1 C. D. Michel - SBN 144258 Jason A. Davis - SBN 224250 2 TRUTANICH • MICHEL, LLP 180 East Ocean Blvd., Suite 200 3 Long Beach, CA 90802 Tel: (562) 216.4444 4 Stephen P. Halbrook 5 LA W OFFICES OF STEPHEN P. HALBROOK 10560 Main Street., Suite 404 6 Fairfax, Virginia 22030 Tel: (703) 352.7276 7 Don B. Kates - SBN 039193 8 BENENSON & KATES 22608 North East 269th A venue 9 Battleground, Washington 98604 Tel: (360) 666.2688 10
11 Attorneys for Plaintiffs
12
13 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 IN AND FOR THE COUNTY OF FRESNO
15 EDWARD W. HUNT, in his official ) CASE NO. 01CECG03182 capacity as District Attorney of Fresno ) 16 County, and in his personal capacity as a ) DECLARATION OF CLAUDIA citizen and taxpayer, et. aI., ) AYALA IN SUPPORT OF REPLY TO 17 ) DEFENDANTS' OPPOSITION TO Plaintiffs, ) MOTION TO COMPEL ATTENDANCE 18 ) AND TESTIMONY OF MIKE SMALL, v. ) JEFF AMADOR, AND ALISON 19 ) MERRILEES; EXHIBITS "Z - AA" STATE OF CALIFORNIA; WILLIAM ) 20 LOCKYER, Attorney General of the State of) Date: January 23,2008 California; CALIFORNIA DEPARTMENT) Time: 3:30 p.m. 21 OF JUSTICE; Does 1-100; ) Dept: 72 ) 22 Defendants. ) ) 23 _=____ = __ = ___= __ =____ =_ =_____ = ___ = ___ = ___ = __ =____ ~_____~ _____ ~ _____~~====}n_m 24 Plaintiffs, Edward W. Hunt, et. aI., submit the following declarations and exhibits in support
25 of Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion to Compel Attendance and
26 Testimony Mike Small, Jeff Amador, and Alison Merrilees.
27 III
28 III
DECLARATION OF CLAUDIA A Y ALA REPLY TO DEFENDANTS' OPP. TO MOTION TO COMPEL 1 1 DECLARATIONS
2 Declaration of Claudia Ayala
3 EXHIBITS 4 Exhibit "z" - Deposition Transcripts ofIgnatius Chinn dated December 11, 2007 pages 46 -
5 47 and pages 61 - 104.
6 Exhibit "AA" - Declaration ofIgnatius Chinn In Support of Defendants' Motion For
7 Summary Judgment or, Alternatively, For Summary Adjudication on Plaintiffs' Amended
8 Complaint.
9 Dated: January 15,2008
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11 J n A. Davis Attorney for Plaintiffs' 12
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DECLARATION OF CLAUDIA A Y ALA REPLY TO DEFENDANTS' OPP. TO MOTION TO COMPEL 2 1 DECLARATION OF CLAUDIA AYALA
2 I, Claudia Ayala, declare as follows:
3 1. I am the legal secretary for Jason Andrew Davis and an employee ofTrutanich
4 Michel, LLP counsel of record for Plaintiffs Edward Hunt et aI., v. The State of California et aI.,
5 in the above captioned case. I have personal knowledge of and familiarity with the case of
6 Edward Hunt et aI., v. The State of California et aI., and the filings therein. The facts stated below
7 are within my personal knowledge and, if called as a witness, I could and would testify
8 competently thereto.
9 2. On Thursday, December 20,2007, I spoke to Mr. Beckington and served him with
lOa copy of the ExParte Application and exhibits therein via email.
11 3. On Thursday, December 20,2007, after the ExParte hearing I added the hearing
12 date to Plaintiffs' Motion to Compel and then signed and mailed Mr. Beckington a copy of our
13 Motion to Compel via regular U. S. Mail, though I inadvertently did not identify the manner of
14 service for Plaintiffs' Motion to Compel when it was served on Mr. Beckington, but I
15 acknowledge that I served Plaintiffs' Motion to Compel via regular U. S. Mail on December 20,
16 2007.
17 4. On January 4,2008, Mr. Davis received a phone call from Mr. Beckington
18 indicating that he did not receive a copy of our Motion to Compel via mail.
19 5. On January 4, 2008, I sent Mr. Beckington another copy of our Motion to Co el
20 with exhibits via overnight mail.
21 I declare under penalty of perjury that the foregoing is true and
22 15, 2008, at Long Beach, California.
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DECLARA TION OF CLAUDIA A Y ALA REPLY TO DEFENDANTS' OPP. TO MOTION TO COMPEL 3 EXHIBIT Z 'I HUNT V STATE OF CA....._.JRNIA MuIti-Page1M IGNATIUS CHINN, 12111/0'
IN THE StJP~RIOR ':QURi OF THE STATr. Of" CALIFORNIA fNoex I" AHO F'O~ THE COUNTY OF f'R.eSNO f;x.ur.l1I E.DWJ\RD W. HUtlT, in td.!) (.[tleld.l caVdcilV d~ Di!1tri(:t Attorneoy ot Fr~.:Hlo l"OllOr:.y. Cind in hUI person.al Cdp-.t,_·j t.y 'U 4 <:~1.tlz.~n 14 D 61 1 S 15 E Pi'lqes 39, "0, 41, 42 <1nd 75 (rorn 16 16 Bro.,.nel13 c.:tt«log. six pdqecs 17 17 F Leeler dc.\ted. Auqu:Jt 19, 2000. from 19 18 Randy ROS91, one p4ge 8S R~pvrt:.~d by: G L@'tter dated AUllust 6, ?001, trom TRACY LEE MOORELAND 19 21 CSR P4(). 10J9"1 20 Hdr11yn R. LdBril3, eour Pdqes 89 Job No. l'/!lIlSLR 21 H REport d.ocumentat.ion pdq(" dod 23 4tt4ched documents, 51 p"q~~ 90 23 Title 11. Dep4rtment or JU9t.ice Notice '>t proposed rulem4.klnq, 111 APPEARANCES EXHIBITS, cont. Oepos1.tion of IGNATIUS CHINN For the ~l(llnt1tt': J Tuesday, J)ecel1\bor 11, 2007 TRUTAHICH HICHEL, LLP Numb~r BY: JASON A. OAVIS, ESQ. J Inlti«l st4tement ot r(fdSOnS, 1 SO EdS t OC~4n Boulevard, Sui te ~OO 6 two paqes 113 K Chd.pter 12. e, on(t p4qe 122 L T poc the D"!tend4nt~: 9 10 CI\LIFORHIA DEPI\RTHEIIT OF JUSTICE 10 11 aY: ALISOII H&R1ULEES, ESQ, 11 11 (f't'E:sent t.o Pdqe 132) 12 lot2!"> Riv@r P4tK Drive, Suite 540 13 14 SdC[4mento, california 95916 14 i"5 16 for the- Detenddnts: 16 17 CALIFORIIIII DEPI\RTMEHT OF JUSTICE 11 18 BY': MARK BECKINGTOH, ESQ. 18 19 )00 SOllth Sprtnq St.ree-t, Suite 1702 19 I~~COPY 20 Los Angeles, Cdlit'orni.s 90013 20 21 21 ---000--- 22 ( 23 2< 24 25 Page 1 - Page l " HUNT V'STATB OF CA...... JRNIA Multi-Page 1M IGNATIUS CmNN. 121111(J Page 45 Page 4 I hypothetical. A. Yes. 2 Q. BY MR. DAVIS: Do you understand the question? 2 Q. Has anybody been prosecuted under those fact 3 A. Yes. 3 patterns? 4 Q. And what would your answer be? 4 A. Yes. 5 MR. BECKlNGTON: If you understand the 5 Q. How many, to the best of your knowledge? 6 question, you can answer it. 6 A. Personally, one. 7 THE WITNESS: Virtually, in theory, there's no 7 Q. Who is that person? 8 such thing. 8 A. Two people. One was a Lefty Curtis and a 9 Q. BY MR. DAVIS: The two flash suppressors you 9 Chinese fellow who ordered the gun in from Ohio. It was 10 identified earlier, those were identified as the first 10 an MIA with a flash suppressor on it. II step or the second step? II Q. And that was the only characteristic that it 12 A. You mean the muzzle brakes? 12 had on it that made it an assault weapon? 13 Q. I'm sorry, yes, the muzzle brakes. 13 A. Yes. 14 A. They were -- yes, they were identified early. 14 Q. Do you know his -- do you know his sentence? 15 Q. In the first phase? 15 A. Yes. 16 A. Yes. 16 Q. What was his sentence? 17 Q. Because of what the ATF stated? 17 A. Both pled to a misdemeanor, 12280, small B .. 18 A. What the ATF stated and what Browning stated, 18 or Ai misdemeanor, and they were both given probation. 19 yes. 19 Q. Did they have their firearms returned? 20 Q. You state in your declaration that if the 20 A. No. Lefty did. He got about 30 weapons back. 21 fireanns division were unable to detennine whether a 21 Q. Did he receive the firearm that was an assault 22 particular device functions to perceptibly reduce or 22 weapon with the flash suppressor? 23 redirect muzzle flash in the shooter's field of vision 23 A. No. 24 based on inspection of the device, they would consult 24 Q. And that's all you know of? 25 with the ATF? 25 A. Personally, yes. r·.,' .. ,. Page 46 Page 4f I MR. BECKlNGTON: Again, if you could direct the Q. When you say "personally," what do you mean? 2 witness to which page you're referring to. 2 A. The cases that I've personally made, yes. 3 THE WITNESS: Yes. 3 Q. Do you know of any other special agents that 4 Q. BY MR. DAVIS: Might be repeating these. Has 4 have prosecuted -- 5 anybody been arrested for possessing an assault weapon 5 A. No. 6 with a flash suppressor? 