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Posted: 6/29/2001 7:50:47 PM EDT
[Last Edit: 6/29/2001 7:49:42 PM EDT by California_Kid]
Please post and cross post: Came down today: HARROTT v. COUNTY OF KINGS, No S055064 (Cal. June 28, 2001) California Supreme Court today held that under the Roberti-Roos Assault Weapons Control Act of 1989, a superior court does not have the authority to declare a rifle to be an "AK series" assault weapon (AK or AR) when the Attorney General has neither identified it as such in the Assault Weapon Identification Guide nor included it in the list of "assault weapons" published in the California Code of Regulations. They have to name it specifically for it to be one. That's the good news. Too bad it wasn't obvious to prosecutors that this was the law since 1989. Lots of innocent and unaware people could have been spared criminal charges and/or jail sentences. The AG can, however, add AK and AR series guns (only) without going through the judicial add-on process. Effectively, this shifts the burden of proof from the AG to the owner/manufacturer/importer to challenge a gun's designation as an AK or AR series firearm. For all guns except AR and AK series, the AG must go to court and use the judicial add-on procedure. (Not sure why he would given SB 23 covers everything, unless he just wants to get his name in the papers.) Of course, as a practical matter, the only guns effected are ARs and AKs that have the SB 23 offending features stripped off, since unmodified ARs and AKs have the demonized feature(s) and so are 1999 SB 23 AWs anyway. But there is some good language about vagueness/notice/due process that we can use in the forthcoming SB 23 challenge and the inability to identify offending firearms features that render guns SB 23 AWs. NRA filed an amicus brief in this case, which is quoted in the Opinion. To read the full text of this opinion, go to: [url]http://caselaw.findlaw.com/data2/californiastatecases/s055064.doc[/url] [PDF File] [url]http://caselaw.findlaw.com/data2/californiastatecases/s055064.pdf[/url] Chuck Michel TRUTANICH - MICHEL, LLP Attorneys At Law Port of Los Angeles Office 407 North Harbor Blvd. San Pedro, CA 90731 (310) 548-3703 Fax: (310) 548-4813
Link Posted: 6/29/2001 9:55:28 PM EDT
let me know if I missed something, cause I did't spend any time coming up with this. :) Let's say a CA person has a rifle that the state had decided was banned by the 1991 law, but the person had *NOT* registered it with the state. Are you with me? So he was breaking the law for a few years. Until the court ruling. Now, the court says his gun was *NOT* banned by the 1991 bill. So forget about the 1991 bill. Now, someone says he had to register it for the 1999 bill. No, I don't think so. That would have been "testifying against himself", by admitting he had an illegal gun. :) Since he cannot be required to admit he had a (then) illegal gun, he did not have to register it in 1999 or 2000 (whatever the exact date). At this point, it seems to me he would [b]not[/b] be in trouble for [b]not[/b] registering the gun in 1991 or in 1999. After all, AWs aren't illegal there, are they? It's just improperly registered ones that are illegal? Since he could not be required to register it in 1999..... he didn't have to register it. That doesn't mean the gun would not be confiscated, though. But I think an argument could be made that since he [b]did not have to register it[/b] in 1999, then it's legal to have. If I am missing something critical here, flame on. :) I haven't lived in CA in a few years now.
Link Posted: 6/29/2001 10:22:44 PM EDT
radio44, There is no 1991 law. There is the Roberti-Roos Assault Weapon Control Act of 1989, which banned specific firearms by make & model. They also mentioned AR & AK Series weapons which were substantially similar. The RR firearms were required to be registered by 3-30-92, and had to be owned by 5-31-89. Unless the firearm was specifically named it wasn't banned by RR. The Series weapons weren't specifically named. It took until December 2000 for them to finally name the Series firearms, after court challenges over the years. If you didn't register an RR firearm by 3-30-92 you could never register it (although the Attorney General then allowed late registrants, which was disallowed years later and those people had to surrender their late registered AWs). In 1999, SB23 was passed which bans firearms by certain charateristics (pistol-grips, flash-hiders etc.), and also contained in the law a section specifically forbidding the registration of RR guns under SB23. So therefore you could not register an RR firearm after 3-30-92 for any reason, other than the special period the DOJ had late last year and early this year for the added Series firearms, which the RR law requires when a firearm is added to the list.
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