Seized magazines

[ohsmily]

We'll see what they do. I'm a believer in the concept of PC 4 and was pleased by the Ventura response to the same issue.

But if Sacramento hangs their hat on the "Nuisance" seizure, they're on pretty solid ground. It's fully outta the scope of Judge Benitez' injunction, and the seizure statute remains facially valid (Brown v Maryland) until there is a successful challenge. That ain't happened yet.

If they attempt to move forward with a criminal prosecution, I'd expect to see them get slammed, due to the injunction.

Where are you seeing a "Two Week" deadline for them to select a course of action?

They won't and can't proceed with another criminal prosecution at this point under Kellett. Take my word that they have two weeks to decide. It is not a statutory deadline; it is what they were given. Nothing else will be disclosed here for now. Updates will be provided when they can be.

[RickD427]

They won't and can't proceed with another criminal prosecution at this point under Kellett. Take my word that they have two weeks to decide. It is not a statutory deadline; it is what they were given. Nothing else will be disclosed here for now. Updates will be provided when they can be.

Copy, but if they pursue the "Nuisance" seizure, then there is no criminal case. It's all civil.

[pacrat]

We'll see what they do. I'm a believer in the concept of PC 4 and was pleased by the Ventura response to the same issue.

But if Sacramento hangs their hat on the "Nuisance" seizure, they're on pretty solid ground. It's fully outta the scope of Judge Benitez' injunction, and the seizure statute remains facially valid (Brown v Maryland) until there is a successful challenge. That ain't happened yet.

If they attempt to move forward with a criminal prosecution, I'd expect to see them get slammed, due to the injunction.

Some pretty sharp JDs at Michel & Associates disagree. https://crpa.org/news/blogs/crpa-ale...-ordered-stay/ Refer to (sect. IX) as a quick reference.

And again IMHO. (a) comes before (b) every time. ESPECIALLY when (b) clearly states;

(b) The weapons described in subdivision (a) shall be subject to confiscation and summary destruction whenever found within the state.

https://leginfo.legislature.ca.gov/f...ctionNum=18010.

The wording of (b), clearly makes compliance of (a) compulsory.

https://www.merriam-webster.com/dict...80%94%20W.%20J.

Legal Definition of enjoin
: to prohibit by judicial order

No "court order". Equals, no legal confiscation/seizure. According to (a).

Copy, but if they pursue the "Nuisance" seizure, then there is no criminal case. It's all civil.

Please explain your reasoning that confiscations of personal property by LE citing Penal Code as authority for the action. Is "civil".

[MountainLion]

Some pretty sharp JDs at Michel & Associates disagree.

In that section IX, do you see any reference to a court case? Do you see anywhere that sections 32390 and 18010 have been taken off the books? I don't. They remain on the books, and enforceable.

Now where the good people at Michel are correct: If an agency actually enforces 32390/18010 and destroys as nuisance, there is a risk that afterwards, someone with very deep pockets will start a federal civil rights lawsuit, and find those sections to be unenforceable. But that requires someone to start that suit, have very deep pockets, and go through the multi-year process, and that process has not even started yet.

And again IMHO. (a) comes before (b) every time.

18010(a) clearly says: All things described by section 32390 are included, and then 18010(b) applies. I have no idea where you get the "court order" stuff from.

And section 32390 simply says "any large capacity magazine", with exceptions that do not apply to average people possessing them. Note that 32390 does not depend on 32310 through 32315 at all. So the current legal status (until and unless that above described lawsuit starts) is that 32390 is on the books and enforceable.

Please explain your reasoning that confiscations of personal property by LE citing Penal Code as authority for the action. Is "civil".

Adam sells a ham sandwich to Bob. Bob takes the ham sandwich, but fails to pay. Adam goes to court, and brings an action asking the court to order Bob to give them the $4.50 that Bob owes him. Civil or criminal case? Is anyone (Adam, Bob, the ham sandwich) going to go to jail? No, therefore not criminal case. Classic civil case, contract law 101: Adam is asking that Bob's right to have $4.50 be terminated, and awarded to him instead.

Charlie had a large-capacity magazine, which is currently in the evidence locker. The local DA goes to court (under the authority of PC 18010) and files an action, asking the court to order that the large capacity magazine be handed over to him for destruction, because it is a nuisance. Do you see the similarity? Is anyone going to jail? No, the DA didn't charge Charlie. This is only about property rights, and the DA is requesting that Charlie's property rights in that mag be terminated and the magazine destroyed.

