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JAl(JN, 23. 2033 6:O2PM TRUT9NICH_hICHEL, LLF’ 3tD-e-4€.9495 P.
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C.D. Michel - S.B.N. 144258TRUTANICH ‘MICHEL, LLPPort ofLs Angeles407 North Harbor BouievaxdSan Pcdro, California 90731(310) 548-0410
Stephen P. HaibrookLAW OFFICES OF STEPhEN P. HALBROOK10560 Main Street., Suite 404Fairfax, Virginia 22030(703) 352-7276
Don B. Kates - S.B.N. 039193BENENSON & KATES22608 North Bast 269th Avenueatt1egrou31d) Washington 98604(360) 666-2688
EDWA1D W, HUNT, in his omcialcapacity as District Attorney of FresnoCounty, and in his personal capacity as acitizen and taxpayer, et, al.,
Plaintiffs,
Defendants.
CASE NO. O1CECGO3182
MEMORANDUM OF POINTS ANDAUTHORITIES IN OPPOSON TODEFENDANTS’ DEMLTRRKR TO FIRSTAMENDED COMPLAINT
Date: February 19, 2003Time: 3:30 p.m.Dept: 72
OPPOSITION TO DEMURRER
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— C...”- ‘D’COURT
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Attorncy for Plaintilfs
N TIlE SUPERIOR COIIRT OF THE STATE OF CALWORNIA
IN AND FOR THE COUTrY OF FRESNO
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V.
STATE OF CALIFORNJA, ci. aL,
fiLED BY AX
1 TABLE OF CONTENTS
2 PAGE
3 Table of Authorities ii
4 INTRODUCTION 1
5 I. CAUSES OF ACTION AND JUSTICIABIIJTY 2
6 A. Even If Government Code Section 11350 Precludes Constitutional Attacks onRegulations, Plaintiffs Can Maintain Such an Attack under the Federal Civil Rights
7 Act 2
8 B. Plaintiffs Have Standing and the Issues Are Ripe for Adjudication 3
9 1. Public Official Enforcement Dilemma — Standing and Ripeness Exist Where PublicOfficials Allege They Are Tasked with Enforcing Provisions They Deem
10 Unconstitutional 3
11 2. Ripeness and Standing Exist Since Individuals and Businesses Are Being Coercedinto Surrendering Their Due Process Property Rights by Otherwise
12 Unconstitutional or Invalid Criminal Laws 4
13 3. The Case Is Ripe Because the Challenged Provisions Threaten Plaintiff FirearmDealers and Registrants with Economic Injury 6
144. Defendants Have the Matter Diametrically Backwards When They Demand that
15 Plaintffs Establish the Existence of Prosecutions under the Provisions TheyChallenge 8
165. Firearm Owners and Dealers Have Standing, and the Controversy is Ripe, Because
17 of The Threat of Prosecution 9
18 6. Ripeness and Standing Also Exist Because Plaintiffs Include Associations WhoseTens of Thousands of Members Are Subject to Possible Prosecution 13
19II. INDIVIDUAL CLAIMS 14
20A. Defendants Cannot Raise Demurrers to the First through Third Causes of Action by
21 Contradicting Their Fact Allegations 14
22 B. Causes of Action Four through Six Properly Invoke Defendants’ Duty to SuperviseLaw Enforcement in General and Particularly to Administer the AWCA 15
23ifi. STRICT REVIEW IS REQUIRED, GIVEN THAT THE AWCA IMPOSES
24 SEVERE CRIMINAL PENALTIES BASED ON MERE NEGLIGENCEWITHOUT SCIENTER 16
25CONCLUSION 22
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OPPOSITION TO DEMURRER
1 TABLE OF AUTHORITIES
2 PAGj{S
3 FEDERAL CASES
4 Babbitt v. United Farm Workers National Union (1979) 442 U.S. 289, 302 10, 14
5 Board of Education v. Allen (1968) 392 U.S. 236 4
6 Central Arizona Water Conservation District v. U.S. Environmental Agency(9th Cir. 1993) 900 F.3d 1531, 1537, 1538 6
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8 City of Chicago v. Morales (1999) 527 U.S. 41 19
9 Coalition of New Jersey Sportsmen v. Whitman (D. N.J. 1999) 44 F. Supp.2d 666 7
10 Colautti v. Franklin (1979) 439 U.S. 379 17, 21
11 Craig v. Boren (1976) 429 U.S. 190, 194-96 5, 7
12 Damico v. State of California (1967) 389 U.S. 416 2
13 Doev.Bolton(1973)410U.S.179,188 10
14 Forbes v. Napolitano (9th Cir. 2000) 236 F.3d 1009 19, 20
15 General Motors Corp. v. Tracy (1997) 519 U.S. 278, 286-87 5
16 International Society For Krishna Consciousness v. Eaves(5th Cir. 1979) 601 F.2d 809, 819, fn. 6 10
17Kolenderv. Lawson (1983) 461 U.S. 352, 353-54 18,19
18Lanzettav. New Jersey (1939) 306 U.S. 451, 452-53 16,18
19Leverettv. City of Pinellas (llthCir. 1995) 775 F.2d 1536, 1539 11
20Lynch v. Household Finance Corp. (1972) 406 U.S. 538 5
21Mack v. United States (9th Cir. 1995) 66 F.3d 1025 4
22Matthias v. Bingley (5th Cir. 1990) 906 F.2d 1047, 1048, 1051 5
23National Collegiate Athletic As&n v. Califano (10th Cir. 1980) 622 F.2d 1382, 1389 7
24National Rifle Association of America v. Magaw (6th Cir. 1997) 132 F.3d 272, 280-83 6
