Thursday, June 26, 2014
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Appeals Court Rejects Challenge to ‘Short-Barreled’ Shotgun Law
By KENNETH OFGANG, Staff Writer
A California law making it a felony to possess a shotgun with a barrel shorter than 26 inches does not violate the Second Amendment or the Equal Protection Clause, either on its face or as applied to a person who possesses the weapon at home with the sole intent to use it for self-defense, the Third District Court of Appeal ruled yesterday.
The court affirmed Kenneth Wesley Brown’s conviction under former Penal Code §12020, which makes it a “wobbler” to possess a short-barreled shotgun,” for which three alternative definitions are given, including “[a] firearm which has an overall length of less than 26 inches and which is designed or redesigned to fire a fixed shotgun shell.”
Sacramento Superior Court Judge Benjamin Davidian, following a jury trial, sentenced Brown to five years’ felony probation, a condition of which was that he serve 180 days in jail, reduced to 90 days if he completed an anger management course.
Search Warrant
Brown’s home was searched, pursuant to a warrant, in August 2009. In requesting the warrant, a California Highway Patrol investigator detailed three incidents as constituting probable cause to search the residence for illegal weapons.
He cited a traffic stop during which Brown, whom the officer believed to be intoxicated, allegedly said he intended to “blow s—— up” and mumbled something about an assault rifle; a later phone call to the Department of Motor Vehicles in which he became irate when an employee said there was nothing she could do about a license suspension he had received and Brown said he knew DMV does not have metal detectors, and that he could come in at any time with a gun and “light the place up”; and a second call to the DMV in which he again became angry and mentioned the lack of metal detectors.
The search produced a shotgun, which was measured and examined by a CHP expert, who testified that while the barrel was slightly longer than the legally required minimum, the overall length was slightly less than 26 inches.
Davidian denied the defense motion for judgment of acquittal, holding that the statute was constitutional and that prosecutors did not have to prove that Brown possessed the gun for a nefarious purpose. He also denied a defense request that jurors be instructed that it was not unlawful to possess the gun for self-defense.
Justice’s Opinion
Justice William Murray Jr., writing for the Court of Appeal, rejected the defense contention that there is a fundamental right under the Second Amendment to possess a shotgun of any length, at home, for self-defense.
He distinguished District of Columbia v. Heller (2008) 554 U.S. 570 and McDonald v. City of Chicago (2010) 130 S.Ct. 3020, finding that there is a fundamental, individual constitutional right to bear arms, including the possession of a handgun in one’s home.
Those decisions, Murray noted, left open many questions about the scope of the constitutional right, including what other types of weapons are “typically possessed by law-abiding citizens for lawful purposes,” and thus beyond the legislature’s power to proscribe. Other Court of Appeal panels, he noted, have declined to extend the rationale of the high court’s cases to assault rifles and .50 caliber BMG rifles, which remain banned in this state.
Short-barreled, or “sawed off” shotguns, he noted, have been banned since 1961 in California because criminals have a propensity to use them. The easy concealability of the guns, their intimidating appearance, and their ability to maim or intimidate numerous people at a time make them weapons of choice for wrongdoers, the jurist explained.
Those facts are fatal not only to the Second Amendment claim, but also to Brown’s claim that allowing handguns, but not short shotguns, to be possessed in the home for self-defense violates the Equal Protection Clause, the justice said.
In unpublished portions of the opinion, the justice said Davidian correctly denied the motion for judgment of acquittal and the proposed instruction on innocence of purpose because the law only requires that the prosecution prove that the defendant knowingly possessed the illegal weapon, not that he did so for any particular purpose.
The case is People v. Brown, 14 S.O.S. 3220.
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