Pizzo v. Lee et al

MOTION for Amicus Curiae Status

N.D. Cal.March 31, 2011

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. C. D. Michel - S.B.N. 144258 Glenn S. McRoberts - S.B.N. 144852 Clinton B. Monfort - S.B.N. 255609 MICHEL & ASSOCIATES, PC 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 Telephone: 562-216-4444 Facsimile: 562-216-4445 Email: cmichel@michellawyers.com Attorneys for Amicus Curiae Applicants National Rifle Association, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION THERESE MARIE PIZZO, Plaintiffs vs. CITY AND COUNTY OF SAN FRANCISCO, MAYOR GAVIN NEWSOM, in both his individual and official capacities; FORMER SAN FRANCISCO POLICE DEPARTMENT CHIEF OF POLICE HEATHER FONG, in both her individual and official capacities; SAN FRANCISCO POLICE DEPARTMENT CHIEF OF POLICE GEORGE GASCÓN, in his official capacity, SAN FRANCISCO SHERIFF MICHAEL HENNESSEY, in both his individual and official capacities; CITY AND COUNTY OF SAN FRANCISCO; and STATE OF CALIFORNIA ATTORNEY GENERAL KAMALA HARRIS in her official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 09-CV-04493-CW NOTICE OF MOTION AND MOTION FOR AMICUS CURIAE STATUS BY NATIONAL RIFLE ASSOCIATION, INC., AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Hearing Date: May 5, 2011 Time: 2:00 p.m. Place: Courtroom 2, 4th Floor Case4:09-cv-04493-CW Document37 Filed03/31/11 Page1 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. i TABLE OF CONTENTS PAGE(S) MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. PROCEDURAL POSTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 4 III. INTERESTS OF THE NATIONAL RIFLE ASSOCIATION . . . . . . . . . . . . . . . . . . 4 IV. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. NRA and the Other Jackson Plaintiffs Have Important Interests at Stake in the Pizzo Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. NRA’s Interests Are Not Being Adequately Protected in Pizzo . . . . . . . . . . . . 6 C. NRA Will Assist in the Resolution of this Case and Will Not Unduly Burden the Court or the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 D. The Court Has Broad Discretionary Authority to Confer Amicus Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Case4:09-cv-04493-CW Document37 Filed03/31/11 Page2 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. ii TABLE OF AUTHORITIES PAGE(S) FEDERAL CASES District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Funbus Sys., Inc. v. State of Cal. Pub. Utils. Comm’n, 801 F.2d 1120 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Jackson v. City and County of San Francisco, No. 09-2143 (N.D. Cal. filed May 15, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim McDonald v. City of Chicago, __ U.S. __, 130 S. Ct. 3020 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6 Mehl v. Blanas, No. 03-2682 (E.D. Cal. Mar. 9, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 Miller-Wohl Co. v. Comm’r of Labor & Indus., 694 F.2d 203, 204 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Neonatology Assocs., P.A. v. Comm’r of Internal Revenue, 293 F.3d 128, 132 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Nordyke v. King, No. 07-15763 (9th Cir. Sept. 24, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 6 Rothery v. Blanas, No. 08-2064 (E.D. Cal. July 15, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Silveira v. Lockyer, 312 F.3d 1052 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Silver v. Babbitt, 166 F.R.D. 418, 435 (D. Ariz. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 STATUTES & RULES 18 U.S.C. §§ 926B, 926C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 San Francisco Police Code section 613.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim San Francisco Police Code section 1290 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim San Francisco Police Code section 4512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim California Penal Code section 12031 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 California Penal Code section 12050 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Case4:09-cv-04493-CW Document37 Filed03/31/11 Page3 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. 