SBSO Objections Birdt

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#2C86583 DEFENDANTS OBJECTION TO REPORT AND RECOMMENDATIONS

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ALGERIA R. FORD, CA Bar No. 289016
Deputy County Counsel
JEAN-RENE BASLE, CA Bar No. 134107
County Counsel
385 North Arrowhead Avenue, Fourth Floor
San Bernardino, CA 92415-0140
Telephone: (909) 387-5455
Facsimile: (909) 387-4069
Electronic Mail Address: [email protected]

Attorneys for Defendant, JOHN McMAHON

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JONATHAN BIRDT,

Plaintiff,

vs.

JOHN MCMAHAN,

Defendant.
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CASE NO. EDCV 13-00673-VAP
(JEM)

DEFENDANTS OBJECTIONS TO
MAGISTRATE JUDGE JOHN E.
MCDERMOTTS REPORT AND
RECOMMENDATIONS

TO PLAINTIFF IN PROPRIA PERSONA, JONATHAN BIRDT:
PLEASE TAKE NOTICE that Defendant, JOHN McMAHON, will
and hereby does object to the Report and Recommendations (Report) of
Magistrate Judge John E. McDermott in this matter. The following
Case 5:13-cv-00673-VAP-JEM Document 119 Filed 09/23/14 Page 1 of 10 Page ID #:781

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objections are made:
1. In deciding that good moral character was not a valid basis for
denial of plaintiffs CCW permit application, the Report
erroneously fails to identify or apply a legal test, standard or level
of scrutiny, and instead merely substitutes the Magistrate
Judges discretion for the Sheriffs; and
2. If the Second Amendment standard is limited to responsible and
law abiding citizens, there are no facts alleged and no facts
before the Court on the motions that would suggest the Sheriffs
denial of the permit for lack of good moral character was
arbitrary, capricious, abusive or irrational or otherwise a violation
of the Second Amendment.

DATED: September 23, 2014 JEAN-RENE BASLE
County Counsel

/s/ Algeria R. Ford
ALGERIA R. FORD
Attorneys for Defendant,
JOHN McMAHON


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I.
INTRODUCTION
The Sheriff is granted discretion under state law to issue concealed
weapon permits to individuals who show good cause and demonstrate
good moral character. This case arises from the Sheriffs denial of
plaintiffs application for a Concealed Carry Weapons permit on February
26, 2013, after a finding that he lacked good moral character.
A background investigation conducted during the inquiry into
issuance or denial of plaintiffs permit revealed that plaintiff was
disciplined by the California Bar for admittedly and knowingly lying to a
Superior Court under penalty of perjury. Under California law, perjury is a
felony crime. Penal Code 118 and 126. Plaintiff also unethically
communicated with a represented party. According to a stipulation
entered into before the State Bar, plaintiff admitted that he committed acts
involving moral turpitude, dishonesty and/or corruption. Plaintiff was
suspended from the practice of law for a year, placed on probation for two
years, and ordered to retake the MPRE. When defendant learned this
information during the background investigation, plaintiffs permit to carry
a deadly weapon outside the home was denied.
On July 1, 2014 defendant Sheriff JOHN McMAHON was served
with a Second Amended Complaint (SAC), for an alleged violation of
plaintiffs Second Amendment rights. In the First and only Count of the
Complaint, plaintiff alleged that he has fully complied with all statutory and
procedural requirements but defendant denied him a permit, in Violation
of the Second Amendment. At the same time he served the SAC, plaintiff
also served defendant with a Motion for Summary Judgment related to
that Second Amended Complaint. In it he claimed that he is a law abiding

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citizen, that he is unable to exercise his Second Amendment right to self-
defense, that the refusal to issue the permit is an unlawful exercise of
discretion, and that an elected official cannot exercise such discretion.
The Motion itself contained no statement of facts and simply made
statements in a conclusory fashion.
Defendant filed a motion to dismiss (MTD) the SAC, an opposition
to the Motion for Summary Judgment, and requesting that the Court
instead issue summary judgment in favor of defendant. Following the
filings, the Magistrate took judicial notice of the permit file and the reason
for denial on the MTD. Defendant contends that, based on the judicially
noticed file, the reason for the permit denial was not arbitrary, capricious,
abusive or irrational and was within bounds of the state statute. Thus,
there is no claim upon which relief can be granted as the current
complaint is alleged. Notwithstanding that, Magistrate Judge John E.
McDermott issued a Report recommending 1) the denial of the motion to
dismiss and 2) denial of the summary judgment motions without prejudice
pending an opportunity to exercise his [Sheriffs] discretion whether to
deny a license to Plaintiff on grounds other than lack of good moral
character. (Report, 22:2-8.)
Defendant objects to the Report and Recommendation. First, it fails
to identify or apply a legal test or standard or level of scrutiny for the
recommendation that lack of good moral was not an appropriate basis for
the Sheriffs denial of the permit. Second, the Court erroneously
substituted its own discretion for that of the Sheriff without identifying or
articulating a violation of law. Finally, assuming a Second Amendment
standard of responsible and law abiding, and application of an arbitrary
or capricious or rational basis test, the defendants reason for denying the

