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View Full Version : Kwan decision -- New trial ordered, w/findings...


Pvt. Cowboy
08-16-2007, 9:46 PM
US District Court in Seattle just held in the US vs. Kwan case that 'constructive possession' requires that there is no legal configuration otherwise evident for firearms parts that are in the property of the owner, and they have ordered a new trial for the defendant based upon that criteria:

http://armsandthelaw.com/archives/KWAN[1].NEWTRIALORD.pdf

For those of you who own a modern pistol with a rail on the frame as well as a rail-mounted forward pistol grip on your rifle, you may want to keep watching this case. ATF had essentially been saying that for thousands of you who have a Glock pistol with a rail in your possession at the same time you have an long arm with a rail mount pistol grip, you were unwittingly in possession of an unregistered AOW. How many of you even considered that quandary before I just mentioned it right now?

If the 9th Circuit Court upholds the lower court and dismisses any forthcoming ATF appeal, I wonder what this might mean to California 'OLL' owners in regards to 'Constructive Possession of an Assault Weapon', providing that your assembly of parts are otherwise legal by themselves?

PIRATE14
08-16-2007, 9:54 PM
US District Court in Seattle just held in the US vs. Kwan case that 'constructive possession' requires that there is no legal configuration otherwise evident for firearms parts that are in the property of the owner, and they have ordered a new trial for the defendant based upon that criteria:

http://armsandthelaw.com/archives/KWAN[1].NEWTRIALORD.pdf

For those of you who own a modern pistol with a rail on the frame as well as a rail-mounted forward pistol grip on your rifle, you may want to keep watching this case. ATF had essentially been saying that for thousands of you who have a Glock pistol with a rail in your possession at the same time you have an long arm with a rail mount pistol grip, you were unwittingly in possession of an unregistered AOW. How many of you even considered that quandary before I just mentioned it right now?

If the 9th Circuit Court upholds the lower court and dismisses any forthcoming ATF appeal, I wonder what this might mean to California 'OLL' owners in regards to 'Constructive Possession of an Assault Weapon', providing that your assembly of parts are otherwise legal by themselves?

Means nothing to the OLL crowd.....not much AWs since the demise of the Ban in 2004 so no fed law covers this........

Just guys w/ pistols and rails........kinda ridiculous if you ask me....

AJAX22
08-16-2007, 9:55 PM
was kwan tried for constructive posession of an AOW? or was it constructive posession of an SBR or SBS or MG?

Pvt. Cowboy
08-16-2007, 10:07 PM
was kwan tried for constructive posession of an AOW? or was it constructive posession of an SBR or SBS or MG?

Kwan was tried (and convicted) for constructive possession of an unregistered machine gun. That conviction has been withheld pending a new trial.

I used the notion of an unregistered AOW being constructed by an unwitting CA gun owner who owns an AR15 with a rail-mounted front pistol grip as well as a Glock with a railed frame that could accept the AR's front pistol grip.

Kwan owned an NFA-registered Hk VP70z with the stock as well as a non-NFA standard VP70 and he was charged with constructive possession of an unregistered machinegun -- never mind that a Class III VP70z stock won't attach to a VP70 pistol without the pistol being modified; also, Kwan's VP70 was unmodified. I can't see how they can convict him in a new trial using the Seattle district court's criteria.

Since the issue of NFA registered weapons doesn't apply to almost all CA gun owners, I used the scenario outlined in my original post because it conceivably would apply to unknown thousands of unwitting CA gun owners. The penalties for unregistered MGs and AOW/SBS/SBR is the same, I believe.

Pvt. Cowboy
08-16-2007, 10:27 PM
Means nothing to the OLL crowd.....not much AWs since the demise of the Ban in 2004 so no fed law covers this........


Now, have you completely thought it through? :rolleyes:

There are several ways to construct CA-legal OLLs, right? Some are the 'Fixed Mag/Full Features' types, and others are the 'Open Magwell/Limited Features' kind. Agreed?

