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1、1.LAW OFFICES OF GARY W. GORSKI 5033 Bia nchard CourtFair Oaks, CA 95628Telepho ne:(916) 965-6800Facsimile:(916) 965-6801GARY W. GORSKI - CBN: 166526Attor ney for Pla in tiffsRICKARDS, KARALASH, LUCAS & LACY 4825 J Street, Ste. 100Sacrame nto, CA 95819Telepho ne:(916) 455-3500Facsimile:(916)455-3586

2、DANIEL M. KARALASH - SBN: 176422ROBERT LUCAS-SBN: 143920Attor ney for Pla in tiffsJOHN D. BROPHYAttor ney at LawP.O Box 245036Sacrame nto, CA 95824-5036 (916) 424-4078(PAGER) (916) 951-9711JOHN D. BROPHY - CBN: 047520Attor ney for Pla in tiffsTHE UNITED STATES DISTRICT COURTIN AND FOR THE EASTERN DI

3、STRICT OF CALIFORNIA12345678910111213141516171819202122232425262728SEAN SILVEIRA; JACK SAFFORD;PATRICK OVERSTREET; DAVID K.MEHL; SGT. STEVEN FOCHT; SGT.DAVID BLALOCK; MARCUS DAVIS;VANCE BOYCE; KEN DEWALD,Pla in tiffs,vs.BILL LOCKYER Attorney Gen eral,State of California; GRAY DAVIS,Gover nor, State

4、of Califor nia.Defendan ts.CASE NO.: CIV S 00 411 WBS/JFMFIRST AMENDED COMPLAINT FOR:1)42 U.S.C. 1983 (Seco nd andFourtee nth Ame ndme nt -unconstitutional firearms statute)2)42 U.S.C. 1983 (Fifth and Fourteenth Ame ndme nt- deprivation ofproperty without due process)3)42 U.S.C. 1983 (Fifth and Four

5、teenth Ame ndme nt- Liberty Interest)4)42 U.S.C. 1983 (Fourtee nth Amendme nt- Equal Protectio n -Assault Weap ons owned byretired and off duty LawEn forceme nt officers)5)42 U.S.C. 1983 (Fourtee nth2.Ame ndme nt- Equal Protectio n -CCW)6)42 U.S.C. 1983 (Fifth and Fourteenth Ame ndme nt- Right to Pr

6、ivacy -Gun Registrati on)7)42 U.S.C. 1983 (First and Fourteenth Ame ndme nt- Freedom ofAssociati on)8)42 U.S.C. 1983 (Ni nth and Fourteenth Ame ndme nt- Right to Keepand Bear Arms - keep ing and bearing arms is a n atural right whichpre-existed the rightsenu merated in the Con stituti on)DEMAND FOR

7、JURY TRIALF.R.C.P. 38(b)REQUEST FOR PRELIMINARYINJUNCTIONNOTICE OF UNCONSTITUTIONALITYOF STATE STATUTEINTRODUCTION“This year will go down in history. For the first time a civilized nation has full gunregistration! Our streets will be safer, our police more efficient, and the world will follow ourlea

8、d into the future. Adolph Hitler, 1935. These plans went into affect again in 2000 when the newCalifor nia firearm registratio n law took affect.“I ask, sir, what idite militia? It is the whole people . . . to disarm the people is the best(1788).law, and other nuisance firearms legislation.Da niel W

9、ebster speech, Ju ne 3, 1834.THE UNDERLYING FACTS123456789101112131415161718192021222324252627281.2.and most effectual way to en slave them.George Masor)duri ng Virgi nias ratification conen tion3.“ No free man shall ever be debarred the use of arms.”Thomon.4.This case challe nges the Con stituti on

10、 ality ofCalifornias so called“Ass5.“God grants liberty only to those who love it, and are always ready to guard and defend it.6.Since about half of U.S. households have a gun, broadly directed restricti ons on the acquisition,possession, and use of guns impinge on the lives and liberties of million

11、s of America ns and Califor nians,not just a small, politically powerless subset of them.7.In resp onse to this simple fact, the advocates of more restrictive con trols have directed theirfocus away from measures which result in either an all out ban or regulati on of all types of guns; as such,curr

12、e nt gun laws are targeted toward those which regulate special subtypes of firearms, i.e. types of gunswhich are owned by smaller nu mbers of voters and which are con seque ntly more vuln erable to regulation.8.For in sta nee, if I could have gotte n 51 votes in the Sen ate of the Un ited States for

13、 anout-right ban, pick ing up every one of them. Mr. and Mrs. America, tur n em all in, I would have done it.I could not do that. The votes were nt here. Sen ator Dianne Fei nstei n: CBS-TVs 60Minutes, February 5, 1995. Semi-automatic assault weapons are turning Americas streets intowar zon es. True

