Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 1 of 189 Page ID #:122 1 ROB BONTA Attorney General of California 2 MARK R. BECKINGTON Supervising Deputy Attorney General 3 ROBERT L. MEYERHOFF Deputy Attorney General 4 State Bar No. 298196 300 South Spring Street, Suite 1702 5 Los Angeles, CA 90013-1230 Telephone: (213) 269-6177 6 Fax: (916) 731-2144 E-mail: Robert.Meyerhoff@doj.ca.gov 7 Attorneys for Defendants Robert A. Bonta, Luis Lopez, and the California Department of Justice 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 13 ENDIR BRISENO, NEIL OPDAHL- 2:21-cv-09018 14 LOPEZ, AND RODNEY WILSON, INDIVIDUALLY AND ON BEHALF OF ALL DECLARATION OF ROBERT L. 15 OTHERS SIMILARLY SITUATED, MEYERHOFF IN SUPPORT OF DEFENDANTS ROBERT A. 16 Plaintiffs, BONTA, LUIS LOPEZ, AND CALIFORNIA DEPARTMENT OF 17 v. JUSTICE’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT 18 ROBERT A. BONTA, IN HIS OFFICIAL OF MOTION TO DISMISS, CAPACITY AS ATTORNEY GENERAL FOR ABSTAIN FROM HEARING, 19 THE STATE OF CALIFORNIA; LUIS AND/OR STAY PLAINTIFFS’ LOPEZ, IN HIS OFFICIAL CAPACITY AS COMPLAINT 20 ACTING CHIEF OF THE CALIFORNIA DEPARTMENT OF JUSTICE BUREAU OF 21 FIREARMS; CALIFORNIA Date: February 28, 2022 DEPARTMENT OF JUSTICE; AND Time: 1:30 p.m. 22 DOES 1-10, Judge: Hon. Otis D. Wright II Action Filed: November 17, 2021 23 Defendants. 24 25 26 27 28 Declaration of Robert L. Meyerhoff ISO Defendants’ Motion (Case No. 2:21-cv-09018) Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 2 of 189 Page ID #:123 1 I, Robert L. Meyerhoff, declare as follows: 2 1. I am a Deputy Attorney General with the California Department of 3 Justice and serve as counsel to Defendants Robert A. Bonta in his official capacity 4 as Attorney General of the State of California, Luis Lopez in his official capacity as 5 Acting Chief of the California Department of Justice Bureau of Firearms, and the 6 California Department of Justice in the above-captioned matter. Except as 7 otherwise stated, I have personal knowledge of the facts set forth in this declaration, 8 and if called upon as a witness I could testify competently as to those facts. I make 9 this declaration in support of Defendant’s Motion to Dismiss, Abstain from 10 Hearing, and/or Stay Plaintiffs’ Complaint. 11 2. Attached hereto as Exhibit 1 is a true and correct copy of the docket in 12 Franklin Armory, Inc., et al., v. California Department of Justice, et al., Case No. 13 20STCP01747, currently pending in the Superior Court of the State of California 14 for the County of Los Angeles (the Related Action). 15 3. Attached hereto as Exhibit 2 is a true and correct copy of the First 16 Amended Complaint filed on August 19, 2020, in the Related Action. 17 4. Attached hereto as Exhibit 3 is a true and correct copy of the court’s 18 Order on Demurrer to the First Amended Complaint, filed on January 28, 2021, in 19 the Related Action. 20 5. Attached hereto as Exhibit 4 is a true and correct copy of the Second 21 Amended Complaint filed on February 17, 2021, in the Related Action. 22 6. Attached hereto as Exhibit 5 is a true and correct copy of the Notice of 23 Motion and Motion to Dismiss the First, Second, and Eighth Causes of Action in 24 the Second Amended Complaint and Petition; Memorandum of Points and 25 Authorities filed on November 29, 2021, in the Related Action. 26 7. Attached hereto as Exhibit 6 is a true and correct copy of Plaintiffs 27 and Petitioners’ Memorandum of Points and Authorities in Opposition to 28 Declaration of Robert L. Meyerhoff ISO 1 Defendants’ Motion (Case No. 2:21-cv-09018) Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 3 of 189 Page ID #:124 1 Respondents’ Motion to Dismiss the First, Second, and Eighth Causes of Action in 2 the Second Amended Complaint, filed on January 13, 2022, in the Related Action. 3 I declare under penalty of perjury under the laws of the United States of 4 America that the foregoing is true and correct. Executed on January 24, 2022, at 5 Los Angeles, California. 6 7 Robert L. Meyerhoff 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Declaration of Robert L. Meyerhoff ISO 2 Defendants’ Motion (Case No. 2:21-cv-09018) Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 4 of 189 Page ID #:125 EXHIBIT 1 Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 5 of 189 Page ID #:126 CASE INFORMATION Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held Case Number: 20STCP01747 FRANKLIN ARMORY, INC., ET AL. VS CALIFORNIA DEPARTMENT OF JUSTICE, ET AL. Filing Courthouse: Stanley Mosk Courthouse Filing Date: 05/27/2020 Case Type: Writ - Administrative Mandamus (General Jurisdiction) Status: Pending Click here to access document images for this case If this link fails, you may go to the Case Document Images site and search using the case number displayed on this page FUTURE HEARINGS Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held 01/27/2022 at 09:30 AM in Department 85 at 111 North Hill Street, Los Angeles, CA 90012 Hearing on Motion to Dismiss 03/01/2022 at 1:30 PM in Department 85 at 111 North Hill Street, Los Angeles, CA 90012 Trial Setting Conference PARTY INFORMATION Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held BARNOUW BENJAMIN - Attorney for Defendant BARVIR ANNA MARIE - Attorney for Petitioner BECERRA XAVIER - Defendant CALIFORNIA DEPARTMENT OF JUSTICE - Defendant CALIFORNIA DEPARTMENT OF JUSTICE - Defendant CALIFORNIA RIFLE & PISTOL ASSOCIATION INCORPORATED - Petitioner DAVIS JASON ANDREW - Attorney for Petitioner FRANKLIN ARMORY INC. - Petitioner LAKE KENNETH GREGORY - Attorney for Defendant MOROS KONSTADINOS - Attorney for Petitioner DOCUMENTS FILED Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held Documents Filed (Filing dates listed in descending order) Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 6 of 189 Page ID #:127 Click on any of the below link(s) to see Register of Action Items on or before the date indicated: 01/28/2021 01/13/2022 Declaration (DECLARATION OF ANNA M. BARVIR IN SUPPORT OF PLAINTIFFS AND PETITIONERS? OPPOSITION TO RESPONDENTS? MOTION TO DISMISS THE FIRST, SECOND, AND EIGHTH CAUSES OF ACTION IN THE SECOND AMENDED COMPLAINT) Filed by California Rifle & Pistol Association, Incorporated (Petitioner) 01/13/2022 Opposition (PLAINTIFFS AND PETITIONERS? MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RESPONDENTS? MOTION TO DISMISS THE FIRST, SECOND, AND EIGHTH CAUSES OF ACTION IN THE SECOND AMENDED COMPLAINT) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 11/29/2021 Declaration (of Cheryle Massaro-Florez in Support of Motion to Dismiss) Filed by California Department of Justice (Defendant) 11/29/2021 Declaration (of Maricela Leyva in Support of Motion to Dismiss) Filed by California Department of Justice (Defendant) 11/29/2021 Request for Judicial Notice Filed by California Department of Justice (Defendant) 11/29/2021 Motion to Dismiss Filed by California Department of Justice (Defendant) 11/24/2021 Notice of Appearance (OF KONSTADINOS T. MOROS) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 11/23/2021 Stipulation and Order (Continuing Trial Setting Conference and Discovery Cut-Off) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner); Xavier Becerra (Defendant) et al. 10/26/2021 Decision on (1) demurrer: overruled for verification, sustained as to affirmative defenses; (2) motion to strike: denied as moot except to 43rd affirmative defense, which is granted Filed by Clerk 10/26/2021 Minute Order ( (Hearing on Demurrer with Motion to Strike (CCP 430.10))) Filed by Clerk 10/12/2021 Minute Order ( (Court Order - Continuance of Hearing on Demurrer)) Filed by Clerk 10/06/2021 Reply (to Respondents' Opposition to Demurrer and Motion to Strike Respondents' Answer) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 09/30/2021 Opposition (to Demurrer and Motion to Strike Answer to First, Second and Eighth Causes of Action on the Second Amended Complaint) Filed by Xavier Becerra (Defendant) 08/05/2021 Demurrer - with Motion to Strike (CCP 430.10) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 08/04/2021 Memorandum of Points & Authorities (MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS AND PETITIONERS? DEMURRER TO AND MOTION TO STRIKE RESPONDENTS? ANWER TO THE FIRST, SECOND, AND EIGHTH CAUSES OF ACTION TO THE SECOND AMENDED COMPLAINT) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 08/04/2021 Declaration (DECLARATION OF ANNA M. BARVIR IN SUPPORT OF PLAINTIFFS AND PETITIONERS? DEMURRER TO AND MOTION TO STRIKE RESPONDENTS? ANSWER TO THE FIRST, SECOND, AND EIGHTH CAUSES OF ACTION TO THE SECOND AMENDED COMPLAINT) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 7 of 189 Page ID #:128 07/06/2021 Declaration (of Demurring or Moving Party in Support of Automatic Extension) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 06/29/2021 Request for Judicial Notice Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 06/23/2021 Answer Filed by Xavier Becerra (Defendant) 06/03/2021 Decision on demurrer: overruled Filed by Clerk 06/03/2021 Minute Order ( (Hearing on Demurrer; Trial Setting Conference)) Filed by Clerk 05/27/2021 Minute Order ( (Trial Setting Conference)) Filed by Clerk 05/26/2021 Reply (TO OPPOSITION TO THE DEMURRER TO THE FIRST, SECOND AND EIGHTH CAUSES OF ACTION TO THE SECOND AMENDED COMPLAINT AND PETITION) Filed by Xavier Becerra (Defendant) 05/20/2021 Opposition (PLAINTIFFS AND PETITIONERS? MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RESPONDENTS? DEMURRER) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 03/23/2021 Memorandum of Points & Authorities Filed by Xavier Becerra (Defendant) 03/23/2021 Demurrer - without Motion to Strike Filed by Xavier Becerra (Defendant) 02/25/2021 Minute Order ( (Trial Setting Conference)) Filed by Clerk 02/17/2021 Amended Complaint ( (2nd)) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) Click on any of the below link(s) to see Register of Action Items on or before the date indicated: TOP 01/28/2021 01/28/2021 Decision on demurrer: sustained Filed by Clerk 01/28/2021 Minute Order ( (Hearing on Demurrer; Trial Setting Conference)) Filed by Clerk 01/21/2021 Notice (of Continuance of (1) Trial Setting Conference and (2) Hearing on Demurrer to First Amended Complaint and Petition) Filed by California Department of Justice (Defendant); Xavier Becerra (Defendant) 01/21/2021 Minute Order ( (Court Order - Continuance of Demurrer/Trial Setting Conference)) Filed by Clerk 01/19/2021 Reply (Brief in Support of Demurrer by Defendants-Respondents California Department of Justice and Xavier Becerra to First Amended Complaint and Petition) Filed by California Department of Justice (Defendant); Xavier