Latest CA Assault Weapon NEWS (08-04-2016)
California Department of Justice's File and Print Regulations for Registration of Bullet-Button Assault Weapons approved by the Office of Administrative Law.
by Alexander Reyes
GM, Martin B. Retting, Inc.
CEO, Survivor Systems, Inc.
Friday August 4th, 2017
On Tuesday, August 1st 2017, CA Attorney General Xavier Becerra was finally able to push the DOJ’s much anticipated Assault Weapon regulations past the Office of Administrative Law this Monday (08-01-2017). This was the third attempt by Becerra, who retracted his first attempt early this year and had his second attempt denied by the OAL on June 26th. These regulations act to amend and adopt new sections to the CA Code of Regulations dealing primarily with the registration, identification and classification of “Assault Weapons” that fall under the recently enacted provisions of Senate Bill 880 (2016).
The adoption of these regulations is not without considerable controversy. Citing Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, SB880 claimed exemption from the Administrative Procedures Act. What this meant was that regulations proposed pursuant to SB880 did not need to go through the usual procedures of a Public comment period or open hearings. Regulations were submitted as “file and print.” Many feel that the regulations submitted went far beyond the legislative intent of SB880 by addressing many areas that were not part of original Senate Bill. Others argue that the many of the new regulations adopted without hearings or public comment fall well outside the scope of the Administrative Procedures Act exemption, which they claim should apply only to the registration process itself.
Needless to say, the CA firearms community, 2nd amendment supporters and legal analysts will be arguing about the language in these regulations for years to come and I’m sure that they will be met with many future legal challenges.
The most significant impact of SB880 was to change one phrase in Section 30515 of the Penal Code. One simple phrase, changed the definition of an “Assault Weapon” from a firearm with a “detachable magazine” and certain features to one that “That does not have a fixed Magazine.” Prohibiting features remained identical to previous legislation. SB880 went on to define a fixed magazine as “For purposes of this section, fixed magazine means an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the firearm action.”
Signed by Governor Brown on July 1st of 2016, it took the DOJ nearly 13 month to get regulations approved. During this time, they had to approve legislation to extend the implementation of SB880 an additional 6 months due to their inability to enact regulations or create the infrastructure required by the bill. The original deadline for registration was December 31st, 2017, but you now have until the end of June, 2018 to decide the fate of your firearms.
What follows are excerpts from the California Code of Regulations with a few of the significant changes related to Assault Weapons as well as some details of the new registration procedures. My comments or any explanations follow each section (comments are placed between parenthesis and in italics).
Remember, I am not a legal expert, so please take a moment to read the CCR sections and reach your own conclusions. Please do your homework and consult with legal counsel before making any decisions, taking any actions or engaging in any activities with any firearm, particularly one which may fall within the definition of an Assault Weapon.
CA Code of Regulations Changes:
11 CCR § 5469 (amended to define who must register)
“any person who, from January 1, 2001, to December 31, 2016, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as defined in Penal Code section 30515, including those weapons with an ammunition feeding device that can readily be removed from the firearm with the use of a tool (commonly referred to as a bullet-button weapon) must register the firearm before July 1, 2018.
(11 CCR § 5469 defines what an “assault weapon,” it was amended from the prior version to reflect the new definition of an “assault weapon” as well as mandate who can and must register their firearm. Most importantly, for owners of bullet button equipped firearms, this CCR section also acts to define the types of firearms that can be registered and was most likely the legal basis for 11 CCR § 5477 and its mandate that bullet buttons cannot be removed)
11 CCR § 5470 Registration of Assault Weapons Pursuant to Penal Code Section 30900(b)(1); Which Weapons Must be Registered
(a) Except as provided in section 5472 an assault weapon that does not have a fixed
magazine as defined by Penal Code section 30515, must be registered with the Department before July 1.2018.
(b) A semiautomatic centerfire or rimfire pistol with an ammunition feeding device that can be readily removed from the firearm with the use of a tool commonly referred to as a bullet-button weapon that has one or more specified features identified in Penal Code section 30515 is included in the category of firearms that must be registered.
