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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 08-13-2015, 4:40 PM
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Default SAF/CGF/Lori Rodriguez Sues San Jose In Federal Court (US DC Norcal)

http://www.prnewswire.com/news-relea...300128246.html
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Old 08-13-2015, 4:52 PM
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Quote:
"The city attorney acknowledged that Lori could go out and buy more firearms because she is not prohibited from doing so,"
Except that isn't the issue at all, typical lib sidestepping the problem in focus

Go get them SAF. Another donation inbound soon.
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Old 08-13-2015, 4:55 PM
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Originally Posted by spitter3 View Post
Go Get Em, AGAIN.

How many of these illegal seizure [theft] incidents have to happen. Before immunity is removed, and those responsible have to face criminal charges?

When cops become nothing more than thieves. At the behest of the political agendas of the petty politicians. It is time for some serious legal repurcussions.

Every time this crap happens. It costs the taxpayers a lot of money, and the thieves that have law degrees and badges, get to keep their cushy jobs and fat pensions.

Time to make the thieves and law breakers pay, NOT the taxpayers.

JM2c
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Old 08-13-2015, 5:02 PM
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Good Luck. Maybe they will get a decision by 2020 at which point the city will appeal and everything will be held up until 2025.
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Old 08-13-2015, 6:04 PM
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Wow, good to see Gottlieb involved. This is actually Kilmer's client as I recall.

Go get 'em!
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Old 08-13-2015, 7:20 PM
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It's a press release:
Quote:
BELLEVUE, Wash., Aug. 13, 2015 /PRNewswire-USNewswire/ -- The Second Amendment Foundation (SAF) and Calguns Foundation (CGF) today filed a lawsuit in U.S. District Court for the Northern District of California on behalf of a Santa Clara County resident, challenging the city, its police department and one of its officers over the seizure of firearms under the state's Welfare and Institutions code.

SAF and CGF are joined in the lawsuit by Lori Rodriguez, whose firearms were seized in January 2013 after her husband, Edward, suffered an incident that resulted in his transport to the Santa Clara Valley Medical Center for a 72-hour psychiatric evaluation. At that time, a dozen firearms that were locked in a state-approved gun safe were confiscated, although the firearms were never involved in Mr. Rodriguez's incident.

"The City of San Jose or any other jurisdiction simply cannot be allowed to seize someone's legally-owned property because of the actions of a spouse or some other third party," SAF founder and Executive Vice President Alan Gottlieb observed. "We have looked at the state code and have serious concerns about the policies and procedures in San Jose. Lori Rodriguez should get her firearms returned."

The lawsuit seeks to compel the defendants to return firearms to Rodriguez and also pay damages, plus court costs. They also seek an injunction against the city and the police department to prevent future violations.

"The city attorney acknowledged that Lori could go out and buy more firearms because she is not prohibited from doing so," Gottlieb noted. "We think she should get her own firearms returned, and that this continued deprivation of her property needs to stop immediately."
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Old 08-13-2015, 7:37 PM
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Seems like a good case:

1) at least one of the guns was bought by the wife as an individual, before they were even being married
2) guns were stored in a locked container (could the state could prove the husband had access?)
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Old 08-13-2015, 10:15 PM
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Okay, the archive page has been capped. I didn't think it would, but here it is:

Rodriguez, et al v. City of San Jose, et al

Here is the complaint

Erik.
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Old 08-13-2015, 10:35 PM
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Quote:
Originally Posted by pacrat View Post
When cops become nothing more than thieves. At the behest of the political agendas of the petty politicians. It is time for some serious legal repurcussions.
At the behest of politicians? They use civil forfeiture money to fund their retirements and departments, some have used it to pay off student loans etc. The politicians did the smartest thing ever, they brought the cops in for a share of the reward. They do it to for themselves.
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Old 08-14-2015, 7:33 AM
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Wow... Moderators, can it be possible to alter the username of the OP to one of the CGF brass so as to get some attention to this thread?

Erik.
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Old 08-14-2015, 9:37 AM
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tl;dr:

At least 1 gun bought by wife (Lori) prior to incident.

Husband placed on 72 hr mental health hold for "erratic behavior," no guns involved.

About a dozen community property guns siezed from a CA approved locked safe by San Jose PD.

Wife transfers ownership of all guns to herself, submitting all required forms and fees. Guns are no longer community property.