Becerra (Defendant) 01/13/2021 Motion for Leave to Amend (Complaint and Petition for Writ of Mandate) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 01/12/2021 Memorandum of Points & Authorities Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 8 of 189 Page ID #:129 01/12/2021 Declaration (of Anna M. Barvir in Support of Motion for Leave to File Second Amended Verified Complaint) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 01/12/2021 Opposition (PLAINTIFFS AND PETITIONERS? MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RESPONDENTS? DEMURREER) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 01/07/2021 Notice Re: Continuance of Hearing and Order Filed by Clerk 12/30/2020 Notice of Appearance (OF ANNA M. BARVIR) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 10/30/2020 Memorandum of Points & Authorities Filed by California Department of Justice (Defendant) 10/30/2020 Demurrer - without Motion to Strike Filed by California Department of Justice (Defendant) 10/15/2020 Minute Order ( (Trial Setting Conference)) Filed by Clerk 09/29/2020 Minute Order ( (Trial Setting Conference)) Filed by Clerk 09/28/2020 Stipulation and Order (to Continue Trial Setting Conference and [Proposed] Order thereon) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 09/03/2020 Minute Order ( (Trial Setting Conference)) Filed by Clerk 08/19/2020 Amended Complaint ( (1st)) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 07/22/2020 Stipulation and Order (Joint Stipulation to Extend the Time for Respondents-Defendants to File a Responsive Pleading in Response to the Petition-Complaint; Proposed Order on Joint Stipulation) Filed by California Department of Justice (Defendant); Xavier Becerra, , in his official capacity as Attorney General for the State of California (Defendant) 06/25/2020 Declaration (of Demurring or Moving Party In Support Of Automatic Extension) Filed by California Department of Justice (Defendant); Xavier Becerra, , in his official capacity as Attorney General for the State of California (Defendant) 06/22/2020 Notice (Plaintiffs' Notice of Trial Setting Conference) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 06/03/2020 Proof of Service by Substituted Service Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 06/03/2020 Proof of Service by Substituted Service Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 05/27/2020 Notice of Trial Setting Conference and Attached Orders Thereon Filed by Clerk 05/27/2020 Notice of Case Assignment - Unlimited Civil Case Filed by Clerk 05/27/2020 Summons (on Complaint) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 05/27/2020 Verified Complaint for Declaratory and Injunctive Relief; Petition for Writ of Mandate and/or Prohibition or other Appropriate Relief Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 9 of 189 Page ID #:130 Click on any of the below link(s) to see Register of Action Items on or before the date indicated: TOP 01/28/2021 PROCEEDINGS HELD Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held Proceedings Held (Proceeding dates listed in descending order) 11/30/2021 at 1:30 PM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Not Held - Continued - Stipulation 10/26/2021 at 1:30 PM in Department 85, James C. Chalfant, Presiding Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held 10/14/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Continued - Court's Motion 10/12/2021 at 3:00 PM in Department 85, James C. Chalfant, Presiding Court Order 06/03/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 06/03/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Hearing on Demurrer - without Motion to Strike - Held 05/27/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 03/25/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Hearing on Motion for Leave (to File Second Amended Verified Complaint for Declaratory and Injunctive Relief) - Not Held - Advanced and Vacated 02/25/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 01/28/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Hearing on Demurrer - without Motion to Strike - Held 01/28/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 01/26/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Not Held - Clerical Error 01/26/2021 at 1:30 PM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Not Held - Continued - Court's Motion 01/26/2021 at 1:30 PM in Department 85, James C. Chalfant, Presiding Hearing on Demurrer - without Motion to Strike - Not Held - Continued - Court's Motion 01/21/2021 at 2:00 PM in Department 85, James C. Chalfant, Presiding Court Order 10/15/2020 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 09/29/2020 at 1:30 PM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Not Held - Continued - Stipulation 09/03/2020 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 10 of 189 Page ID #:131 REGISTER OF ACTIONS Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held Register of Actions (Listed in descending order) Click on any of the below link(s) to see Register of Action Items on or before the date indicated: 03/23/2021 06/03/2020 01/13/2022 Opposition (PLAINTIFFS AND PETITIONERS? MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RESPONDENTS? MOTION TO DISMISS THE FIRST, SECOND, AND EIGHTH CAUSES OF ACTION IN THE SECOND AMENDED COMPLAINT) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 01/13/2022 Declaration (DECLARATION OF ANNA M. BARVIR IN SUPPORT OF PLAINTIFFS AND PETITIONERS? OPPOSITION TO RESPONDENTS? MOTION TO DISMISS THE FIRST, SECOND, AND EIGHTH CAUSES OF ACTION IN THE SECOND AMENDED COMPLAINT) Filed by California Rifle & Pistol Association, Incorporated (Petitioner) 11/30/2021 at 1:30 PM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Not Held - Continued - Stipulation 11/29/2021 Motion to Dismiss Filed by California Department of Justice (Defendant) 11/29/2021 Declaration (of Maricela Leyva in Support of Motion to Dismiss) Filed by California Department of Justice (Defendant) 11/29/2021 Request for Judicial Notice Filed by California Department of Justice (Defendant) 11/29/2021 Declaration (of Cheryle Massaro-Florez in Support of Motion to Dismiss) Filed by California Department of Justice (Defendant) 11/24/2021 Notice of Appearance (OF KONSTADINOS T. MOROS) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 11/23/2021 Stipulation and Order (Continuing Trial Setting Conference and Discovery Cut-Off) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner); Xavier Becerra (Defendant) et al. 10/26/2021 at 1:30 PM in Department 85, James C. Chalfant, Presiding Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held 10/26/2021 Decision on (1) demurrer: overruled for verification, sustained as to affirmative defenses; (2) motion to strike: denied as moot except to 43rd affirmative defense, which is granted Filed by Clerk 10/26/2021 Minute Order ( (Hearing on Demurrer with Motion to Strike (CCP 430.10))) Filed by Clerk 10/14/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Continued - Court's Motion 10/12/2021 at 3:00 PM in Department 85, James C. Chalfant, Presiding Court Order 10/12/2021 Minute Order ( (Court Order - Continuance of Hearing on Demurrer)) Filed by Clerk Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 11 of 189 Page ID #:132 10/06/2021 Reply (to Respondents' Opposition to Demurrer and Motion to Strike Respondents' Answer) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 09/30/2021 Opposition (to Demurrer and Motion to Strike Answer to First, Second and Eighth Causes of Action on the Second Amended Complaint) Filed by Xavier Becerra (Defendant) 08/05/2021 Demurrer - with Motion to Strike (CCP 430.10) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 08/04/2021 Memorandum of Points & Authorities (MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS AND PETITIONERS? DEMURRER TO AND MOTION TO STRIKE RESPONDENTS? ANWER TO THE FIRST, SECOND, AND EIGHTH CAUSES OF ACTION TO THE SECOND AMENDED COMPLAINT) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 08/04/2021 Declaration (DECLARATION OF ANNA M. BARVIR IN SUPPORT OF PLAINTIFFS AND PETITIONERS? DEMURRER TO AND MOTION TO STRIKE RESPONDENTS? ANSWER TO THE FIRST, SECOND, AND EIGHTH CAUSES OF ACTION TO THE SECOND AMENDED COMPLAINT) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 07/06/2021 Declaration (of Demurring or Moving Party in Support of Automatic Extension) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 06/29/2021 Request for Judicial Notice Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 06/23/2021 Answer Filed by Xavier Becerra (Defendant) 06/03/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Hearing on Demurrer - without Motion to Strike - Held 06/03/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 06/03/2021 Decision on demurrer: overruled Filed by Clerk 06/03/2021 Minute Order ( (Hearing on Demurrer; Trial Setting Conference)) Filed by Clerk 05/27/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 05/27/2021 Minute Order ( (Trial Setting Conference)) Filed by Clerk 05/26/2021 Reply (TO OPPOSITION TO THE DEMURRER TO THE FIRST, SECOND AND EIGHTH CAUSES OF ACTION TO THE SECOND AMENDED COMPLAINT AND PETITION) Filed by Xavier Becerra (Defendant) 05/20/2021 Opposition (PLAINTIFFS AND PETITIONERS? MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RESPONDENTS? DEMURRER) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 03/25/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Hearing on Motion for Leave (to File Second Amended Verified Complaint for Declaratory and Injunctive Relief) - Not Held - Advanced and Vacated Click on any of the below link(s) to see Register of Action Items on or before the date indicated: TOP 03/23/2021 06/03/2020 03/23/2021 Memorandum of Points & Authorities Filed by Xavier Becerra (Defendant) Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 12 of 189 Page ID #:133 03/23/2021 Demurrer - without Motion to Strike Filed by Xavier Becerra (Defendant) 02/25/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 02/25/2021 Minute Order ( (Trial Setting Conference)) Filed by Clerk 02/17/2021 Amended Complaint ( (2nd)) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 01/28/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 01/28/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Hearing on Demurrer - without Motion to Strike - Held 01/28/2021 Minute Order ( (Hearing on Demurrer; Trial Setting Conference)) Filed by Clerk 01/28/2021 Decision on demurrer: sustained Filed by Clerk 01/26/2021 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Not Held - Clerical Error 01/26/2021 at 1:30 PM in Department 85, James C. Chalfant, Presiding Hearing