Case 2:11-cv SJO-SS Document 97 Filed 05/07/13 Page 1 of 19 Page ID #:1469

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1 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge 1 of 1 Pge ID #:1 :rs (np uj3 u. Li z.? O t{i Lr}E ATTO RNEYS AT LAW - A PROFE SSIO NAL CO RPO RATI ON kf rn =f Eq <- _3 'rz U -re.e Q =3 1 l0 l1 1 t 1 t 1 1 t 1 t 1 l 1 t 0 1 l 3 T. PETE_R PETER PIERCE (Br No. 0) 03) pti-cf3trolyv. ppierce@l'wslw.com corn LJS PO\Dfsr (Br No. ) t3) lbon_d_@rwglw.com lbond@rwelw.com RICHARDS, RICHXRT'S. WATSON & GERSHON A Professionl Corportion 3 South Grnd Avenue, Avenue. 0th Floor Los Angeles, Angeles. Cliforni Clifomi I Telephone: Telephoin e:.. Fcsimile: :..00 Attorneys Attornevs for Defendnt CITY OF REDONDO BEACH CHARLES NICHOLS, VS. vs. Plintiff, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KAMALA D. HARRIS, HARRIS. Attorney Attornev Generl, in iq her bef. cpcity's s Attorney Generl'of Cliforni, CITY OF REDONDO BEACH'nd DOES 1 to,. Defendnts. Cse No. CV--1 SJO (SS) REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS THE SECOND AND THIRD CLAIMS IN THE SECOND AMENDED COMPLAINT, OR, IN THE ALTERNATIVE, ALTERNATIVE. IN SUPPORT OF MOTION FOR MORE DEFINITE STATEMENT Mgistrte Judge: Hon. Suznne H. Segl Dte: My 1, Time: :00 l0:00.m. Ctrm: 3 Action Filed: November 30, 30" 0 R00-31\3v1 R00-l 03 l\1 l03v l.doc

2 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge of 1 Pge ID #: ATTORNEYS AT LAW - A PR OFE SSI ONAL CORPORATION TABLE OF CONTENTS Pne Pge I. PLAINTIFF DOES NOT CONTEST THAT HE LACKS STANDING srandrng II. BASED ON THE ALLEGATIONS IN THE SECOND AMENDED COMPLAINT, COMPLAINT. THIS COURT SHOULD NOT EXPAND THE, SECOND AMENDMENT TO PROTECT A RIGHT TO CARRY A FIREARM OUTSIDE OF THE TF{E HOME... 1 A. If The Court Extends The Second Amendment Beyond Bevond The Home, Plintiff's s Fcil Chllenge Still Fils B. If The Court Extends The Second Amendment Beyond The Home, Plintiff's s As-Applied Chllenge Still Fils Fi III. M. PLAINTIFF FAILS TO STATE A CLAIM UNDER LTNDER THE FOURTH AMENDMENT...,... z, o; = G IV. ta PLAINTIFF FAILS TO STATE A CLAIM UNDER THE pg 1 rz EQUAL PROTECTION CLAUSE OF THE FOURTEENTH U-J 3,e3 AMENDMENT......,.... V. PLAINTIFF FAILS TO STATE A CLAIM UNDER THE FIRST 3E 1 t AMENDMENT te = T 1 ls VI. \/I. ALTERNATIVELY, THE -3 tn ALTERNATIVELY. UNDER TI{E YOUNGER ABSTENTION DOCTRINE, DOCTRINE. THIS COURT SHOULD ABSTAIN FROM A3 1 rc <- HEARING I{EARING PLAINTIFF'S SECOND CLAIM, AND SHOULD DISMISS HIS THIRD 1 n CLAIM... THE =F Ag VII. TFM SECOND AMENDED COMPLAINT FAILS TO v-!t 1 lr COMPLY WITH RULE (B) 1O(B) OF THE FEDERAL RULES OF CIVIL CNIL PROCEDURE... VIII. vm. CONCLUSION conclusron l 3-1- R \l \3y1 1 03v1.doc

