by Patrick-James
Assault Weapons: the political game


By Harry V. Martin


Copyright FreeAmerica and Harry V. Martin, 1995


The fear that assault weapons were proliferating in California caused the State Legislature to enact
tough legislation outlawing and/or requiring registration of such weapons. The hysteria over assault
weapons was fanned by the state Attorney General's Office. The law that was created was both
impractical and costly to enforce.
The foundation for the legislation was the shooting of students in a Stockton schoolyard by Purdy.
After the shooting, in preparation for legislation on assault weapons, the Attorney General's Office
conducted a survey of all law enforcement agencies and coroners to determine the amount of crime
in which assault weapons were used. While the survey was being conducted, the Attorney General's
Office was pushing for the extensive and virtually impractical legislation.

The Attorney General's Office not only hid its findings from the Legislature and from the public, but it
also destroyed the draft report written on September 26, 1991. With the destruction of the report and
survey material, the Attorney General's Office today insists it does not have any statistics on assault
weapons. In a letter to State Senator Robert Presley, Patrick Kenady, assistant Attorney General for
Legislative Affairs, states, "We have received your request for a copy of a document entitled Assault
Weapon Use Survey. However, such a document does not exist. What you refer to was a preliminary
draft document not retained in the ordinary course of business and furthermore, would be exempt
from disclosure under the California Public Records Act. Government Code 6254, subsection (a)."
The Attorney General's Office even denied a Public Records request for the report by the California
Organization for Public Safety. "Certain documents were not provided for your inspection and were
excluded as exempt from disclosure," Deputy Attorney General Anthony L. Dicce wrote to the
California Organization for Public Safety. Dicce specifically stated that one of the items refused was
the "Preliminary drafts of assault weapons survey". M. David Stirling, chief Deputy Attorney General,
told Senator Presley on November 5, 1991, stated, "Not only do they not have actual use statistics of
any value on the question, but they do not even have a system or process for collecting statistical
information about assault weapons use in the commission of crimes."

ATTORNEY GENERAL'S OFFICE REFUSES TO RELEASE DOCUMENTS

Despite the unsuccessful efforts of State Senators and law enforcement agencies to obtain a copy of
the assault weapons report, the Napa Sentinel has obtained a copy of that destroyed report and its
contents may reveal why the Attorney General's Office destroyed the document. Not only has the
Sentinel obtained the actual report, but it also has the various data used to compile the report, all of
which the Attorney General's Office denies exists or which it refuses to release. The Sentinel
documents include the following:

·  Draft Report on a Survey of the use of Assault Weapons in California in 1990 by Torrey D.
Johnson, program manager for the California Criminalistics Institute.

·  Assault Weapons Survey Addendum by the California Organization for Public Safety.
·  Crime and Delinquency in California, 1990, by the California Department of Justice.
·  Laboratory Survey of Assault Weapons Submissions.
·  Memorandum of Gregory Cowart, director of the Department of Justice, dated October 10, 1991,
entitled "Data on Assault Weapons".
·  Memorandum to G. W. Clemons, director of the Division of Law Enforcement, dated February 13,
1991, from S.C. Helsley, assistant director of Investigations and Enforcement Branch.
·  Memorandum to G. W. Clemons, director of the Division of Law Enforcement, dated October 31,
1988, from S.C. Helsley, assistant director of Investigations and Enforcement Branch.
·  Memorandum to Patrick Kenady, assistant Attorney General, dated February 14, 1991, from S.C.
Helsley, assistant director of Investigations and Enforcement Branch.
The material contained in the material is damaging to the Attorney General's Office and to the
legislation of assault weapons.

The documents reveal that in December 1988, law enforcement officers and prosecutors meeting in
Oakland. "Their object was to reinvigorate the push to achieve some level of assault weapon control,"
a February 14, 1991, memorandum states. "As a follow-up to the meeting, a survey instrument to
assess the assault weapon problems was developed and distributed by the Department of Law
Enforcement. 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 that
would decide twix (sic) good and bad assault weapons." In early January 1989, the Attorney General
(John Van de Kamp) 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 advisers, said that he would not support assault weapon
legislation unless hard data could be developed," the memorandum states. That hard evidence was
never found.

