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Case 2:19-cv-00617-KJM-AC Document 15 Filed 07/08/19 Page 1 of 39

1 COSCA LAW CORPORATION


CHRIS COSCA SBN 144546
2 1007 7th Street, Suite 210
3 Sacramento, CA 95814
916-440-1010
4
AMY L. BELLANTONI
5 THE BELLANTONI LAW FIRM, PLLC
2 Overhill Road, Suite 400
6 Scarsdale, NY 10583
7 Telephone: 914-367-0090
Facsimile: 888-763-9761
8 Pro Hac Vice

9 Attorneys for Plaintiffs


10

11
UNITED STATES DISTRICT COURT
12
EASTERN DISTRICT OF CALIFORNIA
13

14
MARK BAIRD and Case No. 2:19-CV-00617-KJM-AC
15 RICHARD GALLARDO,
PLAINTIFFS’ MEMORANDUM OF
16 Plaintiffs, POINTS AND AUTHORITIES IN
17 SUPPORT OF MOTION FOR
v. PRELIMINARY INJUNCTION
18
XAVIER BECERRA, in his official
Date: September 6, 2019
19 capacity as Attorney General of the State of
Time: 10:00 a.m.
California, and DOES 1-10,
Courtroom: 3
20
Judge: Hon. Kimberly J. Mueller
21 Defendants. Trial Date: None set
Action Filed: April 9, 2019
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
Case 2:19-cv-00617-KJM-AC Document 15 Filed 07/08/19 Page 2 of 39

1 TABLE OF CONTENTS
2 page

3 Table of Authorities…………………………………………… 3
4 Introduction……………………………………………………. 6
5
Factual Background……………………………………………. 8
6
Legal Standard…………………………………………………. 8
7
Argument………………………………………………………. 9
8

9 I. Plaintiffs Are Likely To Succeed On The Merits…………….. 9


[Second Amendment Claims]
10
A. Self-Defense is the Core Right Protected by the
11 Second Amendment……………………………………. 9
12
B. Carrying a Firearm in Public for Self-Defense is a
13 Pre-Existing Right Protected by the
Second Amendment…………………………………….. 11
14
C. The Ninth Circuit Has, By Default, Declared
15 “Open Carry” a Core Second Amendment Right……….. 13
16
D. Penal Codes §26150, §26155, §25850, and §26350
17 Burden Conduct Protected by the Second Amendment…. 14

18 i. “Good Cause” Requirement for Open Carry


Licenses is Unconstitutional Per Se……………… 15
19
ii. “May Issue” Language for Open Carry
20
Licenses is Unconstitutional Per Se……………… 18
21
iii. “Geographical Restriction” of Open Carry
22 Licenses is Unconstitutional Per Se……………… 22
23 E. “Open Carry” is De Facto Banned in California……… 25
24
II. Plaintiffs Are Suffering, And Will Continue To Suffer,
25 Irreparable Harm……………………………….………………….. 32

26 III. Balancing The Equities Favors Plaintiffs……………………… 35


27 IV. A Preliminary Injunction Is In The Public’s Interest…………. 37
28
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1 TABLE OF AUTHORITIES
2
Cases Page(s)
3
Am. Trucking Ass’ns, Inc. v. City of Los Angeles,
4 559 F.3d 1046 (9th Cir. 2009) ..................................................................................................23

5 Bowers v. DeVito,
686 F.2d 616 (7th Cir. 1982) ............................................................................................. 17, 31
6
Balistreri v Pacifica Police Dept.,
7 901 F.2d 696 (9th Cir. 1988) ............................................................................................. 17, 31
8 County of Santa Clara v Trump,
250 F. Supp. 3d 497 (ND Cal 2017) .........................................................................................34
9
Drake v. Filko,
10 724 F.3d 426 (3d Cir. 2013) ..................................................................................................... 13
11 Duncan v Becerra,
265 F. Supp. 3d 1106 (SD Cal 2017) ............................................................................... passim
12
Elk Grove Unified Sch. Dist. v Newdow,
13
542 US 1 (2004) ........................................................................................................................33
14
Grace v. District of Columbia,
15 187 F. Supp. 3d 124 (DDC 2016) .............................................................................................33

16 District of Columbia v. Heller,


554 US 570 (2008)............................................................................................................ passim
17
Hernandez v Sessions,
18 872 F.3d 976, 989-990 (9th Cir. 2017) .......................................................................................8

19 Hobby Lobby Stores, Inc. v. Sebelius,


723 F.3d 1114 (10th Cir. 2013), aff'd sub nom., Burwell v. Hobby Lobby Stores, Inc., 134 S.
20 Ct. 2751, 189 L. Ed. 2d 675 (2014) ..........................................................................................37
21 Jackson v City & County of San Francisco,
746 F.3d 953 (9th Cir. 2014) ......................................................................................................9
22
Kachalsky v County of Westchester,
23 701 F.3d 81 (2d Cir. 2012) .................................................................................................13, 15
24 Ketchum v County of Alameda,
25 811 F.2d 1243 (9th Cir. 1987) ........................................................................................... 17, 31

26 Martinez v. California,
444 US 277 (1980) ..............................................................................................................17, 31
27
McDonald v City of Chicago,
28 561 US 742 (2010) ........................................................................................................... passim
3
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1 Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) ....................................................................................................33
2
Moore v Madigan,
3 702 F.3d 933 (7th Cir. 2012) ................................................................................. 11, 12, 13, 22
4 Muscarello v. United States,
5 524 U.S. 125 (1998) ..................................................................................................................12

6 Nunn v. State,
1 Ga. 243 (1846) ........................................................................................................................21
7
Palmer v District of Columbia,
8 59 F. Supp. 3d 173 (DDC 2014) .................................................................................................6

9 Peruta v County of San Diego,


742 F.3d 1144 (9th Cir 2014) vacated by, rehearing, en banc, granted by Peruta v. County of
10 San Diego, 781 F.3d 1106 (9th Cir 2015) (Peruta I) ......................................................... 12, 15
11 Peruta v County of San Diego,
824 F.3d 919 (9th Cir. 2016) (en banc) (cert. den.) (Peruta II) ....................................... passim
12
Rodriguez v. Robbins,
13 715 F.3d 1127 (9th Cir. 2013) ..................................................................................................33
14 State v. Reid,
1 Ala. 612 (1840) ......................................................................................................................21
15
United States v. Cruikshank,
16
92 US 542 (1876) ............................................................................................................... 10, 11
17
United States v. Robel,
18 389 US 258 (1967) ....................................................................................................................38

19 Winter v. NRDC, Inc.,


555 US 7 (2008) ..........................................................................................................................8
20
Wrenn v. District of Columbia,
21 864 F.3d 650 (DC Cir. 2017) ................................................................................................... 17
22
Statutes
23 United States Constitution, Amendment II ......................................................................................6
24 California Penal Code §26225 .......................................................................................................26
California Penal Code §32310 (c) & (d) ........................................................................................36
25
California Penal Code §26160 ......................................................................................... 26, 27, 30
26
California Penal Code §26350 ............................................................................................... passim
27 California Penal Code §25850 .............................................................................................. passim
28 California Penal Code §26150 ................................................................................................ passim
4
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1 California Penal Code §26155 .............................................................................................. passim


2 California Penal Code §26165 .......................................................................................................18

3
Other
4
An Analytical Framework and a Research Agenda,
5
56 UCLA L. Rev. 1443, 1515 (2009) ...................................................................................... 12
6
Black's Law Dictionary
7 214 (6th ed. 1998) .................................................................................................................... 12

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1 INTRODUCTION
2 California Penal Codes §26150, §26155, §25850, and §26350, enacted by the State of

3 California, and enforced by Defendant Xavier Becerra in his official capacity as the Attorney
4 General of the State of California, his agents, servants, employees, and those working in active
5
concert with him, violate the pre-existing right of law-abiding individuals to bear arms in public
6
for self-protection. Specifically, California’s handgun licensing scheme and corresponding
7
criminal statutes, violate inter alia, the Second Amendment protected right to open carriage of a
8

9 firearm for self-protection in public. The aforementioned statutes are facially unconstitutional and

10 unconstitutional as applied to Plaintiffs.

11 “A well-regulated militia, being necessary to the security of a free State, the right of the
12
people to keep and bear arms, shall not be infringed.” United States Constitution, Amendment II.
13
The Second Amendment secures the right to protect oneself against both public and
14
private violence, thus extending the right in some form to wherever a person could become
15
exposed to public or private violence. Palmer v District of Columbia, 59 F Supp 3d 173, 180
16

17 (DDC 2014), citing, District of Columbia v Heller, 554 US 570, 593-595 (2008). (internal

18 quotations omitted).
19 In Peruta v County of San Diego, 824 F3d 919, 942 (9th Cir 2016) (en banc) (Peruta II)
20
(cert. den.) the Ninth Circuit upheld California’s “good cause” requirement for the issuance of a
21
concealed carry license (“CCW”). Finding that the Second Amendment did not protect in any
22
degree the right to carry concealed firearms in public, any prohibition or restriction a state might
23

24 choose to impose on concealed carry, including a requirement of good cause, however defined,

25 was necessarily allowed by the Second Amendment. Id. In the opinion of the Ninth Circuit,

26 concealed carry is a mere privilege, not a pre-existing right.


