Burden of Proof and Freedom Week Magazines

[RickD427]

I think this mixes two separate issues, right? Acquisition vs possession. The statute of limitations matters for proving recent illegal acquisition and possession alone doesn't prove when it was acquired, but freedom week isn't irrelevant because the law separately deals with possession, and freedom week order is still the reason the Mar 29 - April 5 mags are treated differently. Basically, I think freedom week is still relevant for possession, but maybe not acquisition. @RickD427

There is no longer any legal significance to "Freedom Week". The law does apply differently to acquisition and to possession. The SOL starts to run at the time you acquired the magazines for PC 32310(a) cases, but it starts when you got caught with the magazines for PC 32310(c) cases.

No matter how you calculate the SOL, it's all over for acquisition cases.

But there never was any application of "Freedom Week" to possession cases. The law currently bans possession of large-capacity magazines that were acquired prior to the statute taking effect. It bans possession of magazines acquired during "Freedom Week" and it bans possession of magazines acquired after "Freedom Week".

The federal court injunction prohibits enforcement of PC 32310(c) in all cases. It makes no special provision for magazines purchased during freedom week. You can review the court injunction here. Please note the wording of the key portion of the order on the final page, along with the absence of any special treatment for "Freedom Week" magazines: https://michellawyers.com/wp-conten...rra_Order-Granting-Preliminary-Injunction.pdf

 

[RickD427]

Ahh, so that's what "or imprisonment pursuant to subdivision (h) of Section 1170" means. Interesting. Now I know.

Holy crap that's crazy how they turn everything into a wobbler.

Don't feel at all bad, a lot of folks have missed the point that the language "Subdivision (h) of Section 1170..." defines a felony.

The "Wobbler" concept started off as a good idea, but went kinda sideways. Not every offender needs a full dose of the criminal justice system. Some folks only need a "Tune-up", some need a "Spanking", and some need to have the whole book thrown at them. The "Wobbler" was designed to allow that flexibility. But the first player in the CJ system, and the one with the best ability to determine if a minor dose of "the system" is appropriate is the nice arresting officer. But that officer has no authority to "Wobble" a charge. The nice prosecutor is the first person in the process that can do the "Wobbling" and they don't see the case until the second or third day following the arrest.

I've also seen some abuse of the "Wobbler" when it comes to plea-bargaining, and especially in firearms and domestic violence cases. Quite often the D.A. will file the charge as a felony, and then offer to drop it to a misdemeanor in exchange for a plea. That's a deal that's often far too tempting to a defendant to take, even if the the facts of the case call for a trial.

 

[HibikiR]

I have D&H and Surefeed mags (metal) with the date printed on them. My Lancer mags (Polymer) do as well.

None of my AK mags besides a PMag have dates on them, both surplus and commerical eastern bloc.

Yeah, I only skimmed some old 10 round mags from US contractors and some old 10 round mags from ASC and they didn't have it, but I could have missed it on the first pass.

 

[BARvS]

There is no longer any legal significance to "Freedom Week". The law does apply differently to acquisition and to possession. The SOL starts to run at the time you acquired the magazines for PC 32310(a) cases, but it starts when you got caught with the magazines for PC 32310(c) cases.

No matter how you calculate the SOL, it's all over for acquisition cases.

But there never was any application of "Freedom Week" to possession cases. The law currently bans possession of large-capacity magazines that were acquired prior to the statute taking effect. It bans possession of magazines acquired during "Freedom Week" and it bans possession of magazines acquired after "Freedom Week".

The federal court injunction prohibits enforcement of PC 32310(c) in all cases. It makes no special provision for magazines purchased during freedom week. You can review the court injunction here. Please note the wording of the key portion of the order on the final page, along with the absence of any special treatment for "Freedom Week" magazines: https://michellawyers.com/wp-conten...rra_Order-Granting-Preliminary-Injunction.pdf

I understand that the letter of the CA law prohibits possession the mags regardless of when they were purchased and there is no statutory exemption, but the protection comes from a Duncan court orders that specifically limits enforcement of that law tied to legally acquired mags. And because freedom week was essentially THE time to lawfully acquire such mags, it still seems important to a possession case.