3 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge 3 of 1 Pge ID #:. o; (/)P E' e.. uj3 ti z.? O Y'i (ne ATTORNEYS AT LAW - A PROFE SSIONAL COR PORATIO N kx =T _3 n H< &.q <d (J e. z. '',l, =?. 1 3 t1 1 t t3 1 t 1 1 T l 3 Cses TABLE OF AUTHORITIES Pe(s) Pee(s) District of Columbi v. Heller, Heller. U.S. 0 S. Ct.3, 1tL.Ed. d3 (00)... 1, r,,, Dubink u. v. Judges of Superior Court, 3 F.3d F 1 (th Cir. 1)...,..... Heck v. Humphrey, 1 U:S. U.S., tl S. Ct.3, 1L. r L.F,d.d33 Ed. (1) Hill v. Colordo, Colordo. 30 s30 u.s. U.S. 03, i03, S. s. Ct. ct. 0, 1 r L.Ed.d (000) Illinois v. Krull, Krull. 0 U.S. 30, r0 S. Ct. 1, L.F,d.d3 Ed. (1)...33 Kolender v. Lwson, Lwson" 1 U.S.3,' 3 S. Ct. 1,L.F,d.d03 Ed. ()... Ltrieste Resturnt v. Villge of Port Chester, 1 F.3d s (d Cir. 1)... McDonld v. City of Chicgo, Chicso, 1 U.S. -_,-0, 0 S. Ct. 300, 1 r L.Ed.d (0) Moore v. Mdign, Mdipn, 0F.3d33 (th Cir.01)......,, Nordyke Nordvke - v. King, Kins. 1 F.3( F.3di01 (th Cir.0I)... 01)... Rogers v. Tennessee, 3 U.S. 1 rr S. Ct., t3, 1 r L.Ed.d (001) (00r)...33 United Sttes v. Armstrong, 1 U.S., t1 S. s..ct., L.F,d.d Ed. (1)... United Sttes v. Brooks, Brooks. 3 F.3d, 1t, 1 ti3 (th Cir. 00)... United Sttes v. Mttrolo, Mttrolo. 0 F.3d 1, I, (th Cir. 000)... United Sttes v. O'Brien, O'Brien. 31 U.S. 3, S. Ct., t3,0l.f,d.d Ed. d (1) United Sttes v. Slerno, 1 U.S. 3, S. Ct. 0, L.Ed.d (1)... -n- R \1 \3v1 03vl.doc

4 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge of 1 Pge ID #:1 z. o; = 1l d la pg 1 tz LU rrj L.0 0?< ATTOR NEYS AT LAW - A PR OFESSI ONAL CORPORATION '3 0 L/1 HH ="" 1?= 1 <i UF 1 d. ;O v 1 1 TABLE OF AUTHORITIES (cont.) Pne(s) Pee(s) ke = f 1 ls -= tn United Sttes v. Stfford, 1 F.3d (th Cir. 00)... Vlsk v. Superior Court, Court. 3F.3d 1-i.3d 3 (th Cir.003)......, Younger v. Hrris, r U.S. u.s. 3, 3z 1 l S. s. Ct. ct., L.Ed. () (rr) Sttutes Federl Rule of Civil Procedure (b)... Penl Code Section t 0 1 l 3 -lli- R00-31 R00-l 03 l\l \3v 03v l.doc

5 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge of 1 Pge ID #:?< (r u.. uj3 li z.? OYI Lr1 E u <- =T _= tn &,q <- (Je e.. -'.gt =?. 1 t 1 1 t 1 t 1 l 1 t 0 1 l 3 MEMORANDUM OF POINTS AND AUTHORITIES I. PLAINTIFF DOES NOT CONTEST THAT HE LACKS STANDING. The City of Redondo Bech (Redondo Bech or City) explined in its moving ppers tht plintiff lcks stnding to ssert his Second nd Third Clims for relief. (Motion t pp. -). Insted of contesting tht he lcks stnding, plintiff sserts tht Redondo Bech's stnding rgument somehow mounts to n dmission tht Section -3.0 of its Municipl Code is preempted by Cliforni lw. (Opp. Brief t p. p. 1, lines 1-0; p., lines -1). ll-1). But plintiff hs never sserted preemption clim in this lwsuit, nd much less does he even explin how Redondo Bech's regultion is supposedly preempted. Furthermore, Redondo Bech simply observed tht Cliforni lw prohibits plintiff from crrying firerm on public property for resons different dffirent thn those underlying the City's bn. (Motion t t p. p. 1, 1, lines -1). Plintiff hs not furnished ny bsis for finding of preemption. Plintiff lcks stnding to ssert his clims ginst Redondo Bech. II. BASED ON THE ALLEGATIONS IN THE SECOND AMENDED COMPLAINT, THIS COURT SHOULD NOT EXPAND THE SECOND AMENDMENT TO PROTECT A RIGHT TO CARRY A FIREARM OUTSIDE OUTSIDB OF THE HOME. Second Amendment cse lw is in its infncy. The Supreme Court hs urged restrint in proceeding quickly to define the prmeters of the Second Amendment restrint in proceeding quickly to define the prmeters of the Second Amendment right. Responding to criticism in one of the dissenting opinions, the Court in District of Columbi v. Heller, U.S. 0, 1 S. Ct. 3, li L. Ed. d 3 (00), of Columbi v. Heller, U.S. 0, 1 S. Ct. 3, L. Ed. d 3 (00), cutioned tht "since this cse represents this Court's first in-depth exmintion of of the Second Amendment, one should not expect it to clrify clri$r the entire field.... And there will be time enough to expound upon the historicl -1- R00-31\3v1.doc R00-l 03 l\1 l03vl.doc