25New Hampshire Right to Life Political Action Comm. v. Gardner
26 (lstCir. 1996) 99 F.3d 8,17 10,11
27 North Georgia Finishing v. Di-Chem (1985) 419 U.S. 601 6
28 Papachristou v. Jacksonville (1972) 405 U.S. 156, 164 16
11
OPPOSITION TO DEMURRER
1 TABLE OF AUTHORITIES. Cont.
2 PAGE(S)
3 Pennell v. City of San Jose (1988), 485 U.S. 1, 8 14
4 Peoples Rights Organization v. City of Columbus (6th Cir. 1998) 152 F.3d 522 . 6, 11, 12, 21, 22
5 Postscript Enterprises v. Whaley (8th Cir. 1981) 658 F.2d 1249, 1252 6
6 Printz v. United States (D. Mont. 1994) 854 F. Supp. 1503, 1508 4
7 Printz v. United States 521 U.S. 898 4
8 San Diego County Gun Rights Committee v. Reno (9th Cir. 1996) 98 F.3d 1121, 1130 .... 6, 13
9 Springfield Armory v. City of Columbus (6th Cir. 1994) 29 F.3d 250, 251 20, 21
10 Sullivan v. Town of Salem (2nd Cir. 1986) 805 F.2d 81, 84 5
11 United States v. Cardiff (1952) 344 U.S. 174, 174-75 17
12 United Statesv. L. Cohen Grocery Co. (1921) 255 U.S. 81,89 17
13 United States v. Ragen (1942) 314 U.S. 513, 524 17
14 United States v. Students Challenging Regulatory Agency Procedures (1973) 412 U.S. 669 ... 7
15 Village of Hoffhian Estates v. Flipside Hoffman Estates, Inc.(1982) 455 U.S. 489, 492 17, 18, 20, 21
16Winters v. New York (1948) 333 U.S. 507, 515 17
17
18STATE CASES
19Bach v. City of Butte (1983) 147 Cal.App.3d 554, 561 3
20Bryte v. City of La Mesa (1989) 207 Cal.App.3d 687 5
21In re Jorge M. (2000) 23 Cal.4th 866 1, 21
22Harrott v. County of Kings (2001) 25 Cal.4th 1138 2, 14
23National Audubon Societyv. Superior Court (1983)33 Cal.3d 419, 433, fn. 14 14
24People v. Beck (1994) 25 Cal.App.4th 1095, 1102 5
25People v. Heitzman (1994) 9 Cal.4th 189, 199 18
26Williams v. Horvath (1976) 16 Cal.3d 834, 838 3
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OPPOSITION TO DEMURRER
1 TABLE OF AUTHORITIES, Cont.
2 PAGE(S1
3 FEDERAL STATUTES
4 18 United States Code section 922(v) 12
5 Title 42 United States Code section 1983 (hereafter section 1983) 2, 5
6 STATE REGULATIONS
7 Pen. Code, § 12280(a) 11
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ivOPPOSITION TO DEMURRER
1 Plaintiffs hereby oppose Defendants’ Demurrer to Plaintiffs’ First Amended Complaint.
2 INTRODUCTION
3 Plaintiffs’ amended complaint now challenges portions of Senate Bill No. 23 (1999-2000
4 Reg. Sess.) (hereafter S.B. 23) and defendants’ actions (and some inaction) in implementing S.B.
5 23. The challenges comprise of three interrelated grounds. First, inconsistency with specific parts
6 of the laws involved. Second, creating confusions that are inconsistent with the mens rea standard
7 for these laws. (In re Jorge M (2000) 23 Cal.4th 866 [firearm owners must undertake reasonable
8 inquiry (only) to determine if their arms fall under the law].) Third, violation of due process
9 requirements of certainty.
10 Among the unusual aspects of this case are that plaintiffs include not only ordinary citizens
11 and merchants affected by the laws, but also district attorneys and a police association whose
12 members are charged with enforcing the laws, as well as taxpayers. Moreover, plaintiffs do not
13 necessarily seek to have the laws invalidated in whole or in part. The relief sought is that the
14 Court invalidate them or (preferably) declare what the laws mean in certain respects or order
15 defendants to issue or revise clarifying regulations.
16 Tn a recent opinion the Supreme Court recognized the Legislature’s concern with the
17 difficulties for police and prosecutors in deciding which firearms the highly complex assault
18 weapon law (hereafter AWCA) covers; wherefore defendants have been charged by the
19 Legislature to provide clear explanations thereof.’ The Court itself strongly emphasized an even
20 more vital consideration when it quoted (adding emphasis to) the following from a Senate
21 Judiciary Committee Report:
22 [N] o public interest is served by punishing a large class of individuals forfailureto perform [the registration duty imposed by the A WCA] due to insufficient
23
24Harrott v. County ofKings (2001) 25 Cal.4th 1138, 1144 “The legislative history of the
25 amendments to the [AWCA] reveal strong concern that law enforcement personnel be clearly advised [bythe Attorney General and/or DOJJ which firearms are ‘assault weapons’ within the meaning of the
26 [AWCA] so as to prevent the erroneous confiscation of legal weapons.” (Quotation from the court ofappeal opinion; ellipses by Supreme Court). At footnote 4 the Supreme Court quoted a legislator
27 emphasizing the need for clarification by defendants because “Unfortunately, a great many law
28enforcement officers who deal directly with the public are not experts in specific firearms identification.”(Id. at 1147 &fn. 4.)
1OPPOSITION TO DEMURRER
1 disclosure ofthe law. Certainly, respectfor law is not served by the punishment ofindividuals lacking an opportunity to know its terms and conditions.
2(Harrott v. County ofKings (2001) 25 Cal.4th 1138, 1151, italics by Supreme Court.)
3
4 Regrettably, the new AWCA registration period expired on Dec. 31, 2000 -- just 27 days
5 after defendants belatedly issued the interpretive regulations that were supposed to clarify how
6 owners could identify the firearms that needed to be registered. Even more regrettably, these
7 regulations still failed to clarify many crucial issues and even added confusion where the law itself
8 was relatively clear. One form of relief plaintiffs seek is judicial reopening of the registration
9 period to allow owners to conform to the law after the law has been adequately clarified.
10
11 I.
12 CAUSES OF ACTION AND JUSTICIABILITY
13 Contrary to defendants’ mischaracterization, the amended complaint differs from its
14 predecessor in important respects which directly respond to concerns raised by this court’s
15 rejection of plaintiffs’ motion for preliminary injunction.
16
17 A. Even If Government Code Section 11350 Precludes Constitutional Attacks onRegulations, Plaintiffs Can Maintain Such an Attack under the Federal Civil Rights
18 Act.
19 One ground on which this court denied the preliminary injunction was that plaintiffs may
20 only attack the validity of the “flash suppressor” regulation via Government Code sectioni 1350.
21 (It bears emphasis that causes of action 3-6 are not subject to that objection since they do not
22 attach regulations but rather assert that regulations are necessary to assure the constitutionality of
23 otherwise invalid statutes.)
24 Tn any event, in addition to the prior state claims the amended complaint joins a federal
25 attack on the validity of the regulation and laws under Title 42 United States Code section 1983
26 (hereafter section 1983), the federal Civil Rights Act. There is no doubt plaintiffs may sue under
27 sectionl983 to invalidate either state regulations, state statutes, or both. (See, e.g., Damico v.
28 State of California (1967) 389 U.S. 416.) Equally clear is that a section 1983 plaintiff may bring
2OPPOSITION TO DEMURRER
1 the case in state court -- and that such a case is not subject to state law restrictions. Thus, even if
2 Government Code section 11350 would bar plaintiffs from litigating such claims against the
3 regulation as a matter of state law, it is no bar to the sectionl983 case. (Williams v. Horvath
4 (1976) 16 Cal.3d 834, 838 [California tort claims requirement cannot bar section 1983 suit against
5 city], Bach v. City ofButte (1983) 147 Cal.App.3d 554, 561 [even if suit is barred by California
6 substantive law, state court must deny demurrer if complaint states claim under federal law].)
7
8 B. Plaintiffs Have Standing and the Issues Are Ripe for Adjudication.
9 Defendants concede standing,2but contend the case is unripe. Because standing and
10 ripeness both involve considerations of injury-in-fact, courts generally consider them together, an
11 example we follow. The plaintiffs here include District Attorneys, firearms businesses, firearm
12 owners, and associations which represent the interests of such persons. Those subject to the law
13 allege they are injured whether they comply with the law(s) and regulation(s) or violate them. For
14 the reasons set out as to each sub-category of plaintiffs below, these allegations establish both
15 standing and the ripeness of their challenge to these provisions.
16
17 1. Public Official Enforcement Dilemma — Standing and Ripeness Exist WherePublic Officials Allege They Are Tasked with Enforcing Provisions They
18 Deem Unconstitutional.
19 Plaintiff public officials allege that they cannot ascertain what the laws and regulations
20 involved here mean and so cannot meet their constitutional and legal obligations to enforce only
21 valid laws, not unconstitutional ones. (Amended complaint ¶J 2-4, 6, 8, 28, 34, 44, 50, 55, 61, 68,
22
232 Defendants must, and do, concede plaintiffs have standing under both federal and state law
(Defendants’ Memorandum of Points & Authorities in Support of Demurrer at 12.: 11) As to their state24 law claims, in addition to their personal stake, plaintiffs are alleged to be citizens and taxpayers. Both
taxpayers and citizens have standing for their state law attacks on the statutes and regulations as25 unconstitutional on their face and as applied. (Connerly v. State Personnel Board (2001) 92 Cal.App.4th
16, 29; see also Arrieta v. Mahon (1982)31 Cal.3d 381, 386, Common Cause v. Board ofSupervisors26 (1989) 49 Cal.3d 432, 439, Green v. Obledo (1981) 29 Cal.3d 126, 144.) Moreover, both the citizen
mandamus and taxpayer concepts are to be liberally construed to maximize the authority of the courts to27 entertain challenges to the legality of governmental conduct. (See, e.g. League of Women Voters v. Eu
28(1992)7 Cal.App.4th 649, 657, fn. 4 and CaliforniaAss’n. for Public Education v. Brown (1994)30Cal.App.4th 1264, 1281.)