(c) A semiautomatic centerfire rifle with an ammunition feeding device that can be readily removed from the firearm with the use of a tool commonly referred to as a bullet-button weapon that has one or more specified features identified in Penal Code section 30515 is included in the category of firearms that must be registered.
(d) A semiautomatic shotgun with an ammunition feeding device that can be readily removed from the firearm with the use of a tool commonly referred to as a bullet-button weapon, is included in the category of firearms that must be registered.
(11 CCR § 5470 is pretty straight forward, stipulating that bullet button firearms with certain features are now considered assault weapons. The only controversy here is in sub-paragraph (d) due to the fact that SB880 carries a typographical error in which the “fixed magazine” phrase was never attached to shotguns)
11 CCR § 5471 Registration of Assault Weapons Pursuant to Penal Code Section 30900(b)(1); Explanation of Terms Related to Assault Weapon Designation (this CCR section deals with definitions of various terms, for sake of expediency, I’ve noted only the most important provisions)
- (a)"Ability to accept a detachable magazine" means with respect to a semiautomatic shotgun, it does not have a fixed magazine.
(Sub-section (a) is a somewhat controversial CCR section in that it is was implemented to address a typo in SB880 that was never corrected during the legislative process. The new “fixed magazine” phrase was never attached to shotguns)
- (b)"Action" means the working mechanism of a semiautomatic firearm, which is the combination of the receiver or frame and breech bolt together with the other parts of the mechanism by which a fireman is loaded fired and unloaded.
- (f)"Bullet-button" means a product requiring a tool to remove an ammunition feeding device or magazine by depressing a recessed button or lever shielded by a magazine lock. A bullet-button equipped fully functional semiautomatic firearm does not meet the fixed magazine definition under Penal Code section 30515fb1.
- (k) "Contained in" means that the magazine cannot be released from the firearm while the action is assembled. For AR-15 style firearms this means the magazine cannot be released from the firearm while the upper receiver and lower receiver are joined together.
(sub-section (k) to a certain extent legitimizes the newer magazine locks that we are seeing on the market)
- (m) "Detachable magazine" means and ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action or use of a tool. A bullet or ammunition cartridge is considered a tool. An ammunition feeding device includes and belted or linked ammunition but does not include clips, en-bloc clips, or striper clips that load cartridges into the magazine.
” an AR15 style firearm lacking a magazine catch assembly magazine catch magazine catch spring and magazine release button) constitutes a detachable magazine An AK-47 style firearm lacking a magazine catch assembly (magazine catch spring and rivet/pin) constitutes a detachable magazine.”
- (n) "Disassembly of the firearm action" means the fire control assembly is detached from the action in such a way that the action has been interrupted and will not function. For example, disassembling the action on a two part receiver like that on an AR-15 style firearm would require the rear take down pin to be removed the upper receiver lifted upwards and away from the lower receiver using the front pivot pin as the fulcrum before the magazine may be removed.
(like sub-section (k), this section essentially defines the requirements for “disassembly” and to a certain extent legitimizes the newer magazine locks that we are seeing on the market)
- (o) “Featureless” means a semi-automatic firearm (rifle, pistol or shotgun) lacking the characteristics associated with that weapon, as listed in Penal Code section 30515
(sub-section (o) legitimizes the concept of the “featureless builds” that are becoming a very popular alternative to registration or magazine locks. Featureless firearms are not required to have fixed magazines)
- (p) “Fixed Magazine” means an ammunition feeding device contained in, or permanently attached to, a firearm in such a manner that the device cannot be removed without disassembly of the action.
- (r) "Flash suppressor" means any device attached to the end of the barrel that is designed, intended or functions to perceptibly reduce or redirect muzzle flash from the shooter's field of vision. A hybrid device that has either advertised flash suppressing properties or functionally has flash suppressing properties would be deemed a flash suppressor. A device labeled or identified by its manufacturer as a flash hider would be deemed a flash suppressor.
(This sub-section is very important to those who are considering a featureless build. Unfortunately it isn’t entirely clear on what constitutes as “flash hider” and to a certain extent puts the burden on the manufacturer of the device. This is one of several instances in which the DOJ appears to have just decided to “punt” and leave something up to interpretation)
- (z) "Pistol grip that protrudes conspicuously beneath the action of the weapon" means a grip
that allows for a pistol style grasp which the web of the trigger hand (between the thumb and index finger) can be placed beneath or below the top of the exposed portion of the trigger while firing. This definition includes pistol grips on bull-pup firearm designs.