1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: National Rifle Association, Inc. (NRA), hereby moves the Court to grant NRA amicus curiae status in order to participate in this action as such. The hearing on the motion will take place at 2:00 p.m. on May 5, 2011, or as soon thereafter as may be heard, before the Honorable Claudia Wilken in Courtroom 2, Fourth Floor of the United States District Court, Oakland Division, 1301 Clay Street, Oakland, California 94612. The motion shall be based on this notice of motion and motion, the supporting memorandum of points and authorities, declaration and evidence in support, any arguments of counsel at the hearing, and any such further matters as the Court deems appropriate. MEMORANDUM OF POINTS AND AUTHORITIES I. PROCEDURAL POSTURE On May 15, 2009, the NRA and several individual and associational plaintiffs filed a Complaint in Jackson v. City and County of San Francisco, Case No. 09-2143. The Jackson plaintiffs sought declaratory and injunctive relief against the City and County of San Francisco, Mayor Gavin Newsom, and Chief of Police Heather Fong (collectively “the City” or “the Jackson defendants”). The Jackson case challenges the validity of three firearms-related ordinances enacted and enforced by the City: (1) San Francisco Police Code (“SFPC”) section 4512, requiring handguns kept within the home be stored in a locked container or disabled with a trigger lock; (2) SFPC section 1290, prohibiting the discharge of any firearm within the limits of the City and County of San Francisco; and (3) SFPC section 613.10(g), prohibiting the sale of ammunition which “serves no sporting purpose.” (Decl. of C.D. Michel Supp. Mot. for Amicus Curiae Status [“CDM Decl.”] ¶ 1; Ex. A.) On July 9, 2009, the Jackson defendants filed a Motion to Dismiss for lack of Subject Matter Jurisdiction. The Jackson plaintiffs then amended their Complaint, addressing the jurisdictional concerns and obviating the need for a hearing on the City’s motion. (CDM Decl. ¶ 4; see also Ex. A.) On August 27, 2009, litigation of Jackson was stayed pending a decision in Nordyke v. King, Case No. 07-15763, a Ninth Circuit case then expected to resolve the pertinent issue of Case4:09-cv-04493-CW Document37 Filed03/31/11 Page4 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. 2 Second Amendment incorporation through the Fourteenth Amendment. (CDM Decl. ¶ 5; Ex. B.). Thereafter, Nordyke was itself stayed pending the U.S. Supreme Court ruling in McDonald v. City of Chicago, __ U.S. __, 130 S. Ct. 3020 (2010), on the incorporation issue. Order, Nordyke v. King, No. 07-15763 (9th Cir. Sept. 24, 2009). On September 23, 2009, some four months after Jackson was filed, Pizzo v. Newsom was filed. Plaintiff Pizzo sued Mayor Gavin Newsom, former Chief of Police Heather Fong, and Chief of Police George Gascón, in both their individual and official capacities, Sheriff Mike Hennessey and California Attorney General Edmund G. Brown, in their official capacities only, and the City and County of San Francisco. (Compl. at 6-7, ¶¶ 45, 49, 53, 56-59, 62.). Like Jackson, the Pizzo case challenges the constitutionality of SFPC sections 4512, 1290, and 613.10(g). But Pizzo also challenges California Penal Code section 12050 et seq. (concerning the discretionary issuance of carry concealed weapons (CCW) licenses by local law enforcement), California Penal Code section 12031(b) (prohibiting the carrying of a loaded firearm in a public place or on a public street in one’s vehicle, except as to current and retired police officers), and the federal Law Enforcement Officers Safety Act (LEOSA), codified at 18 U.S.C. §§ 926B, 926C. (Compl. at 7, ¶¶ 64-66.) On December 10, 2009, Pizzo was stayed pending a decision in Nordyke. (Order Granting Stay of Proceedings as Modified, Dec. 10, 2010.) On June 28, 2010, the U.S. Supreme Court issued its decision in McDonald v. City of Chicago, holding that “the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right [to possess a handgun in the home for the purpose of self-defense] recognized in Heller” to apply to the states. 130 S. Ct. at 3050. With the Second Amendment incorporation issue resolved, the Jackson plaintiffs filed a Motion for Relief from Stay, which the court granted on September 13, 2010, over defendants’ opposition. (CDM Decl. ¶ 7; Ex. C.) At that time, Pizzo remained stayed. On September 22, 2010, the Jackson defendants filed a motion seeking an extension of time to file an answer to plaintiffs’ Complaint. The Jackson plaintiffs did not oppose it out of professional courtesy. (CDM Decl. ¶ 8, Ex. D.) Case4:09-cv-04493-CW Document37 Filed03/31/11 Page5 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. 