By Dana M. Grimes, Esq.
Criminal Defense Lawyer, Grimes and Warwick, San Diego
Well-meaning members of the NRA find themselves at the wrong end of the criminal justice system for the first time in their lives when they travel here from a state with liberal gun laws.
In fact, many of the people that we see in our office on firearm offenses are charged not so much with using their guns as with forgetting about them. They are typically law-abiding members of mainstream society who have left a gun in their car, backpack or suitcase. Some of these people come from other states where the firearms laws are not as strict.
The Supreme Court decision D.C. v. Heller does not change the fact that California laws restricting ownership and use of firearms are among the strictest in the country. The laws of most other states are so much more liberal that professional athletic teams often give warnings on California firearms laws in their education of athletes drafted from out-of-state universities. [Note: On June 26, 2008, by a 5-to-4 decision, the Supreme Court in D.C. v. Heller upheld the first federal appeals court ruling ever to void a law on Second Amendment grounds. Justice Scalia, writing for the majority, stated, “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”]
Airport Security Has No Sense of Humor
It is a common event for the TSA security agents at Lindberg Field to see the image of a weapon in carry on luggage passing through the X-ray machine. Usually, when they ask the owner of the luggage, “Did you know that you had a .45 automatic in your bag?” The response is, “Oh S**t, I forgot that was in there!” We have seen this happen to very responsible citizens, including off-duty airline pilots traveling as passengers.
Airport security also frequently detects many of the strange and fun weapons detailed in Penal Code, including throwing stars, lipstick knives, nunchakus, brass knuckles and batons. You can buy these novelty weapons in Tijuana, and if you are a male between the ages of 16 and 28 you may be tempted to do so, but don’t! It is not a defense that you lack the specific intent to don a ninja suit and cast throwing stars at your enemies. Mere possession of one of these weapons is a misdemeanor.
Assault Rifles:
A great deal of confusion has surrounded the assault rifle law since the passage of Penal Code § 12276 and the subsequent passage of Penal Code § 12276.1. California laws on this topic are very strict and so confusing that law enforcement officers are not always able to tell which semi-automatic center-fire weapons are legal in this state and which are illegal. A major point of confusion with California law exists due to a firearm being classified as a conventional firearm in one configuration and an assault weapon in another, the difference being the addition or subtraction of small parts or accessory items. Adding to the confusion, there are often no functional differences between the legal conventional rifle and the illegal assault rifle. The caliber, ammunition type, velocity, distance, and energy characteristics of two rifles can be identical. One will qualify as legal while the other will be illegal for a very technical reason that its owner may not know about.
The majority of illegal assault rifles have comparable legal counterparts which are sold openly in California. Most common illegal assault rifles, including the AK47 and AR15, can be purchased off the rack in many states. Although federal law does not prohibit their possession and use, it is a violation of federal law for a citizen of California to go to another state to buy an AK47 or AR15 and bring it back home, under 18 U.S.C. § 922(a)(3). The U.S. Attorney can and will prosecute these cases. Undercover ATF attend Arizona gun shows and make note of the California license plates in the parking lot. They will then track down the California resident’s address, knock on the door and ask to come in and have a look at the guns. In one case that we handled, ATF agents tracked one of the suspects from Yuma to La Jolla. The agents obtained a search warrant for the home in La Jolla, and seized assault weapons and other firearms. The owner of the home in La Jolla, a respected businessman with no prior criminal record, was indicted on federal firearms charges.
In June of 2016, an American born Muslim who professed support of jihadist ideology purchased an AR 15 (and other weapons), and used them to massacre 49 innocent people in a night club in Orlando, Florida. Dozens of other people were severely injured. This incident will renew the debate on assault weapons. A close reading of the cases such as Heller and McDonald, as well as influential Circuit Court of Appeal cases such as Peruta v. San Diego (discussed below), indicate that the Supreme Court is probably not going to find legislation severely restricting the sale and possession of assault weapons unconstitutional. This will leave the assault weapon issue up to the legislatures of the individual states. If the US Congress once again passes laws restricting assault weapons (as was once the case), the Supreme Court is not likely to find it unconstitutional. On 6/19/2016, the Supreme Court refused to hear a Second Amendment challenge to Connecticut law which bans many assault rifles. This law was passed in 2013, after an assault rifle was used in the murder of children at the Sandy Hook elementary school in Connecticut. The United States Court of Appeals for the Second Circuit upheld this Connecticut law banning semiautomatic assault weapons. The Supreme Court declined to take the petition seeking review of this decision by the Second Circuit.