Okay, so have you ever considered before I just mentioned it right now what CA DOJ BOF might get their expert witness Iggy Wonderchinn to say on the stand if you were found with one of each kind of rifle at a San Jose traffic stop coming back from the range, and they proclaimed that you were illegally in 'Constructive Possession of an Assault Weapon' because some of the evil parts from the 'Full-featured/Fixed Mag' rifle could be slapped on the 'Limited Features' rifle? With an AR-15, it might just be a matter of switching upper receivers, right? Hell, they just make it up in court as they go along as to what a 'flash hider' constitutes.

Do you trust CA DOJ BOF to show up in court without having switched your uppers and entering them into evidence as that's the way they were found in your possession when they were confiscated? Have your forgotten already that the San Jose PD used a rubber mallet to knock a fixed mag out of the mag well in a case against a Calguns member?

Did a lightbulb of paranoia just go off in your head? Well, be heartened:

The District Court in Seattle just ruled that wouldn't be 'constructive possession' if there was a legal configuration for which the evil parts could be within your possession. Why should you care about Seattle? Well, since I believe that the ATF couldn't win a new case based upon that criteria, they'd have to appeal to the 9th Circuit Court. What happens there would likely set the standard for the issue of 'constructive possession' as it relates to SB-21.

bwiese
08-16-2007, 11:14 PM
PvtCowboy,

This will be relevant for Fed issues, but in many ways is just an extension of the Thompson Center case, where folks ended up having have a mix of pistol and rifle uppers and pistol and rifle lowers as long as they at least had the option of assembling them legally (as opposed to sole possession of a parts combination that could only be illegal).

'Consructive possession' specifically does NOT apply to the field of Calif. by-features AWs. We also have this, in writing, from Deputy AG Tim Rieger in a letter to NRA attorney Chuck Michel of Trutanich-Michel.

'Constructive possession' concept is specifically codified for machineguns in CA law in 12200(a) and for short-bbl shotguns and rifles in 12020(c)(1) and (c)(2) (I think I got the subsection numbers right, perhaps not in the right order).

AW laws have been on the books in some form for 18 years in CA with multiple revisions. The CA 'constructive possesion' concepts for MGs, SBRs and SBSes were in place at or before relevant AW laws were passed: the legislators could've cut & pasted the relveant text from the above paragraphs but did not.

In fact DOJ was, indirectly, (until they abandoned their regulatory submission) in effect trying to covertly assert constructive possesion of an AW by insisting only permanent fixed mags were alllowed, with the "capacity to accept" language. Unfortunately that "capacity" does not exist on a fixed mag OLL rifle unless and until a deliberate action (legally, a "construction") is taken to render the mag detachable without a tool.

It is entirely legal in CA to have a collection of AW parts not assembled, that if assembled would be an illegal unreg'd AW.

Remember that the law specifies "semauto centerfire rifle...", etc. and not "collection of parts that can form a semiuato centerfire rifle..."

bwiese
08-16-2007, 11:17 PM
Since the issue of NFA registered weapons doesn't apply to almost all CA gun owners, I used the scenario outlined in my original post because it conceivably would apply to unknown thousands of unwitting CA gun owners. The penalties for unregistered MGs and AOW/SBS/SBR is the same, I believe.

Dual-use in CA - one a criminal combo, one legit, as you outlined - likely is covered by California lenity laws, at least with good lawyering.

BTW, AOWs actually aren't controlled in CA as long as the Feds are happy, unlike SBRs, SBSes, MGs, DDs, etc.

You can get an AOW in CA very carefullly if you can get Fed NFA matters taken squared away (which takes some effort). But quite a few folks have 12" "Witness-protection"-style Rem 870 12gauges with pistol grips and no stocks - these are *not* shotguns* - and have Fed NFA tax paid, etc.

