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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #41  
Old 01-01-2007, 4:52 PM
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You are hung up on this.

There has to be a crime in the first place to allow a LEO or DA to arrest or charge. Otherwise they are violating your Constitutional rights, tort law, and the Bar ethics rules.

The DA has to have a criminal case to then opt to charge the infraction. If the initial criminal case isn't there, then he can't charge the infraction. If this was done more than once, it would be a violation of Federal civil rights law too.

What stops a cop from arresting you at the range for looking funny even when the only gun you have in your possession is a 03A3?

-Gene
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  #42  
Old 01-01-2007, 5:17 PM
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Quote:
Originally Posted by hoffmang
You are hung up on this.

There has to be a crime in the first place to allow a LEO or DA to arrest or charge. Otherwise they are violating your Constitutional rights, tort law, and the Bar ethics rules.

The DA has to have a criminal case to then opt to charge the infraction. If the initial criminal case isn't there, then he can't charge the infraction. If this was done more than once, it would be a violation of Federal civil rights law too.

What stops a cop from arresting you at the range for looking funny even when the only gun you have in your possession is a 03A3?

-Gene
Yes, I am hung up on this...

Where in SB2728 do you see any requirement for a criminal determination prior to the civil determination?

SEC. 2. Section 12282 is added to the Penal Code, to read:
12282. (a) Except as provided in Section 12280, possession of any
assault weapon, as defined in Section 12276, 12276.1, or 12276.5, or
of any .50 BMG rifle, as defined in Section 12278, in violation of
this chapter is a public nuisance, solely for purposes of this
section and subdivision (d) of Section 12028.


The Attorney General,
any district attorney, or any city attorney, may, in lieu of criminal
prosecution, bring a civil action or reach a civil compromise
in any
superior court to enjoin the possession of the assault weapon or .50
BMG rifle that is a public nuisance.

I beleive I understand your point....that there must be a crime committed for the DA to have an option in the first place. My point is the act itself is now considered a public nuisance from the beginning.
  #43  
Old 01-01-2007, 5:42 PM
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Illegal Assault Weapons are a public nuisance. The prosecutor has to prove that the rifle is an illegal assault weapon. OLLs are not illegal assault weapons.

"in lieu of crimiinal prosecution" means that he can file a civil case at which you can show evidence that the rifle isn't an illegal AW. After he loses once, he can't keep trying to prosecute. Also, he's not going to waste his time in the first place - especially where any of them understand the OLL issue.

Plus, I think you underestimate the political backlash grabbing legal rifles en mass like you're talking about would cause.

The government can not take your property without due process of law. Also, there was nothing stopping LEOs/DAs from doing exactly what you were talking about before the passage of AB-2728.

-Gene
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  #44  
Old 01-01-2007, 5:59 PM
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tin foil hat on too tight

that's all I am going to say here
  #45  
Old 01-01-2007, 6:08 PM
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Quote:
Originally Posted by hoffmang
Illegal Assault Weapons are a public nuisance. The prosecutor has to prove that the rifle is an illegal assault weapon. OLLs are not illegal assault weapons.

"in lieu of crimiinal prosecution" means that he can file a civil case at which you can show evidence that the rifle isn't an illegal AW. After he loses once, he can't keep trying to prosecute. Also, he's not going to waste his time in the first place - especially where any of them understand the OLL issue.

Plus, I think you underestimate the political backlash grabbing legal rifles en mass like you're talking about would cause.

The government can not take your property without due process of law. Also, there was nothing stopping LEOs/DAs from doing exactly what you were talking about before the passage of AB-2728.

-Gene
Gene, I agree with you that we still hold the upper hand. My problem with SB2728 is it severely reduces the burden the DA must meet in order for a rifle to be declared an AW and subject to destruction. If its legal then its legal...in principle I agree, but you and I both know there are activist Judges out there. With this now in a civil arena our protections have been reduced.

We will have to see how this plays out in the real world...I hope my hesitations are proven unwarranted.
  #46  
Old 01-01-2007, 6:09 PM
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Quote:
Originally Posted by koiloco
tin foil hat on too tight

that's all I am going to say here
Yeah...tin foil hat....