27

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1 The plain language of the Second Amendment mandate “…the right to…bear arms shall
2 not be infringed” codifies the pre-existing right to carry firearms in public in some manner for
3
self-protection. There are only two (2) modalities for carrying a firearm in public for self-
4
protection: concealed carry and open carry.
5
By removing concealed carry from the equation, the Ninth Circuit de facto classified the
6

7 open carriage of firearms in public – the sole remaining modality of bearing arms in public for

8 self-defense - as the pre-existing right referred to by the founding fathers and protected by the

9 Second Amendment. The open carriage of firearms falls squarely within Second Amendment
10
protected activity. A contrary view irrationally eviscerates 50% of the Second Amendment.
11
The complained of statutes, as well as the policies and conduct of defendant Becerra and
12
the licensing authorities in this state, have de facto eliminated the ability of Plaintiffs and other
13
law-abiding residents of California, to exercise their right to open carry without the threat and
14

15 fear of criminal prosecution.

16 California’s handgun licensing scheme, enumerated in Penal Codes §26150 and §26155,
17 unconstitutionally infringes on the pre-existing right of Plaintiffs, and other law-abiding residents
18
of California, by inter alia, 1 (i) requiring “good cause” for the issuance of an open carry license;
19
(ii) containing “may issue” language empowering the sheriffs and chiefs of police to deny open
20
carry applications to law-abiding individuals such as Plaintiffs, who are otherwise eligible for its
21

22 issuance; and (iii) restricting the validity of duly-issued open carry licenses to the county of

23 issuance. As such, Penal Codes § 26150 and § 26155 unconstitutionally burden the pre-existing

24 right to open carry, causing Plaintiffs and other law-abiding otherwise eligible residents of
25

26 1
The complained of statutes violate other fundamental, pre-existing rights protected by the Bill of Rights as detailed
in the Complaint for Declaratory and Injunctive Relief. The instant motion for a preliminary injunction is based
27 solely on the violations of Plaintiffs’ Second Amendment rights. Plaintiffs assert that the constitutional violations
claimed in their Complaint but not specifically relied upon herein would, likewise, establish their entitlement to the
28 injunctive relief requested.
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1 California, irreparable harm, as well as all.


2 California Penal Codes §25850 and §26350 criminalize the possession of loaded and
3
unloaded firearms in public, respectively. As such, if Plaintiffs exercised their pre-existing right
4
to open carry for self-protection in public, they would be subject to criminal prosecution,
5
including incarceration, fines, and penalties.
6

7 Based on the within Memorandum of Points and Authorities, accompanying Declarations

8 of Amy L. Bellantoni, Mark Baird, Richard Gallardo, and all accompanying exhibits, Plaintiffs’

9 motion to enjoin Attorney General Xavier Becerra, his agents, servants, employees, and those
10
working in active concert with him, from enforcing and/or giving effect to California Penal Codes
11
§26150, §26155, §26350, and §25850 as they relate to the open carriage of a firearm in public,
12
whether loaded or unloaded, during the pendency of this action should respectfully be granted in
13
its entirety. If Plaintiffs’ motion is not granted, they will continue to suffer irreparable harm that
14

15 cannot be remedied economically.

16 FACTUAL BACKGROUND
17 LEGAL STANDARD

18 In order to obtain a preliminary injunction a plaintiff must establish that (1) he is likely to
19 succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary
20
relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest.
21
Hernandez v Sessions, 872 F3d 976, 989-990 (9th Cir 2017) (internal quotations omitted) citing,
22
Winter v. NRDC, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). Under our
23

24 “sliding scale” approach, the elements of the preliminary injunction test are balanced, so that a

25 stronger showing of one element may offset a weaker showing of another. Id. (citations and

26 quotations omitted).
27

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1 ARGUMENT
2 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
3 [SECOND AMENDMENT CLAIMS]

4 Plaintiffs are likely to succeed on the merits of their Second Amendment claims because

5 the challenged laws and governmental conduct burdens the pre-existing right to bear arms in
6 public for self-protection, to wit, open carry; a right that falls squarely within the scope of Second
7
Amendment protections.
8
A. Self-Defense is the Core Right Protected by the Second Amendment
9
Self-defense is a basic human right, recognized by many legal systems from ancient times
10

11 to the present day. McDonald v City of Chicago, 561 US 742, 768 (2010).

12 The fundamental right to self-defense is inseparable from the individual. The right of the

13 law-abiding individual to possess firearms for the safety, defense, and preservation of one’s own
14
body, is as critical and fundamental outside of the home as it is inside of the home. See, District
15
of Columbia v. Heller, 554 US 570, 595-599 (2008).
16
The Second Amendment protects the pre-existing and fundamental right of the individual
17
to bear arms. “It was not necessary that the right to bear arms should be granted in the
18

19 Constitution, for it had always existed.” District of Columbia v. Heller, 554 US at 619, citing, J.

20 Ordronaux, Constitutional Legislation in the United States 241-242 (1891).


21 “Individual self-defense is the central component of the Second Amendment right.”
22
McDonald v City of Chicago, 561 US at 767, citing, District of Columbia v. Heller, 554 U.S. at
23
599, 628. (internal quotations omitted); see also, Jackson v City & County of San Francisco, 746
24
F3d 953, 959 (9th Cir 2014) citing Heller, 554 U.S. at 595, 628 (“After undertaking a lengthy
25

26 analysis of the original public meaning of the Second Amendment, the [Heller] Court concluded

27 that it confers an individual right to keep and bear arms. [ ] Guided by the same historical inquiry,

28 the Court emphasized that the inherent right of self-defense has been central to the Second
9
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1 Amendment right.”).
2 The individual’s right to self-defense is the core Second Amendment right identified by
3
the Supreme Court in Heller. District of Columbia v. Heller, 554 US at 630. Nowhere in Heller
4
did the Supreme Court hold that the scope of the Second Amendment was limited to the
5
possession of firearms in the home for self-defense. While holding in Heller was limited to the
6

7 facts before the Court – that the government’s statutory prohibition of firearm possession in the

8 home violated the Second Amendment - the Supreme Court pronounced clearly that the right of

9 the people to keep arms (possess) and bear arms (carry in public), are both central and integral to
10
the core right to self-defense that is protected by the Second Amendment and they are of equal
11
importance.
12
The detailed analysis conducted by the Supreme Court in Heller bears out the Supreme
13
Court’s desire to emphasize the existence the pre-existing right of the individual to self-protection
14

15 – at home or in public. The narrow issue before the Court in Heller could have been resolved

16 without the Justices taking the time to call attention to the fact that the Second Amendment
17 “guarantee[s] the individual right to possess and carry weapons in case of confrontation. This
18
meaning is strongly confirmed by the historical background of the Second Amendment. We look
19
to this because it has always been widely understood that the Second Amendment, like the First
20
and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment
21

22 implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be

23 infringed.’ As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876),

24 ‘[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that
25 instrument for its existence. The second amendment declares that it shall not be infringed…”
26
District of Columbia v Heller, 554 US at 592 (emphasis in the original).
27

28
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1 The framers of the Constitution made clear that the core right to self-defense protected by
2 the Second Amendment “shall not be infringed”. The Second Amendment mandates that the pre-
3
existing right of the individual to possess firearms to protect himself, at home and in public, shall
4
not be interfered with by the government to any extent; thus, an infringement of that right is per
5
se unconstitutional.
6

7 B. Carrying a Firearm in Public for Self-Defense is a Pre-Existing Right


Protected by the Second Amendment
8
Self-defense at home and self-defense in public are equally important rights because
9
keeping arms and bearing arms are necessary to the individual’s basic human right of self-
10

11 defense. The Supreme Court recognized that the individual’s right to self-defense is as critical and

12 fundamental outside of the home as it is inside of the home. See, Heller, 554 US at 595-599;

13 McDonald v City of Chicago, 561 US 742, 776; see also, Moore v Madigan, 702 F3d 933, 941
14
(7th Cir 2012) (An individual does not forfeit his right to self-protection by stepping outside of
15
his home. The right to self-protection is as great outside of one’s home as it is inside the home.).
16
In Heller the Supreme Court examined the historical background and meaning of the term
17
“bear arms” reasoning that the Second Amendment “guarantee[s] the individual right to possess
18

19 and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical

20 background of the Second Amendment. We look to this because it has always been widely
21 understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-
22
existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of
23
the right and declares only that it ‘shall not be infringed.’ As we said in United States v.
24
Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876), “[t]his is not a right granted by the
25

26 Constitution. Neither is it in any manner dependent upon that instrument for its existence. The

27 second amendment declares that it shall not be infringed . . . .” District of Columbia v Heller, 554

