SUPERIOR COURT OF THE STATE OF CALIFORNIA MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR ISSUANCE OF PRELIMINARY INJUNCTION

George M. Lee (SBN ) Douglas A. Applegate (SBN 0) SEILER EPSTEIN ZIEGLER & APPLEGATE LLP 0 Montgomery Street, Suite 00 San Francisco, California Phone: () -000 Fax: () -0 Raymond M. DiGuiseppe (SBN ) LAW OFFICES OF RAYMOND MARK DIGUISEPPE, PLLC North Front Street, Fifth Floor Wilmington, NC 0 Phone: () -0 Fax: () -0 Attorneys for Plaintiffs GEORGE HOLT, et al., vs. SUPERIOR COURT OF THE STATE OF CALIFORNIA Plaintiffs and Petitioners, XAVIER BECERRA, in his official capacity as Attorney General of California, et al., Defendants and Respondents. COUNTY OF RIVERSIDE Case No. RIC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR ISSUANCE OF PRELIMINARY INJUNCTION [CCP (a)] Date: March, Time: :0 a.m. Dept. 0 Judge: Hon. Randall S. Stamen i CASE NO. RIC

TABLE OF CONTENTS I. INTRODUCTION... II. FACTUAL AND PROCEDURAL SUMMARY... A. THE DEPARTMENT OF JUSTICE FORCES THROUGH ASSAULT WEAPONS REGISTRATION REGULATIONS, IN CONTRAVENTION OF THE ADMINISTRATIVE PROCEDURES ACT.... B. PLAINTIFFS AND MANY OTHER LAW-ABIDING FIREARM OWNERS FACE A LOOMING JUNE 0, REGISTRATION DEADLINE, BUT A HIGHLY FLAWED REGISTRATION SCHEME IN LIGHT OF THE CHALLENGED REGULATIONS.... III. ARGUMENT... A. PRELIMINARY INJUNCTION STANDARDS... B. PLAINTIFFS HAVE SHOWN A LIKELIHOOD OF PREVAILING ON THE MERITS, SINCE ALL OF THE DOJ S REGULATIONS WERE ISSUED IN VIOLATION OF THE APA.... C. PRELIMINARY INJUNCTIVE RELIEF IS NECESSARY TO PREVENT IRREPARABLE HARM TO INDIVIDUAL PLAINTIFFS AND THOSE SIMILARLY SITUATED..... Plaintiff Holt Should Not Have to Face Potential Criminal Liability for Failing to Register a Semi-Automatic Shotgun Since it is Not an Assault Weapon as Defined by the Legislature..... Plaintiff Louie Should Not be Denied the Ability If Not Statutory Duty to Register His Rifle as an Assault Weapon Under Pen. Code 000(b)()..... The Department s Self-Imposed Serialization Requirements Wrongfully Prevent Plaintiffs Russell and Stevens From their Ability to Register.... D. IN THE ALTERNATIVE, PLAINTIFFS REQUEST EXPEDITED SCHEDULING OF A HEARING ON THEIR PETITION FOR EXTRAORDINARY WRIT RELIEF.... IV. CONCLUSION... ii CASE NO. RIC

Cases TABLE OF AUTHORITIES Agnew v. State Bd. of Equalization () Cal.th... Alfaro v. Terhune (0) Cal.App.th... Anderson v. Superior Court () Cal.App.d... Butt v. State of California () Cal.th... California Advocates for Nursing Home Reform v. Bonta (0) Cal.App.th... Candid Enterprises, Inc. v. Grossmont Union High School Dist. () Cal.d... County of San Diego v. Bowen (0) Cal.App.th 0...,, County of San Diego v. State of California () Cal.th..., Ex parte Wall () Cal.... Hess Collection Winery v. Agricultural Labor Relations Bd. (0) Cal. App. th... Novar Corp. v. Bureau of Collection & Investigative Servs. () 0 Cal.App.d... Ontario Community Foundations, Inc. v. State Bd. of Equalization () Cal.d... People ex rel. Gallo v. Acuna () Cal.th 0... Prigmore v. City of Redding () Cal.App.th... SB Liberty, LLC v. Isla Verde Assn., Inc. () Cal.App.th...,, Take Me Home Rescue v. Luri () Cal.App.th..., Tidewater Marine Western, Inc. v. Bradshaw () Cal.th... Statutes U.S.C.... Cal. Code of Civ. Pro..... Cal. Code of Civ. Pro.... Cal. Code of Civ. Pro.... Cal. Code of Civ. Pro.... Cal. Gov. Code 0.... Cal. Pen. Code... Cal. Pen. Code... iii CASE NO. RIC

