CA Assault Weapons Legal Question (split)

[Roguish Lawyer]

Originally Posted by vsvo

Very nice, RL!

What kind of flashhider is that, or is it a California device?

MSTN's brake. I actually am trying to figure out whether it is legal in CA, since "flash suppressors" are not. It's not a flash suppressor, but it has a similar function . . .

Any legal advice for me, grasshopper? The statutes are on the CA AG web site.

[Team Sergeant]

Originally Posted by Roguish Lawyer

MSTN's brake. I actually am trying to figure out whether it is legal in CA, since "flash suppressors" are not. It's not a flash suppressor, but it has a similar function . . .

Any legal advice for me, grasshopper? The statutes are on the CA AG web site.

I read them but I need to know the law concerning registered pre-ban weapons such as yours.....

AR15.com could be a good resource on this issue. Have you tried a local dealer?

[Air.177]

Originally Posted by Roguish Lawyer

MSTN's brake. I actually am trying to figure out whether it is legal in CA, since "flash suppressors" are not. It's not a flash suppressor, but it has a similar function . . .

Any legal advice for me, grasshopper? The statutes are on the CA AG web site.

Email Paul or Wes at MSTN. Why rely on internet commandos, go straight to the horse's mouth.

My .02, YMMV

Also, I have their brake on my 20" Bushmaster and I like it, but it is still a "brake", so it is LOUD.

Good times,
Blake

[Roguish Lawyer]

Originally Posted by Team Sergeant

I read them but I need to know the law concerning registered pre-ban weapons such as yours.....

AR15.com could be a good resource on this issue. Have you tried a local dealer?

vsvo is going to figure it out for me, being an eager law student and all . . .

[Roguish Lawyer]

Originally Posted by Air.177

Email Paul or Wes at MSTN. Why rely on internet commandos, go straight to the horse's mouth.

Wes built the upper. He is not familiar with CA law -- that's my job.

[vsvo]

Originally Posted by Roguish Lawyer

MSTN's brake. I actually am trying to figure out whether it is legal in CA, since "flash suppressors" are not. It's not a flash suppressor, but it has a similar function . . .

Any legal advice for me, grasshopper? The statutes are on the CA AG web site.

According to §978.20(b), Article 2, Chapter 12.8 of the California Department of Justice Regulations for Assault Weapons and Large Capacity Magazines, "'flash suppressor' means any device designed, intended, or that functions to reduce or redirect muzzle flash from the shooter's field of vision."

Therefore, based on your description of its function, the brake falls within the definition of a banned feature. The original definition promulgated by DOJ specifically excluded muzzle brakes, until someone figured out that brakes can reduce flash. Since DOJ interpreted flash suppression as the legislative intent, regardless of device name, they modified the original definition.

As to whether it's legal on your rifle, I would say yes, since your rifle is already registered as an assault weapon. I didn't see anything in the statutes prohibiting modifications to registered weapons, except for a section on removing banned features and cancelling the registration. How does adding one more evil feature from the list of evil features make it more evil?

[Roguish Lawyer]

Originally Posted by vsvo

According to §978.20(b), Article 2, Chapter 12.8 of the California Department of Justice Regulations for Assault Weapons and Large Capacity Magazines, "'flash suppressor' means any device designed, intended, or that functions to reduce or redirect muzzle flash from the shooter's field of vision."

Therefore, based on your description of its function, the brake falls within the definition of a banned feature. The original definition promulgated by DOJ specifically excluded muzzle brakes, until someone figured out that brakes can reduce flash. Since DOJ interpreted flash suppression as the legislative intent, regardless of device name, they modified the original definition.

As to whether it's legal on your rifle, I would say yes, since your rifle is already registered as an assault weapon. I didn't see anything in the statutes prohibiting modifications to registered weapons, except for a section on removing banned features and cancelling the registration. How does adding one more evil feature from the list of evil features make it more evil?

But when you change the upper receiver, are you making a new gun for purposes of the statute? Does the pre-ban gun become a post-ban gun? If you change a key characteristic like adding a flash suppressor?

[rubberneck]

Originally Posted by Roguish Lawyer

Wes built the upper. He is not familiar with CA law -- that's my job.

He can tell you if the break was designed to act as a muzzle break and flash supressor or if it is just a plain old comp.

[vsvo]

Originally Posted by Roguish Lawyer

But when you change the upper receiver, are you making a new gun for purposes of the statute? Does the pre-ban gun become a post-ban gun? If you change a key characteristic like adding a flash suppressor?

The question is whether assembling a different upper receiver containing a feature, i.e., flash suppressor, banned under the Roberti-Roos Assault Weapons Control Act of 1989 (AWCA), onto a legally registered lower receiver creates a new weapon under the AWCA.

What is an assault weapon?

Although under federal law a receiver comprises a firearm, California specifically defines what constitutes an assault rifle under the AWCA. First, §12276(a) of the statute identifies by model name various rifles, including the “Colt AR-15 series.” CAL. PENAL CODE §12276(a)(5). “Series” is defined to include “all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer.” CAL. PENAL CODE §12276(e). The statute was amended in 1999 via Senate Bill 23 to further define an assault weapon by characteristic.

