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View Full Version : CGF Sues AG Kamala Harris, DOJ's Stephen Lindley in New Federal Lawsuit


taperxz
09-19-2013, 2:57 PM
This is about stopping the DOJ DROS delays.

CGF is leading this suit with attorney Victor Otten.

troysland
09-19-2013, 3:00 PM
Just got the email. Awesome!

CGF Sues CA Attorney General Kamala Harris & DOJ's Firearms Bureau Chief in New Civil Rights LawsuitEmail not displaying correctly?View it in your browser.** NEWS RELEASE **FOR IMMEDIATE RELEASE:*Thursday, September 19, 2013The Calguns Foundation Sues California Attorney General Kamala Harris andDOJ Firearms Bureau Chief Stephen Lindley Over Federal Civil Rights ViolationsSAN CARLOS, CA – The Calguns Foundation filed a new federal civil rights lawsuit this morning on behalf of three California residents, naming Attorney General Kamala Harris and DOJ Bureau of Firearms Chief Stephen Lindley as defendants. The case challenges the California Department of Justice's practice of denying individuals' fundamental rights protected under the Second and Fourteenth Amendments to the United States Constitution.The Department, through defendants Harris and Lindley, have been and continue to enforce a policy of forbidding many gun purchasers from taking possession of their lawfully-obtained firearms through what are commonly referred to as "DROS delays", sometimes for over a year or indefinitely.One plaintiff in the case, Darren Owen of Taft, California, has been denied his firearm for over 18 months.“It's the government's responsibility to timely prove that someone has already been adjudicated and their Constitutional right to purchase and possess guns taken away through due process," explained Gene Hoffman, the Foundation's Chairman. “It’s not the individual’s job to prove that they have fundamental rights."“By shifting the burden to the individual, the DOJ is blatantly violating the Constitution and thumbing its nose at the U.S. Supreme Court's*D.C. v. Heller*and*McDonald v. Chicago*decisions."Victor Otten, an attorney for the plaintiffs, agrees. “Our clients are not prohibited from owning guns under state and federal law,” noted Otten. “The bottom line is that if the DOJ cannot determine that someone is ineligible to possess firearms in a timely manner with all of the databases and law enforcement resources it has at its disposal, then they have no choice but to allow our clients and other similarly-situated gun owners to take possession of their firearms."Under current California law, the DOJ must permit a firearm purchaser to receive their firearm at the end of the 10-day DROS background check period unless it determines that the purchaser is not eligible to possess or purchase firearms. Earlier this year, Assemblymember Tom Ammiano (D - San Francisco) amended his bill AB 500 to allow the Department of Justice to deny the release of firearms for up to 30 days. AB 500 is presently awaiting California Governor Jerry Brown's action."We've received hundreds of reports like those at issue in this case and it's a virtual certainty that there are thousands of others like the individual plaintiffs out there," said the Foundation's Executive Director, Brandon Combs. “The DOJ’s policy is nothing short of outrageous.”Continued Combs, "It’s time for the DOJ to respect the Second Amendment. If the Attorney General and her staff refuse to do it voluntarily, we will not hesitate to force it in the courts. In filing this case, we seek to ensure that the Constitutionally-enshrined fundamental rights of Californians to buy and possess firearms are respected no matter how far Ms. Harris or Assemblymember Ammiano might wish the DOJ's powers extended."The new federal lawsuit is entitled*Darrin Owen, et. al. vs. Kamala Harris, et. al.*and may be viewed or downloaded at*http://ia601002.us.archive.org/8/items/gov.uscourts.caed.259271/gov.uscourts.caed.259271.docket.html.The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to defend and advance Second Amendment and related civil rights. Supporters may visit*http://www.calgunsfoundation.org/donate*to join or donate to CGF.###Please forward this official communication to all of your contacts and help us distribute this important gun rights news alert.*

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1. Make a tax-deductible donation to CGF*by using our simple & secure web form*-- all major credit cards and PayPal accepted!2. Mail a check, or setup your bank's automatic bill-payer, to make tax-deductible donations to CGF. Our address is:*The Calguns Foundation,*970 Reserve Drive Suite 133,*Roseville, CA 95678.3.*Shop at Amazon using our Shop42A.com fundraising link*(up to 25% of every purchase goes to support YOUR gun rights).4. Get cool pro-gun tee shirts, license plate frames, decals, and other swag*at the Official CGF Online Store.5.*Sponsor carry license reform*and our efforts to advance the right to bear arms.Don't forget to take someone new to the range!*