6 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge of 1 Pge ID #:1 0 rs ATTO RNEYS AT LAW - A PROFE SSIONAL CO RPORAT I ON u) ur3 V) u.. LJJ ti. 0 OYi (ne ke =T _3 tns H< U,q <d (J -ru.. -Q v-!t 1 t t l 3 justifictions for the exceptions we hve mentioned if if nd when those exceptions come before us." Id. t 3. The Court, without significnt elbortion, observed tht the "right secured by the Second Amendment is not unlimited" nd it it is is "not right to to keep nd crry ny wepon whtsoever in ny mnner whtsoever nd for whtever purpose." Id. t. Id. t. Following these generl observtions, one resonbly would expect Second Amendment cse lw to evolve crefully from Heller 's core holding: "In sum, we hold tht the District's bn on hndgun possession in the home violtes the Second Amendment, s does its prohibition ginst rendering ny lwful firerm in in the home inoperble for the purpose of immedite self-defense." Id. t 3. One might expect the Second Amendment cse lw initilly to explore whether possessing hndgun for self-defense expnds to res beyond the home but kin to the home setting, such s hotels, RV cmpers, nd the like. In the only decision by federl ppels court observing tht the right to ber rms rrns for self defense "implies right to crry loded gun outside the home," the Seventh Circuit exercised mesure of restrint. See Moore v. Mdign,0F F.3d 33, 3 (th Cir. 01) (Moore). In split decision, Moore struck down n Illinois lw tht prohibited crrying guns in ll public plces. Id. t3. The mjority studiously voiding sying where outside the home the right to ber rms nns for selfdefense might extend; it provided the Legislture with dys to "crft new gun lw tht will impose resonble limittions, consistent with public sfety..... on the crrying of guns in public." public.'''' Id. t. After Illinois sought rehering en bnc, four circuit judges dissented from denil of rehering, observing tht the "Supreme Court circuit judges dissented from denil of rehering, observing tht the 'osupreme Court hs not yet decided whether the post-heller individul right to keep nd ber rms nns extends beyond the home." Moore v. Mdign,0 F.3d 01,,0 (th Cir. 0) (Order dissenting from denil of rehering en bnc). As Redondo Bech rgued in its moving ppers (t pp. -), the Court should --- z-- REPLY MEMORANDUM OF POINTS AND AUTHORITIES AUTHOzuTIES IN SUPPORT OF MOTION TO DISMISS THE R00-31 R00-l 03 l\1 \3v1 l03v1.doc

7 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge of 1 Pge ID #:1 (np -$ ujg u. ti z.? O t1i (ne ATTORNEYS AT LAW - A PR OFESS IONAL CORPORATION ke -3o =T ot E,q <- \J e.< =3. 1 1t 1 t 1 1 T 1 1 t 0 3 decline plintiff's s invittion to find tht the Second Amendment extends outside of the home. Plintiff does not simply sk this Court to extend Heller to setting kin to the home for purposes of self-defense. He sks this Court insted to tke quntum lep nd find tht the Second Amendment extends to government-owned or government-lesed govemment-lesed property, primrily for the purpose pu{pose of politicl protest. If If this Court dopts plintiffs s position, it it "would unduly impir the incrementl nd resoned development of precedent tht is the foundtion of' constitutionl lw. Rogers v. Tennessee,3 U.S. 1,1,1I 1, S. Ct., L.Ed.d (001). "The process of clerly estblishing constitutionl rights is is long, tedious, nd uncertin one." Illinois illinois v. Krull,0 U.S. 30,3, 3, S. Ct. 1,L.F,d.d Ed. 3 (1) (O'Connor, J. dissenting, writing for four Justices). Nothing in in the evolving cse lw wrrnts the vst expnsion of the Second Amendment lndscpe urged by plintiff. A. If The Court Extends The Second Amendment Beyond Bevond The Home, Home. Plintiff's Plintiffs Fcil Fciql Chllenge Chllenee Still Fils. Even if this Court extends the rech of the Second Amendment, this cse is is poor vehicle for its miden voyge outside of the home in the Ninth Circuit. Redondo Bech prohibits the crrying of firerms in ny "prk," defined s s "ny publicly owned or lesed property estblished, designted, mintined, or or otherwise provided by the City for recretionl use or enjoyment." (Second Amended Complint (SAC) tp. 1, I,lines 0-). On its fce, the definition is limited to "publicly owned or lesed property," tht is, property owned or or lesed by the government. No court of which Redondo Bech is wre hs recognized Second government. No court of which Redondo Bech is wre hs recognized Second Amendment right to crry firerms on government property. There re mny Amendment right to crry firerms on government property. There re mny potentil vlid pplictions of Redondo Bech's prohibition. For exmple, no no court hs rticulted Second Amendment right to hunt or trget shoot on government property. Plintiff simply cnnot meet his burden of estblishing "thtno set of of -3- R00-31 R00-l 03 1\l \3y1 l03vl.doc

