Judges cannot declare firearms illegal under the state’s assault-weapons ban law, the California Supreme Court ruled Thursday in a decision the dissenting chief justice said created a “loophole” in the 1989 act.
In a 4-2 vote that featured a blistering dissent by Chief Justice Ronald M. George, the high court ruled that a semiautomatic rifle is legal if it is not explicitly designated illegal under 1991 amendments to the act.
Justice Janice Rogers Brown, agreeing with arguments made in the case by the National Rifle Association, wrote that the 1991 provisions – enacted to ban the proliferation of generic versions of outlawed weapons – was too vague for gun owners to know which of the so-called copycat weapons of the Russian-made “AK series” were illegal.
Without explicitly listing each weapon, Brown wrote, “Ordinary law-abiding citizens could suddenly find themselves ... subject to prosecution.”
The immediate fallout of Thursday’s decision is that an untold number of copycat weapons to the AK series are now legal in California.
George wrote that the “Legislature recognized the impossibility of compiling a comprehensive list” of all AK series rifles and therefore chose not to when it wrote the 1991 amendments.
“By refusing to heed the clear statutory language classifying all AK series rifles as assault weapons, whether specifically identified by name or model or not, the majority creates a loophole in California’s assault weapons control legislation that the Legislature plainly intended to eliminate,” George wrote.
Thousands of people in California have been convicted wrongly for possessing, transporting or using AK series weapons, said Chuck Michel, a lawyer for the National Rifle Association.
“It took years to clarify this mess and in the meantime hundreds or perhaps thousands of accidental felons were created by a law that was pushed through without a full consideration of the consequences,” Michel said.
The state attorney general’s office was reviewing the decision Thursday and would not comment on Michel’s assertions, spokesman Nathan Barankin said.
Thursday’s decision was based on a 1994 confiscation of an AK series rifle from a Delano attorney who was given the gun instead of payment from a client.
Authorities seized the weapon on grounds it was banned under the 1991 amendments. Kings County Superior Court Judge Peter M. Schultz ruled that the weapon was illegal, a decision the high court reversed Thursday.
Still, George wrote that the court’s decision may be minimized by amendments the Legislature enacted to the assault-weapons act in 1999.
That year, lawmakers adopted a provision that bans assault-weapons based on a host of features instead of makes and models – a move that makes illegal hundreds of so-called copycat weapons not clearly defined in the law. That provision has not been tested in California’s courts. Gun proponents said the Supreme Court decision gives them fodder to challenge it.
The NRA’s Michel said Thursday’s decision bolsters arguments that the 1999 amendments are illegal because outlawed guns are not clearly identified.
“A lawsuit will be filed challenging this,” he said.
The decision means that some copycat weapons to the AK series will now be legal.
That is because some of the weapons do not have the features that would make them illegal under the 1999 provisions. Those features include semiautomatic rifles having a detachable magazine for bullets, and one of the following: a pistol grip, a stock with a hole for a thumb, a grenade launcher and, among other features, a flair launcher.
“It’s conceivable that you have an assault weapon that fell under the 1991 category and isn’t covered by the new legislation,” said John S. Dulcich, the attorney who won Thursday’s case on behalf of Delano lawyer J.W. Harrott.
Under the high court’s closely watched decision last year upholding the original assault-weapons law, a majority of justices noted that the state attorney general’s office has the discretion to add weapons to the list of the hundreds of weapons already banned.
Gun-control advocates said Thursday that Attorney General Bill Lockyer has greatly expanded the number of illegal weapons, but worried Thursday’s decision gives the state’s top law enforcement officer too much leeway.
“What if the next attorney general is not as aggressive as Lockyer?” asked Dennis Henigan, an attorney for the Center to Prevent Handgun Violence.
The Roberti-Roos Assault Weapons Control Act of 1989 originally outlawed 75 weapons that are high-powered and have rapid-fire capabilities. The Legislature passed the nation’s first law banning such weapons after a gunman, Patrick Purdy, fired a semiautomatic weapon into a Stockton school yard, killing five children and injuring 30.
Following California’s lead, several states and the federal government passed similar or even stricter bans.
The case decided Thursday is J.W. Harrott v. Kings County, S055064.