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Posted: 2/21/2006 9:55:24 AM EDT
I recently read the DOJ letter and read some of the comments in the forums. I am not a lawyer but I do know a little about the law and how the CA penal code works. In the DOJ letter it states that the features listed in PC 12276 cannot be added even after the DOJ declares the new series of assault weapons. The problem with this statement is it does not follow what the penal code states now and what it will have to state in the future. PC 12276 and PC 12276.1 are definition sections of law. They describe what an assault weapon is. There are several definitions and it is very complicated. When a person is found to be in possession, manufacture, etc and assault weapon, they are charged/convicted under a different section of law, the punitive section. Section PC 12280 is the section that people are charged/convicted under. In that section, there is no difference from an assault weapon under PC 12276 or PC 12276.1. There were several people that said, "An assault weapon is an assault weapon." Very simple logic but true under section 12280. PC 12280 simply states in the first paragraph "assault weapon." It does not differentiate between the two definitions and punishment is the same.

Below is the entire section relating to assault weapons for those of you who feel like reading. The actual section includes .50 bmg and other stuff which goes on for two pages in the PC. Whoever wrote that letter from DOJ either does not know how the law works or is making it up on the spot.

12280. (a) (1) Any person who, within this state, manufactures or
causes to be manufactured, distributes, transports, or imports into
the state, keeps for sale, or offers or exposes for sale, or who
gives or lends any assault weapon or any .50 BMG rifle, except as
provided by this chapter, is guilty of a felony, and upon conviction
shall be punished by imprisonment in the state prison for four, six,
or eight years.
(2) In addition and consecutive to the punishment imposed under
paragraph (1), any person who transfers, lends, sells, or gives any
assault weapon or any .50 BMG rifle to a minor in violation of
paragraph (1) shall receive an enhancement of one year.
(3) Except in the case of a first violation involving not more
than two firearms as provided in subdivisions (b) and (c), for
purposes of this section, if more than one assault weapon or .50 BMG
rifle is involved in any violation of this section, there shall be a
distinct and separate offense for each.
(b) Any person who, within this state, possesses any assault
weapon, except as provided in this chapter, is punishable by
imprisonment in a county jail for a period not exceeding one year, or
by imprisonment in the state prison. However, a first violation of
these provisions is punishable by a fine not exceeding five hundred
dollars ($500), if the person was found in possession of no more than
two firearms in compliance with subdivision (c) of Section 12285 and
the person meets all of the following conditions:
(1) The person proves that he or she lawfully possessed the
assault weapon prior to the date it was defined an assault weapon
pursuant to Section 12276, 12276.1, or 12276.5.
(2) The person has not previously been convicted of a violation of
this section.
(3) The person was found to be in possession of the assault weapon
within one year following the end of the one-year registration
period established pursuant to subdivision (a) of Section 12285.
(4) The person relinquished the firearm pursuant to Section 12288,
in which case the assault weapon shall be destroyed pursuant to
Section 12028.
Link Posted: 2/21/2006 10:12:21 AM EDT
[Last Edit: 2/21/2006 10:15:53 AM EDT by Zapp]
Here is the original post, in a slightly less painful on the eyes color. Let's see if its worth the agony on the eyes to read it.


Originally Posted By bullfrogskier7:
I recently read the DOJ letter and read some of the comments in the forums. I am not a lawyer but I do know a little about the law and how the CA penal code works. In the DOJ letter it states that the features listed in PC 12276 cannot be added even after the DOJ declares the new series of assault weapons. The problem with this statement is it does not follow what the penal code states now and what it will have to state in the future. PC 12276 and PC 12276.1 are definition sections of law. They describe what an assault weapon is. There are several definitions and it is very complicated. When a person is found to be in possession, manufacture, etc and assault weapon, they are charged/convicted under a different section of law, the punitive section. Section PC 12280 is the section that people are charged/convicted under. In that section, there is no difference from an assault weapon under PC 12276 or PC 12276.1. There were several people that said, "An assault weapon is an assault weapon." Very simple logic but true under section 12280. PC 12280 simply states in the first paragraph "assault weapon." It does not differentiate between the two definitions and punishment is the same.

Below is the entire section relating to assault weapons for those of you who feel like reading. The actual section includes .50 bmg and other stuff which goes on for two pages in the PC. Whoever wrote that letter from DOJ either does not know how the law works or is making it up on the spot.

