|
|
|
Settlement of Hunt v Lockyer |
 |
 |
 |
|
Written by Administrator
|
|
Monday, 29 November 1999 16:00 |
SETTLEMENT OF HUNT V. LOCKYER LAWSUIT AND STATUS OF SB23
DEVELOPMENTS AND POSSIBLE FUTURE CHALLENGES
June 24, 2008
In 1999, the California Legislature passed Senate Bill 23 (“SB23"). At the time,“assault weapons” were then designated as such only under the original 1989 Roberti-Roos “Assault Weapons” Control Act (“AWCA”) and its list of makes and models of firearms that were deemed “assault weapons” by being listed in the Penal Code section 12276, or on a supplemental list passed by DOJ regulation in 1999. SB 23 added a new legal classification, which deemed firearms configured with certain features/generic characteristics to also legally be “assault weapons.” SB 23 also regulated “large capacity magazines.” SB 23 took effect on January 1, 2001 through the enactment of Penal Code section 12276.1 et seq..
SB 23 required the California Department of Justice (“DOJ”) to adopt administrative regulations to carry out the purposes and intent of the AWCA. The DOJ, under then-Attorney General Lockyer, first published a notice of draft proposed regulations on December 20, 1999. After multiple public comment periods (with extensive comments submitted by NRA and CRPA), corresponding DOJ responses, and four substantial revisions of the regulations by DOJ in response to public comments, the regulations were finalized on December 7, 2000 – twentyfour (24) days before the deadline for registering firearms newly designated as “assault weapons” under SB 23.
The final DOJ regulations defined certain terms/phrases used in the AWCA, including but not limited to “detachable magazine,” “flash suppressor,” and “threaded barrel capable of accepting a flash suppressor, forward pistol grip, or silencer.” The DOJ did not define certain other terms used in the AWCA, such as the term “permanently alter” (as that term is used to define a device that is not a “large capacity magazine”), or the phrase “capacity to accept” (as in “capacity to accept” a detachable magazine).
There was great concern and confusion among the firearm owning community about the meaning of terms used in the AWCA and the meaning of the regulations meant to clarify those terms. In the opinion of many gun owners, the regulations did not provide adequate guidance to determine whether any given firearm would be considered an “assault weapon.” Without clear guidance, many people could not definitively determine whether their firearm was an “assault weapon” and therefor needed to be registered, have its offending features removed, be modified, disabled, or be taken out of state.
There was also a great deal of concern and confusion within the law enforcement community and among prosecutors. Many, including even the San Francisco District Attorney’s office, spoke out publicly about the confusion SB 23 created. Most of those police and prosecutors, however, were unwilling to actually challenge the AWCA in court. Two California elected District Attorneys, however, Ed Hunt of Fresno County and Norm Vroman of Mendocino County, became named plaintiffs in a lawsuit challenging SB 23 that was financed primarily by the NRA, along with a significant contribution from the CRPA.
The District Attorney plaintiffs, along with the California Rifle & Pistol Association, Law Enforcement Alliance of America, former Oakdale Chief of Police David D. Sundy, Herb Bauer Sporting Goods, Barry Bauer, and others brought a lawsuit on September 18, 2001. The lawsuit alleged, among other things, that certain terms used in SB 23 and in the regulations were unconstitutionally vague and ambiguous to the extent that prosecutors, law enforcement, and citizens could not ascertain their meaning and conform their conduct to comply with the law. The lawsuit also alleged that, where the DOJ did adopt regulatory definitions, the DOJ’s application of those definitions were inconsistent. The lawsuit sought to force the DOJ to clarify SB 23's application and interpretation, to the extent that was possible. The lawsuit alleged six causes of action:
- That the DOJ’s definition of “flash suppressor” exceeded the authority granted to them by the legislature.
- That the definition of “flash suppressor” was unconstitutionally vague and ambiguous.
- That the definition of “threaded barrel capable of accepting a flash suppressor, forward pistol grip, or silencer” is unconstitutionally vague and ambiguous.
