By Matthew D. Cubeiro
Our law firm is often contacted by individuals seeking to preserve or restore their Second Amendment rights. Some folks are prohibited from owning or possessing firearms because of a prior criminal conviction, or by a restraining order they may not even know about, or for other reasons, and we can often help.
Far more often than you might expect, people are denied their rights simply because the California Department of Justice’s (“DOJ”) records are out of date, inaccurate, or incomplete. In these cases, resolving the issue often requires providing DOJ with updated information. Typically, DOJ refuses to do the work to update their records and insists that the individual obtain and provide the information to DOJ.
Why should the burden rest on the individual to prove to the government they are not prohibited from exercising their constitutionally protected rights? Good question. And one which is being asked at this very moment in the context of California’s ammunition sales restrictions.
The California Rifle & Pistol Association, with support from the NRA, filed a lawsuit titled Rhode v. Becerra challenging those restrictions as a violation of the Second Amendment and Commerce Clause of the United States Constitution. When the ammunition transaction background check requirements took effect this past July, more than 20% of law-abiding citizens attempting to purchase ammunition in California were denied due to outdated or incomplete records maintained by DOJ.
In response, the plaintiffs in Rhode have now filed a motion for an injunction, noting that DOJ “has the burden to prove that a person is not entitled to exercise a right—not the other way around.”
DOJ’s inaccurate and outdated databases are not the only problems some California residents have been forced to deal with. Many law-abiding gun owners have been contacted by armed DOJ agents who mistakenly believed they were prohibited.
Other individuals who are in fact prohibited have also been contacted because DOJ mistakenly believed they are in possession of a firearm previously seized by another law enforcement agency, despite the person also informing DOJ—under penalty of perjury—that they no longer possessed the firearm. Such stories are among of dozens of examples that illustrate the bureaucratic mess that is the DOJ Bureau of Firearms.
Just when you thought things can’t get any worse, DOJ now appears to include “Other” as justification to deny a person their Second Amendment rights. See for yourself:
The letter goes on to state that if the person wishes “to challenge the accuracy” of DOJ’s determination, they should undergo Live Scan fingerprinting to obtain and review their criminal records. But what good will that do, exactly? How can the person in this case challenge DOJ’s prohibited person determination when they don’t even know what that determination is based on?
Sadly, it’s another shameful display of bureaucratic sloth from California’s top law enforcement agency.
Matthew D. Cubeiro is a California attorney who serves as Special Counsel for Michel & Associates, P.C. His primary practice areas involves firearm-related regulatory compliance, and is co-author of California gun Laws: A Guide to State and Federal Firearm Regulations.
The deep state is good they tell us. Screw the NYT and any backers of the deep state.
In other words…”No guns for you!”…..
California is the derp state.
Those clowns at the CA Department of Injustice should be thrown into jail. Reason — Other.
Seems that this would qualify as a civil rights violation.
Aren’t there special penalties for violating civil rights?
18 USC 242 Deprivation of rights under color of law
Do you think we will ever in our lifetimes see the politicians held to account for their horrific behavior? Remember Hillary got away with violating espionage laws (felonies), Lois Lerner got away with weaponizing the IRS against conservative groups, Eric Holder got away with “Fast and Furious” which has resulted in the deaths of hundreds of Mexican citizens and at least one Border Patrol Agent. James Comey swept the investigation of Hillary under the rug, and along with Andrew McCabe, Peter Strzok, Lisa Page, attempted to destroy the duly elected president with manufactured evidence and lied on applications for FISA warrants.
We will never see those items fixed and we will likely see no fix to out of control California (and other states) politicians.
If they get away with that, expect something worse next time. The screws will tighten even more.
May Justice Thomas grant us the relief we need to give the 2A the respect it deserves…
PROOF, proof of incompetence! Plus a total absence of compassion and unmitigated laziness! Just what you want in a government.
Every deviants wish is granted in the form of a law in california. You Just have to give up your guns. And give up control of your children. If you have any.
I’m SOOOOO glad I saw the writing on the wall back in 2016 when former Gov. Brown signed this into law during our first “Gunmaggedon”. For the next two years until the law took effect in Jul 2018, I kept buying a few more boxes each time I visited Walmart. My inventory sheet shows that I literally spent a few thousand dollars total, but I’m now set for several years, which should be enough time to ride this out until it’s reversed in court. Not a single one of my POTG friends did, and they’re kicking themselves now.
