1 bill lockyer attorney general ofthe state ofcalifornia...

1 BILL LOCKYERAttorney General of the State of California

2 LOUIS R. MAUROActing Senior Assistant Attorney General

3 DOUGLAS J. WOODSDeputy Attorney General

4 State BarNo. 1615311300 I Street

5 P.O. Box 944255Sacramento, CA 94244-2550

6 Telephone: (916) 324-4663Fax: (916) 324-5567

7 Attorneys for Defendants ATTORNEY GENERALBILL LOCKYER, the STATE OF CALIFORNIA, and

8 CALIFORNIA DEPARTMENT OF JUSTICE

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10 SUPERIOR COURT OF CALIFORNIA

11 COUNTY OF FRESNO

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13 EDWARD W. HUNT, in this official capacity as CASE NO.: O1CECGO3182District Attorney of Fresno County, and in his

14 personal capacity as a citizen and taxpayer, et al., DEFENDANTS’ DEMURRERTO PLAINTIFFS’ AMENDED

15 Plaintiffs, COMPLAINT

16 V. Date: January 23, 2003Time: 3:30p.m.

17 STATE OF CALIFORNIA, et al., Dept: 72

18 Defendants. Before the Hon. Stephen J. Kane

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20 Defendants Attorney General Bill Lockyer, the State of California, and California

21 Department of Justice, hereby demur to plaintiffs’ Amended Complaint under Code of Civil

22 Procedure section 43 0.10(e) on the ground that plaintiffs’ Amended Complaint fails to state facts

23 sufficient to state a cause of action. Plaintiffs’ have failed to, and cannot, allege facts sufficient to

24 constitute a cause of action for the independent reasons that:

25 (1) Plaintiffs cannot allege that the challenged assault weapons provisions are

26 unconstitutionally vague on their face or as applied; and

27 (2) Each alleged substantive challenge to the assault weapons provisions is without met as

28 amatter of law.1

Motion for Demurrer to Plaintiffs’ First Amended Complaint

1 Wherefore, defendants pray that:

2 (a) This demurrer be sustained without leave to amend;

3 (b) The Amended Complaint be dismissed;

4 (c) Judgment be entered in favor of defendants;

5 (d) Defendants be awarded their attorneys’ fees and costs of suit; and

6 (e) For all other relief that the Court may deem proper.

7 Dated: December 12, 2002

8 Respectfully submitted,


10 LOUIS R. MAURO

11Acting Senior Assistant Attorney General

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14 Attorneys for Defendants ATTORNEYGENERAL BILL LOCKYER, the STATE OF

15 CALIFORNIA, and CALIFORNIADEPARTMENT OF JUSTICE

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Motion for Demurrer to Plaintiffs’ First Amended Complaint

DECLARATION OF SERVICE BY OVERNIGHT COURIER

Case Name: HUNT, eta! v. STATE OF CALIFORNIA, eta!

No.: Fresno County Superior Court No. 01 CE CG 03182

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar at which membe?s direction this service is made. I am 18 years of age or olderand not apartyto this matter; my business address is: 13001 Street, P.O. Box 944255, Sacramento,California 94244-25 50.

7On December 12. 2002,1 served the attached DEFENDANTS’ DEMURRER TO PLAINTIFFS’AMENDED COMPLAINT by placing a true copy thereof enclosed in a sealed envelope withpostage thereon fully prepaid with the California Overnight Service addressed as follows:

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Stephen P. Halbrook, Esq.10560 Main Street, Suite 404Fairfax, VA 22030

I declare under penalty of perjury under the laws of the State of California the foregoing is true andcorrect and that this declaration was executed on December 12, 2002, at Sacramento, California.

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C. D. MichelTRUTANICH MICHEL LLP407 North Harbor BoulevardSan Pedro, CA 90731

Don B. KatesBENENSON & KATES22608 North East 269th AvenueBattleground, WA 98604

JO FARRELL

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Declarant

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2 LOUIS R. MAIJROActing Senior Assistant Attorney General


4 State BarNo. 1615311300 I Street


6 Telephone: (916) 324-4663Fax: (916) 324-5567



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11 COUNTY OF FRESNO

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______________________________________________

13 EDWARD W. HUNT, in this official capacity as CASE NO.: O1CECGO3 182District Attorney of Fresno County, and in his

14 personal capacity as a citizen and taxpayer, et al., DEFENDANTS’ DEMURRERTO PLAINTIFFS’ AMENDED

15 Plaintiffs, COMPLAINT

16 V. Date: January 23, 2003Time: 3:30p.m.

17 STATE OF CALIFORNIA, et al., Dept: 72

18 Defendants. Before the Hon. Stephen J. Kane

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20 Defendants Attorney General Bill Lockyer, the State of California, and California

21 Department of Justice, hereby demur to plaintiffs’ Amended Complaint under Code of Civil

22 Procedure section 43 0.10(e) on the ground that plaintiffs’ Amended Complaint fails to state facts

23 sufficient to state a cause of action. Plaintiffs’ have failed to, and cannot, allege facts sufficient to

> 24 constitute a cause of action for the independent reasons that:

25 (1) Plaintiffs cannot allege that the challenged assault weapons provisions are

26 unconstitutionally vague on their face or as applied; and

27 (2) Each alleged substantive challenge to the assault weapons provisions is without merit as

28 amatteroflaw.

1Motion for Demurrer to Plaintiffs’ First Amended Complaint

1 Wherefore, defendants pray that:

2 (a) This demurrer be sustained without leave to amend;

3 (b) The Amended Complaint be dismissed;

4 (c) Judgment be entered in favor of defendants;

5 (d) Defendants be awarded their attorneys’ fees and costs of suit; and

6 (e) For all other relief that the Court may deem proper.





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14 Attorneys for Defendants ATTORNEYGENERAL BILL LOCKYER, the STATE OF15 CALTFORNIA, and CALfFORNIADEPARTMENT OF JUSTICE16

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2Motion for Demurrer to Plaintiffs’ First Amended Complaint


2 Case Name: HUNT, et al V. STATE OF CALIFORNIA, et a!


4 I declare:

I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar at which member’s direction this service is made. I am 18 years ofage or olderand not a party to this matter; my business address is: 13001 Street, P.O. Box 944255, Sacramento,California 94244-2550.

7On December 12. 2002,1 served the attached DEFENDANTS’ DEMURRER TO PLAINTIFFS’AMENDED COMPLAINT by placing a true copy thereof enclosed in a sealed envelope withpostage thereon fully prepaid with the California Overnight Service addressed as follows:

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Stephen P. Haibrook, Esq.10560 Main Street, Suite 404Fairfax, VA 22030


Sign’ature

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C. B. MichelTRUTAMCH MICHEL LLP407 North Harbor BoulevardSan Pedro, CA 90731


JO FARRELL

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Declarantjf L



3 DOUGLAS J.WOODSDeputy Attorney General

4 State Bar No. 1615311300 I Street


6 Telephone: (916) 324-4663Fax: (916) 324-5567



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11 COUNTY OF FRESNO -

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_______________________________________________

13 EDWARD W. HUNT, in this official capacity as CASE NO.: O1CECGO3 182District Attorney of Fresno County, and in his14 personal capacity as a citizen and taxpayer, et al., NOTICE OF DEMURRER TO

PLAINTIFFS’ AMENDED15 Plaintiffs, COMPLAINT

16 v. Date: January 23, 2003Time: 3:30p.m.