Cal. Pen. Code 0... Cal. Pen. Code... Cal. Pen. Code 0... passim Cal. Pen. Code 0... Cal. Pen. Code 000... Cal. Pen. Code 00... Cal. Pen. Code 0... Cal. Pen. Code 00..., Cal. Pen. Code 000...,,, Regulations Cal. Code of Regs.... Cal. Code of Regs. 0..., Cal. Code of Regs. 0... passim Cal. Code of Regs.... passim Cal. Code of Regs.... passim Cal. Code of Regs..... passim C.F.R..... iv CASE NO. RIC

I. INTRODUCTION This is an action by individuals and organizations, seeking combined declaratory, injunctive, and extraordinary writ relief necessary to remedy the heavy-handed and roughshod manner in which the Department of Justice has forced certain regulations pertaining to the registration of assault weapons (as defined by statute) upon the citizens of this State. The issue is a matter of grave concern to a large number of affected individuals, such that Plaintiffs herein seeking relief individually and in a representative capacity are requesting this Court to issue injunctive relief, enjoining defendants from enforcing or continuing to enforce certain of these regulations pertaining to the registration of bullet button assault weapons. Plaintiffs here demonstrate facts justifying preliminary injunctive relief, and maintenance of the status quo during the pendency of this litigation, as they, and many others similarly situated, will suffer irreparable injury if they are forced to comply with the registration requirement in accordance with the Challenged Regulations by the statutory deadline of June 0,. In essence, they and many others would either be illegally forced to register or illegally denied the ability to register their firearms. The situation requires immediate relief to prevent any further implementation or enforcement of several of the Challenged Regulations that pose particularized risks to Plaintiffs specifically at issue here are: Cal. Code of Regs. ( CCR ) 0(d),, subdivisions (c) and (g), and.. The balance of the equities weighs heavily in favor of granting this limited form of preliminary injunctive relief concerning these regulations. II. FACTUAL AND PROCEDURAL SUMMARY A. THE DEPARTMENT OF JUSTICE FORCES THROUGH ASSAULT WEAPONS REGISTRATION REGULATIONS, IN CONTRAVENTION OF THE ADMINISTRATIVE PROCEDURES ACT. Plaintiffs verified AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE RELIEF, AND PETITION FOR A WRIT OF MANDAMUS ( Am. Complaint ), incorporated by reference herein, exhaustively details all of the Challenged Regulations, the process leading up to their issuance in connection with the new assault weapon registration requirement, and Plaintiffs stake in the outcome of this litigation challenging the validity these regulations. In summary, these CASE NO. RIC

regulations have arisen after the Legislature enacted two pieces of legislation last year: Assembly Bill and Senate Bill 00. These bills changed certain definitions relating to magazines for semiautomatic rifles and pistols in Penal Code 0, thereby creating a new category of assault weapons. The Legislature added Penal Code sections 00 and 000(b) to create a registration requirement for continued possession of these newly-classified firearms. The statutory amendments became effective January,. The Department of Justice spent over six months forcing through its new assault weapons regulatory scheme. Its first attempt was at the end of December, when the DOJ filed an initial set of proposed regulations under a Notice Publication/Regulations Submission. The DOJ later and, without explanation, withdrew its submission on February,. Three months after that, on May,, the DOJ submitted a new notice under a separate file number, proposing substantially the same set of regulations, to be issued in file and print form, meaning without the traditional notice, comment, and oversight process under the APA. (Req. for Jud. Notice ( RJN ), Exh. B.) Initially, the Office of Administrative Law ( OAL ), which is duty-bound to ensure that any proposed agency regulations claimed to be exempt from the Administrative Procedures Act ( APA ) are in fact exempt, summarily rejected the DOJ s submission on June,. (RJN, Exh. C.) But then, on July,, the DOJ made a third submission again requesting file and print of materially the same regulations. (RJN, Exh. D.) This time, even though the regulations were substantively identical to the last set it had rejected, the OAL approved these regulations on July,, and filed them with the Secretary of State for publication. (RJN, Exh. E.) The DOJ began enforcing these regulations shortly thereafter. The DOJ had initially claimed that all these regulations were exempt from the public notice, comment, and oversight processes of the APA, pursuant to Penal Code 000(b)(). (RJN, Exh. B at p..) However, on November,, after the registration portal had opened and spurred public outcry, the DOJ submitted, this time for formal APA review, another regulation ( CCR 0) concerning the assault weapon definitional terms at the core of the same regulatory scheme it forced through as APA exempt. This proposed regulation would provide that [t]he definitions of terms in section of this chapter shall apply to the CASE NO. RIC

