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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 12-23-2011, 3:16 PM
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Default CGF: Silvester v. Harris - Second Waiting Period Unconstitutional

Calguns Foundation Sues California Over Firearms Waiting Period


San Carlos, CA (December 23, 2011) – The Calguns Foundation has filed a federal lawsuit against the California Department of Justice and Attorney General Kamala Harris challenging the policy of requiring gun owners to wait at least 10 days before taking possession of an additional firearm. The case is entitled Jeff Silvester et. al. vs. Kamala Harris, et. al.

The Calguns Foundation is joined in the lawsuit, filed today at the District of California Federal District Court in Fresno, by the Second Amendment Foundation and three individual plaintiffs.

“The State has absolutely no reason to infringe the rights of California gun owners who already possess firearms when they buy another one,” said Jason Davis who is the attorney for the plaintiffs. California currently requires the registration of handguns in California. And, beginning January 2014, it will also require the registration of all newly-purchased rifles and shotguns. Notably, California keeps a current database of all residents who are prohibited by state or federal law from owning or possessing firearms.

Individual plaintiffs Jeff Silvester, Michael Poeschl, and Brandon Combs each have firearms registered with the State of California. Mr. Combs and Mr. Silvester also have firearms licenses from the State that constitute ongoing background checks.

“In just about every other state in the U.S., I as a law-abiding gun owner could walk in and, after passing an instant national background check, walk out with a firearm to defend myself in my home,” said Michael Poeschl. “What’s really frustrating is that California is one of the very few states that forces gun owners to register all handguns that they buy. If the State’s database saying that I already lawfully own a gun isn’t proof that I don’t need a ‘cooling-off’ period, then what is?”

“I have a license to carry a loaded firearm across the State,” noted Jeff Silvester. “It is ridiculous that I have to wait another 10 days to pick up a new firearm when I’m standing there in the gun store lawfully carrying one the whole time.”

“As a collector, I submitted to a Live Scan background check and obtained a Certificate of Eligibility to Possess Firearms from the State of California at my own expense,” said Brandon Combs. “In the Internet era, where every California gun dealer has a computer connected directly to the State’s databases, there is no logical reason to force me to wait 10 days and make another trip simply because California doesn’t want to acknowledge the Certificate that it issued to me. I have registered guns, and I have the State telling me that I can possess guns, but for some reason I can’t exercise my constitutionally protected rights for another ten days? That’s insane.”

“Laws that infringe on the right to purchase arms have to be more than just merely rational and must directly serve important governmental interests,” added Hoffman. “Here, the law is not just irrational but actually contradictory. We filed this case right before Christmas in the hopes that, by next Christmas, gun owners will not suffer this continuing infringement on their right to acquire firearms.”

The complaint is available from http://bit.ly/10daywait

___

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization which serves its members by providing Second Amendment-related education, strategic litigation and the defense of innocent California gun owners from improper or malicious prosecution. The Calguns Foundation seeks to inform government and protect the rights of individuals to acquire, own, and lawfully use firearms in California.

Please remember that freedom isn't free and cases like these to recover your rights cost money. Please donate - It's tax deductible!

-Gene


=====================

Current status, via wildhawker 12-2-2014

Appeal to the 9th Circuit:
Quote:
The opening brief and excerpts of record are due February 23, 2015;

the answering brief is due March 25, 2015;

and the optional reply brief is due within 14 days after service of the answering brief. [9332608] (WL) [Entered: 12/02/2014 08:53 AM]
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Last edited by Librarian; 12-02-2014 at 4:24 PM..
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Old 12-23-2011, 3:19 PM
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woo hoo
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Old 12-23-2011, 3:26 PM
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Go CGF team go! Beautiful!
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Old 12-23-2011, 3:28 PM
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Bravo! And Merry Christmas to CA gun owners!!!
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Old 12-23-2011, 3:28 PM
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Yay! This.SHOULD be rather easy to smack down since it really doesn't even survive rational basis.
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Old 12-23-2011, 3:29 PM
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Nice. Keep putting the pressure on them.
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Old 12-23-2011, 3:29 PM
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Sweet! Thanks for the birthday present!
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Old 12-23-2011, 3:29 PM
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Sweet.
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Old 12-23-2011, 3:30 PM
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Calguns and SAF's XMAS gift to all of us!

