Wednesday, April 13, 2016

What's New in California Gun Laws?

AB-2459

This proposed bill would require all gun dealers in California to install extensive surveillance systems and to maintain all video footage on site for a number of years.  It would prohibit licensed firearms dealers from operating out of their homes and would reaffirm the right of local municipalities to impose more stringent requirements on gun dealers.

The measure is working its way though the Assembly committee process.  It was watered down a little in the Committee on Public Safety last week.  Now it's headed back to the Committee on Privacy & Consumer Protection.

A previous version of the proposal would have required complete video surveillance of the interior and exterior of any licensed gun shop, including the parking lot and areas where inventory is stored, displayed or handled.  It also would have mandated that the store owner maintain all footage on site for a period of 5 years.

As amended, the latest version of the proposed law would only require gun dealers to record transactions.  The video footage must be in color and of sufficient definition to record the facial features of all buyers.  The bill's author dropped provisions that would have mandated surveillance of the exterior and areas of the shop where inventory is stored.  The period of time for which store owners would be responsible for maintaining the footage was also reduced from 5 years to 3 after the most recent amendments.

The stated purpose of the law is to discourage "straw purchases", where a buyer purchases a firearm on behalf of someone else who would be precluded from purchasing the weapon himself or herself.  The actual, intended purpose of the law is to drive California gun dealers out of business by imposing more expensive, onerous regulations.  Straw purchases are a serious problem because they contribute to weapons falling into the hands of dangerous criminals and mentally ill individuals. California already has a robust system in place, however, to track firearms back to their original purchaser if the gun later ends up in the possession of a prohibited person.  All gun buyers in California are already required to present a valid, government-issued photo ID, 2 "proof of residence" documents, and a thumb print.  The gun dealer must make photocopies of these documents and maintain them on file, along with the serial number and a description of the weapon sold. It is not clear to me how video surveillance would be of any real use in identifying an illegal buyer if the dealer already has that person's ID, home address and thumb print on file.  A government-issued photo ID with a thumb print is a much more reliable means of identification than any grainy video surveillance footage.

Current Status of Peruta v. San Diego

This is the case that turned California's CCW licensing scheme on it's head.  It's not really news, but I figured it was time to check in on its current status as this legal dispute slowly navigates our federal court system.

Here's a little background:  Prior to 2014, San Diego County, in accordance with state law, required concealed weapons permit applicants to demonstrate some "good cause" for the issuance of the license.  A permit would be denied unless the applicant could prove that he or she was at a greater risk of harm than the general population. Simply citing the need for self-defense was not sufficient to warrant the issuance of a concealed weapon license.

Mr. Peruta passed the necessary background checks but was denied a concealed firearms permit because he could not demonstrate any specific "good cause" to carry a weapon, beyond self-defense.  His attorneys argued that the state's CCW policy was overly restrictive because it effectively prohibited law-abiding adults from exercising their 2nd Amendment rights in public.  The Federal District Court in San Diego agreed.

Once the law was ruled unconstitutional in the District Court, some local sheriffs around the state immediately began issuing concealed weapons permits, under a relaxed standard, to any applicant who could demonstrate good moral character.

The 9th Circuit Court of Appeals has now taken up the matter and vacated all lower court rulings. Oral arguments were presented in June, 2015, but the court has not published its opinion yet.  An announcement could come at any time -- tomorrow, next month, next year -- your guess is as good as mine.

Until the court provides some guidance, we're left in a sort of legal purgatory.  The issue hasn't been resolved. Once the appellate court makes its ruling, it's a safe bet that the case will eventually make its way to the US Supreme Court.  Things are likely to get even muddier before we see any clarity.  Check back often for updates as they become available.


AB-1663 & AB-1664

These two proposed laws would effectively ban the "bullet button" in CA.  I've written about them previously, here.

Both measures are currently working their way through the committee process in the State Assembly.  They were approved by the Public Safety Committee on March 1, 2016 by votes of 5-2. Now they're awaiting further hearings with the Appropriations Committee. Democrats outnumber Republicans 12-5 on that panel, so their recommendation may be a foregone conclusion.

