[/url]www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2001/06/29/MN185060.DTL[/url]
Gunmakers win round in high court
Only state attorney general can outlaw assault weapons
Harriet Chiang, Chronicle Legal Affairs Writer
In a victory for the gun industry, the California Supreme Court ruled yesterday that law enforcement and trial judges do not have the authority to outlaw firearms as illegal assault weapons.
Only the state attorney general has the power to add to the list of outlawed firearms under the state's 1989 assault weapons ban, a move intended to give gun owners adequate notice, the court said in a 4-2 vote.
The justices overturned a Kings County judge's decision to ban an "AK" rifle because it was only slightly different from the Chinese-made AK models specifically outlawed under the 1989 ban. The weapon is popular among drug dealers and gang members because it is inexpensive and packs high firepower.
The decision could affect cases brought under the 1989 law, the nation's first ban on assault weapons. But the impact of yesterday's ruling may be softened by an amendment to the law.
The original law outlawed a specific list of more than 60 weapons. But Gov. Gray Davis signed an amendment in 1999 banning weapons based on their characteristics, an effort to ban "copycat weapons" designed with slight modifications to skirt the original law.
Gun control advocates also say that state Attorney General Bill Lockyer is far more aggressive than his predecessor, Dan Lungren, in adding to the list of banned weapons.
Nonetheless, Chief Justice Ronald George issued a strongly worded dissenting opinion, saying that the Legislature intended to ban the entire series of AK rifles, not just those specifically listed.
He accused the court of creating a new loophole in the law.
"The majority eviscerates a key provision of California's Assault Weapons Control Act that is directed at a type of assault weapon commonly used by drug dealers and gang members," George wrote.
But in the majority decision, the court agreed with the National Rifle Association that allowing trial judges to ban a weapon could lead to firearms' being outlawed in some counties and not others.
"Concerned citizens need not struggle with the question whether, for example, a particular firearm is identical to one of the listed assault weapons except for slight modifications," Brown said.
The decision was a victory for Jimmy W. Harrott, a Delano attorney who received the AK rifle as part of a gun collection he received from a client as payment for his legal fees.
The gun collection had been seized from the client by the Kings County Sheriff's Department, which refused to turn over the AK rifle.
Harrott sued,and Kings County Superior Court Judge Peter Schultz ruled against him, finding that the rifle was banned even though it was not specifically named on the list of assault weapons.