The Harrott Decision
In June 2001, the California Supreme Court handed down its decision in Harrott v. County of Kings (25 P.3d 649 (Cal. 2001) – and commonly called Harrott v. Kings County). This decision clarified and superceded key elements of both the prior Kasler decision and the Roberti-Roos AWCA law, as they pertain to AR15 and AK “series” weapons.
Specifically, Harrott determined that:
· Determination of “series” membership is difficult enough that owners and law enforcement should merely have to consult a list of specific makes and models (in California Code of Regulation) to know if their gun is a banned assault weapon:
“This case amply illustrates the difficulty an ordinary citizen might have, when a gun' s markings are not listed in the Identification Guide, in determining whether a semiautomatic firearm should be considered an assault weapon under the AWCA. . . “
“Our interpretation of section 12276, subdivision (e) is reinforced by the rule that a statute must be interpreted in a manner, consistent with the statute's language and purpose, that eliminates doubts as to the statute's constitutionality. (Hughes v. Board of Architectural Examiners (1998) 17 Cal. 4th 763, 788.) “A law failing to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited violates due process under both the federal and California Constitutions. (Grayned v. City of Rockford (1972) 408 U.S. 104, 108; People v. Heitzman (1994) 9 Cal. 4th 189, 199.)” (Kasler, supra, 23 Cal.4th at pp. 498-499.)”
“Ordinary gun owners of reasonable intelligence, Mr. Harrott contends, cannot be expected to know whether the differences between their semiautomatic firearms and the assault weapons specifically listed in section 12276, subdivision (a) are, in the language of section 12276, subdivision (e), only "minor." However, our interpretation of the AWCA avoids this problem. To determine whether the differences between their firearms and the series assault weapons listed in section 12276 are considered to be only "minor," gun owners need only consult the California Code of Regulations.”
· Trial courts cannot determine if a given firearm/receiver is a member of AR or AK “series”. Banned weapons in AR/AK “series” must be specifically banned by make and model, and the DOJ must promulgate these banned firearms:
“Our decision today - upholding the Attorney General's authority to identify series assault weapons pursuant to section 12276, subdivision (e), but holding that a trial court may not find a semiautomatic firearm a series assault weapon under section 12276, subdivision (e), unless the firearm has first been included in the list of series assault weapons promulgated by the Attorney General pursuant to section 12276.5, subdivision (h) - is compelled by our examination of the legislative history of the AWCA.”
“Our construction of the statute, holding that a trial court may not find a semiautomatic firearm to be a series assault weapon under section 12276, subdivision (e), unless the firearm has first been included in the list of series assault weapons promulgated by the Attorney General pursuant to section 12276.5, subdivision (h), best serves the legislative goal we have just described. A contrary interpretation would be inconsistent with the legislative goal because owners of unlisted weapons would still be unsure whether they had to comply with the registration requirement.”
“Finally, our construction of the AWCA - that a trial court may not find a firearm a series assault weapon unless it has been first identified as such in the list published by the Attorney General in the California Code of Regulations - comports with the Attorney General's own construction of the statute.”
· DOJ does have authority to ‘identify’ and promulgate new members of the AR & AK “series” itself – and this power is only for AR and AK series members:
“Although we hold the Attorney General has the authority to determine that certain semiautomatic firearms are assault weapons by simply identifying them as such in the list published by the Attorney General in the California Code of Regulations, that authority applies only to the two types of firearms defined in section 12276 by the use of the term series, namely, the AK47 series and the Colt AR-15 series.”
· DOJ cannot ban other weapons outside the AR/AK series, but must instead begin an “add-on” procedure filed in certain superior courts, as specified in PC 12276.5. Here, DOJ can seek a temporary, then permanent, declaration that given firearms are assault weapon:
“In order to have any other semiautomatic firearms declared assault weapons within the meaning of section 12276, the Attorney General must utilize the add-on procedure set forth in section 12276.5.”
· the DOJ determination of AR/AK “series” membership is challengeable:
“. . . the Attorney General's identification of a particular firearm as a series assault weapon would, in an appropriate case, be subject to challenge on the ground the firearm in question did not satisfy the standard set forth in section 12276, subdivision (e), namely that the variations between it and the AK47 series or the Colt AR-15 series were more than "minor."
Also, the court was concerned about avoiding any “self-executing” issues and requiring specific promulgation:
… The fact these amendments were enacted together supports the conclusion that subdivision (e) of section 12276 is not self-executing, but, rather, that the specific make and model of an assault weapon must first appear on the list the Attorney General, pursuant to section 12276.5, subdivision (h), files with the Secretary of State for publication in the California Code of Regulations.
This construction is consistent with one of the Legislature' s primary purposes in amending the AWCA in 1991, which was to promote compliance with the requirement of section 12285 that assault weapons be registered. . . .
