Closed AMA 2A AMA - We have 2A lawyer in the space! - Ask away

[ikeo1]

Updated:

I've converted this into a Q/A since it seems there's enough interest. Members can vote on the question by clicking on the ^ v characters to the side or bottom of the post.

We'll keep the questions open for a couple of days to give some time to answer them. So feel free to ask away so we can give @raellic some time to answer..

Ground Rules:

• This is personal opinion unless you leverage professional services or unless stated so.
  • At a minimum, this will give perspective from someone with a legal background and hopefully be fun and interesting.
• If you're not happy with an answer, consider why they are answering that way
• Ask questions clearly when possible
• Keep it Clean

Let the questions begin!

Original:

We're considering having an AMA with one of our vendors who is a 2A specific attorney @raellic . We're grateful to have someone in the 2A space who practices law who's up for an Ask Me Anything.

@raellic has a practice in the Bay Area at https://watters.law and is active in the 2A community. He trains and hosts classes, so we're glad to bring more people together for the community.

 

[raellic]

Opinion on opening an AOW weapon such as a Remington TAC14?

No, see above post for the reasons.

 

[jhsd20]

The letter of the law is that Penal Code sec. 32310 prohibits possession of standard capacity magazines after July 1, 2017. Under the statute, it does not matter when the magazine was acquired or if it was legally possessed up to that point. A law firm wrote an article on Freedom Week in this context that should be helpful: https://chastainejones.com/blog/large-capacity-magazines-california-penal-code-§-32310-and-freedom-week/

Essentially, the status of standard mags is unknown pending the 9th Circuit's decision in the underlying case. For now, I would recommend not taking standard capacity magazines outside of your home or workplace unless you're prepared to risk losing them-- because if you go to a public gun range and there happens to be a DOJ agent or CHP officer there, best case they take your mags from you and write you an infraction citation. Also, make sure the date of manufacture stamped on the magazines is before whatever applicable law took effect.

The statute of limitations on general felonies is three years from the date of the crime. Cases involving fraud or that involve crimes punishable for longer than normal terms of imprisonment have longer statutes of limitations. As far as I know, the statute of limitations on standard capacity magazines has not been tested, which makes sense because it's an unusual one to charge by itself. The government could say that you smuggled the magazine in and the statute of limitations didn't run until the officer found the magazine on you. I don't know if that would work, but that is another reason to not gamble with your magazines.

What would your interpretation of the following appeal order be? Specifically the part that mentions a stay on issuance of mandate?

Can you also clarify why your interpretation / recommendation of the high-capacity magazine laws differ from the CRPA's, being the lawyers directly involved in the case?

https://crpa.org/wp-content/uploads/2020/10/FAQ-and-Analysis-Re-Ninth-Circuit-Panel-Decision-08282020.pdf

I am not challenging your assertion, only asking where the difference in interpretation comes from. Thanks kindly.

 

[raellic]

Instead of a specific question for legal advice, let me ask a generic question: When you do criminal defense of people who are charged with gun law violations, do you find that they are typically: (a) upstanding and law-abiding people who didn't understand the details of gun laws, or (b) upstanding people who intentionally ignore gun control, (c) people committing other crimes and the gun was just a minor part of it, (d) people living outside normal society (and outside the law) who happened to be picked up for gun violations, or (e) something else?

I'm not a lawyer, but I've helped a handful of people be represented in criminal cases, and I only find category (c) and (d).

I don't do criminal defense because the cases where (a) or (b) apply are so rare. I firmly believe that (c) is the most likely category where someone needs help, and that's not my thing because I would only take a case of (a) or (b).

 

[raellic]

What would your interpretation of the following appeal order be? Specifically the part that mentions a stay on issuance of mandate?

Can you also clarify why your interpretation / recommendation of the high-capacity magazine laws differ from the CRPA's, being the lawyers directly involved in the case?

https://crpa.org/wp-content/uploads/2020/10/FAQ-and-Analysis-Re-Ninth-Circuit-Panel-Decision-08282020.pdf

I am not challenging your assertion, only asking where the difference in interpretation comes from. Thanks kindly.

I've got to look at that case again in some more depth. The CRPA guidance appears to be from 2020 and was before the recent 9th Circuit decision in favor of the CA Attorney General, so it's out of date.

 

[jhsd20]

I've got to look at that case again in some more depth. The CRPA guidance appears to be from 2020 and was before the recent 9th Circuit decision in favor of the CA Attorney General, so it's out of date.

Legal Guides - CRPA

Use of Deadly Force In Self Defense In California California “Assault Weapon” Restrictions Guide- March...

crpa.org

It is still the guideline on their site- and also why I asked about the appeal status.


If it is out of date and incorrect, the CRPA is doing a huge disservice by keeping it in their "legal guides" section. Thanks kindly for your reply.

 

[raellic]

I just checked up on the partial stay. The partial stay of the recent decision by the 9th Circuit only means that simple possession is not going to be prosecuted until after July 10, 2025. An officer on the gun range can still take your magazines from you and write you a citation pending the outcome of the case, even if there ends up being no criminal case filed. And it would take months to get them back. That's why I don't recommend bringing standard capacity mags to a public range, which may be inconsistent with the current CRPA guidance.