3OPPOSITION TO DEMURRER
1 73, 85-86.) Board ofEducation v. Allen (1968) 392 U.S. 236, was an action brought by officials
2 to challenge a statute they were charged with administering but which they asserted violated the
3 Establishment Clause. The opinion held the case justiciable based on the theory plaintiffs rely on
4 here:
5 Appellees do not challenge the standing of appellants to press their claim inthis Court. Appellants have taken an oath to support the United States
6 Constitution. Believing § 701 to be unconstitutional, they are in the position ofhaving to choose between violating their oath and taking a step--refusal to comply
7 with § 701--that would be likely to bring their expulsion from office and also areduction in state funds for their school districts. There can be no doubt that
8 appellants thus have a “personal stake in the outcome” of this litigation.3
9 Based on the Allen precedent, chief law enforcement officers were held to have presented a
10 justiciable controversy in their challenge to a federal mandate that they conduct background
11 checks on handgun purchasers. (Printz v. United States (D. Mont. 1994) 854 F. Supp. 1503, 1508
12 [“Plaintiffbelieves he is forced to choose between violating his oath or violating the Act”], revd.
13 on other grounds in Mack v. United States (9th Cir. 1995) 66 F.3d 1025, revd. (1997) Printz v.
14 United States 521 U.S. 898.) The court noted that the dilemma “results in ‘injury in fact’ to
15 Plaintiff in that the Act requires him to violate his oath and possibly act in contempt of the court’s
16 authority.” (854 F. Supp. at 1507.) The court also noted that the Act forces the official “to bear
17 some of any public disapproval of the Act is injurious to Plaintiff in his capacity as an elected
18 official.” (Id. at 1507, flu 6.)
19
20 2. Ripeness and Standing Exist since Individuals and Businesses Are BeingCoerced into Surrendering Their Due Process Property Rights by Otherwise
21 Unconstitutional or Invalid Criminal Laws.
22 Though defendants deny it, the challenged provisions violate plaintiffs’ rights whether or
23
2431d. at 241 fri.5, citing Baker v. Carr (1962) 369 U.S. 186, 204.
254Accord, Frank v. United States (2nd Cir. 1996) 78 F.3d 815, 824 (“The burdens of an allegedly
26 unconstitutional statute need not be crippling before it may be challenged; plaintiffs only need allege‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which27 sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
28constitutional questions.” quoting Baker v. Carr, 369 U.S. at 204, and finding injury-in-fact, judg.vacated (1997) 521 U.s. 1114.
4OPPOSITION TO DEMURRER
1 not plaintiffs are ever prosecuted. If the laws in question apply to their firearms, plaintiff owners
2 and licensed retail vendors of firearms cannot either acquire or sell those firearms.5 But if those
3 laws are either inapplicable or invalid, Plaintiffs have a due process right to both acquire and sell
4 property -- which right is enforceable by suit under Title 42 United States Code section 1983. As
5 Sullivan v. Town ofSalem (2nd Cir. 1986) 805 F.2d 81, 84 states: “Lynch v. Household Finance
6 Corp. (1972) 406 U.S. 538 laid to rest the contention that the fourteenth amendment and § 1983
7 protect ‘personal rights’ but not ‘property rights.”
8 Firearms are the “property” of individuals whose rights therein are protected by the due
9 process clause. (Matthias v. Bingley (5th Cir. 1990) 906 F.2d 1047, 1048, 1051, People v. Beck
10 (1994) 25 Cal.App.4th 1095, 1102, Bryte v. City ofLa Mesa (1989) 207 Cal.App.3d 687.) And
11 Lynch reaffirms “that among the civil rights intended to be protected from discriminatory state
12 action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of
13 property.” (Lynch, supra, 405 U.S. at 544, emphasis added, citation to quoted prior Supreme
14 Court case omitted.)
15 It is crucial to distinguish our contention that the provisions here involved are subject to
16 challenge from the ultimate question of whether those provisions are unconstitutional. Of course,
17 the due process rights to acquire, use and “to dispose of property” must yield to valid regulation.
18 But that does not justify defendants’ contention that plaintiffs must or may be denied the right
19 even to challenge the constitutionality of provisions that restrict their due process right to acquire,
20 use and dispose of property. Many cases uphold merchants’ and individuals’ right to challenge
21 such laws, e.g.: Craig v. Boren (1976) 429 U.S. 190, 194-96 (licensed vendor of 3.2% beer may
22 challenge law that bans sale to males under age 21, but exempts sale to females 18 and older, and
23 may represent the class of males aged 18-21); General Motors Corp. v. Tracy (1997) 519 U.S.
24 278, 286-87 (buyer of natural gas has standing to challenge tax levied on its suppliers which
25 “presumably” increases the buyer’s cost of its gas) and cases there cited; Peoples Rights
26
27 5 See amended complaint ¶ 9-17, 26-30, 32-33, 60, 73, 77-86. Note that some of these
28 paragraphs also implicate the plaintiff owners’ and retailers’ due process rights to use their firearms aswell as to acquire and dispose of them.
5OPPOSITION TO DEMURRER
1 Organization v. City of Columbus (hereafter “PRO”) (6th Cir. 1998) 152 F.3d 522 (owners of
2 “assault weapons” have standing for vagueness challenge to criminal ordinance); National Rifle
3 Association ofAmerica v. Magaw (6th Cir. 1997) 132 F.3d 272, 280-83 (not only manufacturers
4 but licensed retail vendors of firearms have standing to challenge criminal law which
5 economically injures them by banning the sale of certain “assault weapons”); CentralArizona
6 Water Conservation District v. US. EnvironmentalAgency (9th Cir. 1993) 900 F.3d 1531, 1537,
7 1538 (water conservation and irrigation districts have standing to challenge EPA regulation which
8 will cause them “some [currently undeterminable] amount of pecuniary harm”); Mobil Oil Corp.
9 v. Attorney General (4th Cir. 1991) 940 F, 2d 73, 75-76 (corporation has standing to challenge
10 constitutionality of new statute which would adversely affect its business despite lack of any
11 affirmative proof that the statute actually will be enforced); Postscrzt Enterprises v. Whaley (8th
12 Cir. 1981) 658 F.2d 1249, 1252 (though store employees have been arrested for selling one type of
13 device, but not others, store is entitled to challenge bans on all the laws which “it is obliged to
14 heed. . . thereby incurring a direct economic injury through the constriction of its market, or to
15 disobey. . . the law.”); see also North Georgia Finishing v. Di-Chem (1985) 419 U.S. 601, 606-08
16 [95 S.Ct. 719, 42 L. Ed. 2d 751] (even temporary interference with the use of property implicates
17 due process and may constitute a deprivation).
18
19 3. The Case Is Ripe Because the Challenged Provisions Threaten PlaintiffFirearm Dealers and Registrants with Economic Injury
20
21 Economic losses of two types here alleged cause injury-in-fact and establish standing and
22 ripeness. (See, e.g., Magaw, supra, 132 F.3d at 278-290, fri. 8 [“Economic injury is clearly a
23 sufficient basis for standing.. . .“] quoting San Diego County Gun Rights Committee v. Reno (9th
24 Cir. 1996)98 F.3d 1121, 1130.)
25 First, the licensed retail vendors of firearms suffer injury in fact when, because the law and
26 regulations fail to give them adequate notice, they must either risk prosecution or forego profits.