Wife has combination lock to safe changed so husband no longer has access to it.

SJPD refuses to return guns to wife. About the refusal to return them, City Attorney in court basically says she can go buy more guns, she's not a prohibited person.
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Old 08-16-2015, 9:41 PM
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Originally Posted by seo View Post
Good Luck. Maybe they will get a decision by 2020 at which point the city will appeal and everything will be held up until 2025.
According to Kamala Harris, "justice delayed is justice denied", so I'm sure she'll step in to make sure that the property is returned quickly.


...and if you believe that she'll actually do that, I've got a nice orange bridge to sell you.
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Old 08-18-2015, 3:14 PM
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I don't understand what justification SJPD is using to continue holding the firearms. If the husband became a prohibited person, picking up the firearms temporarily doesn't seem completely unreasonable, but now that they belong only to the wife and the wife has gone as far as to change the combo on the safe, it would seem they should be immediately returned.
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Old 08-18-2015, 8:07 PM
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They don't need "No Steenk'n Justifimacation"

They the PoPo, they do as they please.
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Old 08-18-2015, 9:48 PM
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as long as they get to keep their immunity and not be held accountable for their illegal actions it will never stop

take away that immunity, allow them to be personally sued when they overstep their authority, and this sh** will stop immediately

the first atrocity is that they KNOW nothing will happen to them, even if they are wrong...they KNOW it won't cost them a dime, they KNOW they won't be held accountable...so, WHY NOT?

when you think about it, it makes perfect sense if you're someone who has their agenda, which is to take people's firearms away from them...they've done the bean counting, they know most people can't put up the type of fight to make a difference, and, the FEW that do sue, well, that's just the cost of doing business in the name of disarmament...hell, it's taxpayer money to boot, they get to use OUR money to defend themselves...GREAT
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Old 08-18-2015, 10:13 PM
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Quote:
Originally Posted by Soginator View Post
At the behest of politicians? They use civil forfeiture money to fund their retirements and departments, some have used it to pay off student loans etc. The politicians did the smartest thing ever, they brought the cops in for a share of the reward. They do it to for themselves.
You are full of bullhockey. What does your incorrect statement have to do with the topic at hand?
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Old 08-18-2015, 10:15 PM
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Originally Posted by pacrat View Post
They don't need "No Steenk'n Justifimacation"

They the PoPo, they do as they please.
Did you miss the part where the judge upheld the confiscation? FTR, I'd give her guns back.
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Old 08-18-2015, 10:35 PM
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Quote:
Originally Posted by Patrick Aherne View Post
Did you miss the part where the judge upheld the confiscation? FTR, I'd give her guns back.
Did you read the TX?

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Old 08-18-2015, 11:34 PM
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Quote:
Originally Posted by Patrick Aherne View Post
Did you miss the part where the judge upheld the confiscation? FTR, I'd give her guns back.
Did you happen to miss the part where the appeals judge told the PoPo to give her guns back after she meets all the requirements stipulated in Ca Code? Which she promptly did.

And they still refused to return her illegaly siezed and held property. Just like Torrance, SF, Oakland and LAPD did twice.

Hence my statement, which is supported by factual history.

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"They the PoPo, they do as they please"
Qualified Immunity has become another license to steal under color of authority, and needs to go away. When those tasked with upholding the law. Choose of their own volition, to break the law.

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Old 08-19-2015, 1:03 AM
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Quote:
Originally Posted by Patrick Aherne View Post
Did you miss the part where the judge upheld the confiscation? FTR, I'd give her guns back.
doesn't seem like the confiscation was the issue, more the judges order to give them back, which LE refused to do...we know you'd do the right thing, unfortunately you have to admit that some of these agencies don't seem to feel they have to follow the same orders they expect others to follow
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Old 08-19-2015, 1:04 AM
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Originally Posted by pacrat View Post
Did you happen to miss the part where the appeals judge told the PoPo to give her guns back after she meets all the requirements stipulated in Ca Code?
The court of appeal didn't say how the pd should deal with a 33850 application, only that the plaintiff hadn't made one, which was one reason why that court ruled there was no 2A violation. It was basically chickensh*t (like the pd would actually return the firearms if the application was submitted) but the plaintiffs are now in a different court trying to parlay that part of the appellate opinion into something. I wouldn't be surprised if the federal claims get tossed and the case goes back to state court to reconcile/interpret 33850 and 8102.

