California DOJ Withdraws Illegal “Assault Weapon” Regulations After Receiving Critical CRPA & NRA Pre-Litigation Demand Letter

As we previously reported  after the California Department of Justice submitted illegal regulations regarding newly classified “assault weapons” to the Office of Administrative Law (“OAL”) for publication in the California Code of Regulations (CCR), NRA and California Rifle & Pistol Association submitted a joint-letter  to the DOJ explaining the flaws in the regulations and demanding that the illegal regulations be withdrawn or they would ask a court to step in.

Late on Friday, the DOJ withdrew the problematic regulations from the OAL’s consideration. The regulations will likely be revised by DOJ and resubmitted to OAL.

It is unclear exactly why the DOJ took this action, but the CRPA/NRA legal letter likely prompted the move. The CRPA/NRA letter explains how DOJ lacks the authority to adopt the regulations it sought to adopt in the way it sought to adopt them.

DOJ submitted the now withdrawn “assault weapon” regulations to OAL just before New Year’s Eve as “File and Print” only, meaning DOJ was claiming that the regulations are expressly exempted by statute from public comment or OAL review and should simply be published — as is. DOJ is trying to circumvent the regular rulemaking process in California (i.e., the Administrative Procedures Act (APA)), which requires State agencies to provide at least 45 days for public comment on any regulation. But DOJ wanted the regulations published in the CCR without any opportunity for public comment. In the now withdrawn regulations, DOJ claimed an exemption to the APA as a result of specific language in the recently enacted “assault weapon” statute regarding the registration process.

The law requires DOJ to create regulations for properly registering newly defined “assault weapons,” but only exempts registration related regulations from the typical rulemaking process to the extent necessary for the actual registration process.

Contrary to the limits of the exemption contained in the statute itself, the regulations submitted by DOJ to OAL went far beyond what is necessary for the registration process. The regulations actually read like a wish list from the gun ban lobby that DOJ was attempting to shoehorn into the limited exception to the regulatory adoption process actually contained in the law.

Fortunately, CRPA and NRA called DOJ on this ploy and DOJ appears to be reconsidering.

Recently the DOJ backed down from pushing their desired regulations about so-called “large capacity magazines” when faced with opposition from CRPA/NRA attorneys. Just before New Year’s Eve, the DOJ withdrew its bid to push “emergency regulations” regarding so-called “large-capacity magazines” after receiving a letter from CRPA/NRA attorneys explaining the regulations failed to meet the legal standard for emergency status.

What happens next with either set of regulations is unclear. DOJ will inevitably have to create some regulations to effectuate the new “assault weapon” law because California law requires newly defined “assault weapons” to be registered before January 1, 2018, under whatever regulations that DOJ ultimately adopts. Now, two months into the new year, we still have no guidance for those who need to register their newly defined “assault weapons” about how to do so. We can expect DOJ to put out new regulations, but when?

To learn more about the requirements of the new 2017 gun laws, view the CRPA/NRA webinars posted at bit.ly/CRPAweb.

Regardless of how this regulatory mess plays out, CRPA and NRA are committed to staying on top of the DOJ and to bringing litigation to end California’s ban on common firearms it misleadingly calls “assault weapons,” and “large capacity magazines,” and to bring multiple other lawsuits that are being prepared. To support that legal effort please donate at bit.ly/CRPAsupport.