From the bottom of my heart, thank you. I could not have asked for me.
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Old 12-23-2011, 3:34 PM
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Merry Christmas! Happy Hannukah! Joyous Kwanza! Groovy Solatice!

CGF rocks. The 10 day wait after the first time irks to no end. One trip to parts unknown is fine, the second trip kills too many deals. Thanks guys.
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Old 12-23-2011, 3:34 PM
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Damn, right when I am 10 days away from leaving CA and you guys challenge the 10 day wait!

Seriously though congrats and good luck. CGF is friggin awesome!
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Old 12-23-2011, 3:35 PM
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Hey!

Document drops on Fridays, especially before holidays, are for things you don't want people to notice.

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Old 12-23-2011, 3:36 PM
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So, from now until next Christmas is about two weeks, right?
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Old 12-23-2011, 3:38 PM
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Originally Posted by Librarian View Post
Hey!

Document drops on Fridays, especially before holidays, are for things you don't want people to notice.

We thought our friends at CA DOJ BoF needed some holiday cheer and more DROS fees next year! How can we not oblige?

I expect you'll hear more about this case from SAF on boxing day too.

-Gene
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Old 12-23-2011, 3:50 PM
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Nice! One ten day wait is ridiculous enough
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Old 12-23-2011, 3:54 PM
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I wish Brandon had let me know about the lawsuit. I would have been a plaintiff, since I bought one of his ARs, and I already have several guns that I had to wait for.
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Old 12-23-2011, 3:54 PM
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Originally Posted by 707electrician View Post
Nice! One ten day wait is ridiculous enough
The first 10 day wait is a harder fight, legally speaking.

But a 10day wait for a guy to buy his N+1th gun and who already
has N guns is downright unsupportable for a fundamental right.
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Old 12-23-2011, 3:57 PM
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Originally Posted by bwiese View Post
The first 10 day wait is a harder fight, legally speaking.

But a 10day wait for a guy to buy his N+1th gun and who already
has N guns is downright unsupportable for a fundamental right.
May not be required. CA may just throw in the towel and start using NCIS checks like most other states
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Old 12-23-2011, 4:00 PM
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Originally Posted by berto View Post
Merry Christmas! Happy Hannukah! Joyous Kwanza! Groovy Solatice!

CGF rocks. The 10 day wait after the first time irks to no end. One trip to parts unknown is fine, the second trip kills too many deals. Thanks guys.
And you forgot Festivus.

Thats okay- Its time to raise a toast to the Calguns Foundation and spread the pre-Christmas cheer...
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Old 12-23-2011, 4:01 PM
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More seed being sown.

I can hardly wait for some crops to come in (Rossow, Scocca, Peruta, Richards, Pena, etc.).
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Old 12-23-2011, 4:02 PM
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interesting little tidbit:

Quote:
42. Eighteenth, the ten-day waiting periods generally do not apply to lawful transactions involving cane guns, firearms that are not immediately recognizable as firearms, undetectable firearms, wallet guns, unconventional pistols, and zip guns. Penal Code §21740 (exempts from §26815); §27740 (exempts from §27540).
"shotgun-based" AOWs like the Super Shorty are considered unconvetional pistols in CA and would therefore be exempt from the 10-day wait after the Form 4 was approved.


