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1 Alan Gura, Calif. Bar No.: 178221 Gura & Possessky, PLLC 2 101 N. Columbus St., Suite 405 3 Alexandria, VA 22314 703.835.9085/Fax 703.997.7665 4 5 Donald E.J. Kilmer, Jr., Calif. Bar No.: 179986 Law Offices of Donald Kilmer, A.P.C. 6 1645 Willow Street, Suite 150 San Jose, CA 95125 7 408.264.8489/Fax 408.264.8487 8 Jason A. Davis, Calif. Bar No.: 224250 9 Davis & Associates 27201 Puerta Real, Suite 300 10 Mission Viejo, CA 92691 11 949.310.0817/Fax 949.288.6894 12 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 13 14 Ivan Peña, et al., ) Case No. 2:09-CV-01185-KJM-CKD ) 15 Plaintiffs, ) PLAINTIFFS’ STATEMENT OF vs. ) UNDISPUTED FACTS (SUF) 16 ) IN SUPPORT OF PLAINTIFFS’ 17 Stephen Lindley, ) MOTION FOR SUMMARY ) JUDGMENT 18 Defendant. ) Fed. R. Civ. Proc. 56 19 ______) Local Rule 260 20 As required by Local Rule 260, Plaintiffs contend there is no genuine issue about the 21 22 following material facts: 23 Undisputed Fact Support for Undisputed Fact 24 1. Handguns are arms of the kind in District of Columbia v. Heller, 554 U.S. 570 25 common use for traditional lawful (2008); Bureau of Alcohol, Tobacco, Firearms purposes. & Explosives, Annual Firearms Manufacturing 26 and Export Report ("ATF Report"), available 27 at http://www.atf.gov/files/statistics/download/af 28 mer/2011-final-firearms-manufacturing-export- report.pdf (last visited Oct. 24, 2013)

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1 Undisputed Fact Support for Undisputed Fact 2 2. Semi-automatic firearms with See, e.g. ATF Report, SUF 1; Hoffman Decl., ¶ 3 detachable magazines are arms of the 15 4 kind in common use for traditional lawful purposes. 5 3. Semi-automatic firearms with See, e.g. ATF Report, SUF 1; Hoffman Decl., ¶ 6 detachable magazines utilizing 15 center-fire ammunition are arms of the 7 kind in common use for traditional 8 lawful purposes. 9 4. California Law provides that “any California Penal Code § 32000 person in this state who manufactures 10 or causes to be manufactured, imports into the state for sale, keeps for sale, 11 offers or exposes for sale, gives, or 12 lends any unsafe handgun shall be punished by imprisonment in a county 13 jail not exceeding one year.” 14 5. California law presumes that all California Penal Code §§ 31910 et seq., handguns are “unsafe” and therefore, 32015 et seq. 15 generally barred from importation and 16 sale, unless those handguns have been placed on the state’s special roster of 17 handguns “determined not to be unsafe.” 18 6. Since 2007, a center-fire1 semi- California Penal Code §§ 31910(b)(5), 19 automatic2 handgun cannot make the 32010(d)(2). 20 roster if it does not have both a chamber load indicator and, if it has a 21 detachable magazine, a magazine disconnect mechanism. 22 23 24 25 1 Most handguns use center-fire ammunition, which fires a bullet when the center of the cartridge is struck by the gun’s firing pin, igniting the primer. 26 2 A semi-automatic handgun is handgun that fires one bullet each time the trigger is pulled, 27 with the firing of each bullet causing the next round to be loaded into the chamber from a magazine. 28 Most handguns in the United States are semi-automatic. Almost all the rest are revolvers, which hold several rounds in a rotating cylinder and also fire one bullet with each pull of the trigger. Nothing in the challenged laws, or this litigation, relates to fully-automatic weapons (machine guns), which are the subject of other specific legislative enactments.

