Case 2:10-cv JAM-EFB Document 12 Filed 04/20/11 Page 1 of 25

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1 Case :-cv-0-jam-efb Document Filed 0/0/ Page of Donald E.J. Kilmer, Jr., (SBN: ) LAW OFFICES OF DONALD KILMER A Professional Corporation Willow Street, Suite 0 San Jose, California Telephone: 0/- Facsimile: 0/- Don@DKLawOffice.com Attorney for Plaintiffs UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 0 RICHARD ENOS, JEFF BASTASINI, LOUIE MERCADO, WALTER GROVES, MANUEL MONTEIRO, EDWARD ERIKSON, VERNON NEWMAN, JEFF LOUGHRAN and WILLIAM EDWARDS, Plaintiffs, vs. ERIC HOLDER, as United States Attorney General, and ROBERT MUELLER, III, as Director of e Federal Bureau of Investigation, Defendants. CASE NO.: :-CV-0-JAM-EFB MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS Date: May, 0 Time: :0 a.m. Place: Courtroom, Floor Judge: Hon. John A. Mendez Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- By and rough undesigned counsel, Plaintiffs RICHARD ENOS, JEFF BASTASINI, LOUIE MERCADO, WALTER GROVES, MANUEL MONTEIRO, EDWARD ERIKSON, VERNON NEWMAN, JEFF LOUGHRAN and WILLIAM EDWARDS hereby oppose Defendants Motion to Dismiss and submit is memorandum to support at opposition. Date: April 0, 0 /s/ Donald E. J. Kilmer, Jr. Attorney for e Plaintiffs Enos v. Holder Page of

2 Case :-cv-0-jam-efb Document Filed 0/0/ Page of Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 INTRODUCTION PRELIMINARY STATEMENT The Plaintiffs in is case are currently prohibited from exercising a fundamental constitutional right to keep and bear arms because ey can not lawfully acquire, own or possess e means (i.e., firearms) of exercising at right. While e State of California initially secured misdemeanor convictions against all Plaintiffs for various crimes, at sovereign has restored e Plaintiffs rights, or would oerwise permit e Plaintiffs to acquire, own or possess firearms under California law. Among e only impediments to e Plaintiffs lawful exercise of a right to keep and bear arms is: () e federal government s refusal to properly interpret its own statutes defining Misdemeanor Crimes of Domestic Violence (MCDV), and () e federal government s regulatory scheme for firearm purchases which bans e sale/transfer of firearms to persons in e same category as Plaintiffs. The primary relief sought by all Plaintiffs is a declaratory judgment at ey eier () have had eir rights restored and no longer fall under e federal definition of Domestic Violence Misdemeanant, or () were never subject to e federal definition of Domestic Violence Misdemeanant in e first place. For of e Plaintiffs (except Edwards), e short cut to adjudicating is matter, will require e Court to simply interpret U.S.C. (a)()(b) which defines MCDV and e elements for e restoration of rights under state law in light of Supreme Court s opinions in District of Columbia v. Heller, U.S. 0 (00) and McDonald v. City of Chicago, L. Ed. d (0). Plaintiff EDWARDS s claims present e only set of facts which take us into slightly different territory. He was only convicted of disturbing e peace and neier e statute nor e jury instructions contain as an element e use of physical force, or e reatened use of a deadly weapon. His claim is viable because e federal definition of MCDV is overbroad in light of California s very specific definitions (and vigorous prosecutions) of domestic violence. Enos v. Holder Page of

3 Case :-cv-0-jam-efb Document Filed 0/0/ Page of 0 STATEMENT OF FACTS. For e reasons set for below, is Court is required to accept as true all material allegations of e complaint and construe e facts in e light most favorable to e Plaintiffs. That makes e page First Amended Complaint (FAC) itself e Statement of Facts for is memorandum.. However, e Plaintiffs wish to address e spin put on ose facts in e Defendants Memorandum in support of eir Motion to Dismiss (MTD).. On page at line of e MTD, e Defendants improperly classify Plaintiff EDWARDS as having been convicted of a misdemeanor crime of domestic violence (MCDV). He was not. He was convicted of Disturbing e Peace. It is e federal government s overbroad interpretation of MCDV at prohibits Plaintiff EDWARDS from exercising his rights.. On page, starting at line of e MTD, e Defendants imply at Plaintiff ENOS is complaining only about at e wrongful interpretation of e MCDV definition, coupled wi a fear of prosecution, as e harm he is suffering. But at misreads e complaint.. At.l., at e top of page of e FAC, ENOS also pleads at he is unable to even acquire a firearm due to e federal government s wrongful interpretation of MCDV. To understand is, e Court needs to understand at least one aspect of e (federal ) procedures for a firearm purchase completion, at e point of sale, of e ATF Form (00.) Rev. Aug 00. Available at [A copy is attached to a concurrently filed Request for Judicial Notice.] Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- California has additional qualifications at are somewhat ancillary to ese proceedings. For example, under California law, private party transfers (wheer sales, gifts or trades) are illegal wi very narrow exceptions. Under federal law it is perfectly acceptable for law-abiding persons to make occasional transfers wiout using a licensed dealer. The practical effect is at a resident of California must go rough e all paperwork, and background checks to lawfully acquire a gun in California. See generally CA Penal Code 00 rough 0. Enos v. Holder Page of

