Posted by
BrianR on Monday, March 15, 2010 7:08:48 PM
Last year, California AB 962 was in the works, a bill that would ban the internet sales of ammunition to California residents. At the time it was under discussion, I said that if it passed and became law, it would face a challenge in Federal court.
In October, Ah-nuld the Governator signed it into law, once again proving he’s the worst kind of RINO. I again said that it would face a court challenge, even if I had to do it myself.
I contacted the California Rifle and Pistol Association (CRPA) and their counsel, Chuck Michel’s office, and told both that if they wanted someone with standing for which to file a legal challenge, I was volunteering. I got some happy talk in return, and told both I’d wait a bit to see what they were going to do, but that – again – if they wouldn’t act, I would.
The CRPA launched a petition drive (!) to try to get the law repealed. Let’s face it: after years of trying to pass this thing, and in this state run by liberals, what are the chances of THAT succeeding?
So... enough with the BS. I said I’d do it... and I did.
(PS... forgive the format errors in the document below; this system doesn't seem to want to work with the court's template)
Name: Brian Baker
Address: XXXXX XXXXXXXX XXXX
Saugus, California 91390
Phone: 661-XXX-XXXX
Plaintiff In Pro Per
United States District Court
Central District of California
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BRIAN BAKER,
PLAINTIFF,
vs.
THE STATE OF CALIFORNIA and ARNOLD SCHWARTZENEGGER, Governor of the State of California
DEFENDANT(S).
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Case No.: CV10 1843 DMG (JEMk) _______________________
(To be supplied by the Clerk)
COMPLAINT FOR:
DECLARATORY JUDGEMENT AND INJUNCTIVE RELIEF
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I. JURISDICTION
1. Jurisdiction is founded on 28 U.S.C. § 1331 in that this action arises under the Constitution and laws of the United States, and under 28 U.S.C. § 1343(3) in that this action seeks to redress the deprivation, under color of the laws, statutes, ordinances, regulations, customs and usages of the State of California of rights, privileges or immunities secured by the United States Constitution and by Acts of Congress.
2. This action seeks relief pursuant to 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 1983. Venue lies in this district pursuant to 28 U.S.C. § 1392(b).
II. VENUE
3. Venue is proper pursuant to 28 U.S.C. §§ 1391 and 1392(b).
III. PARTIES
4. Plaintiff’s name is Brian Baker. Plaintiff resides in Saugus, California, 91390, United States of America. Plaintiff is a citizen of the United States of America.
5. Defendant Arnold Schwartzenegger (hereinafter “Schwartzenegger”) is the Governor of the State of California, which is his principal place of business in that capacity. He is being sued in his official capacity. The State of California is a state in the United States of America. Schwartzenegger and the State of California and their officers, agents and employees are sometimes hereinafter referred to as “Defendants”.
IV. STATEMENT OF FACTS
6. Plaintiff has resided in California since 1974. For several years Plaintiff has purchased over the internet, for his own personal use, ammunition for handguns and long guns that he personally owns. These purchases are from vendors located outside the State of California, and the merchandise, once purchased, is typically delivered to Plaintiff’s door by shipment from the vendor via private carriers such as FedEx and UPS. This enables Plaintiff to take advantage of the availability of ammunition that may not be available locally; volume buying discounts; lower prices due to more intense free-market competition between sellers; and other factors that may affect price and/or availability of firearms ammunition.
7. The State of California does not have any legal barriers or bans to interstate commerce in any other products that are otherwise legal to purchase within the state. For example, prescription medications controlled under the auspices of the Drug Enforcement Administration (DEA) and other Federal and state drug laws may be freely purchased over the internet from out of state vendors provided the recipient is legally entitled to make such purchases through a medical prescription. Likewise, cigarettes and other tobacco products may be purchased through internet sales from out of state vendors so long as the purchaser is of legal age to buy those products.
8. On 11 October 2009 Defendants enacted into law California Assembly Bill 962 (AB 962), the “Anti-Gang Neighborhood Protection Act of 2009”. Section 7 of that law states: “Section 12318 is added to the Penal Code to read: 12318 (a) Commencing February 1, 2011, the delivery or transfer of ownership of handgun ammunition may only occur in a face-to-face transaction with the deliverer or transferor being provided bona fide evidence of identity from the purchaser or other transferee. A violation of this section is a misdemeanor.” Further, § 2-12061(3)(F) requires the purchaser to provide a right thumbprint at the time of sale. These two requirements constitute a de facto ban on internet purchases of handgun ammunition. However, Article 1, Section 8 of the United States Constitution lays the power “To regulate commerce... among the several states...” with the U.S. Congress. Therefore, any state law that infringes on or prohibits interstate purchases of products legal to own or purchase within that state exceeds that state’s regulatory authority. This also constitutes a major restraint of trade.
9. AB 962 goes on to state in § 6-12317(c): “For purposes of this section, ‘ammunition’ shall include, but not be limited to, any bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with deadly consequences. ‘Ammunition’ does not include blanks.” Magazines, clips and speed loaders are actually devices that hold or contain ammunition (in its commonly understood meaning as being a “round” or “cartridge” typically comprised of a case, propellant, primer and projectile) and feed it to the firearm for discharge. The description in AB 962 actually expands the definition of “ammunition” from being simply the rounds themselves to being – in the case of clips and magazines – parts of the actual firearms. This conflicts with the Federal definition in Title 18, Part 1, Chapter 44 § 921, 17(A) which states: “The term ‘ammunition’ means ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm”. Chapter 44 § 922 also specifically permits interstate commerce in ammunition between parties not otherwise barred from the possession of such ammunition. But the “face-to-face” and thumbprint requirements in the state law at issue impose a further barrier to such commerce that conflicts with the Federal statute, and exceeds Defendants’ authority, as Federal law supersedes state law.
