Fight to Update Calif.|Gun Rules Hits 9th Circ.

SAN FRANCISCO (CN) — A three-judge panel of the Ninth Circuit wrestled Wednesday with whether it can force California Attorney General Kamala Harris to update regulations on assault weapons.

Donald Kilmer, the lawyer for two men arrested for possessing assault weapons said the lack of clear, across-the-board guidelines for local law enforcement chills the fundamental right to bear arms.

He said Harris is required by statute to educate law enforcement and the public on what weapons are allowed under the law.

"The question presented by this case is whether the Constitution can tolerate an agency tasked with regulating a fundamental right and ignoring tech innovation, refusing to update its definitions and actually promoting a policy that encourages different interpretations of the law among California's 58 counties," Kilmer told Circuit Judges Susan Graber and Richard Tallman, and U.S. District Judge Jed Rakoff, who is sitting by designation from the Southern District of New York.

While Tallman pointed out that the state Department of Justice has already published an 84-page weapons guide online, Kilmer said the latest edition of the guide is from 2001 and must be updated to reflect changes in weapons technology.

"I'm uncomfortable with the notion of a federal court telling the attorney general of the state of California how to do her job," Tallman said. "There's a huge difference between a federal court issuing a ruling saying this particular state statute is on its face or applied a violation of the Constitution, and entering what you're asking for, which is essentially an affirmative injunction ordering a state officer to do something because by doing nothing your Constitutional rights are being violated."

Kilmer's clients Mark Haynie and Brendan Richards were each arrested for allegedly owning assault weapons in 2009 and 2010. Haynie had a rifle with a "bullet button" that makes the rifle's magazine detachable, and could not be identified under California Penal Code as an actual banned assault weapon. Haynie was released but sued the city of Pleasanton, claiming he feared future wrongful arrests.

Richards spent six days in jail following his arrest until the state Department of Justice found that none of his firearms were assault weapons. Haynie and Richards were joined by the Calguns Foundation and Second Amendment Foundation in a consolidated lawsuit claiming Harris and the state Department of Justice should issue bulletins distinguishing guns with "bullet buttons" from assault rifles.

U.S. District Judge Susan Illston dismissed the case, finding no basis for either man to fear future arrests.

Arguing for the state, Peiyin Patty Li said the panel should affirm Illston's ruling, saying fear of future arrest wasn't enough to prove the threat of future harm, a standing requirement for the plaintiffs to challenge Harris' application of the California Assault Weapons Control Act.

She skirted the issue of the law's ambiguity, saying the Department of Justice could advise manufacturers on the legality of certain weapons, but shouldn't be compelled to make clarifications.

"It may be in applying criminal statutes that officers in the field sometimes get it wrong or there are close cases, but doesn't mean a law is unconstitutionally vague or that a state attorney general has an obligation to promulgate regulations addressing that," Li said, adding, "It is not solely the attorney general's duty to lay out very single thing that local law enforcement might run into."

At the very least, however, Kilmer said the court should order Harris to update the weapons guide."A very simple order would resolve this case," he said. "If the false arrests are still happening then maybe the statute is unconstitutional on its face if it can't be clarified."

The panel did not say when or how it would rule.

Follow @MariaDinzeo

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