Friday, June 29, 2001
Attorney General, Not Courts, Has Authority to Brand Guns Banned Assault Weapons, S.C. Rules
By ROBERT GREENE, Staff Writer
The power to decide whether a particular type of gun is a banned assault weapon resides with the state attorney general and not with the courts, the California Supreme Court ruled yesterday.
Trial courts may not declare a weapon to be forbidden based on its close similarity to weapons already on the attorney general’s list of banned guns, but must limit themselves strictly to the guns specified on the list, Justice Janice Rogers Brown wrote for a divided high court.
In the latest ruling arising from a Delano lawyer’s attempt to collect a bevy of firearms as part of his fee, Brown said that the Kern Superior Court acted outside its authority when it branded one of those guns to be a forbidden “AK” series weapon.
Legislative history behind the Roberti-Roos Assault Weapons Control Act of 1989 and subsequent amendments show that lawmakers wanted to be certain there was no ambiguity about which weapons were subject to confiscation, Brown said. That concern is reflected in the mandate that the attorney general keep his list current and the lack of corresponding mandate that courts notify the attorney general if they declare certain firearms to be assault weapons.
Quoting from the Fifth District Court of Appeal’s opinion in the case, Brown said:
“Without notice to the Attorney General, any trial court could, at any time, declare firearms to be assault weapons, thereby rendering the Attorney General’s list obsolete and frustrating the intent to the Legislature.”
Brown’s opinion in the 4-2 ruling drew a dissent from Chief Justice Ronald George, who said the ruling “eviscerates” a key provision of the assault weapon ban.
“In the face of the clearest possible statutory language—defining ‘assault weapon’ for purposes of the AWCA to encompass ‘[a]ll AK series [rifles], including but not limited to, the models identified as follows…’—the majority inexplicably concludes that this provision designates as assault weapons only the particular AK model rifles that are identified specifically by name in the statute, and does not permit the police, other law enforcement authorities, or the courts to treat as assault weapons other AK series semiautomatic rifles that are only minor variations of the listed AK models unless and until the particular AK series rifle has been explicitly included by name and model on a list promulgated by the attorney general.”
The Legislature specifically used language that would assure that all AK series rifles be treated as banned assault weapons, George said, and not just those enumerated on the attorney general’s list.
At issue is one gun in a collection that attorney Jimmy W. Harrott agreed to take as payment from clients he represented in a receiving stolen property prosecution.
The clients pled guilty.
The Kings County Sheriff’s Department, which had possession of the collection, refused to deliver the one gun to Harrott on the grounds that it was a banned assault weapon.
Harrott argued that it was not, because it was not on the attorney general’s list. The Kings Superior Court declared that it was—as an Avtomat Kalashnikov series weapon under Penal Code Sec. 12276(a)(1) and (e).
The trial court reasoned that the differences between Harrott’s gun and a Chinese-made AK series weapon on the list were minor.
Brown noted that the attorney general testified that the lawyer’s gun was not on the list.
Unlike the courts, she said, the attorney general has the authority to determine that certain semiautomatic firearms are assault weapons by simply identifying them as such on the list published in the California Code of Regulations. Even the attorney general’s power is limited she noted, in that it applies only to the AK47 series and the Colt AR-15 series.
In order to have any other semiautomatic weapons added to the list, Brown said, the attorney general must use a special “add-on” procedure detailed in the Penal Code.
While trial courts may not declare guns assault weapons simply by identifying them with guns on the list, the justice added, some trial courts—although not the Kern Superior Court—may also use the add-on procedure. The Kern court may not, she said, because it is not a court in a county with a population of more than 1 million—the jurisdictional requirement under the act.
The case is Harrott v. County of Kings, S055064.
Copyright 2001, Metropolitan News Company