17 STATE OF CALIFORNIA, et a!., Dept: 72

18 Defendants. Before the Hon. Stephen I. Kane

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20 TO PLAINTIFFS AND THEIR COUNSEL OF RECORD:

21 PLEASE TAKE NOTICE that the Demurrer ofdefendants Attorney General Bill Lockyer,

22 the State of California, and California Department of Justice has been scheduled for hearing on

23 January 23, 2003, at 3:30 p.m., or as soon thereafter as the matter maybe heard in Department 72

24 of the above-entitled court, located at 1100 Van Ness Avenue, Fresno, California.

25 The Demurrer will be based on this Notice, the Demurrer, the Memorandum ofPoints and

26 Authorities in support of the Demurrer (all served and filed herewith), plaintiffs’ Amended

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1Notice of Demurrer to Plaintiffs’ Amended Complaint

1 Complaint on file herein, and on such further evidence and arguments of counsel as may be

2 presented at the hearing of the motion.




6 LOUIS R. MAURO

7Acting Senior Assistant Attorney General

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10 Attorneys for Defendants ATTORNEYGENERAL BILL LOCKYER, the STATE OF11 CALIFORNIA, and CALIFORNIADEPARTMENT OF JUSTICE12

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2Notice of Demurrer to Plaintiffs’ Amended Complaint

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I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar at which member’s direction this service is made. I am 18 years of age or olderand not a party to this matter; my business address is: 1300 I Street, P.O. Box 944255, Sacramento,California 94244-2550.

On December 12, 2002, I served the attached NOTICE OF DEMURRER TO PLAINTIFFS’AMENDED COMPLAINT by placing a true copy thereof enclosed in a sealed envelope withpostage thereon fully prepaid with the California Overnight Service addressed as follows:

Stephen P. Haibrook, Esq.10560 Main Street, Suite 404Fairfax, VA 22030


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JO FARRELL

DeclarantJ( L L

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Case Name: HUNT, eta! v. STATE OF CALIFORNIA, et al


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BILL LOCKYERAttorney General of the State of CaliforniaLOUIS R. MAUROSupervising Deputy Attorney GeneralDOUGLAS J. WOODSDeputy Attorney GeneralState Bar No. 161531

1300 I StreetP.O. Box 944255Sacramento, CA 94244-25 50Telephone: (916) 324-4663Fax: (916) 324-8835

Attorneys for Defendants ATTORNEY GENERALBILL LOCKYER, the STATE OF CALIFORNIA, andCALIFORNIA DEPARTMENT OF JUSTICE

EDWARD W. HUNT, in his official capacityas District Attorney of Fresno County, and inhis personal capacity as a citizen andtaxpayer, et al.,

Plaintiffs,

Defendants.

CASE NO: O1CECGO3182

DEFENDANTS’ MEMORANDUM OFPOINTS AND AUTHORITIES INSUPPORT OF DEMURRER TOPLAINTIFFS’ AMENDEDCOMPLAINT

SUPERIOR COURT OF CALIFORNIA

COUNTY OF FRESNO

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V.

STATE OF CALIFORNIA, et al.,Date:Time:Dept:

January 23, 20033:30 p.m.72

Before the Hon. Stephen J. Kane

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1 TABLE OF CONTENTS

2 Page

3 INTRODUCTION 1

4 STATUTORY AND REGULATORY FRAMEWORK 3

5 PLAINTIFFS’ ALLEGATIONS 5

6 ARGUMENT 8

7 A. Plaintiffs Cannot State A Claim To Enjoin Enforcement OfThe AssaultWeapons Law Based On A General Constitutional Vagueness

8 Challenge. 8

9 1. Plaintiffs Cannot Allege That The Challenged Provisions AreUnconstitutionally Vague On Their Face. 8

102. Plaintiffs Cannot Allege That The Challenged Provisions Are

11 Unconstitutionally Vague As Applied. 11

12 B. Each Alleged Substantive Challenge To The Assault WeaponsProvisions Is Without Merit As A Matter Of Law. 13

131. Plaintiffs’ Contention That The Definition Of “Flash

14 Suppressor” Is Vague In Without Merit. 13

15 2. Plaintiffs’ Contention That The Threaded Barrel CapabilityProvision Is Vague Is Without Merit. 16

163. Plaintiffs’ Contention That The “Large-Capacity Magazine”

17 Provision Is Vague Is Without Merit. 17

18 4. Plaintiffs’ Allegation That Defendants Are Required ToApply DOJ’s Regulation Defining “Detachable Magazine”

19 Assumes A Dispute That Does Not Exist, Even In TheAbstract. 18

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21 CONCLUSION 19

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Memorandum in Support of Demurrer. to Amended Complaint

1 TABLE OF AUTHORITIES

2 Page

3 Cases

4 Dyna-Med, Inc. v. Fair Employment & Housing Comm.,43 Cal. 3d 1379 (1987) 14

5Harrott v. County ofKings,

6 25 Cal. 4th 1138 (2001) 10

7 Hoffman Estates v. Flipside, Hoffman Estates, Inc.,455 U.S. 489 (1982) 8, 9

8In reJorgeM.,

9 23 Cal. 4th866 (2000) 10

10 InreDylanT.,65 Cal. App. 4th 765 (1998) 14

11Owens v. Kings Supermarket,

12 198Ca1.App.3d379(1988) 9

13 Peoplev. Woodhead,43Cal.3d1002(1987) 14

14People’s Rights Organization v. City of Columbus,

15 152 F.3d 522 (6th Cir. 1998) 11

16 Traverso v. People ex rel Department of Transportation,6Cal.4th1152(1993) 14

17Waste Management ofAlameda Co., Inc. v. Alameda County,

18 79 Cal. App. 4th1223 (2000) 12

19 Statutes

20 California Code of Regulations,Title 11,

21§ 978.20 4, 18

22§ 978.20(a) 7

23§ 978.20(b) 5

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25 Code of Civil Procedure

26 § 430.10(e) 1

27 § 526a 8, 12

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Memorandum in Support of Demurrer to Amended Complaint

TABLE OF AUTHORITIES (continued)

1Page

2 Government Code

§ 11342.2 15

Penal Code

§ 12020 5, 14

6§ 12020(c)(1)(A) 14

§ 12020(c)(1)(B) 14

8§ 12020(c)(1)(E) 14

§ 12020(c)(2)(E) 14

10§ 12020(c)(4) 14

11§ 12020(c)(9) 14

12§ 12020(c)(10) 14

13§ 12020(c)(25) 6, 17

14§ 12020(c)(25)(A) 7

15§ 12276 3-5

16§ 12276.1 3-5, 14

17§ 12276.1(a)(4)(A) 6

18§ 12276.1(e) 16

19§ 12276.1(b) 16

20§ 12280 4, 5

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22 United States Code,Title 42,