6 Q. Does the Firearms Bureau consider the Browning 7 MR. BECKlNGTON: Objection. Calls for 7 BOSS to be a flash suppressor? 8 speculation. 8 MR. BECKlNGTON: Objection. Lack of 9 Q. BY MR. DAVIS: To your knowledge. 9 foundation. 10 A. Well, is the flash suppressor the only IO Q. BY MR. DAVIS: Do you know what the Browning 11 characteristic on a point one that caused that person to II BOSS is? 12 be arrested? 12 A. Yes. 13 Q. Both. 13 Q. Does the Firearms Bureau consider the Browning 14 A. Yes. 14 BOSS system to be a flash suppressor? ...... _-----_ ... -_ ...... -... _--_ ...... __ .----_... . tIs- Q.Apersorfnasl5eenarresfedToipossessIonof an" 'is' A~··N6.' 16 assault weapon with a flash suppressor, yes? 16 MR. BECKlNGTON: Objection. I'll just state 17 A. Yes. 17 the objection for the record, that it lacks foundation. 18 Q. Has someone been arrested for possession of a 18 THE WITNESS: No. 19 an assault weapon with a flash suppressor where that is 19 Q. BY MR. DAVIS: why not? 20 the only characteristic in addition to the required -. 20 A. We've contacted Browning. They basically 21 A. Species identifier? 21 advised us as to the purpose and the operation of the 22 Q. Yes. 22 BOSS. and -- ( 23 MR. BECKINGTON: objection. Calls for 23 Q. What did they say the purpose and the operation 24 speculation. 24 was? 25 Q. BY MR. DAVIS: To the best of your knowledge. 25 A. Reducing recoil and muzzle jump. Page 45 - Page 48 Multi-PageI'M IGNATIUS CHINN, 12/1110 Page 61 Page 6: I sort of show and tcll here, are you going to make these I advertiscd in any of the industries, and I haven't been 2 cxemplars part of the record for this dcposition? 2 able to test it, so I couldn't teB you that. ("-'\ 3 MR. DAVIS: Actually, no, not for this. I will 3 Q. What about the step two examination where you '. J 4 take pictures of them and provide you with pictures of 4 just check for the function? 5 them. That's why I'm asking him to describe -- if he 5 A. Well, I'd have to function it. I'd have to put 6 could describe the cuts and slots, then there would be 6 this on the end of an MIA and do something similar to 7 no confusion. 7 the Ed Owens test. H (Exhibit D was marked.) 8 Q. How would you test that to dctennine whether or 9 Q. BY MR. DAVIS: I'm giving you one that's 9 not it's a flash supprcssor? What standards would you 10 identified as UPC code AA0313. 10 compare it to? II A. Right. II A. Basically the same standard that Ed Owens used. 12 MR. BECKlNGTON: So I can understand what we're 12 Q. What standard was that'? 13 doing here. The court reporter was kind enough to make 13 A. Whether it perceivably reduced the flash from 14 copies of the various exemplars you've brought. Are you 14 the shooter's field of vision. 15 marking all those stapled pages as the next exhibit in 15 Q. Okay. When you say perceptively reduces the 16 order? 16 flash from the shooter's field of vision, is the 17 MR. DAVIS: Yes, as Exhibit D. But I will 17 shooter's field of vision different if they shoot from 18 identify each device I give him by the number that's 18 the hip than if they shoot from the shoulder? 19 attached in the photo. 19 MR. BECKlNGTON: Objection. Calls for 20 MR. BECKlNGTON: All right. 20 speculation. 21 Q. BY MR. DAVIS: Are you familiar with that 21 Q. BY MR. DAVIS: Do you understand the question? 22 device? 22 A. Yes. 23 A. Yes. 23 Q. Is it? 24 Q. What is that device? 24 A. The close focus is different; the far focus is 25 A. It is the flash suppressor front side apparatus 25 not. (;- Page 62 Page 64 for the MIA, which is the civilian model of the M14. I Q. What do you mean by the "close focus" versus 2 Q. That's the device that the approved MIA muzzle 2 the "far focus"? 3 brake replaces? 3 A. You're no longer looking at the front site, but 4 A. Yes. 4 you're still looking at your target. 5 Q. So that is a flash suppressor under California 5 Q. So the gun blocks a lot of the flash when 6 law'? 6 you're shooting from the shoulders versus when you're 7 A. Under California law, yes, it's a flash 7 shooting from the hip? 8 suppressor. 8 A. No, the flash is more perceived from the 9 Q. Why is that on that one? 9 shoulder than it is -- 10 A. It's identified by industry and military 10 Q. Because it's closer to the eye? 11 manuals as a flash suppressor. II A. Yes. 12 Q. I'm going to give you the device marked cm 12 Q. Is the shooter's field of vision different if 13 0002. I'd ask you to describe that one for me as well. 13 you're looking through a scope versus shooting from the 14 P<: .. ItJooks I.i1cea J:!1C>(;J.ct1.p 9f~ MIA~ MI4fl.~b 14bip? 15 suppressor, except the bottom part is filled in. There 15 A. Yes. 16 are no slits, and the slits that are on the top portion 16 Q. Okay. Would this device redirect flash, in 17 from 9 to 3 :00 on the upper portion of the clock of the 17 your opinion? 18 apparatus is interrupted by filled-in portions in the 18 MR. BECKINGTON: objection. Calls for 19 center of the slits. 19 speculation. 20 Q. So if that were not a mockup, would that be a 20 THE WITNESS: Can I speculate? 21 flash suppressor under California law? 21 MR. DAVIS: Yes. 22 MR. BECKlNGTON: I'll object to the extent it 22 THE WITNESS: I believe it would. ( 23 calls for speculation. 23 Q. BY MR. DAVIS: So in your opinion, that would 24 Q. BY MR. DAVIS: In your opinion. 24 be a flash suppressor because it, in your opinion, 25 A. In my opinion. I've never seen one of these 25 redirects flash? Page 61 - Page 64 i HUNT V STATE OF C ... ~ .. FORNIA Multi-Page TM IGNATIUS CHINN, 12/111C Page 65 Page 6 A. Let me see the original one. suppressor under California law? 2 Q. While you're looking at it, could you tell me 2 MR. BECKINGTON: objection. Calls for 3 what you're looking for. 3 speculation. 4 MR. BECKINGTON: Let the record ref1ect that 4 THE WITNESS: I've not seen this in the 5 the witness is comparing two of the exemplars you've 5 catalogs. I would have to test it. 6 brought, the one that you were asking him about and then 6 But a similar apparatus on the SVD 45. which 7 I think the first one you showed him. 7 is, I believe, a Soviet semiautomatic 762 x 54 rimmed 8 MR. DAVIS: The witness is comparing the device 8 assault rifle, we have deemed to be a muzzle brake, 9 marked M0313 and the device marked cm 0002. 9 which makes that rifle a nonassault rifle. I () THE WITNESS: And your question again? 10 Q. BY MR. DAVIS: I'm going to ask you to do the II Q. BY MR. DAVIS: My question was, in your opinion 11 same thing with the item marked cm 0004. J 2 is that a flash suppressor because it redirects flash, 12 A. It appears to be another mockup of the MIA J3 in your opinion? 13 flash suppressor apparatus. The slit portions are 14 MR. BECKINGTON: objection. Calls for 14 filled in, and in every one of the slits there arc holes 15 speculation. 15 drilled, six holes per slit. And, again, I've not seen 16 THE WITNESS: I would have to test it. And I 16 an apparatus like this in the publications and I'd have 17 don't believe this thing is in the industry catalogs at 17 to test it. 18 this time, identified as either, so I would want to test 18 Q. Would you say, based upon examination of that 19 the exemplar, place it on the gun, you know, do what I 19 device, that if it was an actual device attached to the 20 have to do. 20 end of a barrel, it would cause the flash to exit in a 21 Q. BY MR. DAVIS: Let me ask you to do the same 21 360-degree arc like the Browning BOSS? 22 thing with cm 0001. 