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what2be
11-07-2013, 1:41 PM
I have a few questions since I havent kept up to date on all the recent magazine laws so here they are:

1) is AB 396 passed and in effect, eg, a person has until july 2014 to surrender, sell or destroy any magazine capable of holding more than 10 rounds?

2) I was stopped for a traffic violation today by the Humboldt County Sherrif's department and had 4- saiga 12ga ,10 round magazines as well as a 1 - 20 round saiga drum in my vehicle (all empty magazines, and no firearms in my vechicle).

I was informed they were seizing my magazines under the nuisance law and I was committing a felony for being in POSESSION of said magazines.

They did ask if I bought them or someone gave them to me and i said NO, and they also asked if I had the gun to it (which I said no, because I no longer have a saiga)
=====================

Correct me if im wrong, but last I heard posession was not a crime and a magazine had to hold more than 10 rounds to be considered high capacity.

I think at best they have grounds to sieze the 20 round drum but the 4 10 round magazines should be returned to me.

Does this sound correct?

12voltguy
11-07-2013, 1:44 PM
I have a few questions since I havent kept up to date on all the recent magazine laws so here they are:

1) is AB 396 passed and in effect, eg, a person has until july 2014 to surrender, sell or destroy any magazine capable of holding more than 10 rounds?

2) I was stopped for a traffic violation today by the Humboldt County Sherrif's department and had 4- saiga 12ga ,10 round magazines as well as a 1 - 20 round saiga drum in my vehicle (all empty magazines, and no firearms in my vechicle).

I was informed they were seizing my magazines under the nuisance law and I was committing a felony for being in POSESSION of said magazines. They did ask if I bought them or someone gave them to me and i said NO, and they also asked if I had the gun to it (which I said no, because I no longer have a saiga)
=====================

Correct me if im wrong, but last I heard posession was not a crime and a magazine had to hold more than 10 rounds to be considered high capacity.

I think at best they have grounds to sieze the 20 round drum but the 4 10 round magazines should be returned to me.

Does this sound correct?

wow
they say that & don't arest you.........how can they let people off with a feloney???????????????

Ninety
11-07-2013, 1:57 PM
Could have been arrested for what? Don't spread fud.

He broke no laws.

Nuisance laws would allow them to take the 20 round mag but why did they take the 10 rounders?

taperxz
11-07-2013, 1:59 PM
Something tells me some loose lips sank this ship.

1859sharps
11-07-2013, 2:01 PM
I have a few questions since I havent kept up to date on all the recent magazine laws so here they are:

1) is AB 396 passed and in effect, eg, a person has until july 2014 to surrender, sell or destroy any magazine capable of holding more than 10 rounds?



A Google search shows......SB 396 did not pass.
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml;jsessionid=49336abbf5525a98e73 b2d2b12a2


2) I was stopped for a traffic violation today by the Humboldt County Sherrif's department and had 4- saiga 12ga ,10 round magazines as well as a 1 - 20 round saiga drum in my vehicle (all empty magazines, and no firearms in my vechicle).

I was informed they were seizing my magazines under the nuisance law and I was committing a felony for being in POSESSION of said magazines.

They did ask if I bought them or someone gave them to me and i said NO, and they also asked if I had the gun to it (which I said no, because I no longer have a saiga)
=====================

Correct me if im wrong, but last I heard posession was not a crime and a magazine had to hold more than 10 rounds to be considered high capacity.

I think at best they have grounds to sieze the 20 round drum but the 4 10 round magazines should be returned to me.

Does this sound correct?

so....one has to ask...why where they searching your car?

Also your subject title leaves one to think you have history with the department "Sheriff's Dept Robbed me again" ?????? what is up with that?

I would contact calguns and see if you have a case, but if you have a "colored" history...don't expect too much help.

RickD427
11-07-2013, 2:04 PM
I have a few questions since I havent kept up to date on all the recent magazine laws so here they are:

1) is AB 396 passed and in effect, eg, a person has until july 2014 to surrender, sell or destroy any magazine capable of holding more than 10 rounds?

2) I was stopped for a traffic violation today by the Humboldt County Sherrif's department and had 4- saiga 12ga ,10 round magazines as well as a 1 - 20 round saiga drum in my vehicle (all empty magazines, and no firearms in my vechicle).

I was informed they were seizing my magazines under the nuisance law and I was committing a felony for being in POSESSION of said magazines.

They did ask if I bought them or someone gave them to me and i said NO, and they also asked if I had the gun to it (which I said no, because I no longer have a saiga)
=====================

Correct me if im wrong, but last I heard posession was not a crime and a magazine had to hold more than 10 rounds to be considered high capacity.

I think at best they have grounds to sieze the 20 round drum but the 4 10 round magazines should be returned to me.

Does this sound correct?


The deputies acted lawfully in seizing the large-capacity magazine. The law defines large-capacity magazines as "nuisances" and authorizes their seizure and destruction. Please refer to Penal Code section 32390 for the details.

There is no corresponding crime for the possession. Based only on the information contained in your posting, I don't see where you committed any crime.

I don't see a basis in your posting for the seizure of the 10 round magazines.

stix213
11-07-2013, 2:39 PM
Not a felony to possess, but unless you are LEO yourself, or otherwise exempt, it is highly suspicious that you have a 20 round mag that was not produced prior to 1/1/2000 when the sale, manufacture, import ban for that type of mag took effect. If they wanted to try to build a felony case against you for that.... Well I hope you kept your mouth shut about how/when you got that mag for your sake.

bohoki
11-07-2013, 2:59 PM
ask the watch commander for your 10 rounders back

what2be
11-07-2013, 3:20 PM
Going to the DA's office tomorrow to ask for my 10 rounders back. And the basis for the search was that they said that they saw hi capacity mags in full view therefore they had probable cause for a legal search.

SVT-40
11-07-2013, 5:07 PM
Going to the DA's office tomorrow to ask for my 10 rounders back. And the basis for the search was that they said that they saw hi capacity mags in full view therefore they had probable cause for a legal search.

The "DA" will have no idea what you are talking about, and can do nothing to help you.

The person you need to talk to is the watch commander of the station where the deputies which seized your mags work.....

Go in to the appropriate station and politely talk with the WC and explain you would like your 10 round mags returned......

Ford8N
11-07-2013, 5:44 PM
so....one has to ask...why where they searching your car?

Also your subject title leaves one to think you have history with the department "Sheriff's Dept Robbed me again" ?????? what is up with that?

I would contact calguns and see if you have a case, but if you have a "colored" history...don't expect too much help.

I agree. I think there is more to this than the OP is telling.

2nd Mass
11-07-2013, 6:44 PM
Mags were easily visible?

baggss
11-07-2013, 6:50 PM
Mags were easily visible?

My question exactly. They said they were easily visible. Were they? If so, why? If not, what would have lead them to believe they were?

Cylarz
11-07-2013, 7:51 PM
I'm confused. If a gun owner has 20-round mags that were owned legally prior to 1/1/2000, then they're legal. So on what grounds does a LEO seize them as a "nuisance?" Either something is legal or it isn't.

And if the cop thinks they're illegal, it seems like he would arrest the driver for possession of something illegal...in which case the DA would need to prove that they were bought after 1/1/2000, which is a tall order.

Am I missing something here?

Ninety
11-07-2013, 7:54 PM
possession is not illegal.. yet

LMTluvr
11-07-2013, 7:55 PM
Not a felony to possess, but unless you are LEO yourself, or otherwise exempt, it is highly suspicious that you have a 20 round mag that was not produced prior to 1/1/2000 when the sale, manufacture, import ban for that type of mag took effect. If they wanted to try to build a felony case against you for that.... Well I hope you kept your mouth shut about how/when you got that mag for your sake.

^This.
Why anyone would be rolling around with one of these, assembled, in plain view..that's just asking for a headache.

RickD427
11-07-2013, 8:06 PM
I'm confused. If a gun owner has 20-round mags that were owned legally prior to 1/1/2000, then they're legal. So on what grounds does a LEO seize them as a "nuisance?" Either something is legal or it isn't.

And if the cop thinks they're illegal, it seems like he would arrest the driver for possession of something illegal...in which case the DA would need to prove that they were bought after 1/1/2000, which is a tall order.

Am I missing something here?

Cylarz,

Yes, it does appear that you're missing something. Please give a close read to Penal Code section 32390.

Here's what I think you're missing. You seem to be treating the lawful possession of the magazines as somehow being connected to their status as "nuisances." That's a very reasonable assumption to make, but it just isn't the case.

There's nothing illegal about having the magazines.

There's nothing to prosecute anybody for, and therefore, no "burden of proof." If the officer's destroy them under the provisions of PC section 18010(b), there's no involvement of the D.A.

There's no relevance to the 1/1/2000 date. That date would be relevant if the person possessed them in California prior to that date, took them out of the state, and then imported them back into the state. That's not the case here.

"Nuisance" has nothing to do with being "illegal." They're entirely different things.

The law only defines large-capacity magazines as being "nuisances" and nothing more. Section 32390 allows officers to confiscate them. Section 18010 (b) allows agencies to destroy them.

I know that really seems counter-intuitive, and probably offensive to the sense of justice, but it's actually in the law that way, and to this point in time, has not been challenged.

taperxz
11-07-2013, 8:17 PM
Cylarz,

Yes, it does appear that you're missing something. Please give a close read to Penal Code section 32390.

Here's what I think you're missing. You seem to be treating the lawful possession of the magazines as somehow being connected to their status as "nuisances." That's a very reasonable assumption to make, but it just isn't the case.

There's nothing illegal about having the magazines.

There's nothing to prosecute anybody for, and therefore, no "burden of proof." If the officer's destroy them under the provisions of PC section 18010(b), there's no involvement of the D.A.

There's no relevance to the 1/1/2000 date. That date would be relevant if the person possessed them in California prior to that date, took them out of the state, and then imported them back into the state. That's not the case here.

"Nuisance" has nothing to do with being "illegal." They're entirely different things.

The law only defines large-capacity magazines as being "nuisances" and nothing more. Section 32390 allows officers to confiscate them. Section 18010 (b) allows agencies to destroy them.

I know that really seems counter-intuitive, and probably offensive to the sense of justice, but it's actually in the law that way, and to this point in time, has not been challenged.

You really can't say this without being there. Possession is illegal if you admit that you obtained the mag illegally. Of course there is a statute of limitations to consider too. Confiscation is easier than proving beyond a reasonable doubt that the OP imported, manufactured the mag illegally.

I think the OP ratted himself out in this case IF LE acted in good faith.

RickD427
11-07-2013, 8:32 PM
You really can't say this without being there. Possession is illegal if you admit that you obtained the mag illegally. Of course there is a statute of limitations to consider too. Confiscation is easier than proving beyond a reasonable doubt that the OP imported, manufactured the mag illegally.

I think the OP ratted himself out in this case IF LE acted in good faith.

Taperxz,

You're making the same mistake that Cylarz did.

There's nothing illegal in this picture. The magazine possession is not illegal. There's no relevance to an admission since there is no illegal conduct. (However if the OP did admit to manufacturing or importing the magazine, there would be a crime - but that didn't happen here). Since there is no crime, there no applicability of the statute of limitations.

I don't need to be there to conclude the OP possessed the magazine. He stated so in his original post.

It's only about the "nuisance" - nothing more.

StuckInTheP.R.O.Ca
11-07-2013, 9:01 PM
This state sucks. Let me say it again. Sucks!!!!:(

mofojoe
11-07-2013, 9:05 PM
Let's see... I was driving around with my mags (for which I don't even have a gun for) on my seat next to me and then the cops pull me over and see the mags.
Did they wipe the gooey white stuff off them first before they took them?

junior40er
11-07-2013, 9:06 PM
Its for the kids...that is.

epilepticninja
11-07-2013, 9:18 PM
Taperxz,

There's nothing illegal in this picture. The magazine possession is not illegal. There's no relevance to an admission since there is no illegal conduct. (However if the OP did admit to manufacturing or importing the magazine, there would be a crime - but that didn't happen here). Since there is no crime, there no applicability of the statute of limitations.

Rick,

Help me out here. Larger than 10 round capacity magazines are not illegal to possess, yet there is a Penal Code statute that says lawfully possessed property can be confiscated and destroyed as a "nuisance?" omgwtfbbq?

The reason that I ask this is that awhile ago, there was a thread on here about a Marine being stopped by the chippies and Officer Friendly tried to confiscate Mr. Marine's 30-round, gov't issued mags. Granted, they were part of his "official" duties, but I wonder if the chippie was trying to snatch them under this same "nuisance" PC law.

SOAR79
11-07-2013, 9:31 PM
what did they rob you of the first time?

SonofWWIIDI
11-07-2013, 9:34 PM
Let's see... I was driving around with my mags (for which I don't even have a gun for) on my seat next to me and then the cops pull me over and see the mags.
Did they wipe the gooey white stuff off them first before they took them?

^^^This.


I think OP might be trollin'.

Librarian
11-07-2013, 9:35 PM
Cylarz,

Yes, it does appear that you're missing something. Please give a close read to Penal Code section 32390.

Here's what I think you're missing. You seem to be treating the lawful possession of the magazines as somehow being connected to their status as "nuisances." That's a very reasonable assumption to make, but it just isn't the case.

There's nothing illegal about having the magazines.

There's nothing to prosecute anybody for, and therefore, no "burden of proof." If the officer's destroy them under the provisions of PC section 18010(b), there's no involvement of the D.A.

There's no relevance to the 1/1/2000 date. That date would be relevant if the person possessed them in California prior to that date, took them out of the state, and then imported them back into the state. That's not the case here.

"Nuisance" has nothing to do with being "illegal." They're entirely different things.

The law only defines large-capacity magazines as being "nuisances" and nothing more. Section 32390 allows officers to confiscate them. Section 18010 (b) allows agencies to destroy them.

I know that really seems counter-intuitive, and probably offensive to the sense of justice, but it's actually in the law that way, and to this point in time, has not been challenged.

This is why I suggest this was a drafting error in SB-23 back in 1999. Seizure of a legal item makes no sense. See http://www.calguns.net/calgunforum/showpost.php?p=9211988&postcount=129 - where my expectation that 'this will not be a problem' is proving to be wrong.

RickD427
11-07-2013, 9:44 PM
Rick,

Help me out here. Larger than 10 round capacity magazines are not illegal to possess, yet there is a Penal Code statute that says lawfully possessed property can be confiscated and destroyed as a "nuisance?" omgwtfbbq?

The reason that I ask this is that awhile ago, there was a thread on here about a Marine being stopped by the chippies and Officer Friendly tried to confiscate Mr. Marine's 30-round, gov't issued mags. Granted, they were part of his "official" duties, but I wonder if the chippie was trying to snatch them under this same "nuisance" PC law.

You got it.

Your first paragraph is a pretty accurate assessment.

Your second paragraph invites a whole bunch of questions about the supremacy clause and the applicability of a state statute to federal property. I'm having a hard time understanding why a LEO would do such a thing. We're entrusted with some amount of discretion and there is an expectation that it will be appropriately used.

I also need to point out, this whole thing has not yet been tested in court.

The L.A. City Attorney, and former law partner of Chuck Michel, has also taken on this issue and drafted a proposal for city ordinance in order to "clean up" some of the problems with the law.

desertexplore
11-07-2013, 10:13 PM
Tagged

bohoki
11-07-2013, 10:31 PM
if its a pro mag drum thank them for taking it if it was an md arms take it to the supreme court

taperxz
11-07-2013, 10:37 PM
Taperxz,

You're making the same mistake that Cylarz did.