28 US 570, 592 (2008).


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1 Were the right to bear arms restricted to the home, the language “bear arms” would be
2 rendered superfluous. “At the time of the founding, as now, to ‘bear’ meant to ‘carry’.” District of
3
Columbia v Heller, 554 U.S. at 584. The ‘natural meaning of ‘bear arms’ was the one that Justice
4
Ginsburg provided in her dissent in Muscarello v. United States, 524 U.S. 125, 118 S. Ct. 1911,
5
141 L. Ed. 2d 111 (1998): to “wear, bear, or carry . . . upon the person or in the clothing or in a
6

7 pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of

8 conflict with another person.” Heller, 554 U.S. at 584 (quoting Muscarello, 524 U.S. at 143, 118

9 S. Ct. 1911) (Ginsburg, J., dissenting) (quoting Black's Law Dictionary 214 (6th ed. 1998)).
10
“Bearing a weapon inside the home does not exhaust this definition of ‘carry’. For one
11
thing, the very risk occasioning such carriage, ‘confrontation’, is not limited to the home.” Moore
12
v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012)). “The prospect of conflict at least, the sort of
13
conflict for which one would wish to be ‘armed and ready’ is just as menacing (and likely more
14

15 so) beyond the front porch as it is in the living room…to speak of ‘bearing’ arms within one’s

16 home would at all times have been an awkward usage.” Id.


17 Both Heller and McDonald identify the “core component” of the Second Amendment
18
right as self-defense, “which necessarily takes place wherever a person happens to be, whether in
19
a back alley or on the back deck.” Peruta v County of San Diego, 742 F3d 1144, 1154 (9th Cir
20
2014) vacated by, rehearing, en banc, granted by Peruta v. County of San Diego, 781 F.3d 1106
21

22 (9th Cir 2015) (Peruta I) citing, Eugene Volokh, Implementing the Right to Keep and Bear Arms

23 for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443,

24 1515 (2009); see also Moore v Madigan, 702 F.3d at 937 (“To confine the right to be armed to the
25 home is to divorce the Second Amendment from the right of self-defense described in Heller and
26
McDonald.”).
27

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1 The Second Amendment right to bear arms “could not rationally have been limited to the
2 home.” Moore v Madigan, 702 F.3d at 936. Though people may “keep Arms” (or, per Heller’s
3
definition, “have weapons”, 554 U.S. at 582) in the home for defense of self, family, and
4
property, they are more sensibly said to “bear Arms” (or, Heller’s gloss: “carry [weapons] . . .
5
upon the person or in the clothing or in a pocket”) in nondomestic settings. Peruta I at 1153
6

7 citing, Kachalsky v County of Westchester, 701 F3d 81, 89 n.10 (2d Cir 2012) (“The plain text of

8 the Second Amendment does not limit the right to bear arms to the home.”); see also, Drake v.

9 Filko, 724 F.3d 426, 444 (3d Cir. 2013) (Hardiman, J., dissenting) (“To speak of bearing arms
10
solely within one’s home not only would conflate ‘bearing’ with ‘keeping’, in derogation of the
11
Court’s holding that the verbs codified distinct rights, but also would be awkward usage given the
12
meaning assigned the terms by the Supreme Court.”) (internal quotations omitted).
13
C. The Ninth Circuit Has, By Default, Declared “Open Carry”
14
a Core Second Amendment Right
15
The plain language of the Second Amendment confirms the pre-existing right of the
16
people to carry weapons in public for self-defense.
17
Carrying a firearm in public for self-protection can be exercised in two modalities:
18

19 concealed carry and open carry. The Ninth Circuit ruled that the concealed carry of a firearm is

20 not a right protected by the Second Amendment, but a mere ‘privilege’ to be granted or denied at
21 the whim of the government. “Because the Second Amendment does not protect in any degree the
22
right to carry concealed firearms in public, any prohibition or restriction a state may choose to
23
impose on concealed carry - including a requirement of ‘good cause’, however defined - is
24
necessarily allowed by the [Second] Amendment.” Peruta v County of San Diego, 824 F3d 939
25

26 (9th Cir 2016) (Peruta II) (emphasis added) (“The protection of the Second Amendment -

27 whatever the scope of that protection may be - simply does not extend to the carrying of

28 concealed firearms in public by members of the general public.”).


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1 Desperate to conclusively deny the law-abiding person the right to carry her weapon
2 concealed so as to have a tactical advantage over a violent criminal attacker, the Ninth Circuit
3
tacitly confirmed that “open carry” is a pre-existing right, protected from governmental
4
infringement by the Second Amendment. Peruta II, 824 F3d at 942 (“If the Second Amendment
5
does protect the right of a member of the general public to carry a firearm in public, it is the right
6

7 to open carry.”).

8 After Peruta II, viewing open carry as anything less than a fundamental, pre-existing right

9 falling within the scope of Second Amendment protections flies in the face of common sense. A
10
plain reading of the Second Amendment: “…the right of the people to…bear arms shall not be
11
infringed” so demonstrates.
12
A contrary view is irrational and intellectually dishonest. If every manner of bearing arms
13
- open carry and concealed carry - is reduced to mere ‘privilege’ status, subject to the whims of
14

15 governmental control, the law-abiding individual is left in exactly the position that the Bill of

16 Rights was created to prevent - at the mercy of the government with no ‘right’ to possess a
17 firearm for self-protection against a violent attack outside of one’s home.
18
D. Penal Codes §26150, §26155, §25850, and §26350 Burden Conduct Protected by
19 the Second Amendment

20 The Second Amendment right to keep and bear arms for the purpose of individual self-
21 defense is fully applicable to the states. McDonald v City of Chicago, 561 US 742 (2010).
22
A statute which, under the pretense of ‘regulating’ fundamental rights, amounts to a
23
destruction of that right is clearly unconstitutional. District of Columbia v. Heller, 554 U.S. 570,
24
629, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) (internal quotations omitted).
25

26 California Penal Codes §26150, §26155, §26350, and §25850 place an unconstitutional

27 burden on the pre-existing rights of Plaintiffs, and all law-abiding residents of California, to bear

28 arms in public for self-protection.


14
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
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1 i. “Good Cause” Requirement for Open Carry Licenses is Unconstitutional Per Se


2 California Penal Codes §26150 and §26155 require a showing of “good cause” before a
3
license to carry a firearm may issue – the burden is the same for the issuance of a concealed carry
4
license (“CCW”) or open carry license.
5
“Good cause” is generally defined in the Ninth Circuit as “demonstrating a need for self-
6

7 protection that is greater than the average person, requiring documented threats of violence that

8 establish the applicant is a target and at risk for specific harm.” See, Peruta v County of San

9 Diego, 742 F3d 1144, 1193 (9th Cir 2014) (San Diego County’s “good cause” requirement only
10
allows issuance only to individuals who will most likely need to defend themselves in public to
11
carry a handgun); see also, Kachalsky v County of Westchester, 701 F3d 81, 98 (2d Cir 2012)
12
(“‘proper cause’ is met …when a person has an actual and articulable—rather than merely
13
speculative or specious—need for self-defense”).
14

15 The complained of statutes authorize each city and county to define “good cause” as they

16 see fit. (Penal Codes §26150, §26155). For instance, the Amador County Sheriff considers “good
17 cause” as: specific evidence that there has been or likely will be an attempt on the part of a second
18
party to do great bodily harm to the applicant; the nature of the business or occupation of the
19
applicant is such that it is subject to high personal risk and/or criminal attack far greater risk than
20
the general population; employment that requires frequent transportation of large sums of money
21

22 or other valuables and alternative protective measures or security cannot be employed;

23 employment is of a high-risk nature and requires the applicant’s presence in a dangerous

24 environment; employment is such that no means of protection, security or risk avoidance can
25 mitigate the threat; and/or personal protection is warranted to mitigate a threat to the applicant
26
and the applicant is able to substantiate the threat.
27

28
15
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1 “Good cause”, therefore, can rarely be established because members of the general public
2 have not had specific threats made against them, are not engaged in dangerous employment, and
3
do not transport large sums of money in the course of their occupation. Indeed, most victims have
4
no ‘crystal ball’ informing them that they are about to become victims of a violent criminal
5
attack.
6

7 The Ninth Circuit upheld California’s “good cause” requirement for the issuance of

8 concealed carry licenses, reasoning that because the ability to carry firearms concealed in public

9 is merely privilege and not a right, “any prohibition or restriction a state may choose to impose on
10
concealed carry - including a requirement of good cause, however defined - is necessarily allowed
11
by the [Second] Amendment.” Peruta v County of San Diego, 824 F3d at 939 (Peruta II).
12
Open carry is not a privilege subject to governmental hoops; it is a pre-existing right. The
13
government cannot tether the issuance of an open carry license to a demonstration of “good
14

15 cause”. In other words, the law-abiding individual has no burden to justify his entitlement to

16 exercise the pre-existing right to open carry.