All my friends in California bought multiple cases of ammo in every caliber they own.
They bought them off the internet.
Free shipping when buying by the case.
And got a much lower price than Walmart’s price
Did you buy boxer primed brass? Start reloading. Saves money and is more accurate.
+1, don’t forget therapeutic. Is for me anyway
“Reason: ‘Other’”
Cops are notoriously bad spellers. Are you sure the reason wasn’t “Mother?”
“Just when you thought things can’t get any worse, DOJ now appears to include “Other” as justification to deny a person their Second Amendment rights. ”
A feature, not a bug. Indeed, Californication should use only “Other” as the reason for any denial. KISS. This way, the LEOs can’t give you the runaround about a mistake in their records. Like the judge said, “Other” means “I’ll know it when I see it.”
Actually, “Other” is also inefficient, and prone to misunderstanding. How ’bout “Because”?
Liberals are big when it comes to language labeling groups of people as “other”. They say it’s a brick in the road that ultimately leads to death camps. Maybe it’s some kind of Freudian slip from our 1984 style “Department of Justice”.
“Maybe it’s some kind of Freudian slip from our 1984 style “Department of Justice”.”
Like the fire department in “Farenheit 451”?
California should just go for the out right ban on firearms. It’s what the liberals want. California is a civil rights denying fascist state. They might as well end all pretense and go for the gusto. We should just give California back to Mexico.
“We should just give California back to Mexico.”
I will give you the opportunity to support your argument before being shredded.
Note that the territory was not surrendered to begin with.
“Note that the territory was not surrendered to begin with.”
The Spaniards conquered what we call “California”. They created a people we call “Mexicans”. California was taken from indigenous people, and did not “belong” to Mexico (or even New Spain). If there is to be a “give back”, it should be returned to the original inhabitants. Returning Californication to Mexico is simply transferring title from one conqueror to another; net nothing.
(how’s that for leftist jabberwocky?)
So why are the courts not striking down this law. The majority of court justices are now Conservative yet they do nothing.
If you think the California law is outrageous take a look at this masterful piece of anti-gun propaganda. Its masterful and professional because it mixes obvious lies and distortion of the facts with some truths (if your willing to be impartial). All this is being presented in Social Media where millions of Americans now get there news, that is what is so dangerous and damning to gun rights and its because the elections are coming up.
I ask you how many people will check out the facts before voting in 2020? Answer: Very few before they go to the voting booths. Robert Reich has learned much from Russian trolls after they infiltrated the 2016 elections and now he is using Russian tactics to influence the 2020 elections in regards to more gun laws. The Far Left do not need Russian Trolls or Beto O’Rourke because they already have Robert Reich who does not sound as radical as Beto. Whereas Beto is an obvious clown and publicity hack the real danger is from Reich because he sounds so educated and reasonable to non gun owning Americans.
https://www.youtube.com/watch?v=GHo1WxysdwY
I was having a conversation with a very liberal friend the other day. When the conversation turned to 2nd Amendment issues, her first argument was, “because we need background checks.” Seems she believes no background checks are required for any firearms purchases. After informing her that, indeed, background checks are currently required, I asked how many prohibited felons obtained their weapons, and even if the additional legislation she advocates were to pass, how many in the future will continue obtain theirs outside legal channels?
The conversation suddenly and abruptly turned to other topics.
To which justices are you referring? The SCOTUS? It takes years to get there. First you start with a district court judge, then you get three appeals court judges, then maybe an en banc of 11 judges, before you even have the right to petition for review with SCOTUS. SCOTUS gets thousands of petitions a year, but reviews only a few hundred.
Rhodes has just started in the District Court, and the judge is considering the motion for injunctive relief. The State was given a chance to provide the court further evidence on grounds for denying relief; the State is in a pickle because it has apparently wrongfully denied 30,000+ people a right to purchase ammunition, some of whom have CCWs and all of whom legally own firearms. The problem of course is that the database is unreliable.
Yep, being from Hawaii this doesn’t surprise me at all. Funny, I thought fingerprinting was mandatory in CA like it is here, along with mental health backround checks.
