1 bill lockyer attorney general ofthe state ofcalifornia...
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1 BILL LOCKYERAttorney General of the State of California
2 LOUIS R. MAUROActing Senior Assistant Attorney General
3 DOUGLAS J. WOODSDeputy Attorney General
4 State BarNo. 1615311300 I Street
5 P.O. Box 944255Sacramento, CA 94244-2550
6 Telephone: (916) 324-4663Fax: (916) 324-5567
7 Attorneys for Defendants ATTORNEY GENERALBILL LOCKYER, the STATE OF CALIFORNIA, and
8 CALIFORNIA DEPARTMENT OF JUSTICE
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10 SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF FRESNO
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13 EDWARD W. HUNT, in this official capacity as CASE NO.: O1CECGO3182District Attorney of Fresno County, and in his
14 personal capacity as a citizen and taxpayer, et al., DEFENDANTS’ DEMURRERTO PLAINTIFFS’ AMENDED
15 Plaintiffs, COMPLAINT
16 V. Date: January 23, 2003Time: 3:30p.m.
17 STATE OF CALIFORNIA, et al., Dept: 72
18 Defendants. Before the Hon. Stephen J. Kane
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20 Defendants Attorney General Bill Lockyer, the State of California, and California
21 Department of Justice, hereby demur to plaintiffs’ Amended Complaint under Code of Civil
22 Procedure section 43 0.10(e) on the ground that plaintiffs’ Amended Complaint fails to state facts
23 sufficient to state a cause of action. Plaintiffs’ have failed to, and cannot, allege facts sufficient to
24 constitute a cause of action for the independent reasons that:
25 (1) Plaintiffs cannot allege that the challenged assault weapons provisions are
26 unconstitutionally vague on their face or as applied; and
27 (2) Each alleged substantive challenge to the assault weapons provisions is without met as
28 amatter of law.1
Motion for Demurrer to Plaintiffs’ First Amended Complaint
1 Wherefore, defendants pray that:
2 (a) This demurrer be sustained without leave to amend;
3 (b) The Amended Complaint be dismissed;
4 (c) Judgment be entered in favor of defendants;
5 (d) Defendants be awarded their attorneys’ fees and costs of suit; and
6 (e) For all other relief that the Court may deem proper.
7 Dated: December 12, 2002
8 Respectfully submitted,
9 BILL LOCKYERAttorney General of the State of California
10 LOUIS R. MAURO
11Acting Senior Assistant Attorney General
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13 DOUGLAS J. WOODSDeputy Attorney General
14 Attorneys for Defendants ATTORNEYGENERAL BILL LOCKYER, the STATE OF
15 CALIFORNIA, and CALIFORNIADEPARTMENT OF JUSTICE
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Motion for Demurrer to Plaintiffs’ First Amended Complaint
DECLARATION OF SERVICE BY OVERNIGHT COURIER
Case Name: HUNT, eta! v. STATE OF CALIFORNIA, eta!
No.: Fresno County Superior Court No. 01 CE CG 03182
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar at which membe?s direction this service is made. I am 18 years of age or olderand not apartyto this matter; my business address is: 13001 Street, P.O. Box 944255, Sacramento,California 94244-25 50.
7On December 12. 2002,1 served the attached DEFENDANTS’ DEMURRER TO PLAINTIFFS’AMENDED COMPLAINT by placing a true copy thereof enclosed in a sealed envelope withpostage thereon fully prepaid with the California Overnight Service addressed as follows:
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Stephen P. Halbrook, Esq.10560 Main Street, Suite 404Fairfax, VA 22030
I declare under penalty of perjury under the laws of the State of California the foregoing is true andcorrect and that this declaration was executed on December 12, 2002, at Sacramento, California.
Signature
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C. D. MichelTRUTANICH MICHEL LLP407 North Harbor BoulevardSan Pedro, CA 90731
Don B. KatesBENENSON & KATES22608 North East 269th AvenueBattleground, WA 98604
JO FARRELL
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Declarant
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1 BILL LOCKYERAttorney General of the State of California
2 LOUIS R. MAIJROActing Senior Assistant Attorney General
3 DOUGLAS J. WOODSDeputy Attorney General
4 State BarNo. 1615311300 I Street
5 P.O. Box 944255Sacramento, CA 94244-2550
6 Telephone: (916) 324-4663Fax: (916) 324-5567
7 Attorneys for Defendants ATTORNEY GENERALBILL LOCKYER, the STATE OF CALIFORNIA, and
8 CALIFORNIA DEPARTMENT OF JUSTICE
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10 SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF FRESNO
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______________________________________________
13 EDWARD W. HUNT, in this official capacity as CASE NO.: O1CECGO3 182District Attorney of Fresno County, and in his
14 personal capacity as a citizen and taxpayer, et al., DEFENDANTS’ DEMURRERTO PLAINTIFFS’ AMENDED
15 Plaintiffs, COMPLAINT
16 V. Date: January 23, 2003Time: 3:30p.m.
17 STATE OF CALIFORNIA, et al., Dept: 72
18 Defendants. Before the Hon. Stephen J. Kane
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20 Defendants Attorney General Bill Lockyer, the State of California, and California
21 Department of Justice, hereby demur to plaintiffs’ Amended Complaint under Code of Civil
22 Procedure section 43 0.10(e) on the ground that plaintiffs’ Amended Complaint fails to state facts
23 sufficient to state a cause of action. Plaintiffs’ have failed to, and cannot, allege facts sufficient to
> 24 constitute a cause of action for the independent reasons that:
25 (1) Plaintiffs cannot allege that the challenged assault weapons provisions are
26 unconstitutionally vague on their face or as applied; and
27 (2) Each alleged substantive challenge to the assault weapons provisions is without merit as
28 amatteroflaw.
1Motion for Demurrer to Plaintiffs’ First Amended Complaint
1 Wherefore, defendants pray that:
2 (a) This demurrer be sustained without leave to amend;
3 (b) The Amended Complaint be dismissed;
4 (c) Judgment be entered in favor of defendants;
5 (d) Defendants be awarded their attorneys’ fees and costs of suit; and
6 (e) For all other relief that the Court may deem proper.
7 Dated: December 12, 2002
8 Respectfully submitted,
9 BILL LOCKYERAttorney General of the State of California
10 LOUIS R. MAUROActing Senior Assistant Attorney General
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13 DOUGLAS J. WOODSDeputy Attorney General
14 Attorneys for Defendants ATTORNEYGENERAL BILL LOCKYER, the STATE OF15 CALTFORNIA, and CALfFORNIADEPARTMENT OF JUSTICE16
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2Motion for Demurrer to Plaintiffs’ First Amended Complaint
DECLARATION OF SERVICE BY OVERNIGHT COURIER
2 Case Name: HUNT, et al V. STATE OF CALIFORNIA, et a!
No.: Fresno County Superior Court No. 01 CE CG 03182
4 I declare:
I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar at which member’s direction this service is made. I am 18 years ofage or olderand not a party to this matter; my business address is: 13001 Street, P.O. Box 944255, Sacramento,California 94244-2550.
7On December 12. 2002,1 served the attached DEFENDANTS’ DEMURRER TO PLAINTIFFS’AMENDED COMPLAINT by placing a true copy thereof enclosed in a sealed envelope withpostage thereon fully prepaid with the California Overnight Service addressed as follows:
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Stephen P. Haibrook, Esq.10560 Main Street, Suite 404Fairfax, VA 22030
I declare under penalty of perjury under the laws of the State of California the foregoing is true andcorrect and that this declaration was executed on December 12, 2002, at Sacramento, California.