22 MR. BECKINGTON: objection. Calls for 23 A. Appears to be a mockup of the same apparatus, 23 speculation. Also vague and ambiguous. 24 though there is some issue with the bayonet lug. It's 24 Q. BY MR. DAVIS: In your opinion. Did you 25 missing -- or slightly different. There's a lug there. 25 understand the question? Page 66 Page 6~ Okay. 1lte apparatus, again, has the slits A. Kind of. 2 filled in on the bottom so there's no openings on the 2 Q. Basically would that flash -- would the flash 3 bottom, and the apparatus on the top has crevices where 3 out of that be similar to the Browning BOSS? 4 the top slits would have been, and there are openings, 4 MR. BECKINGTON: objection. Calls for 5 some are ovals and others are circles, and they appear 5 speculation. 6 to vent gases -- appear to be designed to vent gases 6 Q. BY MR. DAVIS: Do you understand the question 7 from the upper area of the apparatus from 9 to 3:00. 7 now? 8 Q. Would that device be deemed a flash suppressor, 8 A. I understand. 9 in your opinion? 9 In theory it's similar. 10 MR. BECKINGTON: objection. Calls for 10 Q. But you can't make a detennination unless you II speculation. 11 test it at this point? 12 THE WITNESS: I've never seen this type of 12 A. Right. 13 apparatus in any of the publications, and this is 13 1lte bottom is filled in. so there's no 360 14 another one I'd have to test. .. . .14. nexe .. Jt.'.s.actuallyocc.1udedfrom.thehottomportioll; 15 Q. BY MR. DAVIS: okay. I'm going to ask you to 15 so there's only about 300 degrees. 16 do the same thing with device cm 0003. 16 Q. I'm going back to the first item I gave you, 17 A. This appears to be another mockup of the same 17 AA0313. You said that is a flash suppressor? 18 apparatus, and it has no slits on the bottom, no 18 A. Yes. 19 openings, and it appears there was no slits on the upper 19 Q. Because it's marketed as a flash suppressor? 20 portion, and where the openings are now, what you would 20 A. Yes. 21 call horizontal cuts -- one, two, three, four, five, 21 (Exhibit E was marked.) ( 22 six, seven -- eight cuts opening up to the traveling gas 22 Q. BY MR. DAVIS: Are you familiar with this 23 portion of the apparatus, so you can see into the 23 document? 24 apparatus in these areas of cuts. 24 A. Yes. 25 Q. In your opinion, would that be a flash 25 Q. This is the Brownells catalog you referred to Page 65 - Page 68 , { HUNT 'V STATE OP'-"..JIFORNlA Multi-Page Thf IGNATIUS CIUNN, 12111/0 Page 69 Page 7 I earlier in the depo? suppressor that's on the end of the M]6 or the AR-15. 2 A. Yes. 2 the ones that would have -- you know, if they had the -'" ) Q. On page 40 of the document I gave you -- I'm 3 threaded barrel because they were pre '94 or after 200' ~. C·c. j 4 sorry, strike that. 4 Q. What about the IP recoil eliminator? 5 On page 39 of the document I gave you, there's 5 A. That's very similar to the eliminator that's on 6 an item called the Vortex flash hider. 6 our, the Department of Justice, 82AI Barrett. Very 7 A. Yes. 7 similar to it. And it's there to redirect flash to -- H Q. In your opinion, would that be a flash 8 or gases to reduce the recoil. [) suppressor'? 9 Q. Would that be a flash suppressor? 10 A. Yes. 10 A. No. II Q. Why is that? 11 Q. Even though it does redirect gases and flash? 12 A. Flash hide, flash suppress, basically the same 12 A. No. 13 thing. 13 Q. Did you state that it redirects flash? 14 Q. Industrywide, flash hide and flash suppressor 14 A. Oh, it does, but it's not a flash suppressor. 15 means the same thing? 15 Q. Under California's definition? 16 A. Yes. Has nothing to do with compensating or 16 MR. BECKlNGTON: I'll object to the extent it 17 braking. 17 caUs for a Jegal conclusion. II) Q. What about the item on the same page, item 18 THE WITNESS: It says nothing here about 19 defined as post-ban compensator, would that be a flash 19. reducing flash. It says recoil eliminator. Recoil. It 20 suppressor'! 20 has nothing to do with flash, suppressing or hiding or 21 A. Not identified here, no. 21 dissipating. 22 Q. You can't make a -- can you make a 22 Q. BY MR. DAVIS: The next one up on the third 23 determination based on the photo? 23 column, Eagle Mini ]4/30 flash hider, is that a flash 24 A. Not really. But I would say that it -- you 24 suppressor? 25 know, on speculation it's a compensator, not a flash 25 A. Hider, suppressor, yes. (" Page 70 Page 72 hider. Compensate means to compensate for the rise in Q. Same thing? 2 muzzle and the recoil. 2 A. Uh-huh. 3 Q. What about on page 40 on the second column, 3 Q. What about the Dyna Systems AK muzzle brake? 4 muzzle brake/stabilizer, would that be a flash 4 A. It's a muzzle brake. It redirects flash. Both 5 suppressor, in your opinion? 5 apparatuses reduce recoiL The one on the top though is 6 MR. BECKINGTON: Just for clarity, you're 6 questionable. 7 referring to the Springfield Annory M]A? 7 Q. Why is that? 8 MR. DAVIS: Right. 8 A. It's very similar to the flash hiders that were 9 THE WITNESS: Kind of looks like the California 9 issued to the Ml carbine, the British jungle carbine and 10 compliant. 10 field 303, so that would probably fall under the old II Q. BY MR. DAVIS: why does it look like the II traditional definition of a flash hider. 12 California compliant model'? 12 Q. The Dyna Systems AK muzzle brake, you're 13 A. It just does. I've seen the California 13 identifying the top? 14 compliant models, and we've allowed them to be sold in 14 A.AS.~Hflll.§b.hideJ,. 15th{; state sInce about ZOOo;anditiooksiilre it: .'15 Q. Is there anything in this advertisement that 16 And I would say that, No. I, diffuses recoil 16 identifies it as a flash? 17 and practice shooting longer with less pain. Where 17 A. The first sentence says Russian military 18 would the pain be, sir? Right here in the shoulder. 18 pattern provides effective flash and recoil control. 19 So, yeah, it's not a flash hider. 19 And personally shooting the bottom two on 20 Q. What about the next one down, the -- 20 AK-47S very loud, no flash reduction. The front one, 21 A. Flash suppressor for the Mini-14? 21 there's a little scoop thing. Basically it's a recoil 22 Q. Yes. 22 reducer for full automatic, and actually directs the ( 23 A. It's a flash suppressor. 23 gases and flash away from the way the barrel and bullets 24 Q. Because it says "flash suppressor"? 24 are coming out and it drives the barrel down so that you 25 A. Yeah. And it basically looks like the flash 25 can fire full automatic and keep control of it. Page 69 - Page 72 HUNT V STATE OF C.n...... tFORNIA Multi-Page TM IGNATIUS CIDNN, 12/1110 Page 73 Page 7 Q. What about the next one, the AK-74 muzzle I A. It's identified as a brake. 2 brake? 2 Q. Is it possible for an item to be identified as ('~ 3 A. Yeah, it's very similar to the apparatus that's 3 a muzzle brake, for it also to be a flash suppressor? - ~_/. 4 on the right of the Dyna Systems, this one here. That's 4 MR. BECKINGTON: object to the extent the 5 considered the AK muzzle brake. Very similar to the AK 5 question calls for speculation. 6 74, 74 being, as you're aware, for a smaller caliber, 6 Q. BY MR. DAVIS: In your opinion. 7 5.45, rather than this one up here that's set for 7 A. Well-- 8 762 x 39. 8 MR. BECKINGTON: I'll also object that it's an 9 Q. So you're saying that it is a muzzle brake and 9 incomplete hypothetical. 