Is there a PDF of the trial court's order somewhere? The court of appeal says the trial court did not require forfeiture, the complaint alleges otherwise.
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Old 08-19-2015, 1:06 AM
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Originally Posted by TeddyBallgame View Post
...more the judges order to give them back...
If there actually was an order to give them back the obvious move would be to ask the court to enforce its own order.
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Old 08-19-2015, 2:05 AM
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IANAL, and do not speak or read legalese. But this in line 38, it sounds like the Appeals Court ruled in her favor for the release of the firearms. And line 40 is PoPo telling her to kiss off.

Quote:
36. Immediately after the Court of Appeal decision, LORI RODRIGUEZ,
submitted the fees and applications for return of her firearms pursuant to
Penal Code § 33800 et seq.

37. On June 1, 2015, LORI RODRIGUEZ received confirmation of the transfer of
community property firearms to her name alone and release documents for
the firearms in question from the California Department of Justice.

38. The remittitur of Court of Appeal, Sixth Appellate District was issued on
June 2, 2015.

39. Copies of the Penal Code § 33850 releases were tendered to the CITY OF
SAN JOSE on or about June 11, 2015 with a request that the Defendants
release LORI’s property to her pursuant to California law.

40. On or about July 6, 2015, the CITY OF SAN JOSE notified LORI that it still
would not return her firearms. However the parties do have an agreement
that the firearms will be held (without cost to plaintiff LORI RODRIGUEZ)
until this action is resolved.
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Old 08-19-2015, 6:21 AM
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Quote:
Originally Posted by pacrat View Post
IANAL, and do not speak or read legalese. But this in line 38, it sounds like the Appeals Court ruled in her favor for the release of the firearms. And line 40 is PoPo telling her to kiss off.
I figured you hadn't gone to the source (i.e., read the appellate opinion). There was no such order. She lost every argument on appeal.
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Old 08-30-2015, 8:36 AM
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Quote:
Originally Posted by TeddyBallgame View Post
as long as they get to keep their immunity and not be held accountable for their illegal actions it will never stop

take away that immunity, allow them to be personally sued when they overstep their authority, and this sh** will stop immediately
More than that, allow them to be arrested - citizen's arrest is fine if there are no hon est and uncorrupted LEOs willing to make the arrest - and prosecuted for their criminal activities.

This is theft, denial of access to property, and a huge civil rights violation - impolemented via a conspiracy , and all being done under color of authority while fraudulently using taxpayer dollars to support the criminal activities.
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Old 08-30-2015, 11:45 AM
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From the California Court of Appeal.

Quote:
We therefore determine that Lori has failed to show that the trial court’s September 30, 2013 order violates the Second Amendment by precluding her from keeping firearms for home protection. In the absence of any evidence that Lori’s Second Amendment right to keep and bear arms was actually violated by the trial court’s September 30, 2013 order granting City’s petition for disposition of firearms under section 8102, we conclude that her Second Amendment claim lacks merit.

Having also determined that the order may be affirmed under section 8102 because the order is supported by substantial evidence that return of the confiscated firearms to the Rodriguez home would be likely to result in endangering Edward or others, we will affirm the order.
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Old 09-01-2015, 10:24 PM
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Lori's 2nd Amendment rights are implicated, because the guns are community property, of which she owns an undivided 1/2 interest in them.

Done correctly, this case could have implications for those persons, whose firearms were wrongly taken via bogus DV restraining orders.
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Old 09-02-2015, 10:20 AM
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2A was already litigated in state court, does anyone want to take a stab at explaining why this would not prevent 2A from being re-litigated in federal court?
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Old 09-02-2015, 11:44 AM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
2A was already litigated in state court, does anyone want to take a stab at explaining why this would not prevent 2A from being re-litigated in federal court?
From the CA Court of Appeal opinion:

Quote:
Lori has not sought return of the confiscated firearms under the procedure provided by Penal Code section 33850 et seq., although the firearms remain in the custody of law enforcement and Lori has obtained notification from the California Department of Justice Bureau of Firearms that she is eligible to both possess and purchase firearms. Lori has not provided any authority for the proposition that trial court proceedings on a section 8102 petition preclude a person who claims title to the confiscated firearms from seeking their return under Penal Code section 33850 et seq. Moreover, we believe that the record on appeal shows that the procedure provided by section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori.