Thus, Harrott turned Kasler on its head: while Kasler said any AR or AK was a “named” – and thus banned – assault weapon, Harrott said this left too much up in the air: citizens, law enforcement and trial courts shouldn’t have to determine “series” membership themselves, and DOJ (Firearms Division) should be the one determining AR/AK “series” membership. This allowed a group with technical expertise to set a uniform, promulgated standard.
The Supreme Court held that such banned “named” weapons had to be banned by specific makes and models on a publicized, state-maintained list (in the California Code of Regulation as primary source). Note that such guns are banned by a combination of make and model, not just either a make or model name: if the specific combination of make and model is not a listed entry in the roster maintained and promulgated by DOJ, a receiver is legal to possess. (This doesn’t address the separate SB23 “characteristic features” issues.)
Because AR- and AK-type bare receivers not listed in the California Code of Regulations, §979.11are not assault weapons as long as no SB23 “evil features” are attached, these “off-list”, or “non-Kasler” bare receivers can be legally purchased and possessed by California firearms consumers. CCR §979.11 is also echoed in the DOJ publication Roster of AK and AR15 Series Weapons, and in PC 12276(e).
Here's one possible way to build an off list lower into a California law compliant weapon.
THE USE OF FIREARMS IN DEFENSE OF LIFE AND PROPERTY
The question of whether use of a firearm is justified for self-defense cannot be reduced to a
simple list of factors. This section is based on the instructions generally given to the jury
in a criminal case where self-defense is claimed and illustrates the general rules regarding
use of firearms in self-defense.
Use of a Firearm or Other Deadly Force in Defense of Life and Body
The killing of one person by another may be justifiable when necessary to resist the
attempt to commit a forcible and life-threatening crime, provided that a reasonable person
in the same or similar situation would believe that (a) the person killed intended to commit
a forcible and life-threatening crime; (b) there was imminent danger of such crime being
accomplished; and (c) the person acted under the belief that such force was necessary to
save himself or herself or another from death or a forcible and life-threatening crime.
Murder, mayhem, rape, and robbery are examples of forcible and life-threatening crimes.
Self-Defense Against Assault
It is lawful for a person being assaulted to defend himself or herself from attack if he or she
has reasonable grounds for believing, and does in fact believe, that he or she will suffer
bodily injury. In doing so, he or she may use such force, up to deadly force, as a
reasonable person in the same or similar circumstances would believe necessary to prevent
great bodily injury or death. An assault with fists does not justify use of a deadly weapon
in self-defense unless the person being assaulted believes, and a reasonable person in the
same or similar circumstances would also believe, that the assault is likely to inflict great
It is lawful for a person who has grounds for believing, and does in fact believe, that great
bodily injury is about to be inflicted upon another to protect the victim from attack. In so
doing, the person may use such force as reasonably necessary to prevent the injury.
Deadly force is only considered reasonable to prevent great bodily injury or death.
NOTE: The use of excessive force to counter an assault may result in civil or criminal
Protecting One’s Home
A person may defend his or her home against anyone who attempts to enter in a violent
manner intending violence to any person in the home. The amount of force that may be
used in resisting such entry is limited to that which would appear necessary to a reasonable
person in the same or similar circumstances to resist the violent entry. One is not bound to
retreat, even though a retreat might safely be made. One may resist force with force,
increasing it in proportion to the intruder’s persistence and violence, if the circumstances
apparent to the occupant would cause a reasonable person in the same or similar situation
to fear for his or her safety.
The occupant may use a firearm when resisting the intruder’s attempt to commit a forcible
and life-threatening crime against anyone in the home provided that a reasonable person in
the same or similar situation would believe that (a) the intruder intends to commit a
forcible and life-threatening crime; (b) there is imminent danger of such crime being
accomplished; and (c) the occupant acts under the belief that use of a firearm is necessary
to save himself or herself or another from death or great bodily injury. Murder, mayhem,
rape, and robbery are examples of forcible and life-threatening crimes.
Any person using force intended or likely to cause death or great bodily injury within his
or her residence shall be presumed to have held a reasonable fear of imminent peril of
death or great bodily injury to self, family, or a member of the household when that force
is used against another person, not a member of the family or household, who unlawfully
and forcibly enters or has unlawfully and forcibly entered the residence and the person
using the force knew or had reason to believe that an unlawful and forcible entry had
occurred. Great bodily injury means a significant or substantial physical injury. (Penal
Code § 198.5.)
NOTE: If the presumption is rebutted by contrary evidence, the occupant may be
criminally liable for an unlawful assault or homicide.
Defense of Property
The lawful occupant of real property has the right to request a trespasser to leave the
premises. If the trespasser does not do so within a reasonable time, the occupant may use
force to eject the trespasser.
The amount of force that may be used to eject a trespasser is limited to that which a
reasonable person would believe to be necessary under the same or similar circumstances.
Limitations on the Use of Force in Self-Defense
The right of self-defense ceases when there is no further danger from an assailant. Thus,
where a person attacked under circumstances initially justifying self-defense renders the
attacker incapable of inflicting further injuries, the law of self-defense ceases and no
further force may be used.
