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Alvin Doe et al. v. Becerra
“Many a mickle makes a muckle.”
For those of you who are familiar with 18th century idioms…. (you have an odd hobby).
Those of you who watched the excellent series, Turn: Washington’s Spies, might have heard George Washington utter this phrase. Basically, a lot of little things make a big thing.
Such is often the case in the cause of freedom.
The California Court of Appeal, Third District, just issued a smack down to the State… specifically the California Department of Justice… in the case of Alvin Doe et al. v. Becerra.
While this case will probably not directly affect the majority of you, it does have potentially further reaching implications.
Those of you who want to read the actual decision can access it here:
Here is what the case boils down to:
California has a rule that says you cannot acquire more than one handgun in a 30-day period of time. There are, however, exemptions to that rule; private party transfers are one such exemption with which many of you may be familiar. One of the other exemptions states that if you have a FFL and a COE (Certificate of Eligibility), you are exempt for the 30-day rule.
So… back in 2014 Mr. Doe (and friends), who happen to have Curio and Relic FFLs, and held valid COEs, asked the DOJ, “Hey… we are exempt from that whole 30-day thing right?”
The DOJ replied by saying, “Ummmm… no… you are not exempt.”
The plaintiffs replied, “Huh?!? We are FFLs!”
“Yes, but you are Curio and Relic FFLs.”
“So, you are only licensed for the collection of curios and relics.”
“Can you point us to the applicable law that you are referencing?”
“I don’t need to. I am the State Attorney General, and I get to make this @#$@ up as I go along!”
Well, the Court of Appeals disagreed with the State Attorney General.
(If you have arrived here from our newsletter, continue reading here…)
One of the two important aspects in this decision involved the following phrase:
In fact, the literal interpretation of the licensed collector exemption, when read in conjunction with the applicable federal law, appears to be that despite the limited utility of the collector’s license during the purchase of a regular handgun, the purchaser remains “licensed” as a collector under federal law. Stated differently, while the license does not apply to a transaction that does not involve a curio or relic, the license is not invalidated by such a transaction. (27 C.F.R.
Basically, once you have a license, you have a license. Even if the underlying transaction does not implicate the license, it does not mean that the license suddenly went away. If there are benefits to being a licensee, they still apply to you.
Second was this little gem:
As to this particular question of statutory interpretation, there is no reason to believe the Bureau of Firearms has ‘a comparative interpretive advantage over the courts.’ (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12)
Boom! Mic drop!
This was the court basically telling the DOJ to cut the crap when it comes to statutory interpretation. Essentially the DOJ had said that since the statutory language was “unambiguous and not open to interpretation,” there was no need to engage in any mandatory Office of Administrative Law procedures. (Administrative law procedures are public processes that allow for the development of administrative procedures that an executive agency uses to enforce statutory law crafted by the Legislature.)
The court disagreed, and basically said that the language is complicated and potentially contradictory…. they blew it when they decided to just move forward and create a policy without going through the proper procedure.
So… does this create any real opportunities for the Subjects of the Crown in California?
Yet, whenever the arbitrary and capricious power of the State is curtailed, we sit back and smile, and raise our glasses in a toast for freedom.
Our Colonel walked into the JAG office, and was met by the anonymous, “Attention on deck!”
All of our conversations ceased, and we rose to attention.
“As you were.”
We all returned to our seats, and watched in silence as the physically imposing COL (CA) Bollinger made his way to the center of the conference table.
We were assembled for drill in our “JAG Shop” at JFTB Los Alamitos.
There were roughly 20 commissioned officers (and two PFCs) for our monthly drill. We all serve in the California Military Reserve as Judge Advocate General Officers. For those of you who have never heard of this division (or missed the TV show), we are military lawyers.
“Today’s drill is going to be a little long, I warn you.”
“We are going to be going over some internal cases and discussing some philosophical issues associated with your military service.”
Hmmm… this cannot possibly be a good thing.
“Before we begin, I want to implore all of you: Wear your rank, as though it is the last one you will ever have.”
This opening statement from COL (CA) Bollinger, who, in his civilian life, is a brilliant defense attorney, left me honestly confused. Most of us in the room are Majors or LTCs. I am one of a handful of Captains. Was he suggesting that we should look at promotion as irrelevant?
As he continued, the brilliance of that statement began to make sense.
“You have a singular mission. Your job is to advise commanders of the legality of their actions. Many will not be particularly thrilled with your advice. Many will seek to ignore your advice. You must strive to ensure that your advice is both accurate and followed. Your client is not the commanding officer; your client is the California and the Army National Guard. You might be called upon to provide legal advice to a soldier who is about to be deployed, or you might need to run interference for a soldier who is deployed. You must ensure that that soldier is given the best legal representation he or she can get… because, ultimately, their mission is dependent on their being able to execute it. You are serving the soldier… but, ultimately, you are serving the mission of the U.S. Army.”
