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  #1  
Old 04-25-2019, 1:49 PM
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Default Letter from DOJ to all CA law enforcement stating possession is legal

Declaration of Douglas Wormald re Notice of Judgment and Stay
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Old 04-25-2019, 2:22 PM
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So all law enforcement agencies were sent notice on the 15th. The notice doesn't seem like it is trying to play any games either.
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Old 04-25-2019, 2:42 PM
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Get it printed on a shirt.
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Old 04-25-2019, 3:31 PM
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Print and laminate it, throw in the range bag.

My question would be will this have any effect on the ranges that said no SCM's will be allowed. Maybe they'll have a change of heart with this filing from DOJ or if you get questioned by the RO and show them this they'll leave you alone.
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Old 04-25-2019, 3:37 PM
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It does not say that "possession is legal"! this is what it says in regard to possession of magazines

Quote:
California Penal Code§ 32310 (c) & (d),
which bans the possession of large-capacity magazines, remains subject to a
preliminary injunction during the appeal. Accordingly, lawfully possessed
large-capacity magazines may be retained until the appeal is finally resolved
This does not make possession legal, but continues the preliminary injunction against enforcing those subsections until the appeal is decided.

More specifically, it states that the judgment of unconstitutionality is stayed pending appeal.
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Old 04-25-2019, 3:41 PM
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"During the appeal, California Penal Code § 3 2310 la) & (b) remains
in effect and is fully enforceable, except as to those persons and business
entities who manufactured, imported, sold, or bopgflt large-capacit)'
magazines between March 29, 2019 at 2:24 p.m. T an<i April 5, 2019 at
5:00 p.m. PDT"

Again, supporting my theory that if you bought, imported, sold, or manufactured a single magazine during freedom week, PC 32310 (a, b) cannot be enforced against you, even for actions after freedom week.
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Old 04-25-2019, 3:43 PM
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During the appeal, California Penal Code § 3 2310 (a) & (b) remains
in effect and is fully enforceable, except as to those persons and business
entities who manufactured, imported, sold, or bought large-capacity
magazines between March 29, 2019 at 2:24 p.m. PDT and April 5, 2019 at
5:00 p.m. PDT.
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Old 04-25-2019, 3:46 PM
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But what happens if the government win, we lose our LCM ?
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Old 04-25-2019, 3:48 PM
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Quote:
Originally Posted by Chewy65 View Post
It does not say that "possession is legal"! this is what it says in regard to possession of magazines



This does not make possession legal, but continues the preliminary injunction against enforcing those subsections until the appeal is decided.

More specifically, it states that the judgment of unconstitutionality is stayed pending appeal.
It says exactly what we need it to say. What else do you want it to say?
Quote:
During the appeal, California Penal Code § 3 2310 la) & (b) remains in effect and is fully enforceable, except as to those persons and business entities who manufactured, imported, sold, or bought large-capacity magazines between March 29, 2019 at 2:24 p.m. and April 5, 2019 at 5:00 p.m. PDT. Additionally, California Penal Code§ 32310 (c) & (d), which bans the possession of large-capacity magazines, remains subject to a preliminary injunction during the appeal. Accordingly, lawfully possessed larie-capacity magazines may be retained until the appeal is finaI!y resolved
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Old 04-25-2019, 3:51 PM
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Quote:
Originally Posted by faris1984 View Post
But what happens if the government win, we lose our LCM ?
Yes, the tables will flip and you will become a criminal.
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Old 04-25-2019, 3:58 PM
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Quote:
Originally Posted by faris1984 View Post
But what happens if the government win, we lose our LCM ?
Yes. I imagine compliance rates will be sky-high.
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Old 04-25-2019, 3:59 PM
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Quote:
Originally Posted by stix213 View Post
So all law enforcement agencies were sent notice on the 15th. The notice doesn't seem like it is trying to play any games either.
Yep, and sent repeat notices 3 times per day, each day from the 15th - 18th
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Old 04-25-2019, 4:02 PM
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Quote:
Originally Posted by Califpatriot View Post
Yes. I imagine compliance rates will be sky-high.
I totally expect the fearless hardcore gun owner of California Kamala Harris to turn in her hi-caps on the same day. Well, probably that would be it till the end of the century
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Old 04-25-2019, 4:51 PM
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Thanks for posting this. I am keeping a copy in every bag and pouch I have for the range. Not that I have or take SCM with me, anywhere.
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Old 04-25-2019, 6:35 PM
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Quote:
Originally Posted by riderr View Post
It says exactly what we need it to say. What else do you want it to say?
I have no problems with what it say, but I do with posts that say possession is legal when what it says at best is that enforcement is enjoined pending appeal and that it may end up being held to be illegal.
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Old 04-25-2019, 7:25 PM
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Quote:
Originally Posted by Califpatriot View Post
"During the appeal, California Penal Code § 3 2310 la) & (b) remains
in effect and is fully enforceable, except as to those persons and business
entities who manufactured, imported, sold, or bopgflt large-capacit)'
magazines between March 29, 2019 at 2:24 p.m. T an<i April 5, 2019 at
5:00 p.m. PDT"

