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Fouts V Becerra (Baton Second Amendment) Complaint
Fouts V Becerra (Baton Second Amendment) Complaint
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2 COME NOW the Plaintiffs, RUSSELL FOUTS and TAN MIGUEL TOLENTINO,
3 (“Plaintiffs”), by and through their undersigned counsel, and complain of the Defendant as follows:
4 I. PARTIES
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1. Plaintiff Russell Fouts is an adult male resident of the State of California and resides in
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San Diego County and is a citizen of the United States.
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2. Plaintiff Tan Miguel Tolentino is an adult male resident of the State of California and
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resides in San Diego County and is a citizen of the United States.
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10 3. Defendant Xavier Becerra is the Attorney General of California. He is the chief law
19 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§
20 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983 and § 1988.
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5. Venue lies in this Court pursuant to 28 U.S.C. § 1391.
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III. STATEMENT OF FACTS
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6. The State of California bans the manufacture, import into the state, keep for sale, or
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25 sale, loan, and possession of billies pursuant to Cal. Penal Code § 22210 outside of a handful of
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7. The term billy and baton are synonymous with one another. (“Petitioner accordingly
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2 had notice that his baton could be considered a billy.”) See Robertson v. Harris, 2015 U.S. Dist.
4 8. The Second Amendment to the United States Constitution provides: “A well regulated
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Militia being necessary to the security of a free State, the right of the people to keep and bear Arms
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shall not be infringed.”
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9. The Second Amendment guarantees individuals a fundamental right to keep and carry
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arms for self-defense and defense of others in the event of a violent confrontation. District of Columbia
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10 v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010); Caetano v.
17 11. The Second Amendment extends, prima facie, to all instruments that constitute
18 bearable arms, even those that were not in existence at the time of the founding. Heller, 554 U.S. at
26 13. Given the decision in Heller, Defendant may not completely ban the keeping and
27 bearing of arms for self-defense that are not dangerous and unusual, deny individuals the right to carry
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arms in non-sensitive places, deprive individuals of the right to keep or carry arms in an arbitrary and
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capricious manner, or impose regulations on the right to keep and carry arms that are inconsistent with
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2 the Second Amendment. See Caetano v. Massachusetts, 136 S. Ct. 1027 (2016); Heller v. District of
3 Columbia, 801 F.3d 264 (D.C. Cir. 2015); Palmer v. District of Columbia, 59 F.Supp.3d 173 (2014).
4 14. Many other jurisdictions have already found complete bans on the ownership of arms
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other than firearms are unconstitutional post-Heller.
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15. Bans on electric arms have been struck across the nation. See People v. Yanna, 824
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N.W.2d 241, 243 (Mich. Ct. App. 2012) (striking down a Michigan statute criminalizing possession
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of electronic weapons), Second Amendment Society v. Porrino, No. 3:16-cv-04906-DEA (D.N.J. Nov.
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10 16, 2016) Doc. No. 30 (consent decree where the Court found New Jersey’s complete ban on electric
11 arms is unconstitutional), (“Pursuant to the holdings in Heller, McDonald and Caetano, N.J. Stat. Ann
12 . § 2C:39- 3(h), to the extent this statute outright prohibits, under criminal penalty, individuals from
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possessing electronic arms, is declared unconstitutional in that it violates the Second Amendment to
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the United States Constitution and shall not be enforced”); See, Crystal Wright v. District of Columbia,
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No. 1:16-cv-01556-JEB (D.D.C. Sept. 26, 2016) Doc. No. 18 (stipulating to a stay of a motion for
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17 preliminary injunction pending new legislation and agreeing not to enforce ban against
18 plaintiffs); Ford v. City of New Orleans, No. 2:16-cv16433-MVL-KWR (E.D. La. Dec. 14, 2016) Doc.