 

[RickD427]

I understand that the letter of the CA law prohibits possession the mags regardless of when they were purchased and there is no statutory exemption, but the protection comes from a Duncan court orders that specifically limits enforcement of that law tied to legally acquired mags. And because freedom week was essentially THE time to lawfully acquire such mags, it still seems important to a possession case.

You're correct about the first part. Here is the text of Penal Code section 32310(c) as it stands today:

"Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, commencing July 1, 2017, any person in this state who possesses any large-capacity magazine, regardless of the date the magazine was acquired, is guilty of an infraction punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, or is guilty of a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."

Nothing in the Duncan case has yet caused any change to be made in the statute. Enforcement of this part of PC 32310 remains enjoined by the federal court.

"Freedom Week" was not essentially the time to lawfully acquire such magazines. I'll wager that the number of such magazines acquired during "Freedom Week" is quite miniscule compared to the number of such magazines acquired from early history up to the enactment of PC 32310. Please note that PC 32310 does not provide any "Grandfathering" of large-capacity magazines that were lawfully possessed prior to its enactment.

But if you do believe that there is some remaining relevance to "Freedom Week" to a possession case, can you explain how, if the injunction were to be removed, you would plead such in a possession case?

 

[BARvS]

You're correct about the first part. Here is the text of Penal Code section 32310(c) as it stands today:

"Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, commencing July 1, 2017, any person in this state who possesses any large-capacity magazine, regardless of the date the magazine was acquired, is guilty of an infraction punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, or is guilty of a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) per large-capacity magazine, by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."

Nothing in the Duncan case has yet caused any change to be made in the statute. Enforcement of this part of PC 32310 remains enjoined by the federal court.

"Freedom Week" was not essentially the time to lawfully acquire such magazines. I'll wager that the number of such magazines acquired during "Freedom Week" is quite miniscule compared to the number of such magazines acquired from early history up to the enactment of PC 32310. Please note that PC 32310 does not provide any "Grandfathering" of large-capacity magazines that were lawfully possessed prior to its enactment.

But if you do believe that there is some remaining relevance to "Freedom Week" to a possession case, can you explain how, if the injunction were to be removed, you would plead such in a possession case?

Look I agree that PC 32310(c) contains no grandfather clause and that the law states that it's all illegal regardless of acquisition date.

That said, I think freedom week still matters as part of the injunction/status-quo issue in duncan where the litigation consistently treated the possession ban differently when applied to people who lawfully acquired the mags. Now you're right in that it's broader than just Freedom week (including pre-2000 mags too), but freedom week is still a subset of that "lawfully acquired" category, right?

So I'd plead that the mags were lawfully acquired when acquisition and possession were not prohibited by enforceable law, that I relied on a federal court order, and that the current Duncan stay/injunction posture protects against retroactive or confiscatory enforcement of the possession ban as applied to lawfully acquired magazines. If the injunction was fully removed, IDK, maybe you could still make some argument, but I'm not qualified to make such an argument.

Sorry if I'm coming off as repetitive, but what you're telling me seems to go against all that I've read about the situation, that's all.

 

[AR15barrels]

Please note that PC 32310 does not provide any "Grandfathering" of large-capacity magazines that were lawfully possessed prior to its enactment.

It used to have a grandfathering clause, but that was stripped away when they changed the wording to include "any date" text.
The old PC32310 can be found on PDF page 12 of prop 63 filing here with the deletions:

https://www.oag.ca.gov/system/files/initiatives/pdfs/15-0098%20%28Firearms%29_0.pdf

Also see the old PC32420.

 

[Gawernator]

From what I understand it's only a misdemeanor even if you're caught. If I'm wrong about this somebody please correct me. That being said, I wouldn't waste too much energy thinking about it

I got charged with manufacturing like 38 high capacity magazines by Fremont PD (almost all were US government property lol) when I was on active duty and the DA declined to file the charges. It seems to be a pretty difficult charge to convict on

 

[Gawernator]

What you wrote is mostly wrong.

