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TO: Patrick Kenady Assistant Attorney General FR: S. C. Helsley, Assistant Director Investigation & Enforcement Branch Roberti-Roos Assault Weapons Control Act of 1989 On February 5, 1991, DAG Paul Bishop asked me, on your behalf, to comment on the process that resulted in Roberti-Roos Act. It is important to point out that my recollection may not be entirely accurate concerning the sequence of events, but the overall flavor will be apparent. In October 1988, I was asked to comment on the assault rifle issue by the Director's Office. A copy of my memorandum is Attachment 1. In December 1988, 1 was directed to attend a meeting in Oakland with a number of law enforcement officers and prosecutors. Their objective was to reinvigorate the push to achieve some level of assault weapon control. As a result of my attendance, I became the Departmental lead for issues involving firearms technicalities. As a follow-up to the meeting, a survey instrument to assess the assault weapon problem was developed and distributed by DLE. The results were not compelling and many large agencies did not respond. A generic description of what was not an assault weapon was also developed and became the foundation for later "lists." The first Legislative draft was also prepared which included the notion of a commission which would decide twix good and bad assault weapons. In early January 1989, the Attorney General and his Executive Staff were briefed on the difference (or lack thereof) between assault and non-assault weapons. At the conclusion of that briefing, the Attorney General, to the obvious displeasure of some of his key advisors, said that he would not support assault weapon legislation unless hard data could be develped. With the Purdy Stockton school yard shooting in January 1989, the Attorney General immediately announced his support for the Roberti/Roos initiatives. In late January, a meeting was hosted by Attorney General Van de Kamp in Los Angeles that was attended by Senator Roberti, Assemblyman Roos, Sheriffs Block and Craig, and a number of ranking law enforcement administrators. A number of issues were addressed. * Senator Roberti described his overall strategy and emphasized the need to move quickly. * Four weapons (AK 47, UZI, MAC, and the Street Sweeper) would [be] the focus of the legislation. * It was agreed that certain weapons probably had too large constituency to ever be worth the risk of including, i.e., Ruger Mini 14, MI Carbine, MI Garand, etc. * Information on assault weapons would not be sought from forensic laboratories as it was unlikely to support the theses on which the legislation would be based (Attachment 2). During the next three weeks which led up to one of Senator Roberti's key strategic milestones -- the Assembly of the Whole on February 13, 1989 -- the following events occurred. * The original four-gun commission configuration of December was discarded. * I directed the compilation of a list of all weapons which were not covered by the exclusionary language developed in December. * Roberti and Roos took different tacks with their bills. * The DOJ approach alternated between language which listed "good" semi-automatic weapons and banned everything else, and a "bad" Iist which "blessed" those weapons not on the bad list. As we approached the final days of legislative activity on the two bills, we experienced what I would describe as a "feeding frenzy" as it became clear that the NRA was in retreat. The good gun/bad gun list was ever changing as modifications were made by legislative request, by "staffers" who wanted an emphasis on foreign firearms and through the personal efforts of an Oakland Police Department Sergeant. As late as March 17th, our legislative staff was trying to get weapons like the HK PSG-1 and the FN/FAL removed from the list. As finally comprised, the list had become an odd collection of firearms which range from the long out of production, to exorbitantly expensive, to the "evil" AK 47. As no specifically defined problem drove our efforts, such an odd collection should not be surprising. The old adage of "If you don't know where you're going - you won't know when you get there" seems relevant to our efforts in support of the Roberti/Roos Act. The group for whom we were performing our staff support had different long-term objectives. The objectives ranged from control of a limited number of weapons to sweeping controls. Senator Roberti clearly indicated that he saw his bill as a "first step." My function throughout the process was to generate lists of weapons to be banned or exempted. As these lists were produced, there was ongoing anxiety about how to describe the weapons in the legislation. The "AK" is the best example. Our attempt to describe them had four distinct stages. They were: * All AVTOMAT KALASHNIKOV semi-automatic rifles of military style. * By model AKS, AKM, etc. * By manufacturer or importer NORINCO, POLY TECHNOLOGIES, etc., and * Finally by AVTOMAT KALASHINIKOV (AK) series The reasoning which led to the final "series" description was based on four factors. They were: * Not all AK's were of "military style." * Given the time frame involved, we were not convinced that we could determine all the manufacturers whose AK's has been imported. * The use of model numbers/names was impractical as wholesalers were advertising weapons with designations that were at odds with the manufacturers description. * Manufacturers emphasized the semi-automatic AK's lineage with the military version. Advertisements also referred to "series." Since the law took effect, AK 47's have been assembled in the United States with a whole new set of model-numbers (Attachment 3). At least three other weapons have an equally confusing status. There are AR-15 and FN/FAL type weapons that are now being built and sold with "after market" receivers and surplus parts. They are exactly the same as the weapons identified on the Roberti/Roos list - only the company name on the receiver is different. Given that the argument the Department made in the Fresno Court hearing was that the specific weapons on the list were the legislation's target and not the generic "series," it would seem that "aftermarket" AR-15's and FN/FAL's must move to the "good gun" list. Using the Fresno logic, how can any of the AK's be covered? The third weapon is the SKS. When the list was developed, there were two distinct models - one with a fixed magazine and the other with a detachable magazine. The detachable magazine model is identified on the Roberti/Roos list. Since the law took effect, "after market" magazines have become available for the fixed magazine version which is a "middle ground" half detachable half fixed magazine. The Roberti/Roos language does not define the difference between fixed and detachable magazines. It is important to note that a number of other weapons present equally vexing problems. With the benefit of two years of perspective on our Roberti/Roos efforts, I have concluded that little could have been done to improve our precision. Some of the challenges we faced were: * No specifically defined problem. * Artificial distinctions were made between semi-automatic weapons. The AK 47 was targeted but the Ruger Mini 14 was exempted. The two weapons are the same caliber, magazine capacity, size, etc.. Past legislation which focused on machine guns and submachine guns was successful because it dealt with an entire class of weapons. The Roberti/Roos Act attempts to make distinctions between weapons in the same class (semi-automatic). * Too many people were adding or subtracting weapons from the legislation. * Most if not all of the principal players in crafting the legislation had absolutely no knowledge of firearms. * Most of the weapons on the list are low production or long out of production items that constitute absolutely no conceivable threat. * No data collection mechanism was built into the legislation to provide data-for objective decisions concerning possible future additions or deletions. * The ongoing diversity and inconsistency of legal opinions: For example, in May 1989 Deputy Legislative Counsel Thomas Heuer opined that the Norinco 56MS (an AK 47 variant) which Purdy used was not covered by the bill (Attachment 4). While we were crafting the legislative language, the foundational legal logic provided was that the AK/AR "series" approach was valid. This seems to have now been cast aside. A lot of people worked very hard to make the Roberti/Roos Act successful. Those with some knowledge of firearms felt the task was an impossibility. Those with little or no knowledge of the subject were ever emboldened. As Montaingue said "Nothing is so firmly believed as that which is least known." The more our staff has worked with the legislation the more confused they have become. How the average cop on the beat or Joe "Six Pack" who owns one of the weapons will ever figure it all out escapes me. There is no simple fix. Publication of a manual for public or law enforcement use will require that we reach some yet unreached conclusion about which weapons are covered. We can effectively control all semi-automatic weapons or leave them all alone. What I don't think we can accomplish is proper implementation of a vague and ambiguous law.