(This sub-section is significant to those who are considering a featureless build. It very clearly defines what a pistol grip is for purposes of assault weapon identification. For featureless builds, it clarifies that a design that doesn’t allow for the thumb to wrap is permissible)
- (hh) "Semiautomatic" means a firearm functionally able to fire a single cartridge, eject the empty case and reload the chamber each time the trigger is pulled and released. Further, certain necessary mechanical parts that will allow a firearm to function in a semiautomatic nature must be present for a weapon to be deemed semiautomatic. A weapon clearly designed to be semiautomatic but lacking a firing pin bolt carrier, gas tube, or some other crucial part of the firearm is not semiautomatic for purposes of Penal Code sections 30515 30600 30605(a), and 30900.
- (1) A mechanically whole semiautomatic firearm merely lacking ammunition and a proper magazine is a semiautomatic firearm.
- (2) A mechanically whole semiautomatic firearm disabled by a gun lock or other firearm safety device is a semi-automation firearm.
- (3) With regards to an AR-15 style firearm if a complete upper receiver and a complete lower receiver are completely detached from one another, but still in possession or under the custody or control of the same person, the firearm is not a semi-automatic firearm.
- (4) A stripped AR-15 lower receiver when sold at a California gun store, is not a semiautomatic firearm (The action type among other things is undetermined.)
(This sub-section is significant for the fact that it appears to define that “constructive possession” is subject to whether the subject firearm is in one piece and capable of functioning. This means that essentially that a ”semi-auto” firearm that is not assembled is not a “semi-auto” firearm for purposes of “assault weapon” legislation. Please note that this only applies to the category 3 “features” based definitions, not to any early “named” guns, such as those affected by Roberti-Roos or the Kasler decision.)
- (mm) "Stock fixed" means a stock that does not move, fold or telescope.
- (nn) "Stock folding" means a stock which is hinged in some fashion to the receiver to allow the stock to be folded next to the receiver to reduce the overall length of the firearm. This definition includes under folding and over folding stocks.
- (oo) "Stock telescoping" means a stock which is shortened or lengthened by allowing one section to telescope into another portion On AR-15 style firearms the buffer tube or receiver extension acts as the fixed part of the stock on which the telescoping butt stock slides or telescopes.
(sub-sections (mm), (nn) and (oo) define stocks that are affected by assault weapon legislation and which ones are considered “features” for purposes of assault weapon identification. This sub-section is very important to those who are considering a featureless build.)
11 CCR § 5472 Registration of Assault Weapons Pursuant to Penal Code Section 30900(b)(1); Weapons That Will Not Be Registered as Assault Weapons
- (a) The Department will not register as an assault weapon a firearm unless it was lawfully possessed on or before December 31, 2016.
- (b) The Department will not register a firearm that was required to be registered under prior assault weapon registration laws in effect before January 1 2017. These weapons include, but are not limited to firearms known as "named assault weapons" and are listed in Penal Code section 30510 and sections 5495 and 5499 of Chapter 40.
- (c) The Department will not register a firearm as an assault weapon if the firearm is featureless except for bullet-button shotguns as described in section 5470(d).
- (d) The Department will not register a firearm as an assault weapon if the firearm has a fixed magazine that holds ten rounds or less.
- (e) The Department will not register a firearm as an assault weapon unless the firearm is fully assembled and fully functional
- (f) The Department will not register as an assault weapon a firearm manufactured by a federally licensed manufacturer if the firearm does not have a serial number applied pursuant to federal law.
- (g) The Department will not register as an assault weapon a FMBUS if the firearm does not have a serial number assigned by the Department and applied by the owner or agent Pursuant to section 5474.2.