14、,they are not responsible for a large number of homicides what they do isoffer the possibility. emphasis added Sen ator Dianne Fein ste in: Con gressi onal Record,November 9, 1993. In fact, the actual nu mber is statistically in sig nifica nt that DOJ and the FBInot eve n maintain statistics on alle

15、ged assault weap ons.9.Californias laws have thus increasingly stressed the need to control various specialweap on categories such as assault rifles and Saturday Night Special (“Junk Giand cop-killer bullets, or sometimes all handguns. For each weapon or ammunition type, it is argued thatthe object

16、is especially dan gerous or particularly useful for crim inal purposes, while hav ing little or nocoun terbala ncing utility for lawful purposes. A com mon sloga n is This type of gun is good for only onepurpose - killi ng people.10.The specific weap on type so described shifts from one year to the

17、n ext, in resp onse to shifts inthe political winds rather than actual criminologically significant shifts in criminal use of guns. For example,the so-called cop killer bullets which were restricted in 1986, have never killed a cop.11.Assault rifles and assault weap ons became importa nt objects of

18、gun con trol efforts in the1980s.12.Con trary to widespread claims, these semi-automatic military-style weap ons are rarely 3.123456789101112131415161718192021222324252627284.used by criminals in general or by drug dealers or juvenile gang members in particular, are almost n everused to kill police

19、officers, are gen erallylesslethalthanordinaryhuntingrs, and are not easily converted tofully automatic fire. They do offer a rate of fire somewhat higher than other guntypes and can be used with magaz ines hold ing large nu mbers of cartridges, but thereatssolutelysignificant number of gun crimes.

20、Guns and Violenee: A Summary of the Field, Gary Kleck, Ph.D.,School of Criminology and Criminal Justice, Florida State University, Tallahassee, Florida.In fact, fewer than 2% of gun homicides involve the military-style semiautomaticweapons which are commonly labeled assault weapons. Guns and Violene

21、e: A Summary of thField, Gary Kleck, Ph.D., School of Criminology and Criminal Justice, Florida State University,Tallahassee, Florida. pers onn el) regularly carry a gun for self-defe nse.12345678910111213141516171819202122232425262728o evidencedem on strat ing that socalled“assault weap ons ”are re

22、leva nt to the outcome o13.14. Saturday Night Specials (SNSs) or“Junk Guns”are small, cheap handguns. The IBureau of Alcohol, Tobacco and Firearms (BATF) definition of SNSs is a barrel length under threein ches, .32 caliber or less, and price un der $50 in mid-1970s dollars. California cha nged this

23、defi niti on dramatically by defi ning a SNS as any han dgu n lack inga“manually operaThus, California has redefined BATFs criteria of a SNS.15.Con sideri ng the obvious target of Califor nias SNS gun law (i.e. GlockSNSs are not the real target of the policies, but rather that all handguns are. Give

24、 n the obscure andtechnical definitions that are actually used in legislation and administrative regulations inCalifornia, it was easy to manipulate such a definition in a politically low-profile way such thatmost handguns fell within the SNS category.16.Each year about 1,500-2,800 criminals are law

25、fully killed by gun-wielding Americancivilians in justifiable or excusable homicides, far more than are killed by police officers. There ar600,000-1 million defensive uses of guns each year, significantly more than the number of crimecommitted17.About a third of U.S. households keep a gun at least p

26、artially for defe nsive reas ons; at anyne time n early a third of gun owners have a firearm in their home (usually a handgun) which isloaded; about a quarter of retail bus in esses have a gun on the premises; and approximately 5%ofU.S. adults (in clud ing celebrities, politicia ns, judges, and off-

27、duty and retired law en forcement5.18. Accordi ng to the State of California, Cen ter for Health Statistics and Departme nt ofJustice, in 1997, out of 3,849 firearm/explosives deaths DHS fails to ide ntify the actual nu mber of deathscaused by the use of firearms versus explosives in Califor ni a,72

28、7 were suicidea nd 175 were accidental; thus, approximately half were in flicted by ano ther pers on; however, out of this nu mber, 93% of thedeaths were caused by handguns, not so called“assault weap ons.records reflect that between 1990 to 1998, 10% were coded justifiable home shootings, and 5% we

29、rejustifiable police shoot in gs. Thus, a minimum of 15% of the homicides were justifiable,leaving only approximately 1,500 homicides In fact, this Homicide rate is in fact declining. See PlaintiffsExhibit“A”attached.19.This is a mere pittance when compared to the number of people killed in 1997 by