8 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge of 1 Pge ID #:1 :trs ATTORNEYS AT LAW - A PRO FE SS IONAL CORPORATION u.) P E. u-r 3 ti. OYi!nh ke =T -3 oj ok d. <i LJ e.< v 1 t l3 1 t 1 1 l l 3 circumstnces exists under which [Redondo Bech's prohibition] would be be vlid." United Sttes v. Slerno, 1 U.S. 3,, S. Ct.0, L.Ed.d (1). To the extent plintiff chllenges the prohibition on its fce, plintiff's plintifps chllenge must fil. Nor cn plintiff mintin fcil clim on void for vgueness theory. (See Opp. Brief t p., line Iine to p. 1, line ). As preliminry mtter, plintiff hs not even pled void for vgueness clim, but the City nevertheless ddresses the issue in the event plintiff hs ny opportunity (nd he should not) to file nother mended complint. "A sttute cn be impermissibly vgue for either of two independent resons. First, it it fils to provide people of ordinry intelligence resonble opportunity to understnd wht conduct it prohibits. Second, if it uthorizes or even encourges rbitrry nd discrimintory enforcement." Hill v. Colordo, 30 U.S. 03, 3, S. Ct. 0,1 L.Ed.d (000). The'omore "more importnt" spect of the vgueness inquiry is "'the requirement tht legislture estblish miniml guidelines to govern lw enforcement.' [Cittion.]" Kolender v. Lwson,1U.S. 3, 3, 3 S. Ct. 1, 1s, L.Ed.d 03 (). A person of ordinry intelligence cn esily understnd from the definition of "prk" 'oprk" the loctions in which the crrying of firerms is is prohibited. The definition provides myrid exmples of publicly owned nd publicly lesed property tht hs been provided by the City for recretionl use or enjoyment, nd on which firerms my not be crried. (See SAC t tp. 1, lines 1-). The definition estblishes concrete guidelines governing lw enforcement nd does not encourge rbitrry or discrimintory enforcement. Plintiff's s void for vgueness rgument fils. Redondo Bech's regultion is is fcilly vlid. -- R \1 \3v1.doc

9 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge of 1 Pge ID #:1 :rs (,P e.. urg 1i. O t1i (nh ke =T -3tnj RICHARDS <i (J u. -P. l0 1 t l3 1 t 1 l 1 1 t B. If The Court Extends The Second Amendment Beyond The Home, Home. Plintiff's Plintiffs As-Applied Chllenge Chllenee Still Fils. The crux of plintiff's s Second Amendment clim ppers to be n s-pplied chllenge. (See Opp. Brief t tp., I3,lines -). Plintiff lleges tht Redondo Bech interprets its prohibition on firerms "to pply to ll public, open spces within the city including the costl prklnds nd public costl property not zoned s prklnd," which he lleges re excluded from the prohibition. (SAC t tp.1, lines 0-). The running theme in plintiff's s opposition brief is is tht the City llegedly pplies its prohibition in plces tht fll outside the definition of "prk," nd specificlly s to plintiff, the City llegedly pplied its definition to the "bech" zone. (Opp. Brief t tp.3,lines -; l1-; SAC tp.0,1ines lines 1-1). l-i). Specificlly, plintiff lleges tht when he ws rrested on My 1,01 01 for violting the City's ordinnce, he ws on street open to the public, posted s "privte property," nd locted djcent to the Redondo Bech Pier. (SAC t p. 0, lines 1-1; p. p.,lines 1-). t-). Assuming the truth of plintiff's s llegtions for purposes of of this motion, he he still cnnot mintin Second Amendment clim. No court hs extended the Second Amendment to street open to the public, nd much less ner crowded venue like the Redondo Bech Pier. In ddition to sking this Court to extend the Second Amendment to public venue to which the right hs never been held to extend, plintiff lso sks the Court to extend the right to encompss purpose other thn self-defense. The first sentence of McDonld v. City of Chicgo,1 U.S. _,, 0 0 S. S. Ct. Ct.300,1 L. L.Ed. d (0) (McDonld) circumscribes the right: "Two yers go in [Heller], fhellerf,this Court held tht the Second Amendment protects the right to keep nd ber rms for the purpose of self defense...." 0 S. Ct. t30. Even in inmoore, where the Seventh Circuit held in the bstrct tht the Second Amendment extends beyond the home, the court limited its holding to "the constitutionl right of rmed self-defense." -- R l\1 \3v1 03v1.doc

10 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge of 1 Pge ID #:1. o; {/)P =s EA. u3 oj. (,E oli ke _= (nj =T k E,q <i U e. z. -',g, ={.. 1 t 1 1 t 1 t 1 1 l 0 3 0F.3d t3. From Heller 's observtion tht "the inherent right of self-defense hs been centrl to the Second Amendment right," U.S. t, plintiff ssumes tht there must be other, unrticulted spects of the Second Amendment right beyond selfdefense. (Opp. Brief t tp.,,lines -.) Plintiff sserts tht the right extends to to "other lwful purposes" such s "peceful protest" nd "hunting ndtrget shooting." (Opp. Brief t tp., g,lines -; p. 1,Iine line to p., line 1). But he cites no uthority, nd the City hs found no such uthority. All tht cn be sid for certin is tht the Second Amendment protects the right of self-defense, nd tht the Second Amendment does not "protect the right of citizens to crry rms ffns for ny sort of confronttion" just s the First Amendment does not "protect the right of of citizens to spek for ny purpose." Heller, U.S. t (itlics originl). If If nything, Heller suggests limits on the right of self-defense outside of the home. It does not suggest tht the Second Amendment right protects rnge of purposes other thn self-defense. Plintiff contends tht he wishes "to openly crry firerm for the purpose of of self-defense nd for other lwful purposes" nd tht "peceful protest is is lwful purpose." (Opp. Brief t tp.,lines -). He lleges the sme in the SAC (tp.0, lines -1.) -I.) The City is not wre of ny uthority even suggesting tht the Second Amendment protects right to crry firerm for purposes of protest. Nor hs the City found ny bsis in text or history to suggest such right. See Heller, U.S. t (Court looks to "text 'otext nd history" to determine scope of of Second Amendment). Turning to self-defense, plintiff lleges tht he needs to crry firerm in in public in cse he is "confronted by ggressors" becuse "it is impossible to know when such occsions will rise." (SAC t tp.3,1ines lines -). In his opposition brief, plintiff sttes tht he hs received deth threts. (Opp. Brief t t p. p.,, lines -; p. p., line 1). But plintiff hs never lleged, through three rounds of of pleding, tht he he needs to crry firerms in public becuse he fers for his sfety everywhere he goes. -- R l\l \3v1 03vl.doc

