Please school me on Regulations vs. PC vs. Laws, etc.

[pacrimguru]

Let's back this up a couple of steps. I wanted to see if someone can give us – who don't fully understand the process – a clearer comprehending of what is what regarding Penal Codes (PC), Regulations (CCR, California Code of Regulations), Laws, etc., so we can all better understand what's going on here.

1) What exactly is going on big picture wise? Legislature creates new Laws and PC's that further regulate firearms. Then these PC's were used by DOJ to form a new set of "AW" Regulations?

2) As I understand it, DOJ's "AW" Regulations are supposed to be based on PC's, but it seems as if DOJ went and ignored that fact and made some Regulations that don't have PC's attached to them. Is that right? If so, is that legal for them to do and what is our recourse?

3) Some say Regulations without a PC to back them up "have no teeth" and one cannot be prosecuted for not following them (because w/o a PC, there's nothing to charge you with). If that is so, then why follow any Regulation that doesn't have PC's attached to them?

4) These Regulations are not Law, correct? When is something "against the law" vs. "against regulation" and what's the difference?

[LEAD LAUNCHER]

Good idea for a thread.

If Doj says they will not accept any assault weapon registrations unless a ham sandwich is duct taped to your Barrel in the picture, is there some authority that can b#$ch slap them-
and tell them"You are absolutely not putting that in the regulations!"

Or do they literally have to be challenged in court and it needs to go before a judge?

[ifilef]

re: 5477

I think that if one violates a material regulation the very least the DOJ would be able to do is revoke ab initio your registration as a AW under any emergency powers it may possess.

The most would be the individual D.A. in your county might prosecute one for manufacturing.

[fiddletown]

I'll respond in far more general terms, so let's see if this makes sense or is helpful. The model I'm outlining applies to all States as well as the federal government.

1. First there are statutes.
   
   
   1. Statutes are enacted by legislatures. So federal statutes are bills passed by Congress and signed by the President. California statutes are bills passed by the State Legislature and signed by the governor (or not vetoed in the time allotted). In various States, including California, statutes include laws adopted by public vote through the initiative process.
      
      
   2. Statutes are usually "codified." That means that they are maintained in various Codes setting out all statutes dealing with particular subjects. Federal statutes are found in the United States Code which consists of 54 Titles.
      
      
   3. California has it's its Codes, one of which is the Penal Code.
   
   
   
2. Then there are regulations.
   
   
   1. Sometimes a statute will authorize a regulatory agency in the executive branch of the government to issue regulations on a particular subject. So, for example, a statute enacted by the Legislature and codified in the Penal Code could authorize the California Attorney General to issue regulations relating to a particular issue involved in the AG's regulation of weapons.
      
      
   2. California regulations are set out in the California Code of Regualtions (CCR). Regulations of the AG dealing with firearms are set out in Division 5 of Title 11 of the CCR.
      
      
   3. Various laws specify the process which must be used by a regulatory agency to adopt a regulations. Regulations must generally first be made available in draft form to the public for comment, except for emergency regulations which may be effective for only a limited period. Regulations may be made final only after the period for public comment has expired.
      
      
   4. Also, a regulation may only be adopted if, and to the extent, specifically authorized by a statute.
      
      
   5. Regulations are subject to challenge in court on the grounds that they are unconstitutional, e. g., that they impermissibly violate a constitutionally protected right. In addition, a regulation may be challenged in court on the grounds that is wasn't authorized by statute or on the grounds that it exceeds the authority of granted by the statute.
      
      
   6. But a valid regulation has the force of law.
   
   
   
3. In addition a regulatory agency may publish advice or guidance or opinions.
   
   
   1. So for example, the California Attorney General may publish advice about how it interprets a particular statute or how member of the public can comply with a particular law.
      
      
   2. This sort of advice or guidance does not have the force of law. It does, however, provide some insight into how the agency will enforce the law. It is thus not binding on a court.
   
   
   
4. And of course, the "law" includes the decisions of courts of appeal. These decision can then influence how another court in another case will decide similar issues.

[pacrimguru]

Thank you for your response fiddletown, that's plenty for me to chew on!

[Dump1567]

From SB 880:

(5) The department shall adopt regulations for the purpose of implementing this subdivision. These regulations are exempt from the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).

The only thing the DOJ was suppose to do per the Legislators was adopt a policy on Registration of BB type weapons. What they did was add a bunch of definitions of terms and included telling you what you can and can not do. IMO, this was outside their scope and are Underground Regulations.

The current definitions on things like FH,PG,etc, went to a comment period through the OAL. The DOJ has expanded some of this info. and has added new definitions to things that has nothing to do with just registering BB style weapons. I find it strange the the DOJ has a history of not commenting on the legality of certain things (it's up the the 58 DA's), and suddenly has a lot to say under simple procedure rules on how to register BB AW's.