on Demurrer - without Motion to Strike - Not Held - Continued - Court's Motion 01/26/2021 at 1:30 PM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Not Held - Continued - Court's Motion 01/21/2021 at 2:00 PM in Department 85, James C. Chalfant, Presiding Court Order 01/21/2021 Notice (of Continuance of (1) Trial Setting Conference and (2) Hearing on Demurrer to First Amended Complaint and Petition) Filed by California Department of Justice (Defendant); Xavier Becerra (Defendant) 01/21/2021 Minute Order ( (Court Order - Continuance of Demurrer/Trial Setting Conference)) Filed by Clerk 01/19/2021 Reply (Brief in Support of Demurrer by Defendants-Respondents California Department of Justice and Xavier Becerra to First Amended Complaint and Petition) Filed by California Department of Justice (Defendant); Xavier Becerra (Defendant) 01/13/2021 Motion for Leave to Amend (Complaint and Petition for Writ of Mandate) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 01/12/2021 Opposition (PLAINTIFFS AND PETITIONERS? MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RESPONDENTS? DEMURREER) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 01/12/2021 Memorandum of Points & Authorities Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 01/12/2021 Declaration (of Anna M. Barvir in Support of Motion for Leave to File Second Amended Verified Complaint) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 01/07/2021 Notice Re: Continuance of Hearing and Order Filed by Clerk 12/30/2020 Notice of Appearance (OF ANNA M. BARVIR) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 13 of 189 Page ID #:134 10/30/2020 Memorandum of Points & Authorities Filed by California Department of Justice (Defendant) 10/30/2020 Demurrer - without Motion to Strike Filed by California Department of Justice (Defendant) 10/15/2020 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 10/15/2020 Minute Order ( (Trial Setting Conference)) Filed by Clerk 09/29/2020 at 1:30 PM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Not Held - Continued - Stipulation 09/29/2020 Minute Order ( (Trial Setting Conference)) Filed by Clerk 09/28/2020 Stipulation and Order (to Continue Trial Setting Conference and [Proposed] Order thereon) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 09/03/2020 at 09:30 AM in Department 85, James C. Chalfant, Presiding Trial Setting Conference - Held - Continued 09/03/2020 Minute Order ( (Trial Setting Conference)) Filed by Clerk 08/19/2020 Amended Complaint ( (1st)) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 07/22/2020 Stipulation and Order (Joint Stipulation to Extend the Time for Respondents-Defendants to File a Responsive Pleading in Response to the Petition-Complaint; Proposed Order on Joint Stipulation) Filed by California Department of Justice (Defendant); Xavier Becerra, , in his official capacity as Attorney General for the State of California (Defendant) 06/25/2020 Declaration (of Demurring or Moving Party In Support Of Automatic Extension) Filed by California Department of Justice (Defendant); Xavier Becerra, , in his official capacity as Attorney General for the State of California (Defendant) 06/22/2020 Notice (Plaintiffs' Notice of Trial Setting Conference) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) Click on any of the below link(s) to see Register of Action Items on or before the date indicated: TOP 03/23/2021 06/03/2020 06/03/2020 Proof of Service by Substituted Service Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 06/03/2020 Proof of Service by Substituted Service Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 05/27/2020 Notice of Case Assignment - Unlimited Civil Case Filed by Clerk 05/27/2020 Summons (on Complaint) Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 05/27/2020 Verified Complaint for Declaratory and Injunctive Relief; Petition for Writ of Mandate and/or Prohibition or other Appropriate Relief Filed by Franklin Armory, Inc. (Petitioner); California Rifle & Pistol Association, Incorporated (Petitioner) 05/27/2020 Notice of Trial Setting Conference and Attached Orders Thereon Filed by Clerk Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 14 of 189 Page ID #:135 Click on any of the below link(s) to see Register of Action Items on or before the date indicated: TOP 03/23/2021 06/03/2020 Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 15 of 189 Page ID #:136 EXHIBIT 2 Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 16 of 189 Page ID #:137 FILED SupEll'iot Court of Oalil'u-niia C.04.lflty o-f Los Angeles 08/119,12020 C.D. Mf CHEL- SBN 144258 ~!l!liri R Caic!t, Exm.illM!l O I <Ii!!l · of Ccu1 Ja on A. Davis - B 224250 By: L. Oasfilkjo• y 2 MICHEL & A OCIAT S, P.C. 3 180 . Ocean Blvd, Suite 200 Long Beach, CA 90802 4 Telephone: (562) 216-4444 Facsimile: (562) 216-4445 Email: CMichel@michellawyers.com 6 Attorn ys for Petitioner - Plaintiffs 7 8 UPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES 10 FRA KLIN ARMORY, l C. and ) Case No.: 20STCP01747 II CALIFOR IA RlFL & PT TOL ) 12 A OClATIO , I CORPORATED ) VERIFIED FIRST AMENDED ) COMPLAINT FOR DECLARATORY AND 13 P .titioners-Plaintiff: ) INJUNCTIVE RELIEF; PETITION FOR ) WRIT OF MANDATE AND/OR 14 ) PROHIBITION OR OTHER 15 ) APPROPRIATE RELIEF CALIFORNIA DEPARTME T OF JUSTI E ) Electronically Received 08/19/2020 03:03 PM 16 AVIER BECERRA, both hi p r anal ) U LIMITED JURISDICTIO capacity and official capa ity as Attorney ) 17 s) Genera I for the State of California, and DO 1-10, 18 ) 19 Respondents-Defi ndants. ) 20 _J 22 23 24 25 26 27 28 Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 17 of 189 Page ID #:138 FRA KLJ ARMORY fNC. and CALIFORN I RJFLE & Pl TOLA O IATION, 2 ORPORATED petition thi cou1t for de laratory relief injuncti relief and a writ of mandat 3 relating to CALI · OR IA D P RTME T OF JU TICE, XAVlER B CERRA and DOE 1- 10 4 (collectively ·'DE E DA TS"') implementation of unlawful technological barriers preventing the lawful transfer of firearms and failure and/or refusal to timely perform th duties relating to the sale. 6 loan, transfer, purcha e and pr ces ing f firearm that are neither ·'handguns,' nor --shotgun · nor 7 "rifle , ' including the R KL ARMORY, fNC. fir arm designated with the model name "Title I.'' 8 PARTIES 9 I. Plaintiff FRA KLI ARMORY I C. (" AI") i a federally licen d firearms manufacturer IO incorporated und r th la of evada with its principaJ plac of bu iness in Minden N vada and a 11 manufacturing facility in Minden, evada. FA! pecializes in manufacturing firearms for civilian 12 sporting and recreation, military and law enforcement appli ation . 13 2. Pertinent here, FA! manufacture a erie of firearms which are neither "rifles,' nor' pistols,' nor 14 'shotguns' und r California law and which are designated with the model name "Title 1·· b FAI. 15 3. he FA! Title I firearms, a de igned and Id by FAI, ar lawful to po e ell, transfer. 16 purcha e, loan, or otherwi e be distributed ithin California through lie ns d alifornia fir arm deal r 17 to persons ho are not otherv i e prohibited from po sessing firearms. 18 4. Plaintiff alifornia Rifle & Pistol As ociation, Incorporated (' RPA'') is a nonprofit, 19 member hip and donor-supported organization qualified as tax-exempt under26 .S.C. § 50l{c)(4) with 20 it h adquarters in the City of ullerton in Orange County, California. Founded in 1875, RPA seeks to 21 defend the civil rights of all law-abiding individuals including the fundamental right to acquire and -2 possess FAI Title 1 firearms. 23 5. CRPA regularly provide guidance to California gun own r regarding their legal right and 24 respo11 ibilitie . In addition. CRPA i d dicated to pr moting the shooting p rts and providing 25 education, training and organized competition for adult and junior sho ter . CRPA memb r include la 26 enforcement officers, prosecutor prote sionals firearm e p rt and th publi . 27 6. In this uit CRP repre ents the int rests of its many citizen and taxpayer members and 28 members of RPA wh reside in California and ho wish to sell. purchase acquire, transfer and possess -2- VERiFJED FIRST AM ENDED COMPLAINT FOR DECLARATORY A Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 18 of 189 Page ID #:139 lawful fil'earm , including the Title l , but are prohibited from doing so by the technologi al limitation 2 implem nted by DEF EN DANT . CRP brings thi acti non behalf of itself and its tens of thou ands of 3 supporters in California including FA I. who have been. are being, and will in th future be subjected to 4 DEFE DA TS' refu al and/or delay in removing the technological barrier design d, implemented and 5 maintained by DEF DANT that pr hibits the lawful sale. loan, transfer and purchase of certain 6 lawful firearm , including but not limited to the FAI Title I. 7 7. D fondant CALIFORNIA DEPARTMENT OF JUSTICE " DOJ"') is a lawfully constitut d 8 ex cutive agenc charged with implem nting. enforcing and administering the tate of California"s 9 fir arm laws and ystem for proce sing firearm transfer and loan . The DOJ i under th direction and 10 control of the Attorney General. (Gov'. Code§ 15000.) Th DOJ i compo ed ofthe Office ofth 11 rtorne Gen ral and those other divi i n bureau . branch s, sections or other units as the Attorney 12 G neral may create v ithin the depa11ment pursuant to Section 15002.5. (Go . Code § 1500 I.) The 13 Bureau of Firearms (''BOF") was created by the Attorne General within the Division of Law 14 Enforcement for the purpose of de igning, implementing and enforcing California's fir arm laws, rule , 15 regulation and uppott systems. The DOJ is re pon ible for the de ign. development maintenance and 16 enforc ment of the Dealer Record of ale D al r ~ntry yst m th y tern by which licen ed California 17 fir arm dealer submit purchaser and firearm information to the California Department of Ju tice for 18 pr ce ing in accordance with Cal ifomia 's firearm tran ·fer law and regu la tion . 19 8. Defendant AVIER BE ERRA ("BE ERRA ') i the Attorney General of California. He is the 20 chief la en for em nt offic r of Ca lifornia. Defendant Becerra is charged by article V section 13 of the 21 California Constitution with the dut to ee that the laws of California are uniformly and adequately _2 enforc d. BEC RRA also has direct supervision over every district attorney and sheriff in all matters 23 pertaining to the duti of their re pective officer . Defendant BECERRA duties also include informing 24 th public. lo al pro ecutor and la e.nfor ement regarding the meaning of th law. of Ca lifornia, 25 including re triction on the transfer of firearm at issue herein. He is sued in both hi per onal capacity 26 and his official capacity. 