Again, supporting my theory that if you bought, imported, sold, or manufactured a single magazine during freedom week, PC 32310 (a, b) cannot be enforced against you, even for actions after freedom week.
You have been told so many times by so many people why your theory won't fly I am not going waste time poking holes in it, again. Instead, why don't you tell us what happens, assuming that somehow an LEA that gives damn is privy to evidence that you bought a magazine during freedom week, but also bought another magazine days after April 5, 2019. Assume the LEA wants to make an example of you and it is of the opinion that enforcement is not stayed pending appeal for transactions after Freedom Week even if the person had a transaction during the period.
  #17  
Old 04-25-2019, 7:42 PM
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Ex post facto? Or they all become contraband, that needs to be disposed of by a certain date?
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Old 04-25-2019, 7:48 PM
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I’ve been using my mags with no issue, why is there a huge uproar that your breaking the law when it’s been a weeks worth of purchasing that will make banning possession non existent. Seeing as millions made it into the state I don’t see how it’s a problem in owning or using mags with more then 10 rounds. I don’t remember seeing any cases in the past few years about high cap mag being confiscated unless the person was involved in a crime like drugs/gang related type offenses.
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Old 04-25-2019, 8:00 PM
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Quote:
Originally Posted by Chewy65 View Post
You have been told so many times by so many people why your theory won't fly I am not going waste time poking holes in it, again. Instead, why don't you tell us what happens, assuming that somehow an LEA that gives damn is privy to evidence that you bought a magazine during freedom week, but also bought another magazine days after April 5, 2019. Assume the LEA wants to make an example of you and it is of the opinion that enforcement is not stayed pending appeal for transactions after Freedom Week even if the person had a transaction during the period.
Actually, nobody has cogently explained why the clear text of both the Judge's order and the DOJ's own notice to law enforcement doesn't mean what it clearly says. (and "you've been told"? screw you dude and the horse your rode in on.)

As a practical matter to answer your hypothetical, nobody has or will be prosecuted for bringing in magazines any time soon, regardless of the judge's order and its interpretation. You can go to Nevada, buy magazines at a gun shop, and bring them back. You can have your buddy in Texas ship it to you in the mail. You can take a mag rebuild kit and rebuild it. Nobody will ever know, unless you tell them. Nobody is going out there and investigating these things. And certainly, nobody is prosecuting these unless as a tack-on charge to something else (and I'm not seeing that either.) I'm not encouraging anybody to violate the law, but your hypothetical is just that. I'm not in the business of debating how many angels dance on the head of a pin.
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Old 04-25-2019, 8:08 PM
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Quote:
Originally Posted by Chewy65 View Post
I have no problems with what it say, but I do with posts that say possession is legal when what it says at best is that enforcement is enjoined pending appeal and that it may end up being held to be illegal.
Pedantry. Possession at this moment is lawful--you are not in violation of the law by possessing it at the moment. It may become illegal, but not retroactively--only going forward. Fundamental notions of due process prohibit prosecution for actions taken while the statutes forbidding those actions are enjoined on constitutional grounds.

