Zeleny V Brown Deposition Transcript of State DOJ Agent Blake Graham

1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA

3
4 MICHAEL ZELENY, ) Case No.

) CV 17-7357 JCS
5 Plaintiff, )
)
6 vs. )
)
7 EDMUND G. BROWN, Jr. )
et al., )
8 )
Defendants. )
9 ______________________________)
10
11
12
DEPOSITION OF BLAKE GRAHAM
13
Thursday, January 23rd, 2020
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---oOo---
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17
18
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20
21
22 Reported by:
David A. Disbrow
23 CSR No. 7768
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25
Watson Court Reporters (800) 373-0888 Page: 1 (1)

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1 INDEX OF EXAMINATION 1 APPEARANCES
Page
2 EXAMINATION BY MR. ROBINSON 5 2 For the AFFELD GRIVAKES, LLP
Plaintiff: 2049 Century Park East
3 3 Suite 2460
Los Angeles, CA 90067
4 4 BY: DAMION ROBINSON, ESQ.
(310) 979-8700
5 5 Email: [email protected]
6 INDEX OF EXHIBITS 6
For the HOWARD ROME MARTIN & RIDLEY, LLP
7 PLAINTIFF'S Description Page 7 Defendant: 1900 O'Farrell Street
EXHIBITS City of Suite 280
8 8 Menlo Park, San Mateo, CA 94403
EXHIBIT 1 Deposition Notice 6 Mr. Bertini BY: LISA K. RAUCH, ESQ.
9 9 (650) 365-7715
EXHIBIT 2 Communication 48 Email: [email protected]
10 10
EXHIBIT 3 3-page document 70
11 11 For the STATE OF CALIFORNIA
EXHIBIT 4 Defendant's Responses 92 Witness: Department of Justice
12 12 Office of the Attorney General
EXHIBIT 5 Summary of California laws 98 1300 I Street
13 13 P.O. Box 944255
EXHIBIT 6 3-page document 107 Sacramento, CA 94244-2550
14 14 BY: NOREEN P. SKELLY, ESQ.
EXHIBIT 7 Penal Code Section breakdown 140 (916) 210-6057
15 15 Email: [email protected]
16
EXHIBIT 8 Bill analysis package 146 16
EXHIBIT 9 Legislative history document 157 Also Present: Videographer, Jason Sayler
17 17
EXHIBIT 10 Bill analysis document 160 ---oOo---
18 18
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EXHIBIT 11 2-page document 165 19
EXHIBIT 12 Deputy Attorney General's 170
20 Responses 20
21 ---oOo--- 21
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1 BE IT REMEMBERED THAT, pursuant to the 1 Thursday, January 23rd, 2020
2 laws pertaining to the taking and use of 2 P-R-O-C-E-E-D-I-N-G-S
3 depositions, and on Thursday, January 23rd, 2020, 3 ---oOo---
4 commencing at the hour of 10:39 A.M., thereof, 4 THE VIDEOGRAPHER: Today's date is January
5 at the Offices of REGUS, 580 California Street, 5 23rd, 2020. My name is Jason Sayler and I am the
6 12th Floor, San Francisco, California, before me, 6 videographer for today. I represent Watson Court
7 David A. Disbrow, Certified Shorthand Reporter for 7 Reporters in Los Angeles, California. I am not
8 the State of California, there personally appeared 8 financially interested in this action nor am I a
9 BLAKE GRAHAM, 9 relative or employee of any of the attorneys or any
10 called as a witness by the Plaintiff, who was 10 of the parties. The time is approximately 10:39 a.m.
11 examined and testified as is hereinafter 11 This deposition is taking place at 580
12 set forth: 12 California Street on the 12th Floor in San Francisco,
13 -oOo- 13 California. The case number is 17-CV-7357 JCS. This
14 14 is in the United States District Court, Northern
15 15 District of California. The case is entitled Zeleny
16 16 versus Brown, Jr., et al. This deposition is being
17 17 taken on behalf of Plaintiff.
18 18 Here begins video number one of the
19 19 deposition of Blake Graham as a 30(b)(6) witness for
20 20 the State of California. The court reporter is David
21 21 Disbrow. Will the attorneys please state their
22 22 appearances for the record.
23 23 MR. ROBINSON: Damion Robinson taking the
24 24 deposition on behalf of Plaintiff, Michael, Zeleny.
25 25 MS. SKELLY: Noreen Skelly, deputy attorney.
Watson Court Reporters (800) 373-0888 Page: 2 (2 - 5)
Page 6 Page 8
1 general, appearing on behalf of the deponent on 1 to finish your entire answer before I start to ask the
2 behalf of the Attorney General Becerra. 2 next question, okay?
3 MS. RAUCH: Lisa Rauch from the law firm of 3 A Sounds good.
4 Howard, Rome, Martin and Ridley appearing for 4 Q All right. If at any point you don't
5 Defendant, City of Menlo Park and Chief Dave Bertini, 5 understand a question or you don't know the answer,
6 B-E-R-T-I-N-I. 6 please just tell me that and I'll clarify or rephrase
7 THE VIDEOGRAPHER: If the court reporter 7 if I can. If you do answer a question I'll assume you
8 would administer the oath then we can begin. 8 understood the question and that you know the answer to
9 (Exhibits premarked for 9 it.
10 Identification.) 10 A Okay.
11 11 Q Any reason you couldn't give complete and
12 (Whereupon the witness, BLAKE GRAHAM, who was duly 12 accurate testimony today?
13 sworn to tell the truth, the whole truth, and nothing 13 A If I have the knowledge I will share it with
14 but the truth testified as follows:) 14 the room.
15 15 Q No medication or lack of sleep?
16 EXAMINATION BY MR. ROBINSON 16 A No.
17 BY MR. ROBINSON: 17 Q Okay. Why don't I hand you what we've marked
18 Q Good morning. 18 as Exhibit One.
19 A Hi. 19 A (Witness reviewed document.)
20 Q We've been introduced before so I'm Damion 20 Q For the record, it's multiple pages. On the
21 Robinson. I'm an attorney representing Michael Zeleny 21 right-hand side, on the caption portion, it just says,
22 in this case. Could you please state and spell your 22 "Notice of Deposition of the State of California;" do
23 full name for the record. 23 you see that?
24 A Sure. Blake Graham; B-L-A-K-E, G-R-A-H-A-M. 24 A Yes.
25 Q Mr. Graham, have you had your deposition 25 Q Okay. Have you seen Exhibit One before?
Page 7 Page 9
1 taken before? 1 A Yes.
2 A Yes. 2 MS. SKELLY: And Counsel, just before we go
3 Q Approximately how many times? 3 any further, I want to clarify as I have done in
4 A Maybe four perhaps where it's strictly a 4 emails to you, that the State of California is not a
5 deposition. I've testified but that's not the question 5 defendant in this action. The Defendant is
6 you asked. 6 California Attorney General Javier Becerra so the
7 Q Fair enough. How many times have you 7 caption on the depo notice is incorrect to that
8 testified? 8 extent.
9 A 30, 40, somewhere in that range. 9 MR. ROBINSON: Understood.
10 Q Okay. I'll go over the ground rules very 10 BY MR. ROBINSON:
11 briefly then. 11 Q Let's start with some preliminary questions.
12 A Thank you. 12 Do you understand that you're testifying on behalf of
13 Q Okay. So the most important thing is that 13 the State of California?
14 the court reporter be able to take down everything 14 A Yes.
15 that's said so if I ask you from time to time to give a 15 MS. SKELLY: Objection; Counsel, he's not
16 verbal answer, I'm not trying to be impolite. I just 16 testifying on behalf of the State of California
17 want to make sure we get a clear record. 17 because the State is not a defendant. He is
18 A Understood. 18 testifying on behalf of Attorney General Becerra.
19 Q Okay. And likewise, I'll ask that you wait 19 MR. ROBINSON: Okay, so we -- I don't
20 for me to finish my next question before you start to 20 necessarily agree that a witness can be designated
21 answer. You might see where I'm going and try to be 21 other than for the entity that's been stated on the
22 helpful and start to talk before I finish. That makes 22 deposition notice but we'll work through it as best
23 it very hard for our court reporter to take it down. 23 we can.
24 A I understand. 24 BY MR. ROBINSON:
25 Q Okay. And in the same way, I'll wait for you 25 Q Is it your understanding that you're
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1 testifying on behalf of the Attorney General of the 1 Q Is there a group of people or a particular
2 State of California? 2 office that would generally be the office to give the
3 A That's correct; the Attorney General of the 3 official position of the State of California on topics
4 State of California. 4 one through three?
5 Q Okay. Why don't we turn to attachment one to 5 MS. SKELLY: Objection; the State of
6 Exhibit One. 6 California is made up of three separate and co-equal
7 A Okay. 7 branches of Government so these statutes have all
8 Q I'm just going to run through the topics with 8 been enacted by the Legislature.
9 you relatively quickly and see what topics you're 9 MR. ROBINSON: Fair enough.
10 prepared to testify about and if there any you are not 10 BY MR. ROBINSON:
11 prepared to testify about. So the first three topics 11 Q Is there a person or a group of -- strike
12 generally relate to Legislative history and enactment 12 that. Is there a particular author in the Government
13 of various statutes; do you see that? 13 of the State of California regardless of which branch
14 A I see that, yes. 14 it's in who could give the official position of the
15 Q Are you prepared to testify about those 15 State of California on topics one through three
16 topics today? 16 relating to the enactment of the Penal Code statutes
17 A Topics one through three are Legislative 17 that are listed in topic one?
18 related matters. The Attorney General's office is not 18 A As far as a person's name, I don't have that
19 part of that body within the State of California's 19 for you but I could -- I would suggest a particular
20 Government scheme so I think I'm probably not the right 20 committee. That would be a starting point for you to
21 person to go through one through three with you to any 21 ask that question of. Both the Assembly and the Senate
22 great detail. 22 in the California Legislature have a Public Safety
23 Q What about number four -- strike that. Let 23 Committee that deal with arms-related matters and many
24 me ask you this. Who is the right person to go into 24 other public safety type of items. If you were to
25 detail on the first three topics? 25 check with those two entities, the Public Safety
Page 11 Page 13
1 MS. SKELLY: Objection; assumes facts not in 1 Committees for each House basically, they may have a
2 evidence. I don't know that the deponent knows who 2 person or they may suggest you know the Judicial
3 the proper entity or person is who would be competent 3 Counsel's office or something like that. That's where
4 to testify regarding topics one through three. 4 I would start.
5 MR. ROBINSON: Okay. 5 Q Understood. Let's go on to topic number
6 BY MR. ROBINSON: 6 four.
7 Q Why don't we do this. Do you know if there 7 A Okay.
8 is such a person within the State of California who can 8 Q Are you prepared to testify today about topic
9 testify in an official capacity about topics one 9 number four?
10 through three? 10 A The Attorney General's office to my knowledge
11 A Because there's multiple Penal Codes that I 11 does not provide a legal opinion in general about
12 think would be in play for this broad of a question or 12 concealed carry. There is a I want to say at least one
13 series of questions here, I don't know if there's one 13 lawsuit, the "Peruta" case, that may still be active.
14 person who's currently at the Legislature, perhaps 14 I'm not a part of that, I was not deposed, so there may
15 someone in the Judicial Counsel's office within the 15 be some existing legislation on the matter. I'm not
16 Legislative body but I don't know who they might 16 sure if it's completely done as far as the appeals or
17 designate or if they even have a person that has that 17 you know that type of thing and so I'm probably you
18 breadth of knowledge. There's various Penal Codes that 18 know I guess the best place to tell you that there
19 have been in play for many years. You might need a 19 could be recent activity on that conceal carry matter.
20 separate person for every single Code because there's 20 Q Let's backtrack for a second. I didn't ask
21 different authors that create the various laws and then 21 you at the start of the deposition. What do you do for
22 down the road there's another author that lays 22 a living?
23 something new on top of old law so I think it would be 23 A I'm a special agent in charge for the
24 a difficult issue to name one person for all three of 24 Department of Justice and then within the Department of
25 those or even one of those programs. 25 Justice, I work within the Bureau of Firearms. To
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1 extend on that a little bit, I supervise teams of 1 carry process and if I say, "CCW," I'm referring to a
2 special agents that disarm prohibitive people. We 2 carry concealed weapon permit or process if you want to
3 investigate firearms dealers if there's an allegation 3 know.
4 of wrongdoing. We will monitor gun shows to make sure 4 So DOJ's role in the overall statewide
5 that only legal activity is occurring there. 5 scheme if you will is to review the eligibility of an
6 THE REPORTER: "To make sure that --" 6 applicant that might be from let's say Fresno
7 THE WITNESS: -- only legal activity is 7 Sheriff's Department and they've applied down there.
8 occurring at the gun shows. 8 We would check out their eligibility to determine if
9 THE REPORTER: Okay. 9 they have the legal means to possess and you know
10 THE WITNESS: And I also have a team of 10 carry firearms. We will let the Sheriff's Department
11 analysts that prepare regulations that are firearms 11 know if they passed or they failed and then if the
12 related regulations for the Bureau of Firearms and I 12 Sheriff's Department in my example approves them for
13 have some analysts that help prepare investigative 13 carrying one or more weapons the Sheriff's Department
14 packages for the agents that again go out and disarm 14 will let us know which weapons those are and they
15 folks and whatnot. 15 will update a database called the "Automated Firearms
16 BY MR. ROBINSON: 16 System." And let's say there were a Glock handgun,
17 Q Okay. 17 G-L-O-C-K, and that is the only weapon, we will
18 A I have testified in front of the Legislature 18 update the Automated Firearms System which I may
19 multiple times on various technical matters, assault 19 abbreviate down to AFS for the rest of the day. We
20 weapons and whatnot, things like that. 20 would put a notation with AFS with "CCW" at the top
21 Q Okay. As part of your role within the 21 of that entry. It will information on that
22 Department of Justice do you enforce the concealed 22 particular Glock linking it to --
23 carry statutes? 23 THE REPORTER: "It will have the
24 A Personally, we have made arrests. For 24 information --"
25 example, during a gun show investigation we may 25 THE WITNESS: -- related to that particular
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1 encounter a person that's illegally carrying a firearm 1 Glock handgun and then it will link that weapon to
2 during a traffic stop or something like that. We may 2 the person to in a sense give a law enforcement
3 have made a stop on them with the assistance of a local 3 officer that somehow becomes involved with a traffic
4 agency and we've determined they have a weapon in the 4 stop for example like the example I give, they can
5 car and -- in that sense, yes, we do have that role. 5 run the serial number on the weapon to see if there's
6 The Department, when you say, "You," I'm 6 a permitted person linked to a particular weapon
7 going to ask for you to clarify what "You" means. 7 involved in a law enforcement action.
8 Q It's a fair clarification. In your personal 8 BY MR. ROBINSON:
9 role within the Department of Justice do you -- strike 9 Q Does the Automated Firearms System keep track
10 that. Have you ever or have you supervised anyone who 10 of people who don't -- who apply for concealed carry
11 has made arrests under a concealed carry statute? 11 permits but are not approved?
12 A Yes, I have. 12 A No.
13 Q Okay. In doing so do you have an 13 Q Okay. As far as you're aware -- let me step
14 understanding of what the concealed carry statutes 14 back. Has the DOJ issued any rules or regulations
15 prohibit? 15 about the granting or denial of concealed carry
16 A Yes. 16 permits?
17 Q What do they prohibit? 17 A Not to my knowledge. That's for the most
18 A They prohibit the in a sense the unpermitted 18 part left up to the local agency and we are in a sense
19 carry of firearms without having a permit from the 19 a pass-through for that data to get into AFS and if for
20 local agency that has that jurisdiction to issue the 20 some reason there's a revocation of a CCW permit, we
21 permit for that area. It might be -- generally it's 21 will pull that out of AFS for the agency, whoever
22 the sheriff, sometimes police chiefs, kind of farm that 22 notified us --
23 duty out to the sheriffs and sometimes the police 23 THE REPORTER: "We will pull that out --"
24 chiefs themselves will issue that. DOJ and the Bureau 24 THE WITNESS: -- of the AFS for that agency
25 of Firearms has a small role in the overall concealed 25 that made the notification to us.
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1 THE REPORTER: Thank you. 1 sense a meter about every single county. San Mateo, I
2 THE WITNESS: Yeah. 2 don't have any personal knowledge about. In general,
3 BY MR. ROBINSON: 3 let's say Los Angeles and San Francisco are two of the
4 Q Are you aware of any statistic on how 4 more strict. I live in the Sacramento County area.
5 frequently the permits are granted; the concealed carry 5 Sacramento does issue them, El Dorado does issue them.
6 permits? 6 That kind of a -- I can give you really some general
7 A Only in general terms. I know that some 7 terms but I don't have really personal in-depth
8 counties have a looser process and some counties are 8 knowledge about the sheriffs or other law enforcement
9 much more strict. 9 officials that issue for their cities or counties
10 Q How about LA County? 10 beyond a general sense.
11 A What's your question about LA County? 11 Q Understood. I asked you earlier if there
12 Q Is it looser or more strict? 12 were DOJ regulations about granting or denying the
13 A I believe -- 13 permits. Do you know if there are any statewide
14 MS. SKELLY: -- objection; than what? 14 regulations or guidelines other than what's written in
15 MR. ROBINSON: Could we read back -- let 15 the statute?
16 me actually just rephrase it. 16 A Other than what's in the statute? I can't
17 BY MR. ROBINSON: 17 think of anything off the top of my head. There's
18 Q Is LA County one of the more, more or less 18 going to be some I believe some fee structures, that
19 restrictive counties in granting concealed carry 19 type of thing, because there's a fingerprinting process
20 permits? 20 as part of the overall scheme. There may be some CCW
21 MS. SKELLY: Counsel, what is the relevance 21 in a sense fees that are standardized statewide that we
22 of CCW permits in LA County to this case? 22 as the DOJ might get involved with but it's not
23 MR. ROBINSON: I'm not going to engage in 23 actually the Bureau so much. There's a Division of
24 that. If you want to instruct him -- you're welcome 24 Criminal Justice Information Services. They get the
25 to instruct him but it's within the scope of what 25 fingerprint fee I believe and we process the CCW
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1 we've asked for. It's a challenge to -- we're 1 background check portion and whatnot. In a general
2 challenging the statute on Second Amendment grounds 2 sense the card itself has to be -- have some standard
3 among other reasons because there's no feasible way 3 features to it.
4 of carrying in places like LA County you -- 4 Q Okay. In terms of guidelines governing
5 THE REPORTER: "Where you --" 5 whether the permit should be granted or denied is that
6 MR. ROBINSON: -- cannot get a CCW permit. 6 -- are you aware of any statewide guidelines or
7 MS. SKELLY: Okay. I will just note for the 7 regulations on that issue?
8 record then if you continue your questions that all 8 A What I can say to that point is that
9 of the facts of this case take place in Northern 9 California is a may issue state. Some states are shall
10 California in the Menlo Park area and there are no 10 issue. The way I understood that to be about is if
11 facts regarding this case that take place in Los 11 you're a may issue state the individual sheriffs or
12 Angeles. Go ahead. 12 otherwise law enforcement officers that are involved in
13 THE WITNESS: Your question I believe, was 13 that process, it's more I guess open to interpretation
14 Los Angeles County stricter or looser in terms of the 14 for those officials. If a state is a shall issue
15 58 counties as a whole -- 15 state, generally if you can pass a background check
16 MR. ROBINSON: Correct. 16 you're probably going to get a CCW permit in those
17 THE WITNESS: Is that correct? 17 states. California in a sense has I don't know what
18 MR. ROBINSON: Yes. 18 the word would be but the may issue is the way it's
19 THE WITNESS: Based on my understanding, 19 written in the Penal Code.
20 Los Angeles County is one of the more strict 20 Q So the decision about whether to issue the
21 counties. 21 permit or not issue the permit is made by the local law
22 BY MR. ROBINSON: 22 enforcement authority, right?
23 Q Where does San Mateo County fall within that 23 A Yes.
24 particular document? 24 Q Are there any statewide guidelines or
25 A I don't know that I actually have a in a 25 regulations that govern the local authority in making a
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1 decision about whether to grant or deny the permit 1 permits or something like that. There's a
2 other than being may issue? 2 possibility that we aren't exactly word-for-word so I
3 A If we, what I would say is that if we gave 3 don't know if you would view that as an opinion per
4 them a determination that a person was a prohibitive 4 se but you know made reference to the Penal Code
5 person and they can't have guns, that is an 5 exactly or some summarization so I just want to point
6 over-arching sort of umbrella clause. I can't imagine 6 that out first. There could be something there on
7 an agency providing a CCW permit for someone that we 7 the website that isn't exactly word-for-word from the
8 properly informed the agency that they shouldn't have 8 Penal Code.
9 guns at all. That would be sort of a loose general 9 BY MR. ROBINSON:
10 thing but there are -- I want to say there's a recent 10 Q Have you testified previously in any cases,
11 change to the law or at least an attempt with a bill 11 lawsuits, challenging either the concealed carry or the
12 that had something to do with the ability of the agency 12 open carry statutes?
13 to charge fees based on the cost of completing the 13 A No.
14 application process on the county or city level and 14 Q Have you testified in other cases involving
15 that's not something that we get involved with so I 15 the California firearms' statutes in general?
16 don't -- I didn't really pay too much attention to the 16 A Yes.
17 city or county costs that might be charged to the 17 Q Okay. Which, just generally, which aspects
18 person. In general, that's a recent change or an 18 were being challenged?
19 attempted change to that area of your question. 19 A So the Parkwood case, that dealt with the
20 Q So putting aside fees and costs, and putting 20 definition of handgun ammunition. Another lawsuit was
21 aside the DOJ notifying the local authority that a 21 the Sylvester lawsuit. That dealt with the 10-day
22 person is prohibited from carrying a handgun or a 22 waiting period that Californians have to go through
23 firearm, are there any statewide regulations or 23 during the firearms' purchasing and acquisition
24 guidelines that govern the local law enforcement agency 24 process. Let me think here. I think the Duncan
25 decision about whether to grant or deny conceal to 25 lawsuit, D-U-N-C-A-N, that one dealt with assault
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1 carry permit? 1 weapons, and perhaps Villanueva, I believe that one was
2 A Not to my knowledge. 2 large cap mags or large capacity mags.
3 Q Going back to topic four in Exhibit One. 3 Q Was that the one in San Diego?
4 A (Witness reviewed document.) 4 A Honestly, there's been a lot. I don't recall
5 Q I want to make sure I understood your 5 the location in the sense of where the Plaintiffs were
6 testimony before. Does the Attorney General have an 6 from necessarily. I think Sylvester was from maybe
7 official interpretation of the concealed carry statutes 7 Kings County or Fresno perhaps but there's often
8 that you're aware of? 8 multiple Plaintiffs involved and they're from all over
9 A As I said, the Peruta case may still be out 9 California.
10 there. There may be something relevant to your 10 Q Let's go on to topic five on Exhibit One.
