No [Dist Ct. No.: 3:10-CV SI] IN THE UNITED STATES COURT OF APPEAL FOR THE NINTH CIRCUIT

Transcription

1 Case = , 11/21/2014, ID = , DktEntry = 25, Page 1 of 26 No [Dist Ct. No.: 3:10-CV SI] IN THE UNITED STATES COURT OF APPEAL FOR THE NINTH CIRCUIT MARK HAYNIE; et al., Plaintiffs - Appellants, vs. KAMALA HARRIS; et al., Defendants - Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SUSAN ILLSTON U.S. DISTRICT JUDGE PRESIDING APPELLANTS REPLY BRIEF *Donald E. J. Kilmer, Jr. CA State Bar No.: Willow Street, Suite 150 San Jose, California Voice: 408/ Fax: 408/ Don@DKLawOffice.com *Counsel of Record for Plaintiff - Appellants

2 Case = , 11/21/2014, ID = , DktEntry = 25, Page 2 of 26 CORPORATE DISCLOSURE STATEMENT THE CALGUNS FOUNDATION, INC., (CGF) is a non-profit organization incorporated under the laws of California with its principal place of business in Roseville, California. CGF supports the California firearms community by promoting education for all stakeholders about California and federal firearms laws, rights and privileges, and by defending and protecting the civil rights of California gun owners. CGF is not a publicly traded corporation. SECOND AMENDMENT FOUNDATION, INC., (SAF) is a non-profit membership organization incorporated under the laws of Washington with its principal place of business in Bellevue, Washington. SAF has over 650,000 members and supporters nationwide, including California. The purposes of SAF include education, research, publishing and legal action focusing on the Constitutional right to privately owned and possess firearms, and the consequences of gun control. SAF is not a publicly traded corporation. Both institutional plaintiffs have provided funding for this suit. Dated: November 21, 2014 /s/ Donald Kilmer Donald Kilmer Attorney for Appellants

3 Case = , 11/21/2014, ID = , DktEntry = 25, Page 3 of 26 TABLE OF CONTENTS INTRODUCTION...1 SUMMARY OF REPLY...2 ARGUMENTS...4 I. THE PLAINTIFFS HAVE STANDING...4 A. The Individual Plaintiffs Have Standing...4 B. The Institutional Plaintiffs Have Standing...7 C. The Case Is Ripe For Adjudication...11 II. STATE OFFICIAL ARE SUBJECT...16 TO THE CONSTITUTION III. THE CALIFORNIA AWCA IS ONLY...18 UNCONSTITUTIONAL IF THE DEFENDANT DOES NOT COMPLY WITH IT CONCLUSION...20 CERTIFICATE OF COMPLIANCE...21 NOTICE OF RELATED CASE...21 CERTIFICATE OF SERVICE i-

4 Case = , 11/21/2014, ID = , DktEntry = 25, Page 4 of 26 TABLE OF AUTHORITIES CASES Abbott Laboratories v. Gardner (1967) 387 U.S Brown v. Entertainment Merchants Association (2011) 131 S. Ct. 2729; Califano v. Sanders (1977) 430 U.S Carlin v. DairyAmerica, Inc., 688 F.3d 1117, 1127 (9th Cir. 2012) City of L.A. v. Lyons (1983) 461 U.S , 5, 11 Colwell v. Dept. of Health & Human Services (9th Cir. 2009) 558 F.3d , 14 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) District of Columbia v. Heller (2008) 554 U.S , 7 Doe v. Bolton (1973) 410 U.S , 15 Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) , 8 -ii-