There's nothing illegal in this picture. The magazine possession is not illegal. There's no relevance to an admission since there is no illegal conduct. (However if the OP did admit to manufacturing or importing the magazine, there would be a crime - but that didn't happen here). Since there is no crime, there no applicability of the statute of limitations.

I don't need to be there to conclude the OP possessed the magazine. He stated so in his original post.

It's only about the "nuisance" - nothing more.

The nuisance exists on illegally possessed mags. The OP wasn't arrested.

The government now has a loophole after the renumbering and language change. It allows for mags not owned before the ban to be confiscated.

In order for this to happen, someone needs to say something wrong.

I would like to know what other colorful item was taken by the Sheriff prior to this encounter. History counts in these matters.

P5Ret
11-07-2013, 10:42 PM
what did they rob you of the first time?

Weed? Hey it's Humboldt 50/50 chance.:D

StuckInTheP.R.O.Ca
11-07-2013, 10:44 PM
The nuisance exists on illegally possessed mags. The OP wasn't arrested.

The government now has a loophole after the renumbering and language change. It allows for mags not owned before the ban to be confiscated.

In order for this to happen, someone needs to say something wrong.

I would like to know what other colorful item was taken by the Sheriff prior to this encounter. History counts in these matters.

Im thinking they can take any +10 round mag. Doesn't matter if it was bought in the 70's. They are just not supposed to prosecute if it was obtained prior to 2000. Thats at least my understanding of it.

taperxz
11-07-2013, 10:52 PM
Im thinking they can take any +10 round mag. Doesn't matter if it was bought in the 70's. They are just not supposed to prosecute if it was obtained prior to 2000. Thats at least my understanding of it.

Not really. Put it this way, 20 yr old with hicaps for guns invented after the ban won't bode well under this new loophole.

50 year old with m1A mags? Might be problematic for LE to confiscate and not see legal repercussions.

StuckInTheP.R.O.Ca
11-07-2013, 11:03 PM
Not really. Put it this way, 20 yr old with hicaps for guns invented after the ban won't bode well under this new loophole.

50 year old with m1A mags? Might be problematic for LE to confiscate and not see legal repercussions.

I really wish you were right but I still think they will take them regardless of whether they were grandfathered or not. Possesion is a "nuissance" . Lol.

taperxz
11-07-2013, 11:09 PM
I really wish you were right but I still think they will take them regardless of whether they were grandfathered or not. Possesion is a "nuissance" . Lol.

Only illegal hicaps are a nuisance. I think what's happening here is that LE is using common sense on what could be illegal, taking their chances with the nuisance rule and figuring they will push it till someone sues over a $30 magazine. I don't think they will chance confiscation IF there is a likely chance that shows that a hi cap could easily fall into a pre ban status.

All JMO.

RickD427
11-07-2013, 11:34 PM
Only illegal hicaps are a nuisance. I think what's happening here is that LE is using common sense on what could be illegal, taking their chances with the nuisance rule and figuring they will push it till someone sues over a $30 magazine. I don't think they will chance confiscation IF there is a likely chance that shows that a hi cap could easily fall into a pre ban status.

All JMO.

Please read the statute.

All large-capacity mags fall under the "Nuisance" provisions.

Doesn't matter when you acquired them. "Pre-Ban" large-capacity magazines are still "nuisances."

Gunsmith Dan
11-08-2013, 3:15 AM
Well actually if you had the Saiga that was manufactured before 2000 in a non restricted setup you would of been legal. The kicker here is you had no rifle to prove that you had possession of the magazines for that purpose.

Owning hi cap magazines but no firearm to go with them makes it look like you are engaged in the sales of hi cap mags to LEOs.

Ford8N
11-08-2013, 5:29 AM
what did they rob you of the first time?

Yes. This could explain why they are taking his mags this time.

taperxz
11-08-2013, 9:04 AM
Please read the statute.

All large-capacity mags fall under the "Nuisance" provisions.

Doesn't matter when you acquired them. "Pre-Ban" large-capacity magazines are still "nuisances."

You're just assuming that. You are familiar with recent legislation where some mag bills passed and some failed??

RickD427
11-08-2013, 9:39 AM
You're just assuming that. You are familiar with recent legislation where some mag bills passed and some failed??

Yes, I've followed those bills very closely.

They have nothing to do with the issue we're discussing here.

The law defining large-capacity magazines as nuisances has been on the books since January 1 of 2012.

I still have to think that you're not grasping the difference between the "illegal" possession of a magazine and the "nuisance" possession of a magazine. You seem to be treating them as the same, and they're not.

I also suspect that you haven't read the statutes that you're trying to discuss here.

1) Please read Penal Code section 32390. It will define large-capacity magazines as "Nuisances" and subject them to the provisions of section 18010.

2) Next read section 18010. It contains three provisions. The first allows a prosecutor to sue a person who manufactures, sells, etc.. a large-capacity magazine. The second provision allows LEOs to seize and destroy large-capacity magazines. The third defines the manner of destruction.

3) There are exceptions to the "Nuisance" provisions. They are contained in section 17700-17745 and in 32400-32450. When you examine each of the exceptions, you would expect to find one covering magazines lawfully possessed prior to 1-1-2000, but you'll find no such exemption in the code. (We've debated the reasons for this in other threads).

None of this was affected by any of this year's legislation.

Germz
11-08-2013, 9:52 AM
Rick your Internet etiquette is unparalleled.

+1 for professionalism in this thread. :thumbsup:

ElToro
11-08-2013, 10:19 AM
What about rebuilding crappy older mags from 20 years ago into newer more modern mags say, Magpuls. No net creation of new mags, just better and more reliable. The cop hassling me says these polymer magpuls are new so therefor sim confiscating. What then ?

RickD427
11-08-2013, 10:28 AM
What about rebuilding crappy older mags from 20 years ago into newer more modern mags say, Magpuls. No net creation of new mags, just better and more reliable. The cop hassling me says these polymer magpuls are new so therefor sim confiscating. What then ?

ElToro,

It actually doesn't matter a bit, the officer could also confiscate the "crappy older mags from 20 years ago" large-capacity magazines.

Shorthair
11-08-2013, 10:36 AM
I need to hear more of this guys story. Riding around with a 20 round mag, or any mag, (apparently) in full view? For a gun you don't even own anymore? If this is true its begging for trouble. As far as demanding the 10 rounders be returned, I would let sleeping dogs lie and be happy that they don't make more of an issue of the 20 rounder. Humbolt is more rural that socal so maybe the gun culture is more accepted (midwestern) there. However, LE is no doubt always on the prowl for stuff like this in that area due to the rampant weed production and trafficking problem. If i am the OP I walk away from the 10 rounders and call it good, regardless of what legal basis I think I have for getting them back.

taperxz
11-08-2013, 10:50 AM
Yes, I've followed those bills very closely.

They have nothing to do with the issue we're discussing here.

The law defining large-capacity magazines as nuisances has been on the books since January 1 of 2012.

I still have to think that you're not grasping the difference between the "illegal" possession of a magazine and the "nuisance" possession of a magazine. You seem to be treating them as the same, and they're not.

I also suspect that you haven't read the statutes that you're trying to discuss here.

1) Please read Penal Code section 32390. It will define large-capacity magazines as "Nuisances" and subject them to the provisions of section 18010.

2) Next read section 18010. It contains three provisions. The first allows a prosecutor to sue a person who manufactures, sells, etc.. a large-capacity magazine. The second provision allows LEOs to seize and destroy large-capacity magazines. The third defines the manner of destruction.

3) There are exceptions to the "Nuisance" provisions. They are contained in section 17700-17745 and in 32400-32450. When you examine each of the exceptions, you would expect to find one covering magazines lawfully possessed prior to 1-1-2000, but you'll find no such exemption in the code. (We've debated the reasons for this in other threads).

None of this was affected by any of this year's legislation.

The law never tells you what is allowed. It only tells you what's illegal. You are making claims to something that won't exist in a described law.

Grandfathered mags are allowed because the mag ban implemented could not include an illegal taking of legally owned property. THAT WOULD BE ILLEGAL!

Thus, grandfathered magazines cannot be included in he new nuisance category.

There are more to laws than just what's printed. You need to learn to expand other facets of law to understand the full meaning. Furthermore SB 396 was the fix to confiscating grandfathered mags and it failed as an illegal taking of private property. Do you not see the trail and correlation here?

taperxz
11-08-2013, 10:59 AM
ElToro,

It actually doesn't matter a bit, the officer could also confiscate the "crappy older mags from 20 years ago" large-capacity magazines.

A cop can confiscate anything if they think it's illegal. Doesn't mean the taking is right.

I guess when it comes to exemptions you are kinda missing this point. Is an LEO going to confiscate hi caps from retired LEO?

bohoki
11-08-2013, 11:16 AM
i wonder if you could be charged with "giving" if you allow the officers to take them

RickD427
11-08-2013, 11:34 AM
The law never tells you what is allowed. It only tells you what's illegal.

(We're not discussing anything illegal here. The law also provides authority for government agencies to take particular actions (like seizing large-capacity magazines), even when no law is broken.)

You are making claims to something that won't exist in a described law.

(I'm not sure what you're talking about here. I provided the statutory references in my previous postings)

Grandfathered mags are allowed because the mag ban implemented could not include an illegal taking of legally owned property. THAT WOULD BE ILLEGAL!

(There are no "grandfathered" magazines under the nuisance provisions (section 32390). The only application of "Grandfathering" is in regard to the criminal use of magazines.)

Thus, grandfathered magazines cannot be included in he new nuisance category.

(Actually, they are. You make a good argument why section 32390 would probably be found unconstituional, as a government taking under the 5th Amnedment, but that challenge has not yet been made. For now, the law still stands. You need to get to the end of that road for your statement to be true, you're only at the beginning.)

There are more to laws than just what's printed.

(You're right. There is also the body of published case law. I suspect from the context of your post, that you're referring to common law. That don't work in California. Would you please provide a citation to a statute or a published case where you think I missed something?)

You need to learn to expand other facets of law to understand the full meaning. Furthermore SB 396 was the fix to confiscating grandfathered mags and it failed as an illegal taking of private property. Do you not see the trail and correlation here?

(There was no content in SB 396 that addressed the nuisance possession of large-capacity magazines, SB 396 only addressed required disposition and criminal possession)

Sir,

This is going to be my last reply, at least until you review the Penal Code sections we previously duscussed. I think that you're talking off the top of your head without having done your homework.

Please see my comments appearing in your quote above.

taperxz
11-08-2013, 11:49 AM
Sir,

This is going to be my last reply, at least until you review the Penal Code sections we previously duscussed. I think that you're talking off the top of your head without having done your homework.

Please see my comments appearing in your quote above.

I did, and your assumptions are wrong. An illegal taking of property legally owned is in fact illegal, regardless of what you posted.

Mags purchased before the ban are NOT in the nuisance category. Mags purchased, manufactured, imported after the ban are in the nuisance category. Please stop spreading FUD.

My information comes from Michel and Assoc. NRA's legal team.

what2be
11-08-2013, 12:16 PM
Wow, some of these responses were helpful but some make me believe the poster(s) are the same theory conspirasts that think we never landed on the moon and it was all a setup...

Anyway, for those that need every detail, here they are.

I was working at a customers site until around 11am and just left to go to my next customer and as I drove away I came to a intersection and I stopped at the stop sign. When I looked to my right I noticed a sherrif's truck with his lights on and he was approaching a white pickup that he had pulled over. I crossed the intersection continued driving and about a mile later (a few minutes or so) I noticed the same sherrifs truck behind me with his lights on. He pulled me over and asked if I had crossed the median barrier back on myrtle avenue, which I responded that I had not even been near that area, I was working near there but had just left a clients site where I had been working for the last hour and he was more than welcome to call the client and verify this. He obviously pulled me over because I drive a WHITE PICKUP as well, and he had me confused with someone else. After taking my dl and registration he was gone for approx 10 minutes and then came back and asked me to get out of the vehicle. He then searched my vehicle and while I was outside my truck I asked his partner if he had probable cause to search my vehicle and he replied that his partner had noticed hi-capacity magazines in the seat in the back of the truck (i have a extended cab chevy 3/4 ton work truck) I said ok, and then after taking my magazines to the sherrifs truck he got on his cell phone and after another 15 minutes told me that he just got off the phone with the firearms expert in the District Attorney's office and that as of Jan 1st, 2013 possession was a felony and I had committed a felony by possessing them and that he was seizing them under the nuisance law that applies to hi-cap magazines. He told me he wasnt going to arrest me and there would be nothing in the mail but he was going to submit his report to the DA's office for prosecution if they deemed it appropriate and if I wanted to contest it I could contact them.

I went to the sherrifs office today and asked for the watch commander and she asked me what for and when I explained why I was there and the officers name and she told me I needed to speak with the property clerk and that I needed to go sit down and wait while she contacted her. After a 45 minute wait I was finally told that the officer that seized my magazines was off until tuesday and I would have to come back then. So now on Tuesday I will make another trip to the Sherrifs dept and see what happens.

So to answer some of your questions, NO, I am not trolling, NO, no loose ships sank this ship because I had placed the magazines in the back of my truck on the seat the night before while at my business (where I keep these items) and also had removed other things as well that I no longer have a need for and was planning on dropping off to my local gun store, Old West Shootery, to donate. Most of the items were things like holsters, 10 round pistol mags, etc, but let me be clear, I had no plans to donate the saiga 12 magazines, I was going to keep them at my house until I went out of state next week ( i have another residence in nevada) and sell them. I also had a large blanket that I keep in my truck covering most of the items but I did not make a concerted effort to "hide" or cover them since I didnt believe I was in violation of any laws.

what2be
11-08-2013, 12:19 PM
I did, and your assumptions are wrong. An illegal taking of property legally owned is in fact illegal, regardless of what you posted.

Mags purchased before the ban are NOT in the nuisance category. Mags purchased, manufactured, imported after the ban are in the nuisance category. Please stop spreading FUD.

My information comes from Michel and Assoc. NRA's legal team.

Can you please post the nuisance law as it is stated in the penal code because my understanding was that ANY mag, regardless of date of mfg, that was capable of holding more than 10 rounds could be seized and destroyed under that law.

jpscoot_21
11-08-2013, 12:20 PM
I remember the ordinance calling the "hi-capacity" mags a nuisance and allowing officers to confiscate. I thought it was only in L.A, though.

RickD427
11-08-2013, 12:25 PM
I remember the ordinance calling the "hi-capacity" mags a nuisance and allowing officers to confiscate. I thought it was only in L.A, though.

Sir,

The L.A. City Attorney (Chuck Michel's former law partner) did draft a proposed city ordinance addressing "Nuisance" magazines. He did this in an effort to "clean up" some of the legal problems with the state law that has done the same thing since 2012.

The city ordinance has not yet passed. The state law remains in effect.

nick
11-08-2013, 12:25 PM
Yes, I've followed those bills very closely.

They have nothing to do with the issue we're discussing here.

The law defining large-capacity magazines as nuisances has been on the books since January 1 of 2012.

I still have to think that you're not grasping the difference between the "illegal" possession of a magazine and the "nuisance" possession of a magazine. You seem to be treating them as the same, and they're not.

I also suspect that you haven't read the statutes that you're trying to discuss here.

1) Please read Penal Code section 32390. It will define large-capacity magazines as "Nuisances" and subject them to the provisions of section 18010.

