Case 1:09-cv-00454-RMU Document 9-3 Filed 04/13/2009 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TRACEY HANSON, et al., ) Case No. 09-CV-0454-RMU ) Plaintiffs, ) SEPARATE STATEMENT OF ) UNDISPUTED MATERIAL v. ) S IN SUPPORT OF ) PLAINTIFFS MOTION FOR DISTRICT OF COLUMBIA, et al., ) SUMMARY JUDGMENT ) Defendants. ) ) SEPARATE STATEMENT OF UNDISPUTED MATERIAL S IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT COME NOW the Plaintiffs, Tracey Ambeau Hanson, Gillian St. Lawrence, Paul St. Lawrence, and the Second Amendment Foundation, Inc., by and through undersigned counsel, and submit their Separate Statement of Undisputed Material Facts in Support of their Motion for Summary Judgment. Dated: April 13, 2009 Respectfully submitted, Alan Gura (D.C. Bar No. 453449) Gura & Possessky, PLLC 101 N. Columbus Street, Suite 405 Alexandria, VA 22314 703.835.9085/Fax 703.997.7665 By: /s/alan Gura Alan Gura Attorney for Plaintiffs
Case 1:09-cv-00454-RMU Document 9-3 Filed 04/13/2009 Page 2 of 8 SEPARATE STATEMENT OF UNDISPUTED MATERIAL S IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT 1. Defendants prohibit the possession of any firearm 1. D.C. Code 7-2502.01(a); that is not registered according to city law. Complaint and Answer, 11. 2. Registration certificates are unavailable for any 2. D.C. Code 7-2502.02(a); unsafe firearm prohibited by D.C. Code 7-2505.04; D.C. Code 7-2505.04 Exh. A; Exh. B; Exh. C. 3. With few exceptions, a pistol that is not on the 3. D.C. Code 7-2505.04; California Roster of Handguns Certified for Sale, Exh. A; Exh. B; Exh. C. (also known as the California Roster of Handguns Determined Not to be Unsafe), pursuant to Caliornia Penal Code 12131, as of January 1, 2009, may not be manufactured, sold, given, loaned, exposed for sale, transferred, or imported into the District of Columbia. 4. Since 2007, a center-fire semi-automatic handgun 4. Cal. Penal Code cannot make the California roster if it does not 12126(b)(5), 12130(d)(2); have both a chamber load indicator and, if it has Complaint and Answer, 20. a detachable magazine, a magazine disconnect mechanism. 5. Since 2006, a rimfire semi-automatic handgun 5. Cal. Penal Code must have a magazine disconnect mechanism if it 12126(b)(6), 12130(d)(3); has a detachable magazine in order to be placed on Complaint and Answer, 22. the California roster. 6. Handguns rostered prior to the effective dates of 6. Cal. Penal Code 12126(b) the chamber load indicator and magazine (5), (6); Complaint and disconnect requirements can remain rostered despite Answer, 20, 22. lacking these features 7. A magazine disconnect mechanism is a 7. Cal. Penal Code 12126(d). mechanism that prevents a semiautomatic pistol that has a detachable magazine from operating to strike the primer of ammunition in the firing chamber when a detachable magazine is not inserted in the semiautomatic pistol.
Case 1:09-cv-00454-RMU Document 9-3 Filed 04/13/2009 Page 3 of 8 8. A chamber load indicator is a device that 8. Cal. Penal Code 12126(c). plainly indicates that a cartridge is in the firing chamber. 9. Under California law, a device is considered to be 9. Cal. Penal Code 12126(c). a chamber load indicator if it is readily visible, has incorporated or adjacent explanatory text or graphics, or both, and is designed and intended to indicate to a reasonably foreseeable adult user of the pistol, without requiring the user to refer to a user s manual or any other resource other than the pistol itself, whether a cartridge is in the firing chamber. 10. In practice, the California Department of Justice 10. Exh. D. Firearms Branch, the agency responsible for implementing the roster law, tests the sufficiency of chamber load indicators by asking its employees if they understand the device and when the regulatory authority s employees allegedly fail to understand the device, regardless of what it is designed and intended to indicate to a reasonable adult, the device is ruled inadequate. 11. Given the rarity of chamber load indicators and 11. Jon Vernick, et al., I Didn t magazine disconnect devices, handguns lacking Know the Gun Was Loaded : these features are in common use today, An Examination of Two comprising the overwhelming majority of Safety Devices That Can handguns. Reduce the Risk of Unintentional Firearm Injuries, I20 Journal of Public Health Policy No. 4 at 433 (1999); Exh. E, pp. 6, 9, 10; Exh. F, p. 7. 12. California legislators specifically considered that 12. Exh. E, pp. 6, 9, 10; Exh. F, chamber load indicators and magazine p. 7. disconnects are available on only perhaps 11% and 14% of handguns, respectively, as proposed by the author of the bill mandating these features.
