Burden of Proof and Freedom Week Magazines

[Deleted member 16735]

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

Does Contra Costa have LE check your CCW?

 

[PlinkyDinky]

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

I like the insistence on calling them "standard" instead of "high," because language matters. 15~17 rounds for a pistol isn't high, it's normal. What's clearly abnormal is having to specially manufacture or otherwise mangle a perfectly good mag to limit its capacity.

 

[weaverftw]

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

Brought them where? To the qual? Or does your IA actually inspect your CCW guns?

 

[Gawernator]

I like the insistence on calling them "standard" instead of "high," because language matters. 15~17 rounds for a pistol isn't high, it's normal. What's clearly abnormal is having to specially manufacture or otherwise mangle a perfectly good mag to limit its capacity.

Totally. When you say "hi cap" pistol magazine I think of those 60 round drums

 

[PlinkyDinky]

Totally. When you say "hi cap" pistol magazine I think of those 60 round drums

Which, of course, I want, too.

 

[AR15barrels]

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.

I think it's on it's 23rd conference.

 

[AR15barrels]

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?

Matt Corwin.
One of my best friends was his roomate for many years so the 3 of us hung out more than a few times.

 

[Petethebuilder]

Hey everyone, I was thinking about freedom week mags and how they are treated when they come into question.

The way I assume it works is that if state thinks you have illegal mags, they have to prove that you didn't buy them during freedom week because everything should operate on an innocent until proven guilty framework. That being said, it seems problematic for the state. For something so easy to obtain, I imagine many people got standard capacity mags after freedom week and then claim they got them during freedom week because it's so difficult for the state to prove otherwise, thus illegally bypassing the law in a way that leaves almost no room for consequences. Freedom week was theoretically accessible to everyone (even people under 18) so everyone could have bought mags during freedom week.

This seems like something the state would have thought about though, so can someone enlighten me as to how they prevent people from just bringing in standard capacity mags from across state lines and just claiming they are from freedom week?

TIA.

This sounds like an undercover nobody reply

 

[dvoncock]

I am weighing in because there are a number of inaccurate statements about the law in this thread.

For those who don’t know, I am a licensed California attorney and exclusively practice criminal defense.

California’s statutory framework for magazines has several components.

First, manufacturing, importation (even just one), sales/distribution (including giving away) non-compliant magazines is a “wobbler,” meaning it can be charged as a felony or misdemeanor. If charge as a felony, the sentence is 16 months, 2 years, or 3 years (followed by 6 to 36 months on post release community supervision, which you can consider as parole for our purposes). As such, the statute of limitations is 3 years, whether charged as a felony or misdemeanor. A felony conviction results in a loss of firearms rights for life. The maximum sentence for this misdemeanor in 364 days and 12 months of probation (if anything less than the max sentence is imposed).

Second, mere possession of a non-compliant magazine is a “wobblette,” meaning it can be charged as a misdemeanor or infraction. The maximum sentence for this misdemeanor in 364 days and 12 months of probation (if anything less than the max sentence is imposed). The punishment for this infraction is a $100 fine per non-compliant magazine. A conviction for this misdemeanor (or any infraction) does not result in loss of firearms rights; but, would almost certainly result in the loss of ones CCW and, probably, the ability to get one in the foreseeable future.

Third, there is the provision for seized non-compliant magazines to be seized as a nuisance.

There was a California DOJ opinion memo circulated to the DAs of all 58 counties in California advising them to not enforce the possession component of magazine statutes following Freedom Week.

In my practice, I have not personally seen anyone charge with possession of a non-compliant magazine since then. This includes cases with the trifecta of no-no’s (prohibited person, stolen firearm, loaded and concealed). That said, if the police and/or DA believed someone is illegally manufacturing, importing and/or distributing non-compliant magazines, I would not be supposed to see them charged. Whether or not those charges would stick is another question.

If a person were charged, the burden of proof beyond a reasonable doubt would absolutely be on the People. However, that burden could be met in numerous ways, e.g., sales records, bank/financial records, social media/forum posts, post-Freedom Week manufacture dates, etc. A person with a stockpile of non-compliant magazines would likely need to show a jury that they plausibly possessed that stockpile for personal use. (In drug sales cases, we call this the “Costco defense.”) This generally requires running an affirmative at trial, meaning calling a defense expert to explain “patterns of use” (in drug sales cases) or, I guess, “patterns of possession,” in a non-compliant magazine case.