STOCKTON SHOOTING CHANGED THINGS

Only after the Purdy schoolyard shooting and while Van de Kamp was seeking higher political office,
did he agree to support legislation without the statistics to support it. Yet the legislation never banned
the type of weapon used by Purdy. The Attorney General's Office agreed, according to the
memorandum, that "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." Because a large
group of "constituents" had Ruger Mini 14, MI Carbine, MI Garard and other assault weapons, they
were excluded from the list. "It was agreed that certain weapons probably had too large a
constituency to ever be worth the risk," the memorandum states. The legislation finally boiled down to
a comprise list of 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 memorandum states, "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 memorandum admits the following circumstances surrounding the assault weapons legislation:

·         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 that 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 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. 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.
ASSAULT WEAPONS BILL IS TOO VAGUE

The February 14, 1991 memorandum by Helsley, states, "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.." Helsley proved correct when Attorney General Dan
Lungren announced that the assault weapons registration would be extended, noting the law was
very difficult to enforce.

The day before Helsley wrote the above memorandum, he wrote to the Division of Law Enforcement.
"In anticipation that additional legislation would be authored on the assault weapon issue, I directed
the Bureau of Narcotic Enforcement and Bureau of Forensic Services to collect relevant data for
1990. Two of the theses on which the Roos/Roberti legislation was founded focused on the use of
assault weapons by drug trafficking organizations and violent criminals. To gain an updated
understanding about those issues, I requested the following: (From the Bureau of Forensic Services)
a listing of machine guns, submachine guns and assault weapons submitted for analysis as part of
homicide or assault investigations. (From the Bureau of Narcotic Enforcement) a list of machine guns,
submachine guns and assault weapons seized as part of the BNE investigation and booked into
evidence at a field office or task force."

The Bureau of Forensic Services operates 11 regional laboratories. Crimanlistic services are
provided to 46 counties that have approximately 30 percent of the state's population. BFS services
mostly rural areas, but its service areas include urban centers such as Riverside, Fresno, and
Stockton. While all weapons involved in violent crime do not require forensic analysis, it is reasonable
to assume that the firearms submitted to BFS are representative of what is generally used in violent
crime, according to the memorandum.

The survey showed that of 378 firearms submitted to the BFS in 1990, only one was a submachine
gun, 1/4 of 1 percent. The total assault weapons listed in the Roberti/Roos Act totaled 22, 5.8
percent, of which seven (1.8 percent) were used in homicide or assault cases and 15 were found in
the possession of individuals. In 1987, a similar survey was done which found that of 215 firearms
submitted from homicide and assault cases, five were "assault type" weapons. Of 1,979 firearms
seized by the Bureau of Narcotics Enforcement, four were machine guns, 8 submachine guns, and 58
assault weapons, 2.9 percent. The memorandum states, "It is possible that some of the weapons
have been double counted as BFS is the primary source of forensic support to BNE."

Helsley memorandum states, "The only shooting BNE special agents had in 1990 involved a suspect
with a handgun. The percentage of armed suspects encountered by BNE during arrests has, at worst
remained constant, but has more likely decreased in recent years. In the past 20 years, BNE special
agents have never been fired at by a suspect with one of the weapons listed in 12276 PC
(Roberti/Roos Act)."

U.S. GOVERNMENT PROVIDES MILLIONS OF WEAPONS

Helsley also wrote a memorandum on October 31, 1988. "On October 19, 1988, Acting Director
Wynbrandt asked me to provide some thoughts on whether a definition could be formulated which
would allow legislative control of 'assault rifles' without infringing on sporting weapons. I do not think
the necessary precision is possible." Helsley proceeded to outline concepts, such as action type,
caliber, magazines, rifles vs. pistols, and size. "A war on assault rifles would have a number of
vulnerable flanks," Helsley wrote. "For many decades the Federal Government has been selling
World War II era M-1 Garands and M1 Carbines (both are potential assault rifles) at bargain
basement prices through the Director of Civilian Marksmanship. This has been done to encourage
the growth of, and participation in, formal rifle matches. Some of the most likely victims of assault rifle
control would be the AR-15 and the M-1A. As these weapons are the very foundation of national
'service type' rifle matches, a ban could devastate competitors in California."

Helsley further wrote, "At more of a gut level, a ban would deprive military veterans of souvenir war
trophies and commemorative issue firearms. It goes without saying that the three million strong
National Rifle Association would take exception to such an approach. We could expect them to ask,
'What's the problem'? Obviously, there have been some high visibility crimes which involved
semi-automatic UZIs and AK-47s, but I suspect that a close analysis would put that frequently at or
slightly above the statistical aberration level. Last year, I surveyed the firearms used in violent crimes
which were submitted to BFS for analysis. I believe that this would provide a good picture of what
criminals use when they want to hurt someone. The figures are self explanatory and confirmed our
intuition that assault type firearms were the least of our worries. It's really the .22 and .38 Caliber
handguns and 12 gauge shotguns that inflict the majority of the carnage." Yet the State Attorney
General's Office still denies it has any statistics on the issue of assault weapons.

