Freedom week question - manufacturing

[OrangeMFdon]

So. Ive search the web for days and cant find a definitive answer so here goes. One of my inlaws had a bunch of magazine parts kits from way back in the day. During freedom week he put them all together. Now, I was under the impression that the only thing that was legal during freedom week was the import and purchase/sale, NOT manufacturing. He says the whole mag law was suspended during that week. I couldn't find anything either way. I told him better safe than sorry and to just take them back apart but he's stubborn. Can anyone point me in the right direction for the correct answer? Thanks.

 

[Dvrjon]

In his original Mar 29, 2019, Decision (Page 85, Lines 16-19), Judge Benitez declared all of CA Pen 32310 unconstitutional. That began Freedom Week.

Accordingly, based upon the law and the evidence, upon which there is no genuine issue, and for the reasons stated in this opinion, Plaintiffs’ motion for summary judgment is granted. California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.

Then, upon a request by CA AG, on April 4, 2019, Judge Benitez amended (Page 6, lines 9-20) his order to reinstate the prohibitions on importation, manufacture, etc. while retaining the injunction on the sections of statute prohibiting possession/use and requiring removal/destruction of LCMs*. That ended Freedom Week.

THEREFORE, IT IS HEREBY ORDERED that the Judgment is stayed in part pending final resolution of the appeal from the Judgment. The permanent injunction enjoining enforcement of California Penal Code § 32310 (a) and (b) is hereby stayed, effective 5:00 p.m., Friday, April 5, 2019. {This means prohibitions against importing, manufacturing, receiving, etc., could again be enforced.*}
IT IS HEREBY FURTHER ORDERED that the preliminary injunction issued on June 29, 2017, enjoining enforcement of California Penal Code § 32310 (c) and (d) shall remain in effect. {This means we could keep and use the LCMs.*}
IT IS HEREBY FURTHER ORDERED that the permanent injunction enjoining enforcement of California Penal Code § 32310 (a) and (b) shall remain ineffect for those persons and business entities who have manufactured, imported,sold, or bought magazines able to hold more than 10 rounds between the entry of this Court’s injunction on March 29, 2019 and 5:00 p.m., Friday, April 5, 2019. {This provided safe haven for those who used the Freedom Week window to obtain LCMs.*}

* For specifics, please see: CA PEN 32310 Full Text.

 

[OrangeMFdon]

In his original Mar 29, 2019, Decision (Page 85, Lines 16-19), Judge Benitez declared all of CA Pen 32310 unconstitutional. That began Freedom Week.

Then, upon a request by CA AG, on April 4, 2019, Judge Benitez amended (Page 6, lines 9-20) his order to reinstate the prohibitions on importation, manufacture, etc. while retaining the injunction on the sections of statute prohibiting possession/use and requiring removal/destruction of LCMs*. That ended Freedom Week.

* For specifics, please see: CA PEN 32310 Full Text.

Well it looks like he's right then. Follow up question. I heard something about std cap mags being declared a "nuisance" and even though he technically is legally in possession a LEO can still confiscate and destroy them. Is that true, snd is anyone aware of that having actually happened?

 

[Dvrjon]

Well it looks like he's right then. Follow up question. I heard something about std cap mags being declared a "nuisance" and even though he technically is legally in possession a LEO can still confiscate and destroy them. Is that true, snd is anyone aware of that having actually happened?

CA PEN 18010(a)(19). https://law.justia.com/codes/california/code-pen/part-6/title-2/division-3/section-18010/

18010. (a) The Attorney General, a district attorney, or a city attorney may bring an action to enjoin the manufacture of, importation of, keeping for sale of, offering or exposing for sale, giving, lending, or possession of, any item that constitutes a nuisance under any of the following provisions:
[…]
(19) Section 32390, relating to a large-capacity magazine.
[…]
(b) The weapons described in subdivision (a) shall be subject to confiscation and summary destruction whenever found within the state.

Arguably, since the possession of LCMs is protected under the Court’s injunction, this provision would be difficult to enforce. But since it is not specified in the injunction, it could still be enforced.

