Additional reactions culled from the case thread in Litigation

[waygeekierthanu]

Here is something that may put a damper on things:



Its a start, but its not over. From AO Sword Firearms in San Diego:



SALE/TRANSFER OF 11+ ROUND MAGS IS STILL ILLEGAL IN CA.

This is not legal advise, only informed opinion.



As we are known to be careful students of the law, we are being inundated with calls and messages regarding this week's ruling by the Honorable Judge Roger Benitez on the Prop 63 magazine ban. His scholarly, Constitutionally sound and well-founded ruling strikes down the 2017 expansion of the so-called High Capacity Magazine Ban, which eliminated the right of Californians to keep the legally possessed magazines they had owned in the state prior to 2000.



Short Version: Even Chuck Michel, the NRA/CRPA attorney in this case, has cautioned that this ruling is not all-inclusive, and advises restraint. Nothing has changed since 2000; we simply kept the right to keep the mags we already have.



Long version: Some gun shops are now selling standard capacity (11+) magazines, effective immediately. This is illegal per CA Penal Code 32310, which bans the sale, transfer, manufacture, or (as of 2018) possession of "high capacity magazines." They believe that the ruling struck down the CA ban on mags in its entirety. They are not reading the ruling with a scholarly application of law and legal terms.



The landmark, brilliantly-written ruling states:

IT IS HEREBY ORDERED that:

1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order, or know of the existence of this injunction order, are enjoined from enforcing California Penal Code section 32310.



This means that STATE and FEDERAL LE are currently prohibited from enforcing this law. It doesn't strike down the law! It also doesn't appear to prevent LOCAL LE from enforcing the law, nor does it prevent the COURTS from convicting you of a violation of this law! But isn't that enough? No.



When (not if) the 9th Circuit Court of Appeals inevitably overrules this ironclad judgement on En Banc appeal (in blatant violation of the Constitution), the CA DOJ will again be able to ENFORCE PC32310, which means they can then prosecute you for the magazines you purchased while they were temporarily banned from charging you. You still broke the law (which was not struck down), they just were prohibited from charging you at the time.



They can also prosecute all the gun shops who (valiantly but foolishly) rushed to liberty and justice while the DOJ was enjoined, get all their camera footage and transaction records of your illegal purchases, and charge you with felonies or weapons misdemeanors which will cost you your gun rights for life. Local LE can run a sting at the exit of the parking lot, search your vehicle with probable cause, and arrest you for possession of magazines that didn't even exist in 1999.



Enjoined from enforcing is different than striking down and invalidating a law. Please don't go down with the ship at other gun stores; we won't be able to sell guns to you anymore after those shops take you down with them. Even the attorney who won the case is giving the same advice.

This

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[Elgatodeacero]

i dont think AO Sword understands how statutes are struck down for unconstitutionailty. they are permanently enjoined.

i think it makes a lot of sense to be cautious, but these guys are just making up nonsense pseudo-legal babbletalk.

[waygeekierthanu]

i dont think AO Sword understands how statutes are struck down for unconstitutionailty. they are permanently enjoined.

i think it makes a lot of sense to be cautious, but these guys are just making up nonsense pseudo-legal babbletalk.

Maybe, but this is why we are still riveting mags we sell. Worst case scenario the buyer get busted for one, we get busted for hundreds

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[RickD427]

Interesting.

In the judges conclusion he wrote:



Doesn't that nullify the law?

Local LE are sworn state peace officers. They are enjoined.

WRONG. Please go back and read the exact text of Judge Benitez' decision.

State law enforcement officers are not enjoined from enforcing PC 32310 unless they "gain knowledge of this injunction order, or know of the existence of this injunction order.."

Without having proof of service to approximately 73,000 state peace officers. it's gonna be pretty difficult to show that they had the requisite knowledge.

As a practical matter, I would not look for this to be an issue. California LE agencies are pretty good at following the guidance of the federal courts and I would be very surprised to see any take enforcement action in violation of the spirit of the court's order.

