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1 CARMEN A. TRUTANICH, City Attorney (SBN 86629x)GARY G. GEUS~ ChiefAssistant City Attorney

2 CORY M. BREN IE Assistant City AttorneyELIZABETH MITCHELL, Deputy City Attorney (SBN 251139)

3 WENDY SHAPERO, Deputy City Attorney (SBN 198739)200 North Main Street

46th Floor, City Hall EastLos Angeles, CA 90012

5 Email: wendy.shaperolallacity.orgPhone No.: e213} 978-7029

6 Fax No.: (213) 978-8785

7 Attorneys for Defendants CHARLIE BECK and LOS ANGELES POLICEDEPARTMENT

CASE NO. CVI0-8377 RGK (JEM)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

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12 JONATHANBIRDT,

May 16,20119:00 a.m.850

Date:Time:Courtroom:

[Defendants' Response toPlaintiff's Sl1Jarate Statement ofUndisputed Facts, Defendants'Statement of UncontrovertedFacts and Conclusions of Law inSupport of Motion for SummaryJudgment, Declarations, Exhibits,and Proposed Order filedconcurrently herewith]

DEFENDANTS LOS ANGELESPOLICE DEPARTMENT ANDBECK'S NOTICE OF MOTIONAND MOTION FOR SUMMARYJUDGMENT OR PARTIALSUMMARY JUDGMENT ANDOPPOSITION TO PLAINTIFF'SMOTION FOR SUMMARYJUDGMENT; MEMORANDUMOF POINTS ANDAUTHORITIES

Defendants.

Plaintiff,

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17 x~~h1~~Ifc~~JtI~allij, ~~~THE LOS ANGELES COUNTY SHERIFFS

18 DEPARTMENT, DOES I to 50, inclusive,

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Case 2:10-cv-08377-JAK -JEM Document 56 Filed 04/18/11 of 28 Page ID #:502

1 TO PLAINTIFF IN PRO PER:

2 NOTICE IS HEREBY GIVEN that on May 16,2011, at 9:00 a.m., in

3 Courtroom 850 before the Honorable Gary R. Klausner of the United States District

4 Court, located at the Edward R. Roybal Federal Building, 255 E. Temple Street, Los

5 Angeles, California 90012, Defendants Los Angeles Police Depatiment and Charlie

6 Beck will move this Court pursuant to Fed. R. Civ. P. 56(b) for summary judgment

7 on all claims in this matter and oppose Plaintiffs Motion for Summary Judgment.

8 The grounds and the reasons are set fOlih in this Memorandum of Points and

9 Authorities. The Memorandum also serves as Defendants' Opposition to Plaintiffs

10 Motion for Summary Judgment. A Separate Statement of Undisputed Facts has been

11 provided, as has Defendants' Opposition to Plaintiffs Separate Statement of

12 Undisputed Facts. The Court should grant summary judgment to Defendants because

13 the policies and practices ofDefendants in implementing California Penal Code

14 section 12050 do not violate Plaintiffs constitutional rights and are otherwise lawful.

15 Local Rule 7-3 has been complied with through conference of counsel which

16 occurred on February 9, 10 and in person on February 14,2011.

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DATED: April 18, 2011 CARMEN A. TRUTANICH, City AttorneyGARY G. GEUSS, Chief Assistant City AttorneyCORY M. BRENTE Supr. Asst. City AttorneyELIZABETH MITCHELL, Deputy City Attorney

By JWENDY S AP RO, eputy City Attorney

Attorney for Defendants CHARLIE BECK ANDTHE LOS ANGELES POLICE DEPARTMENT

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PageTABLE OF CONTENTS1

2

3 TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. iv

4 MEMORANDUM OF POINTS AND AUTHORITIES , 1

5 1. Introduction , 1

6 2. Factual Background 1

7 A. California Law , 1

8 B. Los Angeles Police Depmiment Licensing Program 2

9 C. The Application Process 3

10 D. Birdt's Application for a CCW Permit 4

11 3. The Second Amendment Does Not Encompass a Right to Carry aLoaded Concealed Weapon in Public , 6

124. The LAPD's Licensing Practices Meet an Intermediate Scrutiny

13 Standard 12

14 5. The Good Cause Requirement ofPenal Code section 12050As Applied to PlaintIff Was Constitutional 16

156. PlaintiffFails to Establish a Violation of His Equal

16 Protection Rights 16

17 7. Denying Plaintiff a CCW Permit Did Not Violate His Right toInterstate Travel 19