 

[treelogger]

Freedom week no longer matters. The only thing that matters is that the crime that may or may not have occurred is now more than 3 years ago (freedom week was about 4-1/2 years if I remember right), therefore it can't be prosecuted any longer.

Yes, any large-capacity magazine that LE encounters can be confiscated and destroyed. Note that this doesn't mean that possessing them is necessarily illegal, only that the magazines are legally defined a nuisance and can be destroyed.

And with the recent 9th circuit case, the possession of large-capacity magazines may already be illegal (or not, I haven't read their decision yet), or may become illegal soon (within weeks).

 

[RickD427]

Freedom week no longer matters. The only thing that matters is that the crime that may or may not have occurred is now more than 3 years ago (freedom week was about 4-1/2 years if I remember right), therefore it can't be prosecuted any longer.

Yes, any large-capacity magazine that LE encounters can be confiscated and destroyed. Note that this doesn't mean that possessing them is necessarily illegal, only that the magazines are legally defined a nuisance and can be destroyed.

And with the recent 9th circuit case, the possession of large-capacity magazines may already be illegal (or not, I haven't read their decision yet), or may become illegal soon (within weeks).

Mr. Treelogger,

You are quite correct that there is no remaining legal significance to "Freedom Week." "Freedom Week" consisted of that brief period time following the District Court finding that the entirety of Penal Code section 32310 was unconstitutional, and the appeal being filed in the Ninth Circuit which stayed that finding. To answer Mr. "OrangeMFdon's" point, that finding included the clause of PC 32310 that prohibited manufacture.

But the simple possession of large-capacity magazines is, and has been, illegal apart from the brief period of "Freedom Week". Except for Judge Benetiz' initial ruling, which was quickly stayed by the appeal, nothing has occurred in the Duncan case that made simple possession legal. All that has occurred was that the District Court enjoined enforcement of the possession clause of PC 32310. That's not the same as making possession legal.

It remains to be seen if enforcement will continue to remain enjoined in the event that Ms. Duncan seeks a Supreme Court review.

 

[treelogger]

It remains to be seen if enforcement will continue to remain enjoined

I haven't read the recent decision by the 9th circuit in the case, and I don't know what the status of the possession clause in PC 32310(c) is right now. To explain for others: For a long time (about 4 or 5 years), mere possession of a magazine was technically illegal, but that couldn't be enforced because Judge Benitez had issued an injunction, as part of his decision that all of 32310(c) is unconstitutional. But the bulk of his decision has now been overruled by the 9th circuit, in an en banc ruling on appeal. That injunction was treated separately in the appeals process. What I'm not clear on is whether the en banc ruling does to 32310(c). And even if the en banc ruling says that the entirety of 32310 is constitutional and in force, whether that is being stayed a few weeks pending further appeals.

in the event that Ms. Duncan seeks a Supreme Court review.

That's a really fascinating question. In light of recent Supreme Court decisions (in particular today's ghost gun case, and Rahimi), it would be smart to not appeal, since the court might turn this into an opportunity to give a more fundamental decision that further curtails gun rights. On the other hand, we all know that Ms. Duncan and the other individual plaintiffs are merely straw puppets, and this is really a CRPA + Michel and Associates versus the CA DoJ case. And both the CRPA and its attorneys are likely to benefit from losing at the Supreme Court, as the inevitable anger of their donors is good for fund raising (and Michel gets to bill many hours). But even if they appeal, it is statistically likely that the court will not grant cert, so we will probably know the final outcome in several months.

 

[RickD427]

I haven't fully read the decision. It's 147 pages. But after scanning the critical content, the ball is now back in Judge Benitez' court, and with instructions for him to enter judgement in favor of Mr. Bonta. That doesn't leave him much "wiggle room."

The point to closely watch is what he will do with the order enjoining enforcement of the possession clause, and the surrender/removal clause of PC 32310. Without the pendency of any legal question concerning those statutes, there really isn't a basis for the injunction to remain in effect.