17 The “good cause” requirements of Penal Codes §26150 and §26155 are per se
18
unconstitutional. While the “good cause” burden may be acceptable in the eyes of the Ninth
19
Circuit as applied to a privilege, such as a CCW license, its legal acceptability was tethered to the
20
classification of CCW as a privilege. Such burdens are unacceptable, indeed unconstitutional,
21

22 when applied to the right to open carry.

23 The enforcement of §26150 and §26155 must be enjoined because the “good cause”

24 requirement unconstitutionally infringes on a fundamental Second Amendment right (open carry),


25 treating it in the same manner as a mere ‘privilege’ (concealed carry).
26
The “good cause” requirement is not only unlawful when applied to open carry licenses, it
27
also amounts to a total ban on the issuance of open carry licenses. When the “good cause”
28
16
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
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1 requirement is analyzed regarding its effect on the typical law-abiding citizen, it prevents the
2 general public from self-protection outside of the home. See, Wrenn v. District of Columbia, 864
3
F.3d 650, 665-666 (DC Cir 2017) (“…the good-reason law is necessarily a total ban on most D.C.
4
residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are
5
no more dangerous with a gun than the next law-abiding citizen.”).
6

7 The “good cause” burden requires law-abiding individuals to distinguish themselves from

8 the typical law-abiding citizen. By definition, the pre-existing right to bear arms for self-

9 protection in public exists for, and attaches to, every law-abiding individual. The right to bear
10
arms is attached to the individual, wherever s/he is. See, e.g., District of Columbia v. Heller, 554
11
US at 619, citing, J. Ordronaux, Constitutional Legislation in the United States 241-242 (1891)
12
(“It was not necessary that the right to bear arms should be granted in the Constitution, for it had
13
always existed.”). Requiring the open carry applicant to distinguish himself from other law-
14

15 abiding members of society or to establish the need for self-defense greater than the average

16 person in order to exercise a pre-existing right to self-defense is an unconstitutional burden on the


17 law-abiding person and violates the Second Amendment right to bear arms.
18
The government cannot force Plaintiffs, or any other law-abiding residents of California,
19
to prove their entitlement to exercise a pre-existing right to defend themselves in public from an
20
attacker - particularly when law enforcement has no duty to protect the individual. C.f., Balistreri
21

22 v Pacifica Police Dept., 901 F2d 696, 699-700 (9th Cir 1988) (dismissing complaint where

23 police failed to take steps to respond to the continued threats, harassment and violence by

24 estranged husband because “there is, in general, no constitutional duty of state officials to protect
25 members of the public at large from crime.”); Martinez v. California, 444 U.S. 277, 284-85, 62 L.
26
Ed. 2d 481, 100 S. Ct. 553 (1980); Ketchum v County of Alameda, 811 F2d 1243, 1244-47 (9th
27
Cir 1987); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982).
28
17
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1 Plaintiffs desire to exercise their right to the open carriage of firearms and cannot be
2 forced by the government to demonstrate “good cause” before exercising their right to open carry.
3
Plaintiffs have no burden to justify the exercise of a pre-existing and fundamental right to possess
4
a firearm for self-defense in public.
5
Based on the above, Plaintiffs have demonstrated a strong likelihood of success on the
6

7 merits of their Second Amendment claims regarding the “good cause” requirements under Penal

8 Codes §26150 and §26155 as applied to open carry licenses, warranting an order granting the

9 requested injunctive relief.


10
ii. “May Issue” Language for Open Carry Licenses is Unconstitutional Per Se
11
Penal Codes §26150 and §26155 authorizes the licensing authority (the sheriff under
12
§26150 and the chief or other head of a municipal police department of any city or city and
13
county under §26155) complete discretion to issue or deny an application for an open carry
14

15 license, even where the law-abiding applicant otherwise satisfies all other statutory criteria.

16 The “may issue” language of §26150 and §26155 unlawfully empowers the licensing
17 authority to divest a law-abiding individual, eligible under the licensing statutes 2, of a protected
18
constitutional right.
19
The open carriage of a firearm in public is a pre-existing right protected by the Second
20
Amendment. Where an individual meets the requirements 3 of §26150 and §26155, there is no
21

22 further governmental determination to be made.

23

24

25 2
Under §26150 and §26155, the sheriff or chief of police, respectively, “may issue” an open carry license upon proof
that the applicant meets all of the following: (1) is of good moral character; (2) ‘good cause’ exists for issuance of the
26 license; (3) meets the residential requirements; (4) has completed a course of training as described in Section 26165;
and (5) lives in a county with a population less than 200,000. The open carry license, however, is only valid in the
27 county of issuance.
3
Plaintiffs accept for purposes of this motion, but do not generally concede and specifically reserve their right to
28 challenge, the “moral character” and residency requirements of the above statutes.
18
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
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1 The government is not “free to impose [its] own policy choices” on the public… as Heller
2 explains, the Second Amendment takes certain policy choices and removes them beyond the
3
realm of debate. Disarming California’s law-abiding citizenry is not a constitutionally-permissible
4
policy choice.” See, Duncan v Becerra, 265 F Supp 3d 1106, 1128 (SD Cal 2017).
5
Empowering any government actor with the ability to strip a law-abiding person of the
6

7 fundamental right to self-protection in public, is an unlawful burden on the right to bear arms as

8 protected by the Second Amendment. The “may issue” language of §26150 and §26155

9 emboldens arrogance, instilling unfettered discretion in the licensing authority and an abrogation
10
of basic fundamental rights to self-protection.
11
The Bill of Rights does not give any rights to the people – the first ten amendments were
12
created to protect pre-existing rights; to restrict government action and prevent the government
13
from interfering with the people’s fundamental rights.
14

15 The right of the law-abiding person to carry a firearm exposed in public for self-protection

16 mandates that the government issue open carry licenses to all eligible applicants. As such, the
17 “may issue” language of California’s handgun licensing statutes infringes upon, interferes with,
18
and violates the Second Amendment.
19
Mr. Baird meets the eligibility requirements for the issuance of an open carry license – he
20
is of good moral character, resides in Siskiyou County with a population less than 200,000
21

22 people, and has fulfilled all training requirements. (See, p. 2-4 of the Declaration of Mark Baird

23 as Exhibit 1 annexed to the Declaration of Amy L. Bellantoni). Mr. Baird applied to Siskiyou

24 County Sheriff Jon Lopey (“Sheriff Lopey”) for an open carry license on more than one occasion.
25 Each of his requests was denied in spite of the fact that Mr. Baird is a law-abiding individual who
26
meets all other statutory criteria.
27

28
19
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1 Sheriff Lopey informed Mr. Baird that he will not issue any open carry licenses. (Ex. 1 at
2 p. 2-5). The Siskiyou County Sheriff’s Office does not even have an open carry license
3
application or a procedure for applying for an open carry license. (Ex. 1 at p. 2-5 and annexed
4
exhibits). There is no administrative appeal process available for challenging Sheriff Lopey’s
5
denial of Mr. Baird’s open carry applications. Even if there were an administrative appeal process
6

7 available, an appeal would be futile because Sheriff Lopey personally confirmed to Mr. Baird that

8 he will not issue any open carry licenses. (Ex. 1 at p. 4).

9 The statutory “may issue” language authorizes Sheriff Lopey to flagrantly and arbitrarily
10
violate Mr. Baird’s Second Amendment rights, as well as the rights of all other law-abiding
11
residents of Siskiyou County seeking to exercise their right to open carry.
12
Likewise, Mr. Gallardo meets all eligibility requirements for the issuance of an open carry
13
license – he is of good moral character, resides in Shasta County, which has a population less than
14

15 200,000 people, and has fulfilled all statutory training requirements. (See, p. 2-4 of the

16 Declaration of Richard Gallardo as Exhibit 2 annexed to the Bellantoni Declaration).


17 Mr. Gallardo has applied to Shasta County Sheriff Tom Bosenko (“Sheriff Bosenko”) for
18
an open carry license on more than one occasion. (Ex. 2 at p. 3-4). Each of Mr. Gallardo’s
19
applications has been denied. The Shasta County Sheriff’s Office informed Mr. Gallardo, “We
20
don’t offer a license to carry loaded and exposed in Shasta County. This type of license is only
21

22 good in the county issued and we would have to extend this option to all permit holders.” (Ex. 2

23 at p. 3-4). There is no administrative appeal process available for Mr. Gallardo to challenge

24 Sheriff Bosenko’s denial of his applications for an open carry license, but even there were, such
25 ‘process’ would be futile because Sheriff Bosenko has stated publicly that he will not issue any
26
“open carry” licenses. (Ex. 2 at p. 4). Sheriff Bosenko stated publicly that, to his knowledge based
27
on his regular meetings with the Sheriffs around the State, none of the Sheriffs serving in
28
20
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
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1 26150(b)(2) counties in California have ever issued “open carry” pistol licenses. (Ex. 2 at p. 4-5).
2 By subjecting the constitutional right to open carry to the discretionary, arbitrary, and
3
capricious decision making of governmental actors, the “may issue” language of §26150 and
4
§26155 unlawfully implicates and burdens a core Second Amendment right and is therefore
5
unconstitutional. See, Heller, 554 US at 629 citing, Nunn v. State, 1 Ga. 243, 251 (1846) (Georgia
6