188. PlaintiffHas No Due Process Right in a Concealed Carry Permit ... 20

199. Conclusion 21

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iii


1

2

3

TABLE OF AUTHORITIES

CASES

Page

4 Attorney General ofN.Y. v. Soto-Lopez476 U.S. 898 (1986) 19

5Baldwin v. Montana Fish & Game Comm'n

6 436 U.S. 371 (1978) 19

8

9

7 Board 0{~8fJ.'g~56f({~72) , 20

City ofCleburne v. Cleburne Living Center, Inc.473 U.S. 432 (1985) 16

10 Clark v. Jeter486 U.S. 456 (1988) 12

11Craig v. Boren

12 429 U.S. 190 (1976) 12

13 District ofColumbia v. Heller5'54 U.S. 570, 128 S. Ct. 2783; 171 L.Ed.2d 637 (2008) .... 6,7,9-11, 15-17

14

17

21

15

20

Dorr v. Weber2010 U.S. Dist. LEXIS 48950 (N. D. Iowa, 2010) 9

16 Erdelyi v. O'Brien680 F.2d 61 (9th Cir. 1982) 2,20

Gifford v. City ofLos Angeles18 88 Cal. App. 4th 801 (2001) 2, 18

19 Guillorx v. County ofOrange.731 F.2d 1379 (9thCIr. 1984) 17

Heller v. D.c.698 F. Supp. 2d 179 (D.C. Cir. 2010) 12

22 Human Res. Research & Mgmt. Group v. County ofSuffolk687 F. Supp. 2d 237 (E.D.N.Y. 2010) 16

23

24

26

Kansas v. United States16 F.3d 436 (D.C Cir. 1994) 19

25 Kelley v. Johnson425 U.S. 238 (1976) 13

Kuzinich v. County ofSanta Clara27 689 F.2d 1345 (9th Cir. 1983) 17

28

IV


1

2

TABLE OF AUTHORITIES - Cont'd

CASESPage

4

3 Lockmy v. Kayfetz917 F.1d 1150 (9th Cir. 1990) 17

March v. Rupf5 2001lJ.S. Dist. LEXIS 14708 (N.D.Cal. 2001) 17

6 Marshall v. Walker958 F.Supp. 359 (N.D. Ill. 1997) 14

7MississiPIZi Univ. for Women v. Hogan

8 458 U.S. 718 (1982) 12

9 New Orleans v. Dukes427 U.S. 297 (1976) . . . . . . . . . . . . . . . .. 17

10Nichols v. County ofSanta Clara

11 223 Cal. App. 3d 1236 (1990) 2

12 Nordyke v. King563 F.Td 439 (9th Cir. 2009) 11, 15

13

19

16

25

17

Pencak v. Concealed Weapon Licensing Ed.14 872 F. Supp. 410 lE.D. Mich. 1994) 19

15 People v. Flores169 Cal. App. 4th 568 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6-8

People v. Hale43 Cal.App.3d 353 (1974) 7, 10

18 People v. Hodges70 Car.AppAth 1348 (1999) 7, 10

People v. Marin795 N.E.2d 953 (Ill. App. 2003) 14

21 People v. Price873 N.E.2d 453 (Ill. App. 2007) 15

People v. Smythe23 817 N.E.2d 1100 (2004) 15

24 People v. Villa178 Cal. App. 4th 443 (2009) , 8

People v. West26 422 N.E.2d 943 (Ill.App. 1981) 15

27 People v. Yarbrough169 Cal. App. 4th 303 (2008) 6, 11, 13

20

22

28

v


PageTABLE OF AUTHORITIES - COllt'd

2

1

CASESPeruta v. Coun~ ofSan Dief{o

3 2010 U.S. bist. LEXIS 130878 (S.D. Cal. 2010) 12

4 Robertson v. Baldwin165 U.S. 275 (1897) 11

5Salute v. Pitchess

6 61 Cal. App. 3d 557 (1976) 2

7 Schall v. Martin467 U.S. 253 (1984) 13

8Supreme Court ofVilxinia v. Friedman

9 487 U.S. 59 (1988) 19

10 Thornton v. City ofHelens425F.3df158(9thCir.2005) 17

11us. v. Marzzarella

12 595 F. Supp. 2d 596 (W.D. Pa. 2009) 12

13 Us. v. Miller604 F. Supp. 2d 1162 (W.D. Tenn 2009) 12

14us. v. Radencich

15 2009 WL 12648 (N.D. Ind. Jan 20, 2009) 12

18

17

16 Us. v. Schultz2009 U.S. Dist. LEXIS 234 (N.D. Ind. Jan 5 2009) 12

Us. v. Toole)J2010 WL 2842915 (S.D.W.Va. May 4, 2010) 12

23

24

20

19 Us. v. Walker .2010 WL 1640340 (E.D. Va 2010) 12

United States v. Af{uilar21 883 F.2d 662 (9th Cir. 1989) 17

22 United States v. Gonzalez-Torres273 F.3d 1181 (9th Cir. 2001) 17

United States v. Hall2008 U.S.Dist. Lexis 59641 (S.D.W.Va. 2008) 11

25 United States v. Masciandaro684 F.Supp. 2d 779 (E.D. Va. 2009) 11

26United States v. Salerno

27 481 U.S. 739 (1987) 13

28

vi


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2

TABLE OF AUTHORITIES - COl/t'd

CALIFORNIA STATUTES

Page

3 Penal Code

4 section 12025 6

5 section 12025(a) 2

6 section 12050(B)(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

7 sections 12050-12054 1,2

8 section 12025 1

9 section 12031 1

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VII


1 MEMORANDUM OF POINTS AND AUTHORITIES

2 1. Introduction

3 Plaintiff challenges the Los Angeles Police Chief Charlie Beck's

4 implementation of the California statutes governing the licensing ofpersons to carry

5 loaded, concealed weapons in public. (Penal Code §§ 12050-12054.) California law

6 makes it a misdemeanor to carry a loaded, concealed weapon in public places (Penal

7 Code §§ 12025 and 12031), although numerous exceptions are contained in the

8 relevant Penal Code provisions. Plaintiff alleges that he was denied a concealed

9 carry permit because he failed to establish "good cause" as defined by Defendants.

10 The Complaint challenges California Penal Code section 12050 as applied to Plaintiff

11 on grounds pursuant to the Second Amendment and the Equal Protection Clause of

12 the Fourteenth Amendment. The allegations are focused on the "good cause"

13 requirements of Penal Code section 12050.

14 2. Factual Background

15 A. California Law.

16 Penal Code section 12050(B)(I) provides in relevant part:

17 "(B) The chief or other head of a municipal police depmiment of any city or city and

18 county, upon proof that the person applying is of good moral character, that good

19 cause exists for the issuance, and that the person applying is a resident of that city

20 and has completed a course of training as described in subparagraph (E), may issue to

21 that person a license to carry a pistol, revolver, or other firearm capable of being

22 concealed upon the person in either one of the following formats:

23 (I) A license to carry concealed a pistol, revolver, or other firearm capable of

24 being concealed upon the person."

25 The licensing statute authorizes a procedure for a limited number of persons

26 who meet the statutory criteria to be excepted from California's prohibition on the

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1 concealed cany of firearms.! "Section 12050 gives 'extremely broad discretion' to

2 the [chief of police] concerning the issuance of concealed weapons licenses."

