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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1561  
Old 04-10-2021, 12:23 PM
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Originally Posted by Bolt_Action View Post
Probably the same thing that took so long the first two times he ruled on cases similar to this one.
How long was it for him to give us the first freedom week?

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  #1562  
Old 04-10-2021, 1:59 PM
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I'm trying to find the actual trial date for that but can't.

I'm just tingling because the timing seems right.

The VERY Honorable Benitez has had this for two months now. And with regard to Biden's shenanigans and the corrupt left's agenda it seems ripe to drop the truth gavel in the next month.

I hope I'm right, and it spurs the SC to finally take a 2A case. Time for them to pinch it off and get off this sh**ter
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  #1563  
Old 04-10-2021, 2:48 PM
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Originally Posted by SpookyWatcher View Post
The VERY Honorable Benitez has had this for two months now.
He's coming up on 1 month since the last filing (the state's response to his request for firearm sales numbers).

Not gonna lie though, I was definitely checking this thread every hour or so on Friday afternoon.
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  #1564  
Old 04-11-2021, 2:04 AM
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Pretty much praying for grandfathering of existing assault weapons without registration. If a cop really wanted to destroy you they could run the make/model/serial through DROS records and see that you acquired an "assault weapon" after Benitez's hypothetical "freedom week" for assault weapons, but if something like millions of assault weapons become legal overnight, I suspect that cops would be largely disinclined to harass random people at gun ranges just due to the resulting legal herd immunity and high likelihood of shaking down someone who would have a legal rifle, making that cop look dumb for wasting the prosecution's time and resources.

If Benitez gives us registration of ALL assault weapons (even ones without bullet buttons) for like 1 week, it's worth essentially nothing. Registration just targets yourself for being harassed by DOJ (see that one guy who got shaken down by cops for his AR pistol that he attempted to register) and given how badly the state bungled up the previous registration scheme, I doubt more than 4 figures of assault weapons would be registered successfully anyway.
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  #1565  
Old 04-11-2021, 8:24 AM
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Originally Posted by AbrahamBurden View Post
Pretty much praying for grandfathering of existing assault weapons without registration. If a cop really wanted to destroy you they could run the make/model/serial through DROS records and see that you acquired an "assault weapon" after Benitez's hypothetical "freedom week" for assault weapons, but if something like millions of assault weapons become legal overnight, I suspect that cops would be largely disinclined to harass random people at gun ranges just due to the resulting legal herd immunity and high likelihood of shaking down someone who would have a legal rifle, making that cop look dumb for wasting the prosecution's time and resources.

If Benitez gives us registration of ALL assault weapons (even ones without bullet buttons) for like 1 week, it's worth essentially nothing. Registration just targets yourself for being harassed by DOJ (see that one guy who got shaken down by cops for his AR pistol that he attempted to register) and given how badly the state bungled up the previous registration scheme, I doubt more than 4 figures of assault weapons would be registered successfully anyway.
What do you mean by "legal herd immunity"?

Is this something that you're just making up, or can you cite to any legal authority establishing, or recognizing, such an immunity?
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Last edited by RickD427; 04-11-2021 at 9:25 AM..
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  #1566  
Old 04-11-2021, 10:41 AM
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Originally Posted by AbrahamBurden View Post
Pretty much praying for grandfathering of existing assault weapons without registration.
Good luck on that.
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  #1567  
Old 04-11-2021, 11:02 AM
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Originally Posted by RickD427 View Post
What do you mean by "legal herd immunity"?

Is this something that you're just making up, or can you cite to any legal authority establishing, or recognizing, such an immunity?
I mean that if say 95 out of 100 ARs with pistol grips and standard magazine releases become legal overnight, then in my view cops/DOJ will be largely disinclined to randomly harass people at the range to fish for the 5 out of 100 that are illegal (acquired/created after the "freedom week"). Of course you'd be screwed if they really turned the heat up and ran the serial numbers through DROS records, but what I'm saying is that a situation where they'd even check said serial numbers would become much more unlikely.

Herd "immunity" was an inaccurate term on my part for this phenomenon; dunno what one would exactly call this legally.
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  #1568  
Old 04-11-2021, 11:03 AM
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Originally Posted by RickD427 View Post
What do you mean by "legal herd immunity"?

