Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 Alan Gura (Calif. Bar No. ) Gura & Possessky, PLLC 0 N. Columbus St., Suite 0 Alexandria, VA 0..0/Fax 0.. Donald E.J. Kilmer, Jr. (Calif. Bar No. ) Law Offices of Donald Kilmer, A.P.C. Willow Street, Suite 0 San Jose, CA 0../Fax 0.. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Deanna Sykes, et al., ) Case No. :0-cv-0-MCE-KJM ) Plaintiffs, ) PLAINTIFFS MEMORANDUM OF ) POINTS AND AUTHORITIES IN v. ) OPPOSITION TO DEFENDANTS ) MOTION FOR RULE (f) DISCOVERY John McGinness, et al., ) ) Defendants. ) ) PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION FOR RULE (f) DISCOVERY COME NOW Plaintiffs Deanna Sykes, Andrew Wiam, Adam Richards, Calguns Foundation, Inc. and Second Amendment Foundation, Inc., by and rough counsel, and submit eir Memorandum of Points and Auorities in Opposition to Defendants Motion for Rule (f) discovery. Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 Dated: August, 00 Respectfully submitted, Donald E.J. Kilmer, Jr. (Calif. Bar No. ) Alan Gura (Calif. Bar No. ) Law Offices of Donald Kilmer, A.P.C. Gura & Possessky, PLLC Willow Street, Suite 0 0 N. Columbus St., Suite 0 San Jose, CA Alexandria, VA 0../Fax 0.. 0..0/Fax 0.. E-Mail: Don@DKLawOffice.com By: /s/donald E.J. Kilmer, Jr./ By: /s/alan Gura/ Donald E.J. Kilmer, Jr. Alan Gura Attorneys for Plaintiffs Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 INTRODUCTION Defendants motion does not merely lack merit. It lacks an argument whose merit might be considered by e Court. The motion fails to aver e most rudimentary claims required by Fed. R. Civ. Proc. (f) and Local Rule -0(b) describing () what facts Defendants hope to discover, () why Defendants believe such facts might exist, and () how any such discovery would relate to any issue raised by Plaintiffs motion for summary judgment. It is well-known at e standards for a Rule (f) motion are not high where a factual dispute can be hypoesized. But even e most basic required allegation an identified factual dispute is missing from Defendants motion. Seeking to cure is deficiency after some additional meeting and conferring, Defendants filed a supplemental memorandum attempting to outline e subject areas wi respect to which ey believe discovery could alter e outcome on summary judgment. But is latter filing only confirms at e requested discovery would be a complete waste of time bearing no relation to any issue in is case. Defendants motion remains vague. But any specific argument about a supposed standing deficiency would be defeated by four simple facts: () The individual Plaintiffs reside in Sacramento County. This lawsuit also challenges e policies of Yolo County and its Sheriff, Ed Prieto, on behalf of Yolo County resident Adam Richards. However, at is writing no similar motion has been filed by e Yolo Defendants. A motion along ese lines by e Yolo Defendants would be frivolous. Exhibit B to e motion for summary judgment is a fax, complete wi cover sheet, from e Yolo County Sheriff s Department to Mr. Richards outlining a handgun carry permit policy at states Richards reasons for seeking a permit Self protection and protection of family (wiout credible reats of violence) are invalid. Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 () Defendants relevant policies are posted on eir website. () The policies have been applied to Plaintiffs, who lack e qualifications required by e relevant policies to obtain e desired permits. () The lack of e desired permits has altered Plaintiffs conduct. No amount of additional questioning will alter Plaintiffs testimony wi respect to ese very basic facts. Plaintiffs will not admit at ey live outside e county, at ey have not read e Defendants policies, at ey believe emselves qualified under e policies, or at ey are in e habit of carrying guns in violation of e law. Many people would dispute Plaintiffs legal claims. Defendants should have no difficulty formulating arguments opposing e motion for summary judgment, even if ose arguments, like ose made on behalf of e Rule (f) motion, lack merit. But depositions to review facts at are already well-known to Defendants, if not completely obvious, will not alter e outcome of e summary judgment motion, one way or anoer. STATEMENT OF FACTS A complete statement of facts is contained in Plaintiffs motion for summary judgment, but for purposes of is motion, a brief overview is in order. The individual Plaintiffs are residents of Sacramento and Yolo Counties, respectively. The Defendants are e counties and eir Sheriffs, who are tasked under California law wi e responsibility of issuing permits to carry handguns in public. Walking around armed in public wiout e benefit of a license to do so is a crime. Defendants do not deny at ey enforce e law in is regard. So do law enforcement officers roughout e state, who, every single day, arrest people for carrying guns wiout a license. Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 Plaintiffs understand at if ey walk about in public wi guns, but wiout a license, ey face arrest, incarceration, prosecution, or fine. Thus, ey refrain from doing so. These facts are not subject to serious dispute. The Defendants have adopted policies at flatly state an interest in self-defense is not sufficient good cause to obtain a permit. These policies are unambiguous and ey apply to e Plaintiffs. Whatever oer factors might qualify a person to obtain a permit, under Defendants policies, a mere interest in self-defense is insufficient. Defendants declare: The mere fear of victimization, or desire to carry a firearm, shall be insufficient. Summary Judgment, Exh. A, p. (emphasis added). Defendants also impose a -mon durational residency restriction. Id., at. The policies are posted on Defendants website. Again, is is not subject to dispute. The individual Plaintiffs have an interest in self-defense, but noing beyond at. Their eory is at e Second Amendment is all e good cause ey need to obtain a permit. This is not a case at alleges any sort of malfeasance or corruption on e part of e Defendants. To e contrary, Plaintiffs aver at e Sheriffs are faifully and accurately following eir policies. That has been Plaintiffs experience. Plaintiffs fully concede at ey are not qualified to obtain permits under e relevant policies. The only question is wheer ose policies are constitutional. There is also no question at e individual Plaintiffs have expressed a particular interest in carrying guns, and at e policies have applied to em. Deanna Sykes is a leader of e local If e facts of Defendants policies are somehow subject to dispute, en it is hard to see how deposing e plaintiffs would bring more information to light on at topic. Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 Pink Pistols chapter and a firearms instructor. She has applied for a carry permit and was denied. Andrew Wiam already has extensive law enforcement training and experience, is e current holder of an exposed handgun license. He has previously held a concealed carry permit issued while living in Shasta County, but upon moving to Sacramento, at permit was widrawn. He asked to reapply and was refused an application pursuant to e durational residency restriction he now challenges. The corporate plaintiffs are membership organizations at work to promote e exercise of e right to bear arms. They have many members impacted by Defendants policies, and also expend resources advising individuals who are impacted by ese policies. ARGUMENT THE MOTION FAILS TO ASSERT A QUALIFIED NEED FOR DISCOVERY. Rule contemplates at discovery is not universally necessary. The Rule provides at a plaintiff may move for a summary judgment wiin twenty days of initiating e litigation. Fed. R. Civ. Proc. (a). Effective December, wi e next round of revisions, Rule will provide at a plaintiff s motion for summary judgment may be filed at any time. The Advisory Committee notes make clear at is permits summary judgment to be filed contemporaneously wi e Complaint. Quite simply, some cases raise only questions of law. This is such a case. Summary judgment motions are premature, and Rule (f) discovery is warranted, in ose cases where meaningful factual disputes exist and discovery could well impact e outcome of e motion. But for Defendants to demonstrate at such a situation exists, certain minimal Defendants produced Sykes s application file as part of eir Rule disclosure, so it is not as ough ey are unaware of her circumstances. Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 steps must be taken, and certain basic standards must be satisfied. The Nin Circuit makes clear at is Court should examine e moving affidavit in light of e case s posture to determine wheer ere is any point to avoiding e merits of e legal claims raised by e summary judgment motion. The mere hope at furer evidence may develop... is an insufficient basis for a continuance under Fed. R. Civ. P. (f). Apache Survival Coalition v. United States, F.d, n. ( Cir. ) (citation omitted). Just because [a party] inks evidence at supports its assertions may exist, at alone is not a basis to grant it a continuance under Rule (f). Network Commerce, Inc. v. Microsoft Corp., 0 F. Supp. d 0, 0 (W.D. Wash. 00) (emphasis original); see also Flowers v. First Hawaiian Bank, F. Supp. d 0, (D. Haw. 00). [T]he party seeking a continuance bears e burden to show what specific facts it hopes to discover at will raise an issue of material fact. Continental Maritime of San Francisco, Inc. v. Pac. Coast Metal Trade Dist. Council, F.d, ( Cir. ) (citations omitted). There must be some basis for believing at e information sought actually exists... and at it would prevent summary judgment. Emplrs. Teamsters Local Nos. & 0 Pension Trust Fund v. The Clorox Co., F.d, -0 ( Cir. 00) (citations omitted); see also Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, F.d, ( Cir 0). Given ese requirements, Rule (f) motions require specific, heightened pleading standards. References in memoranda and declarations to a need for discovery do not qualify as motions under Rule (f). Rule (f) requires affidavits setting for e particular facts expected from e movant s discovery. Barona Group v. Am. Mgmt. & Amusement, Inc., 0 F.d, Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 00 ( Cir. ) (citation omitted). [F]ailure to comply wi e requirements of Rule (f) is a proper ground for denying discovery and proceeding to summary judgment. State of California v. Campbell, F.d, ( Cir. ) (citation omitted); Barona, 0 F.d at 00. [T]he defendants must show () at ey have set for in affidavit form e specific facts at ey hope to elicit from furer discovery, () at e facts sought exist, and () at ese sought-after facts are essential to resist e summary judgment motion. State of California, F.d at. Local Rule -0(b) is in accord: If a need for discovery is asserted as a basis for denial of e motion, e party opposing e motion shall provide a specification of e particular facts on which discovery is to be had or e issues on which discovery is necessary. [A]s we have emphasized, denial of a Rule (f) application is proper where it is clear at e evidence sought is almost certainly nonexistent or is e object of pure speculation. State of California v. Campbell, F.d at -0 (citation omitted). The Nin Circuit affirmed e denial of a Rule (f) motion where e movant did not... provide any basis or factual support for his assertions at furer discovery would lead to e facts and testimony he described in his affidavit, and failed to identify facts, eier discovered or likely to be discovered, at would support eir [claims]. Margolis v. Ryan, 0 F.d 0, ( Cir. ). Indeed, even where a moving party can show at it would obtain relevant evidence wi additional discovery, e Nin Circuit distinguishes facts at are essential from ose at are merely generically relevant, e latter being insufficient to support a Rule (f) motion. Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., F.d, ( Cir. 00). Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 Wi ese basic standards in view, it is easy to see why e Defendants felt obligated to supplement eir initial filing. The initial filing asserted only at Defendants required discovery to test Plaintiff s standing. That is too vague a claim. It is not enough, to avoid a summary judgment, merely to offer an incantation of standing (or any oer defense). The Nin Circuit makes very clear at at least some fact must be specifically alleged to be in possible relevant dispute. Indeed, ere are many eories of standing, none specified in e initial (or even e latter) pleading. Defendants simply do not explain how it is at Plaintiffs might lack standing. Is ere an issue wi respect to an injury in fact? Plaintiffs are subject to a policy at denies em a permit, and chills eir behavior wi respect to conduct possibly protected by e Constitution. Causation? Defendants are e auorities who are implementing e disputed policy. Redressability? Should e Court agree wi Plaintiffs, it is empowered to grant em declaratory and injunctive relief at would resolve e dispute. Are ere any prudential concerns? It is difficult to see what ose might be. Plaintiffs seek relief for emselves, eir grievance is specific (ey want certain permits), and e vindication of civil rights claims is wiin e intended purpose of U.S.C. and e Declaratory Judgment Act. None of ese seem like obvious areas of dispute. Indeed, when Defendants