TRIAL #2 is ON!
Update: 12/30/2000
As promised, a second all-out courtroom brawl
has
broken out, this time in Fed court.
To
bring y'all up to speed:
1)
It wasn't until January of 2000 that Richmond PD finally, formally denied my
application, at least 5 months after the state-required 90-day limit to deal
with an applicant (see
also Penal Code 12052.5).
2)
In February of 2000 I filed a formal CCW application with the Contra Costa
County Sheriff's department. According to State Superior Court Judge Patsey in
my first trial on 12/22/99, the Sheriff had to accept my formal application
(which has other implications too, as you'll see). The Sheriff's "CCW
screening agent" name of Willett turned me down based on "no good
cause" for issuance.
3)
In May of 2000 I complained to the Contra Costa County Board of Supervisors. A
month later they formally turned down my complaint as being meritless; in the
fine print at the bottom of the rejection was a notice that I then had a
six-month time limit to file suit based on violations of state law; causes of
action based on Fed rules aren't subject to this rule.
4)
In June of 2000 I flew to LA and met with noted gun-rights attorney Chuck Michel.
Chuck had collected data on CCW practices and policies from well over 100
agencies scattered through the state, including several jurisdictions in Contra
Costa County. I already had his stuff from Sheriff Rupf of CC County and had
used that data to produce "The Contra Costa Cronies Roster" but he
also had data from several cities…one of which dumped their whole "CCW
file" on Chuck. That file turned out to contain pure gold, more on that
below.
5)
I met with attorney David Beauvais of Berkeley in the summer of 2000; he
impressed the hell out of me. Rather than being a "gunnie attorney",
he specialized in constitutional law, equal protection and police misconduct
and abuse. A bit of study revealed that he's taken a variety of unusual cases
on principle. He explained that he needed $5k "up front" to cover
expenses (the same figure quoted by a "gunnie lawyer" who didn't
strike me as quite as qualified in equal protection law (and no, I'm not
talking about Peter Mancus)) and all other fees would be taken out of the other
side's hide at the end of the matter, upon winning.
6)
By 9/20/00 I was as yet unable to score a $5k grant, and I didn't have it
myself. Facing the upcoming six-month filing deadline on state law causes of
action, I filed the initial case myself, pro-per. You can see that
"amateur version" lawsuit here: http://www.ninehundred.com/~equalccw/pleadag.html
- note too the attached letter in there to the California AG's office required
any time you challenge the constitutionality of a state law in Fed court.
7)
Within a couple of weeks of the pro-per filing, the $5k came through from a
source who wishes to remain anonymous. No problem (thanx!!!). I immediately
hired David and was able to bring two co-plaintiffs in right away who had
gained standing to sue based on being denied.
8)
Rupf, his henchman Willett and the county all hired the same lawyer that I ran
into in trial #1. Their "answer to complaint" was to deny everything.
9)
All the other defendants filed "12B motions", which is a procedure in
Fed court saying "waaa, judge, we can't figure out what he's complaining
about". (Which is BS, we'll get into what really happened below.) In any
case, when a 12B motion is filed, you can either file an amended complaint or
argue against the motion - the former is almost always easier, so David began
the task of "professionalizing" my initial complaint.
10)
On 12/21/00, a "routine status conference" turned out to be anything
but routine. As David put it right afterwards, "we have a tiger by the
tail". Judge Alsup said that the allegations were "extremely
serious" in nature. He told all parties that he was going to take a firm
hand; he told David that if I (Jim March) missed so much as one deposition that
he was throwing the case out. He also gave David only until 12/29/00 to file an
amended complaint. That may sound bad, but then he turned to the OTHER side and
told the entire group of lawyers that any evidence of evidence tampering,
withholding or similar "paperwork games" would result in jury
instructions they really wouldn't like, such as an instruction telling
them that the defense has been "uncooperative".
My
take: Alsup is a GREAT Judge, more on why I think that below. Alsup took one
look at my initial amateur pleading and figured I must be a headcase and unable
to prove the intense set of allegations. That would be a problem, except for
one thing…remember that visit to LA to see Chuck? It paid off bigtime.
The situation at present:
David
just filed the amended complaint, within Alsup's time requirement. That
document is online here: http://www.ninehundred.com/~equalccw/trial2/march02.html
- because we're alleging conspiracy, we have to be "very specific".
Hence David named the "smoking gun" reproduced below: "Contra
Costa County Police Chiefs Association Model Protocol Concealed Weapons
Permits-Issuance to Civilians" Now that the cat's out of that bag, I can
show you this bad boy:
PAGE
ONE, ABOVE
PAGE
TWO, ABOVE
PAGE
THREE, ABOVE
PAGE
FOUR ABOVE (final page)
IMPLICATIONS OF THE ABOVE DOCUMENT
This
is the fun part.
