BIG New CA Lawsuit!

Kilmer is one, sharp dude.

California has a few morons who like to try to put bad cases before the courts to achieve their aims. Kilmer is not one of those. He is very careful and knows what he is doing. WIsh there were more like him.
 
Just to refresh your memory, back on May 6th in the Haynie v. CA case, the State made a Motion To Dismiss (item #26 on the docket). Then there was the relating of the Richards case to Haynie and consolidating the cases. On August 5th, the Court held a hearing on the MTD. The MTD was granted, based on the theory that neither Haynie or Richards had a realistic chance of been rearrested. The MTD also granted leave for the plaintiffs to file an amended complaint, which was due today.

The amended complaint has been filed, with some startling information.

On August 14, 2011, RICHARDS was wrongfully arrested a second time for possession of an Assault Weapon and spent four (4) days in the Sonoma County jail awaiting bail. Again the charges against him were dismissed. He was factually innocent of the charges brought.3


3 The Motion to Dismiss brought by Defendants Harris and California Department of Justice was argued on August 5, 2011. Richards’ new arrest occurred on August 14, 2011, and the case was dismissed on September 19, 2011. Plaintiffs immediately brought this new development to the attention of the Defendants and asked if they would stipulate to a joint statement informing the Court of this new fact. The Defendants declined that invitation and the Plaintiff was not aware of any authority for alleging new facts once a Rule 12 motion has been submitted to the Court. A new case for wrongful arrest is being filed in this Court and a request to relate the cases will be made at the appropriate time.
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What this complaint is now doing is to have the entire laws and regulations that define California Assault Weapons declared unconstitutionally vague and ambiguous, for the reasons stated within the complaint.

The complaint also alleges that California Penal Code § 12031(e) is a legislatively enacted General Warrant and therefore violates the 4th amendment and is unconstitutional on its face (for those that don't know, that section of the CA penal code allows an officer to check your firearm to ensure that it is unloaded, without any warrant whatsoever).

Gotta love it when the gun-grabbers make your case for you! :)
 
Clarifications: Haynie, Richards I and Richards II

There was some confusion over at CalGuns, because of an announcement, today, by the SAF. So, Donald Kilmer came online to clarify what exactly was going on. I'm quoting his entire post from here.

In all cases the Plaintiffs were state court criminal defendants charged under Penal Code s 12280(b). These cases were dismissed after the government conceded that the guns were not assault weapons under CA law. Calguns Foundation, Inc., and SAF paid my office to represent all of these defendants in these state court criminal actions.

Federal Civil Rights Case #1 - Haynie v. Harris. Originally included Pleasanton Police Dept. for false arrest. They paid up on the cost of Mr. Haynie's bail and were dismissed. Only remaining action was to request that Cal DOJ issue bulletin/memo about bullet-button rifles to prevent future wrongful arrests.

Fedearl [sic] Civil Rights Case #2 - Richards v. Harris. Also asked that Cal DOJ issue bulletin/memo clarifiying [sic] assault weapons statutes to prevent future wrongful arrests. Also suing Rohnert Park Police and arresting officer for wrongful arrest to recover attrorney [sic] fees and bail bond costs.

Cases #1 and #2 were consolidated in a hearing where DOJ tried to get the cases dismissed on the grounds that plaintiffs lacked standing because they couldn't plausibly allege that they faced additional threats of arrest.

After the motion was submitted to the Court, but before the Court issued its opinion, Mr. Richards was arrested again in Sonoma County. We tried to get the DOJ to stipulate that this fact be placed before the Court, even though the Federal Rules do not permit additional material (except for a change in the law) to be submitted once the matter has been argued. They declined.

The judge granted the CA DOJ request to dismiss on the standing issue relying on the case of Lyons v. Los Angeles. In that case, since Mr. Lyons couldn't prove that he rationally feared re-arrest, he could not seek injunctive relief against the LAPD to stop their use of choke-holds.

Although the judge granted DOJ's motion, they allowed the plaintiffs to amend their complaint. We did.

Back to Mr. Richards' second arrest. He had to post bail again. Again he was cleared of the charges because the gun was not an assault weapon.

Federal Civil Rights Case #3 - Richards v. Harris II. We are no longer seeking to have the DOJ clarify the law. Now we want the law declared unconstitutionally vague. And we want damages from the arresting agency -- Sonoma County Sheriff and arresting officer. This case was filed on November 17, 2011. It will probably be consolidated with Haynie and Richards I.
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Don's summation of the case is just excellent!
 
Richards II will now be consolidated with Haynie and Richards I.

Here's a rundown of what is happening, for those of you that are confused.

Back on Mar. 25th, 2010, Donald Kilmer Filed the Haynie lawsuit (Mark Haynie, Calguns Foundation and SAF, plaintiffs). After some finagling, one of the defendants were dropped (they met an agreed to damages claim) and an amended complaint was filed about a year later.

Things finally began to proceed as we have seen in other cases. On May 6th, 2011, defendants filed a MTD.

Meanwhile, Jason Davis filed a lawsuit on May 20th, 2011 (Brendan Richards, Calguns Foundation and SAF, plaintiffs). A notice of related case (Haynie) was also filed.

On that same day, Haynie plaintiffs filed a response to the MTD and a notice of related case (Richards).

On May 27th, 2011, the Haynie defendants filed their reply to the response and notice of related case.

On June 8th, 2011, the Court related Richards to Haynie. That is where the Richards docket stops. On the Haynie docket, the consolidation of cases formally took place on June 22nd, 2011.

