Draft pleading in a contemplated California CCW lawsuit...

[Jim March]

Yeah, back at it maybe. This one is with a serious twist though.

Comments welcome, including "is this approach a good idea?"

I *think* I have 'em dead to rights, esp. on the Ward and Saenz case law.

 

[Henry Bowman]

I would move the part about California incorporating by reference the US Constituion up front.

It's a good outline with solid reasoning. But for heaven's sake, Jim, do not file this important case pro se. There has to be a California attorney who will give a helping hand.

 

[ilbob]

A person who represents himself has a fool for a client.

1. The courts have not Incorporated the 2A, yet.

2. The only thing the court actual ruled in Heller, was that there is a right to have firearms (including handguns) in the home for self defense. Everything else is just commentary. Maybe convincing commentary, but commentary nonetheless.

While I think there are some very good points in the brief, I also think it badly needs professional help. Even I as a non-lawyer can see holes in the thing that would get torn apart by even a mediocre lawyer.

Personally, I think you are biting off way too big of a chunk. You are essentially asking for incorporation, a ruling that self defense outside the home is also a right, and that carry outside the home is a right. that would mean you are asking the court to just up and seriously affect maybe 100 laws. They are just not going to do that. You need to focus on getting one or two things.

It seems to me that determining whether CA's constitution self incorporates the US Constitution is not a federal court matter. It would need to be litigated in state court, as it is a matter of interpreting state law and not federal law.

You also shoot yourself in the foot at least one time by admitting that one of your courses of action is moot in your case. since you are the only person in the case, that would seem to be something you should just remove since it just plain does not apply.

 

[everallm]

Starting from the top.

Heller did not find a basic human right to defense outside of the home. The right was and is pre-existing and independent of the law and Constitution. The ability to exercise this right via a firearm is not as yet agreed and will be struck.

Heller only rules with regard to the outright banning of classes of firearms for defense in the home. A far more likely to succeed suit would be to attack the laws in California on what is an "approved" weapon. This could also be attacked on an interstate commerce basis as an unfair restriction of trade under color of law or unreasonable restriction of weapons "in common use.

The argument of OC, CCW and loaded/unloaded needs to be tightened and might be better focussed on the legality of carry of any type and the requirement for loading.

The arbitrary denial/issuance of a CCW "under color of law" should be addressed as a necessity to have a single invariant state law and not up for interpretation by a local individual. Even if a theoretical state law is very rigorous, once the principle is established the rigor can be challenged.

"I've never hear of an open carry permit being issued " isn't going to fly. The court will expect that at the least a FOIA request has been raised or some other attempt to determine has been made. Now, if a FOIA request has been refused.......more useful grist for the mill.

Wording and phraseology as a whole needs to be made more lawyerese....Using something like Chicago pleading structure.

But as has already been said, attempting this without legal representation as well as not in co-ordination with any other challenges could end up hurting a lot more than it can help.

 

[Frank Ettin]

I agree with Henry Bowman that you will definitely want a lawyer. I see a number of issues with the draft complaint, including:

[1] There seems to be an awful lot of legal argument for a complaint. That all comes later, after the defendant(s) has answered, when you start making your motions for either judgment on the pleadings or summary judgment. The complaint itself generally states, under Rule 8(a) of the Federal Rules of Civil Procedure, only:

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

[2] I think that you have a standing problem. You don't state that California has taken any direct action against you, personally, under its laws that violates your rights under the Second Amendment or the 14th Amendment.

[3] For the same reason that you may have difficulty satisfying the standing requirement, the complaint doesn't state a "case or controversy."

As much as I'm looking forward to a good CCW case in California, I'm afraid that at this point your complaint seems very vulnerable to a motion to dismiss.

 

[XD_fan]

Have to agree with the others. Gura himself stated that Heller was a keep case and has nothing to do with the bearing of arms. The decision stated that Heller can have a handgun in his DC home for self defense. Nothing more.

 

[AntiqueCollector]

In the dicta in Heller it certainly suggests that to bear is also a right, but it wasn't within the scope of the case (only keeping and bearing inside one's home was). I think there are good grounds for making a case like this but don't leave any glaring holes in your case.

 

[Gray Peterson]

I would suggest that we not engage in tactics that essentially strangles the intentions of the Heller ruling in it's crib. Even in the holdings portion, Scalia identified bearing of arms as an individual right.

