SB2728 Makes it Easier to Confiscate

[FreedomIsNotFree]

I understand many here are excited about the new possibilities with SB2728. While I do see the many new opportunities presented to us I must also comment on what I do NOT like about SB2728.

It will make it much easier for the DA to claim your legally configured rifle is a "public nuisance" and have it destroyed. SB2728 reduced the burden of proof from criminal, beyond a reasonable doubt, to civil, preponderance of the evidence...basically 51% to 49%.

The Attorney General,
any district attorney, or any city attorney, may, in lieu of criminal
prosecution, bring a civil action or reach a civil compromise in any
superior court to enjoin the possession of the assault weapon or .50
BMG rifle that is a public nuisance.

So, the punishment for possessing an AW or .50 is drastically reduced in terms of criminal prosecution. Downside is they have made it easier to confiscate your rifle and charge you $300 civily.

I dont know about many of you, but I dont want to have my $2000 rifle confiscated by anyone without there being a criminal burden applied to the prosecution.

They knew they could never meet a criminal burden the way the law was written.

Will this make it easier for them to get our rifles out of our hands?

Only time will tell how they try and play this.

[tenpercentfirearms]

Not in Kern County!

[MonsterMan]

They can't take your legal rifle. If you have a true illegal AW than you were playing the odds and you lost.

If you build your rifle legally to the letter of the law and they take your legal property, then they might have a lawsuit on their hands.

[FreedomIsNotFree]

Not in Kern County!

So you dont believe your DA would try this angle? There is nothing in the law preventing him/her from doing so.

[xenophobe]

Sorry, I don't see this as being an extra way to confiscate unless you are unwilling or unable to afford to go to trial. Then it becomes the loss of the rifle as a cost you're willing to pay.

So, if you can't afford to fight and be a test case, and still want to have an off-list rifle build, you can do so without worrying about being subjected to felony or misdemeanor prosecution.

[FreedomIsNotFree]

Sorry, I don't see this as being an extra way to confiscate unless you are unwilling or unable to afford to go to trial. Then it becomes the loss of the rifle as a cost you're willing to pay.

So, if you can't afford to fight and be a test case, and still want to have an off-list rifle build, you can do so without worrying about being subjected to felony or misdemeanor prosecution.

What trial? This has been reduced to a CIVIL action. There is no jury trial for a civil action such as this.

[FreedomIsNotFree]

They can't take your legal rifle. If you have a true illegal AW than you were playing the odds and you lost.

If you build your rifle legally to the letter of the law and they take your legal property, then they might have a lawsuit on their hands.

Who says they cant just take your rifle? The burden has been reduced...drastically.

[HK fan]

just because they MAY do it, does not mean all of the DA's will take that route

[xenophobe]

What trial? This has been reduced to a CIVIL action. There is no jury trial for a civil action such as this.

If you plead "not guilty" to the infraction are deemed guilty and then seek to have it overturned?

[FreedomIsNotFree]

If you plead "not guilty" to the infraction are deemed guilty and then seek to have it overturned?

So you have an appeal in Superior Court....nothing changes....burden is still at a civil level. And lets not act as though losing upwards of $2000 is nothing...a mere cost of doing business.

[FreedomIsNotFree]

just because they MAY do it, does not mean all of the DA's will take that route

And you see this as an improvement to the previous situation where there was a criminal burden?

[10TH AMENDMENT]

The Attorney General,
any district attorney, or any city attorney, may, in lieu of criminal
prosecution, bring a civil action or reach a civil compromise in any
superior court to enjoin the possession of the assault weapon or .50
BMG rifle that is a public nuisance.

The prosecuting authority must be able to bring a criminal prosecution in order to act "in lieu of". Therefore, the weapon must be an Assault Weapon to begin with in order for the owner to be qualified for the lesser charge and the weapon to be enjoined from possession as a public nusiance.

[FreedomIsNotFree]

The prosecuting authority must be able to bring a criminal prosecution in order to act "in lieu of". Therefore, the weapon must be an Assault Weapon to begin with in order for the owner to be qualified for the lesser charge and the weapon to be enjoined from possession as a public nusiance.

So you are arguing that there must first be a criminal burden met then the punishment is civil? Not hardly. Where do you see that in the law?

This has taken the question OUT of the Criminal realm and into the civil realm which means the burden is drastically reduced.

No more beyond a reasonable doubt.

[tenpercentfirearms]

So you dont believe your DA would try this angle? There is nothing in the law preventing him/her from doing so.

I know for a fact my DA would not try this angle. EVER! Again, I live in Kern County. Our DA is an avid shooter and not a gun grabber. In fact, I expect our DA to use this liberally when idiots get caught with assault weapons. Not my fixed mag build, I mean actual assault weapons. Our DA already pleads such cases way down, now it will even easier for him. If he were ever to try it, you could bet he won't get elected again.

And again, that is if you get caught with an actual assault weapon. For just OLLs, again, this is Kern County baby. We actually still believe in God, guns, and glory!

I can see it now. A jury of my peers is going to say, "We don't even have one dissenter, this baby is 100% not an assault weapon. This civil case is over!" Again, I don't think you fully understand where I live.

[10TH AMENDMENT]

The Attorney General,
any district attorney, or any city attorney, may, in lieu of criminal
prosecution, bring a civil action or reach a civil compromise in any
superior court to enjoin the possession of the assault weapon or .50
BMG rifle that is a public nuisance.

So you are arguing that there must first be a criminal burden met then the punishment is civil? Not hardly. Where do you see that in the law?

This has taken the question OUT of the Criminal realm and into the civil realm which means the burden is drastically reduced.

No more beyond a reasonable doubt.

Sometimes simple explainations just don't seem to work if someone is determined to believe one's own position.

You must have committed an act that involves an illegal Assault Weapon before any prosecuting authority can charge you "in lieu of"...He must satisfy that basic threshold before he can enter the "in lieu of" realm. The target offense must involve an illegal Assault Weapon before he can even consider the optional charge. He must show probable cause that one has an illegal Assault Weapon before he can go anywhere near charging the suspect with the lesser offenses.

This would absolutely preclude any possibility of being subject to the civil BOP standard if the individual did not possess an illegal Assault Weapon in the first place.

That would essentially preclude any possibility of legal risk or public nusiance confiscation for those with legally configured "off list" weapons because it is not even an Assault Weapon to begin with.

Sorry, that is just an elementary fact regarding the legal construction of this particular statutory scheme.