3 Even though the Jackson court had already determined that Pizzo and Jackson were not similar enough to be “related,” the Jackson defendants filed a Motion to Consolidate the two cases. (CDM Decl. ¶ 9; Ex. E at 1:26-27.) For various reasons, the Jackson plaintiffs opposed consolidation, including the facts that plaintiffs in each case are pursuing drastically different litigation strategies and that Pizzo was still stayed, while Jackson was moving forward. (CDM Decl. ¶ 10.) On December 16, 2010, the Jackson court denied defendants’ consolidation request. (CDM Decl. ¶ 11; Ex. E.) In January 2011, the Jackson defendants requested that plaintiffs stipulate to yet another extension of time to file their responsive pleading. Plaintiffs agreed, on the condition that any motion to dismiss would be filed and noticed so as to give plaintiffs at least one month to prepare their opposition. The Jackson court accepted the parties’ stipulation on January 28, 2011. (CDM Decl. ¶ 12, Ex. F.) On January 4, 2011, a Case Management Conference was held in the Pizzo case. At that case management conference, the stay in Pizzo was lifted. Deadlines were set for briefing and hearing any motion to dismiss, and for case management up to and including trial. (Min. Order & Case Mgmt. Order, Jan. 4, 2011). On February 10, 2011, the Jackson defendants filed a Motion to Dismiss for Lack of Jurisdiction on standing and ripeness grounds, and plaintiffs filed their opposition on March 23, 2011. The Jackson defendants’ Reply is due March 31, 2011. A hearing is set to be held before Judge Richard Seeborg at 1:30 p.m. on April 14, 2011. (CDM Decl. ¶ 13; see also Ex. A.) Meanwhile, on March 3, 2011, instead of filing a motion to dismiss Pizzo’s challenges to SFPC 4512, 1290, and 613.10(g) on standing and ripeness grounds (as it did to Jackson’s identical claims), the Pizzo City and County defendants filed an Answer. (Answer to Compl. by City & County of San Francisco, Heather Fong, George Gascón, Michael Hennessy, Gavin Newsom.) So Pizzo is moving forward, unencumbered by the many preliminary motions raised by the defendants’ in Jackson. Counsel for NRA has informed all Pizzo parties of its intention to file a motion seeking Case4:09-cv-04493-CW Document37 Filed03/31/11 Page6 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. 4 amicus curiae status. (CDM Decl. ¶ 14-15; Ex. G.) Both plaintiff Pizzo and the City and County defendants have indicated they would oppose NRA’s request. (CDM Decl. ¶¶ 14, 16-17.) As of the time of this filing, defendant State of California Attorney General Kamala Harris has yet to respond. (CDM Decl. ¶ 18.) II. INTRODUCTION AND SUMMARY OF ARGUMENT Several claims in Pizzo were literally copied from the Jackson Complaint and pasted nearly word for word into the Pizzo Complaint (which also contains other claims not made in the Jackson case). See, e.g., Complaint at ¶¶ 74-76, 100-102, 104-105, Pizzo v. Newsom, No.09-4493, (N.D. Cal. filed Sept. 23, 2009); Complaint at ¶¶ 26-29, 52-54, 58-60, Jackson v. City and County of San Francisco, No. 09-2143 (N.D. Cal. filed May 15, 2009). NRA thus seeks to participate in Pizzo as an amicus primarily to address the challenges to SFPC sections 4512, 1290, and 613.210(g), but would also like to be able to comment on other challenges raised in Pizzo to the extent its members’ interests might be impacted. Of particular concern to NRA is the great possibility that defendants will litigate a dispositive motion or otherwise reach the merits of the claims in Pizzo, while Jackson remains stalled by what appears to be strategic gamesmanship and procedural maneuvering by the City. While the City has the technical procedural ability to try to select the case it prefers to litigate first, any outcome in the Pizzo case will have a bearing on NRA’s claims in Jackson. And, because NRA’s members’ interests cannot be sufficiently represented in Pizzo, it seeks amicus status to ensure its members interests will be properly heard and protected. Aside from the benefit to NRA and its members, the Court will benefit from NRA’s unique expertise in Second Amendment litigation and its wealth of knowledge and resources regarding the use of firearms and ammunition for effective self-defense. Further, as discussed below, NRA intends to and believes it can serve as amicus with no undue burden on the Pizzo Court or parties. III. INTERESTS OF THE NATIONAL RIFLE ASSOCIATION NRA is a non-profit membership organization founded in 1871 and incorporated under the laws of New York, with headquarters in Fairfax, Virginia, and an office in Sacramento, Case4:09-cv-04493-CW Document37 Filed03/31/11 Page7 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. 