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]

OK, here is the most important, polarizing, and controversial point of law I want to answer for folks: if you get a 5150 in California for grave disability, you have no firearms prohibition unless there is an adjudicative hearing that finds you incompetent and certifies you for intensive treatment under 5250. This type of thing can happen if the person is simply unable to consent to treatment due to a mental health condition, and they are not violent or a threat. If the patient voluntarily admits themselves before the adjudicative hearing and the hearing is dropped, there is no prohibition once the patient leaves the facility. And a 5150 for "danger to self or others" results in a five-year ban under state law with an opportunity to restore the person's rights by petition in court. Here's an article from another law firm here that is helpful reading. Thus, it is possible to restore a person's firearms rights even if they get a 5150 for danger to self or others. I am not taking a position on whether that is a good idea for policy reasons, I'm just saying what the rules are. Note that it's entirely possible that a 5150 is mistakenly done on someone as a danger to self or others when it really should be a grave disability. The point is that the government cannot take away your gun rights forever with a single-sheet piece of paper signed by an emergency room physician.

In United States v. Rehlander, 666 F.3d 45 (1st Cir. 2012), two defendants were convicted of violating the Federal mental health prohibition in 18 U.S.C. 922. One of the defendants had been 5150'ed under the California-equivalent procedure in Maine law, which allows a doctor and law enforcement officer to involuntarily admit someone to a mental health unit of a hospital for treatment. The 1st Circuit Court of Appeal discussed the law and concluded that an involuntarily hospital admission of this type is not a commitment or adjudication under the law. Maine, however, does not apparently treat "danger to self or others" the same way that California does. Thus, the Maine decision in this case is more permissive than California law. See also Franklin v. Sessions, 291 F. Supp. 3d 705 (W.D. Pa. 2017), which held similarly. Bottom line, do not get a 5150 for danger to self or others. The patient has no control over what the doctor does, but at least the patient has control over what they say. If they say anything about harming themselves or others, going postal, committing suicide, etc., that is a 5150 for danger to self or others. Grave disability is a much less serious matter where rights are involved.

 

[raellic]

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?

Unless the robbery involves you, you're much better off acting as a witness than intervening and shooting the suspect before he even pulls a gun. I doubt most robbers are very fast on the draw, so practice that Mozambique drill for when you see the suspect reaching in his waistband.

 

[raellic]

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!

You can transport a loaded magazine and an unloaded gun in the same locked container, or in the trunk of a vehicle. They don't have to be separated. You're not supposed to put the magazine in the gun, though.

 

[raellic]

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.

There are tons of cases in this area. The bottom line is that you will be judged by a jury of 12 on whether your actions were reasonable, and you are also accountable in civil court for every round that leaves the gun. Yes, you can intervene to stop a serious violent crime, and there are many scenarios where that may be the right thing to do. But practically speaking, don't rush to shoot someone unless you are the victim and great bodily injury or death will result from the suspect's actions. A simple armed robbery of a liquor store or bank is not the time to play John Wayne, in my opinion, even though you are legally permitted to do so. A mass shooting, potentially fatal beating, or attack with a deadly weapon is where you should be taking action. You also cannot use lethal force to stop any theft.

 

[M_N04H]

Would something like a Thordsen cheek rest for an AR pistol be a legally safer alternative for a pistol brace?

 

[Jose0424]

I seem to get mixed answers on this, is it legal to have a pistol with a threaded barrel & a fixed magazine?
Some say it’s fine some say I have to weld a thread protector or muzzle device. Thank you!

 

[NorCalBusa]

Looks like the Corpus Party begins Thursday @ the BoS, streaming live on the County website.

 

[ikeo1]

Just an FYI folks, we're going to be wrapping this up later today.

I want to thank @raellic for taking so many questions. Definitely informative and was an interesting read for all the different directions this post went.

 

[M_N04H]

Just an FYI folks, we're going to be wrapping this up later today.

I want to thank @raellic for taking so many questions. Definitely informative and was an interesting read for all the different directions this post went.

Definitely helpful in many ways, hopefully he's able to answer all of our questions. But thank you all for doing this. A lot of helpful information in here.

 

[stevoman]

There are tons of cases in this area. The bottom line is that you will be judged by a jury of 12 on whether your actions were reasonable, and you are also accountable in civil court for every round that leaves the gun. Yes, you can intervene to stop a serious violent crime, and there are many scenarios where that may be the right thing to do. But practically speaking, don't rush to shoot someone unless you are the victim and great bodily injury or death will result from the suspect's actions. A simple armed robbery of a liquor store or bank is not the time to play John Wayne, in my opinion, even though you are legally permitted to do so. A mass shooting, potentially fatal beating, or attack with a deadly weapon is where you should be taking action. You also cannot use lethal force to stop any theft.

oh yes good logic stance.

