[00:00:03] Speaker 03: That moves us to our third argument set for today, which is Brandstetter versus City of Riverside, case number 23-55739. [00:00:32] Speaker 02: Good morning, Your Honors. [00:00:34] Speaker 02: Donald Cook for plaintiff, appellant, Mr. Branceter. [00:00:38] Speaker 02: Start with a line from Stigali versus United States, the 1980 Supreme Court decision. [00:00:47] Speaker 02: The right protected, the right of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by the government is waiting. [00:00:56] Speaker 02: Now, of course, Stigali held that even though the police had an arrest warrant, had their probable cause, because they knew they were going into a home of a third party, they had to get a search warrant. [00:01:08] Speaker 02: That, right. [00:01:10] Speaker 03: Can I ask a question that just kind of comes off the page here? [00:01:16] Speaker 03: The city, as I understand it, has said, just file a form, put your name and your address on it, and we'll give you your guns back. [00:01:24] Speaker 02: comply with penal code section 338-5-0. [00:01:29] Speaker 02: And assuming you satisfy all those standards under state law, he's already complied with, by the way, when he acquired the firearms. [00:01:39] Speaker 02: You get your firearms back. [00:01:39] Speaker 03: I understand that. [00:01:40] Speaker 03: But it does say that when they're in law enforcement possession. [00:01:46] Speaker 02: Correct. [00:01:47] Speaker 03: I mean, this is such a minimal that you may have a Second Amendment claim. [00:01:51] Speaker 03: And if you want to pursue it, that's fine. [00:01:53] Speaker 03: But why not? [00:01:55] Speaker 03: And quite frankly, I'm not sure that even if you did comply, that you wouldn't still have a Second Amendment claim. [00:02:01] Speaker 03: But why doesn't he just fill out a form? [00:02:04] Speaker 02: He doesn't because, number one, this is not in the record. [00:02:10] Speaker 02: But the process is rather lengthy. [00:02:13] Speaker 02: I've gone through it. [00:02:14] Speaker 02: Oh, OK. [00:02:15] Speaker 02: I mean, it's a several month process. [00:02:17] Speaker 02: Oh, I see. [00:02:17] Speaker 02: It's not just submitting a form, turning it in. [00:02:19] Speaker 03: OK, no, that's actually helpful for me to understand. [00:02:21] Speaker 05: It's less than this appeal. [00:02:23] Speaker 02: What? [00:02:24] Speaker 05: It's less than this appeal. [00:02:25] Speaker 02: That's true. [00:02:26] Speaker 02: It's faster. [00:02:27] Speaker 02: But the Ninth Circuit has gotten much better in hearing its cases. [00:02:30] Speaker 03: But I mean, the problem for us is this is up on summary judgment. [00:02:35] Speaker 03: I mean, they can't just get rid of the injunction. [00:02:37] Speaker 03: I mean, even if you filled out the form today, that really wouldn't mood out the case, because your claim is for four years or some period of time, there's been a Fourth Amendment, well, both a Fourth Amendment and a Second Amendment violation. [00:02:50] Speaker 02: Correct. [00:02:51] Speaker 02: The firearms should not have been seized, number one. [00:02:53] Speaker 02: And then number two. [00:02:55] Speaker 03: Can we talk about that? [00:02:56] Speaker 03: Because the seizure of the firearms [00:02:59] Speaker 03: I'm struggling on that one because if there's probable cause, I mean, there may have been some information that was not included. [00:03:08] Speaker 03: I don't understand how that would have precluded seizure of the firearm. [00:03:12] Speaker 03: She had somebody making a threat. [00:03:16] Speaker 03: that they were going to kill somebody else, and they were at that home. [00:03:21] Speaker 03: So why aren't the police officers entitled to take weapons that would be reasonably available to diminish that threat in a seizure? [00:03:31] Speaker 02: Weapons were not reasonably available. [00:03:33] Speaker 02: They arrested Kevin Gleason. [00:03:36] Speaker 02: They took him into custody. [00:03:37] Speaker 03: Hold on. [00:03:38] Speaker 03: Hold on. [00:03:40] Speaker 03: I think you have some other arguments. [00:03:42] Speaker 03: But they arrested Kevin Gleason, but they were in the house. [00:03:46] Speaker 03: OK, let's say they were in a safe. [00:03:48] Speaker 03: Maybe that would be different. [00:03:49] Speaker 03: But they weren't secure. [00:03:50] Speaker 03: I thought there was acknowledgment that they weren't secured. [00:03:55] Speaker 02: Well, depending on how you define secure, they certainly were not in a gun safe, right? [00:04:00] Speaker 02: They're in the attic. [00:04:02] Speaker 02: You access it through Mr. Brandsetter's bedroom. [00:04:06] Speaker 02: And I think it's telling that when the officer seized the firearms, [00:04:11] Speaker 02: She writes in her report, she doesn't say anything about access. [00:04:15] Speaker 02: That's something that defense came up with and the district judge refers to in his order. [00:04:20] Speaker 02: They seized it for safekeeping. [00:04:23] Speaker 02: Well, if there's merit to the claim that, well, perhaps he could use these firearms, may use them, perhaps he did use them, et cetera, they're taking him into custody, go get a warrant. [00:04:36] Speaker 02: Considering what you now know about the firearms, which is- They did have a search warrant. [00:04:41] Speaker 02: They did have a search warrant, but when the officer realized that the firearm, not realized, when she actually took the firearms. [00:04:49] Speaker 03: She knew that they were his. [00:04:51] Speaker 03: Correct. [00:04:52] Speaker 03: OK, so let's take a different hypothetical. [00:04:55] Speaker 03: What if the firearms were in