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Last November, San Francisco politicians enacted an ordinance banning the possession of magazines capable of holding more than ten rounds (so-called “large-capacity” magazines). This ordinance will make illegal magazines possessed by a vast majority of San Francisco gun owners, and criminalizes the transportation of these magazines through the city.
The ordinance takes effect on Monday, April 7.
While this ordinance will not prevent violent crime or mass shootings, it sadly does limit the Second Amendment rights of law-abiding gun owners to choose to use these magazines to defend themselves and their families. As most gun owners already know, magazines holding more than ten rounds are standard equipment for many popular pistols and rifles. These standard capacity magazines are possessed by millions of law-abiding Americans for a variety of lawful purposes, including self-defense. San Francisco’s magazine prohibition affects lawful gun owners’ ability to defend themselves, especially in situations potentially requiring more than ten shots. Since this ordinance does not provide for an exemption for self-defense, you should carefully consider your best alternative options.
Although legal challenges are still pending that may ultimately result in this ordinance being struck down, San Francisco residents and those who drive through the city need to know their rights to avoid being prosecuted for violating this counterproductive new ordinance.
The unfortunate reality in San Francisco, Sunnyvale, New York, Colorado, Connecticut and other places where ill-conceived gun laws are turning honest citizens into criminals, is that gun control laws are fostering an environment of non-cooperation between police and law-abiding citizens who would otherwise be happy to assist police in their investigations. Sadly, good citizens who are put at risk by laws that deprive them of their Second Amendment rights now need to also know and exercise their Fourth and Fifth Amendment rights.
Compliance Options
The San Francisco ordinance prohibits the possession of “large-capacity magazines” anywhere “in the City and County of San Francisco.” This ordinance was to take effect on December 7, 2013, with a ninety-day window to begin complying with the ordinance. After the NRA filed a lawsuit challenging the ordinance, the City agreed to push the enforcement date back by an additional thirty days until April 7.
So law-abiding gun owners residing in San Francisco now have until Monday, April 7 to comply with the City’s magazine ban or risk running afoul of the law.
Anyone who fails to comply is subject to criminal misdemeanor penalties, including fines and jail time. If you still possess any magazines over ten rounds after April 7, do not attempt to surrender them to law enforcement, as that could subject you to arrest and prosecution. Contact an attorney.
Possession by Police Officers’ of Personally-Owned Magazines Is Also Banned
The San Francisco City Attorney’s Office has interpreted this ordinance to exempt only official duty magazines when possessed by off-duty law enforcement officers. There is no exception in the San Francisco ordinance for the many magazines that are personally-owned by active law enforcement officers, nor for retired officers.
Police officers working in or traveling through San Francisco (perhaps en route to one of the several shooting ranges in the area) also face potential criminal liability if they enter the city with magazines holding over ten rounds that were not issued to them for official duty purposes.
What is Considered a “Large Capacity Magazine”
San Francisco’s definition of a “large-capacity magazine” is identical to that found in California Penal Code section 16740. This includes any ammunition feeding device with the capacity to accept more than ten rounds. There are three notable exceptions:
1) Any feeding device that has been permanently altered so that it cannot hold more than ten rounds;
2) Any .22 caliber tube ammunition feeding device; and
3) Any tubular magazine that is contained in a lever-action firearm.
This definition is applicable whether the magazine is assembled or disassembled. There are also several uses and categories of individuals that are exempt from the magazine ban. Those exemptions can be viewed here.
You can store your magazines outside of San Francisco. Be aware, however, that storing your magazines with friends or family outside of San Francisco may qualify as an “unlawful transfer” under state law. Renting a storage unit or safe-deposit box in your name for storing the banned magazines may be the best option– at least for now.
Know Your Rights, and Assert Them!
Every gun owner who travels in and around San Francisco should beware if they possess magazines that hold over ten rounds. The San Francisco magazine ban does not exempt visitors to the city or even those just passing through, even if the magazine is in a locked container. If you are stopped by police and found in possession of a banned magazine, you may be criminally liable.
Residents and those traveling through the city should be prepared in the event police question you about the way you store your firearms or magazines in your home or car. Typically, police ask questions about whether there are any firearm in your home or car, what type of magazines you may have, how those magazines are stored and who has access to them.
