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NRA Members' Councils of California

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February 25, 2000

Ms. Debbie Coffin, Analyst
Firearms Division
CALIFORNIA DEPARTMENT OF JUSTICE
P.O. Box 820200
Sacramento, CA 04203-0200

RE: Proposed Regulations Implementing SB 23 "assault weapon" legislation

Dear Ms. Coffin:

      This letter is written on behalf of the National Rifle Association ("NRA"), its California members, and numerous firearm manufacturers, dealers, and owners regarding the proposed adoption of sections 978. 10 through 978.44 of Title 11, Division 1 of the California Code of Regulations, interpreting and implementing SB 23 (Stats 1999, c. 129). This letter shall serve as NRA's formal written comments pursuant to the Administrative Procedures Act (Gov Code §§ 11340 et. seq.).

      The Department is tasked with deciphering and interpreting a hopelessly vague statute. Regulations should be designed to clarify and narrow the scope of the statute in order to save its legality and to protect the due process rights of gun owners, dealers and manufacturers. Unfortunately, it appears that the proposed regulations have intentionally or unintentionally expanded the scope of SB 23 and failed to clarify the reach of SB 23's criminal sanctions.

      Many law-abiding members of NRA (gun owners, manufacturers and dealers) will be significantly impacted by SB 23 and the Department's expansive regulations. Having been involved in the legilslative process as this law was enacted, those participants are personally familiar with the Legislature's intentions, and in fact received multiple assurances that the law was not designed to do what the current proposed regulations appear to do. Besides condemning many more firearms than contemplated by the Legislature, the proposed regulations do not "clarify" SB 23, but rather create even more confusion and ambiguity This will undoubtedly and unfortunately lead to inappropriate prosecutions, just as the 1989 "assault weapon" law did.

      Thus, this letter will address a number of concerns which we wish to bring to your attention and have incorporated into the official administrative record for consideration by the Department, the Office of Administrative Law, and for later use challenging the validity of the proposed regulations in court if necessary.

Rulemaking Under the Administrative Procedures Act

      One purpose of the Administrative Procedures Act is to "ensure that those persons or entities whom a regulation will affect have a voice in its creation as well as notice of the law's requirements so that they can conform their conduct accordingly. The Legislature wisely perceived that the party subject to regulation is often in the best position, and has the greatest incentive, to inform the agency about possible unintended consequences of a proposed regulation." (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal. 4th 557, 568-69, citing Armistead v. State Personnel Bd (1978) 22 Cal. 3d 198, 204-05 and Ligon v. State Personnel Bd. (1981) 123 Cal. App. 3d 583, 588).

      The other purpose of the APA is to limit an agency's regulatory authority to regulations "within the scope of the authority conferred" and "consistent and not in conflict with the statute and reasonably necessary to effectuate the purposes of the statute." (Gov. Code §§ 11342.1, 11342.2). In this regard, the Office of Administrative Law in reviewing an agency's proposed regulations makes its determination using the following standards: Necessity, Authority, Clarity, Consistency, Reference and Nonduplication (Gov. Code § 11349. 1).

      The APA defines the term clarity to mean "written or displayed so that the meaning or regulations will be easily understood by those persons directly affected by them." (Gov. Code § 11349). Under the criteria established by the APA, there are several fundamental legal deficiencies with many of the proposed regulations. Our objection and the legal basis for each objection is outlined more fully below.

Legal Objections to Proposed Regulation Section 978.20 (Definitions)

      SB 23 added a "new" definition of "assault weapon" by adding Penal Code section 12276.1 which states in part:

(a) Notwithstanding Section 12276, "assault weapon" shall also mean any of the following:
(1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and any one of the following:
(A) A pistol grip that protrudes conspicuously beneath the action of the weapon.
(B) A thumbhole stock.
(C) A folding or telescoping stock.
(D) A grenade launcher or flare launcher.
(E) A flash suppressor.
(F) A forward pistol grip.