10 not a flash suppressor? IO Q. BY MR. DAVIS: Can a device be both a flash II A. Yes. It's designed very similar to this one II suppressor and a muzzle brake simultaneously under 12 down here. 12 California law, in your opinion? 13 Q. So the lower of the two items depicted under 13 MR. BECKINGTON: Same objections. 14 Dyna Systems AK muzzle brake? 14 THE WITNESS: It doesn't need to be. If it's 15 A. Right. 15 both and it advertises both and it says flash 16 And this apparatus too is produced and sold on 16 suppressor, it's still a flash supressor, whether it's a 17 AR-15 uppers by Bushmaster as the AK muzzle brake. If 17 muzzle brake or not. 18 it's open on the sides like that, like these two items 18 If you look at the Marine Corps manual, that 19 here, that's traditionally what we refer to as an AK 19 item that is identified as a flash suppressor in the 20 muzzle brake. 20 Anny manual and whatever other military manual, the 21 Q. Next is the one up on the right, Smith 21 Marine Corps actually identifies that apparatus as a 22 Enterprise M14IMIA muzzle brake. Is that a flash 22 flash suppressor, flash compensator, but because it is a 23 suppressor or muzzle brake? 23 flash suppressor, regardless of its compensating 24 A. It's advertised as a muzzle brake. I've seen 24 capabilities, it's a still a flash suppressor. 25 these apparatuses before, and on the top portion of it 25 Q. BY MR. DAVIS: Was that a yes or a no? ( Page 74 Page 76 I there's a scooped out portion that actually redirects I MR. BECKINGTON: objection. The question has 2 gases out to the rear, right to the front site, and it 2 been asked and answered. 3 basically is to drive the muzzle down and forward to 3 THE WITNESS: Could you repeat the question. 4 reduce recoil and to reduce barrel jwnp. So it is a 4 Q. BY MR. DAVIS: Can a device be both a 5 muzzle brake. 5 compensator and a flash suppressor at the same time 6 Q. And the next one down, the M] muzzle brake? 6 and -- or compensator and flash suppressor at the same 7 A. It's identified as a muzzle brake. I've never 7 time first. 8 seen one of those at all. It looks like it would take a 8 MR. BECKINGTON: Objection. The question has 9 position in the front near the gas area of the Ml 9 been asked and answered, and also calls for speCUlation. 10 Garand. I've never seen it. 10 Incomplete hypothetical. II Most of the folks that shoot MI Garands, they II MR. DAVIS: Are you telling him to not answer? 12 don't want anything like that on the front of their gun 12 MR. BECKINGTON: No. 13 anyway. They're shooting for accuracy, they're shooting 13 THE WITNESS: I believe I answered it the first 14 forC~p .I>~!1Y~.. ~Y~().!1_ot ~~I!!~I;l,!, .. . 14. Jime.lsaid.y.es,. iLcan, ..but iLdoesn.'tmatter. . 15 Q. What about the os ArmS FAL muzzle brake? 15 Q. BY MR. DAVIS: okay. On page 41 -- did we 16 A. Muzzle brake basically. They were issued on a 16 already do the KDF muzzle brake? 17 lot of the pre-2000 DSAS, hnbels, the dealer warehouse, 17 A. Yes. 18 FN-FALs. They came on them. They were basically 18 Q. Let's go to the Varmint. 19 attached with four set screws. 19 A. Brake, muzzle brake, compensator, same thing. 20 Q. The next one down, the BP Tech 20 Q. Not a flash suppressor? 21 Venturi-accelerator comp? 21 A. Yes. ( 22 A. Camp, compensator. That's basically what-- 22 Q. Yes, it is not? 23 it's to compensate the barrel recoil and jump, barrel 23 A. No, it is not. 24 jump. 24 Q. Okay. Smith Enterprise non-indexable rifle 25 Q. The next page, 4 I. KDF muzzle brake? 25 compensator? Page 73 - Page 76 HUNT V STATE OF Ch:.lL.. J!ORNIA Multi-Page ™ IGNATIUS CHINN, 12111/0 Page 77 Page 71 I A. Compensator. I MR. DAVIS: On page 75. 2 Q. Not a fI ash suprcssor? 2 Q. I'm sorry, I didn't hear you. /- " 3 A. Right. 3 A. No. ( \ ...... ;. 4 Q. Smith Enterprise semi auto muzzle brake? 4 Q. Is the Bushing comp a flash suppressor, in your A. No. 5 opinion? Q. Not a flash suppressor? 6 A. No. A. Correct. 7 Q. Is the Wilson combat multi-comp a flash Q. CFL muzzle brake? 8 suppressor, in your opinion? A. Not a flash suppressor. 9 A. No. Q. Is the KDF convert-a-brake a muzzle or -- or a 10 Q. And the seven-chamber compensator, is that a flash suppressor? II flash suppressor, in your opinion? A. No. 12 A. No. Q. Is the Que Industries adjustable muzzle brake a 13 Q. Would you like to break for lunch? flash suppressor'? 14 A. Yes. A. No. 15 (Lunch recess taken.) Q. Is the quick discharge brake a flash 16 MR. DAVIS: We're back from lunch now. suppressor? 17 Q. I wanted to ask you a quick question. Earlier A. Not as advertised, no. 18 we had discussed how many prosecutions you're aware of Q. Under California law? 19 involving assault weapons where the only characteristic MR. BECKlNGTON: objection. Calls for a legal 20 attached to the fireann was a flash suppressor. conclusion. 21 In your estimate, how many assault weapon Q. BY MR. DAVIS: In your opinion. 22 prosecutions have there been since the enaction of A. No. 23 Roberti-Roos? Q. Is Gunner's Choice recoil reducer a flash 24 MR. BECKINGTON: objection. Calls for suppressor, in your opinion? 25 specUlation. Page 78 Page 80 A. No. THE WITNESS: I don't know the exact number. Q. Is the DLASK ArmS rifle muzzle brake a flash 2 Q. BY MR. DAVIS: can you estimate? suppressor, in your opinion? 3 A. You want me to speculate? A. No. 4 Q. Yeah. Q. Few more. Is the Shrewd muzzle brake a flash 5 MR. BECKINGTON: objection. Calls for suppressor, in your opinion? 6 specUlation. A. No. 7 You can give him your best estimate if you have Q. Is the Gentry "quiet" brake a flash suppressor, 8 one. in your opinion? 9 MS. MERRILEES: Based upon your personal A. No. 10 knowledge. Q. Is the rifle muzzle brake -- the vAIS rifle II THE WITNESS: Yeah. From 2002 when we started muzzle brake a flash suppressor, in your opinion? 12 doing assault weapons cases, 2001, I'd say anywhere from A. No. 13 a couple hundred. Q.~gl~~ -~~~~.fu:(lt ...... HOc .. BYMR.. DAVIS:Couplehundred..-Out.ofthat Is the Ops Inc. a muzzle brake or a flash 15 couple hundred, how many of those are Senate Bill 23 suppressor -- or a flash suppressor, in your opinion? 16 related? A. No. 17 MR. BECKINGTON: objection. Calls for Q. What about the Badger ordnance thruster comp? 18 specUlation. A. No. 19 Q. BY MR. DAVIS: In your estimate. Q. That's not a flash suppressor, in your opinion? 20 A. Quarter of them. A. No. 21 Q. So about 50? Q. Just a couple more. The .22 V comp? 22 A. Fifty to 40, yeah. A. No. 23 Q. How many of those do you know -- how many of MR. BECKINGTON: counsel, where are you 24 those in your estimate had flash suppressors on them? referring to? 25 A. To be honest, just that one, because most of Page 77 - Page 80 , , IflJNT V STATE OF Lh.LiFORNIA Multi-Page TM IGNATIUS CHINN. 12/1 I/O Page 81 Page 8: the problems were the pistol grips. out of the assault weapons category, and I identified 2 Q, Are you aware of the case People versus Corwin? 2 the metal one as an MIA or MI4 flash suppressor. 0·· ."., I, J A. Little bit. Not much. 3 Q. Each one of those devices have slots or holes ( J 4 Q, Are you aware of the fact that that case 4 or cuts in the sides or the top of the device, correct? 5 involves a firearm with a flash suppressor attached to 5 MR. BECKINGTON: Just vague and ambiguous as t 6 it? 6 what you're referring to. Are you referring to the 7 A. I don't remember. 7 exemplars? 8 Q. What percentage of those 200 prosecutions do 8 MR. DAVIS: The exemplars and the items 9 you know facts about the firearms? 