4 Case :-cv-0-jam-efb Document Filed 0/0/ Page of Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 a. ATF Form (00.) is a mandatory form at must be completed for a lawful sale of a firearm from a licensed dealer. It contains a list of questions in Section which make inquiries, based on federal law, of e qualifying and disqualifying criteria for a firearm purchase. b. At e top of page of e form, above his/her signature, e buyer must certify at ey have not answered yes to any of e questions.b. rough.k., and at ey have read and fully understand e Notices, Instructions and Definitions on ATF Form (00.). c. Question.i., is e relevant question for is case. It asks: Have you ever been convicted in any court of a misdemeanor crime of domestic violence? (See Instructions for Question.i.). d. The Instructions for Question.i., are on page of of e ATF Form (00.) and in turn refer e reader to a section titled Exceptions to.c. and.i. Which means MCDVs are treated like a felonies. e. These definitions mirror e federal statutes at issue in is case and it is e inability to answer no to question.i. on e ATF Form (00.), based on e federal law and e definition of MCDV, at form e barrier to Plaintiffs lawful acquisition of firearms.. Wi e exception of Plaintiff EDWARDS, e same can be said for e remaining Plaintiffs. (i.e., They have all been convicted of a MCDV.) But it is not merely at Plaintiffs have an inchoate fear of prosecution for a federal crime of potentially being in possession of a gun is case is primarily about e Plaintiffs inability to lawfully acquire e means of exercising a fundamental right. Defendants claim ey are confused about Plaintiff EDWARDS s allegations as to wheer he cannot purchase a gun or was denied a purchase after an attempt to purchase was made. For purposes of federal pleading rules i.e., notice it doesn t matter. The well plead facts are at Plaintiff EDWARDS has been denied e right to own, possess or purchase firearms. In point of fact he was denied a firearm purchase after initially being approved. Enos v. Holder Page of

5 Case :-cv-0-jam-efb Document Filed 0/0/ Page of 0. Defendants also make references in eir memorandum to various Plaintiffs pleading eir successful petitions under California s Penal Code 0.. (See pg., line of MTD.) The Defendants correctly point out at is form of expungement does not restore gun rights. This is evident from e plain language of e statute and e case law cited by learned counsel. But at is not e reason is fact was plead by e Plaintiffs. Under e developing case law of e Second Amendment, some Courts are looking to e current status of e plaintiff as law-abiding vs. non-law-abiding to determine what standard of review to apply strict or intermediate. See generally: U.S. v. Chester ( Cir. 0) F.d, and U.S. v. Skoien ( Cir. 0) F.d. So even if CA Penal Code 0. doesn t restore firearms rights per se, it does restore someone to e status of being a law-abiding citizen.. The same argument can be made wi respect to ose Plaintiffs who sought and obtained relief under CA Penal Code 0(c)() and various writs. These efforts were borne and plead to show at some of e Plaintiffs have done everying legally possible under state law to lawfully exercise a fundamental right after eir misdemeanor convictions. Until now, e federal government has been tone deaf to ese efforts.. The critical (and undisputed) fact in is case, a fact at is shared by all Plaintiffs except EDWARDS, is () at e State of California, under Penal Code 0, took away ese Plaintiffs right to keep and bear arms for a specific and determinant period of ten years upon eir convictions for a MCDV and () at ten years have lapsed since ose convictions. Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- LEGAL STANDARDS RE: FED.R.CIV.P. (b)() MOTIONS. Defendants Rule (b)() subject matter jurisdiction challenge appears to be based solely on constitutional/procedural rules regarding standing and prudential considerations of abstention and/or exhaustion of administrative Enos v. Holder Page of

6 Case :-cv-0-jam-efb Document Filed 0/0/ Page of Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 remedies. Courts disagree wheer a motion to dismiss for lack of standing should be brought under Rule (b)() or (b)(). a. Some courts (including e Nin Circuit) hold a motion to dismiss for failure to state a claim under Rule (b)() lies where e complaint reveals on its face at plaintiff lacks standing. Sacks v. Office of Foreign Assets Control ( Cir. 00) F.d, ; Brereton v. Bountiful City Corp. ( Cir. 00) F.d, ; Ballentine v. United States (rd Cir. 00) F.d 0,. b. Oer courts hold such motions should be brought under Rule (b)() because standing is a jurisdictional matter. Alliance For Environmental Renewal, Inc. v. Pyramid Crossgates Co. (nd Cir. 00) F.d,, fn. ; see Stalley ex rel. United States v. Orlando Regional Healcare System, Inc. ( Cir. 00) F.d, dismissal for lack of standing treated as dismissal for lack of subject matter jurisdiction under FRCP Rule (b)(); Apex Digital, Inc. v. Sears, Roebuck & Co. ( Cir. 00) F.d 0,.. Furermore, under a Rule (b)() jurisdictional motion a defendant may make eier: () a facial attack, which requires e court to accept e facts plead in e complaint as true, or () a factual attack (i.e., a speaking motion) based on extrinsic evidence. Moreover, if e jurisdictional facts are intertwined wi substantive issues, en e Court should deny a request for dismissal under Fed.R.Civ.P. (b)() and adjudicate e issue under Rule (b)() and/or Rule. See: Safe Air for Everyone v. Meyer ( Cir. 00) F.d,. This is not an insignificant issue.. A Rule (b)() motion based on extrinsic facts cannot be granted where ere is a genuine issue as to any material fact. However, a Rule (b)() "speaking motion" may be granted notwistanding disputed facts because e trial court has power to evaluate and decide conflicting facts in an Enos v. Holder Page of