Sign’ature
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C. B. MichelTRUTAMCH MICHEL LLP407 North Harbor BoulevardSan Pedro, CA 90731
Don B. KatesBENENSON & KATES22608 North East 269th AvenueBattleground, WA 98604
JO FARRELL
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Declarantjf L
1 BILL LOCKYERAttorney General of the State of California
2 LOUIS R. MAUROActing Senior Assistant Attorney General
3 DOUGLAS J.WOODSDeputy Attorney General
4 State Bar No. 1615311300 I Street
5 P.O. Box 944255Sacramento, CA 94244-2550
6 Telephone: (916) 324-4663Fax: (916) 324-5567
7 Attorneys for Defendants ATTORNEY GENERALBILL LOCKYER, the STATE OF CALIFORNIA, and
8 CALIFORNIA DEPARTMENT OF JUSTICE
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10 SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF FRESNO -
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_______________________________________________
13 EDWARD W. HUNT, in this official capacity as CASE NO.: O1CECGO3 182District Attorney of Fresno County, and in his14 personal capacity as a citizen and taxpayer, et al., NOTICE OF DEMURRER TO
PLAINTIFFS’ AMENDED15 Plaintiffs, COMPLAINT
16 v. Date: January 23, 2003Time: 3:30p.m.
17 STATE OF CALIFORNIA, et a!., Dept: 72
18 Defendants. Before the Hon. Stephen I. Kane
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20 TO PLAINTIFFS AND THEIR COUNSEL OF RECORD:
21 PLEASE TAKE NOTICE that the Demurrer ofdefendants Attorney General Bill Lockyer,
22 the State of California, and California Department of Justice has been scheduled for hearing on
23 January 23, 2003, at 3:30 p.m., or as soon thereafter as the matter maybe heard in Department 72
24 of the above-entitled court, located at 1100 Van Ness Avenue, Fresno, California.
25 The Demurrer will be based on this Notice, the Demurrer, the Memorandum ofPoints and
26 Authorities in support of the Demurrer (all served and filed herewith), plaintiffs’ Amended
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1Notice of Demurrer to Plaintiffs’ Amended Complaint
1 Complaint on file herein, and on such further evidence and arguments of counsel as may be
2 presented at the hearing of the motion.
3 Dated: December 12, 2002
4 Respectfully submitted,
5 BILL LOCKYERAttorney General of the State of California
6 LOUIS R. MAURO
7Acting Senior Assistant Attorney General
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9 DOUGLAS J. WOODSDeputy Attorney General
10 Attorneys for Defendants ATTORNEYGENERAL BILL LOCKYER, the STATE OF11 CALIFORNIA, and CALIFORNIADEPARTMENT OF JUSTICE12
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2Notice of Demurrer to Plaintiffs’ Amended Complaint
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DECLARATION OF SERVICE BY OVERNIGHT COURIER
I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar at which member’s direction this service is made. I am 18 years of age or olderand not a party to this matter; my business address is: 1300 I Street, P.O. Box 944255, Sacramento,California 94244-2550.
On December 12, 2002, I served the attached NOTICE OF DEMURRER TO PLAINTIFFS’AMENDED COMPLAINT by placing a true copy thereof enclosed in a sealed envelope withpostage thereon fully prepaid with the California Overnight Service addressed as follows:
Stephen P. Haibrook, Esq.10560 Main Street, Suite 404Fairfax, VA 22030
I declare under penalty of perjury under the laws of the State of California the foregoing is true andcorrect and that this declaration was executed on December 12, 2002, at Sacramento, California.
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JO FARRELL
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Case Name: HUNT, eta! v. STATE OF CALIFORNIA, et al
No.: Fresno County Superior Court No. 01 CE CG 03182
I declare:
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C. D. MichelTRUTANICH MICHEL LLP407 North Harbor BoulevardSan Pedro, CA 90731
Don B. KatesBENENSON & KATES22608 North East 269th AvenueBattleground, WA 98604
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BILL LOCKYERAttorney General of the State of CaliforniaLOUIS R. MAUROSupervising Deputy Attorney GeneralDOUGLAS J. WOODSDeputy Attorney GeneralState Bar No. 161531
1300 I StreetP.O. Box 944255Sacramento, CA 94244-25 50Telephone: (916) 324-4663Fax: (916) 324-8835
Attorneys for Defendants ATTORNEY GENERALBILL LOCKYER, the STATE OF CALIFORNIA, andCALIFORNIA DEPARTMENT OF JUSTICE
EDWARD W. HUNT, in his official capacityas District Attorney of Fresno County, and inhis personal capacity as a citizen andtaxpayer, et al.,
Plaintiffs,
Defendants.
CASE NO: O1CECGO3182
DEFENDANTS’ MEMORANDUM OFPOINTS AND AUTHORITIES INSUPPORT OF DEMURRER TOPLAINTIFFS’ AMENDEDCOMPLAINT
SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO
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V.
STATE OF CALIFORNIA, et al.,Date:Time:Dept:
January 23, 20033:30 p.m.72
Before the Hon. Stephen J. Kane
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1 TABLE OF CONTENTS
2 Page
3 INTRODUCTION 1
4 STATUTORY AND REGULATORY FRAMEWORK 3
5 PLAINTIFFS’ ALLEGATIONS 5
6 ARGUMENT 8
7 A. Plaintiffs Cannot State A Claim To Enjoin Enforcement OfThe AssaultWeapons Law Based On A General Constitutional Vagueness
8 Challenge. 8
9 1. Plaintiffs Cannot Allege That The Challenged Provisions AreUnconstitutionally Vague On Their Face. 8
102. Plaintiffs Cannot Allege That The Challenged Provisions Are
11 Unconstitutionally Vague As Applied. 11
12 B. Each Alleged Substantive Challenge To The Assault WeaponsProvisions Is Without Merit As A Matter Of Law. 13
131. Plaintiffs’ Contention That The Definition Of “Flash
14 Suppressor” Is Vague In Without Merit. 13
15 2. Plaintiffs’ Contention That The Threaded Barrel CapabilityProvision Is Vague Is Without Merit. 16
163. Plaintiffs’ Contention That The “Large-Capacity Magazine”
17 Provision Is Vague Is Without Merit. 17
18 4. Plaintiffs’ Allegation That Defendants Are Required ToApply DOJ’s Regulation Defining “Detachable Magazine”
19 Assumes A Dispute That Does Not Exist, Even In TheAbstract. 18
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21 CONCLUSION 19
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Memorandum in Support of Demurrer. to Amended Complaint
1 TABLE OF AUTHORITIES
2 Page
3 Cases
4 Dyna-Med, Inc. v. Fair Employment & Housing Comm.,43 Cal. 3d 1379 (1987) 14
5Harrott v. County ofKings,
6 25 Cal. 4th 1138 (2001) 10
7 Hoffman Estates v. Flipside, Hoffman Estates, Inc.,455 U.S. 489 (1982) 8, 9
8In reJorgeM.,
9 23 Cal. 4th866 (2000) 10
10 InreDylanT.,65 Cal. App. 4th 765 (1998) 14
11Owens v. Kings Supermarket,
12 198Ca1.App.3d379(1988) 9
13 Peoplev. Woodhead,43Cal.3d1002(1987) 14
14People’s Rights Organization v. City of Columbus,
15 152 F.3d 522 (6th Cir. 1998) 11
16 Traverso v. People ex rel Department of Transportation,6Cal.4th1152(1993) 14
17Waste Management ofAlameda Co., Inc. v. Alameda County,
18 79 Cal. App. 4th1223 (2000) 12
19 Statutes
20 California Code of Regulations,Title 11,
21§ 978.20 4, 18
22§ 978.20(a) 7
23§ 978.20(b) 5
24
25 Code of Civil Procedure
26 § 430.10(e) 1
27 § 526a 8, 12
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Memorandum in Support of Demurrer to Amended Complaint
TABLE OF AUTHORITIES (continued)
1Page
2 Government Code
§ 11342.2 15
Penal Code
§ 12020 5, 14
6§ 12020(c)(1)(A) 14
§ 12020(c)(1)(B) 14
8§ 12020(c)(1)(E) 14
§ 12020(c)(2)(E) 14