To begin with, Freedom Week is now irrelevant. What matters is the statute of limitations, which is 3 years for this crime. Since Freedom Week is over 3 years ago, it no longer makes a difference.

Your understanding is quite flawed. In theory, the prosecutor has to convince the jury (or a judge), beyond a reasonable doubt, that you committed the crime they described. For example, they could show that you possess the magazine, and they could have a copy of the receipt from when you bought it from a gun store in Arizona a year ago. That pretty much "beyond a reasonable doubt". The crime we're discussing here is acquiring (buying, receiving, ...) a magazine, and to prove that requires much more than "the defendant has it in their possession". I would think that in practice, it would require some concrete evidence (such as the receipt) of when you acquired it.

The story of "I bought it during Freedom Week" (even if under 18) is just a way of creating reasonable doubt in the mind of the jury. Obviously, this only works if the story is believable. If the DA has the receipt from Arizona a year ago, then your counter-argument not only falls flat, it ruins your credibility. In the example given above of a P365 magazine that didn't even exist during Freedom Week, the same thing happens: you expose yourself as a liar if you claim to have bought it back then.

On the other hand, if the DA does not have concrete evidence of you acquiring the magazine, then you don't even need to be as specific as saying "Freedom Week". All you need to say "prove that it was less than 3 years ago, I dare you". That argument in and of itself should convince a jury.

In practice, much of this doesn't matter. If the crime of acquiring a large-capacity magazine is all the DA has, the case would never go to trial, just not worth it. In reality, those cases would always be settled, with a plea deal. Or with a confiscation: LE just takes the magazine and destroys it, and you get to pay some court costs. If the large-capacity magazine is part of a larger case (with many other charges), then it really depends on the other charges. A typical example would be the other charges being: possession of a stolen vehicle, driving without a license, possession of drugs in a quantity for sale, and DUI because of methamphetamine. A guy I know had those charges, plus a sawed-off shotgun, and was convicted to a year in jail.

tl;dr: Freedom week is irrelevant now that the statute of limitations has exceeded it.

The P365 was released on January 2018?

 

[wtf_calguns_migration]

What you wrote is mostly wrong.

To begin with, Freedom Week is now irrelevant. What matters is the statute of limitations, which is 3 years for this crime. Since Freedom Week is over 3 years ago, it no longer makes a difference.

Your understanding is quite flawed. In theory, the prosecutor has to convince the jury (or a judge), beyond a reasonable doubt, that you committed the crime they described. For example, they could show that you possess the magazine, and they could have a copy of the receipt from when you bought it from a gun store in Arizona a year ago. That pretty much "beyond a reasonable doubt". The crime we're discussing here is acquiring (buying, receiving, ...) a magazine, and to prove that requires much more than "the defendant has it in their possession". I would think that in practice, it would require some concrete evidence (such as the receipt) of when you acquired it.

The story of "I bought it during Freedom Week" (even if under 18) is just a way of creating reasonable doubt in the mind of the jury. Obviously, this only works if the story is believable. If the DA has the receipt from Arizona a year ago, then your counter-argument not only falls flat, it ruins your credibility. In the example given above of a P365 magazine that didn't even exist during Freedom Week, the same thing happens: you expose yourself as a liar if you claim to have bought it back then.

On the other hand, if the DA does not have concrete evidence of you acquiring the magazine, then you don't even need to be as specific as saying "Freedom Week". All you need to say "prove that it was less than 3 years ago, I dare you". That argument in and of itself should convince a jury.

In practice, much of this doesn't matter. If the crime of acquiring a large-capacity magazine is all the DA has, the case would never go to trial, just not worth it. In reality, those cases would always be settled, with a plea deal. Or with a confiscation: LE just takes the magazine and destroys it, and you get to pay some court costs. If the large-capacity magazine is part of a larger case (with many other charges), then it really depends on the other charges. A typical example would be the other charges being: possession of a stolen vehicle, driving without a license, possession of drugs in a quantity for sale, and DUI because of methamphetamine. A guy I know had those charges, plus a sawed-off shotgun, and was convicted to a year in jail.

tl;dr: Freedom week is irrelevant now that the statute of limitations has exceeded it.