27 In a vagueness challenge to another assault weapon law it was held that “the plaintiffs have
28 standing and that the present controversy is ripe for review. The weapons manufacturers and
6OPPOSITION TO DEMURRER
1 sellers which challenge the law are clearly economically affected by the law already.” (Coalition
2 ofNew Jersey Sportsmen v. Whitman (D. N.J. 1999) 44 F. Supp.2d 666, 673, fh. 10, affd (3d Cir.
3 2001) 263 F.3d 157, cert. den. (2001) 122 S. Ct. 613.)6
4 The facts here parallel those in Craig, supra, 429 U.S. 190, which found standing and
5 ripeness where a vendor challenged prohibition on sale of beer to males under 21:
6 The legal duties created by the statutory sections under challenge are addresseddirectly to vendors such as appellant. She is obliged either to heed the statutory
7 discrimination, thereby incurring a direct economic injury through the constrictionof her buyers’ market, or to disobey the statutory command and suffer. . . “sanctions
8 and perhaps loss of license.”
9 (429U.S.at 194.)
10 Secondly, persons who pay fees to register firearms (including those who pay the fees not
11 knowing whether their firearms are “assault weapons” to avoid possible criminal jeopardy) also
12 suffer injury-in-fact.7 “Compulsion by unwanted and unlawful government edict is injury per se.
13 Certainly the cost of obeying the regulations constitutes injury.” (National Collegiate Athletic
14 Ass’n v. Calfano (10th Cir. 1980) 622 F.2d 1382, 1389.) Injury exists even if the registration fee
15 is considered nominal. United States v. Students Challenging Regulatory Agency Procedures
16 (1973) 412 U.S. 669, 689, fri. 14, explains:
17 “Injury in fact” reflects the statutory requirement that a person be “adversely affected” or“aggrieved,” and it serves to distinguish a person with a direct stake in the outcome of a
18 litigation -- even though small -- from a person with a mere interest in the problem. Wehave allowed important interests to be vindicated by plaintiffs with no more at stake in the
19 outcome of an action than. . . a $ 5 fine and costs. . . . “The basic idea that comes out innumerous cases is that an identifiable trfle is enoughfor standing to fight out a question
20 of principle; the trifle is the basis for standing and the principle supplies the motivation.”(Italics added.)
21
226 See Steele v. National Firearms Act Branch (11th Cir. 1985) 755 F.2d 1410, 1414 (the
23 “complaint clearly alleged an injury in fact: Steele’s inability to sell the firearms that were part of hisinventory. It is beyond dispute that the deprivation of a part of one’s livelihood is sufficient to satisfy the
24 injury in fact requirement.”); Illinois Sporting Goods Ass ‘n v. County ofCook (N.D. Ill. 1994) 845 F.Supp. 582, 585 (“loss of customers, loss of goodwill, and threats to a business’ viability can constitute
25 irreparable harm” to licensed gun shops); Barrows v. Jackson (1953) 346 U.S. 249, 255-56 (“a direct,
26pocketbook injury” sufficed to mount constitutional challenge).
‘ As amended by Section 9 of S.B. 23, Penal Code section 12285(a) requires registration of27 assault weapons and provides: “The department may charge a fee for registration of up to twenty dollars
28($20) per person but not to exceed the actual processing costs of the department.” In fact, the registrationfee has been set at $20.00.
7OPPOSITION TO DEMURRER
1 Accordingly, injury-in-fact exists as to the plaintiffs who are either firearm dealers or
2 owners and who either paid the fee to register firearms or are prohibited from disposing of their
3 firearms.
4
5 4. Defendants Have the Matter Diametrically Backwards When They DemandThat Plaintiffs Establish the Existence of Prosecutions under the Provisions
6 They Challenge.
7 Defendants actually argue that plaintiffs must show that prosecutions are occurring which
8 are coercing licensed retail vendors of firearms and gun owners into suffering economic loss by
9 complying with the challenged provisions. But it is presumed that challenged laws are being
10 enforced in the absence of prooffrom enforcement authorities, that no such prosecutions are being
11 brought or will be brought.8 That presumption is particularly appropriate in California whose
12 Constitution requires the defendants “to see that the laws of the state are uniformly and adequately
13 enforced.” Article V, section 12 of the state Constitution authorizes and requires the Attorney
14 General to exercise “direct supervision over every district attorney. . . in all matters pertaining to
15 the duties of their. . . office.” (In addition, DOJ is designated by the AWCA as its administrator,
16 i.e. the agency specially responsible to assure its proper enforcement.)
17 In short, defendants are quibbling about information they should already (and
18 independently) have since it is their duty to have it and they have the resources to get it. In
19 contrast, plaintiffs have neither the duty nor the resources to obtain that information. In addition
20 to being disingenuous, defendants’ demand implicates grave injustices, given the esoteric, hyper
21 technical nature of the issues raised by, and the defects of, the challenged provisions. There are
22 tens of thousands of gun owners who are unaware of the issues and constitutional defects this case
23 raises, and lack the resources and information to mount the challenges plaintiffs here mount.
24 Indeed, association plaintiffs include CRPA, and LEAA, which have thousands of members.
25 Many of these members individually are at high risk of substantial injury because of what they
268 See inter alia. the following cases which are discussed more fully in the next section of this
27 memo: Doe v. Bolton (1973) 410 U.S. 179, 188 (“The threat [of prosecution] was real because the statute
28 is recent and not moribund.”), Babbitt v. United Farm Workers National Union (1979) 442 U.S. 289, 302(“Moreover, the State has not disavowed any intention of invoking the criminal penalty provision).
8OPPOSITION TO DEMURRER
1 “should know” (the AWCA “no mens rea” standard) but do not know due to the vagueness of the
2 law and regulations.
3 Though plaintiffs necessarily cannot know of such cases now being prosecuted, they have
4 belatedly become aware of grave past injustices in AWCA prosecutions. The most horrendous
5 involved an innocent man being convicted and serving a prison term for “unregistered possession”
6 of a legal rifle not covered by the AWCA which neither could be registered under it nor needed to
7 be. The police “expert” who had testified the rifle was covered did not know the manufacturer
8 made two completely different similarly named rifles, one of which was covered in the AWCA
9 while the other was not. The defendant knew nothing about the AWCA, and neither his defense
10 counsel, nor the prosecutor nor the judge nor the jury knew enough to see the problem. It was
11 only when his appellate counsel called plaintiffs’ counsel on a different issue that the problem
12 was even perceived. By the time the conviction was set aside, the victim had been released,
13 having already served his prison sentence.9
14 Thus the issue here is not simply whether plaintiffs must comply or face the danger of a
15 prosecution in which they can make the same challenges they seek to assert in this case. The issue
16 is whether innocent people will be sent to prison because they, and their counsel, lack even the
17 initial knowledge of the esoteric issues and the need to raise them. A fortiori, those innocent
18 people lack the resources that allowed plaintiffs to hire experts to engage in research so technical
19 that it required over a year to complete. To reiterate, these innocent people include numerous
20 members of the association plaintiffs in this case.
21
22 5. Firearm Owners and Dealers Have Standing, and the Controversy is Ripe,Because of The Threat of Prosecution
23
24 To establish the threat of enforcement, it need only be shown that a recent enactment has
25 the force of law and that it applies to the conduct of the parties who challenge it. Ripeness does
26As officers of the court Plaintiffs’ counsel represent that the foregoing is true, having personal27 knowledge of the matter. Though it seems odd to do so on a demurrer, if the court desires counsel will
28submit declaration detailing this and other, less horrendous, examples of people wrongfully arrested,incarcerated and charged before they or their counsel happened to contact plaintiffs’ counsel.