identification of assault weapons pursuant to Penal Code section 0. (RJN, Exh. G). Plaintiffs filed this action two weeks later, on November 0,, seeking declaratory, injunctive, and extraordinary writ relief from the Challenged Regulations that the DOJ forced through in contravention of the APA and the controlling substantive law. B. PLAINTIFFS AND MANY OTHER LAW-ABIDING FIREARM OWNERS FACE A LOOMING JUNE 0, REGISTRATION DEADLINE, BUT A HIGHLY FLAWED REGISTRATION SCHEME IN LIGHT OF THE CHALLENGED REGULATIONS. The ordinary, law-abiding owners of these grandfathered assault weapons determined conscientiously to follow the law initially had until January,, to register them. However, given the Department s problems in getting these regulations issued over the last year, the registration deadline was extended to before July,, by virtue of Assembly Bill. See Pen. Code 00(c), 000(b)(). Plaintiffs, and those similarly situated, now have until July,, to register. But many still face major problems in attempting to comply with the registration requirement, detailed in the supporting declarations, which Plaintiffs seek to remedy through this action. And, for most, immediate injunctive relief is necessary to avert irreparable harm that will occur if the DOJ s regulatory scheme is enforced as it stands. As discussed below, at least three situations in particular compel immediate injunctive relief. First, the operation of CCR 0(d), would force Plaintiff George Holt, and all those with bullet-buttoned shotguns, to register them as assault weapons, in direct contravention of the governing law, which does not include such shotguns within the statutory definitions of assault weapon. Second, CCR (c) would preclude the registration of any semiautomatic rifle (or pistol) that the DOJ considers to be featureless, as defined in CCR (o) (i.e., lacking the characteristics associated with that weapon ). As a result, all those whose semiautomatic rifles and pistols are currently configured in a featureless state but were previously configured as assault weapons sometime between January, 0 and December,, including Plaintiff Louie, would be barred from registering such firearms, even though the law literally requires registration based upon the firearms statutory status as assault weapons. CASE NO. RIC

Finally, CCR (g) and. preclude registration of any otherwise-eligible semiautomatic firearms that, like those belonging to Plaintiffs Russell and Stevens, bear serial numbers issued in accordance with federal law but do not bear a DOJ-issued serial number. This clashes directly with the Assault Weapons Control Act, under which a DOJ-issued serial number is either not required at all (see Pen. Code (c), expressly exempting from the DOJ-issued serial number requirement Plaintiff Stevens voluntarily registered firearm) or not required until after the assault weapon registration deadline (see 0(b)). Plaintiffs must now apply to this Court for the immediate relief necessary to prevent the irreparable injury that continued implementation and enforcement of these particular Challenged Regulations would otherwise cause during the pendency of this case. III. A. PRELIMINARY INJUNCTION STANDARDS ARGUMENT The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the action. SB Liberty, LLC v. Isla Verde Assn., Inc. () Cal.App.th, 0. The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or should not be restrained from exercising the right claimed by him. Ibid. A trial court must weigh two interrelated factors when deciding whether to grant a plaintiff s motion for a preliminary injunction: () the likelihood that the plaintiff will prevail on the merits at trial, and () the relative interim harm to the parties from the issuance or nonissuance of the injunction, that is, the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the preliminary injunction is issued. Ibid. (accord People ex rel. Gallo v. Acuna () Cal.th 0, 0.) Regarding the first factor, the plaintiff must show a reasonable probability it will prevail on the merits. Prigmore v. City of Redding () Cal.App.th,. The latter factor involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. Take Me Home Rescue v. Luri () Cal.App.th,. CASE NO. RIC

