law has been challenged and we had the mixed result of overturning the series ban but leaving the lists and feature ban. That is the way it is and no judge in a criminal trial is going to rule any other way. It takes an appeal or civil lawsuit to change things.

Why risk sitting in prison for a few years and losing your civil rights on a bad criminal case?