Do you even comprehend what is being discussed? Dont mean to sound flippant, but what are you adding to this discussion?
  #47  
Old 01-01-2007, 6:10 PM
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Give it up Gene...you are never going to change his mind no matter how many times he is corrected.
  #48  
Old 01-01-2007, 6:14 PM
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Question, how can a rifle be found
Quote:
in violation of
this chapter
without going into a criminal court?

It's penal code, right? It's gotta go through a criminal court, doesn't it?
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  #49  
Old 01-01-2007, 6:16 PM
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Quote:
Originally Posted by 10TH AMENDMENT
Give it up Gene...you are never going to change his mind no matter how many times he is corrected.
What have I said that is inaccurate? What have I said that was corrected? In terms or process I have been wholly accurate. Perhaps you are having issues understanding the nuances between criminal and civil law. No matter how many times it is explained to you.
  #50  
Old 01-01-2007, 6:17 PM
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Quote:
Originally Posted by M. Sage
Question, how can a rifle be found

without going into a criminal court?

It's penal code, right? It's gotta go through a criminal court, doesn't it?
Criminal Court yes, but treated as a civil proceeding. Not unlike a traffic ticket.
  #51  
Old 01-01-2007, 6:29 PM
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Quote:
Originally Posted by hoffmang
Also, there was nothing stopping LEOs/DAs from doing exactly what you were talking about before the passage of AB-2728.

-Gene
I'm sorry I didn't catch this last sentence until moments ago.

Prior to SB2728 there was no process in place to make the determination that a rifle is a nuisance with a reduced burden. Until SB2728 the only option for the DA was a full criminal prosecution with the burden being beyond a reasonable doubt.

How would this have been possible prior to SB2728?
  #52  
Old 01-01-2007, 6:36 PM
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I still think this civil case has an underlying beyond a reasonable doubt threshold.

We'll need a defense attorney to settle this.

-Gene
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  #53  
Old 01-01-2007, 6:42 PM
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Quote:
Originally Posted by hoffmang
I still think this civil case has an underlying beyond a reasonable doubt threshold.

We'll need a defense attorney to settle this.

-Gene
I have never known of a civil matter with a criminal threshold.

I have seen some civil matters with a higher burden than Prepnderance of the Evidence...that would be "Clear and convincing".

EVIDENCE, CLEAR AND CONVINCING - The level of proof sometimes required in a civil case for the plaintiff to prevail. It means the trier of fact must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard but less than beyond a reasonable doubt.

This definition references a "Plaintiff" so this would be a strictly civil matter...not sure a DA could be a Plaintiff.

I think this question needs to be posed to one of the quality Attorney's on our side.
  #54  
Old 01-01-2007, 6:49 PM
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Quote:
Originally Posted by 10TH AMENDMENT
Give it up Gene...you are never going to change his mind no matter how many times he is corrected.
Quote:
Originally Posted by FreedomIsNotFree
What have I said that is inaccurate? What have I said that was corrected? In terms or process I have been wholly accurate. Perhaps you are having issues understanding the nuances between criminal and civil law. No matter how many times it is explained to you.
OK. I could be totally misunderstanding you. Let me see if you could set me straight.

Simple Question:

Are you proposing that AB2728 has given any prosecuting authority the ability to charge an individual who lawfully owns an unlisted AR/AK "Series" rifle with the infraction of posessing an illegal Assault Weapon?
  #55  
Old 01-01-2007, 6:51 PM
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Default Please don't give it up!

Quote:
Originally Posted by 10TH AMENDMENT
Give it up Gene...you are never going to change his mind no matter how many times he is corrected.
Please don't give up this discussion. I had posted a similar concern earlier about this. I don't see what will stop the DOJ from utilizing anti gunner DA's and LE organizations to put the pressure on OLL's by asserting that they are AW's and using the nuisance provisions of SB2728 easily confiscate them. A lot of damage could be done before any test case could move far enough up the legal chain to stop them.
I hope I am being paranoid. But then again, that doesn't mean they are not after me (us?). I also have seen too much jubilation about this bill from the anti's, possibly they never really caught on to the fact that it started out as one thing and became another??
Anyway, this is an intelligent dialog, and I appreciat your thoughtful give and take.
  #56  
Old 01-01-2007, 6:52 PM
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Quote:
Originally Posted by 10TH AMENDMENT
OK. I could be totally misunderstanding you. Let me see if you could set me straight.