10§ 12020(c)(4) 14
11§ 12020(c)(9) 14
12§ 12020(c)(10) 14
13§ 12020(c)(25) 6, 17
14§ 12020(c)(25)(A) 7
15§ 12276 3-5
16§ 12276.1 3-5, 14
17§ 12276.1(a)(4)(A) 6
18§ 12276.1(e) 16
19§ 12276.1(b) 16
20§ 12280 4, 5
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22 United States Code,Title 42,
23 §1983 724
25 Other Authorities
26 Webster ‘s New World Dictionary,Third College Ed., 1988. 18
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Memorandum in Support of Demurrer to Amended Complaint
1 BILL LOCKYERAttorney General of the State of California
2 LOUIS R. MAUROSupervising Deputy Attorney General
3 DOUGLAS J. WOODSDeputy Attorney General
4 State BarNo. 1615311300 IStreet
5 P.O. Box 944255Sacramento, CA 94244-2550
6 Telephone: (916) 324-4663Fax: (916) 324-8835
7 Attorneys for Defendants ATTORNEY GENERALBILL LOCKYER, the STATE OF CALIFORNIA, and
8 CALIFORNIA DEPARTMENT OF JUSTICE
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF FRESNO
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12 EDWARD W. HUNT, in his official capacity CASE NO.: O1CECGO3 182as District Attorney of Fresno County, and in
13 his personal capacity as a citizen and DEFENDANTS’ MEMORANDUM OFtaxpayer, et al., POINTS AND AUTHORITIES IN
14 SUPPORT OF DEMURRER TOPlaintiffs, PLAINTIFFS’ AMENDED
15 COMPLAINTV.
16 Date: January 23, 2003STATE OF CALIFORNIA, et al., Time: 3:30 p.m.
17 Dept: 72Defendants.
18 Before the Hon. Stephen J. Kane
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20 Defendants Attorney General Bill Lockyer, the State of California, and the California
21 Department of Justice (“DOJ”) hereby submit this memorandum in support of their demurrer to
22 plaintiffs’ Amended Complaint in this action pursuant to Code ofCivil Procedure section 430.10(e).
23 Plaintiffs have failed to, and cannot, allege facts sufficient to constitute a cause of action.
24 I.
25 INTRODUCTION
26 In denying plaintiffs’ motion for preliminary injunction on April 16th earlier this year, this
27 Court ruled: “The day may come when an actual criminal prosecution will present a court with
28 vagueness challenges to the enforceability of the [Assault Weapons Control] Act (or specified1
Memorandum in Support of Demurrer to Amended Complaint
1 regulations on which the prosecution depends) which the court will have to decide. However, this
2 is not that case.” Order Denying Request for Preliminary Injunction (“Or.”), p. 5:19-23 (emphasis
3 added). Eight months later, and notwithstanding plaintiffs’ amendments to their Complaint, this case
4 remains “not that case.
5 Plaintiffs have made no changes to their allegations that are of any substance. Just as in
6 their original Complaint, plaintiffs challenge in their Amended Complaint the Penal Code provisions
7 established by Senate Bill 23, Chapter 129 of the Statutes of 1999 (“SB 23”), and the package of
8 regulations promulgated in support of SB 23. SB 23 for the first time defined assault weapons by
9 reference to objective design characteristics, in addition to the existing list of assault weapons
10 already identified in the Penal Code by manufacturer and model. Also just as in their original
11 Complaint, conspicuously absent from plaintiffs’ allegations in the Amended Complaint is any
12 mention of any actual instance in which a particular firearm was the subject of enforcement that
13 would call the challenged assault weapons provisions into question. The original plaintiffs are the
14 District Attorney of Fresno County, the former Oakdale Chief of Police, the Law Enforcement
15 Alliance ofAmerica, California Sporting Goods Association, Inc., and a Fresno firearms dealer. The
16 additional plaintiffs are now the District Attorney of Mendocino County, the California Rifle and
17 Pistol Association, and four anonymous firearms owners. Plaintiffs thus now include two district
18 attorneys, a former chief of police, a law enforcement alliance including within its ranks law
19 enforcement officers in California, an association dedicated to preserving and expanding gun
20 ownership rights, an association of California-based firearms dealers, distributors, and
21 manufacturers’ representatives, a firearms dealer, and four anonymous firearms owners, all ofwhom
22 are urging this Court to prohibit enforcement of existing assault weapons provisions. Yet,
23 collectively, plaintiffs have not come up with a single instance in which a particular firearm was the
24 subject of enforcement that in their view would demonstrate the allegedly Constitutional
25 shortcomings of the challenged assault weapons provisions. As a matter of law, plaintiffs cannot
26 obtain the advisory opinion they seek.
27 In addition, plaintiffs’ allegations in their Amended Complaint suffer from the same
28 substantive shortcomings identified by defendants with respect to the original Complaint in the
2Memorandum in Support of Demurrer to Amended Complaint
1 course of the preliminary injunction opposition briefing. Plaintiffs’ same substantive criticisms of
2 the provisions in question continue to amount only to policy disagreements with the Legislature as
3 to what the assault weapons laws should be. Plaintiffs’ mere addition ofmore plaintiffs and ‘new”
4 labels for their existing claims fails to resolve the deficiencies in their claims identified by
5 defendants and the Court in the course of the proceedings on the preliminary injunction motion.
6 Plaintiffs’ claims were and are flawed in multiple respects. Plaintiffs’ new round of
7 unsuccessful efforts to plead sufficient claims in their Amended Complaint demonstrate that they
8 cannot amend their allegations to present a proper claim. The issues raised by plaintiffs’ allegations
9 may eventually perhaps be properly joined in a suitable criminal proceeding, but as the Court has
10 already ruled: this is not that case. Defendants request that this Court sustain their demurrer to
11 plaintiffs’ Amended Complaint without leave to amend.
12 II.
13 STATUTORY AND REGULATORY FRAMEWORK
14 The relevant portions of the applicable Penal Code provisions are as follows:
15 § 12276.1. Assault weapon; further definition
16 (a) Notwithstanding Section 12276, assau1t weapon? shall also mean any of thefollowing:
17(1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable
18 magazine and any one of the following:
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20 (B) A flash suppressor.
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22 (4) A semiautomatic pistol that has the capacity to accept a detachable magazine and anyone of the following:
23(A) A threaded barrel, capable of accepting a flash suppressor, forward handgrip, or
24 silencer.
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26 (b) The Legislature finds a significant public purpose in exempting pistols that aredesigned expressly for use in Olympic target shooting events. Therefore, those pistols that
27 are sanctioned by the International Olympic Committee and by USA Shooting, thenational governing body for international shooting competition in the United States, and
28 that are used for Olympic target shooting purposes at the time the act adding this
3Memorandum in Support of Demurrer to Amended Complaint
1 subdivision is enacted, and that would otherwise fall within the definition of “assaultweapon” pursuant to this section are exempt, as provided in subdivision (c).
