one of my many letters to the DOJ

[pacificcoast]

this is but one of the handfull of letters I am sending to the DOJ regarding the proposed regulation. i figured it was better to split them into mulitple letters, rather than combine multiple issues into one long winded rant. thanks goes to board member "gose" for turning me onto the document regarding the DOJs previous comments.

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Mr. Amador,

I resolutely oppose the Department of Justice’s proposed amendment of Section 978.20 of the California Code of Regulations. The Department of Justice claims that they are clarifying existing statute and that the proposed definition of “capacity to accept a detachable magazine” is consistent with the original intent of the California legislation.

Statements explicitly made by the Department of Justice back in 2000 contradict not only the proposed definition, but also their contention that the definition is consistent with the original intent of the California legislature.

In 2000, the Department of Justice responded to concerns made by the public during the comment period regarding Senate Bill 23. The Department of Justice’s comments are located here:

http://ag.ca.gov/firearms/regs/fsor.pdf?PHPSESSID=f9e15b8d2acb79c10e85932e414c106 8

Many individuals voiced concern regarding the “detachable magazine” definition. In response, the Department of Justice explicitly stated that firearms utilizing a bullet, ammunition cartridge, or tool to release a magazine is a firearm with a fixed magazine, and clearly not intended by the legislature to be categorized as an assault weapon. These are the Department of Justice’s own words, not mine.

In light of these comments, it is abundantly clear that the proposed amendment of Section 978.20 contradicts not only the departments own position, but the intent of the legislature. A firearm with a fixed magazine, that requires a tool to release the magazine, is not intended by the legislature to be categorized as an assault weapon.

The Department of Justice’s proposed regulation and definition oversteps their regulatory authority and belies the intent of the California legislature. The amendment neither clarifies nor facilitates an accurate identification of assault weapons. Instead, it serves to obfuscate the public and repudiate the original intent of Senate Bill 23.

For these reasons, I firmly oppose the Department of Justice’s proposed amendment of Section 978.20.

Sincerely,

pc

[Rivet]

That is a damn good letter! I had to look 'obfuscate' up. :o

[tiki]

Jeff Amador
Field Representative
Department of Justice
Firearms Licensing and Permits Section
P.O. Box 820200
Sacramento, CA. 94203-0200
Dear Mr. Amador:

I would like put forth my objections to the proposed modifications that were posted to the CAL-DOJ website on November 1, 2006. My objections pertain to the wording of the rule changes as well as the DOJ’s legal authority to effect such changes. I feel that this rule change does not comply with the California Administrative Procedures Act (APA) “clarity”, “authority” and “consistency” standards. Compliance with these standards is mandatory (Armistad v. State Personnel Board). As a resident of the State of California, I am submitting my public comment to challenge the DOJ’s authority to make these changes.

Government Code section 11349.1, subdivision (a), paragraphs (2) and (4) require OAL to review each regulation for compliance with the APA “clarity”, “authority” and “consistency” standards. “Authority,” as defined by Government Code section 11349(b) “means the provision of law which permits or obligates the agency to adopt, amend, or repeal a regulation. “Consistency,” as defined in Government Code section 11349(d) “means being in harmony with, and not in conflict with or contradictory to, exiting statutes, court decisions or other provisions of law.” “Clarity” as defined Government Code section 11349(c) “means written or displayed so that the meaning of regulations will be easily understood by those persons directly affected by them.”
(SWRCB v. OAL) established that if a rule looks like a regulation, reads like a regulation, and acts like a regulation, it will be treated by the courts as a regulation whether or not the issuing agency so labeled it. Government Code section 11342.600 states that a “’regulation’ means every rule, regulation, order or standard of general application or the amendment, supplement, or revision of any rule, regulation, order or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern it procedure.”

My objections begin with the Statement of Reason document published by the DOJ. In its Statement of Reason, the DOJ contends that “the proposed definition will add clarity to the existing statutes but will not change or affect their current application and enforcement.” This is not true. The current regulations established by Senate Bill 23, added PC 12276.1 to expand the definition of an assault weapon as a semiautomatic, center fire rifle that has the capacity to accept a detachable magazine and any one of a list of characteristics.

The DOJ itself defined a “detachable magazine” to mean “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.” Therefore, if an ammunition feeding device is affixed to the firearm, and, it requires a tool to remove it, by the statute, it is no longer a detachable magazine. Since the magazine well of the firearm contains an object (the now fixed magazine itself) that prevents the insertion of a detachable magazine, it no longer has the capacity to accept one.
If the device is removed, the capacity to accept then exists. However, confusion is added by the proposed changes to the statute because some of the examples given by the DOJ as firearms not possessing the “capacity to accept” are no less capable of accepting than those with a device fixed in the magazine well. I address these issues below.