Generally, the greater the plaintiff s showing on one, the less must be shown on the other to support an injunction. SB Liberty, LLC, supra, Cal.App.th at 0 (quoting Butt v. State of California () Cal.th, ); see also Luri, supra, Cal.App.th at ( [t]he more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue ). Further, if the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that party s inability to show that the balance of harms tips in his [or her] favor. Luri, at -. It is also generally true that [a]n injunction cannot be granted... [t]o prevent the execution of a public statute by officers of the law for the public benefit. CCP, subd. (b)(). But this rule does not apply when the activity sought to be enjoined is an attempt to apply a statute or ordinance to conduct not within its terms or where the conduct sought to be enjoined does not fall within the terms of the statute. Novar Corp. v. Bureau of Collection & Investigative Servs. () 0 Cal.App.d,. And this goes to the heart of this case. In fact, [t]he rule against enjoining the execution of a public statute is subject to four judicially recognized exceptions: () where the statute is unconstitutional and there is a showing of irreparable injury; () where the statute is valid but is enforced in an unconstitutional manner; () where the statute is valid but, as construed, does not apply to the plaintiff; and () where the public official s action exceeds his or her authority. Alfaro v. Terhune (0) Cal.App.th, 0. And therefore, injunctive relief may be granted against illegal enforcement of valid statutes regardless of whether it may be otherwise generally enforceable under different circumstances, because where the enforcement of a statute may cause irreparable injury, the injured party may seek to enjoin its enforcement. Novar Corp., supra, at,. B. PLAINTIFFS HAVE SHOWN A LIKELIHOOD OF PREVAILING ON THE MERITS, SINCE ALL OF THE DOJ S REGULATIONS WERE ISSUED IN VIOLATION OF THE APA. Plaintiffs have shown, and will show, entitlement to permanent injunctive relief as to all of the Challenged Regulations, due to the DOJ s attempts to bypass the requirements of the APA, as alleged in Plaintiffs first cause of action. [N]o state agency shall issue, utilize, CASE NO. RIC

enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation... unless it does so pursuant to the APA. County of San Diego v. Bowen (0) Cal.App.th 0, ; Gov. Code 0., subd. (a).) One purpose of the APA is to ensure that those persons or entities whom a regulation will affect have a voice in its creation [ ], as well as notice of the law s requirements so that they can conform their conduct accordingly [ ]. The Legislature wisely perceived that the party subject to regulation is often in the best position, and has the greatest incentive, to inform the agency about possible unintended consequences of a proposed regulation. Moreover, public participation in the regulatory process directs the attention of agency policymakers to the public they serve, thus providing some security against bureaucratic tyranny. California Advocates for Nursing Home Reform v. Bonta (0) Cal.App.th, 0-0 (quoting Tidewater Marine Western, Inc. v. Bradshaw () Cal.th, -.) The DOJ s sole justification for completely skirting the APA in promulgating the Challenged Regulations as APA-exempt, file and print regulations was the language of section 000(b)(), which provides (italics added): The department shall adopt regulations for the purpose of implementing this subdivision. These regulations are exempt from the Administrative Procedure Act... (RJN, Exh. B at ; Exh. D at p..) Defendant s finding about the need for compliance with the APA, however, is not entitled to any judicial deference, Bonta, supra, Cal.App.th at 0, and it is decidedly wrong. This subdivision of section 000 does nothing more than establish and thus permit adoption of regulations outside the APA for the purpose of implementing an Internet-based registration system that collects statutorily-described information about the newly classified assault weapons under section 0 in exchange for a fee that does not exceed the reasonable processing costs of the department. Pen. Code 000, subd. (b)()-(b)(). It provides no authority to alter, amend, or most importantly, expand the substantive law As the Bonta court explained: courts must review wholly de novo the propriety of the decisionmaking criteria utilized by agencies when they make rules, and issues concerning compliance by agencies with applicable procedural requirements... Ibid. at 0. CASE NO. RIC