9 states have pre-Roe abortion bans on the books. Nobody would argue that abortion in those 9 states is illegal. Because abortion today is legal in those states, unenforceable statutes notwithstanding. And if, God willing, Roe v. Wade is overturned, abortions performed prior to it being overturned will not suddenly become prosecutable offenses.
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  #21  
Old 04-25-2019, 8:16 PM
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Quote:
Originally Posted by Califpatriot View Post

As a practical matter to answer your hypothetical, nobody has or will be prosecuted for bringing in magazines any time soon, regardless of the judge's order and its interpretation. You can go to Nevada, buy magazines at a gun shop, and bring them back. You can have your buddy in Texas ship it to you in the mail. You can take a mag rebuild kit and rebuild it. Nobody will ever know, unless you tell them. Nobody is going out there and investigating these things. And certainly, nobody is prosecuting these unless as a tack-on charge to something else (and I'm not seeing that either.) I'm not encouraging anybody to violate the law, but your hypothetical is just that. I'm not in the business of debating how many angels dance on the head of a pin.
I'm fairly sure CA-DOJ and other agencies have better things to do than try to sort out which mags came in when.

But, 'Past Performance is No Guarantee of Future Results'. Whether there are current prosecutions, whatever difficulty may be involved, does not negate that many post-April-5 magazine behaviors are crimes under current law, and could be prosecuted where an agency thought it would be successful.

People need to be reminded of that before they might choose to accept the risk "imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170." Part of that choice requires estimation of the odds of detection and successful prosecution.

Historically, magazine discussions at Calguns have brought out the more fantastical-minded among us to the detriment of actual risk assessment.
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Last edited by Librarian; 04-25-2019 at 8:18 PM..
  #22  
Old 04-25-2019, 8:55 PM
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Quote:
Originally Posted by Califpatriot View Post
Pedantry. Possession at this moment is lawful--you are not in violation of the law by possessing it at the moment. It may become illegal, but not retroactively--only going forward. Fundamental notions of due process prohibit prosecution for actions taken while the statutes forbidding those actions are enjoined on constitutional grounds.

9 states have pre-Roe abortion bans on the books. Nobody would argue that abortion in those 9 states is illegal. Because abortion today is legal in those states, unenforceable statutes notwithstanding. And if, God willing, Roe v. Wade is overturned, abortions performed prior to it being overturned will not suddenly become prosecutable offenses.
Califpatriot,

I think your comparison to Roe v Wade is misplaced. Roe v Wade was a U.S. Supreme Court decision - at the end of the appellate trial. Marbury v Madison established that the courts can find a law to be unconstitutional quoting from that case "a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument." Your argument that a if Roe v Wade were overturned, that folks who performed abortions during the period it was in effect is sound. Laws prohibiting the practice were void.

But there is a different fact setting here, and Chewy has recognized it. We are the very beginning of the appellate process, a fact that Judge Benitez well recognized in his decision. Although he described PC section 32310 in the dicta of his decision as being unconstitutional, he did not include such a finding in his holding. Unlike the Supreme Courts treatment of abortion laws, Judge Benitez took no action to render PC 32310 void, he only enjoined enforcement.

I know of no case law supporting your position that folks could not be prosecuted for violation of PC 32310 in the event that future appellate decisions uphold PC 32310 and the injunction is dissolved. You make very good argument why such prosecutions would be unwise, and would likely fail. But it's not a settled issue as you present it to be.