Also can't use lethal force for burglary too, unless both theft and burglary turns imminent.

Another issue with shooting in a 3rd party situation, what we may think is a active/mass shooter could be a CCW carrier trying to shoot the real active/mass shooter that wasn't seen. So we don't want to make a mistake shooting the CCW carrier instead.

 

[Markbsae]

It would be no different from a caliber conversion, which should also be allowed as long as it's disclosed.

Previous to this years renewal, my Ruger LC380CA was listed on my permit as a 9mm/.380 but after SB2 I qualified and submitted with it again listed as a 9mm/.380 but the permit was issued as a .380 only. My IA (same as last permit) is very pro 2A but this time around didnt list it on my permit as both calibers, only what the DROS listed it as.

 

[raellic]

oh yes good logic stance.

Also can't use lethal force for burglary too, unless both theft and burglary turns imminent.

Another issue with shooting in a 3rd party situation, what we may think is a active/mass shooter could be a CCW carrier trying to shoot the real active/mass shooter that wasn't seen. So we don't want to make a mistake shooting the CCW carrier instead.

The most heartbreaking video they played during my CCW training was of a husband/wife who started shooting up a big box store. A CCW holder shot the husband, and then the wife shot the CCW holder because he didn't see her and only thought there was one shooter. Your best move in a possible mass shooting seems to be to take cover and, if the opportunity presents itself, draw and engage the shooter only when you're absolutely sure that is the suspect. Otherwise, you could accidentally shoot another CCW holder. Also, you don't want to be walking around with a gun in your hand when the police show up.

 

[raellic]

Would something like a Thordsen cheek rest for an AR pistol be a legally safer alternative for a pistol brace?

I personally don't agree with the whole concept of the "AR pistol" or "AK pistol" because these were originally designed to be fired from the shoulder and are not practical to use as actual pistols. I mean, seriously, are you really going to put that thing in a belt holster or one-hand fire it? But yes, I think you have a better argument if you're putting your cheek on the recoil tube than if you are strapping a stock to your arm. There is a helpful article online about pistol braces and current trends.

 

[raellic]

I seem to get mixed answers on this, is it legal to have a pistol with a threaded barrel & a fixed magazine?
Some say it’s fine some say I have to weld a thread protector or muzzle device. Thank you!

If it's a semi-auto with a fixed magazine of 10 rounds or less, I think there's no reason you can't have a threaded barrel. I'm not sure how you would reload that one, but I suppose it's possible. I guess a HK Mk 23 SOCOM with a threaded barrel and a fixed magazine could be reloaded by locking back the slide and pushing rounds into the magazine...but I'd rather have a detachable magazine and no threaded barrel.

 

[NorCalBusa]

Thanks for stepping up here Andrew. Its terrific to have a good source of knowledge- tip of the hat sir!

 

[raellic]

Thanks for stepping up here Andrew. Its terrific to have a good source of knowledge- tip of the hat sir!

You're welcome, I'm only able to do this because I have my own law firm and I can decide whether to offer something like this, which is always a risk.

 

[M_N04H]

I personally don't agree with the whole concept of the "AR pistol" or "AK pistol" because these were originally designed to be fired from the shoulder and are not practical to use as actual pistols. I mean, seriously, are you really going to put that thing in a belt holster or one-hand fire it? But yes, I think you have a better argument if you're putting your cheek on the recoil tube than if you are strapping a stock to your arm. There is a helpful article online about pistol braces and current trends.

Not directly on the buffer tube. I was referring specifically to this...

Cheek Rest Kits - Cheek Rests and Saddles | Thordsen Customs

www.thordsencustoms.com

 

[NorCalBusa]

Bay Area Man With Loaded Gun, Drum Magazine Runs From Officers: Police

The man reached into a bag carrying a loaded gun before officers tased him, police said.

patch.com

Story- not so interesting. What is remarkable is he wasn’t charged with the high capacity magazine- indicates the law is still unclear or still in suspense.

 

[ikeo1]

Alright folks, Thank you everyone for all the questions! I think we can wrap this up. I appreciate everyone and @raellic for participating in our first AMA!

 

[USMC06RET]

Bay Area Man With Loaded Gun, Drum Magazine Runs From Officers: Police

The man reached into a bag carrying a loaded gun before officers tased him, police said.

patch.com

Story- not so interesting. What is remarkable is he wasn’t charged with the high capacity magazine- indicates the law is still unclear or still in suspense.

I ran into a paywall with that article. Here is an archive link that should work for everyone: http://archive.today/xM8wH

As this only happened ~3 - 4 days ago, don't be surprised if the charges are amended by the DA to include the drum magazine, if they haven't been already.