Helsey's Memoire

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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.