The new wording does not add any clarification; it adds restrictions to what is legal under the current rules, and, it is inconsistent with current regulations. By adding section (f)(1), the DOJ is changing the regulations such that they are now inconsistent with existing regulations. It is obvious that the intent of the rule change is not to clarify the existing rules, but to prevent the use of the Prince 50 or similar magazine locking devices currently in use by the public and allowable under the current statutes. This device satisfies the current rules by requiring the use of a tool to remove the ammunition feeding device and removes the capacity of the firearm to accept a detachable magazine.

The proposed wording change adds confusion to the current rules because it introduces ambiguous phrases such as “readily modifiable to receive a detachable magazine.” Readily modifiable is ambiguous because what is readily modifiable to one individual my not be readily modifiable to another. There is no clear definitional difference between something that is modifiable and something that is readily modifiable.

Section (f)(2) further changes the regulations by specifying that the device that prevents the magazine from being removed must contain alterations to the magazine well. This does not clarify the “use of a tool” nor does it change its “capacity to accept” but introduces an additional requirement that the design of such a device requires a modification to the firearm. This is also a contradiction to current rules. The current rule only specifies that a tool is required to remove the device. The proposed changes add confusing alteration to the magazine well standards and it places the burden on the public to determine what constitutes an allowable alteration.

Section (f)(3) is ambiguous in defining the removal of the action of the firearm. What constitutes the action of a firearm? If separating the upper and lower receiver constitutes the disassembly of the action, then the manner in which these fixed magazine firearms are loaded constitutes disassembly of the action. If the removal of the trigger assembly constitutes the disassembly of the action, which it doesn’t, then any modification done to prevent the magazine from being removed can be placed on the inside and affixed to the trigger mechanism. The DOJ is not clarifying any rule here, just adding the condition that the action must be disassembled, and again, putting the burden on the public to determine what exactly constitutes the removal of the action.

The inclusion of the phrase "removed, reversed, or disengaged, without alteration to the magazine well" limits the allowable modifications to the four modifications listed in subdivision (3) despite the inclusion of the unrestricted language "for example" used in subdivision (3). This is also true despite the fact that the four proposed approved "examples" are reversible and conflicts with the alleged intent of the newly proposed regulation. These changes are also different than what is currently allowed under the statute as it appears in California Penal Code.

I also have concerns about the authority of the DOJ to effect changes to these regulations. The proposed amendment exceeds the scope of the stated purposes of the regulation, which was to "define a sixth term, ‘capacity to accept a detachable magazine’, as meaning ‘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.’"

As was shown in First Industrial Loan Co. v. Daugherty (1945) 26 Cal.2d 545, 550, “An administrative agency may not exercise its rulemaking power so as to alter, extend, limit, or enlarge the provisions of the statute that is being administered. In adding these conditions, the DOJ is altering, extending and enlarging the provisions of the current statute.

This rule change will have negative effects on the public because:
1. It will make thousands of firearms, which were purchased legally under the current regulations, assault weapons.
2. People were misled to believe that by putting a fixed magazine into their firearm, they were in compliance with the law.
3. People were not told they needed to register these guns as "assault weapons" and the registration period has now expired.
4. The proposed amendment affects small businesses by making criminals out of law abiding purchasers of firearms who relied upon the DOJ’s previous interpretations and their dealer’s assurances that firearms purchased by the public were lawful.
5. The DOJ is exercising its rulemaking power such that it is altering, extending and enlarging the current provisions of the statute.
6. The proposed amendment does not satisfy the requirements of the APA standards of “clarity”, “authority” and “consistency”.

Based on the arguments and facts set forth in this letter, I request that the DOJ abandon the proposed changes to the statute.
Sincerely,

[shark92651]

Both of those are great letters. Should we all compose our own letters or would it be acceptable to copy one of these and sign our names to it? I do not think I could say it any better than you did but was wonding if it would be a much greater impact if it was a unique letter. What do you think?

[tiki]

Both of those are great letters. Should we all compose our own letters or would it be acceptable to copy one of these and sign our names to it? I do not think I could say it any better than you did but was wonding if it would be a much greater impact if it was a unique letter. What do you think?

I would use these as guides. Since the letters get forwarded on to the OAL when they review the proposed statute, having 30 identical documents doesn't seem to me to make any difference than having one. If the same points are raised, what is gained? These arent petitions. Someone with more experience with this may have a different view, but, from my understanding of the process, I think we should all contribute our own points of view. For instance, my sample leaves off a lot of places where proposed changes are not clear. For instance, if the action is considered to be the bolt and barrel and the action has to be disassembled to make the firearm "have the capacity to accept", then how is that possible? First, the action contains moving parts, second, it is a seperate component from the component that contains the magazine?
Stuff like that can be addressed in other peoples letters. You need to show how the changes add confusion, are not clear, are ambiguous, are not consistent with current law. For consistency, I didn't mention the letter that stated the Prince 50 type mod was legal by the DOJ at one point.

[shark92651]

Ok, I agree with you. I will try to incorporate these ideas and some others into my own letter. Thanks