9 depicted in the Brownells catalog. 10 MR. BECKINGTON: well, objection to the extent 10 THE WITNESS: Yes. 11 it misstates his testimony. You said the number of II Q. BY MR. DAVIS: And without those holes or slots 12 prosecutions. 12 or cuts, flash would come directly out the muzzle of th 13 Q. BY MR. DAVIS: what percentage of your estimate 13 firearm? 14 of firearms prosecution involving assault weapons -- I 14 A. Yes. 15 lost my train of thoUght. Strike that. 15 Q. With those holes, slashes or cuts, flash will 16 That estimate only involves prosecutions by the 16 come out of the holes, slots or cuts, right? 17 Bureau of Firearms? 17 A. Yes. 18 A. Yes. 18 Q. Would you say that they redirect flash? 19 Q. Does that involve any of the DAS? Does that 19 A. And gases, yes. 20 estimate include any prosecutions by District Attorneys? 20 Q. Looking at the definition of flash suppressor. 21 A. They prosecute all our cases. 21 Let me show you the assault gun identification guide 22 Q. And you're aware of each of the cases? 22 again. 23 A. Not all of them, no. 23 Includes the word "perceptibly," correct? 24 Q. Out of your estimate of firearms, how many do 24 A. Correct. 25 you know the facts -- specific facts involving the 25 Q. What does "perceptibly" mean to you? ( Page 82 Page 84 I firearms in the cases? MR. BECKlNGTON: objection. Calls for 2 A. That, I can't tell. 2 speculation. Lack of foundation. 3 Q. How many of those were you directly involved 3 Q. BY MR. DAVIS: You can answer it. 4 in? 4 A. How my eyes has the flash reduced is different 5 A. A lot. 5 from another person's, but there is a certain point in a 6 Q. Can you give me an estimate. 6 person's eyeball, all eyeballs, that enough light floods 7 A. Over half. 7 in that you lose visual acuity. 8 Q. Over half. So about 100 or so? 8 Q. Would that definition be the same if it did not 9 A. Uh-huh. 9 include the term "perceptibly"? 10 Q. And out of those hundred or so, you only know 10 A. I believe so, yes. 11 of about 25 that involve -- that had flash suppressors II Q. It would be the same? 12 attached to the fireanns? 12 A. I believe so, yes. 13 MR. BECKlNGTON: objection. Misstates 13 Q. Would you consider it a standard of 14 _t~st.!mQ~Y, -_14 .measurement? - 15 Q. BY MR. DAVIS: Approximately 25? 15 A. No. 16 A. No, characteristics 25, one flash app. 16 Q. You state in your declaration, the absence of a 17 Q. Okay. Each of the devices -- we went through a 17 specific measurement standard demonstrates that 18 number of exemplars and pictures earlier, correct? 18 legislative intent to include devices that can reduce or 19 A. Yes. 19 redirect any amount of flash and no administrative 20 Q. You identified a number of those as being 20 regulation made later -- 1'm misquoting it. 21 muzzle brakes or compensators and not flash suppressors, 21 A. Where are you looking? 22 correct? 22 Q. The absence of a specific measurement standard (- 23 A. No, I said I'd have to test them. But I did 23 demonstrates the legislative intent to include devices 24 identify one that is similar to one we have on the SVT 24 that reduce or redirect any amount of flash, and no 25 that we identified a muzzle brake which pulls the SVT 25 administrative regulation may alter a statute or enlarge Page 81 - Page 84 HUNT V STATE OF (; ...... LFORNIA Multi-Page TM IGNATruS CIllNN, 12/1110' Page 85 Page 8~ I or impair its scope. I Q. You've seen this letter from Randy Rossi to Tom 2 A. What's your question? 2 Long? 3 Q. Under that standard, wouldn't the BOSS be a 3 A. I believe, a long time ago. 4 flash suppressor since it does redirect some flash? 4 MR. BECKINGTON: objection. Lack of 5 MR. BECKlNGTON: objection. Vague and 5 foundation. Also lack of authentication. 6 ambiguous. Lack of foundation. Calls for speculation. 6 Q. BY MR. DAVIS: A long time ago, you said? 7 Q. BY MR. DAVIS: In your opinion. 7 A. I don't remember it, but it appears to be of 8 A. No. 8 the information that we were contacting him on. 9 Q. Regarding the Browning BOSS, you state that the 9 Q. Why did the DOl, in your opinion, contact Tom 10 OOJ -- in your declaration, you state that the DO] has 10 Long about the standards? II determined that the device redirects a flash in a 11 MR. BECKINGTON: I'll object. Lack of 12 360-degree arc around the barrel such that on balance it 12 foundation. There's been no establishment that this 13 floods the shooter's field of vision with flash. 13 letter was ever sent. This is simply a copy. 14 Is the word "on balance" in the -- or the 14 Q. BY MR. DAVIS: Was this letter ever sent, to 15 phrase "on balance" anywhere in the guide? 15 your knowledge? 16 MR. BECKINGTON: Objection. The regulation 16 A. I don't know. There was another analyst that 17 speaks for itself. And also I would just ask if you 17 was handling that end of it. 18 could show the witness where that is in the declaration. 18 Q. Was this letter drafted by the Department of 19 MR. DAVIS: Right there. 19 Justice or someone within the Department of Justice? 20 Q. Can you find the words "on balance" in the 20 MR. BECKINGTON: objection. Calls for 21 guide? 21 speculation. 22 A. No, it's not in there. 22 THE WITNESS: I can't tell you personally. 23 Q. It's not in the guide. 23 Q. BY MR. DAVIS: Assuming it was, do you know 24 (Exhibit F was marked.) 24 why the DOJ contacted Tom Long? 25 Q. BY MR. DAVIS: You mentioned earlier that the 25 MR. BECKINGTON: objection. Calls for ( . Page 86 Page 88 I DOJ considered testing standards for flash suppressors. speculation. 2 A. Yes. 2 THE WITNESS: Yes. 3 Q. Is Packard Engineering the company that they 3 Q. BY MR. DAVIS: why? 4 were consulting with? 4 A. To set up an objective standard and to come up 5 A. Yes. 5 with a light lumen test so that we could apply the 6 Q. Is that the only company that they were 6 Smith-Kettering guide for flooding an eyeball. 7 consulting with? 7 Q. What is the Smith-Kettering guide? 8 A. At the time, yes. 8 A. It hadn't happened yet. That was my part. I 9 Q. When you say "at the time," have they consulted 9 was to contact Kettering Institute to initiate a blind 10 with anybody else since? 10 study to find out what they would consider enough light II A. No. 11 that would be enough to have a person lose visual 12 Q. So it is the only company? 12 acuity. 13 A. Yes. But we were considering -- I believe we 13 Q. Did you contact them? 14h 1 . BILL LOCKYER Attorney General of the State of California 2 STACYBO"U"LWAREEURJE Senior Assistant Attorney General 3 ClmSTOPHER E. KRUEGER Supervising Deputy Attorney General 4 DOUGLAS 1. WOODS, State Bm' 1'\0. 16153-1 Deputy Attorney Genexal 5 1300 I Street., Suite 125 P.O. Box 944255 6 Sacrrunento, CA 94244-2550 Telephone: (916) 324-4663 7 Fax: (916) 324-5567 E-mail: Douglas.Woodi>@doj.ca.gov 8 , Attorneys for Defendants ATTORNEY GENERAL 9 BILL LOCKYER, the STATE OF CALIFORJ.'ITA, and CALIJ."'O,Rt\1JA DEPARTMENT OF J l:JSTICE 10 11 StJPERIOR COl;""RT OF CALIFORNIA 12 Co-UNTY OF FRESKO 13 14 EDWARD W. HUNT, in his official capacity·as Case 1'0. OlCECG03182 15 District Attorney of Fres.oo County" and in his personal capacity as a citizen and taxpayer, et ai, DECLARATION OF IG)l"ATlLS 16 CHlNN IN SUPPORT OF DEFE]\""DANTS' MOTION' FOR 17 Su::v.tMARY JUDGME·NT OR, Plaintiffs. ALTERNATfVELY~FOR 18 I SUMMARY AD.JUIlrCATION ON PLAL~FS'~NDED 19 ~ CO:MPLAINT 20 Date: February 1, 2007 Time: 3:30p.m. 21 STATE OF CALIFORNIA, et aL, Dept: 72 22 Defendants. Before the Honorable Alan Simpson :4~.... 