11 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge of 1 Pge ID #:1 o= -s ATTORN EYS AT LAW - A PRO FE SSIONAL CORPORAT ION (,P e.. uj3 ti. ()# (/t: t-y. < _3 oj =T ok E,q <d (Je e, z. 'l, = l 1 l 1 1 t 0 1 l 3 Indeed, his llegtions contrdict this story. The hert of plintiff's s cuse is is politicl protest ginst the Stte's, nd ginst the City's, gun gufl policies. (See SAC t pp. 1- l- 0,1; pp.-3, ff!t ). It It is telling tht the llegtion bout not knowing when ggressors will pper is tied directly to plintiff's s politicl protest. (See SAC t t p. p.,hne line to p.3,line ). This is is not cse bout self-defense. In summry, plintiff's s s-pplied chllenge fils for two seprte nd independent resons: (1) the Second Amendment does not extend to the street used by the public where plintiff ws rrested; lrested; nd () the Second Amendment does not protect the crrying of firerms for ny purpose other thn self-defense. Plintiff cnnot mintin Second Amendment clim nd this Court should dismiss tht clim with prejudice.' prejudice.r III. PLAINTIFF FAILS TO STATE A CLAIM UNDER THE FOURTH AMENDMENT. In drfting its motion, the City construed the SAC s lleging Fourth Amendment violtion bsed on plintiff's s ssertion tht he enjoys Second Amendment right to crry his firerm in public, nd tht by inspecting nd seizing his firerm in lleged violtion of tht right, the City lso llegedly violted the Fourth Amendment. Plintiff explins in his opposition (t p. 1, lines -) tht his Fourth Amendment clim hs nothing to do with the Second Amendment. Insted, it it is bsed on the City's serch nd seizure without wrrnt, nd llegedly without probble cuse, or resonble suspicion. The City now ddresses these issues. t n footnote ote in its movine moving ppers, DDers. the City Ciw mistkenly mistkenlv stted tht it it is is criminlly prosecuting prosecutine plintiff under?nhl Penl Code Section Secfion 0.'The City Citv insted ment to sy sv tht iht to the extent E*tent the Court might misht infer from plintiff's olintiff s llegtions lleetidns tht he he is is being beine prosecuted. under Section 0 (nd he is not), the SecondAmendment nlysiswould be the sme. -- R00-31 R00-l 03 1\l \3v 03v l.doc

12 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge 1 of 1 Pge ID #: 1 l0 z l1 OR O= utp -s vc: u. 1 t LI) r!g ti l3 z.? o oii v)!.n x 1 t cp kf =T _= tn U.q <d T= (JP e. k-h. -- -'.gt ;' mg, 1 =?. 1 l 1 1 t Plintiff lleges he ws stnding on street used by the public, nd openly crrying his firerm when police officers pproched him, serched him, serched his firerm for mmunition, seized it nd rrested him. (SAC t pp. 1-0, fff tt). Under the plin view doctrine, serch wrrnt wnnt ws not required to detin plintiff nd serch his firerm for mmunition. "To "'To fll within the plin view exception [to the wrrnt requirement], two requirements must be met: the officers must be lwfully serching the re where the evidence is found nd the incrimintory nture of the evidence must be immeditely pprent.' [Cittion.]" United Sttes v. Stfford, Stffurd,1 F.3d, (th Cir. 00). First, there cn be no question tht police officers my lwfully conduct serches on street used by the public, nd plintiff does not contend to the contrry. Second, the incrimintory nture of firerm, dedly wepon, is immeditely pprent upon sight. Police officers did not need wrrnt to serch plintiff's s firerm for mmunition. To the extent plintiff rgues tht police lcked probble cuse to serch his person, if he is indeed lleging tht his person ws serched, probble cuse depends on the totlity of circumstnces. United Sttes v. Brooks, Broolcs,3 F.3d, (th (gth Cir.00). Here, police officers sw plintiff openly crrying firerm in public. They did so only four dys fter plintiff hd sought to pply for permit to to crry conceled wepon. (SAC t tp.l,1l). 1, The Ninth Circuit hs found tht"n officer my conduct limited protective serch [ptdown fptdown serch] for conceled wepons if there is reson to believe the suspect my hve wepon." United Sttes v. Mttrolo,0 F.3d 1, (th Cir. 000). Police officers hd reson to believe plintiff hd conceled wepon the moment they sw him openly crrying firerm in public, prticulrly considering tht plintiff erlier hd inquired bout obtining permit to crry conceled wepon. Plintiff's s Fourth Amendment clim, to the extent it is bsed on the City's detention nd serch of his wepon nd person, fils s mtter of lw nd should be dismissed with prejudice. -- R \1 \3v 03vl.doc