3 Gifford v. City ofLos Angeles, 88 Cal. App. 4th 801, 805 (2001)(quoting Nichols v.

4 County ofSanta Clara, 223 Cal. App. 3d 1236, 1241 (1990». It also "explicitly

5 grants discretion to the issuing officer to issue or not issue a license to applicants

6 meeting the minimum statutOly requirements." Erdelyi v. O'Brien, 680 F.2d 61,63

7 (9th Cir. 1982). This discretion must be exercised in each individual case. "It is the

8 duty of the [chief of police] to make such an investigation and determination, on an

9 individual basis, on every application under section 12050." Salute v. Pitchess, 61

10 Cal. App. 3d 557, 560-61 (1976).

11 B. Los Angeles Police Department Licensing Program

12 Under the statutory framework, the Los Angeles Police Department administers the

13 licensing program for all of the City of Los Angeles. The Gun Unit is responsible for

14 administering all the concealed weapons permit applications that come into the Los

15 Angeles Police Department. (See Defendants' Separate Statement ofUndisputed

16 Material Facts # 1, (hereinafter "MF #"».

17 In 1994, the case ofAssenza v. City ofLA, et aI, BCI15813, changed and

18 shaped the policies ofLAPD regarding CCW permit issuances. In the Assenza case,

19 pursuant to a stipulation for Entry of Judgment, the "good cause" policy was changed

20 to reflect the following "good cause" definition in relevant part:

21 "Good cause exists if there is convincing evidence of a clear and

22 present danger to life or of great bodily injury to the applicant, his (or

23 her) spouse, or dependent child, which cannot be adequately dealt

241 Penal Code section 12025(a) states "A person is guilty of canying a concealed

25 firemm when he or she does any ofthe following: (1) Carries concealed within anyvehicle which is under his or her control or direction any pistol, revolver, or other

26 firearm capable of being concealed upon the person. (2) Carries concealed upon his orher person any pistol, revolver, or otlier firearm capable of being concealed up'on the

27 person. (3) Causes to be can-ied concealed within any vehicle in which he or she is anoccupant any pistol, revolver, or other firearm capable of being concealed upon the

28 person."

2


1 with by existing law enforcement resources, and which danger cannot

2 be reasonably avoided by alternative measures, and which danger

3 would be significantly mitigated by the applicant's carrying of a

4 concealed firearm.'"

5 Good cause is deemed to exist, and a license will issue in the absence

6 of strong countervailing factors, upon a showing of any of the

7 following circumstances:

8 (a) The applicant is able to establish that there is an immediate or

9 continuing threat, express or implied, to the applicant's, or the

10 applicant's family, safety and that no other reasonable means exist

11 which would suffice to neutralize that threat.

12 (MF # 2). Simply fearing for one's own personal safety is not good cause. (MF # 3).

13 In 1995, after the Assenza case, LAPD immediately adopted and began

14 implementing the aforementioned policy. In 1999, the State of California

15 standardized the application process and required additional mandates. As a result,

16 the Department updated its policies and procedures which created additional scrutiny

17 and more responsibility in processing CCW applications. (MF # 4).

18 C. The Application Process.

19 In order to obtain a CCW permit from the Los Angeles Police Department,

20 the inquiring person can contact the LAPD Gun unit and speak with one ofthe sworn

21 officers assigned to the Gun Unit, designated as the CCW·coordinator. On the phone

22 the CCW coordinator will explain to the applicant the training requirements and what

23 documents to bring to the initial interview with the CCW coordinator. Specifically,

24 the coordinator will ask for the following materials: The standard DOJ CCW

25 application completed; a letter from his or her attorney if applicable; a declaration or

26 statement of good cause; crime repOlis and any additional supportive documentation;

27 reference letters if submitted; firearm training certificate; copy of driver's license, a

28 utility bill, guard cards, exposed gun cards, or any other applicable celiificates. (MF

3


1 # 5). The coordinator also explains to the applicant the CCW protocol, which

2 includes the application process, what will happen if their application is approved or

3 denied, and the review process if the applicant wishes to have their denial reviewed.

4 The interested individual then schedules an appointment to come in and interview

5 with the coordinator which is wholly dependent upon the applicant's availability.

6 (MF # 6). From the day the applicant signs the application in the presence of the

7 coordinator at the interview, the Gun Unit has 90 days in which to review the

8 application. (MF # 7). A detailed description of the nine-step application/review

9 process is provided in the declaration ofRick Tompkins, the supervisor of the CCW

10 permit process. (MF # 8).

11 There are currently 24 active CCW permits issued through and maintained by

12 the Los Angeles Police Department. The Gun Unit receives and processes

13 approximately 300 applications per year. (MF # 9). The Gun Unit evaluates each

14 application on the merits and treats every applicant equally regardless of ethnicity,

15 gender, religion, or social status. There is no special treatment for high-profile

16 people. The Gun Unit has had so-called "celebrities" apply for CCW permits and

17 have denied their applications for failure to demonstrate good cause. No celebrities

18 have active CCW permits with the LAPD. (MF # 10).

19 D. Birdt's Application for a CCW Permit

20 Plaintiff alleges that he was denied a license to carry a concealed weapon by

21 the Los Angeles Police Department because he failed to identify an imminent or

22 specific threat satisfying the Department's good cause requirement. (MF # 11). In his

23 declaration submitted in support of Plaintiffs Motion for Summary Judgment, he

24 states he volunteers as a judicial officer for the Los Angeles Superior Court and as an

25 advocate for the Juvenile Court. (MF # 12). He does not state that he provided any

26 documentation supporting his "good cause" statement.

27 Jonathan Birdt's CCW pelmit application was reviewed, analyzed, and

28 processed in the exact same manner in which every application is processed. (MF #

4


1 13). After reviewing Mr. Birdt's declaration, and supporting documentation (which

2 consisted of copies ofhis California and Nevada state bar cards, California driver's

3 license, his Nevada and Utah CCW permits, National Rifle Association ("NRA")

4 membership card, and copies of certificates of completion of a firearms safety course)

5 Jonathan Birdt's CCW permit application was denied solely because he demonstrated

6 no "good cause" for the issuance of a permit beyond mere self-defense. (MF # 14).

7 Specifically, convincing evidence was not established of a clear and present danger

8 to his life or of great bodily injury to himself or his family, which could not be

9 adequately dealt with by existing law enforcement resources, and which danger could

10 not be reasonably avoided by alternative measures. He did not provide proof that his

11 work is of such a nature that it requires carrying a concealed weapon. (MF # 15).

12 Mr. Birdt was sent a letter indicating that his CCW permit application was

13 denied for lack of good cause. He was also notified that ifhe wished to challenge

14 this decision, he needed to request in writing a hearing by the citizen advisory board.

15 (MF # 16). He simply sent the original letter back with the handwritten words "Yes,

16 I contest your decision." He was then contacted by the CCW coordinator Kosal Bun

17 by telephone and told that he needed to write a formal letter requesting a hearing and

18 the current letter would not suffice. (MF # 17).

19 In October, 2010 Mr. Birdt finally sent in a formal letter indicating that ifhe

20 was not issued a CCW permit, he would be filing a lawsuit. (MF # 18). Even though

21 this was not technically a letter requesting a hearing by the citizen advisory board, it

22 was treated as such, and his name and information was forwarded to the citizen

23 advisory board. On March 24, 2011, LAPD received notice from the CCW Citizens

24 Advisory Board indicating that they had reviewed Plaintiff Jonathan Birdt's

25 application, and they recommended against the issuance of a CCW permit to Mr.

