2019 Fouts/Tolentino v Becerra: 10-17-22 Vacated and Remanded

[FirearmFino]

Scheduling order regulating discovery and other pretrial proceedings

[ronlglock]

A reserve in the San Mateo County Sheriffs Office can, and has, deployed his collapsible ASP faster than he can draw. The guy is scary.

[wolfwood]

The State of California just submitted its expert report
https://www.scribd.com/document/4525...Brian-Fichtner

[Cincinnatus]

Officer Fitchner can't spell or use punctuation for sheeitt.

Diffuse for defuse, for one example.

We pay these guys, right? And they have at least one degree from a reputable, accredited college/university?

[gunuser17]

All I get is "document removed" from Scribd
.

[wolfwood]

here the calguns forum does not let me upload to many docs this way so I normally don't but this should let you direct download the file

[gunuser17]

Interesting. Although there are a lot of details on total hours of training for police, I don't see any mention of the actual number of hours of training on a baton or ASP - likely an infinitesimal portion of the overall training. Also, much is made of the baton being less lethal although capable of lethal use - so is a baseball bat. I can walk to the baseball field with a bat. Going smaller, I can carry a hammer all day long if I am a construction worker or, if not, just going to work on a neighbor's deck or any other reason most likely. Mechanics have ratchets all the time and that could make a pretty good striking weapon even smaller than a hammer.

[Dvrjon]

Originally Posted by Cincinnatus

Officer Fitchner can't spell or use punctuation for sheeitt.

Diffuse for defuse, for one example.

We pay these guys, right? And they have at least one degree from a reputable, accredited college/university?

Para legal staff typed it up, and at least three government attorneys wrote reviewed that statement before he signed it.

[chuckdc]

Originally Posted by Lonestargrizzly

Oh hell yea were all getting asps!!!!

kisss my ASP

[DrjonesUSA]

What's the status on this?

[wolfwood]

summary judgement filed by plaintiffs

https://pdfhost.io/v/JR.HIrCGb_filed_fouts_msjpdf.pdf

[abinsinia]

Originally Posted by wolfwood

summary judgement filed by plaintiffs

https://pdfhost.io/v/JR.HIrCGb_filed_fouts_msjpdf.pdf

Hope they get it .. That ban makes no sense.

[wolfwood]

California filed its summary judgement

https://pdfhost.io/v/by870NpC5_fouts...nia_msjpdf.pdf

[abinsinia]

the State is not aware of any evidence demonstrating that billy clubs are in common use for lawful purposes like self-defense;

I think most police carry or at least did carry at one time a baton, but that doesn't matter.

[spddrcr]

I would love to be able to throw an ASP in my pocket for my evening walks due to the state of CA saying I can't legally bring my gun. Such a silly law.

[librarian72]

A billy is a cylindrical stick or club made of wood, rubber, plastic, or metal that can be used as an intermediate-force compliance tool or weapon.

How vague is that? That covers, what, ski poles? golf clubs? dowels? house plumbing? sprinkler plumbing? canes? garden stakes? Literally hundreds of everyday items that I never mentioned?

[Offwidth]

Originally Posted by librarian72

How vague is that? That covers, what, ski poles? golf clubs? dowels? house plumbing? sprinkler plumbing? canes? garden stakes? Literally hundreds of everyday items that I never mentioned?

It is perfect. If you have an elongated object in your possession they can throw another charge at you.

Soviet Union school of law.

[Dvrjon]

Originally Posted by Offwidth

It is perfect. If you have an elongated object in your possession they can throw another charge at you.

Soviet Union school of law.

Note: Keep trousers zipped; wear long shirts untitled.

[Dvrjon]

Originally Posted by librarian72

How vague is that? That covers, what, ski poles? golf clubs? dowels? house plumbing? sprinkler plumbing? canes? garden stakes? Literally hundreds of everyday items that I never mentioned?