5 Case = , 11/21/2014, ID = , DktEntry = 25, Page 5 of 26 Fair Hous. Council San Fernando Val. v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002) McClung v. City of Sumner (9th Cir. 2008) 548 F.3d McDonald v. City of Chicago (2010) 130 S. Ct , 15, 18 Oklevueha Native American Church of Hawaii, Inc. v. Holder (9th Cir. 2012) 676 F.3d O Shea v. Littleton (1974) 414 U.S Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014) , 16 San Diego Cnty. Gun Rights Comm. v. Reno, th 98 F.3d 1121 (9 Cir. 1996) , 8 Thomas v. Anchorage Equal Rights Comm'n (9th Cir. 2000) 220 F.3d U.S. v. Chovan, 735 F.3d 1127 (9th Cir. 2013) , 8 Valle Del Sol, Inc. v. Whiting 732 F.3d 1006 (9th Cir. 2013) , 15 -iii-

6 Case = , 11/21/2014, ID = , DktEntry = 25, Page 6 of 26 INTRODUCTION For context, it bears repeating. The emerging analysis of Second Amendment claims is that they should be adjudicated in the same manner as First Amendment claims. Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011); U.S. v. Chovan, 735 F.3d 1127 (9th Cir. 2013) and Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014). See also: District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct (2010). First Amendment doctrines like chilling effect when analyzing obsolete or poorly written laws/regulations, especially when those vague laws result in felony arrests on serious charges, should become a part of the emerging Second Amendment jurisprudence in this Circuit. The individual plaintiffs were arrested, jailed and posted bond. They were deprived of arms, and had to hire defense counsel when they were charged with felony possession of arms designated as contraband by California s Penal Code and Defendants regulations. In addition to the named plaintiffs, another five individuals have suffered wrongfully arrests, with the reasonable inference that there may be other gun owners who were wrongfully arrested. In all cases, the criminal charges were dismissed when it turned out the firearms in 1

7 Case = , 11/21/2014, ID = , DktEntry = 25, Page 7 of 26 question were not Assault Weapons. The individual plaintiffs brought suit for wrongful arrest and damages. The municipalities, peace officers and related causes of action have been dismissed. The institutional plaintiffs paid for the defense of these gun-owners and have brought this suit to prevent future false arrests of their members and the general pubic, by seeking to compel the issuance of a memorandum or a clarifying regulation by the Defendants, who have a legal duty to educate law-enforcement and the public on these issues. SUMMARY OF REPLY Under well-established First Amendment principles, both the individual and institutional plaintiffs have standing. Injunctive relief is appropriate on these facts and the case is ripe for adjudication. Furthermore, state officials are not immune from the requirement that they conduct their duties in compliance with the Bill of Rights. Finally, California s regulatory scheme defining arms regulated by the Assault Weapons Control Act (AWCA), must pass some minimal Constitutional muster for clarity and precision when those regulations trench on fundamental rights. Imagine that a particular word could only be used by someone who is registered with the government and who has obtained an appropriate 2

8 Case = , 11/21/2014, ID = , DktEntry = 25, Page 8 of 26 license for its use. Unauthorized use of this word is a crime, punishable by imprisonment. Suppose further that the enabling statute required the particular government agency issuing licenses and maintaining registrations to promulgate any additional regulations for the purpose of keeping law-enforcement and the general public informed about developments in grammar and usage of this particular word. The purpose of the regulatory authority is to ensure that non-regulated usage of the word, that is unquestionably still protected by the First Amendment, does not result in a chilling effect of that fundamental right with respect to the use of any variations on the particular regulated word. (i.e., there is no legislative intent to punish the use of plurals, possessives, past-participles, gerunds, etc...) Substitute First for Second Amendment; word for gun; grammar & usage for technology; and you have a snap-shot of plaintiffs case. California can easily remedy the injustices described in this case. The mystery here is why they continue to spend the effort to litigate this matter when they clearly have the legal talent and readily available examples of training bulletins and flow charts that they can crib from and then publish state-wide that would end the case. [ER 4:51-53, 4:55-56] 3