concerning these newly classified assault weapons. It is well settled that any rulemaking power delegated to an agency is inherently limited: When a statute confers upon a state agency the authority to adopt regulations to implement, interpret, make specific or otherwise carry out its provisions, the agency s regulations must be consistent, not in conflict with the statute, and reasonably necessary to effectuate its purpose. County of San Diego v. State of California () Cal.th, 0. Thus, the agency has no power to exceed the scope of authority conferred, Agnew v. State Bd. of Equalization () Cal.th,, nor to promulgate a regulation which is inconsistent with the governing statute, Ontario Community Foundations, Inc. v. State Bd. of Equalization () Cal.d,. And, even if an agency action is consistent with its authorizing statutes, the action may still be deemed void if it conflicts with another statute. Bowen, Cal.App.th at 0. As detailed in the Am. Complaint ( -), the Challenged Regulations are rife with conflicts in the core provisions of the regulatory scheme that contradict both themselves and the governing statutory law concerning which semiautomatic firearms are subject to the new registration requirements. And moreover, spotlighting the mess the DOJ has created in pushing through these regulations with no accountability to the affected public is its post hoc submission of itself to the APA oversight process in its recent proposal to add CCR 0, for the purpose of specifically providing that the assault weapons definitions it previously promulgated outside the APA apply for all purposes of enforcing the law s control over such firearms. The DOJ is now forced to admit that any regulations having such an effect could only be promulgated pursuant to the general rulemaking authority under Penal Code 0(c), which expressly requires APA compliance. (RJN, Exh. G, Notice of Proposed Rulemaking at - As a matter of basic statutory construction, the DOJ s definitions already have this effect, i.e., they apply [f]or purposes of Penal Code section 000 ( CCR ). Section 000 s registration requirement is part and parcel of the AWCA s enforcement provisions, such that a failure to comply with that requirement in accordance with the regulations would constitute a crime under section 00(a) s proscription against possession of an assault weapon except as provided in the AWCA. See also CCR ( The provisions of these regulations shall apply to assault weapons as defined in Penal Code section 0 and as specified pursuant to Penal Code section 0... ) CASE NO. RIC

; Initial Statement of Reasons at.) By subjecting to APA oversight a regulation that has substantively the same effect as the Challenged Regulations promulgated by fiat, the DOJ has effectively conceded those regulations must comply with the APA. As such, in addition to being void for contravening the governing law, Bowen, supra, Cal.App.th at 0, the DOJ s failure or refusal to comply with the APA at the outset itself renders these regulations void ab initio, see id. at 0 ( regardless of the wisdom of, or necessity for, the postelection manual ballot tallying requirements, they are void under California law due to the Secretary [of State] s failure to adhere to the procedures set forth in the APA because such requirements are subject to the APA). Thus, the reasonable probability of Plaintiffs success on the merits of this issue is undeniable, and as discussed next, the irreparable harm they face come July,, being forced to comply with illegal regulations on pain of criminal sanction after being completely deprived of any opportunity for prior notice or comment about their impact is palpable. SB Liberty, LLC v. Isla Verde Assn., Inc., supra, Cal.App.th at 0. The balance of the equities heavily weighs in favor of a preliminary injunction against the scheme as a whole. Ibid. C. PRELIMINARY INJUNCTIVE RELIEF IS NECESSARY TO PREVENT IRREPARABLE HARM TO INDIVIDUAL PLAINTIFFS AND THOSE SIMILARLY SITUATED. As detailed in the second cause of action of the Amended Complaint ( -), the Challenged Regulations are further substantively invalid on the whole because they individually and collectively work to expand or alter the new and pre-existing categories of assault weapons under the AWCA and are otherwise not reasonably necessary to effectuate the purpose of the law. County of San Diego v. State of California, supra, Cal.th at 0. This illegality extends to certain regulations that will undeniably cause direct and substantial injury to Plaintiffs Holt, Louie, Russell, and Stevens, and all those similarly situated. Thus, preliminary injunctive relief is necessary to enjoin further operation of these regulations, specifically: CCR 0(d),, subdivisions (c) and (g), and.. CASE NO. RIC

. Plaintiff Holt Should Not Have to Face Potential Criminal Liability for Failing to Register a Semi-Automatic Shotgun Since it is Not an Assault Weapon as Defined by the Legislature. Plaintiffs seek first to enjoin enforcement of CCR 0(d) on the grounds that this regulation improperly expands the scope of what actually constitutes an assault weapon. Specifically, Plaintiff Holt is the legal owner of a Saiga- shotgun, which is a commonly-owned type of semi-automatic shotgun featuring a box (rather than tube) magazine. (Holt Decl.,.) The Saiga- has a traditional pistol grip, but it does not have a folding or telescoping stock, and therefore, it does not meet (and has never met) the definition of an assault weapon under Penal Code 0(a)(), as it does not have both of those features. (Id.,.) Because its shells are fed with a box magazine, under prior statutes Plaintiff Holt s Saiga- was necessarily configured with a bullet button device which prevents that magazine from being manually released without the use of a tool, such as a bullet. (Id., ; see Complaint, at p., fn..) This device therefore prevents the firearm from being a semi-automatic shotgun that has the ability to accept a detachable magazine. Indeed, DOJ s definition of detachable magazine (at CCR (m)) would directly contradict any application of CCR 0(d) to Plaintiff Holt and thousands of similarly-situated shotgun owners, since the DOJ itself defines that term as: any ammunition feeding device that can be removed readily from the firearm without disassembly of the firearm action or use of a tool. A bullet or ammunition cartridge is considered a tool As such, and again, Plaintiff Holt s shotgun is not and has never been classified as an assault weapon under 0(a)(). The DOJ, however, has taken it upon itself to re-write a law that the Legislature declined to, and has thus decreed that all semi-automatic shotguns, such as Plaintiff Holt s Saiga-, equipped with bullet buttons, are assault weapons which must also be registered by July,. The DOJ s regulation, CCR 0(d), expressly states: A semiautomatic shotgun with an ammunition feeding device that can be readily removed from the firearm with the use of a tool, commonly referred to as a bullet-button weapon, is included in the category of firearms that must be registered. CASE NO. RIC