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1 Undisputed Fact Support for Undisputed Fact 2 7. Since 2006, a rimfire3 semi-automatic California Penal Code §§ 31910(b)(6), 3 handgun must have a magazine 32010(d)(3). 4 disconnect mechanism if it has a detachable magazine. 5 8. Handguns rostered prior to the effective California Penal Code §§ 31910(b)(5), 6 dates of these requirements can remain 31910(b)(6). rostered despite lacking these features. 7 9. A magazine disconnect mechanism is California Penal Code §16900(d). 8 “a mechanism that prevents a 9 semiautomatic pistol that has a detachable magazine from operating to 10 strike the primer of ammunition in the firing chamber when a detachable 11 magazine is not inserted in the 12 semiautomatic pistol.” 13 10. A chamber load indicator (“CLI”) is “a California Penal Code § 16380(c). device that plainly indicates that a 14 cartridge is in the firing chamber.” 15 11. Not all CLIs satisfy the California California Penal Code § 16380(c). requirement. Under California law: 16 17 [A] device satisfies this definition if it is readily visible, has incorporated or 18 adjacent explanatory text or graphics, or both, and is designed and intended 19 to indicate to a reasonably 20 foreseeable adult user of the pistol, without requiring the user to refer to a 21 user’s manual or any other resource 22 other than the pistol itself, whether a cartridge is in the firing chamber. 23 24 25 26 27 28 3 Rimfire ammunition, which is fired when struck on its rim by the gun’s firing pin, is primarily used in the smallest calibers. For technical reasons, chamber load indicators are not feasible for rimfire ammunition.

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1 Undisputed Fact Support for Undisputed Fact 2 12. Defendant tests the sufficiency of CLIs Exhibit A – Consisting of: 3 by asking his employees if they 4 understand the CLI – and when the February 8, 2007 letter from California regulatory authority’s employees Department of Justice to Mr. Kevin B. Reid, 5 allegedly fail to understand the CLI, Sr., of Sturm, Ruger & Co., Inc. regardless of what the CLI is “designed 6 and intended to indicate to a reasonable February 9, 2007 letter from California 7 adult,” the CLI is ruled inadequate. Department of Justice to Mrs. Debra Else of Springfield Armory, Inc. 8 October 3, 2007 from California Deparement 9 of Justice to Mrs. Debra Else of Springfield 10 Armory, Inc. 11 13. Given the rarity of CLIs and magazine Exhibit B – Consisting of: disconnect devices, handguns lacking 12 these features are in common use today, Legislative History of “Unsafe Handgun Bill” comprising the overwhelming majority Author Bill File [See: pp. 6, 9, 10] 13 of handguns. 14 Exhibit C – Consisting of: 15 Legislative History of “Unsafe Handgun Bill” Senate Floor Analysis [See: p. 7] 16 14. California legislators specifically Exhibit B – Consisting of: 17 considered that CLIs and magazine 18 disconnects are available on only Legislative History of “Unsafe Handgun Bill” perhaps 11% and 14% of handguns, Author Bill File [See: pp. 6, 9, 10] 19 respectively, as proposed by the author of the bill mandating these features. Exhibit C – Consisting of: 20 21 Legislative History of “Unsafe Handgun Bill” Senate Floor Analysis [See: p. 7] 22 15. Because CLIs and magazine disconnect Exhibit B – Consisting of: 23 mechanisms were viewed as beneficial, the California Legislature hoped that Legislative History of “Unsafe Handgun Bill” 24 mandating these features would alter Author Bill File [See: pp. 6, 9, 10] 25 the firearms market. 26 27 28

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1 Undisputed Fact Support for Undisputed Fact 2 16. A handgun safety mechanism may fail Exhibit D – Consisting of: 3 or be misused by the user of a handgun. 4 Study Guide for Handgun Safety Certificate. Published by the California Department of 5 Justice. (p. 25)

6 Available at: 7 http://www.ag.ca.gov/firearms/forms/pdf/hscsg. pdf 8 17. A chamber loaded indicator is a Exhibit D – Consisting of: 9 mechanical device that may fail or be misinterpreted by the user of a Study Guide for Handgun Safety Certificate. 10 handgun. Published by the California Department of 11 Justice. (p. 25) 12 Available at: http://www.ag.ca.gov/firearms/forms/pdf/hscsg. 13 pdf 14 18. A magazine disconnect mechanism is a Exhibit D – Consisting of: 15 mechanical device that may fail. Study Guide for Handgun Safety Certificate. 16 Published by the California Department of Justice. (p. 25) 17 18 Available at: http://www.ag.ca.gov/firearms/forms/pdf/hscsg. 19 pdf 20 19. As the state advises handgun Exhibit D – Consisting of: purchasers, “Any machine can 21 malfunction. A firearm is no different.” Study Guide for Handgun Safety Certificate. 22 Published by the California Department of Justice. (p. 25) 23 Available at: 24 http://www.ag.ca.gov/firearms/forms/pdf/hscsg. 25 pdf 26 20. To acquire any handgun in California, California Penal Code §§ 16170(b), 16370, an individual must pass a written 16450, 31610 - 31700 (inclusive). 27 handgun safety test. 28