26 Birdt because he failed to establish good cause for licensure. (MF # 19).

27 Plaintiff indirectly alleges his right to interstate travel is infringed without

28 having a CCW permit. (Complaint, ~ 26). When driving from Nevada to Califomia,

5


1 Plaintiff must remove his weapon and lock it in a container in the trunk of his car.

2 By doing this, Plaintiff claims he is in violation ofNevada law or restrictions on his

3 CCW permit. Plaintiff believes that the act of removing his gun and putting it in a

4 locked container amounts to brandishing a weapon, despite how discreetly this act is

5 done. (MF # 21)

6 3. The Second Amendment Does Not Encompass a Right to Carry a Loaded

7 Concealed Weapon in Public

8 Plaintiffs primaty challenge is based on a claim that the City's policies and

9 procedures violate the Second Amendment. In District ofColumbia v. Heller, 554

10 U.S. 570, 128 S. Ct. 2783,2788; 171 L.Ed.2d 637 (2008), the United States Supreme

11 COUlt held that the Second Amendment protects an individual's right to possess

12 firearms in the home for self-defense and that the city's total ban on handguns, as

13 well as its requirement that firearms in the home be kept nonfunctional even when

14 necessary for self-defense, violated that right. However, the Heller decision does not

15 affect the constitutionality of Penal Code sections 12025(a) or 12050. Plaintiff

16 challenges the concealed carry permit statute without challenging the Penal Code

17 sections regulating the carrying of concealed and loaded firearms. Penal Code

18 sections 12025(a) and 12031(a) have been upheld in California against a Second

19 Amendment challenge after Heller. People v. Flores, 169 Cal. App. 4th 568,

20 575-576 (2008); People v. Yarbrough, 169 Cal. App. 4th 303, 312-314 (2008). In

21 Yarbrough, the defendant was convicted ofviolating Penal Code section 12025(a)(2),

22 for carrying a concealed weapon on residential property that was fully accessible to

23 the public. Noting Heller had "specifically expressed constitutional approval of the

24 accepted statutOly proscriptions against carrying concealed weapons," Yarbrough

25 held:

26 "we find nothing in Penal Code section 12025, subdivision (a), that

27 violates the limited right of the individual established in Heller to

28 possess and carry weapons in case of confrontation. Section 12025,

6


1 subdivision (a), does not broadly prohibit or even regulate the

2 possession of a gun in the home for lawful purposes of confrontation

3 or self-defense, as did the law declared constitutionally infirmed in

4 Heller. Rather, section 12025, subdivision (a), in much more limited

5 fashion, specifically defines as unlawful canying concealed within a

6 vehicle or 'concealed upon his or her person any pistol, revolver, or

7 other firemm capable of being concealed upon the person.' Id. at

8 314. Further, carrying a firearm concealed on the person or in a

9 vehicle in violation of section 12025, subdivision (a), is not in the

10 nature ofa common use ofa gun for lawful purposes which the comt

11 declared to be protected by the Second Amendment in Heller."

12 Id. at 313-14.

13 Unlike possession of a gun for protection within a residence, carrying a

14 concealed firearm presents a recognized "threat to public order," and is '''prohibited

15 as a means ofpreventing physical harm to persons other than the offender.'

16 [Citation.]" People v. Hale, 43 Cal.App.3d 353, 356 (1974). A person who carries a

17 concealed firearm on his person or in a vehicle, "which permits him immediate access

18 to the firearm but impedes others fi'om detecting its presence, poses an 'imminent

19 threat to public safety ... .' [Citation.]" Id. at 314 citing (People v. Hodges, 70

20 Cal.AppAth 1348, 1357 (1999». People v. Flores affirmed convictions under

21 sections 12025 and 12031 in the face of a Heller challenge. With regard to the

22 section 12031 conviction, the Court in Flores reasoned: Section 12031 prohibits a

23 person from "carr[ying] a loaded firearm on his or her person ... while in any public

24 place or on any public street." [Citation.]. The statute contains numerous exceptions.

25 There are exceptions for security guards (id., subd. (d», police officers and retired

26 police officers (id., subd. (b)(l) & (2», private investigators (id., subd. (d)(3»,

27 members ofthe militmy (id., subd. (b)(4», hunters (id., subd. (1», target shooters (id.,

28 subd. (b)(5», persons engaged in 'lawful business' who possess a loaded firearm on

7


1 business premises and persons who possess a loaded firearm on their own private

2 property (id., subd. (h)).

3 A person otherwise authorized to carry a firearm is also permitted to cany a

4 loaded firearm in a public place if the person 'reasonably believes that the person or

5 propeliy ofhimself or herself or of another is in immediate, grave danger and that the

6 canying ofthe weapon is necessary for the preservation of that person or propeliy.'

7 Id., subd. 0)(1). Another exception is made for a person who 'reasonably believes

8 that he or she is in grave danger because of circumstances forming the basis of a

9 current restraining order issued by a comi against another person or persons who has

10 or have been found to pose a threat to his or her life or safety.' Id., subd. 0)(2).

11 Finally, the statute makes clear that '[n]othing in this section shall prevent any person

12 from having a loaded weapon, if it is otherwise lawful, at his or her place of

13 residence, including any temporary residence or campsite.' Id., subd. (1). Flores,

14 supra, 169 Cal. App. 4th at p 576. "This wealth of exceptions creates a stark contrast

15 between section 12031 and the District of Columbia statutes at issue in Heller. In

16 particular, given the exceptions for self-defense (both inside and outside the home),

17 there can be no claim that section 12031 in any way precludes the use 'of handguns

18 held and used for self-defense in the home.' [Citation.] Instead, section 12031 is

19 narrowly tailored to reduce the incidence ofunlawful public shootings, while at the

20 same time respecting the need for persons to have access to firearms for lawful

21 purposes, including self-defense. [Citation.] Consequently, section 12031 does not

22 burden the core Second Amendment right announced in Heller - the right of

23 law-abiding, responsible citizens to use arms in defense ofhearth and home - to any

24 significant degree." Flores, supra, 169 Cal.App. 4th at pp. 576-77, fn. omitted;

25 accord People V. Villa, 178 Cal. App. 4th 443, 450 (2009).