Again in my opinion, this is not what the Legislators exempted them from. And it will be interesting to see what the NRA/CRPA say about this, as they are very familiar with this process.

[pacrimguru]

^Hopefully this means that there will be many challenges forthcoming.

[ifilef]

Fiddle- why no mention of exemption from the APA? That is of some relevance to our predicament?

[Librarian]

From SB 880:



The only thing the DOJ was suppose to do per the Legislators was adopt a policy on Registration of BB type weapons. What they did was add a bunch of definitions of terms and included telling you what you can and can not do. IMO, this was outside their scope and are Underground Regulations.

The current definitions on things like FH,PG,etc, went to a comment period through the OAL. The DOJ has expanded some of this info. and has added new definitions to things that has nothing to do with just registering BB style weapons. I find it strange the the DOJ has a history of not commenting on the legality of certain things (it's up the the 58 DA's), and suddenly has a lot to say under simple procedure rules on how to register BB AW's.

Again in my opinion, this is not what the Legislators exempted them from. And it will be interesting to see what the NRA/CRPA say about this, as they are very familiar with this process.

Since you correctly note that the prior Code of Regulations included definitions, you must realize that creating definitions is within the power of a regulatory agency, such as CA-DOJ -- even if those definitions conflict with 'common usage'.

The Legislature, of course, was made aware of what the DOJ might intend with the new regs, and added that damnable exemption from the Administrative Procedure Act to avoid comment periods.

Someone noted already that it didn't seem that the bill qualified to be exempted, but I have no idea if that might be true.

[djhall]

• Also, a regulation may only be adopted if, and to the extent, specifically authorized by a statute.
  
• Regulations are subject to challenge in court on the grounds that they are unconstitutional, e. g., that they impermissibly violate a constitutionally protected right. In addition, a regulation may be challenged in court on the grounds that is wasn't authorized by statute or on the grounds that it exceeds the authority of granted by the statute.
  
• But a valid regulation has the force of law.

And of course there is this: No matter how clearly a law or regulation may be unreasonable or unconstitutional, it still stands as the law until someone with real stakes in the outcome takes it to court. If that person is lucky the sakes are only legal fees, but often the price of bringing the challenge is putting your freedom at stake on the outcome.

Short of volunteering to put our freedom at stake or donating money to the cause, all most of us can do is either risk defiance and hope we don't get caught or come here to grumble, whine, vent, and spout legal theories before reluctantly complying and hoping someone else steps up and wins the issue for us. [emoji22]

[readysetgo]

Fiddle- why no mention of exemption from the APA? That is of some relevance to our predicament?

These are NOT exempt from the APA. Nor are these regulations in force or accepted YET.

Everyone running around screaming "regulation" are putting the cart in front of the horse.

The first step is to OPPOSE these various regulations vigorously during period of public comment. The correct term, at this point, is "proposed regulation."

OP and others browse around CA OAL site for more info and confirmation of fiddletowns statements.

eta: Apparently I am dumb and had forgotten that. Thank you, goodbye.

[BAJ475]

These are NOT exempt from the APA. Nor are these regulations in force or accepted YET.

Everyone running around screaming "regulation" are putting the cart in front of the horse.

The first step is to OPPOSE these various regulations vigorously during period of public comment. The correct term, at this point, is "proposed regulation."

OP and others browse around CA OAL site for more info and confirmation of fiddletowns statements.

If we are speaking of the new AW registration regulations, they were expressly exempted from the APA procedures. There will be no period of public comment. They will be effective once published, which may have already happened. There will be no opportunity to oppose the regulations, short of filing a court action.

[nicky c]

These are NOT exempt from the APA. Nor are these regulations in force or accepted YET.

Everyone running around screaming "regulation" are putting the cart in front of the horse.

The first step is to OPPOSE these various regulations vigorously during period of public comment. The correct term, at this point, is "proposed regulation."

OP and others browse around CA OAL site for more info and confirmation of fiddletowns statements.

Yet the the CA DOJ has submitted the new regulations for file & print to CCR's with an effective date of January 1, 2017. No public comment period will occur here. The OAL has to file them, that is all.

[BAJ475]

I'll respond in far more general terms, so let's see if this makes sense or is helpful. ...

Would you add a few statements on how violation of regulations can be punished. This seems to be missing from most of the discussions of the new AW regulations and you generally do an excellent job providing such information.

[Sousuke]

If we are speaking of the new AW registration regulations, they were expressly exempted from the APA procedures. There will be no period of public comment. They will be effective once published, which may have already happened. There will be no opportunity to oppose the regulations, short of filing a court action.

They (CADOJ) can release "clarifications" under threat of lawsuit can't they?