“Some might be upset at your insistence to legal protocols. Some may even seek to have you transferred, or your promotions stalled, as retribution for your dedication to military justice. They may be successful, for a time. You must find their actions and schemes to your personal ambitions irrelevant. Justice and honor must take precedence over your own advancement. Do what is right…. wear that rank as though it is the last you will ever have, and provide counsel accordingly.”
Motivational speech notwithstanding, the Colonel had a valid point.
We swore an oath to defend the Constitution of the United States against all enemies, both foreign and domestic. We accepted billets in the Legal Services Division of the California State Military Reserves. Our mission is to defend soldiers and offer advice. Those that would stand in our way must be brushed aside as we move forward. As the war correspondent, Alex Quade, stated so eloquently when reporting on her time with the Green Berets, “They have a constant phrase, ‘Charlie Mike’…. continue the mission.”
Someone asked me once… a cop… what it is like to successfully argue a motion for the suppression of evidence that lets a known criminal out of incarceration. He was not asking me specifically, it was more of a general question. As an attorney, how could you do such a thing?
My law partner, Cosmo Taormina (A Major in the same unit that I serve), once told me that defense attorneys sit at the right hand of God. “We are the last line of defense against the unlimited powers of the State. We are what makes the government act with legitimacy. Without us, the forces of tyranny have no road blocks.”
He is right.
I responded to the law enforcement officer with my own version.
“I do not defend criminals. I defend the Constitution. When the State has violated the Constitution, I call them on it. The criminal is simply an unintended beneficiary.”
I have sworn three oaths to the public in my life.
The most recent one took place in that JAG shop at Los Alamitos when I became a commissioned officer.
Before that, I swore an oath when I became an officer of the California Supreme Court. (Incidentally, that oath, which all lawyers take upon passing the bar, is decidedly similar to the military oath.)
Before that, I took an oath, five days a week for twelve years. Most of you took that oath along with me.
Each morning I would stand at my desk and take an oath pledging allegiance to the United States of America, One Nation under God, indivisible, with liberty and justice for all.
That was not a short-term oath.
It does not dilute with the passage of time.
All of us are duty bound to follow the pledge that we all have taken. There are times when we might be disparaged for our actions in support of that oath. We might suffer personal retribution as we pursue justice and fight against tyranny. Yet, we must know that our cause is just and guided by divine providence. We must take solace in the knowledge that our generation stands as guardians to the next of the blessings of liberty. We must always be ready, even in the face of insurmountable odds, to “Charlie Mike." There is no greater struggle than the fight against tyranny. We must all wear our rank as though it is the last we will ever have.
SHOT SHOW 2018
Each year the shooting industry converges on Las Vegas for our annual “Shooting & Hunting Outdoor Trade Show.” This is for all intents and purposes the functional equivalent to the Detroit Auto Show for guns. Literally, all manufacturers have some sort of presence at the show, and they are not only looking for dealers to sell their existing product lines, but also unveiling their new products for the next year.
This is also a bit of a political gathering as well; at least, it has been in the past. Politics were decidedly subdued this time around… probably had something to do with the perceived lack of an existential threat to our industry as a result of the new administration.
In fact, there was a subdued atmosphere to the whole show.
It was crowded… no change there from last year. But the buzz and excitement of prior years was just not there.
There were, however, some pretty cool things that deserve to be discussed:
If you arrived from the Newsletter, start reading from here.
Sig Sauer P365
So, Sig Sauer has developed a new striker fire handgun that seeks to compete directly with the Glock 43. It is small and sleek. From what I can tell from a few dry fire rotations, they seem to have included a SRT trigger as a stock item. From working the action and pressing the trigger in a dry fire environment, my first reaction is that this is a gun that is absolutely outstanding. Obviously, I was not able to send live rounds down range on the convention floor, so I can’t comment on how it actually performs in the field… but the limited time I had with it, I loved it. Frankly, I love it far more than the Glock 43. It “feels” better… and, without a doubt, the trigger is far superior. Of course the California Department of Justice views this as an “unsafe” handgun since it is not on the roster. Thus, those of you reading this in Occupied California can only get access to this gun through the roster exemptions. The rest of you who are reading this in the United States… go out and try this little guy. I think you will like it.
Magpul Pro 700 Rifle Chassis
I love bolt-action rifles. I always have. Many of the chassis that we put on our guns look ridiculously cool, but really do not do anything to improve the accuracy of the rifle beyond a loaded barrel or pillar bedding. This beast was designed for one purpose… aiding the shooting to achieve the best possible hit on target that the rifle is capable of producing. It is specifically designed to allow for an ergonomic interface between the shooter's body and the weapon, from adjustable cheek welds (this is common on many chassis), to a thumb shelf for the shooter’s thumb so they can dispense with the pistol grip. (Really?!?! Someone finally came up with this!) For anyone interested in long-range accuracy, I would HIGHLY encourage you to check out the Pro 700.
Cocktail Discussion: Arrest of Former Deputy David Martin for Illegal Weapons
Then there is this.