This action by the DOJ is unwarranted and illegal for several reasons. First, as stated, the Legislature has never classified a shotgun equipped with a bullet button as an assault weapon. In fact, it was by virtue of the bullet button that it has always fallen outside of the traditional, legislatively-crafted definition of an assault weapon because it did not have the ability, by itself, to accept a detachable magazine. And when the Legislature changed the definition of assault weapon in by enacting SB 0 and AB, to include firearms with fixed magazines (a term now specifically defined by 0(b)), it did not alter the definition of assault weapon as it pertains to semiautomatic shotguns. However, by requiring registration of this firearm, and other similar semi-automatic shotguns, the DOJ is creating potential criminal liability for Plaintiff Holt, and for many others similarly situated (i.e., those who have similar semi-automatic shotguns equipped with bullet button devices) for failing to register such firearms. The DOJ has clearly overstepped its authority. It is axiomatic that only the Legislature can define clear bounds of criminal conduct, and cannot effectively outsource this duty to regulatory whim. Otherwise, the result is the creation of criminal laws and criminal consequences without legislative accountability to the People. Ex parte Wall () Cal., ( The Legislature cannot transfer to others the responsibility of deciding what legislation is expedient and proper, with reference either to present conditions or future contingencies. ); Hess Collection Winery v. Agricultural Labor Relations Bd. (0) Cal. App. th, 0 ( the legislative body must itself effectively resolve the truly fundamental issues. It cannot escape responsibility by explicitly delegating that function to others or by failing to establish an effective mechanism to assure the proper implementation of its policy decisions ). And the Legislature has already drawn clear parameters around the new category of assault weapons. That category is expressly limited to those firearms with characteristics defined by Pen. Code 0(a). The Legislature did not, and could not, effectively delegate its duty to establish the clearly-defined characteristics of firearms that require assault weapon registration, and the Department could not properly attempt to exercise this purely Legislative function in any event. CASE NO. RIC

This is not a mere matter of administrative inconvenience for those affected. Should Plaintiff Holt be forced to register the shotgun as an assault weapon under California law, he and that firearm would be forever bound to the stringent rules regulating [actual] assault weapon possession, transportation, sale, loan, and inheritance. In fact, after his passing, it would have to be surrendered to the State. See Pen. Code 000, 0. This would constitute a deprivation of a substantial interest in Plaintiff s personal property which the Department has purported to effect by regulatory fiat alone. And moreover, Plaintiff Holt should not be required to register the shotgun because the very information that the DOJ seeks to include in its database is already on file, within a separate registry. By virtue of Assembly Bill 0 (), Plaintiff Holt was already required to furnish to the DOJ all personal and transactional information for use in its registry, including his full name and all names ever used, address, place of birth, complete telephone number, occupation, and sex, as well as complete firearm information, all of which was required by Pen. Code. (Holt Decl.,.) Plaintiff therefore objects to the unnecessary, costly and intrusive nature of the registration process now being required (again), this time as an assault weapon, and he should not have to pay registration fees, and provide redundant personal information already on file (id.) none of which is reasonably necessary. Of course, even though the DOJ already has the information on file, the stakes are now even higher. This time, any perceived or alleged failure on Plaintiff s part to comply with the DOJ s onerous registration process (including, for example, taking subjectively suitable photographs with DOJ-approved lighting), and any refusal by the DOJ to accept the submission, by July, could potentially result in: the alleged failure to register a DOJ-defined assault weapon, and his facing potential criminal liability therefor, or result in confiscation/surrender of the shotgun. (Holt Decl.,.) Thus, and unless the DOJ is enjoined, Plaintiff Holt will suffer irreparable injury by being required to register a firearm that is not an assault weapon. (Holt Decl..) Plaintiffs demonstration of a likelihood of success on the merits of their challenge to the legality of the regulatory scheme as a whole and the balance of the equities weigh heavily in favor of granting CASE NO. RIC