the living room, and Gleason was sleeping on the couch in the living room? [00:05:01] Speaker 03: Would they be justified in taking the firearms? [00:05:05] Speaker 02: No, because they took, that is no because, number one, [00:05:09] Speaker 02: The firearms belong to Mr. Branseter. [00:05:12] Speaker 02: Number two, they're taking Mr. Gleason into custody during the search. [00:05:17] Speaker 03: They arrested him. [00:05:18] Speaker 03: So your point is that they were removing the threat by taking Gleason out. [00:05:22] Speaker 02: Correct. [00:05:22] Speaker 03: So they didn't need to. [00:05:23] Speaker 03: Go ahead. [00:05:24] Speaker 01: No, no, no, no. [00:05:26] Speaker 01: I mean, it's not just the threat, though. [00:05:29] Speaker 01: I mean, Gleason has been threatening people with—I mean, it's not just the threat that he could use them. [00:05:35] Speaker 01: They're also investigating a crime, which is the threats that Gleason has been making. [00:05:40] Speaker 01: And these firearms that he may not own but he had access to could be evidence of that crime, couldn't they? [00:05:49] Speaker 02: The standard, first of all, could be anything's possible. [00:05:55] Speaker 01: I'm not saying anything. [00:05:57] Speaker 01: I'm saying don't they have probable cause to believe that? [00:06:00] Speaker 01: They're investigating this guy who's been threatening to shoot people and they find him in a dwelling with accessible firearms. [00:06:08] Speaker 02: To be precise, it was the Dragon's Breath email, the threat of a shotgun, which is a threat of violence involving a firearm. [00:06:16] Speaker 02: No question about it. [00:06:17] Speaker 02: OK? [00:06:18] Speaker 02: So what's the evidence that he was intending to, might use, had in his possession Mr. Brandseter's firearms? [00:06:28] Speaker 02: I mean, there wasn't any. [00:06:29] Speaker 02: I mean, it's true. [00:06:30] Speaker 02: Detective Turner, when she went to the house, she knew there were firearms there, because she'd ran and. [00:06:34] Speaker 03: But I just, I mean, look. [00:06:37] Speaker 03: I don't think this is your strongest argument on the search. [00:06:40] Speaker 03: I think I'm more in, I mean, because at the end of the day, they got a search warrant. [00:06:45] Speaker 03: I'm not sure that the search warrant was going to come out any differently, even if more information was given. [00:06:53] Speaker 03: So your better argument seems to be, for Fourth Amendment purposes, that even if they had some ability to take these, at some point that Fourth Amendment [00:07:07] Speaker 03: certainly within four years, the Fourth Amendment duty or justification dissipated. [00:07:13] Speaker 02: Oh, sure. [00:07:14] Speaker 02: I mean, that's basically. [00:07:15] Speaker 03: And your argument probably would be the next day it dissipated. [00:07:17] Speaker 03: I'm not sure I agree with that, because there was some sort. [00:07:19] Speaker 03: Can you talk about the investigation? [00:07:22] Speaker 03: I mean, did they end up charging Gleason with using any of these? [00:07:25] Speaker 02: No. [00:07:26] Speaker 02: No. [00:07:27] Speaker 02: Well, the charge they were investigating at the time they executed the search warrant was an extortion threat. [00:07:34] Speaker 02: I think it was Penal Code Section 507. [00:07:36] Speaker 02: And he was ultimately charged with that and other threats, threats of threatening great bodily harm down the road that he was ultimately charged with. [00:07:47] Speaker 02: As far as the fourth amendment issue goes, you start with the Miranda versus Cornelia's decision and Brewster versus City of Los Angeles. [00:07:57] Speaker 02: Look, the police knew that the firearms, I mean, they admitted it literally within days of the search that [00:08:05] Speaker 02: We know the fire aren't belong to your client. [00:08:07] Speaker 02: He's not a suspect, et cetera, et cetera. [00:08:09] Speaker 03: Wait, but did they know that they weren't relevant to any investigation? [00:08:13] Speaker 02: Yes, because they said, you can have him back, just go through that state law process. [00:08:18] Speaker 03: Did they hold him that 10 days after this experience? [00:08:20] Speaker 03: Correct. [00:08:21] Speaker 03: Now you're circling back to my initial question. [00:08:24] Speaker 02: I know. [00:08:24] Speaker 02: So why doesn't he go through that process? [00:08:27] Speaker 02: Yeah. [00:08:27] Speaker 02: Right. [00:08:28] Speaker 02: Well, the point is. [00:08:31] Speaker 03: You'd rather sue. [00:08:34] Speaker 03: as a great American way. [00:08:36] Speaker 02: Well, it's more than that. [00:08:39] Speaker 02: As a practical matter, the police treat firearms [00:08:42] Speaker 02: as per se, contraband. [00:08:43] Speaker 03: I actually don't disagree with you. [00:08:44] Speaker 03: And so I'm not criticizing you for doing it. [00:08:47] Speaker 03: But I think you could have had it both ways. [00:08:49] Speaker 03: I think you could have gone through. [00:08:52] Speaker 03: You don't need legal advice from me. [00:08:54] Speaker 03: But anyway, so here we are. [00:08:57] Speaker 03: Tell us about the Second Amendment. [00:08:59] Speaker 03: Because let me just frame up what my thinking on the Second Amendment is. [00:09:04] Speaker 03: Because if we were under pre-Bruin, [00:09:11] Speaker 03: I think you'd have a tougher time, because they're saying, look, all you have to fill out this form. [00:09:15] Speaker 03: Now, admittedly, I need to dig into a little bit more to the form. [00:09:18] Speaker 03: But it seems like that might satisfy intermediate scrutiny. [00:09:22] Speaker 03: Now we are post-Bruin. [00:09:24] Speaker 