I think we know the same guy.
I went to elementary and middle school with him.

 

[AR15barrels]

The P365 was released on January 2018?

Wikipedia seems to think so.

SIG Sauer P365 - Wikipedia

en.wikipedia.org

Believe that as little or as much as you want.

 

[Gawernator]

Wikipedia seems to think so.

SIG Sauer P365 - Wikipedia

en.wikipedia.org

Believe that as little or as much as you want.

Best selling handgun of 2018/2019 according to the source https://www.americanrifleman.org/articles/2020/3/7/sig-sauer-p365-the-best-selling-handgun-of-2019

 

[RickD427]

It used to have a grandfathering clause, but that was stripped away when they changed the wording to include "any date" text.
The old PC32310 can be found on PDF page 12 of prop 63 filing here with the deletions:

https://www.oag.ca.gov/system/files/initiatives/pdfs/15-0098%20%28Firearms%29_0.pdf

Also see the old PC32420.

You're right. California's Large-Capacity Magazine statute has taken a lot of "Twists and Turns" through the years. But the key point is that the rescinded versions of the statute carry no legal weight.

It's also important to note that former Penal Code section 32420 used to read:

"Section 32310 does not apply to the importation of a large-capacity magazine by a person who lawfully possessed the large-capacity magazine in the state prior to January 1, 2000, lawfully took it out of the state, and is returning to the state with the same large-capacity magazine."

A lot of folks still have that section in memory. But it was rescinded by SB1446 in 2016. Such re-importation, if done today, would be a felony.

The U.S. Supreme Court appears to be having a very difficult time with the Duncan case. It has been calendared for conference, and then carried over more times that I can recall having been done in any other case. I'm not sure what to make of that.

 

[Bobalover209]

Many thousands of orders went through. And Reno May was correct about everything surrounding the incident in question, which is what I was referring to when I said Reno May was helpful for not only the ammo situation, but also when I agreed when he was referred to as helpful and knowledgeable on magazine freedom week as well.

Yes like thousands went through illegally. Reno May was also correct in that IIRC he said it was a potential gray area and the CRPA recommended people wait before ordering. He was not wrong, but the many people that did end up successfully receiving ammo without a ffl03/COE ended up doing so illegally.

The risk of getting caught and the penty for a first time offense is minimal, but with your credit card info, name, and address out there on a digitized transaction it probably wouldn't be too hard for authorities to find out if they wanted to.

The point of my comment was to warn people about using the term "freedom period for xxx product" too loosely, which is mistakenly done with freedom week magazines all the time. If it wasn't a true freedom period then it's not correct to say it was if that makes sense.

Many naive people saw the frenzy for the latest "ammo freedom period" which actually wasn't, and were scrambling to cancel their orders when they found out they were misled. We need to try our best as a community to help each other make informed decisions, and not mislead one another (generally speaking, not saying that you were).

 

[Jimi Jah]

I use 10 round AR magazines. With bench shooting they clear the bench, a 30 rounder won't.

Ammo is too expensive for 30's anyway. My handguns are all single stack so they are all limited to 10 or less by design.

 

[weaverftw]

Appreciate all the responses here, I was also under the mistaken impression that the current enjoined ban on possession has some kind of “exemption” for legally acquired mags from pre-2000 or freedom week. I didn’t realize that it was only relevant for acquiring the mags in the past and that now the SOL makes it moot on that point.