The right of self-defense is not initially available to a person who assaults another.
However, if such person attempts to stop further combat and clearly informs the adversary
of his or her desire for peace but the opponent nevertheless continues the fight, the right of
self-defense returns and is the same as the right of any other person being assaulted.
Source 64 Page Adobe Acrobat File from CA DoJ
Paul - California has a "home is your castle" law.
The current situation is that over 5000 off-list lowers have been imported into CA and have been legally sold to end-users after 10day waiting period.
I am the guy who wrote the FAQ on Calguns.net www.calguns.net/a_california_arak.htm
This goes into minute details of the law and the key Harrott decision. Bottom line: if it's not listed by the DOJ, it's legal to buy as a stripped lower.
DOJ has audited CA FFLs who have done bulk sales so they can find out the brands of lowers 'in commerce' and eventually declare them as assault weapons (triggering a mandatory registration period - something we want, for rather complex reasons, since after registration we will be able to build them up w/out fixed mags). DOJ agents have looked over the papers and walked out of shop while hundreds of lowers are present and being sold (DROSed + 4473'd) to buyers lined up outside the door.
DOJ phone staff tried to stop the flow by telling outside vendors that this was illegal and by ignoring questions about the key CA Supreme Court decision, Harrott v Kings County- while at the same time acknowledging to CA FFLs that this is indeed legal. Smaller, smarter FFLs outside CA realized this was BS and completely legal and act as intermediaries for manufacturers and recognized DOJ's illegal interference in lawful interstate commerce.
So, while Stag was intimidated via incorrect information (via desk-clerk/agent Dana McKinnon, apparently), intermediate dealer/distributors bought their whole inventory in December and we think that maybe 850-900 of their 960 December inventory was shipped to CA by end of December.
There are a couple of FFLs in CA that have sold 1000 legal off-list lowers each apparently. Plus there are prearranged group buys of off-list lowers - one guy I know has helped move 1000 lowers into folks hands without making a penny of profit (other than T-shirt sales) - call it 'humanitarian'.
Some gun stores in CA are trying to even carry a few brands as standard items on the shelf but they sell out.
If they ain't listed in Calif Code of Regulation sec 979.11, they are legal to acquire and possess.
They are NOT assault weapons. The CA Supreme Court says so with a key ruling that is clear and easy to read.
Vendors outside of CA are protected even further:
These off-list lowers can be built up into an operational rifle if and only if a nondetachable 10rd magazine is first affixed before a pistolgrip or teletstock is attached to the lower (and disassembly reverses this order). Many brands will likely be declared as assault weapons in a week or two and these will then have to be specially registered.
One or two cycles of this 'name game' may occur before legislation stops it. This won't last forever, just maybe another couple of months.
San Jose CA
Copied from CALGUNS:
We have a new bullet tip mag release that allows for attachable mag off-list builds:
Detachable magazine Simonov rifles:
.50 BMG options that aren't banned by California:
Loopholes that may allow ownership of previously banned Roberti-Roos firearms:
A way to build a SB-15 exempt assault-style pistol:
A list of AR/AK series firearms that can be made into non-Assault Weapons:
A Summary of AB-2728 and what it does and does not accomplish:
Also look forward to:
Hunt v. Brown, a case that is fighting the Attorney General on the grounds that the Assault Weapons laws are a mess and can't be easily enforced.
Parker v. District of Columbia, a case that could affect 2nd Amendment rights in the whole nation.
Thanks to xenophobe for the list
AR series Off List Lower (OLL) Options:</center id=center>
• California Rifles - U-15 stock for OLL AR-15 receivers - considered a non-pistol grip or a non-thumbhole stock, therefore you are allowed to use detachable magazines (10, 20, 30 rounders)
• MonsterMan Grips - considered a non-pistol grip, therefore you are allowed to use detachable magazines (10, 20, 30 rounders)
• Mag-Lock (SAS) - OLL AR-15 Fixed Mag Kit
Sporting Conversion - AR-15 Range-Maglok Kit
• Prince50 - OLL AR-15 Fixed Mag Kit
• Bullet Button (BB) - Modified mag catch that releases a mag with the use of a .223 round. Insert tip of the bullet into modified catch to release the mag. The bullet is considered a "tool" per CA DOJ regulations.
It's a semi-auto centerfire rifle ID flowchart to determine if a weapon is a legal or an illegal CA Assault Weapon.
Assault Weapons I.D. Flowchart (@ Calguns.net) discussion thread
The body armor prohibition listed on page one has been struck down by Case law.
Can the assembled intelligence confirm my reading of the high capactiy "magazine kit" situation...
If the pistol in question has only been manufactured for the last couple of years and thus there are no pre-January 1, 2000, high capacity magazines in California, I CANNOT ship a "magazine kit" to California for that pistol.