11 question there. I was not a part to that in any way. 11 A (Witness reviewed document.)
12 Q All right. Other than the position taken in 12 Q Are you prepared to testify today about the
13 the Peruta case are you aware of the Attorney General 13 enforcement of the concealed carry statutes?
14 having any formal or official interpretation of the 14 A To the extent of my personal knowledge, I can
15 concealed carry statute? 15 attempt to, if you have specific questions that I can
16 A Not that I can recall where we've put 16 answer.
17 something out except through maybe something on our 17 Q In general terms what did you do to prepare
18 website perhaps if you wanted to look at that as some 18 for your deposition today?
19 type of interpretation. Other than us you know pretty 19 A Well, I reviewed this document, the you know,
20 much reprinting the Penal Code word-for-word -- 20 attachment one, you know, which is part of Exhibit One.
21 THE REPORTER: "Other than us reprinting the 21 I reviewed relevant Penal Codes that dealt with open
22 Penal Code --" 22 carry, concealed carry, those kinds of things. In
23 THE WITNESS: -- word-for-word, there may be 23 general, the Dangerous Weapons Control Act is an area
24 some summarizations for example. We have a page on 24 that I, because of my job, I have to operate in that
25 our website that might deal with concealed weapons 25 area of the Penal Code quite a bit so I'm always kind
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1 of bouncing around in that area of the Penal Code so 1 we issue out a bulletin to law enforcement, and gun
2 various sections of that part of the Penal Code. 2 dealers, et cetera, that deals with recent changes in
3 Q So I have that you reviewed the depo notice, 3 legislation and it's considered an information
4 you reviewed the Penal Codes, you are familiar with the 4 bulletin. I reviewed the 2018 version of that because
5 Dangerous Weapons Control Act as part of your work. 5 it dealt with things that happened usually a couple
6 Did you do anything else to prepare for the 6 years prior. We always remind people of the really
7 deposition? 7 fresh stuff and then the stuff that might have happened
8 A Let me think here. Have conversation with 8 a year before that had some kind of a roll-out in the
9 Counsel about how this process might go. We had some 9 year just prior. There's often a little bit of
10 scheduling conversations. I think last week there was 10 developed communication at some point so I reviewed
11 a discussion that this event today may get moved to 11 that document and there's a document on our website
12 April or May so we had discussions about that. We had 12 that deals with just California laws in general, kind
13 one or two meetings I'd say about this particular 13 of a -- it's a 2016 document I think. That's probably
14 lawsuit and this -- we discussed various aspects of 14 the most current one that's on our website, we've had
15 attachment one in the items bulleted out here, one 15 staffing issues so it's not been updated recently, and
16 through I think it's twenty. 16 I believe there's a -- there's a page that's called the
17 Q Before you go on, when you're talking about 17 "Forms and Publications" page so I glanced through that
18 "Meetings," do you mean meetings with Counsel? 18 section of our website just kind of reading off the
19 A Yes. 19 titles refamiliarizing myself about the various forms
20 Q Okay. So you had meetings with Counsel. Did 20 that we have. I don't know that I polked around on the
21 you have meetings with anyone else regarding the 21 actual URL's that would take you directly to the forms
22 deposition? 22 other than the entertainment firearms permit.
23 A Meetings, no. 23 I don't think I looked at the CC -- if
24 Q Did you have communications with people other 24 there's a CCW form, I don't remember looking directly
25 than Counsel regarding the deposition? 25 at that but I did look at the entertainment firearms
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1 A I had a phone call with a person that is in a 1 form and it's not normal reading. It's not one that
2 sense in charge of a unit that handles entertainment 2 really touches on the enforcement side so much
3 firearms permits and then I asked a question with a 3 Q Okay. Do we now have all of the things that
4 different person regarding the location of those 4 you've done to prepare for the deposition or are there
5 persons, if they're are on the centralized list of arms 5 additional things?
6 dealers or there's an exempt list of dealers. I asked 6 A I believe that's it and if I -- if I think of
7 for clarification basically because there's perhaps 7 something else I'll mention it if that's all right.
8 1,800 normal dealers that are listed on the centralized 8 Q Okay. That works for me. So I don't want to
9 list and then there's a few smaller, I won't say 9 go into the substance of your discussions with Counsel.
10 smaller, there's a much smaller number of exempted 10 Did any of those discussions give you substantive
11 dealers that don't actually sell guns to the public for 11 information that's going to form the basis of your
12 example and I wondered if there were any overlap of 12 testimony about the topics in the depo notice?
13 those entities that had any kind of arms permits and if 13 MS. SKELLY: Objection; invades the
14 they were exclusive to the centralized list or if they 14 attorney/client privilege.
15 were on the exempted list or kind of a mixture of both. 15 MR. ROBINSON: Well, to the extent the PMQ
16 Q Okay. So I just want to go through the list 16 witness or the 30(b)(6) is prepared by being given
17 of what we've talked about and make sure that we get 17 information from Counsel, our position is that it's
18 everything that you've done to prepare for the 18 non-privileged, it is the basis for 30(b)(6)
19 deposition. So we have you reviewed the Notice, you 19 testimony, so I'm -- I will ask the question again
20 reviewed the Penal Code, you are familiar with the 20 and if you want to instruct him, we can address it as
21 Dangerous Weapons Control Act, you had a number of 21 needed.
22 conversations with Counsel, you had two conversations 22 BY MR. ROBINSON:
23 regarding entertainment firearms permits. Can you 23 Q Were you given any substantive information
24 recall doing anything else to prepare? 24 from Counsel that forms the basis for any of your
25 A I believe I've reviewed the -- so each year 25 testimony on the topics of the deposition notice?
Page 30 Page 32
1 MS. SKELLY: And would you just explain, 1 Q All right. Are you prepared to testify today
2 "Substantive?" 2 about the enactment of the open carry statutes?
3 BY MR. ROBINSON: 3 A On a limited sense but I have a very similar
4 Q Information that you are going to use to 4 answer to what I described as the possible best source
5 testify on the topics that we've identified in the 5 of information would be one through three because the
6 deposition notice. 6 same process would have held various Legislatures ran
7 MS. SKELLY: So for example giving him a 7 various bills over time that caused fresh Penal Code to
8 copy of the documents we produced -- 8 be created or alterations to exist in Penal Code and
9 MR. ROBINSON: Sure. 9 then the various Public Safety Committees would
10 MS. SKELLY: -- would you consider that 10 potentially have the best source of knowledge about
11 substantive? 11 various current Penal Code as exists now. I am aware
12 MR. ROBINSON: Can we go off the record for 12 that there are open carry statutes in a sense and I
13 a second? 13 have some general sense on how for example a law
14 THE VIDEOGRAPHER: The time is 11:13 A.M. 14 enforcement officer may encounter someone that's
15 We're off the record. 15 involved with potentially an open carry situation and I
16 (Discussion off the record) 16 might be able to contrast that to a concealed weapon
17 THE VIDEOGRAPHER: The time is 11:15 A.M. 17 both permitted and unpermitted scenario.
18 We're on the record. 18 Q All right, understood. How does that relate
19 MR. ROBINSON: So we've had a discussion off 19 to the enactment of the statutes, the open carry
20 the record. Counsel has represented that she did not 20 statutes, if you know?
21 provide Mr. Graham with information for answers to 21 A Generally, the Legislature is reactive so if
22 the questions that are going to be asked at the 22 there's something that happens somewhere in California
23 deposition so based on that representation I'm not 23 that the Legislature considers a concern whether it's a
24 going to ask any additional questions about the 24 public safety matter or some other issue of concern for
25 discussions with Counsel. 25 them they will generally have some Legislative
Page 31 Page 33
1 MS. SKELLY: But I don't want you to put on 1 activity. Fairly recently, at least in my career,
2 the record that I gave him a copy of the Complaint, 2 there's been activity on the open carry front.
3 some depo transcripts, things like that, things that 3 Initially there was sort of I guess a ban of open carry
4 are part of the litigation 4 handguns and then eventually there was I guess a
5 MR. ROBINSON: That's fair enough. 5 restriction placed upon in general the open carry of
6 MS. SKELLY: Okay and so he has seen a copy 6 long guns except for some exceptional scenarios that
7 of the Complaint. When you asked him, "What did you 7 were lined out in various Penal Codes. The Bureau
8 do to prepare for the depo," he has seen a copy of 8 isn't really involved -- the Bureau and/or the
9 the Complaint and -- 9 Department isn't really involved in contacting people
10 MR. ROBINSON: Okay. 10 that are involved in open carry activities. That's
11 MS. SKELLY: -- and I think he has skimmed 11 more of what I would say is like a first responder
12 some of the deposition transcripts. 12 scenario where there's a police department or a
13 MR. ROBINSON: Is that true? 13 sheriff's department that might get a 911 call or
14 THE WITNESS: Yes. 14 something. The Bureau of Firearms and/or the
15 BY MR. ROBINSON: 15 Department of Justice is definitely like a secondary
16 Q Okay. With the addition of those two items 16 scenario. We're not out there answering 911 calls if
17 do we have now an exhaustive list of what you've done? 17 that was an issue for someone that had concerns about
18 A To the best of my knowledge, yes. 18 someone carrying a gun.
19 Q Let's go on to topic six of the deposition 19 Q So the question is how does the difference
20 notice. 20 between open carry scenarios versus concealed carry
21 A (Witness reviewed document.) 21 scenarios relate to the enactment of the open carry
22 Q And we can actually address six, seven, and 22 statutes?
23 eight. All of those topics relate to the enactment of 23 A And what I can say is that the -- there's
24 the open carry statutes, correct? 24 been I guess a progression of change if you will in the
25 A That's correct. 25 Penal Codes that deal with open carry fairly recently,
Page 34 Page 36
1 within the last ten years I'd say, and I would say for 1 the Legislative body as your source for that kind of
2 the most part the concealed carry stuff has been fairly 2 an answer.
3 static and the open carry has been restricted a little 3 BY MR. ROBINSON:
4 bit and that's what I recall from various bill 4 Q Okay. Do you know if any of the participants
5 activity. And in fact one of the Bureau of Firearms 5 in open carry rallies or meetups in California have
6 Bulletin I referenced earlier, one of the bills in that 6 ever been convicted of any crimes related to those
7 document, talks about open carry activity and it was 7 activities?
8 sort of a notice to the law enforcement members that 8 A I have no knowledge if anyone has been
9 would be reading it and just giving a couple sentence 9 arrested or convicted for illegal open carry.
10 heads-up on this particular bill. 10 Q Are you aware of any instances of any firearm
11 Q Do you recall what the bill was generally? 11 being fired in connection with any of the open carry
12 A I don't remember the number of the bill or 12 meetups or rallies and fired either by the people
13 even which house it came from so -- 13 openly carrying or bystanders or law enforcement?
14 Q What was the general substance of the bill? 14 A Not to my knowledge.
15 A If I recall it was, well, in the past, long 15 Q But let me clean up the question. Are you
16 gun open carry was in a sense available and I believe 16 aware of any person either involved in an open carry
17 this most recent activity restricted that beyond where 17 rally, a bystander during an open carry rally or law
18 it was in the past. 18 enforcement responding to an open carry rally ever
19 Q Why did the Legislature enact the open carry 19 firing a firearm in connection with those activities?
20 ban? 20 A Not to my knowledge.
21 MS. SKELLY: Objection; the deponent is not 21 Q Does the Department of Justice have an
22 authorized to speak on behalf of the Legislature. 22 official interpretation of the open carry statute?
23 The Legislative history speaks for itself. 23 A I don't believe we've, at least the Bureau
24 BY MR. ROBINSON: 24 where I work, I don't think we've been asked to help
25 Q You can go ahead and answer. 25 provide some kind of legal opinion if that's what
Page 35 Page 37
1 A Yeah, my answer would just be as I said a few 1 you're getting at; is that -- could you clarify?
2 minutes ago this area would probably be best addressed, 2 Q Let me ask you a foundational question.
3 the questions, to the Public Safety Committees at the 3 A Okay.
4 Legislature or perhaps Judicial Counsel if that's where 4 Q So in the Executive branch of Government the
5 they deferred to. There's typically within the website 5 person who issues formal opinions of statutes is the
6 which I reference as "LegInfo.com," that's sort of 6 Attorney General, correct?
7 slang for -- the California Legislature has a website 7 MS. SKELLY: Objection; that slightly
8 that maintains historical Legislative info and you can 8 mischaracterizes what the Attorney General does. The
9 look at the Legislative history of an activity as those 9 Attorney General can issue legal opinions but as we
10 bills pass through committees or documents created by 10 advised you the Office of the Attorney General and
11 the committees and that's where I would go if I was 11 the reason I use that term rather than Attorney
12 seeking that information and it's public. It's open to 12 General Becerra is that I don't want to limit my
13 the public. 13 response to the current Attorney General.
14 Q Okay. Are you familiar with the open carry 14 The Attorney General has not issued a legal
15 movement in California? 15 opinion on the open carry concealed statute.
16 A I've heard that term used, yes. 16 MR. ROBINSON: So that was -- that was my
17 Q Are you familiar with groups of people 17 question.
18 getting together to openly carry firearms? 18 BY MR. ROBINSON:
19 A Yes. 19 Q Has the Attorney General issued an opinion on
20 Q Did that what I'm calling the "Open carry 20 the open carry statutes to your knowledge?
21 movement" have anything to do with the enactment of the 21 A Not to my knowledge and I believe the Bureau
22 open carry statute? 22 might be closed if there was something like that but I
23 MS. SKELLY: Objection; the deponent is not 23 don't know -- I don't know of any activity, I don't
24 authorized to speak on behalf of the Legislature. 24 know if the question has been posed to the opinions
25 THE WITNESS: And I would refer again back to 25 unit unless it's been so fresh that we've been made
Page 38 Page 40
1 aware of it. I've been in the Bureau for about 17 or 1 Department of the Attorney General's office on that.
2 18 years and I've never heard of anybody asking us from 2 BY MR. ROBINSON:
3 a formal legal opinion and usually we can give an 3 Q Are there any regulations that you're aware
4 opinion to certain elected officials. I think it's 4 of other than related to fees and requirements for the
5 outlined who we can provide those to in the Government 5 actual permit cards are there any regulations relating
6 Code but I don't know the specific Government Code. 6 to the concealed carry statutes?
7 Q In the absence of a legal opinion by the 7 A If there are it would be the California Code
8 Attorney General or the Department of Justice how do 8 of Regulations Title 11, Division 5, and then there's
9 the local Governments, local prosecutors, figure out 9 various chapters that break out sub-areas of that
10 what the statute means? 10 Dangerous Weapons Control Law that I mentioned.
11 MS. SKELLY: Objection; the deponent is not 11 Chapter 39 and 40, those are assault weapons-related
12 authorized to speak on behalf of any local law 12 regulations and then we have them broken down by
13 enforcement agency. 13 subject matter. If there are CCW-related regs they
14 MS. RAUCH: It's also vague, overbroad, calls 14 would be towards the top of that list so let's say
15 for speculation and compound. 15 maybe the top half of those chapters that are broken
16 MR. ROBINSON: Let me rephrase the question. 16 out.
17 BY MR. ROBINSON: 17 Q Okay. It's helpful to know where we can find
18 Q In the absence of a legal opinion from the 18 them. Are you aware of any?
19 Attorney General or the Department of Justice who is 19 A The ones that I mentioned earlier that I can
20 responsible for interpreting the open carry and 20 recall that deal with fees because we have some
21 concealed carry section? 21 documented activity in those regulations that talk
22 MS. SKELLY: Objection; calls for 22 about various fees for fingerprinting or processing
23 speculation. 23 costs, dealer record of sale fees. It's very likely
24 THE WITNESS: My answer would be if there was 24 that there's some mention of how much the Department
25 an investigation let's say by a local agency that had 25 might charge for doing the background check for a CCW
Page 39 Page 41
1 some concern and there was no opinion which in this 1 or something like that.
2 case I don't believe there is the DA's office might 2 Q So other than fees are you aware of any
3 have to figure that out; their attorneys there. They 3 regulations relating to concealed to carry?
4 may reference the previously mentioned legal analysis 4 A Not off the top of my head.
5 that are sort of attached to all the bills that might 5 Q Are you aware of any regulations related to
6 touch on the various laws as they have been approved 6 open carry?
7 over time. The website analysis there, sometimes 7 A For that I would say that's a for sure no.
8 there's statements of intent that are in the Penal 8 Q Let's go on to item ten on the list of
9 Code or possibly in some summarization statements in 9 topics --
10 these Legislative analysis documents that are 10 A (Witness reviewed document.)
11 attached to the Legislative website that I referenced 11 Q "-- Communications with representatives of
12 earlier. 12 the City of Menlo Park." Are you aware of any such
13 BY MR. ROBINSON: 13 communications?
14 Q In the absence of an official opinion -- 14 A It's possible you know there's been -- you
15 strike that. In the absence of a legal opinion by the 15 say, "Communications." Do you mean written? Do you
16 Attorney General or the Department of Justice is it up 16 mean verbal? What are you asking for?
17 to the local agencies to interpret the statutes 17 Q Just whether you're aware of any
18 themselves? 18 communications during the process of enactment of the
19 MS. SKELLY: Objection; calls for 19 open carry statutes with the City of Menlo Park or New
20 speculation, also calls for a legal opinion. 20 Enterprise Associates related to those statutes?
21 THE WITNESS: The Penal Code says what it 21 MS. RAUCH: Objection; vague, overbroad,
22 says. Absent some regulation or something like that, 22 compound, calls for speculation.
23 I would assume that the DA's offices would make a 23 THE WITNESS: Depending on timing it's
24 call on something like that but it's, again, it's my 24 possible that the City in some way reached out
25 assumption and it's not formal opinion from the 25 because as I've said the open carry laws have dealt
Page 42 Page 44
1 with handguns first and then long guns depending how 1 Q So the question, as I understand it, it's a
2 far this goes back. What's your I guess time range 2 Legislative issue, the enactment, I get that, so my
3 you're asking? 3 only question is did you do anything specifically to
4 BY MR. ROBINSON: 4 prepare on topic ten for the deposition?
5 Q So the first -- when was the first -- strike 5 A I mean other than discussing maybe the
6 that. Aside from the ban on openly carrying a loaded 6 wording with Counsel of this question because it's
7 handgun, when was the first open carry statute enacted? 7 fairly broad, I don't recall doing anything as far as
8 A I don't know the dates of the enactment. 8 having phone calls with a particular DOJ employee or
9 Q Well, let's focus on the time period between 9 looking at a document because it talks about
10 2010 and 2013. Are you aware of any communications 10 communications. It's not something I could reference
11 between the City of Menlo Park and the Legislature 11 in our information bulletin for example. I don't know
12 about the open carry ban? 12 that I really have an affirmative "I did this" or "I
13 MS. RAUCH: Same objections. 13 did that" regarding number ten because it's fairly open
14 MS. SKELLY: I join in the objection. 14 ended and again, we don't have -- I can -- I don't
15 THE WITNESS: So I don't have access to 15 recall having any emails with New Enterprise involving
16 Legislative emails to the City for example or Chief 16 me; Menlo Park. We deal with various City agencies you
17 Bertini or anything like that. If there were 17 know day-to-day, week-to-week, but regarding open carry
18 communications between the Legislature and the City 18 issues, nothing really rings a bell.
19 or the Chief, I'm not aware of them as I sit here, so 19 Q Okay. Did you ask anyone for communications
20 I hope that was responsive to your question. 20 that might be responsive to topic ten?
21 BY MR. ROBINSON: 21 A Typically those types of things, if there's
22 Q I think so. I'm understanding that the 22 a, some research to do with a, it's a lawsuit or
23 answer to the question is you wouldn't be aware of 23 something like that then maybe an email and a "Send"
24 those communications because it's not within your 24 search done by various people or it could be, I don't
25 scope? 25 know what you would call it but liked a Department-wide
Page 43 Page 45
1 A Yes. I don't have access to -- other than 1 search or something like that. I personally -- I don't
2 maybe my emails or something I don't have access to 2 think I have anything like that and if I type into my
3 outside entity emails. 3 email browser, "Open carry," I -- we only go back
4 Q Did you do anything to prepare for the 4 generally like 90 days. I'm not going to have probably
5 deposition on topic ten? 5 much in there depending on when I get it. There's a
6 A (Witness reviewed document.) 6 small chance that I might have a Counsel-related email
7 MS. SKELLY: Objection; "Topic ten" is 7 because it somehow tied into that or if it pinged off
8 actually quite vague and what we interpret it as 8 of those woods but --
9 referring to were the email communications between 9 Q Okay. So let me just try to interrupt you.
10 Chief Bertini and our office regarding Mr. Zeleny's 10 A Sure.
11 entertainment firearm permit 11 Q And I appreciate you trying to answer the
12 MR. ROBINSON: Sure, so that's a separate 12 question. I'm going to have to move to strike it as
13 topic. 13 nonresponsive. My only question is did you do
14 BY MR. ROBINSON: 14 anything? Did you do anything to try to find
15 Q In any event, let me just ask you if you did 15 communications that would be responsive to topic ten?
16 anything to prepare for topic ten? 16 MS. SKELLY: Counsel, this is a Rule 30(b)
17 A So I mean, I would say the open carry -- we 17 deposition so other people may have done things and
18 don't issue -- we don't have a form for open carry for 18 provided those things. We have had communications
19 example. We don't have regulations. This type of 19 with --
20 question is, while it deals with firearms' matters, 20 THE REPORTER: Just a little louder please.
21 it's not really something that the Department gets 21 MS. SKELLY: Sorry. Chief Bertini did
22 involved in if that makes sense like the open carry is 22 contact the DOJ regarding Mr. Zeleny's entertainment
23 a firearms' matter but we don't issue a permit, we 23 firearms permit. Mr. Graham has seen those emails
24 don't approve or deny anything regarding that if that 24 and that's how we interpreted this category.