27 9. Plaintiff CRPA and FAI (collectively, ··PLAlNTlFF ") do not know the true name and 28 capacities of Defendants DOE 1 through I0. inclusive. who are therefore sued by such fictitiou names. -3- VE RJFTED FIRST AMENDED COMPLAINT FOR DECLARATORY A D INJUNCTIVE RELlEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 19 of 189 Page ID #:140 PLAf TIFF allege on information and belief that ach per nor entity de ignated as DO I through 2 IO is r pon ible in some capacit or manner fi r the adoption or enforcement of the unlawful 3 regulations a alleged in this Complaint and Petition. PLAl TIF pra for leave to amend this 4 omplaint and Petition to sho the true names capa ities and/or liabilities of DOE Defendants l 5 through IO if and when they are determined. 6 JURISDICTION AND VENUE 7 I 0. This Court has jurisdiction und r article l, ection 3 and articl YI , s ction IO of the Cal ifornia 8 Con titution, and Code of ivil Procedure sections 525, 526 I 060, I 085 and I 087. This Court also ha 9 juri di tion because PLAI TIFF lack a "plain. sp edy, and adequate remedy, in the ordinary cour of IO law.· (Code Civ. Proc. § 1086.) 11 11. Venue is proper in this Court under Government Code section 6258 and ode of Civil Procedure 12 section 393, subdivi ion (b) and 394, ubdivi ion (a). Al o venue proper! lie within this Court 13 because the ttorney General maintain an office in the County of Los Angeles. Code Civ. Proc., § 14 401.) 15 A UTHE TI CITY OF EXHIBITS 16 1-. All exhibits accompanying this om plaint and Petition are true and correct copie of the original 17 documents. h exhibits are incorporated herein by reference as though fully set forth in this Complaint 18 and Petition . 19 GENERALALLEGATIONS 20 [THE DEFE DA T GE ERAL DUTIES] 21 13. The California Constitution vests the office of the Attorney General currently held by 22 BECERRA, with enormous power ov r the lives of the citizen of the state. • ubjecc to the powers and 23 duti of th Go ernor. the Attorney Gen ral hall be the hief la offic r of the tate. It hall b the 24 duty or the ttorney Gen ral to ee that the laws of the state are uniformly and adequate I enforced." 25 (Cal. Con t., art . V, ~ 13.) 2 14. In addition to being the "chief law officer" and the state's chief attorney, the Attorney General is 27 al o th head of th Department of Justic . (Go . de § l2510.) 28 15. The Attorney General ·s proper perfonnance of hi or her dutie en ure that the state' firearm -4- VERlFlED FlRST AMENDED COMPLAINT FOR DECLARATORY A Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 20 of 189 Page ID #:141 laws are administered fairly, enforced vig r usly and under toad uniformly throughout California. 2 16. The Attorney General is required to pro ide o er ight enforcement, education and regulation of 3 many facets of California's firearms laws. And the Attorney General performs these I gislative dutie 4 through their La Enforcem nt Divi ion 's BOF. 5 17. The BO F's mission tatement reiterates their obligation to ducate and promote legitimate firearm ales and education, and is as follows : 7 The Bureau of Firearm erves the people of California through 8 education. regulation and enforcement actions regarding the 9 manufacture, ales, ownership, safety training and transfer of 10 firearm . Bureau of Firearms taff are leader in providing firearm · 11 e, perti and information to law enforcement legi lators, and the general 12 public io a comprehensi e program to promote legitimate and 13 responsible firearm po ses ion and use by California residents. 14 (Emphasis added. 15 l8. The practical applicacion of the BOP 11118 ,on require the BOF and it taffto be on the 16 forefront of leader hip, innovation and collaboration. 17 19. 0 er the year , th State of California' l gi lature has u d it la -making authority to make 18 California's firearm laws th mo t compr hen ive, omplex and restricti in the nation with over 800 stat statutes regulating firearms and firearm tran action within the state. 20 _o, Jn general, the laws go erning control of firearm are e pan iv and arc found within Part 6 of 21 the Penal Code, beginning at ection 16000 and ending at ·ection 34370. 22 21. A part of it legislative firearm regulation cheme. the State of California regulates firearms in a 23 wid variety of approaches. · ome laws focus on the transfer of firearms (e.g., regi tering firearms and 24 prohibiting certain prohibited pet"ons form pos e siJ1g firearms) some laws fi cu on the u e of firearms 25 (e.g., regulating the carr ing of fir arm in public places). some la focus on the location (e.g .. 26 prohibiting tir arms within chool zone ) and ome focus n th technological a pect of particular 27 firearm (e.g., regulating firearms based up n their function, design and physical characleristics). 28 /// -5- OR DECLARATORY A D INJUNCTfVE RELIEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 21 of 189 Page ID #:142 f ALIFOR TA'S REL VA TD FINITJON ] 2 22. ln regulating th technological aspects of particular firearms. the tate of California ha provided 3 sp cific definitions. For example the State of California d fines the t rm "firearm·· in multi pie ways. 4 generally including' a device. designed to be used a a weapon from v hich i expelled through a barr I 5 a proj ctile by the force of an explosion or other form of combustion:· Pen. Code. § 16520.) 6 23. Th State of California fu11her divides the term "firearm' into two types for transfer regulation: 7 long gun and handgun . 8 a. long guns are tho e firearm that do not qualify as handguns. For the purposes of Penal Code 9 section 26860, "long gun" means any firearm that is not a handgun or a machinegun. (Pen. Code. · 10 16865.) II b. ..Handgun'' means any pistol, revolver, orjirearm capable of being concealed upon the per on; 12 and nothing shall prevent a device defined a a .. handgun' from also being found to b a hart-barreled 13 rifle' or a short-barreled ~holgun 2 . (Pen. Code § 16640.) The term ·'. firearm capable of being 14 concealed upon /he per on." "pislol." and "revoh er' apply to and include any device de igned to be 15 u ed a a weapon. from which is e pelled a projectile by the force of any exp lo ion . or other form or 16 combustion. and that has a barr I le than l6 inche in length . These terms also include any device that 17 18 1 ·'Short-barreled r{fl,e" mean any of the folio ing: {a) A rifle having a barrel or barrels of les than 19 16 inche in length; (b) A rifle with an overall length of less than 26 inches; (c) Any weapon made from a rifle (whether 20 by alteration, modification. or otherwi e) if that weapon, as modified has an overall length of less than 26 inches or a barrel or barrel of less than 16 in hes in length; (d) Any device that may be readily 21 restored to fire a fixed ca11ridge which. when o restored. is a device defined in subdivision (a) to (c), inclusive: and (e) Any part, or combination of parts, designed and intended to convert a device into a 22 device defined in subdivisions (a) to (c), inclu ive or any combination of parts from which a device detined in ubdivision (a) to (c), inclu ive, ma be readily a em bled if tho e part are in the po ession 23 or under the control of the ame person. (P n Code. § 17170.) 24 2 "Short-barreled shotgun'' means any of the following: (a) A firearm that is designed or redesigned to fire a fixed shotgun shell and has a barrel or barrel of le than 18 inche in length: (b) A fir arm thal 25 has an overall I n 0 th of less than 26 inche and that i de igned or rede igned to fire a fixed shotgun hell; ( ) Any weapon made from a shotgun (whether by alteration modification or otherwise) if that 26 weapon, as modified ha an overall length of less than 26 inches or a barrel or barrels of le s than 18 inche in length· (d) Any de ice that may be readily re tored to fire a fixed hotgun shell which, wh n sc, 27 restored , is a device defined in subdivisions (a) to (c), inclusive; and (e) Any part or combination of part de igned and intended lo con ert a device into a device defined in subdivisions (a) to (c), 28 inclusi e or any ombination of part from hich a device defined in subdivisions (a) to (c), inclusive -6- VERIFlED FlRST AME OED COMPLAINT FOR DECLARATORY AND TNJU CTIVERELIEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 22 of 189 Page ID #:143 has a barrel 16 inche or more in length which is designed to be interchanged with a barrel less than 16 2 in he in length. (Pen. Code, 16530. e al o Pen. Code. : · 170 I 0, 17080.) 3 24. Below these two clas ifi ation (long gun and handgun) ar a myriad of statutorily defined 4 ubtype the most common of which are deemed ritles 3 and shotguns4 under the long gun classi fi at ion. 5 25. he State of California uses these types and subtypes for the purpo es of regulating firearms in 6 distin t way ba ed up nth ir de ign and technology. 7 26. While a device ma be con idered a "firearm" under California law. it may also fall outside of 8 the-statutorily defined ubcategories due to the de ign and features of the fir arm. In other words, a 9 ' firearm '' can be neither a ·'handgun,' nor a .. rifl ,' nor a " hotgun. " 10 DEF[ ED .. FJREARM'. ' BTYPE ] 11 27. The Al Title l is a firearm with an undefrned ubtype, a it verall design rend r the d vice to l2 b a ·'firearm,'' but not a ''handgun,' nor a '"rifle," nor a "shotgun. 13 28. As "firea1ms,' the FAI Title 1 and other firearms with undefined "firearm'' subtypes are subject 14 to California "liream,·· transfer law . 15 29. irearms with undefined ·'firearm' subtypes have b en manufactured for decades and have been 16 known to the DOJ for at least the last ten y ars. 17 30. he FAI Title I was originally designed in 2012. al hich time the BOr a notified ofth 18 design and feaLures and of F/\l · intent to manufacture. produce, ell and distribute th firearm within 19 the tat of California. 20 21 can be readily a sembled if those parts are in the po session or underthe control of the ame person. (Pen. Code § 17180.) 22 3 As used in Penal Code section 16530. 16640, 16650 16660, 16870. and 17170, ection 17720 to 17730, inclu ive, section 17740, ubdivision (f) of section 27555, Article 2 (commencing with section 23 30300) f hapter L of Divi i n IO of Title 4. and Arlicle 1 (commencing with section 33210) of Chapter 8 of Divi ion IO of it! 4, ··1'{fle · means a weapon d signed or redesign d. made or remade, 24 and intended to be fired from the houlder and designed or redesigned and made or remade to u e the _5 energ of the xplo ive in a fixed cartridge to tire only a ingl projectile through a rifled bore for each in 0 le pull of the trigg r. (Pen. Cod , § 17090.) 