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View Full Version : Legal experts - is the DFG wrong?


70extreme
02-11-2011, 9:09 AM
The DFG posted on their website that night vision is banned for hunting in California. Here is their opinion:

"This means using any type of night vision equipment (whether attached to the firearm or not) that uses light-amplifying circuits that are electrical or battery powered to assist in the taking of birds, mammals, amphibians or fish is strictly illegal, even when hunting nongame animals."


The law actually says:

c) It is unlawful to use or possess at any time any infrared or similar light used in connection with an electronic viewing device or any night vision equipment, optical devices, including, but not limited to, binoculars or scopes, that use light-amplifying circuits that are electrical or battery powered, to assist in the taking of birds, mammals, amphibians, or fish.

I contend that their analysis of a very poorly written sentence is incorrect. The code does not ban the use of night vision devices. It states that it is unlawful to posses or use IR illumination with those devices.

"used in connection with" is the key phrase. It is basic english.

It is unlawful to use or possess at any time any infrared or similar light used in connection with

1. electronic viewing device
2. or any night vision equipment
3. optical devices, including, but not limited to, binoculars or scopes, that use light-amplifying circuits that are electrical or battery powered.

Can a legal type chime in on this?

b_k
02-11-2011, 9:30 AM
http://i.imgur.com/QONVIyz.gif

Untamed1972
02-11-2011, 9:31 AM
Isn't hunting normally not allowed after sunset anyway?

Manic Moran
02-11-2011, 9:35 AM
Disagree with your reasoning.

The issue is the lack of a comma after 'used in connection with an electronic viewing device'. You are looking at the lack of a comma and concluding that the 'used in connection with' applies to everything after that statement.

However, the evidence that this is not the correct reading lies in the Dept of Redundancy Dept: All the night visision equipment that use light amplifying circuits that are electrical or battery powered are electronic viewing devices, so for your reading to be correct, it would mean that the legislators were uselessly repeating themselves.

The simplest reading is that they are distinguishing between passive infra red systems and other night vision gear such as image intensifiers and listing them separately.

NTM

a1c
02-11-2011, 9:49 AM
Isn't hunting normally not allowed after sunset anyway?

It is allowed if you have a depredation permit, or are contracted by a landowner with a depredation permit.

It is also allowed (but then I'm not sure it's called hunting anymore) to shoot at predators threatening your livestock at night.

Untamed1972
02-11-2011, 9:54 AM
It is allowed if you have a depredation permit, or are contracted by a landowner with a depredation permit.

It is also allowed (but then I'm not sure it's called hunting anymore) to shoot at predators threatening your livestock at night.

gotcha :thumbsup:

moleculo
02-11-2011, 10:02 AM
Non-game animals (coyotes, etc.) can be taken at night. There are some provisions and exceptions in certain areas, but generally night = OK for those.

70extreme
02-11-2011, 10:33 AM
Look at the structure of the sentence

It is unlawful to use or possess at any time any infrared or similar light used in connection with any electronic viewing device or any night vision equipment...

"any electronic viewing device or any night vision equipment"

is the object of the term

"in connection with"

For the sentence to ban the use of night vision, it would need to read (commas inserted at key points)

It is unlawful to use or possess at any time any infrared or similar light, used in connection with an electronic viewing device, or any night vision equipment...

jtmkinsd
02-11-2011, 1:27 PM
Look at the structure of the sentence

It is unlawful to use or possess at any time any infrared or similar light used in connection with any electronic viewing device or any night vision equipment...

"any electronic viewing device or any night vision equipment"

is the object of the term

"in connection with"

For the sentence to ban the use of night vision, it would need to read (commas inserted at key points)

It is unlawful to use or possess at any time any infrared or similar light, used in connection with an electronic viewing device, or any night vision equipment...

Laws don't nullify themselves because of poor grammar.

510dat
02-11-2011, 1:33 PM
Laws don't nullify themselves because of poor grammar.