03: We don't have any briefing. [00:09:25] Speaker 03: And I guess I'm asking you, do we need to ask for supplemental briefing on whether this provision that they're relying on [00:09:36] Speaker 03: is constitutional or satisfies. [00:09:40] Speaker 05: You've never challenged that, have you? [00:09:45] Speaker 02: Well, we have challenged as applied to Mr. Branceter. [00:09:48] Speaker 01: What is it about the applicant? [00:09:50] Speaker 01: I saw that in your brief, but I didn't understand, because you haven't, for example, you haven't said that [00:09:57] Speaker 01: Is there a fee associated with this form that you have do you have to pay a fee to yes? [00:10:02] Speaker 01: Okay, baby. [00:10:03] Speaker 02: It's not very much. [00:10:03] Speaker 02: I think it's a Twenty-five dollars you submit it with the application. [00:10:07] Speaker 01: Okay, but but but the word fee appears nowhere in your brief So you're not complaining that the fee is too high You mentioned delay this morning, but you haven't developed an argument that the delay is too early So so what is it when you say it's an as-applied challenge? [00:10:23] Speaker 01: You know, what is it about the application to him in particular that's... He's not a first-time purchaser of these firearms. [00:10:31] Speaker 02: They were already acquired. [00:10:33] Speaker 02: He went through the process, the background investigations, complied with state law, lawfully had them in his possession. [00:10:40] Speaker 02: The police admit, and we'll just put aside for a moment whether the initial seizure was lawful, but the police admit literally within [00:10:48] Speaker 02: Literally, from the day they seize it, well, yeah, we know this is not evidence of crime. [00:10:52] Speaker 02: It's not contraband. [00:10:54] Speaker 02: I would submit that under a Brunei analysis, well, wait a minute. [00:10:59] Speaker 02: They all fully belong to him. [00:11:00] Speaker 02: He's gone through the background investigation. [00:11:02] Speaker 02: He has to go through another background investigation. [00:11:05] Speaker 05: But the purpose of the form is not related to the legality of the search. [00:11:14] Speaker 05: It's to make sure that in order to get him back, that the person who's going to get the guns is entitled to have guns. [00:11:23] Speaker 05: You want to make sure it's him. [00:11:25] Speaker 05: And I don't quite understand what's wrong with you. [00:11:28] Speaker 02: If I may use an example, kind of leery of doing it because maybe someone sees it differently. [00:11:35] Speaker 02: Suppose the state passed a law that said every six months, a owner of firearms has to resubmit [00:11:43] Speaker 02: in the application establishing his entitlement to own the firearm uh... i don't think that law withstands uh... withstand the second amendment scrutiny once a person absent some evidence you have reason to think he's no longer entitled to possess the firearm [00:12:01] Speaker 02: what we have here. [00:12:02] Speaker 02: Sure. [00:12:04] Speaker 01: You brought up Brewster right there. [00:12:06] Speaker 01: That was a case about cars, where they seized a car. [00:12:10] Speaker 02: Very familiar with it. [00:12:11] Speaker 02: I'm the attorney on Brewster. [00:12:12] Speaker 02: The case is still going on. [00:12:14] Speaker 01: Suppose that the policy was when we impound your car, they impound the car, and there I think they held it for 30 days and we said, you can't do that. [00:12:23] Speaker 01: They impound the car and they say, okay, come pick up the car. [00:12:27] Speaker 01: Whenever you want but the policy at the impound lot is before you drive the car off the lot onto the roads We want to see a current valid driver's license. [00:12:36] Speaker 02: It is the policy. [00:12:38] Speaker 01: Okay. [00:12:38] Speaker 01: Do you think that policy is? [00:12:40] Speaker 02: constitutional well, no because for the simple reason of taking a car out on the street and [00:12:47] Speaker 02: by an unlicensed driver is a crime and obviously presents a safety issue. [00:12:52] Speaker 02: But when you know that the person here, Mr. Brandsetter, is the owner of the firearm, you know he's already, you have no evidence he's no longer fit to own a firearm. [00:13:01] Speaker 02: You know he already went through the background investigation. [00:13:03] Speaker 01: How do we know that? [00:13:04] Speaker 02: What? [00:13:05] Speaker 01: How do we know that? [00:13:06] Speaker 02: Because she ran Mr. Brandsetter through AFS, the automated firearm system. [00:13:12] Speaker 02: I know Judge Schroeder has a question. [00:13:15] Speaker 02: And they ran a criminal history background check on Mr. Brandsetter as well. [00:13:20] Speaker 02: And he had no criminal history, et cetera. [00:13:23] Speaker 02: So that's why they knew he was lawfully entitled to possess the firearms, even as of the moment that they seized the firearms. [00:13:30] Speaker 02: Judge Schroeder has a question. [00:13:32] Speaker 05: Well, I just, he has to establish that he's the one who they're giving the guns to. [00:13:40] Speaker 05: And it just doesn't seem to, in Brewster, [00:13:48] Speaker 05: uh... there was a hearing and she proved that she was the registered owner and what that as i understand it what they were doing was saying oh no we get to still keep the car for another thirty days because that's what we're authorized to do we said no you know once she proves that she's the owner you have to you can't continue to keep it the city here admitted almost in the start they knew that the firearms belong to him again they ran [00:14:18] Speaker 02: ran him through AFS, and that the handguns