AG walks back opposition to firearm magazine limit

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Attorney General TJ Donovan said Thursday that his office fully supports sweeping gun legislation currently before the Senate, including a provision on gun magazine limits that his deputy said Wednesday "we don't support."

Donovan said that Assistant Attorney General David Scherr was referring specifically to a "grandfather" clause in the provision that exempts from the law magazines purchased before it comes into effect.

The exchange between Scherr and Senator Tim Ashe, D-Chittenden, appeared to be about the magazine ban broadly, with Scherr saying that enforcement would be a struggle in all but the most obvious crimes — such as police officers witnessing a sale take place.

"What is the actual position of the AG," Ashe asked of the magazine limit.

"We don't support this section," Scherr responded.

"At all?" Ashe asked.

"That's right," Scherr said.

Donovan said in an interview Thursday that Scherr's position did not reflect his own.

"Well as the elected official I do support it," he said of the magazine limit. "What David did was raise issues, which is his job."

The attorney general also clarified his position on the bill, S.55, in a letter sent to lawmakers on Wednesday and again in testimony delivered to the Senate Judiciary Committee via telephone on Thursday morning.

He said that there were legitimate concerns about enforcing the magazine limit, but that he was confident that it could be done. He compared it to a law that banned texting while driving, which was also met with skepticism regarding enforceability, but has since saved lives.

"Let's do like we've done in so many other cases, particularly in texting while driving. This is about educating law enforcement, police and prosecutors, this is about educating the public," he said.

S.55 was initially introduced as a bill that would clear the way for the state to sell abandoned or seized firearms currently in storage. It has since taken on historic meaning, with amendments that include a requirement for background checks on private gun sales, an increase in the legal age to purchase a firearm to 21, and a ban on bump stocks.

The high-capacity magazine ban was initially set at a maximum of 10 bullets, but has since been raised to 15 bullets for handguns.

The provision was not included in a Senate version of the bill, but was added in the House Judiciary Committee before being passed after two days of marathon debates on the House floor.

One of the main concerns raised regarding the ban on high-capacity magazines is that the devices are rarely imprinted with a serial number or a date indicating when they were sold, which would make it difficult for police to prove that it was purchased after the law was implemented.

Donovan said that should not stop the law from going forward.

"Like all criminal laws enforceability will be decided on a case by case basis when this issue arises in our state," he said in the letter to lawmakers, adding that some violations, such as retail sales, would be straightforward.

Scherr also said during his testimony that the AG's office "would support a ban on magazines that doesn't have enforcement issues."

Donovan declined to say what a bill without enforcement issues would look like.

"I'm going to let the senators do their job, and I'm going to do my job raising questions and concerns, but that's not to be construed as a lack of support," he said.

Jeanette White, D-Windham, who sits on the Senate Judiciary Committee, said her understanding after listening to testimony from Scherr and Donovan was that the magazine limit would rarely be enforced without other crimes involved.

"Whether or not the magazine was grandfathered or not was probably irrelevant because they will prosecute on other terms, whether they pursue that as a single issue is probably not going to happen — that's what i heard from both of them put together," she said.

White compared the high-capacity magazine ban to laws against recreational marijuana, which existed but were rarely enforced by most police officers.

"It's going to be one of those issues that you can use in in conjunction with something else, it adds charges. If it's a single charge, they're not gonna [prosecute]," she said.

Sen. Dick Sears, D-Bennington and the committee chair, said final considerations on amending the bill would be made Friday morning. He said he did not think the magazine limit should be in the bill, but expected it to pass anyway.

"I have a feeling that if this passes we'll be back here next year fixing it," Sears said.Magazines legally owned before the legislation goes into effect would be exempt.

That creates a concern in prosecuting cases, Scherr said, because it would be "extremely difficult" determining if particular magazines were purchased before the limit went into effect or after. He termed the magazine provision "largely unenforceable."

A violation of that provision would be a misdemeanor, punishable by up to one year in jail.

John Campbell, executive director of the state Department of State's Attorneys and Sheriffs, also appeared before the committee Wednesday. He told the panel he was testifying "wearing his prosecutorial" hat.

Campbell said with resources already stretched thin among the state's attorney's offices in Vermont, he didn't foresee many cases being taken on over violations of the magazine limit for possession. He said a case could be proven, though it may involve a lot of work, collecting witness statements and carrying out additional investigation.

"I didn't say it was going to be easy," he added.

However, Campbell said there may be instances where it would be vital to have such a provision on the books.

"If we find somebody, you know, that (a) suspect might be ready or having planned some type of mass shooting, we're going to seriously look at them and anything we possibly can to bring them in," he said.

The Senate Judiciary Committee was scheduled to continue taking testimony on the legislation Thursday morning.

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