2) Next read section 18010. It contains three provisions. The first allows a prosecutor to sue a person who manufactures, sells, etc.. a large-capacity magazine. The second provision allows LEOs to seize and destroy large-capacity magazines. The third defines the manner of destruction.

3) There are exceptions to the "Nuisance" provisions. They are contained in section 17700-17745 and in 32400-32450. When you examine each of the exceptions, you would expect to find one covering magazines lawfully possessed prior to 1-1-2000, but you'll find no such exemption in the code. (We've debated the reasons for this in other threads).

None of this was affected by any of this year's legislation.

Let's take a look at them, it never hurts. The only exceptions I found that apply to mere mortals are these:

32415. Section 32310 does not apply to the loan of a lawfully
possessed large-capacity magazine between two individuals if all of
the following conditions are met:
(a) The person being loaned the large-capacity magazine is not
prohibited by Chapter 1 (commencing with Section 29610), Chapter 2
(commencing with Section 29800), or Chapter 3 (commencing with
Section 29900) of Division 9 of this title or Section 8100 or 8103 of
the Welfare and Institutions Code from possessing firearms or
ammunition.
(b) The loan of the large-capacity magazine occurs at a place or
location where the possession of the large-capacity magazine is not
otherwise prohibited, and the person who lends the large-capacity
magazine remains in the accessible vicinity of the person to whom the
large-capacity magazine is loaned.
...
32420. Section 32310 does not apply to the importation of a
large-capacity magazine by a person who lawfully possessed the
large-capacity magazine in the state prior to January 1, 2000,
lawfully took it out of the state, and is returning to the state with
the same large-capacity magazine.

I.e. you can loan them and re-import them into the state, but once you possess them in the state, the state can steal them as "nuisance", and without any compensation.

This needs to be fought, as it sets a dangerous precedent (one of many).

If I made a mistake in my reading of these so-called laws, someone, please, correct me.

RickD427
11-08-2013, 12:32 PM
Let's take a look at them, it never hurts. The only exceptions I found that apply to mere mortals are these:



I.e. you can loan them and re-import them into the state, but once you possess them in the state, the state can steal them as "nuisance", and without any compensation.

This needs to be fought, as it sets a dangerous precedent (one of many).

If I made a mistake in my reading of these so-called laws, someone, please, correct me.

Nick,

You get an "A". I'm glad at least one person did their homework on this one.

When you look at the exemptions, you'll see they were all written in the context of SB23. There was no need back then to create an "exemption" for pre-2000 magazines because there was no prohibition.

Then we had the 2012 re-codification which created section 32390 defining large-capacity magazines as a "Nuisance". The re-codificaton "borrowed" the list of exemptions previously in effect, and therefore there is none for pre-2000 magazines. I doubt this was done deliberately, but it was done.

I serously doubt this provision would stand up in an objective court review. It very much seems to me to be an illegal "taking" under the Fifth Amendment. But there's been no challenge, and so the law stands.

taperxz
11-08-2013, 12:43 PM
Nick,

You get an "A". I'm glad at least one person did their homework on this one.

When you look at the exemptions, you'll see they were all written in the context of SB23. There was no need back then to create an "exemption" for pre-2000 magazines because there was no prohibition.

Then we had the 2012 re-codification which created section 32390 defining large-capacity magazines as a "Nuisance". The re-codificaton "borrowed" the list of exemptions previously in effect, and therefore there is none for pre-2000 magazines. I doubt this was done deliberately, but it was done.

I serously doubt this provision would stand up in an objective court review. It very much seems to me to be an illegal "taking" under the Fifth Amendment. But there's been no challenge, and so the law stands.

Keep in mind that the rules to the re-codification was that none of theses changes were allowed to actually change or alter the meaning of the law as it stood.

Illegal taking under the 5th?

epilepticninja
11-08-2013, 12:43 PM
You got it.

Your first paragraph is a pretty accurate assessment.

Your second paragraph invites a whole bunch of questions about the supremacy clause and the applicability of a state statute to federal property. I'm having a hard time understanding why a LEO would do such a thing. We're entrusted with some amount of discretion and there is an expectation that it will be appropriately used.

I also need to point out, this whole thing has not yet been tested in court.

The L.A. City Attorney, and former law partner of Chuck Michel, has also taken on this issue and drafted a proposal for city ordinance in order to "clean up" some of the problems with the law.

Thanks for answer, and stay safe out there. OP, out of sight, out of mind.

Librarian
11-08-2013, 12:56 PM
Keep in mind that the rules to the re-codification was that none of theses changes were allowed to actually change or alter the meaning of the law as it stood.

Illegal taking under the 5th?

Recodification didn't change content here; SB 23 made the change. It just wasn't obvious until the recodification split it out.

HUTCH 7.62
11-08-2013, 12:57 PM
I agree. I think there is more to this than the OP is telling.

The OP does live in the Emerald Triangle. Lots of Dopers and Cartel with some serious Hardware up in them hills.

I can see the cops seizing just about firearm related just to get of the streets

meaty-btz
11-08-2013, 1:12 PM
The OP does live in the Golden Triangle. Lots of Dopers and Cartel with some serious Hardware up in them hills.

I can see the cops seizing just about firearm related just to get of the streets

The cops would be better served going up into the hills where the Dopers and Cartels are with the serious hardware and actually doing something about them rather than harassing non-threatening law abiding citizens.

IVC
11-08-2013, 1:21 PM
I serously doubt this provision would stand up in an objective court review. It very much seems to me to be an illegal "taking" under the Fifth Amendment. But there's been no challenge, and so the law stands.

So, to clarify, the sheriff was within his right to confiscate, but he was wrong to call it a "felony" (?) The OP might become the test case to push this issue to courts and challenge this particular provision under either 5th or 2nd amendments provided there is no "color" in the case.

Now a question. Does the plain sight rule in a car apply when dealing with "nuisance" when no law is actually broken and is a large magazine *body* sufficient to assert that it is a "large capacity magazine" vs., e.g., just a 10/30 variant?

jben
11-08-2013, 2:07 PM
The OP does live in the Golden Triangle. Lots of Dopers and Cartel with some serious Hardware up in them hills

That would be the Emerald Triangle;)

HUTCH 7.62
11-08-2013, 3:36 PM
The cops would be better served going up into the hills where the Dopers and Cartels are with the serious hardware and actually doing something about them rather than harassing non-threatening law abiding citizens.

True... but,
A couple of cops in the woods are gonna just get killed. Theses days the problem is better left to a military type force.

HUTCH 7.62
11-08-2013, 3:37 PM
That would be the Emerald Triangle;)

yes it would:o

LoneYote
11-08-2013, 3:40 PM
So, to clarify, the sheriff was within his right the language of the law to confiscate, but he was wrong to call it a "felony" (?) and to perform an illegal taking of legal property. The OP might become the test case to push this issue to courts and challenge this particular provision under either 5th or 2nd amendments provided there is no "color" in the case.

That is the gist of all this... However, if anyone but the finest legal mind on the whole planet were to bring suit for this they would most like be harassed, attacked, and shunned by the community. After all.... only the chosen "right people" can file cases and they will always win because they are the "right people" even though they tend to lose....

meaty-btz
11-08-2013, 3:45 PM
True... but,
A couple of cops in the woods are gonna just get killed. Theses days the problem is better left to a military type force.

It got that way because it was ignored or called to difficult in the first place.

The ludicrous notion of the war on drugs when we actively avoid actually doing productive things in regards to the war and instead.. shoot up innocent and uninvolved people, harass citizens, and other sundry nonsense.

This is true across the board where selective "safer" actions are chosen over meaningful productive actions in general policing.

I just shrug when people say but they are all entrenched up there. Good, go dig them out, hell call in the national guard if you are serious about the "war" and focus on them and stop all this other non-effective harmful nonsense but that requires RISK to the "protectors" so they opt out. IF we were serious NFS, DEA, LOCAL, and STATE .MIL would be doing flyovers and daily ops till they rooted them out of the rugged areas and killed them or arrested them all.

Instead they squat freely, pollute the crap out of the place, and pose a major threat to hikers and citizens.. but hey as long as they get to go home at night who cares if a hiker dispersal.

I've seen the result of active and effective police action in a joint operation with federal agencies in the war on drugs. It turned a neighborhood from a ghetto from hell where people were shooting into houses to a nice place to raise kids. One bad apple spoils the bunch works for a lot of things. But the op was HIGH RISK, they had to go after REAL bad guys with guns and the will to use them.

HUTCH 7.62
11-08-2013, 4:11 PM
It got that way because it was ignored or called to difficult in the first place.

The ludicrous notion of the war on drugs when we actively avoid actually doing productive things in regards to the war and instead.. shoot up innocent and uninvolved people, harass citizens, and other sundry nonsense.

This is true across the board where selective "safer" actions are chosen over meaningful productive actions in general policing.

I just shrug when people say but they are all entrenched up there. Good, go dig them out, hell call in the national guard if you are serious about the "war" and focus on them and stop all this other non-effective harmful nonsense but that requires RISK to the "protectors" so they opt out. IF we were serious NFS, DEA, LOCAL, and STATE .MIL would be doing flyovers and daily ops till they rooted them out of the rugged areas and killed them or arrested them all.

Instead they squat freely, pollute the crap out of the place, and pose a major threat to hikers and citizens.. but hey as long as they get to go home at night who cares if a hiker dispersal.

I've seen the result of active and effective police action in a joint operation with federal agencies in the war on drugs. It turned a neighborhood from a ghetto from hell where people were shooting into houses to a nice place to raise kids. One bad apple spoils the bunch works for a lot of things. But the op was HIGH RISK, they had to go after REAL bad guys with guns and the will to use them.

I feel the same way. At this point in the game however I feel nothing will really be done up there until a hikers and mountain bikers start getting brutally murdered and the public outcry begins.

Back when trains still ran up to Eureka, It was actually common for train crews to find shot up cars with a murder victim or two in the car along the Right Of Way in the Eel river Canyon around Island Mountain. Most these murders as far as I know have never been solved.

RickD427
11-08-2013, 9:32 PM
So, to clarify, the sheriff was within his right to confiscate, but he was wrong to call it a "felony" (?) The OP might become the test case to push this issue to courts and challenge this particular provision under either 5th or 2nd amendments provided there is no "color" in the case.

Now a question. Does the plain sight rule in a car apply when dealing with "nuisance" when no law is actually broken and is a large magazine *body* sufficient to assert that it is a "large capacity magazine" vs., e.g., just a 10/30 variant?

IVC,

I think that you're right on point with your first paragraph, particularly with regard to the Fifth Amendment takings claim. I'm not so sure about the Second Amendment claim. We still don't have any clear case law establishing a Second Amendment right to possess the types of weapons those magazines were designed for.

As a practical matter, there really isn't any application of the plain sight rule in cases where there are no criminal charges. The U.S. Supreme Court reluctantly created the "Exclusionary Rule" out of recognition that there really was no other viable method of preventing improper police conduct. The remedy where law enforcement officers conduct improper search and seizure is the exclusion of the evidence from trial. The only point here, is that there is no trial from which to exclude the evidence.

There may be the availability of a civil lawsuit, but that's a really tough road. There aren't any real damages to claim (the value of a "Nuisance" magazine is basically zero, because it's a nuisance), the cost to initiate the lawsuit is kinda high, and (at least for the first case), the officers will claim qualified immunity.

DisgruntledReaper
11-08-2013, 10:42 PM
This whole nuisance law is BS, basically ALL magazines I own are 'std capacity' which means they were std with the firearms WHEN I BOUGHT THEM..... and for some, there are no 'low cap' mags, so all I have now are labeled 'hi cap' ....so EVERY TIME I go to the range I risk losing my magazine to this POS law.... a law which contradicts another.... 'pre 2000 mags .....legal' BUT 'ALL hicap mags are nuisances and can be confiscated ..... BASICALLY without recourse and is ILLEGAL because as it has been stated 'POSSESSION IS NOT ILLEGAL' ....... IF some cop tries to take my mags and make me give up a $100 mag due to him wanting it , I will get a receipt,badge number, whatever it takes and will pursue it as hard as I can and they can either reimburse me, give them back or if destroyed I want to see or be there or I will find a way 'under the law' to sue their asses for the theft of my property....and everyone else who has been burned on this... there should be a class action lawsuit started....cannot believe there has not....

and how can they 'decide' NOT to destroy them.... they MUST or MUST NOT)and return the property..... oh wait ,they just want them for themselves and are tooo cheap to BUY their own.......

It is like you can own a ferrari if it is 'xx' years old and drive it ,but if you ARE SEEN BY A COP DRIVING IT ON THE ROAD it is a 'nuisance and can be confiscated' .....to be 'supposedly destroyed'

This place is SUCH a POFS and i am born here....... this place needs an enema more and more...

DisgruntledReaper
11-08-2013, 10:50 PM
It got that way because it was ignored or called to difficult in the first place.

The ludicrous notion of the war on drugs when we actively avoid actually doing productive things in regards to the war and instead.. shoot up innocent and uninvolved people, harass citizens, and other sundry nonsense.

This is true across the board where selective "safer" actions are chosen over meaningful productive actions in general policing.

I just shrug when people say but they are all entrenched up there. Good, go dig them out, hell call in the national guard if you are serious about the "war" and focus on them and stop all this other non-effective harmful nonsense but that requires RISK to the "protectors" so they opt out. IF we were serious NFS, DEA, LOCAL, and STATE .MIL would be doing flyovers and daily ops till they rooted them out of the rugged areas and killed them or arrested them all.

Instead they squat freely, pollute the crap out of the place, and pose a major threat to hikers and citizens.. but hey as long as they get to go home at night who cares if a hiker dispersal.

I've seen the result of active and effective police action in a joint operation with federal agencies in the war on drugs. It turned a neighborhood from a ghetto from hell where people were shooting into houses to a nice place to raise kids. One bad apple spoils the bunch works for a lot of things. But the op was HIGH RISK, they had to go after REAL bad guys with guns and the will to use them.

A thought on this-Well I suppose a group of decent hunters could clean up the place if it got 'bad enough' , i mean hunters who track and hunt are basically snipers in practice, just their 'game' is for food animals mostly..... just a thought:innocent::whistling:

TempleKnight
11-09-2013, 9:49 AM
This is from the current DOJ website; it's in the AWB ID guide. I carry it with me in case I need to have this discussion with amateur lawyers in the field.

"Large Capacity Magazine Restrictions and Exemptions (Penal Code Section 12020)

Possession of large capacity magazines, whether by peace officers or private citizens, is not controlled."

http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/awguide.pdf?

Renumbering was not supposed to change the meaning of the law. The official, published opinion is that possession in NOT controlled.

freonr22
11-09-2013, 10:21 AM
This is from the current DOJ website; it's in the AWB ID guide. I carry it with me in case I need to have this discussion with amateur lawyers in the field.

"Large Capacity Magazine Restrictions and Exemptions (Penal Code Section 12020)

Possession of large capacity magazines, whether by peace officers or private citizens, is not controlled."

http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/awguide.pdf?

Renumbering was not supposed to change the meaning of the law. The official, published opinion is that possession in NOT controlled.
Please disregard the guide. It is not law. It is wrong . It is Inaccurate . It is full of fud. Waits for Bwiese

RickD427
11-09-2013, 10:58 AM
This is from the current DOJ website; it's in the AWB ID guide. I carry it with me in case I need to have this discussion with amateur lawyers in the field.

"Large Capacity Magazine Restrictions and Exemptions (Penal Code Section 12020)

Possession of large capacity magazines, whether by peace officers or private citizens, is not controlled."

http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/awguide.pdf?