26 Rather than challenge sections 12025 and 12031, Plaintiff instead challenges

27 the concealed weapons "licensing" statute by claiming that the Chief of Police must

28 accept as "good cause" for the purpose of Penal Code section 12050 the

8


1 constitutional "right to keep and bear arms" under the Second Amendment. In

2 essence, Plaintiff is asking this Court to strike the "good cause" language from the

3 statute on the theory that Heller provides everyone has a constitutional right to carry

4 a concealed weapon in public. There is no such constitutional right. Heller does not

5 support Plaintiffs position nor has any court so held since Heller. See e.g., Dorr v.

6 Weber, 2010 U.S. Dist. LEXIS 48950 (N. D. Iowa, 2010).

7 In Heller, the Supreme COUli considered "whether a District of Columbia

8 prohibition on the possession of usable handguns in the home violates the Second

9 Amendment to the Constitution." Heller, supra, 554 U.S. at 573. A majority of the

10 cOUli held "that the District's ban on handgun possession in the home violates the

11 Second Amendment, as does its prohibition against rendering any lawful firearm in

12 the home operable for the purpose of immediate self-defense." Id. at 683. The court

13 emphasized that "the right secured by the Second Amendment is not unlimited. From

14 Blackstone through the 19th-century cases, commentators and courts routinely

15 explained that the right [to keep and bear arms] was not a right to keep and carry any

16 weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at

17 626-27. Thus, the Court has specifically stated that the "core right" embodied in the

18 Second Amendment does not include the right to keep and carry arms in any manner.

19 Although the Court declined to adopt a level of scrutiny to be imposed upon laws

20 regulating the "core" Second Amendment right it identified or specified the

21 limitations the government may place on an individual's right to possess firearms in

22 public, a nonexclusive list of the many "presumptively lawful regulatory measures"

23 was enumerated. Id. at 678, n. 26 ("We identify these presumptively lawful

24 regulatory measures only as example; our list does not purport to be exhaustive. ")

25 The court declared:

26 "[T]he majority of the 19th-century courts to consider the question

27 held that prohibitions on carrying concealed weapons were lawful

28 under the Second Amendment or state analogues. [Citations.]

9


1 Although we do not undertake an exhaustive historical analysis today

2 of the full scope ofthe Second Amendment, nothing in our opinion

3 should be taken to cast doubt on longstanding prohibitions on the

4 possession of firearms by felons and the mentally ill, or laws

5 forbidding the carrying of firearms in sensitive places such as schools

6 and government buildings, or laws imposing conditions and

7 qualifications on the conunercial sale of arms. [~] We also recognize

8 another important limitation on the right to keep and carry arms.

9 Miller said, as we have explained, that the sorts of weapons protected

10 were those 'in conunon use at the time.' [citation] We think that

11 limitation is fairly supported by the historical tradition of prohibiting

12 the carrying of 'dangerous and unusual weapons.' [Citations.]" Id.

13 (fn. omitted).

14 Penal Code section 12050 does not regulate the possession of a gun in the

15 home for lawful purposes of confrontation or self-defense, as did the law declared

16 unconstitutional in Heller. Rather, it involves the licensing of persons in the context

17 of the regulation of the carrying of concealed weapons in public places. Further,

18 carrying a firearm concealed on the person or in a vehicle is not in the nature of a

19 common use of a gun for lawful purposes which the court declared to be protected by

20 the Second Amendment in Heller. Unlike possession of a gun for protection within a

21 residence, carrying a concealed firearm presents a recognized "threat to public order,"

22 and is "'prohibited as a means ofpreventing physical harm to persons other than the

23 offender.' [Citation.]" Hale, supra, 43 Cal. App. 3d at 356. A person who carries a

24 concealed firearm on his person or in a vehicle, "which permits him inunediate access

25 to the firearm but impedes others from detecting its presence, poses an 'imminent

26 threat to public safety ... .' [Citation.]" Hodges, supra, 70 Cal. App. 4th at 1357.

27 (MF #21).

28 Rather than cast any doubt upon the continued constitutional validity of

10


1 concealed weapons bans, the Heller opinion expressed apparent constitutional

2 approval ofthe historically accepted statutory proscriptions against carrying

3 concealed weapons. Heller, supra, 554 U.S. at 678.. Thus, in the aftermath of

4 Heller, the prohibition "on the carrying of a concealed weapon without a permit,

5 continues to be a lawful exercise by the state of its regulatory authority

6 notwithstanding the Second Amendment." United States v. Hall, 2008 U.S.Dist.

7 Lexis 59641, *3 (S.D.W.Va. 2008); Yarbrough, supra, 169 Cal. App. 4th at 309. The

8 Court's recognition in Heller that prohibitions on carrying concealed weapons were

9 lawful was in full accord with long-standing Supreme Court precedent. Over a

10 century ago, in Robertson v. Baldwin, the Supreme Court recognized that "the right

11 of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the

12 carrying of concealed weapons. " Robertson v. Baldwin, 165 U.S. 275, 281-82

13 (1897). (MF#22). The Ninth Circuit in the now-vacated Nordyke panel opinion,

14 rejected a challenge to a county ordinance prohibiting possession of firearms on

15 county propeliy, finding that the law "does not meaningfully impede the ability of

16 individuals to defend themselves in their homes with usable firearms, the core of the

17 right as Heller analyzed it." Nordyke v. King, 563 F.3d 439, 460 (9th Cir. 2009), Cf.

18 United States v. Masciandaro, 684 F.Supp. 2d 779, (E.D. Va. 2009) ("[H]eller's

19 narrow holding is explicitly limited to vindic<lting the Second Amendment 'right of

20 law-abiding, responsible citizens to use arms in defense ofhearth and home."'). Here,

21 California law does not impede the ability of individuals to defend themselves with

22 firealIDs in their homes. Accordingly, a right to carry a concealed weapon in public

23 under the Second Amendment has not been recognized. California's regulation of

24 both concealed carry of firearms and carry of loaded firearms in public does not

25 infringe on the Second Amendment "core right" that has been held to be fundamental

26 by the Supreme Court. The Los Angeles Police Depatiment's policies and practices

27 in limiting concealed cany licensing to individuals with specifically identifiable and

28 documented needs for concealed CatTy have no impact on the Second Amendment's

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1 core right of self-defense.