25 is helpful. 25 MR. ROBINSON: I appreciate that and I'm only
Page 46 Page 48
1 asking Mr. Graham whether he did anything to locate 1 about -- it was Chief Bertini reaching out to a manager
2 communications responsive to the request. We can get 2 and then ultimately that manager connecting Chief
3 the other things later but let's focus on the 3 Bertini to a different DOJ employee that has to do with
4 question that's being asked. 4 issuing the permits, the entertainment firearms
5 MS. SKELLY: Well, Counsel, if I may, this 5 permits, and it was sort of a -- a little bit of back
6 is a topic for testimony. We don't have a document 6 and forth, "This is the person you need to see. Okay,
7 request here -- 7 thank you," a little bit of light you know common sense
8 MR. ROBINSON: Okay. 8 banter that would go on in a sort of a business-like
9 MS. SKELLY: -- and you're saying "Locate --" 9 email.
10 MR. ROBINSON: All right, Counsel, you know, 10 Q Do you know what the purpose was of the
11 I'm trying not to be rude here and you know you've 11 communication?
12 said a number of things that weren't -- objection to 12 MS. SKELLY: Objection; vague, whose
13 either the form of the question or to privileged 13 conversations?
14 matters. I'm going to have to ask that further 14 MS. RAUCH: Join.
15 colloquy, I'm going to have to stop. It's 15 BY MR. ROBINSON:
16 disruptive. I'm trying to ask a simple question 16 Q You can go ahead and answer the question.
17 about whether -- what the witness did to prepare. I 17 A The -- it appeared to have to do with the
18 don't need minutes of colloquy following a question, 18 status of the entertainment firearm permit involving
19 and frankly would appreciate responsive answer to the 19 Mr. Zeleny. I'm trying to pronounce it correctly.
20 question, no offense, Sir. 20 Q Okay. So why don't -- I'm going to go ahead
21 BY MR. ROBINSON: 21 and just mark the first of the communications.
22 Q Did you do anything to try to locate 22 (Document described in the Index
23 communications? 23 was marked as Plaintiff's Exhibit
24 A So this -- it is our understanding that this 24 Two for Identification.)
25 lawsuit was filed around 2017. At the time when we get 25 ///
Page 47 Page 49
1 noticed on various things we do standard activities 1 BY MR. ROBINSON:
2 which are search for let's say terms and sometimes on 2 Q I've marked as Exhibit Two a multiple-page
3 the back end they said that there might be like a 3 document. The first page is MP-500 at the bottom right
4 department-wide search. I don't recall what was done 4 and the last page looks like MP-504, correct?
5 on this specific matter two clusters ago probably at 5 A (Witness reviewed document.) Yes, your page
6 this point but I know my standard practice would be to 6 number references are correct; MP-500 through MP-504.
7 probably look up Menlo Park, New Enterprise Associates, 7 Q Is this one of the emails that you saw
8 open carry. At minimal, I would have queried my own 8 related to Mr. Bertini?
9 just stagnant emails that I have, I would have looked 9 A I may have seen this a couple of years ago
10 for things like that but again that's 2 1/2 years ago, 10 but I would say more recently it was more I don't know
11 if that's what you're asking. Recently, in the last 11 -- I don't remember pictures necessarily in the last
12 month or two I haven't done anything regarding number 12 couple months. If I saw them it would have been like
13 ten. 13 you know probably a couple years ago.
14 Q Have you been provided any communications 14 Q All right. Who is Elaine McGee?
15 between the City of Menlo Park and New Enterprise 15 A She's the, a manager, so this is manager
16 Associates and the Legislature relating to open carry? 16 basically so she has multiple units that she supervises
17 A I don't recall getting any activities between 17 and I think that's responsive.
18 the Legislature and those bodies that you just 18 Q Did you have any communications with Miss
19 mentioned. 19 McGee about her communications with Mr. Bertini in
20 Q You're aware of communications between the 20 connection with the deposition?
21 City of Menlo Park and the DOJ about the entertainment 21 A A couple years ago when this first came up
22 firearms permit? 22 with -- I guess the lawsuit issue came up, she asked
23 A Correct. 23 me, "Hey, what's -- what is this open carry thing that
24 Q What were those communications about? 24 you --" She was fairly new to the Bureau at that time,
25 A The one I attribute to the emails that I read 25 she came from a different division that had nothing to
Page 50 Page 52
1 do with firearms so I was kind of just saying, "Okay, 1 -- some kind of a protest and the agency was
2 there's concealed carry, there's open carry," so I was 2 concerned that weapons were being carried. I don't
3 explaining probably the differences between the two 3 recall at the time which weapons. I just remember
4 types of activities and she already was aware of the 4 the discussion of weapons. Let me think what else.
5 concealed weapons' process and whatnot but it was more 5 I don't really know if the entertainment firearms
6 of an educational or "This is what this -- the kind you 6 permit process or any of that stuff came up. I don't
7 have." Sometimes slang, I guess. Open carry might be 7 -- I don't really remember if he had a permit for
8 deemed as slang if you will. 8 example or not at the time. This was years ago,
9 Q Did that discussion relate to Mr. Zeleny; 9 several years ago.
10 your discussion with Miss McGee? 10 BY MR. ROBINSON:
11 A Yes, because open carry is a very rare topic 11 Q Who did you talk with if you recall?
12 at the Bureau of Firearms. We don't really have much 12 A (No audible response.)
13 reason to talk about that and yeah, so I believe that's 13 Q Let me rephrase that so it's clear. Who
14 responsive. 14 within the City of Menlo Park did you talk to about
15 Q Was the discussion you had with Miss McGee in 15 Mr. Zeleny?
16 connection with the materials that were being provided 16 A I don't know if I spoke to one or two
17 by Menlo Park? 17 individuals but I believe at least one of them was I
18 MS. RAUCH: Vague. 18 think at the time, Commander Bertini, and he's now I
19 THE WITNESS: Let me look at this real quick 19 guess a retired chief.
20 here. (Witness reviewed documents.) I mean it's 20 Q Did anyone affiliated with the City of Menlo
21 possible that she showed me these but I don't recall. 21 Park ask DOJ to take any action in connection with that
22 It's possible she asked me questions about the things 22 conversation?
23 in the picture. Looking at the item, I'm sorry, 23 MS. RAUCH: Vague; calls for speculation.
24 Exhibit Two, and then the page MP-000500, the date on 24 THE WITNESS: Action? Other than -- this is
25 there is 2016; September 14th, 2016, and then if I go 25 -- the scenario would have been, "Hey, this is what
Page 51 Page 53
1 into MP5-000501, this document I guess is from 2012 1 is happening on a public street" or something like
2 so it's quite a bit older so I'm -- I guess this 2 that and then us discussing, "This is the way we've
3 activity has been going on for a bit down there so, 3 always written the Penal Code that might apply," that
4 based on the dates here, so I probably discussed the 4 type of you know, conversation. I don't recall us
5 weapons in the pictures. That would be a normal 5 asking, "Hey, can you investigate this guy" or you
6 question from our non-sworn staff to go through you 6 know that type of a scenario. It was just sort of a
7 know, "This is this, this is this," kind of weapon, 7 discussion about "This is what's going on." We had
8 et cetera. 8 no sense -- I guess -- I didn't know who he was prior
9 BY MR. ROBINSON: 9 to the phone call that I was asked to give a call to
10 Q Were you familiar with Mr. Zeleny with Miss 10 Commander Bertini so it was sort of a learn-as-you-go
11 McGee? 11 on the phone call if that makes sense.
12 A Assuming this happened in 2016, I would say 12 BY MR. ROBINSON:
13 yes. If this happened in 2016, at some point, 2017, 13 Q Okay. At any point did anyone affiliated
14 yeah, but I don't know exactly when I became aware of 14 with the City of Menlo Park ask the DOJ to revoke
15 him if that's helpful. 15 Mr. Zeleny's entertainment firearms permit?
16 Q How did you first become aware of him? 16 A That, I don't know. It wasn't something that
17 A I'm trying to think here. I was asked to 17 I recall from the phone call that I had. I'll say this
18 call, I don't remember who it was -- a superior of mine 18 about the entertainment firearms permit process.
19 said, "Hey, can you call," I guess it must have been 19 There's only 300, 400 people that actually have these
20 Menlo Park back then, "And discuss an issue we're 20 and we've only revoked a very small number in the whole
21 having," so I did and Mr. Zeleny came up in the 21 length of time that we've had the authority to issue
22 conversation. 22 them and that's generally for somebody being a
23 Q What was the issue they were having? 23 prohibitive person. They've gotten one and then they
24 MS. RAUCH: Calls for speculation. 24 became a felon or they had a restraining order or some
25 THE WITNESS: It dealt with if I recall a 25 scenario like that and absent something like that
Page 54 Page 56
1 happening there's not really a mechanism for us to pull 1 vendor and there would be a 10-day wait and so forth,
2 back an entertainment firearms permit. There's an 2 and paperwork, you know heavy paperwork, being filled
3 application process and there's a revocation process if 3 out and so forth. This is -- the way it works is the
4 you become prohibitive. 4 person's able to do their film work. Maybe they're an
5 MS. SKELLY: Can you read the answer back 5 extra and holding a weapon in -- at the back of a scene
6 please? 6 or something and then at the end of the scene they can
7 MR. ROBINSON: Could we just go off the 7 hand the weapon back so they -- they're able to
8 record for -- 8 basically hand guns back and forth from the --
9 THE VIDEOGRAPHER: Yes. 9 MS. RAUCH: Wait, wait.
10 MR. ROBINSON: -- like three or four 10 THE WITNESS: They're able to hand guns back
11 minutes? 11 and forth from let's say a prop master's truck that's
12 THE VIDEOGRAPHER: The time is 11:51 A.M. 12 on site and the weapon is checked out to a particular
13 We're off the record. 13 person and then at the end of that particular scene
14 (Discussion off the record) 14 it would be given back or depending on how long the
15 THE VIDEOGRAPHER: Pressing record. The 15 scene is they might hold it for a period of time.
16 time is 11:55 A.M. and we're on the record. This 16 BY MR. ROBINSON:
17 will mark the end of media unit number one in the 17 Q Who gets the permit in that situation?
18 videotaped deposition of Blake Graham. The time is 18 A So the permit would be the person receiving
19 11:56 A.M. and we're off the record. 19 the weapon. The individual handing out the weapon like
20 (Recess taken) 20 a prop master scenario would be typically an employee
21 THE VIDEOGRAPHER: This marks the beginning 21 of a prop house which the prop houses generally have
22 of media unit number two in the videotaped deposition 22 dangerous weapons permits and/or Federal firearms
23 of Blake Graham. The time is 12:24 P.M. and we're on 23 licenses that are like a Type 0-1 which is a type of
24 the record. 24 Federal firearms license that would enable someone to
25 /// 25 be in the business of selling guns. There's a kind of
Page 55 Page 57
1 BY MR. ROBINSON: 1 a mixture of how the different businesses operate in
2 Q We're back on the record. You understand 2 California.
3 you're under the same oath? 3 Q And you said earlier there were about 300 or
4 A I do. 4 so people who have the permits?
5 Q Before we broke we were talking about 5 A It's close to 400, maybe 395, something like
6 Mr. Zeleny's entertainment firearm permit. 6 that.
7 A Yes. 7 Q So if you were making "Die Hard," the movie,
8 Q Did Mr. Zeleny have an entertainment firearm 8 in order to have a gun on the set of the movie, Bruce
9 permit? 9 Willis needs a firearms permit?
10 MS. RAUCH: Vague. 10 A That could be one, yeah, one interpretation
11 THE WITNESS: Yes, at one point. 11 from your hypothetical.
12 THE REPORTER: Sorry? 12 Q Are there other potential interpretations of
13 MS. RAUCH: Vague. 13 the statute?
14 THE REPORTER: Thank you. 14 A That's one there that if you know I've asked
15 THE WITNESS: I'll try to repeat my answer. 15 -- for example to try to respond to your question, I've
16 Yes, he did at one point. 16 been present during an inspection of a dangerous
17 BY MR. ROBINSON: 17 weapons permit holder that also has a Type 0-1 license
18 Q What is the purpose of an entertainment 18 and they use the process that I gave you which is
19 firearm permit? 19 there's a vehicle on site where there's a movie being
20 A So an entertainment firearm permit is going 20 filmed and i kind of went through them on various guns
21 to allow a person to be in a sense loaned firearms on a 21 on the walls and okay if I'm missing the -- I kind of
22 short-term basis while for example movies are being 22 just ran through the process for that particular
23 made; that type of thing. There are in a sense certain 23 location. We don't really have a ton of prop houses in
24 exemptions that it gives. During a normal loan per se 24 California. There's a lot of movies that we see made
25 you would have to do that type of transaction through a 25 in Southern California and it's a lot of the same
Page 58 Page 60
1 entities using the same guns over, and over, and over 1 "Informal --"
2 so if that makes any sense so -- it's a small number of 2 BY MR. ROBINSON:
3 prop houses who do pretty much all the movies in 3 Q Okay, let me ask you this. Other than the
4 California. There's a little bit of activity from 4 opinion that you're giving now in your deposition in
5 outside California but they would have to have a 5 this case are you familiar with the DOJ or the Attorney
6 dangerous weapons permit to come into California with 6 General's office ever giving an opinion about the
7 certain weapons. 7 meaning of that statute?
8 Q Does the prop house get an entertainment 8 MS. RAUCH: Vague and misstates testimony.
9 firearms permit? 9 THE WITNESS: I'm not aware of us, meaning
10 A They would have a dangerous weapons permit 10 the Department, giving some informal opinion about
11 because often they have machine guns and other you know 11 the statutes that deal with the entertainment
12 movie-worthy type of weapons whether it's an assault 12 firearms permits.
13 weapon or they may want to have a wide variety of 13 BY MR. ROBINSON:
14 weapons available for various movie types. 14 Q By "Department" you mean the Department of
15 Q Okay, but the people who -- so every actor 15 Justice?
16 who handles a gun in the filming of a movie needs an 16 A Correct.
17 entertainment firearms permit? 17 Q Are you aware of the Department of Justice
18 A If it's a real gun that would be a logical 18 giving any type of an opinion about the meaning of the
19 assumption. There's a lot of what are called in a 19 entertainment firearms statutes?
20 sense like fake guns where it really looks like a gun. 20 A It's possible during some Legislative hearing
21 Q Okay. So let's assume it's a real gun. 21 many years ago when the bill was going through the
22 A Okay. 22 Legislature it's possible we had some presence there at
23 Q Every actor who handles a real gun needs an 23 the time but I don't know if we did or didn't
24 entertainment firearms permit? 24 specifically.
25 A That's the way I would interpret it the way 25 Q Has the statute to your knowledge ever been
Page 59 Page 61
1 I've read the Penal Codes. 1 enforced in the way that you've described it here which
2 Q Okay. Have you ever -- has the Attorney 2 is requiring every actor who handles a real gun in a
3 General ever given a formal opinion on the 3 movie to have a permit?
4 interpretation of the statute that authorizes 4 MS. SKELLY: Objection; misstates the
5 entertainment firearms permits? 5 testimony.
6 A Not to my knowledge. We don't have, other 6 THE WITNESS: We work, I'll say this, we work
7 than the form that we have, we have a small number of 7 with the prop houses. They know about the process.
8 people that use that process and like I said, I do know 8 They get inspected by us. I can say that we have
9 that there's a pretty good chunk of weapons in the 9 them inspected and I'm not aware of the prop houses
10 movies when there's a gun, it's really not a gun, it's 10 being revoked for example for not following the law
11 a plastic object that is shaped like a gun. 11 so that there is that oversight if that makes sense
12 Q Okay. So I'm going to object and move to 12 BY MR. ROBINSON:
13 strike the answer as nonresponsive. My only question 13 Q When you say, "The prop house has been
14 was whether the Attorney General has issued an opinion 14 revoked," what do you mean by "Revoked?"
15 on the interpretation of the statute? 15 A So a prop house, if it has a dangerous
16 A Okay, I misunderstood your question and I'm 16 weapons permit, there's an inspection process where we
17 not aware of a formal opinion coming out from the 17 make sure that the weapons are accounted for. Some
18 Opinions Unit regarding the circumstances you've asked 18 forms that we have would be dangerous weapons in a
19 about. 19 sense activity forms to show that a particular weapon
20 Q All right. Has the Attorney General given an 20 was used on a particular event and it's sort of a
21 informal position or informal opinion on the 21 tracking of the weapons that are being used and maybe
22 interpretation of that statute? 22 there's a hundred guns let's say at a particular prop
23 MS. SKELLY: Objection; calls for 23 house which is a very small number. I'm just giving
24 speculation. 24 you the number. They might have eighty of those
25 THE WITNESS: I don't know what you mean by 25 weapons showing activity over the course of a 4-month
Page 62 Page 64
1 period. That's one type of thing where we'd be 1 deposition. I don't mind if you ask about it in
2 checking on. We would also be just checking on that 2 relation to Mr. Zeleny's, the permit that he had, but
3 they have a hundred guns and there's really a hundred 3 I feel like we're going quite far afield.
4 guns; they're not missing stuff. 4 BY MR. ROBINSON:
5 We would potentially, if they have a Type 5 Q Okay. Do the prop houses need an
6 0-1 license and that business also sells guns to 6 entertainment firearms permit?
7 members of the public, we would be checking those to 7 A They would themselves not need one but they
8 make sure that the dealer record of sale documents 8 would have the people that they interact with on set.
9 were done, that they were following all of the 10-day 9 They would be looking to see that the people that
10 wait rules, that they were actually doing sort of a 10 they're interacting with have those permits and they
11 side business of selling guns. Generally, a business 11 may have some other exemptions to the normal transfer
12 is not necessarily restricted on the number of 12 law that -- which is 27545 of the Penal Code. There
13 permits that they might have exposure to or want to 13 are some exemptions to that. There's other sort of
14 have in their business, their portfolio, if that 14 layered exemptions to 26500 which is the licensing
15 makes sense. 15 requirement, too.
16 Q When you say the "Prop house could be 16 Q When you inspect the prop houses what do you
17 revoked," do you mean they could have their dangerous 17 do to verify that they have only given real firearms to
18 weapons permit revoked? 18 people who have an entertainment firearms permit?
19 A That's one option. The other option might be 19 A The field reps that do the inspections, they
20 if they lose their centralized list status if they're 20 inspect the recordkeeping that is kept on site, they
21 found to be not following the rules, and laws, and 21 inspect the weapons that are on site and make sure that
22 regulations that surround their you know sales activity 22 the activity noted in their, we call them "Books"
23 if you will. The entertainment permit process is sort 23 basically, that their book has weapon in, weapon out,
24 of a tiny sliver of our whole regulatory scheme that we 24 and then there is appropriate activity showing of a
25 sort of overlook, oversee, and the dangerous weapons 25 particular weapon or a particular person, things like
Page 63 Page 65
1 permit is somewhat, there is some overlap there, 1 that.
2 meaning an entity that has dangerous weapons which are 2 Q When you -- have you ever participated
3 machine guns, short barrel rifles, short barrel 3 yourself in the inspection of these prop houses?
4 shotguns -- 4 A I've been present during an inspection by a
5 Q I'm sorry to interrupt you -- 5 field rep. I was there more as a -- it was sort of a
6 A Yeah. 6 learning event for me because the rarity of prop houses
7 Q -- but we're getting far afield of what my 7 coming up on cycle for their inspections doesn't happen
8 question was. My question was does "Revoke" mean 8 very often. I happened to be in Southern California
9 having the dangerous weapons permit revoked and I think 9 for another matter and they said, "Hey, by the way, do
10 you said that's one possibility. The other possibility 10 you want to come by and see this," and I said, "Sure,
11 is being removed from a central list -- 11 that sounds like something interesting," so I was
12 A Yes. 12 present for one several years ago.
13 Q -- is that correct? Are there any other 13 Q Okay. During that inspection did they check
14 meanings of "Revoked" in that context? 14 for entertainment firearms permits?
15 A Those are the two that come to mind right 15 A So as to what they checked on that day, it
16 now. 16 was a multiple day inspection, I was there for part of
17 Q Are the prop houses themselves required to 17 the day so I'm assuming that it did happen because
18 have an entertainment firearms permit? 18 that's part of what that type of an inspection would
19 MS. SKELLY: Objection; Counsel, where is 19 have been. It was a dangerous weapons permit
20 this line of questioning going? 20 inspection that happened to be a prop house that
21 MR. ROBINSON: I'm not going to respond to 21 happened also to have a normal license that a normal
22 colloquy. 22 gun store would have so it was sort of like a 1-stop
23 MS. SKELLY: It's not colloquy. It's a 23 shop with most of our possible permits that you could
24 question. The entertainment firearms permit process 24 see in one spot were all issued to this one place.
25 is not a topic within the 20 in the noticed 25 Q Why do you believe they would have conducted
Page 66 Page 68
1 an inspection of firearms, entertainment firearms 1 there's only like I said a small number of prop houses
2 permits? 2 in California.
3 A When they go to the locations they don't just 3 Q Do you know if checking the entertainment
4 do sort of a limited review in that sense. They may 4 firearms permits was on the list or not on the list or
5 only look at a certain percentage of the transactions. 5 you don't know?
6 Let's say it's a gun store that does 5,000 transactions 6 A As of right this second, it should have been,
7 a year. They might look at 500 documents but they're 7 but as I said, I was only there for one of the two days
8 going to look at all of the DROS activity so that means 8 and it was part of the day because I was in and out
9 Dealer Record of Sale. They're going to look at 9 somewhere else so it was discussed but I don't know if
10 generally a ten percent on those types of things. If 10 it actually happened because I didn't remain there for
11 there's a dangerous weapons permit they're going to 11 multiple days.
12 touch every gun that is supposed to be in that 12 Q Okay. Does the section of the DOJ that does
13 inventory or they're going to have some proof of where 13 these inspections have policies and procedures?
14 it is. If it's out for repair they're going to look 14 A There are risk procedures if that's what
15 for a document that says, "We had to ship that back to 15 you're asking about.
16 the manufacturer, there's, it's broken beyond our 16 Q Are there any policies or procedures relating
17 capability --" 17 to entertainment firearms permits?