9OPPOSITION TO DEMURRER
1 not require that a specific policeman threaten a specific citizen with arrest or that any specific
2 person have been prosecuted. The whole purpose of pre-enforcement declaratory judgment
3 actions is to prevent wrongful prosecutions, before they occur.
4 The existence of the laws and the regulations with the threatened penalties speaks louder
5 than defendants’ disingenuous attempt to deflect a decision on the merits. “The ordinance was
6 enacted only months ago and we are probably entitled to assume that law enforcement agencies
7 will not disregard such expression of the legislature’s will.” (International Society For Krishna
8 Consciousness v. Eaves (5th Cir. 1979) 601 F.2d 809, 819, fri. 6.) “The lack of past prosecutions
9 is irrelevant given the statute’s recent origin.” (New Hampshire Right to Lfe Political Action
10 Comm. v. Gardner (1st Cir. 1996) 99 F.3d 8, 17.)
11 Doe v. Bolton (1973) 410 U.S. 179, 188, held that a justiciable controversy was presented
12 by physicians challenging an abortion law without any evidence “that any one of them has been..
13 . threatened with prosecution,” in that “the physician is the one against whom these criminal
14 statutes directly operate. . . . They should not be required to await and undergo a criminal
15 prosecution as the sole means of seeking relief.” The threat was real because the statute “is recent
16 and not moribund.”0(Id.)
17 The State has not disavowed an intent to enforce the law as interpreted in the regulations.
18 Compare Babbitt v. United Farm Workers National Union (1979) 442 U.S. 289, 302:
19 When fear of criminal prosecution under an allegedly unconstitutionalstatute is not imaginary or wholly speculative a plaintiff need not “first expose
20 himself to actual arrest or prosecution to be entitled to challenge [the] statute.”.Moreover, the State has not disavowed any intention of invoking the criminal
21 penalty provision.. . . Appellees are thus not without some reason in fearingprosecution.
22
23 Tn addition, where plaintiffs “have in the past engaged in” activity “now arguably
24 prohibited by the statute and allege an intention to continue to do the same,” their challenge is
25 justiciable. (Babbitt, supra, 442 U.S. at 303.)
26
27 ° By contrast, Poe v. Uliman (1961) 367 U.S. 497, 501, found non-justiciable a challenge to a
28ban on contraceptives which had been on the books since 1879 but under which there had been only oneprosecution (in 1940), and contraceptives were commonly sold in drug stores.
10OPPOSITION TO DEMURRER
1 The State’s defense of the regulations in this case itself establishes the threat of
2 enforcement. “The defendants have not only refused to disavow [the statute], but their defense of
3 it indicates that they will some day enforce it.” (New Hampshire Right to Lfe Political Action
4 Comm., supra, 99 F.3d at 17.)
5 “[T]he authentic interest of the plaintiff in engaging in the prohibited conduct can establish
6 standing even though the only threat of enforcement comes from the very existence of the statute.”
7 (Leverett v. City ofPinellas (11th Cir. 1995) 775 F.2d 1536, 1539.) “A court can be most certain
8 that a constitutional challenge grows out of a genuine dispute where the allegedly unconstitutional
9 statute interferes with the way the plaintiff would normally conduct his or her affairs.” (Id.)
10 Pre-enforcement challenges to firearm ordinances are common.” PRO, supra, 152 F.3d at
11 528, held that individual plaintiffs and associations demonstrated standing and ripeness where
12 they “face a clear Hobson’s choice. They can either possess their firearms in Columbus and risk
13 prosecution under the City’s law, or, alternatively, they can store their weapons outside the City,
14 depriving themselves of the use and possession of the weapons.” (Id. at 529.) The law
15 invalidated in PRO punished possession of assault weapons with imprisonment for not more than
16 six months. (Id. at 528.) The penalty here is far greater: transfer, transportation, and other acts
17 involving an assault weapon “shall be punished by imprisonment in the state prison for four, six,
18 or eight years,” and a person who merely possesses an assault weapon “shall be punished by
19 imprisonment in the state prison, or in a county jail, not exceeding one year.” (Pen. Code, §20 12280(a), (b).)
21 Like defendants here, in PRO “the City argued that this matter was not justiciable, because
22 Plaintiffs did not allege that they have been charged with a criminal violation of the ordinance...
23 . This position is contrary to well-settled law and utterly inconsistent with the policies underlying
24 the Declaratory Judgment Act.” (PRO, supra, 152 F.3d. at 529.)
25
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26 E.g., Doe v. San Francisco (1982) 136 Cal.App.3d 509 (holding that State law preemptsfirearms ordinances). See NRA v. City ofSouth Miami (Fla. Dist. Ct. App. 2002) 812 So.2d (challenge to
27 fireanns ordinance ripe where plaintiffs were “wondering whether they are going to be illegally
28 prosecuted by the City come next dove hunting season”; “in light of these doubts and confrontations andin the liberal spirit of the Declaratory Judgment Act, we hold that this action is not premature”).
11OPPOSITION TO DEMURRER
1 PRO, supra, 152 F.3d 522, contrasted a case challenging the federal assault weapon ban,
2 18 United States Code section 922(v), which grandfathered existing guns and thus had no effect
3 on the guns actually possessed by the plaintiffs. Those who were harmed economically could
4 challenge the law, but not the plaintiffs who alleged merely “that they ‘desire’ and ‘wish’ to
5 engage in certain possibly prohibited activities, but are ‘restrained’ and ‘inhibited’ from doing so.”
6 (PRO, supra, 152 F.3d. at 529.) By contrast, plaintiffs in PRO risked prosecution if they
7 possessed their firearms in the City. “We believe a citizen should be allowed to prefer official
8 adjudication to public disobedience.”2 (Id. at 530, citations and quotation marks omitted.) PRO
9 concluded:
10 [Tjhis matter presents ajusticiable controversy under Article ifi. Plaintiffs Smolakand Walker have shown the significant possibility of future harm which is
11 necessary to establish standing in a declaratory judgment action,. . . and PlaintiffP.R.O. has shown that it has associational standing in this case.... In addition,
12 the matter is currently ripe for judicial review. Plaintiffs Smolak and Walker havedemonstrated the requisite hardship they and other similarly situated members of
13 P.R.O. will suffer ifjudicial review is denied at the pre-enforcement stage, thelikelihood that the harm alleged will come to pass, and the fitness of the issues
14 raised for judicial review.
15 (Id.at530-31.)
16 Ripeness and standing were shown to challenge “assault weapon” definitions in Coalition
17 ofNew Jersey Sportsmen, supra, 44 F. Supp.2d at 673, fri. 10, wherein it is stated:
18 The court concludes that the plaintiffs have standing and that the presentcontroversy is ripe for review. . . . The individually named plaintiffs also have
19 standing because each is a weapons owner who wishes to engage in, or already isengaging in, conduct prohibited under the statute. Such individuals are in a bind
20 with the assault weapons they now own; they can either illegally possess suchweapons in New Jersey, or store them outside the state at financial costs and the
21 loss of their use.. . . While the named plaintiffs may not have been prosecuted yetfor any violations under the statute, and indeed they may never be, the defendants
22 insist that the disputed statute is and will continue to be enforced. . . . Furthermore,this case involves primarily legal questions, where the need for ‘concrete’ facts
23 necessary to the conclusiveness inquiry is not as strong as often required to make acontroversy ripe. Predominately legal controversies include whether a state or
24 federal statute is constitutional on its face. . . . Finally, the parties need thisdecision to clarify their legal relationships such that the parties can “make
25 responsible decisions about the future.”
26
27 L2 See Citizens for a Safer Community v. Rochester (N.Y. 1994) 627 N.Y.S.2d 193, 203-04, 206
28(challenge portions of assault weapon ordinance held justiciable; “declaratory judgment actions ... allowthose who may be affected by a law, to challenge its validity without having to violate it”).