It is important to make a couple of observations about the potential for a Supreme Court review. You're quite correct that the odds are not good. The Court only grants cert in 1-3% of the cases were a review is sought. But it's also important to note not all cases arrive before the court on an equal footing. Court observers often note that the Court seems to have an affinity for certain cases, and that individual justices each have a passion to visit particular areas of the law where they desire to leave their mark. But in looking for the "Right Kind" of case, they seem to carefully pick cases that frame the issue clearly, and that have an absence of potentially frustrating collateral issues. A case that presents this to the Court has a much better chance of receiving a grant of certiorari.

The court appears to be evenly splint on firearms cases. NYSRPA was one of those cases that fell nicely in line with with Justice Thomas' view, but in reading the decision, it was really obvious that he had to tailor it (a lot) to get a majority vote.

This case may pop up on the Justice's radar scope for a coupe of issues, the 2nd Amendment rights will get the same traction as did NYSRPA, but this one is notable for Judge Graber's response that they were "close enough" to the NYSRPA that their opinion really falls in line with NYSRPA, even if it doesn't. The federal courts really value the concept of precedent and guidance, and to see a judge openly challenge that guidance invites the correction of a superior court. This case is gonna be inviting of certiorari for two very different reasons.

That same point also applies to Judge Benitez. We'll have to see how he brings his injunction into line with the decision.

 

[1911-CV]

To what extent do you think the 9ths' Opinion describing the statute as consistent with historical tradition of protecting innocent persons impact the Supreme's consideration of an appeal?

...
Second, even assuming that the text of the Second
Amendment encompasses the possession of an optional
accessory like a large-capacity magazine, California’s law
falls neatly within the Nation’s traditions of protecting
innocent persons by prohibiting especially dangerous uses of
weapons and by regulating components necessary to the
firing of a firearm. Plaintiffs understate the extent to which
our forebears regulated firearms to promote public safety.
California’s law is relevantly similar to such historical
regulations in both “how” and “why” it burdens the right to
armed self-defense. Like those historical laws, California’s
law restricts an especially dangerous feature of semi
automatic firearms—the ability to use a large-capacity
magazine—while allowing all other uses of those firearms.
So far as California’s law is concerned, persons may own as
many bullets, magazines, and firearms as they desire; may
fire as many rounds as they like; and may carry their bullets,
magazines, and firearms wherever doing so is permissible.
The only effect of California’s law on armed self-defense is
the limitation that a person may fire no more than ten rounds
without pausing to reload, something rarely done in self
defense. The justification for California’s law—to protect
innocent persons from infrequent but devastating events—is
also relevantly similar to the justifications for the historical
laws. California’s law is not a precise match to the historical
laws, “but it does not need to be.” Rahimi, 602 U.S. at 698.
By prohibiting only an especially dangerous use of a modern
weapon, the law “comport with the principles underlying
the Second Amendment.” Id. at 692. We reverse the district
court’s contrary conclusion and remand with the instruction
to enter judgment in favor of Defendant Rob Bonta, Attorney
General of the State of California.

 

[Dvrjon]

I haven't read the recent decision by the 9th circuit in the case, and I don't know what the status of the possession clause in PC 32310(c) is right now. To explain for others: For a long time (about 4 or 5 years), mere possession of a magazine was technically illegal, but that couldn't be enforced because Judge Benitez had issued an injunction, as part of his decision that all of 32310(c) is unconstitutional. But the bulk of his decision has now been overruled by the 9th circuit, in an en banc ruling on appeal. That injunction was treated separately in the appeals process. What I'm not clear on is whether the en banc ruling does to 32310(c). And even if the en banc ruling says that the entirety of 32310 is constitutional and in force, whether that is being stayed a few weeks pending further appeals.

The first paragragh of the Decision pretty well sums it up:

The en banc court held that a California law banning the possession of large-capacity magazines comports with the Second Amendment, reversed the district court’s contrary conclusion, and remanded with the instruction to enter judgment in favor of the Attorney General of the State ofCalifornia.

Page 60:

REVERSED AND REMANDED with the instructionto enter judgment in favor of Defendant.

