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.~ I 1 C.D. Michel - S.B.N. 144258 TRUTANICH • MICHEL, LLP 2 Port of Los Angeles 407 North Harbor Boulevard 3 San Pedro. California 90731 (310) 548":0410 4 Stephen P. Halbrook 5 LAW OFFICES OF STEPHEN P. HALBROOK 10560 Main Street., Suite 404 6 Fairfax, Virginia 22030 (703) 352-7276 7 Don B. Kates - S.B.N. 039193 AUG'" 2 2002 BENENSON & KATES 8 22608 North East 269th Avenue FRESNO COUNTY SUPERIOR COURT BattlegrOlmd, Washington 98604 CENTRAL PROCESSING 9 (360) 666-2688 Attorneys for Plaintiffs 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF FRESNO 12 EDWARD W. HUNT and NORMAN L. ) CASE NO. 01CECG03182 VROMAN, as District Attorneys of Fresno ) 13 and Mendocino Counties, respectively, and ) FIRST AMENDED COMPLAINT FOR 14 in their personal capacities as citizens and ) DECLARATORY AND INJUNCTIVE taxpayers, DAVID D. SUNDY, Sr., former ) RELIEF FOR' Oakdale Chief of Police, in his personal) . 15 capacity as a citizen and taxpayer; LAW ) (1) VIOLATION OF 42 U.S.c. § 1983; ENFORCEMENT ALLI~NCE OF ) (2) DEPRIVATION OF LIBERTY AND 16 AME;~CA, on behalf of ItS members whose) PROPERTY WITHOUT DUE PROCESS OF duty It !S to enforc~ ~he law and/or to comply) LAW IN VIOLATION OF FEDERAL AND 17 thereWIth, and as CItIzens and taxpayers; ) STATE CONSTITUTIONS; and CALIFORNIA RIFLE f\Np PISTOL. ) (3) ILLEGAL AND UNNECESSARY 18 ~li?F~~l~~pao1t¥~GIG80~satIOn; ) EXPEN.DITURE OF STATE FUNDS (Cal. ASSOCIATION, INC., a California non- ) Code CIV. Proc., § 526a) 19 profit corporation; HERB B1UE.R ~ SPORTING GOODS, a Calhorma } 20 corporation; and BARRY BAUER, as ) taxpayer and licensed firearm dealer; PAUL ) 21 POE, MANNY MOE, CHARLES COE, ) BARRY BOE, individuals who sue under ) fictitious names out of fear that, should they ) 22 disclose their true identities, they will be ) 23 subject to arrest and/or prosecutIOn under the) provisions of law challenged herein, ) ) 24 Plaintiffs, ) v. ) 25 STATE OF CALIFORNIA; WILLIAM ) 26 LOCKYER, Attorney General of the State of» California; CALIFORNIA DEPARTMENT) 27 OF JUSTICE; Does 1-100; ) Defendants. ) 28 1 FIRST AMENDED COMPLAINT 1 INTRODUCTION 2 1. This action seeks injunctive and declaratory relief against various aspects of Senate Bill 3 No. 23 (1999-2000 Reg. Sess.) ("SB 23"),1 which amended the California Penal Code to 4 criminalize transfer and/or possession of "assault weapons" ("AWs") and sale or transfer "large 5 capacity" ammunition feeding devices. Absent proper clarifying regulations, the challenged 6 provisions of SB 23 violate both the United States and California Constitutions, wherefore this 7 action is brought pursuant to 42 U.S.C. § 1983 as well as California law. This action also seeks 8 injunctive and declaratory relief by way of citizen mandamus and pursuant to California Code of 9 Civil Procedure section 526a for the illegal and wasteful expenditure of state funds. 10 2. The district attorney plaintiffs and the members of Law Enforcement Alliance of 11 America have the duty to enforce California firearms laws. At the same time, it is these Plaintiffs' 12 duty not to arrest or prosecute where the law is vague and uncertain. 13 3. SB 23 required that by December 31, 2000, owners of certain firearms either remove or 14 modify the feature(s) that made the firearm an "AW," Penal Code section 12276.1,2 or to register 15 the firearm as an "AW." (§ 12275 et. seq.) But the combination of defendants' erroneous or 16 unclear regulations with certain provisions of SB 23 itself make SB 23's requirements or 17 prohibitions vague, confusing, and unintelligible. The plaintiffs whose duty it is to enforce the 18 law need declaratory relief from the Court-and an injunction requiring defendants to adopt clear 19 regulations, so that they may properly enforce the SB 23 provisions involved herein. 20 4. Penal Code section 12276.1 is the portion ofSB 23 containing the new definitions of 21 features which, if part of a firearm, bring that firearm under the Assault Weapons Control Act 22 (A WCA). The California Supreme Court has described the A WCA mens rea standard as that a 23 criminal defendant reasonably should have known that the firearm possessed "the clearly 24 discernable features described in section 12276.1." (In re Jorge M (2000) 23 Ca1.4th 866,888 [98 25 26 1 Senate Bill No. 23 (1999-2000 Reg. Sess.) is codified at Penal Code §§ 12020(a)(2), (b)(19)­ (29); 12020(c)(25); 12020.5; and 12276.1 and further defined in California Code of Regulations, title 11, 27 §§ 978.10 to 978.44 (hereinafter "Regulations"). 28 2 All further statutory references are to the Penal Code unless otherwise indicated. 