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1 Undisputed Fact Support for Undisputed Fact 2 21. The test requires knowledge of the Exhibit D – Consisting of: 3 basic rules of handgun safety, the first 4 of which is: “Treat all guns as if they Study Guide for Handgun Safety Certificate. are loaded.” Published by the California Department of 5 Justice. (p. 9)

6 Available at: 7 http://www.ag.ca.gov/firearms/forms/pdf/hscsg. pdf 8 22. The state’s study guide for the handgun Exhibit D – Consisting of: 9 safety test further provides: Study Guide for Handgun Safety Certificate. 10 Always assume that a gun is loaded Published by the California Department of 11 even if you think it is unloaded. Justice. (p. 9)

12 Every time a gun is handled for any Available at: reason, check to see that it is http://www.ag.ca.gov/firearms/forms/pdf/hscsg. 13 unloaded [by following specific pdf 14 instructions for unloading the gun].

15 If you are unable to check a gun to 16 see if it is unloaded, leave it alone and seek help from someone more 17 knowledgeable about guns. 18 23. The state’s specific instructions for Exhibit D – Consisting of: unloading a semi-automatic handgun 19 contained in its gun safety study guide Study Guide for Handgun Safety Certificate. 20 provides that a mechanical safety Published by the California Department of Justice. (p. 20) 21 [It] is not foolproof so do not rely on Available at: 22 the safety to prevent an accidental discharge. http://www.ag.ca.gov/firearms/forms/pdf/hscsg. 23 pdf A safety should only be used as an 24 additional safety measure. 25 Never pull the trigger on any firearm 26 with the safety in the “safe” position 27 because thereafter the firearm could fire at any time without the trigger 28 ever being touched.

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1 Undisputed Fact Support for Undisputed Fact 2 24. Although the state’s gun safety study Exhibit D – Consisting of: 3 guide does not discuss chamber loaded 4 indicators or magazine disconnect Study Guide for Handgun Safety Certificate. devices, it teaches, in order to pass the Published by the California Department of 5 mandatory safety test, rules that would Justice. (p. 45 – 47) have gun owners ignore such devices. 6 The study guide specifically instructs Available at: 7 that in order to verify a semi-automatic http://www.ag.ca.gov/firearms/forms/pdf/hscsg. handgun is unloaded, one must remove pdf 8 the magazine and visually inspect the chamber to verify that it is empty. 9 25. In a large red box marked Exhibit D – Consisting of: 10 “CAUTION,” the state’s gun safety 11 study guide provides: Study Guide for Handgun Safety Certificate. Published by the California Department of 12 You should NOT assume a Justice. (p. 22) semiautomatic pistol is unloaded just 13 because the magazine is removed Available at: 14 from the handgun. http://www.ag.ca.gov/firearms/forms/pdf/hscsg. pdf 15 Do not allow the slide to go forward 16 UNLESS you have: 17 1. Checked again to be sure the chamber is empty, and 18 19 2. Checked again to be sure the magazine has been REMOVED. 20 21 If you pull the slide back ejecting the cartridge, check the chamber, let the 22 slide go forward, and THEN remove the magazine, you have a loaded, 23 dangerous firearm (a cartridge is in 24 the chamber) even though you have removed the magazine. It is common 25 and sometimes fatal to make this error. 26 27 ALWAYS REMOVE THE MAGAZINE FIRST! 28