19 Nos. 17, 19-20 (stipulating that the city will not enforce the ban against plaintiff and consenting to a
20 stay of litigation pending enactment of legislation that decriminalized possession of stun
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guns); Hulbert v. Pantelides, No. 1:16-cv-04121-JFM (D. Md. March 3, 2017) Doc. No. 16 (letter
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from the City of Annapolis informing the court that the City Council passed an emergency ordinance
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eliminating all restrictions on ownership and possession of electronic weapons for personal defense);
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25 Ramirez v. Commonwealth No. SJC-12340, 2018 Mass. LEXIS 237 (Apr. 17, 2018) (striking Mass.
26 ban on stun guns).1 See Avitabile v. Beach, 2019 U.S. Dist. LEXIS 47506, __ F. Supp. 3d __, 2019
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Since Caetano, electronic arms bans in Philadelphia, Pennsylvania; Tacoma, Washington and Westminster, Maryland
were also rescinded. https://www.phillymag.com/news/2017/10/24/stun-guns-legal-philadelphia/
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WL 1302858, striking New York State’s ban on electric arms. See People v. Walker, 2019 Ill. LEXIS
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2 329, 2019 WL 1307950 striking Illinois’s ban on taser ownership and carry.
3 16. In Maloney v. Singas, 351 F. Supp. 3d 222 (S.D.N.Y. 2018), the United States District
4 Court for the Southern District of New York struck the State of New York’s ban on nunchucks as a
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violation of the Second Amendment. It found nunchucks are protected by the Second Amendment
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because they are bearable arms that are typically used for lawful purposes. It then struck New York’s
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ban because the State did not have an important government interest in banning these protected arms.
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17. In upholding a criminal conviction for possession of a switchblade, the New Mexico
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10 Court of Appeals found that knives are protected by the Second Amendment and upheld that specific
11 ban applying intermediate scrutiny. See State v. Murillo, 347 P.3d 284 (2015).
12 18. In City of Seattle v. Evans, 366 P.3d 906 (2015), the Washington Supreme Court
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evaluated the conviction for carrying a paring knife (a type of kitchen knife). The Court found that
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paring knives are not protected by the Second Amendment because paring knives are not designed to
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be used for self-defense. “We hold that the right to bear arms protects instruments that are designed as
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17 weapons traditionally or commonly used by law-abiding citizens for the lawful purpose of self-
18 defense. In considering whether a weapon is an arm, we look to the historical origins and use of that
19 weapon, noting that a weapon does not need to be designed for military use to be traditionally or
20 commonly used for self-defense. We will also consider the weapon's purpose and intended function.”
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City of Seattle at 913. Then the Court went on to strongly suggest that knives designed for self-defense
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such as “bowie knives and swords”, having been commonly used for self-defense may be considered
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arms. See City of Seattle at 906.
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http://www.carrollcountytimes.com/news/westminster/ph-cc-westminster-stun-gun-ban-discussion-20170523-story.html
28 (last visited 8/1/2019); http://www.thenewstribune.com/news/politics-government/article158619749.html (last visited
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19. In State v. Deciccio, 105 A.3d 165 (Conn. 2014), the Connecticut Supreme Court
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2 overturned the conviction for transport of a dirk knife and a baton (also known as a billy) as a violation
3 of the litigants Second Amendment rights. In doing so the Court found that dirk knives and batons
4 are protected by the Second Amendment because they are weapons with traditional military utility that
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are "typically possessed by law-abiding citizens for lawful purposes"; Id. at 625; and not "dangerous
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and unusual weapons." (Internal quotation marks omitted.) Id., 627. It then applied intermediate
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scrutiny and held the conviction unconstitutional.
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20. The California Appeals Court has found that knives are protected by the Second
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10 Amendment. In People v. Mitchell, 209 Cal. App. 4th 1364 (2012), the court held “the dirk or dagger
11 concealed carrying restriction does not entirely prohibit the carrying of a sharp instrument for self-
12 defense; rather, it limits the manner of exercising that right by proscribing concealed carrying of a dirk
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or dagger unless the bearer uses a visible knife sheath or non-switchblade folding or pocketknife.