4 A used in Penal Code ections 16530 16640, 16870 and l 7180, sections 17720 to 17730, 26 inclu ive. se tion 17740. ection 0215, and Article l (commencing with ection 33210) f hapter 8 of 27 Divi ion LO of Title 4, · hotgun·• n,ean a weapon de igned or redesigned made or remade and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energ 28 of the e •plo ive in a fixed hotgun shell to fire through a mooth bore either a number of projectile (ball shot) or a sing! projectile for each pull of the trigger. (Pen. Code,§ 17190.) -7- Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 23 of 189 Page ID #:144 [ ALIFORNIA D ALER . CE TRAL ROLE] 2 31. ign ificantly, the tate of California ha reserved the entire field of lie n ing and registration of 3 firearms to itself. (Pen. ode, § 53071.) 4 32. With limited exception. nearly all firearm transfer· within alifornia mu t be pro e sed through 5 a dealer licensed by the Unit d State , alifornia, and th local authorities to ngage in the retail sale of 6 firearms. (Pen. Code §§ 26700, 27545.) 7 33. And, the late of California mandated that upon presentation of iden1ification by a firearm 8 purchaser a licen ed California firearms dealer hall transmit the infonnation to the Department of 9 Ju tice . (Pen. Code § 28215, subd. d).) IO 34. As such, the tate of California has made licen ed firearm dealers tate agents in connection II with the gathering and di pensing f infonnation on the purchase of firearm . ( United fates v. 12 Talfmadge (9th ir. 1987) 829 F.2d 767.) 13 35 . The tate of California also manded that the DOJ shall examine specified records to determine 14 whether the applicant is prohibited from owning or possessing firearm once it receives the information I· from the dealer. (Pen. ode, § 28220.) 16 36. The tate did authorize the DOJ t ind i criminately top or inhibit sale . Rather the tate has 17 nly granted Lhe DOJ the authority to stop sales for certain specified reasons. For example, the DOJ is 18 permitted to stop the sale if a purchaser is deemed a prohibited per on. ( ee e.g. Pen. Code, §28220.). 19 37. The tate did not authorize the DOJ to indiscriminately dela_ ales. Rather. the State only 20 granted the DOJ the authority to delay ale for pecified reason , For example, the DOJ i permitted to 21 delay if its records indicate that the purchaser may be prohibited, additional re earch i needed to make a _2 final determination. ( ee e.g. Pen. Code. §28220(f)( I )(A) - authorizing a 30-day delay underspecified 23 circumstance but permitting the release of the firearm by th D aler if the DOJ cannot determine the 24 purcha er to be in ligible to pos s fir arms within the 30-day period.) 25 38. Thus while the DOJ is the gatekeeper of firearm transactions wiLhin the tale. its ability to delay 26 or deny lawful sa le and transfer of firearms is exceedingly limited to expres ly prohibited activitie . 27 l ALfFOR IA' ·[REARM TRANSFER CHEME OVERVIEWl 28 39. As part of the firearm transfer proce s, each purchaser of a fiream, mu t meet certain standards •8- V RIFI ED FIR T AMENDED COMPLAINT F'OR DECLARATOR AND JNJUNCTlVE RELIEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 24 of 189 Page ID #:145 and provide certain documentation in order to urchase a firearm (and the licensed alifornia dealer 2 must receive. v rify retain and/or transmit the related information to the DOJ ,) including but not limited J to: 4 • Valid photo identification toe tabJish age (Pen . 'ode. §§ I 6400, 26845 2751 0)· • Complete the Bur au of Al ohol. Tobacco, Firearm, and E, plosives ATF Form 4473· 6 • omplete the California Dealer's Record of ale (OROS) form; 7 • Pass a corn pr hen ive background check performed by the tate of California (Pen. Code, § 8 29820 which reviews records in the following databases: 9 o Criminal Hi story System (AC! )· 10 o California Restraining and Protective Order Sy t m (CARPO ); 11 o California Department of Motor Vehicle (OMV); 12 o alifomia Mental Health Firearm Prohibition 13 o California Wanted Persons yst m (WPS)· 14 o Federal Bureau of Investigation (FBI) ational Tnstant Criminal Background Check 15 ystem ICS ; 16 o FBI Interstat Identification lnde (Ill); 17 o FBI ational Crime Information Center ); and o Immigration Custom & Enforcement (ICE) ; 19 • Pay a background check fee: 20 • Pay a Firearm afet & Enforcement fee ; 21 • Pay a Firearm afety Device fee· 22 • Wait a ten-day waiting period 5 (Pen. Code §§ 26950-26970)· 23 • Obtain a Firearm Safety Devic (F D) Pen. Code, § 23635)· 24 • Possess a Firearm Safety ertificate ( )6 (Pen. Code § 3-1700). 25 26 27 5That is, ten 24-hour periods must pass once the OROS is submitted before the purchaser can acquire their firearm (Pen. Code,§ 2681SL though certain people or transfers are exempt from the waiting 28 period requirement (e.g., peace officers and special weapon permit holders) -9- VERIFIED FlR T AMENDED COMPL fNT FOR DECLARATORY AND fNJUNCTJVE RELIEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 25 of 189 Page ID #:146 [ A IF R IA ' FIR ARM REGI RY - l FORMATIO AND FORM REQUI ME T ] 2 40. rtain a pects of licensing and registration has been delegated to th DOJ and/or the Attorney 3 General. Thi includ s the lie n ing of the California retailer enga ed in the sale of firearms. as ell 4 as the record keeping. background checks and fees related to the sale. lea e. loan or tran fer of firearms. 5 For exampl : 6 a. ··As required by the Department of Justice, every dealer shall keep a regi ter or record of 7 electronic or telephonic tran fer in which shalI b ent red" certain information relatin 0 to 8 the tran fr of firearm . (Pen. Cod , § 28100.) 9 b. "The Department of Ju tice shall pre cribe the form fthe regi ter and the record of IO electronic transfer pursuant to ection 28105.'' (Pen. Code § 28155.) 11 The Attorney Gen ral hall ke p and properly file a complete record of Dealers' R ords 12 of ale of firearms. (Pen . Code 11106, subd. (a)(l)(D).) 13 d. The Attorney General hall permanently ke p and properly tile and maintain all 14 information reported to the DOJ pursuant to an la as to .firearms and maintain a registry thereof. (P n. Code. § 11106 ·ubd. (b)( I)(A).) Specific information that must 16 be in lu ed within the regi try in lude the --manufacturer s name if tamped on the 17 fir arm model name or numb r if stamped on the firearm, and, if applicable, the serial 18 number. other number (if more than one erial numb r i stamped on th firearm), 19 caliber. type of firearm. if the firearm is new or u ed, barrel length, and color of the 20 firearm , or, if the firearm is not a handgun and doe not have a serial number or an 21 identification number or mark a signed to it that shall be noted ." (Pen . Code. § 11106 22 ubd. (b)( I )(D).) 23 41 . The tate of Califi rnia mandated that for all firearms , th r 2ist r orth record of'electronic 24 tran fer shall c ntain the certain information via P nal ode section 28160. subdivision (a), 25 p cificall : 26 27 6Firearm purchasers must take an exam on firearm safety from an instructor and obtain a minimum 28 75% passing score to receive a certificate (Pen. Code § 31615), though certain people are exempt from Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 26 of 189 Page ID #:147 ( 1) The date and time of sale; 2 (2) The mak of firearm; 3 (3) Peace officer emption status pursuant to the provi ion list din ubdivision (c of 4 ection 16585. and the agency name; 5 (4) Any applicable waiting period exemption information; 6 (5) Californ ia irearms Dealer number i sued pursuant to Article I (commencing with 7 Section 26700) of Chapter 2~ 8 (6) For transaction occurring on or after January I 2003, the purcha er s handgun safety 9 certi fi ate number issued pursuant to Article 2 (commencing with ection 31610) of Chapter 10 4 of Di i ion 10 of this title, or pursuant to former Article 8 (commencing with ection 11 12800) of Chapter 6 of Title 2 of Part 4, as that article read at any time from when it became 12 operative on January 1 2003 to when it was repealed by the Deadly Weapons Recodification 13 Act of20I O· 14 (7) Manufacturer' name, if tamped on the firearm; 15 (8) Model name or number if stamped on the firearm; 16 (9) Serial number, if applicable· 17 ( 10) Other number, if more than one serial numbe r i • stamped on the firearm: 18 I I) Any identification number or mark assigned to th firearm pursuant to Section 2391 O; 19 (12) If the firearm is not a handgun and does not have a erial number. identification number. 20 or mark assigned to it, a notation a to that fact; 21 ( 13) Caliber; 22 (/4) Type of'/irearm; (multiple em pha i added) 23 ( I 5) If the firearm i new or used: 24 ( 16) Barrel length; 25 (17) Color of the firearm; 26 ( I 8) Fu 11 name f purcha er: 27 28 the FSC requirement (e.g., peace officers, military, California Concealed Carry License holders). Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 27 of 189 Page ID #:148 (19) Purchaser s complete date of birth; (20) Purchaser's local addre s; 3 (21) If urrent address is temporary, complete p rmanent addr ss of purchaser; 4 (22) Id ntification of purchaser; 5 (23) Purcha er" place of birth ( tate or country): 6 (24) Purchaser' complete telephon number; 7 (25) Purchaser's occupation; 8 26) Purchas r's gend r; 9 (27) Purchaser's phy ical description; 10 (28) All I gal names and alia e ever u ed by the purchaser· 11 (-9) Ye or no answer to question that prohibit purchase including. but not limited to, 12 conviction of a felony as described in Chapter 2 (commencing with ection 29800) or an 13 offense described in hapter 3 (commencing with Section 29900) of Division 9 of this title 14 the purchaser' s status as a per on d scribed in Section 8100 of the Welfare and fnstitutions 15 Code, whether the purchaser is a person who has been adjudicated by a court to be a danger 16 to other or found not guilty by rea on of insanity and wh ther th purchaser is a person who 17 has been found incompetent to stand trial or placed under conservatorship by a court pursuant J8 to ection 8103 of the W lfare and In titution od .; 19 (30) ignature of purcha r; 20 (31) ignature of sale per on a a witne to the purcha er's signature· 21 (3 ) Sale per on·s certificate of eligibility number if the salesper on has obtained a 22 ce1tificate of eli::,ibility: 23 (33) ame and complete addre s of the dealer or firm selling the firearm as shown on th 24 dealer' licen ; 25 (34) he e tab] i hmenl number, if a signed; 26 (35) The dealer' complete bu ines telephon number; 27 (36) An infi rmation required by Chapter ~ (commencing with ection 28050); 28 (37) Any information required to detennine wheth r subdivision (t) of Section 27540 applies; Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 28 of 189 Page ID #:149 (3 ) tat m nt of the penalties for signing a fictitiou nam or address knowingly 2 furnishing any incorr ct information, or knowing! omitting any infonnation required to be 3 prov id d for the regist r· and 4 (39) A statement informing the purchas r f certain information . 