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1 Undisputed Fact Support for Undisputed Fact 2 26. In order to purchase a handgun, the California Penal Code §§ 26840, 26845, 3 buyer must demonstrate that he or she 26850, 26853, 26856, 26859, 26865. 4 knows how to safely operate the handgun, including following the 5 instructions set forth in ¶ 22 above. 6 27. California law requires that all newly California Penal Code §§ 23635, 23640. purchased firearms either be 7 accompanied by an approved gun lock 8 or the purchaser’s affidavit that she owns an adequate lock box or gun safe. 9 28. All semi-automatic handguns not on the Cal. Penal Code § 31910(b)(7)(A) 10 approved roster prior to 2013 are barred from the approved handgun 11 roster unless they employ so-called 12 “microstamping technology.” 13 29. “The Attorney General may also Cal. Penal Code § 31910(b)(7)(B) approve a method of equal or greater 14 reliability and effectiveness in identifying the specific serial number of 15 a firearm from spent cartridge casings 16 discharged by that firearm than that which is set forth in this paragraph . . .” 17 30. The microstamping requirement of Cal. See Exhibit N – consisting of California 18 Penal Code § 31910(b)(7) became Department of Justice Information Bulletin effective on May 17, 2013 because on No.: 2013-BOF-03. 19 that date, the California Department of 20 Justice issued Information Bulletin No.: 2013-BOF-03, wherein Defendant 21 Lindley announced that the Department had determined that the technology 22 described in Penal Code § 31910(b)(7) 23 is now available to more than one manufacturer unencumbered by any 24 patent restrictions. 25 31. There are no manufacturers of new Defendant Lindley’s Response to Request for model semiautomatic firearms that Admission Set One, No.: 4, served on August 26 offer products with microstamping 19, 2013. See Exhibit O. 27 technology for sale in the United States, nor have any applied to have such a Defendant Lindley’s Response to 28 handgun placed on the California Interrogatories Set One, No.: 8, served on approved roster. August 19, 2013. See Exhibit P.

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1 Undisputed Fact Support for Undisputed Fact 2 32. Listings on the California handgun 11 Calif. Code of Regulations § 4072(b). 3 roster are valid for one year, and must 4 be renewed annually, including payment of an annual fee, prior to 5 expiration to remain valid. 6 33. Defendant charges firearms California Penal Code § 32015 manufacturers, importers, and dealers 7 annual fees, ostensibly to operate the 8 handgun roster program. Any handgun whose manufacturer fails to pay the 9 required fees may be excluded from the roster for that reason alone. 10 34. The initial and renewal annual listing 11 Calif. Code of Regulations § 4072(b). 11 fees for inclusion on the handgun roster 12 are $200. 13 35. Other than the California DOJ, only the 11 Calif. Code of Regulations § 4059(c). manufacturer/importer of a handgun 14 model is authorized to submit that handgun model to a DOJ-Certified 15 Laboratory for testing. 16 36. A handgun can remain on the roster if 11 Calif. Code of Regulations § 4070(d). 17 its manufacturer/importer goes out of business or discontinues the model, 18 provided that the model is not being offered for sale to licensed dealers, and 19 “a fully licensed wholesaler, 20 distributor, or dealer submits a written request to continue the listing and 21 agrees to pay the annual maintenance fee.” 22 37. So long as a handgun is sold to dealers California Penal Code § 32015; 23 outside of California, the handgun’s 11 Calif. Code of Regulations §§ 4059, 4070, 24 manufacturer can cause the sale of that 4072 handgun to be forbidden inside 25 California by failing to submit the gun for testing in that state or refusing to 26 pay the annual $200 fee. 27 28

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1 Undisputed Fact Support for Undisputed Fact 2 38. A manufacturer/importer or other 11 Calif. Code of Regulations §4070(e). 3 responsible party may submit a written 4 request to list a handgun model that was voluntarily discontinued or was 5 removed for lack of payment of the annual maintenance fee. The request 6 may be approved, and the handgun 7 restored to the “safe gun” roster, provided the fee is paid. 8 39. The following firearms and transactions California Penal Code §§ 32000, 32100, 9 are exempted from the handgun 32105, 32110. rostering requirement: 10 11 (1) Firearms defined as curios or relics under federal law; 12 (2) The purchase of any firearm by any law enforcement officer – State or 13 Federal; 14 (3) Pistols that are designed expressly for use in Olympic target shooting 15 events, as defined by rule; (4) Certain single-action revolvers, as 16 defined by rule; and 17 (5) The sale, loan, or transfer of any firearm that is to be used solely as a 18 prop during the course of a motion picture, television, or video production 19 by authorized people related to the 20 production. 21 40. It is not illegal in California to import California Penal Code §§ 32000(a). an unrostered handgun when moving 22 into the state without the intention of selling it, nor is it illegal in California 23 to possess or use an unrostered handgun 24 that is otherwise lawful to possess or use. 25 26 27 28