Even if they don’t have a search warrant, police officers are trained to get you to make incriminating statements or admissions that will give them grounds for a warrant or a search. To learn more about this police practice, read Protect Yourself! California’s Politicized Gun Confiscation Program Threatens Uninformed Gun Owners. In Section V of this memorandum, the firearms law attorneys at Michel & Associates explain how the police utilize “knock and talks” to try to get incriminating information from uninformed gun owners. To access this document click here.
If the police knock on your door, try not to talk to them! Unless they have a search warrant, try not to even open the door. Instead, provide the officers with this flyer, and tell them that you assert your right to remain silent and want to have an attorney present (actually say those words).
· Do not “consent” to a search of your person, possessions, car or home. Insist on a search warrant. If they don’t have a warrant, refuse the search entirely and close the door.
· If they have a search warrant, let them in, stand back and say nothing except that you want to call your lawyer.
· Consult a lawyer immediately. Ask to make a phone call for this purpose.
For more information and materials on protecting and asserting your Fourth and Fifth amendment rights, visit HERE.
Status of Legal Challenges
Lawsuits supported by the NRA against San Francisco and Sunnyvale seeking to overturn these magazine bans were filed shortly after the ordinances passed.
Lawyers with Michel & Associates sought preliminary injunctions in court to prevent both Sunnyvale and San Francisco from enforcing these laws while the cases are litigated. In late February, the U.S. District Court denied the injunction request in the San Francisco case. On March 5, the U.S. District Court denied plaintiffs’ request for an injunction to stop the Sunnyvale magazine possession ban from going into effect. Plaintiffs appealed later that same day.
On March 5, the Ninth Circuit Court of Appeals was asked to enjoin the law from taking effect. On March 6, the court denied the request for an emergency stay while the underlying dispute is litigated on appeal.
On March 10, an emergency request that the ordinance be enjoined was filed with a Supreme Court Justice who handles such motions in the Ninth Circuit. Statistically speaking, these emergency requests are rarely granted, and Justice Kennedy denied the emergency request. It is not surprising that Justice Kennedy did not grant this very rarely issued extraordinary relief. As the courts themselves make clear, this type of denial is not a reflection on the merits of the underlying appeal, which is still going forward in the Ninth Circuit.
Now the first legal brief is currently due in early May, and law enforcement and civil rights groups are already lining up to support us in that effort to stop these infringements on Second Amendment rights.
Nonetheless, as a result of these rulings, the magazine possession bans are in effect as of March 6 in Sunnyvale, and April 7 in San Francisco. This important Second Amendment issue now continues on appeal and may ultimately be decided by the U.S. Supreme Court.
Since the Sunnyvale case is already on appeal, the San Francisco case was temporarily dismissed. But it will be re-filed upon conclusion of the Sunnyvale litigation.
Help Stop These Laws from Passing in Other Jurisdictions
[url=mailto:state&local@nrahq.org]Let us know[/url] if you hear of things pending in your city! With your help , we can defeat these proposals before they become law.
The anti-Second Amendment crowd has made clear its intention of continuing to push anti-gun billionaire Michael Bloomberg’s agenda throughout California. Sunnyvale’s Mayor claims that residents from several neighboring cities, including Mountain View and Los Altos, have already reached out to him to push the same or similar measures in their cities. Former state Assemblywoman Sally Lieber claims the campaign for gun control in Mountain View has already begun. And the City of Los Angeles has been considering, among other measures, a magazine ban for some time now.
You can assist in the fight to defend gun owners’ rights in California courts by donating to the NRA Legal Action Project today. For a summary of some of the many actions the NRA has taken on behalf of California gun owners, including the tremendous recent victory in the Peruta case, click here.
Second Amendment supporters should be careful about supporting litigation efforts promised by other individuals and groups without access to the necessary funding, relationships, firearm experts and experienced lawyers on the NRA's national legal team. The NRA's team of highly regarded civil rights attorneys and scholars has the resources, skill, and expertise to maximize the potential for victory.
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发表于 2014-4-4 22:05
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