raised e issue of standing, Plaintiffs offered to stipulate to any fact deemed necessary by Defendants. But Defendants could not specify any facts at, if true, would defeat Plaintiffs standing. General grievances might be insufficient under Article III for standing, but ey are also insufficient to obtain Rule (f) discovery. Defendants supplemental memorandum does not aid eir motion. In is terse pleading, Defendants list various of e Plaintiffs allegations, and en offer: Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page 0 of 0 0 Defendants seek to depose e individual plaintiffs on ese issues to determine e basis of eir alleged undisputed facts, what process each plaintiff has engaged in to e end of obtaining a carry concealed permit in Sacramento County. The depositions of principals of e group defendants will be utilized to determine e alleged injury at ose groups allege to have taken place by virtue of e Carry Concealed Weapons permit policy and practices of e County of Sacramento. Def. Supplemental Memorandum, at. Again, missing here is any specific identification of what facts are being disputed, why Defendants believe at such facts may exist, and why ose facts would be relevant. All Defendants offer is e most general assertion at discovery would be focused on disputing Plaintiffs claims. That is clearly not enough. "It is clear at a plaintiff cannot defeat a motion for summary judgment by merely restating e conclusory allegations contained in his complaint, and amplifying em only wi speculation about what discovery might uncover. Blanck v. Hager, 0 F. Supp. d, 0 (D. Nev. 00) (citation omitted). The same is true for Defendants yet all Defendants have done is restate e conclusory denials of eir answers, amplified by speculation at discovery might aid establish ese allegations. In e face of e specific evidence and testimony submitted by Plaintiffs on summary judgment, at is clearly not sufficient to carry a Rule (f) motion. The request is particularly unwarranted because e issues allegedly subject to dispute are truly indisputable. Plaintiffs have testified as to who ey are, why ey want gun carry permits, and e steps ey have taken and avoided wi respect to is dispute. At e core of e matter, e individual Plaintiffs have declared eir reasons for seeking gun carry permits and ose reasons are exactly ose rejected by e Defendants published policies. Questioning wheer e Second Amendment Foundation or Calguns Foundation have members and Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 supporters impacted by e policies, or exert resources promoting e exercise of e right to bear arms, seems pointless as well. The request here is quite similar to at held insufficient in Barona Group, where e defendants merely stated... at it wished to depose four named individuals to support its affirmative defenses, wiout claim[ing] at ese depositions would uncover issues of material fact and erefore failed to explain how additional discovery would have affected e disposition of e case. Barona Group, 0 F.d at 00; see also Harris v. City of Seattle, F. Supp. d, (W.D. Wash. 00) ( vague and conclusory statements about what evidence [movant] expects to gain from ese depositions held insufficient); Haines v. Honolulu Shipyard, Inc., F. Supp. d 00 (D. Haw. 000). Indeed, Defendants simply fail to identify any facts at ey wish to dispute, or any basis for believing some particular fact might be revealed at deposition. Theirs is a clear example of what has been repeatedly declared by e Nin Circuit to be insufficient to obtain Rule (f) discovery. CONCLUSION Instead of speculating about wheer Plaintiffs reside in Sacramento County, or wheer e Second Amendment Foundation promotes Second Amendment rights, or wheer Plaintiffs have some unknown qualification for a gun carry permit beyond e simple desire to exercise a constitutional right, Defendants should focus on responding to Plaintiffs legal arguments in a case raising only questions of law. Opposition to Rule (f) Motion
Case :0-cv-0-MCE-KJM Document Filed 0//00 Page of 0 0 Dated: August, 00 Respectfully submitted, Donald E.J. Kilmer, Jr. (Calif. Bar No. ) Alan Gura (Calif. Bar No. ) Law Offices of Donald Kilmer, A.P.C. Gura & Possessky, PLLC Willow Street, Suite 0 0 N. Columbus St., Suite 0 San Jose, CA Alexandria, VA 0../Fax 0.. 0..0/Fax 0.. By: /s/donald E.J. Kilmer, Jr./ By: /s/alan Gura/ Donald E.J. Kilmer, Jr. Alan Gura Attorneys for Plaintiffs Opposition to Rule (f) Motion 0