Miller v. Bonta 9th Ckt "assault weapons": Held for Duncan result 1-26-24

[n8vrmind]

to follow up on this question, is there a way to tell whether it was built before/during this window?

if you must, make a video of yourself holding you *temporally legally* configured AR and replying to the post during the window peroid. The time stamp of your post will be the proof....

[RickD427]

Yup, You're right.

That's why the Nguyen case is worthy of note.

But in defense of our 58 District Attorneys, I haven't seen any evidence of Eagle Scouts being filed on, and Mr. Nguyen was a pretty hardcore knucklehead.

[OlderThanDirt]

As I recall Nguyen talked himself into the attempted possession of an AW conviction.

[johnireland]

If anyone still believes that America is a nation of laws, you are fooling yourself.

[RickD427]

As I recall Nguyen talked himself into the attempted possession of an AW conviction.

He did. The prosecution used his statements to show the "Intent" element.

But that's not the only way that the element could have been proven. Another common method of proving the element is to show the absence of any other plausible explanation for the conduct, leaving the trier of fact to conclude that intent was present.

[AKSOG]

He did. The prosecution used his statements to show the "Intent" element.

But that's not the only way that the element could have been proven. Another common method of proving the element is to show the absence of any other plausible explanation for the conduct, leaving the trier of fact to conclude that intent was present.

IIRC they used that against him as well with expert testimony stating only an AW would result in the completion of the long gun he was assembling, with the parts he had in his posession.

If I'm not mistaken he was also convicted prior to the updated AW regs when the common theme was a broken AW is still an AW. But I'm not sure if that would have changed the outcome

None the less. I think it would behoove all law abiding gun owners to be in posession of components that would bring their disassembled firearms within the states compliance if added. Also I think having other completed long guns in legal configurations would also be a strong defense should the question arise about intent in that type of situation.

[IVC]

Please keep in mind that California's "Assault Weapon" statute does not incorporate any "Constructive Possession" language.

You can't get fanged for the "Constructive Possession" of an Assault Weapon.

But a creative Orange County District Attorney did gain recognition of the criminal charge of "Attempted Possession" of an Assault Weapon in the case of People v Nguyen.

Penal Code section 664 defines "Attempts" to commit crimes and generally sets the penalty for an attempt at one-half of what the sentence would be for the completed crime.

The crime of "Attempted Possession of an Assault Weapon" kinda, sorta, at least a little bit, looks like what 'Constructive Possession of an Assault Weapon" would look like, if there were such a thing. But there are some very significant differences between "Attempted Possession" and "Constructive Possession":

1) To prove "Attempted Possession", the nice prosecutor has to show that the defendant had the intent to assemble the parts of an Assault Weapon into an Assault Weapon. In "Constructive Possession" they only have to show that defendant had the parts.

2) In an "Attempted Possession" case, the prosecutor has to show that the defendant made an ineffective act (which could be a perfectly legal act) toward the completion of the crime. There is no corresponding requirement for "Constructive Possession" cases.

Thanks for the clarification - I didn't follow that case too closely, so it's good to know it was a different legal theory that the DA used.

Still, it shows that a DA can go after a person from different angles and that every little detail matters, making it a legal mine field to be close to the line with anything CA believes is immoral and we shouldn't have.

[Spaceghost]

The guy that purchased another 5 lowers to go with his then current stash of 5 or more before this was law, raises his eyebrows excitedly.

They can tell when you DROS'ed the gun starting in 2014.
So if you have NOT already DROS'ed the gun, it will be difficult to say that you had it before you DROS'ed it unless you had it prior to 2014 which is typically not the case for people building new guns today.

[CandG]

The guy that purchased another 5 lowers to go with his then current stash of 5 or more before this was law, raises his eyebrows excitedly.

[abinsinia]

If we won this one, and there was a week or so when the law was gone like freedom week, then ...

Do we think the CADOJ would open up the assault weapon registry again or would all the assault weapons made during that period become instantly illegal if the ruling was stayed ?

[CandG]

If we won this one, and there was a week or so when the law was gone like freedom week, then ...

Do we think the CADOJ would open up the assault weapon registry again or would all the assault weapons made during that period become instantly illegal if the ruling was stayed ?

Impossible to predict the outcome with any degree of accuracy. It could be either of those things, or some combination of both, or something else entirely.

There's a good chance, in my opinion, that in order to avoid the convoluted mess a "freedom week" would inevitably create, there will not be one.

When the Duncan "Freedom week" ended, we returned to the status quo. Possession remained legal, acquisition once again became illegal. Simple enough. In this case, it is far more complicated because, if there was a Freedom week after which we returned to the status quo, felony possession of an unregistered AW would once again be the law of the land. There would need to be some other factor (whether that be lower court order, appeals court order, or emergency legislation or regulations, or some combination thereof) to prevent that result, and it's impossible to know what that factor would be, or if there will even be one at all. Judge Benitez may not even know how it all might play out.

[gumby]

If anyone still believes that America is a nation of laws, you are fooling yourself.

So true!!!

[CandG]

Here are some of the many possibilities of how a "Freedom Week" (Benitez overturns law, then issues a stay, effective some amount of time later) in this case hypothetically might play out:

• The stay somehow includes a mandate that DOJ allow weapons acquired during Freedom Week to be registered.
• He only stays the portion of his ruling that applies to the ban on acquisition (but not the ban on possession) of unregistered AWs while the appeal(s) play out in CA9.
• He stays the entire ruling, and all AWs acquired during freedom week become illegal to possess immediately after Freedom Week, forcing owners of said weapons to disassemble them, reconfigure them to be legal, or be felons. This would be a bizarre choice for him to make, but it's still possible.
• He issues a stay (of any sort), but the 9th circus orders another stay or injunction that overrides all or part of it.

Some other possibilities, outside of the "Freedom Week" possibilities above, could be:

• He includes an immediate stay as part of his ruling, thus no freedom week.
• He doesn't issue a stay at all, but the 9th Circus does.
• Neither he nor the 9th Circus issue a stay, and we have a "Freedom Indeterminate-Amount-of-Time" until such time as the appeal gets decided. Incredibly unlikely, but theoretically possible.
• His ruling doesn't even strike down the portion of the law that applies to the ban on acquisition, thus mooting this entire conversation and making us all very sad.

[NATO762]

^^^^ In other words, no 🦆ing idea what will happen

[lastinline]

Is there some legal requirement that judge Benitez even ever come out with any ruling, or can this simply hang in limbo forever?