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might expect, people are denied their rights simply because the California Department of Justice’s (“DOJ”) records are out of date, inaccurate, or incomplete.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past July, more than 20% of law-abiding citizens attempting to purchase ammunition in California were denied due to outdated or incomplete records maintained by DOJ.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DOJ’s inaccurate and outdated databases are not the only problems some California residents have been forced to deal with.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.
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!