"Consequently, I believe that assault weapons cannot be defined in a workable way, by size, caliber,
action type or magazine capacity," Helsley wrote. "By focusing on assault rifles, we create the
impression that somehow a 10 shot semi-automatic rifle is inherently more evil or dangerous than a
pistol with a 20 round magazine. Such reasoning is supported by the same faulty logic that logic
created the threat that was allegedly posed by 'cop killer bullets' and 'invisible plastic guns'. Unless a
realistic definition can be developed for 'assault weapons', we should leave the issue alone."

CHANGE IN WEAPON'S MANUFACTURING, NUMBER MAKES IT LEGAL

The legislation names specific weapons and manufacturers. The AKs were the prime targets,
especially the AK-47. Since the law took effect, AK 47s have been assembled in the United States
with a whole new set of model numbers. Because the new models are not included on the
Roberti/Roos Act list, they are legitimate.

While the Attorney General's Office says it has not data available on assault weapons, the draft
report disputes that stand. "Though much is being said, there has been a dearth of hard data
relating to the actual use of the so-called 'assault weapons' as listed in ¤12276 PC," the introduction
of the draft report states. "The California Criminalistics Institute undertook this survey to attempt to
develop a more accurate picture of the 'assault weapon' use in homicides and assaults in California
in order to respond to inquiries from members of the legislature."

"One of the questions raised by legislators was whether the tax dollars necessary to implement and
enforce 'assault weapon' control legislation are justified by the extent of the problem and potential
result," the introduction continues. Despite the fact the Attorney General's Office says no statistics
are available and despite the fact the Attorney General's Office assisted in framing the legislation, its
destroyed report does not support either stand. The draft report states in its summary of results, "It is
clear from the data that assault weapons play a very small role in assault and homicide firearm cases
submitted to city and county labs. This data shows that in the neighborhood of less than 5 percent of
homicide and assault firearms fall into the ¤12276 PC list." The shocking fact of the Attorney
General's denial of available statistics is that the conclusions of the destroyed report parallel
previous findings, as well. "This is in agreement with previous data collected on firearms submitted to
California Department of Justice crime laboratories prior to the enactment of the California Assault
Weapon Control Act as well as for the years following the effective date of that law," the destroyed
report states. "The data collected in this study, counted 4844 guns which included 45 'assault
weapons' (less than 1 percent assault weapons)."

The draft outlines how the data was collected, stating that on July 17, 1991, a letter and simple
questions were sent to 21 city and local crime laboratory directors. In Los Angeles County, alone,
3881 weapons were used in homicides and assault, of which eight were assault weapons described
in the Roberti/Roos Act. The destroyed report states, "The discussions that surround the question of
gun control, particularly efforts in the area of assault weapon control, are fraught with lack of data
and tremendous misinformation in media, literature, and confusion in the law. The lack of data was
pointed out in 1982 in the report of a $287,203 study by the National Institute of Justice." The report
admits that the Purdy schoolyard shooting spurred efforts to promulgate gun control. "When this new
'assault' weapon legislation was proposed, the California Department of Justice, Bureau of Forensic
Services records indicated that the incident of 'assault' weapon use was very low." The report states
about assault weapons, "Firearm examiners generally agree that these weapons are infrequently
encountered in casework related to homicides and assaults. When attempts were made to find and
photograph ¤12276 PC weapons, it become obvious that there is a dearth of these firearms in
private collections and in retail sales as well as in law enforcement collection."

REPORTS SAYS ASSAULT WEAPONS LOW IN CRIME STATISTICS

One of the reasons the Attorney General's Office states it would not release the now destroyed
report was that it did not have sufficient data on assault weapons. The report, however, states
differently. "It appears that surveying the crime laboratories has provided a good handle on the
numbers and types of weapons used in homicides and assaults," the report states. "This is because
most of all homicide evidence would have been examined by a laboratory prior to prosecution.
Furthermore, information about the firearms such as manufacturer and model, provided by firearms
examiners, should be more reliable than that provided by the media, police officers or most
pathologists. This is because of the training and expertise of the firearm examiners and the technical
complexity of the discipline."