5 42. ignificantl . hile the "type ' of firearm (e.g., ··tong gun' or ·'handgun") is required, the 6 "subtype" of a firearm i not mandated by Penal Code section 28160 ubdivi ion a), or any other 7 provi ion wilhin Penal C de ection 28200 through 28255. 8 43. The DOJ ha failed to comply with this mandate, thereby barring the sale of the FA! Title 1. 9 lPOI T OF O TA TS A E UNO R F DERAL LAW] IO 44. A Federal law known as the Brady Handgw1 Violenc Act or 1993 ( 'the Brady Act') J1 requir FFLs to requ t ba kground checks on individual attempting t purchase a firearm . 12 The permanent pro isions of the Brady Act which went into effect on ovember 30 1998, 13 requires th United States Altorney Gen ral to tablish the I S for FFLs to contact to obtain 14 imm diate infom1ation on. Whether the transfer of a firearm to as respe tive buyer would 15 violat stat of federal law. J6 45 . FFLs mu t contact th ICS to conduct NICS check through an e tablished POC within J7 their respective tate or th FBI I ection. In order that all citizen and dealers. regardles 18 f th ir state of residence recei eat a minimum, the level of service mandated by the Brady 19 Act, the FBI in conjunction with the Bureau of Alcoh I, Tobacco and firea1ms (''A ") and 20 the .S. Depanment of Justic has d v loped th National instant Criminal Background Check 21 System Point of Sale Guidelines. These federal guideline are designed to ensure that all 22 potential purchasers receive a consi t nt level of service. 23 46. The alifornia DOJ act a th single POC for all firearm tran fer within California pursuant to 24 a mem rand um of under tanding ith the FBI. As of January I. 2003, licen ed firearm d al r in 25 alifornia are required to ubmit all background check to DOJ lectronically via the Dealer Record of 26 ale Entry y tern ( ·o "). As such, nearly all of alifornia I check coming from FFL. are run 27 Lhrough the DES. And, pur uant to both the memorandum of understanding and 28 C.. R. Part 25.10 a 28 p r on found ineligible to receive a firean11 may appeal the deci ion. D INJUNCTIVE RELIEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 29 of 189 Page ID #:150 47. he DOJ ha failed to comply with this mandate thereby barrin 0 the sale of the FA! Title 1, 2 ensuring that not all pot ntial purcha ers receive a consistent level of ervice, and prevenlin 0 any 3 method of app al by the pot ntial purchasers. 4 [CALIFORNIA'S FIREARM REG! TRY - M THOD OF LECTRONIC TRA Ml SIO J 5 48. Th tate of Cal ifomia mandated that the DOJ shall determine the method by which a dealer 6 . ubmils the firearm purchaser information to th DOJ. (Pen. Code, § 28205. ubd. (a).) 7 49. The tate of California mandated that electronic transfer of the required information b th le -S m an of tran mission but permitted the DOJ to make exceptions. (Pen. ode,§ 28205, subd. (c).) 9 50. he method establi hed by th DOJ pursuant to Penal Code ection 28205(c) for the ubmi ion IO of purcha er information requir d by Penal ode section 28160, subdivi ion (a), is D 11 5 l. The D is a web-ba ed application d signed, developed and maintained by the DOJ and us d 12 by firearm dealer to rep rt the r quired information. 13 52. As ag nts of tate for record keeping purpo es, licen ed California firearm dealers ar required 14 to ubmit only information that is' true, accurate and complete." (Cal. Code Regs. tit. 11 § 4210 15 ubd. (b)( I )(6).) 16 53. The DOJ ha failed to comply with their mandate, making it impos ible for alifornia Dealers 17 acting a agent of the DOJ to ubmit true. a urate, and omplete informati n thereby barring the al 18 of the FAJ Tit I I. 19 [NAT REOFDI PUTE] 20 54. As parl of the design implementation maintenance and enforcement of the DE , the 21 DEFE DA TS mandated the ubmission of information relating to the subsets of firearm types. 22 55. pecifically. by de ign." hen the DE u er i inputting the designated information into the DE , 23 they must input information related to the gun type ··tong gun" or .. handgun'). Upon selecting ··long 24 gun ," the D system is design d to and functions to elf-populat a ubset of field • and it requires 25 one of Lhre pti n to be de ignated bef re the dealer may pr ceed ith the ompl Li n of the form 26 and submis i n f the required infonnat ion to the DOJ. Th se three ptions are: · ril1e.' _7 " rifl I hotgun" ·'shotgun." nlike the subset of fields that self-populate for·· olor," "Purchaser Place 28 of Birth, ' and ell er Place or Birth'·, ach of which contains the catchall "other' options, the ··Jong Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 30 of 189 Page ID #:151 guns.. ub t of field doe not contain the ··other' option. Thu , the D y tern prevents licensed 2 firearm dealers from proceeding with the sal , transfer, loan or submission of information to th DOJ 3 for certain firearms including the FAl Title I. 4 56. The actual and practical effect of this design is that licensed alifornia firearm d alers cannot 5 accurately submit the necessary information to the DOJ for proce ing because of the limited choices of 6 subtypes in the DE thereby barring the sale. transfer. acqui ition, loan or other processing of firearm 7 of undefined ubtype , includino the FAI Titl I. 8 57. Without an alternati e procedure for submission of the purchaser and firearm information 9 establi hed by DOJ pursuant to Penal C de section 28205 ubd. (c), the D i the only method of IO ubmitting the neces ary information to permit the lawful transfer of the undefined ''ii rearm•· subtype . 1l 58. Under California Code ofRegulati n , titl 11 , § 4210. ubdivision (b (1)(6), firearm d alers are 12 prohibited from entering inaccurate information within the sy tern . 13 59. Because dealers cannot accurately submit the required information through the D S for ··long l4 guns' that are undefined .. firearm'' subtypes, they are prohibited from processing and accepting l5 applications from purcha ers of said firearm . (Pen. Code. § 28215 ; ubd. (c).) 16 60. A part f the design , implementation, maintenance and enforcement of the D by the 17 DEFE DA TS the DEFE D S have in titut d at chnological barrier that functions and serves 18 a a ban n the tran fer of all undefined ·•firearm" subtype that are ··long guns ' U1at are neither "rifles' 19 nor --shotgun ,. nor .. rifle/shotgun combination "through a licensed California fireanns d aler. 20 61. his technological barrier could be alle iated if the D provided the "other" option for "long 21 guns,'' a it did with ··color'' ·'Purcha r Place of Birth," and Seller Place of Birth:· 22 62. Thi technological barrier could al o be alleviated by p nnitting the user to proceed without 23 completing the subtype categories. 24 63 . This technological barri r could al ob alleviat d ifth DOJ authorize any of a multitude of 25 alternative means pursuant to the authority granted it by Penal de ection 28205, ubdivi ion (c) 26 including but not limited t . in. truction, to D ✓ u ers to proceed b ele ting preauthoriz d de ignated 27 options and identifying the firearm as an "other' in one of the "c mmenC fields within the DE . 28 64. DEF DA T have known of the deficiencies of the DE and intended them from inception. - 15 - OED COMPLATNT FOR DECLARA ORY AND fNJUN TIVE REUEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 31 of 189 Page ID #:152 and since the introducti n f the FAI Title l. they have been requested to correct said d feet, and have 2 refused to do so. thereby barring the ale of the FAl Title l . 3 [DO.I AND THE FAl TI L I] 4 65. DEF DAN Sand FA! have been in communication regarding the design and fi acure of"the 5 F I Title I since approximately 2012. 6 66 . On or about October 24, 2019 F AI informed the DOJ of the detects in the DES and the inabi liry 7 off Al to tran mit the Title 1 firearms to th ir customers becau e of the DE . ( ee Exhibit A.) 8 67. ince then the DOJ ha neither corrected the DES nor has it implemented alternative procedures 9 to facilitate the lawful transfer of the Titl 1. IO 68. The DOJ has also had mor than an adequate and rea onable amount of time Lo implement 11 alternative procedur s pursuant to Penal Code ection 28205, ubdivision (c). 12 69. The DOJ has had more than an adequate and reasonable amount of time to make the correction 13 necessary to permit the s tern to proce firearms including, but not limited to, the FAI Title I. 14 70. or example, the DO.I was abl Lo modify the DES to addre a similar deficienc reported 15 concurrenlly by Al's counsel in the an,e letter dated O tober 24.2019. Sp cifically, ad feet in the 16 DE Lhat omitt d th nited Arab mirate · from the list of countrie a ailable in a DE dropdo n Ii t 17 for th countries of birth was confirmed a corrected by the DOJ on ovember 26, 20 l 9. And on r 18 about April 4 2020 the DOJ modified the D to prohibit the delivery of firearms stalewide by d aler 19 after the I 0-Day Waiting P riod pursuant to Penal Code ection 26815. in favor of a departmental! 20 imposed dela o[ up to 30 days. 21 71. till DEF DA T ha e refu ed to make the necessary change to the DES until a Tort Claim 22 Act claim as fir t ubmitted lo them b FAI on ovember 20, 2019. And even then, by January, 23 D FE D T claimed that it would take month before such a correction could be made. 24 72. ow. month have pa sed since the DOJ re ponded, and neither the DE nor the alternative 25 procedures hav been updated, modified or implemented t permit the la ful tran fer of the FAJ Title 26 r other undefin d 'firearm' ubtype that are "long guns." 27 73. On information and belief, DEFE1 D T have designed and dev lop d alt mat ive procedures, 28 pro es e and/or update that would cure the deficiencies of the DE specific to the issue at hand but OED COMPLA LARATORY AND INJUNCTfVE RELIEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 32 of 189 Page ID #:153 have refu ed and/or intentionally delay d implementati n of aid alternatives to date. 2 74. On info1mation and belief, DEFEND NT designed impl mented maintained and enforced the 3 D S to int ntionally pr ent the transfer of ·'long guns' that are n ith r "rifle "nor ''shotguns" nor 4 combination th re f. 5 75. On information and belief, DEFE DA are c ntinuing with the deficienci intentionally, 6 delaying the necessary changes to the D ystem that would permit the lawful transfer of lawful 7 firearm such a the Title I to lawful purcha ers. DEF DA T are doing so with malic in targeted 8 retaliation for challenging DEF ENDA T in past and current action . and intent to cau e harm against 9 FAJ. 10 76. A a result. FAI has b n unable to tran fer their Title I firearms re erved by licensed alifornia 11 fir arm dealers and California resident who are memb rs of CRPA, and ho ek to lawfully sell, 12 tran fer, purcha e, acquire and/or possess th FAl itle I firearm . Thi inability for dealer to submit 13 the true accurate and complete information through the D for certain firearms such as the Title I, 14 has damaged FAI by pre nting them from effectuating the sale of the reserved product as well as 11011- 15 re erv d product in an am um t be detennined at trial. and it ha d nied the right of California 16 citizens who ar not prohibited from acquiring firearms from acquiring th . Title I. 17 77. DEFE D ould. if they de ired. rectify thi matter imm diat ly but they have elms n to 18 perpetuat th ban nth ale of certain lawful firearm via institutionalized technological barricades. 