You'll hear more about this soon, we won't go into details now until things are squared away ;)

Pvt. Cowboy
08-16-2007, 11:42 PM
PvtCowboy,

'Consructive possession' specifically does NOT apply to the field of Calif. by-features AWs. We also have this, in writing, from Deputy AG Tim Rieger in a letter to NRA attorney Chuck Michel of Trutanich-Michel.

I think that letter is as about as valuable as a restraining order is in protecting a single mother from a psychopathic ex-husband.

Considering the circumstances in the cases listed in the Current Legal Cases (http://www.calguns.net/calgunforum/forumdisplay.php?f=116) section, why would we think this letter is any different than any of the other dubious letters we've heard about originating from CA DOJ BOF?

Why I think it's important is that a ruling from the 9th Circuit Court would establish the criteria for 'constructive possession' with more gravity than some fickle CA DOJ bureaucrat's idle opinion -- especially one that punts the ball down to the '58 District Attorneys' yardline.

I won't quarrel, I'll just watch.

bwiese
08-16-2007, 11:52 PM
I think that letter is as about as valuable as a restraining order is in protecting a single mother from a psychopathic ex-husband.

Considering the circumstances in the cases listed in the Current Legal Cases (http://www.calguns.net/calgunforum/forumdisplay.php?f=116) section, why would we think this letter is any different than any of the other dubious letters we've heard about originating from CA DOJ BOF?

Much different than an Iggy letter. This is a very valuable one signed by a lawyer, a former Deputy AG who's speaking for the AG, and who's the Asst. Director of the Firearms Division at the time.

This is why Alison M. got a lotta folks' shorts in the wringer because she kept generating very useful paper for us, much of whose usefulness lies in the future.

Remember, legallity doesn't stop prosecution. The biggest issue is that DAs just don't know guns, that's all. And they put about 15 minutes into a typical case a cop hands over.


Why I think it's important is that a ruling from the 9th Circuit Court would establish the criteria for 'constructive possession' with more gravity than some fickle CA DOJ bureaucrat's idle opinion -- especially one that punts the ball down to the '58 District Attorneys' yardline.

Irrelevant to CA. Even if 9th hands down something here this matter will only deal with constructive possession as written in Fed. firearms law and ATF regulations and regulatory efforts. It has ZERO applicability to CA OLL rifles.

If you get charged for a collection of AW parts or something that could be an AW but ain't, this is the issue you and your lawyers raise. And then the case goes away, like the others have and the future ones will.

hoffmang
08-17-2007, 12:44 AM
Pvt,

The only constructive possession theory ever advanced for CA AWs was the "Important Notice" and Rulemaking attempt. Both of those went down the memory hole when appropriately challenged under CA state law.

-Gene

Pvt. Cowboy
08-17-2007, 12:47 AM
If you get charged for a collection of AW parts or something that could be an AW but ain't, this is the issue you and your lawyers raise. And then the case goes away, like the others have and the future ones will.

Would it just go away? Corwin is up to $40k in legal fees defending against multiple felonies over something that we just flat believe is perfectly legal. This is far less than the scenario I presented in which an LEO scooping up a box of parts may end up at court with a DA entering into evidence an illegal AW or AOW constructed from otherwise legal components -- Namely, the two approaches to OLLs with switched uppers and the Glock rail + Rifle foregrip notion.

I think that the Seattle ruling is important by it's stating a set of components wouldn't be 'constructive possession' if there was a legal configuration for which the evil parts could be within your possession. If two cases dealing with the same intellectual issue arrived at the same court, the court would rule the same way based on precedence. That sure beats the 'Slightly Better Than An Iggy Letter' you're holding if Seattle is upheld by the 9th.

In any event, I haven't been comfortable discussing this matter in plain view going on three replies ago. Boris is listening.

bwiese
08-17-2007, 12:57 AM
No, again, the Seattle issue only involves constructive possession for Federal matters.

It will not 'rain down' on to CA since it's dealing with a different set of laws.
'Constructive possession' is a concept, and is codified into laws /regulations and the argument is how far they extend.