We therefore determine that Lori has failed to show that the trial court's September 30, 2013 order violates the Second Amendment by precluding her from keeping firearms for home protection. In the absence of any evidence that Lori's Second Amendment right to keep and bear arms was actually violated by the trial court's September 30, 2013 order granting City's petition for disposition of firearms under section 8102, we conclude that her Second Amendment claim lacks merit.

City of San Jose v. Rodriguez (Cal. Ct. App., Apr. 2, 2015, H040317) 2015 WL 1541988, at *8-9
So the state court's opinion that there was no 2A violation was apparently based in large part, if not entirely, on there being an administrative avenue to recover the firearms which the plaintiff had failed to avail herself of.

And from the federal complaint:

Quote:
Copies of the Penal Code § 33850 releases were tendered to the CITY OF
SAN JOSE on or about June 11, 2015 with a request that the Defendants
release LORI’s property to her pursuant to California law.

On or about July 6, 2015, the CITY OF SAN JOSE notified LORI that it still
would not return her firearms. (¶ 39-40)
Do you want to take a stab at explaining why the state court opinion would prevent 2A from being litigated in federal court?
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Old 09-02-2015, 2:08 PM
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Quote:
Originally Posted by MCorwin@michellawyers.com View Post
So the state court's opinion that there was no 2A violation was apparently based in large part, if not entirely, on there being an administrative avenue to recover the firearms which the plaintiff had failed to avail herself of.
You're kidding right?

Quote:
Originally Posted by CA Court of Appeals
Lori’s constitutional claim involves only her own Second Amendment right to keep and bear arms. For several reasons, we determine that Lori has not shown that her Second Amendment rights were violated by the trial court’s September 30, 2013 order granting City’s petition for disposition of firearms.

First...

Second...

Third...

Finally, we consider whether the provisions of Penal Code section 33850 et seq. impact Lori’s Second Amendment claim. Lori has acknowledged that Penal Code section 33850 provides a procedure for the return of firearms in police custody to persons who claim ownership of the firearms.
PC 33850 was only one of 4 reasons why there was no 2A violation according to the state court of appeals.


Quote:
Do you want to take a stab at explaining why the state court opinion would prevent 2A from being litigated in federal court?
Sure, they shot their wad in state court and collateral estoppel / res judicata bars them from re-litigating.
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Old 09-02-2015, 2:52 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
PC 33850 was only one of 4 reasons why there was no 2A violation according to the state court of appeals.
And more of the opinion addresses the PC 33850 issue than those other issues combined.

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
Sure, they shot their wad in state court and collateral estoppel / res judicata bars them from re-litigating.
How is there claim preclusion? The plaintiff's federal claim is predicated on the defendant defying state law administrative procedures for return of firearms and thereby violating her rights. That didn't happen until after final judgement in the state case.

Similarly, the only other "reason" the court addressed in any significant way (with more than a few sentences) was the issue of whether a "spouse of a person whose firearms were confiscated under section 8102 has a Second Amendment right to the return of those confiscated firearms for home protection." According to the complaint, "on June 1, 2015, LORI RODRIGUEZ received confirmation of the transfer of community property firearms to her name alone and release documents for the firearms in question from the California Department of Justice."

The volume of the opinion devoted to the PC 33850 and "spouse of the owner" issues would seem to indicate that the court considered one or both of them to be an alternative and independently sufficient ground for its judgment, indeed it barely addressed the other issues at all. Do you really think this is such a cut and dry issue in favor of the defendant?
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Old 09-02-2015, 10:00 PM
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None of the essential, analytically-relevant facts has changed. The city confiscated the firearms and then got an order saying they don't have to give them back. Authority for the city's retention of the firearms derived from the order and continues to derive from the order. The plaintiffs made a 2A challenge to the order which has already been litigated in state court and rejected on multiple grounds; the word count in the opinion for each ground is neither here nor there on that point. Making a 33850 application that the firearms be returned doesn't wipe the slate clean or somehow give rise to a distinct 2A challenge, all it does is raise a question about interpretion of state law. The order still does not violate the 2A for 3 reasons other than "plaintiff hasn't exhausted administrative remedies," or put another way the state court has already ruled that the order does not violate the 2A for those 3 reasons, and the 2A claim in the federal case is indistinguishable from the 2A claim that has already been litigated. Maybe the argument that the firearms should be returned beause of PC 33850 will get some traction (I don't think it will but it's possible) but again that's a question of how to interpret state law. Anyway I think this one is yet another turd.