1)
The first problem is on page one. Judges and reservists are excluded from
this protocol and it's requirement of "extraordinary good cause" and
"city blockage". That's a problem because in Salute vs. Pitchess,
restricting CCW to gov't-related folk is flat-out banned; the appellate court
called that "an abuse of, and not an exercise of, discretion".
2)
The second (and most severe) problem is on page two, under
"Procedure". I'm going to quote and comment on each relevant
piece of the first two paragraphs:
"An
applicant shall only be allowed to apply for a Concealed Weapon Permit with the
law enforcement agency for which jurisdiction he or she currently is a resident
or with the Sheriff if a substantial period of time is spent in his/her place
of employment or business which is within the county."
Jim:
So far, it appears legal at first glance, until you understand how these
guys have been using the term "jurisdiction": On 3/17/99, Willett of
the Sheriff's office penned a letter to me stating in part "The jurisdiction
where you reside is where you should apply for a CCW. You reside in
the city of Richmond. The Chief of Police of the Richmond Police
Department is the proper authority in your case. [emphasis added]"
Spot it yet? Here's the Chief's Association using the same term
("jurisdiction") as Willett, the Sheriff's designated CCW official,
and in the same month, in the same way. Yet on 12/22/99, Judge Patsey
told the Sheriff he HAD to let me apply on paper with the Sheriff's office,
something the Sheriff's lawyers had already figured out as far back as 3/24/99
when they saw my 3/15/99 lawsuit. If the law blocked me from access to
the Sheriff, Patsey wouldn't have said that I had to be allowed to apply with
the Sheriff, now would he?
The
3/99 Chief's Association document goes on in the next paragraph:
"In the
event the municipal law enforcement jurisdiction elects not to become involved
with the issuance of any Concealed Weapons Permit, then the applicant
may apply for a Concealed Weapons Permit with the Contra Costa Sheriff's
Office. [emphasis added]"
Now,
the "elects not to become involved in CCW" part is legal per Penal
Code 12050(g), which states:
"(g)
Nothing in this article shall preclude the chief or other head of a municipal
police department of any city from entering an agreement with the sheriff of
the county in which the city is located for the sheriff to process all
applications for licenses, renewals of licenses, and amendments to licenses,
pursuant to this article."
Well
guess what? NONE of the police departments in Contra Costa County
"declared G". All of them kept their fingers in the CCW pie to
at least the degree necessary to keep the Sheriff from issuing to
"peons" in their towns. Per the agreement, as long as no
"declaration of G" happens in a town, Sheriff Rupf will NOT issue to
town residents - Rupf will only issue to townies if "G" is in effect
and only the Chief can kick that clause in.
Richmond
could have "declared G" to settle my original suit but they
didn't - instead, they dusted off long-dusty application forms and indeed,
started to allow people to apply - but so far as I'm aware, haven't issued a
single actual permit since I first settled with them on 3/26/99 on a
"verbal handshake to be good". At that time, Richmond City
Attorney staff member Wayne Nishioka told me that Richmond had never
asked Sheriff Rupf to discriminate against town residents.
MALE
BOVINE OUTPUT!
Mind
you, I don't think it was a deliberate lie on his part. If it was, that
dude's a potential poker master. Rather, I think somebody in the Richmond
Police Department lied to him. I suspect that reading this actual Chief's
Association policy manual is going to cause Nishioka to reach for some
Maalox. Any older opposition attorneys may need stronger measures, like
maybe nitroglycerin tablets.
3)
When I went and applied for CCW in good faith with the Sheriff's office early in
2000 after Patsey said I could, this "secret protocol" not handed out
to any CCW applicant anywhere in the county meant that I was
"pre-screwed" going in. I paid all of $30 to have the Sheriff's
office "evaluate" my application when in fact they'd cut a deal with
Richmond PD and the rest of the Chiefs to screw me. Can you say "Jim is OUTRAGED"?
4)
Remember that 12B filing by the town-related defendants? What was really
going on was, they didn't know whether or not I could actually prove conspiracy
between them and the Sheriff. Wayne Nishioka in particular knew that if I
could, they were screwed - on 3/26/99 he told me that any such request on their
part to have the Sheriff screw Richmond residents would impart on Richmond a
"tremendous legal liability". Yo Wayne: welcome to your worst
nightmare. You wanted to know if I could prove it, so you filed that
12B? Well read it and weep, baby. I settled last time on your verbal word
of honor that reform would happen. Instead, your people wrote up a secret
agreement specifically to screw me. Your police department wouldn't know
honorable behavior if it bit 'em in the ass. I'm going to take that
"secret protocol" into Judge Alsup's court and I'm going to
symbolically cram it upside your sick crime-ridden hellhole of a city's nether
regions. That's if I even have to: Alsup already warned you lot not to
mess around with paperwork; he didn't know you already have. Sucks to be you!