I seriously debated writing about this in this blog, and waiting for next week to explore it. But, since we discussed it at SHOT, I figured what the hell…
A former deputy with the Butte County Sheriff’s Department was arrested this last week for illegal weapons possession. The details of the story are sketchy at best. What I can surmise, though, is that Mr. Martin is not a particularly nice guy. (A few of his neighbors have made statements suggesting this to be the case.) He likes guns. He likes to assemble guns. He ordered decommissioned weapons online, ostensibly to mine them for parts. (Honestly… I did not even know this was a “thing.”) Cool, though… Mr. Martin is into recycling.
ATF launches an investigation of Mr. Martin due to his online purchases.
He is arrested for “illegal assault weapons.”
Now, I have some questions which, seemingly, have not been addressed. Was he arrested by ATF or by local deputies who were assisting? It appears that the weapons violations revolve around his AR-15s, which would lead me to infer that he had traditional magazine releases on them (bullet buttons would not be a problem until after June 30th).
Ok… so let’s deconstruct this:
Mr. Martin is a jerk…. not illegal.
Mr. Martin purchased decommissioned parts off the Internet…. not illegal, per se. According to the article, ATF secured a search warrant based on the probable cause theory that he was purchasing these parts for the assembly of a machine gun…. Huh???
When searching the premises, they find weapons that violate California state law… good faith search and ostensibly in plain view, good to go… but what about the underlying probable cause?
As you can see, my major concern here is the basis of the ATF search warrant. If I am at Home Depot, and I buy a bag of fertilizer, did I just give ATF probable cause based on a theory that I am going to make explosives? Since explosives could be relatively small, does the warrant allow them the scope to search through every nook and cranny of my house?
This case deeply troubles me. Now, having said that, I am even more dubious about the reporting on this case. There may very well be a much stronger reason that the ATF executed the warrant, and the “assault weapons,” for all I know, are machine guns. Nonetheless…. it made for an interesting discussion at one of the bars during the show.
Oh yeah…. my skills at the blackjack tables sucked this year, too.
A number of years ago I read, On Combat, by LTC Dave Grossman. There are a handful of books in my library that I can honestly say are life changing; On Combat is one of them. Grossman’s study of physiological and psychological dynamics that take place in the toxic realm of combat is unsurpassed. Moreover, his research into the motivations of soldiers called to live the life of sacrifice is both informative and inspirational.
So, when I was given a heads-up that Grossman was going to be doing a presentation for members of the Law Enforcement Community in Orange County, I jumped at the chance to listen to his lecture.
He is one of the most impassioned and dynamic presenters to whom I have ever had the pleasure to listen. The organization that sponsored LTC Grossman is called The Bascom Group. These guys own, and manage, real estate developments throughout the country. To give back to law enforcement personnel in their communities, they sponsor Grossman to come out and present to these agencies for free. (Hell, they even give lunch to the cops in attendance.)
One of the managing partners of The Bascom Group is a gentleman named David Kim. David met Sandy at this initial lecture, and the two became friends. A few months later The Bascom Group contacted Artemis and asked if we could help organize another Grossman event, this time in Pomona. We were more than happy to help, and Sandy was able to put together a spectacular event. This developed into our hosting another presentation in Scottsdale, and, then again, in Costa Mesa.
Recently, The Bascom Group asked us to put together another Grossman event…. this time in Vegas.
Now it was our own Terra’s time to shine.
Many of you have met Terra. She is our office manager and resident artist. This was also the first time she had been asked to fill up a theater full of cops in an area that she does not live. She dove headfirst into the project, and in the end, filled a theatre at UNLV with 300 State and Federal Law Enforcement Officers. She did a great job… it didn’t hurt that Grossman’s reputation for an awesome lecture precedes him.
Last Thursday, I accompanied Terra to Vegas to see Grossman again, and to introduce Grossman to the law enforcement officers in attendance.
His class, as always, was mesmerizing.
He focused on something that I know he has mentioned before, but now seems to stress a bit more: Always have your gun available.
Now, this lecture was not for CCW holders per se; it was for sworn law enforcement officers. Yet, he has seen an issue nationwide, throughout the years, which he is determined to confront head on: Off-duty cops who choose not to carry their guns.
The psychological trauma that comes from knowing that you have the skill set to save lives, but you have consciously made the decision not to carry the necessary tools required by that skill set, is too much for many survivors to bear.
“If you have the ability to carry a firearm, never be without the lifesaving tools of your profession.” Truer words have never been spoken.
What was also interesting were the words of appreciation we received. During the breaks quite a few officers approached me to thank me for “putting this together.” I told them the credit really belonged to The Bascom Group and Terra’s hard work. That said, we were all glad they could attend.
Many of them… interestingly enough most of them were federal law enforcement… were simply thrilled to have this kind of training available to them at all.
“We don’t typically get this type of training.”
“Rarely do we ever get anything this practical and eye-opening.”
“I’ve read many of Grossman’s books… but I never thought my department would actually let me attend one of his presentations.”
These were some of the expressions of gratitude we received.
While we are happy… thrilled… that these officers were able to get this training, we are concerned that a greater emphasis is not being placed on continual reinforcement of the skills necessary to prevail a deadly encounter.