Before anyone jumps on the incorporation issue, read the case again. This is a case which references three cases: Slaughterhouse, Ward, and Saenz. In Ward, the US Supreme Court struck down a merchant licensing law which charged more money to non-residents than residents, and restricted what an out of state licensee can sell. The Ward case, and also the March case before us, goes on that principle, in that the practical application of PC12031 (the loaded carry of firearms ban), along with the PC12050 not being available to Jim or any other out of staters, plus you throw in PC626.9, in which only allows CCW holders to carry loaded in those 1000 foot school zones, and you have a situation where non-residents are treated more harshly on exercising a civil right than a resident because they don't have access to the licensing procedure, can't loaded open carry in most areas in California, and even worse, 1000 feet school zone which makes it unlawful to even unloaded open carry.

Best part of this is that NONE of this requires incorporation at all.

 

[Jim March]

Best part of this is that NONE of this requires incorporation at all.

Welll...yeah, sorta.

OK. What I'm trying to do here is as follows:

1) Dangle incorporation in front of the judge - either full incorporation of the 2nd ("selective" incorporation via the due process clause) or whole incorporation of the Bill Of Rights (via privileges and immunities) or via California's apparent self-incorporation clause. Basically, it's a fishing line in the water, see if he bites.

2) If he DOESN'T bite, then we fall back on the Saenz/Ward precedents. Which are basically foolproof, even if I do have a fool for a client. Those cases say that a state cannot discriminate against residents of other states in the area of ANY civil right recognized by the Federal government. That covers the whole BOR and then some ("right to travel" and "right to engage in commerce" among others).

Put another way, we right now HAVE "full incorporation" but only when a state discriminates against residents of other states.

Fiddletown: I'm familiar with 8(a). But you're apparently not familiar with Bell Atlantic Corp. v. Twombly (2007) which re-stated the rules on Federal pleadings. We now have to be more detailed, or the judge can boot our butts even before the other side does a demurr or motion to dismiss.

As to standing issues. California says that I have no access to a Federally recognized civil right, when California residents DO have access (in some form anyways) to that right. Again: read Ward:

http://supreme.justia.com/us/79/418/case.html

...and Saenz:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=526&page=489

Now here's the cool part. The Ward case was, as far as I can tell, the VERY FIRST supreme court case on the 14th Amendment. They were saying that the 14A P&I clause was causing this specific effect (banning cross-border discrimination by a state against US citizens of other states). They deliberately did not exclude any broader interpretation of the P&I clause.. Check out this quote from Ward:

Attempt will not be made to define the words "privileges and immunities" or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the Court. Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation; to acquire personal property; to take and hold real estate; to maintain actions in the courts of the state; and to be exempt from any higher taxes or excises than are imposed by the state upon its own citizens.

In other words, my winning a Ward-style form of incorporation will NOT screw anybody else going for more expansive incorporation later.

I'll definitely pull the snarky bit about Scalia's sense of humor. That was accidental, it was part of a cut'n'paste from something else I'd written earlier and I didn't catch it here.

Now as to Heller not declaring a right to carry...

Is there ANY case law anywhere in the US separating the right to "keep" arms from the right to "bear"? In other words, we've seen courts (including the 9th Circuit) disparage both at once. But have we ever seen them support "keep" while vioating (and supporting a right to violate" the "bear" part?

California's position now (with pre-Heller court support) is that state law can be revised at any time to eliminate or restrict "keeping" arms. They currently allow "keeping" unless it's an "evil black rifle" or can be confused with same.

In order to rule that I don't have a right to "bear arms" in any form, that court would have to invent a mechanism to support disconnecting "keep" from "bear" in the 2nd. No court has ever tried that I know of. Am I wrong?

 

[Frank Ettin]

Well in Ward, Ward actually violated the Maryland law at issue and was indicted for it. That's what gave him standing.

In Sanez, Sanez was the Director of the California Department of Social Services and was a party in her official capacity. The parties who initiated the action were two individuals, Brenda Roe and Anne Doe, who had been California residents and recipients of welfare benefits, who left the State and then returned. At issue was a then recent change in the California welfare laws that would have made them eligible for only a reduced welfare benefit compared with the benefit they would have received were it not for the enactment, prior to their return to California, of that law. Thus they had standing because they could show specific, direct and personal pecuniary injury by application of the California law.

As to the degree of detail in the complaint, we'll see.

 

[romma]

So the natural right to self-defense ends when you lock your door on the way to work on Monday mornings...

Interesting.

 

[hvengel]

Wasn't there a case involving the extra taxes that California charged when people moved into California and "imported" a car from out of state. They used to tack on an extra $300 tax for this and I know someone who moved out of California and moved back with the same car who had to pay the tax when he moved back. I am not sure how far up this case went but in the end the tax was invalidated because it affected peoples ability to freely travel and move. In the end California had to refund the tax to everyone who had paid it.