In summary, buying non-compliant magazines out-of-state and bringing them into California—even just one or two—is an incredibly stupid idea until the pending appellate battle is settled. I say this because the vast majority of “assault weapon” cases originate in one of two ways: otherwise law abiding citizen, who thinks, “no one will ever know” 1) has a house fire, the FD finds the burned up guns, and the cops realize they are non-compliant; or 2) goes through a divorce/breakup and his ex tells the police he has “machine guns.”

[disclaimer: this is not legal advice]

 

[DBilleb]

I am weighing in because there are a number of inaccurate statements about the law in this thread.

For those who don’t know, I am a licensed California attorney and exclusively practice criminal defense.

California’s statutory framework for magazines has several components.

First, manufacturing, importation (even just one), sales/distribution (including giving away) non-compliant magazines is a “wobbler,” meaning it can be charged as a felony or misdemeanor. If charge as a felony, the sentence is 16 months, 2 years, or 3 years (followed by 6 to 36 months on post release community supervision, which you can consider as parole for our purposes). As such, the statute of limitations is 3 years, whether charged as a felony or misdemeanor. A felony conviction results in a loss of firearms rights for life. The maximum sentence for this misdemeanor in 364 days and 12 months of probation (if anything less than the max sentence is imposed).

Second, mere possession of a non-compliant magazine is a “wobblette,” meaning it can be charged as a misdemeanor. The maximum sentence for this misdemeanor in 364 days and 12 months of probation (if anything less than the max sentence is imposed). The punishment for this infraction is a $100 fine per non-compliant magazine. A conviction for this misdemeanor (or any infraction) does not result in loss of firearms rights; but, would almost certainly result in the loss of ones CCW and, probably, the ability to get one in the foreseeable future.

Third, there is the provision for seized non-compliant magazines to be seized as a nuisance.

There was a California DOJ opinion memo circulated to the DAs of all 58 counties in California advising them to not enforce the possession component of magazine statutes following Freedom Week.

In my practice, I have not personally seen anyone charge with possession of a non-compliant magazine since then. This includes cases with the trifecta of no-no’s (prohibited person, stolen firearm, loaded and concealed). That said, if the police and/or DA believed someone is illegally manufacturing, importing and/or distributing non-compliant magazines, I would not be supposed to see them charged. Whether or not those charges would stick is another question.

If a person were charged, the burden of proof beyond a reasonable doubt would absolutely be on the People. However, that burden could be met in numerous ways, e.g., sales records, bank/financial records, social media/forum posts, post-Freedom Week manufacture dates, etc. A person with a stockpile of non-compliant magazines would likely need to show a jury that they plausibly possessed that stockpile for personal use. (In drug sales cases, we call this the “Costco defense.”) This generally requires running an affirmative at trial, meaning calling a defense expert to explain “patterns of use” (in drug sales cases) or, I guess, “patterns of possession,” in a non-compliant magazine case.

In summary, buy magazines out-of-state and bringing them into California—even just one or two—is an incredible stupid idea until the pending appellate battle is settled. I say this because the vast majority of “assault weapon” cases originate in one of two ways: otherwise law abiding citizen, who thinks, “no one will ever know” 1) has a house fire, the FD finds the burned up guns, and the cops realize they are non-compliant; or 2) goes through a divorce/breakup and their ex tell the police.

[disclaimer: this is not legal advice]

Very good explanation and my understanding on the difference between possession vs manufacturing / selling etc.

Thank you

-dale

 

[Gawernator]

Good thing our mags were all acquired during freedom week

 

[jkcerda]

I am weighing in because there are a number of inaccurate statements about the law in this thread.

For those who don’t know, I am a licensed California attorney and exclusively practice criminal defense.

California’s statutory framework for magazines has several components.

First, manufacturing, importation (even just one), sales/distribution (including giving away) non-compliant magazines is a “wobbler,” meaning it can be charged as a felony or misdemeanor. If charge as a felony, the sentence is 16 months, 2 years, or 3 years (followed by 6 to 36 months on post release community supervision, which you can consider as parole for our purposes). As such, the statute of limitations is 3 years, whether charged as a felony or misdemeanor. A felony conviction results in a loss of firearms rights for life. The maximum sentence for this misdemeanor in 364 days and 12 months of probation (if anything less than the max sentence is imposed).