5 California. NRA represents hundreds of thousands individual members and approximately 850 affiliated clubs and associations in California. Among its other activities, NRA works to preserve and protect the constitutional and statutory rights of gun ownership, including the right to self- defense and the Second Amendment right to keep and bear arms. As an amicus, NRA intends to represent the interests of its members, including those who reside in the City and County of San Francisco, and to promote their rights to keep their firearms operable in their homes for effective use during self-defense emergencies, and to use those firearms, along with appropriate ammunition, for self-defense. IV. ARGUMENT A. NRA and the Other Jackson Plaintiffs Have Important Interests at Stake in the Pizzo Case In addition to the general interests in the subject matter of this litigation, NRA and the other Jackson plaintiffs have concrete interests at risk in this lawsuit that are more than sufficient to support amicus status. An amicus need not necessarily have an interest at stake in order to assist the Court in resolving a dispute, but NRA’s interests in this case help demonstrate not only that it will participate in a helpful way, but also that it should have its voice heard in the Pizzo case. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held that D.C.’s “ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self- defense.” 554 U.S. at 635 (emphasis added). NRA’s members in California, specifically those residing in the City and County of San Francisco, brought their own challenge to SFPC sections 4512, 1290, and 613.10(g), seeking to vindicate their Second Amendment rights to render their handguns operable for the purpose of employing effective, immediate self-defense, to access ammunition most appropriate for that purpose (regardless of whether it also serves some “sporting purpose”), and to discharge their firearms, as necessary, in defense of themselves, their families, and their homes. Those same interests are at stake in Pizzo – because the Pizzo plaintiffs literally copied them from the Jackson Complaint. And because of the possibility, and perhaps likelihood, that Case4:09-cv-04493-CW Document37 Filed03/31/11 Page8 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 While NRA does not presume to know that this is the strategy being employed by the Jackson1 defendants, it highly suspects this to be the case in light of the many procedural hurdles the City has placed in the way of the Jackson plaintiffs’ ability to move forward with their claims–and the absence of those same tactics in Pizzo. In fact, defendants’ counsel previously insinuated that she might choose to move Pizzo more quickly than Jackson, a threat she appears to be carrying through. (CDM Decl. ¶ 6.) Motion for Amicus Curiae Status by National Rifle Association, Inc. 6 Pizzo will be litigated on its substantive merits before Jackson has moved much beyond preliminary motions, any result in Pizzo will directly impact NRA’s claims in Jackson. As such, NRA’s members have a strong interest in the outcome of Pizzo, and they deserve the opportunity to be heard before the Pizzo court. B. NRA’s Interests Are Not Being Adequately Protected in Pizzo Throughout the course of litigating the Jackson case, defendants appear to have tried to stall the progress of that case. They no doubt deny this. But their actions suggest otherwise. Those actions have taken the form of opposing the motion to lift the stay imposed pending the outcome of McDonald and/or Nordyke, repeated requests for extended time to file a responsive pleading, and the filing of several preliminary motions including a motion to consolidate Jackson and Pizzo, and a motion to dismiss on standing and ripeness grounds. (CDM Decl. ¶¶ 7-9, 12-13.) In Pizzo, on the other hand, those same defendants passed on the opportunity to dispose of identical challenges to SFPC sections 4512, 1290, and 613.10(g) by way of a motion to dismiss on standing and ripeness grounds, filing their Answer immediately after the stay in Pizzo was lifted. While it is the strategic prerogative of defendants to try to choose which case (and which lawyers) it would prefer to deal with first, NRA need not stand idly by and watch it happen. NRA1 reasonably fears that Pizzo will proceed to resolution on the merits, possibly negatively impacting the interests of NRA’s members, before the NRA and the other Jackson plaintiffs have the opportunity to be heard. Further, NRA’s interests are not being and cannot be sufficiently represented in the Pizzo case. Pizzo raises eleven claims, challenging local, state, and federal law, under a number of theories, against multiple local and state officials. Such a “kitchen sink” approach itself indicates a strategic choice that runs counter to the Jackson plaintiffs’ careful selection of their claims, and