We now await the Order from the Court finalizing this issue.

However, we have to remember that this is the second time this case has been brought to CA 9 level. During "Duncan1", Judge Benitez ruled against the entirety of Section 32310. This caught the State by surprise, and it took a week for them to petition Benitez to grant a partial stay of his order. His stay remained on the prohibition of possession and the requirement to dispossess LCMs and precluded enforcement of them. Duncan 1 then won at CA 9 Merits Panel, but lost at en banc. An appeal to SCOTUS was filed asking for certiorari, but was remanded for review under the new Bruen standards. That sent the case back to the District Court and (again) Judge Benitez.

In Duncan 2 (the current case), Benitez again found the statute unconstitutional under Bruen, issued his Decision and allowed a short stay for appeals to be filed. CA 9 granted an emergency stay pending appeal.

The Attorney General seeks to stay “all portions of the order except those regarding Sections 32310(c) and (d), which relate to large-capacity magazines that were acquired and possessed lawfully prior to the district court’s order granting a permanent injunction.”

And, the Freedom Week stay ended with the new terms of "acquired and possessed lawfully" now in place. We have been operating under that CA 9 stay since the case made its way back to CA 9.

CRPA has stated they will appeal to SCOTUS, as they had Duncan 1 up for certiorari and have now, again, won at the district level under Bruen. They will probably file for an emergency stay of the CA 9 Decision pending appeal to the SCOTUS. This was granted by CA 9 in Duncan 1, and CA 9 has little reason to not do so again.

The odds of SCOTUS taking the case appear higher than most going up for review, as the case has been fully-argued and documented under two separate theories so the record is well-developed. SCOTUS history shows it doesn't like to look at cases which are "young", and this one is well aged.

 

[OrangeMFdon]

Jesus...I appreciate all the responses, and I just read through all of them. I have concluded I have no F'n idea what's what at this point. How could the average Joe be prosecuted for anything related to this in good faith. You need a damn law degree to even sorta wrap you head around it, and even then none of the judges can agree with each other about anything it seems. If only they had been more clear in the 2nd amendment with a line like "shall not be infringed" or something

 

[RickD427]

Jesus...I appreciate all the responses, and I just read through all of them. I have concluded I have no F'n idea what's what at this point. How could the average Joe be prosecuted for anything related to this in good faith. You need a damn law degree to even sorta wrap you head around it, and even then none of the judges can agree with each other about anything it seems. If only they had been more clear in the 2nd amendment with a line like "shall not be infringed" or something

Don't look for any idea of simplicity in a legal system that rewards it participants for delay and detail.

If there is any "Good Thing" in all of this, it's that there have not been any successful prosecutions for violation of PC 32310(c), and only two unsuccessful attempts that I'm aware of. I don't know of anyone that has lost their magazines under PC 32310(d).

I strongly believe that we're going to see this one go back to the Supreme Court, and that the mandate will be stayed. That leaves us exactly where we were last week.

And the game goes on.....

 

[treelogger]

I don't know of anyone that has lost their magazines under PC 32310(d).

Confiscation under the nuisance clause doesn't seem to rare. I regularly hear on various discussion groups (forums, Reddit, ...). But it is mostly when guns are taken into custody be LE (for example during an arrest for other things), and then returned (after the LER process), but WITHOUT any large-capacity magazines. I've not yet heard of someone having their large-capacity magazines confiscated by themselves, without other color.

On the question of whether the Supreme Court will grant cert, and if it does reading the tea leaves of where its decision will fall: Really hard to predict.

 

[treelogger]

How could the average Joe be prosecuted for anything related to this in good faith.

Right now, they can't anyway, because with no ruling from the lower court yet, it is not in force. And once the lower court rules (and we now know it will rule that large-capacity magazines are fully illegal), that ruling will be suspended for a few months, while a Supreme Court appeal is attempted. And once that expires, the news will be all over gun forums. So don't worry too much.

You need a damn law degree to even sorta wrap you head around it,

Nah, just patience in reading long documents.