13 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge of 1 Pge ID #: ATTORN EYS AT LAW - A PROF ESSI ONAL CORPORATI ON (,P -$ u. urg ti = OYi (n= kx =T -3 o ok Eq <i (J d.. -!, V. 1 t -J 3 l0 1 t 1 1 t l 3 IV. PLAINTIFF FAILS TO TO STATE A CLAIM UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. In his opposition brief, plintiff clrifies tht his equl protection clim flows from the City's lleged selective enforcement of its prohibition on on firerms in in prks. (Opp. Brief t p. 1, I line to p. 1,,line ). Plintiff sserts tht while the City enforced the prohibition ginst him while he ws llegedly in the bech zone,the City did not rrest or prosecute others for the sme conduct. (Opp. Brief t tp. 1, 1, lines 1-). l-). Even if if plintiff mended his complint to include these llegtions, he still could not llege n equl protection clim bsed on selective enforcement. To show selective enforcement, plintiff must mke " credible showing" thtthe the City knew tht someone other thn plintiff ws crrying firerm in the bech zone nd did not rrest nd prosecute tht person. See United Sttes v. Armstrong,1 U.S.,0, 0, S. Ct., L.Ed.d (1). Armstrongrequires'o requires " showing tht the [government] knew of other violtions, but declined to prosecute them." Ltrieste Resturntv. Villge of Port Chester,1 F.3d,0 (dcir. 1). Noticebly bsent from plintiff's s SAC, nd from his opposition brief, is ny llegtion tht the City knew of ny other person who engged in the sme illegl ctivity s plintiff, nd then declined to prosecute tht other person. In In fct, such n n llegtion would seem to be t odds with plintiff's s ssertion tht he hs video of other persons violting the City's lw (Opp. (Opp, Brief t t p. p. 1, lines -3), nd with plintiff's s implicit suggestion tht he could show the video to to the City. Plintiff compres himself with fishermen who crry knives on the City's pier. (See Opp. Brief t p. 1, line to p. 1,line ). This goes nowhere. Plintiff merely specultes without lleging ny specific fcts tht the City knows of of fishermen who crry illegl wepons on the pier, nd tht the City does nothing bout it. /// Plintiff's Plintifls equl protection clim should be dismissed with prejudice. -- R00-31 R00-l 03 l\l \3v 03vl.doc

14 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge 1 of 1 Pge ID #:1 1l O= tr) (/lp =s e.. r'3 ti z.? oli Lr1 h 1 t k-v _= =T 1 oj ot Eq 1 t <d z \J E e. q. ;oft -!, 1 AT = l 3 V. PLAINTIFF FAILS TO TO STATE A A CLAIM UNDER THE FIRST AMENDMENT. Plintiff lrgely fils to rebut the City's position tht he he sttes neither fcil nor n s-pplied First Amendment clim. The only distinction plintiff ttempts to drw between his lwsuit nd the Nordyke cse involves comprison of the two regultions t stke. Plintiff mistkenly sserts tht Almed County did not prohibit the open crry rry of of firerms on its property. (Opp. Brief t p. 1, lines 3-). In fct, Almed County prohibited thevery possession of firerms (open or conceled) on ll of its property throughout the county, with n exception for events where firerms were secured when not in the ctul possession of n uthorized prticipnt in the event. Nordyke v. King,1 F.3d 1, I, (th Cir. 01) (en bnc). Plintiffs PlintifPs incorrect reding of Nordyke does not provide ny bsis for distinguishing Nordyke's otherwise compelling First Amendment nlysis, which plintiff does not chllenge in in ny meningful wy. Next, plintiff suggests tht he must openly crry firerms in order to effectively protest lws which prohibit him from crrying firerms. (Opp. Brief t t p. p. 1, lines 1-1). Under plintiffs s theory, no lw which bns possession of n object could be enforced becuse people would hve First Amendment right to possess tht object in order to protest the lw. No court hs ever subscribed to tht theory nd it is telling tht plintiff cites no uthority here. Plintiff then sys he needs to crry firerms to let people know tht he nd Plintiff then sys he needs to crry firerms to let people know tht he nd others who crry firerms for self-defense "re just like everyone else." (Opp. Brief t p. 1, lines 1-1). Aside from the fct tht plintiff hs not even pled cognizble expressive conduct clim, the Ninth Circuit hs held squrely tht people re not entitled to convey their "messge" in the wy they think most effective when it comes to dngerous objects. In Vlsk Wskv. Superior Court,3F.3d 3 (th Cir. 003), the court upheld n ordinnce prohibiting during protests possession of 003), the court upheld n ordinnce prohibiting during protests possession of -- -l R00-31 R00-l 03 1\1 \3v1 3vl.doc