Thus, the report may have been destroyed because of its conclusion, a conclusion that disputes the
need for legislation. "Conclusion: The incidence of the use of 'assault weapons' is very much lower
than is represented in the media and in political states. The levels are consistent with those predicted
by forensic firearms examiners in many laboratories prior to the enactment of the Assault Weapons
Crime Act. The levels of use in 1990 are consistent with the levels of use found in BFS laboratories
from July 1986 to May 1987. The data from the Los Angeles Sheriff's Office also reflects low incident
of use of centerfire rifles that is relatively constant from 1987-1990. Accordingly, the cost to potential
benefit ratio may be very high."

Senator David Roberti stated in a December 6, 1990, letter, "We in California, though, have a unique
problem with our gang and drug wars, particularly in our larger urban areas. Regardless of the story
printed in the National Rifle Association newsletter, police and law enforcement agencies reported to
me that the increase in assault weapons in these types of arrests unnecessarily put their officers at
risk of being gravely injured or killed." The destroyed report does not agree, stating law enforcement
very seldom encounter assault weapons described in the Roberti/Roos Act in any arrests.

On May 8, 1991, Senator Presley wrote to Attorney General Lungren and stated, "As a legislator who
voted for the Assault Weapon Ban of 1989, I have followed the implementation and enforcement with
a great deal of interest and recently with some growing concerns. One of these concerns is the
inability of some law enforcement agencies to provide the statistical information to substantiate law
enforcement's claim for need for this law. Furthermore, I have been concerned about reports that of
these arrests under the law, most have been pleaded out and haven't gone to trial. And it has been
further asserted that charges under this law have not been considerable enough in number to
substantiate the claims of need made to garner its passage." Chief Deputy Attorney General M.
David Stirling wrote to Senator Presley on October 7, 1991, "there is not a lot of hard statistical data
available to assess the impact of the new 'assault weapons' law. The raw data received as a result of
that inquiry is of limited value because most of the jurisdictions were unable to provide the
information requested." This is in direct contrast to the destroyed report. In a November 5, 1991,
letter from the Attorney General to Senator Presley, it is stated, "You expressed frustration in that at
the time of the legislative deliberations of the assault weapons bill in 1989, law enforcement and the
Attorney General's office represented that assault weapons were proliferating in sheer numbers
among the street gangs and drug dealers; whereas now the Attorney General's office is telling you,
via my letter to you on October 7, 1991, that we neither have statistical data available to assess the
need for the 1989 law nor the means to determine the cost of enforcement of the 1989 law as of this
date."

THE CAT AND MOUSE GAME FOR THE 'NON-EXISTENT' REPORT

On November 6, 1991, Senator Presley notes that the Attorney General's Office does not intend to
publish The Assault Weapons Use Survey. Gregory G. Cowart, director of the Division of Law
Enforcement, wrote a memorandum to David Stirling, the Chief Deputy Attorney General, on
November 12, 1991, stated, "Senator Presley has requested a copy of subject report. I understand
that there is a Public Records Act request pending. Therefore, I don't want to respond without legal
authority. I would appreciate it if you could ask whoever is handling the other Public Records Act
request to respond to Senator Presley for me." The Attorney General's Office memorandum shows
some trepidation about releasing the report to the Senator because the report would show the
Attorney General's Office has not been truthful to the Legislator or the Senator.

The Attorney General's Office then absolutely lied to Senator Presley. On December 20, 1991,
Patrick Kenady, wrote to Presley, "We have received your request for a copy of a document entitled
Assault Weapon Use Survey. However, such a document does not exist." Two months earlier,
Gregory Cowart wrote a memorandum about that very report. "We have discussed the report in our
meeting of September 30 and a review of the data conducted by a group of statisticians in our Law
Enforcement Information Center. As a result we will not be issuing a report."

On December 20, 1991, Senator Presley was told the report did not exist. On January 23, 1992 at
5:30 p.m. the report was still on the desk in the Attorney General's Office. The report was on the
desk of Tony Dicce, who acknowledged having it but refused to release it. The Napa Sentinel was
able to obtain the report and all the relative memorandums and letters in May of this year from a
clandestine source.

It appears the assault weapon ban, that is limited to very few weapons, was more politically motivated
than needed. The cost to enforce such a law has proven extremely expensive and ineffectual. Of an
estimated hundreds of thousands of these weapons in existence in California, mainly with collectors, z
only about 50,000 have been registered. The law appears to be more cosmetic than enforceable.
Thus, the report on the low level use of assault weapons in the commission of crime has been
destroyed, except, perhaps for a few copies.