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CGF is a Proud Member of***Follow on Twitter*|*Like on FacebookForward this email to a friendCopyright © 2013 The Calguns Foundation, All rights reserved.We send news and alerts to those who've connected with us on our websites, at our online store, and through various social networks.Our mailing address is:The Calguns Foundation751 Laurel Street Suite 935San Carlos,*CA*94070-3113Add us to your address bookI don't want to get gun rights news

eville
09-19-2013, 3:12 PM
How does this differ from Schoepf, et. al. vs. Kamala Harris

wildhawker
09-19-2013, 3:13 PM
http://www.calgunsfoundation.org/2013/09/cgf-sues-ca-attorney-general-kamala-harris-doj-firearms-chief-new-federal-civil-rights-lawsuit-gun-delays

FOR IMMEDIATE RELEASE: Thursday, September 19, 2013

The Calguns Foundation Sues California Attorney General Kamala Harris and DOJ Firearms Bureau Chief Stephen Lindley Over Federal Civil Rights Violations

SAN CARLOS, CA – The Calguns Foundation filed a new federal civil rights lawsuit this morning on behalf of three California residents, naming Attorney General Kamala Harris and DOJ Bureau of Firearms Chief Stephen Lindley as defendants. The case challenges the California Department of Justice’s practice of denying individuals’ fundamental rights protected under the Second and Fourteenth Amendments to the United States Constitution.

The Department, through defendants Harris and Lindley, have been and continue to enforce a policy of forbidding many gun purchasers from taking possession of their lawfully-obtained firearms through what are commonly referred to as “DROS delays”, sometimes for over a year or indefinitely.

One plaintiff in the case, Darren Owen of Taft, California, has been denied his firearm for over 18 months.

“It’s the government’s responsibility to timely prove that someone has already been adjudicated and their Constitutional right to purchase and possess guns taken away through due process,” explained Gene Hoffman, the Foundation’s Chairman. “It’s not the individual’s job to prove that they have fundamental rights.”

“By shifting the burden to the individual, the DOJ is blatantly violating the Constitution and thumbing its nose at the U.S. Supreme Court’s D.C. v. Heller and McDonald v. Chicago decisions.”

Victor Otten, an attorney for the plaintiffs, agrees. “Our clients are not prohibited from owning guns under state and federal law,” noted Otten. “The bottom line is that if the DOJ cannot determine that someone is ineligible to possess firearms in a timely manner with all of the databases and law enforcement resources it has at its disposal, then they have no choice but to allow our clients and other similarly-situated gun owners to take possession of their firearms.”

Under current California law, the DOJ must permit a firearm purchaser to receive their firearm at the end of the 10-day DROS background check period unless it determines that the purchaser is not eligible to possess or purchase firearms. Earlier this year, Assemblymember Tom Ammiano (D – San Francisco) amended his bill AB 500 to allow the Department of Justice to deny the release of firearms for up to 30 days. AB 500 is presently awaiting California Governor Jerry Brown’s action.

“We’ve received hundreds of reports like those at issue in this case and it’s a virtual certainty that there are thousands of others like the individual plaintiffs out there,” said the Foundation’s Executive Director, Brandon Combs. “The DOJ’s policy is nothing short of outrageous.”

Continued Combs, “It’s time for the DOJ to respect the Second Amendment. If the Attorney General and her staff refuse to do it voluntarily, we will not hesitate to force it in the courts. In filing this case, we seek to ensure that the Constitutionally-enshrined fundamental rights of Californians to buy and possess firearms are respected no matter how far Ms. Harris or Assemblymember Ammiano might wish the DOJ’s powers extended.”

The new federal lawsuit is entitled Darrin Owen, et. al. vs. Kamala Harris, et. al. and may be viewed or downloaded athttp://ia601002.us.archive.org/8/items/gov.uscourts.caed.259271/gov.uscourts.caed.259271.docket.html.

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to defend and advance Second Amendment and related civil rights. Supporters may visit www.calgunsfoundation.org/donate to join or donate to CGF.