7 Case :-cv-0-jam-efb Document Filed 0/0/ Page of evidentiary hearing and weigh competing evidence. Rosales v. United States ( Cir. ) F.d, 0.. This reshold issue is easily resolved as e Defendants have not tendered any extrinsic evidence (e.g., requests for judicial notice, certified documents, affidavits, etc...) in support of a speaking motion under Rule (b)(); erefore e Court is required to adjudicate is motion under e rules and standards of Fed.R.Civ.P. (b)(), i.e., e Court must consider e allegations in e complaint as true and construe em in e light most favorable to e Plaintiffs. Montez v. Department of Navy ( Cir. 00) F.d, -0; Safe Air for Everyone v. Meyer ( Cir. 00) F.d,. 0 LEGAL STANDARDS RE: FED.R.CIV.P. (b)() MOTIONS. Since e Defendants have elected, under Fed.R.Civ.P. (b)(), to challenge jurisdiction and e legal sufficiency of e complaint, e court must decide wheer e facts alleged, if true, would entitle plaintiff to some form of legal remedy. Unless e answer is unequivocally "no," e motion must be denied. Conley v. Gibson () U.S., -, S.Ct., ; De La Cruz v. Tormey ( Cir. ) F.d, ; SEC v. Cross Fin'l Services, Inc. (CD CA ) 0 F.Supp., - (quoting text); Beliveau v. Caras (CD CA ) F.Supp., (citing text); United States v. White (CD CA ) F.Supp., (citing text). Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- At is point Plaintiffs would inform e Court at ey asked e Defendants to postpone eir Rule motions for a short time ( weeks) so at e Plaintiffs could file eir own Motion for Summary Judgment under Rule, and/or so at e parties could submit crossmotions for Summary Judgment on stipulated facts. (Which aren t really disputed.) The Defendants declined is offer, but Plaintiffs are still in e process of preparing eir Rule Motion at is time and intend to file declarations as ey become available. Enos v. Holder Page of

8 Case :-cv-0-jam-efb Document Filed 0/0/ Page of. Thus, a Rule (b)() dismissal is proper only where ere is eier a "lack of a cognizable legal eory" or "e absence of sufficient facts alleged under a cognizable legal eory." Balistreri v. Pacifica Police Dept. ( Cir. 0) 0 F.d, ; Graehling v. Village of Lombard, Ill. ( Cir. ) F.d, "A suit should not be dismissed if it is possible to hypoesize facts, consistent wi e complaint, at would make out a claim"; Hearn v. R.J. Reynolds Tobacco Co. (D AZ 00) F.Supp.d, (citing text); Coffin v. Safeway, Inc. (D AZ 00) F.Supp.d, 00 (citing text). Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 DISCUSSION ARGUMENT A. This Court has Federal Question Jurisdiction.. Defendants contend at only Plaintiff ENOS has standing under U.S.C. A as he is e only Plaintiff at has plead a denial of a firearm purchase.. However as noted above, it not merely e denial of a gun purchase and/or fear of prosecution at is driving is case. None of e Plaintiffs (except arguably EDWARDS) can get past question.i., on e ATF Form (00.). Therefore ey cannot acquire e means of exercising a fundamental right.. Federal Courts have general federal question jurisdiction as long a substantial question of federal law arises under e facts of e case. U.S.C.. In is case e only obstacles to e Plaintiffs ultimate goal of exercising a fundamental right are e federal laws prohibiting persons convicted of MCDV from possessing e means of exercising at right. U.S.C.,.. Furermore, vindication of civil rights under e United States Constitution is certainly a federal question. U.S.C.. Since all e Plaintiffs are being denied e right to keep and bear arms as defined by e Second Enos v. Holder Page of

9 Case :-cv-0-jam-efb Document Filed 0/0/ Page of Amendment to e United States Constitution, eir claims certainly qualify as a federal question. See: District of Columbia v. Heller, U.S. 0 (00) and McDonald v. City of Chicago, L. Ed. d (0). Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 B. State Law Remedies Re: The Restoration of Rights.. The government argues in sections A.., A. and A. (pages -) of eir MTD at California s statutory remedies do not restore Plaintiffs right to keep and bear arms. They are right on some points, but wrong on oers.. The issues relating to CA Penal Code 0. (expungement) were discussed above and will not be repeated here. However it is important at is juncture to note e implied eory of e case at e government is advancing in eir MTD. Apparently eir primary eory for interpreting U.S.C. (a)()(b) is at anyone convicted of a MCDV can never have eir right to own or possess a firearm restored by any process because misdemeanor convictions do not result in e loss of rights. Therefore wi noing to restore, (a)()(b) disappears down a rabbit hole of flawless logic and semantic slight-of-hand. This eory is flawed.. Though not cited in eir MTD, is was exactly e eory advanced in United States v. Brailey, ( Cir. 00) 0 F.d 0. The government goes on to cite United States v. Valerio, F.d ( Cir. 00); United States v. Andaverde, F.d 0 ( Cir. ) and finally Logan v. United States, U.S. (00). All of ese cases predate District of Columbia v. Heller, U.S. 0 (00) and McDonald v. City of Chicago, L. Ed. d (0), but at is not e only reason to distinguish ese cases from e present one: a. In Logan, e defendant sought to have e Supreme Court determine if his civil rights had been restored under U.S.C. (a)(0) for purposes of federal sentencing under e Armed Career Criminal Act. Enos v. Holder Page of