are in AFS, and knew that, according to AFS, he was the owner of the firearms. [00:14:27] Speaker 02: Detective Turner testified that, well, yeah, he told me the firearms belonged to him, and he's credible, and I believed him. [00:14:34] Speaker 02: And then in her report, she says. [00:14:36] Speaker 05: You want a record that we're giving him to him to fill out the form. [00:14:41] Speaker 02: Well, it's more than just a record. [00:14:42] Speaker 02: They're saying it's a state law that requires that you, you know, [00:14:45] Speaker 02: reestablish your entitlement to own these firearms. [00:14:52] Speaker 01: But isn't that what you've done? [00:14:54] Speaker 01: It seems like your as applied challenge amounts, if we were to accept your as applied challenge, the holding would be [00:15:02] Speaker 01: When you have a plaintiff who files a lawsuit and establishes in the lawsuit that he is the lawful owner of the firearms and is not a prohibited person and is entitled to possess them, in other words, that he would pass the background check, then he gets to have the guns without going through the background check. [00:15:22] Speaker 01: Which, I mean, I guess we could say that, but why not just do the background check in the first place? [00:15:27] Speaker 02: Well, first of all, I'm just out of time if I can answer your question. [00:15:31] Speaker 02: Don't worry, we'll give you time. [00:15:32] Speaker 02: Okay. [00:15:35] Speaker 02: You mischaracterize this gesture doing something intentionally, and obviously you're not. [00:15:40] Speaker 02: The facts in this case... Trying not to. [00:15:42] Speaker 02: The facts in this case is not that what they know from the get-go, the firearms belong to him. [00:15:49] Speaker 02: Number one, they know that he has [00:15:53] Speaker 02: Nothing in his record that they've checked as part of getting a search warrant that suggests there's a reason to think he may no longer be entitled to possess firearms. [00:16:03] Speaker 02: They know he's already gone through the background check to acquire the firearms. [00:16:09] Speaker 02: They know all of that when the police. [00:16:12] Speaker 02: So it's not that because he filed a lawsuit they should give the firearms back. [00:16:16] Speaker 02: It's because they already know he satisfied all the requirements [00:16:21] Speaker 02: to lawfully own and possess these firearms, and they belong to him, and they also know the firearms are not contraband or evidence of crime or both. [00:16:33] Speaker 02: And if they did think it were evidence of crime or contraband, then either they're going to say you can't have it back, they're going to get another warrant, etc. [00:16:41] Speaker 02: They already know all that. [00:16:43] Speaker 02: Given that state of knowledge by the defendants, you simply have to give the firearms back. [00:16:48] Speaker 02: It's like I would submit the Fruin decision out of the Third Circuit. [00:16:52] Speaker 03: I understand. [00:16:55] Speaker 03: We'll give you some rebuttal time, but let's hear from the government, the city. [00:17:09] Speaker 00: Good morning, Your Honors, and may it please the court. [00:17:12] Speaker 00: My name is Cecilia Rojas, and I represent Detective Turner, Chief Larry Gonzalez, and the City of Riverside in this appeal. [00:17:19] Speaker 00: The appellants respectfully request that this court affirm the Pali's motion for summary judgment because as this court recognized, jurisdictionally, plaintiff's claim is not ripe for adjudication for not following the procedures outlined in penal code 33-8-5. [00:17:34] Speaker 03: Oh, you're making a jurisdictional argument that it's just not right. [00:17:37] Speaker 03: The district court didn't rule on that, though. [00:17:39] Speaker 00: So the reason that we make that argument is because, as mentioned earlier in the appellant's argument, the district court found that an appellant is making a per se, or as applied to him, argument as to penal code 33850 without having even done any of the process to obtain his firearms. [00:18:05] Speaker 00: It has applied to him. [00:18:06] Speaker 03: You haven't raised a jurisdictional argument in your briefing. [00:18:10] Speaker 03: I mean, look, if it's unright, then we need to look at that no matter what. [00:18:15] Speaker 03: But I mean, it's a bit of a curveball at argument to be saying that there's Article III concern, right? [00:18:23] Speaker 00: Sure, yes. [00:18:24] Speaker 00: And the reason for that argument is just to reinforce the district court's decision and the comments that were made here today. [00:18:31] Speaker 03: So can I ask you the practical question, too? [00:18:35] Speaker 03: You've kept his firearms for four years. [00:18:37] Speaker 03: You know he's the legal owner. [00:18:39] Speaker 03: There's no indication, apparently, that these were involved in any crime. [00:18:45] Speaker 03: Why are you doing this? [00:18:47] Speaker 03: Why not just give him the firearms back? [00:18:49] Speaker 00: Thank you for your question. [00:18:50] Speaker 00: So it's as simple as following the procedures of Penal Code 33850. [00:18:56] Speaker 00: There is no other mechanism for the city or RPD to return appellant his firearms outside of the requirements. [00:19:05] Speaker 03: So in your view, this all hinges on whether the search in the first instance was legal or not. [00:19:11] Speaker 03: Because you would agree that if the search, if they were not justified in taking it in the first instance, [00:19:17] Speaker 03: then we'd obviously have a problem. [00:19:22] Speaker 03: But once they took it consistent with the Fourth Amendment, if they did that legally in the first