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Old May 23, 2011, 08:01 PM   #1
Al Norris
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BIG New CA Lawsuit!

Today, the SAF has sued California over its vague definition of Assault Weapons (and incidentally, the ban).

Read the press release, here.

Until I get it listed on PACER, you can read the complaint, here. Then it will be linked (as all the other cases), by name and docket in the Current 2A Cases thread (a sticky at the top of this forum).

Filed in the US District Court for the Northern District of California. Don Kilmer and Jason Davis (who has posted a couple of times here) are the attorneys.

This one has probable effects to any other State that has an AWB that may be patterned after the CA AWB statutes, should it get to the circuit and win there. Admittedly, this part is a long shot. But with this plaintiff, it stands a fair chance.

I personally like the fact that they are going after the constitutionality of the CA "E-Check." This is CA penal code 12031(e), which legislatively allows for a warrantless search and seizure, merely to identify that any firearm is in fact unloaded.

Anyone in CA who may be carrying a handgun openly, must carry that firearm unloaded. This is known in CA as UOC (a designation peculiar to CA alone). According to 12031(e), any policeman has the authority to stop you and inspect your firearm to ensure it meets the law and is unloaded. In addition, any officer, who in the course of a contact, becomes aware that you have firearms in your vehicle, may then inspect those arms so as to ensure that they are in fact unloaded, per the law.

This is a detention and seizure without probable cause and without a warrant.
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Old May 23, 2011, 08:26 PM   #2
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Nice timing. My son was asking me yesterday why the California laws haven't been challenged constitutionally.
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Old May 23, 2011, 08:50 PM   #3
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Looks like everything lined up right and the plaintiff is the right one for the case. The DOJ expert ruling on the weapon is the icing on the cake.
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Old May 23, 2011, 09:06 PM   #4
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Is the scotus circuit better there than other venues? Is the CA AWB the best one to go after first?

I do not know so I am really asking...

Brent
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Old May 23, 2011, 09:22 PM   #5
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Brent, the SCOTUS (Supreme Court) is not a circuit. They take cases from all over the US and its territories.

This is within the 9th Circuit Court of Appeals. The case will be dismissed at the District Court level and the 9th will most likely make some wobbling ruling that holds for CA.

The CA AWB has been ripe for a while. It is convoluted and requires an actual roadmap to follow it and not be in unlawful possession of a prohibited firearm. I'll see if I can get the "map" from CalGuns.
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Old May 23, 2011, 09:39 PM   #6
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Quote:
9th Circuit Court of Appeals
That is what I meant... I thought (stupid rednecks need to quit thinkin') it was circuit court of appeals "of the scotus"....

So the california law is wisely the best one to attack before, say, Jersey?
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Old May 23, 2011, 10:13 PM   #7
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If the assault law is confusing to trained law enforcement personnel how is the citizen supposed to figure it out?

The police officer was supposedly a subject matter expert according to the DA. Then you have the state expert say he is wrong.

The end objective is to get the law thrown out as being unenforceable because it unfairly penalizes the citizen because it is confusing to law enforcement and places undue burden on the citizens.

If the law is not thrown out then at the hopefully it is going to penalize the state, county and local governments with costs for training that will still cause confusion or require a rewrite of the law that has specific criteria for an assault weapon or specifically names firearms that meet the criteria. May even allow citizens to recoup costs from a wrongful arrest. This is at a time when there is no money in the kitty for a lot of levels of government.
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Old May 23, 2011, 10:16 PM   #8
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So to help me understand... It is the absolute confusing nature that makes this the best "AWB" to go after?

Brent
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Old May 23, 2011, 10:29 PM   #9
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I don't know if that makes CA law "the best" one to attack first, but that is one of CA law's major weaknesses. In order for a law to withstand constitutional attack, it has to fairly apprise the citizen of what constitutes prohibited conduct. When a law gets so confusion that you have to have a flow chart, and even the experts can't agree, it no longer does that. At that point, it becomes virtually impossible for a citizen to know what is legal and what's not.
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Old May 23, 2011, 10:30 PM   #10
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I would probably say the vagueness of the law contributes to the confusion.