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permit was clearly lawful based on the pleadings and evidence before the
Court. It was undisputed that the Sheriffs denial of the permit was in fact
based on plaintiffs admissions before the State Bar. It is undisputed that
this conduct constitutes a crime of moral turpitude bearing directly on
plaintiffs lack of moral character.
II.
AUTHORITY
The Objections are made pursuant to Rule 72 of the Federal Rules
of Civil Procedure and 28 U.S.C. 636(b)(1). The district court must
make a de novo determination of those portions of the report to which
objection is made, and may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge. 28
U.S.C. 636(b)(1); see also United States v. Raddatz, 447 U.S. 667,
67376 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir.
1989).
A court may take judicial notice of court filings and other matters of
public record. Reyns Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,
746 n. 6 (9
th
Cir. 2006). In this case, a redacted copy of plaintiffs
Concealed Carry application was previously filed with the Court, pursuant
Court Order. Defendant would ask that this Court take judicial notice of
the entire filed application. Furthermore, the Declaration of Sarah Hendrix
was previously filed, in connection with former Defendant San Bernardino
Countys Opposition to Plaintiffs Motion for Summary Judgment.
Defendant would ask that this Court take judicial notice of the declaration.
Finally, defendant previously filed Exhibit A, a copy of a public record of
plaintiffs state bar discipline and stipulation, with this Court. Defendant
would ask that this Court take judicial notice of this document.

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III.
ARGUMENT
A. THE REPORT FAILS TO ARTICULATE OR APPLY ANY
RECOGNIZABLE LEGAL TEST, STANDARD OR LEVEL OF
SCRUTINY FOR THE CONCLUSION THAT LACK OF GOOD MORAL
CHARACTER DID NOT CONSTITUTE A VALID GROUND FOR
DENIAL OF THE PERMIT IN THIS CASE
The Court concedes that perjury and dishonesty fit squarely
within what a community would regard as a lack of good moral
character. (Report, 17:12-14.) However, in the very next section of the
Report, Section C, the Court concludes that lack of good moral character
was not a valid reason for the Sheriffs denial of the permit in this case,
even though the applicant conceded he committed perjury and was
dishonest. (Report, 17:20 18:23; 20:5-6.) The Report is remarkable in
this regard in that the conclusion is made without any reference
whatsoever to any authoritative legal test, standard or level of scrutiny.
The Court has, in effect, simply substituted its own discretion for that of
the Sheriffs without any legal rationale.
In Section D of the Report, the Court suggests that the Sheriffs
exercise of discretion, denial of the permit and the Second Amendment
standard are governed by whether the permit applicant is responsible
and law abiding. But the Court never discusses or applies this standard
to the facts as alleged in the MTD or in the summary judgment motions.
Further, the Court never articulates the level of scrutiny to be applied to
the Sheriffs denial of the permit, whether that be abuse of discretion,
arbitrary and capricious, rational basis or some other level of scrutiny.

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Instead, the Court substituted its own discretion, by resort to definitions of
good moral character, arbitrarily chosen by the Court.
The Sheriff contends that, assuming application of any
recognizable legal test or level of scrutiny, the Court could not have
correctly concluded that plaintiff has stated a claim or that the Sheriff is
not entitled to summary judgment.
B. Defendants Motion to Dismiss and Motion for Summary
Judgment should be granted as plaintiff has neither pled nor shown
facts that would demonstrate the denial of the permit violated the
Second Amendment.
The Supreme Court stated in Heller that [l]ike most rights, the
right secured by the Second Amendment is not unlimited. District of
Columbia v. Heller, 554 U.S. 570, 626 (2008). In California, that limitation
is determined by statute. California Penal Code 26150 grants discretion
to a sheriff of a county to issue a license to that person upon proof,
among other reasons, that the (1) applicant is of good moral character; (2)
good cause for issuance of the license; (3) residency in the within the city
or county, and (4) completion of a course of training as described in Penal
Code Section 26165. The right to bear arms in public in California is
limited by the Sheriffs statutorily derived discretion. It should be noted
that plaintiff does not challenge the statute and the Report recognizes no
challenge was made to the statute.
The Sheriff did not, and does not, contend that his exercise
discretion is unreviewable. Rather, the Sheriff contends there is no viable
claim in this case that the Sheriffs decision to deny the permit was
arbitrary and capricious, an abuse of discretion or not rationally related to
the Second Amendment limitation suggested by the Court, namely that

