September 12, 2014

Torrance, CA: Today Otten Law, PC filed it’s opening brief in the Court of Appeal of the State of California, Fifth Appellate District in the matter of Daniel Schoepf, et al. vs. Kamala Harris, et. al. The case was filed last year to compel the Department of Justice (“DOJ”) to follow the law regarding the amount of time that it has to conduct a background check for the purchaser of a firearm. Because the lawsuit forced the DOJ to release the holds that it had on the firearms of the seven plaintiffs prior to hearing the writ, Superior Court Judge Carlos A. Cabrera denied the case on the ground that it was “moot”. In doing so, the Judge denied ruling on the deprivation of plaintiffs’ constitutional rights, and there was no consequence to the DOJ for failing to proceed as required by law. Accordingly, we have asked the Court of Appeal to remedy the Judge’s mistake.

Background

On April 11, 2013, Otten & Joyce, LLP (now Otten Law, PC) filed a lawsuit on behalf of the Calguns Foundation and seven California residents against Attorney General Kamala Harris, the California Department of Justice, and DOJ Bureau of Firearms Chief Stephen Lindley. The case challenged the DOJ’s policy of requiring some firearm purchasers to prove their legal standing to take possession of acquired firearms (a burden put on the DOJ by statute) and forcing them to wait beyond the statutory 10-day waiting period.

The lawsuit was filed in response to the Calguns Foundation receiving numerous complaints that the DOJ was unlawfully directing California gun dealers to delay the release of firearms to people eligible to possess them – sometimes indefinitely. There was no basis under the law for the DOJ to delay the release of the firearm beyond the 10-day waiting period for individuals who were eligible to possess a firearm.

The DOJ claims that these delays are primarily due to lack of information in their criminal history databases. In a July 2011 Los Angeles Times article, assistant attorney general Travis LeBlanc said the DOJ’s criminal records database system was “shoddy,” with the “guilty”, “not guilty”, or “case dismissed” disposition information missing for about 7.7 million of the 16.4 million arrest records entered into their database over the last decade – and presumably much more for older cases.

The lead plaintiff, Daniel Schoepf, of Long Beach, California, was denied his fundamental right to keep and bear arms for self-defense even after DOJ told him that he was eligible to purchase and possess firearms. In 1984, Schoepf was detained in Los Angeles County for having two tablets in his pocket that were later discovered to be common, non-prescription pills. No charges were filed. In 2006, DOJ Firearms Section Program Manager Steve Buford sent Schoepf a letter stating that he was eligible to purchase and possess firearms; however, in 2012, the DOJ reversed that position and instructed Schoepf’s local firearms dealer to hold back delivery of Schoepf’s gun. It took Schoepf filing this lawsuit to finally obtain his firearm (which had been paid for months earlier).

After a short hearing, the Honorable Carlos A. Cabrera issued a minute order denying the writ on October 23, 2013, and a signed Order was issued on November 12, 2013. The only reasoning given by the trial court was that the writ was denied on the grounds the matter is “moot.” After the filing of the writ petition and before the hearing, each plaintiff’s application was approved and each was allowed to take possession of the firearm he purchased. Although the trial court gives no explanation for its decision, it can be assumed it dismissed the writ on “mootness” grounds due to the change in circumstances of the plaintiffs.

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