23 §1983 724

25 Other Authorities

26 Webster ‘s New World Dictionary,Third College Ed., 1988. 18

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2 LOUIS R. MAUROSupervising Deputy Attorney General


4 State BarNo. 1615311300 IStreet


6 Telephone: (916) 324-4663Fax: (916) 324-8835




10 COUNTY OF FRESNO

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______________________________________________________

12 EDWARD W. HUNT, in his official capacity CASE NO.: O1CECGO3 182as District Attorney of Fresno County, and in

13 his personal capacity as a citizen and DEFENDANTS’ MEMORANDUM OFtaxpayer, et al., POINTS AND AUTHORITIES IN

14 SUPPORT OF DEMURRER TOPlaintiffs, PLAINTIFFS’ AMENDED

15 COMPLAINTV.

16 Date: January 23, 2003STATE OF CALIFORNIA, et al., Time: 3:30 p.m.

17 Dept: 72Defendants.

18 Before the Hon. Stephen J. Kane

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20 Defendants Attorney General Bill Lockyer, the State of California, and the California

21 Department of Justice (“DOJ”) hereby submit this memorandum in support of their demurrer to

22 plaintiffs’ Amended Complaint in this action pursuant to Code ofCivil Procedure section 430.10(e).

23 Plaintiffs have failed to, and cannot, allege facts sufficient to constitute a cause of action.

24 I.

25 INTRODUCTION

26 In denying plaintiffs’ motion for preliminary injunction on April 16th earlier this year, this

27 Court ruled: “The day may come when an actual criminal prosecution will present a court with

28 vagueness challenges to the enforceability of the [Assault Weapons Control] Act (or specified1


1 regulations on which the prosecution depends) which the court will have to decide. However, this

2 is not that case.” Order Denying Request for Preliminary Injunction (“Or.”), p. 5:19-23 (emphasis

3 added). Eight months later, and notwithstanding plaintiffs’ amendments to their Complaint, this case

4 remains “not that case.

5 Plaintiffs have made no changes to their allegations that are of any substance. Just as in

6 their original Complaint, plaintiffs challenge in their Amended Complaint the Penal Code provisions

7 established by Senate Bill 23, Chapter 129 of the Statutes of 1999 (“SB 23”), and the package of

8 regulations promulgated in support of SB 23. SB 23 for the first time defined assault weapons by

9 reference to objective design characteristics, in addition to the existing list of assault weapons

10 already identified in the Penal Code by manufacturer and model. Also just as in their original

11 Complaint, conspicuously absent from plaintiffs’ allegations in the Amended Complaint is any

12 mention of any actual instance in which a particular firearm was the subject of enforcement that

13 would call the challenged assault weapons provisions into question. The original plaintiffs are the

14 District Attorney of Fresno County, the former Oakdale Chief of Police, the Law Enforcement

15 Alliance ofAmerica, California Sporting Goods Association, Inc., and a Fresno firearms dealer. The

16 additional plaintiffs are now the District Attorney of Mendocino County, the California Rifle and

17 Pistol Association, and four anonymous firearms owners. Plaintiffs thus now include two district

18 attorneys, a former chief of police, a law enforcement alliance including within its ranks law

19 enforcement officers in California, an association dedicated to preserving and expanding gun

20 ownership rights, an association of California-based firearms dealers, distributors, and

21 manufacturers’ representatives, a firearms dealer, and four anonymous firearms owners, all ofwhom

22 are urging this Court to prohibit enforcement of existing assault weapons provisions. Yet,

23 collectively, plaintiffs have not come up with a single instance in which a particular firearm was the

24 subject of enforcement that in their view would demonstrate the allegedly Constitutional

25 shortcomings of the challenged assault weapons provisions. As a matter of law, plaintiffs cannot

26 obtain the advisory opinion they seek.

27 In addition, plaintiffs’ allegations in their Amended Complaint suffer from the same

28 substantive shortcomings identified by defendants with respect to the original Complaint in the

2Memorandum in Support of Demurrer to Amended Complaint

1 course of the preliminary injunction opposition briefing. Plaintiffs’ same substantive criticisms of

2 the provisions in question continue to amount only to policy disagreements with the Legislature as

3 to what the assault weapons laws should be. Plaintiffs’ mere addition ofmore plaintiffs and ‘new”

4 labels for their existing claims fails to resolve the deficiencies in their claims identified by

5 defendants and the Court in the course of the proceedings on the preliminary injunction motion.

6 Plaintiffs’ claims were and are flawed in multiple respects. Plaintiffs’ new round of

7 unsuccessful efforts to plead sufficient claims in their Amended Complaint demonstrate that they

8 cannot amend their allegations to present a proper claim. The issues raised by plaintiffs’ allegations

9 may eventually perhaps be properly joined in a suitable criminal proceeding, but as the Court has

10 already ruled: this is not that case. Defendants request that this Court sustain their demurrer to

11 plaintiffs’ Amended Complaint without leave to amend.

12 II.

13 STATUTORY AND REGULATORY FRAMEWORK

14 The relevant portions of the applicable Penal Code provisions are as follows:

15 § 12276.1. Assault weapon; further definition

16 (a) Notwithstanding Section 12276, assau1t weapon? shall also mean any of thefollowing:

17(1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable

18 magazine and any one of the following:

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20 (B) A flash suppressor.

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22 (4) A semiautomatic pistol that has the capacity to accept a detachable magazine and anyone of the following:

23(A) A threaded barrel, capable of accepting a flash suppressor, forward handgrip, or

24 silencer.

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26 (b) The Legislature finds a significant public purpose in exempting pistols that aredesigned expressly for use in Olympic target shooting events. Therefore, those pistols that

27 are sanctioned by the International Olympic Committee and by USA Shooting, thenational governing body for international shooting competition in the United States, and

28 that are used for Olympic target shooting purposes at the time the act adding this


1 subdivision is enacted, and that would otherwise fall within the definition of “assaultweapon” pursuant to this section are exempt, as provided in subdivision (c).

2(c) “Assault weapon” does not include either of the following:

3(1) Any antique firearm.

4(2) Any of the following pistols, because they are consistent with the significant public

5 purpose expressed in subdivision (b): [specified]

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7 Penal Code § 12276.1.

8 In addition, the relevant portions of the assault weapons definitions contained in the

9 California Code of Regulations are as follows:

10 § 978.20. Definitions

11 The following definitions apply to terms used in the identification ofassault weaponspursuant to Penal Code section 12276.1:

12(a) “detachable magazine” means any ammunition feeding device that can be

13 removed readily from the firearm with neither disassembly of the firearm action nor useof a tool being required. A bullet or ammunition cartridge is considered a tool.

14 Ammunition feeding device includes any belted or linked ammunition, but does notinclude clips, end bloc clips, or stripper clips that load cartridges into the magazine.

15(b) “flash suppressor” means any device designed, intended, or that functions to

16 perceptibly reduce or redirect muzzle flash from the shooter’s field of vision.