15 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge 1 of 1 Pge ID #:. o; ATTORN EYS AT LAW - A PROFESSIONAL CORPORATI ON (/ti u. uj 1i z.? oli (^E kx =T _3 oj ot Eq <i (Jp -- e. z. m{.. l0 1 l 1 t 1 1 t 1 1 t 0 3 wooden objects exceeding certin thickness. Id. t -. The ordinnce prohibited the plintiff from crrying lrge wooden bull hook - device used to trin elephnts - during n niml rights protest. Id. t 1. Using the pplicble stndrd nnouncedin United Sttes v. O'Brien,3I 31 U.S. 3, 3, S. Ct., 0 L.Ed.d (1) (O'Brien),the Ninth Circuit rejected plintiff's s rgument tht she ws entitled to crry the bull hook s the most effective mens of of communicting her messge. communicting her messge. "Although non-wooden replics nd pictures of the bull hook my not hve the sme impct s the rel thing, the potentilhzrds of wielding wht is essentilly hevy wood club in crowd during demonstrtions justified the reltively smll burden imposed on Vlsk by the ordinnce" 3 F.3d t 1. Furthermore, "leflets, pictures, signs, videotpes, nd press 3 F.3d t 1. Furthermore, "leflets, pictures, signs, videotpes, nd press releses" were "other, less hzrdous, but still effective, wys of communicting their messge." Ibid. Similrly, the potentilhzrd posed by openly crrying firerm in public justifies requiring plintiff to communicte ny messge with the mny other tools vilble - speech, leflets, pictures, signs, nd press releses to to nme just few. Redondo Bech's ordinnce leves open multiple venues of communiction (Vlsk,3 F F.3d t 1) nd thereby stisfies the fourth O'Brien fctor. Plintiff's s First Amendment clim should be dismissed with prejudice. VI. ALTERNATIVELY, UNDERYOUNGER, THIS COURT SHOULD ABSTAIN FROM HEARING PLAINTIFF'S SECOND CLAIM, AND SHOULD DISMISS HIS THIRD CLAIM. Plintiff offers three responses to Younger bstention. Younger v. Hrris,0l 01 U.S. 3, 1 S. Ct., L.Ed. (). None hs merit. -- R00-31 R00-l 03 l\1 \ 3v1 l03vl.doc

16 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge 1 of 1 Pge ID #:1 :rs ATTORNEYS AT LAW - A PROFESSIONAL CORPO RATI ON (/)P e. ur3 ti. O lii (ne t-; <d _= tnj =f Eq < (Je -- e. q. > v 1 1 t l t 1 1 t 0 3 First, plintiff rgues tht Younger bstention is inpproprite becuse he filed this lwsuit before the City initited stte court criminl proceedings ginst him. (Opp. Brief tp.1, lines 3-). The Court hs lredy rejected tht rgument. In In the Mgistrte Judge's Report, the Court found tht the first prong of Younger is stisfied so long s the stte court proceeding is filed before ny proceedings of of substnce hve occurred in the federl ction. (See Report nd Recommendtion of the United Stte Mgistrte Judge (Mgistrte Judge's Report) (Doc. 1), l),p.1, lines -1). This ction hs not progressed beyond the pleding stge. Second, plintiff contends tht the criminl ction ws brought in bd fith. (Opp. Brief tp.,1ines lines -). Plintiff does not explin how this bers upon Younger nlysis. Nor does plintiff ssert, nd let lone explin, tht he is without the opportunity to rise "bd fith" in defense of the criminl chrges. If If defendnt is convicted in the criminl cse, his "bd fith" clim is is irrelevnt nywy unless the conviction is reversed or expunged. See Heckv. Humphrey,1 U.S.,-, -, S. Ct.3,1 L.F,d.d33 Ed. (1). A "bd fith" llegtion does provide bsis for rejecting Younger bstention. Third, plintiff contends tht he hs no opportunity to rise his constitutionl clims s defenses inthe stte criminl ction. (Opp.Brief t tp.3,iinetop., line to, lines 1). But his contention is completely refuted by certified copy of the stte court's ruling on his demurrer to the criminl complint. The certified copy of of the ruling is ttched to the City's Request for Judicil Notice filed with this reply brief. The ruling reflects tht the stte court considered nd rejected plintiff's s preemption defense nd his Second Amendment rgument. Plintiff hs hd n opportunity to rise his constitutionl clims in stte court. His rel problem is is tht he does not like the result reched by the stte court. the result reched by the stte court. Furthermore, if plintiff is convicted in stte court, he my ppel the conviction. This weighs hevily in fvor of exercising Younger bstention. A stte court proceeding remins pending for purposes of Younger bstention until ll direct -1- REPLY MEMORANDUM OF POINTS AND AUTHORITIES AUTHOzuTIES IN SUPPORT OF MOTION TO DISMISS THE R l\1 \3v1 3v1.doc