[RickD427]

Some pretty sharp JDs at Michel & Associates disagree. https://crpa.org/news/blogs/crpa-ale...-ordered-stay/ Refer to (sect. IX) as a quick reference.

And again IMHO. (a) comes before (b) every time. ESPECIALLY when (b) clearly states;

https://leginfo.legislature.ca.gov/f...ctionNum=18010.

The wording of (b), clearly makes compliance of (a) compulsory.

https://www.merriam-webster.com/dict...80%94%20W.%20J.

No "court order". Equals, no legal confiscation/seizure. According to (a).




Please explain your reasoning that confiscations of personal property by LE citing Penal Code as authority for the action. Is "civil".

Pacrat,

First of all, I share your high opinion of the attorneys at Michel and Associates (even if Chuck Michel's founding law partner proved to be a turncoat). But it's important to note that the Michel article only states the opinion of their lawyers that the Nuisance Seizure statute would not withstand legal challenge. For the record, I also share that view, at least for magazines that were lawfully acquired. But there has been no successful legal challenge to the Nuisance Statute, and it remains presumed to be lawful (refer to Brown v Maryland). You're getting ahead of yourself on this one.

Let's look at PC 18010:

Subparagraph (a) provides a list 23 separate items that are "Nuisances" an provides that specified prosecutors may bring legal action to enjoin the "manufacture of, importation of, keeping for sale of, offering or exposing for sale, giving, lending, or possession" of the 23 items on the list.

Subparagraph (b) provides that the 23 items on the list "shall be subject to confiscation and summary destruction whenever found within the state."

Methinks that you're misreading subparagraph (b) to mean items that have been enjoined as a result of the court action described in subparagraph (a). But that's not the way subparagraph (b) works. It only describes the list. You're right that, in the alphabet "a" does precede "b", but you're incorrect in using that alphabetical order to add content to subparagraph (b) that ain't in there.

If the legislature intended that items would have to be covered by a court injunction in order to be seized under 18010(b), they would have said so in the statute. But they did not. They only referenced the list of 23 items, without regard to the existence of a court order.

In construing the meaning of a statute, it's important to look at the statute's objective. PC 18010(a) and (b) work very analogously to the way that customs laws work for counterfeit goods. In large scale offenses, there is the availability of legal process to prevent the introduction of counterfeit stuff, and for small scale offenses, there is the ability to directly seize counterfeit stuff. PC 18010(a) provides a way to address the large quantity operations, and PC 8010(b) provides a mechanism to deal with small quantities of Nuisance items.

The use of a governmental authority to seize private property where there is no criminal conduct alleged is civil.

[pacrat]

In that section IX, do you see any reference to a court case? Do you see anywhere that sections 32390 and 18010 have been taken off the books? I don't. They remain on the books, and enforceable.

Lets not get into the weeds about what isn't there. I stipulate that they both remain on the books AS WRITTEN. Or in this case "creatively re-written" to deceptively include "possession".
But I don't concede, that it is, and should be. Legally OK for cops to break the law AS WRITTEN, or even re-written. Because they can get away with it. Up until the time a court slaps them for it.

18010(a) clearly says: All things described by section 32390 are included, ////// and then 18010(b) applies. I have no idea where you get the "court order" stuff from.

^^^The place held by the bolded hash marks is where you skipped (a). (b) ONLY applies to weapons described in (a). Which AS WRITTEN, only applies to those which the AG, a DA, or a City Attorney, chose to get enjoined, aka "court order."

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.

18010. (a) The Attorney General, a district attorney, or a city attorney may bring an action to enjoin the manufacture of, importation of, keeping for sale of, offering or exposing for sale, giving, lending, or possession of, any item that constitutes a nuisance under any of the following provisions:

Legal Definition of enjoin: ... to prohibit by judicial order

(b) The weapons described in subdivision (a) shall be subject to confiscation and summary destruction whenever found within the state

And AS WRITTEN. (b) states, Only those weapons that were enjoined under (a) are subject to confiscation and destruction.

So, 32390 made the claim that they are a nuisance. Then defers to 18010. But did not give authority to skip (a) and go straight to (b). Which refers back to (a) for authority, anyway. Which does NOT GIVE AUTHORITY for any badge in the state to grab up citizens personal property in the form of LCM. Unless the AG, DA ,or a CA. Got the citizen enjoined from possessing said property prior to the confiscation.

According to the two referenced laws. 32390 and 18010. AS WRITTEN. If a cop takes a LCM from a citizen simply because the citizen possessed it. Without any further legal cause. He is guilty of denying the citizen DUE PROCESS as guaranteed by the 5th and 14th amendments.