The local officer say yes they are in violation, then you have the DOJ guy say no the local officer is wrong.

sound like confusion to me.

Sound like the lawyers in this case have everything they need to take this case where it needs to go.

if I was a local police chief after this fiasco I would be kind of hesitant to arrest somebody in similar circumstances till this case is finalized and has a "final" outcome. I would probably have the officer take down the information and take no actions without a ruling on the guns from the DOJ.

Which would put the responsibility right square in the lap of the DOJ.

If the court rules that the plaintiff can recover legal costs from the local PD that is going to hurt big time. Its probably money in the budget the PD does not have to spend which means they have to cut stuff from the budget.


The Ninth can come up with some crazy rulings... with the circumstances in this case it seems that something is going to have to be changed.
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Old May 23, 2011, 10:35 PM   #11
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Okay... this helps this simple feller out in understanding the process a bit.
Brent
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Old May 23, 2011, 11:21 PM   #12
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Over at CalGuns, Gene Hoffman (Chairman CalGuns Foundation) revealed that a prior case, Haynie v. Kamala Harris (CA AG) and CA DOJ, was filed on March 25, 2010. This case has much in common with the Richards case.

Now add in that Gene has filed "a declaration showing that the California Department of Justice had actually lead a disinformation campaign from 2006 to 2009 that was designed to confuse gun owners and law enforcement and actively attempted to create criminal test cases against innocent gun owners" (Exhibits A thru K).

The importance of these cases, and what they will do (not if) has just been raised by a factor of 2.

Fact is, there is going to be a motion to relate the cases, as they are so similar as to preclude what the DOJ has argued (so far) in the Haynie case. Namely that this doesn't occur with any regularity. Expect the CA DOJ to fight tooth and nail to keep the cases separate. For a couple of reasons, not the least of which is that the Haynie is already a year old and closer to resolution.






There are two parts to the CA AW flowchart. Side A is a list of questions to which you answer "yes" or "no." At which point you follow the arrows... Side B is the appendices that are referenced by the chart itself. You simply must consult side B before you answer side A questions.

Side A
Side B

CalGuns has a wiki page for all the info you will need. See it here.

Still confused? So is everyone else.
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Old May 23, 2011, 11:54 PM   #13
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Will see if this is determined to be a "reasonable" restriction. In the mean time it still blows here in kaifornia. What Justice Kennedy just did to our prison system makes me wonder about that guy siding with the four antis. Still a long way off from SCOTUS.
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Old July 19, 2011, 10:04 AM   #14
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I missed it, initially. However I did catch it when I reformatted the 2A cases thread.

On June 8th, Richards was related to Haynie. The case will begin moving forward shortly.
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Old July 19, 2011, 11:30 AM   #15
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I can see these kinds of laws continuing on and on forever or at least up until the point that the SCOTUS provides some detailed direction that you have a right to bear arms outside of your house and that in order to be able to reasonably employ them in self defense they must be allowed to be loaded..

When that day comes.... and it will.... I cant wait to see the reaction of the antis in Kalfornia.
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Old July 19, 2011, 04:19 PM   #16
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This precisely why the Ezell opinion is such a big win.

Their decision spelled out that there is a right to carry. Full Stop. When the decision used the phrase, "in the home," it was perfectly in context of the Heller question, as it was asked and answered.

In this case, both Richards and Haynie will address the confusion the CA law is, and how not even the authorities (police) can tell if the firearm in question is lawful or not.
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Old July 19, 2011, 05:16 PM   #17
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Quote:
I can see these kinds of laws continuing on and on forever or at least up until the point that the SCOTUS provides some detailed direction that you have a right to bear arms outside of your house and that in order to be able to reasonably employ them in self defense they must be allowed to be loaded..
. . . And that if they are in common use for traditionally lawful purposes or suitable for a would-be militia, then they cannot be banned, no matter how scary they look.
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Old July 19, 2011, 06:13 PM   #18
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I think the SCOTUS has overturned the 9th 26 times and 12 of those were unanaimous decisions.....