10. The “Firearms Owners Protection Act of 1986” (FOPA) specifically permits the sale of firearms and ammunition by a seller in one state to a resident of another state, provided the sale conforms to the laws of both states. Are we to now reasonably assume that ammunition vendors in all the other 49 states in the Union are going to be requiring “evidence of identity” and a thumbprint if a California resident appears in their store to purchase ammunition? How are they going to know the prospective buyer is a California resident? Under the terms of AB 962, the California resident who completes such a transaction without providing “evidence of identity” and a thumbprint is committing a crime; that sale is an illegal transaction in the state of California; and therefore both parties are committing a Federal criminal offense. Further, AB 962 § 2-12061(4) establishes record keeping requirements regarding the sale of “ammunition” as defined in the statute. In order to avoid possible Federal prosecution, every ammunition vendor in the country is going to have to follow the rules set forth by Defendants, placing an undue burden on the nation’s gun dealers as well as on all buyers who are not California residents. Clearly, Defendants have exceeded their authority with this requirement, as AB 962 conflicts with the letter and intent of Federal law in this respect.
V. CAUSES OF ACTION
FIRST CAUSE OF ACTION
(Violation of the Commerce Clause of the United States Constitution; Restraint of Trade)
(As against Defendant(s): Schwartzenegger and State of California)
11. Paragraphs 1 through 8 are realleged and incorporated herein by reference.
12. The Commerce Clause of the United States Constitution takes precedence over any and all state laws, is applicable to the states, and California AB 962 § 7-12318(a) exceeds state authority to regulate interstate commerce by imposing a de facto embargo against out-of-state vendors through the mechanism of a requirement that sales of ammunition be completed “face-to-face”, accompanied by “evidence of identity” and a thumbprint ( § 2-12061(3)(F) ). This is also a de facto ban on interstate sales via the internet. Further, it constitutes an unwarranted and illegal restraint of trade.
SECOND CAUSE OF ACTION
( 18 USC, Part 1, Chapter 44 § 921, 17(A) )
(As against Defendant(s): Schwartzenegger and State of California)
13. Paragraph 9 is realleged and incorporated herein by reference.
14. Defendants have exceeded their authority by redefining “ammunition” as being inclusive of magazines, clips, and speed loaders, which are actually devices for containing “ammunition” as it is defined under Federal statute. Federal statute takes precedence over state law.
15. If any governmental entity at any level – state, city, or county – is able to define language, word usage, and the definition of legal terminology at will, then we have no national standards of reference. Chaos will prevail. What would prevent California, or any other state, from redefining as “ammunition” other essential functioning parts of the firearm itself – with the exception of the frame, where the serial number is located – in future legislation? This could easily lead to de facto gun bans through artifice and redefinition.
THIRD CAUSE OF ACTION
( Firearm Owners Protection Act of 1986; 18 USC, Part 1, Chapter 44 § 922 )
(As against Defendant(s): Schwartzenegger and State of California)
15. Paragraphs 9 and 10 are realleged and incorporated herein by reference.
16. The “face-to-face”, proof of identity and thumbprint requirements imposed by California AB 962 create a situation in which a sale of ammunition to a resident of California at a gun store in Nevada (for example), could result in both parties being subject to Federal criminal prosecution if the theoretical Nevada vendor doesn’t follow the strictures and procedural requirements of California AB 962 before completing the sale of the ammunition. Most states do not have such requirements for the sale of ammunition, but under the rules set in place by FOPA, the laws of both the state of the seller’s establishment and the buyer’s residence must be observed.
17. Further, California AB 962 fails to establish a process or mechanism for the submittal of the required documentation – including thumbprints – by out-of-state vendors, making the conformance with Federal requirements impossible. It also imposes on out-of-state sellers California state requirements for the maintenance of records regarding ammunition sales to California residents, again exceeding its authority, but necessary for that sale to be legal under Federal law as defined by FOPA and 18 USC, Part 1, Chapter 44 § 922, in order for all parties to avoid potential criminal prosecution under Federal law.
VI. REQUEST FOR RELIEF
WHEREFORE, the Plaintiff requests:
18. That the Court enter a declaratory judgment that State of California’s “Anti-Gang Protection Act of 2009” (AB 962), §§ 6-12317(c), 7–12318(a), 2-12061(3)(F), and 2-12061(4) are null and void because such provisions violate the Commerce Clause of the United States Constitution; constitute significant and unacceptable restraint of interstate trade; and conflict with and are preempted by the Firearms Owners Protection Act of 1986 and 18 USC Part 1, Chapter 44 §§ 921, 17(A) and 922.
19. That the Court issue preliminary and permanent injunctions enjoining Defendants and their officers, agents and employees from enforcing the “Anti-Gang Protection Act of 2009” (AB 962), §§ 6-12317(c), 7–12318(a), 2-12061(3)(F), and 2-12061(4).
20. Grant such other and further relief as may be proper.
21. Award Plaintiff attorney’s fees and costs.