Case 1:09-cv-00454-RMU Document 9-3 Filed 04/13/2009 Page 4 of 8 13. Because chamber load indicators and magazine 13. Exh. E, pp. 9-10. disconnect mechanisms were viewed as beneficial, the California Legislature hoped that mandating these features would alter the firearms market. 14. A handgun safety mechanism may fail or be 14. Complaint and Answer, 32. misused by the user of a handgun. 15. A chamber load indicator is a mechanical 15. Complaint and Answer, 33. device that may fail or be misinterpreted by the user of a handgun. 16. A magazine disconnect mechanism is a 16. Complaint and Answer, 34. mechanical device that may fail. 17. Defendants require that prospective handgun 17. Complaint and Answer, 35. purchasers undergo a five hour gun safety course from a certified instructor. 18. During these courses, instructors certified by 18. Complaint and Answer, 35. Defendants teach the fundamental rule of gun safety holding that all guns should be treated at all times as though they are loaded, to prevent reliance on potentially faulty or misinterpreted mechanical devices and to promote safe gun handling habits. 19 Instructors certified by Defendants teach that 19. Complaint and Answer, 35. reliance on safety mechanisms, chamber load indicators, or magazine disconnect devices is not an appropriate substitute for safe gun handling practices. 20. Listings on the California handgun roster are 20. 11 Calif. Code of Regulations valid for one year, and must be renewed annually, 4070, 4071; Complaint including payment of an annual fee, prior to and Answer, 23. expiration to remain valid.
Case 1:09-cv-00454-RMU Document 9-3 Filed 04/13/2009 Page 5 of 8 21. The California Department of Justice charges 21. Cal. Penal Code firearms manufacturers, importers, and dealers 12131(a)(1), (2); Complaint annual fees, ostensibly to operate the handgun and Answer, 24. roster program. Any handgun whose manufacturer fails to pay the required fees may be excluded from the roster for that reason alone. 22. The initial and renewal annual listing fees for 22. 11 Calif. Code of Regulations inclusion on the handgun roster are $200. 4072(b); Complaint and Answer, 25. 23. Other than the California DOJ, only the 23. 11 Calif. Code of Regulations manufacturer/importer of a handgun model is 4059(c); Complaint and authorized to submit that handgun model to a Answer, 26. DOJ-Certified Laboratory for testing. 24. A handgun can remain on the roster if its 24. 11 Calif. Code of Regulations manufacturer/importer goes out of business or 4070(d); Complaint and discontinues the model, provided that the model Answer, 27. is not being offered for sale to licensed dealers, and a fully licensed wholesaler, distributor, or dealer submits a written request to continue the listing and agrees to pay the annual maintenance fee. 25. So long as a handgun is sold to dealers outside 25. Cal. Penal Code 12131; 11 of California, the handgun s manufacturer can Calif. Code of Regulations cause the sale of that handgun to be forbidden 4059, 4070, 4072; Complaint inside California by failing to submit the gun for and Answer, 27. testing in that state or refusing to pay the annual $200 fee. 26. A manufacturer/importer or other responsible 26. 11 Calif. Code of Regulations party may submit a written request to list a 4070(e); Complaint and handgun model that was voluntarily discontinued Answer, 28. or was removed for lack of payment of the annual maintenance fee. The request may be approved, and the handgun restored to the roster, provided the fee is paid.