If They Find You With a Smoking Gun
While possession of a gun can lead to serious penalties, actually using a gun illegally results in extremely harsh firearms sentencing enhancements. For example, if you rob someone while you are armed with a knife, ax or chainsaw, you will face three, four or six years in prison for the underlying robbery, plus an additional year for the use of a dangerous weapon. Under a sentencing enhancement found in Penal Code § 12022.53, if you commit that same robbery with a gun, you will face an additional and consecutive ten years in prison – even if the firearm is inoperable or unloaded and therefore poses no real threat. If, during that same robbery, the firearm is in fact loaded and you shoot a round into the floor for dramatic effect, the enhancement is an additional and consecutive twenty years in prison. This is all assuming that no one gets hurt. The moral of the story is you are better off committing most crimes wielding a samurai sword than by carrying even an unloaded gun.
Do You Really Want to Shoot a Burglar?
Many firearms enthusiasts would answer this question in the affirmative and have even given considerable thought to where they would aim. After all, the core holding in D.C. v. Heller, supra,which gun advocates celebrate, is that the Second Amendment is an individual right of self-defense. Nonetheless, in California, strict gun laws apply to the storage of a gun in your home as well as your use of a gun to defend yourself, even against a legitimate threat such as a burglar or robber.
Penal Code § 198.5 states that a person using deadly force within his residence shall be presumed to have held a reasonable fear of imminent peril where an intruder forcibly enters the home, but self defense law is complex. Suffice it to say that unless you are resisting a forcible and atrocious crime, you cannot use deadly force to protect yourself, inside or outside of your home. You probably will not be prosecuted for shooting a burglar who is climbing in your window, especially if he turns out to be a three-striker as opposed to a neighbor’s misbehaving teenager. On the other hand, you cannot shoot a burglar who is climbing out of your window with your TV. And if the burglar pulls a knife on you when you try to wrestle the TV out of his hands, can you shoot him then? There is a jury instruction in California, we refer to as the John Wayne instruction, which states you do not have a duty to retreat and call the police if you are threatened with violence – you can stand your ground and shoot. The problem with the jury instruction is that if you need it, you are on trial.
There are few topics upon which Americans have more polarized opinions than firearms. For gun advocates, the Heller decision is a victory of historic and monumental proportions
Open Carry
Some Second Amendment supporters are asserting their rights to carrying handguns in holsters in public places. Our advice on this is simple – if you are in California, even if the handgun is empty, don’t carry or transport it in public if it is not empty and in a locked container. California Penal Code § 26350 went into effect on 1/1/2012, making it illegal to carry an exposed firearm in a public place, even if it is unloaded. The laws on open carry vary from state to state, and this is an issue that the Supreme Court may take. A federal judge in Washington DC has ruled that after Heller and McDonald, a broad restriction on carrying firearms in public is not constitutional. Peruta v. San Diego specifically declined to rule on the legality of open carry, when the Ninth Circuit held issuing concealed weapons permits only to those who can show good cause is not a violation of the Second Amendment.
A good source of information on the complexities of California gun laws is the website of the California Attorney General – www.ag.ca.gov.
In May of 2016, the California Supreme Court decided People v. Wade. The ruling upheld Wade’s conviction of Penal Code § 25850, which prohibits carrying a loaded firearm on the person or in a vehicle when in a public place. In this case, the owner of the loaded firearm was wearing a backpack that contained the loaded firearm.
McDonald v. Chicago
In another 5-4 decision supported by the conservative justices (Justice Kennedy was the swing vote, as is always the case in 5-4 decisions in recent years), the Supreme Court ruled that an ordinance in Chicago banning handgun possession was a violation of the Second Amendment rights, that the court had declared in District of Columbia v Heller. In an interesting historical analysis in the majority opinion, written by Justice Alito, the majority of the court emphasized the importance of the right of citizens to arm themselves, in their own homes, for the purpose of self defense, under the Second Amendment.