It has no applicability to CA AW laws since there is nothing codified for that.

Remember that the person's case you're discussing had a variety of inflammatory/aggravating issues surrounding it, with the PR adding fuel to the fire. Already many charges have been dropped. I am not sure the fees have run that much anyway except for bail.

I will also again note for the fifth or 6th time that, with one exception (and with the exception of two dealers targeted likely because they were in the sticks and were perceived to not have good legal representation at the start) most of these cases involve young men in their early 20s.

The prior cases with no publicity etc. have gone away without bail charges, and with some attorney fees.

Your discussion of constructive possession is way deeper than the level at which these cases are anaylzed at initially. I'm sure most gun cases, it's "cop says gun is illegal" and DA throws out one or more 12280(a) and/or (b) charge without analysis.

I dunno about the recent OC case or the LA case we know of but all the other cases were filed by women DAs who've never fired a gun in their life and see "evil black gun".

There will always be the perception issue that needs to be overcome in such cases to get to the actual law/technicalities.

hoffmang
08-17-2007, 10:43 AM
PVT,

The Federal Law actually states that a collection of parts is a "firearm" under federal parlance. To see how far away the federal law is from California law, a California illegal AW AR with pistol grip and detachable magazines isn't a "firearm" under the federal law in the Kwan case.

Federal NFA definitions don't apply to CA's AW ban. Otherwise bayonets would be banned and they are not.

Please learn something about federalism and supremacy before you go spreading fear, uncertainty and doubt - especially when you are wrong about the facts.

-Gene

Rob P.
08-17-2007, 10:54 AM
Remember, legallity doesn't stop prosecution. The biggest issue is that DAs just don't know guns, that's all. And they put about 15 minutes into a typical case a cop hands over.

Most of the time, the guys handling these cases get assigned an average of 25 - 30 NEW cases per week. Also, govt workers are not allowed to work overtime so that means they handle those 25 - 30 cases in 40 hour workweeks. Do the math yourself. 30 cases in 40 hours means that EACH CASE gets an average of 1 1/2 hours of "attention" over the course of the case (about 3 or 4 weeks if no trial). This excludes time spent in the courtroom during the workweek (but you're there working on the cases so it's a wash).

Both the DA and the Public Defender are running full blast churning their caseloads. It's no wonder that most people who get assigned a PD get convicted and why most DA's don't know squat about the law.

Fjold
08-17-2007, 11:01 AM
We're all going to jail!



In two weeks!


:willy_nilly:

Calguns2000
08-17-2007, 11:05 AM
Dual-use in CA - one a criminal combo, one legit, as you outlined - likely is covered by California lenity laws, at least with good lawyering.

BTW, AOWs actually aren't controlled in CA as long as the Feds are happy, unlike SBRs, SBSes, MGs, DDs, etc.

You can get an AOW in CA very carefullly if you can get Fed NFA matters taken squared away (which takes some effort). But quite a few folks have 12" "Witness-protection"-style Rem 870 12gauges with pistol grips and no stocks - these are *not* shotguns* - and have Fed NFA tax paid, etc.

You'll hear more about this soon, we won't go into details now until things are squared away ;)I was under the impression that certain Federal AOW's, such as a pistol with a forward handgrip are still considereds pistols under CA law, and consequently remain subject to the CA assault weapons ban regardless of their NFA status--is this not correct?

icormba
08-17-2007, 11:21 AM
How many of you even considered that quandary before I just mentioned it right now?

me! ;)

http://www.calguns.net/calgunforum/showthread.php?t=42325

bwiese
08-17-2007, 11:28 AM
I was under the impression that a Federal AOW, such as a pistol with a forward handgrip was still considered a pistol under CA law, and consequently subject to the CA assault weapons ban--is this not correct?

Um, CA AWB only applies to semiautomatic rifles, pistols and shotguns.