Renumbering was not supposed to change the meaning of the law. The official, published opinion is that possession in NOT controlled.

Sir,

Please check your facts before posting.

The DOJ guide that you cited in support of your proposition that large-capacity magazines were controlled, was authored in November of 2001 (please check that date on its cover).

Penal Code section 32390, defining large-capacity magazines as nuisances, and allowing for their seizure and destruction became effective in January 2012.

Please don't cite a twelve year old document as an authority without checking to make sure it is still current.

You're quite correct that the renumbering commission was not supposed to make any substantive changes in the law, but it appears that they did. But their product was passed into law and that's where it sits at the moment. Those facts may create a basis for a challenge, but so far no one has done so.

taperxz
11-09-2013, 11:32 AM
Sir,

Please check your facts before posting.

The DOJ guide that you cited in support of your proposition that large-capacity magazines were controlled, was authored in November of 2001 (please check that date on its cover).

Penal Code section 32390, defining large-capacity magazines as nuisances, and allowing for their seizure and destruction became effective in January 2012.

Please don't cite a twelve year old document as an authority without checking to make sure it is still current.

You're quite correct that the renumbering commission was not supposed to make any substantive changes in the law, but it appears that they did. But their product was passed into law and that's where it sits at the moment. Those facts may create a basis for a challenge, but so far no one has done so.

Aren't you speculating also Rick?

You keep using the 5th and yet, the manner in which they would confiscate as a nuisance, would be a 4A matter.

As you have mentioned there seems to be a lack of clarity here. (no court precedence)

Initial seizure would be done under 4A. Seizure of a legally owned mag (pre ban) would be a 5A issue.

sarabellum
11-09-2013, 11:33 AM
The deputies acted lawfully in seizing the large-capacity magazine. The law defines large-capacity magazines as "nuisances" and authorizes their seizure and destruction. Please refer to Penal Code section 32390 for the details.



Not without due process. No statute provides for the seizure of the magazines. The law provides for an injunctive action.

Penal Code section 18010 provides "(a) The Attorney General, district attorney, or city attorney may bring an action to enjoin the...possession of, any item that constitutes a nuisance under any of the following provisions...(20) Section 32390, relating to a large-capacity magazine."

Penal Code sec. 32390 provides in part, "...any large-capacity magazine is a nuisance and is subject to Section 18010." The prosecutor must first file suit seeking to prevent our poster from possessing the alleged magazine.

RickD427
11-09-2013, 12:11 PM
Sarabellum,

You've only quoted part of the section. You need to keep reading. 18010(a) allows a prosecutor to file a legal action. You've correctly cited the law on that point.

It's section 18010 (b) that allows for the confiscation and destruction of the large capacity magazines. Here is the text of that part of the law.

"(b) These weapons shall be subject to confiscation and summary
destruction whenever found within the state."

The two subsections are independent of each other. There no content in subsection (b) that makes it dependent on subsection (a). The prosecutor can sue, and the police can seize. Different options here.

I strongly suspect that's why the sheriff's deputies in the OP's original posting seized the magazines.

We're starting to go in circles here. This was all covered back in Post #41.

TempleKnight
11-09-2013, 12:15 PM
Sir,

Please check your facts before posting.

The DOJ guide that you cited in support of your proposition that large-capacity magazines were controlled, was authored in November of 2001 (please check that date on its cover).

Penal Code section 32390, defining large-capacity magazines as nuisances, and allowing for their seizure and destruction became effective in January 2012.

Please don't cite a twelve year old document as an authority without checking to make sure it is still current.

You're quite correct that the renumbering commission was not supposed to make any substantive changes in the law, but it appears that they did. But their product was passed into law and that's where it sits at the moment. Those facts may create a basis for a challenge, but so far no one has done so.

It's current until the LAW is changed. The language change due to renumbering will be challenged at some point.

RickD427
11-09-2013, 12:17 PM
Aren't you speculating also Rick?

You keep using the 5th and yet, the manner in which they would confiscate as a nuisance, would be a 4A matter.

As you have mentioned there seems to be a lack of clarity here. (no court precedence)

Initial seizure would be done under 4A. Seizure of a legally owned mag (pre ban) would be a 5A issue.

Taperxz,

No speculation. The text of the law is pretty clear.

You're right about there being a complete lack of case law on the point. I personally suspect the law would not withstand a challenge on Fifth Amendment grounds (as being a taking of property without compensation).

You could also make a Fourth Amendment claim that it would be an unreasonable seizure. I think the Fifth Amendment avenue would be a lot easier.

AlexDD
11-09-2013, 12:27 PM
Were 20 round Saiga 12 gauge magazines available in the US before 2000?

sarabellum
11-09-2013, 12:43 PM
Sarabellum,

You've only quoted part of the section. You need to keep reading. 18010(a) allows a prosecutor to file a legal action. You've correctly cited the law on that point.

It's section 18010 (b) that allows for the confiscation and destruction of the large capacity magazines. Here is the text of that part of the law.

"(b) These weapons shall be subject to confiscation and summary
destruction whenever found within the state."

The two subsections are independent of each other. There no content in subsection (b) that makes it dependent on subsection (a). The prosecutor can sue, and the police can seize. Different options here.

I strongly suspect that's why the sheriff's deputies in the OP's original posting seized the magazines.

We're starting to go in circles here. This was all covered back in Post #41.

Not without due process as subsection 18010 (c) indicates, " (c) These weapons shall be destroyed in the same manner described in Section 18005, except that upon the certification of a judge or of the district attorney that the ends of justice will be served thereby, the weapon shall be preserved until the necessity for its use ceases." All provisions of a statute must be read together. There must be due process prior to permanent deprivation of property. No statute providing for the summary seizure of property without due process will survive scrutiny under the 14th Amendment.

The Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the status of 'property' within the meaning of the Due Process Clause. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978). Those procedural constraints require that the property's owner "be given notice and an 'opportunity to be heard at a meaningful time and in a meaningful manner.' " Id. citing Schneider v. County of San Diego, 28 F.3d 89, 92 (9th Cir.1994) (as amended). The OP has a right to be free from the wrongful taking of his property by the government, whether analyzed under the 5th or 14th Amendment. Penn Central Transp. Co. v. City of New York, 438 US 104, 124 (1978).

Tincon
11-09-2013, 12:49 PM
The law defining large-capacity magazines as nuisances has been on the books since January 1 of 2012.

A couple problems with your theory.

First, if you were correct, a peace officer could do more than confiscate the magazine. He could arrest the person who possessed or "maintained" the large-capacity magazine for violation of PC § 372.

But I don't think you are correct, the anomalous language of Penal Code § 32390 notwithstanding. It seems that the purported effect of declaring large-capacity magazines to be nuisances was unintended by the legislature. Remember, the re-organization of the weapons section of the penal code was to have no substantive effect.

However even if it was intended, I'm not sure the legislature can declare something to be a nuisance if that thing does not meet the requirements of Cal. Civ. Code § 3479.


The courts of this state, have refused to sanction the granting of injunctions on behalf of the state merely by a judicial extension of the definition of 'public nuisance.' ... [They have] refused to grant injunctions on behalf of the state except where the objectionable activity can be brought within the terms of the statutory definition of public nuisance.

People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1107, 929 P.2d 596 (1997)

§ 3479 gives the definition of a public nuisance:

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

Cal. Civ. Code § 3479 (West)


If possession was a otherwise a crime, even an infraction, this would work, or if possession affected the public in some other way, but as the law stands, there is no reason for magazine possession to be enjoined. There is plenty of room to argue that § 32390 does expand the statutory definition to include these magazines. But I don't think the legislature has the power to just declare anything to be a nuisance, but even if it did, and did so intentionally, there would be numerous constitutional problems.

A public nuisance statute may be enforced only in a manner consistent with constitutional protections.

Welton v. City of Los Angeles, 18 Cal. 3d 497, 507, 556 P.2d 1119, 1124 (1976)

And there are plenty here, from due process and property rights, to Second Amendment issues. Overbredth is going to be an issue as well, and others. Not sure your theory works, but it is another example of the mess the legislature has made of our laws.

madjack956
11-09-2013, 1:29 PM
I need to hear more of this guys story. Riding around with a 20 round mag, or any mag, (apparently) in full view? For a gun you don't even own anymore? If this is true its begging for trouble. As far as demanding the 10 rounders be returned, I would let sleeping dogs lie and be happy that they don't make more of an issue of the 20 rounder. Humbolt is more rural that socal so maybe the gun culture is more accepted (midwestern) there. However, LE is no doubt always on the prowl for stuff like this in that area due to the rampant weed production and trafficking problem. If i am the OP I walk away from the 10 rounders and call it good, regardless of what legal basis I think I have for getting them back.

The fact that gunowners make statements like this shows how much ground the anti's have conquered.

My statement isn't meant as a slight on you Shorthair. It just struck me that most of us now think like this.

Carrying an empty mag in a car (especially with no firearm present) should be no more of a consideration than a can of Pepsi.

meaty-btz
11-09-2013, 2:05 PM
A thought on this-Well I suppose a group of decent hunters could clean up the place if it got 'bad enough' , i mean hunters who track and hunt are basically snipers in practice, just their 'game' is for food animals mostly..... just a thought:innocent::whistling:

Long-Pig Hunting?

RickD427
11-09-2013, 2:22 PM
A couple problems with your theory.

First, if you were correct, a peace officer could do more than confiscate the magazine. He could arrest the person who possessed or "maintained" the large-capacity magazine for violation of PC § 372.

But I don't think you are correct, the anomalous language of Penal Code § 32390 notwithstanding. It seems that the purported effect of declaring large-capacity magazines to be nuisances was unintended by the legislature. Remember, the re-organization of the weapons section of the penal code was to have no substantive effect.

However even if it was intended, I'm not sure the legislature can declare something to be a nuisance if that thing does not meet the requirements of Cal. Civ. Code § 3479.



§ 3479 gives the definition of a public nuisance:



If possession was a otherwise a crime, even an infraction, this would work, or if possession affected the public in some other way, but as the law stands, there is no reason for magazine possession to be enjoined. There is plenty of room to argue that § 32390 does expand the statutory definition to include these magazines. But I don't think the legislature has the power to just declare anything to be a nuisance, but even if it did, and did so intentionally, there would be numerous constitutional problems.



And there are plenty here, from due process and property rights, to Second Amendment issues. Overbredth is going to be an issue as well, and others. Not sure your theory works, but it is another example of the mess the legislature has made of our laws.

Tincon,

My complements to your research, but please consider the following.

A "Nuisance" is different from a "Public Nuisance." In fact they're defined separately in Civil Code sections 3479 and 3480.

Penal Code section 372 (Maintaining a Public Nuisance) contains specific elements that are not present when a person simply possesses a large-capacity magazine, therefore the possession does not mean that a violation of section 372 is present. In the situation described by the OP, I see a basis to seize his large-capacity magazine under 32390. I don't see any violation of section 372.

Please check out the provision of Civil Code section 3479, as you have quoted, the legislature could easily make the argument that a large-capacity magazine is "injurious to health" due to its capacity to inflict greater harm to a shooting victim (20 rounds hurt more than 10 rounds). That was the same logic used to ban "assault weapons."

I very much agree with you that the re-organization folks acted in excess of their mandate. However that doesn't automatically invalidate their product. It was passed into law. It will take action by a court, or by the legislature, to fix it. That hasn't happened yet.

RickD427
11-09-2013, 2:33 PM
Not without due process as subsection 18010 (c) indicates, " (c) These weapons shall be destroyed in the same manner described in Section 18005, except that upon the certification of a judge or of the district attorney that the ends of justice will be served thereby, the weapon shall be preserved until the necessity for its use ceases." All provisions of a statute must be read together. There must be due process prior to permanent deprivation of property. No statute providing for the summary seizure of property without due process will survive scrutiny under the 14th Amendment.

The Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the status of 'property' within the meaning of the Due Process Clause. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978). Those procedural constraints require that the property's owner "be given notice and an 'opportunity to be heard at a meaningful time and in a meaningful manner.' " Id. citing Schneider v. County of San Diego, 28 F.3d 89, 92 (9th Cir.1994) (as amended). The OP has a right to be free from the wrongful taking of his property by the government, whether analyzed under the 5th or 14th Amendment. Penn Central Transp. Co. v. City of New York, 438 US 104, 124 (1978).

Sarabellum,

You're quite correct that 18010(c) applies, but please not that neither section 18010(c), nor it's referenced section 18005 provide any effective "due process." Their provisions are procedural. Section 18005 is kinda long, but there is the text:

"18005. (a) An officer to whom weapons are surrendered under Section
18000, except upon the certificate of a judge of a court of record,
or of the district attorney of the county, that the retention thereof
is necessary or proper to the ends of justice, may annually, between
the 1st and 10th days of July, in each year, offer the weapons,
which the officer in charge of them considers to have value with
respect to sporting, recreational, or collection purposes, for sale
at public auction to persons licensed pursuant to Sections 26700 to
26915, inclusive, to engage in businesses involving any weapon
purchased.
(b) If any weapon has been stolen and is thereafter recovered from
the thief or the thief's transferee, or is used in a manner as to
constitute a nuisance under Section 19190, 21390, 21590, or 29300, or
subdivision (a) of Section 25700 without the prior knowledge of its
lawful owner that it would be so used, it shall not be offered for
sale under subdivision (a) but shall be restored to the lawful owner,
as soon as its use as evidence has been served, upon the lawful
owner's identification of the weapon and proof of ownership, and
after the law enforcement agency has complied with Chapter 2
(commencing with Section 33850) of Division 11 of Title 4.
(c) If, under this section, a weapon is not of the type that can
be sold to the public, generally, or is not sold under subdivision
(a), the weapon, in the month of July, next succeeding, or sooner, if
necessary to conserve local resources, including space and
utilization of personnel who maintain files and security of those
weapons, shall be destroyed so that it can no longer be used as a
weapon subject to surrender under Section 18000, except upon the
certificate of a judge of a court of record, or of the district
attorney of the county, that the retention of it is necessary or
proper to the ends of justice.
(d) No stolen weapon shall be sold or destroyed pursuant to
subdivision (a) or (c) unless reasonable notice is given to its
lawful owner, if the lawful owner's identity and address can be
reasonably ascertained."


Please note from all of the language, the only requirement applying to a seized large-capacity magazine is that it be destroyed between July 1-10. Not much "due process" in that.

I agree with you that the law would not withstand a challenge, on a whole bunch of grounds, but challenge has not yet been made, and the winner is not yet known.

You seem to be declaring victory before the fight.

sarabellum
11-09-2013, 2:58 PM
Sarabellum,

You're quite correct that 18010(c) applies, but please not that neither section 18010(c), nor it's referenced section 18005 provide any effective "due process." Their provisions are procedural.

I agree with you that the law would not withstand a challenge, on a whole bunch of grounds, but challenge has not yet been made, and the winner is not yet known.

You seem to be declaring victory before the fight.

A statute need not expressly provide for a due process hearing. The Constitution is fundamental law, binding on all governmental actors. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Any law in conflict with the Constitution will be struck down. Yick Wo v. Hopkins, 118 U.S. 356, 363 (1886). The due process clause of the 14th Amendment contains both a procedural guarantee (a deprivation hearing) and a substantive guarantee (the prohibition against the taking of private property). The OP has at least 2 constitutional challenges under the 14th Amendment- one for the lack of a deprivation hearing and the other for the taking of his property.