Simple Question:

Are you proposing that AB2728 has given any prosecuting authority the ability to charge an individual who lawfully owns an unlisted AR/AK "Series" rifle with the infraction of posessing an illegal Assault Weapon?
Of course I am. That is clear in the law.

The determination of lawfullness will be in front of a Judge not a jury and the burden of proof has been reduced from "beyond a reasonable doubt" to some other lesser civil level.

Of course we are legal, by our determination, and letter of the law, and therefor no Judge should ever rule against us...right?
  #57  
Old 01-01-2007, 6:52 PM
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Quote:
Originally Posted by FreedomIsNotFree
Criminal Court yes, but treated as a civil proceeding. Not unlike a traffic ticket.
Burden of proof in the traffic ticket you mention is still with the state. It's lower than, say, a murder case, but it's still on the Gov't.
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  #58  
Old 01-01-2007, 6:59 PM
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Quote:
Originally Posted by fairfaxjim
Please don't give up this discussion. I had posted a similar concern earlier about this. I don't see what will stop the DOJ from utilizing anti gunner DA's and LE organizations to put the pressure on OLL's by asserting that they are AW's and using the nuisance provisions of SB2728 easily confiscate them. A lot of damage could be done before any test case could move far enough up the legal chain to stop them.
I hope I am being paranoid. But then again, that doesn't mean they are not after me (us?). I also have seen too much jubilation about this bill from the anti's, possibly they never really caught on to the fact that it started out as one thing and became another??
Anyway, this is an intelligent dialog, and I appreciat your thoughtful give and take.

Thanks...I was beginning to think any opinion that challenged the common understanding was not welcome.
  #59  
Old 01-01-2007, 7:01 PM
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Quote:
Originally Posted by M. Sage
Burden of proof in the traffic ticket you mention is still with the state. It's lower than, say, a murder case, but it's still on the Gov't.
Yes...it is by Preponderance of the evidence...this can mean 51% to 49% one way or another. It is the lowest of burdens.
  #60  
Old 01-01-2007, 7:01 PM
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Quote:
Originally Posted by FreedomIsNotFree
Of course I am. That is clear in the law.

The determination of lawfullness will be in front of a Judge not a jury and the burden of proof has been reduced from "beyond a reasonable doubt" to some other lesser civil level.

Of course we are legal, by our determination, and letter of the law, and therefor no Judge should ever rule against us...right?
OK, Good.

So then you are also proposing that AB2728 has given any prosecuting authority the ability to charge an individual who lawfully owns a Remington Model 7400 rifle with the infraction of posessing an illegal Assault Weapon too, correct?
  #61  
Old 01-01-2007, 7:12 PM
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Quote:
Originally Posted by 10TH AMENDMENT
OK, Good.

So then you are also proposing that AB2728 has given any prosecuting authority the ability to charge an individual who lawfully owns a Remington Model 7400 rifle with the infraction of posessing an illegal Assault Weapon too, correct?
I'm not proposing anything. It is my opinion that you can be charged for just about anything. Trial is not held in the street.

See what was previously stated in terms of malicious prosecution....it wouldn't apply here.

In regards to your Rem. Model 7400...do you have evil features on it....? It would look funny, but I wouldn't put it past some here...
  #62  
Old 01-01-2007, 7:16 PM
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Quote:
Originally Posted by FreedomIsNotFree
What trial? This has been reduced to a CIVIL action. There is no jury trial for a civil action such as this.
I don't think an infraction is a civil action. It's still People of the State of California vs. Some Poor Sap, it's just that now as an infraction you don't face jail time, or confiscation of ALL your guns. One of the firearm related misdemeanors means a life time ban on owning or possessing, and in just about any other state, too. Felonies are far, far worse.

One consequence of no jail time is no court appointed attorney.

Prove-ups in infractions are pretty simple, usually, because they tend to be very minor and many defenses don't fit. For example, just about every infraction requires that you be caught doing the act, so no opportunity to claim you were actually in Baltimore that evening. That doesn't mean you can't avoid a guilty verdict on a technicality.

I recall getting a ticket years ago for driving while wearing a headset. The VC in question forbids wearing a headset covering both ears. The headset in question had only one earpiece. The cop didn't know/care/realize that. That's really not a technicality, technically, since the conduct didn't meet the statutory prohibition. Case dismissed.
  #63  
Old 01-01-2007, 7:23 PM
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Quote:
Originally Posted by JALLEN
I don't think an infraction is a civil action. It's still People of the State of California vs. Some Poor Sap, it's just that now as an infraction you don't face jail time, or confiscation of ALL your guns. One of the firearm related misdemeanors means a life time ban on owning or possessing, and in just about any other state, too. Felonies are far, far worse.

One consequence of no jail time is no court appointed attorney.

Prove-ups in infractions are pretty simple, usually, because they tend to be very minor and many defenses don't fit. For example, just about every infraction requires that you be caught doing the act, so no opportunity to claim you were actually in Baltimore that evening. That doesn't mean you can't avoid a guilty verdict on a technicality.

I recall getting a ticket years ago for driving while wearing a headset. The VC in question forbids wearing a headset covering both ears. The headset in question had only one earpiece. The cop didn't know/care/realize that. That's really not a technicality, technically, since the conduct didn't meet the statutory prohibition. Case dismissed.

First off, I dont think classifying this civil process as an infraction is accurate. Its similar in terms of burden of proof and lack of a jury trial, but in the law this has been classified as a nuisance...a public nuisance.

With SB2728 reducing the process to a civil matter means no jail time for the defendent...true..., but it also reduces the burden of proof that the Prosecution must reach.

When you fight a traffic citation there is no DA there...its still People of the State of CA vs. whomever.

Additionally, who says this must be heard in front of a Judge....? Commissioners often sit on the bench over civil matters.
  #64  
Old 01-01-2007, 7:23 PM
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Quote:
Originally Posted by FreedomIsNotFree
I'm not proposing anything. It is my opinion that you can be charged for just about anything. Trial is not held in the street.

See what was previously stated in terms of malicious prosecution....it wouldn't apply here.

In regards to your Rem. Model 7400...do you have evil features on it....? It would look funny, but I wouldn't put it past some here...
You have to be kidding, right?
  #65  
Old 01-01-2007, 7:30 PM
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Quote:
Originally Posted by MonsterMan
They can't take your legal rifle.
Umm, they've already done it, several times.

"Legal" means you get a cop who knows about the statute and/or cares what it says. Anything else, your rifle is "illegal". Until you've sat in a cell for a while and spent tens of thousands of dollars to prove otherwise.
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  #66  
Old 01-01-2007, 7:32 PM
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Originally Posted by 10TH AMENDMENT
You have to be kidding, right?
Why do I have to be kidding? You kept mentioning how I was proposing this or proposing that....I never proposed anything.

Perhaps this is why we are not understanding eachother.
  #67  
Old 01-01-2007, 7:34 PM
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Originally Posted by jnojr
Umm, they've already done it, several times.

"Legal" means you get a cop who knows about the statute and/or cares what it says. Anything else, your rifle is "illegal". Until you've sat in a cell for a while and spent tens of thousands of dollars to prove otherwise.
Exactly...trial is NOT held in the street. The Officer with the badge and gun pretty much runs the show at that point.

Again, I am not saying for sure this is the way its going to play out...but folks better be ready for surprises.
  #68  
Old 01-01-2007, 7:41 PM
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OK, just to set the facts in order here FreedonIsNotFree.

Do a simple reading of the actual law and you will even be convinced yourself that a prosecuting authority can only charge an infraction "in lieu of" a misdemeanor or a felony for illegal possession of an Assault Weapon
if and only if it is first determined that the suspect has violated the relevant sections of the PC chapter that define and prohibit the possession of an illegal Assault weapon.

2005 CA A.B. 2728

CALIFORNIA 2005-06 REGULAR SESSION

ASSEMBLY BILL 2728


CHAPTER 793
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2006
APPROVED BY GOVERNOR SEPTEMBER 29, 2006
PASSED THE ASSEMBLY AUGUST 31, 2006
PASSED THE SENATE AUGUST 29, 2006
AMENDED IN SENATE AUGUST 24, 2006
AMENDED IN SENATE AUGUST 7, 2006
AMENDED IN SENATE JUNE 29, 2006
AMENDED IN SENATE JUNE 15, 2006
AMENDED IN ASSEMBLY APRIL 17, 2006
================================================== ============================
INTRODUCED BY ASSEMBLY MEMBER KLEHS
================================================== ============================
FEBRUARY 24, 2006



BILL TRACKING REPORT: 2005 Bill Tracking CA A.B. 2728

2005 Bill Text CA A.B. 2728

VERSION: Chaptered

VERSION-DATE: September 29, 2006

SYNOPSIS: An act to amend Section 12276.5 of, and to add Section 12282 to, the Penal Code, relating to firearms.



DIGEST:

LEGISLATIVE COUNSEL'S DIGEST

AB 2728, Klehs Firearms.

Existing law provides a judicial procedure for declaring a firearm an assault weapon, as specified.

This bill would repeal those provisions.

Existing law authorizes the Attorney General to declare a firearm an assault weapon.

This bill would provide that authorization ends January 1, 2007.

Existing law generally regulates the possession of assault weapons and .50 BMG rifles.

This bill would provide that possession of any assault weapon or of any .50 BMG rifle in violation of specified provisions of law would be a public nuisance. The bill would authorize the Attorney General, any district attorney, or any city attorney to bring an action in superior court, in lieu of criminal prosecution, to enjoin the possession of the assault weapon or .50 BMG rifle and seek civil fines of up to $ 300 for the first assault weapon or .50 BMG rifle that is a public nuisance, and up to $ 100 for each additional assault weapon or .50 BMG rifle that is a public nuisance. The bill would further provide that any assault weapon or .50 BMG rifle possessed in violation of specified provisions of law would, subject to exception, be destroyed, as specified. The bill would also provide that upon conviction of any misdemeanor or felony involving an assault weapon, the assault weapon would be deemed a nuisance and disposed of as specified.

TEXT: THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 12276.5 of the Penal Code is amended to read:

12276.5. (a) The Attorney General shall prepare a description for identification purposes, including a picture or diagram, of each assault weapon listed in Section 12276, and any firearm declared to be an assault weapon pursuant to this section, and shall distribute the description to all law enforcement agencies responsible for enforcement of this chapter. Those law enforcement agencies shall make the description available to all agency personnel.

(b) (1) Until January 1, 2007, the Attorney General shall promulgate a list that specifies all firearms designated as assault weapons in Section 12276 or declared to be assault weapons pursuant to this section. The Attorney General shall file that list with the Secretary of State for publication in the California Code of Regulations. Any declaration that a specified firearm is an assault weapon shall be implemented by the Attorney General who, within 90 days, shall promulgate an amended list which shall include the specified firearm declared to be an assault weapon. The Attorney General shall file the amended list with the Secretary of State for publication in the California Code of Regulations. Any firearm declared to be an assault weapon prior to January 1, 2007, shall remain on the list filed with the Secretary of State.

(2) Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, pertaining to the adoption of rules and regulations, shall not apply to any list of assault weapons promulgated pursuant to this section.

(c) The Attorney General shall adopt those rules and regulations that may be necessary or proper to carry out the purposes and intent of this chapter.

SEC. 2. Section 12282 is added to the Penal Code, to read:

12282. (a) Except as provided in Section 12280, possession of any assault weapon, as defined in Section 12276, 12276.1, or 12276.5, or of any .50 BMG rifle, as defined in Section 12278, in violation of this chapter is a public nuisance, solely for purposes of this section and subdivision (d) of Section 12028. The Attorney General, any district attorney, or any city attorney, may, in lieu of criminal prosecution, bring a civil action or reach a civil compromise in any superior court to enjoin the possession of the assault weapon or .50 BMG rifle that is a public nuisance.

(b) Upon motion of the Attorney General, district attorney, or city attorney, a superior court may impose a civil fine not to exceed three hundred dollars ($ 300) for the first assault weapon or .50 BMG rifle deemed a public nuisance pursuant to subdivision (a) and up to one hundred dollars ($ 100) for each additional assault weapon or .50 BMG rifle deemed a public nuisance pursuant to subdivision (a).

(c) Any assault weapon or .50 BMG rifle deemed a public nuisance under subdivision (a) shall be destroyed in a manner so that it may no longer be used, except upon a finding by a court, or a declaration from the Department of Justice, district attorney, or city attorney stating that the preservation of the assault weapon or .50 BMG rifle is in the interest of justice.

(d) Upon conviction of any misdemeanor or felony involving the illegal possession or use of an assault weapon, the assault weapon shall be deemed a public nuisance and disposed of pursuant to subdivision (d) of Section 12028.

SPONSOR:
Klehs

SUBJECT: JUSTICE DEPARTMENTS (94%); NUISANCE (94%); LEGISLATION (92%); ATTORNEYS GENERAL (92%); FIREARMS (91%); LAWYERS (91%); INJUNCTIONS (90%); CRIMINAL LAW (90%); LAW COURTS & TRIBUNALS (90%); ILLEGAL WEAPONS (90%); TRIAL & PROCEDURE (90%); CRIMINAL OFFENSES (90%); FINES & PENALTIES (90%); LEGISLATIVE BODIES (90%); LAW ENFORCEMENT (90%);

COUNTRY: UNITED STATES (95%);

STATE: CALIFORNIA, USA (95%);

LOAD-DATE: October 10, 2006
  #69  
Old 01-01-2007, 7:52 PM
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BTW Freedom, I have thoroughly enjoyed batting this issue around with you...and one thing is for sure, I absolutely agree with your board handle!
  #70  
Old 01-01-2007, 8:14 PM
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LOL

OMG I can't believe there's someone as thick headed as I am. Sorry but I saw the point by 10TH AMENDMENT even before finishing his first post.

I'll try to chime in because I do agree that the concept is strange and I would have a hard time myself if I was in someone else’s shoes.

A charge cannot be "reduced" or "charged in lieu of" until there was a charge to begin with. That initial case must proceed at least to the point that proves you owned an ASSAULT WEAPON to begin with. With this information in had the DA can charge you with a host of assault weapon charges; but they will instead "charge you in lieu of" for an infraction of public nuisance. Basically the DA has to at least prove that you were guilty of assault weapon charges to even charge you with the lower infraction. Now it is true that a DA can go ahead and recommend you plead out the case on the lesser infraction charge. At this point a call to the NRA would be in order to correct this DA’s assumptions. If you choose not to and go ahead with your plea bargain, than that is upon your character. I don’t mind pleading a traffic case, I will however spend all my fortune fighting for my Right to Bear Arms.

The point is that you can't take "something in lieu" of if there wasn't anything there to begin with. It's like the principle of substitution; I can't substitute something when there wasn't anything to begin with.

A person buys a dozen eggs form a farmer, the farmer is unable to deliver so he offers the chicken “in lieu of” the dozen eggs. But if you didn’t buy anything, than there would be nothing there to substitute anything for. Can you substitute a chicken for something that wasn't there to begin with? You could try but any sane person would scratch their head and walk away from you pondering what this crazy person holding the chicken is talking about.

Last edited by bobfried; 01-01-2007 at 8:19 PM..
  #71  
Old 01-01-2007, 8:20 PM
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Quote:
Originally Posted by 10TH AMENDMENT
BTW Freedom, I have thoroughly enjoyed batting this issue around with you...and one thing is for sure, I absolutely agree with your board handle!
Thank you...I always appreciate debate.

That being said.....

Where do you find in SB2728 any mention that there must first be a legal determination that the rifle is an AW before charges are filed. Its on the Prosecutor to determine how to prosecute...but the Officer in the field has no such duty.

You used the terminology "if and only if"....where are you quoting that from? I dont see that anywhere in the law.

Here is a scenario for you.....

As we have seen in a few cases, some folks have had their "legal" OLL builds confiscated by Police that either disagree or are not aware of our arguments. If this was to happen now that SB2728 is in effect the DA will be presented with a Police report and have to make a determination on how he would like to proceed. He can either charge you criminally, which would be a Felony, burden of proof being Beyong a Reasonable Doubt or he could seek a civil punishment and have your rifle destroyed and fine you $300.

The DA is likely to seek the civil recourse because he is not likely to ever get a jury of 12 to agree beyond a reasonable doubt. So he goes for the civil option and must only prove by preponderance of the evidence in front of a lone Judge or Commissioner.

There is no seperate or prior process in place, based on SB2728, to determine a rifles legality before the DA decides to prosecute. That determination is up to the lone Judge or Commissioner.
  #72  
Old 01-01-2007, 8:25 PM
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Quote:
Originally Posted by bobfried
LOL

The point is that you can't take "something in lieu" of if there wasn't anything there to begin with. It's like the principle of substitution; I can't substitute something when there wasn't anything to begin with.

A person buys a dozen eggs form a farmer, the farmer is unable to deliver so he offers the chicken “in lieu of” the dozen eggs. But if you didn’t buy anything, than there would be nothing there to substitute anything for.

Can you substitute a chicken for something that wasn't there to begin with? You could try but any sane person would scratch their head and walk away from you pondering what this crazy person holding the chicken is talking about.
That's about as succinct as it gets, bobfried.

I couldn't have put it any better myself!
  #73  
Old 01-01-2007, 8:27 PM
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Quote:
Originally Posted by bobfried
LOL

OMG I can't believe there's someone as thick headed as I am. Sorry but I saw the point by 10TH AMENDMENT even before finishing his first post.

I'll try to chime in because I do agree that the concept is strange and I would have a hard time myself if I was in someone else’s shoes.

A charge cannot be "reduced" or "charged in lieu of" until there was a charge to begin with. That initial case must proceed at least to the point that proves you owned an ASSAULT WEAPON to begin with. With this information in had the DA can charge you with a host of assault weapon charges; but they will instead "charge you in lieu of" for an infraction of public nuisance. Basically the DA has to at least prove that you were guilty of assault weapon charges to even charge you with the lower infraction. Now it is true that a DA can go ahead and recommend you plead out the case on the lesser infraction charge. At this point a call to the NRA would be in order to correct this DA’s assumptions. If you choose not to and go ahead with your plea bargain, than that is upon your character. I don’t mind pleading a traffic case, I will however spend all my fortune fighting for my Right to Bear Arms.

The point is that you can't take "something in lieu" of if there wasn't anything there to begin with. It's like the principle of substitution; I can't substitute something when there wasn't anything to begin with.

A person buys a dozen eggs form a farmer, the farmer is unable to deliver so he offers the chicken “in lieu of” the dozen eggs. But if you didn’t buy anything, than there would be nothing there to substitute anything for. Can you substitute a chicken for something that wasn't there to begin with? You could try but any sane person would scratch their head and walk away from you pondering what this crazy person holding the chicken is talking about.

Where in the law do you see any such requirement for determination prior to prosecution? None exists. The determination is made by the Judge or Commissioner.

You said:

"That initial case must proceed at least to the point that proves you owned an ASSAULT WEAPON to begin with"

Where are you getting this from? And again, even if that were true, the burden has been reduced to Preponderance of the Evidence....a civil level. What process are you talking about...? In front of whom? To what burden? There simply is no provision in the law that states what you claim.
  #74  
Old 01-01-2007, 8:31 PM
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Quote:
Originally Posted by 10TH AMENDMENT
That's about as succinct as it gets, bobfried.

I couldn't have put it any better myself!
Guys....the "in lieu of" is from criminal to civil.

The DA has decided to charge civily "in lieu of" criminal charges.

What makes you think its anything else?


Here is the actual law:

SEC. 2. Section 12282 is added to the Penal Code, to read:
12282. (a) Except as provided in Section 12280, possession of any
assault weapon, as defined in Section 12276, 12276.1, or 12276.5, or
of any .50 BMG rifle, as defined in Section 12278, in violation of
this chapter is a public nuisance, solely for purposes of this
section and subdivision (d) of Section 12028. The Attorney General,
any district attorney, or any city attorney, may, in lieu of criminal
prosecution, bring a civil action or reach a civil compromise in any
superior court to enjoin the possession of the assault weapon or .50
BMG rifle that is a public nuisance.

Last edited by FreedomIsNotFree; 01-01-2007 at 8:39 PM..
  #75  
Old 01-01-2007, 8:33 PM
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Quote:
Originally Posted by FreedomIsNotFree
Where in the law do you see any such requirement for determination prior to prosecution? None exists. The determination is made by the Judge or Commissioner.

You said:

"That initial case must proceed at least to the point that proves you owned an ASSAULT WEAPON to begin with"

Where are you getting this from? And again, even if that were true, the burden has been reduced to Preponderance of the Evidence....a civil level. What process are you talking about...? In front of whom? To what burden? There simply is no provision in the law that states what you claim.
I just showed it to you. Did you read and understand it? If you did and think you do, tell us in detail what it says.
  #76  
Old 01-01-2007, 8:37 PM
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Quote:
Originally Posted by 10TH AMENDMENT
I just showed it to you. Did you read and understand it? If you did and think you do, tell us in detail what it says.
I read what you wrote. I just dont see how you come to that conclusion by highlighting those particular words or phrases. Could you try to explain it again please?
  #77  
Old 01-01-2007, 8:38 PM
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You answered your own question there:

[QUOTE=FreedomIsNotFree]
The DA has decided to charge civily "in lieu of" criminal charges.
[QUOTE]

There must be ground for the DA to have been able to charge you with criminal charges to begin with. Until the DA can at least show YOU, the defendent that he/she has enough evidence to charge you with criminal charges, they won't be able to "in lieu of" anything. If you decide to not accept the charges it will than go in front of a judge where he/she will ask the DA to show the proof that you were guilty of criminal charges in the first place. You won't have to hire anything up until this point because the trial is still in exploration, the judge still has determine there is a case at all to begin with. If your smart enough and post on the board I believe there would be more than enough help to convince the judge of the facts.

So if the judge does agree that your weapon is an illegal assualt weapon, the DA can proceed with his civil charges, whereas you have already been at least found possibly guilty of the criminal charges.

It's all about exploration, I know enough about the law to know a judge will throw a case out if the DA doesn't at least provide enough evidence to proceed.
  #78  
Old 01-01-2007, 8:46 PM
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[QUOTE=bobfried]You answered your own question there:

[QUOTE=FreedomIsNotFree]
The DA has decided to charge civily "in lieu of" criminal charges.
Quote:

There must be ground for the DA to have been able to charge you with criminal charges to begin with. Until the DA can at least show YOU, the defendent that he/she has enough evidence to charge you with criminal charges, they won't be able to "in lieu of" anything. If you decide to not accept the charges it will than go in front of a judge where he/she will ask the DA to show the proof that you were guilty of criminal charges in the first place. You won't have to hire anything up until this point because the trial is still in exploration, the judge still has determine there is a case at all to begin with. If your smart enough and post on the board I believe there would be more than enough help to convince the judge of the facts.

So if the judge does agree that your weapon is an illegal assualt weapon, the DA can proceed with his civil charges, whereas you have already been at least found possibly guilty of the criminal charges.

It's all about exploration, I know enough about the law to know a judge will throw a case out if the DA doesn't at least provide enough evidence to proceed.

Bob...I'm not trying to be rude but your post shows clear lack of understanding on criminal procedure.

The DA does not have to prove anything to YOU prior to charging YOU with a crime or a nuisance.

If a DA decided to charge you criminally, then you get an ARRAIGNMENT hearing within 72 hours where the DA must only provide enough evidence to convince the Judge a crime was committed. A very low burden.

If a DA decided to charge you with a public nuisance civily, then there is no 72 hour arraingment or criminal burden to overcome.

DA's never need to prove their case prior to trial...that is what the trial is for.
  #79  
Old 01-01-2007, 8:53 PM
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I think it is time for me to take my own advice...I give up!
  #80  
Old 01-01-2007, 8:54 PM
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Quote:
Originally Posted by 10TH AMENDMENT
I think it is time for me to take my own advice...I give up!
HAHA.....Catch ya later....
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