10 Case :-cv-0-jam-efb Document Filed 0/0/ Page of At issue in Logan was Congress s treatment of convictions at did and did not result in e loss of civil rights. Ironically, e Supreme Court s analysis in Logan actually supports Plaintiffs eories in is case. i. At issue in Logan was e effect (for sentencing purposes) of e defendant s Wisconsin misdemeanor convictions at did not result in e loss of any civil rights, including e right to keep and bear arms. The Court reasoned at rights retained were not equivalent to right restored and at e defendant was erefore subject to e harsher sentence under federal law even ough he retained his civil rights after his misdemeanor convictions. Logan at. 0 ii. iii. More importantly for is case, e Supreme Court made a direct comparison of e statutes dealing wi Congress s treatment of e restoration of rights for felonies [ U.S.C. (a)(0)] and e restoration of rights for MCDVs. [ U.S.C. (a)()(b)] The Court placed great weight on e parenetical statement in (a)()(b)(ii): (if e law of e applicable jurisdiction provides for e loss of civil rights under such an offense). Under e facts of is case, California even before passage of e federal statute provided for e loss (for years) of e right to keep and bear arms upon conviction for a MCDV. California s law was passed in, e Violence Against Women Act was amended in. [See.b.- c. of e FAC.] Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- The Logan decision is also interesting because e Court was somewhat sympaetic to e defendant s arguments. But e Court had a statute wi plain language at, while it produced anomalies, was not ambiguous. Enos v. Holder Page of

11 Case :-cv-0-jam-efb Document Filed 0/0/ Page of iv. In-oer-words, California law provided for e loss of e civil right to keep and bear arms upon conviction of a MCDV under CA Penal Code 0, and en restored ose rights by operation of law after e passage of years. v. The Logan Court even cited wi approval a prior case in which e Supreme Court acknowledged at federal law regarding restoration of rights must give way to a state s broad rules at restore rights by operation of law, and at states need not restore rights on a case-by-case basis. Logan at citing: Caron v. United States, () U.S. 0, -. vi. At issue in Caron was e unless clause of U.S.C. (a)(0). In at case e defendant was subject to a harsher sentence because while Massachusetts law restored his right to possess shotguns and rifles, it did not restore his right to possess handguns. It was e qualified restoration of rights at triggered e unless clause at led to e harsher result. vii. In contrast, CA Penal Code 0(c)() restores wiout qualification e right to keep and bear arms once years have lapsed following a conviction for a MCDV. Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 b. In Andaverde e defendant was a convicted felon under Washington law, however at state apparently permitted felons to possess shotguns. The defendant tried to argue at Washington s leniency toward felons for possession of long arms (probably for hunting) could be boot-strapped into a restoration of his right to keep and bear arms even ough he remained a felon wi all e oer disabilities attendant wi at classification. In eir discussion e Andaverde Court placed great weight on an analysis of oer civil rights (voting, jury duty, public office, etc..) and wheer ey were restored as e Enos v. Holder Page of

12 Case :-cv-0-jam-efb Document Filed 0/0/ Page of test for determining wheer e right to keep and bear arms was restored. Andaverde, at 0. This case can be distinguished from Andaverde for e same reasons set for in e Logan analysis. Namely at Andaverde deals wi felons and U.S.C. (a)(0) while is case deals wi misdemeanors and (a)()(b). c. In Valerio, e defendant was again a convicted felon under New Mexico law. The Valerio Court set up a -step process for determining wheer a state conviction has been invalidated for purposes of e federal felon in possession statute, Valerio at 0. i. Use state law to determine wheer e defendant has a conviction. If not, defendant is not guilty. If so, go to step. ii. iii. Determine wheer e conviction was expunged, set aside, e defendant was pardoned, or e defendant s civil rights were restored. If not, e conviction stands. If so, go to step. Determine wheer e pardon, expungement, or restoration of civil rights expressly provides at e defendant may not ship, transport, possess, or receive firearms. If so, e conviction stands. If not, e defendant is not guilty. Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 Presumably is test of guilty/not guilty (at least for felons) is equally valid for determining if e person is auorized to acquire a gun in e first place. The Valerio opinion is somewhat in tension wi Jennings v. Mukasey, F.d ( Cir. 00) on e issue of what CA Penal Code 0. does. Conceivably CA Penal Code 0. gets someone past step of e Valerio test and en e -year restoration by operation of law arising out of 0(c)() gets em past steps and. Furermore, e Plaintiffs in is case fall squarely wiin e antimousetrapping rule first articulated in United States v. Laskie, F.d ( Cir. 00), and explained in Jennings at 00-0; Enos v. Holder Page of