9 Case = , 11/21/2014, ID = , DktEntry = 25, Page 9 of 26 ARGUMENTS I. THE PLAINTIFFS HAVE STANDING. The Defendant/Appellees Opening Brief (DAOB) overstates Appellants case in an attempt to set up a straw-man to knock down. [DAOB, pg.1-2] Appellants claim of unconstitutional vagueness with respect to California s Assault Weapons Control Act (AWCA) is based on the Defendants refusal to regulate under this statute. Appellants contention is that the AWCA is unconstitutionally vague and ambiguous only if its problematic enforcement cannot be cured by a simple procedure that is already built in to the AWCA. The primary remedy sought in this case is to have a court order the Defendants to engage in the regulatory/rule-making procedures required by the AWCA and the Second Amendment, which Appellants have always conceded would end the case and controversy in this matter. A. The Individual Plaintiffs Have Standing. The primary mistake made by the trial Court (and the Defendants) in their reliance on City of Los Angeles v. Lyons, 461 U.S. 95 (1983) for their standing analysis is that the Lyons analysis is incomplete and misapplied. The reliance is incomplete for the reasons stated in the Appellants Opening Brief (AOB), namely that the Court and 4

10 Case = , 11/21/2014, ID = , DktEntry = 25, Page 10 of 26 Defendants do not extend the analysis laid out in O Shea v. Littleton, 414 U.S. 488, (1974). The Lyons doctrine is appropriate in a Fourth Amendment case of excessive force because it is never appropriate for police to use excessive force to make an arrest. The wrongful conduct in the instant case is the combination of an incorrect/wrongful interpretation of a vague/ambiguous penal statute/regulation by an arresting officer, coupled with a refusal by the state agency charged with managing those regulations to clarify them, when doing so is a simple almost routine procedure. The Lyons analysis is misapplied on these facts because Plaintiffs are not only complaining about wrongful arrests, past or future. They are complaining about the chilling of a fundamental right to keep and bear arms that are not subject to the AWCA. If exercising a Second Amendment right of keeping arms that only look like contraband carries a risk of arrest, detention, prosecution and confiscation of property (even if eventually cleared) that right will necessarily be chilled. The gravamen of the remedy sought is not only stopping false arrests. It is to compel the government to take steps reasonably available to them to insure the public s robust, but lawful, exercising of their Second Amendment rights without fear of arrest. 5

11 Case = , 11/21/2014, ID = , DktEntry = 25, Page 11 of 26 Defendants are also ignoring the rules regarding factual inferences that favor plaintiffs in Fed.R.Civ.P. Rule 12 motions. Defendants point to Plaintiff HAYNIE s truthful statement [ER 4:26-27] that he does not currently own a firearm that looks like one controlled by the AWCA for the proposition that he has no standing to seek injunctive relief. But that is only half of the truth. HAYNIE also states in the same passage that he wants to reacquire a firearm just like the one that got him arrested the first time, except that he fears another false arrest. Defendants assertion that Plaintiffs RICHARD s current ownership and possession an AWCA look-alike gun has no basis in the text of the operative complaint. Nowhere in that document does RICHARDS contend that he no longer owns the firearms that got him arrested. The reasonable inference he is entitled to, is that he still owns these arms. 1 When it comes to any chilling effect of state laws on fundamental rights, we are well past the time when litigants are required to risk felony prosecution to have standing to challenge an unconstitutional policy, procedure or practice of a state actor. See Doe v. Bolton, 410 U.S. 179 (1973), and the line of cases supporting that holding. 1 Indeed, Counsel for the Appellants has confirmed this fact with his client. 6

12 Case = , 11/21/2014, ID = , DktEntry = 25, Page 12 of 26 B. The Institutional Plaintiffs Have Standing. 2 Defendants reliance on the pre-heller case of San Diego Cnty. Gun th Rights Comm. v. Reno, 98 F.3d 1121 (9 Cir. 1996) to attack the standing of the institutional plaintiffs is curious and misplaced. It is misplaced precisely because it was adjudicated before the Supreme Court recognized an individual right to keep and bear arms in 2008 and then applied those rights to the states through the 14 th Amendment in McDonald v. City of Chicago, 130 S. Ct (2010). The Defendants reliance on the San Diego Cnty. Gun Rights Comm., case is also a curious choice of citation because the chilling effect analysis that Plaintiffs want this Court to apply in this case in light of this Circuit s adoption of First Amendment jurisprudence to analyze Second Amendment claims is supported by that decision, albeit with the post-hoc benefit of Heller and McDonald. The only exception to this general rule has been the relaxed standards for overbreadth facial challenges involving protected speech. Stoianoff, 695 F.2d at In these First Amendment cases, the Supreme Court has recognized "chilling" effect as an adequate injury for establishing standing because the "alleged danger... is, in large measure, one of self-censorship; a harm that can be 2 District of Columbia v. Heller, 554 U.S. 570 (2008) 7