• Shooter's Bible Small Arms Lexicon and Concise Encyclopedia First Edition (1968) by Chester Mueller and John Olson.
• Dictionary of Weapons and Military Terms by John Quick
• A Glossary of Terms from the Association of Firearm and Tool Mark Examiners (1969)

      The statute uses three terms that require definition ("pistol grip", "protrudes conspicuously" and "action") yet the proposed regulation treats the words as a single term.

      The term "pistol grip" has had a distinct meaning and was described in the late 19th century in Farrow's Military Encyclopedia (Attachment 1):

A shape given to the small of the stock in shot-guns and rifles, to give a better hold for the hand. The pistol-grip has of late become quite popular and nearly all the recent models of sporting arms embody it.

      There is no dispute that SB 23 did not intend to classify virtually all rifles and shotguns with a detachable magazine as --assault weapons." The pistol grip that was the focus of the legislation is the type generally seen on the AK-47 or M-16.

      The proposed regulation seems to define a "pistol grip" as a component that allows for the "grasp, control and fire" of the firearin.

      In as much as virtually all rifles and shotguns have a "pistol grip" as defined in practice, the focus of SB 23 was on "conspicuous protrusion." Sentence construction Indicates that pistol grips that protrude conspicuously constitute an "assault weapon" feature. Pistol grips that only protrude do not. Determination of whether the protrusion is conspicuous is accomplished by using the action as a reference point. However, this introduces another element of vagueness as the "action" is neither a part of nor a specific location on a firearm.

      As used in the field of firearms, "action" describes a relationship of parts and how the firearm functions; i.e., bolt action, lever action, single action, etc. (Attachment 2). The legislators may have meant "receiver," which is a specific part, but they said "action." Thus conspicuous protrusion must be measured from a non existent location.

      The regulation defines the term "action" as the "top of the exposed trigger." This random selection of a phantom point of "action" is not supported by any reference material or SB 23 and necessarily includes firearms not intended to be classified as "assault weapons." If the Department is forced to identify a random point of "action" it should choose one that does not encompass a wide variety of firearms never intended to be deemed "assault weapons."

      To deal with the vagaries of the overall situation, the Department's regulation creates an "imaginary line" from the random point of action, running parallel to the barrel. Thus, -if the firearm can be "grasped" below the imaginary line, the firearm is illegal.

      When one applies the Department's proposed definition to semi-automatic rifles (they all have protruding pistol grips) the user, by necessity, grasps the stock partially below the imaginary line. When faced with this reality, the Department posted a "clarification" of the regulation on its website (Attachment 3) which abandons the actual language of the proposed regulation.

      Besides being an illegal "underground" regulation, the website "clarification" applies an entirely different standard than the actual proposed language. As described on the Website, if the portion grasped is "located above and below the imaginary line" then the grip is not considered to be conspicuously protruding.

      Thus, it appears that the Department concedes that its proposed regulation in not written or displayed so that the meaning or regulations will be easily understood by those persons directly affected by them." (Gov. Code § 11349).

      Criminal prosecutions cannot be based on "Imaginary lines," mythical points of "action" and subsequent web-site "clarifications." Due process demands more. The APA demands more. Californians deserve better.

      Over six million M1 Garand rifles were made between 1937 and 1954. Significant numbers have been sold to the general public by the U.S. Army's Office of the Director of Civilian Marksmanship. The M1 Garand has a long history both in formal competition and as a hunting rifle. Production of newly made M1's has recently begun to meet continuing consumer demand. The M1 rifle has always been described as being "clip fed." It is not uncommon that the terms "clip" and "magazine" are used interchangeably, albeit incorrectly. A clip is a device used to load a magazine. Unlike a magazine, a clip lacks a follower. The M1 Garand has an internal box magazine which is formed by the sides of the receiver, the follower assembly and the en-bloc clip. As the millions who have been trained in the field stripping of the M1 rifle know, the "magazine can be readily removed without the use of tools." The clip is released by pushing the clip latch. The barreled reliever is removed from the stock by removing the trigger housing, then the follower rod and follower assembly are removed - all without tools (Attachment 4).