If you can cite case law on the point, please do, we'd all benefit, but your references to Roe v Wade are misplaced, at least until Duncan v Becerra is ruled on by the Supreme Court.
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Old 04-25-2019, 9:18 PM
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So the judgement means...?
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Old 04-25-2019, 9:23 PM
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Quote:
Originally Posted by RickD427 View Post
Califpatriot,

I think your comparison to Roe v Wade is misplaced. Roe v Wade was a U.S. Supreme Court decision - at the end of the appellate trial. Marbury v Madison established that the courts can find a law to be unconstitutional quoting from that case "a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument." Your argument that a if Roe v Wade were overturned, that folks who performed abortions during the period it was in effect is sound. Laws prohibiting the practice were void.

But there is a different fact setting here, and Chewy has recognized it. We are the very beginning of the appellate process, a fact that Judge Benitez well recognized in his decision.TRUE--ALSO DIFFERENCE WITHOUT A DISTINCTION IN THIS CONTEXT Although he described PC section 32310 in the dicta of his decision as being unconstitutional, NOT IN DICTA--IN DICTA MEANS SOMETHING THAT IS NOT AT ISSUE IN THE CASE--THE CONSTITUTIONALITY OF 32310 WAS THE VERY ISSUEhe did not include such a finding in his holding. WHAT? SURE HE DID--THAT WAS THE VERY ESSENCE OF HIS HOLDING--WERE WE READING THE SAME OPINION? Unlike the Supreme Courts treatment of abortion laws, Judge Benitez took no action to render PC 32310 void, he only enjoined enforcement. WHAT DOES IT MEAN TO RENDER A STATUTE VOID? I AM UNFAMILIAR WITH THIS CONCEPT AND I DON'T THINK IT EXISTS--COURTS ENJOIN ENFORCEMENT OF STATUTES THAT ARE UNCONSTITUTIONAL LIKE BENITEZ DID

I know of no case law supporting your position that folks could not be prosecuted for violation of PC 32310 in the event that future appellate decisions uphold PC 32310 and the injunction is dissolved. You make very good argument why such prosecutions would be unwise, and would likely fail. But it's not a settled issue as you present it to be. In Oklahoma Operating Co. v. Love, Justice Brandeis, in affirming the award of preliminary injunctive relief, was clear that even if a challenged regulation should ultimately be upheld, “a permanent injunction should, nevertheless, issue to restrain the enforcement of penalties accrued pendente lite.” 252 U.S. 331, 337-38 (1920).

If you can cite case law on the point, please do, we'd all benefit, but your references to Roe v Wade are misplaced, at least until Duncan v Becerra is ruled on by the Supreme Court.
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Old 04-25-2019, 9:26 PM
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In addition to the Oklahoma Operating v. Love case, the doctrine of fair warning to criminal defendants is well-developed at the highest level. See, e.g. Rabe v. Washington, 405 U.S. 313, 315-16 (1972) (holding that a defendant had no fair warning that his actions were proscribed when they would not have fallen within a statute's prohibitory ambit prior to an unexpected judicial construction).
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Old 04-26-2019, 2:08 AM
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Califpatriot. You are flat wrong. Are you some kind of jailhouse lawyer, because your arguments are no only far off the mark, the one regarding Oklahoma Operating is contemptible. Since you chose to misquote Justice Brandeis, I have copied the entire sentence, placing the part you hid in bold.

Quote:
If upon final hearing the maximum rates fixed should be found not to be confiscatory, a permanent injunction should, nevertheless, issue to restrain enforcement of penalties accrued pendente lite, provided that it also be found that the plaintiff had reasonable ground to contest them as being confiscatory.
Just what makes you even think that Oklahoma Operating is a void for vagueness case?

Moving on to Rabe, even you should be able to gather that it has nothing to do with the language of PC 32310 or the doctrine of fair warning. Rabe considered whether a Washington state statue failed to give fair warning as applied to an accused on account of the statute being susceptible to more than one construction. The issue here has nothing to due with an ambiguous statute. At best, you can argue that a United States District Court's order is ambiguous, which it isn't, but that is no where near to challenging 32310 for vagueness as applied or on its face.