18 Q -- with all due respect, Sir, my question is 18 A It's not something that I would see in my
19 just how do you know that they would have inspected the 19 line of work. That's more of a -- we have a Compliance
20 entertainment firearms permits? 20 Section that handles regulatory duties. I'm on the
21 MS. SKELLY: Objection; he's giving you the 21 enforcement side. I believe there would probably be a
22 answer to that question. 22 desk procedure if they had to interact with those
23 BY MR. ROBINSON: 23 folks. That's normally what we do. We have a desk
24 Q I don't think that's true but could you 24 procedure so you have cessation practice. If somebody
25 answer how do you know that they inspected the 25 leaves you have a way to follow the normal past
Page 67 Page 69
1 entertainment firearms permits? 1 practices.
2 A The normal process -- I've been on many 2 Q In order to verify the entertainment firearms
3 inspections of various firearms dealers and some of 3 permit what would DOJ do?
4 those are included in the DWP, the dangerous weapons 4 A The fact that --
5 permitted locations. They will look for large capacity 5 MS. SKELLY: -- I'm sorry, objection. What
6 magazine sales activity. That's a standard thing that 6 do you mean by "Verify?" Verify where someone
7 they all -- they train all the field reps to look for. 7 submits an application to obtain one?
8 Again, I've only been to the one prop house and there 8 MR. ROBINSON: No, to verify that -- to
9 was basically a list of things that they wanted to do 9 verify that the person handling a firearm had one.
10 over the course of that day and it's been several years 10 BY MR. ROBINSON:
11 so I -- I'm trying to think of what else they might 11 Q What is DOJ's process for doing that?
12 actually look at, i.e., the gun stores so I can rattle 12 A Like I said, I don't have specific knowledge
13 off a few things but this was a special location with 13 on that. It would be in those desk procedures or for
14 multiple permits in play. 14 the field reps.
15 Q Was check entertainment firearms permits on 15 Q How long does it take to get one of the
16 the list of things that they were going to do? 16 entertainment firearms permits if you know?
17 A This was one of the -- again, this was many 17 A I don't know.
18 years ago. I know that they look at things like that 18 Q If a person owns the firearm so doesn't need
19 when they go out and if it's a prop house it's one of 19 to borrow the firearm from a prop house are they
20 the things that they check. They wouldn't have checked 20 required to have an entertainment firearm permit to
21 prior to the actual entertainment firearms permit 21 have the firearm during filming of a movie?
22 process being in law of course, that, there would be no 22 A So the exemption to the normal dealer record
23 reason to but after that point if there's activity that 23 of sale process as it applies to the entertainment
24 should be something that they are touching when they go 24 firearms permits is to avoid the 10-day wait, and
25 to those locations that interact with those people and 25 repetitive background checks as these guns go back and
Page 70 Page 72
1 forth on the movie set. The gun that is owned by a 1 Q Got it. Are you familiar with the term,
2 person that is the gun is just on the one person, 2 "Prop master?"
3 there's no transfer scenario, I don't know that this 3 A Yes.
4 would be necessarily needed. If it's a -- I don't know 4 Q What is your understanding of a prop master?
5 if we've even encountered this scenario that you're -- 5 A So a prop master -- during my inspection I
6 that's why I'm struggling with an answer. 6 met with two people at this particular prop house.
7 Q Does the entertainment firearm permit relate 7 They explained the role of the entities that basically
8 to the ability to transfer a firearm from one person to 8 take some guns from the actual licensed building that
9 another? 9 we might license as a Type 0-1 which is maybe on the
10 A Yes. It's a -- like I said, it's a limited 10 centralized list and then they would check out weapons
11 exemption for a specific purpose when one or more guns 11 that would go to a movie set and those weapons would
12 are owned by let's say a business like a prop house and 12 then have to be transported and stored temporarily on
13 then they're temporarily loaned during a movie shoot 13 site, let's say in a semi-truck, and we inspect the
14 just to summarize various things. 14 vehicle and it's a broad word obviously but it could be
15 Q I'm going to go ahead and mark Exhibit Three. 15 the trailer or whatever and to make sure that the
16 (Document described in the Index 16 security standards are met for the vehicle itself and
17 was marked as Plaintiff's Exhibit 17 that the activity on those weapons is documented in the
18 Three for Identification.) 18 paperwork, et cetera.
19 THE WITNESS: (Witness reviewed document.) 19 Q The activity that's documented, is it the
20 BY MR. ROBINSON: 20 transfer of the firearm from the prop house to the
21 Q For the record, Exhibit Three is a 3-page 21 person who's taking it on set?
22 document. The first page, first line is "California 22 A So my understanding from the way it was
23 Bill Analysis, SB231, ASSEM 8/18/2004." All right. 23 explained to me was the prop master that's on site,
24 Have you ever seen this before? 24 they're the ones that are checking out the guns to the
25 A I don't think so. 25 people with the permits --
Page 71 Page 73
1 Q If you could, go to the second page. There's 1 Q Got it.
2 a section there under "Existing law," I apologize, the 2 A -- and/or the fake guns if that's what's in
3 section under "Comments" starting with "Author's 3 play on a particular scene.
4 statement." 4 Q In that scenario does the prop master need a
5 A Yes, I see it. 5 firearm dealer permit?
6 Q If you could read through that section. just 6 A If I recall the way it was and this is
7 bullet point, it looks like bullet point one and two. 7 probably -- I'm trying to think when I did this. It
8 A Do you want me to read this on the record or 8 could have been five to six years ago I'm guessing that
9 read it to myself? 9 I had this particular inspection. The people that were
10 Q No, just read it to yourself. 10 prop masters, they themselves are operating under the
11 A Okay. So I finished the section you wanted 11 umbrella of the FFL which is the Federal Firearms
12 me to review that you referenced. 12 Licensee. Type 0-1, and they often would be listed --
13 Q So does this generally describe the situation 13 sometime in the corporation itself there might be a
14 that you were talking about where a prop house needs to 14 corporate officer or scenario like that if it's a
15 loan a firearm to someone on a movie set? 15 limited liability partnership. That could be the
16 A Yes. 16 scenario where they are actually listed in the FFL.
17 Q The firearm permit, the entertainment firearm 17 There would generally be a certificate of
18 permit, covers a situation where there's a transfer of 18 eligibility which is another sort of status that can
19 the firearm from one person to another, correct? 19 be placed upon a person if they apply for a
20 A The way I understood this language that you 20 certificate of eligibility. A certificate of
21 just asked me to read was that license location, in 21 eligibility is given to somebody that has applied for
22 this case a prop house, would issue the gun to the 22 a certificate for several different reasons and two
23 person that had a permit and then probably at the end 23 of the more prominent ones we see now are "I work at
24 of the day or the end of the scene the gun would come 24 a gun store" and/or "I work at an ammunition vendor.
25 back on the books to the entity. 25 I'm required by law to have one of these certificates
Page 74 Page 76
1 of eligibility so that the workers of the store and 1 television, video production or entertainment events
2 the ammo vendors aren't prohibited themselves. So a 2 that were considered for exemption from the open carry
3 lot of employees around the dangerous weapons 3 statutes?
4 permitted locations, they themselves will have a DWP 4 MS. SKELLY: Objection; the deponent is not
5 themselves under sort of the overall umbrella of the 5 authorized to speak on behalf of the Legislature.
6 FFL that has a dangerous weapons permit attached and 6 BY MR. ROBINSON:
7 then those people that are actually taking these more 7 Q You can go ahead and answer.
8 dangerous weapons like the name implies out to the 8 A My answer would be the same as the last one
9 movie sets. So they're going to have several 9 -- as my answer for number eleven -- the question that
10 different documents that back up who they are and 10 I was asked about number eleven.
11 what guns they can take out if that helps you. 11 Q I take it the answer is you're not the person
12 Q In your understanding is the prop master on 12 to testify about that, there, someone in the
13 set an employee or affiliated with the prop house; is 13 Legislature would be better able to answer the
14 that how it works? 14 question?
15 A That's the way I understand it, yes. 15 A Correct.
16 Q Okay. Let's go back to Exhibit One if we 16 Q Okay. Go on to item 13. I think we've
17 could. 17 covered this before.
18 A Sure. (Witness reviewed document.) I'm back 18 A (Witness reviewed document.)
19 to number, item one, Exhibit One, on page three. 19 Q Here's no -- there has been no opinion issued
20 Q Okay, perfect. So the next topic in all 20 by the Attorney General or the DOJ regarding
21 those topics, eleven, are you prepared today to testify 21 interpretation of the open carry statutes; is that
22 about the facts, circumstances or factors considered in 22 correct?
23 creating the exceptions to the open carry ban? 23 A Again, I've given somewhat of an answer on
24 MS. SKELLY: Objection; the Plaintiff is not 24 this prior because there's some similar worded language
25 qualified or authorized to speak on behalf of the 25 in your questions and the writing on those pages. I
Page 75 Page 77
1 Legislature. 1 would say perhaps there's something in the "Peruta"
2 BY MR. ROBINSON: 2 case that may have been referenced, I just want to
3 Q I take that as a "No," but let me ask you a 3 point that out and -- but I have no specific I guess
4 clearer question. Are you prepared to testify today 4 knowledge of anything besides something like that.
5 about the "Facts, circumstances, and factors considered 5 Q Are you able to give an interpretation of the
6 in deciding to exempt certain participants in motion 6 open carry statutes on behalf of the Department of
7 picture, television or video production or 7 Justice?
8 entertainment events from the open carry statutes?" 8 MS. SKELLY: Objection; the deponent is not
9 A No, because the same reasons I gave before is 9 authorized to give a legal opinion on behalf of the
10 this is probably better answered by a Legislative 10 Attorney General. That would be for the Court to do.
11 staffer from one of those Public Safety Committees that 11 THE WITNESS: So my short answer to that is
12 was involved in the process. 12 no.
13 Q To your knowledge has the Attorney General or 13 BY MR. ROBINSON:
14 the Department of Justice issued any interpretation or 14 Q On topic 14 --
15 opinion on the exemption from the open carry statutes 15 A (Witness reviewed document.)
16 for motion picture, television, video production or 16 Q -- are you prepared to testify today about
17 entertainment events? 17 the enforcement of the open carry statutes?
18 A Did you say formal or informal or -- 18 A You mean enforcement by the Department of
19 Q -- any kind. 19 Justice? Would you clarify your question?
20 A Yeah, I can't think of anything that we've 20 Q Let's start there. How about the enforcement
21 done on that item. 21 by the Department of Justice?
22 Q Let's go on to topic 12. 22 A I'm not aware of special agents for the
23 A (Witness reviewed document.) 23 Department of Justice making arrests for an open carry
24 Q Are you prepared to testify today about other 24 violation.
25 types of expressive activity other than motion picture, 25 Q Did you do anything to find out if any
Page 78 Page 80
1 employees of the Department of Justice have made 1 your earlier question was whether -- if there is an
2 arrests for open carry violations? 2 inquiry from within the Department.
3 A I can tell you that this area of law is so 3 MR. ROBINSON: Okay, that's a fine
4 specialized that if a different bureau's special agents 4 clarification.
5 were going to do something along this line, they would 5 BY MR. ROBINSON:
6 call us, and specifically they would call me. I teach 6 Q If there were -- if someone within the
7 the firearms laws and updates to our agents statewide 7 Department of Justice were contemplating making an open
8 so I would be the one that they would reach out to and 8 carry arrest, you would likely receive a call about
9 again, I've been in the Bureau since around 2002 and I 9 that, correct?
10 don't recall ever getting any outside-the-Bureau 10 A That's my belief.
11 contacts from other special agents and I don't recall 11 Q Have you ever received such a call?
12 people within the Bureau asking, "Hey, what's going to 12 A No.
13 happen with this" or "What's going on with this open 13 Q Okay. Have you ever received a call or
14 carry scenario." It's for the most part as I discussed 14 communication from an outside agency about a potential
15 earlier a police and sheriff department interaction 15 open carry arrest?
16 with members of the public and it's not something we 16 A Just on the chance that my prior contact with
17 get involved in. 17 Commander Bertini, whether he called me back or I
18 Q Okay. Thank you for that. I want to try to 18 called him and actually got him on the first pickup, I
19 break it down a little bit. 19 would say that's maybe my only contact of any kind
20 A Understood. 20 that's dealing with open carry that I can recall.
21 Q So if the DOJ were planning to arrest someone 21 Q Okay, that helps. Are you aware of any open
22 for an open carry violation, it's likely that you would 22 carry arrests in the state of California since the open
23 get a call or some kind of communication? 23 carry statutes were enacted?
24 A I believe I would because like I said it's a 24 MS. SKELLY: Objection; calls for
25 specialized area of the law that is not something that 25 speculation.
Page 79 Page 81
1 our people would have a reason to get involved with and 1 MS. RAUCH: And assumes facts.
2 likely we would have some advanced notice, "Hey, 2 THE WITNESS: I'm not personally aware of
3 there's a person doing an X on this you know, at the 3 any open carry arrests.
4 7/11, is that okay or is it not okay?" We will get 4 BY MR. ROBINSON:
5 questions about "Hey, the person at this particular bar 5 Q Do you know if the Department of Justice
6 has a gun behind the bar and they're serving drinks. 6 keeps statistics on that kind of thing?
7 Is that okay, is that not okay," and we might refer 7 A We would potentially be able to query a
8 them to a particular Penal Code or something like that. 8 specific Penal Code looking for an arrest or looking
9 That's -- we will have scenarios like that posed 9 for a conviction type. If I was given a Penal Code,
10 perhaps. There may be something on our website that 10 eventually I could get that data if it existed but it
11 talks about concealed weapons's statutes. 11 might take weeks or months depending on what it's you
12 We have an FAQ URL, if that makes sense, a 12 know -- that data is outside of my division. It's a
13 particular area, and there's I don't know, eight 13 whole nother chain of command and -- it's our IT side,
14 different subsections to the FAQ's that you can kind 14 information technology side, and they're also the
15 of bounce around and look at different things. There 15 people that have to create new databases and other
16 may be something on there that talks about when it's 16 things that the Legislature does and they're the ones
17 okay to not have a permit for example, things like 17 that are forced to roll things out in a certain time
18 that. 18 line so this kind of a thing would interrupt those
19 Q Okay. Well, so I'm just trying to get a -- 19 bigger projects and we're somewhat at their mercy on
20 if someone were going to arrest a person for an open 20 the response time.
21 carry violation, your expectation was that you would 21 Q Does the Department of Justice have the data
22 receive a call or some kind of communication about 22 about arrests and convictions specific by Penal Code
23 that? 23 throughout the State?
24 MS. SKELLY: Objection; assumes facts not in 24 MS. SKELLY: Objection; vague and overbroad.
25 evidence and mischaracterizes the testimony. I think 25 THE WITNESS: Assuming the data was
Page 82 Page 84
1 transmitted to us by the various courthouses in the 1 BY MR. ROBINSON:
2 state of California, we would have some arrests and 2 Q If you think of it.
3 convictions for all the different Codes that exist. 3 A I think I might be able to. I might remember
4 So whether it's the Fish and Game Code or Vehicle 4 the name of it. I think it's something like URSA like
5 Code, things like that, there's going to be some 5 Use of Force Reporting System, something to that effect
6 record in the Automatic Criminal History System, 6 but I think the acronym is said URSA, like URSA but I'm
7 ACHS. 7 not sure what these all actually mean, some of them
8 BY MR. ROBINSON: 8 that happened four or five years ago.
9 Q Could you find my traffic ticket? 9 Q Are you aware of any injuries resulting from
10 A Potentially, that might be within the DMV's 10 open carry prior to the enactment of the open carry
11 slice of the CLETS databases. 11 statute?
12 THE REPORTER: Can you spell CLETS? 12 MS. RAUCH: Calls for speculation.
13 THE WITNESS: C-L-E-T-S. 13 THE WITNESS: I'm not aware of any injuries.
14 THE REPORTER: Thank you. 14 BY MR. ROBINSON:
15 THE WITNESS: California Law Enforcement 15 Q Are you aware of any injuries after the
16 Telecommunications System -- 16 enactment of the open carry statutes in connection with
17 THE REPORTER: Thank you. 17 people openly carrying unloaded firearms?
18 THE WITNESS: -- is what it stands for. 18 MS. RAUCH: Same objections.
19 BY MR. ROBINSON: 19 THE WITNESS: Off the top of my head, I'm not
20 Q All right. Let's go on to topic 15. 20 aware of any.
21 A (Witness reviewed document.) 21 BY MR. ROBINSON:
22 Q Are you prepared on "Reports, studies or 22 Q Going to top of 16 --
23 statistics relied on in enacting concealed carry or 23 A (Witness reviewed document.)
24 open carry?" 24 Q -- are you prepared to testify today about
25 MS. SKELLY: Objection; the deponent is not 25 the Constitutionality of the open carry statutes and
Page 83 Page 85
1 authorized to speak to any of these materials which 1 exemptions from those statutes?
2 would be within the Legislative ban. 2 MS. SKELLY: Objection; the deponent is not
3 BY MR. ROBINSON: 3 authorized to give legal opinions on the
4 Q You can go ahead and answer. 4 Constitutionality of the statutes. That will be
5 A Yeah, my answer would be back to the Public 5 determined by a Court.
6 Safety Committees within the Legislature as your best 6 THE WITNESS: My answer to your question is
7 bet for information. 7 that's not my role for today to provide that
8 Q Does the DOJ keep statistics of things like 8 information.
9 gun incidents or gun, arrests you told me, things like 9 BY MR. ROBINSON:
10 gun incidents or interactions between police and 10 Q Are they Constitutional?
11 members of the public, things like that? 11 THE REPORTER: Sorry?
12 MS. SKELLY: Objection; vague and 12 BY MR. ROBINSON:
13 ambiguous. 13 Q Are the open carry statutes Constitutional?
14 THE WITNESS: I'm trying to think -- there 14 MS. SKELLY: Objection; calls for a legal
15 might be a use of force tracking system that's fairly 15 opinion and the deponent is not authorized to give a
16 recent and I mean like the last five years, meaning 16 legal opinion.
17 recent. I don't recall what it's called off the top 17 THE WITNESS: I'm sure at some point the
18 of my head but it's something that the local agencies 18 Courts will settle that matter.
19 would be more heavily involved in whether it would be 19 BY MR. ROBINSON:
20 a taser use or a firearm or a baton or something like 20 Q Let's go on to topic seventeen.
21 that, I think, and you know firearm use would be 21 A (Witness reviewed document.)
22 lumped in there as well. I may recall what the name 22 Q Are you aware of any kind of communications
23 of this is and I will come back to it if I can to be 23 from the Department of Justice to local law enforcement
24 responsive. Can we just make a blank spot in the 24 about interpretation and enforcement of open carry
25 record? 25 statutes?
Page 86 Page 88
1 A Earlier, I brought up an information 1 BY MR. ROBINSON:
2 bulletin, 2018, I think it was and it referenced an 2 Q What is the process that was used to collect
3 older, probably the one that dealt with the long guns 3 documents for this case?
4 but I'm not sure of the number but I referenced that 4 MS. SKELLY: Objection; assumes facts not in
5 and that would be probably the only communication I can 5 evidence.
6 think of that we provided some information about that 6 MR. ROBINSON: Let me backtrack.
7 specific area of law and again it's just sort of a 7 BY MR. ROBINSON:
8 heads up; there's this, there's two or three sentences 8 Q Are you aware of anyone within the government
9 about it and it references them to the bill in case 9 of the State of California collecting documents for
10 they want to look it up. 10 this case other than Counsel?
11 Q Have you ever been contacted about 11 MS. SKELLY: Objection; the State of
12 prosecutions under the open carry statute? 12 California is not a defendant in this lawsuit. The
13 MS. SKELLY: Objection; assumes facts not in 13 only defendant in the Attorney General.
14 evidence, calls for speculation. 14 MR. ROBINSON: Counsel, that is a speaking
15 BY MR. ROBINSON: 15 objection. It's not an objection to form. The
16 Q Let's ask a preliminary question. Are you 16 topics are designated for the deposition. The
17 aware of there ever being a prosecution in the state of 17 Attorney General is a body -- the Attorney General's
18 California under the open carry statute? 18 office is a body within the state of California so if
19 A I'm not personally aware of something like 19 he can only testify about the Attorney General's
20 that happening. 20 office or the Department of Justice or whatever
21 Q I'm going to skip eighteen for the time 21 Governmental agency he can testify for, by all means
22 being. Going on to nineteen -- 22 tell me that, but I'm entitled to know if anybody
23 A (Witness reviewed document.) 23 went and tried to get documents.
24 Q -- were you involved at all in collecting 24 BY MR. ROBINSON:
25 documents to produce in connection with this lawsuit? 25 Q Did anyone try to get documents for this case
Page 87 Page 89
1 A So the answer I would believe is yes and it's 1 that you know of?
2 -- the documents probably would have been pulled a 2 MS. SKELLY: Documents from where?
3 couple years ago. That's why I'm a little big vague 3 BY MR. ROBINSON:
4 with the answer right now. There have been multiple 4 Q -- you can answer the question.
5 lawsuits with the Department of Justice over various 5 MS. SKELLY: Are you talking about --
6 laws, a great many of them are firearms-related, so I 6 THE REPORTER: Wait, wait, one at a time.
7 don't have a specific I guess answer. I pulled this 7 MS. SKELLY: Are we talking about the
8 document and found it to be responsive. Sometimes it's 8 Department of Justice or agencies outside of the
9 a collective group, "Hey, we've got this going on, can 9 Department of Justice?
10 anybody think about this or that," and that's how it 10 BY MR. ROBINSON:
11 usually happens. 11 Q You can answer my question if you understand
12 Q So just in general terms what's the process 12 it.
13 for collecting documents in response to a lawsuit? 13 MS. RAUCH: Join in the objection.
14 MS. SKELLY: Objection; topic nineteen is 14 THE WITNESS: I'm going to answer it in the
15 testimony about the responses, not the efforts to 15 frame of mind of what happens at the Department of
16 collect information to respond to the first set of 16 Justice.
17 document production. 17 MR. ROBINSON: That's fine.