 

[ilbob]

I don't want to discourage you from putting words to paper, but its always a bad idea to try and be your own lawyer. Just getting the right words sometimes is a problem. Its important to use the correct legal terms rather than using terminology that you think means the same thing, but may not.

I would suggest rather than a draft pleading, put your thoughts to paper on what areas you think a law suit would cover and what you think the important points are. Let a real lawyer who is on our side dot the I's and cross the T's. There is a reason such a lawyer may well cost $100k over the life of the action.

 

[chetth]

Also you could have standing under the California State Constitution:

ARTICLE 1 DECLARATION OF RIGHTS


SEC. 24. Rights guaranteed by this Constitution are not dependent
on those guaranteed by the United States Constitution.
In criminal cases the rights of a defendant to equal protection of
the laws, to due process of law, to the assistance of counsel, to be
personally present with counsel, to a speedy and public trial, to
compel the attendance of witnesses, to confront the witnesses against
him or her, to be free from unreasonable searches and seizures, to
privacy, to not be compelled to be a witness against himself or
herself, to not be placed twice in jeopardy for the same offense, and
to not suffer the imposition of cruel or unusual punishment, shall
be construed by the courts of this State in a manner consistent with
the Constitution of the United States. This Constitution shall not
be construed by the courts to afford greater rights to criminal
defendants than those afforded by the Constitution of the United
States, nor shall it be construed to afford greater rights to minors
in juvenile proceedings on criminal causes than those afforded by the
Constitution of the United States.
This declaration of rights may not be construed to impair or deny
others retained by the people.

The above sentence above cites rights retained by the people. Amendment 2 of the USC does not grant a right but affirms a pre-existing 'natural' right which is retained by the people and shall not be infringed, which is being denied to you under California law.

my 2¢

 

[Henry Bowman]

Put another way, we right now HAVE "full incorporation" but only when a state discriminates against residents of other states.

But California doesn't allow its own residents to carry loaded firearms, even openly (except with discretionary CCW).

As to standing issues. California says that I have no access to a Federally recognized civil right, when California residents DO have access (in some form anyways) to that right.

Why not have a CA resident first sue to establish that right to "bear"? Then sue as a non-resident for the equal right.

 

[Jim March]

OK, let's try this on for size: what happens if I chop the whole thing down so that the ONLY 14th Amendment mechanism claimed is via Ward/Saenz and my out-of-state connection?

See, my original thought was to dangle real incorporation (including for California residents) out there like some kind of fishing lure the judge could grab if he wanted to - otherwise he'd go with Saenz/Ward. But unfortunately that leaves open the possibility that he won't act like a fish...instead he'll grab the incorporation part, smash it to heck and gone and pee all over what's left, before one of the "pros" like Chuck Michel or Don Kilmer could get ahold of it.

That would be bad.

The resulting "chopped" version is almost four pages shorter and a lot simpler. Everything related to Cruikshank is gone, fr'instance.

If I win, remember that this interpretation of the 14th P&I doesn't exclude other interpretations. In fact the Ward court covered exactly that point:

Attempt will not be made to define the words "privileges and immunities" or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the Court. Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce...

~

I did some checking and yeah, it should be "March v. Brown". Cool.

~

BIG point: some of you are on my rump (grin!) regarding how much this looks like a motion. Believe it or not, I do understand what "motion pleading" is and how weird this looks. But y'all ought to take a gander at this:

http://www.cadwalader.com/assets/article/091307HoffSeidelNYLJ.pdf

New York Law Journal - Impact of ‘Twombly’ on Notice Pleading

The first chunk:

It has been accepted that under the “liberal pleading requirements” of the Federal Rules of Civil Procedure, “a complaint should not be dismissed...unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”1

Thus, for five decades, Conley v. Gibson and its progeny have permitted claims to proceed to discovery so long as there was a possibility that a plaintiff could establish any facts that could support entitlement to relief. During the 2007 Term, the Supreme Court in Bell Atlantic Corp. v. Twombly, “retired” Conley’s “no set of facts” standard, holding that, to survive a motion to dismiss, plaintiffs must plead enough facts to “nudg[e] their claims across the line from conceivable to plausible....”2 In so doing, the Supreme Court made it easier for courts to dismiss claims at the pleading stage so that the “threat of discovery expense will [not] push cost-conscious defendants to settle even anemic cases....”3

Although Twombly was an antitrust case, the Court’s reversal of Conley’s liberal pleading standard may prove far more significant than the substantive antitrust holding and could have far-reaching consequences in complex commercial litigations, such as securities litigations, requiring plaintiffs to provide more factual detail in their complaints in order to avoid dismissal.