instance, they can keep it as long as they want, even if the Fourth Amendment justifications go away, even if the Second Amendment concerns are there until he files this form. [00:19:39] Speaker 00: Sure, so obviously that scenario we argue is different because we're arguing here that the initial seizure was lawful and it was a valid warrant. [00:19:48] Speaker 03: No, that was my hypothetical, yeah. [00:19:50] Speaker 00: Yes, so we would actually argue in those circumstances that the city and RPD is still bound by penal code 33850 if the initial seizure were to be found unconstitutional. [00:20:01] Speaker 01: I don't think he's challenged the fee, but is it correct that he would have to pay a fee to fill out the form? [00:20:11] Speaker 00: That's one of the requirements. [00:20:14] Speaker 00: And I don't know if it was 25. [00:20:15] Speaker 00: For some reason, I'm remembering 250. [00:20:17] Speaker 00: I'm not too exactly sure what the fee is. [00:20:20] Speaker 01: How can any fee be justified? [00:20:21] Speaker 01: I mean, forget the Second Amendment. [00:20:23] Speaker 01: It's his property. [00:20:25] Speaker 01: You took his property. [00:20:26] Speaker 01: You have no Fourth Amendment justification for holding his property. [00:20:30] Speaker 01: Don't you have to give it back? [00:20:31] Speaker 01: And how can you make him pay something to get it back? [00:20:36] Speaker 00: Sure, so the mechanism under Penal Code 33850, it's actually for the Department of Justice to do the proper mechanisms and- Okay, but why does he have to pay for that? [00:20:50] Speaker 00: Well, to answer your question in a different, slight way, we argue that if they're arguing towards the application of penal code 33850, the city and RPD is not the correct party to challenge the penal code. [00:21:07] Speaker 00: It would be the attorney general and then the Department of Justice, as they're the ones that are enforcing the penal code. [00:21:14] Speaker 00: We're just following the penal code. [00:21:18] Speaker 01: And can you, I mean, I guess this is outside the record, but do you, from your experience with this sort of thing, do you have any thoughts on how long this process takes? [00:21:31] Speaker 01: If you were to fill out the form, would it indeed be months? [00:21:35] Speaker 00: I'm not exactly sure how long it would take. [00:21:37] Speaker 00: I do agree it would take shorter time than this whole process of the appeal. [00:21:41] Speaker 00: I know in the district court it took a very long time for even the summary judgment motion to come, but [00:21:47] Speaker 01: So it's not the same as the, I mean, it was my understanding that when an initial purchase of a firearm, the background check is fairly quick, right? [00:21:56] Speaker 01: But this is a different process than that? [00:22:00] Speaker 00: And to be honest, I'm not exactly sure that the time length of how long it would be to have his firearms returned. [00:22:06] Speaker 00: There's nothing in this record about that. [00:22:08] Speaker 00: Exactly, yes. [00:22:09] Speaker 03: But requiring a background check, I mean, what's the justification for even requiring a background check? [00:22:15] Speaker 03: Like, that's not the question here. [00:22:17] Speaker 03: The question seems to me, the only justification is we want to prove ownership as an administrative matter. [00:22:25] Speaker 00: Well, actually, the district court found that the purpose of penal code 33850, and I'm referencing the order, the district court's order in this case, penal code 33850 requires the DOJ to process the appropriate eligibility checks. [00:22:42] Speaker 00: to return appellant his firearms. [00:22:45] Speaker 00: And these proper background checks, eligibility checks, these are, you know, deeply rooted in history and tradition as Bruin were to say. [00:22:55] Speaker 00: And that's why we also argue that Bruin is not applicable. [00:22:58] Speaker 03: Let's be clear. [00:23:00] Speaker 03: I don't think that—I mean, look, I'm getting ahead of myself because we haven't seen the briefing on it, but I think that's a pretty broad overstatement to say there's a history and tradition of requiring lawfully owned guns to go through another background check. [00:23:14] Speaker 03: I mean, I'm not aware of anything like that. [00:23:16] Speaker 03: Well, the purpose of brewing— The problem is your arguments sort of play into his argument, which is California and the cities in California don't take the Second Amendment seriously. [00:23:27] Speaker 03: And that is the problem with this case. [00:23:29] Speaker 03: Just give him the guns back. [00:23:32] Speaker 03: I mean, what are you saying? [00:23:33] Speaker 03: The attorney general is going to come to you and say you violate and give you a violation citation? [00:23:40] Speaker 00: Well, yeah, our argument is that we have no other mechanism to return him his firearms. [00:23:45] Speaker 03: That's not true. [00:23:46] Speaker 03: Here's a mechanism. [00:23:47] Speaker 03: Get the guns out, take them to his house, and give them to him. [00:23:51] Speaker 03: That's a mechanism. [00:23:53] Speaker 03: What's going to happen? [00:23:54] Speaker 00: The appellees would be violating the penal code. [00:23:58] Speaker 03: And what's going to happen? [00:24:00] Speaker 03: The attorney general is going to come and throw you in jail? [00:24:03] Speaker 03: They're going to fine you? [00:24:04] Speaker 00: It is not up to the appellees to not follow the law. [00:24:09] Speaker 03: Look, we've got two parties here who are both taking very frustrating positions. [00:24:16] Speaker 03: Because I just can't give any credibility to your argument that you