Does anyone have a PDF of the trial court order?
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Old 09-03-2015, 1:08 AM
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Quote:
Originally Posted by MCorwin@michellawyers.com View Post
From the CA Court of Appeal opinion:

So the state court's opinion that there was no 2A violation was apparently based in large part, if not entirely, on there being an administrative avenue to recover the firearms which the plaintiff had failed to avail herself of.

Do you want to take a stab at explaining why the state court opinion would prevent 2A from being litigated in federal court?
The following California Court determinations are issue preclusive, in Rodriguez v. City of San Jose:
1. that Lori failed to exhaust her administrative remedies, and she has to date not exhausted her so- called administrative remedies.

The following analysis and holding are determinative of the entire case:
http://illinoiscarry.com/forum/index...ttach_id=18004

Under Penal Code section 33850, a “person who claims title to any firearm” in law enforcement custody may seek the return of that firearm. (Pen. Code, § 33850, subd. (a).) 8 The person seeking return of any firearms must file an application for a Penal Code section 33865 notification that specifies the make and model of the firearms
that are being sought and provides detailed information about any handguns. (Pen. Code, §§ 33850, 33865, subd. (c)(3).) The firearms cannot be returned by a court or law enforcement agency unless the person seeking them obtains a Penal Code section 33865
notification that the person is eligible to possess a firearm and “the firearm has been recorded in the Automated Firearms System in the name of the individual who seeks its return.” (Pen. Code, § 33855, subd. (b).)

8 Penal Code section 33850, subdivision (a) provides in part: “Any person who claims title to any firearm that is in the custody or control of a court or law enforcement agency and who wishes to have the firearm returned shall make application for a determination by the Department of Justice as to whether the applicant is eligible to possess a firearm.”

***

“The record on appeal includes a copy of a May 8, 2013 Department of Justice Bureau of Fireams notice stating that Lori Rodriguez is ‘eligible to both possess and purchase firearms as of the date the [personal
firearms eligibility] check was completed.’"
This case was moot the moment that the DOJ Firearms Bureau admitted that Lori was eligible to possess a firearm, because it means that she satisfies the requirement for return of the firearms under Penal Code § 33850. This is not a 2nd Amendment case, because the case is moot given the DOJ's admission that Lori qualifies for return of the firearms upon administrative request.

It is a 4th, 5th, and 14th Amendment case because a persons personal effects and property are taken without due process of law.

To the extent that the federal complaint could implicate the 2nd Amendment, is by being amended to aver that Penal Code § 33850 violates the 2nd Amendment, because it allows the State to seize a firearm from a co-owner of firearm, who has not been adjudicated as having violated any law or posing any threat to anyone. Notice below that the 2nd Amendment has been so weakened by Heller that the 14th Amendment, right to property, is stronger. Lori Rodriguez may pursue an action, seeking equitable relief, for property wrongfully taken by the government. Bowen v. Massachusetts, 487 U.S. 879, 893, (1988) (defining equitable remedy in part as an action for specific relief "which may include an order providing for ... the recovery of specific property or monies "); Crocker v. United States, 125 F.3d 1475, 1477 (Fed.Cir.1997). Property wrongfully taken by the government may be analyzed under the 5th and 14th Amendment. Penn Central Transp. Co. v. City of New York, 438 US 104, 124 (1978). Loretto v. Teleprompter Manhattan CATV Corp, 458 US 419, 430, 441 (1982); Webb Fabulous Pharmacies, Inc. v. Beckwith, 449 US 155, 163-164 (1980)(interest on money deposited with the court is a taking); Connolly v. Pension Benefit Guarantee Corp, 475 US 211, 225 (1986).

Note that the California Court of Appeals in Rodriguez v. San Jose stated in dicta, the very same thing I have been saying regarding Heller and Peruta but no one listens, "However, the court also stated: 'It is important to keep in mind that Heller while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’" Heller and Peruta have gaping hole exceptions so large that they consume the entire rule that the 2nd Amendment is a personal, nearly inviolable right.