Budgets, bureaucracy, and politics are, in my view, merely excuses for obstructionist, institutionalist personalities. If their individual paychecks were in jeopardy, they would figure out a way to get paid. If their own existence were threatened, they would prepare to prevail. Those that stand on the front lines against the forces of chaos must be given the training and the tools necessary to prevail against those who would seek to destroy them.
The Battle of Thermopylae
It is a noble idea that there are some conflicts, even where the resulting defeat is inevitable, that must still be joined with extreme ferocity. I have included Miguel de Cervantes’ character of Don Quixote for a reason. He is a tragic character, a cuckold driven to the point of insanity and desperation to find a reason for his own existence; he pretended to battle with windmills. One could argue that he was well aware that the buildings he called “dragons” were nothing more than farming structures, yet the only way he could maintain his dignity was to accept an alternate reality wherein he was a knight of the church doing battle against demons.
We often look at our pro-gun legislators… (yes, there actually are a couple)… and see that they will introduce bills aimed to protect our freedoms. Yet, we sadly do little to acknowledge them. Sure, we give them the occasional “like” on Facebook, or read approvingly an article that references their bill, but we, as gun owners, typically focus our energies on the negative. We shake our fists at the petite tyrants who would usurp our freedoms… but rarely do we shake the hands of those who go into the lion’s den and try, however doomed that attempt might be, to fight for the cause of freedom.
Let’s look at two recent items that have come up in the new legislative session:
AB-1394: This bill was killed in the Public Safety Committee this last week. Assemblyman Travis Allen, R-Huntington Beach, who has announced his run for Governor of the ungovernable State of California (and who is also an Artemis client), argued passionately for this bill. It would effectively delete the requirement of “good cause” for the issuance of a CCW. Many of you are well aware that the “good cause” requirement differs wildly between jurisdictions. In Orange County, the “good cause” is interpreted in a manner in which a reasonable law-abiding citizen has an extremely high probability of attaining a permit. In Shasta County, the “good cause” requirement is essentially read as “the applicant wants a permit.” In Los Angeles and San Francisco, it means you are a celebrity or FOS (Friend of the Sheriff). This creates the irony that a resident of Orange County, who has a permit, can carry into Los Angeles, but a resident of Los Angeles cannot carry outside his door. (One day I would like to see this challenged on an Equal Protection Theory…. Who knows… if there are any Los Angeles residents out there who would consider being a plaintiff, give me a buzz.)
Allen argued his position, and the merits of changing the law. He was eloquent, passionate, and above all else… eminently logical.
His bill never made it out of Committee.
The outcome was not surprising, but the sheer fact that it was brought up in the first place deserves recognition, and a “thank you.”
Next we have SB-710, sponsored by State Senator Joel Anderson, R-38th District. This bill would have allowed the use of suppressors for the legal pursuit of game. For those of you who don’t hunt, this might require some explanation. When we hunt (with rifles), we don’t wear hearing protection. For the successful hunter this really does not make a tremendous difference. When we are at the point that we have an animal in our sights, and we press the trigger, our adrenaline is at such an accelerated level we actually don’t hear the gun… or if we do, the sound of the report is manageable. When we must, unfortunately, take follow-up shots, the sound of the rifle can be debilitating.
Those that are participating in the hunt with us… our guides, or friends, or family members, often do not have the advance warning that the hunter is about to press the trigger. If you have ever been at a rifle range without wearing hearing protection, you know how potentially dangerous this can be to someone’s ears. The use of suppressors poses absolutely no danger to the public. The use of suppressors on a rifle while hunting provides only benefits to the hunters, and their hunting partners. Again… this was an eminently logical bill.
It died in Committee, too.
Senator Anderson is well aware that many of the citizens of California have a misguided and ill-informed understanding of managed hunting. Few understand that the North American Game Management Model has done more to create thriving populations of deer, elk, and bear. He is also aware that the anti-gunners have little interest in expanding the rights of gun owners. Still, he went to bat for us. We must recognize his efforts, and thank him for his support.
Then there is the other side…
Senator Antony Portantino, D-25th District, was back at it again. His Quixotic war with guns has been focused on those who sell them. He attempted, last year, to make the security measures that FFLs needed to go through so onerous… so expensive, that few, if any, gun stores would be capable of doing business in the Golden State. In this session he came up with a new idea… mandate that every FFL in California MUST be inspected by the Department of Justice every two years. At first blush this seems reasonable, until you look at the rationale and the cost. Every FFL that does business in California knows that at any time a DOJ inspector, or an ATF investigator, can come into the FFL’s business and demand to do an inspection. These inspections take anywhere from a couple of days to a week to perform. There are a limited amount of DOJ inspectors, and, with the new ammunition laws in effect, there are now more records that need to be inspected. For what purpose does this mandatory inspection serve? Who benefits from this? What pressing problem will now be thwarted by the implementation of this law? What we do know is that there will need to be a lot more inspectors hired. The cost to the State will increase, and the cost to the consumer will also naturally go up.