13 Case :-cv-0-jam-efb Document Filed 0/0/ Page of d. because e automatic restoration of gun rights after years under CA Penal Code 0(c)() contains no language limiting e restoration of rights once e years have lapsed, Plaintiffs herein should escape e same mousetrap. Brailey is e only Nin Circuit case at deals wi a person convicted of a MCDV (originally convicted of a felony at had been reduced to a misdemeanor. Brailey at ). There is much to criticize in is very sparse opinion s circular reasoning, but it can still be distinguished from is case based on its facts and new case law from e Supreme Court. i. Braily was decided in 00. At at time Nin Circuit held at e Second Amendment s right to keep and bear arms was neier an individual right, nor a fundamental right at applied to e states. Silveira v. Lockyer, F.d ( Cir. 00); Hickman v. Block, F.d ( Cir. ); and Fresno Rifle & Pistol Club, Inc. v. Van De Kamp, F.d ( Cir. ). 0 ii. iii. Therefore it is was not entirely unreasonable for e Brailey Court to conclude at e defendant s disqualification from owning/possessing firearm, based on a MCDV conviction, did not result in e loss of a civil right. That is how ey arrived at e tautology of no rights lost, no rights restored. After District of Columbia v. Heller, U.S. 0 (00) and McDonald v. City of Chicago, L. Ed. d (0), e analysis in Brailey must be set aside. Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- The Brailey Court did not address wheer e defendant in at case forfeited a right to own/possess a gun under Utah s state constitution. Though it did some analysis of state law wi respect to e right to vote, to sit as juror, or hold public office. Id, at -. Enos v. Holder Page of

14 Case :-cv-0-jam-efb Document Filed 0/0/ Page of iv. One might be tempted to defend e Brailey decision by alluding to e opinion s analysis regarding multiple core civil rights forfeited vs. discreet and insular rights/privileges restored. After all e defendant in Brailey did not lose e core civil rights of voting, siting on jury and holding public office. Id at. Nor did e Plaintiffs in is case suffer e loss of voting, siting on jury or holding public office due to eir MCDV convictions. But at argument misses e point. v. The only right at stake in CA (or under federal law for at matter) for a MCDV conviction is e right to keep and bear arms and CA Penal Code 0 forfeits 0% of at civil right and en restores 0% after years. vi. Furermore e Supreme Court expressly rejected any notion at rights guaranteed by e Second Amendment are any less fundamental to our system of ordered liberty an oer provisions of e Bill of Rights (like voting, jury duty and holding public office). McDonald at. Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0. Turning to e provisions of California statutory law at restore Plaintiffs rights by operation of law: a. CA Penal Code 0(c)(). This provision applies to all Plaintiffs except (arguably) EDWARDS. They all suffered convictions for MCDV. The statute calls for e suspension of e right to keep and bear arms for years from e date of conviction. More an years have lapsed. Some of em were convicted prior e passage of 0 [ENOS (), BASTASINI (), MERCADO (0), GROVES (0), MONTEIRO () and LOUGHRAN ()]; and some of em were convicted after at state law and e federal law went into effect. [ERIKSON () and NEWMAN ()]. Enos v. Holder Page of

15 Case :-cv-0-jam-efb Document Filed 0/0/ Page of i. For ese Plaintiffs, e operative federal law at negates eir MCDV for purposes of federal firearm law is U.S.C. (a)()(b)(ii). ii. This court has a duty to avoid constitutional questions unless essential to a proper disposition of e case. See: Harmon v. Brucker, U.S. (); County Court v. Allen, U.S. 0 (); and New York City Transit Auority v. Beazer, 0 U.S. (). iii. A straightforward statutory interpretation (at least for of e Plaintiffs) can resolve is case in light of Supreme Court s analysis articulated in Caron, Logan, Heller and McDonald. () The California statutory scheme DOES deprive ose convicted of a MCDV of a core civil right for years. (i.e., no distinctions needs to be made between rights retained and rights restored. ) () The California statutory scheme DOES restore at civil right, by operation of law and wiout qualification, after years. 0 iv. This Court would only need to address e constitutional issues of First, Second, Fif and Ten Amendments if/when it decides to treat MCDVs exactly like felonies for purposes of federal firearm law and its provisions for restoration of rights. Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- A person shall not be considered to have been convicted of such an offense for purposes of is chapter [ USCS et seq.] if e conviction has been expunged or set aside, or is an offense for which e person has been pardoned or has had civil rights restored (if e law of e applicable jurisdiction provides for e loss of civil rights under such an offense) unless e pardon, expungement, or restoration of civil rights expressly provides at e person may not ship, transport, possess, or receive firearms. [Emphasis added] Enos v. Holder Page of

