Think you're in the 'protected class', above the law and safe as a state or federal employee...think again.
Retired Officers Cannot Own Assault Weapons—A.G.
By KENNETH OFGANG, Staff Writer
A retired peace officer is not exempt from the state ban on possession of assault weapons, the attorney general has opined.
The opinion was issued by then-Attorney General Jerry Brown last Friday on his last business day in office before taking the oath as governor on Monday. It was made public yesterday.
Brown, responding to a request by San Diego County Sheriff William Gore said an exception to the ban allowing law enforcement officers to possess assault weapons if issued by their agencies, or if acquired by the officer with the consent of the agency, applies to active personnel only.
The right of a law enforcement officer to personally acquire and possess an assault weapon is strictly limited under the Assault Weapons Control Act, and specifically by Penal Code Sec. 12280(f)(2), Brown noted. Not only must the officer obtain the employer’s written consent, he or she must register the weapon with the state Department of Justice and comply with other requirements.
Traditional rules of statutory construction argue against application of the law to retired officers, Brown said.
He pointed out that there is no mention of retired officers in the act. “In our view, therefore, wherever section 12280 refers to a peace officer, it means one who is currently a peace officer,” the attorney general concluded.
He acknowledged that the lack of provisions regarding retired officers leaves gaps in the legislation, because the DOJ does not revoke the registration of an assault weapon, and does not require the officer to give it up, when the officer retires, and nothing in the statute addresses those questions.
“Nevertheless, we believe it would be improper to infer from that silence that the retired officer remains within one of the exceptions,” he wrote, because a statute cannot be construed as containing exceptions that are implied, rather than expressed. This is particularly true, Brown said, when construing a law like the Assault Weapons Control Act, which has a “plain” restrictive purpose.
“Upon retirement from government service, a peace officer becomes a private citizen, to whom the general prohibition on assault weapons becomes applicable,” the attorney general said.
Brown also cited Silveira v. Lockyer (2003) 312. F.3d, which held that a provision—subsequently repealed—of the original Assault Weapons Control Act permitting retired officers to possess weapons acquired from their agencies at the time of retirement violated the Equal Protection Clause, but that a provision allowing active officers to possess department-owned weapons while off-duty was valid under the rational-basis test.
Under Silveira and the ensuing legislation, Brown said, an officer who retires would no longer fall within an exception, so an officer who is permitted to possess a weapon off-duty must return the weapon to his agency upon retirement. Allowing an officer who has retired to possess a personally acquired weapon would be inconsistent with Silveira’s reasoning and the act’s intent to stop “the proliferation and use of assault weapons.”
Nor, he said, has Silveira been abrogated by the Supreme Court ruling that there is an individual right to possess firearms under the Second Amendment.
The opinion, prepared for Brown by Deputy Attorney General Diane E. Eisenberg, is No. 09-901.
In other action Friday, Brown granted a property owners’ group in Alameda County permission to bring a quo warranto action against Dennis M. Waespi, an elected member of the Castro Valley Sanitary District and Hayward Area Recreational and Park District boards.
The property owners seek to force Waespi to give up one of the board seats. He has served on the sanitation board since 1999; he was reelected to that board and elected to the parks board in 2008.
A significant question exists, the attorney general said, as to whether the two offices are compatible. The sanitation district, he noted, provides services to the parks district, so that Waespi might have divided loyalties, for example, if the sanitation board seeks to impose a rate increase and the parks board seeks to resist it.
The opinion granting leave to sue in quo warranto was prepared by Deputy Attorney General Daniel G. Stone. It is No. 10-506.
Gabrielle Giffords' shooting leads some lawmakers to say they'll carry weapons to protect themselves
Civilian FBI Employee Threatened By Terrorists
Denied Gun Permit
New Jersey has denied conceal carry permits for a kidnapping victim, a civilian FBI employee targeted by terrorists and a small business owner!
The Second Amendment Foundation (SAF) filed suit in U.S. District Court for the District of New Jersey against several New Jersey officials for deprivation of civil rights under color of law.
Part-Time Sheriff’s Deputy Denied Conceal Carry Permit
SAF is joined in the lawsuit by the Association of New Jersey Rifle & Pistol Clubs, Inc. and six private citizens whose applications for permits to carry have been denied generally on the grounds that they have not shown a “justifiable need.”