Last edited by Chewy65; 04-26-2019 at 2:13 AM..
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Old 04-26-2019, 2:22 AM
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Nobody is going out there and investigating these things. And certainly, nobody is prosecuting these unless as a tack-on charge to something else (and I'm not seeing that either.)
IMO this applies to the vast majority of victimless, prohibitory laws (aside from traffic violations and drug possession charges).

As a practical matter, the odds of getting charged with SOLELY one of those laws is basically zero. They're always just tacked on to actual criminal charges for actual crimes.

But that is an entirely different topic.
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Old 04-26-2019, 2:29 AM
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Originally Posted by Califpatriot View Post
Again, supporting my theory that if you bought, imported, sold, or manufactured a single magazine during freedom week, PC 32310 (a, b) cannot be enforced against you, even for actions after freedom week.
Getting back on topic: IMO, the literal wording is clear, and supports your reading, but I doubt that was Benitez' intent. I honestly think he was in a rush and didn't even consider it might be interpreted that way.

Yes, it is sacrilege among lawyers to assert such a thing - they're taught from the start that judges don't err. If there is something vague, it is only vague because you're insufficiently brainwashed trained that judges are infallible. If you had enough training, you'd see that ambiguity was impossible; you just don't have the background to comprehend that there is only one way to interpret things.

So instead, that is the only thing you'll hear from them: "you're an idiot!" over, and over, ad nauseum.

It is best if you just nod and smile when they do that. They live in their own world with it's own special language and "logic" that has very little in common with reality... except that when you end up in court, expect to see their alternate reality get warped at will sufficiently to screw you.
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Last edited by curtisfong; 04-26-2019 at 2:36 AM..
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Old 04-26-2019, 6:14 AM
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It's a wonder chewy was a lawyer, given his complete inability to read.
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Old 04-26-2019, 7:28 AM
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Quote:
Originally Posted by curtisfong View Post
Getting back on topic: IMO, the literal wording is clear, and supports your reading, but I doubt that was Benitez' intent. I honestly think he was in a rush and didn't even consider it might be interpreted that way.

Yes, it is sacrilege among lawyers to assert such a thing - they're taught from the start that judges don't err. If there is something vague, it is only vague because you're insufficiently brainwashed trained that judges are infallible. If you had enough training, you'd see that ambiguity was impossible; you just don't have the background to comprehend that there is only one way to interpret things.

So instead, that is the only thing you'll hear from them: "you're an idiot!" over, and over, ad nauseum.

It is best if you just nod and smile when they do that. They live in their own world with it's own special language and "logic" that has very little in common with reality... except that when you end up in court, expect to see their alternate reality get warped at will sufficiently to screw you.
Always assume that if the law is ambiguous the worst possible interpretation will be applied against you unless you have a really good lawyer. Maybe even then.
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Old 04-26-2019, 8:47 AM
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Quote:
Originally Posted by curtisfong View Post
Getting back on topic: IMO, the literal wording is clear, and supports your reading, but I doubt that was Benitez' intent. I honestly think he was in a rush and didn't even consider it might be interpreted that way.
"Both parties indicate inbriefing that persons and business entities in California may have manufactured, imported, sold, or bought magazines able to hold more than 10 rounds since the entry of this Court’s injunction on March 29, 2019 and in reliance on the injunction. Indeed, it is the reason that the Attorney General seeks urgent relief in the form of a stay pending appeal. Both parties suggest that it is appropriate to fashion protection for these law-abiding persons."

"Without question, entering a stay pending appeal will harm the Plaintiffs, and all others like the Plaintiffs (who are many), who would choose to acquire and possess a firearm magazine holding more than 10 rounds for self-defense. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”

Seems pretty well thought out to me, its simple, free or not free, and doesn't reimpose an unconstitutional blanket ban on those who chose to exercise their freedom.