it suggests that sufficient energy and resources will not be devoted to or expended on the Case4:09-cv-04493-CW Document37 Filed03/31/11 Page9 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NRA also opposed consolidation with the Pizzo case because it remained stayed long after the2 stay in Jackson was lifted. (CDM Decl. ¶ 10.) Pizzo’s choice not to move to lift the stay after the ruling in McDonald was issued, while the Jackson plaintiffs moved immediately to protect their fundamental rights, is yet another example of the wildly different litigation strategies being pursued by the plaintiffs in each case. Further, in Mehl v. Blanas, Case No. 03-02682, plaintiff’s counsel failed to timely object to3 the prevailing parties’ Bill of Costs, causing his late objections to be stricken. The court thus Motion for Amicus Curiae Status by National Rifle Association, Inc. 7 constitutional challenges to sections 4215, 1290, and 613.10(g). While NRA has an interest in the state of the law regarding the issuance of CCW permits in California and the right to carry firearms for self-defense and other lawful purposes, NRA would have (and has) chosen to raise such claims wholly apart from their challenge to San Francisco’s local ordinances, which have little or nothing to do with the legal issues surrounding the carrying of a firearm outside of one’s home. Ultimately, NRA opposed consolidation of Jackson and Pizzo to avoid being bogged down by the state and federal claims brought in Pizzo and the vast differences among the issues presented by those challenges. (CDM Decl. ¶ 10.)2 What’s more, plaintiff Pizzo’s counsel of record has an unfortunate history of missing deadlines and pursuing ill-advised litigation strategies. For instance, in a previous Second Amendment case of great public importance, Silveira v. Lockyer, 312 F.3d 1052 (2002), plaintiff’s counsel did not file a reply brief at the appellate level, passing on the opportunity to provide valuable briefing to the Ninth Circuit on important Second Amendment constitutional issues and allowing the opposing party’s arguments to go unanswered. (See Ex. H (General Docket, Silveira v. Lockyer, 312 F.3d 1052 (2002) (No. 01-15098).) More recently, a judge in the United States District Court for the Eastern District of California lambasted counsel’s work on the record, suggesting that his lengthy complaint was “Exhibit A of what you should not do in terms of pleading a complaint in federal court,” that he had “a fundamental lack of understanding of the Federal Rules of Civil Procedure,” and that his lawsuit was “almost frivolous, if not frivolous” in light of Mehl v. Blanas, a nearly identical challenge brought unsuccessfully by plaintiff’s counsel in 2003. (Ex. K (Reporter’s Transcript, Court’s Rulings on Motions to Dismiss at 1:17-22, 17:22-18:8, 19:13-18, Rothery v. Blanas, No. 08-2064 (E.D. Cal. July 15, 2009).)3 Case4:09-cv-04493-CW Document37 Filed03/31/11 Page10 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ordered his clients pay defendants’ costs in the amount of $5,873.22. (Ex. J (Order, Mehl v. Blanas, No. 03-2682 (E.D. Cal. Mar. 9, 2011).) For example, NRA would be willing to file its brief(s) a short time after plaintiff Pizzo4 submits hers, in order to limit or avoid duplication of arguments made by other parties. Motion for Amicus Curiae Status by National Rifle Association, Inc. 8 These instances further underscore NRA’s fear that its members’ interests will be insufficiently represented in the Pizzo case. Taken together with the fact that the Jackson and Pizzo plaintiffs have taken vastly different strategic approaches to litigating their challenges to SFPC sections 4512, 1290, and 613.10(g), it is apparent that, absent participation as amicus curiae, NRA’s interests will not be adequately represented in Pizzo. C. NRA Will Assist in the Resolution of this Case and Will Not Unduly Burden the Court or the Parties NRA can offer the Court valuable input on the legal and factual issues related to the Second Amendment implications of this case, as it has had extensive involvement in these and similar issues in other contexts. As amicus, NRA will strive to avoid duplicative and excessive briefing by working, to the extent possible, to coordinate with the other parties. And NRA will4 comply with any restrictions the Court deems necessary and appropriate. In short, by participating as amicus, NRA will add a meaningful voice to this case of high public importance, but will direct its efforts so as to refrain from placing undue burden on the Court and the other parties. See Silver v. Babbitt, 166 F.R.D. 418, 