30、autoaccidents 3,809 (Plaintiffs Exhibit“B”attached.), or by ingesting too much alcohol3,345 (Plaintiffs Exhibit“ Cattached.).20.Firearm Mortality (All figures are for U.S.) - Annual Firearm Deaths from Homicide haveranged from approximately 12,000 in 1976 to a peak of approximately 17,000 in 1993. I

31、n 1998,they have reached an all time low of 10,900. Handguns are used in a majority of the homicides.1998, 2,160 were from all other guns, other tha n han dgu ns.21.Age-Adjusted Death Rate: 12.2 deaths per 100,000 population (1997) Death Rate forMales Ages 15-24: 38.9 deaths per 100,000 population (

32、1997D eath Rate for Black Males Ages 15-24:119.9 deaths per 100,000 populatioi(1997) Firearm suicide deaths: 6.6 per 100,000population (1997) Fire Homicide Deaths: 5.1 per 100,000 population (1997). Source: Natio nalVital Statistics Reports, Vol. 47, No.19.22.In 1997, there were 3,319 alcohol in duc

33、ed deaths in California out of 19,576Alcohol-induced deaths in the United States, not including motor vehicle fatalities. In 1997, there were25,175 deaths in the United States from Chronic Liver Disease and Cirrhosis. All statistica in formatio ncompiled from CDC and DHS.23.State Health Director Kim

34、 Belsh announced that the majority of Californians-82 perce nt-do notsmoke. Sec on dha nd smoke is the third lead ing cause of preve ntable death in thiscoun try, killi ng 53,000 non smokers in the U.S. each year. In the largest study ever con ducted on12345678910111213141516171819202122232425262728

35、all at orIn6.the issue, Harvard Medical School found that a high exposure to sec on dha nd smoke n early doubles awoma ns risk of hav ing a heart attack.24.Over 400,000 people dieeach year from the physiological effects otobaccoa lone.California being the most with 43,000 annually.25.Even though fir

36、earms are responsible for a fraction of all deaths and is steadily declining.and alcohol and tobacco are the lead ing causes of death as they are resp on sible for over half of alldeaths in the United States. Se PlaintiffsExhibit“D.”Thus, the Defendants are enforcinglaws that lack any rati on ale ba

37、sis. It is appare nt that if Defendants lives, theywould enforce legislation which would ban alcohol and tobacco products, thuseliminating half of all deaths. As such, it defies reason as to why guns are specifically targeted anddeclared a“public nuisanee,”especially in light of this Countrys histor

38、y regardand bear arms in defe nse of self and liberty.26.As such, this is a claim for retrospective an d/or prospective relief, as well as mon etary damages,if applicable.JURISDICTION27.Jurisdiction conferred on this court by 28 U.S.C.1331 and 134which provides fororig inal jurisdict ion of this cou

39、rt and all acti ons authorized by 42 U.S.C. 1983. Suppleme ntal Jurisdictionis founded upo n 28 U.S.C. 1367.VENUE28.The uni awful actions alleged herein have take n place within the jurisdict ion of the Un itedStates District Court for the Eastern District of California. The illegal acts took place

40、inSacrame nto Cou nty, California. Venue is proper un der 20 U.S.C. 1391(b).ATTORNEYS FEES29.Plaintiffs are entitled to attorneys feedUp8.Cjant88, and as privateattor ney gen erals.PARTIES30.At all releva nt times me ntio ned herei n, Pla in tiffs JACK SAFFORD; SEAN SILVEIRA;PATRICK OVERSTREET; DAVI

41、D K. MEHL; STEVEN FOCHT; MARCUS DAVIS; VANCEBOYCE; and KEN DEWALD, (herei nafter Pla in tiffs un less otherwise n oted), are at all times12345678910111213141516171819202122232425262728were concerned about7.here in men ti on ed, adult male Un ited States citize ns and reside nts of Califor nia.31.Pla

42、 in tiffs own, or would like to own, semi-automatic rifles an d/or pistols subject to the terms ofthe statute which prohibits an d/or restricts possessi on, use, tran sfer an d/or sale of semi-automatic riflesan d/or pistols.32.Plai ntiffswould like to exercise their right to possess, carry and con

43、ceal firearms, subjectto reasonablerestrict ions, such as man datory backgro und checks and appropriates classesdem on strati ng proficie ncy in the safe use of firearms for protect ion and sport.33.Plai ntiff JACK SAFFORD is a reside nt of Corni ng, California, husba nd and father, andowns substa n