The hearing on the defendants MTD was held on Aug. 10th, 2011. The matter was submitted to the court.

Meanwhile, Richards was re-arrested for the much same thing he was originally arrested for. The plaintiffs immediately notified the defendants and asked for a joint stipulation, which the defendants declined.

On Oct. 20th, 2011, the court granted the defendants MTD but also granted the plaintiffs leave to file a consolidated amended complaint. That was filed on Nov. 4th, 2011.

In this consolidated complaint, plaintiffs reiterated much of the older complaints and attacked the Judges ruling on the MTD, as Richards was in fact arrested again, despite the Judges opinion that this could scarcely happen ever again.

The Richards plaintiffs, then filed a separate lawsuit for this new offense.

On Nov. 18th, instead of filing a response to the complaint, Defendants moved for more time to file and noticed the court of the new lawsuit and its relatedness. The court granted the extension of time to file, on Nov. 23rd.

This allowed both the plaintiffs and defendants to proceed and have the cases related. That order was granted last Friday, the 16th. The complaint in this new action is very specific and will be made part of the consolidated cases.

The defendants now have until Monday, Dec. 26th to file their response to the complaint(s).
 
A new development (not previously announced anywhere).

On Friday, Dec. 30th, a stipulated motion was sent to the court to reset the Case Management Conference (CMC) from Jan 13th to March 30th.

The reason for this delay? It appears another false arrest under the CA Assault Weapons Statutes has been made in Sonoma County by the Cotati Police Dept.

Talks have already taken place between Donald Kilmer and the new plaintiffs attorney and it seems that this new case will be related to Haynie; Richards I and Richards II.

Remembering that the Judge said this stuff was never likely to happen again ... I think a certain Judge is going to be eating some crow pie! ;)

See Doc #49 at the Docket.
 
As the old country sage once said "there is no cure for a terminal case of stupidity"

One of our best weapons is the arogance of the anti gun crowd and the irrational people whom they have in place to enforce their position
 
Y'know... it might be worth the trouble to stage a nice demonstration for the court. The result would be a video showing how wrong police and the public can be about the law.

Imagine seven rifles on a table and you ask five different police officers to identify the CA-defined "assault weapon"[¹]. Do the same with three or four civilians. Among the rifles should be one true (legally registered) "assault rifle", a .22LR version, a modified rifle with no pistol grip, a (likely borrowed) Class-III M16, a CA-compliant "fixed magazine" rifle with a collapsing stock and bayonet lug and two CA-compliant "standard" AR-15 pattern rifles.


For non-Californians - CA has two (2) statutes. The 1989 law lists specific makes and models - such as the Colt AR-15 and Bushmaster XM15 - by name. After names were changed, CA added a "ban by features" that included things like a pistol grip, detachable magazine and any one of a list of features (bayonet lug, flash hider, collapsing stock, etc.)

In the demo above, the .22LR version is exempt because the law deines an AW as a "centerfire" rifle. Likewise, without a "protruding pistol grip" the rifle does not meet the definition under the "features" ban. The actual M-16 is not a banned "assault rifle" but a "machine gun" in CA. The "bullet button" mentioned requires the use of a bullet tip (or similar probe) to release the 10-round magazine which qualifies as a "fixed" magazine and exempts the rifle from the AW statute.


¹ "Assault weapon" as defined by CA law, not by military arms terminology the rest of the world uses.
 
A copy of the civil complaint of Richards II can be read here.

If we browse down to Pp. 19, paragraph 78(f), we find that Max Horowitz is the defendant in a (then ongoing) criminal action out of Cotati, CA. This would appear to be the 4th case talked about in the stipulated agreement.
 
That is pretty funny. The judge said there is no chance of him being arrested again and bam! they do it again.

I wonder how the judge feels with all that egg on his face?
 
Just moved to CA

This is of the highest interest for me as I am a new resident and not real used to having my right restricted. Thank you all who translate and repost the legal jargon!
 
The answer is simple - if you can't legally defeat them, drain their resources in frivolous court battles and frazzle their nerves with continued arrest and threat of arrest. Eventually they will grow so weary of these activities they will either leave or rid themselves of the rifles. It is a simple and effective battle plan for those with "unlimited" access to state funds for said legal activities.
 
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Just a note.

The defendants were to file their answer to the amended complaint on or before today, May 1st. They have until midnight Pacific time to do this. I just checked and the brief was not filed.
 
Doesn't suck at all.

We're siding with the plaintiffs on this one, the defense is the State. I'm sure they'll file something, it'll be interesting how they defend this one.
 
That is pretty funny. The judge said there is no chance of him being arrested again and bam! they do it again.
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Did the plaintiff set out to structure events to guaranteee that he would get arrested? What are the details?
 
I don't see a defendant filing on the docket within the deadline of midnight, May 1st.
I'm guessing they didn't make it, so what happens now?
 
I don't know the rules of this court, but defendant state very likely got an extension of time granted by stipulation for it to plead.
 
A bit of an update.

The newest included case, Plog-Horowitz, was dismissed with prejudice last Wed., the 24th. There appears to be a bunch of other controversy over this plaintiff that Don Kilmer did not initially know about.

Maestro Pistolero has been following this more than I, so maybe he will tell us what has happened (you're welcome Chris :D ).

Suffice it to say, The court is ordering a new consolidated and amended complaint to be filed within 5 days. It is also ordered that the defendants now have 60 days to file their answer.
 
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