13 Case = , 11/21/2014, ID = , DktEntry = 25, Page 13 of 26 realized even without an actual prosecution." Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 393, 98 L. Ed. 2d 782, 108 S. Ct. 636 (1988); see also Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 956, 81 L. Ed. 2d 786, 104 S. Ct (1984) ("when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged"); Dombrowski v. Pfister, 380 U.S. 479, , 14 L. Ed. 2d 22, 85 S. Ct (1965). San Diego Cnty. Gun Rights Comm. v. Reno, th 98 F.3d 1121, (9 Cir. 1996) The San Diego Cnty. Gun Rights Comm., Court went on to say that Because plaintiffs' attack on the Crime Control Act does not implicate First Amendment concerns, their reliance on Epperson v. Arkansas, 393 U.S. 97, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968), is misplaced. Plaintiffs contend that this Circuit s adoption of First Amendment analysis in Second Amendments case, under U.S. v. Chovan, 735 F.3d 1127 (9th Cir. 2013) and Peruta v. County of San Diego, 742 F.3d (9th Cir. 2014), compels the exact opposite result from the one obtained by the plaintiffs in San Diego Cnty. Gun Rights Comm. Furthermore, the San Diego Cnty., case also addresses as a converse analysis the issue of fear of prosecution as it relates to 3 See also: Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). 8

14 Case = , 11/21/2014, ID = , DktEntry = 25, Page 14 of 26 standing. In this case, there have been 8 or 9 false arrests under the AWCA that Plaintiffs have plead in the operative complaint that must be accepted as true. Contrast this with the lack of historical prosecutions and the speculative nature of future prosecutions that was rejected by the Court in San Diego Cnty. Gun Rights Comm. v. Reno, 98 th F.3d 1121, (9 Cir. 1996). An organization may have representational standing, where it acts as a representative of its members, or direct standing, where it seeks to redress an injury it has suffered in its own right. See Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097, 1101 (9th Cir. 2004). An organization has direct standing to sue when it shows a drain on its resources from both a diversion of its resources and frustration of its mission. Valle Del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013); Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012). The organization s standing must be established independent of the lawsuit filed by the plaintiff. Fair Hous., 666 F.3d at An organization cannot manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all. Valle Del Sol, 732 F.3d at

15 Case = , 11/21/2014, ID = , DktEntry = 25, Page 15 of 26 In this case, the institutional plaintiffs have expended resources outside of the instant action. State court criminal actions are not the same as, or even equivalent to federal civil rights claims. The operative complaint clearly and adequately alleges lost opportunities and payments for state criminal court litigation. [ER 4:27, 4:32, 4:34, 4:41-42] The operative complaint also alleges that resources were expended by the Calguns Foundation, Inc., trying to clarify the regulations at issue in this lawsuit prior to filing suit. [ER 4:39] An organization may assert standing on behalf of its member if the members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000); Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013). Even assuming that the institutional plaintiffs do not have direct standing, they clearly have representational standing based on the facts alleged in the operative complaint, because: (1) their members would have standing to bring a suit, (2) the lawsuit is germane to the 10