18 MR. ROBINSON: So topic twenty is "The 18 THE WITNESS: The standard practice is if
19 documents produced in efforts by the State of 19 there is a lawsuit that comes tomorrow, we have a
20 California and any departments, divisions or 20 deputy attorney general assigned to the Bureau and
21 subdivisions to search for, locate, identify, gather 21 that person will typically be the organizer of
22 and produce documents in this action." 22 document collection and if there is a Government law
23 MS. SKELLY: But you were on topic nineteen. 23 the deputy attorney general is ultimately assigned to
24 MR. ROBINSON: Okay. Please, let's stop with 24 be the lead on a particular lawsuit the internal BOF,
25 the back and forth between questions. 25 the Bureau of Firearms, would in a sense be the
Page 90 Page 92
1 collection point and then pass those documents to the 1 produced by Attorney General Becerra in this lawsuit?
2 assigned Government law attorney general. Depending 2 A Yes.
3 on the subject matter of the lawsuit, that internal 3 Q Okay. I'm handing you what I'm marking as
4 Bureau of Firearms deputy attorney general would 4 Exhibit Four.
5 reach out to various managers for potentially 5 (Document described in the Index
6 enforcement like me and we would maybe have 6 was marked as Plaintiff's Exhibit
7 discussions on what documents might be relevant. 7 Four for Identification.)
8 BY MR. ROBINSON: 8 BY MR. ROBINSON:
9 Q Do you know whether the Department of Justice 9 Q For the record, Exhibit Four is a lengthy
10 collected any documents for purposes of this present 10 document and the caption portion on the right-hand side
11 lawsuit? 11 of the first page is "Defendant Attorney General
12 A I believe the 2016 Firearms Laws document 12 Becerra's Responses to Plaintiff Michael Zeleny's First
13 that's on our web page, I believe the bulletin, that 13 Set of Request for Production --
14 I've mentioned a couple times now, the 2018 information 14 A (Witness reviewed document.)
15 bulletin, that is -- typically we would do an email 15 Q -- do you see that?
16 search. I'm trying to think what else might pop up. 16 A Sorry, I was reading through -- counting the
17 Emails, documents, sometimes forms, we would on the 17 pages --
18 Forms page if there is a relevancy to that somehow. 18 Q Right here.
19 We sometimes will look at the regulations 19 A -- making sure it's the same document I
20 area. We may provide a copy of the regulations or at 20 looked at.
21 least reference it with a URL or something like that. 21 Q Okay.
22 That's what I recall. As to what actually gets 22 A Yeah, this looks like the same document I
23 pushed out above that, I don't know, but that's 23 have reviewed and would you repeat your question, Sir?
24 normally what happens on a random lawsuit on a 24 Q Yeah. I was just identifying for the record
25 hypothetical lawsuit we might get tomorrow. 25 it's multiple pages. It looks like it runs from page
Page 91 Page 93
1 Q Do you know if that process, that general 1 one to 14 and it's captioned on the first page,
2 process, was followed by the DOJ in connection with 2 "Defendant Attorney General Javier Becerra's Responses
3 Mr. Zeleny's lawsuit? 3 to Plaintiff Michael Zeleny's First Set of Requests for
4 A It's my understanding that it was. 4 Production;" is that right?
5 Q Do you know if any agency other than the 5 A Yes.
6 Department of Justice searched for or collected 6 Q Have you seen this document before?
7 documents related to Mr. Zeleny's lawsuit? 7 A Yes.
8 MS. SKELLY: Objection; none of the 8 Q To the best of your knowledge has the
9 document requests were directed toward any other 9 Department of Justice collected for production all the
10 State agencies. 10 documents that are responsive to the requests in this
11 MS. RAUCH: The question is also vague as 11 document?
12 to the term "Agency" and overbroad. 12 A The Department has identified all the
13 THE WITNESS: My answer would be my knowledge 13 responsive documents and as I recall they're sort of
14 on this point is limited to the Department of Justice 14 called out in this document with for example on page
15 and specifically to the Bureau of Firearms, how we 15 three there's an item identified on line 21. Towards
16 operate, so that's how I'm able to give ou what I 16 the end of that line it says, "CPOJ 00001-DOJ," and
17 can. 17 then a series of numbers after that. That would be how
18 BY MR. ROBINSON: 18 I categorized the responsiveness of this document.
19 Q So outside of what the Department of Justice 19 Q Okay. So let's turn to page nine if you
20 may have done to collect documents for purposes of this 20 would.
21 lawsuit are you aware of any efforts by any other body 21 A (Witness reviewed document.)
22 of Government in the state of California to collect 22 Q I think we may have covered this before
23 documents for this lawsuit? 23 request for production number eleven asks for
24 A No. 24 "Documents relating to policies, procedures, the
25 Q Okay. Have you reviewed the documents 25 guidelines, guidance or directives relating to
Page 94 Page 96
1 enforcement, interpretation of various Penal Code 1 lines of the previous statement I gave earlier. There
2 sections;" do you see what I'm referring to there? 2 may be some mention in the "Peruta" lawsuit. However,
3 A I do. Lines 18 through 21? 3 I have no specific knowledge if there is or isn't but
4 Q Yes? 4 you might want to look at that in addition to the
5 A Okay. 5 existing statement in this -- on page 12.
6 Q Are you aware of any documents like that 6 Q So other than documents that may have been
7 within DOJ? 7 filed in the "Peruta" case or the existing statement
8 A So these Penal Codes are not ones that I 8 that's here in response to request 15, on page 12,
9 typically spend time on in my day-to-day. To me they 9 you're not aware of any other responsive documents that
10 look like they belong in the open carry realm and 10 DOJ has?
11 there's to my knowledge we don't have a policy 11 A That's correct.
12 regarding that or a procedure other than maybe that 12 Q The same question for number 16.
13 information bulletin that I've talked about a couple 13 A (Witness reviewed document.) Yeah, so this
14 times. We just -- 14 -- the answer given here on the page 12 and page 13 is
15 MS. SKELLY: -- sorry, the deponent should be 15 pretty comprehensive and I don't think the bulletin
16 given an opportunity to read the response. 16 really applies possibly to this specific set of
17 MR. ROBINSON: Fair enough. 17 questions here so --
18 THE WITNESS: So we're talking now about line 18 Q Yeah, so the question just is are you aware
19 22 through 27 and that it carries -- yeah, it carries 19 of any documents responsive to request 16 that the DOJ
20 on. I mean, may I review that? 20 has?
21 MR. ROBINSON: Yeah, of course. 21 A No.
22 THE WITNESS: Okay. (Witness reviewed 22 Q Okay, so the same question as to number 17.
23 document.) 23 Are you aware of any documents that the DOJ
24 BY MR. ROBINSON: 24 has responsive to request number 17?
25 Q While you're doing that I'm going to ask you 25 A I'm going to read the response here again. I
Page 95 Page 97
1 the same question about number 12. 1 have no additional information that I'm aware of beyond
2 A So I've read number eleven. If we could take 2 what's written here.
3 them one at a time? 3 Q Are there any documents?
4 Q Sure. 4 A I'm sorry. No.
5 A Okay. So I will uphold to my sort of partial 5 Q Okay. Do you know whether or not -- strike
6 answer regarding that -- the bulletin or at least 6 that. Do you know if other Government entities or
7 mention of it. A bill that was passed and we pushed 7 agencies have documents that might be responsive to the
8 out a heads-up along with many other bills that were 8 requests we've looked at?
9 fresh that year to various law enforcement agencies. 9 MS. SKELLY: Objection; that requests for
10 That's the only thing I can come up with in addition to 10 production of documents is directed to Defendant,
11 the printed response here. 11 Attorney General Becerra. It's not directed to any
12 Q Got it. Going on to request number 12. 12 other State agency. The deponent is not authorized
13 A (Witness reviewed document.) I'm going to 13 to speak on behalf of any other State agency
14 review page ten, line 15, and then it carries in to 14 regarding whether or not they have documents
15 page eleven before I answer, okay? 15 responsive to the requests here.
16 Q Yes, that's fine, okay. 16 THE WITNESS: So my answer is I'm not aware
17 A Yeah, I would have the same answer regarding 17 of anyone outside of the Department of Justice having
18 that bulletin as applied to this question. 18 documents and I would say that the Department of
19 Q Good. As far as you're aware that 19 Justice response is limited to what's written here.
20 information bulletin is the only document diseminated 20 BY MR. ROBINSON:
21 to local agencies? 21 Q Do you know if the Attorney General or his
22 A Yes. 22 office has documents responsive to the requests we've
23 Q Okay. And let's go on to request 15 on page 23 just gone over?
24 12. 24 A No, I'm not aware of anything beyond what's
25 A (Witness reviewed document.) Just along the 25 written in here or perhaps my previous conversation or
Page 98 Page 100
1 comments about the "Peruta" case maybe or the bulletin. 1 active law enforcement exemption. There would be a
2 MS. SKELLY: Can we take a break? 2 scenario where you're in your home or your business and
3 MR. ROBINSON: Yeah. 3 you chose to you know sit on the couch and watch
4 THE VIDEOGRAPHER: The time is 1:25 P.M. 4 football with a gun on your hip or under your T-shirt.
5 We're off the record. 5 That would be fine, too.
6 (Recess taken) 6 Q It looks like we have hunters on --
7 THE VIDEOGRAPHER: The time is 1:59 P.M. 7 A Yeah.
8 We're on the record. 8 Q -- hunting and fishing.
9 BY MR. ROBINSON: 9 A Sometimes that gets into the word openly or
10 Q All right. We're back on the record. You 10 concealed but yeah hunters is another scenario.
11 understand you're under the same oath -- 11 Q All right. Let me ask you a different
12 A Correct. 12 question. First, what does it mean to carry a
13 Q -- that you took previously, right? 13 concealed?
14 A Yes, thank you. 14 A Generally, that means it's not visible to a
15 Q I'm going to hand you what I'll mark as 15 person you're next to or nearby and generally the
16 Exhibit Five. 16 weapon is going to be typically a handgun. Optionally,
17 (Document described in the Index 17 it could be a long gun that's been modified in some way
18 was marked as Plaintiff's Exhibit 18 that's been cut down or you know shortened in some way
19 Five for Identification.) 19 to make it concealable whereas normally the traditional
20 THE WITNESS: (Witness reviewed document.) 20 shape or the length of the thing is not normally
21 BY MR. ROBINSON: 21 concealable.
22 Q For the record, Exhibit Five is a lengthy 22 Q Understood. So concealed meaning it's not
23 document, Bates numbered DOJ001289 through 1307, 23 visible to people nearby?
24 correct? 24 A Ideally, unless you're leaning over and it
25 A Yes. 25 pokes out of your shirt or something, yeah.
Page 99 Page 101
1 Q Do you recognize Exhibit Five? 1 Q Okay. Aside from the specific exemptions
2 A Yes, I do. 2 that are written into the statute and then getting a
3 Q What is it? 3 permit is there any other way to lawfully carry a
4 A This is the document I referenced earlier in 4 concealed weapon in California?
5 my testimony regarding a 2016 summary of California 5 A There might be a scenario where a private
6 laws and I believe it's still available on our website. 6 eye, private investigator, has the ability to have a
7 Q I'm not going to ask you to read through or 7 permit for that type of purpose. Out-of-state law
8 testify about the whole thing. I'm just going to 8 enforcement possibly coming in, that might be a
9 direct you to some particular parts of that so let's go 9 scenario, and then you have Federal law enforcement,
10 to DOJ1500 at the bottom right. 10 they're going to have scenarios that I might not have
11 A Okay. 11 talked about or may not be called out here exactly but
12 Q 1300, there's a section there to carrying a 12 those are other possible ideas that are responses to
13 weapon without a concealed license; do you see that? 13 your question.
14 A Yes, I do. 14 Q Got it. Let's focus on an ordinary
15 Q And are there exceptions that you're aware of 15 Californian who doesn't fall within the enumerated
16 to the conceal to carry or strike that. If I use the 16 exceptions or these cases that you've mentioned. Is
17 term, "Conceal to carry ban," will you understand what 17 there any way for that person to carry a concealed
18 I'm talking about? 18 firearm in California without a permit; to do so
19 A I will. 19 legally?
20 Q Okay. Are there exceptions to the concealed 20 A If they're going to carry it for purposes of
21 carry ban other than a licensed carrier? 21 defending themselves and scenarios like that that are
22 A Yes. 22 not specifically called out whether I've mentioned them
23 Q In general, what types of exceptions exist? 23 so far or not, if there's an exception that I haven't
24 A Law enforcement, they have an exception; 24 yet called out or whatever. Generally, you have to
25 retired law enforcement is a sort of a subclass of the 25 have a permit to carry concealed if you're an average
Page 102 Page 104
1 citizen. 1 that possibly but just me walking down the street with
2 Q Does the DOJ issue permits? 2 a loaded gun, probably not.
3 A No. 3 Q All right. Let's go on to the page that's
4 Q It's only the local agencies? 4 Bates marked DOJ1301.
5 A Correct. They issue the actual permits. 5 A Okay. (Witness reviewed document.)
6 When we say, "Permit," it's typically some kind of 6 Q There's a section there about openly carrying
7 laminated card like roughly the size of a driver's 7 an unloaded handgun.
8 license and we are only involved in the background 8 A I see that.
9 check process and then as I said, we're operating as a 9 Q When it refers to "Openly carrying," what
10 pass-through, putting that gun or guns into the Armory 10 does "Openly" mean?
11 Firearms System to document the approved weapons in 11 A Exposed, if I had to put it in one word.
12 case there's a traffic stop one day, they can quickly 12 Q When you say, "Exposed," what do you mean by
13 see that yes this person's okay and the guy is linked 13 "Exposed?"
14 to that card. 14 A So visible to those people that are around
15 Q Are the permits county by county meaning if I 15 me. It's not concealed so kind of the opposite of
16 have a permit from LA County does it work in San 16 concealed. It's identifiable as a gun and it's, if
17 Francisco County? I don't, just to be clear. 17 it's a handgun it's probably in a holster. Probably
18 A So if you have a permit in any county in 18 not the safest but it might be shoved in your pants or
19 California it's good in any county anywhere in the 19 something like that. There's probably some other
20 state. 20 scenarios but those would be the common two that I
21 Q Let's go down to the next section of page, 21 would come across.
22 Bates marked DPJ1300, "Loaded firearms in public." 22 Q So other than falling within the listed
23 A (Witness reviewed document.) I see that 23 statutory exceptions is there any way to lawfully carry
24 section. 24 an open -- let me start the question over. Other than
25 Q Other than the exceptions listed in the 25 the exceptions that are listed in the statutes is there
Page 103 Page 105
1 statute is there any way to legally carry a loaded 1 any way to openly carry a handgun in a public area in
2 firearm, hopefully not, in public? 2 California that would be legal?
3 A Perhaps a fishing hunting scenario where 3 A The average citizen is probably not going to
4 you're traveling from your car to the location where 4 have a legal scenario that I can think of right here.
5 you're going to hunt of fish, there may be an exception 5 You have armed security guards that have permitted
6 to that. It's not something the Bureau of Firearms 6 weapons that they would be potentially openly carrying
7 really gets involved with. It's probably Fish and 7 and things like that but I think that is covered under
8 Game, Fish and Wildlife, maybe State parks might come 8 the exceptions that you're kind of referencing.
9 across that scenario. It's not something I've 9 Q Between the concealed carry ban and the open
10 personally had to deal with in my career. 10 carry ban on handguns, other than either having a
11 Q So other than the potential fishing and 11 concealed carry permit or falling within one of the
12 hunting type exception or strike that. So let's focus 12 listed exceptions, is there any way for an ordinary
13 on cities, within the incorporated areas of a city. 13 citizen in California to carry in a public place?
14 A Okay. 14 A And you're talking an incorporated city or
15 Q Is there any way other than the listed 15 something like that, not out in the forest somewhere
16 exceptions in the statute to carry a loaded firearm 16 with an exemption? I can't think of one.
17 openly in public in California in a city? 17 Q All right, so let me try to rephrase. I just
18 A And you said loaded, correct? 18 want to get a clear question out.
19 Q Loaded. 19 A Yes.
20 A I can't think of one unless there's some kind 20 Q So between the concealed carry ban and the
21 of self defense scenario where you're in your backyard 21 open carry ban on handguns is there any way other than
22 or you're on your property and you've stepped out 22 falling within the list of exceptions in the statutes
23 because there's a dog attacking your dog or something, 23 for an ordinary citizen of California to carry a
24 somebody attacking your family or something like that. 24 handgun in a public place in California?
25 Really rare kind of narrow exception to something like 25 A And your question is loaded or unloaded?
Page 106 Page 108
1 Q Loaded or unloaded. 1 A This looks like one of the Codes that I've
2 A Okay. I think you would have to follow the 2 reviewed and it calls out -- sorry. Just to be short,
3 concealed carry path and get a permit or be one of the 3 yes, I recognize the Penal Code that it mentions here.
4 listed exemptions in the statute. I can't think of a 4 Q This is the one for openly carrying a handgun
5 scenario by which you could open carry a handgun unless 5 unloaded, correct?
6 you're in one of those specialized classes that we kind 6 A Yes. It talks about the crime of -- yes.
7 of recently talked about. 7 Q If you go down to bullet point 82, Section
8 Q So for people who are not in the specified 8 82, it talks about carrying an exposed and unloaded
9 classes and who do not have a concealed carry permit is 9 handgun inside or on a vehicle; do you see that?
10 there any legal way for them to carry a handgun in a 10 A Yes.
11 public place in a city in California? 11 Q What does it mean to have an exposed handgun
12 A Not that I can think of and I want to say one 12 inside a vehicle?
13 clarifying thing. When I think of "Public place," I'm 13 MS. SKELLY: You know, I'll object on the
14 talking about walking down the street. I'm not talking 14 grounds that this is a statute passed by the
15 about inside a business or a liquor store or where 15 Legislature and he can't -- he's not competent to
16 that's private property. I just want to make the 16 testify to what the Legislature intended.
17 distinction. 17 BY MR. ROBINSON:
18 Q Understood. So as to public property the 18 Q So as a person -- I should have asked this
19 answer is without either a concealed carry permit or 19 before. Do you have any training in firearms statutes?
20 falling within the legal exceptions written into the 20 MS. SKELLY: Objection; do you mean
21 statute there's no lawful way to carry a handgun on 21 interpretation of them, application of them?
22 public property? 22 MR. ROBINSON: In general, any training on --
23 A As I sit here I can't think of one. 23 BY MR. ROBINSON:
24 Q I'm going to hand you what I'll mark as 24 Q Let me ask it differently. Do you have any
25 Exhibit Six. 25 training on open carry or concealed carry?
Page 107 Page 109
1 (Document described in the Index 1 A My first answer to Part A of that is open
2 was marked as Plaintiff's Exhibit 2 carry, I've only been in a sense aware of the general
3 Six for Identification.) 3 movements as it's called in the news or on line or
4 MR. ROBINSON: I'm going to hand it to you. 4 whatever. There are clearly Penal Codes that apply to
5 THE WITNESS: (Witness reviewed document.) 5 that type of activity. I'm not aware of any sort of
6 BY MR. ROBINSON: 6 reference documents if you will that I can go to, to
7 Q Actually, before we get into that other than 7 further dive into that. As far as concealed weapon
8 these listed exceptions in the statutes is there any 8 permit activity, because of my job I've had the
9 legal way for an ordinary citizen in California to 9 experience and exposure to different agencies reaching
10 carry a long gun, a rifle or shotgun, in a public place 10 out to us about clarifying, "Hey, can we update this
11 in a city or an incorporated city and county? 11 person's gun? They normally drop this gun off and add
12 A The Penal Code calls out various exemptions 12 this gun," things like that, getting them to the right
13 to the rule per se and hunting, going in your car to a 13 person so they can make that update, things like that,
14 target range, in and out of buildings, that kind of a 14 little contacts.
15 scenario, probably some kind of a and I don't recall 15 I believe earlier I discussed that myself
16 the Code but during filming, the entertainment firearms 16 and others that I work with have made arrests for
17 permit, that's an exemption. I can't think of one 17 concealed carry violations meaning the person didn't
18 really. 18 have a permit and they were found with a weapon.
19 Q So let's take a look at Exhibit Six if you 19 Occasionally, the Bureau will make -- we'll get a
20 would. 20 phone call for example with a customer support center
21 A Okay. 21 that takes phone calls. They will provide the Penal
22 Q For the record, Exhibit Six is three pages. 22 Code back to the requester if they're asking about,
23 It's DOJ128 through 130, correct? 23 "Hey, I just moved here, what can I do, what can't I
24 A Yes. 24 do." We'll work with them with the Penal Code and
25 Q All right. Do you recognize it? 25 there are some FAQ's. We currently ask questions but
Page 110 Page 112
1 we have those listed on the web page. We will make 1 MS. SKELLY: Objection; vague and overbroad.
2 reference to those. 2 THE WITNESS: The answer would be no.
3 Q In terms of formal training have you been 3 BY MR. ROBINSON:
4 given any formal training about either of the topics of 4 Q Who is the primary person?
5 open carry or concealed carry? 5 A I would say that the Legislature is the, in a
6 A So I can recall in -- short answer, yes. 6 sense, the source of the concealed carry statute
7 Longer answer is during the police academy there's 7 language. We as a bureau have a role and again it's a
8 going to be some -- it's been a while since I've been 8 pass through role and/or background check role for the
9 to an academy but at the time I went through there, to 9 concealed carry process which we help out the locals
10 my knowledge, wasn't an open carry portion of the 10 with getting their constituents properly permitted.
11 regular police academy but there was a portion of it 11 The Regulations Unit that we have, that reports to me,
12 that dealt with firearms in general and concealed carry 12 so I have some kind of contact there if there is some
13 was a topic in discussion of concealed weapons permits, 13 expansion of regulations or something like that we
14 that kind of thing, but it's been many years since I've 14 might have to amend or expand if they need change in
15 been to that. 15 the law so it's often a group process.
16 Q When questions are addressed to the DOJ about 16 Q Is there any individual person who's sort of
17 either open carry or concealed carry issues, who do 17 the head of the piece of the DOJ that deals with open
18 those questions get referred to if you know? 18 and closed carry issues?
19 MS. SKELLY: Objection; assumes facts not in 19 MS. SKELLY: Objection; vague and overbroad,
20 evidence. 20 assumes facts not in evidence.