This one passed through the Committee without any problems at all.
I urge you… contact Assemblyman Allen and Senator Anderson, and thank them for their service, and their attempts at protecting our freedom. Then pour yourself a glass of whisky, and contact Senator Portantino, and, ummm… let him know what you think of him.
The Devil’s Cabbage.
The Gateway Drug.
Marijuana has had a fascinating history since the end of Prohibition. Without getting into the philosophical arguments associated with decriminalization… Many of you know my libertarian beliefs… I fundamentally believe that YOU own your body… What you do with it is totally within your own jurisdiction. You can sell your body for labor; you can sell your mind and intellect for commercial purposes. If we extrapolate that to the natural conclusion, what you put into your body is completely up to you. If the State has a right to control what you consume, or how you sell your labor, then it means the State has a higher property interest in your body than you do.
That is where I get all squeamish.
Apparently, there are quite a few of you who tend to agree with me… or at least are more interested in the pharmaceutical benefits of marijuana than the philosophical arguments surrounding its usage.
This last week I received several calls about marijuana, and how it relates to guns.
Some background information is in order: Most people believe that, to some degree, marijuana is legal in California and a number of other states as well. This is not an entirely true statement. Marijuana is not “illegal” under state law. It is, however, a federally controlled substance. As such, it is completely within the jurisdiction of the Feds to regulate, and, if they choose, prosecute a marijuana user or seller.
The 4473 Form you fill out when you buy or transfer a gun is a federal document.
That document (which you are signing under the penalty of perjury) §11 (e) reads as follows, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law, regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”
Hmmmm… Well, that is pretty clear.
So… the questions I usually get go something like this:
“Hey Steven…. hang on… I’m just looking at how all of these molecules in the air are forming into a gas… Whoa! Sorry about that, um… So, if I have a Medical Marijuana Identification Card… Sorry… if a friend of mine has a Medical Marijuana ID Card… can they still like, you know, buy a gun”?
“ALRIGHT! That’s awesome dude!… Wait, uh… what do you mean possibly?”
“So here is the thing. The 4473 Form requires you make a declarative statement that you are not an “unlawful user.” If you say you are not, we will take your word for it. That being said, a Medical Marijuana ID Card does not conclusively rebut the presumption that you are being honest in your statement that you are not an “unlawful user." It simply means that you are in possession of a Medical Marijuana ID Card. There are a number of reasons why you might possess that card: 1) You like the look of the card; 2) You like having multiple licenses in your wallet; 3) You own a medical marijuana business; or, 4) You think our drug laws are asinine and even though you are not a drug user, you want to show your solidarity with the zombies and the rehab clinics.”
“Oh yeah… okay… so, I uh, I don’t do drugs, dude.”
“Nah… I like my reality as it is man.”
“Of course you do.”
The exchange above, notwithstanding the confusion around marijuana and its relationship to firearms ownership, has proven to be quite confusing to many. To make matters even more complex, Attorney General, Jeff Sessions, announced on Thursday of last week that he would be ending the policy of the DOJ not prosecuting medical marijuana dispensaries for violation of federal law. (Well, that is not exactly what he said… What he is really doing is allowing his Deputy US Attorneys to use prosecutorial discretion when it comes to going after these dispensaries.)
Regardless, an individual that is “using” marijuana may not be in possession of a firearm. This creates the next rabbit hole; what exactly is “using”? Is using contemporaneous with the possession of the gun? Is it constructive possession? When filling out the 4473 Form, is it at that exact moment in time that is under discussion? (“Well, right now I’m not an unlawful user of, or addicted to, marijuana… Can’t say the same tonight after I get done watching Bonanza on TV Land!”)
As is often the case, there are no clear-cut answers… What I can tell you is that your body truly is your temple… treat it like one. While I am antagonistic toward laws that mandate how you live your life, or what you do with, or put into, your body, I also have a rational mind. I would never suggest a law is necessary to prevent someone from jumping off a cliff… but I would not recommend that activity simply because it is legal. I have seen the devastation caused by drug use… nothing good ever comes of it.
Instead, I wholeheartedly endorse the consumption of whiskey.
As we enter kicking and screaming into 2018, we must take stock of where we are, and the forces that are conspiring against us.
First, the good news: We are all still breathing.
Now, the areas of concern: Pretty much everything else.
A number of years ago I was taking a class with the famed TJ Johnston of AllSafe Defense. TJ, for those of you who don’t know, is sort of an institutional icon in California. He helped develop the NRA Personal Protection Outside the Home class, and sat on the Board of Directors for the NRA.
Toward the end of the class he offered his dire predictions for gun rights in California. He was, of course, correct in his assessment… but we, as gun owners, have been able to muddle through for the last few years nonetheless.
Over this New Year’s weekend I read a story that gave me pause, though.
As you all know from last week’s blog, and from the general scuttlebutt in the 2A community, the Anti’s are using access to ammunition as a means of stifling our gun rights.