The plaintiffs include a kidnapping victim, a small business owner, a civilian FBI employee and a part-time sheriff’s deputy. The plaintiffs are represented by attorneys David D. Jensen and Robert P. Firriolo with the firm of Duane Morris, LLP in Newark.
Named as defendants in the case are three Superior Court judges, Philip J. Maenza, Morris County; Rudolph A. Filko, Passaic County and Edward A. Jerejian of Bergen County, plus Col. Rick Fuentes, superintendent of the State Police, Hammonton Police Chief Frank Ingemi and New Jersey Attorney General Paula T. Dow.
Alan M. Gottlieb, Executive Vice President of the Second Amendment Foundation remarked, “Law-abiding New Jersey citizens have been arbitrarily deprived of their ability to defend themselves and their families for years under the state’s horribly-crafted laws. The law grants uncontrolled discretion to police chiefs and other public officials to deny license applications even in cases where the applicant has shown a clear and present danger exists.”
New Jersey Law Violates Constitution
“If being a kidnap victim, or part-time law enforcement officer, or the potential target of a known radical group does not clearly demonstrate a justifiable need,” he continued, “the defendants need to explain what would. Do citizens need guns to their heads or knives to their throats before the state considers their need to be justified?”
“Supreme Court rulings have made it clear that the Second Amendment prohibits states from completely banning the carrying of handguns for self-defense,” Gottlieb said. “Nor may states deny citizens the right to carry handguns in non-sensitive places or deprive them of the right to carry in an arbitrary and capricious manner. That’s what is happening today in New Jersey, and we intend to stop it.”
YOU CAN’T PUT A PRICE ON YOUR FREEDOM
SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and an amicus brief and fund for the Emerson case holding the Second Amendment as an individual right.
SAF Sues Eric Holder, FBI
Over Misdemeanor Gun Rights Denial
Acting on behalf of a Georgia resident and honorably discharged Vietnam War veteran, the Second Amendment Foundation today filed a lawsuit against Attorney General Eric Holder and the Federal Bureau of Investigation over enforcement of a federal statute that can deny gun rights to someone with a simple misdemeanor conviction on his record.
The lawsuit was filed in United States District Court for the District of Columbia. SAF and co-plaintiff Jefferson Wayne Schrader of Cleveland, GA are represented by attorney Alan Gura, who successfully argued both the Heller and McDonald cases before the U.S. Supreme Court.
MILITARY VETERAN ACTING IN SELF-DEFENSE
DENIED RIGHT TO OWN A GUN
In July 1968, Schrader, then 21, was found guilty of misdemeanor assault and battery relating to a fight involving a man who had previously assaulted him in Annapolis, MD. The altercation was observed by a police officer, who arrested Schrader, then an enlisted man in the Navy, stationed in Annapolis. The man he fought with was in a street gang that had attacked him for entering their "territory," according to the complaint.
FBI THREATENS TO CONFISCATE SCHRADER'S FIREARMS
Schrader was ordered to pay a $100 fine and $9 court cost. He subsequently served a tour of duty in Vietnam and was eventually honorably discharged. However, in 2008 and again in 2009, Mr. Schrader was denied the opportunity to receive a shotgun as a gift, or to purchase a handgun for personal protection. He was advised by the FBI to dispose of or surrender any firearms he might have or face criminal prosecution.
FELONS GIVEN MORE RIGHTS THAN HONORABLE SERVICEMAN
"Schrader's dilemma," explained SAF Executive Vice President Alan Gottlieb, "is that until recently, Maryland law did not set forth a maximum sentence for the crime of misdemeanor assault. Because of that, he is now being treated like a felon and his gun rights have been denied.
"No fair-minded person can tolerate gun control laws being applied this way," he added. "Mr. Schrader's case is a great example of why gun owners cannot trust government bureaucrats to enforce gun laws."
Remember, protecting our freedom is not inexpensive.
But then, it's impossible to put a price tag on freedom.
The UN wants to make all firearms subject to international law. The Arms Trade Treaty could:
* Prohibit firearm and ammunition manufacturers from selling to the public.
* Prohibit any transfer of firearm ownership.
* Require U.S. citizens to deliver any banned firearms they own to the local government collection and destruction center or face imprisonment.
* Require micro-stamping on all guns.
* Destruction of "excess" firearms.
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