16 Case :-cv-0-jam-efb Document Filed 0/0/ Page of Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 b. CA Penal Code 0(c)(). ENOS is e only Plaintiff who availed himself of e individual (CA Superior Court) remedy for a restoration of e right to keep and bear arms under is code section. Indeed, given e time sensitive nature of at sub-section, he is e only Plaintiff who can plead is relief, as e door is closed to anyone who did not make at application to a California Trial Court by 00. Since e government appears to treat 0(c)() identically to 0(c)(), Plaintiffs employ e same tactic and refer e Court to our arguments set for above.. Only Plaintiff LOUGHRAN attempted to employ a state court equitable remedy to his firearm disqualifications rough a Writ of Error Coram Nobis. The government attacks is issue wi a complaint at is essentially a claim at ey don t have enough information to decide if is Plaintiff is prohibited or not. The Court should take e government s admission as proof at is issue is best left to trial or a motion for summary judgment after some discovery has been done. a. But more importantly, e government is in a unique position determine if is Plaintiff (indeed all Plaintiffs) is (are) subject to a criminal history at would prevent em purchasing firearms. Defendant MUELLER, III is e Director e F.B.I., and admits in his MTD on page at his agency operates e National Instant Criminal Background Check System (NICS). b. This also puts to rest any defense by e government at Plaintiffs must exhaust administrative appeals to determine if ey are who ey say ey are. Each and every Plaintiff has plead at he is prevented from acquiring firearms due to federal law. What constitutes proof of at denial is better left for trial and/or motions for summary judgment. Enos v. Holder Page of

17 Case :-cv-0-jam-efb Document Filed 0/0/ Page of Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 C. Constitutional Issues Re: Restoration of Rights. At e top of page of e MTB, e government contends Plaintiffs ENOS, BASTASINI, MERCADO, GROVES, MONTEIRO and LOUGHRAN (whose dates of conviction all predated bo e state and federal law barring ose convicted of MCDV from owning/possessing guns) have insufficiently plead at ey did not make a knowing and intelligent waiver of eir trial rights. They predicate is alleged deficiency on Plaintiffs apparentl failure to seek to have eir state court convictions set aside or expunged. a. They point out at U.S.C. (a)()(b)(ii) doesn t refer to a knowing and intelligent waiver as being dispositive for e restoration of rights. They also cite e irrelevant case of Lewis v. United States, U.S. (0). b. The point e government is missing is at lack of waiver is not a restoration issue, it is a definitional issue. It is U.S.C. (a)()(b)(i) which states at a person shall not be considered to have been convicted of [a MCDV][...] unless ey were represented by counsel or waived counsel; and ey had a right to a jury trial and were eier convicted by a jury or waived a jury trial. c. Congress obviously considered e Amendment right to advice of counsel critical for defining MCDV for federal gun law purposes. Furermore since (a)()(b)(i)(ii) is self-referential when it talks about an offense described in is paragraph. It should not take a genius to figure out at someone could not be advised by even e most brilliant attorney of e consequences of eir plea, when e consequences haven t even become law yet. d. As noted above, is Court need not address is issue as e convictions for ese Plaintiffs are all more an years old and a strait statutory interpretation will afford all e relief ey need. Enos v. Holder Page of

18 Case :-cv-0-jam-efb Document Filed 0/0/ Page of 0 D. CA Penal Code is Not a MCDV.. At first blush, e government s arguments at Plaintiff EDWARDS s claims must be dismissed appear to have merit based on Nin Circuit and Supreme Court case law. See respectively e cased cited by e Defendants: United States v. Belless, F.d ( Cir. 00) and United States v. Hayes, U.S. (00). However a more orough analysis of CA Penal Code is readily favorable toward EDWARDS: a. First of all it doesn t really matter which sub-section EDWARDS was convicted of. The entire statute is set for in e FAC at.d. It is contained in Title of Part of e CA Penal Code. It is a Crime Against The Public Peace. b. In oer words it is NOT classified as a Crime Against The Person in Title, Chapter (Assault & Battery) of e Penal Code. Nor is it located in Title, Chapter (Abandonment & Neglect of Children) under e heading: Of Crimes Against e Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals. c. Nowhere in CA Penal Code and/or e Jury Instructions (-00 CALCRIM ) for at code section do we find e words: physical or force or weapon. As learned counsel points out, Penal Code () criminalizes fights and challenges to fight in public places. While it may be an open question wheer a fight (which could just as reasonably include verbal fights) must be interpreted as physical force, what is not an open question is e painstaking way at Courts have strictly construed statutory language when interpreting what a MCDV is for purposes of federal firearm statutes. For a perfect Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- Where Penal Code (e) Assault & Battery Against a Spouse is located. Where Penal Code. Infliction of Injury to a Spouse is located. Enos v. Holder Page of