But
seriously now: if the TOP cop in a city pulls garbage like this, how can we
possibly trust anybody below him in the force, and what the hell ELSE is going
on over there?!
5)
The pain continues: Sheriff Rupf is doing radical degrees of equal protection
violations in CCW issuance. For proof, go see "The Contra Costa Cronies
Roster" (Adobe
Acrobat Reader required, download it for free if necessary). Ask yourself
is he's sticking with that "extraordinary good cause" standard that's
in both the Chief's Association protocols and his own policy manual of 3/24/99.
The Chief's Association documents prove that the PD Chiefs "tied
themselves into" Rupf's discrimination. They voluntarily got in bed
with him...so even in the case of Chiefs like Baker in Pittsburg and the
Richmond Chiefs past and present who haven't issued any permits, they're still
liable for equal protection problems because they've tied themselves into
Rupf's horsecrap.
6)
Finally, Penal Code 12050.2 says:
"Within
three months of the effective date of the act adding this section, each
licensing authority shall publish and make available a written policy
summarizing the provisions of subparagraphs (A) and (B) of paragraph (1) of
subdivision (a) of Section 12050."
So
CCW policy data is supposed to be public. These jackasses created and
followed a SECRET set of protocols. When Judge Alsup sees that alone,
he's gonna make the opposition lawyers wish they'd stuck with the janitorial
trade.
Now,
this is by no means all that's going on. But it should be enough to
scare the hell out of the opposition.
FOOTNOTE: About Judge Alsup
I really, REALLY
like this guy: He's only been on the bench a couple of years, and he's
already racked up an impressive reputation. I can easily forgive his
being initially skeptical in my case; the reality is, what these agencies are
doing literally defies belief, there is NO area of law enforcement anywhere
near this screwed up...even drug-war property confiscations lacking anybody
being convicted doesn't have as much rampant illegality and secrecy going on.
1) This is the guy
that told the FDA and the Clinton administration to go do something impolite
with themselves when he ruled that doctors cannot be stripped of their medical
licenses for prescribing medical marijuana under California's Prop215.
See also: http://usgovinfo.miningco.com/newsissues/usgovinfo/library/weekly/aa091100a.htm
- this was an excellent pro-freedom decision.
2) He first gained
notice in a securities case, of all things. See, when stockholders start
suing a company for inflated claims and the like (a type of fraud), what most
judges do is figure out which law firm collected the most clients in terms of
collective dollar amount loss claims, and award "lead plaintiff"
status on that basis. Each firm wants lead plaintiff status because it
increases their billing. Well Alsup took a different tack: he asked the
question "which lead plaintiff will be the best "case manager"
for all the rest of the plaintiffs?". The answer to that question
was a local plaintiff with excellent experience and credentials but only small
losses, which led to howls of outrage by the big law firms. See also: http://www.callaw.com/stories/edt1118.html
- it's worth noting that in doing this, he didn't just re-write law, he paid
closer attention to what Congress actually did with securities lawsuit reform
law - Congress mandated that a particular plaintiff should take the
lead, rather than a particular law firm. Hence Alsup's decision is being
supported by higher courts, and imitated by other Judges.
3) In the Aptix
case, we get to see how Alsup reacts to fraud. Answer: he goes
ballistic. The CEO of Aptix corp held a valid high-tech patent worth
major bucks...but he decided to drive the date back a couple of years to
preclude possible conflicts with other patents. At one point, documents
supposedly dating to the late 80's were found to be written in a BIC ink that
didn't hit the market until the mid-90's. The next thing that
"hit" was Alsup's head on the courthouse ceiling, just before he
threw the book at Aptix and stripped them of their patent! See also http://www.us.design-reuse.com/NEWS/news15_06_00.html
BUT what's also
important is that Alsup took the time to look into all the ugly details of this
case, and fully document them. His final decision
is a marvel; I've pulled a copy off the court website and made it available
here. Like the "Cronies Roster" above, it's in Adobe
Acrobat, download
and install the free reader if necessary (it's not at all difficult).
Upshot: he's fair,
he writes clear and excellent opinions, and he's willing to dig into the
details and work for a living.
We couldn't
possibly hope for better.