Assimilative Crimes Act and CA Gun Laws

[CommieforniaResident]

There’s a very small chance this post will reach the right people—federal criminal law attorneys—but I figure it’s worth a shot.

Under federal law, it is perfectly legal to possess so-called “assault weapons” and “high capacity magazines.” This was not always the case. From 1994 to 2004, there was a nationwide federal assault weapons ban which prohibited both assault weapons and high capacity magazines. The ban “sunsetted” after Congress refused to reenact the law, which provided a ten-year ban.

State law applies only on land under state jurisdiction. State law does not extend to land under federal jurisdiction.

California has much land under federal jurisdiction, from Yosemite National Park to the Presidio in San Francisco. State law does not apply there.

However, a federal statute—the Assimilative Crimes Act—incorporates state law into federal law so long as state law does not conflict with federal law. In other words, for example, it becomes a violation of federal law to violate California’s speed limit laws on federal land.

My question is, how does the Assimilative Crimes Act interface with California’s gun laws? Is California’s assault weapons ban incorporated into federal law under the Assimilative Crimes Act? It doesn’t seem to conflict with federal law—because no federal law protects assault weapons—but it doesn’t seem consistent with federal law either, given Congress’s refusal to prohibit assault weapons. The practical importance of this question is whether, for example, residents living on federal land in California can possess assault weapons or high capacity magazines legally.

Input from non-attorneys is welcome, but I’d like to see citations to SCOTUS and/or 9th Circuit case law.

 

[RickD427]

There’s a very small chance this post will reach the right people—federal criminal law attorneys—but I figure it’s worth a shot.

Under federal law, it is perfectly legal to possess so-called “assault weapons” and “high capacity magazines.” This was not always the case. From 1994 to 2004, there was a nationwide federal assault weapons ban which prohibited both assault weapons and high capacity magazines. The ban “sunsetted” after Congress refused to reenact the law, which provided a ten-year ban.

State law applies only on land under state jurisdiction. State law does not extend to land under federal jurisdiction.

California has much land under federal jurisdiction, from Yosemite National Park to the Presidio in San Francisco. State law does not apply there.

However, a federal statute—the Assimilative Crimes Act—incorporates state law into federal law so long as state law does not conflict with federal law. In other words, for example, it becomes a violation of federal law to violate California’s speed limit laws on federal land.

My question is, how does the Assimilative Crimes Act interface with California’s gun laws? Is California’s assault weapons ban incorporated into federal law under the Assimilative Crimes Act? It doesn’t seem to conflict with federal law—because no federal law protects assault weapons—but it doesn’t seem consistent with federal law either, given Congress’s refusal to prohibit assault weapons. The practical importance of this question is whether, for example, residents living on federal land in California can possess assault weapons or high capacity magazines legally.

Input from non-attorneys is welcome, but I’d like to see citations to SCOTUS and/or 9th Circuit case law.

IANAL, just a retired LEO with a background on policy and procedural stuff.

I first have to question your assertion that "State law does not extend to land under federal jurisdiction." I do not believe that statement to be entirely correct. Most federal reservations are subject to concurrent jurisdiction. State officers may enforce state law and federal officers may enforce federal law where concurrent jurisdiction exists.

The Constitution strictly limits the ability of the federal government to enact general criminal statutes. That, coupled with the advantages of having consistency of law between a federal reservation, and the surrounding state, were behind the enactment of the Assimilative Crimes Act. At the risk of oversimplification, the ACA allows the feds to "borrow" a state criminal statute, and enforce it as federal law. But the ACA only provides that laws which contain a punishment are assimilated. If there were a federal law protecting Assault Weapons, the ACA would not do anything unless there were a punishment provision to that law.

The ACA only comes into play when a federal prosecutor seeks to file a state law violation in a federal court.

There is no ACA involvement if a state prosecutor files a charge in a state court for conduct occurring on a federal reservation.

 

[CommieforniaResident]

IANAL, just a retired LEO with a background on policy and procedural stuff.

I first have to question your assertion that "State law does not extend to land under federal jurisdiction." I do not believe that statement to be entirely correct. Most federal reservations are subject to concurrent jurisdiction. State officers may enforce state law and federal officers may enforce federal law where concurrent jurisdiction exists.

The Constitution strictly limits the ability of the federal government to enact general criminal statutes. That, coupled with the advantages of having consistency of law between a federal reservation, and the surrounding state, were behind the enactment of the Assimilative Crimes Act. At the risk of oversimplification, the ACA allows the feds to "borrow" a state criminal statute, and enforce it as federal law. But the ACA only provides that laws which contain a punishment are assimilated. If there were a federal law protecting Assault Weapons, the ACA would not do anything unless there were a punishment provision to that law.

The ACA only comes into play when a federal prosecutor seeks to file a state law violation in a federal court.

There is no ACA involvement if a state prosecutor files a charge in a state court for conduct occurring on a federal reservation.

Thanks, RickD. I wasn’t trying to comprehensively set out all the nuances regarding conflict of laws, etc. but only to provide a general summary of what the laws are so as to orient anyone with answers. Of course, nothing I wrote is intended as legal advice.

To clear up any confusion, I really have the following two questions:

1. Does California have jurisdiction over violations of CA’s assault weapons ban, for conduct strictly occurring on federal land and without nexus to California. FWIW, I believe the answer is clearly no; but, I won’t profess to be an expert on this so I am open to any comments on the contrary.