24 i 1, 19l1.atius ChIDn, declare: 25 1. I am a Special Agent Su.pervisor employed by the California Depa"t'tment of Justice 2~ ("DOJ")~ and have been so employed f<[l' the past 15 years. The matters set forth in this . . 27 . declaration are true of my own knowledge~ and if called as a wimess, I cou1p and would testify 28 I competently thereto. 1 Decl, of lsnmius Chinn in Support of Defendants' Motion for S\llIllUCUY Judgment or Summary Adjudication 1 j 2. Currently, I am assigned to the DOJ Fireaons Division" where I have been assigned for 2 the past ,six years. Prior to my employment wltb. DOr. I was a police ofJJ.ceJ:.' for the City of 3 Oa1c1and, California. for 11 years. Ill. 1982, ~ was promoted to Sergeant of Police and was 4 assigned for nine and one-half years to the Criminal Investigation Di'Vi.sioll (IICID"). In the eID, 5 1 was asmgned to the Burglary Sect:iont the Unde'reove!' Theft Recovery Urnt, the Narcotics G Section, the Auto Theft Section, the Robbery Section. and the Gang Unit. During my career, I 7 have writtell, serve~ and assisted in the preparation and execution of hundreds of search 8 warrants for narcotics and/or dangerous dnlgs) stolen property material evidence in criminal 9 cascs, and machine gun al).d firea.nns violations. 10 3. Over the past 30 years, I have been illvolved in at least 200 fireanns investigations 11 involving illegal transa~tions, illegal machine gun conversions. and assault weapons sales and 12 possession violations. From 1974 through 1987, I had au off-'duty job as a parHime gUll repair 13 analyst at an Oakland gun store. During my employment at this store, T learned firearms 14 identification nomenclature and repair. I attended numerous fireanns classes given by numerous 15 gutl manufacturers, such as Glock, Colt, and Smith and '\Y'esson. I also later attended law 16 enforcement fireanns classes concerning firearms violatioDs~ given by the United States .Aumy, 17 the Federal Bureau of Investigation, and the fe~era.l BUteau of Alcoho~ Tobacco and Ffi:.earms, 18 which is now the Bureau of Alcohol~ Tobacco, Firearms and Explosives (" ATF") Investigations 19 in my present position have primarily involved individuals who possess, buy, and sell f-rreanns 20 illegally, either because the transactions violate'state or federa11aw or the 11reanns themselves are 21 illegal. I anl fuIiilliarwith methods used by people to alter firearms records and illegally transfer 22 firearms. Also> I am all ex.pert in iden~'ificadon of assault weapons a.nd other dangerous and 234~a.4ly ~~'p():J;l.§" JQ.~v9Q~q~fl~das_ancxpat.mrlreannsidentificati.on-3.nd-OOnlenclatuxe .. 24 : before the Marin County Grand Jury, the United States Federal Grand Jury (San Frrmcisco). the 25 United States District Court, Eastern District of California, and the Superior Coun in the 26 following counties: Alameda., Amador, Ca1averas, Bl Dorado, Lake, Los Angeles, Monterey, 27 Nevada, Kings,. Fresno, Sacramento, San Francisco~ Orange. San Mateo, and Tula:re. 28 4. 1 am familiar with this lawsuit and with the Assault Weapons Control Act (the "Act") 2 Oeel, ofIgna,tius Chinn in Support ofDefendmfS' Motion for SUt'l\r(l3I'Ji Judgment or Summ.:U)I Adjudication 1 described in the lawsuit. In particular. I am familiarwitb. the amendments to the Act established 2 .' by Senate Bi1123, Chapter 129 of the Statutes of 1999 ("SB 23"). Among other things, SB 23 3 -created Penal Code section 12276.1, which for the first thne defined assault weapons by 4 referel'lce to objective design chfU"acteristics, in addition to the existing list of assault weapons 5 : already identified by manufactwel' and model. As Special Agent Supervisor. md an assault 6' weapons expert in the Fireanns Division) I was directly involved in the initial drafting and 7 subsequent revisions of the assal.llt weapoll characteristic de:finitio~ in the "DepaJiment of lt 8 Justice Rewations for Assault Weapons and Large Capacity Magazines" (the "Regulat'ions ), 9, which are set forth in Chapter 12.8 of Title 11 of the CaHfomia COde of Regulations (beginning 10 with secllon97S.1 0). , 11 Definitlo"u of flFJash Suppressor" 12 S. Under Penal Co"de section 12276.1(a)(I)(E), the Legislature listed "flash suppressor" as 13 one of the fireann features that can determine whether a:fi.reaml is an assault weapon. In section 14 978.20(b) of the Regulations, DOJ defilled "flash su.p~ressor" as meaning "any device designed, 15 intended, or that functi0ns to per.ceptibly reduce or redirect muzzle .flash from the shooter's field 16 ofvis50n.11 In the first) second, and sixth causes of action in this lawsuit, plaintiffs challenge this 17 definition of "flash suppressor." They claim it unlaw.fu1Iy alters and expands the well-established 18 meaning of the term "flash suppressor" and,. in doing so, unlawfully expands the meaning of 19 Penal Code section 12276.1(a)(1)(E). Plaintiffs also claim that the definition is fatally vague 20:" because it does not provide specific measurement standards for determining whether particular 21 features qualify as flash SlJppressors. FinaUy, plaintiffs also claim that-DOJ bas issued ntlings 22 "and taken actlons that are inconsistent with the definition set forth in section 978.20(b). 23"HHm" ___~:"_"J?!f?E.~¢ ~4?:n~P:~~~~m.cnt stang~~ •. PQr§" positioqj§Lti)4t the @scn,G(!1""QJ.~ __ u_n_ 24 ,measurement provision in the statute and regulation does not render the "flash suppressor" 2S dermition invalid. The absence of specific measurement standards demonstrates the legislative 26 intent to include devices that reduce or redirect any amount offlash~ and nO administrative 27 J'egulation may alter a statute or enlarge or impair its scope. DOJ would thus have exceeded its 28 authority ifit had established a standard that pennhted some pcrccmtage or amount offlash " Ii Dec}, of Ignatius Chinn in Support ofDefendmts' MOti~n for Summary Judgment or Summa.')' Adjudication 1 suppression. 2 7. Accordingly. DOJ detennines whether a particular feature or device is a -flash 3 suppres~or as define 4 the device provided by the manufacturer or oth~ise, and/or consulting v;rith ATE In particular, S DOJ determines whether a particular device is a flash suppressor under the regulatory definition 6 by following a step-by-step analysis. In nearly all instances to date, DOJ has been able to 7 deten:nine that the device in qU,estion is a flash suppressor in the initial stage of the analysis, 8 without needing to proceed further in the deterrn3llation process. 9 8. The first step is detennination of whether the device mquestion is desimed or 10 intended to perceptibly reduce or redirect muzzle tlMh fronl the sbocter:s field of vision. The Il assigned Firearm.s Divisi~n pel'somlel examine the device and review material produced by the 12 rnanufacturcroftbe device to see what the manufacturer has said publicly about irs designed or 13 intended uses for the device. Manufacturer materials reviewed can include brochures and 14 . packaging provided with the device, advertising matcria1s~ websites, and point-of~sate or. other 15 marketing materials. If appropriate, Fireanns Division personnel directly contact the 16 manufacturer to determine: i~ intended purpose for the device. Industry publications are also 17 reviewed to obtain.infonnation as to the designed or intended uses for the device. If it is 18 determined that the device in question was designed or intended to perceptibly reduce or redirect 19 muz?le flash from the sh.ooter's field of vision~ then the device is determined to be a flash 20;' suppressort and the inquiry is at an end. 21 9. If~ however, it is determIned that the devic.e III question was not designed or intended to 22 perceptibly reduce or redirect muzzle :flash from the shooter's field o.fvision~ then the analysis 23. _;J>n?ce~s_~~_~~~t~_~l:1.atjon 9{"'Y.Q._~ther th_~4~yiQe :qQ:rJ.