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Because the statute regulates but does not completely ban the carrying of a sharp instrument, we
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subject it to intermediate scrutiny.” Id. at 1374. Here, since California completely bans billies, Mitchell
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18 21. In State v. Montalvo, 162 A.3d 270 (2017), the New Jersey Supreme Court overturned
19 the conviction for possession of a machete. In doing so, the Court found that machete-type knives are
20 protected by the Second Amendment and that a conviction for their possession in the home was
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unconstitutional.
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22. In State v. Herrmann, 2015 WI App 97, the Wisconsin Court of Appeals overturned
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appellant’s the conviction for possession of a switchblade was unconstitutional. In doing so, the court
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25 found that switchblades are protected by the Second Amendment and that Wisconsin’s complete ban
27 23. In State v. Delgado, 692 P.2d 610 (1984), the Oregon Supreme Court found that
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Oregon’s ban on the possession of switchblades violated the Oregon Constitution’s right to arms.
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24. Many other state courts have likewise concluded that the right to keep and bear arms
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2 found within their state constitutions extends beyond handguns. See State v Griffin, 2011 WL 2083893,
3 *7 n62, 2011 Del Super LEXIS 193, *26 n62 (Del Super Ct, May 16, 2011) (holding that the “right to
4 keep and bear arms” under the Delaware Constitution extends to knives, and concluding that the
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Second Amendment right does the same); City of Akron v Rasdan, 663 NE2d 947 (Ohio Ct. App.,
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1995) (concluding that the “right to keep and bear arms” under the Ohio Constitution extends to
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knives); State v Blocker, 630 P2d 824 (1981) (same as to billy clubs), citing State v Kessler, 614 P2d
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94 (1980); also Barnett v State, 695 P2d 991 (Ct App, 1985) (same as to blackjacks).
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10 25. Plaintiffs are bringing an as-applied and facial challenge to the applicable California
11 laws which prevent them from owning billies for purposes of lawful self-defense.
12 26. Plaintiffs seek an injunction preventing enforcement of the applicable California laws
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as applied to themselves and for declaratory relief.
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27. Additionally, Plaintiffs seek an injunction preventing enforcement of the applicable
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California laws as to all other law-abiding citizens.
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18 28. In Heller, the Court ruled that the "Second Amendment extends prima facie, to all
19 instruments that constitute bearable arms, even those that were not in existence at the time of
20 founding." Heller, 128 S. Ct. at 2817. In order to strike down the ban on handguns it ruled a complete
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ban on a protected arm cannot withstand any level of scrutiny. Id.
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29. Thus, while “dangerous and unusual weapons” may likely be regulated, “the sorts of
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weapons protected [a]re those ‘in common use at this time.’” Id. at 627
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25 30. In United States v. Henry, 688 F. 3d 637 (9th Cir. 2012), the Ninth Circuit held that
26 machine guns are not protected by the Second Amendment because they are dangerous and unusual.
27 “A modern machine gun can fire more than 1,000 rounds per minute, allowing a shooter to kill dozens
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of people within a matter of seconds. See George C. Wilson, Visible Violence, 12 NAT’L J. 886, 887
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(2003).” Short of bombs, missiles, and biochemical agents, we can conceive of few weapons that are
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2 more dangerous than machine guns. A machine gun is “unusual” because private possession of all new
3 machine guns, as well as all existing machine guns that were not lawfully possessed before the
4 enactment of§ 922(o), has been unlawful since 1986. Outside of a few government-related uses,
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machine guns largely exist on the black market.” Id. at 640.2
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31. However, unlike machineguns which have been artificially limited in ownership by §
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922(o), billies are arms in common use for lawful self-defense.
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32. Billies are arms in common use for lawful self-defense.
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10 33. Police officers commonly possess them as a form of nonlethal defense.