7 Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a

8 prohibition on carrying concealed weapons); Andrews v. State, 50 Tenn. at 187 (Tennessee

9 Supreme Court held that a statute that forbade openly carrying a pistol “publicly or privately,
10
without regard to time or place, or circumstances” violated the state constitutional provision,
11
which the court equated with the Second Amendment, even though the statute did not restrict the
12
carrying of long guns); State v. Reid, 1 Ala. 612, 616-617 (1840) (“A statute which, under the
13
pretence of regulating, amounts to a destruction of the right, or which requires arms to be so
14

15 borne as to render them wholly useless for the purpose of defence, would be clearly

16 unconstitutional”).
17 If the language of California’s licensing statutes mandated the issuance of open carry
18
licenses to otherwise eligible law-abiding applicants, by e.g., “shall issue” language, Sheriff
19
Bosenko would be required to issue Mr. Gallardo an open carry license.
20
The “may issue” language of §26150 and §26155 and defendant Becerra’s enforcement of
21

22 such statutes, unlawfully burdens the Second Amendment rights of Plaintiffs and other otherwise

23 eligible individuals in California. Based on the above, Plaintiffs have demonstrated a strong

24 likelihood of success on the merits of their Second Amendment claims regarding the “may issue”
25 language of Penal Codes §26150 and §26155 as applied to open carry licenses, warranting an
26
order granting the requested injunctive relief.
27

28
21
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
Case 2:19-cv-00617-KJM-AC Document 15 Filed 07/08/19 Page 22 of 39

1 iii. “Geographical Restriction” of Open Carry Licenses is Unconstitutional Per Se


2 “Individual self-defense is the central component of the Second Amendment right.”
3
McDonald v City of Chicago, 561 US at 767, citing, District of Columbia v. Heller, 554 U.S. at
4
599 (emphasis added) (internal quotations omitted). The Second Amendment protects the core
5
right of the individual to self-protection. Heller, 554 US at 595-599, 628.
6

7 The fundamental right to self-defense is inseparable from the individual. The right of the

8 law-abiding individual to possess firearms for the safety, defense, and preservation of one’s own

9 body, is as critical and fundamental outside of the home as it is inside of the home. See, District
10
of Columbia v. Heller, 554 US at 595-599. (emphasis added).
11
An individual does not forfeit his right to self-protection by stepping outside of his home.
12
The right to self-protection is as great outside of one’s home as it is inside the home. Moore v
13
Madigan, 702 F3d 933, 941 (7th Cir 2012) (holding that “[a] right to bear arms . . . implies a right
14

15 to carry a loaded gun outside the home” and striking down the open-and-concealed-carry

16 regulatory regime in Illinois because the state failed to justify “so substantial a curtailment of the
17 right of armed self-defense”). The right of the individual to protect himself against both public
18
and private violence was legally recognized as far back as 1689. See, District of Columbia v
19
Heller, 554 at 594.
20
Indeed, “to confine the right to be armed to the home is to divorce the Second Amendment
21

22 from the right to self-defense described in Heller and McDonald”. Moore v. Madigan, supra.

23 Under Penal Codes §26150 and §26155, open carry licenses are only valid in the

24 licensee’s county of residence (the county of issuance). Thus, if an open carry licensee carries his
25 firearm loaded and exposed in a county other than his county of residence (the county of
26
issuance) he will be subject to criminal penalties and sanctions, up to and including imprisonment
27
under Penal Code §25850.
28
22
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
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1 Similarly, if an open carry licensee carries his handgun exposed and unloaded on his
2 person, outside of the county of issuance, he will be subject to criminal penalties and sanctions,
3
up to and including fines and imprisonment under Penal Code §26350
4
California’s limitations on the validity of open carry licenses requires its residents to
5
choose between exercising their fundamental right to self-protection in public or being subjected
6

7 to criminal prosecution and imprisonment – a despotic choice that conditions the exercise of one

8 fundamental right upon the surrender of the equally fundamental right to liberty and freedom.

9 While governmental regulations on sensitive areas, such as schools and courthouses have
10
been upheld by the courts as presumptively lawful (see, Heller, 554 US at 626), California’s
11
broad and overreaching geographical limitation on the validity of open carry licenses eviscerates
12
the fundamental right of the individual self-protection outside of the home. The fundamental right
13
to protect one’s self does not end when one steps outside of his home, nor does it end when he
14

15 crosses over county lines. See, e.g., Heller, 554 US at 595-599 (The right of the law-abiding

16 individual to possess firearms for the safety, defense, and preservation of one’s own body is as
17 critical and fundamental outside of the home as it is inside of the home).
18
Limiting the authority of an open carry license to the county of residence and
19
criminalizing open carry outside of one’s county of residence is presumptively unlawful because
20
it causes the individual, including Plaintiffs, to choose between exercising a constitutional right or
21

22 be subject to criminal prosecution. See, e.g., Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559

23 F.3d 1046, 1058-59 (9th Cir. 2009) (plaintiffs were injured where they were faced with the choice

24 of signing unconstitutional agreements or facing a loss of customer goodwill and significant


25 business).
26
As borne out in their respective Declarations attached as Exhibits 1 and 2 respectively,
27
Mr. Baird and Mr. Gallardo intend to exercise their right to the open carriage of a firearm in
28
23
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
Case 2:19-cv-00617-KJM-AC Document 15 Filed 07/08/19 Page 24 of 39

1 public, whether loaded or unloaded, for self-protection within their county of residence and
2 throughout the State of California. (Ex. 1 at p. 2; Ex. 2 at p. 2).
3
Assuming that Plaintiffs were able to exercise their right to open carry by way of a duly
4
issued open carry license in their respective counties, the geographical restrictions of §26150 and
5
§26155 unlawfully restrict their lawful exercise of such right in California’s remaining counties.
6

7 In other words, even with an open carry license, Plaintiffs cannot truly exercise the right to open

8 carry within the entire State of California, which they intend to do, without being subjected to

9 criminal penalties under Penal Codes §26350 (unloaded firearm) and §25850 (loaded firearm)
10
including incarceration, a criminal record, fines, and other sanctions. See. e.g., Duncan v Becerra,
11
265 F Supp 3d 1106, 1113 (SD Cal 2017) (Article III standing analysis recognizes that, where
12
threatened action by government is concerned, courts do not require a plaintiff to expose himself
13
to criminal liability before bringing suit.”).
14

15 Under the present circumstances, if Plaintiffs were to exercise the right to open carry

16 inside of their own counties without an open carry license, which they intend to do (Ex. 1 at p. 2;
17 Ex. 2 at p. 2), they will be subjected to criminal penalties under Penal Codes §26350 (unloaded
18
firearm) and §25850 (loaded firearm) including incarceration, a criminal record, fines, and other
19
sanctions.
20
Plaintiffs should not have to choose between exercising their Second Amendment rights
21

22 or being criminally prosecuted. Restricting the open carriage of firearms to the issuing county

23 unlawfully violates Plaintiffs’ right to self-defense. Acknowledging the exceptions on firearm

24 possession in specific sensitive places, such as courthouses and schools, the geographical
25 restriction on the validity of open carry licenses is unconstitutional as it unlawfully implicates and
26
burdens a core Second Amendment right – the right of the individual to self-protection in public.
27

28
24
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
Case 2:19-cv-00617-KJM-AC Document 15 Filed 07/08/19 Page 25 of 39

1 The Second Amendment does not protect the right to defend a particular geographical
2 location; it protects the rights of actual, living people. The right to self-protection is attached to
3
the individual, not some particular location – it follows you inside of your home and out into the
4
public domain. The right identified in Heller, to right possess firearms for self-defense when you
5
are in your home, does not disappear when you leave your home and enter into the public domain,
6

7 nor does it terminate because you have traveled into another county.