The second amendment reads “a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed”
Several cases have discussed McDonald v. Chicago. In the Vongxay case, 594 F.3d 1111, the court held that Title 18 U.S.C. 922(g)(1), criminalizing the possession of firearms by felons is constitutional (prohibited persons actually include categories in addition to felons). In United States v. Potter (2011), the Ninth Circuit Court of Appeals rejected the argument of Appellant that his conviction for Title 18 U.S.C. 924(c)(1)(a), possession of a firearm in furtherance of drug trafficking, violated his Second Amendment rights because the jury was not instructed that they must find that the possession of the firearm in his home was not also for the purpose of protecting himself, his family, and his property.
PERUTA v. SAN DIEGO On June 9, 2016, the 9th Circuit Court of Appeals decided Peruta v. County of San Diego. In a 7-4 en banc decision, the court overruled a previous 2-1 decision of a panel of that court which had concluded California’s broad limits on both open and concealed carry of firearms “impermissibly infringe on the Second Amendment right to bear arms in lawful self defense.” This is a landmark decision for the federal 9th Circuit, particularly for California, but it will have influence on many other courts throughout the country. Under Peruta, Sheriffs and Police Chiefs in California who are responsible for reviewing applications for CCWs can deny an application of an otherwise eligible applicant for failure to make a showing of “good cause” for the CCW permit. This could result in a much larger number of CCWs being issued, and a much larger number of armed citizens walking around and driving around in California. However, the majority decision in Peruta, written by Justice Fletcher, makes it clear that McDonald v. Chicago and District of Columbia v. Heller do not prohibit legislation prohibiting firearm possession under many circumstances beyond the facts of those two cases. California law provides that the Sheriff of a county or Police Chief may issue a license to carry a concealed weapon, upon proof of good moral character and good cause. The interpretation of good cause varies considerably within the state. In some counties, especially rural ones, self defense is good cause. Applicants who pass the background check are likely to be given a concealed weapons permit. Other counties, including San Francisco, Los Angeles, and San Diego, are extremely restrictive.
The facts of Peruta only involved concealed weapons. In ruling that restrictions on possession of concealed weapons do not violate the Second Amendment, the court specifically did not rule on the legality of restrictions on open carry of firearms. Just as the Supreme Court gave interesting historical background to weapons use in Western Civilization in Heller v. District of Columbia and McDonald v. Chicago, the Peruta court gives the history of laws relating to concealed weapons and open carry of weapons. The court included references to a statute on gun ownership passed by Parliament in 1541, under Henry VIII, and a proclamation on firearms issued by his daughter, Elizabeth I, in 1594. Elizabeth prohibited both open carry and concealed weapons, including daggers as well as firearms.
In June of 2017, the US Supreme Court denied review of Peruta. Justice Thomas wrote a dissent, stating “the Court’s decision to deny certiorari in this case reflects a distressing trend: The treatment of the Second Amendment as a disfavored right”
PLAXICO BURRESS CASE
There are extreme variations in firearms laws in other states. Arizona, Alaska, and Vermont allow people 21 years old or over to carry a loaded and concealed firearm, with few limitations. New York is at the other end of the spectrum. Plaxico Burress, the New York Giants wide receiver who was a star in their Super Bowl victory over the New England Patriots, was sentenced to two years in prison, in September of 2009, on a firearms violation. The case arose from an incident in which he accidentally shot himself in the thigh in a New York night club, with a concealed pistol which had not been registered in New York. He served his sentence and resumed his football career.
Although California law is much more restrictive than federal law in some regards, when the defendant has lost his Second Amendment rights (usually for a felony conviction or conviction of a number of misdemeanor violations involving violence), both federal law and current policies of the office of the United States Attorney in San Diego are much harsher, and much more likely to result both in a new felony conviction as well as significant custody. The spouse of a felon also is at jeopardy for prosecution for aiding and abetting a felon in possession, so the best rule is to not have any firearm at the home of a felon, not even in a gun safe in the separate closet of the spouse.
FELONY POSSESSION OF FIREARM IN YOUR OWN HOME- Penal Code § 12035 makes it a felony offense to leave a loaded firearm within a house where a child (anyone under 18) is likely to have access to the firearm, and a child then uses the firearm in a way that causes death or serious injury to himself or another person. In October 2012, Kevin Brennick was arraigned on those charges in San Diego Superior Court. The DA filed these charges after a tragic incident on November 4, 2011, when Brennick’s 17 year-old son and two other 17 year-olds were at the Brennick residence smoking marijuana, and one of the boys fatally shot himself in the forehead, either intentionally or accidentally. On February 19, 2013, Brennick pled guilty to a misdemeanor violation and was placed on probation.
