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Subdeacon Joe

OOPS...Missed this. CA pards...New DOJ regs proposed.

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We got 24 hours to oppose this crud! From the form (see link below) you can easily send the letter below. And you have the ability to modify it to suit your style.

 

Link to FPC form

 

 

 

Mr. Jeff Amador
Department of Justice
P.O. Box 160487
Sacramento, CA 95816-0487
VIA EMAIL: jeff.amador@doj.ca.gov

Dear Mr. Amador,

I **oppose** the California Department of Justice (“DOJ, the “Department”) proposed regulations noticed at http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/pdf/des_notice_proposed_rulem.pdf for the following reasons:

--PROPOSED 11 C.C.R. §4210(a)(1)--

I oppose this proposed regulation to the extent that the regulation unlawfully immunizes the California Department of Justice from “any and all theories of liability, including but not limited to any contract or tort claim for any cause whatsoever, for any indirect, incidental, special or consequential damages, including loss of revenue or profits, even if aware of the possibility thereof.”

The DOJ lacks authority for this provision. Nothing within the Penal Code or any other code grants the Department the authority to alter, amend, enlarge, or restricts their statutory and constitutional liability to consumers and dealers through a mandatory regulatory releases of liability.

The proposed provision is inconsistent, is not in harmony with, and is in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law. The proposed regulation would conflict with existing law by acting as a self-imposed waiver of liability for constitutional challenges to the Department of Justice’s actions (including Second Amendment, Equal Protection, Due Process, Unlawful Search and Seizure, and Takings violations).

Also, the proposed regulation conflicts with federal statutory law by acting as a release from any federal statutory violations such as to 42 U.S.C. §1983, which provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

Given the federal and state provisions mandating liability for public entities, the mandatory release provision directly conflicts with existing laws.

Finally, the proposed provision is not necessary. The rulemaking proceeding does not demonstrate by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific taking into account the totality of the record. On the contrary, the Initial Statement of Reasons is void of any facts, studies, or expert opinion supporting the necessity of this provision.

--PROPOSED 11 C.C.R. §4210(a)(3)--

I oppose this section to the extent that it states: “[n]otwithstanding such notification, DOJ shall not be liable for transaction charges fraudulently incurred on the account of this dealership. It is the dealership’s responsibility to pay these transactions.”

The DOJ lacks authority for this provision. While the Department of Justice is authorized to enact regulations relating to fees incurred by dealerships, it has no authority to mandate that dealerships are required to pay fees “fraudulently” incurred upon their account regardless of the individual dealership’s culpability in such “fraudulent” charges.

Penal Code section 28225 limits the fees charged in the context of this provision to actual purchasers. Any attempt to mandate that fraudulent charges not relating firearm purchasers be borne by the dealership as a cost of doing business under the supervision of the Department of Justice is inconsistent, as it is not in harmony with, and is in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law. (Gov’t Code §11349(d).)

Finally, the proposed provision is not necessary. The rulemaking proceeding does not demonstrate by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific taking into account the totality of the record. On the contrary, the Initial Statement of Reasons is void of any facts, studies, or expert opinion supporting the necessity of this provision.

--PROPOSED 11 C.C.R. §4230(B)--

I oppose this section in its entirety. This section states that “a firearm may be delivered to the purchaser/transferee only if the status of the DES transaction record is ‘approved.’ If the current status is ‘pending,’ ‘rejected,’ ‘delayed,’ or ‘denied,’ the firearm shall not be delivered.”

The DOJ lacks authority for this provision entirely. While the Department is authorized to enact regulations relating to the Dealer Record of Sale data collection and electronic transfer process, nothing within the Penal Code -- or any other code -- grants the DOJ the power to alter, amend, enlarge, or restrict the statutes relating to the waiting period and delivery process.

The proposed provision is inconsistent, is not in harmony with, and is in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law. (Gov’t Code §11349(d).) This provision is in direct response to litigation by The Calguns Foundation currently challenging the Department of Justice’s unlawful policies mirroring the proposed regulations.

Finally, the proposed provision is not necessary. The rulemaking proceeding does not demonstrate by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific taking into account the totality of the record. On the contrary, the Initial Statement of Reasons is void of any facts, studies, or expert opinion supporting the necessity of this provision.

--PROPOSED 11 C.C.R. §4230(d)--

I oppose this section on the basis that a dealership will be unable to “deliver firearms for which a DROS was previously submitted.” This proposed section prevents a dealer from delivering firearms that have been properly processed through the Dealer Record Of Sale (DROS) system and DES, and whose payments have timely submitted – thereby denying customers and the dealership the right to transfer a firearm that was purchased by an otherwise eligible customer on the basis that the dealership has not paid the DROS fees for other firearm transfers.

The proposed provision is inconsistent, is not in harmony with, and is in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law. (Gov’t Code §11349(d).) The proposed regulation would prohibit the transfer of firearms where the purchaser and dealer have paid the requisite fees and the firearm can otherwise lawfully be transferred.

Finally, the proposed provision is not necessary. The rulemaking proceeding does not demonstrate by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific taking into account the totality of the record. On the contrary, the Initial Statement of Reasons is void of any facts, studies, or expert opinion supporting the necessity of this provision.

--CONCLUSION--

The proposed regulations discussed above do not meet the requisite authority or necessity and conflict with existing laws. As such, **the proposed regulations discussed above should be rejected** and not approved.

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