12280. (a) (1) Any person who, within this state, manufactures or
causes to be manufactured, distributes, transports, or imports into
the state, keeps for sale, or offers or exposes for sale, or who
gives or lends any assault weapon or any .50 BMG rifle, except as
provided by this chapter, is guilty of a felony, and upon conviction
shall be punished by imprisonment in the state prison for four, six,
or eight years.
(2) In addition and consecutive to the punishment imposed under
paragraph (1), any person who transfers, lends, sells, or gives any
assault weapon or any .50 BMG rifle to a minor in violation of
paragraph (1) shall receive an enhancement of one year.
(3) Except in the case of a first violation involving not more
than two firearms as provided in subdivisions (b) and (c), for
purposes of this section, if more than one assault weapon or .50 BMG
rifle is involved in any violation of this section, there shall be a
distinct and separate offense for each.
(b) Any person who, within this state, possesses any assault
weapon, except as provided in this chapter, is punishable by
imprisonment in a county jail for a period not exceeding one year, or
by imprisonment in the state prison. However, a first violation of
these provisions is punishable by a fine not exceeding five hundred
dollars ($500), if the person was found in possession of no more than
two firearms in compliance with subdivision (c) of Section 12285 and
the person meets all of the following conditions:
(1) The person proves that he or she lawfully possessed the
assault weapon prior to the date it was defined an assault weapon
pursuant to Section 12276, 12276.1, or 12276.5.
(2) The person has not previously been convicted of a violation of
this section.
(3) The person was found to be in possession of the assault weapon
within one year following the end of the one-year registration
period established pursuant to subdivision (a) of Section 12285.
(4) The person relinquished the firearm pursuant to Section 12288,
in which case the assault weapon shall be destroyed pursuant to
Section 12028.




Yep, that pretty much sums up the opinion of many of us non legal professionals who have read the laws.
Link Posted: 2/21/2006 10:14:34 AM EDT
sorry, had trouble with highlighter.
Link Posted: 2/21/2006 10:27:40 AM EDT

Originally Posted By Zapp:
Yep, that pretty much sums up the opinion of many of us non legal professionals who have read the laws.



Actually at this point at least 4 attorneys have looked at it and agreed that the DOJ is overstepping its authority. They may have the state on their side, but the law is on OUR SIDE. At the end of the day the DOJ is going to have to follow the law, the question is whether we will be able to pursuade them to do so or if a court will have to force them to again.

Keep in mind the current Attorney General likes to test the limits of the DOJ's authority and has been smacked down in the court system for doing this previously. The possibility does exist that the Courts are going to eventually get sick of continuously having to review the AW Ban and just throw it out for being too vague.
Link Posted: 2/21/2006 11:11:04 AM EDT
[Last Edit: 2/21/2006 11:59:24 AM EDT by bwiese]
Yup. These are the kind of things that resolve nicely with injunctions once standing occurs (i.e., when reg window opens). That is, someone won't need to be arrested for this to get on stage.

There's enough wrong with the memo that, even disregarding matters concerning detailed AW definitions and gun law, there's still many ways it can still be attacked procedurally. This is especially significant because judges can get their hands around this like any other regulatory matter and we only have to use the fight over detailed AW laws as a secondary/backup matter.

And you know they're grasping at straws when they say they are going to enforce the law thru the registration procedure - because they can't find any direct 12280(a) or (b) violations without their secondary manipulation of a registration.


Bill Wiese
San Jose CA

Link Posted: 2/21/2006 12:35:11 PM EDT

Originally Posted By bwiese:
Yup. These are the kind of things that resolve nicely with injunctions once standing occurs (i.e., when reg window opens). That is, someone won't need to be arrested for this to get on stage.



This registration window needs to open soon. For other peoples sake, I hope it holds off long enough for people to get what they want, but it's getting expensive for me the longer they wait. Every week or two, I get the urge to buy a couple more receivers. It was a pair of commie rifles last week, and I am getting the urge to buy 3 more commie rifles next week. On top of the many .223 rifles I already picked up.
Link Posted: 2/21/2006 2:12:24 PM EDT

Originally Posted By shopkeep:
Keep in mind the current Attorney General likes to test the limits of the DOJ's authority and has been smacked down in the court system for doing this previously.



Do you have any concrete support for what you are saying here? Are you really serious about the DOJ getting "smacked down" in court in gun cases? You know, it's funny, I saw one of your posts on another board about this, I did a Lexis search, and guess what? I couldn't find any of the supposed "smack down" cases, and in fact, the DoJ has a pretty fucking great track record winning major firearms lawsuits.
Link Posted: 2/21/2006 2:25:34 PM EDT

Originally Posted By Spahn_Ranch:

Originally Posted By shopkeep:
Keep in mind the current Attorney General likes to test the limits of the DOJ's authority and has been smacked down in the court system for doing this previously.



Do you have any concrete support for what you are saying here? Are you really serious about the DOJ getting "smacked down" in court in gun cases? You know, it's funny, I saw one of your posts on another board about this, I did a Lexis search, and guess what? I couldn't find any of the supposed "smack down" cases, and in fact, the DoJ has a pretty fucking great track record winning major firearms lawsuits.