19 Case :-cv-0-jam-efb Document Filed 0/0/ Page of example one need look no furer an e discussion in Hayes about wheer Congress intended for e word element to include e plural and e analysis of Court of Appeals rule of e last antecedent. The high value e Hayes Court placed on exact word usage militates in favor of similar treatment when it comes to interpreting federal definitions of state law crimes. d. More importantly, we must surmise at e District Attorney in EDWARDS s case had at her disposal e rest of e CA Penal Code s assault and battery crimes, including e ones specifically intended to charge domestic violence. The selection of a charge in e face of ose alternatives implies a desire by e prosecutor to specifically avoid charging EDWARDS wi a crime of violence. The federal government is not in a position to second guess him/her. This is where Plaintiff EDWARD s claims veer off into e constitutional territory of e Amendment. See FAC, Eigh Claim, page. Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 E. Plaintiffs Have Standing to Challenge Federal Gun Laws.. Constitutional Dimensions. Defendants spend pages - of eir MTD advancing a eory at e Plaintiffs have not plead an injury in fact and at since eir claims are based on a hypoetical fear of prosecution at is Court lacks subject matter jurisdiction. This argument is disposed of supra in at Plaintiffs allege as an injury in fact (which is Court must accept as true) at ey are unable to complete a lawful purchase of a firearm due to e Defendants wrongful interpretation of federal law. (i.e., ey can t get past Question.i., of e ATF Form (00.). a. This is not a speculative claim. The collection of statutes ( U.S.C. (a)(), (d)() and (g)()) and regulations derived from ose statutes are preventing Plaintiffs from acquiring guns. Certainly if a Enos v. Holder Page of

20 Case :-cv-0-jam-efb Document Filed 0/0/ Page 0 of Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 set of laws prohibited a person from buying books, magazine and newspapers, is Court would not require a Plaintiff to obtain ese items by force or fraud before ey had standing to challenge at set of laws. b. Nor are Plaintiffs attempting to purchase outlawed weapons like e plaintiffs in San Diego County Gun Rights Comm., v. Reno, F.d ( Cir. ). It bears repeating at e San Diego case predates Heller and McDonald and must erefore give way to e right of a law-abiding person to own common and ordinary weapons for self-defense. c. Nor are Plaintiffs initially challenging e constitutionality of U.S.C. (a)(), (d)() and (g)() U.S.C. Eight of e nine Plaintiffs maintain at e matter can resolved wiout constitutional analysis by a straightforward application of common principles of statutory interpretation. d. But more devastatingly, recent case law from e United States Court of Appeals for e District of Columbia, succinctly puts is issue to rest. See Dear v. Holder, 0 U.S. App. LEXIS (D.C. Cir. 0). In at case e plaintiff Dear, asserted a similar claim at federal law is preventing him from acquiring firearms due to e restrictions on purchase and/or acquisition of firearms by persons in his classification. (Dear does not reside in any State.) The Dear Court conducted a similar analysis to at set for above regarding e necessity of trufully and accurately filling out e ATF From (00.) before being allowed to purchase a firearm.. Prudential Considerations. Defendants arguments under is heading also lack merit for e primary reason at Plaintiffs claims are not generalized grievances. Enos v. Holder Page 0 of

21 Case :-cv-0-jam-efb Document Filed 0/0/ Page of a. Furermore, as plead (and as argued above) exhaustion of administrative remedies is futile. All of e Plaintiffs (except EDWARDS) admit at ey suffered a conviction for a MCDV. They have plead, and is court must accept as true, at ey have been unable to exercise eir right to keep and bear arms because ey cannot lawfully acquire a firearm. Morever, is fact is easily verified by at least one of e Defendants as he heads e agency responsible for criminal background checks for firearm purchases. (i.e., ere is no need to correct e criminal history of e Plaintiffs, which is what e NICS appeal process is for). 0 F. Plaintiffs Constitutional Claims are Valid. 0. Second Amendment. As noted above, Court of Appeals in various Circuits are advancing different standards of review for gun rights. See generally: U.S. v. Chester ( Cir. 0) F.d, and U.S. v. Skoien ( Cir. 0) F.d. Many in e gun rights community are anxiously awaiting a decision at is expected to encompass scrutiny from e Nin Circuit in e case of Nordyke v. King, F.d ( Cir. 0). Defendants assertion at intermediate scrutiny is applicable to e facts of is case are speculation at best. a. First of all, Plaintiffs are not taking issue wi Heller s dicta at longstanding prohibitions on possession of firearms by felons and e mentally ill are presumptively valid. Of course, denying firearms to persons convicted of misdemeanors is of recent vintage. California enacted its provision in and e Violence Against Women Act was Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- Nordyke was vacated and remanded to e original -judge panel by an en banc panel of e Nin Circuit on June, 0. The -judge panel reheard oral argument in e matter in October of 0. Plaintiffs s counsel is lead appellate counsel in at case. Enos v. Holder Page of