can't do anything. [00:24:21] Speaker 03: I think you're being very difficult in how you're approaching this case. [00:24:27] Speaker 05: Well, as I understand it, I agree that this is frustrating. [00:24:35] Speaker 05: But as I understand it, the appellant's position has been that these were unlawfully seized. [00:24:43] Speaker 05: and that you are required to give them back to me because they were unlawfully seized and and then he filed a suit in order to and you said no you haven't shown us any of that and you have to fill out the form and then we have a suit to establish not only that you're not complying with the you're not you just to show that these were unlawfully seized isn't that [00:25:12] Speaker 05: basically what this is about. [00:25:18] Speaker 05: I mean, he's challenging the search and saying, you are holding these pursuant to an unlawful search. [00:25:27] Speaker 05: Isn't that right? [00:25:28] Speaker 00: That is part of his argument. [00:25:29] Speaker 00: Part of his argument is that the initial search was unlawful. [00:25:32] Speaker 00: Well, the seizure. [00:25:33] Speaker 03: Part of his argument is also the continued possession, right? [00:25:36] Speaker 03: I mean, that's where I'm more intrigued, is the continued possession. [00:25:40] Speaker 00: Yes, and I agree that that's the crux of the case, the continual, alleged refusal to return appellants firearms. [00:25:48] Speaker 03: But as to the second amendment- What if the fee were $10,000? [00:25:55] Speaker 03: I mean, you would say, well, you haven't paid the $10,000, so we're not going to give it back. [00:26:00] Speaker 03: Not our problem, sorry. [00:26:02] Speaker 03: State law says you have to pay $10,000. [00:26:06] Speaker 00: Yes, so in that instance, it's our position that we have to follow the penal code, and it's not just RPD, it's everybody. [00:26:13] Speaker 01: I guess you would say he should have named the state as a defendant and brought a challenge to the statute, right? [00:26:19] Speaker 00: Yes. [00:26:20] Speaker 00: Yes, there is a Joinder issue. [00:26:21] Speaker 00: We are objectively the improper party. [00:26:25] Speaker 00: As to if he's making a constitutional challenge to the penal code, he's stating [00:26:29] Speaker 00: that he is not, but by citing Bruin, he's taking a backdoor approach. [00:26:35] Speaker 03: But maybe the only way he can actually get relief. [00:26:38] Speaker 00: Well, even in Bruin, Bruin suggests that background checks ensure that only those bearing arms in the jurisdiction are law-abiding citizens. [00:26:52] Speaker 03: I know this isn't particularly legally relevant, but did you call the Attorney General's office and say, what do we do here? [00:26:59] Speaker 00: Well, me personally, I did not. [00:27:01] Speaker 03: Did anybody from the city? [00:27:03] Speaker 01: We're not asking you to divulge. [00:27:06] Speaker 01: That's true. [00:27:07] Speaker 03: I'm just intrigued. [00:27:09] Speaker 03: I mean, yeah, that's true. [00:27:10] Speaker 03: Maybe they're just trying to stand on it, too. [00:27:13] Speaker 03: So you're right. [00:27:14] Speaker 03: You don't have to divulge that. [00:27:17] Speaker 03: But this case seems like the problem is now it's dragged on. [00:27:23] Speaker 03: It's hard to extricate out of, so. [00:27:26] Speaker 00: Yes, and I completely agree. [00:27:28] Speaker 03: So let's hypothetically say that we did affirm. [00:27:33] Speaker 03: He could theoretically bring a new case against the attorney general saying, I don't want to comply with this penal code. [00:27:44] Speaker 00: Yes, assuming that there are no other jurisdictional or like statute of limitations, assuming, right? [00:27:50] Speaker 00: Yes, the proper party is not the city or Detective Turner or the Chief Larry Gonzalez in this matter. [00:27:57] Speaker 00: It would be the Attorney General. [00:27:58] Speaker 00: If he's making a Bruin challenge, and according to his papers, he is making a Bruin challenge, which is our position. [00:28:04] Speaker 00: It's a backdoor constitutional challenge. [00:28:08] Speaker 00: And as to background checks, Bruin said it- So what about the Fourth Amendment? [00:28:12] Speaker 03: I guess your position is the same on the Fourth Amendment as it is on the Second Amendment. [00:28:16] Speaker 03: But Brewster seems to poke a little bit of a hole in that by saying you can't just impose a requirement after the Fourth Amendment justification has dissipated. [00:28:31] Speaker 03: That seems to be what the statute is doing. [00:28:35] Speaker 00: Yes, I agree that if then there has to be a valid initial seizure and then a substantial justification to withhold. [00:28:44] Speaker 00: But a huge difference in Brewster and our instant case is that in Brewster, the plaintiff did follow the appropriate procedure. [00:28:53] Speaker 00: And still Brewster denied it. [00:28:54] Speaker 00: Yes, and LA. [00:28:55] Speaker 03: But I thought it said that even if you show your identification, you still can't get it back. [00:29:00] Speaker 03: until 30 days. [00:29:02] Speaker 03: So it wasn't, I mean, he did show the ID, but there was still this, I mean, I guess I'm not sure that it's as inapplicable as you're saying, because what we said is, yeah, but you can't put that 30 day limitation on it. [00:29:14] Speaker 00: Correct. [00:29:15] Speaker 03: But that's effectively what this statute is, is an extension. [00:29:20] Speaker 03: I mean, [00:29:22] Speaker 03: I guess we need to delve into exactly how long it takes. [00:29:25] Speaker 03: But it doesn't seem to be as simple as showing your driver's license or signing a paper saying, I own this. [00:29:32] Speaker 