Pre ban Magazines

[Quiet]

But you can say you bought them in 2001-2011, well past the 3 year statue of limitation.

Which means they are nuisance items and subject to confiscation.

No criminal charges, but you don't get to keep them.

Also, when they are confiscated as nuisance items, the burden of proof switches from the State to you to prove when you acquired them to show they were legally acquired.

[floogy]

You'd be surprised how many young folks let their mouths get them in trouble.

Haha. That's about the only thing that gets them in trouble. That and the other thing.


Sent from my iPhone using Tapatalk

[RickD427]

Which means they are nuisance items and subject to confiscation.

No criminal charges, but you don't get to keep them.

Also, when they are confiscated as nuisance items, the burden of proof switches from the State to you to prove when you acquired them to show they were legally acquired.

Quiet,

The state "Nuisance" statute doesn't differentiate between pre-ban and post-ban large capacity magazines. It is completely silent on the issue.

As a point of law, even if a person were able to prove they acquired their large-capacity magazines prior to 2000, they're still nuisance items.

The way the statutes currently read, a person would really have to prove that their large-capacity magazines were not large-capacity magazines in order for them to be returned.

The whole "nuisance" issue is probably ripe for legal action. I doubt that it would withstand a fair hearing in court, But at the moment, the law doesn't make a distinction between pre-ban and post-ban magazines.

[Quiet]

Quiet,

The state "Nuisance" statute doesn't differentiate between pre-ban and post-ban large capacity magazines. It is completely silent on the issue.

As a point of law, even if a person were able to prove they acquired their large-capacity magazines prior to 2000, they're still nuisance items.

The way the statutes currently read, a person would really have to prove that their large-capacity magazines were not large-capacity magazines in order for them to be returned.

The whole "nuisance" issue is probably ripe for legal action. I doubt that it would withstand a fair hearing in court, But at the moment, the law doesn't make a distinction between pre-ban and post-ban magazines.

Are not large capacity magazine acquired via PC 32400-32450 are not considered nuisance items?

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

[RickD427]

Ok will somebody educate me as to what a pre ban Magazine is and what(if any) advantage they carry??

As previous posters have pointed out, a "Pre-Ban" large-capacity magazine is one that was made prior to 2000.

There is only one place, that I am aware of where a "Pre-Ban" magazine is treated any differently in the state law than a "Post-Ban" magazine. That one place is in Penal Code section 32420. That section allows a person who lawfully possessed a large-capacity magazine in California prior to 2000 (which would necessarily have to be a "Pre-Ban" magazine by virtue of that date) to take the magazine out of state, and then return to the state. The same action with a "post-ban" large-capacity magazine would be a felony.

If anyone knows of any other place where the law makes a distinction, please chime in, but also please cite the Code and Section of a statute, or the case citation of a published appellate court case that makes the distinction. There's a ton of FUD out there on the subject. Novel legal arguments (falling short of published appellate case), what "bill" at DOJ told you on the phone, and what someone posted on the internet doesn't really rise to this level of discussion.

[RickD427]

Are not large capacity magazine acquired via PC 32400-32450 are not considered nuisance items?

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

Quiet,

As far at the common person is concerned "No".

When you go through all of the exemptions (PC sections 17700 - 17745 and 32400 - 32450), the only one that even comes close to applying to an ordinary private citizen is section 32420. All of the other sections were narrowly written to apply to LE agencies, FFLs, and movie studios. Section 32420 only provides an exemption from prosecution for the importation of the magazine. It is silent about possession of the magazine.

In short, it is not possible for a common person to acquire a large capacity magazine under PC sections 2400-32450.

A little review of the legislative history is in order here. The law is really screwed up with regard to the large-capacity magazines being nuisances, and when you look to that history, it becomes clear as to why.

Prior to the weapons sections re-codification, we had a long list of items in the Penal Code which were unlawful to possess, and which were also defined as "nuisances." Large-capacity magazines were not illegal to possess (and they still are not illegal to possess). But they essentially became impossible for common folk to lawfully acquire after 1-1-2000.

