Transporting/Using Freedom Week Mags

[RickD427]

From the main thread in 2A Litigation

https://californiariflepistol.app.neoncrm.com/np/clients/californiariflepistol/donation.jsp?test=true&campaign=173&

CRPA WILL petition for cert. That almost certainly means the mandate from Nov 30 will be stayed.

As discussed above. There will be a window of enforcement small/large from when the mandate is issued to the submission of the petition for cert.

The window between (c) and (d). Please correct me if I'm wrong as I've read other timelines where Benitez must dissolve the injunction after the mandate is delivered but that's not described in Rule 41, unless i missed it.


Freedom week was just that, one week. Could there not be a "Conviction/Confiscation week"?

There is the potential for a "Conviction" week. But it's highly unlikely for a number of reasons. We've existed with the potential for "Confiscation" all through this thing. There was nothing in Ms. Duncan's case that removed the legal potential for non-criminal confiscation of large-capacity magazines.

The reason I suggest that it's highly unlikely is that LE agencies don't like to involve themselves in pending litigation. There was a lot of LE interest in bringing a test case to court, but now that one exists, they're taking a "wait and see" posture. The fact that we haven't seen massive reports of confiscations kinda backs up that view.

One purpose of the "Mandate" is to avoid the "Judicial Whiplash" that would result if a Circuit Court decision were issued, and then changed by either a re-hearing, or Supreme Court decision. Rule 41 allows (but does not require) the Circuit Court to stay the mandate if either action is initiated.

If Ms. Duncan does file a request for Certiorari with the Supreme Court, the Ninth Circuit may stay the mandate until the Supreme Court action is finished. That pretty much leaves things as they are, and without interruption.

But the Ninth Circuit is not required to issue a stay. It's anyone's guess at this point how they would respond to the request.

[SharedShots]

There's the proverbial "Failure to Communicate" going here.

"ARDude" is right on point.

Penal Code section 32310 makes the possession of ALL Large-Capacity Magazines illegal (although there are some exceptions contained in other statutes, none of them apply to ordinary folks).

There is no "Grandfathering."

The Ninth Circuit has just upheld the constitutionality of PC 32310. The corresponding Mandate to that decision has not yet been issued, but should be forthcoming shortly.

Judge Benetiz's injunction against enforcement of portions of PC 32310 is still in effect, but you should expect that it will be lifted as soon as the Mandate is issued.

Once that occurs, and if no other stay is issued, then the simple possession of a large-capacity magazine, regardless of when it was acquired, can be prosecuted.

So point them in the wrong direction oh wise one

What part of what Rick posted did you not understand?confused:

Its very simple. If you want to be the test case, got for it. If you think some 2/A organization is rushing to your aid, think again. Make sure you check your bank account so you can cover legal fees. Oh, and before all that, if you think some CCW insurance or any other similar insurance is going to help you - get that in writing first.

Okay, don't push, the line for BMOC types forms on the right.

[supersonic]

You got a couple of different issues going on here. Best to discuss them separately to keep things clear:

1) Assault Weapons Legal Stuff:

Folks ensure compliance with the Assault Weapon statutes in two ways. One is to make the weapon "Featureless" so that it is simply a semi-automatic rifle. The Assault Weapon statute is not violated if you put a large-capacity magazine into a featureless semi-auto rifle.

Folks also make the magazine of a semi-auto rifle fixed so that it does meet the "detachable magazine" element of the AW definition, and that works so long as nothing else puts the rifle back into the definition. Having a fixed magazine of more than 10 rounds does just that. It creates an illegal AW.

Some folks get nutted up over the concept of "Constructive Possession" of a large capacity magazine in conjunction with a fixed magazine rifle. California's AW statute does not include a "Constructive Possession" clause. The law is not directly violated if you possess a large-capacity magazine with the rifle. Some caution may be called for following the California State Supreme Court case of People v Nguyen where Mr. Nguyen was convicted of the "Attempted Possession of an AW" under facts that were roughly similar to constructive possession, but the Nguyen case was sufficiently different that it does not equate to "constructive possession."

2) Possession of a Large-Capacity Magazine - The technical legal version:

The simple possession of a large-capacity magazine is currently illegal. The law that it makes it so is currently being challenged in federal court, and the federal court has issued an injunction prohibiting enforcement of the statute. But it's also important to note that nothing in the federal court action has changed the state statute. It still remains as law.

3) Possession of a Large-Capacity Magazine - The practical version:

The current court order pretty much puts a stop to prosecution, and that in turn pretty much stops enforcement efforts until the status of the law is resolved. I'm only aware of two cases where LE officers seized large-capacity magazines under the state law, and while the injunction was in effect. In the first case, the magazines were returned to their owner, with an apology, and no charges were filed. In the other case, charges were filed, but were subsequently dismissed.

Although it is legally possible for a person to be later charged with possession if the law is upheld and the injunction dissolved, there are a great many legal reasons that make that extremely unlikely.

As a purely practical matter, you're on pretty safe legal ground possessing your large-capacity magazines so long as the injunction is in effect.

Could you please cite the p.c. which states simple possession of standard capacity magazines is illegal? I've searched and can only find selling, buying, loaning, importing into the state as being illegal. Thanks.