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1 Undisputed Fact Support for Undisputed Fact 2 41. California also exempts private party California Penal Code §§ 32105, 32100, 3 transfers, intra-familial transfers 32110. 4 including gifts and bequests, various loans, and various single-action 5 revolvers.4 6 42. Plaintiff Ivan Peña has sought to Declaration of Ivan Peña ¶ 4. purchase a Para USA (Para Ordnance) 7 P1345SR / Stainless Steel .45 ACP 8 4.25", and has identified a willing seller who stands ready to deliver said 9 handgun to him. 10 43. Peña’s Para USA P1345SR was listed Exhibit E – Consisting of: on California’s Handgun Roster until 11 December 31, 2005, when it was Department of Justice Bureau of Firearms De- 12 discontinued and its listing not Certified Handgun Models (p.19) renewed. 13 Available at:

14 http://ag.ca.gov/firearms/forms/pdf/removed.pd 15 f 16 44. Peña cannot lawfully purchase and take Exhibit E – Consisting of: possession of the handgun as that 17 handgun is not on the California Department of Justice Bureau of Firearms De- Handgun Roster. Certified Handgun Models (p.19) 18 19 Available at:

20 http://ag.ca.gov/firearms/forms/pdf/removed.pd f 21 45. Peña fears arrest, prosecution, fine and Declaration of Ivan Peña ¶ 7. 22 incarceration if he completes this 23 handgun purchase. 24 25 26 27 4 28 “Single” or “double” action refers to the gun’s trigger function, one “action” being the effect of drawing back the hammer, another “action” being the effect of dropping the hammer. Guns can be designed to operate in single-action, double-action, or effectively both (if a gun has a hammer that might be retracted either manually or by pulling the trigger).

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1 Undisputed Fact Support for Undisputed Fact 2 46. Plaintiff Roy Vargas has sought to Declaration of Roy Vargas ¶ 4. 3 purchase a Glock 21 SF with an 4 ambidextrous magazine release, and has identified a willing seller who 5 stands ready to deliver said handgun to Plaintiff. 6 47. Vargas cannot lawfully purchase and Declaration of Roy Vargas ¶ 5. 7 take possession of the handgun as that 8 handgun is not listed on the California Handgun Roster. 9 48. Vargas fears arrest, prosecution, fine Declaration of Roy Vargas ¶ 6. 10 and incarceration if he completes this handgun purchase. 11 49. Vargas was born without an arm below Declaration of Roy Vargas ¶ 7. 12 the right elbow. 13 50. The Glock 21 SF-STD with a standard Declaration of Roy Vargas ¶ 8. 14 magazine release is listed on the California Handgun Roster. 15 51. The Glock-21 SF with ambidextrous Declaration of Roy Vargas ¶ 9. 16 magazine release is superior for left- handed shooters such as Mr. Vargas, as 17 opposed to the approved version of the 18 Glock 21. 19 52. Glock’s efforts to add the Glock 21 SF Exhibit F – Consisting of: with ambidextrous magazine release to 20 the California Roster have failed. January 12, 2007 Letter from California Department of Justice to Mr. Carlos Guevara, 21 General Counsel of Glock, Inc. 22 53. Defendant permits Glock customers to Exhibit F – Consisting of: 23 have their Glock 21 SF-STD handguns fitted with an ambidextrous release at January 12, 2007 Letter from California 24 the Glock factory. Department of Justice to Mr. Carlos Guevara, General Counsel of Glock, Inc. 25 54. Plaintiff Doña Croston has sought to Declaration of Doña Croston ¶ 4. 26 purchase a Springfield Armory XD-45 27 Tactical 5" Bi-Tone stainless steel/black handgun in .45 ACP, model 28 number XD9623, and has identified a willing seller who stands ready to deliver said handgun to her.