True, but the courts frequently nullify laws due to vagueness or the general inability to figure out WTF the law is saying. :)

70extreme
02-11-2011, 2:12 PM
Words mean things. Based on the way the sentence is written, the law does not ban night vision.

Since none of us are psychic, there is no way to tell the intention of any law. The law only covers what it clearly spells out in writing.

b_k
02-11-2011, 2:38 PM
http://i.imgur.com/QONVIyz.gif

Munk
02-11-2011, 2:40 PM
Saw the title... jumped in to say "Yes", regardless of the question.

After reading, I was right. The ban is on nightvision that uses a non-visible light source to illuminate the area for the NV. If you use passive night vision, that has no light source attached, or not attached (handheld IR light), you're good to go.

The problem comes from the grunts on the ground (or more likely in the spotter plane) who are too ignorant of the law to know you're not breaking it.

Flopper
02-11-2011, 2:46 PM
Words mean things.

Words confusify me.

"It depends on what the meaning of the word 'is' is." -WJC

XDshooter
02-11-2011, 2:54 PM
c) It is unlawful to use or possess at any time
any infrared
or
similar light used in connection with an electronic viewing device
or
any night vision equipment, optical devices, including, but not limited to, binoculars or scopes, that use light-amplifying circuits that are electrical or battery powered,
to assist in the taking of birds, mammals, amphibians, or fish.


SO, your interpretation of this law is that is it illegal to use or possess while hunting, OPTICAL DEVICES?

So, no scopes, binoculars, glasses, etc.


The law is written so that you may not use devices that project infrared light, or active night vision systems. It basically means passive only.

b_k
02-11-2011, 3:02 PM
http://i.imgur.com/QONVIyz.gif

70extreme
02-11-2011, 3:42 PM
If you read your quoted section like I have it in bold, it clearly bans the use of night vision (ambient light amplification) along with any electronic device that allows you to see via infrared light spectrum or any other spectrum like infrared (not normal color spectrum the human eye can see, probably implying thermal imaging). The delimiter in that sentence is "or", not "with."

The punctuation in the sentence does not support your reading.

XDshooter
02-11-2011, 3:53 PM
Does it say that? What happened to including, but not limited to, binoculars or scopes, that use light-amplifying circuits that are electrical or battery powered. Seems like they were clarifying what "optical devices" are.

All those commas, not so sure about that. If true what you are saying, then they are clarifying "night vision equipment too"?

Also why would it be broken up to separate "infrared"?
It is unlawful to use or possess at any time any infrared....

What is just infrared? I think separating the sentence with the "ORs" is incorrect. It doesn't make sense.

b_k
02-11-2011, 4:01 PM
http://i.imgur.com/QONVIyz.gif

70extreme
02-11-2011, 4:02 PM
Let's simply this by the following example that uses the exact same sentence structure:

It is unwise to use or possess at any live ammunition used in connection with dry fire practice or simunition equipment.

No one in their right mind would think the above statement says that having simunition equipment is unwise.

70extreme
02-11-2011, 4:04 PM
b k, you can't break up the sentence that way. The punctuation does not allow it.

b_k
02-11-2011, 4:19 PM
DFG's opnion and the stated law is confusing :)

70extreme
02-11-2011, 4:49 PM
Any lawyers out there?

The person that wrote this law should be fired for crimes against the English language. They are not even on a 9th grade level.

b_k
02-11-2011, 4:55 PM
http://i.imgur.com/QONVIyz.gif

70extreme
02-11-2011, 5:22 PM
Exactly. The problem is that the DFG is claiming night vision alone is illegal.

MasterYong
02-11-2011, 5:35 PM
ROFL at the assumption that the logical interpretation of plain english has any bearing on the application of California laws... Or any laws for that matter.

freespool
02-11-2011, 5:43 PM
70extreme, are you the guy who wrote to the Carrie Wilson Q&A at DFG asking this question recently? I remember it because I used to read the regs the way you do. We took passive night vision on deer trips a few times to see what was going on at night in the meadows, before we learned DFG deemed it illegal.