2. Are CA’s assault weapon laws and high capacity magazine laws incorporated into federal law under the Assimilative Crimes Act for acts occurring on federal land land in California and without nexus to California, allowing a federal prosecutor to charge for a violation of such laws? I believe the answer here is far less clear, which is what I’m really seeking input on.

 

[RickD427]

Thanks, RickD. I wasn’t trying to comprehensively set out all the nuances regarding conflict of laws, etc. but only to provide a general summary of what the laws are so as to orient anyone with answers. Of course, nothing I wrote is intended as legal advice.

To clear up any confusion, I really have the following two questions:

1. Does California have jurisdiction over violations of CA’s assault weapons ban, for conduct strictly occurring on federal land and without nexus to California. FWIW, I believe the answer is clearly no; but, I won’t profess to be an expert on this so I am open to any comments on the contrary.

2. Are CA’s assault weapon laws and high capacity magazine laws incorporated into federal law under the Assimilative Crimes Act for acts occurring on federal land land in California and without nexus to California, allowing a federal prosecutor to charge for a violation of such laws? I believe the answer here is far less clear, which is what I’m really seeking input on.

I'm not sure what you mean by "without a nexus." Any federal land located in California would necessarily have a "nexus" resulting from location.

I served as a watch commander at two Sheriff's Stations that had considerable area within the National Forests. We made thousands of arrests within the National Forests and I never saw any jurisdictional issues raised. Even though the land is "owned" by the federal government, it's still located within California. I may "own" the land my home is on, but that doesn't remove it from state jurisdiction. We did have an interesting jurisdictional challenge on the "flip side" of your question. A few of my deputies would use their observation that vehicles parked within the National Forest areas lacked the required "Forest Adventure Pass", issued by the Forest Service and required for use of the National Forest areas, to provide probable cause to question the occupants of those vehicles, with the result that many of them were arrested for narcotics violations and charged in state court. The deputies lacked any direct enforcement authority over the "Forest Adventure Pass" and defense counsel, in a couple of cases, argued that the lack of a direct enforcement authority meant that the violation could not be used as probable cause. The DDA's in each case argued that the deputies had standing to enforce by reporting the circumstances to the Forest Service and that federal prosecution could result. That worked in the two cases I'm familiar with, but that was 30 years ago.

The answer to your second question is also pretty clear, and we have actual experience. The feds can, and have, enforced California's AW ban on federal lands. Several years ago there was Bureau of Land Management Officer who was quite aggressive in enforcing the ban on federal lands in El Dorado County. The federal officer initially did so under his state law arrest authority contained in Penal Code section 830.8. The Sheriff of El Dorado County found that the officer's enforcement efforts were unprofessionally done and he revoked his powers under PC 830.8. Not to be outdone, the BLM officer continued his efforts to enforce the AW statute by filing his cases in federal court under the ACA. That put his activities beyond the reach of the Sheriff.

 

[CommieforniaResident]

I'm not sure what you mean by "without a nexus." Any federal land located in California would necessarily have a "nexus" resulting from location.

I served as a watch commander at two Sheriff's Stations that had considerable area within the National Forests. We made thousands of arrests within the National Forests and I never saw any jurisdictional issues raised. Even though the land is "owned" by the federal government, it's still located within California. I may "own" the land my home is on, but that doesn't remove it from state jurisdiction. We did have an interesting jurisdictional challenge on the "flip side" of your question. A few of my deputies would use their observation that vehicles parked within the National Forest areas lacked the required "Forest Adventure Pass", issued by the Forest Service and required for use of the National Forest areas, to provide probable cause to question the occupants of those vehicles, with the result that many of them were arrested for narcotics violations and charged in state court. The deputies lacked any direct enforcement authority over the "Forest Adventure Pass" and defense counsel, in a couple of cases, argued that the lack of a direct enforcement authority meant that the violation could not be used as probable cause. The DDA's in each case argued that the deputies had standing to enforce by reporting the circumstances to the Forest Service and that federal prosecution could result. That worked in the two cases I'm familiar with, but that was 30 years ago.

The answer to your second question is also pretty clear, and we have actual experience. The feds can, and have, enforced California's AW ban on federal lands. Several years ago there was Bureau of Land Management Officer who was quite aggressive in enforcing the ban on federal lands in El Dorado County. The federal officer initially did so under his state law arrest authority contained in Penal Code section 830.8. The Sheriff of El Dorado County found that the officer's enforcement efforts were unprofessionally done and he revoked his powers under PC 830.8. Not to be outdone, the BLM officer continued his efforts to enforce the AW statute by filing his cases in federal court under the ACA. That put his activities beyond the reach of the Sheriff.

Do you happen to know what the court case number is for that BLM prosecution in federal court?

 

[RickD427]

Do you happen to know what the court case number is for that BLM prosecution in federal court?

I don't. That was several years ago, but there was a lot of discussion on CalGuns that should be recoverable with their search function.

 

[treelogger]

a lot of discussion on CalGuns that should be recoverable with their search function.

I love your sense of humor.

Seriously: I love your knowledge of the law, and more importantly, of criminal procedure. Well, and the sense of humor too.

 

[RickD427]

I love your sense of humor.

Seriously: I love your knowledge of the law, and more importantly, of criminal procedure. Well, and the sense of humor too.

Thank you very much for the kind words....

 

[Malibu]

Was the name of the federal officer you are referring to (a USFS ranger) Ken Marcus?

 

[RickD427]

Was the name of the federal officer you are referring to (a USFS ranger) Ken Marcus?

Yes