Case 3:17-cv-01017-BEN-JLB Document 6-2 Filed 05/26/17 PageID.109 Page 1 of 110 1 C.D. Michel – SBN 144258 Sean A. Brady – SBN 262007 2 Anna M. Barvir – SBN 268728 Matthew D. Cubeiro – SBN 291519 3 MICHEL & ASSOCIATES, P.C. 180 E. Ocean Boulevard, Suite 200 4 Long Beach, CA 90802 Telephone: (562) 216-4444 5 Facsimile: (562) 216-4445 Email: [email protected] 6 Attorneys for Plaintiffs 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 VIRGINIA DUNCAN, RICHARD Case No: 17-cv-1017-BEN-JLB LEWIS, PATRICK LOVETTE, DAVID 11 MARGUGLIO, CHRISTOPHER DECLARATION OF ANNA M. WADDELL, CALIFORNIA RIFLE & BARVIR IN SUPPORT OF 12 PISTOL ASSOCIATION, PLAINTIFFS’ MOTION FOR INCORPORATED, a California PRELIMINARY INJUNCTION; 13 corporation, EXHIBITS E-LLL Plaintiffs, 14 Date: June 13, 2017 Time: 10:00 a.m. 15 v. Dept: 5A Judge: Hon. Roger T. Benitez 16 XAVIER BECERRA, in his official capacity as Attorney General of the State 17 of California; and DOES 1-10, 18 Defendants. 19 20 21 22 23 24 25 26 27 28 1 DECLARATION OF ANNA M. BARVIR ISO MOTION FOR PRELIMINARY INJUNCTION 17-cv-1017-BEN-JLB Case 3:17-cv-01017-BEN-JLB Document 6-2 Filed 05/26/17 PageID.110 Page 2 of 110 1 DECLARATION OF ANNA M. BARVIR 2 1. I am an attorney at the law firm Michel & Associates, P.C., attorneys of 3 record for Plaintiffs in this action. I am licensed to practice law before the United States 4 District Court for the Southern District of California. I am also admitted to practice 5 before the Eastern, Central, and Northern Districts of California, the courts of the state of 6 California, the Supreme Court of the United States, and the D.C., Fourth, Ninth, and 7 Tenth Circuit Courts of Appeals. I have personal knowledge of the facts set forth herein 8 and, if called and sworn as a witness, could and would testify competently thereto. 9 2. On May 25, 2017, I contacted counsel for Defendant Attorney General 10 Xavier Becerra, Mr. Anthony O’Brien, via email to meet and confer regarding Plaintiffs’ 11 intention to file a motion for preliminary injunction, requesting the court enjoin 12 enforcement of California Penal Code section 32310(c)-(d), pending resolution of this 13 case on the merits. Mr. O’Brien stated that his client would oppose Plaintiffs’ motion. 14 Plaintiffs are unable, however, to forego seeking preliminary relief while this case 15 progresses, for they imminently face the violation of their fundamental, constitutional 16 rights under the Second, Fifth, and Fourteenth Amendments and seeking preliminary 17 relief from this Court is necessary. 18 3. On May 25, 2017, after providing notice to counsel for Defendant Becerra, 19 Plaintiffs filed an ex parte application for order shortening time to hear Plaintiffs’ Motion 20 for Preliminary Injunction. The Court has not yet ruled on that application, and counsel 21 for Defendant Becerra has indicated that he would oppose it. 22 [Common Use of Magazines Over Ten Rounds] 23 4. A true and correct copy of pages 407-99 from Gun Digest 2013 (Jerry Lee 24 ed., 67th ed. 2012), which identify the magazine capacities for a variety of common 25 handguns and rifles, is attached as Exhibit E. Gun Digest is a standard resource for gun 26 dealers and buyers alike to provide a comprehensive overview of the firearms and related 27 items available to retail buyers. Helsley Decl. ¶ 1. 28 5. True and correct copies of pages from the current websites of various 2 DECLARATION OF ANNA M. BARVIR ISO MOTION FOR PRELIMINARY INJUNCTION 17-cv-1017-BEN-JLB Case 3:17-cv-01017-BEN-JLB Document 6-2 Filed 05/26/17 PageID.111 Page 3 of 110 1 firearm manufacturers advertising firearms for self-defense purposes, and the 2 specifications demonstrating these firearms have a magazine capacity exceeding ten 3 rounds, are attached as Exhibit F. See Glock “Safe Action” Gen4 Pistols, Glock, 4 https://us.glock.com/documents/BG_Gen4_6_2010_EN_MAIL.pdf (last visited May 25, 5 2017) (specifications for the model 17, 19, 22, and 23 pistols, each equipped standard 6 with 17, 15, 15, and 13-round magazines, respectively, and all marketed as ideal for 7 personal defense); M&P®9 M2.0™, Smith & Wesson, https://www.smith- 8 wesson.com/firearms/mp-9-m20-1 (last visited May 25, 2017) (marketed as ideal for 9 home and personal protection and equipped standard with a 17-round magazine); CZ 75 10 B, CZ-USA, http://cz-usa.com/product/cz-75-b-9mm-black-16-rd-mag/ (last visited May 11 25, 2017) (equipped standard with 16-round magazine); Ruger® SR9®, Ruger, 12 http://www.ruger.com/products/sr9/specSheets/3301.html (last visited May 25, 2017) 13 (equipped standard with 17-round magazine); P320 Nitron Full-Size, Sig Sauer, 14 https://www.sigsauer.com/store/p320-nitron-full-size.html (last visited May 25, 2017) 15 (marketed as ideal for home defense, and equipped standard with 10- to 17-round 16 magazines). 