One of the most egregious aspects of this is the bottlenecking of the stream of commerce regarding ammunition exclusively to FFLs and “Licensed Ammo Vendors.” The original intent of the law was to ensure that all ammunition sales take place “face to face”… meaning that if a product was purchased via the internet, it would have to be delivered first to a FFL or to a “Licensed Ammunition Vendor.” From there, the purchaser would have to physically visit the business to pick up the product.
We have focused so much of our attention on the buyers and the FFLs, we have all but forgotten the impact this has on non-FFL ammunition businesses.
Years ago there was a custom reloader up in Glendora called “Gunsmoke” Larry. Larry was a sole proprietor, and operated out of a ramshackle office on the second floor of a run-down office building. His little office always looked like a bomb had just gone off in it. Loose brass, fittings, and unopened lunch bags littered the torn and stained carpet. Larry would always be smiling, sitting behind his cinder block constructed counter, working his press and building custom loads for clients.
He was an artist.
All of my long-distance loads were custom produced by Larry, and I literally trusted him with my life, as did a boatload of other customers.
He was a gem that never advertised his services. Like the old speakeasies…. you had to tell him who sent you the first time you arrived at his office.
He also did not have an FFL.
There are literally hundreds of other “Larrys” throughout California.
These small shops were mandated after Proposition 63 to get an ammunition vendor license. (Reloading does not fall under the auspices of Prop 63… but not every purchase through these shops is reloaded ammunition. Sometimes, you just need some Winchester White Box. Rather than reloading a ton of .45, it is cheaper for these guys to just resale them.)
One such shop was in the news article that I had read.
The owner had applied for a vendor’s permit, and, as of last weekend, had still not received it.
As of January 1, he was out of business… courtesy of the State of California.
They mandated a regulatory license, and had failed to honor their obligation to provide said license. His vendors refused to ship him product without a license, and thus, he was literally starved of product.
This is unacceptable.
The fact that the State requires this nonsense is, in my opinion, a violation of the Constitutional rights of both the buyer and the seller.
Many believe the slow process of the DOJ in issuing these licensees is part of a nefarious plot to further squeeze out the 2A community.
That very well may be… and nothing surprises me anymore.
But a good friend, and client of ours, once said something to me that has always rung true:
“Never bet against lazy.”
I am more apt to believe that the bureaucracy of government is more at fault than some ill-oriented intent.
Regardless, whether ineptitude or malicious action, there is no excuse for purposely, or negligently, driving an honest owner out of their business.
I hope this poor individual, and those like him, bring legal action against the State, and do not do as so many of our brothers and sisters have done, and simply flee to other states east.
“Vigilentibus et non dormantibus, juris serventium.”
The law does not help those that sleep on their rights.
We must be as forceful in our retaliation against the tyrants and the lazy as they are in their meddling with us. The law is a double-edged sword. Those who would use it against us must be prepared to defend themselves against our legal retaliations.
So the hatchet has almost been buried into the head of 2017.
2018 is around the corner, and with it new challenges, new opportunities, and courtesy of our masters in Sacramento, new laws and regulations that are surely to make us all safer.
Chief among them, and first to affect you, is our new ammunition law. Proposition 63 proposed an alteration to the California Penal Code via SB-1235.
Essentially it states that all ammunition transfers must be conducted between a customer and a licensed vendor…. and the transaction must take place “face to face”. This means that you can no longer buy ammunition from an online vendor and have it shipped directly to you. You can still buy from that favorite online source, but it now must be shipped directly to an ammunition vendor, where they will charge you, whatever they feel is reasonable, to intake the ammo, catalog it, and store it until you arrive. Once you do arrive, they can only statutorily charge $10 for the physical transfer to you.
Now, candidly, I’m not sure that it will be commercially reasonable to buy from an online source anymore. The reality is that there is not a store on the planet that would buy a product, tie up their capital in inventory and shelf space, then allow you to bypass them and buy a product online, ship to them and have that product end up competing with their existing inventory. If a Winchester White Box costs $25 at your local gun store, but you find it online for $10 with free shipping…. expect that by the time you walk out of the store it will have ultimately cost you $30.
If you still covet that wildcat specialty blend ammo from Uncle Charlie’s Powder and Lead in Wichita, Kansas… you can still get it… but that is going to be a unique purchase, and limited to specific specialty shooters.
What is really interesting about the implementation of the law is what actually ends up taking place on January 1, 2018.
We get to look at you.
Yep… that is essentially it. Somehow making eye contact with the purchaser… (and costing him more money and inconvenience)… will usher in the social utopia we have all been waiting for.
(If you have arrived here from our newsletter, continue reading here.)
Perhaps the most interesting aspect of SB-1235 is the operational aspect for us as ammunition vendors. Come January 1, it seems we have been legislatively instructed to ensure two objectives: 1) that the individuals walking out of the building with their ammo are human beings… (this is to ensure that anthropomorphic robots from the future, or genetically modified hominids do not gain access to ammunition), and 2) that individuals have a driver’s license or California ID card? Maybe?