      There are at least ten models of the M1 rifle, including some that are equipped with flash suppressors (M1C and M1D). By defining the M1 rifle as having a "detachable magazine," those equipped with flash suppressors instantly would become "assault weapons." Until these proposed regulations were released, no one in the firearms community would have described the M1 Garand as having a detachable magazine. This definition is overly broad and expands the scope of SB 23 beyond the Legislature's intent and grant of authority.

      First, the term "muzzle barrel" is not only unclear, it is inherently contradictory. Presumably the Department means the barrel's muzzle, or the muzzle of a barrel. That small problem aside, the definition proposed is consistent with general use of the terms involved and the definitions drawn from the supporting documents in the rulemaking file. The deficiency is that the definitions still do not provide clarity with respect to what is legal or illegal.

      There is no standard for flash reduction i.e. what type of cartridges would be used for testing, what must the reduction be, what barrel length is to be tested and how would the light be measured? Could every law enforcement agency have their own standard, or would your department make those decisions? In either scenario, where would owners or manufacturers of such devices submit them for testing? Once tested would the approved device bear some readily identifiable mark of approval?

      Most if not all flash suppressors and muzzle brakes have no markings including the name of the company that produced them. Thus, how would a peace officer (or anyone else) know what the device was or its legal status?

      Without such standards, the process would be nothing more than firing the rifle in a darkened room and the rendering of a subjective decision by a person with no particular expertise. As flash suppressors and muzzle brakes have a very similar appearance, a more objective and documented process is essential (Attachment 5). The lack of both precision and a structured process in the proposed regulation has created a serious problem for manufacturer Browning. They market a device called the BOSS-CR. The technical issues are fully covered in a January 25, 2000 letter to you from Larry Nelson, who is Browning's Chief Engineer and Legal Affairs Manager. The BOSS-CR is clearly not a flash suppressor, but your proposed language would make it one.

      The proposed definition, when compared to the definition in subdivision (e), makes it clear that any protrusion in front of the trigger which is used to hold the firearm is a "forward pistol grip." That definition alone will make virtually every semi-automatic rifle or shotgun an illegal "assault weapon."

      There are five "protrusions" that are commonly found on semi-automatic, centerfire rifles that are designed to "grasp and control" the firearm. However, none of them can be plausibly thought of as a forward pistol grip. The first is the forward hand guard (fore stock). The second is the protruding detachable magazine, which on rifles like the Springfield M1A can be placed on the weak hand to steady the rifle for shooting in the standing position. The magazine can also be used to pull the rifle back into the shoulder (Attachment 6). The third is the hand stop. This is a device which is attached to the front part of the stock and is used in conjunction with a sling and shooting glove to grasp and control the rifle. The fourth is the sling swivel and sling. These protrude in front of the trigger, and their specific function is to grasp and control a firearm. Finally there is the bipod. This too protrudes in front of the trigger. In recent years, bipods have been used as a substitute for slings as a control device. When used in the sitting position the shooter will usually grasp the bipod to help steady the rifle (Attachment 7).

      SB 23 was never intended to make virtually every semi-automatic rifle and shotgun illegal. Indeed, if that was its intent, the Legislature could have easily said so. Presumably, the Legislature was trying to describe forward pistol grips found on a Street Sweeper shotgun or a Steyr AUG (Attachment 8). The department's proposed regulation is overly broad and vague and does not satisfy the APA's criteria for adoption of regulations.

      The key word in this proposed definition is "opening." Here the Department has chosen to ignore the resource materials in its own rulemaking file. For example, the "Small Arms Lexicon" defines a thumbhole stock as a "rifle stock having a hole through it to accommodate the thumb of the firing hand. . ."

      There can be little argument that the term "opening" is different than the terrn "hole." The traditional thumbhole stock has an opening of about one inch in diameter that allows the thumb on the trigger hand to pass through the stock.

      There are other stock designs, called skeleton or Dragunov style, that are "all opening" and very little stock (Attachment 9). These are not considered thumbhole stocks by anyone with any knowledge of firearms. The "opening" in either case is unnecessary for grasping, controlling or firing with one hand. The opening adds comfort and better hand placement in relationship to the trigger. Any rifle can be fired with one hand - regardless of what stock it has.