Is this something that you're just making up, or can you cite to any legal authority establishing, or recognizing, such an immunity?
I think, and I could be wrong, he is trying to refer to something along the lines of one of the observations in United States v Black (4th Cir, 2013) that:

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The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be "foolhardy" for the officers to "go about their business while allowing a stranger in their midst to possess a firearm." We are not persuaded. Being a felon in possession of a firearm is not the default status...
...with the parallel being possession of an assault weapon (in a hypothetical situation similar to the current state of 'large-capacity magazines') having acquired it illegally would "not be the default status" to the extent that the officers could use it as reasonable suspicion to detain someone and investigate whether their possession of it was legal.

Anyway, that's what I thought he meant by it. I presume without knowing or claiming to be any kind of expert that the laws and case law here are, in effect, much much worse for the fourth amendment rights of firearm owners.
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  #1569  
Old 04-11-2021, 11:08 AM
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Originally Posted by AbrahamBurden View Post
I mean that if say 95 out of 100 ARs with pistol grips and standard magazine releases become legal overnight, then in my view cops/DOJ will be largely disinclined to randomly harass people at the range to fish for the 5 out of 100 that are illegal (acquired/created after the "freedom week"). Of course you'd be screwed if they really turned the heat up and ran the serial numbers through DROS records, but what I'm saying is that a situation where they'd even check said serial numbers would become much more unlikely.

Herd "immunity" was an inaccurate term on my part for this phenomenon; dunno what one would exactly call this legally.
OK, Now I understand you much better. Thanks for the response.

What you describe really isn't an "Immunity" but rather a commentary on the discretionary enforcement of law.

California has very pointedly rejected the concept that criminal statutes are intended to be enforced to the letter. The underlying philosophy is that criminal laws are written to provide the necessary tools so that enforcement agencies can accomplish proper law enforcement objectives. Please see Penal Code section 4, where this is spelled out in statute.
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  #1570  
Old 04-11-2021, 11:19 AM
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California has very pointedly rejected the concept that criminal statutes are intended to be enforced to the letter. The underlying philosophy is that criminal laws are written to provide the necessary tools so that enforcement agencies can accomplish proper law enforcement objectives. Please see Penal Code section 4, where this is spelled out in statute.
This is interesting, I had not seen this before. Does this mean the concept of strict liability does not exist in CA? Has anyone ever used this section successfully as part of a criminal defense?
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  #1571  
Old 04-11-2021, 12:16 PM
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Originally Posted by AbrahamBurden View Post
Pretty much praying for grandfathering of existing assault weapons without registration.
I think there are 4 options:
  • He issues a narrow decision theoretically favorable to those who successfully registered a BBAW, but - unlike Freedom Week - he or the 9th Circus issues a stay such that there's no practical benefit to us until or unless SCOTUS picks it up.
  • He issues a wider decision theoretically favorable to everyone who owns a lower receiver at the time of his ruling, but again a stay - his or the 9th's - means there's no benefit to us for a long while, if ever.
  • His decision and self-imposed stay are befitting the name St. Benitez, but only apply to those with registered BBAWs. (Bullet buttons come off, but everyone else is out of luck.)
  • We win the lotto. His decision applies to everyone currently in possession of any lower receiver, and the stay is written such that we're grandfathered and can do whatever we want this side of the NFA.
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  #1572  
Old 04-11-2021, 12:41 PM
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Originally Posted by pratchett View Post
I think there are 4 options:
  • He issues a narrow decision theoretically favorable to those who successfully registered a BBAW, but - unlike Freedom Week - he or the 9th Circus issues a stay such that there's no practical benefit to us until or unless SCOTUS picks it up.
  • He issues a wider decision theoretically favorable to everyone who owns a lower receiver at the time of his ruling, but again a stay - his or the 9th's - means there's no benefit to us for a long while, if ever.
  • His decision and self-imposed stay are befitting the name St. Benitez, but only apply to those with registered BBAWs. (Bullet buttons come off, but everyone else is out of luck.)
  • We win the lotto. His decision applies to everyone currently in possession of any lower receiver, and the stay is written such that we're grandfathered and can do whatever we want this side of the NFA.
I believe you are conflating some cases here... this is a direct challenge to the AW ban and has nothing to do with the BBRAW fiasco.