But, CalCrim 2500 guidelines explain this:

Element 3 contains the requirement that the defendant know that the object is a weapon. A more complete discussion of this issue is provided in the Commentary section below. Select alternative 3A if the object is capable of innocent uses. In such cases, the court has a sua sponte duty to instruct on when an object is possessed “as a weapon.” (People v. Fannin, supra, 91 Cal.App.4th at p. 1404; People v. Grubb (1965) 63 Cal.2d 614, 620–621, fn. 9 [47 Cal.Rptr. 772, 408 P.2d100].) Select alternative 3B if the object “has no conceivable innocent function” (People v. Fannin (2001) 91 Cal.App.4th 1399, 1405 [111 Cal.Rptr.2d 496]), or when the item is specifically designed to be one of the weapons defined in the Penal Code(see People v. Gaitan (2001) 92 Cal.App.4th 540, 547 [111 Cal.Rptr.2d 885]).

Commentary:

Element 3—Knowledge. “Intent to use a weapon is not an element of the crime of weapon possession.” (People v. Fannin (2001) 91 Cal.App.4th 1399, 1404 [111 Cal.Rptr.2d 496].) However, interpreting now-repealed Penal Code section 12020(a)(4), possession a concealed dirk or dagger, the Supreme Court stated that “[a] defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a stabbing weapon is . . . not guilty of violating section 12020.” (People v.Rubalcava (2000) 23 Cal.4th 322, 331–332 [96 Cal.Rptr.2d 735, 1 P.3d 52].) Applying this holding to possession of other weapons prohibited under now-repealed Penal Code section 12020(a), the courts have concluded that the defendant must know that the object is a weapon or may be used as a weapon, or must possess the object “as a weapon.” (People v. Gaitan (2001) 92 Cal.App.4th 540,547 [111 Cal.Rptr.2d 885]; People v. Taylor (2001) 93 Cal.App.4th 933, 941 [114Cal.Rptr.2d 23]; People v. Fannin, supra, 91 Cal.App.4th at p. 1404.) In People v. Gaitan, supra, 92 Cal.App.4th at p. 547, for example, the court considered the possession of “metal knuckles,” defined in now-repealed Penal Code section 12020(c)(7) as an object “worn for purposes of offense or defense.” The court held that the prosecution does not have to prove that the defendant intended to use the object for offense or defense but must prove that the defendant knew that “the instrument may be used for purposes of offense or defense.” (Id. at p. 547.) Similarly, in People v. Taylor, supra, 93 Cal.App.4th at p. 941, involving possession of a cane sword, the court held that “[i]n order to protect against the significant possibility of punishing innocent possession by one who believes he or she simply has an ordinary cane, we infer the Legislature intended a scienter requirement ofactual knowledge that the cane conceals a sword.” Finally, People v. Fannin, supra, 91 Cal.App.4th at p. 1404, considered whether a bicycle chain with a lock at the end met the definition of a “slungshot.” The court held that “if the object is not a weapon per se, but an instrument with ordinary innocent uses, the prosecution must prove that the object was possessed as a weapon.” (Ibid. [emphasis in original]; see also People v. Grubb (1965) 63 Cal.2d614, 620–621 [47 Cal.Rptr. 772, 408 P.2d 100] [possession of modified baseballbat].)

[Paladin]

Hearing on MSJ rescheduled to 2020 Dec 07.

https://www.ammoland.com/2020/10/ban...#axzz6bcqbsGAL

[mag360]

Might as well order our ASP’s now before there is a run on them! Christmas presents might come early

[chuckdc]

Originally Posted by Cincinnatus

3-cell or 4-cell?

6 or7

[Paladin]

Originally Posted by Paladin

Hearing on MSJ rescheduled to 2020 Dec 07.

https://www.ammoland.com/2020/10/ban...#axzz6bcqbsGAL

How’d it go?

[ΜΟΛΩΝ ΛΑΒΕ]

I believe it was postponed to January due to COVID-19 concerns. I’ll look it up on PACER tomorrow.