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the applicant be responsible and law abiding. A public record of
plaintiffs state bar discipline and stipulation was previously filed with this
Court. In that public record, plaintiff signed an admission indicating that he
committed acts involving moral turpitude, dishonesty and/or corruption.
He lied to a Superior Court under penalty of perjury, communicated with a
represented party and entered into a stipulation that he conceded to
committing acts involving moral turpitude, dishonesty and/or corruption.
The plaintiffs conduct constitutes a felony under California law. Penal
Code 118, 126.
The Report concedes, citing Chadwick v. State Bar of California,
that moral turpitude is any crime of misconductor any dishonest or
immoral act or crimes which necessarily involve an intent to defraud
or perjury. (Report p. 16:13-25.) Section II, B of the Report then
concludes that lacking good moral character, which is acknowledges
includes perjury and dishonesty, is a legitimate and appropriate reason to
deny use and possession of a firearm. (Report p. 17: 10-19.)
Notwithstanding that, in section II, C the Report, there is a determination,
without applying any legal test or standard that in this case, denial based
on lack of good moral character was not appropriate. (Report p. 17:9-23.)
The question is not, as suggested by the Report, whether the
Court is troubled by the fact that plaintiff was reinstated by the State Bar
and was no longer subject to discipline. The question is whether the
Sheriffs decision to deny the report violated the law. The Sheriffs denial
of the permit based on plaintiffs admission to what constitutes a felony of
moral turpitude, was not rendered irrational or an abuse of discretion by
the mere fortuitous circumstance that plaintiff was not criminally convicted
and sentenced. The Report acknowledges that the defendant relied on

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plaintiffs suspension from the bar and stipulation and states the Court
would have no difficulty with the above determination were this shortly
after the 2005 misconduct occurred or after the 2009 suspension or even
in 2011 near the expiration of his probation. (Report, 18:1-3.) In other
words, not only does the Report not claim that the defendant Sheriff failed
to provide a reason for the denial of plaintiffs permit, the Report agrees
that the determination was not arbitrary, capricious or irrational. Mere
disagreement regarding defendants application of his statutorily allowable
discretion does not constitute a Constitutional violation, absent some legal
analysis that shows either the defendant lacked discretion or that the
defendant somehow abused his discretion.
Application of the Second Amended standard suggested by the
Court based on Peruta, namely responsible and law abiding yields the
same result. The Sheriff rationally concluded the plaintiffs commission of
a felony involving moral turpitude and dishonesty did not qualify plaintiff
as responsible and law abiding. Notably, plaintiffs perjury was not
garden variety. It was a brazen lie to the Court by an officer of the Court.
Again, in the absence of some fact that renders this decision abusive,
arbitrary or capricious, there is no ground upon which to assert a Second
Amendment violation.
IV.
CONCLUSION
There is no presumptive Second Amendment violation for denial of
a Concealed Carry Weapons permit. California Penal Code 26150
grants discretion to a sheriff of a county to issue a license. The filings and
evidence before the Court by judicial notice and summary judgment show
defendant validly exercised his discretion when he denied plaintiffs permit

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on the grounds that plaintiff lacked good moral character.
This Court should not adopt the Magistrate Judges Report and
Recommendations because the Report fails to articulate the standard of
scrutiny used to make the determination that the denial was improper and
instead substitutes the Courts discretion for the Sheriff. Assuming a
responsible and law abiding Second Amendment standard, and a
rational basis test for the Sheriffs exercise of discretion, the Report
impermissibly concludes that good moral character was not a valid
ground for denial of the permit.
Based on the foregoing, defendant respectfully requests that the
Court not adopt the Report and Recommendations and instead requests
dismissal of the Second Amended Complaint, with prejudice, or in the
alternative a grant of summary judgment for the defendant.

DATED: September 23, 2014 JEAN-RENE BASLE
County Counsel

/s/ Algeria R. Ford
ALGERIA R. FORD
Attorneys for Defendant,
JOHN McMAHON


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#2C86583 DEFENDANTS OBJECTION TO REPORT AND RECOMMENDATIONS

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