435 (D. Ariz. 1994). NRA has extensive knowledge of the issues involved in the Pizzo case, having participated in numerous cases and proceedings regarding the constitutional and statutory rights of gun owners. For instance, NRA has participated as plaintiff, intervenor, or amicus in countless challenges to local, state, and federal regulations involving conduct protected by the Second Amendment, including the use of in-home self-defense, firearm purchase, ownership, and possession, and ammunition transfers. More specifically, NRA’s participation as a plaintiff in Jackson, which includes identical challenges to SFPC sections 4512, 1290, and 613.10(g), makes it particularly and uniquely well-versed in the issues of this case. As amicus, NRA intends to submit briefing to assist the Court in resolving this matter, and Case4:09-cv-04493-CW Document37 Filed03/31/11 Page11 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. 9 further intends to supplement and compliment plaintiff Pizzo’s presentation of this case, rather than duplicate her efforts. NRA expects that its memoranda will specifically address those claims that directly impact its interests in Jackson–namely, the challenges to SFPC sections 4512, 1290, and 613.10(g)–and the fundamental right of law-abiding residents of the City and County of San Francisco to defend themselves, their families, and their homes. In the case that other Second Amendment issues require the unique perspective of NRA, its memoranda may also address those issues. NRA can offer its unique experience, knowledge, and perspective to aid the Court in the proper resolution of this case. And it has at its service preeminent Second Amendment scholars, firearms, ammunition, and self-defense experts, and lawyers with decades of experience in firearms litigation. To the extent these challenges hinge on factual contentions regarding effective self-defense (and the rights appurtenant thereto), NRA is in a unique position to offer guidance to the Court. Further, NRA can participate in this capacity without inviting undue prejudice on any party to this action. So as to minimize the burden on the Court and each party, NRA will abide by any restrictions on its participation the Court deems necessary. Further, NRA will respect the briefing schedule set in this case and will attempt, to the extent it is able, to work with plaintiff’s counsel to avoid duplication and excessive briefing of the issues. And, if the Court so desires, NRA would be willing to file its brief(s) after plaintiff’s filing(s) so as to avoid unnecessary repetition of argument. Such an approach would be consistent with Federal Rule of Appellate Procedure 29, which governs amicus participation in appellate proceedings. See Notes on Fed. R. App. P. 29(e) (“The 7-day stagger was adopted because it is long enough to permit an amicus to review the completed brief of the party being supported and avoid repetitious argument. A 7-day period is also short enough that no adjustment need be made in the opposing party’s briefing schedule. The opposing party will have sufficient time to review arguments made by the amicus and address them in the party’s responsive pleading.”). That said, it is apparent NRA will serve a significant benefit upon the Court in the role of amicus, while inviting no undue prejudice upon the parties of this action. As such, the Court should exercise its broad discretion to allow NRA to participate in this capacity. Case4:09-cv-04493-CW Document37 Filed03/31/11 Page12 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. 10 D. The Court Has Broad Discretionary Authority to Confer Amicus Status Although no Federal Rule of Civil Procedure specifically governs participation by amicus curiae in the district courts, the Court has inherent discretionary authority to grant amicus status. See Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982) (upholding district court’s decision to appoint amicus status sua sponte). There are no strict or formal requirements for granting amicus status. Instead, courts often welcome the participation of an amicus who will offer information that is both timely and useful, including information that will aid the court’s understanding of the case and the potential ramifications of the resolution of the case. An amicus can also help the court by “assisting in a case of general public interest, supplementing the efforts of counsel and drawing the court’s attention to law that might otherwise escape consideration.” Funbus Sys., Inc. v. State of Cal. Pub. Utils. Comm’n, 801 F.2d 1120 (9th Cir. 1986) (citing Miller-Wohl Co. v. Comm’r of