§ 30605(a)Steven Lieberman
This last week was a busy one for the Law Offices of Lieberman and Taormina… a good one, but a busy one!
We successfully disposed of a case involving a weapon brought to a school by a school administrator. (Yes… even administrators screw up sometimes!) We also took care of another “gun at the airport” case. Sadly… there seems to be too many of those! CCW holders… check your bags three times before heading to the airport! Then we had a really unique case that I want to talk to you about.
The Law Offices of Michel and Associates, as many of you know, provide some absolutely outstanding work in firearms law. Many of the appellate cases that you have all come to know and love have been litigated by Chuck Michel and the lawyers at Michel and Associates.
Early last week, as I was driving back to Artemis from a court appearance in Long Beach, I received a phone call from two of the attorneys at Michel and Associates. They had a case set for a preliminary hearing in Van Nuys on Thursday and felt that the case would benefit from an expert witness. They were calling to see if I would be willing to testify as an expert.
“What is the fact pattern of the case?”
“So, our client is a gun-parts manufacturer. He is not an FFL, but makes accessories for AR-15s and sells them at gun shows. He was at the Big Reno gun show last year with his assistant, an 18-year-old kid. When they were packing up to leave, the kid accidentally took a bag from the neighboring vendor who was also packing up. When they got back to the shop in the Valley, they realized that they had this extra bag. Inside was an HK 93. (Note: an HK 93 is a specifically enumerated assault weapon pursuant to CPC § 30605(a).) They contacted the other vendor and asked if they should ship the weapon back to him. He told them to hold onto it and simply give it to him at the next gun show. The client then disassembled the weapon into its component parts to keep it from being classified as an assault weapon. Subsequently, he had contact with law enforcement that ultimately resulted in a search of his shop. During the search they found the disassembled HK 93 and contacted the LAPD Gun Unit. The Gun Unit determined that since the receiver was stamped with HK 93 it constituted an assault weapon under 30605(a) and arrested him for felony possession of an assault weapon. We need to educate the judge during the prelim to explain that the weapon in its component state is not a semiautomatic firearm and, thus, not an assault weapon under 30605(a). Would you be willing to write a report and testify as an expert on firearms law as to the analysis required for determining when something is an assault weapon?”
“Done. Give me the courtroom and time, and I’ll be there. I will write the analysis tonight.”
Honestly, being asked by Michel and Associates to be its expert was extremely flattering. That said, I was also righteously indignant about the case as well. Based on the established facts, the client was doing his best to be compliant with California law. In my opinion, he had satisfactorily complied with California law as it relates to a 30605 analysis. (He may have violated firearm transfer laws, but he was not charged with that). Regardless, the LAPD Gun Unit did not do a proper analysis when arresting, and the DA, I would later learn, was completely clueless as to the proper legal analysis necessary to prosecute.
CPC § 30605 prohibits the possession of an assault weapon. This then takes us to § 30510 which reads: The firearm must be a semiautomatic. Then under § (a) (9) it specifically enumerate an HK-93 as being an assault weapon.
So, to do this analysis we first need to determine if the weapon is a semiautomatic firearm. The California Department of Justice has done an exhaustive analysis of what does, and what does not, constitute a semiautomatic firearm. Cal Code Regs. Tit. 11, § 5471 states:
“A weapon clearly designed to be a semi automatic, but lacking a firing pin, bolt carrier, gas tube or some other crucial part of the firearm is not semiautomatic for the purposes of Penal Code sections 30515 and 30605(a).”
Since the HK 93 was disassembled into its component parts, it was not a semiautomatic firearm. Since it is not a semiautomatic, the analysis ends there. The LAPD Gun Unit simply considered the stamped receiver sufficient to be considered a semiautomatic, thereby ignoring the admonition cited above.
The day of the preliminary hearing, the attorney from Michel and Associates and I met early to go over my testimony and review my report. We met the defendant, a nice man who was clearly nervous about the hearing. His business has been thrown into disarray since the arrest and he has been living with the Sword of Damocles hanging over his head.
The DA reviewed my report and the brief that counsel had prepared and admitted flat-out confusion. He stated he is not a “gun guy” and would let the judge decide.
The arresting officer from the Gun Unit also showed up. He would act as the State’s “expert witness.”
We cajoled the investigator out of the courtroom and into the hallway and told him our legal theory. He stated that the policy of the LAPD is that a stamped receiver is a firearm. We agreed that a stamped receiver is a firearm, but it is not a semiautomatic. He looked over our brief.
As he read the brief we heard the golden sound:
He put the brief down and looked at us.
“I think you are right.”
“It is not our policy, but I think your analysis is correct. Well… it is up to the DA what he wants to do.”
“Actually, it is not. He told us he is relying on you.”
“Okay, I’ll go talk to him.”
We went back into the courtroom and watched as the DA and the investigator conferenced in the corner. Finally the DA came up to us.
“Okay, there appears to be a change of circumstances now. I’ll move to dismiss.”
Five minutes later, the DA dismissed the case against the client and the case was over. The client hugged us and cried in the hallway. He could now go on with his life.
While I would like to proclaim that justice was served that day… and for the most part it was, I cannot help but be distressed over the fact that the client literally had to go through hell for no other reason then a misapplication of the law by the State.
Regardless… it was a good day.