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May 30, 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 I 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 NRA also submitted comments to the Department's prior version of these proposed regulations in a letter dated February 25, 2000 (Attached hereto as Exhibit A and incorporated in this response).

      Approximately 1,600 public comments were received relating to the first draft of these proposed regulations. Almost all of the comments were critical of the proposed regulations, most often citing vagueness as the biggest problem. Unfortunately; the revised regulations suffer the same problem, as described more fully below.

      A significant reason for the Department's inability to draft clear and legally valid regulations is that it is forced to decipher and interpret a statute that is itself hopelessly vague. Consequently, the Department's best chance of drafting regulations that can withstand legal challenge and avoid injustice to firearm owners is to draft regulations that clarify and narrow the scope of the statute in order to protect the rights of gun owners, dealers, and manufacturers and avoid making felons of those who inadvertently disobey the law. The revised regulations miss this mark by intentionally or unintentionally expanding the scope of SB 23 and failing to clarify the reach of SB 23's criminal sanctions.

      It seems, in fact, that the Department recognizes the ambiguity inherent in the terms used in the statute and that rather than clarify them, it has drafted the regulations so as to leave those terms so vague that each of California's 58 District Attorneys can, and will be forced to, adopt and apply his or her own interpretation of both the statute and the regulations. The result will be inconsistent prosecutions, most likely driven by local political inclination and ignorance of the law. The legal sale of certain firearms in Siskiyou County, for example, might result in a felony arrest in Los Angeles County. This regulatory ambiguity is unacceptable, and will result only in confusion and inadvertent violations of the law by well intentioned firearm owners.

      This inevitable ramification of the Department's failure to fully clarify the terms used in the statute is further exacerbated by its policy of refusing to take a position with respect to whether specific firearms are covered by SB23. That policy is now posted on the DOJ website, a copy of which is attached as Exhibit B.

      This letter will address a number of concerns which we wish to bring to your attention and to have incorporated into the official administrative record for consideration by the Department and the Office of Administrative Law, as well as 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 APA is also designed 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.)

Legal Objections to Proposed Regulation Section 978.20 (Definitions)

      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 set out more fully below. 

      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.

1)

Section 978.20(c)(d) "pistol grip that protrudes conspicuously beneath the action of the weapon" means any component that allows for the grasp, control. and fire of the firearm where the portion grasped is located beneath an imaginary line drawn parallel to the barrel that runs through a grip that allows for a pistol style grasp below the top of the exposed portion of the trigger. OBJECTIONS: The proposed definition greatly expands the scope and effect of SB 23 by including weapons not typically classified as "assault weapons" and fails to provide clarity as to the types of weapons that will be banned.

      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 and adds a new undefined term, "pistol style grasp." This new term further confuses the proposed definition since there are a wide variety of pistols which place the hand in different relation to the trigger than contemplated by the revised regulation.

      As we instructed in our February letter, the term "pistol grip" has had a distinct meaning and was described in the late 19th century In Farrow's Military Encyclopedia (Attachment 1 to February 25, 2000 letter): 

"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."

      That definition, as well as the statement that a pistol grip is found on nearly a11 sporting rifles and shotguns, is as true today as it was in 1895. There are basically two types of "pistol grip." The style found on semi-automatic pistols and those found on single shot pistols. Grips on single shot pistols are similar to those on so-called "sporting style" rifles, which the Legislature did not intend to regulate via this law.

      By not making clear which style the Department means to encompass with the proposed regulation, prosecutors will be free to file charges for all styles of grips. Exhibit C illustrates the similarity of the single shot grip with the gripping area of a conventional sporting-type rifle. Exhibit D describes the differences between the types of pistols and the necessity of using precise language.

      There is no dispute that SB 23 did not intend to classify virtually all sport 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. Indeed, Assemblyman Rod Wright explained that in a public hearing to Senator Perata, the author of SB 23. Senator Perata conceded that a "typical" M16/AR-15 could be modified by sawing off the pistol grip at the bottom of the trigger guard, thereby making the weapon legal under SB 23. (See letter by Assemblyman Rod Wright dated February 23, 2000, attached hereto as Exhibit E.)

      In as much as virtually all sport 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 are not. Determination of whether the protrusion is conspicuous is accomplished by using the action as a reference point. However, the use of this term in the statute introduces another element of vagueness since the "action" is neither a part 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. (See Attachment 2 to Feb. 25, 2000 letter). The legislature may have meant to say "receiver" which is a specific part - but they said "action." Thus, the conspicuous protrusion must be measured from a non-existent location.

      The regulation defines the term "action" as the "top of the exposed portion of the trigger." This random selection of a 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." Further, the addition of the words "portion of the" further confuses, rather than clarifies the regulation.

      If the Department is forced to identify a random point of "action," it should choose one that does not encompass a wide variety of sporting weapons never intended to be deemed "assault weapons."

      Criminal prosecutions should not and cannot be based on an undefined "pistol style grasp," mythical points of "action" and undefined "portions" of a trigger. Yet that is exactly what this revised regulation will result in.