TeddyBallgame
11-09-2013, 3:24 PM
i wonder if you could be charged with "giving" if you allow the officers to take themsounds more like law enforcement "TAKING" versus someone "giving" IMHO

as I understand it, the "nuisance" statute is law enforcements "loophole" into confiscating +10 magazines, regardless of when they were obtained

I would think people who have had their magazines even before the 01/01/2000 ban could have magazines confiscated, without charge, of course, using he nuisance law

it's one of the reasons I bought a couple of 10 round magazines for my Browning 9mm Hi-Power, which, when I purchased new came with 2-13 round magazines...I just leave these in the safe and use the 10 rounders when I take it to the range...not interested in dealing with the "loophole", and, it's language, or, actual meaning :shrug:

CMonfort
11-09-2013, 3:54 PM
Our office is currently working with the California Law Revision Commission on behalf of the NRA to address this problem, which indeed arose as a result of the nonsubstantive reorganization.

Librarian
11-09-2013, 4:09 PM
Our office is currently working with the California Law Revision Commission on behalf of the NRA to address this problem, which indeed arose as a result of the nonsubstantive reorganization.

A point of disagreement - this is not an artifact of the reorg of the Dangerous Weapons Control laws. The change came about in 1999 with SB23, and simply was not obvious until expressed in the reorg.

IVC
11-09-2013, 4:25 PM
Our office is currently working with the California Law Revision Commission on behalf of the NRA to address this problem, which indeed arose as a result of the nonsubstantive reorganization.

Could you state in simple terms what the law *should* be?

Specifically, are large capacity magazines supposed to remain legal to posses and is Librarian correct (and to what degree) that the nuisance language is a consequence of SB 23 and had been part of the statues all along.

Also, should there be an issue with the Commission, do you plan on taking a court case to strike down the law as it currently stands?

RickD427
11-09-2013, 4:42 PM
A statute need not expressly provide for a due process hearing. The Constitution is fundamental law, binding on all governmental actors. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Any law in conflict with the Constitution will be struck down. Yick Wo v. Hopkins, 118 U.S. 356, 363 (1886). The due process clause of the 14th Amendment contains both a procedural guarantee (a deprivation hearing) and a substantive guarantee (the prohibition against the taking of private property). The OP has at least 2 constitutional challenges under the 14th Amendment- one for the lack of a deprivation hearing and the other for the taking of his property.

Sarabellum,

Now we're in full agreement.

The OP actually has quite a few more challenges than that. I also see a very ripe Fifth Amendment "taking without compensation" claim.

But, a claim is just that, it's only a claim. There still has to be ruling on the claim by the court, or a recognition of the claim by the legislature. Until then, it's only a claim. For the moment, the law still stands.

Ya can't declare victory until the game has been played.

Tincon
11-09-2013, 4:57 PM
My complements to your research, but please consider the following.

A "Nuisance" is different from a "Public Nuisance." In fact they're defined separately in Civil Code sections 3479 and 3480.


You are laboring under a number of misconceptions. I might personally agree with your interpretation, however the California Supreme Court does not. I suggest you read People ex rel. Gallo v. Acuna, a fairly recent Supreme Court case. For example:

In California, the early common law categories of public nuisance, codified in 1872 and still applicable, define anything that is “injurious to health, ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway,” as a nuisance. (Civ. Code, § 3479.)

People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1104, 929 P.2d 596 (1997)

Indeed, it is actually "§ 3479. Nuisance; what constitutes," but according to the Supreme Court, it codifies what were previously common law public nuisances. I'm not sure if you are saying § 3479 does not describe a public nuisance, but if so, you are incorrect.


Penal Code section 372 (Maintaining a Public Nuisance) contains specific elements that are not present when a person simply possesses a large-capacity magazine, therefore the possession does not mean that a violation of section 372 is present. In the situation described by the OP, I see a basis to seize his large-capacity magazine under 32390. I don't see any violation of section 372.


Which elements? I don't know how you can say it's keeping a nuisance but is not violating § 372. Those positions just are not consistent.


Please check out the provision of Civil Code section 3479, as you have quoted, the legislature could easily make the argument that a large-capacity magazine is "injurious to health" due to its capacity to inflict greater harm to a shooting victim (20 rounds hurt more than 10 rounds). That was the same logic used to ban "assault weapons."


They could, but have they? It's crime to own an "assault weapon". It's not a crime to keep a large-capacity magazine, in fact a bill that would have made it a crime failed. Part of the preface to that bill, as I recall, even stated that possession was not currently a crime. By your reasoning, it must be.

ETA: Keeping a public nuisance as defined in Civil Code § 3479 is punishable under PC § 372 (See Ex parte Taylor, 87 Cal. 91, 93, 25 P. 258 (1890))

taperxz
11-09-2013, 5:25 PM
Geez, I need to go to law school.

Tincon
11-09-2013, 5:39 PM
Also if you want to get really technical there is no exception to § 32390 provided in "in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2" for cops. So you better not be running around confiscating large-cap mags if you want to carry them yourself.

Tincon
11-09-2013, 5:40 PM
Geez, I need to go to law school.

I don't recommend it lol.

taperxz
11-09-2013, 5:45 PM
I don't recommend it lol.

Ehh, kids all grown up now. My second career.

Unless that was a personal shot. Then I might rethink. Lol

Tincon
11-09-2013, 5:45 PM
ALSO, speaking of "Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2" I think those exemptions apply to any section which references them (and not just 32310, and they all state). This would include sworn peace officers like RickD427 (§ 32405). It would also include "a person who lawfully possessed the large-capacity magazine in the state prior to January 1, 2000" (§ 32420). Some would disagree, and there is no law yet. But if the exceptions don't apply to pre-2000 possessed magazines, then they don't apply to cop magazines either. And that means that when "the deputies acted lawfully in seizing the large-capacity magazine" they better not have been carrying large-capacity magazines themselves.

Tincon
11-09-2013, 5:47 PM
Ehh, kids all grown up now. My second career.

Unless that was a personal shot. Then I might rethink. Lol

Heh, no by no means a personal shot, I'm sure you would do fine. Just that it's really a meat grinder.

taperxz
11-09-2013, 5:52 PM
Heh, no by no means a personal shot, I'm sure you would do fine. Just that it's really a meat grinder.

What isn't a meat grinder any more except perhaps a Walmart greeter.

I'm on the islands right now and have had to put out more business fires away than I ever deal with when not on vacation. :facepalm:

Maybe Chuck Michel will hire me to open a Bay Area office. :D

OR, maybe not:o. Lol

RickD427
11-09-2013, 6:35 PM
You are laboring under a number of misconceptions. I might personally agree with your interpretation, however the California Supreme Court does not. I suggest you read People ex rel. Gallo v. Acuna, a fairly recent Supreme Court case. For example:



Indeed, it is actually "§ 3479. Nuisance; what constitutes," but according to the Supreme Court, it codifies what were previously common law public nuisances. I'm not sure if you are saying § 3479 does not describe a public nuisance, but if so, you are incorrect.



Which elements? I don't know how you can say it's keeping a nuisance but is not violating § 372. Those positions just are not consistent.



They could, but have they? It's crime to own an "assault weapon". It's not a crime to keep a large-capacity magazine, in fact a bill that would have made it a crime failed. Part of the preface to that bill, as I recall, even stated that possession was not currently a crime. By your reasoning, it must be.

ETA: Keeping a public nuisance as defined in Civil Code § 3479 is punishable under PC § 372 (See Ex parte Taylor, 87 Cal. 91, 93, 25 P. 258 (1890))

Tincon,

You're giving me a lot to respond to, but here we go.

"Nuisance", "Public Nuisance" and "Maintaining a Public Nuisance" are three completely different things. You're treating them as the same, and they're not. Here's the elements of each:

Nuisance - Civil Code Section 3479 - "Anything which is injurious to health, including,
but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of
property, so as to interfere with the comfortable enjoyment of life
or property, or unlawfully obstructs the free passage or use, in the
customary manner, of any navigable lake, or river, bay, stream,
canal, or basin, or any public park, square, street, or highway, is a
nuisance."

Public Nuisance - Civil Code Section 3480 - "A public nuisance
is one which affects at the same time an entire community or
neighborhood, or any considerable number of persons, although the
extent of the annoyance or damage inflicted upon individuals may be
unequal." Please note that a public nuisance
differs from a nuisance in that it must affect "an entire community or neighborhood."

Maintaining a Nuisance - Penal Code Section 372 - "Every person who maintains
or commits any public nuisance, the punishment for which is not otherwise prescribed,
or who willfully omits to perform any legal duty relating to the removal of a public nuisance,
is guilty of a misdemeanor."
This one differs from the definition in that responsibility is placed onto an individual.

The OP was in possession of a large capacity magazine that was defined as a "Nuisance." There was no effect of that possession on an entire community or neighborhood. Therefore it was not a public nuisance, and therefore he has not violated Penal Code section 372.

I do feel a particular need to respond to your following quote:

"It's not a crime to keep a large-capacity magazine, in fact a bill that would have made it a crime failed. Part of the preface to that bill, as I recall, even stated that possession was not currently a crime. By your reasoning, it must be."

Possession of a large capacity magazine is completely legal. I stated so several times in this thread, and have never stated otherwise (please refer to postings 6, 17, 19, and 40). Part of why I am so troubled by the current law is that it authorizes LEOs to seize large capacity magazines that lawfully possessed. I see that as being a problem.

Part of what I find quite frustrating, frankly, is that you don't seem to grasp that point. You seem stuck in the belief that if the magazine is legal, that it can't be seized, or that if the magazine can be seized that it must be illegal. Both points are wrong. The law provides that a completely legally possessed magazine can still be seized as a nuisance. That is the problem.

In a later posting you also very correctly pointed out there is no exemption for a law enforcement officer's large-capacity magazine to be exempted from being a "nuisance." You're right. There is no exemption. Of course I don't see LEO's lining up to seize each others large-capacity magazines, but your point really illustrates the need for a judicial, or legislative, fix to the problem.

On that point, I'll thank Mr. Monfort for joining us in Post #88 and am looking forward to seeing what his office is able to do with the issue. I hope that he'll keep us posted.

Tincon
11-09-2013, 6:58 PM
The OP was in possession of a large capacity magazine that was defined as a "Nuisance." There was no effect of that possession on an entire community or neighborhood. Therefore it was not a public nuisance, and therefore he has not violated Penal Code section 372.

You are using the penal code as support for your argument, which is fine. But you must realize that in our legal system the codified laws are interpreted by the courts, which make their own law. When the CA Supreme Court says a nuisance is anything which is defined as such in the penal or civil code, then so it must be. § 3479 defines a "nuisance".

By your own argument, to be a "nuisance" the object must impact the public: Please check out the provision of Civil Code section 3479, as you have quoted, the legislature could easily make the argument that a large-capacity magazine is "injurious to health" due to its capacity to inflict greater harm to a shooting victim (20 rounds hurt more than 10 rounds). That was the same logic used to ban "assault weapons."

If it does not impact the public, it can't be a nuisance, there can be no injunction:

The courts of this state, have refused to sanction the granting of injunctions on behalf of the state merely by a judicial extension of the definition of 'public nuisance.' ... [They have] refused to grant injunctions on behalf of the state except where the objectionable activity can be brought within the terms of the statutory definition of public nuisance.

People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1107, 929 P.2d 596 (1997)

So again, it's either a public nuisance or it isn't. It isn't a private nuisance, which is something else entirely. I don't really have much interest in trying to prove to you that everyone (myself included) who possesses large capacity magazines, otherwise legally, is guilty of a nuisance crime. But that is the only conclusion consistent with your theory and the opinions of the CA Supreme Court.

CMonfort
11-09-2013, 7:37 PM
A point of disagreement - this is not an artifact of the reorg of the Dangerous Weapons Control laws. The change came about in 1999 with SB23, and simply was not obvious until expressed in the reorg.

I'm familiar with the legislative history and enactment of the relevant code sections. The law was never intended to make pre-ban LCMs a nuisance. The reorganization inadvertently revised the PC to state that all LCMS are nuisances, as opposed to just post-ban LCMs. The issue is quite convoluted, and it is outlined in detail in much greater detail in our letter to the Commission. If we post this to CGL, I will be sure to let you know.

To answer another poster's question, our office is currently pursuing clarification of this issue with the Commission. If for any reason that is unsuccessful, we will advise our clients of their options that that time. As you may be aware, the issue of the ability to purchase/possess standard-capacity magazines in excess of ten rounds is already being litigated in four states in suits that our office and the NRA are involved in, and the issue will soon be litigated here. If 2A protections for standard-capacity magazines are ultimately confirmed by the Supreme Court, they (obviously) may not be deemed a nuisance.

RickD427
11-09-2013, 8:51 PM
You are using the penal code as support for your argument, which is fine. But you must realize that in our legal system the codified laws are interpreted by the courts, which make their own law. When the CA Supreme Court says a nuisance is anything which is defined as such in the penal or civil code, then so it must be. § 3479 defines a "nuisance".

By your own argument, to be a "nuisance" the object must impact the public:

If it does not impact the public, it can't be a nuisance, there can be no injunction:


So again, it's either a public nuisance or it isn't. It isn't a private nuisance, which is something else entirely. I don't really have much interest in trying to prove to you that everyone (myself included) who possesses large capacity magazines, otherwise legally, is guilty of a nuisance crime. But that is the only conclusion consistent with your theory and the opinions of the CA Supreme Court.


Tincon,

Here's my reply and then I'm signing off this thread. We're going in circles here.

I'm not sure which State Supreme Court case you're referring to. If you're aware of a case that interprets PC 18010, please cite it.

If you thinking of a case that may have an application to PC 18010, but doesn't interpret it, then it may be great material for a court fight - but that fight fight hasn't happened yet. Great arguments do not invalidate Penal Code sections. You need an authoritative decision to do that. Again, you're declaring victory before the game has even started.

Injunction - Where are you getting the concept of an injunction from? PC 18010(a) allows a prosecutor to get an injunction. PC 18010(b) allows LEO's to seize. There is no injunction involved in the application of 18010(b). Where was the injunction involved in the OP's case?

I know that you don't like it. I don't like it either, but PC 18010(b) is, at the moment, an effective law. At least one LE agency has applied it, otherwise the OP would not have started this thread.

Tincon
11-10-2013, 2:39 AM
About § 32390.

It reads: Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any large-capacity magazine is a nuisance and is subject to Section 18010.

Well which exceptions in "Article 2 (commencing with Section 32400) of this chapter" do you think apply? None of them? If so, then you would give no meaning to the words "Article 2 (commencing with Section 32400) of this chapter," treating them as mere surplusage. What did your courses on statutory interpretation in the police academy teach you about that?

Omega-man
11-10-2013, 1:28 PM
I really don't like the left's/progressive Dictionary, honestly it makes my head want to explode. The left is always trying to redefine words and we have fallen for it. Hi Capacity magazines are frightening for the uneducated, it invokes images of Arnold or Stalone with bandanna's on their heads.:rant: I digress, can we call them what they are? Standard Cap Mag's for the 10 or less mags are neutered mags and are the real nuisance for what it's worth. Just had to get it off my chest.....

sarabellum
11-10-2013, 2:14 PM
Tincon,

Injunction - Where are you getting the concept of an injunction from? PC 18010(a) allows a prosecutor to get an injunction. PC 18010(b) allows LEO's to seize. There is no injunction involved in the application of 18010(b). Where was the injunction involved in the OP's case?