The reg clearly doesn't read grammatically under either interpretation, but I suppose once it becomes established by arrest and conviction, it's hard to reverse the current DFG interpretation. I think Manic Moran's point about redundancy also suggests that the intent was to make passive devices illegal as well.

They're a lot clearer about what they mean in the Big Game regs:

"(i) Except as otherwise provided, while taking or attempting to take big game under the provisions of Section 353 or Section 354, Title 14, CCR, it is unlawful to use any device or devices which: 1) throw, cast or project an artificial light or electronically alter or intensify a light source for the purpose of visibly enhancing an animal; or 2) throw, cast or project an artificial light or electronically alter or intensify a light source for the purpose of providing a visible point of aim directly on an animal. Devices commonly referred to as "sniperscopes", night vision scopes or binoculars, or those utilizing infra-red, heat sensing or other non-visible spectrum light technology used for the purpose of visibly enhancing an animal or providing a visible point of aim directly on an animal are prohibited and may not be possessed while taking or attempting to take big game. Devices commonly referred to as laser rangefinders, "red-dot" scopes with self-illuminating reticles, and fiberoptic sights with self illuminating sight or pins which do not throw, cast or project a visible light onto an animal are permitted."

Doesn't seem like it would be much of a stretch to say that this bans use of game-cams, or even possessing a camera while hunting.

E Pluribus Unum
02-11-2011, 5:54 PM
As I understand it.... it is illegal to use night vision AND an illuminator. It's the same as using a spot light.

Passive nightvision without an illuminator should be legal IMIO (in my ignorant opinion.)

Carnivore
02-11-2011, 6:15 PM
Only on this site can commas rial people up as much as Dianne Feinstein.

After dealing with the DFG on numerous occasions I will tell you this. If you us a light, IR or not while hunting at night and do not have a depredation permit, you are getting a ticket and your stuff will be confiscated period. Weather you get it back from the judge or not is another thing but kiss it good by. Night vision is a different story and as said above it depends on the guy on the ground. I use night vision on my boat out at sea and have been questioned but nothing has ever come of it as the ocean has different regs due to safety issues. Inland waters are controlled the same as hunting regs. That is why I fish in the ocean. I hate those guys.

70extreme
02-11-2011, 6:32 PM
Freespool, I wrote Carrie Wilson about this today. How did you know? Do you work for the DFG?

My interest in night vision is for coyote hunting. It is legal to hunt them at night with a handheld white light in many areas (not during deer season). My understanding is that night vision is illegal to use for game animals.

I have a college education and spent many hours studying English and literature. My wife is an English major and teacher.

I am 100% certain that the structure of the sentence describing night vision does not support the DFG theory that using night vision (without IR light) is illegal.

P.S. Freespool - if you do work for DFG, can you tell me who I can contact regarding this question?

River Jack
02-11-2011, 6:35 PM
Isn't hunting normally not allowed after sunset anyway?

The taking of amphibians, reptiles and fish, as well as marine invertebrates are regulated/permitted under a fishing license and thus technically considered to be "fishing" and not "hunting". Herping, or the pursuit of reptiles and amphibians, is often legally conducted at night.

dustoff31
02-11-2011, 6:53 PM
ETA: Nevermind. After reading it again, several times. I think you are right.

I contend that their analysis of a very poorly written sentence is incorrect. The code does not ban the use of night vision devices. It states that it is unlawful to posses or use IR illumination with those devices.

I'll have to disagree and say that it does ban most all NV devices, since ALL powered night vision devices use light amplifying circuts.

An IR illuminator (or similar light) simply provides more light for the device to amplify, it does not enable the NV scope to amplify light.

You could use say a scope or binos, with those huge "light gathering" objective lenses.