But that don't make your erroneous statement a correct one.

[taperxz]

i dont think AO Sword understands how statutes are struck down for unconstitutionailty. they are permanently enjoined.

i think it makes a lot of sense to be cautious, but these guys are just making up nonsense pseudo-legal babbletalk.

Who are you talking about? You mean Chuck Michel? The lawyer who fought and won this case?

[DRM6000]

WRONG. Please go back and read the exact text of Judge Benitez' decision.

State law enforcement officers are not enjoined from enforcing PC 32310 unless they "gain knowledge of this injunction order, or know of the existence of this injunction order.."

Without having proof of service to approximately 73,000 state peace officers. it's gonna be pretty difficult to show that they had the requisite knowledge.

As a practical matter, I would not look for this to be an issue. California LE agencies are pretty good at following the guidance of the federal courts and I would be very surprised to see any take enforcement action in violation of the spirit of the court's order.

But that don't make your erroneous statement a correct one.

The judge also ordered that the AG inform all LEOs. Once that notice is served, they will have that knowledge. Personal service or "otherwise." Notice to the heads of each agency should suffice.

1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants,
employees, and attorneys, and those persons in active concert or participation with him,
and those duly sworn state peace officers and federal law enforcement officers who gain
knowledge of this injunction order, or know of the existence of this injunction order, are
enjoined from enforcing California Penal Code section 32310.
2. Defendant Becerra shall provide, by personal service or otherwise, actual notice
of this order to all law enforcement personnel who are responsible for implementing or
enforcing the enjoined statute. The government shall file a declaration establishing proof
of such notice

[taperxz]

WRONG. Please go back and read the exact text of Judge Benitez' decision.

State law enforcement officers are not enjoined from enforcing PC 32310 unless they "gain knowledge of this injunction order, or know of the existence of this injunction order.."

Without having proof of service to approximately 73,000 state peace officers. it's gonna be pretty difficult to show that they had the requisite knowledge.

As a practical matter, I would not look for this to be an issue. California LE agencies are pretty good at following the guidance of the federal courts and I would be very surprised to see any take enforcement action in violation of the spirit of the court's order.

But that don't make your erroneous statement a correct one.

It also doesn't nessesarily affect the Hi Cap mag permit that DOJ issues FFL's for legal sales.

DOJ forces CA FFL's to follow these regs until they say we don't have to.

If local gun stores with a hi cap permit decide to sell right now and they were wrong for doing so, they could have their hi cap permit revoked or their CFD revoked

[Kyle1886]

Consumables?

.
[snip]

He also left the door open for other regulations that he says would not burden 2A such as requiring magazines to be serialized.

Again, A GREAT VICTORY FOR FREE CALIFORNIANS!!!

Thordo

Serializing what I would think is a consumable might be difficult to control and costly to monitor.

...but I wouldn't put it past CA considering micro-stamping.

Respectfully
Kyle

[RickD427]

The judge also ordered that the AG inform all LEOs. Once that notice is served, they will have that knowledge. Personal service or "otherwise." Notice to the heads of each agency should suffice.

You're correct in that the AG was ordered to make notification. Once the affected officers are served with notice, then they are bound by the order - Which is different from what you originally posted.

I doubt that service to an agency head would substitute for personal service. I have never seen that to be the case in more than 30 years of service. Can you provide a citation for this assertion?

[JWHuey]

WRONG. Please go back and read the exact text of Judge Benitez' decision.

State law enforcement officers are not enjoined from enforcing PC 32310 unless they "gain knowledge of this injunction order, or know of the existence of this injunction order.."

Without having proof of service to approximately 73,000 state peace officers. it's gonna be pretty difficult to show that they had the requisite knowledge.

As a practical matter, I would not look for this to be an issue. California LE agencies are pretty good at following the guidance of the federal courts and I would be very surprised to see any take enforcement action in violation of the spirit of the court's order.