The injunction must come first. Otherwise, the injunction provision is rendered meaningless, by claiming that law enforcement can permanently confiscate the magazine without any legal proceeding. Statutes which are in pari materia should be read together and harmonized if possible. Johnston v. Sonoma County Agricultural Preservation & Open Space Dist. (App. 1 Dist. 2002) 100 Cal.App.4th 973, as modified, review denied. A statute should be construed with reference to whole system of law of which it is part. People v. Anderson (2002) 28 Cal.4th 767, rehearing denied.

It is the duty of the courts to harmonize statutes on the same subject, giving effect to all parts of all statutes if possible. Medical Bd. of California v. Superior Court (App. 3 Dist. 2001) 88 Cal.App.4th 1001, review denied.

G17GUY
11-10-2013, 2:29 PM
The fact that gunowners make statements like this shows how much ground the anti's have conquered.

My statement isn't meant as a slight on you Shorthair. It just struck me that most of us now think like this.

Carrying an empty mag in a car (especially with no firearm present) should be no more of a consideration than a can of Pepsi.

+1 , lots of left handed dumb MF'ers on this forum.

mt417
11-10-2013, 2:34 PM
You had firearms related items visible, you asked for it. The militarized police are trained to view the public as enemies and they are going to take full advantage of you it doesn't matter what the law says they can do whatever they want even if they know it won't stand up in court.

It's funny though because there was a massive raid out in Trinity county a few years back for growers. The Sherrifs went to the wrong properties and caught people with 30+ rounders for their AKs and didn't care they got to keep them. I've heard many stories like this, even people caught without bullet buttons or even automatics got let go.

The law is not going to protect you, the NRA is not going to protect you they hand over all their member info to the government already. Enjoy your guns while you have them it's only downhill from here as we enter into the new order.

Dvrjon
11-10-2013, 3:39 PM
Rick, your points are well-taken. A couple of quick clarifications...
The law defining large-capacity magazines as nuisances has been on the books since January 1 of 2012.
The nuisance language existed prior to the re-codification of Penal Code in 2010 (effective 1/01/2011; operational on 1/1/2012). It was a torturous construction, but it existed.

What was lost in the re-codification was the specific language which grandfathered pre-2000 large capacity magazines. The effect of grandfathering appeared to allow possession and to set those magazines aside from the nuisance provisions of the code. That rendered the PC 18010 provisions moot for grandfathered mags.

Although the re-codification lost the language, the material, substantive change does not appear enforceable due to the provisions of PC 16050.
16050. Nothing in the Deadly Weapons Recodification Act of 2010 is intended to substantively change the law relating to deadly weapons. The act is intended to be entirely nonsubstantive in effect. Every provision of this part, of Title 2 (commencing with Section 12001) of Part 4, and every other provision of this act, including, without limitation, every cross-reference in every provision of the act, shall be interpreted consistent with the nonsubstantive intent of the act.
I think the fact that we had legislation proposed to do away with the grandfathering clearly supports the contention that it exists and is outside the confiscation authorities. Of course, you'll need a lawyer to make that point.:)

Cheers.
JR

mt417
11-10-2013, 3:45 PM
^ I thought I was ranting, I have just been shown up!

:King::rant: OR :threadjacked: take your pick

Yeah yeah, I know it sounds crazy but OP or anyone should not be surprised this happened.

What should be a surprise is that they didn't actually arrest him and charge him with the felony so the cop could get a star for the day. Then OP would've had to get bailed or sit in county until the judge drops the felony, if the Saturnian black robed maritime admiralty false authority had not lost his empathy in a cremation of care ritual like at Bohemian Grove.

Tincon
11-10-2013, 3:49 PM
Yeah yeah, I know it sounds crazy but OP or anyone should not be surprised this happened.

What should be a surprise is that they didn't actually arrest him and charge him with the felony so the cop could get a star for the day. Then OP would've had to get bailed or sit in county until the judge drops the felony, if the Saturnian black robed maritime admiralty false authority had not lost his empathy in a cremation of care ritual like at Bohemian Grove.

You had firearms related items visible, you asked for it. The militarized police are trained to view the public as enemies and they are going to take full advantage of you it doesn't matter what the law says they can do whatever they want even if they know it won't stand up in court.

It's funny though because there was a massive raid out in Trinity county a few years back for growers. The Sherrifs went to the wrong properties and caught people with 30+ rounders for their AKs and didn't care they got to keep them. I've heard many stories like this, even people caught without bullet buttons or even automatics got let go.

The law is not going to protect you, the NRA is not going to protect you they hand over all their member info to the government already. Enjoy your guns while you have them it's only downhill from here as we enter into the new order.

I'd just like to point out that only a very small percentage of gun owners believe this absurd nonsense. mt417, you are an embarrassment to our community. I'd like to think you are an anti-gun statist out to make us look bad, but sadly it's more likely that you are sincere.

mt417
11-10-2013, 4:13 PM
I'd just like to point out that only a very small percentage of gun owners believe this absurd nonsense. mt417, you are an embarrassment to our community. I'd like to think you are an anti-gun statist out to make us look bad, but sadly it's more likely that you are sincere.

Awww.. I apologize for making everyone look bad but really none are more hopelessly enslaved than those who falsely believe they are free. Sure the judge comment was absurd nonsense but OP should have hid that 20 round mag. You haven't seen the video of police officers being lectured on how the founding fathers were the first terrorists in America, let alone the other mountains of evidence like the MIAC report? Conspiracy theorists are always going to exist, and as much as I make fun of them, I can’t blame them either because of how secretive government tries to be or your Attorney General tells you there is no right to habeas corpus or when memos surface about suspending protected rights or politicians attempt to disarm law-abiding citizens or when it uncontrollably spends taxpayer dollars and runs up a massive debt.

Do you believe in individual liberty or federalism? If so, the Department of Defense (DOD) says you’re an “extremist,” according to documents obtained through a Freedom of Information Act (FOIA) request by Judicial Watch.

http://judicialwatch.org/press-room/press-releases/judicial-watch-defense-department-teaching-documents-suggest-mainstream-conservative-views-extremist/

Omega-man
11-10-2013, 5:52 PM
Yeah yeah, I know it sounds crazy but OP or anyone should not be surprised this happened.

What should be a surprise is that they didn't actually arrest him and charge him with the felony so the cop could get a star for the day. Then OP would've had to get bailed or sit in county until the judge drops the felony, if the Saturnian black robed maritime admiralty false authority had not lost his empathy in a cremation of care ritual like at Bohemian Grove.
I should have quoted your RANT instead you edited it because you might feel some shame (NOT) and then quoted me pointing out that you were ranting or high jacking the thread with a big long a-s-s crazy rant.
Then you mock us more by Awww.. I apologize for making everyone look bad but really none are more hopelessly enslaved than those who falsely believe they are free. We don't feel bad ! It's just most of what you posted ...cough - deleted . Had nothing to do with this thread.
Now officially it has been Hijacked and no one will benefit from the discussion.
And we don't feel bad, at all. At least not to you. Shouldn't have deleted what you posted. Should have manned up.

sl0re10
11-10-2013, 8:24 PM
I have a few questions since I havent kept up to date on all the recent magazine laws so here they are:

1) is AB 396 passed and in effect, eg, a person has until july 2014 to surrender, sell or destroy any magazine capable of holding more than 10 rounds?

2) I was stopped for a traffic violation today by the Humboldt County Sherrif's department and had 4- saiga 12ga ,10 round magazines as well as a 1 - 20 round saiga drum in my vehicle (all empty magazines, and no firearms in my vechicle).

I was informed they were seizing my magazines under the nuisance law and I was committing a felony for being in POSESSION of said magazines.

They did ask if I bought them or someone gave them to me and i said NO, and they also asked if I had the gun to it (which I said no, because I no longer have a saiga)
=====================

Correct me if im wrong, but last I heard posession was not a crime and a magazine had to hold more than 10 rounds to be considered high capacity.

I think at best they have grounds to sieze the 20 round drum but the 4 10 round magazines should be returned to me.

Does this sound correct?

I think the saiga 12 10 round mags would only be a problem under fed rules for imported weapons. 922r stuff. If you replaced some parts, on the saiga 12, with Merica parts that wouldn't apply / be a problem. If you don't have the rifle; then not seeing any issue one way or the other for 10s. Not illegal on their face. Although if they were imported mags it would be pretty hard to get under the magic number of foreign parts (since they count as some of the parts) on a Saiga 12.

But be careful... there is a law here you could have violated... so be aware of your answers to any questions....

sarabellum
11-10-2013, 8:55 PM
But I don't think you are correct, the anomalous language of Penal Code § 32390 notwithstanding. It seems that the purported effect of declaring large-capacity magazines to be nuisances was unintended by the legislature. Remember, the re-organization of the weapons section of the penal code was to have no substantive effect.

However even if it was intended, I'm not sure the legislature can declare something to be a nuisance if that thing does not meet the requirements of Cal. Civ. Code § 3479.


In California, the early common law categories of public nuisance, codified in 1872 and still applicable, define anything that is “injurious to health, ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway,” as a nuisance. (Civ. Code, § 3479.) People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1104, 929 P.2d 596 (1997)

§ 3479 gives the definition of a public nuisance:

If possession was a otherwise a crime, even an infraction, this would work, or if possession affected the public in some other way, but as the law stands, there is no reason for magazine possession to be enjoined. There is plenty of room to argue that § 32390 does expand the statutory definition to include these magazines. But I don't think the legislature has the power to just declare anything to be a nuisance, but even if it did, and did so intentionally, there would be numerous constitutional problems.

And there are plenty here, from due process and property rights, to Second Amendment issues. Overbredth is going to be an issue as well, and others. Not sure your theory works, but it is another example of the mess the legislature has made of our laws.

This is a strong, thought provoking analysis.

mt417
11-10-2013, 10:06 PM
I should have quoted your RANT instead you edited it because you might feel some shame (NOT) and then quoted me pointing out that you were ranting or high jacking the thread with a big long a-s-s crazy rant.
Then you mock us more by We don't feel bad ! It's just most of what you posted ...cough - deleted . Had nothing to do with this thread.
Now officially it has been Hijacked and no one will benefit from the discussion.
And we don't feel bad, at all. At least not to you. Shouldn't have deleted what you posted. Should have manned up.

I didn't delete the rant post a mod did (was a double post not the one that says edited), sorry for hijacking I just kinda figured hey you should expect to be robbed by law enforcement. Why not we put up with all the other stuff that was in the rant/article. So continue discussing the codes and statutes lol

tonelar
11-13-2013, 8:01 PM
I think the saiga 12 10 round mags would only be a problem under fed rules for imported weapons. 922r stuff. If you replaced some parts, on the saiga 12, with Merica parts that wouldn't apply / be a problem. If you don't have the rifle; then not seeing any issue one way or the other for 10s. Not illegal on their face. Although if they were imported mags it would be pretty hard to get under the magic number of foreign parts (since they count as some of the parts) on a Saiga 12.

But be careful... there is a law here you could have violated... so be aware of your answers to any questions....


Just an FYI. 10round Saiga 12 pattern magazines fit a Remi 870 modification to accept box magazines.

http://i73.photobucket.com/albums/i202/tonelar/guns/a06e8e322036b6c0ac607e12610e7122.jpg

RobGR
11-13-2013, 9:39 PM
I had no idea the nuisance law was State wide.

I look forward to OPs update as well as additional information from Librarian (as always), RickD427's contributions, and updates from CMonfort.

Garand1911
11-14-2013, 12:15 AM
The cops know that the drum is for a saiga 12, and knows that they did not exist back in 1999, which means you are in illegal possession of a hi cap mag.


next time, when doing something illegal, put the sh*tz in your trunk, so they dont have plain view.

tonelar
11-14-2013, 1:32 AM
However, Op's 10 round magazines shouldn't have been seized.

CABilly
11-14-2013, 4:29 AM
Please read the statute.

All large-capacity mags fall under the "Nuisance" provisions.

Doesn't matter when you acquired them. "Pre-Ban" large-capacity magazines are still "nuisances."

If legality of ownership doesn't matter, could one make a complaint about "nuisance" mags possessed by the confiscating officer and demand his mags, and all those owned by the department and its employees, be also confiscated and destroyed?

fizux
11-14-2013, 8:21 AM
If legality of ownership doesn't matter, could one make a complaint about "nuisance" mags possessed by the confiscating officer and demand his mags, and all those owned by the department and its employees, be also confiscated and destroyed?
Mags individually owned/acquired by LEOs are not nuisances, since they fall within an exception. It is a very contrived framework -- would any other public nuisance be exempt because a certain class of private individual owned it? I wonder if it's okay for several cops to get together and operate a house of ill repute when they are off shift and see if that is a nuisance.

RickD427
11-14-2013, 10:13 AM
If legality of ownership doesn't matter, could one make a complaint about "nuisance" mags possessed by the confiscating officer and demand his mags, and all those owned by the department and its employees, be also confiscated and destroyed?

A private person could very well make that complaint, that is certainly their right.

They could also request that the officers, as well as all departmentally owned magazines be destroyed. I changed your word "demand" to "request" to reflect the fact the private citizen has no legal standing to require the magazines be destroyed.

Once the request is made, the department can give the private person an answer ranging from "yes" to "no."

RickD427
11-14-2013, 10:33 AM
Mags individually owned/acquired by LEOs are not nuisances, since they fall within an exception. It is a very contrived framework -- would any other public nuisance be exempt because a certain class of private individual owned it? I wonder if it's okay for several cops to get together and operate a house of ill repute when they are off shift and see if that is a nuisance.

One point that Tincon got right in my earlier exchange with him in this thread, it's that there actually is no exemption from a LEO's magazines being considered as "nuisances."

This is a hard one to swallow. Every piece of common sense, along with the context of the Penal Code in its other provisions, calls for there to be such an exemption. But when you actually parse out the content of the code, and go through it section by section (the law on magazines makes several references to other parts of the code - you really have to navigate your way through it. Where language does describe an exemption, you also have to look at the scope of coverage), you find there is no such exception.

Penal Code sections 32400 and 32405 come the closest. They provide exemptions to LEOs from criminal prosecution from manufacturing, selling and importing magazines. The context of this exemption pretty clearly shows an intent that their magazines not be considered as nuisances, but that is not included within the scope of the exemption. Additionally, just as in the case of other exemptions provided for private citizens, the scope of these exemptions does not extend to "possession."

It's real clear that the revision committee didn't do their homework on this one, and that we're stuck with some very bad law as a result. I'll also give credit to Librarian, he's done a lot of research on this issue and actually has traced the problem back to the original SB23 wording.

Tincon
11-14-2013, 11:04 AM
The cops know that the drum is for a saiga 12

What is this, the minority report? Unless there was an admission that the mags were for the saiga, or the cop saw them in the saiga, then he doesn't "know" anything.

One point that Tincon got right in my earlier exchange with him in this thread, it's that there actually is no exemption from a LEO's magazines being considered as "nuisances."

This is a hard one to swallow. Every piece of common sense, along with the context of the Penal Code in its other provisions, calls for there to be such an exemption. But when you actually parse out the content of the code, and go through it section by section (the law on magazines makes several references to other parts of the code - you really have to navigate your way through it. Where language does describe an exemption, you also have to look at the scope of coverage), you find there is no such exception.


Except that there are. The problem is you are a layman when it comes to the law. As such, you are assuming that even though something has an absurd and unconstitutional result, which the legislature clearly did not intend, it is still the law because that is the most literal interpretation of the text. That's not how statutory interpretation works.

But you are right that until the law is fixed (which the NRA/M&A is working on) or stuck down in court, priggish cops are still very likely to continue running amok seizing people's lawfully owned magazines as "nuisances". While of course ignoring that the law applies to them as well, and continuing to carry their own "nuisances" in the process.