16 Case = , 11/21/2014, ID = , DktEntry = 25, Page 16 of 26 purposes of the institutional plaintiffs and (3) neither the claims asserted or the relief requested require the participation of their members. [ER 4:19-22] See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000); Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013). C. The Case Is Ripe For Adjudication. Defendants ripeness arguments are variations on the deficient standing themes raised by the Lyons case, but with citations to cases that discuss ripeness. One problem with Defendants position with regard to ripeness is that the facts of the operative complaint must be construed in the light most favorable to the plaintiffs. Appellant RICHARDS fear of multiple prosecution is not speculative. He was arrested twice and charged with the same crime violating the AWCA while he was exercising his right to keep and bear arms that were protected by the Second Amendment. [ER 4:28-34] The second problem with the Defendants position is the Plaintiffs are not alleging that they fear future arrest and prosecution by the California Department of Justice. It can be reasonably inferred that this state actor (DOJ) will not make any false arrests under the AWCA 11

17 Case = , 11/21/2014, ID = , DktEntry = 25, Page 17 of 26 in the future based on their misunderstanding of their regulations. But plaintiffs are seeking to have the Department ordered to take action (pursuant to their regulatory authority under the AWCA) to prevent wrongful arrests by other local law enforcement agencies throughout California of persons exercising a fundamental constitutional right. Indeed, the Rohnert Park Defendants were dismissed from this action [ER 6:154, Docket Entry 90] after the Director of Public Safety for the City of Rohnert Park (Brian Masterson) stated that the terms "have the capacity to accept a detachable magazine", "bullet button", "pistol grips" and "flash hiders" lack sufficient clarity such that it is difficult for an officer in the field to determine if a firearm that looks like an assault weapon is in fact an assault weapon. Clearly this local law enforcement agency believes it would be helpful to its police officers and the general public if the State of California Department of Justice were to clarify the criteria it considers relevant in determining whether a particular weapon is an assault weapon, particularly as the law applies to bullet buttons, pistol grips and flash hiders. [ER 4: , Exhibit P attached to the operative Complaint.] Similarly, RICHARDS reached an agreement to dismiss the Sonoma County Defendants from the case after Sheriff-Coroner Steve Freitas' 12

18 Case = , 11/21/2014, ID = , DktEntry = 25, Page 18 of 26 declaration stated unequivocally that California Law defining "flash suppressor" is vague and ambiguous. [ER 4: , Exhibit O attached to the operative complaint.] Because the harm to Plaintiffs is the future exercise of a fundamental right, which is being chilled by the Defendants failure to clarify the offending regulation, the better analysis is to assume ripeness when the cases raises only prudential concerns. Thomas v. Anchorage Equal Rights Comm'n (9th Cir. 2000) 220 F.3d 1134, 1142 (en banc); McClung v. City of Sumner (9th Cir. 2008) 548 F.3d 1219, Prudential ripeness evaluates "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner (1967) 387 U.S. 136, 149, 87 S.Ct. 1507, 1515 (abrogated on other grounds in Califano v. Sanders (1977) 430 U.S. 99, 105, 97 S.Ct. 980, 984); Ohio Forestry Ass'n, Inc. v. Sierra Club (1998) 523 U.S. 726, , 118 S.Ct. 1665, 1672 "further factual development would 'significantly advance our ability to deal with the legal issues presented' and would 'aid us in their resolution'"; see also Colwell v. Department of Health & Human Services (9th Cir. 2009) 558 F.3d 1112,

19 Case = , 11/21/2014, ID = , DktEntry = 25, Page 19 of 26 The primary inquiry is whether the relevant issues are sufficiently focused to permit judicial resolution without further factual development. Oklevueha Native American Church of Hawaii, Inc. v. Holder (9th Cir. 2012) 676 F.3d 829, fitness for review "requires only the existence of a 'concrete factual situation'" (claims fit for review; no requirement of exhaustion of administrative proceedings in Religious Freedom Restoration Act). The second inquiry is whether the parties would suffer any hardship by postponing judicial review. Hardship in this context "does not mean just anything that makes life harder; it means hardship of a legal kind, or something that imposes a significant practical harm upon the plaintiff." Colwell v. Department of Health & Human Services, supra, 558 F.3d at 1128 (internal quotes omitted). Plaintiffs are seeking declaratory/injunctive relief to compel a state agency to engage in their statutory and constitutional duties under the AWCA to engage in regulatory conduct required by that law. There is no further action required by the agency and there is no unresolved agency or factual record. It is well-established that, although a plaintiff "must demonstrate a realistic danger of sustaining a direct injury as a result of a statute's operation or enforcement," a 14