2)

Section 978.20(a) "detachable magazine" means any magazine ammunition feeding device that can be readily removed readily from the firearm without disassembly of the firearm action or the use of a tool(s). For the purpose of this definition, a bullet or ammunition cartridge is not a tool. Ammunition feeding device includes any belted or linked ammunition. OBJECTIONS: The proposed definition greatly expands the scope and effect of SB 23 by including weapons not typically classified as "assault weapons" and fails to provide clarity as to the types of weapons that will be banned.

      The revised regulation creates a new problem by again using the term "action." As stated above, the definition of "pistol grip" creates a mythical point of "action" as the top part of the exposed trigger. Clearly, disassembly of the trigger mechanism is not what the Department contemplates.

      Further, the revised regulation does not resolve the problem previously identified by the NRA with respect to the M1 Garand rifle. Over six million M1 Garand-rifles were made between 1937 and 1954. Significant numbers have been sold to the general public by the federal Civilian Marksmanship Program and its predecessor 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 M1s 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 anyone who has been trained in the field stripping of the M1 rifle knows (and millions have been), the "magazine can be readily removed without the use of tools." The clip is released by pushing the clip latch. The barreled receiver is removed from the stock by removing the trigger housing and then the follower rod and follower assembly are removed - all without tools. (See Attachment 4 to February 25, 2000 letter.) 

      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 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.

3)

978.20(b) "flash suppressor" means any device that reduces or redirects muzzle flash from the shooter's field of vision. conceals the visible light or, flash created when a firearm is fired. This definition includes flash hiders, but does not include conipensators and muzzle brakes (devices attached to or integral with the muzzle barrel to utilize propelling gasses for counter-recoil). OBJECTIONS: The proposed definition greatly expands the scope and effect of SB 23 by including weapons not typically classified as "assault weapons" and fails to provide clarity as to the types of weapons that will be banned.

      The revision to this definition is worse than the original proposed definition. Under this definition, a blindfold, or a pair of sunglasses, would be classified as a "flash suppressor." Without objective testing criteria for determining what accessories are covered, such as what cartridges are to be used in generating the flash, or how the muzzle flash would be measured or recorded, it is impossible to determine whether the law is being violated, or whether accessories that were not meant to be covered (like those exempted in the previous draft of the regulation) are now prohibited.

4)

987.20(c) "forward pistol grip" means any protrusion in front of the trigger that is designed or intended to grasp and control the firearm a grip that allows for a pistol style grasp forward of the trigger. OBJECTIONS: The proposed definition greatly expands the scope and effect of SB 23 by including weapons not typically classified as "assault weapons" and fails to provide clarity as to the types of weapons that will be banned.

      Here again, the revised regulation incorporates a "new" undefined term, "pistol style grasp." There are five "protrusions" that are commonly found on semi-automatic, centerfire rifles that are designed to "grasp" 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 "off hand" shooting. The magazine can also be used to pull the rifle back into the shoulder and can be grasped like a "pistol grip" on many firearms that use a pistol length cartridge. (See Attachment 6 to February 25, 2000 letter). 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 to February 25, 2000 letter).

      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 done so. Presumably, the Legislature was trying to describe forward pistol grips found on a Street Sweeper shotgun or a Steyr Aug (See Attachment 8 to February 25, 2000 letter). The department's proposed regulation is overly broad and vague and does not satisfy the APA's criteria for adoption of regulations.

5)

978.20(f)(e) "thumbhole stock" means any a stock with any opening that enables the firearm to be grasped, controlled, and fired with one hand a hole that allows the thumb of the trigger hand to penetrate the stock. OBJECTIONS: The proposed definition greatly expands the scope and effect of SB 23 by including weapons not typically classified as "assault weapons" and fails to provide clarity as to the types of weapons that will be banned.

      The key word in this proposed definition is "hole." 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..." 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 which are called skeleton or Dragunov style that are all "hole" and very little stock (Attachment 9 to February 25, 2000 letter). These are not considered thumbhole stocks. The "hole" 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 type of stock it has.

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

6)

978.20(d) "permanently altered" ineaus any irreversable change or modification OBJECTIONS: The proposed definition greatly expands the scope and effect of SB 23 by including weapons not typically classified as "assault weapons" and fails to provide clarity as to the types of weapons that will be banned.

      The Department's decision to leave the "permanently altered" undefined creates more confusion. The Legislature intended for firearm owners to be able to alter their large capacity feeding devices to comply with the law, thus making registration of some firearms unnecessary and resale of the firearms possible. The Legislature specifically recognized that "permanently altered" required further explanation and clarification in order to give firearm owners sufficient guidance in how to bring their property into compliance with the law, and passed responsibility for that clarification to the Department. See Attachment F, paragraph three.

      More importantly, the failure to define a critical term in SB 23 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" so that citizens could bring their firearms into compliance with the law.

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, 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.

      Please do not hesitate to call us if you have questions or concerns.

Very Truly Yours, Trutanich - Michel, LLP C. D. Michel