If the bills are eventually approved by the legislature, there's a good chance that they'll face a veto once they reach the governor's desk.  Jerry Brown rejected a similar proposal in 2012, noting that the measure would likely have no impact on crime and that it would impose an undue burden on lawful sportsmen in California.


8,500 CCW Permits in Orange County, 0 Incidents of Misuse

Orange County Sheriff Sandra Hutchins was among the group of county sheriffs who issued CCW permits under the relaxed standard, following the Peruta decision in San Diego. Currently, 8,500 OC residents hold licenses to carry concealed firearms.

According to an article published in the Orange County Register on 4/6/16, there have been exactly 0 reported incidents of CCW license holders misusing their weapons in Orange County.


Lt. Gov. Gavin Newsom Backs Gun Control Ballot Measure

Lt. Gov. Newsom and a coalition of gun control groups are working to qualify a ballot initiative for the November election.

The proposed law would outlaw the possession of high-capacity magazines and would require background checks to purchase ammunition.

California already prohibits the manufacture, importation and sales of high-capacity magazines. Gun owners who lawfully possessed the magazines before the ban, however, are currently allowed to keep them.  Newsom's proposed law would require gun owners to surrender their high-capacity magazines to police, sell them to a licensed dealer, or take them out of the state.

Since high-capacity magazines are widely available for purchase in all neighboring states (and since criminals are generally willing to break the law), prohibiting the possession of high-capacity magazines is likely to have zero actual impact on violent crime in California.

And since ammunition can easily be manufactured at home, imposing burdensome restrictions on the sale and purchase of ammo is likely to encourage more shooters to handload their own rounds in the garage.

The whole initiative reeks of an opportunistic career politician, desperate for media attention in an election year.  Imposing more complicated restrictions on law-abiding gun owners is unlikely to have any appreciable effect on crime.  As previously noted, all of the items described in Gavin Newsom's proposed law are widely available for purchase in every state that borders California. Since criminals are generally undeterred by pesky things like "laws", they will continue to acquire and import those items at will.  News flash: felons are already prohibited from possessing firearms and ammunition in California.  This law will not prevent bad guys from gaining access to guns.  It will, however, make shooting sports more expensive and inconvenient for the rest of us.

If you or a loved one has questions about guns or weapons in California, call our office for a free attorney consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Santa Ana Gun Lawyer

Thursday, April 7, 2016

Fullerton Police Use New Oral Swabs to Test Drivers for DUI


The Fullerton Police Department has been participating in a pilot program to test some new anti-DUI technology.  Since 2013, the agency has experimented with oral swabs that supposedly detect the presence of marijuana, cocaine, amphetamine, opiates and benzodiazepine (Xanex) in a suspect's saliva.

The tests may indicate the presence or absence of specific drugs in the suspect's saliva, but they do not reliably measure the quantity or concentration of those drugs.  Since they cannot accurately quantify the drugs that they detect, they are not very helpful in determining the suspect's actual degree of impairment. Clinical tests have also delivered very mixed results regarding the reliability of the new tests. The vice president of one company that manufactures the machines claims that his product is 99% accurate.  The Sacramento PD, however, has had another experience.  In one study, the department tested 34 drivers.  Of those 34, 6 tested falsely positive and one tested falsely negative for drugs.

For now, the new oral swabs are only used as an investigative tool to help the police establish "probable cause" to make an arrest.  Once the police have a good reason to believe that their suspect is driving a car while impaired, the suspect is arrested and transported to jail, where more reliable blood tests can be administered.

In California, there is currently no legal limit to clearly define when a driver is "impaired" by THC, amphetamine or other drugs.  In order to sustain a conviction for driving under the influence of drugs, prosecutors must prove that the driver was so impaired by some substance -- or by some combination of substances -- that he could not operate his vehicle with the skill and care of an ordinary, sober driver (whatever that means). Typically, police will draw blood from subjects who they've arrested on suspicion of drugged driving.  They will prepare reports to detail their observations of the subject.  Those reports will describe the subject's driving and performance on field sobriety tests. Based on the results of blood tests, combined with the totality of the officer's personal observations, prosecutors will attempt to prove that the subject was too impaired to safely drive a car.