12OPPOSITION TO DEMURRER
1 By contrast, in San Diego County Gun Rights Committee, supra, 98 F.3d 1121, plaintiffs
2 challenged the federal assault weapon ban but failed to allege that they even possessed such items.
3 Thus, “plaintiffs allege that they ‘wish and intend’ to engage in unspecified conduct prohibited by
4 the Act.” (Id. at 1124.) Indeed, “plaintiffs’ counsel represented that none of the plaintiffs are
5 under any threat of prosecution.” (Id. at 1127.) To demonstrate standing, three elements must be
6 found:
7 First, plaintiffs must have suffered an “injury-in-fact” to a legally protected interestthat is both “concrete and particularized” and “actual or imminent,” as opposed to
8 “conjectural’ or ‘hypothetical.” Second, there must be a causal connectionbetween their injury and the conduct complained of. Third, it must be “likely” —
9 not merely “speculative” — that their injury will be “redressed by a favorabledecision.”
10(Id. at 1126, citation omitted.)
11
12 Regarding ripeness, firstly “a concrete factual situation is necessary to delineate the
13 boundaries of what conduct the government may or may not regulate without running afoul of’
14 the Constitution. (San Diego County Gun Rights Committee, supra, 98 F.3d at 1132, citation
15 omitted.) “With regard to the second prong of the ripeness test, we have previously considered a
16 threat of criminal penalty to be hardship.” (Id.)
17 Those factors are present in the present case. Plaintiffs here have the dilemma of facing a
18 credible threat of prosecution or of destroying, damaging, or moving their firearms out of
19 California. Accordingly, they have established their standing to maintain this action and the
20 ripeness of this controversy.
21
22 6. Ripeness and Standing Also Exist Because Plaintiffs Include AssociationsWhose Tens of Thousands of Members Are Subject to Possible Prosecution.
23
24 Significantly, the complaint includes not only individuals and licensed retail firearms
25 dealers but also membership organizations representing numerous licensed dealers and tems of
26 thousands of individual gun owners.’3 Even if we had not alleged threat of prosecution, that threat
27
2813 As to the propriety of organizations to challenge on behalf of their members an enactment to
which they are not themselves subject. (See Pennell v. City ofSan Jose (1988) 485 U.S. 1, Friends of the
13OPPOSITION TO DEMURRER
1 must be assumed: given how many potentially prosecutable people are involved, the challenged
2 enactments will sooner or later be applied to them. (Fennel? v. City ofSan Jose (1988), 485 U.s.
3 1,8.)
4 Two further points deserve particular emphasis: First, where “justiciability is in doubt, it
5 should be resolved in favor ofjusticiability in cases of great public interest.” (NationalAudubon
6 Society v. Superior Court (1983) 33 Cal.3d 419, 433, fn. 14.) Second, if standing and ripeness
7 exist for any plaintiff, those requirements are satisfied and courts do not further inquire into them.
8 (Babbitt, supra, 442 U.S. at 299.)
9
10 II.
11 INDIVIDUAL CLAIMS
12 A. Defendants Cannot Raise Demurrers to the First through Third Causes of Action byContradicting Their Fact Allegations.
13
14 Defendants deny that the two independent, invalid definitions of flash suppressor we
15 attack are vague in all applications, hypothesizing a situation in which an owner knows the device
16 on his rifle reduces or redirects flash because he was told that by a gun expert. The first problem
17 with this is that plaintiffs are not required to show the law in question is vague in all applications
18 because plaintiffs are arguing for a specific interpretation (which would jettison the regulation)
19 whereby that law would be unquestionably constitutional.14 The second problem with defendants’
20 what-if-somebody-told-him approach is that no law could ever be vague in all applications if such
21
22
23
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24 Earth, Inc. v. Laidlaw Environmental Services (2000) 528 U.S. 167, 182 [right of association tochallenge conduct which involved a continuing series of incidents harming its members], United Food &
25 Commercial Workers Union Local 751 v. Brown Group. Inc. (1996) 517 U.S. 544, 552.)
26 See, Fn. 9. Harrott, supra, 25 Cal.4th at 1153 (Courts will adopt a saving contruction if a lawwould otherwise be unconstitutional in at least some applications because ‘“If a statute is susceptible of
27 two constructions, one of which will render it constitutional and the other unconstitutional in whole or in
28part, or raise serious and doubtful constitutional questions, the court will adopt [the former constructionif reasonably possible.]”)
14OPPOSITION TO DEMURRER
1 pure speculation were admissible.15
2 Third, and most problematic, is that the particular hypothetical defendants posit directly
3 contradicts Amended complaint ¶J 43-44 and 50-56. Those paragraphs factually allege that no
4 civilian can do the testing required to know whether a device is a flash suppressor under the
5 regulation; nor can even law enforcement do such testing (and provide such advice) because of
6 lack of laboratory facilities and due to defendants’ failure to specify relevant perameters.
7 Defendants further argue, noting the existence of laws that expressly define guns by
8 reference to particular design features and intended uses, that the lack of such language when
9 Penal Code section 12276.1 refers to “flash suppressor” shows that the AWCA is not so limited.
10 But this simply does not gainsay Amended complaint ¶ 39 which alleges that “flash suppressor”
11 has an established meaning which is limited to devices designed and intended to reduce flash.
12 In sum, on a demurrer the facts alleged in the complaint are taken as true and are not
13 subject to arguments by defendants that contradict them. Equally baseless is defendants’ response
14 to Amended complaint ¶ 59’s assertion that almost all handguns having threaded barrels are
15 Olympic-type competition pistols. Defendants once again misread Penal Code sections 12276.1
16 (b) and (c) as exempting all such pistols (rather than just those that it specifically names).
17 Nevertheless, plaintiffs would drop all allegations about Olympic-type competition pistols if
18 defendants would stipulate to a judgment embodying defendants’ own view that the sub-sections
19 they cite exempt all such pistols, and issue an advice letter and a regulation to that effect.
20
21 B. Causes of Action Four through Six Properly Invoke Defendants’ Duty to SuperviseLaw Enforcement in General and Particularly to Administer the AWCA.
22
23 Even if it were true that these claims fail to show a dispute as to what the particular laws
24 involved mean, amended complaint ¶J 4, 26-31, 67-68, 72-74, and 77-87 factually allege the
25
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26 ‘ City of Chicago v. Morales (1999) 527 U.S. 41, 55 fn. 22. (A plaintiff is not required to“establish that no set of circumstances exists under which the Act would be valid,” — that “has never been27 the decisive factor in any decision of this Court Since we. . . conclude that vagueness permeates the
28ordinance, a facial challenge is appropriate.”) See detailed discussion of this case infra.
15OPPOSITION TO DEMURRER
1 Legislature overtly relied on defendants to clarify otherwise murky laws, that it was defendants’
2 legal duty to so clarify them, and that their failure to do so threatens plaintiffs with improper
3 prosecution and confiscation of their property and interferes with legal use of it. Besides
4 plaintiffs’ showing of economic and other injury, as citizens they are entitled to mandate that
5 defendants perform their legal duties.’6
6 In addition, amended complaint ¶J 77-87 allege that the public, including plaintiffs, has
7 been confused as to their rights and the requirements of the law by defendants’ issuance of “advice
8 letters” contradicting the statutes and/or APA regulations involved. Besides plaintiffs’ personal
9 interests, as taxpayers and citizens plaintiffs have standing to attack the issuance of these illegal
10 “underground regulations.’7
11
12 III.
13 STRICT REVIEW IS REQUIRED, GIVEN THAT THE AWCAIMPOSES SEVERE CRIMINAL PENALTIES BASED
14 ON MERE NEGLIGENCE WITHOUT SCIENTER
15 The AWCA imposes stringent criminal penalties and is based on a mere “knew or should
16 have known” standard. Accordingly, the strict standard of review applies here. The State presents
17 only a superficial rendition of the caselaw in this regard. (See Defendants’ Memorandum of
18 Points & Authorities in Support of Demurrer at 8.)
19 Historically, the U.S. Supreme Court has invalidated laws as facially vague even though
20 the conduct regulated did not involve the First Amendment or any other specific constitutional
21 right beyond the due process right not “to be required at peril of life, liberty or property to
22 speculate as to the meaning of penal statutes.” (Lanzetta v. New Jersey (1939) 306 U.S. 451, 452-
23 53; see. e.g., Papachristou v. Jacksonville (1972) 405 U.S. 156, 164 [holding a vagrancy
24
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25 16 See fn. 2. Admittedly, the court need not necessarily dictate the method by which defendantsclarify the law, e.g. whether by formal regulation, administrative advice letter or AG opinion. But they
26 must be mandated to perform their duty it in some way. (Salute v. Pitchess (1976) 61 Cal.App.3d 557,
27560,561.)