19 78. either D FENDANTs· design development, maintenance and nforcement of the DE in a 20 mann r that functions as a barrier to th la ful transfer of certain lawful firearms nor DEFE DA TS· 21 requirement for information not expr sly authorized by Penal Code sections 28200 through 28255 as 22 it pertains to firearms other than handguns are discr tionary acts. 23 79. A cordingly, an active controversy has arisen and no e ·i t between the DEFENDA T and 24 PLAI TI F concerning their respecti e rights, duties and re·ponsibilitie . 25 80. The contr versy is definite and c ncrete and touche on the legal relation of the parties a well 26 as many th u ands of people not before this Court whom DEP DA T are legal! bound to erve. 27 81. The DOJ ha a duty to facilitate the lawful transfi r f tireanns and collect certain inti rmation 28 from the dealers in the proce via a method of ubmission designat d by the DOJ. They do not. - 17 - VER.IFIED FIRST AME D D COMPLATNT FOR DECLARATORY AND fNJ Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 33 of 189 Page ID #:154 h wever, have lh authority to mandate alternative information or prevent the lawful transfer of a class 2 of firearms not otherwi e prohibit d under California law byte hn I gi al limitations of th ir de igns. 3 either int ntional or otherwi e. 4 [UNO R R U D REGULA TlONS] 5 82. PLAI TIFFS also bring this action pur uant to the California Administrati e ProcedLJre Act 6 (Gov. Code.§ 11340. t seq.) (.. APA'") to challenge the validity of and to enjoin enforcem nt f 7 policies and procedures that prohibit the tran fer of lawful fireanns to lawful purchasers including but 8 riot limited to, de ign ing, de loping, implementing, modifying and administering protocols. ystems 9 and databa e that impede and/or prevent tran fer from pr ceeding. 10 83. The APA provide a detailed statutory heme for publi n tice and comment on regulations 11 pr po d by tate agen ies. (Go . Code,§ 11340, et seq.) 12 84. Mandatory pro edure include providing adequate notice to the publi of prop ed r gulation 13 and an opportunity for public comment. (Gov . Code, 11346.2, I 1346.4, 1 1346.5. 11346.8.) 14 85. The agency must provide report f detailed rea ons for apropos d regulation the alternatives 15 con idered and the effect the proposed regulati n is projected to ha eon individual . Gov. C ~§ 16 11346.2. 11346.9.) 17 86. The APA pe ifically prohibit any tat agenc from making use of a rule that i • a .. regulation" 18 a defined in Gov rnment C de section I 1342.600, that should ha e. but has not been adopted pursuant JQ to the detailed procedures set forth in the APA. (Gov. Code§ l 1340.5, ubd . (a).) 20 87. If a nll con titute a "regulation," and there i no expre s statutory exemption e. cusing the 21 agency from complying with the APA, any regulation enacted without compliance with the APA is an 22 invalid ·'underground regulation .. and cannot b enforced. Tidewater Marin We ·tern, Inc. v. Bradshm,11 23 (1996) 14 al.4th 557. 576. eealso Gov. ode,§ 11346.) 24 8. There i a narrow exception to the tringent requirements of the AP for ·'emergency' 25 regulati ns if an ··emergency ituati n cl arly po uch an immediate, s ri us harm that delaying 26 action to alto public comment would b inconsistent ith the public intere t.' ' (Gov. Code, 11346. I 27 subd. (a)(3).) 28 89. The purpo of the APA' comprehensive cheme is to ensure that ·'those persons or entities - 18 - D COMPLArNT FOR DECLARATORY AND JNJU Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 34 of 189 Page ID #:155 whom a regulati n wilJ affect have a voice in its creation "(Armistead v. tale Personnel Board (1978) 2 22 Cal.3d 19 • 204-20-), to all w the publi to inform the agency about po sible unintended 3 con equence fa propo ed r gulation, and to protect against "bureaucratic tyranny: ( al. Advocate. 4 for ursing Home Reform v. Bonta (2003) 106 Cal.App.4th 498 507-508.) 5 90. The challenged rules at is ue. including but not limited to the prohibition of certajn lawful 6 firearms from being tran ferred b caus of DEFENDANT technological barri rs, implement, 7 interpret and make specific requirements for compliance with statutory law enforced by 8 DEF NDANT . They include policy deci ion by DEF DA T that are ubject to the op n 9 go emment and d lib rative pr ce s requirements under the PA. But the challenged rules do not 10 comply ith the rul making provi ion of the APA. They were ad pted without pri r publi notice or 11 opportunity for oral or written public comment. ( ee Gov.Code. §§ 11346.2. 11346.4. 11346.5. 12 I 1346.8.) 13 91. The APA does allow for adoption of regulation without any advance public notice and the 14 opportunity for comment only in mergency ircumstances where ''the emergency situation clearly 15 pose uch an immediate, erious harm that delaying acti n to allow public comment would b 16 inconsistent with the public int rest.' (Go . ode. § 11346. l , ubd . (a)-(b).) o ·· m rgency'' exi t 17 that ou Id just ii' b pa ing th fonnal proc for th adoption of the challenged rul here. And no 18 other section of th California Code exempt the adoption of rules concerning the prohibition f the 19 transfer of lawful firearms to lawful purchasers. 20 92. Accordingly. PLAINTIFF e k declaratory and injunctive relief to invalidate and enjoin 21 D FE DA TS" enforcement of the challenged rules as unlawful und rground regulations. 22 93. PLAI TIFF also se k to enjoin the enforcement of rules concerning the prohibition of the 23 transfer of lawful firearms to lawful purchasers. 24 LU LAW UL BAN ON FIREARM ] 2• 94. On information and b Ii f. DEFE DANT acted in concert t prevent the ale of F l Title I 26 tyle firearms indefinitely. Spe ifically. DEF NOA T con pired and did delay and defer any acti n 27 that w uld otherwi e pennit the formal ale, transfer and deliv r of th FAI Title I tyle firearm until 28 legislation designed and intended to ban the ale transfer. and deli ery of the Titl I would be - 19- VERIFIED FIR T AMENDED COMPLAINT FOR DECLARATORY AND rNJUN Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 35 of 189 Page ID #:156 implemented and effectiv . 2 95. On infi rmati n and belief, D E DA T · action in implementing a non-statutor ban on the 3 Al Title J were done with malice and int nded to cau e Al and it cu tamers, including those 4 members of CRPA, harm through the deprivation of property, loss of profits and damage to FAJ · 5 reputation. 6 [CRIMJ AL CO DUCT] 7 96. When an act or omi sion is declared b a statute to be a public offen e and no penalty for the 8 offen e i prescribed in an tatute, the act or omission is punishable a a mi demeanor. (Pen, Code.§ 9 19.4.) IO [LIABILITY T TUTES] 11 97. A public entity i liable for injury pr ximately cau d by an act or omission of an employee of 12 the public entity within the scope of his employment if the act or omi sion , ould, apart from chis 13 ection have giv n rise to a cause of action against that employee or his personaJ representative. (Govt. 14 ode.§ 815.2.) I- 98. Where a public entity is under a mandatory dul imp ·ed by an enactment that is design d t 16 pr lei.:! again~t the risk ofa particular kind of in_jur . th public entil is liable for an injury of that kind 17 proxi mately auscd b_ it failure to discharge the duty unle the public enlit e tabli ·h · that it 18 e 'erci ed reasonabl dilig n e to di ·charg th dut . (G vt. Code, § 815.6.) 19 99. In general, a public employee is liable fo r injury caused by his act or omis ion to the same extent 20 a a pri ate person. (Go . Code, 820.) 21 I 00. The act prohibiting the sale of the FAI Title I de cribed herein are non-discretionary acts. 22 !REDE IG ATIO A ·'ASS ULT WEAPO "') 23 JOI.At all times relevant. the FAI Title I was not prohibited from being tran ferred sold, or 24 po sessed withi11 alifomia. 25 I02. On jnformation and belief. the acts described above were performed by DEFE DA T with 26 th intent to delay and prohibit the sales and la ful tran fer of the FAI Tille I style firearms to FAl ' s 27 cust m rs within alifornia until such time as I gi lation was developed. propo ed, and pas ed 28 designating the FA I Title I tyle firearm a an '·as ault weapon '' under the Roberti-Roos ssault V RIFTED FIR T AMENDED COMPLA CLARA TORY AND JUNCTJVE RELTEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 36 of 189 Page ID #:157 Weapon Act. 2 I03. On information and belief, As embly Bill 88 was the result of DEF NOA T 'first attempt to 3 r d signate the FAI TITLE I tyle firearms as .. a ault weapon ·•. 4 J04. On information and b lief. DE E DA T · scheme to d n PLAIN I F their right was S unsucce sful at first with the failure of Assembly Bill 88 to pa . 6 I 05. On information and belief, DEF NOA schem was ultimately succe sful with the passag 7 of enat Bill 118. which passed and became law on Augu t 6. 2020- immediately desi 0 nating the FAI 8 Title I an ''a ault weapon' under the Roberti-Roos Assault Weap n Act- thereby immediately 9 prohibiting the transfer of the F 1 Title I t their u tomer . 10 l 06. On information and beli f. while nate Bill 118 permit th se in pos es ion f firearms II deemed ·'a ault weapon ' und r the ne ly implement d definition to regi ter and keep their firearm if 12 the po sessed the fir arms prior to eptember I, 2020 the DEFENDA T · plan. cheme, action and 13 inaction in prohibiting the transfer of the FA I Title I prohibited those who placed deposits on the FAl 14 Title I eries firearms from lawfully acquiring and possessing their firearms prior to the eptember l, I5 2020 deadline. 