I do think it should only be used as a shield though, since a lot of actions involving 32310 are between two individuals, a buyer and seller, etc... and there would be laws broken if one of the two was not exempt, and I think there would be a way to prosecute one directly, and the other indirectly, (aiding and abetting a felon in his felonious act).
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Old 04-26-2019, 9:08 AM
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Originally Posted by RickD427 View Post

Although he described PC section 32310 in the dicta of his decision as being unconstitutional, he did not include such a finding in his holding. Unlike the Supreme Courts treatment of abortion laws, Judge Benitez took no action to render PC 32310 void, he only enjoined enforcement.
I think the judgment filed on 3/29/2019 is quite clear.

"Plaintiffs' motion for summary judgment is granted. California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined"

http://michellawyers.com/wp-content/...ntiffs-MSJ.pdf

Also filed the same day as the Judgment was the order. Look at the last sentence on page 85.
"California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined."


http://michellawyers.com/wp-content/...ntiffs-MSJ.pdf

(Keeping in mind that this judgment is now partially stayed pending appeal....)

Last edited by Christopher761; 04-26-2019 at 9:19 AM..
  #33  
Old 04-26-2019, 9:18 AM
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All I know is that I was at the range last weekend and 8 of the 13 people at their bays (I counted on purpose for my own curiousity) were using SCMs...two of which (including myself had D60s). None of the RO's cared and it was basically standard quo.

Ya'll can sit here and debate on parsing words and opinions...or you can go outside, breathe some fresh air and pewpew. We're all on the same team guys.
  #34  
Old 04-26-2019, 9:28 AM
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Originally Posted by Christopher761 View Post
I think the judgment filed on 4/29/2019 is quite clear.

"Plaintiffs' motion for summary judgment is granted. California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined"

http://michellawyers.com/wp-content/...ntiffs-MSJ.pdf

Also filed the same day as the Judgment was the order. Look at the last sentence on page 85.
"California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined."


http://michellawyers.com/wp-content/...ntiffs-MSJ.pdf

(Keeping in mind that this judgment is now partially stayed pending appeal....)
Christopher,

Let's look at that final sentence again. Here it is:

"California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined."

Please note that the order did not invalidate section 32310 or remove it from the statutes (which was my point going back to Marbury v Madison - I found it odd that Judge Benitez determined the section to be unconstitutional, but took no action to invalidate it) all that Judge Benitez did in his order was to enjoin enforcement of section 32310.

It's a distinction in the details. The bottom line still remains that no one is going to be prosecuted while the injunction is in effect, and while it is technically possible that someone could later be prosecuted for conduct while the injunction was in place if later lifted, that course of action is unlikely, and even if undertaken, would likely fail for the reasons pointed out by Califpatriot and others.
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  #35  
Old 04-26-2019, 10:14 AM
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https://www.house.leg.state.mn.us/hrd/pubs/unconst.pdf

Judges enjoin unconstitutional laws, prevent them from being enforced. It up to the legislature to remove the law from the books.

"...no branch can order another branch to perform its lawmaking function in a particular way. The courts cannot order the governor to veto legislation, and they cannot order the legislature to pass a bill that amends or repeals a law."
  #36  
Old 04-26-2019, 10:17 AM
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As a practical matter to answer your hypothetical, nobody has or will be prosecuted for bringing in magazines any time soon, regardless of the judge's order and its interpretation. You can go to Nevada, buy magazines at a gun shop, and bring them back. You can have your buddy in Texas ship it to you in the mail. You can take a mag rebuild kit and rebuild it. Nobody will ever know, unless you tell them. Nobody is going out there and investigating these things. And certainly, nobody is prosecuting these unless as a tack-on charge to something else (and I'm not seeing that either.) As if you would know what the DOJ is planning or may have even set in operation. I'm not encouraging anybody to violate the law, but your hypothetical is just that. I'm not in the business of debating how many angels dance on the head of a pin.

It makes absolutely no sense for you to ramble on about how unlikely or difficult a prosecution may be, when you were asked to assume that a LEA is enforcing and has the evidence. Should that be the case, your lawyers will get an opportunity to argue your theory as to why persons are permitted immunity from prosecution, should they have participated in Freedom Week. Let them try to convince a judge of the California Superior Court that the order of a United States District Court Judge meant as you say, when it is clear upon reading the entire order that was not Benitez's intent.
  #37  
Old 04-26-2019, 10:32 AM
Christopher761 Christopher761 is offline
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Originally Posted by RickD427 View Post
Christopher,

Let's look at that final sentence again. Here it is:

"California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined."