11 34. “Furthermore, the widespread use of the baton by the police, who currently perform
12 functions that were historically the province of the militia; see, e.g., D. Kopel, "The Second
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Amendment in the Nineteenth Century," 1998 BYU L. Rev. 1359, 1534 demonstrates the weapon's
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traditional military utility.”. State v. Deciccio, 315 Conn. 79, 133, 105 A.3d 165, 200, 2014 Conn.
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LEXIS 447, *87.
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17 35. A baton or billy is a roughly cylindrical club made of wood, rubber, plastic or metal. It
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Plaintiffs expressly reserve the right to challenge the accuracy of the Ninth Circuit’s interpretation of Heller’s dangerous
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41. Billies are less dangerous than knives designed for self-defense.
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2 42. Billies are not dangerous and unusual and are lawfully owned and legal in a
3 supermajority of States.
4 43. The Oregon Supreme Court’s right to arms analysis “mirrors the model employed by
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the United States Supreme Court in District of Columbia v. Heller, supra, 554 U.S. 624-25”. See State
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v. Deciccio, 315 Conn. 79, 117, 105 A.3d 165, 191, 2014 Conn. LEXIS 447, *63.
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44. In State v. Kessler, 289 Ore. 359, 614 P.2d 94, 1980 Ore. LEXIS 1031 the Oregon
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Supreme Court found:
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10 The club is considered the first personal weapon fashioned by humans. O. Hogg, Clubs
to Cannon 19 (1968). The club is still used today as a personal weapon, commonly
11 carried by the police. ORS 166.510 prohibits posession of a "billy;" however, ORS
166.520 states that peace officers are not prohibited from carrying or possessing a
12 weapon commonly known as a "blackjack" or "billy." The statute in this case, ORS
166.510, prohibits the mere possession of a club. The defendant concedes that the
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legislature could prohibit carrying a club in a public place in a concealed manner, but
14 the defendant maintains that the legislature cannot prohibit all persons from possessing
a club in the home. The defendant argued that a person may prefer to keep in his home
15 a billy club rather than a firearm to defend against intruders.
16 Our historical analysis of Article I, section 27, indicates that the drafters intended
17 "arms" to include the hand-carried weapons commonly used by individuals for personal
defense. The club is an effective, hand-carried weapon which cannot logically be
18 excluded from this term. We hold that the defendant's possession of a billy club in his
home is protected by Article I, section 27, of the Oregon Constitution.
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45. In State v. Blocker, 291 Ore. 255, 630 P.2d 824, 1981 Ore. LEXIS 915 the Oregon
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21 Supreme Court extended this ruling to find private citizens have a right to possess billy clubs outside
22 the home.
23 46. In State v. Deciccio, 315 Conn. 79, 117, 105 A.3d 165, 191, 2014 Conn. LEXIS 447,
24 the Connecticut Supreme Court found that billies are protected by the Second Amendment and a
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complete ban on their possession is unconstitutional (“For these reasons, we are persuaded that the
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police baton that the defendant had in his vehicle is the kind of weapon traditionally used by the state
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for public safety purposes and is neither so dangerous nor so unusual as to fall outside the purview of
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the second amendment's right to keep and bear arms”). State v. Deciccio, 315 Conn. 79, 133-134, 105
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4 47. Plaintiff Fouts desires to purchase the same type of baton/billy policemen are usually
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issued3 and an expandable baton4 for self-defense and other lawful purposes in his home, business,
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whilst traveling between these locations and in all other locations. See Declaration of Russel Fouts
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attached as Exhibit “A”.
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48. Prior to living in California, Plaintiff Fouts owned a billy legally
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10 49. Plaintiff Fouts is employed as a project manager for a security contractor in San Diego.
17 53. Plaintiff Fouts does not take illegal drugs or abuse alcohol.
18 54. Plaintiff Fouts desires to purchase a billy. However, Plaintiff fears prosecution for
19 possessing it.