###

taperxz
09-19-2013, 3:31 PM
How does this differ from Schoepf, et. al. vs. Kamala Harris

Thats a good question. I will read into it more.

gogohopper
09-19-2013, 3:32 PM
http://www.calguns.net/calgunforum/showthread.php?t=825803

Dupe by 18 minutes.

wjc
09-19-2013, 8:33 PM
...got the email today.

Way to go fellers!

Tincon
09-19-2013, 8:35 PM
As I said in the other thread: One lawsuit over this (which actually had legal merit) was not enough? This suit is certain to be dismissed at the pleading stage, like most other CGF lawsuits. Vic Otten needs to read Ashcroft v. Iqbal again.

This lawsuit has no chance.

Apocalypsenerd
09-19-2013, 11:44 PM
@tincon: Please explain. How does this lawsuit not have legal merit? Many of us don't know Ashcroft v. Iqbal. What was it and what was the ruling?

Tincon
09-20-2013, 12:44 AM
http://en.wikipedia.org/wiki/Ashcroft_v._Iqbal

http://www.supremecourt.gov/opinions/08pdf/07-1015.pdf

Because vicarious liability is inapplicable to Bivens and §1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.

I predict: 12(b)6 dismissal and CGF blaming the crooked court system for yet another failure.

mossy
09-20-2013, 12:46 AM
so whats the diffidence between the new case and this one? i thought she was already being sued. http://www.thetruthaboutguns.com/2013/04/daniel-zimmerman/calguns-and-others-sue-ag-harris-over-delays/

taperxz
09-20-2013, 7:01 AM
Under current California law, the DOJ must permit a firearm purchaser to receive their firearm at the end of the 10-day DROS background check period unless it determines that the purchaser is not eligible to possess or purchase firearms

Hmm, based on this statement, this lawsuit might be in trouble.

Wouldn't it be easier to actually allow Ammianos bill to be signed and then go after the whole enchilada?

It seems as though that if DOJ determines ineligibility, they can indeed investigate, and no maximum amount of time is stipulated in the law.

At least Amminano has a 30 maximum clause for such instances.

Cr6IC
09-20-2013, 9:21 AM
Tincon, I looked at your referenced case and the wiki says that it was held that a superior cannot be held accountable for subordinates' discriminatory acts, if no evidence can be found that they ordered them.
In Harris' case, didn't she "tighten up" DOJ policy to create these delays? Since this change has been across the board, does that show evidence of top-down influence? Or is that something that will be too nebulous/hard to prove on court?
Asking out of ignorance - I'm a complete tyro as far as legal stuff.

RipVanWinkle
09-20-2013, 12:37 PM
Under current California law, the DOJ must permit a firearm purchaser to receive their firearm at the end of the 10-day DROS background check period unless it determines that the purchaser is not eligible to possess or purchase firearms

Hmm, based on this statement, this lawsuit might be in trouble.

Wouldn't it be easier to actually allow Ammianos bill to be signed and then go after the whole enchilada?

It seems as though that if DOJ determines ineligibility, they can indeed investigate, and no maximum amount of time is stipulated in the law.

At least Amminano has a 30 maximum clause for such instances.

I think the problem for DoJ here is that the plaintiffs (purchasers) have not been determined to be not eligible. The dealer has received a "Delay/More Information Notice."

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=27001-28000&file=27500-27590

27540. No dealer, whether or not acting pursuant to Chapter 5 (commencing with Section 28050), shall deliver a firearm to a person, as follows:
(d) Whenever the dealer is notified by the Department of Justice that the person is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm.

There is nothing in the statute about "Delay/More Information". (28050 just applies 27540 to PPTs.)

However, Ammiano notwithstanding, all of that is about to change:

http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/pdf/des_notice_proposed_rulem.pdf?