2(c) “Assault weapon” does not include either of the following:
3(1) Any antique firearm.
4(2) Any of the following pistols, because they are consistent with the significant public
5 purpose expressed in subdivision (b): [specified]
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7 Penal Code § 12276.1.
8 In addition, the relevant portions of the assault weapons definitions contained in the
9 California Code of Regulations are as follows:
10 § 978.20. Definitions
11 The following definitions apply to terms used in the identification ofassault weaponspursuant to Penal Code section 12276.1:
12(a) “detachable magazine” means any ammunition feeding device that can be
13 removed readily from the firearm with neither disassembly of the firearm action nor useof a tool being required. A bullet or ammunition cartridge is considered a tool.
14 Ammunition feeding device includes any belted or linked ammunition, but does notinclude clips, end bloc clips, or stripper clips that load cartridges into the magazine.
15(b) “flash suppressor” means any device designed, intended, or that functions to
16 perceptibly reduce or redirect muzzle flash from the shooter’s field of vision.
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18 California Code of Regulations, Title 11, § 978.20.
19 These provisions defining assault weapons by virtue of their characteristics, in addition
20 to the identification of assault weapons by manufacturer and model in Penal Code section 12276,
21 come into play by virtue ofPenal Code section 12280, which prohibits the possession, manufacture,
22 distribution, transportation, importation, sale, gift, or loan of assault weapons, except where the
23 assault weapon is registered with DOJ or where a valid assault weapon permit has been issued by
24 DOJ.
25 In addition, plaintiffs seek to challenge by this action another Penal Code provision
26 established by SB 23, which is in the same spirit as the assault weapon definition by reference to
27 objective characteristic (i.e., prohibiting sale or transfer of”large-capacity” magazines), but which,
28 truly speaking, is a provision separate from and independent of the defined assault weapon4
Memorandum in Support of Demurrer to Amended Complaint
1 enforcement framework consisting of sections 12276, 12276.1, and 12280. The relevant portions
2 of the “large-capacity” magazine Penal Code prohibition are as follows:
3 § 12020. Manufacture, import, sale, supply or possession of certain weapons andexplosives; punishment; exceptions; definitions I
4(a) Any person in this state who does any ofthe following is punishable by imprisonment
5 in a county jail not exceeding one year or in the state prison:
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7 (2) Commencing January 1, 2000, manufactures or causes to be manufactured, importsinto the state, keeps for sale, or offers or exposes for sale, or who gives, or lends, any
8 large-capacity magazine.
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10 (c)(25) As used in this section, “large-capacity magazine” means any ammunition feedingdevice with the capacity to accept more than 10 rounds, but shall not be construed to
11 include any of the following:
12 (A) A feeding device that has been permanently altered so that it cannot accommodatemore than 10 rounds.
13(B) A .22 caliber tube ammunition feeding device.
14(C) A tubular magazine that is contained in a lever-action firearm.
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16 Penal Code § 12020.
17 III.
18 PLAINTIFFS’ ALLEGATIONS
19 Just as plaintiffs alleged in their original Complaint and argued in their preliminary
20 injunction motion, plaintiffs allege in their Amended Complaint that the regulatory definition of
21 “flash suppressor” is unconstitutionally vague. Am. Compl., ¶J 37-57; see California Code of
22 Regulations, Title 11, § 978.20(b). In particular, plaintiffs disagree with the regulatory language that
23 serves to include within the “flash suppressor” definition devices thatfunction to perceptibly reduce
24 or redirect muzzle flash from the shooter’s field of vision. Am. Compi., ¶ 41. Plaintiffs want the
25 definition to include only devices designed or intended to reduce flash. Am. Compl., ¶ 46. Plaintiffs
26 also complain that the definition should not include devices that redirect muzzle flash from the
27 shooter’s field of vision, but only devices that reduce muzzle flash. Am. Compl., ¶ 42. Plaintiffs
28 complain that the regulatory definition is subject to uncertainty based on varying definitions in
5Memorandum in Support of Demurrer to Amended Complaint
1 firearms industry reference sources (Am. Compl., ¶ 39), an absence of standards for determining
2 what is “perceptible (Am. Compl., ¶ 44), and alleged difficulties in comparison testing devices (Am.
3 Compl., ¶J 50-54).
4 Just as plaintiffs alleged in their original Complaint and argued in their preliminary
5 injunction motion, plaintiffs allege in their Amended Complaint that the statutory assault weapon
6 designation of any semiautomatic pistol with the capacity to accept a detachable magazine and a
7 “threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer” is
8 unconstitutionally vague. Am. Compl., ¶J 58-63; see Penal Code § 12276.1 (a)(4)(A). In particular,
9 plaintiffs allege that there are very few civilian pistols that have threaded barrels that will accept such
10 devices, and that generally the only civilian pistols having threaded barrels are Olympic and other
11 competition pistols. Am. Compl., ¶ 59. Plaintiff alleges that owners ofpistols with threaded barrels
12 cannot be expected to know whether there exists somewhere in the world a flash suppressor, forward
13 handgrip, or silencer that will fit the threads of their pistols. Am. Compl., ¶ 60. Plaintiffs want the
14 statute to be interpreted to allow prosecution only if (1) the defendant has actual knowledge that
15 there is a flash suppressor, forward handgrip, or silencer that fits the threaded barrel of the pistol
16 possessed or (2) the defendant reasonably should have known of that based on actual knowledge of
17 other arcane facts so indicating. Am. Compi., ¶J 61-63.
18 Just as plaintiffs alleged in their original Complaint and argued in their preliminary
19 injunction motion, plaintiffs allege in their Amended Complaint that the statutory definition of
20 “large-capacitymagazine” (as “any ammunition feeding device with the capacity to accept more than
21 10 rounds”) is unconstitutionally vague. Am. Compi., ¶J 64-75; see Penal Code § 12020(c)(25).
22 In particular, plaintiffs allege that shotguns that have a capacity for only six standard 2.75 inch
23 rounds may be able to take 11 or more 1.5 inch rounds made by an obscure Mexican ammunition
24 company. Am. Compi., ¶J 66-67. Plaintiffs want the statute to be interpreted as applicable only to
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6V Memorandum in Support of Demurrer to Amended Complaint
1 whatever magazine capacity the manufacturer designed, advertised, and sold the firearm as having.
2 Am. Compi., ¶ 69.
3 Just as plaintiffs alleged in their original Complaint and argued in their preliminary
4 injunction motion, plaintiffs allege in their Amended Complaint that they are not sure defendants
5 will apply the regulatory definition of “detachable magazine” in light of correspondence between
6 plaintiffs’ counsel and defendants. Am. Compi., ¶J 81-83, 86-87; see California Code of
7 Regulations, Title 11, § 978.20(a). Plaintiffs allege that they asked DOJ if a detachable magazine
8 would no longer be considered detachable under the regulation if it were attached to the firearm by
9 means ofa screw through the magazine release. Am. Compi., ¶ 81. Plaintiffs allege that DOJ stated
10 in response that such a technique would render the magazine non-detachable under the regulatory
11 definition, but proceeded to state that such an alteration would violate the spirit, if not the letter, of
12 the assault weapons law. Am. Compl., ¶ 82, Exs. 27-28. Plaintiffs want defendants to enforce the
13 regulatory definition. Am. Compi., ¶ 83.