CA law treats AOWs specially and refers to Fed definition: if it's a Fed AOW and papered w/NFA transfer tax, then it's a CA AOW and is not an SBS or SBR.

My example of a 12" 870 "Witness protection" pump with one (or two) pistol grips and no buttstock is an AOW: it's not a shotgun under Fed or CA law. (

If it's an AOW and has NFA paperwork, it falls outside CA control as there is specific exemption for NFA-papered AOWs.


12020. (a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison:
.
..........{list of no-nos}........
.
(b) Subdivision (a) does not apply to any of the following:
.
........{various exemptions for LEO/gov't agencies}..........
.
(8) Any other weapon as defined in subsection (e) of Section 5845 of Title 26 of the United States Code and which is in the possession of a person permitted to possess the weapons pursuant to the federal Gun Control Act of 1968 (Public Law 90-618), as amended, and the regulations issued pursuant thereto. Any person prohibited by Section 12021, 12021.1, or 12101 of this code or Section 8100 or 8103 of the Welfare and Institutions Code from possessing these weapons who obtains title to these weapons by bequest or intestate succession may retain title for not more than one year, but actual possession of these weapons at any time is punishable pursuant to Section 12021, 12021.1, or 12101 of this code or Section 8100 or 8103 of the Welfare and Institutions Code. Within the year, the person shall transfer title to the weapons by sale, gift, or other disposition. Any person who violates this paragraph is in violation of subdivision (a). The exemption provided in this subdivision does not apply to pen guns.

Calguns2000
08-17-2007, 11:46 AM
Um, CA AWB only applies to semiautomatic rifles, pistols and shotguns.

CA law treats AOWs specially and refers to Fed definition: if it's a Fed AOW and papered w/NFA transfer tax, then it's a CA AOW and is not an SBS or SBR.

My example of a 12" 870 "Witness protection" pump with one (or two) pistol grips and no buttstock is an AOW: it's not a shotgun under Fed or CA law. (

If it's an AOW and has NFA paperwork, it falls outside CA control as there is specific exemption for NFA-papered AOWs.


12020. (a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison:
.
..........{list of no-nos}........
.
(b) Subdivision (a) does not apply to any of the following:
.
........{various exemptions for LEO/gov't agencies}..........
.
(8) Any other weapon as defined in subsection (e) of Section 5845 of Title 26 of the United States Code and which is in the possession of a person permitted to possess the weapons pursuant to the federal Gun Control Act of 1968 (Public Law 90-618), as amended, and the regulations issued pursuant thereto. Any person prohibited by Section 12021, 12021.1, or 12101 of this code or Section 8100 or 8103 of the Welfare and Institutions Code from possessing these weapons who obtains title to these weapons by bequest or intestate succession may retain title for not more than one year, but actual possession of these weapons at any time is punishable pursuant to Section 12021, 12021.1, or 12101 of this code or Section 8100 or 8103 of the Welfare and Institutions Code. Within the year, the person shall transfer title to the weapons by sale, gift, or other disposition. Any person who violates this paragraph is in violation of subdivision (a). The exemption provided in this subdivision does not apply to pen guns.
I see the exemption in clause (b)(8), but that is just an exemption from the provisions of Section 12020(a). AW's are regulated under Section 12280, is there another exemption for NFA items somewhere else?

bwiese
08-17-2007, 11:52 AM
I see the exemption in clause (b)(8), but that is just an exemption from the provisions of Section 12020(a). AW's are regulated under Section 12280, is there another exemption for NFA items somewhere else?

There is no exemption for NFA SBRs and SBSes, regardless of Fed paperwork/tax, they need to have a DOJ permit in CA.

AOWs don't need CA permits if they have Fed NFA paper/transfer tax. (Takes a bit of jumping thru hoops I'll discuss in a week or two.)

AWs are regulated under 12280 (defined in 12276 and 12276.1). But those laws only apply to semiauto rifles[i], [i]shotguns and pistols.