The new oral swabs are one more piece of the puzzle that prosecutors will now use to combat drugged driving.  Driving under the influence of drugs is one of the hottest, most talked-about issues in local policing today.  Somebody recently decided that "Satanic death cults" are passe. "Driving under the influence of drugs" is the new danger lurking in suburbia.  The Orange County District Attorney has deputies specifically assigned to prosecute these kinds of cases full-time. They receive grants from MADD to fund their efforts.  The grants create a financial incentive for law enforcement agencies to devote disproportionate resources to combat a problem that may or may not actually exist (and to convict people who may or may not actually be dangerous).

If you or a loved one is accused of DUI or driving under the influence of drugs in Orange County, call us for a free consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Orange County Drug DUI Lawyer

Thursday, March 31, 2016

Announcing New Collaboration with Thekindland.com

I'm proud to announce my partnership with thekindland.com.  I've contributed a few columns to their online magazine over the past year, but we recently finalized an agreement for a regular, long-term collaboration.  My "Ask a Weed Lawyer" features will appear each Sunday until the complaints become intolerable or until the robot apocalypse, whichever comes first.

As the title of my column suggests, I will be answering common marijuana-related legal questions. If you have specific questions that you'd like answered, please feel free to leave your suggestions in the comments, below.

If you don't already read thekindland.com, you should start now.  It's a free online magazine dedicated to cannabis culture and lifestyle.  Think High Times meets Vanity Fair.  And it's not all weed.  Daily articles include a roundup of bizarre news from the internet, commentary on arts / current events, and a feature they call "Chill / No Chill", where readers can vote on the divisive topic of the day (e.g. compression pants, hemp sneakers, pizza delivery robots, etc.)  Enter your email address on their homepage to get all the headlines delivered to your inbox every morning.

I will continue updating this blog while I work with the thekindland.com.  Most of my nationally-relevant, marijuana-related posts will go up over there, and the California-specific posts will stay here.  I'll also do my best to keep this blog freshly stocked with non-marijuana-related news and analysis.

Thanks for reading.  



Wednesday, March 2, 2016

Proposed Bills Would Ban "Bullet Buttons" in California

Under current California law, an "assault weapon" is defined as any semi-automatic, centerfire rifle that includes a detachable magazine and one of several enumerated "scary" features (e.g. a pistol grip, folding stock, etc.).  A magazine is not considered "detachable" under the law if its removal requires the use of a tool.

Enter the "bullet button".  The bullet button is a California oddity.  It is essentially a magazine release button that cannot simply be depressed by the shooter's thumb, the way that magazine release buttons typically work.  Instead, the bullet button features a small hole which requires the shooter to insert some pointy tool (such as the tip of an unused bullet) to release the magazine. Hence the name, "bullet button".  It looks like this:



A pair of pending laws would amend the California Penal Code to ban any magazine or ammunition feeding device that can be removed without disassembling the weapon, including magazines that can be removed with the use of a tool.  The bills are specifically intended to prohibit the bullet button. Current owners of rifles with installed bullet buttons would be required to register their weapons with the state, and they would be prohibited from selling, transferring or giving away their firearms. Gun owners would even be prohibited from passing down their collections to their children when they die.

Proponents of the measures claim that they close a "loophole" that currently allows individuals to circumvent the spirit of the law.  They argue that the ability to quickly reload a rifle poses a danger to public safety.

Opponents argue that the proposed bills are just the latest attempt to curtail the rights of shooters and hunters in California with more unnecessary and unduly burdensome regulations.  I tend to agree (no surprises here).

Governor Brown vetoed a similar law immediately after the mass shooting in Newtown, CT.  In his veto message, he noted that California already has some of the most restrictive gun laws in the nation.  Since Arizona and Nevada have very permissive rules regarding gun sales, imposing more onerous restrictions on law-abiding Californians would likely have little effect on gun violence here. Criminals will continue importing illegal weapons from out-of-state.  He also noted that hundreds of thousands of Californians currently own rifles with detachable magazines, which are commonly used for target shooting and hunting.

The proposed laws would solve a problem that simply does not exist in California.  According to the State Department of Justice, California experienced 1,697 murders in 2014 (the most recent year for which data is available).  Of those 1,697 murders, only 40 were committed by rifle.  That's a whopping 2.3% of all murders in the state.  There is no information available regarding how many of the rifles involved in those 40 killings featured detachable magazines, or to determine if the proposed laws would have prevented a single killing.