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18 California Code of Regulations, Title 11, § 978.20.

19 These provisions defining assault weapons by virtue of their characteristics, in addition

20 to the identification of assault weapons by manufacturer and model in Penal Code section 12276,

21 come into play by virtue ofPenal Code section 12280, which prohibits the possession, manufacture,

22 distribution, transportation, importation, sale, gift, or loan of assault weapons, except where the

23 assault weapon is registered with DOJ or where a valid assault weapon permit has been issued by

24 DOJ.

25 In addition, plaintiffs seek to challenge by this action another Penal Code provision

26 established by SB 23, which is in the same spirit as the assault weapon definition by reference to

27 objective characteristic (i.e., prohibiting sale or transfer of”large-capacity” magazines), but which,

28 truly speaking, is a provision separate from and independent of the defined assault weapon4


1 enforcement framework consisting of sections 12276, 12276.1, and 12280. The relevant portions

2 of the “large-capacity” magazine Penal Code prohibition are as follows:

3 § 12020. Manufacture, import, sale, supply or possession of certain weapons andexplosives; punishment; exceptions; definitions I

4(a) Any person in this state who does any ofthe following is punishable by imprisonment

5 in a county jail not exceeding one year or in the state prison:

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7 (2) Commencing January 1, 2000, manufactures or causes to be manufactured, importsinto the state, keeps for sale, or offers or exposes for sale, or who gives, or lends, any

8 large-capacity magazine.

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10 (c)(25) As used in this section, “large-capacity magazine” means any ammunition feedingdevice with the capacity to accept more than 10 rounds, but shall not be construed to

11 include any of the following:

12 (A) A feeding device that has been permanently altered so that it cannot accommodatemore than 10 rounds.

13(B) A .22 caliber tube ammunition feeding device.

14(C) A tubular magazine that is contained in a lever-action firearm.

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16 Penal Code § 12020.

17 III.

18 PLAINTIFFS’ ALLEGATIONS

19 Just as plaintiffs alleged in their original Complaint and argued in their preliminary

20 injunction motion, plaintiffs allege in their Amended Complaint that the regulatory definition of

21 “flash suppressor” is unconstitutionally vague. Am. Compl., ¶J 37-57; see California Code of

22 Regulations, Title 11, § 978.20(b). In particular, plaintiffs disagree with the regulatory language that

23 serves to include within the “flash suppressor” definition devices thatfunction to perceptibly reduce

24 or redirect muzzle flash from the shooter’s field of vision. Am. Compi., ¶ 41. Plaintiffs want the

25 definition to include only devices designed or intended to reduce flash. Am. Compl., ¶ 46. Plaintiffs

26 also complain that the definition should not include devices that redirect muzzle flash from the

27 shooter’s field of vision, but only devices that reduce muzzle flash. Am. Compl., ¶ 42. Plaintiffs

28 complain that the regulatory definition is subject to uncertainty based on varying definitions in


1 firearms industry reference sources (Am. Compl., ¶ 39), an absence of standards for determining

2 what is “perceptible (Am. Compl., ¶ 44), and alleged difficulties in comparison testing devices (Am.

3 Compl., ¶J 50-54).


5 injunction motion, plaintiffs allege in their Amended Complaint that the statutory assault weapon

6 designation of any semiautomatic pistol with the capacity to accept a detachable magazine and a

7 “threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer” is

8 unconstitutionally vague. Am. Compl., ¶J 58-63; see Penal Code § 12276.1 (a)(4)(A). In particular,

9 plaintiffs allege that there are very few civilian pistols that have threaded barrels that will accept such

10 devices, and that generally the only civilian pistols having threaded barrels are Olympic and other

11 competition pistols. Am. Compl., ¶ 59. Plaintiff alleges that owners ofpistols with threaded barrels

12 cannot be expected to know whether there exists somewhere in the world a flash suppressor, forward

13 handgrip, or silencer that will fit the threads of their pistols. Am. Compl., ¶ 60. Plaintiffs want the

14 statute to be interpreted to allow prosecution only if (1) the defendant has actual knowledge that

15 there is a flash suppressor, forward handgrip, or silencer that fits the threaded barrel of the pistol

16 possessed or (2) the defendant reasonably should have known of that based on actual knowledge of

17 other arcane facts so indicating. Am. Compi., ¶J 61-63.


19 injunction motion, plaintiffs allege in their Amended Complaint that the statutory definition of

20 “large-capacitymagazine” (as “any ammunition feeding device with the capacity to accept more than

21 10 rounds”) is unconstitutionally vague. Am. Compi., ¶J 64-75; see Penal Code § 12020(c)(25).

22 In particular, plaintiffs allege that shotguns that have a capacity for only six standard 2.75 inch

23 rounds may be able to take 11 or more 1.5 inch rounds made by an obscure Mexican ammunition

24 company. Am. Compi., ¶J 66-67. Plaintiffs want the statute to be interpreted as applicable only to

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6V Memorandum in Support of Demurrer to Amended Complaint

1 whatever magazine capacity the manufacturer designed, advertised, and sold the firearm as having.

2 Am. Compi., ¶ 69.


4 injunction motion, plaintiffs allege in their Amended Complaint that they are not sure defendants

5 will apply the regulatory definition of “detachable magazine” in light of correspondence between

6 plaintiffs’ counsel and defendants. Am. Compi., ¶J 81-83, 86-87; see California Code of

7 Regulations, Title 11, § 978.20(a). Plaintiffs allege that they asked DOJ if a detachable magazine

8 would no longer be considered detachable under the regulation if it were attached to the firearm by

9 means ofa screw through the magazine release. Am. Compi., ¶ 81. Plaintiffs allege that DOJ stated

10 in response that such a technique would render the magazine non-detachable under the regulatory

11 definition, but proceeded to state that such an alteration would violate the spirit, if not the letter, of

12 the assault weapons law. Am. Compl., ¶ 82, Exs. 27-28. Plaintiffs want defendants to enforce the

13 regulatory definition. Am. Compi., ¶ 83.

14 Aside from miscellaneous wording changes, plaintiffs’ new allegations added since the

15 Court’s preliminary injunction ruling consist of (1) the addition as plaintiffs of four anonymous

16 firearms owners, the Meñdocino County District Attorney, and another firearms association, (2) the

17 addition of styling of their claims as under 42 U.S.C. section 1983, the United States and California

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191. Plaintiffs also complain, as they have previously, of alleged uncertainty in the

20 “permanent alteration” exception to the large-capacitymagazineprohibition. Am. Compl., ¶J 70-75.Although an owner of a large-capacity magazine can avoid violation ofthe large-capacity magazine

21 prohibition by “permanently altering” the magazine to limit its capacity (Penal’ Code

22 § 12020(c)(25)(A)), plaintiffs complain that the exception has no application at all “[i]f construedover-literally.. . . Alterations of metal and plastic objects are always subject to reversal, given the

23 necessary time, expertise, resources, and specialized tools and equipment.” Am. Compl., ¶ 72.