~cl~~~fo.l~~-1iQns_ w-perccptibly_reducMr_ . 24 redirect muzzle flash from the shooter's field ofvisiol1. Depending on the device, inspection of 25 the device may establish that it does not function to perceptibly reduce or redirect muzzle flash 26 fTom the sbooter~s .field of vision. Ifit is determined that the device in question does not function 2T : to perceptibly reduce or redirect muzzle flash from the shooter~s field of vision, then the de,,;ce is 28 determined not to be a flash suppressor, and the inquiry is at an end. 4 Decl. of Ignatius Chinn in Support ofDefend 4 11. Plaintiffi; have claimed that there is no way to deteril1me whetb~ a devlce functiOllS to 5 perceptibly reduce or redirect muzzle flash from toe sh.ooter's field oIvision without test-frring 6 :' the weapon~ and that test-firing is impractical. DOl does not perfolm any test-firing to 'determine 7 whether a device functions to perqeptibly reduce or redirect .muzzle flash f'l'Om the shooter~s field 8 of vision, and has never had any need to do so. Ifthere were any need for test-firing to determine 9 whether a particular device functions to perceptibly reduce or redirect ml.lZZle flash from the 10 . shooter's field of vision, POJ would rely upon ATF. Short of test-firing, ordinary available 11 methods for deterrrrin.ing whether a particular device functions to perceptibly reduce or redirect 1.2 muz~le flash from the shooter's field of vision i.nclude inspection of the device, consultation with 13 DOr or ATF, a.nd review of product literature provided by the mamuacturer or distributed by tbe 14 industry. 15 12. Plaintiffs have also questioned. whethm- it is even possible to evalLlate whether a 16 particular device functions to perceptibly reduce or redirect. muzzle flash from the shooter'S fieJd 17 of vision, given the possible variations in firearm and mmmmition characteristics and shooter 18 usage. There are ma.ny variables as to firearr.o and ammunition characteristicS" and shooter usage 19 : that may, in combiqation~ affect whether a device f1ll1ctions to perceptibly reduce or redirect flash 20 from the shooter"s field of vision. As suggested by plaintiffs) suell variables include the burning 21 rate of the powder us~ the lellgth of the barrel, cartridge, caliber, hullct weight1 how tlle firearm 22 is held, and type of sights. lfthe selectioll of any vmab1e makes a. pel'ceptible diffcrcnce~ , .;?~ .. 4~~in~tiQ!;LQfwhr;1:h~r~J:le.Yi.!.!ej1Jll.ctionslo.pcrc-epiibly--reduc.e--()l:.redircct fla.sh.fromJhe----u 24 shooter's field ofvisioll assumes typical shootiug usage, and assumes the characteristics of 25 commonly available firearms and ammunition. Of course, a shooter's actual usage ofadevice so 26 that it functions to. perceptibly reduce or redirect flash from the shooter's field of vision would 27 ren.der the device a flash suppressor in that instance, even if the shooter) s usage is unusual in 28 some way and features of the particular fireann and ammunition are uncommon. 5 . , ' Oed. of Ignatius Chinn In SuppOrt: of Defendants' M~tion for Summary Judgment or Sure:n ' 4 0 correspondingly claim that DOTs definition offlflash suppressor" is overly broad because it 5 includes certain muzzle brakes and compensators. Prior to the Legisla:ture's enactment of Penal 6 Code section 12276.1, however, the tenn "flash suppressor" did flot have an established industry 7 defirution. Attached hereto as Exhibit A at'e true and correct copies of excerpts from fireanns 8 ref~ence materials that were cOJJsidered by DOJ in the rulemakillg process and/or attached as 9 exhl?its to plaintiffs' complaint. For the Court's ease ofrefereIlce, DOJ staffhave also prepared lOa corresponding summary entitled II Analysis of Reference Material DefInitio1ls ofFlasb 11 Sl.lppreSsor," which.is also included as part of Exhibit A.lL These doc1.unents accurately reflect , 12 the fact that, prior to D01's definition of "flash S1,l.ppressor" in the Regulations, within the 13 fi:re.anns industry there were varied, overlappmg, and often. conflicting defrnitions ofllie terms 14 "flash bider " brake" "compensator. II In suppressor," "flash t "muzzle, and my experience as an o , 1 S :0 expert in the field of fireanns identification ~d l1omenclature~ 1 have found that there are 16 legitimate muzzle brakes and compensators that do not suppress flash. However, there are a1s~ 17 many"dcvices currently available to the public that are called muzzle brakes and compensators 18 that also suppress flash, both intentionally and 1.lJrintentionally. There is no established definitioll 19 of "flash suppressor11 other than. what is set forth in the Regulations. 21 1. The firearms reference materials include lv"RAIILA Glossary (1995); Jane's Infantry tb 22 Weap()m,' (20 Ed. 1994-95); the 0 Sporring Arms and Ammunition :Y.tanufacturCrs~ Institute C·SAA..W")Non ...Fiction Writer's Guide; the SA..o\M[ Technical Correspondent's Handbook (Rev. 23 .°l-f3-1-lOO);ChesrerMueHer-&oJohrrOlson;-Small°J't.nrcs-l;extc()rran:d-e;onalstr&.cycZopedf.ao-O°st-£d. 24 1968); John Qu.icJs DictionCl"ryo!Weapons and },,{ilitary Terms; the Assodation ofFire ann and T.ool :yfark Examiners, Glossary (1969); John Malloy, Complete Guide to Guns and Shooting (1995); the nd 25 Association of Firearm and Tool Mark Exammefs p Glossary (2 Ed. 1985); George C. Nonte, Jr.~ Firearms En.cyclopedia (1973)~ W.H.B. Smith &loseph E. Sm1Ch, The Book ofRifles (3Td Ed. 1963); 26 the United States Anny John F. Keruledy Center for Special Warfare (Airbome)p U.S. Army Sp~cf,al 27 ! Forces Foreign Weapons /ia'n.dbook(l Jm)uaty 1%7); Steindler, The Firearms Dicti(mary (1970); Ian v. Hogg & John Weeks, Military Small Arms ofthe 20'/1 Century (6th Ed.); and Duncan Long. 28 The Compi e.!e AR ... J SIM] 0 Sou.rcebook. The pages ofExhibit A are numbered consecutively for ease of reference. 6 -O~cl. ofIgnatius Chinn in Support ofDcfendants' MOllon for Summary Juogment or Summary AdjudicatIon II,. 1 14. In particu1ar~ plaintiffs elaim that "flash suppressor" should be defined solely by 2 reference to "design,rl ruId ttintcnt,rl not by reference also to whether the device "f-unctio-ns" to 3 suppress flash as stated in section 978.20(b). As stated above~ though, there was no established 4 definition ofl'flash supptessor" before the definition was set jn section 978.20(b), and OOJ was . . 5 not at liberty to deviate from the legislative intent to include devices that suppress flash. 9 15. Plaintiffs have also claimed in this lawsuit that DOJ)s defutition of"flash suppressor!' 7 . is confusing and inconsistent because DOJ has provided guidmce stating that the Sprlngt1eYd 8 :Muzzle Break and the Browning BOSS ar.e not considered flash suppressors by DOJ) even 9 though plaintiffs believe thcse devices would qualify as flash suppressors U1lder the definition in 10 section 978.20(b). Beginning in approximately 2000, DOJ has confinned ill a variety ofinfonnal 11 contexts that the Sprin.g:field Muzzle Break is not a flash suppressor, based on such determination 12 by ATF. Attached hereto as Exhibit B is a true and correct copy of a letter dated August 24, 13 1999, from Edward M. Owen, Jr., Chief of A!F's Fireanns Technology Bran~ confinllTng such . ·1 ~ '. determination. In. evaluating the Browning BOSS, DO! has determined that the device redirects 1 S flash in a 360 degree arc around the barrel such that. on balar'tce, it floods the sh.ooter's field of 16 vision ·with flash. It thus does not function to perceptibly reduce or redirect muzzle flash from 17· the shooter's neld of vision. 