2 FIRST AMENDED COMPLAINT 1 Cal.Rptr.2d 466, 4 P.3d 297].) But as a result of defendants' erroneous and obfuscating 2 regulations purporting to define and clarify what certain of the section 12276.1 features are, those 3 features are not "clearly discernable." In addition, defendants have obscured the meaning of SB 4 23's provisions by issuing letter rulings and/or advice letters wllich, while consistent with SB 23's 5 statutory intent and other relevant statutes, directly conflict with defendants' own regulations 6 challenged herein. 7 5. Plaintiffs do not necessarily seek invalidation of any provision of SB 23. Plaintiffs seek 8 a declaratory judgment from this Court to clarify the laws in question, or, alternatively, an 9 injunction requiring defendants to issue clarifying regulations. Plaintiffs seek to enjoin 10 enforcement of the challenged portions ofSB 23 until they are clarified, and extension of the 11 registration period for "AWs," section 12276.1, until a reasonable time after the laws have been 12 clarified, and an adequate public education campaign has occurred. 13 14 PARTIES 15 Plaintiffs 16 6. Plaintiffs EDWARD W. HUNT and NORMAN L. VROMAN are the District 17 Attorneys of Fresno and Mendocino Counties. Their duties require that they ascertain the 18 meaning of the SB 23 laws so that they can properly enforce them and supervise their deputies in 19 enforcing them. Said plaintiffs seek declaratory judgments on certain provisions of SB 23 or, in 20 the alternative, an order requiring defendants to issue adequate clarifying regulations. 21 7. DAVID D. SUNDY, Sr. is the former Chief of Police of the City of Oakdale. All 22 plaintiffs, including the district attorney plaintiffs and DAVID D. SUNDY, Sr., also bring suit in 23 their capacities as citizens and taxpayers. They are taxpayers within the meaning of California 24 Code of Civil Procedure section 526a, in that they have been assessed for and are liable to pay, or, 25 within one year before the commencement of the action, have paid, a tax in the State of California. 26 As citizens and taxpayers all the plaintiffs in this suit desire that the laws and regulations in 27 question be clear so that they can be administered fairly and uniformly throughout the state and 28 consistently with the federal and state constitutions and the legislative purposes. 3 FIRST AMENDED COMPLAINT 1 8. Plaintiff the LAW ENFORCEMENT ALLIANCE OF AMERICA (LEAA) is a non- 2 profit, non-partisan advocacy association organized under section 501 (c)(4) of the Internal 3 Revenue Code. Its principal offices are in Virginia and its executive director is James J. Fotis, a 4 retired New York police officer. LEAA's members include law enforcement officers, crime 5 victims, and concerned citizens, many or whom reside and work in California and some of whom 6 own firearms that are or may be covered by SB 23. In this action, LEAA represents its California 7 members, inter alia as officers whose duty it is to enforce the laws uniformly and consistent with 8 the legislative purposes and constitutional requirements. 9 9. Plaintiff CALIFORNIA RIFLE AND PISTOL ASSOCIATION, Inc. (hereinafter 10 CRP A) is a non-profit membership organization and is incorporated under the laws of California, 11 with headquarters in Fullerton. Among its other activities, CRP A works to preserve and expand 12 constitutional and statutory rights of gun ownership, including the right to self-defense and the 13 right to keep and bear arms. CRP A has 65,000 members, including members residing in Fresno 14 County who are members of the U.S. Armed Forces and police officers who possess rifles 15 pursuant to Penal Code section 12280(g). In this suit CRP A represents all its members both in 16 their general interests as taxpayers and citizens and in their particular interests as owners, or 17 prospective owners, of rifles the statute forbids. 18 10. Plaintiff CALIFORNIA SPORTING GOODS ASSOCIATION, INC. ("CSGA") is an 19 association of California firearms dealers, distributors and/or manufacturers' representatives. In 20 this suit, CSGA, on behalf of its members and their customers, seek clarification of the meaning 21 and application of the challenged provisions ofSB 23 to them and their property. 22 11. Plaintiff HERB BAUER SPORTING GOODS, INC., is a California corporation with 23 its principal place of business in Fresno. BARRY BAUER is a Fresno retail firearms dealer who 24 owns HERB BAUER SPORTING GOODS, INC. BARRY BAUER is licensed by the California 25 Department of Justice to sell firearms. Said plaintiffs, for themselves and their customers, seek 26 clarification of the meaning and application of the challenged provisions of SB 23 to them and 27 their property. 28 12. Plaintiff PAUL POE owns a valuable centerfire semi-automatic detachable magazine 4 FIRST AMENDED COMPLAINT 1 rifle whose barrel has a device intended to be a muzzle brake rather than a flash suppressor.

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