24 2. In a similar vein, plaintiffs allege that other DOJ correspondence creates additionaluncertainty with respect to the definitions of”flash suppressor” and “large-capacity magazine.” Am.

25 Compl., ¶J 56, 76-80, 84-87. In the context of these two categories, however, plaintiffs’ complaint

26is that DOJ’s correspondence would appear to allow departure by plaintiffs from the statutory andregulatory definitions of these terms. Because plaintiffs do not favor the “flash suppressor” and

27 “large-capacity magazine” definitions and indeed would welcome the alleged departure, plaintiffsask that the Court invalidate the definitions, rather than require defendants to adhere to them.

28 Am. Compi., ¶J 80, 87.7


1 •Constitutions, and Code of Civil Procedure section 526a, and (3) the addition that the challenged

2 definition of “flash suppressor” is alleged to be unconstitutionally vague in all of its applications

3 (Am. Comp., ¶ 48). Because none ofthe changes have resolved the deficiencies in plaintiffs’ claims

4 previously identified by defendants and this Court, defendants request that the Court sustain this

5 demurrer without leave to amend.

6 IV.

7 ARGUMENT

8 A. Plaintiffs Cannot State A Claim To Enjoin Enforcement Of The Assault WeaponsLaw Based On A General Constitutional Vagueness Challenge.

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10 1. Plaintiffs Cannot Allege That The Challenged Provisions AreUnconstitutionally Vague On Their Face.

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12 In evaluating a claim that legislation is unconstitutionally vague on its face, where First

13 Amendment rights are not implicated a court “should uphold the challenge only fthe enactment is

14 impermissibly vague in all ofits applications.” Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

15 455 U.S. 489,495 (1982) (emphasis added) (reversingjudgment granting declaratory and injunctive

16 relief in pre-enforcement facial challenge to drug paraphernalia ordinance). In support ofits holding

17 in Hoffman Estates, the United States Supreme Court explained: “A plaintiffwho engages in some

18 conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the

19 conduct of others. A court should therefore examine the complainant’s conduct before analyzing

20 other hypothetical applications of the law.” Hoffman Estates, 455 U.S. at 495 (footnote omitted).

21 In the present case, this Court has already ruled on plaintiffs’ preliminary injunction motion that

22 “there does not appear to be a reasonable likelihood that plaintiffs will prevail at trial,” and based

23 its determination in part on the requirement that “a challenge based on vagueness is more

24 appropriately made when the contention is that the enactment is vague in all ofits applications.” Or.,

25 p. 4:13-21 (citing Hoffman Estates). Plaintiffs did not and cannot correct this pleading deficiency.

26 With respect to three of the four challenged assault weapons provisions (threaded barrel

27 capability, “large-capacity magazine” definition, and “detachable magazine” definition), plaintiffs

28 make no pretense of contending that these provisions are vague in all of their applications. Indeed,8


1 plaintiffs either offer to tailor the existing provisions or request new regulations to create

2 interpretations of these three challenged assault weapons provisions that would accommodate the

3 applications plaintiffs favor. See Am. Compl., ¶J 61-63, 69, 75. As to these three provisions,

4 plaintiffs’ facial vagueness challenge is not colorable.

5 With respect to the challenged “flash suppressor” definition, however, plaintiffs do now

6 in their Amended Complaint parrot the words “in all applications” in apparent response to this

7 Court’s citation ofHoffman Estates in its order denying plaintiffs’ motion for preliminary injunction.

8 Am. Compi., ¶J 48, 57. Ironically, the very allegations surrounding this assertion, by which

9 plaintiffs intended to justify it, instead expose it as a sham allegation. Plaintiffs allege that the

10 words in the “flash suppressor” definition that operate to include devices that function to perceptibly

11 reduce or redirect muzzle flash “are fatally vague and uncertain in all their applications since they

12 require testing which the ordinary rifle owner is unable to perform.” Am. Compl., ¶ 48. Plaintiffs

13 go on to allege the difficulty of comparison testing devices for perceptible flash suppression. Am.

14 Compl., ¶J 52-54. Even assuming the truth of plaintiffs’ allegations as to these difficulties, as the

15 Court must for the purpose of this demurrer, there is no logical connection between these alleged

16 difficulties and plaintiffs’ resulting allegation that the “flash suppressor” definition is thus vague in

17 all of its applications. The gap in the logic is that there is no (and could be no) basis for plaintiffs’

18 assumption that a firearm owner must be able to perform comparison testing upon his particular

19 firearm in order to reasonably know whether a device perceptibly reduces or redirects flash.

20 For example, if a firearm owner is told by a firearms dealer or even a credible friend that

21 a device perceptibly reduces or redirects flash, or ifhe reads such information in authoritative general

22 industry literature, then obviously even plaintiffs would acknowledge that the flash suppressor

23 definition would not be vague in application to the firearm owner in such circumstances. Even if

24 not designed or intended by the manufacturer to perceptibly reduce or redirect flash, a firearm owner

25 in such circumstances would reasonably know the device functions to perceptibly reduce or redirect

26

27 3. See Owens v. Kings Supermarket, 198 Cal. App. 3d 379, 384 (1988) (demurrer to newcomplaint sustained without leave to amend where no satisfactory explanation for new allegation

28 made solely for purpose of avoiding demurrer).9


1 flash and would be fairly subject to prosecution. For the purpose of disposing of plaintiffs’ facial

2 challenge to the flash suppressor definition, there is thus no need to reach a dispute as to the ability

3 of a firearm owner to personally accomplish comparison testing; personal comparison testing is

4 simply one of many conceivable ways by which a firearm owner may reasonably know whether a

5 device perceptibly reduces or redirects flash.

6 Plaintiffs’ vagueness challenge to the flash suppressor definition fails to recognize the

7 import of the mens rea requirement applicable to assault weapons prosecutions. The California

8 Supreme Court has determined that there is a mens rea requirement applicable to assault weapons

9 prosecutions such that: “The People bear the burden of proving the defendant knew or reasonably

10 should have known the firearm possessed the characteristics bringing it within the AWCA.” In re

11 Jorge M, 23 Cal. 4th 866, 887 (2000). As a result of the existence of this mens rea requirement, if

12 unknown circumstances that would technically make a firearm an assault weapon are sufficiently

13 extraordinary that it would be unreasonable to expect knowledge of them, an element of the crime

14 is not met, and the crime cannot be prosecuted. Plaintiffs’ personal comparison testing allegations

15 offered in ostensible support of their assertion that the flash suppressor definition is vague in all of

16 its applications is a product of plaintiffs’ confusion of the analytically independent inquiries of

17 (1) whether the expectation is reasonable that the criminal provisions will be understood

18 (Constitutional vagueness analysis) and (2) whether the expectation is reasonable that a firearm

19 owner would know what facts exist that would render his firearm an assault weapon pursuant to the

20 criminal provision (mens rea requirement analysis at trial). A reasonable person can understand the

21 law (no due process problem) without knowing obscure facts (no mens rea, and no prosecution).