21 THE WITNESS: They might get -- they might 21 THE WITNESS: Regarding the open carry part
22 come in through our customer support center like I 22 of your question, I can't necessarily point to a
23 mentioned. It could be an email. Those would 23 person that would be the be all, end all. If I had
24 probably in a sense percolate up to the deputy 24 to direct a question on something like that
25 attorney general that is attached to the Bureau. 25 ultimately I would probably go to the deputy attorney
Page 111 Page 113
1 That's a logical place for that question to come 1 general assigned to the Bureau just to make them
2 through. If there's an existing FAQ there's a chance 2 aware, "Hey, there's a question about this."
3 that it doesn't even rise to the deputy attorney 3 Sometimes we have repeat questions from different,
4 general. They might just point them at an FAQ if 4 over different periods of time, and they, who knows,
5 there's an existing answer that is applicable. 5 they might look at an old request there. Are you
6 BY MR. ROBINSON: 6 Are you familiar with Public Records Act
7 Q Do you report directly to that deputy 7 requests?
8 attorney general? 8 BY MR. ROBINSON:
9 A No. 9 Q Sure.
10 Q So where are you in the chain up to that 10 A Sometimes those come up repeatedly month to
11 deputy attorney general? 11 month to month and that DAG also interacts with the DAG
12 A The deputy attorney general is sort of 12 PRA Unit so for consistency sake they work with those
13 attached to our Bureau's structure and he reports to 13 to make sure the same message is put out to people.
14 our acting director. I report to the acting director 14 Q When you say, "DAG," do you mean deputy
15 sort of -- he would be sort of the DAG that is 15 attorney general?
16 attached, goes directly to the acting director, and 16 A Correct.
17 then I would be below the director so I'm not 17 Q All right. So let's look back at Exhibit Six
18 necessarily in the chain of command of that deputy 18 and I'd ask you to turn to the last page.
19 attorney general. We're more like peers if that makes 19 A (Witness reviewed document.)
20 sense. 20 Q Actually, I don't think we got the question
21 Q You report directly to the acting director? 21 before we went on a tangent there.
22 A Yes. 22 A Okay.
23 Q Okay. Short of the acting director are you 23 Q What does it mean to carry a firearm exposed
24 the primary person in charge of the DOJ as it relates 24 inside a vehicle?
25 to concealed carry and open carry? 25 MS. SKELLY: Objection; to the extent you're
Page 114 Page 116
1 asking him to testify what the Legislature intended 1 okay?
2 when it drafted the statute, he's not authorized to 2 A Yeah, I see that.
3 speak on behalf of the Legislature. 3 Q What does "Authorized" mean in that clause
4 BY MR. ROBINSON: 4 that I just read?
5 Q I'm not asking what the Legislature intended. 5 MS. SKELLY: Objection; the deponent is not
6 I'm just asking, as a person within the DOJ who has 6 authorized to interpret the statute which was written
7 experience in dealing with some of these issues, what 7 by the Legislature and so he can't answer that
8 does "Exposed inside a vehicle" mean? 8 question.
9 A I'm not sure that there's a definition of 9 THE WITNESS: I'm not aware of this
10 that specific phrase in the Penal Code. I don't know 10 "Authorized participant" being defined by the
11 that there is a definition to that exact phrase in a 11 Legislature. I don't know that it's defined in DOJ
12 regulation somewhere. It's possible there's some kind 12 regulations either.
13 of a case law reference somewhere but I don't have a 13 BY MR. ROBINSON:
14 particular case that I can point you at but potentially 14 Q Has the Attorney General's office issued an
15 it could be researched on Westlaw or something. 15 opinion about what an "Authorized participant" means if
16 Q Do you have an understanding of what "Exposed 16 you know?
17 inside a vehicle" means? 17 A I don't know that they have issued -- as I
18 A If I had to read this on the street, I would 18 said, this entertainment firearms permit area of the
19 say somebody either driving or a passenger in a 19 law is I guess an infinitesimal part of the overall
20 vehicle, they've got the weapon, in this case a handgun 20 firearms' scheme in the State and I don't think until
21 because this is specific to the handgun section, 21 now I've even been asked what that phrase meant.
22 probably in a holster on their person and it's visible 22 Q Do you have an understanding of what it means
23 let's say to an officer that walks up maybe doing a 23 now?
24 traffic stop or something like that and they can see 24 MS. SKELLY: Objection; there's no relevance
25 the gun on their hip most likely. That's the common 25 to the deponent's understanding of what the statute
Page 115 Page 117
1 place you would see a gun. It could be shoved down the 1 means. The statute -- the document speaks for
2 floor, between their feet, some other scenario and I 2 itself. To the extent that any interpretation is
3 think that would be in discussion, too. 3 needed it will be done by the Court.
4 Q All right. 4 MS. RAUCH: Join.
5 A Okay. 5 BY MR. ROBINSON:
6 Q Let's go to the last page of Exhibit Six. 6 Q You can answer.
7 A (Witness reviewed document.) 7 A I would have to do quite a bit of research
8 Q Do you recognize the section that we're 8 before I could come up with something on this. This
9 looking at there; Penal Code Section 26375? 9 kind of a definition when it's not defined by the
10 A Okay. Let me review this real quick. 10 Legislature sometimes can be left to the agency but to
11 Q Sure. 11 my knowledge we've not done regulations which would
12 A Okay, so I've reviewed that smaller language 12 somehow clarify that and it's not something I can come
13 on the top half of the page there. 13 up with at the spur of the moment today.
14 Q Okay. 14 Q Do you know if the DOJ has an official
15 A Could you reask the question? 15 position on what "Authorized participant" means?
16 Q Well, I just asked you to review it. 16 MS. SKELLY: Objection; asked and answered.
17 A Okay, sorry. 17 THE WITNESS: Yeah, I think I've probably
18 Q Is this one of the exceptions to the ban on 18 said that just now in the last question
19 openly carrying handguns? 19 BY MR. ROBINSON:
20 A Yes. 20 Q Why don't you just go ahead and answer it
21 Q In the first clause, maybe it's the second 21 again.
22 clause, but it refers to -- let me clarify that. So 22 A Okay.
23 the section reads, Section 26350, "Does not provide the 23 Q Does DOJ have an official position on what
24 or affect the open carrying of an unregistered handgun 24 "Authorized participant" means in the exemptions?
25 by an unauthorized participant," and then it goes on, 25 A To my knowledge without -- lacking a
Page 118 Page 120
1 regulation coming from DOJ or some official opinion 1 don't really know what that is at this point. I've
2 from the Opinion Unit within the Attorney General's 2 never had that conversation with the industry
3 office, I'm not aware of one. 3 specific to that definition.
4 Q Do you know who does the authorizing in terms 4 BY MR. ROBINSON:
5 of an authorized participant? 5 Q Aside from the entertainment firearms permit
6 MS. SKELLY: Objection; the deponent is not 6 is there any person or group within DOJ that authorizes
7 authorized to interpret the statute which was written 7 participants in motion picture, television, video
8 by the Legislature. If you need interpretation it 8 production or entertainment events?
9 will be done by the Court. 9 MS. SKELLY: Objection; the question calls
10 MR. ROBINSON: You can go ahead. 10 for an interpretation of the statute which the
11 MS. SKELLY: It's also vague. 11 deponent can't do because he's not authorized to
12 THE WITNESS: I'm going to speak in general 12 speak on behalf of the Legislature.
13 about regulations for example because lacking a 13 BY MR. ROBINSON:
14 definitive answer on what that means from the 14 Q You can go ahead and answer the question.
15 Legislature, if we were asked by a stakeholder in the 15 A Yeah, I really don't have an answer beyond
16 industry meaning a prop house or several different 16 what I've already provided.
17 prop houses, "Hey, can you guys define that for us," 17 Q Okay. I'm just going to ask you to answer it
18 we might go down the path of involving them over 18 again.
19 several months and getting feedback from the public 19 A Can you repeat the question?
20 and asking how that would get flushed out in a normal 20 Q Sure. Other than the or let me ask a
21 period of time. It could be a a year-and-a-half 21 foundational question. Does the entertainment firearms
22 process to get a series of regulations done. Often 22 permit qualify someone as an authorized participant in
23 regulations like this would be carved out as part of 23 a motion picture, television or video production or
24 that process and it would be a back-and-forth process 24 entertainment event?
25 on proposed regulations and then there's public 25 MS. SKELLY: Objection; the deponent is not
Page 119 Page 121
1 feedback given so that being so industry-specific, it 1 authorized to speak on behalf of the Legislature or
2 could be taken several different ways potentially by 2 is not authorized to interpret the statute. Only the
3 different prop houses. We would want to get their 3 Legislature or the Courts can do that but he's not
4 feedback on what they feel that means within the 4 authorized to speak to whether or not the firearms
5 industry, things like that, how that might -- we'd 5 entertainment permit would constitute authorization
6 have to go through the Legislative analysis, all the 6 under Penal Code Section 26375.
7 various bills, and see if that somehow is tied in. 7 MR. ROBINSON: Counsel, are you instructing
8 Earlier, I read a document that you 8 him not to answer the question?
9 provided to me that was about an older bill and there 9 MS. SKELLY: No, I would have said so.
10 was some language in there -- we can go back and look 10 MR. ROBINSON: Then feel free to object to
11 at those things as well. 11 form or the fact that it's outside the scope of the
12 BY MR. ROBINSON: 12 deposition notice but the continual objections on the
13 Q Does the DOJ authorize participants in motion 13 basis that the witness is not authorized or permitted
14 picture, television or video productions or 14 to testify about certain topics are inappropriate.
15 entertainment events? 15 They are not proper deposition objections.
16 MS. RAUCH: Vague. 16 MS. SKELLY: In this case, you have noticed
17 THE WITNESS: We have the firearm 17 the deposition for a 30(b) deponent from DOJ. You
18 entertainment permit process. That would certainly 18 are asking that person questions that require him to
19 be a consideration in the overall evaluation of 19 interpret the Penal Code Section. He can't do that
20 something that I would ask my staff to look at; what 20 because he doesn't know what the Legislature intended
21 does the industry want to be a factor, what is our 21 so my objection is as to his competence to interpret
22 role in this, and if I was involved in the 22 the statute drafted by the Legislature.
23 conversation I would certainly suggest that having a 23 MR. ROBINSON: Counsel, if the witness that
24 permit be part of that and then maybe some other 24 you designated for a deposition is not competent to
25 industry qualifiers that they would suggest but I 25 testify as a witness then call the deposition and
Page 122 Page 124
1 we'll go talk to the judge. 1 authorized.
2 MS. SKELLY: No. You know that you are 2 MR. ROBINSON: I think we should take a break
3 deliberately misunderstanding what I'm saying. You 3 in the deposition and call the judge.
4 have noticed the deposition of a DOJ employee. No 4 THE REPORTER: "I think we should take a
5 DOJ employee is authorized to interpret what the 5 break --"
6 Legislature has done. 6 MR. ROBINSON: -- in the deposition and call
7 MR. ROBINSON: We can handle his 7 the Court. It's disrupting the deposition, you've
8 authorization or lack of authorization or who gets to 8 made your point, I've heard your point. You can
9 say what about what topic in an official capacity 9 object to testimony being outside the scope, you can
10 with the Court. Right now, objecting to, repeatedly 10 object to the form of the question, you can object to
11 the questions and saying, "The witness is not 11 privilege. You don't need to and it's improper to
12 authorized to give an answer --" I've heard your 12 object to every question --
13 objection. I understand that you take the position 13 THE REPORTER: "And it's improper --"
14 it's not binding in the state of California or 14 MR. ROBINSON: -- to object to every question
15 binding on the DOJ. We can hash that out with the 15 by saying, "The witness is not authorized to answer
16 Court. The repeated objections to "The witness is 16 the question."
17 not authorized to talk about that" are delaying the 17 THE VIDEOGRAPHER: Do you want to go off the
18 deposition and they're improper. 18 record?
19 MS. SKELLY: They're not because each time 19 MS. SKELLY: That's Counsel's decision.
20 you ask a question it requires me to interpret the 20 MR. ROBINSON: Yes, let's go off the record.
21 statute and I'm entitled to make an objection to that 21 THE VIDEOGRAPHER: The time is -- actually,
22 question. 22 this marks the end of media unit number two in the
23 MR. ROBINSON: You have made your objection 23 videotaped deposition of Blake Graham. The time is
24 both in writing before the deposition and repeatedly 24 2:36 P.M. and we're off the record.
25 throughout the deposition. I've heard your 25 (Recess taken)
Page 123 Page 125
1 objection. You can take it up with the Court at an 1 THE VIDEOGRAPHER: This marks the beginning
2 appropriate time. We need to get through the 2 of media unit number three in the videotaped
3 deposition and repeatedly saying that, "The witness 3 deposition of Blake Graham. The time is 2:58 P.M.
4 is not authorized to answer questions" is not 4 and we're on the record.
5 helpful. 5 MR. ROBINSON: So we're back on the record.
6 MS. SKELLY: I need to make a clear record 6 Counsel, do you want to put that
7 and that's why when you ask a question I'm entitled 7 stipulation on?
8 to interpose an objection. I am doing that and so -- 8 MS. SKELLY: Why don't you summarize.
9 MR. ROBINSON: -- it's not an objection, it's 9 MR. ROBINSON: Sure. So we've conferred with
10 only a question, it's not an objection to the topic 10 the Court. The stipulation that I'm proposing is
11 being outside the scope. It's an objection, a legal 11 that if Counsel objects on the basis that a question
12 position, about whether testimony from this witness 12 exceeds the scope of the deposition notice, that
13 is binding and we can call the Court about it now if 13 would preserve both the objection that it exceeds the
14 you want. 14 scope of the notice and the objection that the
15 MS. SKELLY: I need to -- 15 witness is not competent to testify on behalf of the
16 MR. ROBINSON: -- we can call the Court now 16 Legislature or other Government agencies and we will
17 about it if you want. Otherwise it's an improper 17 address those objections at an appropriate time.
18 objection. 18 MS. SKELLY: Understood. Yeah, that's fine.
19 MS. SKELLY: -- don't interrupt me. I'm 19 MR. ROBINSON: Okay.
20 entitled to interpose objections. These questions 20 THE REPORTER: That's fine?
21 are outside the scope of this deponent's 21 MS. SKELLY: Yes --
22 authorization because he is not with the Legislature 22 THE REPORTER: Thank you.
23 so he can't interpret the statute. So please go 23 MS. SKELLY: -- that's fine.
24 ahead with your questions but keep in mind what his 24 BY MR. ROBINSON:
25 role is here today in terms of what he's been 25 Q So looking back at Exhibit Six, there's the
Page 126 Page 128
1 language, "Open carrying of a handgun by an 1 document.
2 authorized participant --" 2 BY MR. ROBINSON:
3 THE REPORTER: "By an authorized --" 3 Q All right. The Legislative bill analysis
4 MR. ROBINSON: An authorized, yes. 4 document you're referring to is about a different
5 THE REPORTER: Yes, sir. 5 statute, right?
6 BY MR. ROBINSON: 6 A Your question dealt with an exemption to
7 Q Who is responsible for authorizing 7 unloaded carry --
8 participants in that section? 8 Q Right.
9 MS. SKELLY: Objection; exceeds the scope. 9 A -- right? And it deals with entertainment
10 BY MR. ROBINSON: 10 firearms permits so this document doesn't have the
11 Q You can answer. 11 actual Penal Codes listed out in this document. I
12 A Okay. If I was trying to determine that on 12 assume there's -- this was an attachment or connected
13 my own as the representative of the Department, I would 13 to the actual Codes involved in the bill. To me, these
14 potentially seek out the Legislative bill analysis and 14 are possible, they're possibly connected. Back when
15 try to find out if there's anything in there that would 15 this document was created in 2004 the Penal Codes were
16 help -- 16 generally in the 12000 series. In 2012, the
17 THE REPORTER: "Bill analysis --" 17 Legislature renumbered all the Penal Codes so as they
18 THE WITNESS: -- the Legislative bill 18 sit now, this 26375 that is in, I'm referencing now
19 analysis and try to find out if there was helpful 19 from Exhibit Six, that might be what's referenced in
20 language in that document. In this case, while we've 20 page two farther up in existing law where you see let's
21 been on break, I've reviewed the document you 21 say, 12078, 12072. The Legislature renumbered
22 provided me earlier, Exhibit Three. It's page two, 22 everything so it's possible that they are really the
23 the bottom third of the page. It says, "Comments" 23 same thing but I don't have the ability as I sit here
24 and then it says, "Author's statement." There's 24 today to be a hundred percent sure but I want to at
25 basically three paragraphs there and if it's okay, I 25 least point you in the right direction that really they
Page 127 Page 129
1 would like to read this to see if it's responsive to 1 could be talking about the same thing and it's
2 your question. 2 unfortunately confusing the way they renumbered the
3 MR. ROBINSON: Sure. 3 Penal Code and specific to all the weapons sections.
4 THE WITNESS: "In order for prop firearms 4 Q Do you know one way or another whether the
5 to be loaned frequently for use in a motion picture, 5 bill analysis that you're looking at, Exhibit Three, is
6 television, video, theatrical, or other 6 for the bill that put in place Section 26375?
7 entertainment, production or event the loaning person 7 MS. SKELLY: Objection; exceeds the scope.
8 must be a licensed firearms dealer and the person 8 THE WITNESS: Without further research, I
9 loaned the firearm must have an entertainment 9 can't make that call right this second.
10 firearms permit." Is that responsive to your 10 BY MR. ROBINSON:
11 question, Sir? 11 Q So circling back, if Mr. Zeleny has an
12 BY MR. ROBINSON: 12 entertainment firearms permit is he then an authorized
13 Q Is it your understanding that a person who 13 participant in a motion picture, television or video
14 has an entertainment firearms permit is an authorized 14 production or entertainment event?
15 participant within the meaning of Section 26375? 15 MS. SKELLY: Objection; exceeds the scope.
16 MS. SKELLY: Objection; exceeds the scope. 16 THE WITNESS: There may be further bills that
17 THE WITNESS: All I can tell you is that if 17 happened after 2004. This one here references 2004
18 I had to try to figure that out on my own, I'm going 18 and when I say, "This one here," I'm speaking of
19 to review the documents and then seek potential 19 Exhibit Three which is the bill analysis.
20 clarification from the Legislature. I don't know 20 THE REPORTER: "Which is the" what?
21 that there's something in the Penal Code that tells 21 THE WITNESS: The bill analysis for
22 us exactly what that phrase means and to my knowledge 22 Senate Bill 231. There may have been subsequent
23 the DOJ has not rendered an opinion or created 23 bills. I don't know that I can really answer it
24 regulations specific to that definition either. I 24 given what I have here in front of me right now.
25 can only look at the Legislative bill analysis 25 MS. RAUCH: And a belated objection. The
Page 130 Page 132
1 question was also vague, overbroad, and an incomplete 1 BY MR. ROBINSON:
2 hypothetical. 2 Q In order to become an authorized participant?
3 BY MR. ROBINSON: 3 MS. SKELLY: Objection; exceeds the scope.
4 Q So let me ask it a different way. If 4 MS. RAUCH: Same objections and join.
5 Mr. Zeleny wants to film himself doing protests and 5 THE WITNESS: Yeah. There may be other
6 make a video of his protests and he wants to carry, 6 things but that's all I can give you at this point.
7 openly carry, a handgun during the course of making 7 BY MR. ROBINSON:
8 that video, how does he become an authorized 8 Q Okay. What if Mr. Zeleny owns his own gun,
9 participant? 9 he doesn't need to get it from a prop house, he doesn't
10 MS. SKELLY: Objection -- 10 need to borrow it from anybody?
11 MR. ROBINSON: -- what's the process? I'm 11 MS. RAUCH: Same objections.
12 sorry, go ahead. 12 MS. SKELLY: Objection; exceeds the scope.
13 MS. SKELLY: Well, go ahead and finish your 13 THE WITNESS: I don't know that I've ever had
14 question. 14 this question posed to me before. I'm not sure that
15 BY MR. ROBINSON: 15 I have an answer or as I sit here, enough experience
16 Q What process is he required to follow to 16 to answer that question. There are multiple laws in
17 become an authorized participant? 17 play and I would want to work them out and I can't
18 MS. SKELLY: Objection; exceeds the scope. 18 give you an answer right at this moment.
19 MS. RAUCH: Also vague, overbroad, incomplete 19 BY MR. ROBINSON:
20 hypothetical. 20 Q What laws are in play?
21 THE WITNESS: So far your question doesn't -- 21 A The entertainment firearm permit laws, open
22 hasn't told me or given me direction on is this 22 carry laws, the dealer laws that deal with transfers of
23 filming event happening in a public place, is it 23 guns meaning the loans of guns potentially. If it's --
24 happening in his bedroom, in a football stadium or -- 24 in your hypothetical, it's a personally loaned weapon
25 can you narrow that a bit? 25 so I would want to make sure that there's no issues
Page 131 Page 133
1 BY MR. ROBINSON: 1 with a transfer of the weapon and the weapon was in his
2 Q Sure. Mr. Zeleny wants to film himself 2 name, et cetera. If he was or wasn't a prohibitive
3 protesting in the city of Menlo Park on a street corner 3 person that would sort of fall under the entertainment
4 carrying an unloaded handgun openly on his belt 4 firearm permit. If he could get a permit there should
5 holster. How does he go about qualifying as an 5 be no reason he's permitted so that would be a factor.
6 authorized participant in a video production? 6 There may be some local or county permits that I'm you
7 MS. SKELLY: Objection; exceeds the scope. 7 know that wouldn't be part of the DOJ discussion
8 MS. RAUCH: Same objections that I stated 8 necessarily but there may be some city or county
9 before and join Counsel's objections. 9 permits.
10 THE WITNESS: There would not be a possible 10 Q What type of city or county permits?
11 path that I can think of without first having an 11 MS. SKELLY: Objection; exceeds the scope.
12 entertainment firearms permit issued to him. He 12 MS. RAUCH: Join; also vague, calls for
13 would have to be linked potentially somehow to a prop 13 speculation, and an incomplete hypothetical, and
14 house that we've been discussing off-and-on all day 14 overbroad.