Labor & Indus., 694 F.2d 203, 204 (9th Cir. 1982)). An amicus need not be impartial to the outcome of the case, Hoptowit, 682 F.2d at 1260; in fact, some interest in the outcome of the case is to be expected. A case from the Third Circuit, penned by then-Judge, now-Justice Samuel Alito, extensively analyzed the amicus issue. See Neonatology Assocs., P.A. v. Comm’r of Internal Revenue, 293 F.3d 128, 132 (3d Cir. 2002). The court outlined some of the benefits an amicus party can provide, including presenting background or factual information, offering special expertise, briefing points not emphasized by existing parties, and explaining the potential impact of a decision on a group. Id. at 132. Justice Alito adopted a “broad” approach to amicus participation, following what he considered to be the “predominant practice in the courts of appeal” and rejecting the “small body of judicial opinions that look with disfavor on motions for leave to file amicus briefs.” Id. at 133. Finally, Justice Alito discussed safeguards the Court can employ to ensure that an amicus curiae will not unduly burden the court and other parties. He explained that the court should generally grant amicus status and, if the amicus brief is ultimately unhelpful or duplicative, the court may simply disregard the amicus’ input. Id. Consistent with Ninth Circuit precedent and Justice Alito’s reasoning, the Court should exercise its broad discretion to allow NRA to participate as amicus, especially as it meets any Case4:09-cv-04493-CW Document37 Filed03/31/11 Page13 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. 11 informal amicus criteria discussed above. V. CONCLUSION NRA seeks primarily to present to the Court with its expertise and perspective on plaintiff’s challenges to SFPC sections 4512, 1290, and 613.10(g). And it has demonstrated both that it has sufficient interest in this case to qualify for amicus status and that it will work with all parties to avoid unnecessary duplication of efforts. On behalf of its members in California, NRA respectfully requests the Court grant its Motion for Amicus Curiae status. RESPECTFULLY SUBMITTED. Date: MICHEL & ASSOCIATES, PC /S/ C. D. Michel Attorney for Plaintiffs Case4:09-cv-04493-CW Document37 Filed03/31/11 Page14 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION THERESE MARIE PIZZO, Plaintiffs vs. CITY AND COUNTY OF SAN FRANCISCO, MAYOR GAVIN NEWSOM, in both his individual and official capacities; FORMER SAN FRANCISCO POLICE DEPARTMENT CHIEF OF POLICE HEATHER FONG, in both her individual and official capacities; SAN FRANCISCO POLICE DEPARTMENT CHIEF OF POLICE GEORGE GASCÓN, in his official capacity, SAN FRANCISCO SHERIFF MICHAEL HENNESSEY, in both his individual and official capacities; CITY AND COUNTY OF SAN FRANCISCO; and STATE OF CALIFORNIA ATTORNEY GENERAL KAMALA HARRIS in her official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: CV-09-2143-RS CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED THAT: I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business address is 180 E. Ocean Blvd., Suite 200, Long Beach, California, 90802. I am not a party to the above-entitled action. I have caused service of: NOTICE OF MOTION AND MOTION FOR AMICUS CURIAE STATUS BY NATIONAL RIFLE ASSOCIATION, INC., AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT on the following party by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. “SEE ATTACHED SERVICE LIST” I declare under penalty of perjury that the foregoing is true and correct. Executed on March 31, 2011. /S/ C. D. Michel Attorney for Amicus Case4:09-cv-04493-CW Document37 Filed03/31/11 Page15 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Amicus Curiae Status by National Rifle Association, Inc. 13 “SERVICE LIST” Gary William Gorski Law Offices of Gary W. Gorski 8549 Nephi Way Fair Oaks, CA 95628 (916)965-6800 (916)065-6801 (fax) usrugby@gmail.com Geoffrey Lloyd Graybill California Attorney General's Office 1300 I Street P.O. Box 944255 Sacramento, CA 94244-2550 (916) 324-5465 (916) 324-8835 (fax) geoffrey.graybill@doj.ca.gov Sherri Sokeland Kaiser Office of the City Attorney City & County of San Francisco #1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102-4682 (415) 554-4691 (415) 554-4747 (fax) sherri.sokeland.kaiser@sfgov.org Daniel Michael Karalash Law Ofc Daniel M Karalash 1207 Front St Ste 15 Sacramento, CA 95814 916-787-1234 916-787-0267 (fax) dankaralash@gmail.com Craig Cox Weaver CC WEAVER & ASSOCIATES P.O. Box 2275 Folsom, CA 95763 916-941-5184 916-404-4867 (fax) craigcweaver@ccweaver.com Case4:09-cv-04493-CW Document37 Filed03/31/11 Page16 of 16