03: It does seem to be more involved. [00:29:34] Speaker 03: And that seems to put up more into the 30-day prohibition that we said you couldn't do in Brewster. [00:29:39] Speaker 03: You can't extend a Fourth Amendment justification through state law. [00:29:43] Speaker 00: Yes, and the way I would respond to that is that in Brewster, the appropriate measures were taken, right? [00:29:50] Speaker 00: I think there was maybe a fee to show identification, and there was still a minimum withholding of the vehicle for 30 days. [00:29:59] Speaker 03: Here, we're asking him to at least start the process, and we'll try to- We're gonna get to the same result, that you're still tacking on some period of time, whether it's a week or 30 days or- [00:30:12] Speaker 03: six months as he claimed, which we've said you can't do in Brewster, at least under the Fourth Amendment. [00:30:19] Speaker 00: Yes, but at least the process would have been started. [00:30:24] Speaker 00: And there is an end time. [00:30:28] Speaker 00: People can talk to each other and try to speed it up. [00:30:30] Speaker 03: But here's the problem. [00:30:31] Speaker 03: Even if he gets them back, even if he files the form now, I don't think that moots out this case, because you've still got the justification. [00:30:39] Speaker 03: Now, I guess we've got a question we've got to consider, which is whether we have the proper procedural vehicle to address some of these issues. [00:30:46] Speaker 00: I agree, because I agree. [00:30:49] Speaker 00: Like you mentioned earlier in my colleagues' arguments that you still have to file and do the process. [00:30:57] Speaker 00: You didn't have to wait it out. [00:31:00] Speaker 00: You could have your firearms now. [00:31:01] Speaker 03: Be remand for leave to amend the complaint and sue the proper party? [00:31:08] Speaker 01: And to follow up on that, why does he have to name the AG? [00:31:12] Speaker 01: I mean, you're the entity that has the firearms, right? [00:31:16] Speaker 01: And he wants an injunction that would say, you, the defendant who has the custody of the firearms, must give the firearms to him. [00:31:24] Speaker 01: That seems like you're the proper party then, isn't it? [00:31:29] Speaker 00: Yeah, the reason for that and the why, you know, it comes up is that we can't just give him his firearm. [00:31:36] Speaker 01: Well, you could if there was an injunction telling you to, right? [00:31:39] Speaker 00: Sure, sure. [00:31:40] Speaker 01: But then... If there's a court order telling us to do something... But then doesn't that make you the proper defendant in an action seeking an injunction? [00:31:50] Speaker 00: I would argue, sure, in the action seeking an injunction... Which he's doing, right? [00:31:55] Speaker 00: Part of it, and that's under the abusive discretion apportioned. [00:31:59] Speaker 00: But if the motion for summary judgment is granted as to the appellees, then the injunction at that point would be moot. [00:32:07] Speaker 01: I mean, the problem maybe is not that he's not [00:32:10] Speaker 01: It's not that he hasn't sued the AG, it's that he hasn't presented a constitutional challenge to the statute, which is the thing that is compelling the action he's complaining about, right? [00:32:22] Speaker 05: Yes. [00:32:23] Speaker 05: And he's been complaining all along that the reason that you are holding the continued [00:32:30] Speaker 05: to hold these is unlawfully is because not only is not because you don't like the statute, but he doesn't like the statute, but because the search was unlawful in the first place. [00:32:43] Speaker 05: And you are as to him so that the guns were unlawfully seized. [00:32:48] Speaker 05: And your position has been the guns were not unlawfully seized. [00:32:51] Speaker 05: And therefore, you have to comply with the statute. [00:32:53] Speaker 00: Yes, our position completely is there was a valid search warrant. [00:32:57] Speaker 00: It was not overbroad, no emissions representations, and also to [00:33:03] Speaker 00: Just real quickly on that note, in order to prevail on a Fourth Amendment violation due to an overbroad search warrant, he has to prove that Detective Turner acted with intentionality and reckless disregard, not mentioned. [00:33:16] Speaker 00: And also in his opening brief, appellant makes no mention as to penal code 33850, knowing that it's the city's sole basis for the alleged refusal to return his firearms. [00:33:28] Speaker 01: If I may, I have one more question on an issue we haven't talked about so far, and that's the Rule 11 sanctions motion. [00:33:35] Speaker 01: What is your understanding of what happened with that motion in the district court? [00:33:40] Speaker 00: My understanding is that there was competitive, I'm sorry, competitive rule 11 motions and the court decided to, yeah, not, they were competitive and decided to not rule on either. [00:33:54] Speaker 01: Well, because when I look at the order, granite summary judgment, it addresses your motion but doesn't seem, unless I missed it, just doesn't say anything about his. [00:34:05] Speaker 01: So do you think that that, is that still pending? [00:34:10] Speaker 00: I would argue that it's not still pending and I Completely agree. [00:34:16] Speaker 00: It's a little confusing and I would actually even argue that the order doesn't even mention Appellants, I mean a yeah appellants motion for summary judgment because there was also competing motions for summary judgment and the way I read the order is granting it as to the city's motion for summary so do you think I mean [00:34:35] Speaker 01: This is a question of our appellate jurisdiction here, like if the