In the same year, shotguns killed 43 people.  Blunt objects killed 65.  Knives were involved in 256 murders.  Handguns killed 763.  Of all the weapons that were included in the AG's statistics, the only one that killed fewer people than rifles was rope.  It's fair to say that we don't have a rifle problem in California.

The laws currently pending in the California Assembly, AB-1663 and AB-1664 would impose an undue burden on lawful gun owners, without any corresponding benefits for public safety.  They would expose the state to costly litigation as 2nd Amendment groups sue to block enforcement of the new restrictions.  These proposed bills are obviously an election-year distraction by politicians desperately grasping for headlines.  If you agree, please call your local Assemblyman and let him or her know how you feel.

If you or a loved one is accused of any gun-related crime in Southern California, call our office for a free consultation.  (714) 505-2468.  We understand California's complicated gun laws and we have the experience to fight your case.

Thanks for reading.

Santa Ana Gun Lawyer

Monday, February 29, 2016

Is Kaiser Hospital Pursuing Frivolous Restraining Orders Against its Patients?

In the past two weeks, I have personally encountered two separate people who have been served with very questionable restraining orders by Kaiser Hospitals.  Two isolated cases don't necessarily make a pattern, but they raise some questions.

A couple weeks ago, I successfully defended a young quadriplegic man against a nonsense "workplace violence" restraining order that Kaiser Hospital had filed on behalf of several nurses. The nurses unconvincingly claimed that they feared for their safety, and requested that the court intercede by evicting a paralyzed man from his hospital bed.  A judge declined to issue the order and my client was permitted to remain in the facility.  

A few days later, I spoke to an MS patient who claims that Kaiser obtained a bogus "civil harassment" restraining order against her.  I was not personally involved in her case, but she tells me that she was treated at Kaiser and that she had sent her doctor a "thank you" gift.  She denies engaging in any behavior that would constitute the basis for a restraining order and she was genuinely confused as to why her hospital would take such a course of action. Unfortunately, she failed to respond to the restraining order petition in a timely manner and the court entered a default judgement against her.

Are these two anecdotal cases indicative of a larger pattern?  Are Kaiser Hospitals abusing the restraining order process against their own patients?  I don't have enough information to make such a bold accusation right now, but it's something that I'm genuinely interested in learning more about. 

If you or a loved one has been served with a restraining order by Kaiser Hospitals, call us for a free consultation.  (714) 505-2468.  

Our office has extensive experience in defending against restraining order petitions in all Southern California courts.  If we can successfully show that Kaiser is abusing the process by pursuing frivolous restraining orders against its own patients, you may be entitled to compensation.   

Thanks for reading.  

Friday, February 19, 2016

The Usual Headaches Complicate Court Appearances in Catalina

I just got back from another trip to court in Catalina.  It looks like the same old headaches are still causing complications for individuals who are cited on or around the island.

The old story goes like this:

If you are cited for some illegal fishing activity (fishing without a license, in a protected zone, in possession of the more than the daily bag limit, etc.), Fish & Wildlife wardens will give you a citation that orders you to appear in court on Catalina Island "on or before" a particular date.

If you actually make the trip back to Catalina as you were ordered to do (and as you signed a written promise to do), there's a good chance that you will receive some bad news upon arrival: the court has not yet processed your citation.  You are not on calendar and nobody at the courthouse has any information about your case.  You will be told to go home and to wait for a new "Notice to Appear" to arrive by mail.  If that new notice never arrives, it is still your responsibility to maintain contact with the court and to continue checking in regularly until your matter finally appears on the calendar.  Then, of course, you can make another trip to begin the process of fighting your case.

If you miss a court date (because the new "Notice to Appear" was mailed to an old address, or to the wrong address, or because it was never mailed at all), a warrant will be issued for your arrest. You will become a "fugitive", and then your life will really get miserable.

Once your case appears on the court's calendar, then you can appear and start the process of trying to fight it.  You might decide to cut your losses and simply plead "guilty" or "no contest" at the first appearance to save yourself from making any more costly trips to and from Catalina.  If you decide not to jump on a bad offer, though, be prepared to make several more appearances. That's when "complication #2" rears its head.