I hope this message is heard loud and clear: that sentence opens the door for limitless control of firearm design ala Mexico, i.e. caliber, number of firearms owned, and amount of ammunition possessed. California already prohibits the .50 BMG.
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Old 09-03-2015, 8:47 AM
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Originally Posted by sarabellum View Post
It is a 4th, 5th, and 14th Amendment case because a persons personal effects and property are taken without due process of law.
This is a sort of segue to the next question which is, if the firearms are subject to a valid existing forfeiture order, what is the nature of the plaintiff's ownership interest in the forfeited firearms, if any? The 33850 DOJ paperwork isn't any sort of determination that the applicant is the owner of the firearms or is entitled to unqualified possession / return of the firearms. The DOJ has only a ministerial duty to process the 33850 application for a "person who claims title" to the firearm and fills out the application correctly, and then issue a determination that the person is eligible to possess firearms. But the issuance of the 33850 paperwork says nothing about the validity of the person's claim to title, and it certainly imposes no requirement on the law enforcement agency who has custody of the firearms to return the firearms to a person who does not actually have title. Similarly, if the firearms are subject to a valid existing forfeiture order -- and assuming that the applicant still has some ownership or possessory interest in the firearms post-forfeiture -- I don't see any reason why the agency's return of the firearm could not subject to conditions and qualifications consistent with the forfeiture order. Nothing in 33850 says that the agency must return confiscated firearms unconditionally to any person with 33850 paperwork under all circumstances. The argument that 33850 would somehow trump a forfeiture order is kind of clever but at the same time really dumb.
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Old 09-05-2015, 11:56 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
This is a sort of segue to the next question which is, if the firearms are subject to a valid existing forfeiture order, what is the nature of the plaintiff's ownership interest in the forfeited firearms, if any? The 33850 DOJ paperwork isn't any sort of determination that the applicant is the owner of the firearms or is entitled to unqualified possession / return of the firearms. The DOJ has only a ministerial duty to process the 33850 application for a "person who claims title" to the firearm and fills out the application correctly, and then issue a determination that the person is eligible to possess firearms. But the issuance of the 33850 paperwork says nothing about the validity of the person's claim to title, and it certainly imposes no requirement on the law enforcement agency who has custody of the firearms to return the firearms to a person who does not actually have title.
www.courts.ca.gov/opinions/nonpub/H040317.PDF

Quote:
In this case, Edward did not oppose the City’s petition for disposition of the firearms. The parties filed a stipulation and order stating that the parties agreed that “Lori Rodriguez has standing in this action in that she has at least a community property interest in the firearms at issue in these proceedings.”
Does that establish Lori's claim to "title"?

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
Similarly, if the firearms are subject to a valid existing forfeiture order -- and assuming that the applicant still has some ownership or possessory interest in the firearms post-forfeiture -- I don't see any reason why the agency's return of the firearm could not subject to conditions and qualifications consistent with the forfeiture order. Nothing in 33850 says that the agency must return confiscated firearms unconditionally to any person with 33850 paperwork under all circumstances. The argument that 33850 would somehow trump a forfeiture order is kind of clever but at the same time really dumb.
O.K. Any claim to title notwithstanding, the court will not order the firearms returned to Lori unconditionally:

http://www.courts.ca.gov/opinions/nonpub/H040317.PDF

Quote:
Having also determined that the order may be affirmed under section 8102 because the order is supported by substantial evidence that return of the confiscated firearms to the Rodriguez home would be likely to result in endangering Edward or others, we will affirm the order.
The 2A claim fails because Lori can purchase a firearm for self defense or other lawful purposes, but none of the confiscated firearms will be returned to the Rodriguez home. They could be sold through a dealer, released to be kept under custodial care off premises with safeguards to prevent Edward from gaining access to them, or abandoned.

Alternatively, Edward could move out of the home and the firearms could be released to Lori. In that case Edward could be enjoined from visiting the home unless accompanied by court appointed supervision to prevent him gaining access to the firearms: otherwise he might persuade or coerce Lori into granting him access.

Lori could purchase firearms and keep them in her own safe. That would potentially expose her to criminal or civil sanctions for willfully or negligently allowing Edward to gain access to them, should he manage to do so.