The conservative justices on the Supreme Court are no big fans of the 9th and the warped logic that doesn't not comply with previous SCOTUS rulings.
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Old October 22, 2011, 10:41 PM   #19
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Today, in the consolidated Haynie/Richards v. Harris case, the Judge granted the CA DOJ Motion to Dismiss on lack of standing.

Judge did grant the plaintiffs leave to file an amended complaint. Plaintiffs have until Nov. 4th to file an amended complaint addressing the standing issue and the injunctive relief.
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Old October 22, 2011, 11:32 PM   #20
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Bummer.

Will the plaintiffs amend, or appeal?
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Old October 22, 2011, 11:37 PM   #21
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Per http://www.calguns.net/calgunforum/s...71#post7370171 (the first post) yes
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Old October 24, 2011, 10:35 AM   #22
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Kilmer is one, sharp dude.

California has a few morons who like to try to put bad cases before the courts to achieve their aims. Kilmer is not one of those. He is very careful and knows what he is doing. WIsh there were more like him.
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Old November 4, 2011, 09:19 PM   #23
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Just to refresh your memory, back on May 6th in the Haynie v. CA case, the State made a Motion To Dismiss (item #26 on the docket). Then there was the relating of the Richards case to Haynie and consolidating the cases. On August 5th, the Court held a hearing on the MTD. The MTD was granted, based on the theory that neither Haynie or Richards had a realistic chance of been rearrested. The MTD also granted leave for the plaintiffs to file an amended complaint, which was due today.

The amended complaint has been filed, with some startling information.

Quote:
On August 14, 2011, RICHARDS was wrongfully arrested a second time for possession of an Assault Weapon and spent four (4) days in the Sonoma County jail awaiting bail. Again the charges against him were dismissed. He was factually innocent of the charges brought.3


3
The Motion to Dismiss brought by Defendants Harris and California Department of Justice was argued on August 5, 2011. Richards’ new arrest occurred on August 14, 2011, and the case was dismissed on September 19, 2011. Plaintiffs immediately brought this new development to the attention of the Defendants and asked if they would stipulate to a joint statement informing the Court of this new fact. The Defendants declined that invitation and the Plaintiff was not aware of any authority for alleging new facts once a Rule 12 motion has been submitted to the Court. A new case for wrongful arrest is being filed in this Court and a request to relate the cases will be made at the appropriate time.
What this complaint is now doing is to have the entire laws and regulations that define California Assault Weapons declared unconstitutionally vague and ambiguous, for the reasons stated within the complaint.

The complaint also alleges that California Penal Code § 12031(e) is a legislatively enacted General Warrant and therefore violates the 4th amendment and is unconstitutional on its face (for those that don't know, that section of the CA penal code allows an officer to check your firearm to ensure that it is unloaded, without any warrant whatsoever).

Gotta love it when the gun-grabbers make your case for you!
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Old November 21, 2011, 11:19 PM   #24
Al Norris
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Clarifications: Haynie, Richards I and Richards II

There was some confusion over at CalGuns, because of an announcement, today, by the SAF. So, Donald Kilmer came online to clarify what exactly was going on. I'm quoting his entire post from here.

Quote:
In all cases the Plaintiffs were state court criminal defendants charged under Penal Code s 12280(b). These cases were dismissed after the government conceded that the guns were not assault weapons under CA law. Calguns Foundation, Inc., and SAF paid my office to represent all of these defendants in these state court criminal actions.

Federal Civil Rights Case #1 - Haynie v. Harris. Originally included Pleasanton Police Dept. for false arrest. They paid up on the cost of Mr. Haynie's bail and were dismissed. Only remaining action was to request that Cal DOJ issue bulletin/memo about bullet-button rifles to prevent future wrongful arrests.