2817 For discussion of the principles applicable to “underground regulations” please see Plaintiffs’
Memorandum supporting Preliminary Injunction, pp. 24 and 27-28.
16OPPOSITION TO DEMURRER
1 prohibition facially vague though the activities at issue “are not mentioned in the Constitution or
2 in the Bill of Rights”].)
3 “The standards of certainty in statutes punishing for offenses is higher than in those
4 depending primarily upon civil sanction for enforcement” (Winters v. New York (1948) 333 U.s.
5 507, 515) -- and that applies to social or economic regulation that is enforced by criminal penalty.
6 Even with a scienter requirement such regulation has been held facially vague. (United States v.
7 Card/f (1952) 344 U.S. 174, 174-75 [refusal of factory owner to permit entry “at reasonable
8 times” held vague]; United States v. L. Cohen Grocery Co. (1921) 255 U.S. 81, 89 [“wilfully”
9 charging “any unjust or unreasonable rate” for “necessaries” held vague].)
10 Colautti v. Franklin (1979) 439 U.S. 379 invalidated a law requiring a physician
11 performing an abortion to utilize certain techniques when the fetus “is viable” or there is
12 “sufficient reason to believe that the fetus may be viable.” The Court explained:
13 This Court has long recognized that the constitutionality of a vaguestatutory standard is closely related to whether that standard incorporates a
14 requirement of mens rea.. . . Because of the absence of a scienter requirement inthe provision directing the physician to determine whether the fetus is or may be
15 viable, the statute is little more than “a trap for those who act in good faith.”United States v. Ragen (1942) 314 U.S. 513, 524.
16
17 (Id. at 395.) Significantly, Ragen was a tax-evasion case not involving constitutionally-protected
18 conduct, and thus the above states the rule for all criminal statutes.
19 The ordinance in Village ofHoffman Estates v. Flipside Hoffman Estates, Inc. (1982) 455
20 U.S. 489, 492 required a business to obtain a license to sell drug paraphernalia, violation of which
21 was punishable by fine only. An official advised the business in question of which products were
22 included. Instead of obtaining a license or filing an administrative proceeding, the business filed
23 suit. (Id. at 493.)
24 Hoffman Estates held: “The degree of vagueness that the Constitution tolerates — as well
25 as the relative importance of fair notice and fair enforcement — depends in part on the nature of the
26 enactment.” (Hoffman Estates, supra, 455 U.S. at 498.) It continued:
27 Thus, economic regulation is subject to a less strict vagueness test. .. . The Courthas also expressed greater tolerance of enactments with civil rather than criminal
28 penalties because the consequences of imprecision are qualitatively less severe.
17OPPOSITION TO DEMURRER
1 And the Court has recognized that a scienter requirement may mitigate a law’svagueness, especially with respect to the adequacy of notice to the complainant that
2 his conduct is proscribed.
3 (Id. at 498-99.)
4 The AWCA, however, is no mere economic regulation with only civil penalties and a
5 knowledge element. Rather it is a criminal law with severe penalties -- and a mere “should have
6 known” mental state is all that is required for conviction. Thus it cannot be said here, as it was in
7 Hoffman Estates, that the law: “simply regulates business behavior;” “contains a scienter
8 requirement,” and “nominally imposes only civil penalties.” (Hoffman Estates, supra, 455 U.S. at
9 499.) Significantly, though in that case, the Court held the term “designed or marketed for use”
10 was not facially vague, it suggested a less clear phrase would have been facially vague: “a
11 regulation of [drug] ‘paraphernalia’ alone would not provide much warning of the nature of the
12 items regulated.” (Id. at 500, fri. 17.)
13 Kolender v. Lawson (1983) 461 U.S. 352, 3 53-54, found vague on its face a requirement
14 that persons who loiter provide “credible and reliable” identification. Since the police would
15 determine what is “credible and reliable,” the provision lacked any standard and was vague.
16 “[T]his is not a case where further precision in the statutory language is either impossible or
17 impractical.” (Id. at 361.) Note that in this suit two district attorneys and a police group assert
18 they cannot understand the law. To meet due process, statutes and regulations “must provide
19 definite guidelines for [judges, juries, prosecutors and] the police in order to prevent arbitrary and
20 discriminatory enforcement.” (People v. Heitzman (1994) 9 Cal.4th 189, 199 and cases there
21 cited.) The Kolender majority rejected the dissent’s argument that a statute “should not be held
22 unconstitutionally vague on its face unless it is vague in all of its possible applications.” (Id. at
23 358, fri. 8.) The majority explained that “where a statute imposes criminal penalties, the standard
24 of certainty is higher. . . . This concern has, at times, led us to invalidate a criminal statute on its
25 face even when it could conceivably have had some valid application. See, e.g Lanzetta v.
26 New Jersey, 306 U.S. 451 (1939).” (Kolender, 461 U.S. at 358-59, flu 8.) It is noteworthy that
27 Lanzetta did not involve constitutionally-protected conduct, yet it invalidated the statute on its
28
18OPPOSITION TO DEMURRER
1 face even though it may have had some valid application.’8
2 Kolender rejected the dissent’s view that facial challenges are restricted to First
3 Amendment cases, noting: “No authority cited by the dissent supports its argument about facial
4 challenges in the arbitrary enforcement context.” (Kolender, supra, 461 U.S. at 358-59, fri. 8)
5 The dissent’s reliance on Hoffman Estates was misplaced, given that “economic regulation is
6 subject to a less strict vagueness test.
7 City of Chicago v. Morales (1999) 527 U.S. 41, rejected as facially vague a prohibition on
8 loitering after police have ordered dispersal if one of the loiterers is a “criminal street gang
9 member.” The following holding is dispositive of the issue here: “Even if an enactment does not
10 reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague
11 because it fails to establish standards for the police and public that are sufficient to guard against
12 the arbitrary deprivation of liberty interests.” (Id. at 52.)
13 The Morales court held that the law there “does not have a sufficiently substantial impact
14 on conduct protected by the First Amendment to render it unconstitutional.” (City of Chicago,
15 supra, 527 U.S. at 52-53.) Yet “the vagueness of this enactment makes a facial challenge
16 appropriate.” (Id. at 55.) A plaintiff need not “establish that no set of circumstances exists under
17 which the Act would be valid,” which “has never been the decisive factor in any decision of this
18 Court.. . .“ (Id. at 55, fri. 22.) “Since we.. . conclude that vagueness permeates the ordinance, a
19 facial challenge is appropriate.” (Id.) Likewise, in this case the extensive allegations of the
20 ocmplaint show that vaguesness permeates the two heterodox alternative definitions of “flash
21 suppressor.”