- That the definition of “large capacity feeding device” in relation to tubular magazines is unconstitutionally vague and ambiguous.
- That the definition of “permanently alter” in relation to large capacity feeding devices is unconstitutionally vague and ambiguous.
- That the DOJ causes confusion in their inconsistent statements regarding Springfield and Browning products, detachable magazines, and importation of large capacity magazine rifles.
On March 17, 2003, DOJ filed a demurrer to the First Amended Complaint. Plainly speaking, this meant that the court assumes the facts alleged are true and dismisses those actions which cannot legally stand even as alleged. The demurrer was denied as to the first, second, fifth, and sixth causes of action. Regarding the third cause of action relating to threaded barrels, the court held that the statute gives the minimal constitutionally required notice of the fact that non-competition pistols with threaded barrels are likely to be considered “assault weapons” and that therefore the statute was not unconstitutionally vague in that respect. Regarding the fourth cause of action, the court held that “the fact that certain shotguns may be able to hold more than 10 rounds if loaded with obscure Mexican ammunition does not make the statue vague in all of its applications.”
Subsequently, plaintiffs began a protracted period of “discovery,” gathering tens of thousands of pages of documents regarding the classification of “assault weapons” and “assault weapon” features. Many of these documents came in very handy in several ways down the line, and continue to be useful.
In late 2005, each side filed Motions for Summary Judgment (MSJ). In support for its MSJ the DOJ filed a declaration by DOJ Special Agent Ignatius Chinn which addressed what DOJ considered a “detachable magazine.” On the basis of that declaration, and considering the dispute over the meaning of the undefined phrase “capacity to accept” [a detachable magazine] going on concerning the then-pending DOJ regulations discussed below, the second part of the sixth cause of action was rendered moot and was abandoned by the plaintiffs. In ruling on the MSJ, the court denied plaintiffs’ motion in its entirety. It sustained DOJ’s motion only regarding the first cause of action alleging that the DOJ exceeded its authority in defining “flash suppressor.” The court sustained the DOJ’s motion, holding in part that there was no unified definition of the term “flash suppressor” in use at the time of the DOJ adopted the regulation. The court held that definitions varied considerably, with some sources citing the design or intent of the device, while others relied on the actual effect that the device has to reduce flash.
From the time the lawsuit was filed, it served several valuable, if tangential, purposes. The unprecedented prosecutor vs. prosecutor litigation got the attention of the other police and prosecutors, the legislature, the criminal courts, and the DOJ regulators. The fact that District Attorneys were willing to take these positions in court gave credibility to the position of pro-self defense civil rights advocates opposing additional firearm restrictions, administrative regulations on related topics, or defending against criminal prosecutions. The legislature even enacted a exception to the law that exempts lever action rifles from the “large capacity magazine” prohibition, thereby providing plaintiffs what they were after in the third part of the sixth cause of action via legislation instead of litigation.
While the case was pending there were other developments relating to “assault weapon” laws that our associational clients were involved in as well. In late 2006 - 2007, the DOJ began to assert that firearms not currently configured with “detachable magazines” could nonetheless be “assault weapons” because the configuration / modifications made were not permanent, i.e., they had the “capacity to accept” detachable magazines if modified or reconfigured in the future. In our opinion, this ran flatly contrary to DOJ’s previous positions. After this office (on behalf of various clients) and gun rights activists contested the DOJ’s new approach, the DOJ proposed regulations that would define “capacity to accept a detachable magazine” as requiring a permanent alteration. In response, DOJ was provided with numerous historical letters, many gathered in conjunction with the Hunt litigation, written by DOJ attorneys and employees identifying non-permanent modifications as legal. Ultimately, the DOJ dropped the regulations and regulations were not issued.