2 4. The LAPD's Licensing Practices Meet an Intermediate Scrutiny

3 Standard

4 Even if this Court finds that the core right to keep and bear arms under the

5 Second Amendment is infringed, the LAPD's implementation ofthe licensing statute

6 withstands an intermediate level of constitutional scrutiny. To survive intermediate

7 scrutiny, the challenged provision must be substantially related to the achievement of

8 important govemment interests. Craig v. Boren, 429 U.S. 190, 197 (1976);

9 Mississippi Univ.for Women v. Hogan, 458 U.S. 718,724 (1982); See also Clarkv.

10 Jeter, 486 U.S. 456, 461 (1988) ("To withstand intermediate scrutiny, a statutory

11 classification must be substantially related to an impOliant government objective.").

12 Some courts have applied intermediate scrutiny in cases after Heller. In Heller v.

13 D. C, 698 F. Supp. 2d 179 (D.C. Cir. 2010) (Heller II), it was applied because the

14 firearms registration required the registration of guns for possession in the home

15 which clearly touched upon the core right identified by Heller. In u.s. v. Miller, 604

16 F. Supp. 2d 1162 (WD. Tenn 2009), the defendant challenged a penal statute relating

17 to possession of a firearm in the home by a felon. See also u.s. v. Schultz, 2009 U.S.

18 Dist. LEXIS 234 (N.D. Ind. Jan 5 2009); u.s. v. Radencich, 2009 WL 12648 (N.D.

19 Ind. Jan 20, 2009). In u.s. v. Marzzarella, 595 F. Supp. 2d 596 (W.D. Pa. 2009) the

20 defendant challenged an indictment for possessing a firearm with an obliterated serial

21 number in his home. In U.S. v. Walker, 2010 WL 1640340 (E.D. Va 2010) and U.s.

22 v. Tooley, 2010 WL 2842915 (SD.W.Va. May 4,2010), defendants challenged

23 charges for possessing a firearm in the home after having been previously convicted

24 of domestic violence. In Peruta v. County ofSan Diego, 2010 U.S. Dist. LEXIS

25 130878 (S.D. Cal. 2010), the COUli upheld the county's CCW petmitting scheme

26 which required an immediate threat of harm for the issuance of a permit. In all

27 cases, the regulations were upheld. Thus, the cases which have adopted intermediate

28 scrutiny have been those where the "core right" ofpossession in the home is in some

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I way infringed.

2 That is not the case here where there is no effect on possession in the home.

3 In any event, maintaining public safety and preventing crime are clearly impOliant (if

4 not paramount) government interests and the regulation of concealed firearms is a

5 critical factor in accomplishing that interest. (MF # 23) See, e.g., United States v.

6 Salerno, 481 U.S. 739, 750 (1987); Schall v. Martin, 467 U.S. 253, 264 (1984);

7 Kelley v. Johnson, 425 U.S. 238, 247 (1976) ("The promotion of safety of persons

8 and propeliy is unquestionably at the core of the State's police power ....");

9 Yarbrough, supra, 169 Cal. App. 4th at 312-314. Guns are used in more than 75% of

10 all killings and in even larger portions of robberies. (MF # 24) A concealed handgun

II is the dominant weapon of choice for gun criminals and a special danger to

12 govermnent efforts to keep public spaces safe and secure. (MF # 25) By requiring

13 evidence, the government is able to limit the number of concealed weapons in public

14 to only actual anticipated needs. It also acts as a backup to those who seek a CCW

15 license for criminal purposes but do not yet have a criminal record. (MF # 26) For

16 example, approximately 39% of2010 LAPD homicide arrestees that were audited

17 had no disqualifying convictions, meaning those murderers would all have been

18 eligible for a CCW permit if the discretionary "good cause" language of Penal Code

19 Section 12050 were removed, as Plaintiff appears to be advocating for. (MF#27)

20 The governmental interest furthered by Penal Code sections 12025, 12031

21 and 12050 as administered by Defendant -- the safety of the public and police officers

22 from unknown persons carrying concealed, loaded firearms -- is both important and

23 compelling. (MF # 28) Concealed handguns are the priority of law enforcement

24 everywhere because of the use of the concealed handgun in vast numbers of criminal

25 offenses. (MF # 29) Concealed carry of handguns allows for stealth and surprise.

26 Limiting the number of loaded and concealed firearms in public places helps to keep

27 the balance in favor of law enforcement and avoids the necessity for every place that

28 is open to the public - restaurants, malls, theaters, parks, etc.-- to be equipped with

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1 metal detectors, fencing and other forms of security, in order to protect patrons from

2 the fear of widespread and unchecked concealed firearms.

3 Numerous courts have discussed the need for firearm regulation and the need

4 for imposing restrictions on their use:

5 "[A]ccidents with loaded guns on public streets or the escalation of

6 minor public altercations into gun battles or, as the legislature

7 pointed out, the danger of a police officer stopping a car with a

8 loaded weapon on the passenger seat. [T]hus, otherwise 'innocent'

9 motivations may transform into culpable conduct because of the

10 accessibility of weapons as an outlet for subsequently kindled

11 aggression. [T]he underlying activity ofpossessing or transporting an

12 accessible and loaded weapon is itself dangerous and undesirable,

13 regardless of the intent of the bearer since it may lead to the

14 endangerment ofpublic safety. [A]ccess to a loaded weapon on a

15 public street creates a volatile situation vulnerable to spontaneous

16 lethal aggression in the event of road rage or any other disagreement

17 or dispute. The prevention of the potential metamorphosis of such

18 'innocent' behavior into criminal conduct is rationally related to the

19 purpose ofthe statute, which is to enhance public safety. Because,the

20 legislature has a compelling interest in preventing the possession of

21 guns in public under any such circumstances, the statute is reasonably

22 related to the legislature's purpose of 'mak[ing] communities in this

23 state safer and more secure for their inhabitants. '"

24 People v. Marin, 795 N.E.2d 953, 958-59 (Ill. App. 2003)(citations omitted); See

25 also Marshall v. Walker, 958 F.Supp. 359, 365 (N.D. Ill. 1997) (individuals should

26 be able to walk in public "without apprehension of or danger from violence which

27 develops from unauthorized carrying of fireanns and the policy ofthe statute to

28 conserve and maintain public peace on sidewalks and streets within the cities ... ")

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1 (quoting People v. West, 422 N.E.2d 943, 945 (Ill.App. 1981)). The concept of