But that don't make your erroneous statement a correct one.

Forgive me if I am wrong.

IT IS HEREBY ORDERED that:

1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order, or know of the existence of this injunction order, are enjoined from enforcing California Penal Code section 32310.

2. Defendant Becerra shall provide, by personal service or otherwise,actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. The government shall file a declaration establishing proof of such notice.

DATED: March29, 2019

-does this order not place the burden on the CAG/LE to be aware of this new decision and act accordingly?

I mean, I can't possibly imagine that this is not the topic of the day in departments around the state?

Just like ignorance of the law is not a suitable defense for me as a citizen, is the same not true for those who enforce the laws of the state?

[Elgatodeacero]

the requirement to give notice of the unenforceability of this statute does not affect the unconstitutional/unenforceable status of the statute-

if a police officer had no actual notice of this decision (say tomorrow morning 03/30/19 a police officer stops someone coming back from reno with 11+ round mags on the front seat) they could likely not be sued for a civil rights violation if they made a search or arrest or issued a citation, but that does not mean the enjoined law is enforceable by a criminal court.

[DRM6000]

You're correct in that the AG was ordered to make notification. Once the affected officers are served with notice, then they are bound by the order - Which is different from what you originally posted.

I doubt that service to an agency head would substitute for personal service. I have never seen that to be the case in more than 30 years of service. Can you provide a citation for this assertion?

Did you not read "or otherwise"? For as I am a layman, please explain what "or otherwise" means in that context. Would dissemination of the order coming from a CLEO or Sheriff not suffice in notifying each officer?

[RickD427]

Forgive me if I am wrong.

IT IS HEREBY ORDERED that:

1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order, or know of the existence of this injunction order, are enjoined from enforcing California Penal Code section 32310.

2. Defendant Becerra shall provide, by personal service or otherwise,actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. The government shall file a declaration establishing proof of such notice.

DATED: March29, 2019

-does this order not place the burden on the CAG/LE to be aware of this new decision and act accordingly?

I mean, I can't possibly imagine that this is not the topic of the day in departments around the state?

Just like ignorance of the law is not a suitable defense for me as a citizen, is the same not true for those who enforce the laws of the state?

You're not wrong.

It's just important for everyone to understand the duties, and the time sequence involved here.

The AG has a duty to make state peace officers aware of the court's order, and once aware of the order, those officers have to comply with it.

The key here is that the duty to comply comes after the notice, not before.

I sat through quite of few of these things going all the way back to Kolender v Lawson. Agencies generally prepare a briefing of the court's order and then have each officer sign an acknowledgement. That makes the order binding on the officer.

The development and distribution of the briefing takes a few days, and then it takes some time to collect all of the signatures. No department calls an officer back from a two week vacation just to sign the acknowledgement.

[RickD427]

Did you not read "or otherwise"? For as I am a layman, please explain what "or otherwise" means in that context. Would dissemination of the order coming from a CLEO or Sheriff not suffice in notifying each officer?

Please see my post above for a good description of how "otherwise" works. When Kolender and all of the subsequent cases came down with similar language, my agency did the briefing and collected signatures indicating that the officer/deputy was informed of the content.

The problem with holding an officer accountable for knowing something is the key here. You can't show "knowledge" simply by the issuance of an order. It's possible that the order was ignored, or misunderstood. The best form is personal service, but that is expensive and cumbersome. The signed acknowledgement that I described above falls short of formal personal service, but does "otherwise" show that the officer had knowledge of the order.

[Elgatodeacero]

the discussion about notice to police officers is off topic.

lack of notice to a police officer that the statute is permanently enjoined does not make the statute enforceable, it merely prevents a police officer without notice from being subject to a lawsuit for violation of civil rights for making an arrest under the statute. the arrested person would still be able to show decision to DA and obtain rapid dismissal of all charges under this specific statute that has been permanently enjoined.