20 Case = , 11/21/2014, ID = , DktEntry = 25, Page 20 of 26 plaintiff "does not have to await the consummation of threatened injury to obtain preventive relief." Babbitt v. United Farm Workers, 442 U.S. 289, 298, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979) (internal quotation marks omitted). Thus, Santiago need not await prosecution to challenge Id. ("[I]t is not necessary that [the plaintiff] first expose himself to actual arrest or a prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.") (internal quotation marks omitted). "[I]t is 'sufficient for standing purposes that the plaintiff intends to engage in a 'course of conduct arguably affected with a constitutional interest' and that there is a credible threat that the provision will be invoked against the plaintiff.'" Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, (9th Cir. 2002) (quoting Babbitt, 442 U.S. at 298)). Valle Del Sol, Inc. v. Whiting 732 F.3d 1006 (9th Cir. 2013) Finally, a complaint that alleges a history of prosecutions relating to a protected right, along with a fear of future wrongful prosecutions is sufficient to overcome a ripeness challenge. Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973). In this case the fundamental right is the Second Amendment. There is a history of prosecutions (multiples cases against one plaintiff) and there is a rational fear of future (felony) prosecutions unless the State agency with the power and duty clarifies its regulations. 15

21 Case = , 11/21/2014, ID = , DktEntry = 25, Page 21 of 26 II. STATE OFFICIALS ARE SUBJECT TO THE CONSTITUTION. The Defendants argument that California s Attorney General should not be subject to injunctive relief to compel compliance with U.S. Constitution can only be based on a hidden assumption that Second Amendment rights should not be taken seriously by federal courts. The argument borders on frivolous after considering the resources and effort the Attorney General just expended in a petition to intervene and seek en banc review in a recent Second Amendment case that was pending in this Circuit. See order denying intervention and denying en banc review in Peruta v. County of San Diego, 2014 U.S. App. LEXIS 21509, which arose in the case: Peruta v. County of San Diego, 742 F.3d th 1144 (9 Cir. 2014). How can the same Attorney General assert that she should not be subject to the Court s jurisdiction in an Assault Weapons case which has state-wide implications involving regulatory rule making, but that she is duty bound to seek intervention in a case that realistically only effects sheriffs and chiefs-of-police? Plaintiffs are not seeking any remedy that would interfere with the Attorney General s functions as the chief law officer of the State of 16

22 Case = , 11/21/2014, ID = , DktEntry = 25, Page 22 of 26 California. [DAOB, pg 31] The California Legislature could just as easily have delegated regulatory duties under the AWCA to some newly created agency. It could have assigned rule-making authority under the AWCA regulations to a permanent legislative sub-committee. It could have imposed management of the AWCA regulations through the administrative procedures act on any number of existing regulatory agencies. It didn t. The legislature gave regulatory oversight of the AWCA to the Department of Justice, an agency that also happens to have law-enforcement and prosecutorial powers. Plaintiffs lawsuit seeking mandamus relief to compel regulatory rule-making against the California Attorney General should be no more controversial than a suit seeking clarification of utility regulations, or the scope of land-use regulations, or the constitutionality of environmental regulations. Several recent (highly controversial) cases involving fundamental rights have named the State s constitutional officers as necessary parties for enforcement of the injunctive remedies sought. Governor Brown was a named party in the First Amendment case of Brown v. Entertainment Merchants Association, 131 S.Ct (2011). The governor was also named in the marriage equality case of th Perry v. Brown, 667 F.3d 1078 (9 Cir. 2012). 17