27540
No dealer, whether or not acting pursuant to Chapter 5
(commencing with Section 28050), shall deliver a firearm to a person,
as follows:
(a) Within 10 days of the application to purchase, or, after
notice by the department pursuant to Section 28220, within 10 days of
the submission to the department of any correction to the
application, or within 10 days of the submission to the department of
any fee required pursuant to Section 28225, whichever is later.
(b) Unless unloaded and securely wrapped or unloaded and in a
locked container.
(c) Unless the purchaser, transferee, or person being loaned the
firearm presents clear evidence of the person's identity and age to
the dealer.
(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.
(e) (1) Commencing April 1, 1994, and until January 1, 2003, no
handgun shall be delivered unless the purchaser, transferee, or
person being loaned the firearm presents to the dealer a basic
firearms safety certificate.
(2) Commencing January 1, 2003, no handgun shall be delivered
unless the purchaser, transferee, or person being loaned the handgun
presents a handgun safety certificate to the dealer.
(f) No handgun shall be delivered whenever the dealer is notified
by the Department of Justice that within the preceding 30-day period
the purchaser has made another application to purchase a handgun and
that the previous application to purchase involved none of the
entities specified in subdivision (b) of Section 27535.





27740
Section 27540 does not apply to the sale, delivery, or
transfer of a firearm regulated pursuant to any of the following
statutes
, if the sale, delivery, or transfer of that firearm is
conducted in accordance with the applicable provisions of the
statute:
(a) Chapter 1 (commencing with Section 18710) of Division 5 of
Title 2, relating to destructive devices and explosives.
(b) Section 24410, relating to cane guns, and the exemptions in
Chapter 1 (commencing with Section 17700) of Title 2, as they relate
to cane guns.
(c) Section 24510, relating to firearms that are not immediately
recognizable as firearms, and the exemptions in Chapter 1 (commencing
with Section 17700) of Title 2, as they relate to firearms that are
not immediately recognizable as firearms.
(d) Sections 24610 and 24680, relating to undetectable firearms,
and the exemptions in Chapter 1 (commencing with Section 17700) of
Title 2, as they relate to undetectable firearms.
(e) Section 24710, relating to wallet guns, and the exemptions in
Chapter 1 (commencing with Section 17700) of Title 2, as they relate
to wallet guns.
(f) Chapter 2 (commencing with Section 30500) of Division 10,
relating to assault weapons.
(g) Section 31500, relating to unconventional pistols, and the
exemptions in Chapter 1 (commencing with Section 17700) of Title 2,
as they relate to unconventional pistols.

(h) Sections 33215 to 33225, inclusive, relating to short-barreled
rifles and short-barreled shotguns, and the exemptions in Chapter 1
(commencing with Section 17700) of Title 2, as they relate to
short-barreled rifles and short-barreled shotguns.




and the old code, as far as I can tell,

12078(o) Section 12071 and subdivisions (c),(d), and paragraph (1) of Section 12072 shall not apply to the delivery, sale, or transfer of firearms regulated pursuant to Section 12020, Chapter 2 (commencing with Section 12200), or Chapter 2.3 (commencing with Section 12275), if the delivery, sale, or transfer is conducted in accordance with the applicable provisions of Section 12020, Chapter 2 (commencing with Section 12200), or Chapter 2.3 (commencing with Section 12275).


that could make getting a "shotgun-based" AOW a one-stop trip instead of a 2-3 stop deal.
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Old 12-23-2011, 4:07 PM
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Thanks
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Old 12-23-2011, 4:14 PM
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Quote:
Originally Posted by bwiese View Post
The first 10 day wait is a harder fight, legally speaking.

But a 10day wait for a guy to buy his N+1th gun and who already
has N guns is downright unsupportable for a fundamental right.
I still don't understand how ANY wait can survive strict scrutiny or any constitutional scrutiny. I have a right to self defense NOW, not 1, 3, or ten days from now. Plus, if the whole idea is to prevent crime and we've instituted background checks, well the background check is instant. And can the state actually show in court that a background check waiting period truly prevents the so-called "crimes of passion" that it seeks to get rid of? I doubt it.

Anyways. It's still great news. Merry Christmas to me, Merry Christmas to me!

Sometimes I think Gene, Bill, Jason, Brandon and CGF in general are just one big multi-part jolly Santa
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Old 12-23-2011, 4:19 PM
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the marketplace is going to be a whole new world.
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Old 12-23-2011, 4:20 PM
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LOL - Brilliant!!! We hold these truths to be self-evident. I just wish to god politicians would take their heads out of their lower intestinal tract and see common sense.
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Old 12-23-2011, 4:20 PM
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I dunno, it feels just a little like Christmas is two days early. And yeah, I know that final resolution will be a long way down the road.