CRIMINAL BACKGROUND CHECK IN CALIFORNIA- You can request a background check of yourself from the California DOJ as well as from the Sheriff in your county. You can also request that they specifically check your eligibility to possess firearms from the California Department of Justice. On their web site, you can download a Personal Firearms Eligibility Check Application (Penal Code § 30105), and then fill it out and send it back with a check for $20.
The California Court of Appeals for the Third Appellate District decided People v. Kenneth Brown in June 2014. They declined the apply to Second Amendment rights protected under McDonald v. Chicago (the right to possess a handgun in a person’s home) to a short barreled shotgun which was illegal by one half inch. Appellant was sentenced to prison for possessing a shot gun which had a barrel one quarter inch longer than the minimum length of 18 inches, but the overall length of the shotgun was 25 and a half inches, too short by one half inch. It did not help this defendant that he had made menacing comments to a CHP officer and a DMV employee, and the trial court and appellate court both viewed him as a danger. Still, even law abiding citizens need to be careful that their firearms are not even a little bit out of compliance with the statutes. The statute violated here was the former Penal Code section 12020. The Deadly Weapons Re-codification Act of 2010 became effective on 1/1/2012. It re-codified dozens of already existing weapons violations, without making substantive changes to California gun laws.
In July of 2016, the Ninth Circuit court of appeals decided Wilson v. Lynch. Ms. Lynch obtained a registry card in Nevada, which under the laws of that state made it lawful for her to use medical marijuana. The court ruled that she could not purchase a firearm. Under federal law, persons who use medical marijuana are illegal drug users, and prohibited from possessing or owning firearms or ammunition under 21 U.S.C. § 922
NEW CALIFORNIA GUN LAWS IN 2017- California continues to have firearms laws that are among the most restrictive in the nation. Of those laws taking effect in 2017, several could have have an impact on a lot of people. Penal Code section 27545 was amended to require that people who do not hold a dealer’s license may not loan firearms to others (this code section previously applied to sales or transfers of firearms). Penal Code section 27880 makes an exception allowing loans of family members under certain circumstances. New restrictions on magazines with capacities of over 10 rounds will force a lot of gun owners to get rid of high capacity magazines and replace them with magazines holding 10 rounds or less, which are now available for virtually any firearm that previously utilize high capacity magazines.
A few days before the new 10 shot magazine law was set to go into effect in California, Federal Court Judge Roger Benitez in San Diego granted an injunction blocking the implementation of this law. Judge Benitez wrote a strongly worded 66 page ruling, stating that the law would violate Second Amendment rights of gun owners. Whether or not the 10 shot magazine law will go into effect will have to be decided after further litigation.
The California Legislature continues to tinker with laws regarding assault weapons, while firearm manufacturers and dealers try to stay one step ahead of the changes in these complicated laws. In some states, assault weapons are widely available to citizens who are not prohibited persons (criminal convictions, restraining orders, etc). In California, gun owners who want to have assault weapons do so at some risk of arrest, even if they are trying to comply with California law. There are plenty of other firearms available for all of your needs, from self defense to hunting and target practice, and it is safest not to have assault weapons in California.
TASK FORCE ENFORCING CALIFORNIA FIREARM LAWS- The California DOJ has recently began increased enforcement against persons on the prohibited list. As soon as a few days after an arraignment in some felony cases and even misdemeanor cases (such as Domestic Violence), DOJ agents will show up at the home of the defendant. They will say that don’t have proof that the defendant has turned in his guns after his recent arrest. If the prohibited person allows the agents in, and shows them guns or ammo, the agents don’t just take those items. They arrest the prohibited person and book him in jail, for illegal possession of firearms or ammunition.
UPDATE-On 11/21/2017, the US Supreme Court issued orders denying review for two significant cases involving gun rights. Kelly v. Hogan was a challenge to Maryland’s ban on certain semi automatic rifles as well as large capacity (beyond 10 rounds) magazines. Norman v. Florida was a challenge to a ban on open carry. This may indicate a willingness by the court to allow states to impose restrictions on ownership and use of firearms, and an unwillingness by the court to expand the Second Amendment protection of Columbia v. Heller and McDonald v. Chicago.