limited preliminary injunctive relief against the enforcement of CCR 0(d).. Plaintiff Louie Should Not be Denied the Ability If Not His Statutory Duty to Register His Rifle as an Assault Weapon Under Pen. Code 000(b)(). Plaintiffs next seek to preliminarily enjoin the enforcement of CCR (c), which prevents Plaintiff Michael Louie, and many thousands of others similarly situated, from exercising their ability if not their statutory duty to register their weapons currently configured as featureless rifles. This section specifically provides that [t]he Department will not register a firearm as an assault weapon if the firearm is featureless[...]. Plaintiff Louie has been the owner of two Registered Assault Weapons (RAWs) since 0. (Louie Decl.,.) He has also owned, prior to December,, a bullet-button assault weapon which was so configured prior to. (Id., ). It is his desire to register this firearm in order to comply with the law, specifically, Penal Code 000(b)() which states: Any person who, from January, 0 to December,, inclusive, lawfully possessed an assault weapon that does not have a fixed magazine, as defined in Section 0, including those weapons with an ammunition feeding device that can be readily removed from the firearm with the use of a tool, shall register the firearm before July, [.] (Emphasis added.) (Louie Decl.,.) However, in its current configuration, his rifle is in a featureless condition; that is, it currently lacks the statutory-defined characteristics under Pen. Code 0 (e.g., a pistol grip., flash hider, etc.) that would make it an assault weapon by features alone. See CCR (o). And thus, the Department s regulation, (c), actively operates to prevent Plaintiff Louie from registering this legally-owned firearm one he lawfully possessed before December,, in a configuration the statutes consider an assault weapon in contravention of the evident statutory duty to do so. Such firearms are subject to registration as assault weapons according to the language of the law due to their previous configuration as such before December,. Pen. Code 000(b)() (applying the registration requirement to all such firearms lawfully possessed in that configuration any time prior to December, ). Therefore, and unless the Department is enjoined, Plaintiff Louie and thousands of CASE NO. RIC

similarly-situated gun owners will suffer irreparable injury by being completely denied the ability and opportunity to register a firearm that was, during the requisite time, an assault weapon. And in the absence of such registration, Plaintiff Louie is exposed to potential criminal liability for failure to register his firearm as required by the statutes. Immediate relief is requested, since the DOJ will not accept his registration prior to July,, and no further registrations will be accepted after that.. The Department s Self-Imposed Serialization Requirements Wrongfully Prevent Plaintiffs Russell and Stevens From their Ability to Register. Finally, Plaintiffs Russell and Stevens face similar exposure to potential criminal liability this time completely unnecessarily at the hands of the DOJ, which refuses to allow registration of any Firearm Manufactured by Unlicensed Subject (FMBUS) unless a DOJ-issued serial number is first applied to it. CCR (g) states that [t]he Department will not register as an assault weapon a FMBUS if the firearm does not have a serial number assigned by the Department and applied by the owner or agent pursuant to section.. And section. further lays out the entire scheme by which a legal owner of a home-built firearm (i.e., a FMBUS) must apply for and wait to obtain a Department-issued serial number before registration will be permitted. Plaintiff Rick Russell legally owned and constructed such a self-built firearm which has been retroactively defined as an assault weapon pursuant to Pen. Code 0(a). (Russell Decl.,.) When he built the firearm from an 0% receiver (a non-firearm, unregulated object that possesses some, but not all, characteristics of a fully-machined firearm receiver) and in full compliance with then-existing laws, he engraved a serial number and other identifying information according to federal regulations, i.e., C.F.R... (Id.) At the time, there were no existing state law requirements for serialization of such firearms. (Id.) Likewise, Plaintiff Craig Stevens, who actually did apply for a Department-approved serial number shortly after the regulations were published, was denied a serial number, and was advised that the Department was not (yet) issuing serial numbers. (Stevens Decl.,.) Before he left for his active duty military deployment, he had the firearm engraved according to federal regulations CASE NO. RIC