There is no law that says that the purchaser must have any form of ID, nor is there anything that states that the individual be a resident of California. We can infer from future requirements that there must be some sort of identification requirement. We know that on July 1, 2019 we are going to have to input information about the purchasers into a database search prior to releasing ammo to determine if they are a prohibited person, but on January 1, 2018 that requirement is not in effect.
What concerns me the most is not so much the January 1 requirement. That is stupid, inconvenient, and does nothing more than make ammunition more expensive and difficult to acquire.
The July 1, 2019 is the one that truly gives me pause.
The issue that concerns me has to do with probable cause.
We have a legal case right now that involves a law enforcement officer using the fact that a pedestrian approached a vehicle as effective probable cause for a drug transaction taking place. The sad part of this case is that there were legitimate motor vehicle code violations that could have been used to establish probable cause for a stop… but the officer, instead, chose to use what arguably is a Constitutionally protected activity as a justification for a car stop.
The question is, if a court would be willing to accept legitimate probable cause for a citizen walking up to a vehicle… would the court also be willing to accept an ammunition sale, where the purchaser does not have a registered weapon of the same caliber, as sufficient probable cause for a search warrant to be issued? I think the answer is yes. Consider the following hypothetical scenario:
D has an unregistered firearm. It was legally acquired, but not registered with the State. He decides he wants to take said firearm out to the desert to go shoot pumpkins and propane cans. He goes to the gun store after July 1, 2019 to buy a thousand rounds of ammo for said gun.
The State does a cross reference during the background check and sees that D does not own a firearm with that caliber. They deny the sale, and then take that information to a judge. They argue in front of the judge that the attempt to purchase ammunition could very well have been an attempt to buy ammo for the sale to an individual who is prohibited from buying ammo (a straw purchase, if you will).
The judge agrees and issues a search warrant, which now subjects D to the indignity and potential harassment of a search of his premises by police, all because he was attempting to legally purchase ammunition pursuant to California’s ammunition control procedures.
This type of society has a name… it is called despotic.
To quote the more eloquent C.S. Lewis:
“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”
This last weekend we were treated to the annual Christmas Party for the Special Forces, Chapter 78. In attendance were members of our active Green Beret A-Team who had recently returned from Afghanistan. The Sergeant Major of A Company, who regaled us of their exploits, gave us a report and the truly extraordinary news that all members of the company returned home safely to their families.
These young gentlemen, all in their Class A uniforms, are an extraordinary sight to behold. They truly embody the persona of the Green Berets: “Quiet Professionals”.
So now I have to juxtapose that with an email that we received today on our blog from last week.
You may recall that last week’s blog referenced the concept of evidentiary exclusion when the evidence being presented would be deemed more prejudicial than probative. The case at bar involved a dust cover on an AR-15 that had been personalized with an “off color” saying.
Apparently, the “off color” saying that I used was spelled incorrectly; I improperly used “Your” as opposed to “You’re”. This might have been a factor of auto correct, or frankly, just plain laziness on my part. Regardless, the many eyes that proof these blogs also missed the mistake.
Not so with our critic who emailed us.
He was deeply offended at our grammatical error, and evidentially missed the larger point of the article. That is unfortunate, since the article was actually quite important.
Worse… this individual felt the need to offer his own prejudicial mindset by referring to the defendant as a “pig”. (I am assuming this is in reference to the defendant’s role as a police officer, but I cannot be certain that the writer is not under the mistaken belief that the defendant is, in fact, a farm animal.)
(If you have arrived here from our newsletter continue reading here…)
His prejudicial verbiage got me thinking though.
We have had clients, CCW clients nonetheless, who have referenced their need to keep their passion for firearms and firearms training from their coworkers, friends and in some cases family members. Many of them lament that this integral part of their lives cannot be shared with those that are closest to them.
“So many of the people I know, and work with, are anti-gun. If I let them know that I own a gun, let alone carry one, it could jeopardize my career!”
I have heard that refrain far too frequently. Imagine if that were another enumerated civil right?
“I cannot let anyone know that I vote. If I do it could hurt my career!”
Worse… “I cannot tell anyone that I am Jewish; if they knew, I might lose business.”
We would not stand for that type of discrimination. But when it comes to our gun rights, we do.
But, I digress…
The issue here with this emailer was how he perceived us as trainers, as well as police officers in general. I have no idea about his political persuasions, but from his vitriol one could probably safely assume that he is antagonistic to gun rights, and deeply resentful of law enforcement. (He also has a phobia about misspelled words.)
His attack, and that is probably the most charitable way of defining his email, was not directed at a singular individual; rather, it was against a perceived stereotype.
(As an aside… I remember a law professor I once had who had what could only be described as a phobia when it came to poor grammar. His writing was technical and literally perfect when it came to punctuation and spelling. His legal reasoning and teaching skills were pathetic. Sometimes grammar and spelling do not exactly translate to cogent arguments.)
Crap… I’m digressing again.
Back to those Green Berets… They, as I mentioned, are the embodiment of quiet professionals. They did not need to wear their martial accomplishments on their sleeves; they are more than happy to work with lethal proficiency in the background. That said, when asked, they are more than willing to “talk shop” and discuss how they train and the weapons they use.