Under the re-codification, we now have a new list of "nuisance" items contained in section 18010. That section contains 23 listed items. 22 of those listed items are illegal for common folk to possess. The 23rd listed item is the large-capacity magazine. It appears that the authors of the re-codification "borrowed" the exemption language contained in the other sections to also apply to the "nuisance" determination. That's where the whole thing went sideways. There never was a need to "exempt" simple possession of a large-capacity magazine because that possession was never a crime. The authors did not add new language to treat the large-capacity magazine differently from the other 22 items.

If you see any content in the referenced sections that address simple possession of a large-capacity magazine possessed prior to 1-1-2000, please point it out. I just don't see it in the code.

[VoR]

So for example, you couldn't have Magpul AR 30rnd mags and claim them "pre ban" since they were not even made then.

This is not true.

[Dutch3]

I'm waiting for the first 21-30 year old mall ninja to be the test case when popped with a pile of Pmags.

I don't know if they were Pmags, but the Santa Barbara Sheriff's Dept. seems to think possession is illegal. Even though there is nothing in PC 32310(a) banning possession.

http://www.sbsheriff.org/05281401.html

[Dutch3]

Under the re-codification, we now have a new list of "nuisance" items contained in section 18010. That section contains 23 listed items. 22 of those listed items are illegal for common folk to possess. The 23rd listed item is the large-capacity magazine. It appears that the authors of the re-codification "borrowed" the exemption language contained in the other sections to also apply to the "nuisance" determination. That's where the whole thing went sideways. There never was a need to "exempt" simple possession of a large-capacity magazine because that possession was never a crime. The authors did not add new language to treat the large-capacity magazine differently from the other 22 items.

Yes, and the nuisance language refers to all of the listed items as 'weapons'.

By what stretch of the imagination is a magazine a weapon?

[edgerly779]

Still people who refer to largecap mags as standard and high cap. NO SUCH THING UNDER CA LAW. fud.

[I Swan]

I don't know if they were Pmags, but the Santa Barbara Sheriff's Dept. seems to think possession is illegal. Even though there is nothing in PC 32310(a) banning possession.

http://www.sbsheriff.org/05281401.html

That is very interesting.

[RickD427]

I don't know if they were Pmags, but the Santa Barbara Sheriff's Dept. seems to think possession is illegal. Even though there is nothing in PC 32310(a) banning possession.

http://www.sbsheriff.org/05281401.html

Yes, and the nuisance language refers to all of the listed items as 'weapons'.

By what stretch of the imagination is a magazine a weapon?

That is very interesting.

Dutch,

That Santa Barbara press release may be much ado about nothing. I can't tell for sure without knowing the facts of that case, and I don't.

It's unfortunate, but the DOJ has assigned the short title of "Possession of Large Capacity Magazines" to Penal Code section 32310. That was a knucklehead move because it is not an accurate summary of the text of the law, but folks like to refer to a short text legal title, and they need something that will "fit on the form." One hundred years ago, laws were short and easy to understand. Consider the law against murder, the original text only had twelve words and the short title "murder" was a good fit. The large capacity magazine law has 1,512 words (including the exceptions). I'll defy anyone to find a simple short title that accurately captures the full meaning of all 1,512 of those words.

The prosecution must prove the elements of the offense, and the arresting officer has a duty to ensure that those elements are present before making an arrest.

The Santa Barbara Sheriff's have no control over the DOJ terminology and their use of the "Short Title" is not a reflection on their understanding of the law. This is also likely the reason that we've seen other agencies make the same so-called "mistake."

You've got an excellent point about the reference to magazines as being "weapons." The whole treatment of large-capacity magazines in the re-codification was an embarrassment to the authors. Someone tried to deal with a new issue by using existing text and it just didn't work.

[GOLDEN GUN]

If helped defended a case as a leader clerk where the defendant was caught with two 100 round ak drums and an am with no bullet button thing.

Possession of assault weapons charged, no magazine charges