RickD427
11-14-2013, 11:30 AM
[QUOTE=Tincon;12764404]
Except that there are. The problem is you are a layman when it comes to the law. As such, you are assuming that even though something has an absurd and unconstitutional result, which the legislature clearly did not intend, it is still the law because that is the most literal interpretation of the text. That's not how statutory interpretation works. [QUOTE]

Tincon,

Regarding statutory interpretation, the courts have been pretty clear that when a statue is clear in its content, that there is no room to interpret more broadly in order to reach a different conclusion, even it it makes more sense to do so. (Refer to Desert Palace v Costa, Connecticut National Bank v Germain (Both U.S. Supreme Court cases) and Estate of Bell v Commisioner of Internal Revenue (9th Circuit)).

Tincon
11-14-2013, 11:36 AM
Regarding statutory interpretation, the courts have been pretty clear that when a statue is clear in its content, that there is no room to interpret more broadly in order to reach a different conclusion, even it it makes more sense to do so. (Refer to Desert Palace v Costa, Connecticut National Bank v Germain (Both U.S. Supreme Court cases) and Estate of Bell v Commisioner of Internal Revenue (9th Circuit)).

First off, the neither the U.S. Supreme Court nor the 9th Circuit decide how CA law is to be interpreted. But as the principles are relatively similar, I'll forgive your lay misunderstanding.

Second, it isn't that clear. As I said before:

§ 32390 reads:

Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any large-capacity magazine is a nuisance and is subject to Section 18010.

That's clearly stated, there is an exception in Article 2.

But where is it? What do those words mean? Statutory interpretation tell us that.

RickD427
11-14-2013, 12:03 PM
First off, the neither the U.S. Supreme Court nor the 9th Circuit decide how CA law is to be interpreted. But as the principles are relatively similar, I'll forgive your lay misunderstanding.

Second, it isn't that clear. As I said before:

§ 32390 reads:
Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any large-capacity magazine is a nuisance and is subject to Section 18010.

That's clearly stated, there is an exception in Article 2.

But where is it? What do those words mean? Statutory interpretation tell us that.

Tincon,

No need to excuse my "lay misunderstanding." I am not a lawyer. My expertise lies in enforcing the law, and in preparing my cases for presentation in court. That's really what is involved in the OP's issue. He didn't start this thread to get a debate on finer points of law. His concern was why the deputies snatched his magazines and what does he gotta do to get them back.

I should clearly ask, are you yourself a licensed attorney, and if so what is your area of practice?

We don't need statutory interpretation to learn what is in "Article 2 of this chapter....". All we need to do is read the affected sections. Article 2 contains sections 32400 to 32450. Those sections provide a total of eleven exemptions from the provisions of section 32310 (which makes it a felony to manufacture, import, sell,,,,a large-capacity magazine". Those sections are clearly written.

Where the statute is clear, there is nothing to interpret. "Courts must presume that a legislature says in a statute what it means and means in a statute what it says there." (Germain)

Tincon
11-14-2013, 12:14 PM
I should clearly ask, are you yourself a licensed attorney, and if so what is your area of practice?

Nope, law student, law clerk, but not a lawyer, I've said as much before. Actually, I used to do what you do. And back then, I didn't know nearly as much about the law as I thought I did.


We don't need statutory interpretation to learn what is in "Article 2 of this chapter....". All we need to do is read the affected sections. Article 2 contains sections 32400 to 32450. Those sections provide a total of eleven exemptions from the provisions of section 32310 (which makes it a felony to manufacture, import, sell,,,,a large-capacity magazine". Those sections are clearly written.

Are they? So which part of sections 32400 to 32450 applies to § 32390?

RickD427
11-14-2013, 12:31 PM
Nope, law student, law clerk, but not a lawyer, I've said as much before. Actually, I used to do what you do. And back then, I didn't know nearly as much about the law as I thought I did.



Are they? So which part of sections 32400 to 32450 applies to § 32390?

Tincon,

Thanks for a straight answer to my question about being a lawyer.

Let me respond in kind. No part of sections 32400 to 32450 apply to section 32390. Of course there is no requirement that any of them do apply. The "except as provided..." language in section 32390 does not create a requirement that such a provision exist, it only allows for such a provision.

All of which reinforces the point that the law was horribly written and needs some legislative attention.

Tincon
11-14-2013, 1:03 PM
You can't say there is no ambiguity in the statute, while simultaneously disregarding as surplus large chunks of text. 32390 makes reference to Article 2, if you cannot ascribe a clear meaning to that textual reference, then obviously there is some ambiguity which requires statutory interpretation.

I'll give you some authority to support this, and please note that I will use authority from the courts which actually interpret CA law.

". . . significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. [Citation.] [A] construction making some words surplusage is to be avoided." Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.

"In analyzing statutory language, we seek to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose, i.e., the object to be achieved and the evil to be prevented by the legislation." Walker v. Superior Court (1988) 47 Cal.3d 112, 124.


So you already have a problem. But even if you could treat those words as surplusage, you have admitted that there is an absurd and unintended result. Courts don't like those.

"The literal meaning of the words of a statute may be disregarded to avoid absurd results or to give effect to manifest purposes that, in the light of the statute's legislative history, appear from its provisions considered as a whole." Silver v. Brown (1966) 63 Cal.2d 841, 845.

“The courts resist blind obedience to the putative ‘plain meaning’ of a statutory phrase where literal interpretation would defeat the Legislature's central objective.” Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 614.

"[O]ur Supreme Court said that ambiguity is not a condition precedent to interpretation in all cases. The literal meaning of the words of a statute may be disregarded to avoid absurd results." Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1698.


Etc., etc. Or if for some reason you think SCOTUS is the final word:

“[W]ords are inexact tools at best, and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how ‘clear the words may appear on “superficial examination.” ’ ” Harrison v. Northern Trust Co. (1943) 317 U.S. 476, 479, 63 S.Ct. 361, 87 L.Ed. 407.

RickD427
11-14-2013, 1:24 PM
You can't say there is no ambiguity in the statute, while simultaneously disregarding as surplus large chunks of text. 32390 makes reference to Article 2, if you cannot ascribe a clear meaning to that textual reference, then obviously there is some ambiguity which requires statutory interpretation.

I'll give you some authority to support this, and please note that I will use authority from the courts which actually interpret CA law.





So you already have a problem. But even if you could treat those words as surplusage, you have admitted that there is an absurd and unintended result. Courts don't like those.







Etc., etc. Or if for some reason you think SCOTUS is the final word:

Tincon,

We're back to circles on this thing. Let me try a different approach.

What do you think section 32390 means? And more importantly, how does that help the OP get his magazines back from the Sheriff's Office? Or should the OP get his magazines back?

Tincon
11-14-2013, 1:29 PM
Tincon,

We're back to circles on this thing. Let me try a different approach.

What do you think section 32390 means? And more importantly, how does that help the OP get his magazines back from the Sheriff's Office? Or should the OP get his magazines back?

We are not going in circles. You are simply incorrect about how the law should be interpreted. Section 32390 should not exist at all, because it's an artifact of a misinterpretation of a previous version of a statute. To the extent it applies at all however, it applies to magazines which were discussed in the previous version of the statute. Namely those that were illegally imported or manufactured.

OP should hire a lawyer if he wants his magazines back.

ETA: I also find it a bit annoying that you defended your arguments with (inapposite) case law, and then when confronted with the case law that actually controls, and defeats your argument, you merely shift your argument rather than concede. Not good sportsmanship IMO. But you might make a great lawyer!

nick
11-14-2013, 5:29 PM
But you might make a great lawyer!

That's not a compliment :)

RickD427
11-14-2013, 5:39 PM
We are not going in circles. You are simply incorrect about how the law should be interpreted. Section 32390 should not exist at all, because it's an artifact of a misinterpretation of a previous version of a statute. To the extent it applies at all however, it applies to magazines which were discussed in the previous version of the statute. Namely those that were illegally imported or manufactured.

OP should hire a lawyer if he wants his magazines back.

ETA: I also find it a bit annoying that you defended your arguments with (inapposite) case law, and then when confronted with the case law that actually controls, and defeats your argument, you merely shift your argument rather than concede. Not good sportsmanship IMO. But you might make a great lawyer!

Tincon,

We can present "Dueling Cases" until the proverbial cows come home. I see your point, I just don't agree, and don't cede that your choice of case law is controlling. There's no victory in there. I changed the focus of the question in an effort to break the circle. I think that we're both tested the patience of most people reading this thread already.

I do agree that section 32390 should not exist, but you can't narrow its application because it makes sense to do so without an authoritative court decision. Can you cite me any case law where damages were awarded against an LEO for enforcing a statute later found to be defective? The cases you cite may very well lead a court to conclude that 32390 is defective, or is limited in the manner you describe, but no court has done so yet. The courts simply have never required LEOs to perform the level of statutory interpretation that we have discussed. They're allowed to take the law at face value. My view is that until such time, officers act lawfully in carrying out the provisions of 32390.

Your point seems to be that the law doesn't make sense as it's written, and therefore requires interpretation in order to achieve a purpose. Mine is that the law is clearly written, but very poorly written. It's understandable, just not wise. My view is that stupid, but clear, law is clear. I like the words of John Roberts in the National Federation v Sebelius case "It is not our job to protect the people from the consequences of their political choices."

You recommend the OP retain an attorney to recover his magazines. That's a safe, but certainly not practical, solution to the problem. Can you recommend an attorney who would handle such a case, at a cost that is porportionate to the value of the magazines?

But we are very much going in circles with the dueling cases, there just isn't an end in sight. In the interest of good sportsmanship, I'll leave you the last word and then again sign off until something new develops.

RickD427
11-14-2013, 5:43 PM
That's not a compliment :)

Nick,

Thanks. I know that, but since the comment was directed at me, I get to decide how to take it.

Since Tincon is on his way to becoming a lawyer, I'll very much take it as a compliment.

:D:D:D:D:D:confused:

Tincon
11-14-2013, 6:31 PM
Tincon,
We can present "Dueling Cases" until the proverbial cows come home.

I don't see any "Dueling Cases". You cited federal court rulings, but state courts interpret the meaning of state laws. Further, you fail to grasp the distinction between a law that has a bad or unwise result, and an interpretation of a law that leads to an absurd result clearly not intended by the legislature.

Tincon,
Can you cite me any case law where damages were awarded against an LEO for enforcing a statute later found to be defective?

That's pretty much a required element of a section 1983 claim. Or at least, the allegation must be that the officer was pretending to act under such authority, whether it existed or not. That he was in fact acting under color of a real state law certainly isn't a defense. Look at the law:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C.A. § 1983

Under traditional definition of “acting under color of state law,” defendant in § 1983 action must have exercised power possessed by virtue of state law and made possible only because wrongdoer is clothed with authority of state law.  David v. City and County of Denver, C.A.10 (Colo.) 1996, 101 F.3d 1344

If conduct challenged by plaintiff constitutes “state action” for purpose of Fourteenth Amendment claim, then that conduct is also action “under color of state law” for purpose of §§ 1983 and 1985 claims.  Willis v. Town of Marshall, W.D.N.C.2003, 293 F.Supp.2d 608.

Officers and employees of states and their agencies, instrumentalities and political subdivisions will generally be acting “under color of law” for purposes of civil rights claims when their actions are in furtherance or fulfillment of tasks and obligations assigned to them, or made possible by power conferred upon them by government.  Eddy v. Virgin Islands Water and Power Authority, D.Virgin Islands 1997, 955 F.Supp. 468, on reconsideration 961 F.Supp. 113

Action taken by state official who is cloaked with official power and who purports to be acting under color of official right is state action and is taken under color of state law whether or not action is in fact in excess of authority actually delegated to official under state law.  Lopez v. Vanderwater, C.A.7 (Ill.) 1980, 620 F.2d 1229

I don't know who schooled you on section 1983 liability, but you seem pretty confused. I have no doubt you and your fellow cops violate people's rights each and every day, and think you are protected by some state law, but in fact that is exactly the reason section 1983 was enacted. If you were exceeding your authority under state law, there would be other remedies. Quite frankly, I can't wait until I get my bar card so I can sue the crap out of every one of you that I can find.

Tincon,
Your point seems to be that the law doesn't make sense as it's written, and therefore requires interpretation in order to achieve a purpose. Mine is that the law is clearly written, but very poorly written. It's understandable, just not wise. My view is that stupid, but clear, law is clear. I like the words of John Roberts in the National Federation v Sebelius case "It is not our job to protect the people from the consequences of their political choices."

Again, you confuse a law that is stupid, but is what the legislature intended (most laws, and almost all gun laws, IMO) and a law which read literally results in something absurd (more than stupid) and clearly NOT what the legislature intended. You will find no case which says such a law may not be interpreted by the courts, because there is no such case. Going all the way back to Marbury v. Madison, "It is emphatically the province and duty of the judicial department to say what the law is."

Tincon,
You recommend the OP retain an attorney to recover his magazines. That's a safe, but certainly not practical, solution to the problem. Can you recommend an attorney who would handle such a case, at a cost that is porportionate to the value of the magazines?

I'm not an attorney referral service. I'll tell you that if I had my bar card I'd take this case pro bono, with a contingency on any section 1983 recovery. One way or another it would cost the department hundreds of thousands of dollars, and they would get the message not to screw with gun owners based on some BS interpretation of a state nuisance law.

taperxz
11-14-2013, 7:08 PM
Tincon,

We're back to circles on this thing. Let me try a different approach.

What do you think section 32390 means? And more importantly, how does that help the OP get his magazines back from the Sheriff's Office? Or should the OP get his magazines back?

Circles? No. Your interpretation is simply wrong as noted many posts ago.

If a court took the "intent of the legislature" took into account the renumbering and the rules of that conference. Pre ban mags are legal to own and are not considered a nuisance.

As i mentioned before, there is more to law than what one particular thing says.

what2be
11-19-2013, 1:28 PM
Just a update, I was out of town working last week so couldn't make it by the sherrifs dept until yesterday (Monday) and again I asked for the watch commander and again I was told that he is not the one I need to talk to and the woman I spoke to took my info (again) and had me wait while she looked into it. After 45 min she told me she had contacted the deputy and that I had a case number but he hadn't finished writing the report but that he would have the report finished by days end and that It will be forwarded to the District Attorneys office for review to see if charges will be filed or not. I was told to wait 3 business days and contact the District Attorneys office for a update. I will go into the DA's office on Thursday and see what they have to say.

To reply to a previous post , NO, they had ZERO idea what the mags went to , I had to let them know they were for a shotgun and that's when they asked what kind and asked if I still had the shotgun because it was illegal too. UNINFORMED MORONS.

emtmark
11-19-2013, 2:56 PM
Tagged


I know what this man needs, bring me the bourbon!
-CK Medic 538

RobGR
12-03-2013, 11:34 AM
Any update on your situation, OP?

Garand1911
12-04-2013, 9:51 PM
What is this, the minority report? Unless there was an admission that the mags were for the saiga, or the cop saw them in the saiga, then he doesn't "know" anything.



well maybe the cop is a gun nut, knows exactly what a saiga shotgun is, and the legalities that go with it.
Not all cops are gun dumb.

Tincon
12-04-2013, 9:56 PM
well maybe the cop is a gun nut, knows exactly what a saiga shotgun is, and the legalities that go with it.
Not all cops are gun dumb.