CAL. PENAL CODE §12276.1(a)

Notwithstanding Section 12276, "assault weapon" shall also mean any of the following:

(1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and any one of the following:

1. A pistol grip that protrudes conspicuously beneath the action of the weapon.
2. A thumbhole stock.
3. A folding or telescoping stock.
4. A grenade launcher or flare launcher.
5. A flash suppressor.
6. A forward pistol grip.

Finally, there is a provision for the Attorney General to petition a state superior court to add a firearm to the list if it is “another model by the same manufacturer or a copy by another manufacturer of an assault weapon…which is identical to one of the assault weapons listed…except for slight modifications or enhancements including, but not limited to…” CAL. PENAL CODE §12276.5(a)(1).

California citizens sued to strike down the AWCA on various constitutional grounds. In Kasler v. Lockyer, 2 P.3d 581 (Cal. 2000), the Supreme Court of California upheld the AWCA. The court held that SB 23 was additive, and did not supercede §12276. Id. at 584. Thus, there are three ways a rifle may be deemed an assault rifle. The court also addressed the question of what constituted “slight modifications,” holding that “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. The citizen may simply consult the amended list.” Id. at 598. The amended list is contained in the California Code of Regulations promulgated by the Attorney General. CAL. CODE REGS. tit. 11, §§ 979.10, 979.11 (2006).

The second landmark case pertaining to the AWCA is Harrott v. County of Kings, 25 P.3d 649 (Cal. 2001). Harrott is an attorney who filed suit to force the Kings County Sheriff’s Department to deliver to him an AK-47 type rifle from a gun collection which the Sheriff was holding. Harrott had received the collection from a client as payment for legal services. The Sheriff refused to release the rifle on the basis that it was an assault weapon banned by the AWCA. Harrott argued that his AK-47 was not one of the types specifically listed under §12276.

The Supreme Court of California upheld the authority of the Attorney General, ruling that the Sheriff, or any trial court, may not deem a firearm an assault weapon under §12276, unless the Attorney General had first included the model in the list of banned weapons. Harrott, 25 P.3d at 656. The court also reaffirmed the authority of the Attorney General to determine the status of certain guns by simply identifying them as assault weapons, but only if they belonged to the AK-47 and AR-15 series. Id. at 660. To determine whether their weapons were governed by the AWCA, “ordinary citizens need only consult the California Code of Regulation.” Id. at 658. The court also suggested that citizens should consult the Assault Weapons Identification Guide promulgated by DOJ.

Is it a new gun?

First, I think the AWCA and Harrott have made the terms “pre-ban” and “post-ban” obsolete in California. You either have an assault weapon as defined in §12276 or the amended list in the regulations, or you don’t. And that weapon is either legally registered, or it is not. Even if you owned the rifle before June 1, 1989, as soon as the statute went into effect, you had to register the gun.

Registration requires the serial number, make, model, type, and caliber, among other things. Swapping uppers on a registered lower arguably does not make a new gun. The serial number, caliber and model are the same. Harrott holds that only the Attorney General can identify a banned assault weapon, via the amended list posted in the regulations. All that list specifies is “Colt AR-15” including all the various models.

The thrust of the statute is identification and registration; once you have a registered weapon, the statute does not say too much about what you can do with it, beyond where you could use it. Your rifle has already been identified as an assault weapon and duly registered. You are an ordinary citizen, not a manufacturer. An ordinary citizen would be hard pressed to look a Colt lower with an LMT upper on it and distinguish it from the “Colt AR-15” identified in the regulations.

As to the addition of the flash suppressor, I will go back to my earlier point. It only takes one feature from §12276.1(a)(1) to make the rifle an assault weapon. Once you’ve crossed the line into evil, there are not different degrees of evil. It doesn’t matter if you have one banned feature, or five. The rifle has already been registered, and since my position is it is not a new rifle, it is legal with the flash suppressor device.

Conclusion

I don’t think you have a new gun, because I don’t see how swapping the upper on a registered lower gives you a different gun that could be listed in the regulations. The key point is that your lower is identified on the list and has already been registered as an assault weapon. Under Kasler and Harrott, citizens are only required to consult the list posted in the regulations to determine what is an assault rifle.

It would not hurt to write to the Attorney General to request a letter ruling. Even if DOJ finds your gun illegal, they must go through the process of petitioning a superior court to get it added to the list. You would then have an opportunity to register the “new” rifle.

[Roguish Lawyer]

Do you think the position you've outlined is the only possible position a court might take? Are there no other arguments a prosecutor might make?

[vsvo]

Originally Posted by NousDefionsDoc

Good Gawd y'all start another thread and somebody post some gun pics!

Sorry, Doc. How about some wheel guns, for wheel people?

Originally Posted by Roguish Lawyer

Do you think the position you've outlined is the only possible position a court might take? Are there no other arguments a prosecutor might make?

I'll respond here until y'all with the God Guns split the thread.