Case 1:09-cv-00454-RMU Document 9-3 Filed 04/13/2009 Page 6 of 8 27. Defendants exempt from the handgun rostering 27. D.C. Code 7-2505.04; requirement: (1) Firearms defined as curios or Complaint and Answer, 36. relics under federal law; (2) The purchase of any firearm by any law enforcement officer or agent of the District or the United States; (3) Pistols that are designed expressly for use in Olympic target shooting events, as defined by rule; (4) Certain single-action revolvers, as defined by rule; and (5) The sale, loan, or transfer of any firearm that is to be used solely as a prop during the course of a motion picture, television, or video production by authorized people involved in the production. 28. It is not illegal in California to import a handgun 28. Cal. Penal Code 12125(a); not on the state s approved handgun roster when Complaint and Answer, 42. moving into the state without the intention of selling it, nor is it illegal in California to possess or use an unrostered handgun that is otherwise lawful to possess or use. 29. California also exempts private party transfers, 29. Cal. Penal Code 12132, intra-familial transfers including gifts and 12133; Complaint and bequests, various loans, and various single- Answer, 43, 44. action revolvers. 30. On March 2, 2009, Defendant denied Plaintiff 30. Exh. A; Complaint and Tracey Hanson s application to register a Answer, 45. Springfield Armory XD-45 Tactical 5" Bi-Tone stainless steel/black handgun in.45 ACP, model number XD9623, as that handgun is not on the California Roster of Handguns Certified for Sale. 31. Several identical models of Ms. Hanson s gun 31 Exh. G; Exh. H; Complaint but in different colors are listed on the approved and Answer, 46. handgun roster and are thus available to Ms. Hanson: the XD-45 Tactical 5".45 ACP in Black (model XD9621), the XD-45 Tactical 5".45 ACP in OD Green (model XD9622), and the XD-45 Tactical 5".45 ACP in Dark Earth (XD9162).
Case 1:09-cv-00454-RMU Document 9-3 Filed 04/13/2009 Page 7 of 8 32. The Springfield Armory XD-45 series guns, 32. Exh. H. including Plaintiff Hanson s gun, all have chamber load indicators as a standard feature. 33. Springfield Armory s XD-45 chamber load 33. Exh. D. indicators have been rejected by California regulators as inadequate, because employees of the regulating agency claim not to understand that chamber load indicator s meaning. Springfield Armory XD-45s that are not grandfathered on the California handgun roster prior to 2007, including Plaintiff Hanson s gun, are therefore not rostereligible. 34. Defendants denied plaintiff Gillian St. Lawrence s 34. Exh. B; Complaint and application to register a Para USA (Para Answer, 50. Ordnance) P1345SR / Stainless Steel.45 ACP 4.25" handgun, as that handgun is not on the California Roster of Handguns Certified for Sale. 35. Ms. St. Lawrence s Para USA P1345SR was 35. Exh. I. listed on California s Roster of Handguns Certified for Sale until December 31, 2005. 36. The rostering of the Para USA P1345SR simply 36. Exh. J. expired and was not renewed. California regulators have no records indicating that there was any cause for removal of that gun s listing. 37. The handgun at issue in District of Columbia 37. Exh. K; Exh. A on Motion for v. Heller, 128 S. Ct. 2783 (2008), was a High Summary Judgment in Civil Standard 9-shot revolver in.22 with a 9.5" Case No. 03-0213-EGS [4- Buntline-style barrel. 10]; JA 32 in D.C. Cir. 04-7041; App. to Pet. for Cert. U.S. Supreme Ct. 07-290 at 119a.
Case 1:09-cv-00454-RMU Document 9-3 Filed 04/13/2009 Page 8 of 8 38. Plaintiff Paul St. Lawrence sought to register a 38. Exh. C, Exh. J; Complaint High Standard 9-shot revolver in.22 with a 9.5" and Answer, 53. Buntline-style barrel, identical to the handgun at issue in Heller and eventually registered by Defendants pursuant to the Supreme Court s decision, but Defendants denied the registration of Paul St. Lawrence s gun as it does not appear on the California Roster of Handguns Certified for Sale. 39. Plaintiff Second Amendment Foundation, Inc. 39. Gottlieb Decl., 2. has individual members who are impacted by the challenged laws. 40. Vindication of the right to keep and bear arms is 40. Gottlieb Decl., 2. germane to the purpose of the Second Amendment Foundation, Inc.