22

234. Legislation will not be considered unconstitutionally vague unless it fails “to give a

24 person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Harrott v.County ofKings, 25 Cal. 4th 1138, 1151(2001). Plaintiffs do not and cannot make any allegation

25 that the words of the challenged flash suppressor definition are themselves not reasonably

26 understandable. The examples above illustrate obvious instances in which a firearm owner wouldreasonably know that his device falls within the definition of what is prohibited.

275. This failure also infects plaintiffs’ challenges to the other assault weapons provisions

28 as described below.10


1 Plaintiffs’ personal comparison testing argument is an argument best left to criminal defense counsel

2 to raise in the context of a particular criminal prosecution. As illustrated by the examples above,

3 plaintiffs’ cannot allege that any alleged difficulty in personal comparison testing renders the 1lash

4 suppressor definition vague in all applications.

5 Plaintiffs thus cannot allege that the assault weapons provisions challenged by this

6 plaintiffs in this action are unconstitutionally vague on their face.

7 2. Plaintiffs Cannot Allege That The Challenged Provisions AreUnconstitutionally Vague As Applied.

8

9 Unable to allege that the challenged assault weapons provisions are unconstitutionally

10 vague on theirface (i.e., in all applications), plaintiffs’ only other option would be to allege that the

11 challenged provisions are unconstitutionally vague as applied. Plaintiffs have not made any such

12 allegation, and presumably cannot.

13 As this Court noted in denying plaintiffs’ motion for preliminary injunction, “Where the

14 challenged statute imposes criminal penalties, it is not always necessary that the plaintiffs prove an

15 arrest or prosecution in order to obtain declaratory relief. However, ‘the plaintiffmust demonstrate

16 actual present harm or a significant possibility of future harm to justify pre-enforcement relief.” Or.,

17 p. 2:19-25 (omitting citations to People’s Rights Organization v.. City ofColumbus, 152 F.3d 522,

18 527 (6th Cir. 1998)). Plaintiffs have not alleged any actual present harm or any significant

19 possibility of future harm in this case. As this Court found in denying plaintiffs’ motion for

20 preliminary injunction: “The challenged regulations have been in effect since December of 2000.

21 Plaintiffs did not file their motion for injunction until the end of February 2002. This chronology

22 implies that plaintiffs are not facing immediate harm. Since plaintiffs have not been harmed since

23 December of2000, the Court is unable to accept plaintiffs contention that there is imminent danger

24 of their being prosecuted under the AWCA.” Or., p. 3:12-18. Now eight months after defendants

25 challenged (and this Court recognized) plaintiffs’ failure to identify a single instance of allegedly

26 questionable enforcement, and now two years after the adoption of the challenged regulations,

27 plaintiffs’ Amended Complaint contains no allegation of any instance in which a particular firearm

28 was the subject of enforcement (or even threatened enforcement) that in plaintiffs’ view would


1 demonstrate the allegedly Constitutional shortcomings ofthe challenged assault weapons provisions.

2 The lesson of the preliminary injunction proceedings was that the day may come when an actual

3 criminal prosecution will present a court with vagueness challenges to the enforceability o the

4 assault weapons provisions that plaintiffs attempt to challenge here, but that “this is not that case.”

5 Plaintiffs’ amendments to their allegations now contained in their Amended Complaint

6 do not operate to correct this pleading deficiency. With respect to plaintiffs’ addition of the new

7 plaintiffs, including the four anonymous individual firearm owners, plaintiffs explained their reason

8 for adding the new participants as “to clarify and strengthen the allegations concerning the standing

9 of businesses and individual gun owners to challenge the constitutionality of the regulation, and of

10 the statutes embraced in SB23.” Pis.’ Motion for Leave to File First Amended Complaint, p. 5:1-5.

11 Because defendants’ did not (and do not by this demurrer) challenge plaintiffs’ claims on standing

12 grounds, however, the amendment is misdirected and correspondingly does not resolve the ripeness

13 deficiency identified previously by defendants and this Court and re-presented by this demurrer. See

14 Or.,pp.2:16-3:18,5:19-23.

15 Plaintiffs’ addition of the “taxpayer lawsuit” label under Code of Civil Procedure section

16 526a is likewise ofno avail to plaintiffs. First, these “new” allegations are not really new. Plaintiffs

17 alleged taxpayer standing in their original Complaint (Compi., ¶J 8-11) and argued taxpayer standing

18 extensively in support oftheir motion for preliminary injunction (P is.’ Preliminary Injunction Reply,

19 pp. 1:25-3:7), but to no avail. Second, like the new anonymous plaintiff amendment, the “new”

20 taxpayer lawsuit allegations are misdirected toward standing, rather than the ripeness pleading

21 deficiency. See Pls.’ Motion for Leave to File First Amended Complaint, p. 6:4-6. Even in a

22 taxpayer suit, there must be some actual or threatened action that is the subject of the suit that is

23 sufficient to join the issue. Waste Management ofAlameda Co., Inc. v. Alameda County, 79 Cal.

24 App. 4th 1223, 1240 (2000) (“The taxpayer action must involve an actual or threatened expenditure

25 ofpublic funds. . . . General allegations, innuendo, and legal conclusions are not sufficient. . . rather,

26 the plaintiff must cite specific facts and reasons for a belief that some illegal expenditure or injury

27 to the public fisc is occurring or will occur.”). A taxpayer lawsuit allegation is not an entree to an

28 advisory opinion.


1 Plaintiffs’ Amended Complaint thus does not allege that the challenged provisions are

2 unconstitutionally vague as applied. Because plaintiffs cannot allege that the challenged provisions

3 are unconstitutionally vague on their face or as applied, this Court should sustain defendants’


5 B. Each Alleged SubstantiveChallenge To The Assault Weapons Provisions Is WithoutMerit AsA Matter Of Law.

6

7 Not only do plaintiffs’ amendments fail to overcome the ripeness barrier to plaintiffs’

8 vagueness claims, but they also fail to correct the substantive failings ofeach ofplaintiffs’ challenges

9 to the assault weapons provisions at issue. Defendants refuted each challenge as a matter of

10 substance in the course of opposing plaintiffs’ preliminary injunction motion, and plaintiffs’

11 amendments do not respond to defendants’ arguments. Having been given an opportunity to re-plead

12 their claims, plaintiffs’ failure to allege any proper claims as a matter of substance demonstrates that

13 they cannot do so. On these additional independent grounds, this Court should sustain defendants’


15 1. Plaintiffs’ Contention That The Definition Of “Flash Suppressor” Is VagueIn Without Merit.

16

17 Plaintiffs’ suggestion (Am. Compi., ¶ 39-40) in the first instance that the term “flash

18 suppressor” needs no definition, because it purportedly has an established meaning, and their

19 dissatisfaction with the definition determined by DOJ, is belied by reference to the very industry

20 materials attached as exhibits to plaintiffs’ Amended Complaint. See Am. Compl., ¶ 39, Exs. 6-15.