Also during this period, the DOJ sponsored AB 2728 (2006), which our clients supported with our assistance. AB 2728 repealed the DOJ’s regulatory ability to expand the make and model list of “assault weapons.” With this regulatory authority eliminated the list of Category 2 “assault weapons” became permanently static. AB 2728 also created an alternate civil remedy, as opposed to criminal prosecution, for those facing prosecution for possession of illegal “assault weapons.” In support of the bill, the DOJ wrote a letter to Governor Schwarzenegger outlining their decision to remove their authority to add firearms to the list of “assault weapons” and stating, significantly, that “there is some doubt as to whether the Attorney General’s Office has the authority to list a bare receiver as an ‘assault weapon’ since it lacks the characteristics of an ‘assault weapon,’ including the ability to fire.”
In preparing for trial in the Hunt matter, depositions of key DOJ employees were taken. Although the opinions rendered in these depositions may not reflect official DOJ policy, they are nonetheless informative and helpful. We learned for example, among other rulings, that DOJ had not prosecuted anyone for possession of an “assault weapon” where the determining device is a flash suppressor. We also learned about the DOJ’s procedures for determining whether a device is a “flash suppressor,” and DOJ’s interpretation of what constitute other “assault weapon” features. This information is already proving useful.
While all this was developing, District of Columbia v. Heller, No. 07-290, was making its way to the United States Supreme Court. The case is an appeal from Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), a decision in which the United States Court of Appeals for the District of Columbia Circuit became the first federal appeals court in the United States to rule that a firearm ban was an unconstitutional infringement of the Second Amendment to the United States Constitution, and the second to expressly interpret the Second Amendment as protecting an individual right to possess firearms for private use. The U.S. Supreme Court heard oral argument in the case on March 18, 2008, and a decision is expected by the end of June – right after the Hunt case would have gone to trial.
If, as the pundits predict, the right to bear arms is deemed a fundamental right by the United States Supreme Court (and later incorporated to apply to state actions through subsequent litigation ), then the standard of review for Hunt should be heightened and be easier to establish in court. The regulations may be void simply because the vagueness permeates the text of a law that reaches a substantial amount of constitutionally protected conduct.
With Hunt having served several useful purposes, and with the pending Heller decision in mind, plaintiffs were facing a May 2008 trial date where the remaining issues were narrow and the standard of review was likely to be held to be “vague in all applications” since the issues addressed did not (as of May 2008) touch upon a fundamental right. Absent the implication of a fundamental right, courts (including the Fresno court in its prior rulings) rarely invalidate a statute on its face so long is it provides “minimally fair notice” of what is prohibited. While Plaintiffs believe that a different standard applied, or that they could perhaps prevail under this standard regardless, an alternative approach looked more favorable in light of all the circumstances – to wait.
The case was therefor settled with an agreement to dismiss the case without prejudice and subject to a two-year waiver of any statute-of-limitations claims by the DOJ. This allows plaintiffs to review the opinion in the Heller matter for any application it may have to the remaining causes of action, and refile the case any time within the next two years. So subsequent, broader litigation remains an option, and may even be likely depending on the language of the Heller decision.
In the meantime, recent changes at the DOJ and within the DOJ Firearms Bureau have lead to more productive, if still restrained, communications.
As a part of the litigation, the depositions of California Department of Justice experts and employees were taken, as well as those of the Plaintiffs in this matter. Each deposition was intended to obtain specific information and insight relating to the subject matter in factual dispute. The transcript of one Department of Justice Bureau of Firearms expert, Special Agent Chris Abad, provides some insight as to how the Department of Justice interprets the definition of "flash Suppressor" as it is used to define "assault weapons" as well as the phrase "permanently alter." Special Agent Abad was deposed both as an employee and again as one of the two firearms experts within the Bureau of Firearms (the other being former Special Agent Ignatius Chinn). Mr. Abad's deposition as an employee was taken over the course of two days.
A copy of the transcript to the second day of Special Agent Abad's employee deposition can be obtained below: |
|
Last Updated on Tuesday, 28 April 2009 10:57 |
|
|
