CalGuns Foundation link to the ruling is here. You can read the first few pages and know what the outcome will be. California seeks to ensure guns are safe, etc., etc., so only very safe guns are put on the roster ("Safe" means, for example, that the gun must have a loaded chamber indicator that somehow allows a new user to know whether the firearm is loaded without consulting the manual. Every loaded chamber indicator I know of assumes that you read the manual or had someone point it out to you, so at least you know what to look for).
The contrast comes at the very end, when the court has to deal with the fact that the statute exempts law enforcement personnel (including, as I recall, employees of prosecutors' offices). The court simply pronounces that police may have different needs for firearms than do non-police. But if the roster would truly about safety, the question must be, do police and prosecutors have a special need for unsafe guns?
One plaintiff had no right arm, and wanted a Glock with an ambidextrous magazine release. But while the Glock he wants is on the roster, California does not list it with an ambidextrous release, and considers that a different, and unlisted, firearm.
"One of the heroes of the Waco fights of the 1990s has passed away. Mike McNulty did more than any other single person to doggedly pursue the truth about Waco. And he produced or co-produced a number of superb films that vividly and compelling explained why the feds were lying about the carnage they unleashed in Texas. And he fed great information to me and other journalists - as well as sometimes impatiently pushing us forward, urging us to turn over more rocks."
The government's "constructive possession claim didn't get very far. The government had been contending that designating to whom the firearms could be transferred was "control," and hence exercising illegal "possession." Then before argument they conceded that Henderson could transfer them to a licensed dealer. Looks like they didn't prepare for "if his transfer to a dealer isn't possession, how can his transfer to a nondealer be possession? There's no difference in terms of exercising control"?
Charity Navigator just revoked their rating and put a "donor advisory" alert in its place. This comes in the wake of a $15 million payout to settle an extortion and bribery suit, and moving $26 million to offshore accounts.
I just heard, know no details.
Mike produced "Waco: The Rules of Engagement" and directed "The FLIR Project" and "Waco: A New Revelation." Back in '93, he and I forced reopening of the Waco issue, which led to appointment of an independent counsel (who spent a lot of money, prosecuted the one honest guy on the government side, and did little else). The third member of the group (I can't call it a team, since we had no organization) was Gordon Novel, who died last year. (If a dictionary wanted an illustration for the term "enigmatic," they would have used Gordon's picture).
UPDATE: it was a heart attack. Dang, Mike was SO dedicated a man. Here's a memorial page for Mike. Funeral is 11 AM Thursday, at the LDS stake center at 3800 Mountain Lion Dr., Loveland, CO.
Tuesday, Feb. 24, the Supreme Court will hear argument in Henderson v. United States, describing in this SCOTUSblog post. Henderson surrendered his firearms to the government, as one of his conditions of release. He was later convicted of a felony, and thus could not "possess" firearms. He requested to be allowed to sell or transfer his firearms to others, who could legally have them. The government refused, arguing that one aspect of possession is control, and for him to designate who the firearms went to would be for him to exercise control. In other terms, he "constructively possessed" ("constructive" here derived from "construe") if he tried to transfer them, even if they were locked away in an evidence locker and inaccessible to him. Looks like Second Amendment issues are raised, as well.
I'd rate the government's position as very weak. If you cannot lay hands on something, you don't really possess it; you may own it, but you don't possess it. By that standard, a person could be convicted in New York for possessing an unregistered handgun, based on his owning one that is in Arizona. Also it has a practical problem. Henderson owns his firearms; the government does not. The government, it would seem, is bound to keep them through all eternity for him. It can't destroy them without depriving him of property without due process of law. It can't forfeit them: they were involved in no violation of the Gun Control Act. At the time he surrendered them, he was a legal possessor (a person under felony indictment can continue to possess the firearms he has, though he cannot "receive" additional ones). The government is setting itself up for a loss, and probably by a big margin (which means a quick ruling; the Court disposes of 9-0s and 8-1s pretty quickly, and saves the 5-4s for the end of the Term in the late spring).
By pure luck, I came across this, a provision allowing recovery of attorneys' fees in forfeiture cases. It ought to be of great use in gun forfeiture cases at the Federal level.
28 USC §2465(b) provides:
"(1) Except as provided in paragraph (2), in any civil proceeding to forfeit property under any provision of Federal law in which the claimant substantially prevails, the United States shall be liable for--
(A) reasonable attorney fees and other litigation costs reasonably incurred by the claimant;
(B) post-judgment interest, as set forth in section 1961 of this title; and
(C) in cases involving currency, other negotiable instruments, or the proceeds of an interlocutory sale--
(i) interest actually paid to the United States from the date of seizure or arrest of the property that resulted from the investment of the property in an interest-bearing account or instrument; and
(ii) an imputed amount of interest that such currency, instruments, or proceeds would have earned at the rate applicable to the 30-day Treasury Bill, for any period during which no interest was paid (not including any period when the property reasonably was in use as evidence in an official proceeding or in conducting scientific tests for the purpose of collecting evidence), commencing 15 days after the property was seized by a Federal law enforcement agency, or was turned over to a Federal law enforcement agency by a State or local law enforcement agency."
The exceptions in (2) cover forfeiture of intangible rights, claimants who were convicted of the offense, and situations where multiple persons are claiming the same property. So it appears that, as a general rule, a prevailing claimant can recover attorneys' fees in a gun forfeiture case.
M855 is the current military issue, and so comprises the "surplus" ammo market in 5.56 NATO. BATFE originally classed it as suitable for "sporting purposes" and thus exempt from the AP ban. It now proposes to reverse this and ban production for the civilian market. The official reasons given largely hinge on the development of AR-15 platform handguns.
Comments are open until March 15. They can be emailed to APAComments@atf.govor faxed to (202) 648-9741.
I have some trouble understanding how the M855 fits the statutory definition of AP ammo. It has a two-part core, with a steel penetrator in front and a lead core behind it, under the standard copper-alloy jacket. The statute provides:
"(B) The term "armor piercing ammunition" means--
(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or
(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile."
(i) doesn't seem to fit: the neither the projectile nor its core are "constructed entirely" of any of the metals named. The M855 core is lead and steel, not just steel.
(ii) doesn't fit either: the M855 isn't designed or intended for use in a handgun, its jacket is less than 25% of the weight of the projectile, and it's debatable whether .223 can be called "larger than .22 caliber." (if the bore is expressed in hundredth of an inch, as here, the larger next step would be .23 caliber).