17 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge 1 of 1 Pge ID #:1 ATTORNEYS AT LAW - A PRO FES SIONAL COR PORATI ON (.rlg =$ u. ur3 ti. OYi!n= ke =i -3 rn E <i T= (J e ',gl =?..t 1 1 t 1 1 t 0 1 T 3 ppels re exhusted. Dubinkv. Judges of Superior Court,z3F.3d1,3 3 3 (th (gth Cir. 1). Cir. 1). In summry, if the Court finds tht plintiff hs stted ny clim for relief, the Court should bstin under Younger from hering plintifps plintiffs dmges clims until the stte criminl proceedings re finl, nd should dismiss plintiff's s clims for injunctive nd declrtory relief. VII. THE SECOND AMENDED COMPLAINT FAILS TO COMPLY WITH RULE RULB (B) OF THE FEDERAL RULES OF CIVIL CrVn PROCEDURE. The City explined in its moving ppers (t pp. -3) tht plintiff fils to pled distinct constitutionl clims with ech one supported by specific fctul llegtions. Plintiff responds only by sying tht he hs complied with Rule (b), but he does not explin how the SAC complies with the rule. (Opp. Brief t tp., lines -). If the Court decides to her this cse now, it should t minimum require plintiff to comply with Rule (b) in the mnner urged by the City. VIII. CONCLUSION The Court should dismiss the Second nd Third Clims in the Second Amended Complint without leve to mend, nd with prejudice. Alterntively, under Younger,the Court should dismiss the Third Clim without leve to mend, nd should sty proceedings on the Second Clim until the stte criminl proceedings rech finl judgment. If the Court exercises jurisdiction now, it should t minimum order plintiff to file n mended complint tht complies with Rule (b). l0(b). /// /// /// -- -l R00-31 R00-l 03 l\l \3v1 3vl.doc

18 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge 1 of 1 Pge ID #:1 z o ==?< (,P < t e. ce -. LU LL' 3 ti z.? v, (r) (nf OYi Ex 1 v-) 0 =T -= tnj H< Eq 1 <i T= LT.) u -- e.< < -h q rin l 3 Dted: My,,0 RICHARDS, WATSON & GERSHON A Professionl Corportion T. PETER PIERCE ' LISA BOND By: -1- -r- lit, T. PETER PIERCE Attorneys Attornevs for Defendnt CITY OF REDONDO BEACH R \1 \3v1 03vl.doc

19 Cse :-cv-01-sjo-ss Document Filed 0/0/ Pge 1 of 1 Pge ID #:1 z= ATTOR NEYS AT LAW - A PR OFESSI ONAL CO RPORATI ON r"f1 P e.. ur3 ti z.? (ne oyi -d<- =T o? Eq <i LJ u.< xv. 1 1 t t3 1 T 1 1 t 1 t 1 1 t 0 1 l 3 I, Clotilde Bigorni, declre: PROOF OF SERVICE I m resident of the stte of Cliforni nd over the ge of eighteen yers nd I m resident of the stte of Cliforni nd over the ge of eighteen yers nd not prty Drtv to the within ction. My Mv business ddress is is 3 South Grnd Avenue, AVenue, 0th Floor, Floo?, Los Angeles, Cliforni On My,,0, I I served the within document(s)-described described s: : REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS THE SECOND AND THIRD CLAIMS IN THE SECOND AMENDED COMPLAINT OR, ORO IN THE ALTERNATIVE, ALTERNATIVE' IN SUPPORT OF MOTION FOR MORE DEFINITE STATEMENT on the interested prties in this ction s stted below: Chrles Nichols P.O. Box 0 Redondo Bech, Bech. CA C0 Tel: () r Jonthn Michel Eisenberg Eisenbers Office of the Cliforni Attorney Attrnev Generl Government Lw Section 300 South Spring Sprine Street, Street. Suite Los Angeles, Anseles'. CA 00' Tel: () (zi3) -0 Fx: () (\ " -1 Emil: : ionthn.eisenberdoi.c i onthn.eisenbers,(a.doi.c.sov.ov L J with oostse th'er^eon fujlv orepid. in the United Sttes mil t Los Angeles, [ I X X] I (BY (BY MAIL) By Bv plcing nlcins the the document(s) listed bove in in seled envelope with postge thereon fully prepid, in the United Sttes mil t Los Angeles, Cliforni,"ddressed ddressed s set sei forth foith bove. I I m redily fmilir. with the the-firm's prctice orctice for collection nd processing processins correspondence correspondenie for miling with the United Sttes Postl Service. Serviie. Under-tht prctice, pr^ctice, it would be deposited {eposited with the U.S. Postl Service on tht sme dy with_postge thereon fully tully prepid preptd in tn the ordinry course of business. I I m wre tht on motion motton of ot the prty prly served, served. service seriice is presumed invlid if postl cncelltion dte or.postge-meter dte is'more thn one bne dy fter dte of deposit for miling contined contihed in this ffidvit. I certify certifu tht I m employed in the office of member of the br of this Court t whose direction dire"ction the service servite ws mde. Executed on My,0, t Los Angeles, Cliforni. I declre under penlty of perjury tht the foregoing is is true nd correct. t otildfelligorni R00-31\1v1.doc R00-l 03 1\1 01vl.doc