14 Aside from miscellaneous wording changes, plaintiffs’ new allegations added since the
15 Court’s preliminary injunction ruling consist of (1) the addition as plaintiffs of four anonymous
16 firearms owners, the Meñdocino County District Attorney, and another firearms association, (2) the
17 addition of styling of their claims as under 42 U.S.C. section 1983, the United States and California
18
191. Plaintiffs also complain, as they have previously, of alleged uncertainty in the
20 “permanent alteration” exception to the large-capacitymagazineprohibition. Am. Compl., ¶J 70-75.Although an owner of a large-capacity magazine can avoid violation ofthe large-capacity magazine
21 prohibition by “permanently altering” the magazine to limit its capacity (Penal’ Code
22 § 12020(c)(25)(A)), plaintiffs complain that the exception has no application at all “[i]f construedover-literally.. . . Alterations of metal and plastic objects are always subject to reversal, given the
23 necessary time, expertise, resources, and specialized tools and equipment.” Am. Compl., ¶ 72.
24 2. In a similar vein, plaintiffs allege that other DOJ correspondence creates additionaluncertainty with respect to the definitions of”flash suppressor” and “large-capacity magazine.” Am.
25 Compl., ¶J 56, 76-80, 84-87. In the context of these two categories, however, plaintiffs’ complaint
26is that DOJ’s correspondence would appear to allow departure by plaintiffs from the statutory andregulatory definitions of these terms. Because plaintiffs do not favor the “flash suppressor” and
27 “large-capacity magazine” definitions and indeed would welcome the alleged departure, plaintiffsask that the Court invalidate the definitions, rather than require defendants to adhere to them.
28 Am. Compi., ¶J 80, 87.7
Memorandum in Support of Demurrer to Amended Complaint
1 •Constitutions, and Code of Civil Procedure section 526a, and (3) the addition that the challenged
2 definition of “flash suppressor” is alleged to be unconstitutionally vague in all of its applications
3 (Am. Comp., ¶ 48). Because none ofthe changes have resolved the deficiencies in plaintiffs’ claims
4 previously identified by defendants and this Court, defendants request that the Court sustain this
5 demurrer without leave to amend.
6 IV.
7 ARGUMENT
8 A. Plaintiffs Cannot State A Claim To Enjoin Enforcement Of The Assault WeaponsLaw Based On A General Constitutional Vagueness Challenge.
9
10 1. Plaintiffs Cannot Allege That The Challenged Provisions AreUnconstitutionally Vague On Their Face.
11
12 In evaluating a claim that legislation is unconstitutionally vague on its face, where First
13 Amendment rights are not implicated a court “should uphold the challenge only fthe enactment is
14 impermissibly vague in all ofits applications.” Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
15 455 U.S. 489,495 (1982) (emphasis added) (reversingjudgment granting declaratory and injunctive
16 relief in pre-enforcement facial challenge to drug paraphernalia ordinance). In support ofits holding
17 in Hoffman Estates, the United States Supreme Court explained: “A plaintiffwho engages in some
18 conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the
19 conduct of others. A court should therefore examine the complainant’s conduct before analyzing
20 other hypothetical applications of the law.” Hoffman Estates, 455 U.S. at 495 (footnote omitted).
21 In the present case, this Court has already ruled on plaintiffs’ preliminary injunction motion that
22 “there does not appear to be a reasonable likelihood that plaintiffs will prevail at trial,” and based
23 its determination in part on the requirement that “a challenge based on vagueness is more
24 appropriately made when the contention is that the enactment is vague in all ofits applications.” Or.,
25 p. 4:13-21 (citing Hoffman Estates). Plaintiffs did not and cannot correct this pleading deficiency.
26 With respect to three of the four challenged assault weapons provisions (threaded barrel
27 capability, “large-capacity magazine” definition, and “detachable magazine” definition), plaintiffs
28 make no pretense of contending that these provisions are vague in all of their applications. Indeed,8
Memorandum in Support of Demurrer to Amended Complaint
1 plaintiffs either offer to tailor the existing provisions or request new regulations to create
2 interpretations of these three challenged assault weapons provisions that would accommodate the
3 applications plaintiffs favor. See Am. Compl., ¶J 61-63, 69, 75. As to these three provisions,
4 plaintiffs’ facial vagueness challenge is not colorable.
5 With respect to the challenged “flash suppressor” definition, however, plaintiffs do now
6 in their Amended Complaint parrot the words “in all applications” in apparent response to this
7 Court’s citation ofHoffman Estates in its order denying plaintiffs’ motion for preliminary injunction.
8 Am. Compi., ¶J 48, 57. Ironically, the very allegations surrounding this assertion, by which
9 plaintiffs intended to justify it, instead expose it as a sham allegation. Plaintiffs allege that the
10 words in the “flash suppressor” definition that operate to include devices that function to perceptibly
11 reduce or redirect muzzle flash “are fatally vague and uncertain in all their applications since they
12 require testing which the ordinary rifle owner is unable to perform.” Am. Compl., ¶ 48. Plaintiffs
13 go on to allege the difficulty of comparison testing devices for perceptible flash suppression. Am.
14 Compl., ¶J 52-54. Even assuming the truth of plaintiffs’ allegations as to these difficulties, as the
15 Court must for the purpose of this demurrer, there is no logical connection between these alleged
16 difficulties and plaintiffs’ resulting allegation that the “flash suppressor” definition is thus vague in
17 all of its applications. The gap in the logic is that there is no (and could be no) basis for plaintiffs’
18 assumption that a firearm owner must be able to perform comparison testing upon his particular
19 firearm in order to reasonably know whether a device perceptibly reduces or redirects flash.
20 For example, if a firearm owner is told by a firearms dealer or even a credible friend that
21 a device perceptibly reduces or redirects flash, or ifhe reads such information in authoritative general
22 industry literature, then obviously even plaintiffs would acknowledge that the flash suppressor
23 definition would not be vague in application to the firearm owner in such circumstances. Even if
24 not designed or intended by the manufacturer to perceptibly reduce or redirect flash, a firearm owner
25 in such circumstances would reasonably know the device functions to perceptibly reduce or redirect
26
27 3. See Owens v. Kings Supermarket, 198 Cal. App. 3d 379, 384 (1988) (demurrer to newcomplaint sustained without leave to amend where no satisfactory explanation for new allegation
28 made solely for purpose of avoiding demurrer).9
Memorandum in Support of Demurrer to Amended Complaint
1 flash and would be fairly subject to prosecution. For the purpose of disposing of plaintiffs’ facial
2 challenge to the flash suppressor definition, there is thus no need to reach a dispute as to the ability
3 of a firearm owner to personally accomplish comparison testing; personal comparison testing is
4 simply one of many conceivable ways by which a firearm owner may reasonably know whether a
5 device perceptibly reduces or redirects flash.
6 Plaintiffs’ vagueness challenge to the flash suppressor definition fails to recognize the
7 import of the mens rea requirement applicable to assault weapons prosecutions. The California
8 Supreme Court has determined that there is a mens rea requirement applicable to assault weapons
9 prosecutions such that: “The People bear the burden of proving the defendant knew or reasonably
10 should have known the firearm possessed the characteristics bringing it within the AWCA.” In re
11 Jorge M, 23 Cal. 4th 866, 887 (2000). As a result of the existence of this mens rea requirement, if
12 unknown circumstances that would technically make a firearm an assault weapon are sufficiently
13 extraordinary that it would be unreasonable to expect knowledge of them, an element of the crime
14 is not met, and the crime cannot be prosecuted. Plaintiffs’ personal comparison testing allegations
15 offered in ostensible support of their assertion that the flash suppressor definition is vague in all of
16 its applications is a product of plaintiffs’ confusion of the analytically independent inquiries of
17 (1) whether the expectation is reasonable that the criminal provisions will be understood
18 (Constitutional vagueness analysis) and (2) whether the expectation is reasonable that a firearm
19 owner would know what facts exist that would render his firearm an assault weapon pursuant to the
20 criminal provision (mens rea requirement analysis at trial). A reasonable person can understand the
21 law (no due process problem) without knowing obscure facts (no mens rea, and no prosecution).