22 Forbes v. Napolitano (9th Cir. 2000) 236 F.3d 1009, rejected on its face a prohibition on
23
2418 For instance, the defendant might have confessed to being a “gang” member. Indeed, given the
25 known characteristics of gang members, the defendant might even have boasted of his gang membership.
26 19 Kolender, supra, 461 U.S. at 358-59, fri. 8. The dissent argued that the test should be whetherthe law has a “core” and is not vague in all its applications, giving an example in which the ordinance
27 would not be vague. (Id. at 370-73, dis. Opn. of White, J.) The dissent added: “The majority attempts to
28underplay the conflict between its decision today and the decision last Term in Hoffman Estates. . .
(Id. at 372.) To the extent that this is true, Kolender is binding, being the more recent case.
19OPPOSITION TO DEMURRER
1 certain medical procedures using vague terms such as “experimentation,” “investigation,” and
2 “routine.” Based on the above precedents, Forbes held that the strict test for vagueness applies
3 regardless of whether constitutionally-protected conduct is involved:
4 If a statute subjects transgressors to criminal penalties, as this one does,vagueness review is even more exacting. . . In addition to defining a core of
5 proscribed behavior to give people constructive notice of the law, a criminal statutemust provide standards to prevent arbitrary enforcement. . . . Without such
6 standards, a statute would be impermissibly vague even if it did not reach asubstantial amount of constitutionally protected conduct, because it would subject
7 people to the risk of arbitrary deprivation of their liberty. . . . Regardless of whattype of conduct the criminal statute targets, the arbitrary deprivation of liberty is
8 itself offensive to the Constitution’s due process guarantee.
9 (Id. at 1011-12, citations omitted.)
10 SpringfleldArmory v. City of Columbus (6th Cir. 1994) 29 F.3d 250, 251, held an assault
11 weapon ban “unconstitutionally vague on its face” for “The ordinance is fundamentally irrational
12 and impossible to apply consistently by the buying public, the sportsman, the law enforcement
13 officer, the prosecutor or the judge.”2° “The average gun owner knows very little about how his
14 gun operates or its design features.” (Id. at 253.)
15 Kolender and Colautti “suggested that a criminal statute may be facially invalid even if it
16 has some conceivable application.” (Springfield, supra, 29 F.3d at 252.) The precedents do not
17 imply “that a facial challenge cannot succeed simply because constitutionally-protected activity is
18 not imperiled. To the contrary, the Supreme Court has expressly stated that the question of
19 whether or not a statute impinges on constitutionally-protected activity is but the first inquiry in a
20 court’s examination of a statute challenged on vagueness grounds.” (Springfield, 29 F.3d at 254,
21 citing Hoffman Estates, 455 U.S. at 494.)21
22
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2320 See Robertson v. Denver (Cob. 1994) 874 P.2d 325, 334 (invalidating assault weapon
definition because “these characteristics cannot be readily [ascertained] by a person of common24 intelligence”).
25 21 Springfield, supra, 29 F.3d at 254, explained further:The district court erred in failing to consider the facial validity of this ordinance and
26 instead examined only the question of whether the ordinance was vague as applied to anumber of specific weapons. In order to restrict its inquiry, the court relied on the
27 Supreme Court’s statement that “vagueness challenges to statutes which do not involve
28 First Amendment freedoms must be examined in the light of the facts of the case athand,” United States v. Mazurie, 419 U.S. 544, 550 . . . (1975). Nothing inMazurie
20OPPOSITION TO DEMURRER
1 “When criminal penalties are at stake, as they are in the present case, a relatively strict test
2 is warranted.” (Springfield, supra, 29 F.3d at 252, citing Hoffman Estates, supra, 455 U.S. at
3 499.) Springfield applied the strict test even though the law had a knowledge element. (See PRO,
4 supra, 152 F.3d at 526, fh. 3 [quoting former law as providing that “no person shall knowingly
5 possess an assault weapon”].) PRO repeated that “when criminal penalties are at stake. . . a
6 relatively strict test is warranted.” (PRO, 152 F.3d at 533 [“assault weapon” definitions held
7 facially vague].) PRO added: “We also must consider whether the statute contains a scienter
8 requirement or imposes strict liability.. . . Indeed, ‘[i]n the absence of a scienter requirement . ..
9 [a] statute is little more than a trap for those who act in good faith.” (Id. at 534, quoting Colautti,
10 supra,439U.S.at395.)
11 Thus, this Court was incorrect when it stated that Springfield and PRO “both dealt with
12 ordinances where the courts found there was no mens rea standard at all.” Order Denying Request
13 for Preliminary Injunction at 5. As noted above, SpringfIeld involved a knowledge element. This
14 Court added that “since there is a mens rea requirement that prosecutors must satisfy before they
15 can convict a defendant of possessing an assault weapon, the strict scrutiny of People Rights
16 [PRO] and Springfield Armory does not necessarily apply here.” (PRO, supra, 152 F.3d at 534.)
17 The California mens rea requirement in this case is mere negligence, which does not
18 exempt the Act from the principles discussed in PRO. As this Court notes, the standard here is
19 whether “the defendant knew or reasonably should have known the firearm possessed the
20 characteristics bringing it within the AWCA.” (Order at 5, quoting In re Jorge M, supra, 23
21 Cal.4th at 887.) The “should have known” standard is really the absence of criminal scienter and
22 is equivalent to the civil negligence standard. Similarly, while PRO interpreted the law as
23
24indicates that a facial challenge cannot succeed simply because
25 constitutionally-protected activity is not imperiled.
26 21OPPOSITION TO DEMURRER
27
28
1 imposing strict liability, it added that “the application of a recklessness scienter... would not
2 ameliorate the vagueness problems,” and “would not affect our decision that a relatively strict
3 review.. . is necessary.” (PRO, supra, 152 F.3d at 534, fri. 14.) As is obvious, California’s
4 negligence standard is actually lower than the recklessness (gross negligence) standard discussed
5 in PRO, and thus the strict standard of review is even more compelling here.
6
7 CONCLUSION
8 For the foregoing reasons, Defendants’ Demurrer to Plaintiffs’ First Amended Complaint
9 should be denied.
10
Date: January 23, 2003 TRUTANICH ‘ MICHEL, LLP:
14 C. D. MelAttorneys for Plaintiffs
15
16
17
18
19
20
21
22
23
24
25
26 22OPPOSITION TO DEMURRER
27
28
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA
3 COUNTY OF LOS ANGELES
4 I, Haydee Villegas, am employed in the City of San Pedro, Los Angeles County,California. I am over the age eighteen (18) years and am not a party to the within action. My
5 business address is 407 North Harbor Boulevard, San Pedro, California 90731.
6 On January 23, 2003, I served the foregoing document(s) described as
7 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TODEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT
8on the interested parties in this action by placing
9 [J the original[X] a true and correct copy
10 thereof enclosed in sealed envelope(s) addressed as follows:
11 Douglas J. WoodsOffice of the Attorney General
12 1300 “I” StreetSacramento, CA 95814
13 (916)324-5567
14 X (VIA OVERNIGHT MAIL) As follows: I am “readily familiar” with the firm’s practice ofcollection and processing correspondence for overnight delivery by UPS/FED-EX. Under
15 the practice it would be deposited with a facility regularly maintained by UPS/FED-EX forreceipt on the same day in the ordinary course of business. Such envelope was sealed and
16 placed for collection and delivery by UPS/FED-EX with delivery fees paid or provided forin accordance with ordinary business practices.
17Executed on January 23, 2003, at San Pedro, California.
18
19 (STATE) I declare under penalty of perjury under the laws of the State of Californiathat the foregoing is true and correct.
20(FEDERAL) I declare that I am employed in the office oft dmber of the bar of this
24
of this court at whose direction the service was
OPPOSITION TO DEMURRER27
28