20 55. While living in Oregon, Plaintiff Fouts was licensed by the State of Oregon:
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Department of Public Safety Standards and Training to use non-firearm weapons including billies in
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a security role as a private security contractor.
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56. In that capacity, Plaintiff Fouts carried a billy for purposes of self-defense and in order
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A type of standard billy is found here: https://www.budk.com/Law-Enforcement-Billy-Club-Police-Baton-30742
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A type of expandable billy/baton is found here: https://www.budk.com/Expandable-Baton-26-Inch-22397
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57. Plaintiff Fouts is licensed to concealed carry a handgun in the State of Oregon (CHL
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2 license).
3 58. But for California law, Plaintiff Fouts would acquire, possess, carry and where
4 appropriate use a billy to protect himself, his home, his family and business.
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c. Plaintiff Tan Miguel Tolentino
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59. Plaintiff Tolentino desires to purchase the same type of baton/billy policemen are
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usually issued and an expandable baton for self-defense and other lawful purposes in his home,
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business, whilst traveling between these locations and in all other locations. See Declaration of Tan
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10 Miguel Tolentino attached as Exhibit “B”.
17 64. Plaintiff Tolentino studied Arnis and Kali under Narrison Babao Jr.
18 65. Arnis and Kali are Filipino martial forms which focus on stick fighting.
25 70. Plaintiff Tolentino has never been convicted of a crime that would disqualify him from
27 71. Plaintiff Tolentino does not take illegal drugs or abuse alcohol.
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72. Plaintiff Tolentino legally owns firearms.
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73. Plaintiff Tolentino has never been diagnosed with a mental disorder that would
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3 74. Plaintiff Tolentino desires to purchase a billy. However, Plaintiff fears prosecution for
14 78. Defendant’s laws, customs, practices and policies generally banning the acquisition,
15 possession, carrying and use of billies violates the Second Amendment to the United States
16 Constitution, facially and as applied against the Plaintiffs in this action, damaging Plaintiffs in
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violation of 28 U.S.C. §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983. Plaintiffs are therefore entitled
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to preliminary and permanent injunctive relief against such laws, customs, policies, and practices.
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20 SECOND CAUSE OF ACTION
21 DECLARATORY JUDGMENT
22 79. Plaintiffs repeat and re-plead the preceding paragraphs, inclusive, and incorporate the
81. Absent a declaratory judgment, there is a substantial likelihood that Plaintiffs will
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3 82. There is an actual controversy between the parties of sufficient immediacy and reality
11 85. Defendant’s laws, customs, practices and policies generally banning the acquisition,
12 possession, carrying and use of billies violates the Second Amendment to the United States
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Constitution, facially and as applied against the Plaintiffs in this action, damaging Plaintiffs in
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violation of 28 U.S.C. §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983. Plaintiffs are therefore entitled
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to a declaration declaring such laws, customs, policies, and practices unconstitutional.
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18 WHEREFORE, Plaintiffs request that judgment be entered in their favor and against
19 Defendant as follows:
20 1. An order preliminarily and permanently enjoining Defendant, his officers, agents,
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servants, employees, and all persons in active concert or participation with them who receive actual
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notice of the injunction, from enforcing California Penal Code Section 22210 and any other relevant
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California law which bans the acquisition, possession, carrying or use of billies as applied to Plaintiffs
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26 2. An order declaring that California Penal Code Section 22210 and any other relevant
27 California law unconstitutional and violative of the Second Amendment to the United States
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Constitution as applied to Plaintiffs and to all other law-abiding citizens;
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3. Costs of suit, including attorney fees and costs pursuant to 42 U.S.C. §1988;
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2 4. Such other Declaratory relief consistent with the injunction as appropriate; and
3 5. Such other further relief as the Court deems just and appropriate.
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COMPLAINT OF PLAINTIFFS FOR DEPRIVATION OF CIVIL RIGHTS