The Supplemental Brief

Rhode v. Becerra:  The Supplemental Brief

This last week, Sean Brady, an attorney with Michele and Associates, filed a supplemental brief with the court in the case of Rhode v. Becerra.  For those of you who have not been playing along at home, this is the challenge to Prop 63’s ammo law, more specifically, the methodology used to process an ammo transaction now in the once great State of California.

It was extremely interesting reading.

The purpose of the brief was to answer questions the court posited of both parties during a status conference earlier in the year. 

(Oh, by the way… the judge is the same judge who created “Freedom Week” in Duncan v. Becerra, the case involving standard capacity magazines… yes… we love the honorable St. Benitez.)

In any event, the court essentially ordered the State to provide the plaintiffs with data about the number of ammo sales that resulted in delays or denials and, more importantly, the number of individuals who were denied a sale, but who, in reality, are non-prohibited persons.

Well… the State did what it was supposed to do, and Mr. Brady filed a brief explaining the results.

It was instructive on many levels.

So, while we all have anecdotal information about people not being able to buy ammo, we now have some actual data.

It appears that during the months of July, August, and September, 20% of all people who went to a gun store to purchase ammo were unable to do so. 

Awesome line #1 appearing on page 2, lines 4-6: “…[customers were prevented from purchasing ammo] for an indefinite period of time, not for being legally ineligible to possess ammunition, but because their records are not to the State’s liking.”

We also learned that of those who were rejected in July and August, who are not prohibited persons, still were not able to purchase their ammunition by the end of August.

We also learned something fascinating about the record keeping skills of the California Department of Justice:  One of the ways to prove you are a good, little citizen, and thus able to exercise your rights, is to pay for a COE (Certificate of Eligibility).  This is essentially a background check to determine if you are able to purchase a firearm.  Evidently, 12% of the people who have valid COEs were also rejected for ammo purchases.

(If you have arrived here from our newsletter, continue reading here…)

What is also interesting… and fair warning, I am about to go on a rant here… is something that appears on page 6, lines 14-15 “…the State does not even provide a specific explanation for the reason for a rejection.”

Of course it doesn’t.

This has been one of the things that has pissed me off about our State for a very, very long time.  The State makes a determination about something, then tells you it is your responsibility to know what the State knows.  “What the hell?!?”  As Kafkaesque as that sounds, that is generally how it works.  The State, and often the courts, take a position that what they produce is golden, and the very fact that you have the temerity to question them shows you are an enemy.  We have spoken to people at DOJ about a client, trying to figure out why that client was listed as a prohibited person.  Its answer was simply, “he was”. 

“Right… but we suspect that you got it wrong.”

“No, we didn’t.”

“Okay, what documentation did you use to determine his ineligibility?”

“We are not going to tell you.  He knows why he is.”

“No, he doesn’t, that is why we are asking you.”

“Sorry… not going to tell you… ‘click.’”

Okay, fine… perhaps you could argue this is in anticipation of an adversarial civil action against the State.  (It should still disclose if for no other reason than a potential plaintiff might remember something and decide to abandon the claim).   But, it also extends to the supposedly “neutral courts”.

To the clerk:

“I guess I need to fill out a particular form for the client?”

“Yes.”

“Would you happen to know what that is?”

“It is this one,” quickly showing a paper, then turning it over face down so we could not read it.

“Can I see it?”

“No.”

“Seriously?”

“Yes… is there something else you want?”

“No, you could have been helpful, but you have been so much less.”

Anyhow… sorry about the rant… back to our story:

Awesome line #2, page 10, lines 13-23: “(1) The System rejects 20% of ammunition purchasers; (2) the State does not directly inform those rejected of the specific reason for the rejection or how to remedy it; (3) there are no established timeframes for DOJ to update AFS records that would allow a rejected person to purchase ammunition; (4) according to the most recent data, a majority of those rejected do not later successfully acquire ammunition; (5) DOJ denies people whose eligibility status they cannot determine; and (6) DOJ has denied purchases to people who were later found not to be prohibited.  For these reasons, the Plaintiffs respectfully believe that neither the scheduled November 15 status conference, nor an evidentiary hearing, is necessary to rule on their preliminary injunction motion.  The Court should grant that motion on the current record at its earliest convenience.”

We will see what St. Benitez decides to do!

Steven Lieberman and Sandy Lieberman are the owners of the Artemis Defense Institute. A tactical training facility headquartered occupied California.   (adi.artemishq.com).  Mr. Lieberman is also one of the founding partners in the Law Offices of Lieberman and Taormina LLP.  Their law firm specializes in use of force, and Second Amendment defense and litigation.