[Dvrjon]

Pacer monitor:

Thursday, December 10, 2020
29 motion Amend/Correct Thu 12/10 12:19 AM
Joint MOTION to Amend/Correct16 Scheduling Order, by Xavier Becerra. (Echeverria, John) (mme)


Sunday, December 06, 2020
28 notice Notice of Hearing on Motion Sun 12/06 8:43 PM
MINUTE ORDER issued by the Honorable Roger T. Benitez: Due to the COVID-19 lockdown measures imposed by California Governor Gavin Newsom, the Motion Hearing currently set for 12/7/2020 is reset for 1/13/2021 10:30 AM in Courtroom 5A before Judge Roger T. Benitez as to the following motions:21 MOTION for Summary Judgment ,22 MOTION for Summary Judgment . (no document attached) (gxr)

[Paladin]

Thx

[Paladin]

Anyone have a link to online streaming?

[ΜΟΛΩΝ ΛΑΒΕ]

The Southern District Court’s proceedings are usually not live-streamed, but you can contact the court clerk to see if a link will be made available to you.

[AdamVIP]

Sending good vibes on this one. Pending success would this ruling allow for extendable batons or are they some other sort of classification since they have moving parts?

[Paladin]

10:30am Wednesday!

[robertfchew]

Originally Posted by Paladin

10:30am Wednesday!

Benitez will rule in law abiding citizens favor and then the state will drag it to another 4 years.

[curtisfong]

Originally Posted by wolfwood

A Second Amendment challenge to California's ban on batons got filed today

https://www.scribd.com/document/4243...ment-Complaint

Can somebody RECAP or post the pdf (if they haven't already) TIA!

[curtisfong]

Originally Posted by wolfwood

California filed its summary judgement

https://pdfhost.io/v/by870NpC5_fouts...nia_msjpdf.pdf

This appears to be a memorandum in support, not a judgement itself, correct?

[Paladin]

Originally Posted by Paladin

10:30am Wednesday!

[BeAuMaN]

Originally Posted by curtisfong

Can somebody RECAP or post the pdf (if they haven't already) TIA!

Done, but you get the next one:
https://www.courtlistener.com/docket...=&order_by=asc

Just PSA: Anyone can setup a PACER account, and if you don't exceed $30 in quarterly charges then you won't be charged.

[ladiver]

For the lazy ones, “Two more weeks”

[command_liner]

Originally Posted by ladiver

For the lazy ones, “Two more weeks”

No, it is two more months, plus two more weeks. 5X :

[Paladin]

What’s next in this case and approximately when?
(Skip lame “two weeks” jokes. That was originally used by us against the antis, not against ourselves. That’s why there’s even a CGN smilies for it.)

[Dano2467]

So what happened? saw this on https://www.courtlistener.com/docket...uts-v-becerra/


Mar 18, 2021

Minute Order issued by the Honorable Roger T. Benitez: Submitting 21 MOTION for Summary Judgment, 22 MOTION for Summary Judgment . Court to issue written Order. Motion Hearing date of 3/24/2021 is hereby vacated. (no document attached) (gxr) (Entered: 03/18/2021)

Main Doc*ument

~Util - Terminate Motion and R&R Deadlines/Hearings AND ~Util - Motions Submitted AND Order on Motion for Summary Judgment AND Order on Motion for Summary Judgment

[mit31]

Procedural? The order on 3/17 seems more informative:

ORDER: (1) Granting 33 Motion to Joint Motion Amend Scheduling Order; and (2) Issuing Scheduling Order. Final Pretrial Conference reset for 7/19/2021 10:30 AM before Judge Roger T. Benitez. Memorandum of Contentions of Fact and Law now due by 6/21/2021. Proposed Pretrial Order now due by 7/12/2021. Signed by Magistrate Judge Jill L. Burkhardt on 3/17/2021. (mme) (Entered: 03/17/2021)

Originally Posted by Dano2467

So what happened? saw this on https://www.courtlistener.com/docket...uts-v-becerra/


Mar 18, 2021

Minute Order issued by the Honorable Roger T. Benitez: Submitting 21 MOTION for Summary Judgment, 22 MOTION for Summary Judgment . Court to issue written Order. Motion Hearing date of 3/24/2021 is hereby vacated. (no document attached) (gxr) (Entered: 03/18/2021)

Main Doc*ument

~Util - Terminate Motion and R&R Deadlines/Hearings AND ~Util - Motions Submitted AND Order on Motion for Summary Judgment AND Order on Motion for Summary Judgment