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1 Undisputed Fact Support for Undisputed Fact 2 55. Croston cannot lawfully purchase and Declaration of Doña Croston ¶ 5. 3 take possession of the handgun as that 4 handgun is not on the California Handgun Roster. 5 56. Croston fears arrest, prosecution, fine Declaration of Doña Croston ¶ 6. 6 and incarceration if she completes this handgun purchase. 7 57. Other models of this identical gun – but Exhibit G – Consisting of: 8 in different colors – are listed on the 9 handgun roster and are thus available California Department of Justice Roster of to Ms. Croston: the XD-45 Tactical 5" Approved Guns made by Springfield Armory. 10 .45 ACP in black (model XD9621), the XD-45 Tactical 5" .45 ACP in OD Available at: 11 Green (model XD9622), and the XD- http://certguns.doj.ca.gov/safeguns_resp.asp 12 45 Tactical 5" .45 ACP in Dark Earth (XD9162). 13 58. The particular Bi-Tone XD-45 that Ms. Exhibit A – Consisting of: 14 Croston would possess was not released until after California required newly- February 9, 2007 letter from California 15 listed guns to have a chamber load Department of Justice to Mrs. Debra Else of 16 indicator and magazine disconnect Springfield Armory, Inc. device. 17 October 3, 2007 from California Department of Justice to Mrs. Debra Else of Springfield 18 Armory, Inc. 19 59. Springfield Armory could not get the Exhibit A – Consisting of: 20 XD-45 in .45 ACP and Bi-Tone finish registered given the new listing February 9, 2007 letter from California 21 requirements. Department of Justice to Mrs. Debra Else of Springfield Armory, Inc. 22 23 October 3, 2007 from California Department of Justice to Mrs. Debra Else of Springfield 24 Armory, Inc. 25 60. The XD-45 Bi-Tone in .45 has a Exhibit H – Consisting of: loaded chamber indicator, but the 26 California Department of Justice has Technical Data from Springfield Armory 27 decided it does not qualify under Penal Code § 16380(c). 28

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1 Undisputed Fact Support for Undisputed Fact 2 61. The XD-45 also lacks a magazine Exhibit H – Consisting of: 3 disconnect device. 4 Technical Data from Springfield Armory Exhibit I – Consisting of: 5 62. The handgun at issue in District of Columbia v. Heller, 554 U.S. 570 6 (2008), was a High Standard 9-shot Redacted copy of Application for Firearm revolver in .22 with a 9.5" Buntline- Registration Certificate for Dick A. Heller. 7 style5 barrel. This document was Exh A. On Motion for 8 Summary Judgment in Civil Case 03-0213- EGS [4-10]; JA 32 in D.C. Cir. 04-7041; App. 9 to Pet. For Cert. U.S. Supreme Ct. 07-290 at 119a. 10 63. Plaintiff Brett Thomas has sought to Declaration of Brett Thomas ¶ 5. 11 purchase an identical High Standard 9- 12 shot revolver in .22 with a 9.5" Butline- style barrel, and has identified a willing 13 seller who stands ready to deliver said handgun to Thomas. 14 64. Thomas cannot lawfully purchase and Declaration of Brett Thomas ¶ 6. 15 take possession of the handgun as that 16 handgun is not on the California Handgun Roster. 17 65. Thomas fears arrest, prosecution, fine Declaration of Brett Thomas ¶ 7. 18 and incarceration if he completes this handgun purchase. 19 20 21 22 23 24 25 26 27 28 5A “Buntline” is a Western-style extra-long barrel revolver, named for 19th-century novelist Ned Buntline who was said to commission such guns for famous personalities of the day.

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1 Undisputed Fact Support for Undisputed Fact 2 66. Plaintiffs Ivan Peña and Brett Thomas Declaration of Ivan Pena 3 are law-abiding citizens, shooting 4 enthusiasts and gun collectors, as are Declaration of Brett Thomas other members and supporters of 5 Plaintiffs Second Amendment Declaration of Alan Gottlieb Foundation, Inc. (“SAF”) and Calguns 6 Foundation, Inc. (“CGF”). Peña, Declaration of Gene Hoffman 7 Thomas, and other SAF and CGF members and supporters would acquire 8 new semiautomatic handguns of the kind in common use throughout the 9 United States, for traditional lawful 10 purposes including self-defense, but cannot do so owing to California’s 11 microstamping scheme 12 67. California’s handgun rostering scheme Declaration of Ivan Pena substantially limits commerce in (and 13 therefore Plaintiffs’ access to) Declaration of Brett Thomas 14 unrostered handguns, since no dealer can stock these firearms. This results in Declaration of Alan Gottlieb 15 a significant loss of choice and price competition. Declaration of Gene Hoffman 16 68. Plaintiffs would suffer increased costs Declaration of Ivan Pena 17 in transporting and transferring their 18 firearms from out-of-state dealers that Declaration of Brett Thomas they would not suffer if the firearms 19 were available for sale in California. Declaration of Alan Gottlieb 20 Declaration of Gene Hoffman 21 69. Plaintiff Second Amendment Declaration of Alan Gottlieb, Executive Vice 22 Foundation, Inc. (“SAF”) is a non- President of Second Amendment Foundation, profit membership organization Inc., ¶ 2. 23 incorporated under the laws of Washington with its principal place of 24 business in Bellevue, Washington. 25 70. SAF has over 650,000 members and Declaration of Alan Gottlieb, Executive Vice 26 supporters nationwide, including many President of Second Amendment Foundation, in California. Inc., ¶ 3. 27 28