21 The terms “flash suppressor” and “flash hider” take on similar and dissimilar meanings across all of

22 these materials and are interwoven with discussions of “muzzle brakes” and “compensators.” In

23 particular, plaintiffs’ Exhibit 14 (“The Complete AR-15/M16 Sourcebook”) contains a section

24 entitled “FLASH SUPPRESSORS AND MUZZLE BRAKES,” which states in part that “most

25 modem designs both reduce and compensate for recoil. The trade-off for reduced recoil and

26 compensation often is added noise and flash, though some muzzle brakes do a pretty good job of

27 keeping this to a minimum. Some modem systems try to combine both the muzzle brake and the

28


1 flash hider to have the best of both systems.” It is the absence of any established industry-wide

2 definition of flash suppressor that speaks to the need for a definition by regulation.

3 Plaintiffs’ suggestion (Am. Compi., ¶ 45) that the definition of flash suppressor i an

4 invalid enlargement and distortion of the statutory meaning is without merit. The proposition that

5 terms must be construed according to their ordinary meaning does not provide support for plaintiffs’

6 allegations, as shown by the many ordinary meanings to which the term is susceptible in the absence

7 of the definition in the regulation. Likewise, the rule that statutes cannot be construed to omit from

8 or add to the actual language of the statute operates against plaintiffs’ offered construction, rather

9 than defendants’ regulation, because the statute uses the term “flash suppressor.” It is plaintiffs who

10 want to exclude from that term any devices not intended or designed to suppress flash, even if they

11 do suppress flash.

12 In addition, another canon of statutory construction prevents plaintiffs from suing here to

13 limit the definition of “flash suppressor” to only those devices “intended or designed” to suppress

14 flash. See Am. Compl., ¶J 46,49. Ifnecessary in determining legislative intent, courts may compare

15 statutes on related subjects and look to the presence or absence of common language for guidance.

16 Traverso v. People ex rel Department ofTransportation, 6 Cal. 4th 1152, 1166 (1993); Dyna-Med,

17 Inc. v. Fair Employment & Housing Comm., 43 Cal. 3d 1379, 1387 (1987); People v. Woodhead,

18 43 Cal. 3d 1002, 1010 (1987); In re Dylan T., 65 Cal. App. 4th 765, 774 (1998). Tn Penal Code

19 section 12020, which establishes the unlawful carrying and possession ofweapons in California with

20 extensive definitions, the Legislature limited the definition of particular weapons or particular

21 devices for weapons in at least seven instances by reference to how the weapon or device was

22 “designed” or “intended” to be used. See Penal Code § 12020(c)(1)(A), (c)(1)(B), (c)(1)(E),

23 (c)(2)(E), (c)(4), (c)(9), and (c)(10). Where the Legislature intends to limit a weapon device’s

24 definition to how it is “designed” or “intended” to be used, as opposed to its effect, section 12020

25 makes clear that the Legislature knows how to do so. No such limitation was intended with respect

26 to section 12276.1. Plaintiffs’ proposed alternative definition of “flash suppressor” reflects the

27 recurring theme in plaintiffs’ Amended Complaint: it is not that the challenged regulations are

28 invalid; it is just that the challenged regulations are not what plaintiffs want them to be.14


1 Contrary to plaintiffs’ assertion (Am. Compl., ¶J 44, 55), the absence of a measurement

2 provision in the statute and regulation does not render the “flash suppressor”definitibn invalid. The

3 absence of specific measurement standards in the statute demonstrates the legislative inteit to

4 include devices that reduce or redirect any amount of flash. An administrative regulation may not

5 alter a statute or enlarge or impair its scope. Govermnent Code § 11342.2. Accordingly, DOJ would

6 have exceeded its authority if it had established a standard that permitted some percentage or amount

7 of flash suppression. Furthermore, there is no legislative mandate or funding for DOJ to establish

8 scientific methodology for testing devices that may or may not be flash suppressors. Like for any

9 other criminal provision, district attorneys’ crime labs would be responsible for determining what

10 would be a perceptible amount of flash suppression in ordinary circumstances. In cases close to

11 the line, the definition provision operatesjust as any other criminal provision that relies upon defined

12 terms, from methamphetamine to dirks and daggers, and a citizen proceeds over the line at his own

13 risk. In extraordinary circumstances, as described above, the mens rea requirement would serve to

14 protect any citizen who did not reasonably know that flash would be suppressed.

15 None of the amendments to plaintiffs’ allegations serve to rebut in any way these

16 dispositive arguments previously raised by defendants in the course of the preliminary injunction

17 proceedings.

18

19

20

21

22 6. The crime labs can perform these tests with exemplars, and there would be no need

23 to destroy citizens’ firearms where the device in question is integral to the barrel as suggested byplaintiffs.

247. Much of plaintiffs’ argument in regard to testing and measurement incorrectly

25 assumes (as described above) that a firearm owner must be able to perform scientific testing upon

26a firearm in order to reasonably know whether a device used perceptibly reduces flash. Plaintiffs’suggestion that the Court limit the definition to those devices identified as flash suppressors on the

27 mechanism itself, its packaging, or its manual is the same as suggesting that the fox guard the henhouse. It was the firearms manufacturers’ efforts to circumvent existing assault weapon provisions

28 by virtue of self-definition of their products that led to the enactment of SB 23 in the first place.15


1 2. Plaintiffs’ Contention That The Threaded Barrel Capability Provision IsVague Is Without Merit.

2

3 Plaintiffs admit: “Very few civilian pistols have threaded barrels that will accept [a flash

4 suppressor, forward handgrip, or silencer] for, in general, civilian pistols have not been designed or

5 intended to have or accommodate even a silencer, much less such outre attachments as flash

6 suppressors or forward handgrips. Generally the only civilian pistols having threaded barrels are

7 Olympic and other competition pistols designed for precision target shooting.” Am. Compl., ¶ 59.

8 But Olympic precision pistols are expressly exempted from the definition ofassault weapon by Penal

9 Code section 12276.1(b) and (c). Accordingly, there is no specter of target pistol competitors being

10 subject to the assault weapons restrictions resulting from an inability to know whether their barrel

11 threads are capable of accepting the specified assault weapon devices.

12 The implication from plaintiffs’ admission is that it is only in very few instances that the

13 few semiautomatic pistols with threaded barrels are not exempted Olympic target pistols. In those

14 very few instances, presumably the threads were not created for the legitimate purpose of attaching

15 the Olympic competition weights. Query whether it is reasonable to expect the owner of such a

16 pistol with a threaded barrel to consider and look into whether the threaded barrel is capable of

17 accepting a silencer, forward handgrip, or flash suppressor. It is perhaps impossible to answer the

18 question in the abstract without knowing all of the circumstances, but in any event, the existence of

19 the mens rea requirement, described above, serves to protect a threaded-barreled pistol owner from

20 prosecution based on the existence “anywhere in the world” (Am. Compi., ¶ 60) of a silencer,

21 forward handgrip, or flash suppressor that it is capable of accepting.

22 Again, none of the amendments to plaintiffs’ allegations attempt to rebut in anyway these

23 dispositive arguments in support of the threaded barrel capability provision previously raised by

24 defendants in the course of the preliminary injunction proceedings. The challenged threaded barrel

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26

27

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1 capability provision is not fatally vague, and plaintiffs’ claim in this regard is insufficient as a matter

2 of law.&

3 3. Plaintiffs’ Contention That The “Large-Capacity Magazine” Provision IsVague Is Without Merit.