The "lotto" scenario is the one that the complaint asks for (enjoinder of the enforcement of ANY AW law), it's really the only one on the table. I expect that's what we get, but it comes with an immediate stay of said enjoinder and a trip up the chain, presumably to a cert request to SCOTUS in a few years.

So, maybe we get our shot in the Big Show, but until that happens, expect no additional Freedom to be forthcoming.
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  #1573  
Old 04-13-2021, 3:32 AM
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Originally Posted by AbrahamBurden View Post
I mean that if say 95 out of 100 ARs with pistol grips and standard magazine releases become legal overnight, then in my view cops/DOJ will be largely disinclined to randomly harass people at the range to fish for the 5 out of 100 that are illegal (acquired/created after the "freedom week"). Of course you'd be screwed if they really turned the heat up and ran the serial numbers through DROS records, but what I'm saying is that a situation where they'd even check said serial numbers would become much more unlikely.

Herd "immunity" was an inaccurate term on my part for this phenomenon; dunno what one would exactly call this legally.
you are not a lawyer and i understand your intent. there are some legal eagles here who just likes to question everything for clarity. i hope to some extent you are right.
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  #1574  
Old 04-13-2021, 6:44 AM
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Originally Posted by champu View Post
I think, and I could be wrong, he is trying to refer to something along the lines of one of the observations in United States v Black (4th Cir, 2013) that:



...with the parallel being possession of an assault weapon (in a hypothetical situation similar to the current state of 'large-capacity magazines') having acquired it illegally would "not be the default status" to the extent that the officers could use it as reasonable suspicion to detain someone and investigate whether their possession of it was legal.

Anyway, that's what I thought he meant by it. I presume without knowing or claiming to be any kind of expert that the laws and case law here are, in effect, much much worse for the fourth amendment rights of firearm owners.
If I am reading your thoughts correctly, LE should not be assuming that every single person, not previously known to them, who possesses anything, is committing a crime until proven otherwise. That all persons are guilty of some crime should not be the “default” status until proven otherwise through records checks, etc. An example might be “I observe a person using an Ar-type rifle at the range, and it has no grip fin, or anything else to suggest it is in a featureless configuration; it must therefore be illegal, unless a records check proves otherwise”.
Hopefully things don’t go that direction.
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  #1575  
Old 04-13-2021, 8:10 AM
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This is interesting, I had not seen this before. Does this mean the concept of strict liability does not exist in CA? Has anyone ever used this section successfully as part of a criminal defense?
I don't think so. Penal Code section 4 provides enforcement guidance. It doesn't speak to criminal liability. Kinda like apples and oranges. That also extends to any potential use for criminal defense. The whole idea that the criminal benefits because the constable has blundered has its roots in the exclusionary rule. No one liked the idea of the exclusionary rule, but the courts decided that it was the only practical method by which the rights of a defendant could be protected. Central to the argument is that some "right" has to be violated before the rule is triggered. The state's decision that the law should be enforced according to a particular philosophy doesn't create a "right" that it be so enforced.

We have some skilled defense attorneys on this forum, it would be good to hear from them if they have had any success with PC4 as a defense tool.
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  #1576  
Old 04-13-2021, 8:40 AM
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I don't think so. Penal Code section 4 provides enforcement guidance. It doesn't speak to criminal liability. Kinda like apples and oranges. That also extends to any potential use for criminal defense. The whole idea that the criminal benefits because the constable has blundered has its roots in the exclusionary rule. No one liked the idea of the exclusionary rule, but the courts decided that it was the only practical method by which the rights of a defendant could be protected. Central to the argument is that some "right" has to be violated before the rule is triggered. The state's decision that the law should be enforced according to a particular philosophy doesn't create a "right" that it be so enforced.

We have some skilled defense attorneys on this forum, it would be good to hear from them if they have had any success with PC4 as a defense tool.
Well IANAL, but at first pass it seems to me that PC4 gives you a defense for the enforcement of any law that doesn’t make any sense, e.g. if you get charged with speeding when you’re driving to the hospital for a life threading emergency.
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  #1577  
Old 04-13-2021, 12:35 PM
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I believe you are conflating some cases here... this is a direct challenge to the AW ban and has nothing to do with the BBRAW fiasco.