If your case requires several trips back and forth to Catalina Island, you should expect the DA to "forget" your case file at least once.  When this happens, the matter will simply be continued to the court's next available date.  That means another wasted trip. Often, I get the impression that prosecutors intentionally drag their feet to make the whole process as complicated and expensive as possible for individuals to defend themselves.  I understand why many defendants are eventually pressured into accepting bad deals because they simply cannot afford to make any more day-long trips to court. The DA understands this, too, and they will use basic economics to gain whatever strategic advantage they can.

Catalina Island is a great place to spend a day, but not in court.  If you or a loved one has been cited and given a court date on Catalina Island, save yourself the expense and the hassle of making unnecessary trips.  Have a quality, local attorney handle it for you.

I appear in Catalina more frequently than any other private attorney in California.  I can make your appearances, gather evidence and negotiate with the court and the DA on your behalf to ensure that your case receives the most favorable outcome possible.  Common matters on the island involve fishing violations, but we also deal with a lot of alcohol-related offenses (drunk in public, assault, battery, domestic violence and DUI -- yes, DUI on golf carts).

Call us for a free consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Catalina Lawyer

Tuesday, February 9, 2016

The First Amendment as a Defense to Drug Charges?

If you haven't already, please check out the columns I've been contributing to thekindland.com. The entire archive is available under the "Ask a Weed Lawyer" section.

My latest post for The Kind Land is scheduled for publication on Valentine's Day (2/14/16).  In it, I discuss "freedom of religion" as a possible defense to drug charges.  This is an area that has generated a lot of popular mythology and bad information.  Many people believe that the First Amendment's protections for the "free exercise of religion" grant them total immunity against prosecution for any activity that is central to their religious beliefs.  Unfortunately, this is not true. The Supreme Court has consistently ruled that the US Constitution does not entitle individuals to disregard generally applicable criminal laws.  Sorry, Rastafarians.

The Religious Freedom Restoration Act

But there are a couple federal laws that, taken together, make this analysis more interesting.  First is the "Religious Freedom Restoration Act", which was signed into law in 1993.  That law prohibits the US government from taking any action that "substantially burdens" the free exercise of religion, unless the government can prove 2 important things: 1) that the feds have some "compelling" interest to protect, and 2) that the government's action in question is the least intrusive means for protecting that interest.

Keep a couple things in mind, though.  The RFRA is not a constitutional amendment, it is a federal law.  That means that it does not apply against the states; it only applies to actions taken by the federal government.  States and local governments are still free to "substantially burden" the exercise of your religion.  Also, the RFRA does not grant blanket immunity to do anything that you claim is part of your religion.  Instead, it establishes a balancing test.  If you claim that some federal law infringes on your religious beliefs, then the courts must weigh that infringement against the government's legitimate interest in protecting public health and safety.  If the government's interest is found to be "compelling", and its actions are "the least intrusive means" for protecting that interest, then you still lose.

The Religious Land Use and Incarcerated Persons Act

Enacted in 2000, the federal RLUIPA takes the RFRA one step further.  It prohibits cities and local governments from making any laws regarding zoning or land use that substantially burden the practice of religion.  Up until now, most of the litigation around the RLUPIA has involved eminent domain cases -- whether or not a city may seize church land to build a new housing development or airport.

What does this have to do with marijuana?  Glad you asked.

The Oklevueha Native American Church, a group that claims over 200 local branches, has recently announced plans to open several new locations in Costa Mesa, Huntington Beach, and Westminster.  Members of the church use peyote, marijuana and other hallucinogens to "commune with nature" as part of their religious beliefs.

The church will operate out of buildings that formerly housed marijuana dispensaries.  Church leaders have stated that they intend to distribute marijuana to their members, in violation of local zoning laws.  It is not clear whether or not the church intends to distribute other controlled substances and whether or not it will restrict marijuana sales to members who hold valid medical recommendations.

Spokesmen for the cities of Huntington Beach and Costa Mesa have publicly stated that they intend to enforce their existing zoning laws.  An attorney for the church has threatened to bring a federal lawsuit under the RLUIPA if the cities' land use regulations interfere with his clients' right to freely exercise their religion.

We're all excited to see how this plays out.

Orange County Cannabis Lawyer