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Key Part of Assault Gun Ban Struck Down

Courts: State appellate panel says letting attorney general add weapons to list with judge's consent is unconstitutional.

March 05, 1998|STEVE BERRY and JEFF BRAZIL | TIMES STAFF WRITERS

SACRAMENTO — On the eve of a state Senate debate over a comprehensive new assault weapons bill, an appeals court panel Wednesday declared unconstitutional a key portion of California's existing law that restricts military-style firearms.

The three-member state appellate panel struck down a provision of the law that allowed California's attorney general--with a judge's consent--to add assault weapons to a list of 75 firearms that the law banned. That provision was aimed at copycat weapons that came on the market after the precedent-setting law went into effect in June 1989.

The immediate impact of Wednesday's ruling is limited, because the copycat provision has not been enforced since a court injunction was granted in 1991.

The panel, in its 2-1 ruling, said the provision violates the "separation of powers" rule by giving judges what is, in essence, legislative authority to determine whether each new copycat rifle, pistol or shotgun model constitutes an illegal assault weapon.

"The issue . . . is whether the gun should be banned; that is a legislative question," the ruling said.

The panel added that the list of 75 banned weapons is probably unconstitutional as well because the outlawed firearms appear to be indistinguishable from other models not mentioned in the law.

As such, the panel said, the law appears to violate equal protection principles that prohibit government from applying laws differently to different people.

The appeals panel sent the case back to Sacramento Superior Court to make the determination whether weapons on the list are distinguishable from similar guns that are not restricted.

The panel signaled that, if the issue eventually returned on appeal, it would probably toss out the law. The justices agreed with the findings in a different case that specific weapons banned by brand name under another law constituted an "arbitrary and ill-defined subset."

As originally drafted, the current law would have restricted the sale and possession of guns based on a description of their characteristics, rather than banning a specific list of weapons. But gun lobbyists strongly opposed using general descriptions and persuaded legislators to strike them from the bill.

State Atty. Gen. Dan Lungren, who defended the law against the Colt Manufacturing Co. suit, declined to comment on whether he would appeal Wednesday's ruling until he has had time to read it.

Chuck Michels, a lawyer for Colt, said he felt vindicated. "This is a tremendous validation of the problems we've been talking about all along," he said.

Tanya Metaksa, chief lobbyist for the National Rifle Assn., called the appellate decision "a tremendous ruling for law-abiding gun owners in the state of California."

Gun control advocates consoled themselves Wednesday by pointing out that said the decision adds impetus to the effort to pass the gun control bill up for debate in Sacramento today, which would eliminate the law's list of specific weapons and replace it with a more far-reaching, generic definition of what would constitute an illegal assault weapon in California. The bill, sponsored by Assemblyman Don Perata (D-Alameda), passed the Senate Public Safety Committee on Tuesday and goes to the floor of the upper house, where a vote is likely next week.

The legislation, Perata said, is a "vehicle that could . . . now eliminate any doubt that has been created by this court case."

"The urgency of passage is greater today than it was yesterday."

Louis Tolley, Western director of Handgun Control Inc., said Wednesday's ruling "was not necessarily a bad thing. It puts enormous pressure on the Legislature and the governor to take immediate action."

The existing law was passed in 1989 as a reaction to a Stockton schoolyard shooting in which a mentally disturbed man killed five children and wounded many others with an AK-47 assault rifle early that year. The law lists 75 specific guns as illegal assault weapons and contains a provision that allows the attorney general to ask courts to add similar firearms to the list as they come on the market.

It was that add-on provision that most troubled the 3rd Appellate District panel.

Colt filed the suit over the law in April 1991, shortly after Lungren became attorney general. He had asked a court to ban Colt's Sporter rifle, a semiautomatic weapon that resembles the illegal AR-15 and can fire bullets as fast as a person can pull the trigger.

Colt sought an injunction to prohibit the attorney general from banning the Sporter and from attempting to add any weapons to the list. Lungren did not oppose the injunction.

A Superior Court judge rejected Colt's arguments, but the appeals court decision Wednesday overruled him.

Times staff writer Max Vanzi contributed to this story.

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