18 "Permanently Altered" Exception to 1arge-CaBacity Magazine Definition 19 16. Under Penal Code section 12020(a») -it is a crime to manu:facture~ impol'l.:, keep for sale, 20 '. offer for sale~ give, or lend a "large capacity magazine." The tenn "large-capacity magazine" is 21 defined inPen.a1 Code section 12020(c)(25) to mean "any ammunition feeding device with the 22 capacity to accept more than 10 rounds:! but the definition lists several exceptions. One 23 . ".~~eEtion,.. li:~:~~~tt)-..R~!~~.t~ode ~~1ion_12.02Q(cX25)(A).• .a1lows4a].J.'e.eding_de~ice..that.has..been. .. t 24 permanently altered so that it cannot accommodate more than. 10 rounds. ' Similarly) Pen.al Code 25 section 12276.1(d)(2) establishes the s.ame exception to the dcfinitioll. ofttcapacity to accept more 26: than 10 rounds,1I as that phrase is used in sectioll12276.1. In the fifth cause of action in this 27 lawsuit, plainD ffs claim that DOJ had a duty to issue a. regulation to define the tem1 "perm:mcntly 28 altered'l in Penal Code sections 12020(c)(25) and 12276.1(d)(2). 7 Decl. of rgnatiu..~ Chinn in Support of Ddendants' Motion for Summary Judgment or Summary Adjudication 1 17. As originally noticed to the public, DOJ proposed that the statutory term lIpermanently 2 . altered't be defined to mean tlmy irreversible change or alteration." After cOl'l.sideratioll of public 3 comment teceived during the injtial comment period, however~ DOJ detennincd that the 4 proposed definition'failed to provide any additional clarity to the statutory tenn "permanently , 5 altered. !I Furthcnnore, DOJ found that none of the alterna.tive definitions proposed in t~e public 6 comments provided additional clarity while maintaining legislative intent. DOl detemiincd that 7 ,; the term "pen~ent1y altered" is sufficiently understood WithOllt further definition. 8 18. Plaintiffs complain that, if construed rrover~]iterally,tt the tenn "permanently altered" 9 has no meaning or application because lI[aJlten;tions ofmctal or plastic objects are always' 10 subject to reversal, 81ven the necessary time, cxpertise~ resources, and specialized tools and 11 equipment." DOJ does oot favor construjng the term. nover-literally," however, alld has rejected 12 I an interpretation of the term to mean. "irreversible," as plaintiffs propose. Plaintiffs have 13 nonetheless claimed that "pennanently altered" should be defined in. tenus ofphysica.l alter- 14 of the contours or characteristics of the magazine wough pro~esses S\Lch as metalworking. 15 machln:ing, we1dlng~ brazing, soldering, or application of bon ding agents or adhesives. DOJ 16 agrees that such means of altering a magazine so that it cannot accommodate more than 1. 0 17 . rounds can ordinarily be perm.a.:t).e:lJ.t~ but of course DOJ cannot definitively classify such methods Ii 18 as "pennanent" because non ..pennallent alteratioJ?S using such methods are p0ssible in given i9 instances. As determined by DOl in the regulatory process, it is simply not workable to attempt 20 to list every method by which an alteration ordinarily could be made ttpermancnt," especially 21 when use of even the specified methods would not necessarily be permanent in every instance. 22 :.1 DOr has determined in the regulatory process that tbe better approach is to let the term stand 01''1 203 .i~~_QYm,_~QrdJ.ng.1"OitscommQD.-unders:tamiiDg,--.--_----.--.-- ___ -.-... -----...... --.-.. -'------... . 24 Detachable Ma,.g:azine Enforcement 25 19. Under Penal Code section 12276.1) the Legislature listed capacity to accept a 26 "detachable magazine" as one of the firearm fe~rures that can determine whether a firearm is an 27 assault weapon. In section 978.20(a) of the Regulations, DOJ defined the teou lldeta.chable 28 , ma.gazine" to mean "any ammunition feeding devlce fhat can be removed readily from the 8 D(X:l. ofIgnatius Chinn in Support ofDefendan\$' Motion. tor Summary Judgment or Summary Adjudi¢ation ! 1 11 iIr= with neither <>fthd;'...."" .cn.n :"", "'" of. t ••1 being ""1'" : 1 t ~ ~~b 2 modifioaci-on m:mcu~ would .rto~{;"ks.s v)o~~e fue spit;,,: ofrl~e law. aI'I..d ob..~tr.\.-oo tl:;.:; Ii J2 t poss:ibmty lhru: the 58 ~.rl~ ~mc:~ in Cali.~"S}3: wo~ad view tbe mz.n~'Vcr \'>-lth ':tk~?tiei~m 13 .and 'p!OCt!~ with a .pro$t¢ution in U1\'!: c-~an~cs. ! t !4 ! ~. S to enfi:m;(; Pe.o:a! Code section t2216J 01 sectioo 97S..20{~) -of the R~mtio.tls ~ 1.he)< G.."le . 1() VPriUc3.. !>OJ has ~vcr iruUeatoo.or ittlpliOO ~ -it wooicl:no~ tmfo-tc¢ P'en::d Code .section t r j 2176.1 or sec:tio;l9i8..2G(u) oft.~e Rcgu1zrio..~. or d:'t:.."t Ul~ ~ct ~~"YS wilhln t.~ S'..;l.te 18 'w.u.ld be at li~ty (0 t:'1kc ~n i~istem with F~ Code sectkm ,2276.1 «' tf.l¢ I 19 Rt!g~ns. DOJ does'not c:GA5~~er2 maw.zincatEaciled w areceiva-!;.y a~; ~equicl~g~ ! 20 . scrc:'Wdri'l-'f!t fot"" rerr'..o,,~ to· be a ~clt~~}e .tr~g,azine. I 21 (~1are under p(IDcti~yQfp;e!jury w,1&.rtne laws ¢f"the State o[Caliromm ''1irt'~he tOregoil~g t 22 , is ""'" 3n ZS ""O 2 STATE OF CALIFORNIA COUNTY OF LOS ANGELES 3 I, Claudia Ayala, am employed in the City of Long Beach, Los Angeles County, California. 4 I am over the age eighteen (18) years and am not a party to the within action. My business address is 180 East Ocean Blvd., Suite 200, Long Beach, California 90802. 5 On January 15,2008, I served the foregoing document(s) described as 6 DECLARATION OF CLAUDIA AYALA IN SUPPORT OF REPLY TO 7 DEFENDANTS' OPPOSITION TO MOTION TO COMPEL ATTENDANCE AND TESTIMONY OF MIKE SMALL, JEFF AMADOR, AND ALISON MERRILEES; 8 EXHIBITS "Z - AA" 9 on the interested parties in this action by placing [ ] the original 10 [X] a true and correct copy thereof enclosed in sealed envelope(s) addressed as follows: 11 Mr. Mark Beckington 12 Deputy Attorney General Government Law Section 13 California Department of Justice 300 South Spring St., Ste. 1702 14 Los Angeles, CA 90013 15 (BY MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the 16 U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party 17 served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 18 Executed on January 15, 2008, at Long Beach, California. 19 L (OVERNIGHT MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for overnight delivery by UPSIFED-EX. Under 20 the practice it would be deposited with a facility regularly maintained by UPSIFED-EX for receipt on the same day in the ordinary course of business. Such envelope was sealed and 21 placed for collection and delivery by UPSIFED-EX with delivery fees paid or provided for in accordance with ordinary business practices. 22 Executed on January 15,2008, at Long Beach, California. 43 ..... (PERSQNALSERV]CELLQalJ£e.d.~lJ.ch__ envelQp.uQb~.deJivere.cL~l1aruLmfueoffices.of the addressee. 24 Executed on January 15, 2008, at Long Beach, California. 25 L (STA TE) I declare under penalty of perjury under the laws of the State the foregoing is true and correct. 26 (FEDERAL) I declare that I am employed in the office of the mt:.l~;y 27 court at whose direction the service was made. 28 DECLARATION OF CLAUDIA A Y ALA REPLY TO DEFENDANTS' OPP. TO MOTION TO COMPEL 4