Last week we had a young man, Chris, in our CCW class. Chris came into my office to have his guns checked. He had the bearing and demeanor of someone that had the same quiet confidence as the Green Berets I deal with.
I checked the serial number on his gun, and sent him into the classroom. Before he put the gun away he did a quick chamber check, then placed it in his bag.
I approached him while he was in the classroom.
“You military, Chris?”
“Yes… I work with Ivan, and he told me to take this class.” (Ivan, as many of you know, is one of our instructors, and an active Force Recon Member and Instructor down at Camp Pendleton.)
“You with Force Recon?”
“Yes, sir. I understand from Ivan that you are a JAG officer… I won’t hold that against you.”
“Thank you, son. I appreciate it.”
Chris, and the other members of the Special Forces community, have a quiet dignity and bearing that screams who they are without shoving their status down the throats of those around them. They don’t need to. But when asked, they will not shy away.
We can learn from their behavior and their demeanor. So can our emailer… though I highly doubt he surrounds himself with individuals of such strong character.
Philip Brailsford (officer acquitted)
Daniel Shaver (suspect)
Last week we discussed Kate Steinly. One area that got specific attention from the blog was the decision by the judge to not allow the jury to hear about Zarate’s immigration status. This was based on a belief that the evidence was more prejudicial than probative. (Remember, the prosecution is presenting a theory. That theory, if accepted as true, must show that the defendant is guilty of a criminal offense. IF a jury is in a state of equipoise on any specific fact, they MUST err to the benefit of the defendant. Evidence that does little or nothing to prove a fact, but rather simply shows the defendant to be a piece of crap will not… nor should not… be allowed into trail.)
Not all of you agreed with that assessment, or were willing to forego the legal prohibition to achieve the greater good of letting the jury know that the defendant should not have been here in the first place. (However, as I said last week… I’m not sure the defendant’s immigration status, were it known to the jury, would have been prejudicial at all… quite the contrary I’m afraid.)
Well, the universe gave us another go at it this last week… and true to the Divine Comedy, the god’s have seen fit to let us analyze essentially the same evidentiary rule, this time resulting in the acquittal of a police officer.
(If you have arrive here from our newsletter, continue reading here:)
On January 18, 2016 Daniel Shaver was on a business trip. He was an exterminator that used a high powered air rifle to mitigate bird infestations in warehouses. By the end of the evening he would be shot and killed by Police Officer Philip Brailsford.
The shooting caused instant outrage among those that make their livings engaging in instant outrage. Daniel was unarmed at the time of the shooting. Worse… he was unarmed on his hands and knees and clearly intoxicated. He had no prior criminal record. Officer Brailsford, on the other hand, had… pause for dramatic effect… a personalized dust cover on the AR-15 he used to shoot Daniel. Worse… his dust cover had an expletive on it, the quote “Your F—ked”.
Armchair lawyers ran to their cabinets, grabbed their port and their smoking jackets and quickly fired up their lap tops to launch into full-scale diatribes against the police. Those that sit squarely on our side of the political aisle began their, “I told you so,” lecturing.
“Put that crap on your gun, and it will be used against you in court!”
“You would never see me putting anything like that on my weapon… that is a recipe for disaster!”
“Like I have said a thousand times before… personalized stuff on your gun is like begging a jury to find you guilty!”
It was never admitted into evidence.
The jury saw the evidence. The body cam video was presented, where the officer is heard repeatedly warning the suspect to keep his hands up or he will be shot. He drops his hands, and is then warned, in no uncertain terms, to raise them again. He inexplicably reaches back towards his right side waist, and is instantly shot multiple times. The jury found the officer’s actions reasonable, taken in the totality of the evidence that was provided to them.
But what about the dust cover?!?
Surely the dust cover shows that the cop was a jerk!
Yes, it does show that the cop had done a poor job of community relations. His employment history would further suggest he was not the “finest” of Tucson’s finest. (Prior to his acquittal he was terminated for unrelated misconduct).
But here is the thing… the cops personality was not on trial, his actions were. The question at bar was quite simple: Were the officer’s actions reasonable under the circumstances? Understand, the deep subconscious motivations were never a part of the jury's instructions. As such, the inscription of the dust cover, if provided to the jury, would have proved to be more prejudicial than probative as to the reasonableness of his actions.
Many CCW holders have been remarkably hesitant to “personalize” their guns, or for that matter to proudly wear their leather holsters inscribed with the patriotic quotes or images of the 2A community (Concealed holsters of course!).
“I would, like to put this Punisher skull on the back of my Glock… but I am afraid it will be used against me.”
“If I put a Molon Labe image on my dust cover, or my magazine, well it might go against me at trial.”
Sigh… Has it ever occurred to those of us that cary guns that the mere fact that we carry guns could be used against us at trial?!
You will not be judged on your accouterment, nor your image de guerre. You will be judged on your actions… and whether those actions at the moment were, in a single word, “reasonable”.
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