17 6. On May 25, 2017, I visited the website www.youtube.com as well as 18 websites for various firearm manufacturers and viewed videos embedded on those 19 websites. I am informed and believe that the videos found at the following links are 20 advertisements produced and distributed by firearm manufacturers that are directed to 21 consumers. These videos advertise firearms that have standard magazine capacities 22 exceeding ten rounds as suitable for self-defense, including within the home. Glock 23 Ges.m.b.H, Gunny & Glock Wrong Diner, Youtube (Nov. 10, 2011), 24 https://www.youtube.com/watch?v=vsVCHE7ayPE&feature=c4- 25 overview&list=UUeeqOv%2085TJigJv6YrLHZhfQ; Glock Ges. m.b.H, Gunny & Glock 26 Wrong House, Youtube (Nov. 13, 2011), http://www.youtube.com/watch?v=6RNcFs- 27 JwOQ; Glock Ges.m.b.H, Gunny & Glock Wrong Girl, Youtube (Jan. 7, 2013), 28 http://www.youtube.com/watch?v=a2gCFOtaZPo; Glock Ges.m.b.H, Gunny & Glock 3 DECLARATION OF ANNA M. BARVIR ISO MOTION FOR PRELIMINARY INJUNCTION 17-cv-1017-BEN-JLB Case 3:17-cv-01017-BEN-JLB Document 6-2 Filed 05/26/17 PageID.112 Page 4 of 110 1 Wrong Convenience Store, Youtube (March 12, 2013), 2 http://www.youtube.com/watch?v=V8WCM_AAAyY; Glock Ges.m.b.H, Gunny & 3 Glock Wrong Guy, Youtube (Nov. 13, 2011), 4 https://www.youtube.com/watch?v=gzb7SLsFwtE&list=UUeeqOv85TJigJv6YrLHZhfQ; 5 Smith & Wesson, Smith & Wesson M&P Advertisement, Youtube (Dec. 22, 2011), 6 http://www.youtube.com/watch?v=TLuN-JrR4_M; Smith & Wesson M&P 7 Advertisment, Youtube.com (Dec. 22, 2011), 8 https://www.youtube.com/watch?v=g4jn6ry1pSA. 9 7. A true and correct copy of pages 73-97 from The Complete Book of 10 Autopistols: 2013 Buyer’s Guide (2013), identifying various models of handguns for sale 11 to the public that come standard with magazines greater than ten rounds, is attached as 12 Exhibit G. 13 [Historical Development and Prevalence of Magazines Over Ten Rounds] 14 8. A true and correct copy of David B. Kopel, The History of Firearm 15 Magazines and Magazine Prohibitions, 78 Albany L. Rev. 849, is attached as Exhibit H. 16 Mr. Kopel’s work provides a comprehensive analysis of the history and prevalence of 17 firearms and magazines with capacities over ten rounds, as well as the dearth of historical 18 antecedents to California’s ban on the possession of magazines over ten rounds. 19 9. A true and correct copy of pages 168-70 of Lewis Winant, Firearms Curiosa 20 (2009) (1st pub. 1954) is attached as Exhibit I. These excerpts from this reference 21 document the first known firearm able to fire more than ten rounds without reloading: a 22 16-shooter created around 1580 using “superposed” loads (each round stacked on top of 23 the other). 24 10. A true and correct copy of pages 716-18 of Clayton E. Cramer & Joseph 25 Olson, Pistols, Crime, and Public Safety in Early America, 44 Willamette L. Rev. 699 26 (2008) is attached as Exhibit J. These pages document the continued development of 27 multi-shot firearms through the seventeenth and eighteenth centuries. 28 11. A true and correct copy of pages 91-103 of Jim Garry, Weapons of the Lewis 4 DECLARATION OF ANNA M. BARVIR ISO MOTION FOR PRELIMINARY INJUNCTION 17-cv-1017-BEN-JLB Case 3:17-cv-01017-BEN-JLB Document 6-2 Filed 05/26/17 PageID.113 Page 5 of 110 1 and Clark Expedition (2012) is attached as Exhibit K. A true and correct copy of pages 2 69-70 of John Plaster, The History of Sniping and Sharpshooting (2008) is attached as 3 Exhibit L. A true and correct copy of page 31 of Jim Supica, Doug Wicklund & Philip 4 Shreier, Treasures of the NRA National Firearms Museum (2013) is attached as Exhibit 5 M. A true and correct copy of the Wikipedia page for the Girandoni Air Rifle, 6 http://en.wikipedia.org/wiki/Girandoni_Air_Rifle (last visited May 18, 2017) is attached 7 as Exhibit N. These resources document the Founding-era popularity of the Girandoni air 8 rifle, with a 20- or 22-shot capacity, and detail its many uses. 9 12. A true and correct copy of pages 682-83 of Norm Flayderman, 10 Flayderman’s Guide to Antique American Firearms and Their Values (9th ed. 2007) is 11 attached as Exhibit O. Flayderman’s documents the introduction of the Jennings multi- 12 shot flintlock rifle in 1821 which, according to the excerpts provided, allowed 12 shots 13 without reloading.