Let me ask you a question: how were we able to get these recievers into the state?

Answer: Because they're not category 2 assault weapons!

Originally in 1989 the Roberti-Roos act specified "AR-15 (all)" and "AK Series (all)". Along came this gentleman Mr. Harrott who took the DOJ to court. Even though SB-23 and the Roberti-Roos act didn't get thrown out as a result of this case, the court handed down a smackdown that at the time seemed rather minor because the Cateogy 2 list was at that time complete. It was only six years later when they failed to update the list that we saw what a victory the Harrott case was.

If the DOJ would have had their way in Harrott vs. Lockyer then NONE of these "off-list" lowers would be in the state right now. The courts would have upheld the series ban and _ALL_ "AR-15 series" would be banned.

The fact that there are now 10,000+ off-list recievers in the state as a result of the Harrott ruling would lead some to believe the DOJ got smacked down by the court.
Link Posted: 2/21/2006 2:38:54 PM EDT

Originally Posted By shopkeep:

Originally Posted By Spahn_Ranch:

Originally Posted By shopkeep:
Keep in mind the current Attorney General likes to test the limits of the DOJ's authority and has been smacked down in the court system for doing this previously.



Do you have any concrete support for what you are saying here? Are you really serious about the DOJ getting "smacked down" in court in gun cases? You know, it's funny, I saw one of your posts on another board about this, I did a Lexis search, and guess what? I couldn't find any of the supposed "smack down" cases, and in fact, the DoJ has a pretty fucking great track record winning major firearms lawsuits.



Let me ask you a question: how were we able to get these recievers into the state?

Answer: Because they're not category 2 assault weapons!

Originally in 1989 the Roberti-Roos act specified "AR-15 (all)" and "AK Series (all)". Along came this gentleman Mr. Harrott who took the DOJ to court. Even though SB-23 and the Roberti-Roos act didn't get thrown out as a result of this case, the court handed down a smackdown that at the time seemed rather minor because the Cateogy 2 list was at that time complete. It was only six years later when they failed to update the list that we saw what a victory the Harrott case was.

If the DOJ would have had their way in Harrott vs. Lockyer then NONE of these "off-list" lowers would be in the state right now. The courts would have upheld the series ban and _ALL_ "AR-15 series" would be banned.

The fact that there are now 10,000+ off-list recievers in the state as a result of the Harrott ruling would lead some to believe the DOJ got smacked down by the court.



You really are dense aren't you?!!! Why don't you go and have a look at Harrott again and see who the gun owner was suing. Hint: it wasn't the DOJ! Let me save you the trouble: the gun owner was suing the County of Kings. The County of Kings called a DOJ analyst as a witness and do you know what he testified? No you don't, so I'll tell you: he testified that the AW in question was not an AW because it was not in the AW identification guide. In other words, the county's expert witnesses sided with the gun owner, not the county. And on appeal the DOJ filed an amicus brief. What do you suppose they argued in their brief? That the firearm was an AW? No! they argued that the firearm was not an AW because the DOJ had not specifically listed it as an AK series AW. The Cal Supreme court bought the DoJ's argument and that is how we got to where we are now.

So to make it real simple for you, the DOJ actually prevailed in the Harrott case, it got exactly what it wanted!!! It's the DOJ's own theory that the gun-owners are using now to buy off-list lowers!!!

You still think Harrott was a "smack down?"
Link Posted: 2/21/2006 3:35:19 PM EDT

Originally Posted By Spahn_Ranch:
So to make it real simple for you, the DOJ actually prevailed in the Harrott case, it got exactly what it wanted!!! It's the DOJ's own theory that the gun-owners are using now to buy off-list lowers!!!

You still think Harrott was a "smack down?"



Yup - DOJ got direct authority (though it was restricted to AR/AK only) to list. It smacked down the local DAs on what and when something was an AW and established a uniform standard. It really just refined/reshaped Kasler from the clarity and promulgation aspects and forced something to be listed to be banned.

The big DOJ smack-down was during the 1990s when Lungren extended the reg period without support in legislation.

There are many smaller ones, esp w/regards to gun dealers (DOJ doesn't usu go after individuals except in sweeps). One I know of was assisting (working for, engaged business-wise) an attorney in an estate sale disposing of AWs. Estate attorneys are allowed to do this for a limited time period. He was busted for felony AW possession (non AW permittee) - the judge did laugh this out of court.

Bill Wiese
San Jose





Link Posted: 2/21/2006 3:50:07 PM EDT
Well, we're talking Lockyer smack downs, not Lungren smack downs, and in the Lungren case he got smacked down while trying to advance a "pro gun" position.
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