and even voluntarily registered the firearm with the DOJ using the Firearm Ownership Report (voluntary registration) form, which the DOJ approved. (Id.,.) However, he is now being denied the ability (or his statutory duty) to register this known weapon as an assault weapon. Plaintiffs, and many others similarly situated who have built firearms from 0% receivers over the past decades are required to and desire to register their firearms in order to comply with statutory law. However, the Department s regulations, which were promulgated after Plaintiff Russell serialized and engraved the receiver in accordance with federal law, and even before Plaintiff Stevens was denied his registration, now permit registration only if the firearm bears a Department-issued serial number. (Russell Decl., ; Stevens Decl, ; CCR..) As a result, Plaintiffs and others are being prevented from registering legally-owned firearms that were properly serialized in accordance with the only existing (federal) regulations at the time. (Id.) Moreover, in order for Plaintiff Russell to follow the process set forth in section., he would have to permanently damage the firearm, and he would arguably be altering, obliterating, or removing a manufacturer s serial number in contravention of federal and state law. See U.S.C. (k); Pen. Code. Thus, and unless the Department is enjoined, Plaintiffs Russell, Stevens, and thousands of others will suffer irreparable injury by being denied their ability (or statutory duty) to register firearms classified as subject assault weapons under the statutes. Immediate relief is requested, since the Department will not allow Plaintiffs registrations prior to July,, and will not accept any registrations thereafter. D. IN THE ALTERNATIVE, PLAINTIFFS REQUEST EXPEDITED SCHEDULING OF A HEARING ON THEIR PETITION FOR EXTRAORDINARY WRIT RELIEF. As an alternative form of relief, Plaintiffs here would respectfully request that the Court advance or expedite a scheduled hearing, in its discretion, on Plaintiffs declaratory, injunctive, and extraordinary writ claims, on the same grounds: that Plaintiffs have shown, or will likely show, irreparable injury if these important matters are not adjudicated, and the Department is not enjoined from implementing and enforcing the registration requirement in accordance with the Challenged Regulations by July,. As shown, this deadline would prevent many thousands CASE NO. RIC

of conscientious, law-abiding citizens from registering firearms who should be allowed to do so (e.g., Plaintiffs Louie, Russell, and Stevens), and improperly compel others to register when they should not have to (e.g., Plaintiff Holt.) The imminence and importance of this looming deadline is strikingly depicted at the Department of Justice Firearms Bureau s own website with its dramatic splash-page countdown timer to demarcate the TIME REMAINING TO REGISTER ASSAULT WEAPONS. Speedy and immediate relief is therefore required. Plaintiffs claims here, which are primarily for declaratory and injunctive relief, are first entitled to discretionary trial setting priority under Code of Civ. Pro..(b). Plaintiffs should further be entitled to speedy and priority setting of their claims for extraordinary writ relief as well, since mandamus relief is appropriate where there is no plain, speedy, and adequate remedy in the ordinary course of law. Candid Enterprises, Inc. v. Grossmont Union High School Dist. () Cal.d,, fn. (citing CCP ). If and when the defendants file a timely return to the petition, should it raise only questions of law or put in issue immaterial statements not affecting the substantial rights of the parties, the court must proceed to hear the case or set a day for hearing arguments. See CCP. Moreover, Plaintiffs note that mandamus relief is appropriate, even if other writ relief is available, when the issues presented are of great public interest and must be resolved promptly. Anderson v. Superior Court () Cal.App.d, (emphasis added, string citations omitted). Plaintiffs, and untold numbers of similarly-situated legal owners of so-called bullet button assault weapons, have demonstrated the need for clear, well-understood, logical, and internally consistent regulations, especially when the Department has publicly pronounced the severe consequences that may result from failing to register these firearms in accordance with its regulations even as it continues to prevent law abiding and eligible people from doing so. IV. CONCLUSION This Court should issue preliminary injunctive relief enjoining any further operation of CCR 0(d),, subdivisions (c) and (g), and.. Alternatively, this matter should be scheduled for expedited adjudication as soon as reasonably practicable before June,. CASE NO. RIC

Dated: January, SEILER EPSTEIN ZIEGLER & APPLEGATE LLP George M. Lee LAW OFFICES OF RAYMOND MARK DIGUISEPPE, PLLC Raymond M. DiGuiseppe SEILER EPSTEIN ZIEGLER & APPLEGATE LLP CASE NO. RIC