 

[treelogger]

I got charged with manufacturing like 38 high capacity magazines by Fremont PD (almost all were US government property lol) when I was on active duty and the DA declined to file the charges. It seems to be a pretty difficult charge to convict on

Quite often, people who have ONLY gun-related charges (large cap magazines, AW due to misconfigured AR-style rifle) get their charges dropped, because it's not worth all the work to bring it to trial or a plea. On the other hand, these charges are frequently retained as part of a package with other things (I've seen drugs, DV, felon in possession) that lead to a felony conviction. In the cases I know in detail, they were there all the way until final plea or conviction.

Does anyone remember the name of the guy in the LA area who was arrested and charged with magazine- and gun-related stuff in the LA area, and through the efforts of what was then the Calguns Foundation got released and the charges dropped? Before that event, he had been quite obnoxious on various forums, and afterwards he changed his personality completely, eventually got a law degree, and is now practicing in a neighboring state. That must have been somewhere around 2010 or 2012. The Calguns people held a large celebratory dinner after his release, I think in San Francisco, with all the usual suspects in attendance (Gene, Paul, Bill, Kevin, Ben, ...). Or am I confusing that dinner with the one after one of the Nordyke trial successes?

 

[Deleted member 6005]

Quite often, people who have ONLY gun-related charges (large cap magazines, AW due to misconfigured AR-style rifle) get their charges dropped, because it's not worth all the work to bring it to trial or a plea. On the other hand, these charges are frequently retained as part of a package with other things (I've seen drugs, DV, felon in possession) that lead to a felony conviction. In the cases I know in detail, they were there all the way until final plea or conviction.

Does anyone remember the name of the guy in the LA area who was arrested and charged with magazine- and gun-related stuff in the LA area, and through the efforts of what was then the Calguns Foundation got released and the charges dropped? Before that event, he had been quite obnoxious on various forums, and afterwards he changed his personality completely, eventually got a law degree, and is now practicing in a neighboring state. That must have been somewhere around 2010 or 2012. The Calguns people held a large celebratory dinner after his release, I think in San Francisco, with all the usual suspects in attendance (Gene, Paul, Bill, Kevin, Ben, ...). Or am I confusing that dinner with the one after one of the Nordyke trial successes?

That was a guy named Matt, aka blackwater ops...

 

[GAAPlebees]

Notably when this topic comes up we all refer to that one case that was never tried. Everything is in limbo waiting for Duncan. Bottom line is there is no black and white answer, some jurisdictions will allow any magazine on your CCW and another will confiscate them.

Contra Costa didn’t bat an eye when I brought my standard cap mags.

 

[RickD427]

Quite often, people who have ONLY gun-related charges (large cap magazines, AW due to misconfigured AR-style rifle) get their charges dropped, because it's not worth all the work to bring it to trial or a plea. On the other hand, these charges are frequently retained as part of a package with other things (I've seen drugs, DV, felon in possession) that lead to a felony conviction. In the cases I know in detail, they were there all the way until final plea or conviction.

Does anyone remember the name of the guy in the LA area who was arrested and charged with magazine- and gun-related stuff in the LA area, and through the efforts of what was then the Calguns Foundation got released and the charges dropped? Before that event, he had been quite obnoxious on various forums, and afterwards he changed his personality completely, eventually got a law degree, and is now practicing in a neighboring state. That must have been somewhere around 2010 or 2012. The Calguns people held a large celebratory dinner after his release, I think in San Francisco, with all the usual suspects in attendance (Gene, Paul, Bill, Kevin, Ben, ...). Or am I confusing that dinner with the one after one of the Nordyke trial successes?

That was a guy named Matt, aka blackwater ops...

That gent went by a number of different names on Calguns. I'll refrain from naming him out of respect for privacy. I haven't seen him active on any forums recently. I'd like to have him back. He and I had some lively exchanges. He had been the Student Body President at East L.A. College. He was arrested and charged for primarily Assault Weapon violations. The case fell apart. I feel kinda badly because it was my agency that had arrested him. I later spent a day doing promotional interviews and the commander of the unit that handled the case was on the panels with me. We went to lunch and I asked about the case, but he wasn't willing to debrief it. He went on to get a law degree from UCI's new law school and then worked briefly at Michel and Associates between graduation and the Bar Exam.