22 Case :-cv-0-jam-efb Document Filed 0/0/ Page of Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 amended to add federal prohibitions in. That hardly constitutes a longstanding prohibition. b. Secondly, Plaintiffs are not challenging U.S.C. (g)(). c. Third, Plaintiffs are only challenging e constitutionality of U.S.C. (d)() and (g)() to e extent at ese statutes do not provide for e restoration of rights to persons convicted of misdemeanors. In oer words, it is e lifetime ban at ey challenge, not e underlying policy of suspending e right to keep and bear arms of persons suffering convictions of MCDV.. First Amendment. Admittedly, is claim may be e weakest in Plaintiffs arsenal, especially if significant scrutiny is applied to eir Second Amendment claims. But e claim is hereby advanced in e hope of making new law and/or changing existing law and is closely tied to e Fif Amendment claim. Infra.. Ten Amendment. This claim, primarily advanced by Plaintiff EDWARDS, is explored above, but e gravamen of e claim has noing to do wi e federal power to regulate firearms under federal law. For purposes of is lawsuit, Plaintiffs concede at e federal government has e power to regulate firearm acquisition and to restrict certain classes of people from having firearms. This case is about e states retaining e power to decide what crimes to charge (Penal Code vs. Penal Code.) and e states power to define restoration of rights after a misdemeanor conviction.. Fif Amendment. This is primarily a equal protection claim based on e incongruity of a federal statutory scheme (Remember, is is Defendants eory of e case, not ours.) in which persons convicted of misdemeanors cannot have eir rights restored because ey lost no rights, but felons can have eir rights restored if Congress ever funds at program. See generally: U.S. v. Bean, U.S. (00). That s not even rational. Enos v. Holder Page of

23 Case :-cv-0-jam-efb Document Filed 0/0/ Page of G. Venue and Joinder are Bo Proper. Defendants concede at Plaintiff ENOS has filed in e appropriate venue. (MTD, page, line ). Therefore e only remaining issue is wheer e remaining Plaintiffs are properly joined is action. a. Any person may be joined as co-plaintiff, or co-defendant, if: i. A right to relief is asserted by or against em jointly, severally, or in e alternative; ii. iii. The right to relief arises out of e same transaction, occurrence or series of transactions or occurrences; and Any question of law or fact common to all parties joined will "arise in e action." Fed.R.Civ.P. 0(a)() & (); See also: Grubbs v. General Elec. Credit Corp. () 0 U.S., 0, S.Ct.,, fn. ; Applewhite v. Reichhold Chemicals, Inc. ( Cir. ) F.d, & fn. ; Inman v. C.I.R. (ED CA ) F.Supp., (citing text). Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- 0 b. The requirements governing permissive joinder are construed liberally in order to promote trial convenience and to expedite final determination of disputes: "Under e Rules, e impulse is toward entertaining e broadest possible scope of action consistent wi fairness to e parties; joinder of claims, parties and remedies is strongly encouraged." See: United Mine Workers v. Gibbs () U.S.,, S.Ct. 0, ; and League to Save Lake Tahoe v. Tahoe Regional Planning Agency ( Cir. ) F.d,. c. As noted roughout is memorandum, of e Plaintiffs have identical facts wi respect to restoration of eir gun rights by operation of law. (i.e., eir rights were taken away for only years, and year have lapsed.) d. Wi minor variations, of e Plaintiffs are interchangeable. Enos v. Holder Page of

24 Case :-cv-0-jam-efb Document Filed 0/0/ Page of e. Furermore ere is only one set of laws at requires interpretation by e Court and only one agency at must ultimately clear Plaintiffs firearm purchases. f. All of e Plaintiffs convictions occurred in California. g. It is even arguable at if Plaintiffs had chosen to file separate suits in eir own counties of residence, ey would have been compelled to filed notices of related actions. See ED CA Rule -. h. Finally, Defendants arguments at different Plaintiffs were charged wi different crimes is disingenuous when you consider at ey spent most of eir brief arguing at MCDVs must all be treated e same way under federal law.. Defendants request for severance and/or dismissal of various parties should be denied. 0 CONCLUSION.. For of e Plaintiffs, his case presents a straightforward case of very simple statutory interpretation. a. Plaintiffs ENOS (), BASTASINI (), MERCADO (0), GROVES (0), MONTEIRO () and LOUGHRAN () ERIKSON () and NEWMAN () were convicted of MCDV and at are now more an years old. b. California took away eir rights and restored eir rights by operation of law. CA Penal Code 0(c)(). c. According to U.S.C. (a)()(b)(ii), e federal government must acknowledge at restoration and permit Plaintiffs to acquire firearms. Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- Showing dates of conviction in pareneses. Enos v. Holder Page of

25 Case :-cv-0-jam-efb Document Filed 0/0/ Page of 0. Plaintiff EDWARDS was convicted of a misdemeanor disturbing e peace. CA Penal Code. a. He is not even prohibited under California s ultra-strict prohibiting statute [0(c)()] even ough CA suspends firearm rights for more an 0 misdemeanors. b. Again, straight statutory interpretation wiout having to get into constitutional analysis should yield relief for EDWARDS.. Because Plaintiffs have made out viable claims in e FAC, is Court should deny Defendant s MTD.. In e alternative, e Court should deny Defendants MTD wiout prejudice and set a briefing schedule for cross-motions for summary judgment. 0. In e alternative, e Court should grant Plaintiffs leave to amend in order to cure any perceived defects in e FAC. Respectfully Submitted on April 0, 0, /s/ Donald E.J. Kilmer, Jr., (SBN: ) LAW OFFICES OF DONALD KILMER A Professional Corporation Willow Street, Suite 0 San Jose, California -00 Telephone: 0/- Facsimile: 0/- Don@DKLawOffice.com Attorney for Plaintiffs Willow St. Suite 0 San Jose, CA Vc: 0/- Fx: 0/- Enos v. Holder Page of