court didn't rule on it. [00:34:43] Speaker 01: So do you understand the order to be implicitly rejecting his sanctions motion? [00:34:50] Speaker 00: Yes. [00:34:51] Speaker 01: Okay. [00:34:51] Speaker 01: Yes. [00:34:52] Speaker 01: All right. [00:34:52] Speaker 01: Thank you. [00:34:53] Speaker 03: And thank you for those reasons we asked to affirm. [00:34:58] Speaker 03: Do you still have time, or do we need to give him time? [00:35:00] Speaker 03: No, he had time. [00:35:01] Speaker 02: Okay, go ahead. [00:35:03] Speaker 03: Or did he? [00:35:04] Speaker 02: He was out of time. [00:35:05] Speaker 03: We'll give you two minutes for a vote. [00:35:06] Speaker 03: OK. [00:35:07] Speaker 02: This claim about Brewster, absolutely incorrect. [00:35:09] Speaker 02: They're making the same wrong argument. [00:35:12] Speaker 03: Hold on before we get in. [00:35:13] Speaker 03: And I get it. [00:35:14] Speaker 03: I mean, we're all trying to attack this case. [00:35:18] Speaker 03: I want you to tell us what, I mean, have you challenged the constitutionality of this state statute? [00:35:29] Speaker 02: No, only as applied to him. [00:35:32] Speaker 02: This is exactly the same situation I had my client in Brewster. [00:35:36] Speaker 02: In Brewster and in my follow-up case of Sandoval, my plaintiffs did not comply with penal code section 14602.6. [00:35:47] Speaker 02: which required that they show proof that the unlicensed driver was licensed. [00:35:51] Speaker 02: Then they would get their car back. [00:35:52] Speaker 02: They did not comply with that. [00:35:54] Speaker 02: They said, violates our rights, our Fourth Amendment rights. [00:35:57] Speaker 02: You can't rely on state law. [00:35:58] Speaker 03: So Brewster helps you on the Fourth Amendment. [00:36:01] Speaker 02: Yes. [00:36:01] Speaker 03: Why do you think it also helps you on the second amendment? [00:36:03] Speaker 02: Because I would submit that a firearm deserves as much constitutional protection as a vehicle. [00:36:09] Speaker 02: And perhaps maybe a bit more, because there is that amendment right before the third. [00:36:12] Speaker 03: There's no constitutional right to drive a vehicle. [00:36:16] Speaker 02: It's a privilege, not a right, as they say. [00:36:18] Speaker 02: And when you apply a Bruhn analysis, [00:36:24] Speaker 02: to the facts of what we have here. [00:36:25] Speaker 03: Part of the problem is we don't have anything before us, and that's why I came back to if we were going to go down this road. [00:36:31] Speaker 03: I don't know if we're going to. [00:36:32] Speaker 03: Wouldn't we have to, or shouldn't we seek supplemental briefing on that? [00:36:36] Speaker 02: This decision, I think it was last year. [00:36:39] Speaker 02: The third circuit? [00:36:41] Speaker 02: No. [00:36:42] Speaker 02: Baird versus Bonta. [00:36:44] Speaker 02: Cited in the papers, it's the injunctive relief case concerning a second amendment challenge. [00:36:50] Speaker 02: And the panel held that [00:36:52] Speaker 02: Look, it's not up to the district court to help out the government to justify a firearm regulation. [00:36:57] Speaker 02: The government has to come forward and justify it. [00:37:00] Speaker 02: And they don't come forward and justify it. [00:37:02] Speaker 02: It's basically the legal equivalent of you snooze, you lose. [00:37:07] Speaker 02: OK? [00:37:08] Speaker 02: So they haven't done that. [00:37:11] Speaker 02: And the district court itself did not apply a Bruin analysis, even though Bruin had already been decided when the court issued its decision. [00:37:20] Speaker 01: Can I ask you the same question I asked your friend at the very end? [00:37:25] Speaker 01: How do you read the district court's order? [00:37:27] Speaker 02: The court was completely silent, said nothing about plaintiff's request for rule 11 sanction. [00:37:33] Speaker 02: It specifically addressed the defense motion, said the defendants did not carry their burden of proof. [00:37:39] Speaker 02: It's right at the end of the court order. [00:37:40] Speaker 02: It said nothing. [00:37:42] Speaker 01: So then do you think it implicitly rejected it, or do you think it's still pending? [00:37:47] Speaker 02: No, I think the court never ruled on it, one way or the other. [00:37:51] Speaker 01: Well, then how do we have jurisdiction over that? [00:37:58] Speaker 02: Well, I think what the court should do is remand the district court instructing it to exercise its power, its discretion, and rule upon plaintiff's request for Rule 11 sanctions. [00:38:09] Speaker 02: Okay, that's what I think this court should do, right? [00:38:13] Speaker 02: In the first instance, the district court's got to make a ruling. [00:38:15] Speaker 02: The district court never made a ruling on that Rule 11 sanctions request. [00:38:19] Speaker 02: Make a ruling. [00:38:20] Speaker 02: Address it. [00:38:21] Speaker 02: That's what I think this court should do with regard to that. [00:38:25] Speaker 02: Okay. [00:38:26] Speaker 02: I'm way over time. [00:38:27] Speaker 03: You're fine. [00:38:28] Speaker 03: Yeah, we took you over. [00:38:29] Speaker 03: Any more questions? [00:38:30] Speaker 03: Okay. [00:38:31] Speaker 02: Thank you to both counsel for your arguments. [00:38:32] Speaker 02: You know, the over breath and search warrant, it's a good issue. [00:38:35] Speaker 02: I know it hasn't really gotten your attention like a second amendment, but it's a good issue. [00:38:39] Speaker 03: You may feel differently. [00:38:40] Speaker 03: You've had plenty of time to make your case and we're appreciative of it. [00:38:44] Speaker 03: So the case is now submitted and we'll move on to the