8 The geographical restrictions on the validity of open carry licenses of §26150 and §26155

9 to the county of issuance unlawfully burden the Second Amendment rights of Plaintiffs and other
10
otherwise eligible residents of California. Indeed, even the privilege of having a CCW license
11
provides greater protections than the right to open carry because a CCW license is valid in the
12
entire state [acknowledging the exception of sensitive places], but the validity of an open carry
13
license (if one were ever issued) terminates at the county line.
14

15 Defendant Becerra’s enforcement of §25850 and §26350 unlawfully criminalize the

16 exercise of the pre-existing right to open carry, forcing Plaintiffs to choose between exercising the
17 right or being criminally prosecuted.
18
Plaintiffs’ right to open carry is irrefutably violated by §26150, §26155, §25850, §26350,
19
and defendant Becerra’s enforcement of said statutes. Based on the above, Plaintiffs have
20
demonstrated a strong likelihood of success on the merits of their Second Amendment claims
21

22 regarding the geographical restrictions of the open carry licenses in Penal Codes §26150 and

23 §26155, as well as defendant Becerra’s blanket elimination of the right to open carry in

24 California, warranting an order granting the requested injunctive relief.


25 E. “Open Carry” is De Facto Banned in California
26
The “open carry” language of Penal Codes §26150 and §26155 is illusory. The ability to
27
actually obtain an open carry license in the State of California does not exist - open carry is not an
28
25
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
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1 option. California Penal Code §26225 requires that a copy of all firearms licenses issued in each
2 county (open carry and concealed carry) be “filed immediately” with the DOJ. In January 2012,
3
California enacted Penal Code §26350, which criminalized the open carriage of an unloaded
4
firearm.
5
Upon inquiry by Mr. Baird into the number of open carry licenses that have been issued in
6

7 California since the passage of §26350 in 2012, copies of which are required by law to be

8 forwarded to defendant Becerra’s DOJ by every licensing authority in the state under §26225 (as

9 are copies of every CCW license issued in the state), Mr. Baird was informed by the DOJ that
10
they have no records of any open carry licenses having been issued in the State of California
11
since 2012. (Ex. 1 at p. 10). Thus, even though Plaintiffs are statutorily precluded from applying
12
for an open carry in a county other than their county of residence, such application would be
13
futile because according to the official records of the DOJ, no open carry licenses have been
14

15 issued in the State of California since 2012. (Ex. 1 at p. 10).

16 Mr. Baird has reviewed the websites of the 58 sheriff offices in the State of California.
17 Some of the sheriff websites do not even mention firearm licensing on their home page. 4 The San
18
Francisco, Colusa, and Alpine County Sheriff Offices home pages have no reference to carry
19
permits at all. The remaining websites mention CCW licenses only; none of the sheriff websites
20
mention an option to apply for an open carry license, including those counties with less than
21

22 200,000 population. (Ex. 1 at p. 8). None of the sheriff’s webs pages published readily

23 identifiable verbatim text of §26150 or §26155 in a readily accessible manner so as to fully

24 inform the public of the right to apply for an open carry license, as required by §26160. Even a
25

26 4
http://www.alpinecountyca.gov/index.aspx?nid=204; http://www.countyofcolusa.org/index.aspx?nid=156;
https://www.countyofglenn.net/dept/sheriff/welcome; https://tehamaso.org/;
27 https://www.solanocounty.com/depts/sheriff/

28
26
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1 cursory summary as required by §26160 – even mentioning the availability of the public to apply
2 for an open carry license - would articulate to the public that there are two carry options under
3
§26150 and §26155, which would to enable the public to make an informed choice as to which
4
best suits their needs, i.e., the right to open carry or the privilege of concealed carry. (Ex. 1 at p.
5
8).
6

7 From the totality of the circumstances presented, defendant Becerra and the licensing

8 authorities in the state, have intentionally engaged in a coordinated and effort to eliminate the

9 concept of open carry from the public domain in order to exercise complete control over the
10
public’s ability to carry a firearm for self-defense. (Ex. 1 at p. 8). In the absence of an open carry
11
license, the government has unfettered control over all carry licensing because, as Peruta II made
12
clear, CCW is not a right – it is a privilege subject to the whims of the government to which no
13
member of the public is entitled. (Ex. 1 at p. 8).
14

15 The majority of the 58 sheriff’s offices in this state provide a link on their website to an

16 electronic portal for processing CCW applications, which does not provide an option to apply for
17 an open carry license. The Nevada County Sheriff Office website confirms the nexus between the
18
sheriffs and defendant Becerra’s control over the licensing processes through the state’s sheriff’s
19
offices:
20

21 “California Department of Justice - Use this link to access the


application process for CCW licenses.”
22
See, https://www.mynevadacounty.com/184/Concealed-Weapon-Permits-CCW-License-to-
23
(Ex. 1 at p. 9).
24

25 The California DOJ link provided by the Nevada County Sheriff website brings the
26
applicant to the DOJ-created and DOJ-enforced uniform handgun application portal for applying
27

28
27
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION
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1 for a CCW license. 5 The DOJ provides no option to apply for an open carry license either through
2 DOJ’s electronic portal or through the California sheriff’s offices where a hard-copy application
3
is available. By controlling the type of carry license that residents can apply for, defendant
4
Becerra has effectively eliminated the option of open carry throughout the state of California.
5
(Ex. 1 at p. 9-10).
6

7 Every sheriff office in the state is required to use DOJ-approved firearm license

8 applications. Neither the sheriffs of this state nor the DOJ offer an option for Californian residents

9 to apply for an open carry license. The only carry license California residents are able to apply for
10
is a concealed carry license. (Ex. 1 at p. 7).
11
Those sheriff offices and police agencies that do not utilize a paper application direct their
12
county’s applicants to an on-line application portal. The on-line application portal is provided by
13
and/or connected to defendant Becerra’s DOJ. The DOJ’s on-line application portal contains no
14

15 option to apply for an open carry license. The only carry license available by the DOJ is the CCW

16 license. (Ex. 1 at p. 7-8).


17 The public website of the Siskiyou County Sheriff’s Office only provides information
18
related to applications for a concealed carry license/“CCW”. 6 (Ex. 1 at p. 4). The Siskiyou
19
Sheriff’s handgun licensing procedure has no option for applying for an open carry license. All
20
publications, forms, and applications provided by the Siskiyou County Sheriff for obtaining a
21

22 firearm carry license relate solely to CCW licenses. Copies of the documents provided to the

23 public by the Siskiyou County Sheriff’s Office are attached to the Declaration of Mark Baird and

24 made part of his Declaration (Ex. 1): “Concealed Carry Weapon Permits”, “Instruction for CCW
25

26
5
https://nevadaca.permitium.com/ccw/start
27 6
https://www.co.siskiyou.ca.us/sheriff; https://www.co.siskiyou.ca.us/sheriff/page/concealed-carry-weapon-permits-
ccw
28
28
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1 Permit Application”, “CCW Criteria and Requirements for Application”, “CCW Process and
2 Fees”, “CCW New Applicant Packet”, “CCW Renewal Application Form”, “CCW Instructor
3
List”, “CCW Livescan Fingerprinting Form for Applicants”, and “Siskiyou County Sheriff CCW
4
Policy 218”. (Ex. 1 at p. 4-5).
5
The Livescan Fingerprinting Form used by the Siskiyou Sheriff is form created by the
6

7 California DOJ. The Livescan Form contains a section for the applicant to complete entitled,

8 “Authorized Applicant Type”; this section is pre-populated [by the Sheriff or DOJ] to read

9 “STANDARD CCW”. In either scenario, both governmental entities endorse concealing from the
10
public the option to apply for an open carry license. (Ex. 1 at p. 4-5).
11
The application for a carry license provided by the Siskiyou Sheriff but created by the
12
DOJ, is entitled, “Standard Initial and Renewal Application for License to Carry a Concealed
13
Weapon”. (DOJ CCW Application attached to Ex. 1). Under the section, “Format of CCW
14

15 License”, the DOJ form confusingly indicates that a ‘concealed carry weapon license’ to carry

16 ‘loaded and exposed’ is available to applicants living in a county having less than 200,000 people.
17 An open carry license is not a ‘type’ of concealed carry license. The DOJ application itself is
18
titled as an application “For License to Carry a Concealed Weapon”. An application to carry a
19
concealed weapon is not, by definition, an application to carry a weapon exposed. No section of
20
the DOJ CCW application allows the applicant to select “open carry” as an option. (Ex. 1 at p. 5).
21

22 The revision date of the DOJ CCW License application, administered by the Siskiyou

23 County Sheriff’s Office, is January 1, 2012 – the date that Penal Code §26350 was implemented

24 criminalizing the open carriage of unloaded firearms. (Ex. 1 at p. 5).