15 today that has a Federal firearms license that could 15 THE WITNESS: All I can say is that sometimes
16 loan him the gun minimally. There may be other 16 the cities require permits for demonstrations,
17 things in play but those are the two things that 17 marches, things like that, that could be going on. I
18 might have to be involved and I'm trying to put this 18 don't know what all every single city has in their
19 in terms of if MGM or some other movie's going to 19 Municipal Codes. For example, they may have
20 happen here in San Francisco tomorrow, a prop house, 20 different scenarios where they require a permit for a
21 they would issue the gun to the person that is not 21 parade or some other activity, parties and things
22 one of their employees and that person would have to 22 like that. There's various things that might be in
23 have an entertainment firearms permit. There may be 23 play. You asked for various laws and I'm trying to
24 other things I can't think of right now but minimally 24 say that there could be some city or county things in
25 that's what would have to be in play. 25 play that are outside my scope.
Page 134 Page 136
1 BY MR. ROBINSON: 1 legal conclusion.
2 Q So in order to fall within the entertainment 2 MS. RAUCH: Join.
3 production or event exception to be under the open 3 THE WITNESS: My question is was there a
4 carry law does Mr. Zeleny have to go get a permit from 4 question? It sounded like a statement to me.
5 the City of Menlo Park? 5 BY MR. ROBINSON:
6 MS. SKELLY: Objection; exceeds the scope. 6 Q Yeah. Your question is does he have to get
7 MS. RAUCH: Join; also vague, incomplete 7 -- in order to not -- in order to fall within 26375 is
8 hypothetical, calls for speculation, lacks 8 it the position of the DOJ that Mr. Zeleny is required
9 foundation, vague, and overbroad. 9 to get some kind of a permit from the City of Menlo
10 THE WITNESS: I think that's best asked -- 10 Park?
11 that question would be best asked of someone at the 11 MS. SKELLY: Objection; exceeds the scope.
12 City that would be involved in issuance of -- 12 MS. RAUCH: Same objections as I've stated
13 THE REPORTER: "That question --" 13 previously.
14 THE WITNESS: That question would be best 14 THE WITNESS: I don't think I have the
15 asked of the City of Menlo Park; their Permits Unit. 15 knowledge to answer that question. I think I would
16 I don't know specifically if they have something that 16 have to elevate something like that above me to
17 would require that. I don't know. 17 potentially get something like that if it was posed
18 BY MR. ROBINSON: 18 to us other than in this fashion here.
19 Q So the DOJ is in part responsible for 19 BY MR. ROBINSON:
20 enforcing State criminal laws, right? 20 Q If Mr. Zeleny has an entertainment firearm
21 A Yes. 21 permit from the DOJ does that make him an authorized
22 Q Okay. Does the DOJ have a position on 22 participant within the meaning of 26375?
23 whether in order to qualify as an authorized 23 MS. SKELLY: Objection; exceeds the scope,
24 participant within the meaning of Section 26375 of the 24 and asked and answered.
25 Penal Code, Mr. Zeleny has to get a permit from a local 25 THE WITNESS: I would have the same answer as
Page 135 Page 137
1 body; a city or county? 1 I did to the last question.
2 MS. SKELLY: Objection; exceeds the scope. 2 THE REPORTER: Sorry?
3 MS. RAUCH: Join. 3 THE WITNESS: I would have the same answer as
4 THE WITNESS: And as I said earlier there 4 I did to the last question. I would attempt, if I
5 may be a scenario where the city would require 5 became aware of such a question through a normal
6 something like that but I don't have personal 6 course of business, I would attempt to elevate that
7 knowledge if it would or wouldn't. This is a 7 through the chain of command because again, it's a
8 scenario that I've never encountered so it's a little 8 scenario that we or I have not encountered.
9 bit sort of like a unicorn. 9 BY MR. ROBINSON:
10 BY MR. ROBINSON: 10 Q The phrase, "Authorized participant," is the
11 Q So I'm not so concerned with Mr. Zeleny 11 authorization in your understanding of the motion
12 violating a city permitting ordinance. As his lawyer, 12 picture, television, video production or entertainment
13 I'm a little bit concerned about him getting -- 13 event" or is it of the particular participant in the
14 THE REPORTER: "As his lawyer --" 14 event?
16 Q -- I'm a little bit concerned about him 16 THE WITNESS: This type of definition if it
17 getting arrested for openly carrying a firearm so I'm 17 was ever created would ideally flush out the answer
18 trying to understand if the DOJ has a position on what 18 to the question you just asked me but at this time we
19 he needs to do to fall within the authorized 19 do not have to my knowledge something in regulations
20 participant exception. 20 or in the Penal Code that gives us guidance to your
21 MS. SKELLY: Objection; exceeds the scope. 21 specific question.
22 MS. RAUCH: Join. The question is also vague 22 BY MR. ROBINSON:
23 and an incomplete hypothetical and calls for 23 Q Are there particular people within the DOJ
24 speculation, lacks foundation, and is overbroad. 24 that you would talk with about the question?
25 MS. SKELLY: Objection; also calls for a 25 A Yes.
Page 138 Page 140
1 Q Who are those people? 1 director of our program side about you know the
2 A I would talk with our acting director, I 2 entertainment firearms permit process or you know,
3 would talk with the assistant director of our program 3 who's authorized, who's not authorized, things like
4 side which handles the compliance and permitting side, 4 that. In general, if somebody has a permit, that is
5 I would speak with the deputy attorney general that 5 something we would have talked about, is there a permit
6 I've referenced before that works directly for the 6 or not, and that's about it so hopefully that's
7 acting director and there may be additional staff at 7 helpful.
8 the Attorney General's office in its completely 8 Q I'm just going to go ahead and mark this as
9 separate building that may be involved in some kind of 9 Exhibit Seven.
10 a decision like that but it would be above my head or 10 (Document described in the Index
11 above my pay grade to know who those are as I sit here. 11 was marked as Plaintiff's Exhibit
12 Q You've reviewed the complaint in this case? 12 Seven for Identification.)
13 A Yes. 13 THE WITNESS: Okay, Number Seven. (Witness
14 Q The complaint refers to the "Authorized 14 reviewed document.) Okay, I've loosely reviewed it
15 participant in a video, motion picture, television 15 just now.
16 production or entertainment event;" do you recall 16 BY MR. ROBINSON:
17 seeing that? 17 Q Sure. So for the record, Exhibit Seven is
18 A Yes. 18 multiple pages, DOJ 934 through 940, correct?
19 Q Okay. Do you recall understanding when you 19 A Yes, sir.
20 read the complaint in this lawsuit that the definition 20 Q All right. Do you recognize it?
21 of "Authorized participant" is one of the issues that's 21 A Yes, it appears to be a breakdown of the
22 being dealt with here? 22 Penal Code Section 26400.
23 MS. SKELLY: Objection; exceeds the scope. 23 Q 26400 is the ban on open carry of long guns;
24 THE WITNESS: I'm trying to see if that was 24 is that correct?
25 something that I focused on. Do you mind if I look 25 A Yes.
Page 139 Page 141
1 at I think it's item one -- 1 Q What are long guns?
2 MR. ROBINSON: Exhibit One? 2 A So long guns are anything that's not a
3 THE WITNESS: -- or Exhibit One? 3 handgun. Generally, that's going to fall into two
4 MR. ROBINSON: Sure. 4 larger categories which would be a rifle, shotgun.
5 THE WITNESS: Do you mind if I look at it. 5 Occasionally, you're going to have another scenario
6 again? (Witness reviewed document.) So with 20 6 where there's a receiver or yeah, basically, a receiver
7 different items here what comes to mind is one of the 7 which is the basic component that you would attach a
8 documents that I reviewed and I spoke about earlier 8 staff or a barrel to and the receiver -- when you're
9 was the application for the entertainment firearms 9 talking about a receiver it's generally linked to a
10 permit. I've read I'm sure all of our forms multiple 10 rifle or a shotgun if you're talking about a frame
11 times in my career. I don't know that I focused on 11 that's going to link -- that has a basic part to a
12 the idea that the authorized participant was not 12 handgun so I just want to make a divide there. If I
13 clear. I can say that -- and I've reviewed various 13 speak about a frame, I'm generally going to talk about
14 Penal Codes as part of my prep for this interview or 14 a handgun. If I say, "Receiver," I'm speaking of
15 deposition. I don't know -- I don't know that that 15 either a rifle or a shotgun under the long gun
16 was something I felt I had to really dig into or seek 16 umbrella.
17 clarification from my chain of command so hopefully 17 Q Got it. So guns with a frame are typically
18 that's responsive. 18 handguns. Guns with a receiver --
19 MR. ROBINSON: It is, so you answered my 19 THE REPORTER: Start again please.
20 next question. 20 BY MR. ROBINSON:
21 BY MR. ROBINSON: 21 Q Guns with a frame are typically handguns and
22 Q Did you talk to any of the people you 22 guns with a receiver are typically long guns?
23 mentioned about "Authorized participant?" 23 A Correct.
24 A I don't know that within it, it came up, and 24 Q Under 26400, other than the list of
25 I don't recall speaking to for example the assistant 25 exceptions, is there any way for an ordinary citizen of
Page 142 Page 144
1 California to carry a long gun in a public place in an 1 statutes, the open carry statutes, carve out motion
2 incorporated city or city and county? 2 picture, television or video production --"
3 A I can't think of one. 3 THE REPORTER: "Motion picture --"
4 Q Okay. Let's go on to Page DOJ 936. 4 MR. ROBINSON: Let me start again.
5 A (Witness reviewed document.) Okay. 5 BY MR. ROBINSON:
6 Q Do you recognize the statute there; 26405? 6 Q Do you know why the statutes carve out motion
7 A Yes. 7 picture, television or video production or
8 Q It's the exceptions to the long gun open 8 entertainment events and not other types of expressive
9 carry statute, correct? 9 activity?
10 A Yes. 10 MS. SKELLY: Objection; exceeds the scope,
11 Q Let's go on to the next page and I'm going to 11 calls for speculation.
12 ask you about Point R, Section R. 12 THE WITNESS: One of the documents that I
13 A (Witness reviewed document.) Okay. 13 reviewed today is in this stack. If I can go back to
14 Q Do you see the first clause, "By an 14 it I can make a reference that I think is responsive
15 authorized participant?" 15 to your question.
16 A Yes. 16 MR. ROBINSON: That's fine.
17 Q Okay. Does "Authorized participant" in 17 THE WITNESS: (Witness reviewed documents.)
18 Section 26405(R) mean the same thing as in 26375? 18 So Exhibit Three, in summary there's
19 MS. SKELLY: Objection; exceeds the scope. 19 discussion in this document that talks about at some
20 MS. RAUCH: Calls for speculation, lack of 20 point around 2003, 2004, ATF, which is the Bureau of
21 foundation. 21 Alcohol, Tobacco and Firearms sort of reinterpreted a
22 THE WITNESS: I don't know that this has been 22 policy or ruling that they had in the past as it
23 any -- has been defined in a similar manner. It 23 applied to prop houses loaning out guns during the
24 looks like there's a lack of a definition about that 24 creation of movies or television shows, et cetera,
25 same phrase regarding handguns so and again I repeat 25 and my department had discussions and they had -- the
Page 143 Page 145
1 that a regulations to my knowledge don't have a 1 two Government agencies came up with a possible
2 definition pertinent to that as it pertains to 26405. 2 solution and apparently they must have worked with
3 BY MR. ROBINSON: 3 the Public Safety Committee as it's depicted here in
4 Q So the question is would the discussion we 4 Exhibit Three on page one to come forward with some
5 just had about authorized participant under 26475 apply 5 -- an idea to clean this up so that ATF was okay with
6 to an authorized participant under 26405(R)? 6 current process as it pertained to California.
7 A Yes. If you asked me the same questions as 7 BY MR. ROBINSON:
8 you have on the handgun side of that then word-for-word 8 Q Okay. So the carve out for motion picture,
9 I would give you the same answer back as it pertains to 9 television, video production, entertainment events, in
10 long guns. 10 your understanding, came about to address the issue of
11 Q Meaning there's no specific definition and 11 the ATF?
12 regulations or opinions that you're aware of? 12 A That's --
13 A Correct. 13 MS. SKELLY: -- objection; exceeds the scope.
14 Q And in order to come to a definition of the 14 THE WITNESS: That's my understanding from
15 authorized participant in 26405(R) you'd have to 15 reading the document you provided to me. I until
16 consult with various people? 16 today didn't specifically know any of the back story
17 MS. SKELLY: Objection; exceeds the scope, 17 and I feel like the back story might be in this
18 also assumes facts not in evidence. 18 document.
19 THE WITNESS: Speaking of what my process 19 BY MR. ROBINSON:
20 would be is I would seek out further information from 20 Q Okay. Other than Exhibit Three are you aware
21 my chain of command and see if there was something 21 from any source about the reasons for the carve out --
22 that we were going to do with the definition or 22 THE REPORTER: "Are you aware --"
23 attempt to define it somehow. 23 BY MR. ROBINSON:
24 BY MR. ROBINSON: 24 Q -- from any other source the reasons for the
25 Q Do you have any understanding of why the 25 carve out?
Page 146 Page 148
1 A No. 1 MS. SKELLY: Objection; exceeds the scope.
2 Q Do you know whether other types of events 2 MS. RAUCH: It's also vague and overbroad,
3 were considered for a carve out? 3 incomplete hypothetical
4 MS. SKELLY: Objection; exceeds the scope, 4 THE WITNESS: Without a definition it's
5 calls for speculation. 5 kind of impossible to say what that might look like.
6 THE WITNESS: I do not. 6 BY MR. ROBINSON:
7 MR. ROBINSON: Why don't we take a just a 7 Q Has the DOJ to your knowledge ever authorized
8 2-minute break. I'm going to shift gears I think. 8 anyone to -- strike that. Has the DOJ ever authorized
9 THE VIDEOGRAPHER: The time is 3:28 P.M. 9 anyone to participate in a movie production, a
10 We're off the record. 10 television production, video production or an
11 (Recess taken) 11 entertainment event while openly carrying a firearm?
12 (Document described in the Index 12 MS. SKELLY: Objection; exceeds the scope.
13 was marked as Plaintiff's Exhibit 13 THE WITNESS: Regarding your question the
14 Eight for Identification.) 14 only thing I can think of that's sort of responsive
15 THE VIDEOGRAPHER: The time is 3:38 P.M. 15 is the issue of entertainment firearms --
16 and we're back on the record. 16 THE REPORTER: Hold on, "Necessarily
17 BY MR. ROBINSON: 17 responsive --"
18 Q Okay. I'm going to go ahead and hand you 18 THE WITNESS: We issue entertainment
19 Exhibit Eight. 19 firearms permits. We don't have any outside let's
20 A (Witness reviewed document.) I would just 20 say approval process to the bigger question.
21 like to read it. 21 BY MR. ROBINSON:
22 Q Oh, by all means. 22 Q All right. Going back to Exhibit Eight --
23 A I guess I've skimmed through it. 23 A (Witness reviewed document.)
24 Q For the record, Exhibit Eight is multiple 24 Q -- does this appear to be the Senate Public
25 pages, DOJ274 through 284, correct? 25 Safety Committee analysis of the bill that brought the
Page 147 Page 149
1 A Yes. 1 open carry of handguns, the ban on open carry of
2 Q Do you recognize it? 2 handguns into law?
3 A I recognize the format. This is a common 3 A Yes.
4 sort of style for the Senate Public Safety Committee to 4 Q Is 2011 the approximate time frame that the
5 create a bill analysis package. The Assembly has a 5 open carry ban on handguns was enacted?
6 different view and format for theirs but this is kind 6 A I'd have to look at the document in here to
7 of common for some of the older bills going through the 7 -- I would say the Legislative hearings began in 2011
8 Senate. 8 but typically they'd -- unless there's an emergency
9 Q Before we get into this, one more question on 9 clause or an urgency clause, sorry, then the Governor
10 the motion picture and video production, et cetera. 10 signs the bill. It doesn't immediately become
11 I'm looking at 26405(R) in Exhibit Seven. 11 effective. It's typically defined --
12 A (Witness reviewed document.) 12 THE REPORTER: "It doesn't --"
13 Q Okay. What is an "Entertainment event?" 13 THE WITNESS: It doesn't immediately become
14 MS. SKELLY: Objection; exceeds the scope 14 effective unless there's an urgency clause or it's
15 and calls for speculation. 15 somehow specified in the bill so it could have been
16 MS. RAUCH: Join. 16 let's say generated first in 2012. That's what I
17 THE WITNESS: I'm not aware that the Penal 17 would assume by looking at these dates. I can look
18 Code or DOJ regulations defines that term. 18 through here if you'd like me to dive in.
19 BY MR. ROBINSON: 19 MR. ROBINSON: No, that's okay.
20 Q And so -- strike that. Has there been any 20 THE WITNESS: All right.
21 interpretative guidance given by the DOJ in general on 21 BY MR. ROBINSON:
22 that term, "Entertainment event?" 22 Q My question was whether that helps refresh
23 A Not to my knowledge. 23 your recollection about whether Exhibit Three relates
24 Q Okay. Can you think of any examples of 24 to the same law?
25 events that would qualify as an entertainment event? 25 A Let me take a look at Number Three. (Witness
Page 150 Page 152
1 reviewed document.) Okay, so looking at Number Three 1 Q Under "Need for this bill," it talks about
2 and Number Eight, Exhibit Three and Number Eight, 2 the "Absence of a prohibition on open carry has created
3 sorry, Exhibit Three and Exhibit Eight, Exhibit Three 3 an increase in problematic instances of guns carried in
4 appears to tie into entertainment firearms permits and 4 public;" do you see that?
5 Number, sorry, Exhibit Eight is more linked to the open 5 A Yes.
6 carry of unloaded handguns. 6 Q Are you aware of any statistics about the
7 Q So a different statute? 7 increase in carrying guns in public?
8 A Different, yes, areas of law within the sort 8 MS. SKELLY: Objection; exceeds the scope.
9 of the overall firearms scheme. There may be some 9 THE WITNESS: I'm not aware of any statistics
10 crossover because of an exemption perhaps but that 10 regarding carrying unloaded guns in public which I
11 would be the -- it's fairly kind of a light connection. 11 think is your question.
12 Q Got it. Before the open carry ban on 12 MR. ROBINSON: That's my question.
13 handguns was enacted do you know if California ever had 13 THE WITNESS: Okay.
14 a prior law banning open carry? 14 BY MR. ROBINSON:
15 MS. SKELLY: Objection; assumes facts not in 15 Q Does DOJ keep that type of statistic?
16 evidence, calls for speculation. 16 A Earlier you asked a question that was in
17 THE WITNESS: To my knowledge, looking at 17 reference to our statistics kept regarding arrests or
18 this document you've provided me, Exhibit Eight, the 18 convictions and in general I said there could be some
19 prior legislation that the Senate calls out as being 19 stats if there were arrests, data or convictions that
20 somewhat relevant to the same subject matter. There 20 were sent to us by the Courts. That would be probably
21 are four separate bills that either died or failed to 21 the only thing that would tie into your question.
22 pass. I can say that over time if that's consistent 22 Q If the Legislature considered evidence of the
23 with many bills that ultimately are passed in some 23 increase in people carrying guns in public would that
24 form, that there's an attempt, not enough votes 24 be somewhere in the Legislative history?
25 happen or there's funding issues or it doesn't get 25 MS. SKELLY: Objection; exceeds the scope.
Page 151 Page 153
1 out of appropriations and gets signed or actually 1 THE WITNESS: You'd have to ask the
2 turned over to the Governor for signature or vetoed 2 Legislature where -- what they considered and what
3 so this is kind of consistent with other bills I've 3 they would have used. I don't know.
4 seen. To my knowledge, to go back to your question, 4 MR. ROBINSON: Got it.
5 the open carry of unloaded handguns would have 5 BY MR. ROBINSON:
6 started with it appears here AB144 which is the bill 6 Q Let's go on to the next page.
7 that was presented with a open carry ban. 7 A (Witness reviewed document.)
8 BY MR. ROBINSON: 8 Q It says, "Often, when an individual is openly
9 Q Okay, let me try ask you a clearer question. 9 carrying a firearm, law enforcement is called to the
10 Was there before the open carry ban on 10 scene with few details other than one or more armed
11 handguns that's reflected in AB144 was there ever a 11 individuals are present at the location;" do you see
12 prior open carry ban on unloaded handguns -- 12 where I'm referring to?
13 THE REPORTER: "Was there ever a prior --" 13 A Yes.
14 BY MR. ROBINSON: 14 Q Do you know if that's true?
15 Q -- open carry ban on unloaded handguns in 15 MS. SKELLY: Objection; exceeds the scope.
16 California to your knowledge? 16 THE WITNESS: I don't have personal knowledge
17 A Not that I can recall. 17 of that happening to agents from DOJ. I'm assuming
18 Q Do you know what motivated the open carry ban 18 there is some kind of testimony from another body
19 on handguns? 19 that may have provided that information to the
20 MS. SKELLY: Objection; exceeds the scope. 20 Legislature. Often there is testimony at these
21 THE WITNESS: Not off the top of my head. 21 hearings as they go through the Capital. That may
22 BY MR. ROBINSON: 22 have happened but I don't have personal knowledge if
23 Q Let's go to page 282, the bottom right-hand 23 it did or it didn't.
24 corner. 24 BY MR. ROBINSON:
25 A (Witness reviewed document.) Okay, 282? 25 Q Do you know as a factual matter based on your
Page 154 Page 156
1 experience or your communication with law enforcement 1 document earlier when you first handed it to me, I
2 whether that's a true statement? 2 don't recall having any direct conversations you know
3 MS. SKELLY: Objection; exceeds the scope, 3 about something like that. It's not something the
4 calls for speculation. 4 DOJ gets involved in. I'd say we're somewhat
5 THE WITNESS: If I've had a conversation like 5 isolated from this matter because we're not a first
6 that it would be quite infrequent and nothing's 6 responder that's going to be --
7 really coming to mind right now. 7 THE REPORTER: "That's going to --"
8 BY MR. ROBINSON: 8 THE WITNESS: Yeah, sorry. That's going to
9 Q Are you aware of any crime ever being 9 -- we're not going to be involved with this matter
10 committed in connection with a person openly carrying a 10 because we're not dealing with 911 calls about
11 handgun? 11 something like this --
12 MS. SKELLY: Objection; exceeds the scope. 12 THE REPORTER: Thank you.
13 THE WITNESS: I believe you asked a similar 13 THE WITNESS: -- as a concern. You bet.
14 question earlier and I don't think I had any 14 BY MR. ROBINSON:
15 information regarding that. 15 Q Did DOJ give any input about the open carry
16 BY MR. ROBINSON: 16 ban on handguns when it was proceeding through the
17 Q Let's go on to Page DOJ286. 17 Legislature?
18 A (Witness reviewed document.) 18 MS. SKELLY: Objection; exceeds the scope,
19 Q There's, under Section Four, there's the 19 calls for speculation.
20 indented text and I'm asking about the first paragraph 20 THE WITNESS: It's possible but I don't know
21 of indented text starting with "The practice --" 21 if we did or didn't at that time. I had a different
22 A Okay, I see that. 22 assignment at the time when this was going through.
23 Q The second sentence starts out, "While 23 BY MR. ROBINSON:
24 PORAC --" do you see that? 24 Q What was your assignment?
25 A Yes. 25 A I was special agent supervisor and I was a,
Page 155 Page 157
1 Q Do you know that acronym? 1 in a sense, a firearms expert so I would drive up and
2 A PORAC -- 2 down the state assisting other agencies with assault
3 Q Yes. 3 weapon testimony, interacting with ATF as a task force
4 A -- or something like that. 4 officer helping them with Federal and kind of like
5 Q What is it? 5 joint State and Federal officer investigations. I
6 A Peace Officer Research Association of 6 would assist EPA's offices with testimony in cases that
7 California. They in a sense to my knowledge represent 7 they needed an expert on those matters. I would assist
8 the interests of some law enforcement agencies in the 8 our field reps on inspections.