[Librarian]

Could you please cite the p.c. which states simple possession of standard capacity magazines is illegal? I've searched and can only find selling, buying, loaning, importing into the state as being illegal. Thanks.

It was a Prop 63 change, https://leginfo.legislature.ca.gov/f...ctionNum=32310.

32310.

(a) 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 person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

(b) For purposes of this section, “manufacturing” includes both fabricating a magazine and assembling a magazine from a combination of parts, including, but not limited to, the body, spring, follower, and floor plate or end plate, to be a fully functioning large-capacity magazine.

(c) 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, commencing July 1, 2017, any person in this state who possesses any large-capacity magazine, regardless of the date the magazine was acquired, is guilty of an infraction punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, or is guilty of a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

And, of course, it's CA's silly 'large-capacity' magazines, not common-usage 'standard capacity', which is weapon-dependent: 'standard capacity' for a 1911A1 is seven.

It's been in the law since 2017; I suggest you improve your legal reference links to include the CA code as published by the state, http://leginfo.legislature.ca.gov/faces/codes.xhtml

[supersonic]

It was a Prop 63 change, https://leginfo.legislature.ca.gov/f...ctionNum=32310.

And, of course, it's CA's silly 'large-capacity' magazines, not common-usage 'standard capacity', which is weapon-dependent: 'standard capacity' for a 1911A1 is seven.

So the owners of the tens of thousands of mags that were imported into the state during Freedom Week & the millions of pre-2000 standard capacity magazine owners are now required by law to sell or destroy their legally-acquired, legally-owned (for over half a century until last month) personal property??

This is unreal.

[Librarian]

So the owners of the tens of thousands of mags that were imported into the state during Freedom Week & the millions of pre-2000 standard capacity magazine owners are now required by law to sell or destroy their legally-acquired, legally-owned (for over half a century until last month) personal property??

This is unreal.

That's 'until July 1, 2017', not last month.

Thus the Duncan lawsuit. http://www.calguns.net/calgunforum/s....php?t=1335810

[RickD427]

Could you please cite the p.c. which states simple possession of standard capacity magazines is illegal? I've searched and can only find selling, buying, loaning, importing into the state as being illegal. Thanks.

It's in Penal Code section 32310. Here is the text with the pertinent part in bold font:

possesses any large-capacity magazine, regardless of the date the magazine was acquired, is guilty of an infraction punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, or is guilty of a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
(d) Any person who may not lawfully possess a large-capacity magazine commencing July 1, 2017 shall, prior to July 1, 2017:
(1) Remove the large-capacity magazine from the state;
(2) Sell the large-capacity magazine to a licensed firearms dealer; or
(3) Surrender the large-capacity magazine to a law enforcement agency for destruction."

So the owners of the tens of thousands of mags that were imported into the state during Freedom Week & the millions of pre-2000 standard capacity magazine owners are now required by law to sell or destroy their legally-acquired, legally-owned (for over half a century until last month) personal property??

This is unreal.

It may well be "unreal" or "mad", but both points are irrelevant to the law.

Judge Benetiz' order against enforcement of the possession clause of PC 32310 technically is still in effect, but you should plan on it going away once the Ninth Circuit issues the mandate on its decision.

Additionally, please note that the statute does not address "standard capacity" magazines. That term appears nowhere in the law. The term used, and the term as defined in law, is "Large Capacity Magazine." I know that a lot of folks like to chose their own words as if they could change the statute with their choice of words, but it don't work that way and all they really do is confuse the issue.

[supersonic]

It's in Penal Code section 32310. Here is the text with the pertinent part in bold font:

"(a) 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 person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.
(b) For purposes of this section, “manufacturing” includes both fabricating a magazine and assembling a magazine from a combination of parts, including, but not limited to, the body, spring, follower, and floor plate or end plate, to be a fully functioning large-capacity magazine.
(c) 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, commencing July 1, 2017, any person in this state who possesses any large-capacity magazine, regardless of the date the magazine was acquired, is guilty of an infraction punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, or is guilty of a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
(d) Any person who may not lawfully possess a large-capacity magazine commencing July 1, 2017 shall, prior to July 1, 2017:
(1) Remove the large-capacity magazine from the state;
(2) Sell the large-capacity magazine to a licensed firearms dealer; or
(3) Surrender the large-capacity magazine to a law enforcement agency for destruction."

It may well be "unreal" or "mad", but both points are irrelevant to the law.

Judge Benetiz' order against enforcement of the possession clause of PC 32310 technically is still in effect, but you should plan on it going away once the Ninth Circuit issues the mandate on its decision.

Additionally, please note that the statute does not address "standard capacity" magazines. That term appears nowhere in the law. The term used, and the term as defined in law, is "Large Capacity Magazine." I know that a lot of folks like to chose their own words as if they could change the statute with their choice of words, but it don't work that way and all they really do is confuse the issue.

Your assumptions that I have some "agenda" due solely to a word(s) I may or may not use are ridiculously speculative & totally incorrect. My use of "unreal" has no inference as to relevance nor irrelevance to the law. My use of "standard capacity magazine" is due to the fact that I simply don't use terms made up by ignorant politicians to create fear. I speak & type in accurate wording, regardless of what you, or anyone else, might consider to be "confusing" or "less popular".... Nothing more, "confusing" or not.