OFF THE WIRE
Fresno Court Issues Formal Ruling Finding Ammunition Regulations Are Unconstitutionally Vague
by C.D. Michel
February 2, 2011 - The Fresno County Superior Court has issued its awaited formal Opinion holding that AB 962, the law that would have banned mail order ammunition sales and imposed burdensome record keeping requirements on gun dealers, is unconstitutional. In its 22 page Order, the Court held that "[a]fter careful consideration, the Court finds that the definition of ‘handgun ammunition’ as established in Penal Code §§ 12060(b) and 12318(b)(2) is unconstitutionally vague and, [that] because the definition of ‘handgun ammunition’ is vague, Penal Code §§ 12060, 12061, and 12318, which define and regulate sales and transfers of ‘handgun ammunition’ are also impermissibly vague." The Court’s Order Denying Plaintiffs’ Motion for Summary Judgment and Granting in Part Plaintiffs’ Motion for Summary Adjudication is posted here.
The ruling was issued in the case of Parker v. California, No. 10CECG02116 (Super. Ct. Fresno, Filed June 17, 2010). The Parker lawsuit alleged, and the Court agreed, that AB 962 was unconstitutionally vague on its face because it failed to provide sufficient legal notice of what ammunition cartridges were "principally for use in a handgun," and thus considered "handgun ammunition" regulated under AB 962. It was practically impossible, both for those subject to the law and those responsible for its enforcement, to determine whether any of the thousands of different types of ammunition cartridges that can be used in handguns were actually "principally for use in" or used more often in, a handgun. The proportional usage of any given cartridge is impossible to determine, and in any event changes with market demands. In fact, the legislature itself was well aware of the vagueness p! roblem with AB 962’s definition of "handgun ammunition" and tried to redefine it via AB 2358 in 2010. AB 2358 failed in the face of opposition from the NRA and CRPA based on the proposal’s many other nonsensical infringements on ammunition sales to law abiding citizens.
The Court’s ruling follows the issuance on January 24th of a Permanent Injunction that prevents enforcement of the provisions of AB 962 (Penal Code sections 12060, 12061, and 12318.) The January 24th Order of Permanent Injunction followed the dramatic ruling on January 18th that AB 962 was unconstitutionally vague on its face. By enjoining enforcement of these statutes, mail order ammunition sales to California can continue unabated, and ammunition sales need not be registered under the law.
The lawsuit was prompted in part by the many objections and questions raised by confused police, ammunition purchasers, and sellers about what ammunition is covered by the new laws created by AB 962. In a highly unusual move that reflects growing law enforcement opposition to ineffective gun control laws, Tehama County Sheriff Clay Parker was the lead plaintiff in the lawsuit. Other plaintiffs included the CRPA Foundation, Herb Bauer Sporting Goods, ammunition shipper Able’s Ammo, collectible ammunition shipper RTG Sporting Collectibles, and individual Steven Stonecipher. Mendocino Sheriff Tom Allman also supported the lawsuit.
Parker v. California was funded exclusively by the NRA and the CRPA Foundation. Had it gone into effect, AB 962 would have imposed burdensome and ill conceived restrictions on the sales of ammunition. AB 962 required that "handgun ammunition" be stored out of the reach of customers, that ammunition vendors collect ammunition sales registration information and thumb-prints from purchasers, and conduct transactions face-to-face for all deliveries and transfers of "handgun ammunition." The lawsuit successfully sought a declaration from the Court that the statute was unconstitutional, and successfully sought the injunctive relief prohibiting law enforcement from enforcing the new laws.
Constitutional vagueness challenges to state laws are extremely difficult to win, particularly in California firearms litigation so this success is particularly noteworthy. Even so, an appeal by the State is likely, but the Court’s Order enjoining enforcement of the law became effective February 1, 2011 regardless.
Despite this win for common sense over ill-conceived and counter productive gun laws, additional legislation on this and related subjects will no doubt be proposed in Sacramento this legislative session. It is absolutely critical that those who believe in the right to keep and bear arms stay informed and make their voices heard in Sacramento. When AB 962 passed there was a loud outcry from law abiding gun owners impacted by the new law. Those voices must be heard during the legislative session and before a proposed law passes, not after a law is signed. To help, sign up for legislative alerts at www.nraila.com and www.calnra.com and respond when called upon.
Seventeen years ago the NRA and CRPA joined forces to fight local gun bans being written and pushed in California by the gun ban lobby. Their coordinated efforts became the NRA/CRPA "Local Ordinance Project" (LOP) - a statewide campaign to fight ill conceived local efforts at gun control and educate politicians about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners. The NRA/CRPA LOP has had tremendous success in beating back most of these anti-self-defense proposals
In addition to fighting local gun bans, for decades the NRA has been litigating dozens of cases in California courts to promote the right to self-defense and the 2nd Amendment. In the post Heller and McDonald legal environment, NRA and CRPA Foundation have formed the NRA/CRPA Foundation Legal Action Project (LAP), a joint venture to pro-actively strike down ill-conceived gun control laws and ordinances and advance the rights of firearms owners, specifically in California. Sometimes, success is more likely when LAP's litigation efforts are kept low profile, so the details of every lawsuit are not always released. To see a partial list of the LAP’s recent accomplishments, or to contribute to the NRA or to the NRA / CRPAF LAP and support this and similar Second Amendment cases, visit http://www.nraila.com/ http://www.crpafoundation.org/.
I’ve heard that theory before “Unconstitutionally Vague”; maybe we could try that angle on the helmet law...or maybe we just need a better attorney?
MAC
If an attorney just wants to try and get your case dismissed, but has no interest in the cause, or establishing case law precedence, he or she might avoid bringing up constitutional law other than trying to get you off by quashing evidence or testimony, but since you do want an attorney who takes an interest in the cause, you might consider another attorney or representing yourself pro se. Heck, most BOLTsters would do a better job at representing you, if they were allowed by the courts to do so.
JAN