Yeah. In other words, I not only have to survive summary judgment, I have to survive a judge's decision to toss me out if I don't pass an initial "sanity check" as to the case's viability. And I have a real good idea how many Federal judges would love to say "waddya mean right to carry?" or "waddya mean 14th Amendment rights - see Slaughter-house!"

And thus hose me immediately.

If I *don't* come up with some damned good evidence that there's a civil right to bear arms AND that there's a 14th Amendment enforcement mechanism with solid case law behind it, I might not survive that initial attack by the *judge*.

So yeah, the result looks more like a motion than a pleading.

Still think it's overkill?

 

[Jim March]

Quoting Henry:

Why not have a CA resident first sue to establish that right to "bear"? Then sue as a non-resident for the equal right.

Because a CA resident has two fights on his hands: incorporation and the right to bear.

I only have one - the "bear" part. Incorporation is solved for me via Ward/Saenz.

Remember: valid case law in the 9th Circus (Fresno Rifle, 1992, 3-judge panel of the 9th) says specifically that the Federal 2nd Amendment doesn't apply to the states due to Cruikshank. They'd have to battle past all that.

I don't.

 

[Gray Peterson]

You know, I'd personally join in on this lawsuit if it weren't for the general rule that pro-se cases can only have one plaintiff.

 

[DMF]

If you seriously wish to pursue this, and you want the court(s) to take you seriously, then you NEED to get qualified lawyers to help you with this.

I am not a lawyer, but at work I prepare documents for the court(s), and often must review court documents prepared by others. I can tell you that no court will take you seriously if you present you arguments as you have in the linked document.

Again, if you want to go down this path get some lawyers to guide you.

 

[Jim March]

Can you show me an example layout to do this with?

Also: what ARE the implications of Twombly on this type of case? Everybody is criticizing, several have said "do a simpler pleading" in line with the pre-Twombly situation, but...is it barely possible I've spotted an issue (Twombly's implications) that people are missing?

 

[loneviking]

Jim, you need to get an attorney licensed by the state of California and familiar with the Fed. Eastern Dist. court. I graduated from law school in California, (no, I do not have a license to practice) and I can tell you that your suit will be promptly dismissed on the issue of 'ripeness'.

You have not personally been denied a CCW permit by a sheriff in a county in California. Therefore, the claimed injury is only hypothetical and the Fed. courts will not hear those types of cases.

Making the defendant the AG also will not work. The AG does not issue CCW permits, only the local sheriffs do. You have to have a specific defendant, one of the local sheriffs, on record as denying you a permit. You have also not made a claim showing that the denial of a permit caused you harm in some fashion.

Finally, the gist of your suit would fall under the Commerce Clause of the Constitution. This clause is used all the time for claimed instances where one state treats its' residents differently from out-of-staters. There are rules and situations where this is perfectly o.k. Examples would be the hunting and fishing fees that are higher for non-residents. There are other situations, such as local farmers growing corn that a farmer the next state over can't grow that aren't O.K. This area is complex, and you really need to find an attorney that is up-to-date on Fed. law and the very complex Fed. practice and procedure.

 

[Henry Bowman]

But, Jim, under Ward/Saenz you can only get the same rights CA residents have -- may issue -- so denial for any reason is upheld.

It seems to me you (or a CA resident) are better off arguing that the state constitution has already self-incorporated the COTUS. You (as a nonresident) still have to overcome the "bear" part as well. Heller didn't address "bear" outside the home, so Ward/Saenz gets you no more than a CA resident has.

 

[Gray Peterson]

It seems to me you (or a CA resident) are better off arguing that the state constitution has already self-incorporated the COTUS. You (as a nonresident) still have to overcome the "bear" part as well. Heller didn't address "bear" outside the home, so Ward/Saenz gets you no more than a CA resident has.

1) Self Incorporation can only be decided by the California courts, not the federal courts. My read on the California courts is that when it comes to anything involving guns, every semblance of constitutional freedom gets thrown out the window, especially when it comes to search and seizure issues. California judiciary system is infested by people who think gun owners are a scourge to be annihilated from the land of California, and have been influenced to a great degree by the Legal Community Against Violence, a gun control community made up of lawyers and judges. Simply enough, the California courts cannot be trusted under any circumstances to rule honestly about self incorporation, or the civil liberties of gun owners, just like the southern state judiciaries could not make correct or honest rulings over racial discrimination issues for almost a century. Flat out, they hate gun owners so much that they cannot rule properly.