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1 Undisputed Fact Support for Undisputed Fact 2 71. The purposes of SAF include Declaration of Alan Gottlieb, Executive Vice 3 education, research, publishing and President of Second Amendment Foundation, 4 legal action focusing on the Inc., ¶ 4. Constitutional right to privately own 5 and possess firearms, and the consequences of gun control. 6 72. Plaintiff The Calguns Foundation, Inc. Declaration of Gene Hoffman, Jr., Chairman of 7 is a non-profit organization the Calguns Foundation, Inc., ¶ 2. 8 incorporated under the laws of California with its principal place of 9 business in San Carlos, California. 10 73. Calguns supports the California Declaration of Gene Hoffman, Jr., Chairman of firearms community by promoting the Calguns Foundation, Inc., ¶ 3. 11 education for all stakeholders about 12 firearm laws, rights and privileges, and securing the civil rights of California 13 gun owners, who are among its members and supporters. 14 74. SAF and Calguns expend their Declaration of Alan Gottlieb, Executive Vice 15 resources encouraging exercise of the President of Second Amendment Foundation, 16 right to bear arms, and advising and Inc., ¶ 5. educating their members, supporters, 17 and the general public about the Declaration of Gene Hoffman, Jr., Chairman of legality of particular firearms. The the Calguns Foundation, Inc., ¶ 4. 18 issues raised by, and consequences of, 19 Defendant’s policies, are of great interest to SAF and Calguns’ 20 constituencies. 21 75. Defendant’s policies regularly cause Declaration of Alan Gottlieb, Executive Vice the expenditure of resources by SAF President of Second Amendment Foundation, 22 and Calguns as people turn to these Inc., ¶ 6. 23 organizations for advice and information. Declaration of Gene Hoffman, Jr., Chairman of 24 the Calguns Foundation, Inc., ¶ 5. 25 76. Defendant’s policies bar the members Declaration of Alan Gottlieb, Executive Vice and supporters of SAF and Calguns President of Second Amendment Foundation, 26 from obtaining numerous, if not most, Inc., ¶ 7. 27 handguns. Declaration of Gene Hoffman, Jr., Chairman of 28 the Calguns Foundation, Inc., ¶ 6.

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1 77. Defendants’ policies make firearms less Declaration of Alan Gottlieb, Executive Vice 2 accessible to the public, reduce the President of Second Amendment Foundation, opportunity for selection and purchase, Inc., ¶¶ 9, 10 and 11. 3 lessen price competition, and impose 4 additional expenses on the purchase of Declaration of Gene Hoffman, Jr., Chairman of firearms. the Calguns Foundation, Inc., ¶¶ 11, 12, 13 5 and 14. 6 Respectfully Submitted on October 25, 2013, 7 Alan Gura, Calif. Bar No.: 178221 Jason A. Davis, Calif. Bar No.: 224250 8 Gura & Possessky, PLLC Davis & Associates 9 101 N. Columbus St., Suite 405 27201 Puerta Real Alexandria, VA 22314 Mission Viejo, CA 92691 10 703.835.9085/Fax 703.997.7665 949.310.0817/Fax 949.288.6894

11 Donald E.J. Kilmer, Jr., Calif. Bar No.: 179986 12 Law Offices of Donald Kilmer, A.P.C. 1645 Willow Street, Suite 150 13 San Jose, CA 95125 408.264.8489/Fax 408.264.8487 14 15 /S/ Donald Kilmer Attorney for the Plaintiffs 16 [email protected] 17 18 19 20 21 22 23 24 25 26 27 28

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