NOTICE OF PROPOSED RULEMAKING
The Department of Justice (DOJ) proposes to add sections 4200, 4210, 4220, 4230, and 4240 to Title 11, Division 5, Chapter 1, of the California Code of Regulations (CCR) concerning the DROS (Dealer’s Record of Sale) Entry System (DES) after considering all comments, objections, and recommendations regarding the proposed action. PUBLIC HEARING DOJ will hold a public hearing to receive public comments on the proposed regulatory action at 1:00 p.m. on September 24, 2013, at the Department of Water Resources Auditorium located at 1416 9th Street, in Sacramento, California. The auditorium is wheelchair accessible. At the hearing, any person may present oral or written comments regarding the proposed regulatory action. DOJ requests, but does not require, that
persons making oral comments at the hearing also submit a written copy of their testimony.

That's this coming Tuesday, and here's one of the proposed added regulations:

http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/pdf/des_isor.pdf?

Proposed Section 4230 “Delivery of Firearms following DROS Submission”
This section informs firearms dealerships that firearms may be delivered to the purchaser or transferee identified on the DROS only after the status of the DES transaction record indicates “Approved.” Upon delivery of the firearm, the firearms dealer or his/her authorized employee must access the DROS record in DES to confirm the date and time the firearm is delivered. This process will dramatically reduce the possibility of a dealer releasing a firearm to a prohibited person by mistake.

This is a regulatory action, not a change in 27450, but I think the net effect of the new regulation is an end run around 27450 as it stands. It also could be viewed as a tacit admission that DoJ is aware that it didn't have authorization for the "Delay/More Information" gambit. How all this figures legally I've no idea.:confused:

Tincon
09-20-2013, 12:53 PM
Tincon, I looked at your referenced case and the wiki says that it was held that a superior cannot be held accountable for subordinates' discriminatory acts, if no evidence can be found that they ordered them.
In Harris' case, didn't she "tighten up" DOJ policy to create these delays? Since this change has been across the board, does that show evidence of top-down influence? Or is that something that will be too nebulous/hard to prove on court?
Asking out of ignorance - I'm a complete tyro as far as legal stuff.

First, this isn't a discrimination case per se, so some of that language does not apply (although the reasoning does). Second, and more importantly, what there might be evidence of and what can ultimately be proven isn't really the issue at the pleading stage.

You must plead all the required elements with plausibility, including the direct individual actions of each defendant. The problem in Iqbal was not that the guy's rights were violation, they almost certainly were, but rather that at the pleadings stage he could not plausibly allege sufficient facts to advance. The problem is even worse here. That means you don't get to discovery where you might be able to prove those actions took place.

RipVanWinkle
09-20-2013, 1:31 PM
First, this isn't a discrimination case per se, so some of that language does not apply (although the reasoning does). Second, and more importantly, what there might be evidence of and what can ultimately be proven isn't really the issue at the pleading stage.

You must plead all the required elements with plausibility, including the direct individual actions of each defendant. The problem in Iqbal was not that the guy's rights were violation, they almost certainly were, but rather that at the pleadings stage he could not plausibly allege sufficient facts to advance. The problem is even worse here. That means you don't get to discovery where you might be able to prove those actions took place.

Should Gerri Kanelos have been named as a defendant? What's the purpose of "naming" John Does? Just curious?

Cr6IC
09-20-2013, 3:01 PM
Even if the case went ahead, couldn't Harris just release the plaintiffs' guns and they would then lose standing, leaving the rest of the people who are delayed still screwed?

Armando de la Guerra
09-20-2013, 3:07 PM
Even if the case went ahead, couldn't Harris just release the plaintiffs' guns and they would then lose standing, leaving the rest of the people who are delayed still screwed?

THAT is a great question.

Armando de la Guerra
09-20-2013, 3:08 PM
so whats the diffidence between the new case and this one? i thought she was already being sued. http://www.thetruthaboutguns.com/2013/04/daniel-zimmerman/calguns-and-others-sue-ag-harris-over-delays/

Please stop posting that photo of that smiling smartass. It pisses me off.

ke6guj
09-20-2013, 3:45 PM
Even if the case went ahead, couldn't Harris just release the plaintiffs' guns and they would then lose standing, leaving the rest of the people who are delayed still screwed?
I would hope that they would be able to amend the lawsuit to add new plaintiffs if that happened,

Armando de la Guerra
10-24-2013, 11:29 AM
How about an update on this lawsuit? I notice the delays are still in effect.

Vlad 11
10-28-2013, 11:14 PM
http://img0.etsystatic.com/013/0/5709199/il_340x270.417960664_pyfy.jpg