2 protection of the public peace is a fundamental competing right that appears

3 consistently in all similar firearm regulation. "The possession and use of weapons

4 inherently dangerous to human life constitutes a sufficient hazard to society to call

5 for prohibition unless there appears appropriate justification created by special

6 circumstances." People v. Price, 873 N.E.2d 453, 460 (Ill. App. 2007) (quoting 720

7 ILL. COMPo STAT. ANN. 5/24, Committee Comments-1961, at 7 (2003); People v.

8 Smythe, 817 N.E.2d 1100, 1103-04 (2004) ("this statute was designed to prevent the

9 situation where one has a loaded weapon that is immediately accessible, and thus can

10 use it at a moment's notice and place other unsuspecting citizens in harm's way."). In

11 Nordyke, supra, 563 F.3d 439(now vacated for reconsideration), a Ninth Circuit

12 panel rejected a Second Amendment Heller challenge to a county ordinance broader

13 than the regulation at issue in this case. Nordyke upheld an ordinance banning all

14 possession of weapons or ammunition on county property because county property

15 includes many "gathering places where high numbers ofpeople might congregate"

16 and, like government building and schools, "possessing firearms in such places risks

17 harm to great numbers of defenseless people (e.g., children)." Id. at 459-60.

18 Significantly, the subject statutes are far more narrowly framed than the

19 ordinance at issue in Nordyke, prohibiting only the carrying of concealed loaded

20 firearms in public places outside the home with numerous exceptions allowing for the

21 keeping and bearing of arms under specific circumstances that fall within the right as

22 defined by Heller. The LAPD's practices in limiting CCW licenses to those with

23 specific and documented needs is consistent with the compelling and significant

24 legislative goals underlying sections 12025 and 12031, Le. the protection of the

25 general public from widespread and unchecked public carry of concealed and loaded

26 firearms. In addition, the Penal Code provisions are substantially related to

27 furthering public safety. The reach of the statutes, which encompass only public

28 carry, along with the numerous enumerated exceptions which allow for keeping and

15


1 bearing arms for self-defense in a host of circumstances, do not interfere with any

2 conception of Second Amendment rights as announced in Heller, "to use anns in

3 defense of hearth and home." Heller, supra, 554 U.S. at 679.

4 5. The Good Cause Requirement of Penal Code section 12050 As Applied to

5 Plaintiff Was Constitutional

6 Not only is LAPD's CCW permitting scheme constitutional in light of the

7 foregoing arguments, it was applied in an even-handed manner to Plaintiff.

8 Plaintiffs application was thoroughly reviewed following the multiple steps that

9 applications must go through. (MF # 30) Plaintiff has no evidence that his

10 application was not reviewed. He merely speculates it was not reviewed because of a

11 comment made by an officer who conducted his interview. (MF # 31)

12 Plaintiffs application was denied because Plaintiff did not present evidence

13 of an innnediate threat ofharm to himself or his family that could not be addressed

14 through law-enforcement. In other words, Plaintiffs application was based on a

15 generalized fear of harm. Plaintiff did not present evidence he was protected by a

16 restraining order or other court order. Plaintiffs application states he was subjected

17 to threats in the past. However, Plaintiff fails to present evidence that he filed police

18 reports regarding these threats or otherwise sought protection from a court. Without

19 more, Plaintifffaiis to establish LAPD's CCW policies violated the Second

20 Amendment as applied to him.

21 6. Plaintiff Fails to Establish a Violation of His Equal Protection Rights

22 Plaintiff alleges LAPD's application ofthe "good cause" requirements

23 violates his Equal Protection rights. Under the Equal Protection Clause of the

24 Fourteenth Amendment, no state shall "deny to any person within its jurisdiction the

25 equal protection of the laws." The Equal Protection Clause "is essentially a directive

26 that all persons similarly situated should be treated alike." City ofCleburne v.

27 Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985), superseded by statute as

28 stated in Human Res. Research & Mgmt. Group v. County ofSuffolk, 687 F. Supp. 2d

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1 237,256 (E.D.N.Y. 2010). When a government's action does not involve a suspect

2 classification or implicate a fundamental right, even intentional discrimination will

3 survive constitutional scrutiny for an equal protection violation as long as it bears a

4 rational relation to a legitimate state interest. New Orleans v. Dukes, 427 U.S. 297,

5 303-04 (1976); Lockmy v. Kay/etz, 917 F.2d 1150, 1155 (9th Cir. 1990). As argued

6 above, Heller did not hold individuals have a fundamental constitutional right to

7 carry concealed weapons. Without identifying a suspect classification or implicating

8 a fundamental right, LAPD's policies for issuing CCW permits have a rational

9 relationship to the legitimate state interests as articulated above. Moreover, Plaintiff

10 cannot identify evidence of intentional discrimination.

11 Nevertheless, a concealed weapons licensing program that is administered

12 arbitrarily so as to unjustly discriminate between similarly situated people may deny

13 equal protection. March v. RupJ, 2001 U.S. Dist. LEXIS 14708, * 13 (N.D.Cal.

14 2001), (citing Guillmy v. County o/Orange, 731 F.2d 1379, 1383 (9th Cir. 1984)).

15 To identify the proper classification, both groups must be comprised of similarly

16 situated persons so that the factor motivating the alleged discrimination can be

17 identified. Thornton v. City o/Helens, 425 F.3d 1158, 1166 (9th Cir. 2005). "The

18 goal of identifying a similarly situated class ... is to isolate the factor allegedly

19 subject to impermissible discrimination." United States v. Aguilar, 883 F.2d 662,

20 706 (9th Cir. 1989), superseded by statute on other grounds as stated in United States

21 v. Gonzalez-Torres, 273 F.3d 1181, 1187 (9th Cir. 2001).