25 Neither the Siskiyou County Sheriff’s Office, nor the DOJ, provide an application for an
26
open carry license or guidance for the public to apply for an open carry license. (Ex. 1 at p. 6).
27

28
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1 Penal Code §26160 provides, “Each Licensing Authority shall publish and make available
2 a written policy summarizing the provisions of Section 26150, and subdivisions of Section
3
26155.” Consistent with Penal Code §26160, Siskiyou Sheriff Policy No. 218 mentions the open
4
carry license only in the context of its automatic revocation where a licensee changes residency to
5
another county. (Policy 218 at 218.6.3(e)). (Ex. 1 at p. 6).
6

7 Similarly, the Shasta County Sheriff’s Office offers no application to apply for an open

8 carry license. None of the documents provided to the public by the Shasta County Sheriff’s Office

9 provide a procedure for applying for an open carry license. Copies of the following documents
10
provided by the Shasta County Sheriff’s Office are attached to the Declaration of Richard
11
Gallardo and made part of his Declaration (Ex. 2): Shasta County Sheriff’s Office CCW Page,
12
“Sheriff’s Office CCW Policy”, “CCW application”, CCW Qualification Information”, “CCW
13
Renewal Form”, “Criteria and Requirements”, “Permit Application Process”, “Process and Fees”,
14

15 CCW Instructor List”, and “Personal Firearms Record”. (Ex. 2).

16 The application for a firearm carry license provided by the Shasta County Sheriff indicates
17 that it was created by the DOJ and is entitled, “Standard Application for CCW License”. (Ex. 2).
18
Under the section, “Format of CCW License”, the DOJ form confusingly indicates that a
19
‘concealed carry weapon license’ to carry ‘loaded and exposed’ is available to applicants living in
20
a county having less than 200,000 people. An open carry license is not a ‘type’ of concealed
21

22 carry license. The DOJ application itself is titled as an application for a “License to Carry a

23 Concealed Weapon (CCW)”. An application to carry a concealed weapon is not, by definition, an

24 application to carry a weapon exposed. Every page of the Shasta County application, and all
25 attachments thereto, contain the heading “State of California, Department of Justice, Standard
26
Application for CCW License”. Nothing in the DOJ CCW application, administered by the Shasta
27
County Sheriff’s Office, provides the applicant with the ability, instructions, or guidance, to apply
28
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1 for an “open carry” license. The concealed carry license application is the only application
2 provided by the Shasta County Sheriff’s Office. There is no open carry license application
3
available. (Ex. 2 at p. 6).
4
The California Department of Justice website does not provide to the public, and does not
5
offer to the various sheriffs and police chiefs in the state, an application for an open
6

7 carry license. Mr. Baird conducted a search of the DOJ websites but found no reference,

8 applications, or forms regarding open carry licenses with the exception of Bureau of Security and

9 Investigative Services (“BSIS”) permits for security guards and alarm agents, which reference
10
terms of employment. No DOJ form readily accessible to the public referenced an option to apply
11
for an open carry license. (Ex. 1 at p. 10).
12
Despite the common misconception that law enforcement is required to “Serve and
13
Protect”, police officers have no duty to protect any individual from physical harm caused by a
14

15 third person. Citizens have no constitutional right to be protected by the state from a violent

16 physical attack by private third parties, absent some special relationship between the state and

17 the victim or the criminal and the victim that distinguishes the victim from the general public.
18
Balistreri v Pacifica Police Dept., 901 F2d 696, 699-700 (9th Cir 1988) (dismissing complaint
19
where police failed to take steps to respond to the continued threats, harassment and violence by
20
estranged husband because “there is, in general, no constitutional duty of state officials to protect
21

22 members of the public at large from crime.”); Martinez v. California, 444 U.S. 277, 284-85, 62

23 L. Ed. 2d 481, 100 S. Ct. 553 (1980); Ketchum v County of Alameda, 811 F2d 1243, 1244-47 (9th

24 Cir 1987); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982).
25 Because law enforcement has no duty, legal or otherwise, to protect any individual from
26
a violent attack, each and every individual is responsible for their protecting themselves from
27
personal harm and danger at home and in public. With no duty to protect, exclusive government
28
31
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1 control over the ‘privilege’ to carry a firearm concealed 7, and the elimination of the protected
2 right to open carry, the law-abiding Californian is left exposed and vulnerable to criminal
3
conduct with no adequate equalizer. Preventing the law-abiding individual from obtaining an
4
open carry license forces Plaintiffs and other law-abiding residents of California to either
5
abandon their pre-existing Second Amendment right to bear arms in public for self-defense or
6

7 carry their firearm openly to protect themselves without a license and risk criminal prosecution.

8 The Second Amendment right to bear arms for self-protection in public is de facto

9 banned by defendant Becerra, and his agents, servants, employees, and those working in active
10 concert with him through the DOJ policies and procedures, and his enforcement of Penal Codes
11
§26150, §26155, §26350, and §25850 as they relate to the open carriage of a firearm in public,
12
whether loaded or unloaded.
13
Based on the above, Plaintiffs have demonstrated a strong likelihood of success on the
14

15 merits of their Second Amendment claims regarding the de facto prohibition of the right to open

16 carry in the State of California, warranting an order granting the requested injunctive relief.

17
II. PLAINTIFFS ARE SUFFERING, AND WILL CONTINUE TO SUFFER,
18 IRREPARABLE HARM
19 [SECOND AMENDMENT CLAIMS]

20 The loss of Second Amendment rights constitutes irreparable injury. Duncan v Becerra,

21 265 F Supp 3d at 1135. “The right to keep and bear arms protects tangible and intangible interests
22
which cannot be compensated by damages…The right to bear arms enables one to possess not
23
only the means to defend oneself but also the self-confidence — and psychic comfort — that
24
comes with knowing one could protect oneself if necessary…Loss of that peace of mind, the
25
physical magazines, and the enjoyment of Second Amendment rights constitutes irreparable
26

27

28 7
Peruta v County of San Diego, 824 F3d 919, 942 (9th Cir 2016) (en banc) (Peruta II) (cert. den.).
32
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1 injury.” Duncan, 265 F Supp 3d at 1135 citing, Grace v. District of Columbia, 187 F. Supp. 3d
2 124, 150 (DDC 2016).
3
California’s constitutional deprivation of fundamental rights protected within the scope of
4
the Second Amendment ‘unquestionably constitutes irreparable injury’. See, e.g., County of Santa
5
Clara v Trump, 250 F Supp 3d 497, 537-538 (ND Cal 2017) quoting, Melendres v. Arpaio, 695
6

7 F.3d 990, 1002 (9th Cir. 2012); Rodriguez v. Robbins, 715 F.3d 1127, 1144-45 (9th Cir. 2013).

8 “There are no de minimis violations of the Constitution -- no constitutional harms so slight

9 that the courts are obliged to ignore them. Elk Grove Unified Sch. Dist. v Newdow, 542 US 1, 36-
10
37 (2004). Indeed, the Ninth Circuit has repeatedly held that the deprivation of constitutional
11
rights ‘unquestionably constitutes irreparable injury’. County of Santa Clara v Trump, 250 F
12
Supp 3d 497, 537-538 (ND Cal 2017), quoting, Melendres v. Arpaio, 695 F.3d 990, 1002 (9th
13
Cir. 2012); Rodriguez v. Robbins, 715 F.3d 1127, 1144-45 (9th Cir. 2013).
14

15 Even if open carry licenses were issued by the licensing authorities, Penal Codes §26150

16 and §26155 should be enjoined because they deprive Plaintiffs, and all law-abiding residents of
17 California, of the pre-existing right to protect themselves in public by way of: (a) placing the
18
burden on the law-abiding individual (Plaintiffs) to demonstrate why the government should let
19
them exercise the fundamental right to protect themselves outside of their homes (“good cause”
20
requirement); (b) authorizing the government to deny the open carry applications of law-abiding
21

22 individuals (Plaintiffs) (“may issue”); (c) de facto classifying open carry as a ‘privilege’ by

23 treating open carry in the same manner as concealed carry - subject to any governmental whim

24 and unprotected by the Second Amendment (“good cause” requirement and “may issue”); and (d)
25 eliminating the law-abiding individual’s (Plaintiffs’) right to self-protection throughout each
26
county in California (“geographical limitation” of open carry license to the county of issuance).
27

28
33
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1 Penal Code §26350 causes irreparable harm to Plaintiffs because it severely burdens the
2 Second Amendment right to open carry by criminalizing the open carriage of an unloaded
3
handgun, whether on one’s person, inside a vehicle, or on a vehicle, imposing penalties of
4
imprisonment up to one year and/or fines. Thus, if an open carry licensee travels outside of his
5
county of issuance carrying his handgun exposed and unloaded, he is committing a criminal act
6

7 and is subject to incarceration and penalties.

8 Under the same scenario, if the handgun were loaded, the licensee would also be

9 committing a crime and subject to incarceration and penalties under Penal Code § 25850, which
10
also causes Plaintiffs irreparable harm by forcing them to choose between exercising their Second
11
Amendment right to self-protection in public or being subjected to criminal prosecution.
12
Again, the statutorily imposed geographical restrictions complained of presume that an
13
open carry license has been issued. Plaintiffs, and all other law-abiding residents of California,
14

15 are suffering irreparable harm defendant Becerra and those acting in concert with him, provide no

16 avenue to apply for an open carry license, and patently refuse to issue open carry licenses.
17 Plaintiffs will continue to suffer irreparable harm unless defendant Becerra’s enforcement
18
of the aforementioned statutes and his anti-Second Amendment policies and procedures are
19
enjoined, because Plaintiffs are forced to choose between exercising rights protected by the
20
Second Amendment or being prosecuted criminally under §25850 and §26350. (Ex. 1 at p. 10-11;
21

22 Ex. 2 at p. 7).

23 The Second Amendment was created to protect the government from violating the

24 personal and pre-existing right to protect and defend one’s life. The Second Amendment shields
25 the right to possess an equalizing force when suddenly faced with violent, armed, and/or more
26
powerful attackers. Violent crime occurs unannounced. Criminals are predatory in nature; their
27
choice of the time, place, and victim are intentionally designed to most benefit them. Rarely does
28
34
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1 a victim have prior knowledge of an impending attack.