The "lotto" scenario is the one that the complaint asks for (enjoinder of the enforcement of ANY AW law), it's really the only one on the table. I expect that's what we get, but it comes with an immediate stay of said enjoinder and a trip up the chain, presumably to a cert request to SCOTUS in a few years.

So, maybe we get our shot in the Big Show, but until that happens, expect no additional Freedom to be forthcoming.
Is there any legal mechanism that Benitez can give us in this enjoinder plus stay to protect assault weapons created during a legal period, as he did for magazines acquired during "freedom week"?

IIRC the real winner for the magazine stuff was that Benitez negated his own decision, but included language explicitly protecting all magazines acquired during "freedom week." Since magazines aren't really serialized or tracked as firearms are, this not only protected people's purchases made during that week but also granted a LOT of plausible deniability for magazines that say they acquire during a road trip to Nevada, or have a seller mail in from Arizona: I haven't heard of a case where the state really turned the heat up and demanded to start going through someone's emails, text messages, or financial records to prove someone acquired a magazine after freedom week.

(Even the Pheng Yang case effectively resulted in the state choosing to disengage rather than diving in this rabbit hole, after Yang's lawyer said that he bought the Glock mag in question during freedom week and didn't have any documentation for it.)
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  #1578  
Old 04-13-2021, 2:35 PM
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Is there any legal mechanism that Benitez can give us in this enjoinder plus stay to protect assault weapons created during a legal period, as he did for magazines acquired during "freedom week"?
Nope.

You know why?

Here's a hint: It rhymes with "hedge is tray shun"

CA's laws surrounding possession and acquisition of these firearms make the "freedom week" scenario impossible. If the enjoinder is issued and not stayed for a week, then you could freedom-fit all your rifles, but as soon as the enjoinder was stayed, they'd be unregistered and illegal again. If the enjoinder is issued and not stayed for two weeks, you could rush out and buy your SACFSR from a friendly dealer and celebrate at the range for a few days, but as soon as the stay issued, you would be in the unlawful possession of an unregistered "Assault Weapon" and a felon.

Benitez knows and understands all of this, which is why he's probably going to issue the stay concurrent or very nearly so with the enjoinder, or do something similar so there isn't a gray area. Everyone in this engagement knows where it will end up (in the SCOTUS cert queue), so the intermediate steps are almost not relevant. UNLESS the CA9 somehow finds in favor of the plaintiff at en banc, everything rests on SCOTUS in the end.
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  #1579  
Old 04-13-2021, 4:47 PM
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Nope.

You know why?

Here's a hint: It rhymes with "hedge is tray shun"

CA's laws surrounding possession and acquisition of these firearms make the "freedom week" scenario impossible. If the enjoinder is issued and not stayed for a week, then you could freedom-fit all your rifles, but as soon as the enjoinder was stayed, they'd be unregistered and illegal again. If the enjoinder is issued and not stayed for two weeks, you could rush out and buy your SACFSR from a friendly dealer and celebrate at the range for a few days, but as soon as the stay issued, you would be in the unlawful possession of an unregistered "Assault Weapon" and a felon.

Benitez knows and understands all of this, which is why he's probably going to issue the stay concurrent or very nearly so with the enjoinder, or do something similar so there isn't a gray area. Everyone in this engagement knows where it will end up (in the SCOTUS cert queue), so the intermediate steps are almost not relevant. UNLESS the CA9 somehow finds in favor of the plaintiff at en banc, everything rests on SCOTUS in the end.

Registration has nothing to do with it. Acquiring and creating high capacity magazines was legal for a week, but there was nothing that said when the stay was issued we had to turn them all back to 10 rounds or less. Or the ammo background check freedom day, you didn’t have to return all the ammo you bought that one day even if it was delivered after that day.

If we can legally take off all our CA compliance items after the ruling, if this ruling is written the same way as the magazine ruling, it would effectively be exactly the same.

If California wanted to require registration for all the “new” assault weapons, they would be free to do so. And of course they would still fight in court. And if the ruling went against us, one day sure we may have to add back the compliance parts, much in the same way that one day we may have to add back the blocks to our magazines, but it wouldn’t be for some time.
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Old 04-13-2021, 5:13 PM
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Acquiring and creating high capacity magazines was legal for a week, but there was nothing that said when the stay was issued we had to turn them all back to 10 rounds or less.
Because possessing them was legal at the time of the ruling. The complaint in that case was specifically against the law that had just passed making possession illegal. We got a super-bonus when Benitez decided to throw everything out, but when the stay was issued, things went back to how they were right at the moment of the ruling, which negated the possession prohibition but (due to the stay) once again prohibited manufacture, sales, transfer, etc. You can't presently do any of those with a large-cap magazine... at least not legally.

Possession of an unregistered AW right now is prohibited. Let's say it wasn't prohibited for a "Freedom Week," and then the enjoinder was stayed. How does that affect AWs created or acquired during that week? It makes every single one of them illegal to possess. I am sure it is within the Judge's power to subsequently require CA to allow them to be registered, but what would then be the status of those weapons registered during that window when CA9 reverses the ruling? By striking down Benitez's injunction the Appeals Court will toss those weapons into limbo... he's not going to create a possibility of that happening. He knows the AG will appeal, he knows CA9 has a good chance of overturning... it would be irresponsible to poke his superiors in the eye while he's pointing out the egg or their face, and that wouldn't help advance the cause of freedom; so don't expect him to do so.

We will win this case, but it cannot move the needle until it goes up the chain. The other two cases were about NEW LAWS, this is about ALL the OLD AW laws, going back to 1989, and the timetables and confluences of existing regulatory framework makes the "Freedom Period" you folks dream of an infinitesimal probability.
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Old 04-13-2021, 6:08 PM
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Old 04-13-2021, 6:11 PM
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Yep, fetch a REALLY hot cup of tea and fire up the machine!
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Old 04-13-2021, 6:26 PM
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Because possessing them was legal at the time of the ruling.

This is not the case. Possession was only legal for ones acquired legally. The ones we acquired during freedom week were in limbo too for that week. We didn’t know what would happen, but Judge Benitez protected us as best he could. If he hadn’t, those magazines would have been illegal since they were not acquired during the legal timeframe that we could have acquired them. How is this any different?
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Old 04-13-2021, 6:35 PM
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This is not the case. Possession was only legal for ones acquired legally. The ones we acquired during freedom week were in limbo too for that week. We didn’t know what would happen, but Judge Benitez protected us as best he could. If he hadn’t, those magazines would have been illegal since they were not acquired during the legal timeframe that we could have acquired them. How is this any different?
Not true. Possession was legal. Period. Sure, there might have been a problem if you happened to have one that was provably manufactured during a period of the sale/distribution/acquisition ban... but if you did, and some DA was going to charge you for it... the charge would be for the acquisition (which was illegal) NOT the possession. Because possessing that magazine was not illegal; it was only evidence proving that you had performed a distinct and different illegal act (acquisition of that magazine).

Possessing an unregistered AW is illegal right now. If there is an enjoinder and that enjoinder is stayed, then as soon as the stay is in effect the possession of an unregistered AW is again illegal, in spite of when or how it came to be in your possession.
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  #1585  
Old 04-13-2021, 8:02 PM
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champu champu is offline
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Quote:
Originally Posted by lastinline View Post
If I am reading your thoughts correctly, LE should not be assuming that every single person, not previously known to them, who possesses anything, is committing a crime until proven otherwise. That all persons are guilty of some crime should not be the “default” status until proven otherwise through records checks, etc. An example might be “I observe a person using an Ar-type rifle at the range, and it has no grip fin, or anything else to suggest it is in a featureless configuration; it must therefore be illegal, unless a records check proves otherwise”.
Hopefully things don’t go that direction.
The last sentence of my post was snark and was alluding to CA PC 25850(b):

Quote:
In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on the person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.
Which flat out says, if a police officer knows for whatever reason you have a firearm in your vehicle (which is a legal activity) that constitutes reasonable suspicion that you are committing the crime of carrying a loaded firearm, thus permitting a search of your property that would otherwise be unallowable under the fourth amendment.
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