44、tial acreage/farm land. He owns his own in sura nee age ncy and is a model citize n. He isa graduate of California State University, Chico.34.Pla in tiff SEAN SILVEIRA is a reside nt of Marin Cou nty, California, husba nd and father of two,and owns real property in Marin. He is a civil engineer, mod

45、el citizen, and a graduate of California StateUniversity, Chico.35.Plai ntiff PATRICK OVERSTREET is a reside nt of Marin Cou nty, California, husba nd, and ownsreal property in Marin. He is employed by the San Fran cisco Police Departme nt as a S.W.A.T. officer,and a graduate of California State Uni

46、versity, San Diego.36.Pla in tiff DAVID K. MEHL is a reside nt of Sacrame nto, California, husba nd, and owns realproperty in Sacramento. He is a chemical engineer, graduate of the University of California, Davis, and amodel citize n.37.Plai ntiff SGT. STEVEN FOCHT is a reside nt of Placer Cou nty,

47、husba nd and father, andowns real property in Placer County. He was a Marine Corp sniper who performed militaryfunctions in Desert Storm, Rwanda, Ethiopia, Kenya, Thailand, in addition to Mogadishu, Somalia.He was hono rably discharged, and curre ntly a Sergea nt in the Califor nia Army Nati onal Gu

48、aHe is a model citize n.38.Plai ntiff SGT. DAVID BLALOCK is a reside nt of Sacrame nto Cou nty and owns real property inSacrame nto Coun ty. He was assig ned to the 82Airbor ne Divisio n who is a PurpleHeart recipie nt from combat in juries (AK 47 round through his arm) occurri ng in the Noriega pol

49、iceoperati on (inv asi on of Pan ama) and curre ntly a Sergea nt in the California Army Nati onal Guard. He isa model citize n.12345678910111213141516171819202122232425262728rd.8.39.Plai ntiff MARCUS DAVIS is a reside nt of Sacrame nto, California, husba nd and expect ingfather, and real property ow

50、ner. He is mortgage broker, graduate of the Un iversity of Califor nia, Davis,and a model citize n.40.Pla in tiff VANCE BOYCE is a reside nt of Colusa, California, husba nd and father, and realproperty owner. He is a of California State Uni versity, Fres no.41.Pla in tiff KEN DEWALD is a reside nt o

51、f Paradise, California, husba nd and father, and realproperty owner. He was hono rably discharged from the Air Force, and is curre ntly employed as aCalifornia Correctional Officer and a model citizen.42.Defe nda nt GRAY DAVIS is the Governor of the State of California, and holds those powersspecifi

52、cally gran ted to him by virtue of his office and the State con stituti on.43.Article V, Section 1, of the California Constitution describes the responsibilities of theGover nor with the followi ng words:“The supreme executive power of this State is vested in thGover nor. The Gover nor shall see tha

53、t the law is faithfully executed.”44.Defe nda nt BILL LOCKYER was elected as Californias 30th Attorney Ge neral inNovember of 1998 and began his term in January of 1999. The Attorney General is the Chief LawOfficer of the State of California and is elected and charged by the State constitution with

54、the resp onsibility to en sure that State laws are un iformly and adequately en forced.45.Article V, Section 13, of the California Constitution describes the responsibilities of theAttorney General with the following words: Subject to the powers and duties of the Governor, theAttorney General shall

55、be the chief officer of the State. It shall be the duty of the Attorney General o seethat the laws of the State are uniformly and adequately en forced. The Attor ney Gen eral shall have directsupervisi on over every district attor ney and sheriff and over such other law en forceme nt officers as may

56、be designated by law, in all matters pertaining to the duties of their representative offices, and may requireany of said officers to make reports concerning the investigation, detect on, prosecution, and punishmentof crime in their respective jurisdictions as to the Attorney General may seem advisa

57、ble. When ever in theopi nion of the Attorney Gen eral any law of the State is not being adequately enforced in any county, itshall be the duty of the Attorney General to prosecute any violations of law of which the superior courtshall have jurisdiction, and in such cases theAttorney General shall h

58、ave all the powers of a district attorney. When required by the erest or directed by the Governor, the Attorney General shall assist any district attorney in thedischarge of the duties of that office.46.The Attor ney Gen eral represe nts the

59、people of Califor nia before trial, appellate, and SupremeCourts of California and the United States in criminal and civil matters; serves as legal coun sel to Stateofficers, boards, commissi ons, and departme nts; and assists district attor neys in the administration ofjustice.47.Sectio n 11042 of

60、the Gover nment Code requires state age ncies to employ on ly theAttorney General, with few exceptions, as legal counsel to centralize legal work done on behalf of theState. Section 11041 lists those agencies that can represent themselves.48.It is the responsibility of the Attorney General to assist