2 Law enforcement is reactive and has no legal duty to protect any individual from being the
3
victim private violence. By the time the police arrive, the crime (rape, murder, robbery, assault)
4
has already occurred. The victim has already suffered permanent physical and/or emotional harm.
5
People have a basic fundamental right to possess and carry weapons for use in defense of a
6

7 physical attack, which cannot be stripped away by the government.

8 Plaintiffs have sufficiently demonstrated the existence of irreparable harm for the

9 ongoing and continuous Second Amendment violations described herein, warranting the issuance
10
of an order temporarily enjoining Defendant Attorney General Xavier Becerra and his agents,
11
servants, employees, and those working in active concert with him, from enforcing and/or giving
12
effect to California Penal Codes §26150, §26155, §26350, and §25850 as they relate to the open
13
carriage of a firearm in public, whether loaded or unloaded, by law-abiding residents of
14

15 California, including Plaintiffs, during the pendency of this action.

16 III. BALANCING THE EQUITIES FAVORS PLAINTIFFS


17 “Some may fear that the right to keep and bear arms means citizens hold a right to possess
18
a deadly implement and thus has implications for public safety, and that there is intense
19
disagreement on the question whether the private possession of guns in the home increases or
20
decreases gun deaths and injuries. True enough. But, public safety interests may not eviscerate the
21

22 Second Amendment. The right to keep and bear arms, however, is not the only constitutional

23 right that has controversial public safety implications. All of the constitutional provisions that

24 impose restrictions on law enforcement and on the prosecution of crimes fall into the same
25 category.” Duncan v Becerra, 265 F Supp 3d 1106, 1115 (SD Cal 2017) (internal quotations
26
omitted) citing, McDonald v City of Chicago, 561 U.S. 742 at 782-783 (2010) (collecting cases
27
where those likely guilty of a crime are set free because of constitutional rights).
28
35
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1 “Statutes disarming law-abiding responsible citizen gun owners reflect an opinion on gun
2 policy. Courts are not free to impose their own policy choices on sovereign states. But as Heller
3
explains, the Second Amendment takes certain policy choices and removes them beyond the
4
realm of debate. Disarming California’s law-abiding citizenry is not a constitutionally-permissible
5
policy choice.” Duncan v Becerra, 265 F Supp 3d 1106, 1128 (SD Cal 2017) (granting plaintiffs’
6

7 motion for preliminary injunction, enjoining defendant Becerra and his agents, et al. “from

8 implementing or enforcing California Penal Code sections 32310 (c) & (d), as enacted by

9 Proposition 63, or from otherwise requiring persons to dispossess themselves of magazines able
10
to hold more than 10 rounds lawfully acquired and possessed.”).
11
Public safety interests may not eviscerate the Second Amendment. “The right to keep and
12
bear arms, however, is not the only constitutional right that has controversial public safety
13
implications. All of the constitutional provisions that impose restrictions on law enforcement and
14

15 on the prosecution of crimes fall into the same category.” McDonald, 561 U.S. at 783 (collecting

16 cases where those likely guilty of a crime are set free because of constitutional rights).
17 Moreover, because there are criminal penalties associated with Plaintiffs’ exercise of their
18
pre-existing rights to self-protection via open carry, the balance of equities favors Plaintiffs. See,
19
Duncan v Becerra, 265 F Supp 3d 1106, 1135-1136 (SD Cal 2017) (“While a preliminary
20
injunction is pending, there will be some hardship on the State. Nevertheless, because [the
21

22 statutes complained of] impose criminal sanctions for a failure to act it poses the potential for

23 extraordinary harm on Plaintiffs, while discounting their Second Amendment rights. The balance

24 of hardships favors Plaintiffs.”).


25 The blatant constitutional violations committed by defendant Becerra and the licensing
26
authorities in this state are causing irreparable harm to Plaintiffs and other law-abiding residents
27
of California. The irreparable harm caused by defendant Becerra far outweighs any possible
28
36
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1 inconvenience to him, his licensing agencies, or the state.


2 Granting the requested relief will not suddenly turn Plaintiffs, or any other law-abiding
3
individual, into a public safety hazard. The requested relief will allow Plaintiffs and other law-
4
abiding people the freedom to exercise the right to open carry, the ability to defend one’s self in
5
the face of danger, and the accompanying peace of mind it brings, particularly where the exercise
6

7 of that right does not threaten criminal prosecution.

8 Enjoining the enforcement of the complained of statutes will force the government to

9 adhere to the constitutional rights of its residents, as it should have done in the first instance. The
10
government faces no actual, articulable hardship other than loss of control over the
11
constitutionally protected rights of others. Based on the above, the balance of the hardships favors
12
Plaintiffs.
13
IV. A PRELIMINARY INJUNCTION IS IN THE PUBLIC’S INTEREST
14

15 “Once an applicant satisfies the first two factors [likelihood of success on the merits and

16 irreparable harm], the traditional stay inquiry calls for assessing the harm to the opposing party
17 and weighing the public interest. These factors merge when the Government is the opposing
18
party.” Duncan v Becerra, 265 F Supp 3d 1106, 1136 (SD Cal 2017) (citations omitted).
19
The public interest favors the exercise of Second Amendment rights by law-abiding
20
responsible citizens. And it is always in the public interest to prevent the violation of a person’s
21

22 constitutional rights. Duncan v Becerra, 265 F Supp 3d at 1136, citing, Hobby Lobby Stores, Inc.

23 v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013), aff'd sub nom., Burwell v. Hobby Lobby Stores,

24 Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014).


25 At present, the pre-existing right to self-protection by the open carriage of firearms in
26
public, attached to the law-abiding residents of California – the very public whose interests the
27
Court is called on to consider – has been de facto banned. Open carry is not an option in
28
37
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1 California without subjecting one’s self to criminal prosecution because (1) open carry licenses
2 are not issued and will not be issued because the government has eliminated any such option; (2)
3
regular people cannot meet the “good cause” requirement; (3) even if available, the statutes
4
empower licensing agencies with total discretion over whether or not to issue an open carry
5
license (“may issue”); and (4) open carry licenses are confined to the county of issuance.
6

7 The pre-existing right to self-protection is attached to the individual law-abiding residents

8 of California who constitute “the public”.

9 “Defensive gun violence may be the only way a law-abiding citizen can avoid becoming a
10
victim. Put differently, violent gun use is a constitutionally-protected means for law-abiding
11
citizens to protect themselves from criminals. The phrase ‘gun violence’ may not be invoked as a
12
talismanic incantation to justify any exercise of state power. Implicit in the concept of public
13
safety is the right of law-abiding people to use firearms and the magazines that make them work
14

15 to protect themselves, their families, their homes, and their state against all armed enemies,

16 foreign and domestic. To borrow a phrase, it would indeed be ironic if, in the name of public
17 safety and reducing gun violence, statutes were permitted to subvert the public’s Second
18
Amendment rights — which may repel criminal gun violence and which ultimately ensure the
19
safety of the Republic.” Duncan v Becerra, 265 F Supp 3d 1106, 1135 (SD Cal 2017) (granting
20
preliminary injunction of California statute banning magazines capable of holding over 10
21

22 rounds) citing, cf. United States v. Robel, 389 U.S. 258, 264, 88 S. Ct. 419, 19 L. Ed. 2d 508

23 (1967) (“Implicit in the term ‘national defense’ is the notion of defending the values and ideals

24 which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we
25 would sanction the subversion of one of those liberties — the freedom of association — which
26
makes the defense of the Nation worthwhile.”).
27

28
38
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1 Enjoining the aforementioned statutes and defendant Becerra’s anti-Second Amendment


2 policies and procedures, will greatly benefit “the public” of law-abiding Californians, including
3
Plaintiffs. Denial of Plaintiffs’ motion will ensure the continued violation of the public’s Second
4
Amendment right to the open carriage of firearms for self-protection in public, and continuing
5
irreparable harm until the aforementioned statues are declared unconstitutional and permanently
6

7 enjoined.

8 WHEREFORE, it is respectfully requested that Plaintiffs’ motion for an order temporarily

9 enjoining Defendant Attorney General Xavier Becerra and his agents, servants, employees, and
10
those working in active concert with him, from enforcing and/or giving effect to California Penal
11
Codes §26150, §26155, §26350, and §25850 as they relate to the open carriage of a firearm in
12
public, whether loaded or unloaded, by law-abiding residents of California, including Plaintiffs,
13
during the pendency of this action be granted in its entirety.
14

15 Dated: July 8, 2019 Respectfully submitted,

16 THE BELLANTONI LAW FIRM, PLLC


17 /s/ Amy L. Bellantoni, Esq.
Amy L. Bellantoni
18
Counsel for Plaintiffs
19 Email: abell@bellantoni-law.com
Pro Hac Vice
20

21

22

23

24

25

26

27

28
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MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION