DAVID J. BEAUVAIS (SB# 84275)
1840
Woolsey Street
Berkeley,
California 94703
Telephone:
(510) 845-0504
Attorney
for Plaintiffs
JAMES
MARCH, DXXX
and
RXXX
UNITED STATES DISTRICT
COURT
NORTHERN DISTRICT OF
CALIFORNIA
JAMES MARCH, DXXX, ) No. C 00 3360 WHA
and RXXX, )
)
Plaintiffs, ) AMENDED COMPLAINT FOR VIOLATION
) OF
CIVIL RIGHTS
vs. )
)
WARREN E. RUPF,
individually and )
in his capacity as Sheriff
of the ) JURY TRIAL DEMANDED
County of Contra Costa;
WAYNE )
WILLETT, individually and
in his )
capacity as a Captain of
the Contra )
Costa County Sheriff’s
Department; the )
COUNTY OF CONTRA COSTA; )
AARON BAKER, individually
and in )
his capacity as Chief of
Police of )
the City of Pittsburg; CITY
OF )
PITTSBURG; JOSEPH SAMUELS, )
individually and in his
capacity as )
Chief of Police of the City
of )
Richmond;
EDWARD DUNCAN, )
individually
and in his former capacity )
as
Chief of Police of the City of )
Richmond; and CITY OF
RICHMOND; )
)
Defendants. )
________________________________)
Plaintiffs allege:
JURISDICTION
1. The court
has jurisdiction over the subject matter of this action pursuant to Title 28,
United States Code Sections 1331, 1332 and 1343.
2. The claims
upon which this suit are based occurred in this judicial district.
3. Plaintiffs
are informed and believes and on that basis alleges that each of the named
defendants resides in this judicial district.
PARTIES
4. Plaintiffs
JAMES MARCH, DXXX and RXXX are individuals who at all times mentioned herein
have resided in the County of Contra Costa.
Each of them made regular and proper applications for concealed weapons
permits as residents of the County pursuant to California Penal Code Section
12050 et seq. and were denied permits.
5. Defendants
COUNTY OF CONTRA COSTA, CITY OF PITTSBURG, and CITY OF RICHMOND are local
public entities situated in the State of California and organized under the
laws of the State of California.
6. Defendant
WARREN E. RUPF is, and was at all times mentioned herein, the Sheriff of the
County of Contra Costa and in doing the things hereinafter alleged, acted under
color of state law as an agent of the COUNTY OF CONTRA COSTA and with its full
consent and approval.
7. Defendant
WAYNE WILLITT is, and was at all times mentioned herein, a sworn officer of the
County of Contra Costa Sheriff’s Department acting under the direction and
control of defendant WARREN E. RUPF and in doing the things hereinafter
alleged, acted under color of state law as an agent of the COUNTY OF CONTRA
COSTA and with its full consent and
approval.
8. Defendant
AARON BAKER is, and was at all times mentioned herein the Chief of Police of
the City of Pittsburg and in doing the
things hereinafter alleged, acted under color of state law as an agent of the
CITY OF PITTSBURG and with its full consent and approval.
9. Defendant
JOSEPH SAMUELS is, and was at all times mentioned herein, the Chief of Police
of the City of Richmond and in doing
the things hereinafter alleged, acted under color of state law as an agent of the
CITY OF RICHMOND and with its full consent and approval.
10. Defendant
EDWARD DUNCAN was at pertinent times mentioned herein, the Chief of Police of
the City of Richmond and in doing the things hereinafter alleged, acted under
color of state law as an agent of the CITY OF RICHMOND and with its full
consent and approval.
11. In doing
the things herein alleged, the defendants, and each of them, acted as the
agent, servant, employee and in concert with each of the remaining defendants.
STATEMENT OF FACTS
12.
Plaintiffs each applied within one year of the filing of this complaint
for a concealed weapon permit (CCWs) pursuant to Penal Code section 12050. None of the plaintiffs was statutorily
disqualified from holding a permit and each stated good cause for
issuance. Yet, each was denied.
13. Defendant
RUPF delegated the task of "pre‑screening" and interviewing CCW
applicants to defendant Willett who made recommendations to RUPF as to the
suitability of applicants.
14. In the
exercise of the powers granted RUPF under Penal Code section 12050 et seq.,
RUPF and WILLETT unlawfully discriminated against the plaintiffs by denying
their applications while others were approved.
The discrimination arose from the following acts committed by RUPF
and/or WILLETT in the processing of requests for CCW permits:
(a) Said defendants required extraordinary good cause
for issuance of permits to the plaintiffs while requiring either slight cause
or no cause for issuance to other classes of persons similarly situated
including judges, retired and reserve police officers, residents of wealthy
areas of the county and contributors to the election campaign of RUPF.
(b) Requiring in violation of statute that persons
not within the class of preferred applicants be orally pre-screened as a
condition to obtaining an application for a permit, thus eliminating a paper
trail to identify interested applicants and precluding public scrutiny of the
acts of the defendants.
(c) Failing or neglecting in violation of statute to
process applications of persons not within the preferred classes in a timely
manner;
(d) Failing or neglecting to maintain complete
records of applications that were granted or denied for the period required by
statute with the intent to eliminate a paper trail of the disparate treatment
afforded applicants for permits.
15. In or
about March, 1999, each of the individual defendants, except defendants WILLETT
and SAMUELS entered into an agreement,
the effect of which was to redline portions of the County which are populated
largely by racial and ethnic minorities and persons of lower economic status to
preclude such persons from obtaining a CCW based on their minority and economic
status. The agreement is memorialized in
a document entitled “Contra Costa County Police Chiefs Association Model
Protocol Concealed Weapons Permits-Issuance to Civilians” (hereinafter referred
to as “the Protocol”). According to its
terms, an applicant who is not a member of one of the preferred classes for
issuance is required to show “extraordinary justification” for a permit. This
extraordinary justification which establishes a stringent standard that the
Legislature has not authorized, is defined as “convincing evidence that there
exists a clear and present danger to life, or great bodily harm to the
applicant, or immediate family his [sic] or her spouse, or dependent
child(ren), which cannot be adequately dealt with by existing law enforcement
resources, and which danger cannot reasonably avoided by alternative
measures. It must also be demonstrated
that such danger would be significantly reduced by the applicant’s carrying a
concealed weapon.” The Protocol including
this requirement of justification for issuance expressly does not apply to
judicial and reserve police officer applicants.
16. In
violation of statute, the Protocol mandates that residents of municipal law
enforcement jurisdictions are required to apply in their respective
jurisdictions rather than apply for a permit with the Sheriff notwithstanding
the fact that none of the defendant public entities or individual defendants
have opted out of the permit process as authorized by Penal Code section
12050(g).
17. In
practice, the defendants, and all of them, have established a blanket ban on
issuance of permits to persons who are not members of one of the preferred
classes of applicants.
18. Defendant
SAMUELS adopted or otherwise ratified the terms of the Protocol when he assumed
his duties as Chief of Police of the City of Richmond.
STATEMENT OF DAMAGES
19. As a
direct and proximate result of the acts alleged in this complaint, plaintiffs
sustained injuries and damages including, but not limited to: pain,
suffering, emotional distress,
embarrassment and humiliation, all to their general damage in an amount
according to proof.
20. As a
further direct and proximate result of the acts alleged in this complaint,
plaintiffs incurred special damages in an amount according to proof.
21. The
conduct of the individual defendants was willful, malicious, oppressive and/or
reckless and therefore plaintiffs are entitled to punitive damages according to
proof.
22. As a
further direct and proximate result of the acts of defendants, and each of
them, as alleged herein, defendants violated plaintiffs’ rights under the
United States Constitution, including but not limited to their rights under
Second and Fourteenth Amendments.
23.
Plaintiffs have been compelled to engage the services of private counsel
to vindicate their rights under the law.
Plaintiffs are therefore entitled to reasonable attorney's fees pursuant
to 42 U.S.C. 1988.
COUNT ONE
Violation of Civil Rights
(Title 42 U.S.C. Section
1983)
(As To
Defendants Rupf, Willett, Baker, Samuels and Duncan)
24.
Plaintiffs reallege and incorporate herein by reference the allegations
set forth in Paragraphs 1 through 23 of this complaint.
25. In doing
the acts complained of herein, defendants Rupf, Willett, Baker, Samuels and
Duncan acted under color of state law to deprive plaintiffs as alleged herein,
of certain constitutionally protected rights including, but not limited to the
right to equal protection of the laws and the right to due process of law under
the Fourteenth Amendment, the right to be free of discriminatory enforcement of
the laws and the right to be free of unreasonable infringement of rights under
the Second Amendment of the United States Constitution.
26. As a
direct and proximate result of the violation of their constitutional rights by
defendants, and each of them, plaintiff suffered general and special damages as
alleged in this complaint.
27. The
conduct of the defendants was willful,
malicious, oppressive, and/or reckless, and was of such a nature that punitive
damages should be imposed in an amount commensurate with the wrongful acts
alleged herein.
WHEREFORE, plaintiffs pray for relief as hereinafter
set forth.
COUNT TWO
Violation of Civil Rights
(Title 42 U.S.C. Section
1983)
(As To Defendants County of Contra Costa, City of
Richmond and City of Pittsburg)
28.
Plaintiffs reallege and incorporate herein by reference the allegations
set forth in Paragraphs 1 through 27 of this complaint.
29. At all
times herein mentioned, defendants RUPF, BAKER, SAMUELS and DUNCAN acted in
their official capacities and pursuant to a policy of their respective public
entity employers to deprive plaintiffs and others of their rights secured by
the Constitution of the United States.
30. The
denial of the permits to plaintiffs constituted part of a pattern and practice
of each of the public entity defendants to reserve CCW permits to those persons
who are members of one of the preferred classes identified in this complaint.
31. As a
direct and proximate result of the acts complained of herein, plaintiff has
suffered general and special damages as set forth in this complaint.
WHEREFORE, plaintiff prays for relief as hereinafter
set forth.
COUNT THREE
Violation of Civil Rights
(Title 42 U.S.C. Section
1983)
(Injunctive Relief–All Defendants)
32.
Plaintiffs reallege and incorporate herein by reference the allegations
set forth in Paragraphs 1 through 31 of this complaint.
33.
Plaintiffs continue to be aggrieved by the conduct of the defendants and
have no adequate remedy at law.
34. The
defendants threaten to continue the unconstitutional practices including the
absolute ban on issuance of permits to persons who are not members of one of
the preferred classes.
35.
Plaintiffs are in need of protection against a recurrence of the abuses
described herein in that they intend to continue to seek the permits to which
they are entitled and an injunction against the unlawful practices of the
defendants is warranted for the protection of the plaintiffs and others
similarly situated.
WHEREFORE, plaintiffs pray for relief as hereinafter
set forth.
COUNT FOUR
Violation of Civil Rights
(Title 42 U.S.C. Section
1983)
(Declaratory Relief–All Defendants)
36
Plaintiffs reallege and incorporate herein by reference the allegations
set forth in Paragraphs 1 through 31 of this complaint.
37. An actual
controversy has arisen between plaintiffs and defendants concerning their
respective rights and duties as concern issuance of CCW permits by public
entity defendants.
38.
Plaintiffs are entitled to a declaration that they have a right to the
permits which they seek and a right to due process and equal treatment under
the law.
WHEREFORE, plaintiffs pray for relief as hereinafter
set forth.
JURY TRIAL DEMAND
39.
Plaintiffs demand a jury trial in this matter.
PRAYER
WHEREFORE, plaintiff prays for judgment against the
defendants, and each of them, as follows:
1. General
damages according to proof;
2. Special
damages according to proof;
3. Punitive
damages according to proof;
4. Relief
enjoining defendants from maintaining dual standards for issuance of permits;
requiring defendants to establish specific standards for evaluating permit
applications; restraining defendants from enforcing the Protocol, and requiring
defendants to comply in every respect with the statutory mandates of Penal Code
section 12050 et seq.
5. A
declaratory judgment that defendants’ practices complained of herein violate
the plaintiffs’ constitutional rights and a determination that they are
entitled to the permits which they seek.
6.
Attorneys' fees pursuant to 42 U.S.C. Section 1988.
7. Costs of
suit; and
8. For such
other and further relief as the court deems appropriate.
DATED:
December 29, 2000
______________________________
DAVID J. BEAUVAIS
Attorney for Plaintiffs