Then he would know that those magazines fit more than one gun.

what2be
12-07-2013, 8:40 PM
Sorry for the delay in posting, busy with work, kids, etc. Anyway, I went to the D.A.'s office on Friday and presented my case number from the sherrifs dept and they made me fill out a form and submit it and told me the DA investigator in charge of my case would contact me when he was finished with his investigation. Here is a info sheet that was attached to the form I had to submit.

https://www.dropbox.com/s/j6adjl3lvlhwlrq/HumboldtcountyDA.PDF

bm-bill
12-25-2013, 7:39 AM
Any word from the DA?

emtmark
12-25-2013, 8:56 AM
Agreed, any update?


I know what this man needs, bring me the bourbon!
-CK Medic 538

RRangel
12-25-2013, 11:30 AM
Im thinking they can take any +10 round mag. Doesn't matter if it was bought in the 70's. They are just not supposed to prosecute if it was obtained prior to 2000. Thats at least my understanding of it.

No. Because that would be illegal.

SOAR79
12-25-2013, 12:07 PM
good to know

gunsandrockets
12-26-2013, 4:26 AM
I find this thread extremely disturbing.

If the law is really that badly scrambled, so bad that even police magazines in are in violation, maybe the best action is to press the issue? Force the police to destroy their own magazines by making direct complaints? Make them suffer from the Catch-22 situation besides us.

prometa
12-26-2013, 2:39 PM
I enjoyed reading the back and forth between the lawyers and lawyers-in-training. It seems to me that there are two sides to the argument: (A) the intent of the law is controlling and it meant to say that grandfathered mags are not nuisances or (B) the wording of the law is controlling and all large-capacity mags are nuisances, and that this violates one or more of the 2nd, 4th, and 5th amendments.

While the result of a court case might differ in scope, does anyone believe that a court would uphold the seizing of the OPs magazines for any reason?

Also, would anyone argue that OP, once the LEO had opened his truck for a search, should have or could have done anything different? I presume that once they have made it clear they are going to search and seize with PC (vs your consent), you may as well let it happen and fight them in the courts, rather than resist at the scene?

Finally, is anyone willing to provide a brief historical summary of nuisance common and current law? I do not understand the apparent parallel system for things that are illegal and things that are nuisances. Were nuisances designed to be broadly applicable, so anything not specifically illegal but obviously a nuisance (under definition) could be stopped by a peace officer? Otherwise, it just seems redundant. And why declare magazines a nuisance? So they can take them without charging, arraigning, and prosecuting you? (i.e. to avoid the headaches and publicity of a trial?)

curtisfong
12-26-2013, 2:56 PM
Whenever possible, laws are designed to minimize oversight and sidestep due process and equal protection issues.

The courts exist to provide a check to this corrupt behavior, but in CA, you can forget about the courts not being equally corrupt.

bbbppc
12-31-2013, 9:49 AM
So if my normal capacity magazines are confiscated and destroyed could I purchase a new one just as I would if I accidentally ran mine over and repaired it. I'm not importing a new one just "repairing" a damaged one.

bombadillo
12-31-2013, 10:23 AM
OP, just to let you know, the DA is at least a shooter. I was in the lane next to him and his son the other week at Redwood Gun Club. Pretty reasonable guy, and he was right there looking over my featureless AR with 20 and 30rd "standard cap" mags as well. I actually quit shooting my .44mag until his son was done because I could tell the noise was bothering him and making him nervous. He was very appreciative of it, and we talked for awhile. As much as I REALLY don't like his politics often times, he is a pretty down to earth guy when it comes to firearms.

RickD427
12-31-2013, 10:43 AM
So if my normal capacity magazines are confiscated and destroyed could I purchase a new one just as I would if I accidentally ran mine over and repaired it. I'm not importing a new one just "repairing" a damaged one.

Uhh,,NO

taperxz
12-31-2013, 10:51 AM
Uhh,,NO

Technically true but if that same mag that was confiscated was rebuilt before this event and the owner kept the parts, say a follower, then a new one could be built around that part.;)

However its my understanding that the parts would need to be bought individually and not in "kit" form after midnight tonight.

bbbppc
12-31-2013, 11:34 AM
Ridiculous laws made by ridiculous people lead me to ridiculous hypotheticals lol. I know that that hypothetical wouldn't play out for me well. What about losing or otherwise damaging without any parts left would you be able to repair? What about after midnight?

RickD427
12-31-2013, 7:05 PM
Technically true but if that same mag that was confiscated was rebuilt before this event and the owner kept the parts, say a follower, then a new one could be built around that part.;)

However its my understanding that the parts would need to be bought individually and not in "kit" form after midnight tonight.

This is an interesting theory, but I don't think that it would hold up in court. If one followed this logic, and kept multiple pieces of the original magazine, then each part could be "rebuilt" and you would be able to make magazines reproduce like rabbits.:shifty::shifty::shifty::shifty:

bbbppc
01-02-2014, 10:08 AM
This is an interesting theory, but I don't think that it would hold up in court. If one followed this logic, and kept multiple pieces of the original magazine, then each part could be "rebuilt" and you would be able to make magazines reproduce like rabbits.:shifty::shifty::shifty::shifty:

I think one would have to follow the "No new normal capacity magazines imported, just completely repaired the legally owned one"

RickD427
01-02-2014, 10:32 AM
I think one would have to follow the "No new normal capacity magazines imported, just completely repaired the legally owned one"

I agree. I was being facetious (thus the four smilies).

In this case the entire original magazine was seized and there is nothing to "repair."

hoffmang
01-02-2014, 8:55 PM
Regardless of the argument regarding the unclear nuisance language, I can tell you what happens in actual practice. When DA's are forced to open the CA DOJ AW ID Guide and flip to page 74 (84 of the PDF) by a competent attorney, they drop any charges and return the magazines.

See http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/awguide.pdf

-Gene

Ford8N
01-02-2014, 9:27 PM
Regardless of the argument regarding the unclear nuisance language, I can tell you what happens in actual practice. When DA's are forced to open the CA DOJ AW ID Guide and flip to page 74 (84 of the PDF) by a competent attorney, they drop any charges and return the magazines.

See http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/awguide.pdf

-Gene

I'm no expert Gene, but I can read and there are a lot of mistakes in that Identification Guide.:shock:

RickD427
01-02-2014, 10:19 PM
Regardless of the argument regarding the unclear nuisance language, I can tell you what happens in actual practice. When DA's are forced to open the CA DOJ AW ID Guide and flip to page 74 (84 of the PDF) by a competent attorney, they drop any charges and return the magazines.

See http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/awguide.pdf

-Gene

Gene,

Welcome back. I haven't seen you post for awhile.

Excellent cite to the AW Guide. Page 84 does make the law on possession quite clear.

But please also remember that when magazines are siezed under the "b" provision of 18010 PC, there are no criminal charges and the D.A. never learns of, or becomes involved in, the process.

hoffmang
01-03-2014, 7:32 PM
Gene,

Welcome back. I haven't seen you post for awhile.

Excellent cite to the AW Guide. Page 84 does make the law on possession quite clear.

But please also remember that when magazines are siezed under the "b" provision of 18010 PC, there are no criminal charges and the D.A. never learns of, or becomes involved in, the process.

But what exactly is the exception to the warrant requirement - even in an automobile - then?

-Gene

capitol
01-03-2014, 9:02 PM
I LUV this guy :rolleyes:

RickD427
01-03-2014, 11:19 PM
But what exactly is the exception to the warrant requirement - even in an automobile - then?

-Gene

Gene,

As you can tell from my earlier postings, the content of Penal Code section 18010 offends my sense of justice, and for a number of reasons (Fourth Amendment Due Process, Fifth Amendment Taking, and the fact that it allows seizure of lawfully possessed items).

The textbook answer is that there is no exception to the warrant requirement for officers to search for legally possessed large-capacity magazines. They still need lawful standing to conduct a search.

But as a practical matter, there really isn't an effective remedy if officers act unlawfully in seizing the magazines (you can add that the list of things that offend me about this law). If the magazines were evidence of a crime, and were unlawfully seized, they would excluded as evidence in a criminal trial (refer to Penal Code section 1538.5). But where the magazines are seized as nuisances, there is no criminal trial and therefore there is no application of 1538.5. There's no judge in the picture, and there is no D.A. in the picture.

The person who suffered the loss of the magazine could file a lawsuit seeking its return, but then they become the moving party and bear the burden of showing the magazine is not a "nuisance." That's a pretty impossible task since they're defined that way in the code.

The person could also file a suit alleging a violation of their rights. In that case, they have to overcome "Statutory Immunity." That requires showing a clearly established right and a showing that the officer was on notice that his/her conduct violated that right. The first part of that equation may be easy. The second part is going to be difficult since the statute specifically authorizes their action. The track record of folks overcoming statutory immunity where officers act according to the law is pretty much zero. There's better chance of winning if the officer's conduct was egregious, but it's still an uphill battle.

Tincon
01-05-2014, 11:07 PM
This post has quite a dichotomy:


As you can tell from my earlier postings, the content of Penal Code section 18010 offends my sense of justice, and for a number of reasons (Fourth Amendment Due Process, Fifth Amendment Taking, and the fact that it allows seizure of lawfully possessed items).


So, you do realize there are constitutional problems with the law. But you think it's still ok to enforce? Interesting.



The textbook answer is that there is no exception to the warrant requirement for officers to search for legally possessed large-capacity magazines. They still need lawful standing to conduct a search.


That's not the only thing they need a warrant (or some other due process legal exception) for:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Turns out warrants aren't just for searches, since 1791!


But as a practical matter, there really isn't an effective remedy if officers act unlawfully in seizing the magazines (you can add that the list of things that offend me about this law).

Kinda funny, since you give one below....

There's no judge in the picture, and there is no D.A. in the picture.

Also kinda funny, since the law you keep citing which supposedly allows this seizure mentions something about the people's attorney...

The person could also file a suit alleging a violation of their rights. In that case, they have to overcome "Statutory Immunity." That requires showing a clearly established right and a showing that the officer was on notice that his/her conduct violated that right.

Yup. Good thing laws on unlawful seizure are well established.

The second part is going to be difficult since the statute specifically authorizes their action. The track record of folks overcoming statutory immunity where officers act according to the law is pretty much zero. There's better chance of winning if the officer's conduct was egregious, but it's still an uphill battle.


Nope, neither the existence of a statute, not the "egregiousness" of the conduct are factors in a courts decision to apply (or deny) immunity. Better check those cases again.

Watch Ryder
01-09-2014, 2:22 AM
Sorry for the delay in posting, busy with work, kids, etc. Anyway, I went to the D.A.'s office on Friday and presented my case number from the sherrifs dept and they made me fill out a form and submit it and told me the DA investigator in charge of my case would contact me when he was finished with his investigation. Here is a info sheet that was attached to the form I had to submit.

https://www.dropbox.com/s/j6adjl3lvlhwlrq/HumboldtcountyDA.PDF

Ok what's the latest news man?

SDmtnbkr
01-09-2014, 10:02 PM
This is an interesting theory, but I don't think that it would hold up in court. If one followed this logic, and kept multiple pieces of the original magazine, then each part could be "rebuilt" and you would be able to make magazines reproduce like rabbits.:shifty::shifty::shifty::shifty:

Well you guys are all over my head on this one but I do a comment on this subject.... In my literal mind I see no problem with this and furthermore believe this...

The law states that (or doesn't state) you are allowed to posses and upkeep large capacity magazines that you own lawfully. So if that is the case, lets say you owned an older metal 30rd mag from the 90's. Well now 20 years later it's dented and beat up, maybe the follower doesn't slide as well because it's dented and warped. So to keep that magazine alive you need to refurbish/upgrade the body. And instead of the original metal one, why not replace the body with a newer plastic version. So if you kept the original follower and spring and replaced the body and base plate with say a newer style plastic one what wrong with that??

You can change the body on a vintage car to keep it alive, if you can change the stock your rifle sits in, you can remodel the complete outside of your home... it isn't serialized so who's to say that the metal body is the sole piece that is the magazine?? As long as you actually destroy the older body, you would just be upgrading and up keeping your existing magazine, NO?

Sorry if my wording isn't the best.... def not a law student here :)

what2be
03-10-2014, 1:27 PM
The wheels of justice grind slowly...lol

Heres the letter from the DA letting me know ive been charged.

https://www.dropbox.com/s/zmckq91koz1i3pd/HumboldtDA1.jpg

taperxz
03-10-2014, 1:33 PM
The wheels of justice grind slowly...lol

Heres the letter from the DA letting me know ive been charged.

https://www.dropbox.com/s/zmckq91koz1i3pd/HumboldtDA1.jpg

32310. Except as provided in Article 2 (commencing with Section
32400) of this chapter and in Chapter 1 (commencing with Section
17700) of Division 2 of Title 2, commencing January 1, 2000, any
person in this state who manufactures or causes to be manufactured,
imports into the state, keeps for sale, or offers or exposes for
sale, or who gives, or lends, any large-capacity magazine is
punishable by imprisonment in a county jail not exceeding one year or
imprisonment pursuant to subdivision (h) of Section 1170.

Which one did you do or admit to doing?

Untamed1972
03-10-2014, 1:51 PM
The wheels of justice grind slowly...lol

Heres the letter from the DA letting me know ive been charged.

https://www.dropbox.com/s/zmckq91koz1i3pd/HumboldtDA1.jpg

CA....making criminals out of upstanding people via made-up victimless crimes.....all while releasing 40,000 felons from prison they have no room for.

RickD427
03-10-2014, 2:16 PM
The wheels of justice grind slowly...lol

Heres the letter from the DA letting me know ive been charged.

https://www.dropbox.com/s/zmckq91koz1i3pd/HumboldtDA1.jpg

I know that a lot of us are dying of curiousity to know more of the details, but with charges now pending, I'd really encourage you to cease any further posting of information during the pendency of the case, and to make sure that you have the best representation that you can get.

When it's fully resolved, then please let us know what happened.

JonW
03-10-2014, 2:49 PM
Am I the only one that finds it odd that the magazines were seized on 11/7, but the officer involved just happened to be finishing his report on 11/19, the same day the OP went to inquire about it? It took him 12 days to write the report? I'd be checking the evidence logs to see when the mags actually got logged into evidence.

RickD427
03-10-2014, 3:01 PM
Am I the only one that finds it odd that the magazines were seized on 11/7, but the officer involved just happened to be finishing his report on 11/19, the same day the OP went to inquire about it? It took him 12 days to write the report? I'd be checking the evidence logs to see when the mags actually got logged into evidence.

Jon,

It's not at all unusual for reports to take that long to be authored, particulary if the officer is assigned to an investigative function. Patrol officers usually will finish in a few days.

Property is normally booked right after its seizure. That prevents "chain of custody" questions from coming up.

I can see where you're trying to go, but unless the magazines were booked into evidence after the OP made his inquiry, these facts just are not going to get you there. If the magazines were booked after the inquiry, then there is some serious 'splaining to be done by the arresting LEO.

The OP's attorney will have the ability to examine the date and manner in which the magazines were booked.

what2be
03-10-2014, 3:20 PM
I am going to contact my attorney sometime next week to see what it's going to cost to defend me on this matter. I read awhile ago that there has never been a case where someone was charged solely based on a high cap charge. I guess im the first?

Also, to the previous posters question, I admitted to nothing.

Oceanbob
03-10-2014, 3:31 PM
A good attorney might be able to clear this up with a phone call to the DA or the Assistant DA listed on the letter. Perhaps one of the attorneys from this website would help out.

Librarian
03-10-2014, 4:50 PM
Now that this is (or, is about to be) in the hands of the lawyers, we'll let this rest.

A bit late to un-see anything.