Finally, Edward might be able to persuade (the court?) that he is no longer a danger to himself or others, and the firearms could be released to Lori. I see no possibility of this happening. Any other possible outcomes in terms of court action?
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Old 09-05-2015, 1:34 PM
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Originally Posted by RipVanWinkle View Post

The 2A claim fails because Lori can purchase a firearm for self defense or other lawful purposes, but none of the confiscated firearms will be returned to the Rodriguez home.
The Court of appeals did not issue a rule or holding that "because Lori can purchase a firearm for self defense..." her Second Amendment claims fails. The DOJ's determination of right to possess firearms is related to Penal Code §33855. The issue of the 2nd Amendment was addressed in this posting: http://www.calguns.net/calgunforum/s...2&postcount=33

Lori has an avenue for return of the firearms to her as addressed in http://www.calguns.net/calgunforum/s...2&postcount=33. As the Court of Appeals instructed her, given the DOJ's admission that she may lawfully posess firearms, "Lori has not provided any authority for the proposition that trial court proceedings on a section 8102 petition preclude a person who claims title to the confiscated firearms from seeking their return under Penal Code section 33850 et seq. Moreover, we believe that the record on appeal shows that the procedure provided by section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori." Id. pp. 15-16. She may obtain return of the firearms upon request under Penal Code §33850.

Lori's "title" is a red herring raised by Fabio because that matter is not even at issue and would appear to be a matter that has been conceded by the government. It would be foolish at this point for the government, after remaining silent throughout this litigation, to now make such an absurd argument that a wife of 20 years does not have a community property interest in guns acquired after marriage. At this point, the Government waived any such bizarre "title" argument, because any issue not raised at the trial court level is presumptively waived and/or foreclosed by latches.

Quote:
Originally Posted by RipVanWinkle View Post
Lori could purchase firearms and keep them in her own safe. That would potentially expose her to criminal or civil sanctions for willfully or negligently allowing Edward to gain access to them, should he manage to do so.
There is no issue, rule, analysis, conclusion, holding in the opinion that would support that contention. On the contrary, Lori may invoke offensive and defensive administrative issue preclusion because the DOJ made an administrative determination that she may lawfully possess firearms. Collateral estoppel applies to the final decisions of administrative agencies acting in a judicial or quasi-judicial capacity. Murray v. Alaska Airlines, Inc., 50 Cal. 4th 860, 867 (2010). Such decisions and related findings are given preclusive effect when the affected parties fail to reverse the adverse decisions or findings by exhausting all administrative and judicial remedies. Id. at 867. The key issue is whether the party against whom issue preclusion is sought had an adequate opportunity to litigate the factual finding or issue in the prior administrative proceedings. Murray, 50 Cal. 4th at 869. Even purely documentary proceedings can satisfy the hearing requirement of section 1094.5 of the Code of Civil Procedure. Friends of the Old Trees v. Department of Forestry & Fire Protection, 52 Cal.App.4th 1383, 1391 (1997). In Murray, the California Supreme Court considered whether issue preclusion should apply to a federal agency’s investigative findings in a subsequent civil suit. 50 Cal. 4th at 865-66. The Court held that issue preclusion would apply to an administrative agency’s investigative findings if the parties had an opportunity for an adversarial hearing and judicial review but did not pursue it. Id. at 868-69, 876-78.

The Court in Rodriguez v. San Jose, made the following factual finding, "“The record on appeal includes a copy of a May 8, 2013 Department of Justice Bureau of Fireams notice stating that Lori Rodriguez is ‘eligible to both possess and purchase firearms as of the date the [personal
firearms eligibility] check was completed.’" Therefore, given that the California DOJ is in privity with the local District Attorney, she may invoke collateral estoppel as to any future criminal liability regarding the firearms. Zapata v. Department of Motor Vehicles, 2 Cal. App. 4th 108, 115 (1991) (privity established between District Attorney’s Office and DMV because each acted as agents of the same government, the State of California). No agency has sought reversal of that DOJ determination. It is a this point a final administrative determination in Lori's favor. That she may possess firearms is an issue Dead on Arrival in her favor.

All that remains now is for Lori to demand return of her firearms via a section 33850 administrative request. If for some perverse reason, the government refuses to give her the firearms, after the Court made it clear that she is eligible to get them back, she has a slam dunk chance of prevailing in CCP §1985 Petition for a Writ of Mandamus. No matter how you slice, Lori will get her guns back.

I'll repeat it again- given the gaping holes in Heller- Fabio is right when he says that 2nd Amendment claims are purely intellectual exercises with little hope of prevailing.