16 l 07. As su h. 0 F DA T actions and inaction d ribed h rein ffecti ely d nied PLAI Tl FF 17 of their right to Due Process. their Second Amendment right , and their property right , inter a/ia. 18 FIR TON: DECLARAT CTIVE RELIEF 19 (AGAIN TALL DEFENDANT ) 20 I 08 . Paragraph 1-107 are r alleged and incorporated by re~ renc . 21 I 09. The technological rules prohibiting the tran fer of lawful firearms to lawful purchasers 22 including but not limited to the rule a related to the DE , a it is currently de igned. implemented, 23 maintained and/or enforced by DEFENDA TS. prohibit the sale of cenain firearm that are neither 24 ·'rifle. ," nor·· hotguns: nor "rifle /shotgun :' nor "handgun ' under California law and apply to all 25 firearm purcha e applicants. They are rul s of general applicability. 26 110. The rule were created by DOJ ~ r the purpo e of submitting specific information to the DOJ 27 and for proces ing registrations and background ch ck ia th DE a sy tern adminisler d by th DOJ 28 pur uanl to the Penal Code. The rules are, thu , ··regulation " under the APA. - 21 - PLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 37 of 189 Page ID #:158 111. here i · no expre e emption fr m the APA in the California ode regarding th 2 promulgation of regulation prohibiting th tran fer or lawful ft rearms to lawful purcha ers including 3 but not limited to the rule p rtaining to the curr nt design, impl mentation. maintenance and/or 4 enforcement of the DE by DEFE DANT ; there was no em rgency sufficient to justify b pa ing th 5 APA. These regulations are, thu . ubject to the procedural requirement set forth in the APA. 6 112. By implementing. admini tering and enforcing the rut s prohibiting the tran fer of lawful 7 firearm to lawful purcha er . including but not limited to the rules as appli d within the DE , a it is 8 current! design d implement d. maintained. and/or enforced b D F NOA TS without providing 9 formal notice or opportunity for public cornmenL D F DA T ha violated and continue to violate 10 th APA. 11 l 13. An actual controv rsy exists. PLAI IFFS contend that DEFENDANTS are violating the APA 12 and that DEFE DA T intend to continue to do so. PLAI TIFF allege on information and belief that 13 DEF NOA TS and each of them contend th regulation is in full compliance with lhe requirements of 14 the APA or wa not subject to them. 15 114. A judicial declaration of the legality of DEFE DA T 'conduct. and hether the regulations 16 prohibiting th transfer of lawful firearms to lawful purcha er including but not limited to th rule 17 contained within the D , as it is currently designed, implement d, maintained, and/or enforced by 18 D FE DA , constitute an invalid underground regulation in iolation of the APA. i necessary and 19 appropriate at thi time. 20 115. PLAI Tl F their supporters and member a Lakeholders hav be n specifically harmed 21 because DEFE DANTS' unlawful conduct has denied them their tatutory right to be heard and to 22 provide input regarding regulations governing a program that significantly affects them. I l 6. Furth r. harm from thi underground regulation lie in the ubver ion of the democratic alue 24 theAPA int nd d to erve. The notice, omment and r view procedur of the APA were enact d to 25 secure the public benefits of opennes , ace sibility and accountability in the formulation of rules that 26 implement I gislative enactments. Irreparable harm to the e impo1tant public benefits occurs whenever a 27 state ag ncy unlawfully ad pt a r gulation and each time the agency act pursuant to it underground 28 regulation. - 22 - OED COMPLATNT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 38 of 189 Page ID #:159 117. Th public in general and PLAI S p cificall ha e an intere t in preventing 2 DEFE DJ\ T fr men for ing the underground regulation prohibiting the tran fer of lawful firearms 3 to lawful purchas rs. including but not limited to the DE , as it is currently de igned, implemented, 4 maintained and/or enforced b DEFE DA TS. as it undermines the democratic values the APA was 5 de igned to erv and prevents PLAJ TlF from engaging in con titutionally protected conduct. 6 l 18. Further. in order to re ol e the controversy, FAI requests thaL pur ·uant to Code of Civil 7 Procedure section I060 chi ourt declare the respecti e rights and duties of the partie in thi matter 8 and, in particular. a follows: 9 a. There exists a category of fir arm that is neither a "'rifle·· nor· hotgun · nor "handgun'' l0 under California law. II b. The DES. as it is currently d igned. implemented, maintained and/or enforced by 12 D F DA T prohibits the ale f ertain fir arm that are neither ·'rifles," nor 13 ·- hotgun , 'nor .. handguns" under California law. 14 c. DEFE DAN · a tions in designing, impl menting. maintaining and enforcing the D . in its cwTent fonn. con tirute a barrier and prevent FAI, licensed deal rs and the 16 gen ral public from acquiring pos es ing, tran ferring and s II ing c rtain lawful 17 ti rearm , including Title l. within the tate of California. 18 d. he DE s technological re triction prohibiting the transfer of certain lawful firearm , 19 including the Title I, violate the DOJ"s duties, including those found within Penal Code 20 ections 28155. 28205, 28215. and 28220. 21 e. The DES. as it i current! designed, implemented. maintained and/or enforced, is not in 22 compliance with the mandate imposed by Penal Code sections 28155 28205. 28215 . and 23 28220. 24 f. D FENDANT have int ntionally instituted the Lechnological ba1Tier de igned for and 25 implemented within D whi hi maintained and enforced by the D F DA T 6 g. D FE DA T have intenti nally d la ed in removing the technological barriers 27 design d for and implemented within D • which is maintained and enforced by the 28 D F NOA TS. - 23 - D COMPLAfNT FOR DECLARATORY A Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 39 of 189 Page ID #:160 h. D F D T , who occup the field of proc sing the lawful tran fi r of firearm , 2 including the regi tration and licensing and a the regulatory body charged wilh 3 impl menting, administering and enforcing the law r lating to the lawful transfer of 4 firearm within the tate, have a clear, pr ent and mini teria l duty to en ur that the 5 s terns de eloped by the DOJ to facilitate the subm i sio n of information do not act as 6 barriers to the ubmis ion of the required information nece ary for the al , loan and/or 7 tran fer of lawful firearm . 8 I I 9. Declarator r Iief is wa1 ranted in th i a e b cau : (I) an actua l controvers · has arisen and 9 now exist between PLAI TI F and D FE DA T.. er the validity ofth rule , including those IO that apply to the DE ystem, as currently de igned. implemented. maintained and enforced, and (2) 11 there i no adequate remedy in the ordinary cours of la, . 12 120. Additionally, DEFENDA Ts· d sign. impl mentation. maintenance and enforcement of the 13 DES system, in conjunction with the general firearm transfer la s within the State of California and the 14 resultant injuries to PLA INTIFF , are and will be of a continuing nature for which PLAINTIFF will 15 have no adequate remedy at law. 16 121. Accordingly, PLAINTl F s ek an injunction pursuant to ode of Civil Procedure ection 525 17 and 52 . nle DEFE DA T . their agents. employees, repr sentatives and all tho e acting in 18 c ncert with them are enjoin d from enforcing administrative and/or t chno logical barriers that pre ent 19 the sale of !a ful firearms including but n t limited to the FA[ Tit! I. PLAI TIFF will continue to 20 uffi r great and irr parable harm. 21 122. Additionally, unless DEFENDA T , their agents, employees, representatives, and all those 22 acting in concert ith them are enjoyed from enforcing the Rob rti-Roos Assault Weapon Att in a 23 mann r that prohibits thos who but for DEFE DA ' technological barri r to lawful the 24 acquisition. could have lawfully acquired and registered their FAI Title I style in accordance with Senate 25 Bill 118, PL I TIFF will ntinu to uffer great and irreparable harm. 26 SECOND CAUSE OF ACTION: PETITION FOR WRIT OF MANDATE 27 AGAI TALL DEFENDANT ) 28 123. Paragraph 1- 122 are realleged and incorporated by reference. VERIF IED FIRST AMENDED COMPLA CTI VE REL fEF Case 2:21-cv-09018-ODW-PD Document 18 Filed 01/24/22 Page 40 of 189 Page ID #:161 124. DEf'E DANT have a lear, pres nt and ministerial duty to de ign implement maintain or 2 enforce the provi ion of Penal Code section in uch a manner that doe not preclud or bar the ale 3 tran fer. loan or other proces ing of entire cla se of lawful firearm by technological or administrative 4 barrier . 5 125. PLAINTIFFS are beneficially interested in this matter as they and/or their member are 6 damaged b the lo s of profits, ale posse ion and/or acquisition of firearm because of 7 D FE DA T ' design implementation, maintenance and enforcement of the DE system pursuant to 8 Penal ode sections 28155, 28205, 28215 and 28220 in such a manner as to proscribe the lawful sale, 9 tran fer and loan of an entire class of lawful firearms including the FAl Title I. IO 126. DEFENDANT · design implementation maintenance and enforcement of the DE system II pur uanl to Penal Code ections 28155, 28205, 28215 and 28220 in such a manner as to proscribe the 12 lawful sale. transfer and loan of an entire clas of lawful firearms , including the FAl Title I are and will 13 be of a continuing nature for which PLAINTIFFS have no plain, peedy or adequate remedy at law, and 14 which have and will continue to re ult in irreparable harm. 1- 127.PLAI TIFF pre ent impo11ant questions of statutory interpretation, as well as que tions of l6 pub Ii int rest which further warrant prompt dispo ition of this matter. 17 128.Accordingly, PLAI TIFFSseekawritofmandate puruantto odeofCivilProcedure 18 ection l 085 and 1807, commanding DEFE DA T to de ign , implement, maintain and enforce 19 updates to the D system such that it doe not proscribe the lawful sale transfer and loan of an ent ire 20 las of lawful firearms including the FAI Title I and u h that it comport with Penal Code sections 21 28155, 28205, 28215 and 28220. _2 129. Additionally, PLAINTIFFS seek a writ of mandate pursuant to ode of Civil Procedure 23 sections I085 and 1807, commanding DEFENDANTS to design, implement maintain. and enforce 24 update their ''as ault weapons· registration process such that it permit the registration of the FA / Title 25 I tyle firearm b those who e order were placed on or befor August 6, 2020 rat uch time a 26 deemed appropriate by the Court. 27 I ll 28 Ill - 25 - VERIFlED FIRST AME OED COMPLAINT FOR DECLARATORY A D INJUNCTIVE RELIEF
Enter the password to open this PDF file:
-
-
-
-
-
-
-
-
-
-
-
-