If only they had been more clear in the 2nd amendment with a line like "shall not be infringed" or something

That part of the sentence is not the problem, it is the rest of it:

• What does "well regulated" mean?
• Who is the militia?
• What is the state? Does it include things like your local school district or dog catcher? How does this interact with the 10th amendment?
• How does the right to guns interact with the security of the state? What if the guns that people keep and bear are a threat to the state?
• What does "free" mean in the context of state?
• Why does the stating of a right even need a justification? The other 9 articles in the bill of rights don't have one. Does the prefatory clause (the militia and free state stuff) restrict or broaden the right?
• And since Heller, most of the questions above have become irrelevant, since in a nutshell, Scalia said that the whole militia stuff is gone.
• Who are the people? Are permanent residents people? Are non-permanent visitors (like tourists) people? Are illegal aliens people? Folks under 18, or between 18 and 21, or in jail, or old and inform?
• What are arms? Is the 2A all about guns, or does it include knives, nunchucks, poisons? How about my bare fists, and trained dogs?
• Is there an upper limit for what can be kept or born? Today that question is often phrased about nuclear weapons; in about 1776, it was more about warships and cannons in private hands. We know that today hand grenades and artillery is not covered by the 2A, but we can't really explain the reasoning behind that.
• What does keep mean? At the time the 2A passed, some localities in Massachusetts only allowed keeping arms if they were locked up in the armory of the local militia; you couldn't have them at home. Would that be OK today?
• What does bear mean? At the time the 2A passed, some localities required all handguns to be handed in to the sheriff when in town, and they were only allowed to be carried outside town.

As you can see, whoever wrote the 2A didn't think it through one bit. In comparison, most other articles of the BoR are quite clear (perhaps with the exception of 5th and 7th, and the 9th is quite the odd bird).

 

[Dvrjon]

On the question of whether the Supreme Court will grant cert, and if it does reading the tea leaves of where its decision will fall: Really hard to predict.

This case seems to have a bit of an edge on other 2A cases being brought in that it doesn't touch the issues of assault weapons or other "3rd rail" 2A subjects.
The issues in Duncan now focus on the application of Bruen on such points as:

1. What is an "accessory" to a firearm and are magazines (or just LCMs) unneccessary accessories.​

2. How should the Bruen guidance be applied to 2A issues as a whole?​

(a) Can lower courts create new "First Step" analyses?​

(b) How broad can an analogous founding statute be to apply?​

(1) Do powder houses meant to keep the town from burning become proof of Founder's ammunition controls?​

(2) Do Prohibitions on "Trap guns" show the Founders' intent to control all weapons?​

The Court could see this as a means of providing interpretative guidance for the application of Bruen without disrupting major elements of firearms control currently on the books. The Ghost Gun and Rahimi cases seem to reflect a caution on the part of the court to move incrementally on these issues, and this would allow them to do so.​

​

The timeline still is long. If CRPA can get the request for Certiorari to the Court rapidly, they may be able to take it into conference this year (before Jun 30 recess). If it's accepted, it could be heard in the next session with a result by Jun 2026. That will be just short of 10 years since Proposition 63 was passed (Nov 2016) and 9 years since the intial court filing action (Jun 2017). Court Time Line.​

​

That length of time in the process may help push it forward.​

 

[treelogger]

The timeline still is long. If CRPA can get the request for Certiorari to the Court rapidly, ...​

I think they have 90 days. But I don't know whether that counts from the circuit's en banc decision, or from when the district issues its final ruling, which could take weeks or months (but is completely preordained). I also don't know who in the district will make that ruling; supposedly Benitez is no longer doing cases (he's quite old, and has made a fool of himself in recent years).

That length of time in the process may help push it forward.​

Or the opposite: the Supreme Court often accepts cases because it sees a particular gap in an area of jurisprudence, and then waits for a good clear case to come by (enough of them float by regularly). And Duncan having a complex history might make them prefer a more recent and "cleaner" case that addresses some of the same issues.

I would also expect the court to take fewer cases in the next few years, as the current administration will probably generate an unusually high workload of politicized cases that the court can't in good conscience turn down.