23 Case = , 11/21/2014, ID = , DktEntry = 25, Page 23 of 26 Simply put, Article III courts have the power and duty to impose injunctive remedies, to insure compliance with the Constitution, on all state actors. This power is found in the Fourteenth Amendment and 42 U.S.C. 1983, III. CALIFORNIA S AWCA IS ONLY UNCONSTITUTIONAL IF THE DEFENDANT DOES NOT COMPLY WITH IT. Defendant s last argument that California s AWCA is not unconstitutionally vague is the legal equivalent of a patient complaining to his doctor that his head hurts every time he bangs himself in the head with a hammer. The only action the Attorney General has to take to avoid placing the AWCA in constitutional jeopardy is to comply with the terms of that statute that require her to provide clarity to the law through the regulatory process. This is not just a case of firearm enthusiasts claiming that they cannot comply with some arcane and impenetrable rule. The plaintiffs in this case had no trouble complying with the AWCA s regulations. It was the (presumably) trained law enforcement officers in local and county law enforcement agencies who made false arrests of law-abiding gun owners who were merely exercising their Second Amendment 18

24 Case = , 11/21/2014, ID = , DktEntry = 25, Page 24 of 26 rights. And not surprisingly, those law enforcement agencies have reached the same conclusion that the Plaintiffs did. That the real culprit here is the Attorney General s failure to stay abreast of emerging technologies and trends in the firearm industry, along with her failure to issue clarifying regulations/bulletins that is the proximate and direct cause of the false arrests and mis-information that lead to those arrests. [ER 4: ; 6:154] She has the technical talent in her agency to know what is and is not an Assault Weapon. It was a California Department of Justice expert (Senior Criminalist John Yount) who cleared Plaintiff RICHARDS of both cases. [ER 4:29-30, 4:33] This case has been litigated by a very able and knowledgeable attorney from the Attorney General s office for going on four years now. [ER 6:147] The balance of the hardships greatly favors the Plaintiffs. In fact the Attorney General could get away with plagiarizing the training bulletins issued by the Orange County Sheriff s Office [ER 4:46-49] or the City of Sacramento Police Department [ER 4:51-53] to make this case go away. No. The plaintiffs have not brought a full facial challenge to the AWCA. Their theory of the case is that the statutory and regulatory scheme can avoid a vagueness challenge by requiring that the Attorney 19

25 Case = , 11/21/2014, ID = , DktEntry = 25, Page 25 of 26 General comply with her statutory and constitutional duty to see that the laws impacting fundamental rights are given sufficient clarity so as to avoid false arrests, through a regulatory process that she controls. Plaintiff/Appellants are not seeking some abstract standard of absolute clarity in the law. If the case is returned to the trial court, we have a road map to find out if the Sacramento City and Orange County training bulletins have clarified the law in those jurisdictions so as to avoid false arrests. The deposition of Criminalist John Yount can be taken to see what procedures he follows within the California Department of Justice to train their field officers on Assault Weapon identification. This is a problem that can, and should be solved. CONCLUSION The Order of Dismissal and Judgment of the Trial Court must be reversed and the case remanded with instructions to permit the case to move forward through discovery and trial if necessary. Date: November 21, 2014 /s/ Donald Kilmer Donald Kilmer for Appellants 20

26 Case = , 11/21/2014, ID = , DktEntry = 25, Page 26 of 26 NOTICE OF RELATED CASES Plaintiff/Appellants are not aware of any pending cases in Northern District of California or the Ninth Circuit that could be related to this action. CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of this Circuit because it consists of 4122 words and because this brief has been prepared in proportionally spaced typeface using WordPerfect Version X5 in Century Schoolbook 14 point font. Dated: November 21, /s/ Donald Kilmer Donald Kilmer, Attorney for Appellants CERTIFICATE OF SERVICE On November 21, 2014, I served the foregoing APPELLANTS OPENING BRIEF by electronically filing it with the Court s ECF/CM system, which generated a Notice of Filing and effects service upon counsel for all parties in the case. I declare under penalty of perjury that the foregoing is true and correct. Executed November 21, /s/ Donald Kilmer Attorney for Appellants 21