Second, mere possession of a non-compliant magazine is a “wobblette,” meaning it can be charged as a misdemeanor. The maximum sentence for this misdemeanor in 364 days and 12 months of probation (if anything less than the max sentence is imposed). The punishment for this infraction is a $100 fine per non-compliant magazine. A conviction for this misdemeanor (or any infraction) does not result in loss of firearms rights; but, would almost certainly result in the loss of ones CCW and, probably, the ability to get one in the foreseeable future.

Third, there is the provision for seized non-compliant magazines to be seized as a nuisance.

There was a California DOJ opinion memo circulated to the DAs of all 58 counties in California advising them to not enforce the possession component of magazine statutes following Freedom Week.

In my practice, I have not personally seen anyone charge with possession of a non-compliant magazine since then. This includes cases with the trifecta of no-no’s (prohibited person, stolen firearm, loaded and concealed). That said, if the police and/or DA believed someone is illegally manufacturing, importing and/or distributing non-compliant magazines, I would not be supposed to see them charged. Whether or not those charges would stick is another question.

If a person were charged, the burden of proof beyond a reasonable doubt would absolutely be on the People. However, that burden could be met in numerous ways, e.g., sales records, bank/financial records, social media/forum posts, post-Freedom Week manufacture dates, etc. A person with a stockpile of non-compliant magazines would likely need to show a jury that they plausibly possessed that stockpile for personal use. (In drug sales cases, we call this the “Costco defense.”) This generally requires running an affirmative at trial, meaning calling a defense expert to explain “patterns of use” (in drug sales cases) or, I guess, “patterns of possession,” in a non-compliant magazine case.

In summary, buy magazines out-of-state and bringing them into California—even just one or two—is an incredible stupid idea until the pending appellate battle is settled. I say this because the vast majority of “assault weapon” cases originate in one of two ways: otherwise law abiding citizen, who thinks, “no one will ever know” 1) has a house fire, the FD finds the burned up guns, and the cops realize they are non-compliant; or 2) goes through a divorce/breakup and their ex tell the police.

[disclaimer: this is not legal advice]

ISN'T the statute of limitations burden of proof on the state?

 

[jkcerda]

Good thing our mags were all acquired during freedom week

got mags for everything on my wish list even if I did not have the gun, somewhere there are standard capacity mags for a CZ that I am yet to buy.

 

[Gawernator]

ISN'T the statute of limitations burden of proof on the state?

Yes.

 

[dvoncock]

ISN'T the statute of limitations burden of proof on the state?

Yes, no, kinda.

Statute of limitations can be asserted as an affirmative defense at trial. However, judges will not instruct juries about an affirmative defense unless a defendant introduces sufficient evidence of facts supporting the possible existence of a specific affirmative defense in that specific case.

In other words, asserting any affirmative defense shifts the burden onto a defendant inasmuch as he/she otherwise never has to prove anything. If that burden is met, then the government must prove beyond a reasonable doubt that a defendant’s affirmative defense is not true.

Running an affirmative defense at trial can be very risky because it, essentially, means the defense tells the jury, “yes, I did the thing, but that doesn’t matter” because of the statute of limitations, self-defense, entrapment, etc. This can backfire if the judge refuses to instruct the jury on your affirmative defense. That happens sometime in murder and/or domestic violence cases when a defense-hostile judge refuses to instruct on self-defense. But I can definitely imagine a scenario where an anti-gun bench officer would refuse to instruct on statute of limitations in a hypothetical magazine importation trial.

In my practice, I have always attacked statute of limitations violations (which happen occasionally) via pretrial motion to dismiss.

 

[jkcerda]

If the GOVTust prove beyond reasonable doubt when it comes to statute of limitations then the GOVT is f’ked unless you are caught coming home from a free state while still packaged and a dated receipt.
No receipt survives the passing of time as they fade and cash is still king.

 

[dvoncock]

If the GOVTust prove beyond reasonable doubt when it comes to statute of limitations then the GOVT is f’ked unless you are caught coming home from a free state while still packaged and a dated receipt.
No receipt survives the passing of time as they fade and cash is still king.

That presumes law enforcement doesn’t know how to investigate and obtain corroborating evidence.

 

[jkcerda]

That presumes law enforcement doesn’t know how to investigate and obtain corroborating evidence.

Takes plenty of resources for that and they won’t waste it on a simple case.

 

[dvoncock]

Takes plenty of resources for that and they won’t waste it on a simple case.

I betcha prison Lois thought that too.

 

[Hit Factor]

I betcha prison Lois thought that too.

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