Please note that the order did not invalidate section 32310 or remove it from the statutes (which was my point going back to Marbury v Madison - I found it odd that Judge Benitez determined the section to be unconstitutional, but took no action to invalidate it) all that Judge Benitez did in his order was to enjoin enforcement of section 32310.

It's a distinction in the details. The bottom line still remains that no one is going to be prosecuted while the injunction is in effect, and while it is technically possible that someone could later be prosecuted for conduct while the injunction was in place if later lifted, that course of action is unlikely, and even if undertaken, would likely fail for the reasons pointed out by Califpatriot and others.
I actually went back and read Roe v Wade, because of this discussion. And they did the exact same thing of stating the law is unconstitutional. In Roe v Wade, the Court did not actually enjoin the law itself. But rather stated, "We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional." Roe v. Wade, 410 U.S. 113, 166 (1973)

I think PACMA_MFG is correct that the Court cannot order a government to re-write the law in a particular way, or to erase it entirely. But if the Legislature wants to re-write the law, because they feel they can save it while applying the Court's reasoning on the constitutional issues, they they may do so (but are not required to).

You are 100% correct that we are early in the appeal process, and the 9th Dist Appellate Court may over-rule the trial Court. And maybe the SCOTUS will hear the case. Whatever the final word, that is what we will have to live with.

Last edited by Christopher761; 04-26-2019 at 10:37 AM..
  #38  
Old 04-26-2019, 10:33 AM
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Originally Posted by PMACA_MFG View Post
https://www.house.leg.state.mn.us/hrd/pubs/unconst.pdf

Judges enjoin unconstitutional laws, prevent them from being enforced. It up to the legislature to remove the law from the books.

"...no branch can order another branch to perform its lawmaking function in a particular way. The courts cannot order the governor to veto legislation, and they cannot order the legislature to pass a bill that amends or repeals a law."
That's supposed to be the rule. Maybe this SCOTUS will return to it. Here's a link to a 1990 SCOTUS ruling that went the other way.

https://www.nytimes.com/1990/04/19/u...iate-bias.html
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  #39  
Old 04-26-2019, 10:39 AM
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Originally Posted by RickD427 View Post
Christopher,

Let's look at that final sentence again. Here it is:

"California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined."

Please note that the order did not invalidate section 32310 or remove it from the statutes (which was my point going back to Marbury v Madison - I found it odd that Judge Benitez determined the section to be unconstitutional, but took no action to invalidate it) all that Judge Benitez did in his order was to enjoin enforcement of section 32310.
I don't know what you mean by "invalidate" a statutory provision. And statutes are not "removed from the statutes" because they are found unconstitutional--instead, what happens is that enforcement is enjoined. That's what happened here. Again, going back to the Roe example, the highest court in the land found blanket bans on abortion to be unconstitutional, yet they remain on the statute books. Similarly, with gay marriage, Proposition 8 continues to be on the code books in California. (see article I, section 7.5 of the california constitution). In fact, I have never seen a court excise a statute from the code books.

I think you might be, in good faith, conjuring a distinction that does not exist.
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  #40  
Old 04-26-2019, 10:47 AM
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Originally Posted by Chewy65 View Post
It makes absolutely no sense for you to ramble on about how unlikely or difficult a prosecution may be, when you were asked to assume that a LEA is enforcing and has the evidence. Should that be the case, your lawyers will get an opportunity to argue your theory as to why persons are permitted immunity from prosecution, should they have participated in Freedom Week. Let them try to convince a judge of the California Superior Court that the order of a United States District Court Judge meant as you say, when it is clear upon reading the entire order that was not Benitez's intent.
Why on God's green earth would I give any credence to your paranoid fantasies?
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