2) Ward and Saenz had NOTHING to do with incorporation at all. It was a pure privileges and immunities case. If the worst that can happen is that it opens up California's counties to issue licenses out of state, so what?

3) "Heller didn't address "bear" outside of the home". Yes it did.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[Footnote 26]

What Jim is essentially arguing here is that Slaughterhouse and by implication Cruikshank allowed states to run roughshod over the rights of their own state citizens, but that Ward and Saenz foreclosed on implicating the civil liberties of visitors and newly arrived residents.

If California did not have PC12031, and PC626.9 (the loaded carry ban and the 1000 foot school zones bans), I believe that his lawsuit against California would likely fail to abdicate the "arbitrary and capricious" issuance policies, but he probably would at least open it up to out of state residents to apply in any county. He also believes that the federal court striking down PC12031 and PC626.9 is the "least likely scenario". I believe him to be wrong on that score (due to the precedent in Heller and in Robertson v. Baldwin back in 1897), but that's the reason why I suggested including that as a possible cause of action for the court to entertain.

A lawsuit against Oregon would also likely succeed on this score, because the state of Oregon allows cities and counties to ban all loaded carry without a CHL, and makes it may issue to contiguous state residents whereas state residents are shall-issue, and they refuse to issue to residents from non bordering states. This also patently violates Ward. Also, if it wasn't for the Colorado Supreme Court allowing Denver to continue it's open carry ban, the recent statute they passed only allowing residents of reciprocal states to carry would probably not be challenged.

 

[Frank Ettin]

Lonnie, I've got to back Henry on this.

...My read on the California courts is that when it comes to anything involving guns, every semblance of constitutional freedom gets thrown out the window, especially ...California judiciary system is infested by people who think gun owners are a scourge to be annihilated...

I'm not sure that this is necessarily true. The State courts threw out the San Francisco gun ban, as well as other local anti-gun laws, on state preemption grounds.

At the same time, any action in federal court is going to wind up at the 9th Circuit, and that Circuit has displayed some rabid anti-gun tendencies.

Ward and Saenz had NOTHING to do with incorporation at all. It was a pure privileges and immunities case....

True, but neither did they involve rights enumerated in the Bill of Rights. If you're going to invoke the Second Amendment or Heller, you will need incorporation.

 

[Gray Peterson]

I'm not sure that this is necessarily true. The State courts threw out the San Francisco gun ban, as well as other local anti-gun laws, on state preemption grounds.

Yes, because there was a state law that preempted it, and they had really no choice but to rule the way that they did. What I was talking about was the idea of the California courts self incorporating the Second Amendment onto the California State government. That simply flat out is not going to happen.

At the same time, any action in federal court is going to wind up at the 9th Circuit, and that Circuit has displayed some rabid anti-gun tendencies.

9th Circuit certainly wasn't the originator of the "collective rights" BS in the lower courts, it was the 1st and 2nd circuits with Cases v. United States and United States v. Tot that started that.

You're right that the 9th Circuit has had a large volume of Second Amendment cases due to the fact that California exists in it's circuit with no version of the 2A in it's state constitution (which should be a long term goal to change, btw) and regularly passes stupid laws against guns and gun owners. Hickman v. Block, Fresno Rifle v. Van De Kamp, and several others came out of the 9th circuit however the entire lynch pin of their determinations of collective rights just got yanked out from under them with Heller. You throw in Scalia's repeated warnings not to rely at all on Cruikshank for incorporation analysis, and the fact that every incorporation case has come from appeals to SCOTUS from the State's highest court of appeal (rather than through the federal court systems), they certainly are not bound by it.

Plus, you add in the fact that the Nordyke case panel from 2003, the same panel which begrudgingly said "collective right" while saying in their opinion that they are bound by that determination until a higher court ruled otherwise now is rehearing the same case. I expect incorporation within the entirety of the 9th circuit within 5 months, making this entire argument a moot point. Anyone here betting men/women?

True, but neither did they involve rights enumerated in the Bill of Rights. If you're going to invoke the Second Amendment or Heller, you will need incorporation.

Wait wait wait, hold on a second. You're trying to tell me that when Ward and Saenz decided, because it wasn't "enumerated rights" in the constitution in terms of "right to travel" (read the 9th amendment), they deserved protection, but the enumerated rights of the first 8 amendments were not? That doesn't make any sense.