Neither, unless applying for a CCW. For those, prints are mandatory, mental health exam is discretionary with the issuing agency. Of course those agencies famous for a virtual “no issue” policy always require the exam, because it adds $130 to the fees that have to be paid, thus discouraging applications.
Authoritarianism! Looks like history HASN’T taught us anything….
“Authoritarianism! Looks like history HASN’T taught us anything….”
“We learn from history that we do not learn from history.”
― Georg Hegel
California uses NRA created NICS system to deny sales. NRA sues. NRA begs for money so it can clean up a small part of the mess it started.
What are you smoking? California maintains its own background investigation system that is run by the California Department of Justice. NRA has nothing to do with it. The new ammo background check is run separately. First it looks to see if the “applicant” has a gun registered with the state, and if so, then it looks at the Armed Prohibited Persons System database to see if there are any disqualifying convictions, restraining orders, or involuntary commitments. The check is supposed to take less than a minute (yeah right), while a full background check takes ten days. The DOJ “borrowed” an advance of $150,000,000 to build a new computer system to process the requests and record the required information of the ammunition purchased, and to train the person who are supposed to be running it. (The required ammunition purchase report includes the amount, caliber, manufacturer, use, and performance characteristics of all ammo purchased. Truly bizarre.)
“Denial of Gun Rights by the California DOJ, Reason: ‘Other’”
Speech and voting are right behind…
As I’ve said before California makes Australian gun laws seem sane.
From an Aussie’s point of view, some of things coming out of the other side of the “Big Pond” look really bizarre. It is as though the lunatics are really running the asylum and they are going full “Joker”.
Yet another reason to toss Kalifornia out of the Union.
Laziness.
Because we say so.
They would last a day before Mexico and their cartel allies take over the place.
“We are denying your Constitutional Rights. We are not going to tell you why. If you go through the following process and probably submit hundreds of dollars of fees we will invade your privacy more and maybe tell you. Or not. Don’t you feel safer now?”
This has a vagueness challenge written all over it. Procedural Due Process? Lol
“This has a vagueness challenge written all over it. Procedural Due Process? Lol”
Careful, there. Red flag laws are not being overturned in bushels.
Sadly you are not wrong. Until we get a case out of SCOTUS with a consistent standard on gun rights we may just keep losing in slave states like these. Keep fighting though…
First; I would not live in calipornia if they made me a bigger star than John Wayne and Elvis Presley combined and more money than Jeff Bezos. Second; I think Trump tried to trade the ground that trembles to Mexico for ten feet of border wall and Mexico replied you keep it we’ll build you two hundred feet and throw in a chevy plant.
Third; they can’t field à decent candidate for any office cause it is the granola stàte, what ain’t fruits, or, nuts, are flakes.
Anyway, when you put your ammo and selective gun parts in Walmart’s pails pour rice (uncooked) in and around the stuff, pack it in tight, to keep the powder dry. Oh, and forth; I would not visit there if they gave me Disney land and Magic mountain outright.
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Thanks but i don’t want a job infiltrating forums posting web sites all day long hoping someone hits it and I get a nickle.
When one political party has near total control of a state, there exists strong potential for abuses like this. CA is noteworthy for their wacky laws restricting the rights of their citizens.
If you want different, vote different. It has been said before that we get the government we deserve.
Many folks will vote for their own personal interest, i.e what their union tells them to do, versus what is for the greater good and/or what is the right thing to do. This is how we get carve-outs in onerous gun laws for LEO’s and others. Their unions tell them to vote as a block and they do. They donate to a single party as a block and that party takes care of them at the bargining table at contract time. Really a money laundering scheme in disguise.
Other seems like an intentional way to conceal something the state is responsible for. Like am illegal alien using someone’s ssn or birthday and being sought for a crime. If they detailed any of these politically sensitive facts in a letter that would open up Pandora box.
California’s overlords continue their march to destroy “gun culture”. The unwashed peasants (legal law-abiding, productive, AMERICAN CITIZENS) will be controlled by the state. YOU are not worthy not to be trusted with to much freedom and liberty. So, we get crap like this, with more sure to come. Criminals (many in government) and nut jobs? Well, really could care less, cause it don’t affect them much.