22 To sustain his burden at summaty judgment, plaintiffmust show actual

23 evidence that would allow a reasonable jUly to conclude first, that others similarly

24 situated generally have not been treated in a like manner; and second, that the denial

25 of concealed weapons licenses to him was based on impermissible grounds. See

26 Kuzinich v. County o/Santa Clara, 689 F.2d 1345, 1349 (9th Cir. 1983). However

27 "without evidence of anything more than vagaries in its administration, their equal

28 protection claim cannot survive summary judgment." March, 2001 U.S. Dist. LEXIS

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1 14708 at *16. The Ninth Circuit has found this to be "especially true in light of the

2 'extremely broad discretion' that the California Penal Code awards sheriffs and police

3 depaliments in issuing concealed weapons license." Id. (citing Gifford v. City ofLos

4 Angeles, 88 Cal. App. 4th 801,805 (2001)).

5 Plaintiff has no evidence to support his claim for violation of the Equal

6 Protection Clause. In response to an interrogatory asking the facts in support of his

7 equal protection claim Plaintiff answered in pali, "Plaintiff is informed and believes

8 that the LAPD issues very few permits, and those it does issue are issued on

9 inconsistent standards. For instance, ChiefBratton was issued a permit, though he

10 presented no specific threat of harm, and was always accompanied by a protective

11 detail. Permits have been issued to celebrities and attorneys without the requisite

12 showing." (MF # 32) Plaintiff has no evidence to support his conclusion that former

13 Chief of Police Bratton did not have good cause to obtain a CCW permit. (MF # 33)

14 Nevertheless, because carrying a concealed gun is not a fundamental right under the

15 Second Amendment, under the authority of Cleburne, Dukes, and Kayfetz listed

16 above, intentional discrimination will survive constitutional scrutiny as long as there

17 is a rational relationship to a legitimate state interest. It is rational to issue a chief of

18 police a CCW permit even without a specific threat of harm because the City of Los

19 Angeles has a legitimate interest in guaranteeing the chief of its police depaliment

20 has as much protection as possible given the nature of his job.

21 Next, all CCW applications go through the same process. No special

22 treatment is given to high profile people. Plaintiff does not have evidence to prove

23 celebrities and attorneys were issued permits without a specific threat ofharm. (MF

24 # 34). When asked which celebrities held CCW permits issued by the LAPD,

25 Plaintiff answered Tom Selleck. (MF # 35) In fact, there are no celebrities with

26 CCW pennits issued by the LAPD.

27 Nor does Plaintiffprovide evidence that he is similarly situated to any other

28 person who obtained a CCW permit. Specifically, Plaintiff does not show how he is

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1 similarly situated with Chief Bratton. How is a Chief of Police of a major

2 metropolitan city the same as an attorney who volunteers as a judge pro tern and in a

3 juvenile court? Further lacking is legal authority that equates a chief ofpolice of a

4 major metropolitan area to an attorney who volunteers as a judge pro tern. In short,

5 the lack of evidence in support of his equal protection claim entitles Defendants to

6 summary judgment.

Denying Plaintiff a CCW Permit Did Not Violate His Right to Interstate

Travel

Plaintiff does not clearly separate out a claim for violation of his right to

interstate travel. However, during discovery, Plaintiff argued his right to

interstate travel was violated because he could not pass from Nevada where

he was issued a CCW permit to California without violating the laws in one

or the other state. A state law implicates the right to travel in three

situations-when it actually deters travel, when impeding travel is its primary

objective, or when it uses a classification that penalizes the exercise of the

right. Attorney General ofN.Y. v. Soto-Lopez, 476 U.S. 898,903 (1986).

"[S]omething more than a negligible or minimal impact on the right to travel

is required ...." Kansas v. United States, 16 F.3d 436, 442 (D.C Cir. 1994).

The right to travel is usually considered to be one of the rights guaranteed by

the Privileges and Immunities Clause of Article IV and the Privileges and

Immunities Clause of the Fourteenth Amendment. Soto-Lopez, supra, 476

U.S. at 902 (citations omitted). But only those activities "sufficiently basic to

the livelihood of the Nation" are encompassed in the right. Supreme Court of

Virginia v. Friedman, 487 U.S. 59, 64 (1988) (quoting Baldwin v. Montana

Fish & Game Comm/n, 436 U.S. 371, 388 (1978».

Plaintiffhas no authority for the proposition that denial of a concealed

27 weapon permit deters migration, penalizes the right to travel, or that a concealed

28 weapons permit is a "vital government benefit[] and privilege[]." Pencak v.

19


1 Concealed Weapon Licensing Bd., 872 F. Supp. 410 (B.D. Mich. 1994) summarized

2 the legal question posed by Plaintiff succinctly:

3 "While Plaintiffmay feel a bit less secure not being able to cany a

4 concealed weapon on his person or in his car when he drives into

5 urban areas, the denial of a license for a concealed weapon is not

6 tantamount to the denial or waiting period for the right to vote,

7 [citation], or to receive welfare or medical benefits, [citations]. A

8 concealed weapons license is not even a government benefit that rises

9 to the level of benefits deemed by the United States Supreme Court as

10 not vital, such as lower university tuition, [citations], or suing for

11 divorce, [citation]. Based on the foregoing, Defendants did not

12 deprive Plaintiffof the right to travel."

13 Id. at 414. Based on the foregoing, Defendants are entitled to summary judgment.

14 8. Plaintiff Has No Due Process Right in a Concealed Carry Permit

15 A threshold requirement for asserting a due process claim is the existence of

. 16 a property or liberty interest. Board ofRegents v. Roth, 408 U.S. 564, 569 (1972).

17 Plaintiffs due process claim is controlled by Erdelyi, supra, 680 F.2d at 63, which

18 held the discretionary language in Penal Code section 12050 does not create a

19 property interest. Further, the Court held that the Plaintiff "did not have a liberty

20 interest in obtaining a concealed weapons license." Id. at 64. Accordingly, Plaintiff

21 does not have a property interest or liberty interest in a concealed weapons permit.

22 As such, the Los Angeles Police Department was not required to provide him with

23 due process before denying his permit application. Id. Nevertheless, as outlined in

24 the statement of facts, Defendants afforded Plaintiff a right to appeal. Plaintiffhas

25 exercised that right. Accordingly, Defendants are entitled to summary judgment on

26 the claim Plaintiffs due process rights have been violated.

27 III

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1 9. Conclusion

2 Based on the foregoing, Defendants request the Court grant their Motion for

3 Summary Judgment and deny Plaintiffs Motion for Summary Judgment.

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5 DATED: April IS, 2011

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CARMEN A. TRUTANICH, City AttorneyGARY G. GEUSS, Chief Assistant City AttorneyCORY M. BRENTE Supr. Asst. City AttorneyELIZABETH MITCHELL, Deputy City Attorney

By -----;;y-nrh~~~~~~~____,___~.,__.__;_;_--W < PER ,Deputy City Attorney

Attorney for Defendants CHARLIE BECK ANDTHE LOS ANGELES POLICE DEPARTMENT

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