A rifle action without a stock is not a rifle, a shotgun action without a stock is not a shotgun, and therefore certain nonrifle/nonshotgun items are not under AW law coverage.

I'd write more but I have to head to the Big Reno Show, and there are prime ribs to consume.
:)

Calguns2000
08-17-2007, 12:22 PM
There is no exemption for NFA SBRs and SBSes, regardless of Fed paperwork/tax, they need to have a DOJ permit in CA.

AOWs don't need CA permits if they have Fed NFA paper/transfer tax. (Takes a bit of jumping thru hoops I'll discuss in a week or two.)

AWs are regulated under 12280 (defined in 12276 and 12276.1). But those laws only apply to semiauto rifles[i], [i]shotguns and pistols.

A rifle action without a stock is not a rifle, a shotgun action without a stock is not a shotgun, and therefore certain nonrifle/nonshotgun items are not under AW law coverage.

I'd write more but I have to head to the Big Reno Show, and there are prime ribs to consume.
:)Wouldn't taking the stock off of a rifle or a shotgun and shortening the barrel to under 16 inches turn the weapon into a handgun under CA law (as well as an AOW under Federal law):

"A handgun is any pistol, revolver, or other firearm capable of being concealed upon the person that has a barrel length of less than 16 inches. The term also applies to any device that has a barrel length of 16 inches or more which is designed to be interchanged with a barrel less than 16 inches."
(Penal Code 12001(a).)

Query whether a CA DA could argue that a semi-auto rifle that has the stock removed and the barrel shortened to under 16 inches is a handgun pursuant to Penal Code Section 12001(a), and also a pistol (regardless of its status under Federal law), and consequently subject to the CA AW laws?

arguy15
08-17-2007, 5:08 PM
It really would not matter because a semi-auto rifle that had the barrel shorter than 16" would be a short barreled rifle by federal law. The fed see it as "once a rilfe, always a rifle."

Fjold
08-17-2007, 5:16 PM
Wouldn't taking the stock off of a rifle or a shotgun and shortening the barrel to under 16 inches turn the weapon into a handgun under CA law (as well as an AOW under Federal law):

"A handgun is any pistol, revolver, or other firearm capable of being concealed upon the person that has a barrel length of less than 16 inches. The term also applies to any device that has a barrel length of 16 inches or more which is designed to be interchanged with a barrel less than 16 inches."
(Penal Code 12001(a).)

Query whether a CA DA could argue that a semi-auto rifle that has the stock removed and the barrel shortened to under 16 inches is a handgun pursuant to Penal Code Section 12001(a), and also a pistol (regardless of its status under Federal law), and consequently subject to the CA AW laws?

No because anything originally built as a long gun is always a long gun under federal law. If you cut the barrel off shorter than 16" for rifles and 18" for shotguns you just create an NFA controlled weapon, not a handgun

Wizard99
08-17-2007, 7:33 PM
Bill,

Sounds like your hinting that one could build and register just about any machine pistol with a forward hand grip as a federal AOW and completely bypass the CA Assualt pistol issue entirely. Is this correct?

xenophobe
08-17-2007, 7:42 PM
PVT, you need to differentiate federal and state law. Right now you're really, really confused. The two are separate and distinct. What the federal law and courts say do not directly apply to state issues, as is the opposite.

CA DOJ doesn't care about 922(r) compliance, just as ATF doesn't care if you have a bullet-button or Prince50 installed.

CAAG cannot prosecute you for violating federal law, and the federal government cannot prosecute you for violating state law.... unless there is some law that overlaps, then it is up to the state, or the feds to prosecute, and one side will usually hand the case over to the other side when necessary.

arguy15
08-17-2007, 10:52 PM
Bill,

Sounds like your hinting that one could build and register just about any machine pistol with a forward hand grip as a federal AOW and completely bypass the CA Assualt pistol issue entirely. Is this correct?

No, not at all. He was refering to short pump actions and lever guns.


And, whats a machine pistol?