What no one notices is that the DOJ acted remarkably scrupulously in concluding that Lori has a clear record entitling her to own firearms (and get her guns back under 33850), and that a California Court took the time to rule that one may get their firearms back under Penal Code section 33850 despite a forfeiture order. Implications: California courts hate the 2nd Amendment but love to get a man's property into the hands of a woman, who marries him. The latter is a MGTOW issue for another thread.

Last edited by sarabellum; 09-05-2015 at 1:40 PM..
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Old 09-05-2015, 1:49 PM
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Good luck Lori
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Old 09-05-2015, 2:42 PM
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Originally Posted by RipVanWinkle View Post
Does that establish Lori's claim to "title"?
The question is what is the extent of her interest in the firearms, which are subject to an order that says that it's ok for the PD to confiscate them and not give them back? She didn't have anything resembling full blown title (where you have an unconditional right to possess the firearms and do the same things with them as gun owners whose guns haven't been confiscated can do) before, and filing the 33850 application doesn't somehow restore that to her now. "This form is to be used only by the owner of a firearm which is in the custody or control of a law enforcement agency or court to redeem the firearm. It only establishes the applicant's eligibility to lawfully possess firearms at the time the application is processed. It cannot be used to transfer a firearm, or to prove ownership of a firearm." The 33850 application doesn't order the PD to release the gun to the applicant, it leaves it to the PD to decide whether to give the gun back: "It is the responsibility of the court or law enforcement agency with custody or control of the firearm to verify that the applicant is the lawful owner or possessor of the firearm." Clearly she did not and does not have any right to possess the firearms unfettered by the restrictions set forth in the forfeiture order, which is why the PD is refusing to return them outright. The stipulation that she had a community property interest in the firearms for purposes of standing only goes so far if the interest is subject to a court order that radically restricts what you can and can't do with the firearms.
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Old 09-05-2015, 2:54 PM
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Originally Posted by sarabellum View Post
All that remains now is for Lori to demand return of her firearms via a section 33850 administrative request. If for some perverse reason, the government refuses to give her the firearms, after the Court made it clear that she is eligible to get them back, she has a slam dunk chance of prevailing in CCP §1985 Petition for a Writ of Mandamus. No matter how you slice, Lori will get her guns back.
It will be interesting to see what happens when she makes the 33850 administrative request and how the state court will rule on the slam dunk writ.
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Old 09-05-2015, 5:08 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The question is what is the extent of her interest in the firearms, which are subject to an order that says that it's ok for the PD to confiscate them and not give them back?
I just assumed that her interest in the firearms, "at least a community property interest in the firearms at issue in these proceedings", is the same now as it was before they were confiscated.

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
She didn't have anything resembling full blown title (where you have an unconditional right to possess the firearms and do the same things with them as gun owners whose guns haven't been confiscated can do) before,
I'm a little confused by this. I can't think of anything to which I have "full blown title" except a deed on real property or the pink slip on a motor vehicle. Definitely not on any firearm. But she presumably could possess and do things with the firearms before they were confiscated. She wants to possess them now, but that continuing interest is thwarted by the fact that they are confiscated.

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
and filing the 33850 application doesn't somehow restore that to her now. "This form is to be used only by the owner of a firearm which is in the custody or control of a law enforcement agency or court to redeem the firearm. It only establishes the applicant's eligibility to lawfully possess firearms at the time the application is processed. It cannot be used to transfer a firearm, or to prove ownership of a firearm."
.

I guess you mean that "at least a community property interest in the firearms at issue in these proceedings" doesn't refer to ownership of some sort. In that case she was misrepresenting herself in submitting the form in the first place.

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
The 33850 application doesn't order the PD to release the gun to the applicant, it leaves it to the PD to decide whether to give the gun back: "It is the responsibility of the court or law enforcement agency with custody or control of the firearm to verify that the applicant is the lawful owner or possessor of the firearm." Clearly she did not and does not have any right to possess the firearms unfettered by the restrictions set forth in the forfeiture order, which is why the PD is refusing to return them outright. The stipulation that she had a community property interest in the firearms for purposes of standing only goes so far if the interest is subject to a court order that radically restricts what you can and can't do with the firearms.
"It is the responsibility of the court or law enforcement agency with custody or control of the firearm to verify that the applicant is the lawful owner or possessor of the firearm." Did the court actually say that Lori wasn't a lawful owner or possessor? Clearly Edward isn't because of the psychiatric hold. On the other hand Lori can lawfully possess or acquire firearms, just not the particular ones that were confiscated?
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