Fedearl [sic] Civil Rights Case #2 - Richards v. Harris. Also asked that Cal DOJ issue bulletin/memo clarifiying [sic] assault weapons statutes to prevent future wrongful arrests. Also suing Rohnert Park Police and arresting officer for wrongful arrest to recover attrorney [sic] fees and bail bond costs.

Cases #1 and #2 were consolidated in a hearing where DOJ tried to get the cases dismissed on the grounds that plaintiffs lacked standing because they couldn't plausibly allege that they faced additional threats of arrest.

After the motion was submitted to the Court, but before the Court issued its opinion, Mr. Richards was arrested again in Sonoma County. We tried to get the DOJ to stipulate that this fact be placed before the Court, even though the Federal Rules do not permit additional material (except for a change in the law) to be submitted once the matter has been argued. They declined.

The judge granted the CA DOJ request to dismiss on the standing issue relying on the case of Lyons v. Los Angeles. In that case, since Mr. Lyons couldn't prove that he rationally feared re-arrest, he could not seek injunctive relief against the LAPD to stop their use of choke-holds.

Although the judge granted DOJ's motion, they allowed the plaintiffs to amend their complaint. We did.

Back to Mr. Richards' second arrest. He had to post bail again. Again he was cleared of the charges because the gun was not an assault weapon.

Federal Civil Rights Case #3 - Richards v. Harris II. We are no longer seeking to have the DOJ clarify the law. Now we want the law declared unconstitutionally vague. And we want damages from the arresting agency -- Sonoma County Sheriff and arresting officer. This case was filed on November 17, 2011. It will probably be consolidated with Haynie and Richards I.
Don's summation of the case is just excellent!
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Old December 19, 2011, 10:19 PM   #25
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Richards II will now be consolidated with Haynie and Richards I.

Here's a rundown of what is happening, for those of you that are confused.

Back on Mar. 25th, 2010, Donald Kilmer Filed the Haynie lawsuit (Mark Haynie, Calguns Foundation and SAF, plaintiffs). After some finagling, one of the defendants were dropped (they met an agreed to damages claim) and an amended complaint was filed about a year later.

Things finally began to proceed as we have seen in other cases. On May 6th, 2011, defendants filed a MTD.

Meanwhile, Jason Davis filed a lawsuit on May 20th, 2011 (Brendan Richards, Calguns Foundation and SAF, plaintiffs). A notice of related case (Haynie) was also filed.

On that same day, Haynie plaintiffs filed a response to the MTD and a notice of related case (Richards).

On May 27th, 2011, the Haynie defendants filed their reply to the response and notice of related case.

On June 8th, 2011, the Court related Richards to Haynie. That is where the Richards docket stops. On the Haynie docket, the consolidation of cases formally took place on June 22nd, 2011.

The hearing on the defendants MTD was held on Aug. 10th, 2011. The matter was submitted to the court.

Meanwhile, Richards was re-arrested for the much same thing he was originally arrested for. The plaintiffs immediately notified the defendants and asked for a joint stipulation, which the defendants declined.

On Oct. 20th, 2011, the court granted the defendants MTD but also granted the plaintiffs leave to file a consolidated amended complaint. That was filed on Nov. 4th, 2011.

In this consolidated complaint, plaintiffs reiterated much of the older complaints and attacked the Judges ruling on the MTD, as Richards was in fact arrested again, despite the Judges opinion that this could scarcely happen ever again.

The Richards plaintiffs, then filed a separate lawsuit for this new offense.

On Nov. 18th, instead of filing a response to the complaint, Defendants moved for more time to file and noticed the court of the new lawsuit and its relatedness. The court granted the extension of time to file, on Nov. 23rd.

This allowed both the plaintiffs and defendants to proceed and have the cases related. That order was granted last Friday, the 16th. The complaint in this new action is very specific and will be made part of the consolidated cases.

The defendants now have until Monday, Dec. 26th to file their response to the complaint(s).
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