22
234. Legislation will not be considered unconstitutionally vague unless it fails “to give a
24 person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Harrott v.County ofKings, 25 Cal. 4th 1138, 1151(2001). Plaintiffs do not and cannot make any allegation
25 that the words of the challenged flash suppressor definition are themselves not reasonably
26 understandable. The examples above illustrate obvious instances in which a firearm owner wouldreasonably know that his device falls within the definition of what is prohibited.
275. This failure also infects plaintiffs’ challenges to the other assault weapons provisions
28 as described below.10
Memorandum in Support of Demurrer to Amended Complaint
1 Plaintiffs’ personal comparison testing argument is an argument best left to criminal defense counsel
2 to raise in the context of a particular criminal prosecution. As illustrated by the examples above,
3 plaintiffs’ cannot allege that any alleged difficulty in personal comparison testing renders the 1lash
4 suppressor definition vague in all applications.
5 Plaintiffs thus cannot allege that the assault weapons provisions challenged by this
6 plaintiffs in this action are unconstitutionally vague on their face.
7 2. Plaintiffs Cannot Allege That The Challenged Provisions AreUnconstitutionally Vague As Applied.
8
9 Unable to allege that the challenged assault weapons provisions are unconstitutionally
10 vague on theirface (i.e., in all applications), plaintiffs’ only other option would be to allege that the
11 challenged provisions are unconstitutionally vague as applied. Plaintiffs have not made any such
12 allegation, and presumably cannot.
13 As this Court noted in denying plaintiffs’ motion for preliminary injunction, “Where the
14 challenged statute imposes criminal penalties, it is not always necessary that the plaintiffs prove an
15 arrest or prosecution in order to obtain declaratory relief. However, ‘the plaintiffmust demonstrate
16 actual present harm or a significant possibility of future harm to justify pre-enforcement relief.” Or.,
17 p. 2:19-25 (omitting citations to People’s Rights Organization v.. City ofColumbus, 152 F.3d 522,
18 527 (6th Cir. 1998)). Plaintiffs have not alleged any actual present harm or any significant
19 possibility of future harm in this case. As this Court found in denying plaintiffs’ motion for
20 preliminary injunction: “The challenged regulations have been in effect since December of 2000.
21 Plaintiffs did not file their motion for injunction until the end of February 2002. This chronology
22 implies that plaintiffs are not facing immediate harm. Since plaintiffs have not been harmed since
23 December of2000, the Court is unable to accept plaintiffs contention that there is imminent danger
24 of their being prosecuted under the AWCA.” Or., p. 3:12-18. Now eight months after defendants
25 challenged (and this Court recognized) plaintiffs’ failure to identify a single instance of allegedly
26 questionable enforcement, and now two years after the adoption of the challenged regulations,
27 plaintiffs’ Amended Complaint contains no allegation of any instance in which a particular firearm
28 was the subject of enforcement (or even threatened enforcement) that in plaintiffs’ view would
11Memorandum in Support of Demurrer to Amended Complaint
1 demonstrate the allegedly Constitutional shortcomings ofthe challenged assault weapons provisions.
2 The lesson of the preliminary injunction proceedings was that the day may come when an actual
3 criminal prosecution will present a court with vagueness challenges to the enforceability o the
4 assault weapons provisions that plaintiffs attempt to challenge here, but that “this is not that case.”
5 Plaintiffs’ amendments to their allegations now contained in their Amended Complaint
6 do not operate to correct this pleading deficiency. With respect to plaintiffs’ addition of the new
7 plaintiffs, including the four anonymous individual firearm owners, plaintiffs explained their reason
8 for adding the new participants as “to clarify and strengthen the allegations concerning the standing
9 of businesses and individual gun owners to challenge the constitutionality of the regulation, and of
10 the statutes embraced in SB23.” Pis.’ Motion for Leave to File First Amended Complaint, p. 5:1-5.
11 Because defendants’ did not (and do not by this demurrer) challenge plaintiffs’ claims on standing
12 grounds, however, the amendment is misdirected and correspondingly does not resolve the ripeness
13 deficiency identified previously by defendants and this Court and re-presented by this demurrer. See
14 Or.,pp.2:16-3:18,5:19-23.
15 Plaintiffs’ addition of the “taxpayer lawsuit” label under Code of Civil Procedure section
16 526a is likewise ofno avail to plaintiffs. First, these “new” allegations are not really new. Plaintiffs
17 alleged taxpayer standing in their original Complaint (Compi., ¶J 8-11) and argued taxpayer standing
18 extensively in support oftheir motion for preliminary injunction (P is.’ Preliminary Injunction Reply,
19 pp. 1:25-3:7), but to no avail. Second, like the new anonymous plaintiff amendment, the “new”
20 taxpayer lawsuit allegations are misdirected toward standing, rather than the ripeness pleading
21 deficiency. See Pls.’ Motion for Leave to File First Amended Complaint, p. 6:4-6. Even in a
22 taxpayer suit, there must be some actual or threatened action that is the subject of the suit that is
23 sufficient to join the issue. Waste Management ofAlameda Co., Inc. v. Alameda County, 79 Cal.
24 App. 4th 1223, 1240 (2000) (“The taxpayer action must involve an actual or threatened expenditure
25 ofpublic funds. . . . General allegations, innuendo, and legal conclusions are not sufficient. . . rather,
26 the plaintiff must cite specific facts and reasons for a belief that some illegal expenditure or injury
27 to the public fisc is occurring or will occur.”). A taxpayer lawsuit allegation is not an entree to an
28 advisory opinion.
12Memorandum in Support of Demurrer to Amended Complaint
1 Plaintiffs’ Amended Complaint thus does not allege that the challenged provisions are
2 unconstitutionally vague as applied. Because plaintiffs cannot allege that the challenged provisions
3 are unconstitutionally vague on their face or as applied, this Court should sustain defendants’
4 demurrer without leave to amend.
5 B. Each Alleged SubstantiveChallenge To The Assault Weapons Provisions Is WithoutMerit AsA Matter Of Law.
6
7 Not only do plaintiffs’ amendments fail to overcome the ripeness barrier to plaintiffs’
8 vagueness claims, but they also fail to correct the substantive failings ofeach ofplaintiffs’ challenges
9 to the assault weapons provisions at issue. Defendants refuted each challenge as a matter of
10 substance in the course of opposing plaintiffs’ preliminary injunction motion, and plaintiffs’
11 amendments do not respond to defendants’ arguments. Having been given an opportunity to re-plead
12 their claims, plaintiffs’ failure to allege any proper claims as a matter of substance demonstrates that
13 they cannot do so. On these additional independent grounds, this Court should sustain defendants’
14 demurrer without leave to amend.
15 1. Plaintiffs’ Contention That The Definition Of “Flash Suppressor” Is VagueIn Without Merit.
16
17 Plaintiffs’ suggestion (Am. Compi., ¶ 39-40) in the first instance that the term “flash
18 suppressor” needs no definition, because it purportedly has an established meaning, and their
19 dissatisfaction with the definition determined by DOJ, is belied by reference to the very industry
20 materials attached as exhibits to plaintiffs’ Amended Complaint. See Am. Compl., ¶ 39, Exs. 6-15.