 

[jhsd20]

I just checked up on the partial stay. The partial stay of the recent decision by the 9th Circuit only means that simple possession is not going to be prosecuted until after July 10, 2025. An officer on the gun range can still take your magazines from you and write you a citation pending the outcome of the case, even if there ends up being no criminal case filed. And it would take months to get them back. That's why I don't recommend bringing standard capacity mags to a public range, which may be inconsistent with the current CRPA guidance.

If the appeal is filed, is it correct to interpret the stay order as lasting until the appeal is complete (i.e. past July 10th 2025) ?

I agree with your course of action on what to do with the magazines. Its simply the safest option. Laws are confusing and enforcement may not even know what is legal or not. Even the CRPA guidance says to call them if arrested for following their guideline.

Thanks much for looking into this.

 

[raellic]

If the appeal is granted, is it correct to interpret the stay order as lasting until the appeal is complete (i.e. past July 10th 2025) ?

I agree with your course of action on what to do with the magazines. Its simply the safest option. Laws are confusing and enforcement may not even know what is legal or not. Even the CRPA guidance says to call them if arrested for following their guideline.

Thanks much for looking into this.

The stay order lasts 90 days, and if the Supreme Court declines to review the case, then the ruling in favor of the Attorney General stands. If the Supreme Court accepts review, they will likely extend the stay during the case.

 

[jhsd20]

The stay order lasts 90 days, and if the Supreme Court declines to review the case, then the ruling in favor of the Attorney General stands. If the Supreme Court accepts review, they will likely extend the stay during the case.

The language of the order seems to imply that the stay is automatically extended in the case of certiorari being filed (and not upon the Supreme Court granting review). Am I misinterpreting legalese?

"If within that period the Clerk of the Supreme Court advises the Clerk of this Court that a petition for certiorari has been filed, then the mandate shall be further stayed until final disposition of the matter by the Supreme Court."

Again, thanks for clarification.

 

[Koala]

What would the legal ramifications be if I were caught in possession of a Ar pistol upper in the same bag as my assembled 16" rifle? Would the pistol upper be a part or is there "intent"? Thanks!

 

[stevoman]

having a ccw in california how many permitted ccw firearms can you carry at once?

 

[raellic]

having a ccw in california how many permitted ccw firearms can you carry at once?

According to most agencies, two at the same time.

 

[idr0veacamry]

No questions from me. But I really do appreciate your time and replies.

 

[spcrazyhorse]

We need more lawyers like you! This thread has been super helpful

 

[joefrank64k]

You are a rarity, my friend. But I don't agree with you. Yes, there is an AOW exception for following the ATF process for AOWs, but an AOW is defined in the CA statute the same as an AOW under Federal law, which is:

(e) Any other weapon
The term “any other weapon” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.

A conventional shotgun with a barrel under 18" is not a AOW, it is a short-barreled shotgun prohibited by PC 33215. If you're a prop master for a firearms prop house, that's one of the only ways to get a SBS. I suspect Reno May is viewing the AOW statute by itself without reference to the cases decided under it, which would be important to determining whether something is actually legal. Keep in mind this is only a discussion of the issue; the authoritative interpretation would be if someone gets convicted and then appeals it, and the Court of Appeal or CA Supreme Court discuss the issue. So far, I don't think that has happened with this particular provision.

I have a legally owned .308 AR-10 myself, and it was done through the 2017 bullet-button registration law.

Right. A ‘shotgun’ can’t be an AOW because it was designed or redesigned to be fired from the shoulder. It had a stock from the manufacturer.

My 870 and 870 DM were “others” from the factory, as they were made with pistol grips and not stocks. Not designed or redesigned to be fired from the shoulder. So AOW is a-ok. Again, mine are all stamped and one of them was DROS’d after I got my stamp.

As for the CA SBS situation, my 870 AOW’s are not SBS in CA because they are properly possessed AOW’s.

My 308 AR-10 is not an SBR in CA because it started life as a pistol (no stock) and is now stamped as an AOW.

At least I hope so, haha!!

 

[Ryan Gosling]

Well, you can either jump through their hoops or file a petition for writ of administrative mandate with the courts. Easier to jump through their hoops, to be honest. If you have a bottomless checkbook and want to create case law that benefits people in your position, that's when lawyers will be interested.

Life is pain

 

[raellic]

We need more lawyers like you! This thread has been super helpful

Thanks, that is a nice compliment. I still have a few more write-ups to do in various areas. The mental health prohibition is an important one and very polarizing. I'll dig out those citations when possible.

 

[stevoman]

If a robbery happens at a store, and the bad individual has his hands in his pocket, or coat, or bag, and you can clearly see his intent is robbing the store, can you shoot to prevent a robbery and lives at stake since a robbery is a felony, even though you don't see him pull out a firearm or knife but you know his intent is to rob the place by obvious with his demands for money and wallet?

 

[1911-CV]

I'm guessing you are looking at PC 197(2)... (4) is also interesting. Have court rulings impacted these clauses??

Homicide is also justifiable when committed by any person in any of the following cases:

(1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.

(2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.

(3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.

(4) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.

 

[Seeker of Knowledge]

Sir, is there any way or ways in which an individual who does not hold a CCW permit may legally transport a loaded magazine? (Transport in a motor vehicle is the primary area of interest. For instance, may a loaded magazine be transported in a separate locked container from the locked container containing an unloaded firearm?) Thank you!