4-

5 Plaintiffs’ claim challenging the definition of “large-capacity magazine” is disposed of in

6 the same way as are their previous allegations. The mens rea requirement applicable to any

7 prosecution protects the owner of a feeding device from prosecution for owning a “large-capacity”

8 feeding device in the event that smaller shells exist in some small corner of the world, assuming that

9 there is no reason for the owner to know that they are available to him. Plaintiffs make defendants’

10 point in their own preliminary injunction motion: “Not even merchants, much less ordinary firearm

11 owners, can ‘reasonably’ be expected to know, or to track, developments in ammunition that occur

12 in foreign nations around the world.” Pls.’ Preliminary Injunction Mem. 19:1-2; see also

13 Am. Compi., ¶J 66-67.

14 Plaintiffs’ suggestion (Am. CompL, J 69) that defendants should consider the requirement

15 to apply only as measured by reference to 2.75 inch rounds again purports to demand Constitutional

16 attention to what is merely their dissatisfaction with the requirement. Moreover, plaintiffs’ suggested

17 interpretation limiting consideration to standard 2.75 inch shells in the evaluation of whether a

18 feeding device would accept more than 10 rounds would then not apply to the situation where

19 someone actually were to have the smaller Mexican shells, a situation in which surely the magazine

20 should be considered large-capacity under the code section.

21 In support of their contention that defendants have subverted the “permanently altered”

22 escape clause (Am. Compi., ¶J 73-74), plaintiffs make no allegation that defendants have done or

23 threatened to do anything to suggest that compliance with the “permanently altered” escape clause

24 in the large capacity magazine definition in section 12020(c)(25) would require an “irreversible”

25

268. Plaintiffs’ demand (Am. Compi., ¶J 61-63) that the Court re-legislate the threaded

27 barrel provision again simply boils down to the fact that the assault weapons law is not whatplaintiffs want it to be. Again, plaintiffs’ desired revision would run afoul of the rule of statutory

28 construction regarding additions to and subtractions from statutory language.17


I alteration. “Permanent’ means: “1 lasting or intended to last indefinitely without change 2 lasting

2 a relatively long time.”- Plaintiffs are concocting a dispute in this instance, and the alterations with

3 which they are concerned would appear to. fall within the accepted definition of”permanent.”,,

4 Again, none of the amendments to plaintiffs’ allegations attempt to rebut in anyway these

5 dispositive arguments in support of the “large-capacity magazine” definition previously raised by

6 defendants in the course of the preliminary injunction proceedings. The challenged definition of

7 “large-capacitymagazine” is not vague, and plaintiffs’ claim in this regard is insufficient as a matter

8 of law.

9 4. Plaintiffs’ Allegation That Defendants Are Required To Apply DOJ’sRegulation Defining “Detachable Magazine” Assumes A Dispute That

10 Does Not Exist, Even In The Abstract.

11 Plaintiffs appear to be satisfied with this definition in section 978.20 of the regulations,

12 but attack defendants on the basis that somehow they believe the regulation will not be enforced by

13 defendants. Am. Compi., ¶J 8 1-83. Plaintiffs’ only allegation in this regard is that DOJ responded

14 to an inquiry as to whether an otherwise detachable magazine could be made into a fixed magazine

15 by screwing the magazine to the firearm with acknowledgment that such a conversion would exempt

16 the firearm from definition as an assault weapon and stating that, nonetheless, such a maneuver

17 would violate the spirit of the law and is viewed with skepticism’ by DOJ. Am. Compi., Exs. 28-

18 29. Plaintiffs cannot extrapolate from this that DOJ might not enforce the regulation as it is written,

19 or even that district attorneys might not enforce the regulation as written. Plaintiffs make no new

20 allegation of any disclaimer of the regulation by defendants, of any abdication of the regulation by

21 defendants, or of any improper informal amendment of the regulation. Plaintiffs again are

22

23 9. Notably, plaintiffs’ withdrew their “permanently altered” arguments in theirpreliminary injunction reply in response to these same arguments. Pis.’ Preliminary Injunction

24 Reply, p. 13:17-21. It is thus unclear why plaintiffs have continued to include this contention in their

25Amended Complaint.

26 10. Webster’s New World Dictionaiy, Third College Ed., 1988.

27 11. The obvious skepticism with respect to the spirit of the law comes from the abilityimmediately to un-convert the firearm back into an assault weapon with a detachable magazine

28 simply by unscrewing the screw.18


1 concocting a dispute that does not exist, even in the abstract, and this allegation is without merit as

2 amatteroflaw)-

3 v.

4 CONCLUSION

5 For the multiple and overlapping reasons set forth above, defendants respectfully request

6 that the Court sustain their demurrer without leave to amend)




10 LOUIS R. MAURO

11Supervising Deputy Attorney General

12

13 DOUGLAS J.WOODSDeputy Attorney General

14 Attorneys for Defendants ATTORNEYGENERAL BILL LOCKYER, the STATE OF

15 CALIFORNIA, and CALIFORNIADEPARTMENT OF JUSTICE

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2012. As described above in footnote 2, plaintiffs similarly• allege based on DOJ

21 correspondence that defendants are not adhering to the statutory and regulatory definitions of “flash

22suppressor” and “large-capacity magazine.” Even if there were any alleged failure to enforce theprohibitions represented by these definitions, plaintiffs’ remedy would be to petition for a writ of

23 mandate requiring enforcement. Plaintiffs cannot be heard to allege that defendants are violating thelaw, to express their approval, and then to advocate for further such action. It is paradoxical to

24 suggest that an alleged failure by defendants to enforce the law would support an action for ajudicial

25prohibition against enforcement of the law.

2613. In connection with the briefing on this demurrer, the parties have agreed to briefs in

excess of the applicable page limit and an expanded briefing schedule, which originally called for

27 defendants to file their demurrer by December 6, 2002. Because the Court had not approved theparties’ stipulation in time for filing by December 6th, plaintiffs have agreed to allow defendants

28 through December 12th to file these papers.19


1 DECLARATION OF SERVICE BY OVERNIGHT COURIER

Case Name: HUNT, et a! v. STATE OF CALIFORNIA, et a!


I declare:

I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar at which member’s direction this service is made. I am 1.8 years of age or olderand not a party to this matter; my business address is: 1300 I Street, P.O. Box 944255, Sacramento,California 94244-2550.

7On December 12, 2002, I served the attached DEFENDANTS’ MEMORANDUM OF POINTSAND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS’ AMENDEDCOMPLAINT

9 V

by placing a true copy thereofenclosed in a sealed envelope with postage thereon fully prepaid withthe California Overnight Service addressed as follows:

Stephen P. Haibrook, Esq.V

10560 Main Street, Suite 404Fairfax, VA 22030


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JO FARRELL

Declarant;J *L ..

Signature

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1 bill lockyer attorney general ofthe state ofcalifornia...

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