21 The terms “flash suppressor” and “flash hider” take on similar and dissimilar meanings across all of
22 these materials and are interwoven with discussions of “muzzle brakes” and “compensators.” In
23 particular, plaintiffs’ Exhibit 14 (“The Complete AR-15/M16 Sourcebook”) contains a section
24 entitled “FLASH SUPPRESSORS AND MUZZLE BRAKES,” which states in part that “most
25 modem designs both reduce and compensate for recoil. The trade-off for reduced recoil and
26 compensation often is added noise and flash, though some muzzle brakes do a pretty good job of
27 keeping this to a minimum. Some modem systems try to combine both the muzzle brake and the
28
13Memorandum in Support of Demurrer to Amended Complaint
1 flash hider to have the best of both systems.” It is the absence of any established industry-wide
2 definition of flash suppressor that speaks to the need for a definition by regulation.
3 Plaintiffs’ suggestion (Am. Compi., ¶ 45) that the definition of flash suppressor i an
4 invalid enlargement and distortion of the statutory meaning is without merit. The proposition that
5 terms must be construed according to their ordinary meaning does not provide support for plaintiffs’
6 allegations, as shown by the many ordinary meanings to which the term is susceptible in the absence
7 of the definition in the regulation. Likewise, the rule that statutes cannot be construed to omit from
8 or add to the actual language of the statute operates against plaintiffs’ offered construction, rather
9 than defendants’ regulation, because the statute uses the term “flash suppressor.” It is plaintiffs who
10 want to exclude from that term any devices not intended or designed to suppress flash, even if they
11 do suppress flash.
12 In addition, another canon of statutory construction prevents plaintiffs from suing here to
13 limit the definition of “flash suppressor” to only those devices “intended or designed” to suppress
14 flash. See Am. Compl., ¶J 46,49. Ifnecessary in determining legislative intent, courts may compare
15 statutes on related subjects and look to the presence or absence of common language for guidance.
16 Traverso v. People ex rel Department ofTransportation, 6 Cal. 4th 1152, 1166 (1993); Dyna-Med,
17 Inc. v. Fair Employment & Housing Comm., 43 Cal. 3d 1379, 1387 (1987); People v. Woodhead,
18 43 Cal. 3d 1002, 1010 (1987); In re Dylan T., 65 Cal. App. 4th 765, 774 (1998). Tn Penal Code
19 section 12020, which establishes the unlawful carrying and possession ofweapons in California with
20 extensive definitions, the Legislature limited the definition of particular weapons or particular
21 devices for weapons in at least seven instances by reference to how the weapon or device was
22 “designed” or “intended” to be used. See Penal Code § 12020(c)(1)(A), (c)(1)(B), (c)(1)(E),
23 (c)(2)(E), (c)(4), (c)(9), and (c)(10). Where the Legislature intends to limit a weapon device’s
24 definition to how it is “designed” or “intended” to be used, as opposed to its effect, section 12020
25 makes clear that the Legislature knows how to do so. No such limitation was intended with respect
26 to section 12276.1. Plaintiffs’ proposed alternative definition of “flash suppressor” reflects the
27 recurring theme in plaintiffs’ Amended Complaint: it is not that the challenged regulations are
28 invalid; it is just that the challenged regulations are not what plaintiffs want them to be.14
Memorandum in Support of Demurrer to Amended Complaint
1 Contrary to plaintiffs’ assertion (Am. Compl., ¶J 44, 55), the absence of a measurement
2 provision in the statute and regulation does not render the “flash suppressor”definitibn invalid. The
3 absence of specific measurement standards in the statute demonstrates the legislative inteit to
4 include devices that reduce or redirect any amount of flash. An administrative regulation may not
5 alter a statute or enlarge or impair its scope. Govermnent Code § 11342.2. Accordingly, DOJ would
6 have exceeded its authority if it had established a standard that permitted some percentage or amount
7 of flash suppression. Furthermore, there is no legislative mandate or funding for DOJ to establish
8 scientific methodology for testing devices that may or may not be flash suppressors. Like for any
9 other criminal provision, district attorneys’ crime labs would be responsible for determining what
10 would be a perceptible amount of flash suppression in ordinary circumstances. In cases close to
11 the line, the definition provision operatesjust as any other criminal provision that relies upon defined
12 terms, from methamphetamine to dirks and daggers, and a citizen proceeds over the line at his own
13 risk. In extraordinary circumstances, as described above, the mens rea requirement would serve to
14 protect any citizen who did not reasonably know that flash would be suppressed.
15 None of the amendments to plaintiffs’ allegations serve to rebut in any way these
16 dispositive arguments previously raised by defendants in the course of the preliminary injunction
17 proceedings.
18
19
20
21
22 6. The crime labs can perform these tests with exemplars, and there would be no need
23 to destroy citizens’ firearms where the device in question is integral to the barrel as suggested byplaintiffs.
247. Much of plaintiffs’ argument in regard to testing and measurement incorrectly
25 assumes (as described above) that a firearm owner must be able to perform scientific testing upon
26a firearm in order to reasonably know whether a device used perceptibly reduces flash. Plaintiffs’suggestion that the Court limit the definition to those devices identified as flash suppressors on the
27 mechanism itself, its packaging, or its manual is the same as suggesting that the fox guard the henhouse. It was the firearms manufacturers’ efforts to circumvent existing assault weapon provisions
28 by virtue of self-definition of their products that led to the enactment of SB 23 in the first place.15
Memorandum in Support of Demurrer to Amended Complaint
1 2. Plaintiffs’ Contention That The Threaded Barrel Capability Provision IsVague Is Without Merit.
2
3 Plaintiffs admit: “Very few civilian pistols have threaded barrels that will accept [a flash
4 suppressor, forward handgrip, or silencer] for, in general, civilian pistols have not been designed or
5 intended to have or accommodate even a silencer, much less such outre attachments as flash
6 suppressors or forward handgrips. Generally the only civilian pistols having threaded barrels are
7 Olympic and other competition pistols designed for precision target shooting.” Am. Compl., ¶ 59.
8 But Olympic precision pistols are expressly exempted from the definition ofassault weapon by Penal
9 Code section 12276.1(b) and (c). Accordingly, there is no specter of target pistol competitors being
10 subject to the assault weapons restrictions resulting from an inability to know whether their barrel
11 threads are capable of accepting the specified assault weapon devices.
12 The implication from plaintiffs’ admission is that it is only in very few instances that the
13 few semiautomatic pistols with threaded barrels are not exempted Olympic target pistols. In those
14 very few instances, presumably the threads were not created for the legitimate purpose of attaching
15 the Olympic competition weights. Query whether it is reasonable to expect the owner of such a
16 pistol with a threaded barrel to consider and look into whether the threaded barrel is capable of
17 accepting a silencer, forward handgrip, or flash suppressor. It is perhaps impossible to answer the
18 question in the abstract without knowing all of the circumstances, but in any event, the existence of
19 the mens rea requirement, described above, serves to protect a threaded-barreled pistol owner from
20 prosecution based on the existence “anywhere in the world” (Am. Compi., ¶ 60) of a silencer,
21 forward handgrip, or flash suppressor that it is capable of accepting.
22 Again, none of the amendments to plaintiffs’ allegations attempt to rebut in anyway these
23 dispositive arguments in support of the threaded barrel capability provision previously raised by
24 defendants in the course of the preliminary injunction proceedings. The challenged threaded barrel
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16Memorandum in Support of Demurrer to Amended Complaint
1 capability provision is not fatally vague, and plaintiffs’ claim in this regard is insufficient as a matter
2 of law.&
3 3. Plaintiffs’ Contention That The “Large-Capacity Magazine” Provision IsVague Is Without Merit.