TYRANNY, FOR THE FALSE FLAG OF “IT’S FOR YOUR SAFETY”.
“Some folks are prohibited from owning or possessing firearms because of a prior criminal conviction, or by a restraining order they may not even know about,. . .”
When someone has served their time and is released from prison, where in the Constitution does it say that their Second Amendment rights are taken away forever?
How can someone put a restraining order on you and prohibit you from owning or possessing guns? If I am not being charged with a violation of the law, a restraining order should have nothing to do with firearms.
I want to explain a few things that some may not be aware of. When you DROS and the firearms FFL seller receives a “proceed” – meaning – you get your firearm, the FBI/NICS MUST destroy that transaction paperwork within 48 hrs. It’s a Federal law! Now your FFL seller MUST preserve that original DROS paperwork for a min. of 20 yrs. After that he can shred it. Many do! If you haven’t registered your firearms – perhaps you weren’t required to, such would be the case for a Mini 14 (non – “assault”) rifle as opposed to say a AR platform, the CA DOJ/FBI have NO record of your firearms you posses. They don’t tell you this! This is in NO way info. to circumvent any legalities mind you. Any such behavior would only serve to hurt the rest of your pro 2A bros. & sisters. IF you were originally charged with a PC 273.5 (Spousal Abuse) and your attorney got you a plea deal to the far lesser charge of PC 242 (Simple Battery) you MUST go to the Court house where you were tried and retrieve the court charging paperwork. It’s FREE and all you need is a valid D.L. in Calif. to do so. They will stamp it with the county recorders stamp too. You MUST look to see on your charging paperwork if it say’s FOJ (Furtherance Of Justice) & “FACTUAL BASIS FOR THE LESSER CHARGE” (meaning it was NOT your spouse OR “similarly situated to a spouse” and Court Accepts the Plea to the lesser charge. This is the fashizzle FACT! The CA DOJ can NOT get around this!!! PC 242 means you are banned for 10 yrs. You can purchase again as I did on the day of. I actually tried a week early and 2 DOJ stormtroopers all decked out in black & vests/guns came to my home when I was practicing Karate with my 10 yr. old son in the side yard with shinai and bo staffs and told me I have to wait 1 more week. To which I responded – no problem. Didn’t mean to Jump The Gun ;). I went back to my reluctant FLL seller and told him “It’s all cleared up” which he was doubtful but everything worked out just fine. Best of luck to you out there. BEWARE The Lautenberg MCDV Amendment the neo-marxists slipped through in 9/16/96 hidden inside a Fed Appropriations Bill that had to pass. These WORMS are despicable and evil! Nothing destroys Freedom like Fear & Manipulation!
It is VERY important to have “The letter of the law” involved here! For instance – many unfortunate situations occur and the lustful D.A. (Prosecutor) wants to charge you with a PC 273.5 (MCDV/Wobler) but your situation isn’t that degree so you plea down to a PC 242. You need to go to the court house where you were charged and ask for a copy of your court paperwork/charging papers. It may be 20+ yrs. later and the police report will be shredded but the court papers will still be available. LOOK to see if it say’s “UPON FOJ” (Furtherance Of Justice)”FACTUAL BASIS FOR THE LESSER CHARGE AND COURT ACCEPTS THE LESSER CHARGE”. This means that there was NOT a MCDV to begin with or the DA/Judge would have charged you with it. BEWARE – if your answering questions for state licensing/contractors licensing be VERY vague – (“I Don’t Remember!”) PC 242 has a 10 yr. State ban. After that you should be good to buy, own, posses, but the evolution of the GodDamnBasturd Lautenberg Amendment MCDV has evolved to include “Boyfriends” now.. and even the slightest touching. It’s completely INSANE! They just want to disarm US all and are using the #1 reason why cops are called to homes to do it. Sneaky is the jewFrankLautenberg and his constituent DemoncRATS! Fight back and donate to GOA and the NRA to help fight these diabolical tyrants from disarming us ALL!
Only a true low life loser with out real world experience would stoop so low to deny a American citizen this in-alienable right to self defense via the U.S.C. 2A right which, Shall Not Be Infringed Upon, in their obvious desperate, devious and depraved attempt to disarm us, all in the guise of “safety”. I guess that helps their conscience in allowing them to sleep at night – sociopaths!
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