And this is prior to Judge Benitez's ruling on Duncan.

[pacrat]

Rick;

Subparagraph (b) provides that the 23 items on the list "shall be subject to confiscation and summary destruction whenever found within the state."

That's not what (b) says. And (a) is much more than a "list". It provides the "sniff test" of enjoinment prior to allowing (b). And even stipulates 3 classes of individuals allowed to petition for the enjoinment. It assuredly does not empower every badge in the state to take and destroy citizens personal property without due process.

If the legislature intended that items would have to be covered by a court injunction in order to be seized under 18010(b), they would have said so in the statute. But they did not. They only referenced the list of 23 items, without regard to the existence of a court order.

They clearly said so in (a). As written, the "LIST" is just a list of items that "MAY BE ENJOINED". If (a) was only meant as a LIST. It is rather asinine that the legislature included the list of permissive petitioners and the specific "may be enjoined" wording in the text.

Your comparison to an 1827 case that struck down a state import licensing scheme. Has zero correlation to a personal property takings case. Sorry, just not there.

ETA ,,,,,,,,,,,,,,,,,, almost forgot this tidbit.

The use of a governmental authority to seize private property where there is no criminal conduct alleged is civil.

Oh, I see now. You mean like that thing cops do that lines their pockets and serves their political masters. Without having to go to the trouble of all that worrisome proving a crime was even committed stuff.

They call it, "CIVIL ASSET FORFEITURE". Their victims call it a "license to steal".

[SCVlongstroke]

Had a bud had his “destroyed” after an incident where he had to draw his retired service weapon. They only released the firearm back to him.

[RickD427]

Lets not get into the weeds about what isn't there. I stipulate that they both remain on the books AS WRITTEN. Or in this case "creatively re-written" to deceptively include "possession".
But I don't concede, that it is, and should be. Legally OK for cops to break the law AS WRITTEN, or even re-written. Because they can get away with it. Up until the time a court slaps them for it.



^^^The place held by the bolded hash marks is where you skipped (a). (b) ONLY applies to weapons described in (a). Which AS WRITTEN, only applies to those which the AG, a DA, or a City Attorney, chose to get enjoined, aka "court order."

And AS WRITTEN. (b) states, Only those weapons that were enjoined under (a) are subject to confiscation and destruction.

So, 32390 made the claim that they are a nuisance. Then defers to 18010. But did not give authority to skip (a) and go straight to (b). Which refers back to (a) for authority, anyway. Which does NOT GIVE AUTHORITY for any badge in the state to grab up citizens personal property in the form of LCM. Unless the AG, DA ,or a CA. Got the citizen enjoined from possessing said property prior to the confiscation.

According to the two referenced laws. 32390 and 18010. AS WRITTEN. If a cop takes a LCM from a citizen simply because the citizen possessed it. Without any further legal cause. He is guilty of denying the citizen DUE PROCESS as guaranteed by the 5th and 14th amendments.

And this is prior to Judge Benitez's ruling on Duncan.

Pacrat,

We're going in circles here. When you boil down all of the words that you're written here, you're still reading 18010(b) to mean "weapons that are listed in 18010(a) and that have been enjoined by court order." But 18010(b) only refers to the weapons listed.

Can you cite any authority for your expansive reading? If not, I'll exit this "Academic Roundabout" and wait for a new development.

[pacrat]

Pacrat,

[1] ... We're going in circles here. When you boil down all of the words that you're written here, you're still reading 18010(b) to mean "weapons that are listed in 18010(a) and that have been enjoined by court order." [2] ... But 18010(b) only refers to the weapons listed.

[3] ... Can you cite any authority for your expansive reading? If not, I'll exit this "Academic Roundabout" and wait for a new development.

[1] ... YES. Because that is the "Letter of the Law".

[2] ... Is you still ignoring that pesky clearly written qualifier in the TEXT of (a).

[3] ... YES, as a matter of fact, I can.

If the underlined below is to be ignored, as if it doesn't exist. Even though it is clearly included in the text.

"18010.
(a) The Attorney General, a district attorney, or a city attorney may bring an action to enjoin the manufacture of, importation of, keeping for sale of, offering or exposing for sale, giving, lending, or possession of, any item that constitutes a nuisance under any of the following provisions:"

Then surely this musty old amendment which gives legitimacy to 18010. ONLY if the "enjoinment" language is included therein. Is also to be ignored.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.