4-
5 Plaintiffs’ claim challenging the definition of “large-capacity magazine” is disposed of in
6 the same way as are their previous allegations. The mens rea requirement applicable to any
7 prosecution protects the owner of a feeding device from prosecution for owning a “large-capacity”
8 feeding device in the event that smaller shells exist in some small corner of the world, assuming that
9 there is no reason for the owner to know that they are available to him. Plaintiffs make defendants’
10 point in their own preliminary injunction motion: “Not even merchants, much less ordinary firearm
11 owners, can ‘reasonably’ be expected to know, or to track, developments in ammunition that occur
12 in foreign nations around the world.” Pls.’ Preliminary Injunction Mem. 19:1-2; see also
13 Am. Compi., ¶J 66-67.
14 Plaintiffs’ suggestion (Am. CompL, J 69) that defendants should consider the requirement
15 to apply only as measured by reference to 2.75 inch rounds again purports to demand Constitutional
16 attention to what is merely their dissatisfaction with the requirement. Moreover, plaintiffs’ suggested
17 interpretation limiting consideration to standard 2.75 inch shells in the evaluation of whether a
18 feeding device would accept more than 10 rounds would then not apply to the situation where
19 someone actually were to have the smaller Mexican shells, a situation in which surely the magazine
20 should be considered large-capacity under the code section.
21 In support of their contention that defendants have subverted the “permanently altered”
22 escape clause (Am. Compi., ¶J 73-74), plaintiffs make no allegation that defendants have done or
23 threatened to do anything to suggest that compliance with the “permanently altered” escape clause
24 in the large capacity magazine definition in section 12020(c)(25) would require an “irreversible”
25
268. Plaintiffs’ demand (Am. Compi., ¶J 61-63) that the Court re-legislate the threaded
27 barrel provision again simply boils down to the fact that the assault weapons law is not whatplaintiffs want it to be. Again, plaintiffs’ desired revision would run afoul of the rule of statutory
28 construction regarding additions to and subtractions from statutory language.17
Memorandum in Support of Demurrer to Amended Complaint
I alteration. “Permanent’ means: “1 lasting or intended to last indefinitely without change 2 lasting
2 a relatively long time.”- Plaintiffs are concocting a dispute in this instance, and the alterations with
3 which they are concerned would appear to. fall within the accepted definition of”permanent.”,,
4 Again, none of the amendments to plaintiffs’ allegations attempt to rebut in anyway these
5 dispositive arguments in support of the “large-capacity magazine” definition previously raised by
6 defendants in the course of the preliminary injunction proceedings. The challenged definition of
7 “large-capacitymagazine” is not vague, and plaintiffs’ claim in this regard is insufficient as a matter
8 of law.
9 4. Plaintiffs’ Allegation That Defendants Are Required To Apply DOJ’sRegulation Defining “Detachable Magazine” Assumes A Dispute That
10 Does Not Exist, Even In The Abstract.
11 Plaintiffs appear to be satisfied with this definition in section 978.20 of the regulations,
12 but attack defendants on the basis that somehow they believe the regulation will not be enforced by
13 defendants. Am. Compi., ¶J 8 1-83. Plaintiffs’ only allegation in this regard is that DOJ responded
14 to an inquiry as to whether an otherwise detachable magazine could be made into a fixed magazine
15 by screwing the magazine to the firearm with acknowledgment that such a conversion would exempt
16 the firearm from definition as an assault weapon and stating that, nonetheless, such a maneuver
17 would violate the spirit of the law and is viewed with skepticism’ by DOJ. Am. Compi., Exs. 28-
18 29. Plaintiffs cannot extrapolate from this that DOJ might not enforce the regulation as it is written,
19 or even that district attorneys might not enforce the regulation as written. Plaintiffs make no new
20 allegation of any disclaimer of the regulation by defendants, of any abdication of the regulation by
21 defendants, or of any improper informal amendment of the regulation. Plaintiffs again are
22
23 9. Notably, plaintiffs’ withdrew their “permanently altered” arguments in theirpreliminary injunction reply in response to these same arguments. Pis.’ Preliminary Injunction
24 Reply, p. 13:17-21. It is thus unclear why plaintiffs have continued to include this contention in their
25Amended Complaint.
26 10. Webster’s New World Dictionaiy, Third College Ed., 1988.
27 11. The obvious skepticism with respect to the spirit of the law comes from the abilityimmediately to un-convert the firearm back into an assault weapon with a detachable magazine
28 simply by unscrewing the screw.18
Memorandum in Support of Demurrer to Amended Complaint
1 concocting a dispute that does not exist, even in the abstract, and this allegation is without merit as
2 amatteroflaw)-
3 v.
4 CONCLUSION
5 For the multiple and overlapping reasons set forth above, defendants respectfully request
6 that the Court sustain their demurrer without leave to amend)
7 Dated: December 12, 2002
8 Respectfully submitted,
9 BILL LOCKYERAttorney General of the State of California
10 LOUIS R. MAURO
11Supervising Deputy Attorney General
12
13 DOUGLAS J.WOODSDeputy Attorney General
14 Attorneys for Defendants ATTORNEYGENERAL BILL LOCKYER, the STATE OF
15 CALIFORNIA, and CALIFORNIADEPARTMENT OF JUSTICE
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2012. As described above in footnote 2, plaintiffs similarly• allege based on DOJ
21 correspondence that defendants are not adhering to the statutory and regulatory definitions of “flash
22suppressor” and “large-capacity magazine.” Even if there were any alleged failure to enforce theprohibitions represented by these definitions, plaintiffs’ remedy would be to petition for a writ of
23 mandate requiring enforcement. Plaintiffs cannot be heard to allege that defendants are violating thelaw, to express their approval, and then to advocate for further such action. It is paradoxical to
24 suggest that an alleged failure by defendants to enforce the law would support an action for ajudicial
25prohibition against enforcement of the law.
2613. In connection with the briefing on this demurrer, the parties have agreed to briefs in
excess of the applicable page limit and an expanded briefing schedule, which originally called for
27 defendants to file their demurrer by December 6, 2002. Because the Court had not approved theparties’ stipulation in time for filing by December 6th, plaintiffs have agreed to allow defendants
28 through December 12th to file these papers.19
Memorandum in Support of Demurrer to Amended Complaint
1 DECLARATION OF SERVICE BY OVERNIGHT COURIER
Case Name: HUNT, et a! v. STATE OF CALIFORNIA, et a!
No.: Fresno County Superior Court No. 01 CE CG 03182
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar at which member’s direction this service is made. I am 1.8 years of age or olderand not a party to this matter; my business address is: 1300 I Street, P.O. Box 944255, Sacramento,California 94244-2550.
7On December 12, 2002, I served the attached DEFENDANTS’ MEMORANDUM OF POINTSAND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’ AMENDEDCOMPLAINT
9 V
by placing a true copy thereofenclosed in a sealed envelope with postage thereon fully prepaid withthe California Overnight Service addressed as follows:
Stephen P. Haibrook, Esq.V
10560 Main Street, Suite 404Fairfax, VA 22030
I declare under penalty of perjury under the laws of the State of California the foregoing is true andcorrect and that this declaration was executed on December 12, 2002, at Sacramento, California.
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C. D. MichelTRUTANICH MICHEL LLP407 North Harbor BoulevardSan Pedro, CA 90731
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Don B. KatesBENENSON & KATES22608 North East 269th AvenueBattleground, WA 98604
JO FARRELL
Declarant;J *L ..
Signature
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