The law actually says:

c) It is unlawful to use or possess at any time any infrared or similar light used in connection with an electronic viewing device or any night vision equipment, optical devices, including, but not limited to, binoculars or scopes, that use light-amplifying circuits that are electrical or battery powered, to assist in the taking of birds, mammals, amphibians, or fish.

freespool
02-11-2011, 6:54 PM
Freespool, I wrote Carrie Wilson about this today. How did you know? Do you work for the DFG?

My interest in night vision is for coyote hunting. It is legal to hunt them at night with a handheld white light in many areas (not during deer season). My understanding is that night vision is illegal to use for game animals.

I have a college education and spent many hours studying English and literature. My wife is an English major and teacher.

I am 100% certain that the structure of the sentence describing night vision does not support the DFG theory that using night vision (without IR light) is illegal.

P.S. Freespool - if you do work for DFG, can you tell me who I can contact regarding this question?No affiliation of any kind with DF&G, or any other agency. This question was asked just a couple weeks back.

http://californiaoutdoors.wordpress.com/page/3/

I don't think there's a grammatical way to read that reg, neither theirs or yours. The stuff starting with 'any night vision equipment' just can't be made right by any interpretation, it's just incomplete. I do think it reads like they intended to make passive gear illegal. To me, at least, that best explains the sentence (for the redundancy reason detailed in previous posts), though it's still not written grammatically.

I wrote Carrie Wilson and DFG separately about a specific crabbing regulation a couple years ago, since DFG biologists (not wardens), were saying something was legal that the plain reading of the reg said was not. Both Wilson (with consultation - I'm pretty sure she's not a warden) and a DFG biologist re-iterated what I'm sure was the incorrect interpretation. But it was more permissive than mine, so I went with it!

freespool
02-11-2011, 7:00 PM
Only on this site can commas rial people up as much as Dianne Feinstein.

After dealing with the DFG on numerous occasions I will tell you this. If you us a light, IR or not while hunting at night and do not have a depredation permit, you are getting a ticket and your stuff will be confiscated period. Weather you get it back from the judge or not is another thing but kiss it good by. Night vision is a different story and as said above it depends on the guy on the ground. I use night vision on my boat out at sea and have been questioned but nothing has ever come of it as the ocean has different regs due to safety issues. Inland waters are controlled the same as hunting regs. That is why I fish in the ocean. I hate those guys.

What did DFG say about your NV stuff? They write the regs so that it's not clear whether physical or temporal proximity is a required element of 'taking' - is using IR to navigate out of the harbor, on your way to the fishing grounds, 'pursuing or attempting to take' fish, I wonder? It's all part of the process, and the regs often don't specify how connected to the actual take or pursuit, that a particular prohibited activity or item has to be.

Munk
02-11-2011, 7:28 PM
c) It is unlawful to use or possess at any time any infrared or similar light used in connection with an electronic viewing device or any night vision equipment, optical devices, including, but not limited to, binoculars or scopes, that use light-amplifying circuits that are electrical or battery powered, to assist in the taking of birds, mammals, amphibians, or fish.

My translation without the extra words:
It is unlawful to use or possess at any time any <nonvisible-spectrum lightsource> used in connection with any <device for seeing things> that use light amplifying circuits that are electrical or battery powered to assest in taking birds mammals amphibians or fish.

This means that it's technically illegal to have a number of celphones, digital cameras and camcorders that have a NV filter setting if it has a lightsource attached (some NV cams have an IR source).

By cutting out the extraneous words and commas that are non relevant, you see that it's the combo of lightsource and amplifier that's a no-go.


Also, taking non-game animals at night is good to go in a number of places. The regs spell out the prohibited areas, which means it's OK in others. Coyote hunters LEGALLY spotlight in a rather large range within CA.

freespool
02-11-2011, 8:42 PM
Seems like it's just as easy to read it the other way.

edited, trying to find clarity...

Seems like an awfully lengthy and needless addition, if the whole second half of that reg simply is a re-statement of 'electronic viewing device (for active IR)'. If they felt a need to point out that those technically use amplification circuitry (not really the point if you've got active IR), I wonder why they didn't go into detail over other elements of the circuitry?