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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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SAF/CGF/Lori Rodriguez vs San Jose - Cert denied 10-13-20
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Go get them SAF. Another donation inbound soon.
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http://www.calguns.net/calgunforum/s...d.php?t=737563 |
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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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It's a press release:
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ARCHIVED Calguns Foundation Wiki here: http://web.archive.org/web/201908310...itle=Main_Page "The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane."Ann Althouse: “Begin with the hypothesis that what they did is what they wanted to do. If they postured that they wanted to do something else, regard that as a con. Work from there. The world will make much more sense.” Not a lawyer, just Some Guy On The Interwebs. |
#7
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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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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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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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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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...and if you believe that she'll actually do that, I've got a nice orange bridge to sell you.
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“Our lives begin to end the day we become silent about things that matter” ~ Martin Luther King, Jr. |
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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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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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Last edited by TeddyBallgame; 08-18-2015 at 8:50 PM.. |
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Did you miss the part where the judge upheld the confiscation? FTR, I'd give her guns back.
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-BC
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Brandon Combs I do not read private messages, and my inbox is usually full. If you need to reach me, please email me instead. My comments are not the official position or a statement of any organization unless stated otherwise. My comments are not legal advice; if you want or need legal advice, hire a lawyer. |
#19
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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. Quote:
No Brass Passes, For Thieving A**es. JM2c Last edited by pacrat; 08-18-2015 at 10:54 PM.. |
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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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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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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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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.
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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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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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“Our lives begin to end the day we become silent about things that matter” ~ Martin Luther King, Jr. |
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From the California Court of Appeal.
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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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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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And from the federal complaint: Quote:
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My posts may contain general information related to the law or current litigation, however, THEY ARE NOT LEGAL ADVICE. For legal advice please contact Michel & Associates or another attorney directly. No attorney-client or confidential relationship exists or will be formed between myself, my firm, and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
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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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My posts may contain general information related to the law or current litigation, however, THEY ARE NOT LEGAL ADVICE. For legal advice please contact Michel & Associates or another attorney directly. No attorney-client or confidential relationship exists or will be formed between myself, my firm, and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#32
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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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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=18004This 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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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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Last edited by FABIO GETS GOOSED!!!; 07-24-2019 at 10:42 AM.. |
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http://www.courts.ca.gov/opinions/nonpub/H040317.PDF Quote:
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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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:
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 12:40 PM.. |
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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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Last edited by FABIO GETS GOOSED!!!; 09-05-2015 at 1:57 PM.. |
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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:
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