(11 CCR § 5472 a-g actually covers quite a bit and has some pretty far reaching ramifications for gun –owners in CA. Along with 11 CCR § 5469, 11 CCR § 5472 (b) was likely used to establish the legal basis for 11 CCR § 5477 and its mandate that bullet buttons cannot be removed after registration. 11 CCR § 5472 (e) is equally significant in that it requires that firearms must be assembled and functional prior to registration. This affects the countless individuals that purchased “stripped” lower receivers in 2016 for future build projects)
11 CCR § 5473. Registration of Assault Weapons Pursuant to Penal Code Section 30900(b)(1); California Firearms Application Reporting System ("CFARS").
All Assault weapon registrations must be filed electronically using the Department's California Firearms Application Reporting System (CFARS). You will be required to create CFARS account and you will be required to agree to certain terms and conditions of use.
Once a CFARS account has been created registrants must provide the following information:
- The registrant’s full name address telephone number date of birth, sex, height, weight, eye color, hair color, military identification number (if applicable), California Driver License number or California Identification Card number, U.S. citizenship status, place of birth, country of citizenship, and alien registration number or I-94 (if applicable)
- A description of the firearm that identifies it uniquely, including but not limited to: firearm type, make, model, caliber, firearm color, barrel length, serial number, all identification marks, firearm country of origin manufacturer, the date the firearm was acquired, the name and address of the individual from whom, or business from which the firearm was acquired.
- Clear digital photos of firearms listed on the application.
- One photo shall depict the bullet button style magazine release installed on the firearm.
- One photo shall depict the firearm from the end of the barrel to the end of the stock if it is a long gun or the point furthest from the end of the barrel if it is a pistol.
- The other two photos shall show the left side of the receiver/frame and right side of the receiver/frame. These locations are typically where firearms are marked when manufacturing is complete.
- At the discretion of the Department the last two photos shall be substituted for photos of identification markings at some other locations on the firearm.
(11 CCR § 5473, along with 11 CCR § 5472 (e), further stipulates that firearms must be assembled and functional prior to registration. Again, this significantly impacts individuals that purchased “stripped” lower receivers in 2016 expecting to be able to register them for later use. This is a very significant regulation and is just one of several in which the DOJ appears to have over-stepped the legislative intent of SB880)
11 CCR § 5477 Registration of Assault Weapons Pursuant to Penal Code Section 30900(b)(1); Post-Registration Modification of Registered Assault Weapons, Prohibition:
(a) The release mechanism for an ammunition feeding device on an assault weapon registered pursuant to Penal Code section 30900 subdivision (b2(11 shall not be changed after the assault weapon is registered. A weapon's eligibility for registration pursuant to Penal Code section 30900 subdivision (b) (1) depends in part on its release mechanism. Any alteration to the release mechanism converts the assault weapon into a different weapon from the one that was registered.
(b) The prohibition in subdivision (a) does not extend to the repair or like-kind replacement of the mechanism.
(c) This prohibition in subdivision (a) does not extend to a firearm that is undergoing the de-registration process pursuant to section 5478 Written confirmation from the Department that acknowledges the owner's intent to de-register his or her assault weapon pursuant to section 5478 shall be proof the de-registration process has been initiated.
(11 CCR § 5477 (a) is the most controversial and certainly the most far-reaching regulation enacted within the scope of SB880. Section 11 CCR § 5477 (a), 11 CCR § 5469 and 11 CCR § 5472 (b) when viewed together seem to establish, at least in the eyes of the DOJ, a de-facto and unwritten “4th category” of assault weapon in CA.
Many feel that 11 CCR § 5477 (a) goes well beyond the scope of SB880’s legislative intent and in a sense creates a new legislative mandate. Many AR owners were anticipating that after registration, they would be able to remove their bullet buttons and install a regular magazine catch. Needless to say, 11 CCR § 5477 (a) appears to dash these hopes and will likely be the major rationale cited by individuals who opt not to comply or choose to seek alternatives to registration. I’m sure that 11 CCR § 5477 (a) will meet significant legal challenges.)
About the author: Alex Reyes is a 34 year veteran of the firearms industry. He is currently the GM of Martin B. Retting, Inc., one of the oldest firearms dealers in CA. He is also the inventor/designer of the Option Zero CA compliant featureless stock and CEO of Survivor Systems, Inc. which manufactures AR15 accessories and furniture.