Challenge to Assault Gun Ban Upheld

TIMES LEGAL AFFAIRS WRITER

Guns that are nearly identical to assault weapons banned in California are legal unless they were outlawed by name or have specific assault weapon characteristics, the California Supreme Court ruled Thursday.

Chief Justice Ronald M. George, in a strongly worded dissent, accused the high court's majority of creating a loophole in the state's assault weapons ban that could allow copycat weapons to circulate.

The 4-2 decision allows the state attorney general to continue adding names of guns to the list of banned weapons. But gun users may not be prosecuted unless their weapons were specifically identified in a 1989 law or covered by a more generic ban added by the Legislature in 1999, the court said.

Justice Janice Rogers Brown, writing for the majority, said a contrary ruling would have left gun owners and law enforcement unsure about which weapons were banned.

"Not only would ordinary citizens find it difficult . . . to determine whether a semiautomatic firearm should be considered an assault weapon, ordinary law enforcement officers in the field would have similar difficulty," Brown wrote.

The impact of the ruling will be limited by 1999 revisions to the assault weapons law passed by the Legislature. In an attempt to go after copycat weapons, lawmakers expanded the ban to include not only named weapons but any guns that had specific characteristics.

For example, the manufacture, sale, loan or gift of ammunition magazines capable of accepting more than 10 rounds was outlawed. Military-style semiautomatic firearms also were banned based on generic features, including a protruding pistol grip.

Dennis Henigan of the Center to Prevent Handgun Violence said he was surprised and disappointed by the ruling, because it "could be a problem if you had an attorney general who was hostile to the statute itself and refused to list guns."

Henigan also said some assault weapons that are not on the list may not have the characteristics included in the generic ban and will now be legal under the ruling.

Some gun control advocates charged that former state Atty. Gen. Dan Lungren, a Republican, was not aggressively enforcing the law. Current Atty. Gen. Bill Lockyer, a Democrat, has added many guns to the banned list, they said.

The high court ruling stemmed from a case brought by J.W. Harrott, a Delano lawyer who accepted a gun collection in payment for legal services in a drug trial.

The Kings County Sheriff's Department, which had the gun collection, refused to give Harrott one of the weapons, a semiautomatic rifle, on the grounds that it was an assault weapon banned by the 1989 law.

A Superior Court judge ruled that the weapon was banned, but a Court of Appeal overturned that decision.

In its opinion Thursday, the high court majority quoted at length from a brief filed by the National Rifle Assn.

"If allowed to stand, the trial court's decision in Harrott would subject California gun owners, particularly hunters, to whimsical and capricious prosecution," the court quoted the NRA as saying in Harrott vs. County of Kings, S055064.

"Kern County might have no problem with a particular firearm, but a single judge in Kings County could turn a truly innocent citizen . . . into a felon."

George, who was joined by Justice Kathryn Mickle Werdegar in opposing the ruling, complained that the decision "represents a clear and unwarranted frustration" of the Legislature's intention to ban all assault weapons.

He noted that the Legislature added specific language to the law in 1991 that banned all AK series rifles, regardless of whether their particular model was listed.

At least the "detrimental effect" of the decision will be diminished by the 1999 revisions to the law "and the current attorney general's apparent willingness to attempt to keep up with firearm manufacturers' production of new AK models," George said.

Harrott, who practices criminal and family law, said Thursday that he is glad he will finally get his gun. He said he pursued the case for nearly seven years because he had promised his former client "that none of his property would stay in the Kings County evidence locker."

The lawyer has enjoyed hunting and target shooting in the past, but he said he is "not a gun kook."

Even though he won Thursday's case, Harrott said his weapon, which is registered, was banned by the 1999 revisions. However, the gun ban allowed some owners to keep assault weapons if they registered them within a certain time.

John S. Dulcich, who represented Harrott, said the semiautomatic rifle that sparked all the litigation is worth $300 to $900. The legal fight was more about "the principle of the situation" than the weapon, Dulcich said.

The ruling is "important because it gives some more clarity to whether an ordinary citizen is going to be prosecuted as a felon," Dulcich said. He said gun holders can get around the generic ban by modifying their weapons slightly.

The California Supreme Court upheld the constitutionality of the 1989 ban last year but has not ruled on the 1999 revisions.

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