The DA has several possible arguments. First, the modifications to the rifle take it outside the umbrella of the “Colt AR-15 series” as listed in §12276(a)(5). Models within a “series” should only be “variations, with minor differences,” of the models listed, according to §12276(e). Replacing an upper receiver with a new receiver, bolt, bolt carrier, charging handle, barrel, hand rails, and rear sight does not result in “minor differences" in relation to the original rifle. Furthermore, the Colt with the LMT upper looks significantly different than any of the Colt rifles pictured on pp. 8, 62-67 of the Assault Weapons Identification Guide promulgated by DOJ.

The court in Harrott chose to sidestep the question of what exactly “minor” means within the context of §12276(e), content to let the Attorney General maintain a list of banned weapons. Therefore, the DA can try to press the argument on this open question.

Second, the legislative intent was clearly to regulate and restrict the use of assault weapons. The list mechanism was a compromise to get the legislation passed, since there was strong opposition to a generic definition of an assault weapon. “[T]he Legislature was not constitutionally compelled to throw up its hands just because a perfectly comprehensive regulatory scheme was not politically achievable.” Kasler, 2 P.3d at 590. However, the lawmakers were aware that the list approach was limited. “[T]he Legislature explained that the add-on provision [§12276.5] was intended to compensate for the inherent limitations of the list approach.” Id. at 590. The list approach perversely resulted in California citizens rushing to buy lower receivers stamped with manufacturers’ names (e.g., Stag/CMT, Noveske, etc.) not listed on the Attorney General’s list. This unintended loophole resulting in potentially more assault weapons entering the state was predicted by then Attorney General Van de Kamp. Id. at 590.

Third, you have modified the rifle to add an additional banned feature, i.e. flash suppressor. The AWCA is silent on the issue of adding banned features. However, that statutory silence, coupled with the clear legislative intent to restrict these features, strongly implies that the legislature would not be in favor of allowing the addition of banned features, even to an already registered rifle.

The response to these arguments is that Harrott is the law of the state. Citizens are only required to consult the list promulgated by the Attorney General. The list states simply “Colt AR-15;” therefore, how would an ordinary citizen look at his rifle with “Colt AR-15” stamped on the lower receiver with the same serial number which he had legally registered, and determine that the rifle was a different weapon than the one already registered? Harrott clearly states that citizens are not expected to contort themselves trying to figure it out. If the Attorney General believes that this reconfigured weapon is different than a Colt AR-15, there is a statutory process to add it to the list. Harrott affirmed the authority of the Attorney General to determine this, a DA and trial court cannot make this determination. The AG would have to come up with a better description than “Colt AR-15,” such that an ordinary citizen can simply “consult” the list and determine if his rifle in included or not.

If the Legislature believes that the current statute does not deliver the desired results, it should amend the law. As it stands now, you are in compliance with the law. Your case is distinguished from Harrott because your lower receiver is already registered as an assault weapon with the state.

To the issue of the unlisted lower receivers, citizens would be prevented from turning them into assault rifles because of the §12276.1(a) restrictions on banned features. As the Kasler court confirmed, there are three ways to identify an assault weapon in California.

[Roguish Lawyer]

I don't have a picture of the god gun, but I'm a hell of a shot! LOL

[x SF med]

Why is this thread making two Dead Kennedy's songs vie for time versus 2 Beatles tunes, in my head?

California, Uber Alles and Nazi Punks... vs Happiness is a Warm Gun and Rocky Raccoon...

[vsvo]

I just wanted to clarify and flesh out the potential DA argument, to make it more persuasive.

By replacing the upper receiver, you have transformed your rifle into one that no longer exhibits “minor differences” compared to the “Colt AR-15” listed in the AWCA and the AG’s list. Therefore, you have created a new rifle not covered by your existing registration. Because it is a new rifle that contains a detachable magazine and a banned feature, i.e. flash suppressor (among others), it is prohibited by the AWCA.

The legislature clearly intended to control and to restrict the proliferation of assault weapons in California. Although the list mechanism was a political solution, the lawmakers attempted to mitigate the weaknesses of that approach by inserting a provision for the AG to add additional named assault weapons to the list. In addition, the legislature amended the statute in 1999 to define assault weapons by characteristic. By installing a new upper receiver with a feature expressly banned, thereby creating a new rifle, you have introduced a new "assault weapon" into California, a result clearly at odds with the intent of the legislature.

Although this argument is a bit more persuasive, I still think (in a law student kind of way ) that your rifle is legal in light of the current judicial interpretation of the AWCA. Until the courts define what constitutes “minor differences,” and the AG comes up with a new name to distinguish your rifle from the “Colt AR-15 series,” your rifle complies with the law. Plus, I still can’t get over the fact that your lower is already legally registered.

[Mud Puppy]

RL and/or VSVO

I have been following the thread. I am not an attorney, just have to listen to them daily

I am in a similar position except both my AR and the Bushmaster are postban Yes, I will post pics on the original thread when I figure out how

Reading the assault weapons guide specifically slide #62 under AR15 series it has the following:

Caliber has no bearing.... For example, upper receiver conversion kits are available to convert almost any AR series weapon to .45, .40S&W, 7.62x39mm, 9mm, 10mm, or .223 cal.

Reading this, as a layperson, it seems that I am ok. However, ignorance of of the law is no defense. Thoughts?