But what I find most interesting is that (IIRC) this was a relatively low priority. This suggests to me that there has been (or this is) a strategic or tactical shift.
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Old 12-23-2011, 4:21 PM
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Quote:
Originally Posted by CHS View Post
I still don't understand how ANY wait can survive strict scrutiny or any constitutional scrutiny. I have a right to self defense NOW, not 1, 3, or ten days from now. Plus, if the whole idea is to prevent crime and we've instituted background checks, well the background check is instant. And can the state actually show in court that a background check waiting period truly prevents the so-called "crimes of passion" that it seeks to get rid of? I doubt it.

Anyways. It's still great news. Merry Christmas to me, Merry Christmas to me!

Sometimes I think Gene, Bill, Jason, Brandon and CGF in general are just one big multi-part jolly Santa
Low hanging fruit though. Just sayin. Once this gets picked the rest would be easier to get.
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Old 12-23-2011, 4:22 PM
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Quote:
Originally Posted by OleCuss View Post
I dunno, it feels just a little like Christmas is two days early. And yeah, I know that final resolution will be a long way down the road.

But what I find most interesting is that (IIRC) this was a relatively low priority. This suggests to me that there has been (or this is) a strategic or tactical shift.
Maybe the time for shock and awe has arrived
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Old 12-23-2011, 4:23 PM
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So, I see this, but as usual I don't know what it means - "Seventh, the ten-day waiting periods generally do not apply to persons who have an ―assault weapons‖ permit pursuant to Penal Code section 30500, et seq. Penal Code §21740 (exempts from §26815); §27740 (exempts from §27540)."

Does this mean that someone that has a RAW is exempt from the 10 day wait?
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Old 12-23-2011, 4:25 PM
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Happy holidays!
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We will win. We are right. We will never stop fighting.
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They don't believe it's possible, but then Alison didn't believe there'd be 350K - 400K OLLs in CA either.
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Old 12-23-2011, 4:25 PM
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Quote:
Originally Posted by SoCal Bob View Post
So, I see this, but as usual I don't know what it means - "Seventh, the ten-day waiting periods generally do not apply to persons who have an ―assault weapons‖ permit pursuant to Penal Code section 30500, et seq. Penal Code §21740 (exempts from §26815); §27740 (exempts from §27540)."

Does this mean that someone that has a RAW is exempt from the 10 day wait?
AW registration is different from an AW permit.

most of us with RAWs do not have AW permits.
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Old 12-23-2011, 4:28 PM
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Originally Posted by ke6guj View Post
AW registration is different from an AW permit.

most of us with RAWs do not have AW permits.
Thanks, I figured there had to be more to it.
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Old 12-23-2011, 4:33 PM
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So how long until this is delayed pending the Nordyke En Banc?
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Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes...Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.
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Old 12-23-2011, 4:34 PM
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Old 12-23-2011, 4:34 PM
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Great job!
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Old 12-23-2011, 4:41 PM
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Bravo! This is long overdue.
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Old 12-23-2011, 4:44 PM
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Fantastic guys! CGF moving forward again on improving what little freedom the state of CA attempts to allow.....

Great work!
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Old 12-23-2011, 4:46 PM
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Holy crap, this is priceless (reading the complaint):

Quote:
California, however, has placed restrictions on the access to and delivery of firearms – generally subjecting firearm purchasers to a minimum ten-day ban on the delivery of firearms
I never thought of calling the "waiting period" a ban. But this complaint hits the nail right on the head. It's nothing more than a temporary ban.

I'm going to start calling it a 10-day ban now instead of waiting period.
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Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes...Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.
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Old 12-23-2011, 4:53 PM
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freaking awesome
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Old 12-23-2011, 4:53 PM
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Maybe the time for shock and awe has arrived
You bet your sweet bippy!

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