      Moreover, since most "thumbhole" style stocks are also of the protruding pistol grip variety, there is no justification for an overinclusive definition of "thumbhole stock" which is also not supported by the reference material in the rulemaking file.

      The definition of the terrn "permanently altered" is perilously vague. More importantly, the proposed regulation is not adequate in the context of the due process required of a statute that imposes criminal penalties for violation. It was the Legislature's intent that a reasonable standard would be crafted to define "permanently altered."

      Given the materials and methods used in the construction of these firearms and their parts, requiring that the change or modification be "irreversible" is both unreasonable and unachieveable. For example, feeding devices and magazines have been made from cloth, brass, polymer/plastic, aluminum and steel. Feeding devices and magazines are generally quite simple in their design. Box type magazines generally have four parts - body, spring, follower and floor plate. Older feeding belts are made from pieces of cloth sewn together. Clips are usually one piece of metal that has been formed into the necessary shape. Other designs (tubes, links, etc.) are equally simple.

      Cutting a cloth ammunition feeding belt so that it won't hold more than 10 rounds is not "Irreversible." Cloth that is cut can be sewn back together. A metal magazine that has its capacity reduced from 20 to 10 rounds by shortening (via sawing and welding) can be restored. Short of total destruction - nothing involving changes to metal is "Irreversible."

      The legislators could have simply said they were banning future transfer of all large capacity feeding devices. They did not. Instead they allowed for "permanent alteration." Your definition of "permanent" is unachieveable. Consider this scenario - prior to 1994, the hypothetical American Magazine Company produced both 10 and 20 round magazines for semi-automatic rifles. The magazines are identical in all respects except length. Given the requirements and options of SB 23, the owner of a 20 round magazine returns it to the factory for modification because he wants to sell it to a friend. At the factory, the magazine is shortened so that it is identical in all respects to the currently produced and "California legal" 10 round magazine. The modifications made are obviously not "irreversible." If the modified magazine is not legal for transfer - then what is the legal status of the identical newly produced magazine? It is clear that the legislature intended that a "permanent alteration" would be something that was much less that "irreversible."

      If your Department decides to stay with the "irreversible" standard, will you review and pass judgement on proposed alterations by manufacturers, importers, retailers, gunsmiths and firean-n owners who are trying to comply with the regulations and law? Without a single point of approval, every jurisdiction could impose its own standard.

Conclusion

      Based on the foregoing, it is clear that the proposed regulations do not reflect the intention of the Legislature and will result in tremendous confusion among gun makers, dealers, owners, law enforcement officers and prosecutorial agencies. This office has first hand experience with ill advised prosecutions resulting from confusion about what constitutes an "assault weapon." The regulations need to be easy for a layman to understand. They aren't.

      Moreover, the proposed regulations expand the scope of SB 23 and do not provide "clarity" as required by the Administrative Procedures Act. The experts we have consulted believe the requisite clarity is, to a large extent, not achievable under the ambiguous language of the statute. Nonetheless, as we expect the Department will pass some form of regulations regardless, we must ask whether the Department intends to act as the final arbiter on these issues. In the past this office, and many others, have repeatedly asked the Department to take a position on what is and is not prohibited under the 1989 "assault weapon" law. The Department largely has declined to address these questions, advising callers instead to "consult an attorney.'' Now, however, the Department has accepted responsibility to clarify these new terms. Can manufacturers, dealers and owners rely on the Department to know the answers to their specific questions? And will the DOJ and the Attorney General, as the Chief Law Officer of the State, comply with its Article V, Section 13 state constitutional mandate to ensure that there is uniform application of the law among the various law enforcement and prosecutorial agencies? Given the politics inherent in the subject matter and past experience, we fear not. Thus unless these regulations are perfected, the confusion and injustice that has marked the inconsistent enforcement of the 1989 "assault weapon" law will regrettably continue into the new century as the 1999 amendments are also misapplied.

      We welcome your inquiries.

     Sincerely,
     TRUTANICH * MICHEL, LLP
     
     C.D. Michel

CDM/hv