9 state of California and they have a lobbying arm if you 9 Q I'm going to go ahead and mark this as
10 will if that makes sense. 10 Exhibit Nine.
11 Q This sentence says, "PORAC understands that 11 (Document described in the Index
12 most of these open carry demonstrations are being done 12 was marked as Plaintiff's Exhibit
13 by law-abiding citizens;" do you see where I'm -- 13 Nine for Identification.)
14 A -- yes, I see, yeah, where you're -- 14 MS. SKELLY: Nine, you said?
15 Q Do you have an understanding one way or the 15 MR. ROBINSON: Nine.
16 other whether most of the open carry demonstrations 16 MS. SKELLY: Okay.
17 were done by law-abiding citizens? 17 THE WITNESS: (Witness reviewed document.)
18 MS. SKELLY: Objection; exceeds the scope, 18 Okay, I've reviewed it, Sir.
19 lacks foundation. 19 BY MR. ROBINSON:
20 THE WITNESS: Other than skimming this -- 20 Q Other than looking at Legislative history
21 MS. RAUCH: -- vague. 21 materials do you have any knowledge about what factors
22 THE WITNESS: Sorry. 22 the Legislature considered in deciding whether to enact
23 THE REPORTER: Hold on. Okay. 23 the open carry ban?
24 MS. RAUCH: Vague. 24 MS. SKELLY: Objection; exceeds the scope,
25 THE WITNESS: Other than skimming this 25 calls for speculation.
Page 158 Page 160
1 THE WITNESS: So Exhibit Nine that you've 1 calls for speculation.
2 handed me obviously is a press release and it gets 2 THE WITNESS: I'm not sure what he's
3 into some statements from the author of this 3 referencing there and he doesn't call it a particular
4 particular bill, AB144, and it brings up the 4 Penal Code so I can't really guess.
5 California Police Chiefs Association and rank and 5 BY MR. ROBINSON:
6 file law enforcement over some concerns expressed 6 Q There just wasn't a ban at the time?
7 apparently by those groups to him. 7 A It's possible that's he's referring to and
8 BY MR. ROBINSON: 8 there's only the concealed weapons laws at that point.
9 Q So let me try to rephrase that. Other than 9 Maybe that's what he's getting at. I don't know.
10 looking at the Legislative history documents, not just 10 Q Okay, let's mark this as Exhibit Ten.
11 this report that is Exhibit Eight and Exhibit Nine, but 11 (Document described in the Index
12 just in general, Legislative history materials, other 12 was marked as Plaintiff's Exhibit
13 than the Legislative history materials do you have any 13 Ten for Identification.)
14 information about the reasons behind the open carry 14 THE WITNESS: (Witness reviewed document.)
15 ban? 15 BY MR. ROBINSON:
16 MS. SKELLY: Objection; exceeds the scope and 16 Q Okay. For the record, Exhibit Ten is
17 asked and answered. 17 multiple pages, DOJ1053 through DOJ1059, correct?
18 THE WITNESS: No. 18 A Yes.
19 BY MR. ROBINSON: 19 Q Okay. Do you recognize it?
20 Q I just want to look at Exhibit Nine briefly 20 A I recognize the format as consistent with an
21 starting with the second paragraph. 21 Assembly Public Safety bill analysis done at the time,
22 A (Witness reviewed document.) 22 and this is -- sometimes this is -- this could be a
23 Q Do you know what materials this statement is 23 larger one than I'm used to seeing as far as the volume
24 based off of? 24 of pages here.
25 MS. SKELLY: Objection; exceeds the scope, 25 Q Does it appear to relate to the ban on
Page 159 Page 161
1 calls for speculation. 1 carrying of long guns in public places?
2 THE WITNESS: I do not. 2 MS. SKELLY: Objection; exceeds the scope.
3 BY MR. ROBINSON: 3 THE WITNESS: Yes.
4 Q Do you know if there was any evidence to back 4 BY MR. ROBINSON:
5 up the statement that open carry people had been going 5 Q Was the long gun ban enacted after the
6 to various places throughout the state? 6 handgun ban?
7 MS. SKELLY: Objection; exceeds the scope, 7 A Using your terminology the open carry ban for
8 calls for speculation. 8 long guns was I guess enacted after the handgun ban
9 MS. RAUCH: It's also argumentative. 9 that we discussed a few minutes ago.
10 THE WITNESS: I do not. 10 Q Do you know why the Legislature enacted the
11 BY MR. ROBINSON: 11 long gun open carry ban?
12 Q In the next paragraph the last sentence says, 12 MS. SKELLY: Objection; exceeds the scope.
13 "We have a loophole that allows these modern day 13 THE WITNESS: Other than looking at the
14 cowboys to walk around carrying a gun on one hip and 14 language that I scanned through just now, no, I have
15 bullets or clips on the other." 15 no specific connections. There's, it's called out --
16 A I see that sentence. 16 apparently the handgun ban was -- the open carry
17 Q Do you know what the basis for that statement 17 handgun ban happened. Then people transitioned to
18 was? 18 long guns it appears and that was a period that
19 MS. SKELLY: Objection; exceeds the scope, 19 caused problems and this bill was a reaction to that.
20 calls for speculation. 20 BY MR. ROBINSON:
21 THE WITNESS: I do not know the basis. 21 Q Let's take another quick look at Exhibit
22 BY MR. ROBINSON: 22 Eight.
23 Q Are you aware of a loophole in the firearms 23 A (Witness reviewed document.)
24 statute at the time this AB144 was proposed? 24 Q So Exhibit Eight, on the first page of this,
25 MS. SKELLY: Objection; exceeds the scope, 25 "Support" and then "Opposition;" do you see that?
Page 162 Page 164
1 A Yes. "Support?" 1 about these specific bills. I can say in general
2 Q Yes. It lists a number of groups that 2 there's -- when the hearing happens and Public Safety
3 support AB144 -- 3 specifically there are -- the author gets a
4 A Yes, I see that. 4 statement, the supporters get time to talk about it,
5 Q -- and then it lists opposition. 5 and then the opposition gets time to talk about it so
6 A Yes. 6 assuming those entities were also present during the
7 Q Okay. Those are groups who opposed AB144? 7 hearing there would have been an opportunity for
8 A Yes. 8 discussion between the author and the various
9 Q Do you know whether the points made by the 9 committee members. They can ask questions of those
10 opposition were considered before AB144 was enacted? 10 people that attend the hearings.
11 MS. SKELLY: Objection; exceeds the scope, 11 BY MR. ROBINSON:
12 calls for speculation. 12 Q Do you know if that happened in the case of
13 THE WITNESS: All I can comment on that is 13 AB144 or AB1527?
14 the -- as typical for this type of legal analysis the 14 MS. SKELLY: Objection; exceeds the scope.
15 supporters and the opposition are often given a 15 THE WITNESS: I do not know but there might
16 chance to make a comment and it's put into the record 16 be video record of that and that would be kept in the
17 in a sense. So on Page DOJ000286, also referred to 17 Legislative video files, I think it's called the Cal
18 on Page 13 at the top right, there's a paragraph 18 Channel, and there may be some record of that.
19 five, "Arguments in opposition. The NRA, National 19 BY MR. ROBINSON:
20 Rifle Association and the California Rifle and Pistol 20 Q Do you know whether any statistical evidence
21 Association have an opposition statement," so as to 21 was considered in enacting either AB144 or AB1527?
22 your question, "Were they considered," it was noted 22 MS. SKELLY: Objection; exceeds the scope.
23 here. As to level of consideration, I have no idea. 23 THE WITNESS: I personally do not get a video
24 BY MR. ROBINSON: 24 if there is video. Sometimes the hearing are
25 Q Was AB1527, the open carry ban on long guns, 25 recorded, sometimes they're not. There might be
Page 163 Page 165
1 opposed by anyone that you know? 1 evidence of statistics presented by one or both
2 MS. SKELLY: Objection; exceeds the scope. 2 sides.
3 THE WITNESS: (Witness reviewed document.) 3 MR. ROBINSON: I'm marking this as Exhibit
4 Looking at DOJ001057, sorry, 58, DOJ001058, 4 Eleven.
5 and paragraph four, there's an argument in opposition 5 (Document described in the Index
6 noted from the NRA. I believe that's responsive to 6 was marked as Plaintiff's Exhibit
7 your question. 7 Eleven for Identification.)
8 BY MR. ROBINSON: 8 THE WITNESS: (Witness reviewed document.)
9 Q Do you know whether that opposition was 9 This one's two pages. I'm going to read
10 considered in enacting the statute? 10 this whole thing.
11 MS. SKELLY: Objection; exceeds the scope. 11 MR. ROBINSON: Sure.
12 THE WITNESS: Yeah, the author of the 12 THE WITNESS: That's all I can see.
13 document noted it but again the level of 13 MR. ROBINSON: Actually, if you don't mind
14 consideration, I have no idea. 14 why don't we take a 5-minute break.
15 BY MR. ROBINSON: 15 THE WITNESS: Okay, sure. Then I can read it
16 Q So in both Exhibit Eight and Exhibit Ten 16 during the break?
17 there's discussion about pro's and con's of the 17 MR. ROBINSON: Yes.
18 statute; is that a fair assessment? 18 THE WITNESS: Okay.
19 A Yes. 19 THE VIDEOGRAPHER: The time is 4:09 P.M.
20 Q Do you know whether any evidence was 20 We're off the record.
21 submitted to support the arguments made on either side 21 (Recess taken)
22 of that? 22 THE VIDEOGRAPHER: The time is 4:14 P.M.
23 MS. SKELLY: Objection; exceeds the scope, 23 We're on the record.
24 calls for speculation. 24 BY MR. ROBINSON:
25 THE WITNESS: I have no personal knowledge 25 Q We're back on the record. Exhibit Eleven is
Page 166 Page 168
1 two pages. The top left corner of the first page, 1 BY MR. ROBINSON:
2 "Riverside County, Stanley Smith, Sheriff Coroner;" is 2 Q Did any other law enforcement agency express
3 that correct? 3 to you problems that they were having with open carry?
4 A Yes. 4 MS. SKELLY: Objection; assumes facts not in
5 Q And you've read through Exhibit 11? 5 evidence, lacks foundation.
6 A Yes. 6 MS. RAUCH: Vague.
7 Q Do you have any understanding of why this 7 THE WITNESS: It's possible during day-to-day
8 letter from the Sheriff of Riverside County was not 8 conversations with hundreds of police departments and
9 included in the Legislative record for AB1527? 9 58 Sheriff's Departments that someone expressed a
10 MS. SKELLY: Objection; exceeds the scope, 10 concern about it and you know our customer support
11 calls for speculation. 11 center or field reps or one of our agents may have
12 THE WITNESS: I mean I looked at the document 12 been contacted. Myself or our Legislative Affairs
13 itself and then I referred to Exhibit Ten and if you 13 Office may have been reached out to by one of the
14 look at let's say, DOJ001059, the opposition list is, 14 authors of the various bills. I don't remember
15 has four different entities on there; California 15 really. I remember there being some buzz on the
16 Rifle and Pistol, National Rifle Association of 16 Internet, that type of thing, but again as far as
17 America, National Association for Gun Rights, 17 specific dates, I would just assume that most of the
18 California Right to Carry, and then it has the 18 concerns if there were some would have been happening
19 author, Gregory Pagan that created this document. 19 around probably 2011, 2012, because that's when these
20 I don't know if it was an oversight or it's 20 bills sort of began to get some traction. Although I
21 possible that the front of this document, the reverse 21 did mention there were some prior bills around 2008
22 page, which was 1053, it speaks to a summary. I 22 is when I took on more roles that lead me to the
23 don't know if this document is a summary of all of 23 position I have now so it's possible before that
24 the different things that they received and this was 24 things, conversations, may have happened with other
25 left off because there may be other things left off 25 people but I have no idea.
Page 167 Page 169
1 or is that just a summary of you know the bill 1 BY MR. ROBINSON:
2 itself. I'm not sure what their process is. 2 Q Okay. Is there some way that DOJ tracks its
3 Mr. Pagan would be the best person to ask that 3 communications with other either local entities or
4 question. 4 State entities?
5 BY MR. ROBINSON: 5 MS. SKELLY: Objection; vague.
6 Q Is this letter from the Riverside County 6 THE WITNESS: I'll answer in the terms of the
7 Sheriff the type of thing that would typically be 7 Bureau of Firearms where I work. If there's some
8 included in the Legislative history? 8 interactions and are you speaking about Legislative
9 MS. SKELLY: Objection; exceeds the scope. 9 concerns or just "Hey, what's going on with this" or
10 THE WITNESS: Yeah, I don't know their inner 10 -- could you narrow it down a bit?
11 practices. I have some general knowledge and 11 BY MR. ROBINSON:
12 probably more knowledge than the average person but 12 Q If local law enforcement were expressing
13 the real detailed stuff, that's going to be a 13 concerns to DOJ about open carry is there some way that
14 Legislative question-and-answer scenario, not for me 14 that would be tracked or reported?
15 to speak to. 15 A Okay --
17 Q All right. Do you know if open carry created 17 THE WITNESS: -- it's possible that our
18 a problem in California before the enactment of AB144? 18 bulletin for example that I've talked about today a
19 MS. SKELLY: Objection; exceeds the scope. 19 few times, that may have caused questions because we
20 MS. RAUCH: Join. 20 did put it in our bulletin to locals. There's a
21 THE WITNESS: I don't have any personal 21 possibility that there were phone calls made to us
22 knowledge of DOJ having a problem -- sorry. I don't 22 and if so it may, on our program side, percolated up
23 have any personal knowledge of it causing me a 23 you know to our lawyer on staff which is the DAG I
24 problem at work in my role but beyond that I don't 24 referenced. That's possible. I'm not aware of us
25 have any ability to speak to that. 25 keeping track of "Oh, my gosh, there's a hundred
Page 170 Page 172
1 calls a day coming in" or anything really fierce like 1 reviewed that area that you talked about between 15 and
2 that. You know there's been things that have 2 10 on the next page.
3 happened and the actual dealer record of sales system 3 Q Okay. In that section it lists a series of
4 has crashed and we get phone calls immediately on 4 reasons for enacting the open carry bans, correct?
5 something like that but I don't recall any impact for 5 A Yes.
6 the Bureau's operating procedures like in this 6 Q Do you know if any of those reasons given
7 instance. 7 were supported by evidence in the Legislature?
8 MR. ROBINSON: Why don't we mark this as 8 MS. SKELLY: Objection; exceeds the scope.
9 Exhibit 12. 9 THE WITNESS: You asked questions earlier
10 (Document described in the Index 10 that dealt with statistics and what was waived, what
11 was marked as Plaintiff's Exhibit 11 was not waived. Going back to those Legislative
12 12 for Identification.) 12 analysis documents that we've seen and talked about,
13 BY MR. ROBINSON: 13 that would be one of the things that we received
14 Q I'm trying to point you to particular areas. 14 advice, something responsive, but I don't have a
15 A Okay. (Witness reviewed document.) 15 personal in a sense knowledge base. I would go to
16 Q So for the record, Exhibit 12 is a multiple 16 those documents.
17 paged document captioned on the first page is, 17 BY MR. ROBINSON:
18 "Defendant Attorney General Javier Becerra's 18 Q Would you have any source of knowledge about
19 Responses to Plaintiff Michael Zeleny's First Set of 19 the evidence backing up the reasons given for enactment
20 Interrogatories," right 20 of the open carry statutes other than what's in the
21 A Correct. 21 Legislative history?
22 Q Let's turn to Page Six, Sir. 22 MS. SKELLY: Objection; exceeds the scope,
23 A (Witness reviewed document.) All right. 23 calls for speculation.
24 Q There's a paragraph in the middle of the page 24 THE WITNESS: I personally do not.
25 that discusses the ability to obtain licenses to carry 25 ///
Page 171 Page 173
1 firearms if the individual establishes good cause; do 1 BY MR. ROBINSON:
2 you see that? 2 Q So let's take a look at page 24, line 14
3 MS. SKELLY: Is that on Line 14? 3 through 25, line 5.
4 MR. ROBINSON: The sentence starts on 15 and 4 MS. SKELLY: I'm sorry, what was the first
5 carries over to 16. 5 page?
6 THE WITNESS: Yes, I see that. 6 MR. ROBINSON: It's 24, 14 to 25
7 BY MR. ROBINSON: 7 Interrogatory number ten.
8 Q What's the standard for good cause? 8 THE WITNESS: Let me review it real quick.
9 MS. SKELLY: Objection; exceeds the scope. 9 MR. ROBINSON: Sure.
10 THE WITNESS: With respect to a general 10 THE WITNESS: (Witness reviewed document.)
11 understanding, I think good cause is left to the 11 Okay, I've read that area.
12 issuing authority. It's not something the Department 12 BY MR. ROBINSON:
13 of Justice or the Attorney General gets involved in. 13 Q So carrying over to the -- you read the
14 There may be some connection to the "Peruta" case 14 response carrying over to page 25?
15 that I keep mentioning. There may be some "Peruta" 15 A Oh, I'm sorry, I stopped on line 25.
16 definition that you might find there but to my 16 Q Oh, no, page 25, line 5 --
17 knowledge the sheriffs can come up with their 17 A Okay, got it.
18 respective versions of good cause. 18 Q -- so read the whole response.
19 BY MR. ROBINSON: 19 A Okay. I read the total now as far as I
20 Q So the standard for good cause is in the 20 understand.
21 discretion of the local law enforcement agencies? 21 Q So this relates to something we talked about
22 A That's my understanding. 22 before relating to the entertainment firearm permit,
23 Q I want to focus on page eight, line 15, 23 right?
24 through page nine, line 10. 24 A Yes.
25 A (Witness reviewed document.) Okay, I've 25 Q All right. To the extent that a person is
Page 174 Page 176
1 using a firearm, an unloaded firearm, loaned to them, 1 California?
2 and they have an entertainment firearm permit, are they 2 MR. ROBINSON: Right.
3 allowed to openly carry a firearm in public as part of 3 THE WITNESS: Okay.
4 a video production? 4 BY MR. ROBINSON:
5 MS. SKELLY: Objection; exceeds the scope. 5 Q Okay. So the person with the firearm has an
6 THE WITNESS: I would go back to the same 6 entertainment firearms permit, he gets the firearm from
7 answer I gave you earlier which was the Penal Code 7 a prop house that is allowed by law to give him the
8 doesn't define it and I don't know that our 8 firearm. Can he openly carry the firearm in public as
9 regulations have to tie it into authorized 9 part of the video production without violating --
10 participant or that type of thing. They didn't go 10 THE REPORTER: "Can he openly carry --"
11 into defining it and to my knowledge the Legislature 11 BY MR. ROBINSON:
12 hasn't flushed that out. 12 Q -- the firearm in public as part of a video
13 BY MR. ROBINSON: 13 production without violating the open carry ban?
14 Q So presently you can't say whether -- 14 MS. SKELLY: Objection; exceeds the scope.
15 A (Inaudible.) Sorry. 15 MS. RAUCH: And incomplete hypothetical,
16 Q Do you need a second? 16 vague (Inaudible.)
17 A No, I just want to take a sip. 17 THE REPORTER: Vague and what?
18 Q Sure. 18 MS. RAUCH: Overbroad.
19 A Okay. 19 THE REPORTER: Thank you.
20 Q So presently are you able to say whether a 20 THE WITNESS: I think if I was posed this
21 person with an entertainment firearms permit could 21 question outside of the matter today, I would elevate
22 openly carry firearms loaned to them as entertainment 22 that to my chain of command and seek guidance. Right
23 props without, as part of a video production, without 23 now, I don't have a yes or a no answer for you.
24 violating the open carry statutes? 24 BY MR. ROBINSON:
25 MS. SKELLY: Objection; exceeds the scope. 25 Q If Mr. Zeleny wants to film himself with his
Page 175 Page 177
1 MS. RAUCH: And calls for an incomplete 1 firearm openly carried as part of a video production
2 hypothetical. 2 that he's making, what should he do?
3 THE WITNESS: Are you talking about a 3 MS. SKELLY: Objection; exceeds the scope,
4 scenario where a movie prop house is filming extras 4 calls for a legal conclusion.
5 in a movie that may have been issued guns by the 5 MS. RAUCH: Speculation, vague and incomplete
6 Federal Firearms licensed staff and there are permits 6 hypothetical.
7 from us in play? 7 BY MR. ROBINSON:
8 BY MR. ROBINSON: 8 Q Let me actually rephrase that. In order to
9 Q When you say, "Permits from us," what kind of 9 come within the exception to the open carry statutes
10 permits? 10 for video production, if Mr. Zeleny wants to film
11 A Entertainment firearms permits. 11 himself with a firearm that he owns as part of the
12 Q So let's do it this way. A person has an 12 video production, how can he do that legally?
13 entertainment firearms permit -- 13 MS. SKELLY: Objection; exceeds the scope,
14 A Okay. 14 calls for a legal conclusion.
15 Q -- is loaned a firearm by a person authorized 15 MS. RAUCH: Vague, overbroad, incomplete
16 to do that. 16 hypothetical, calls for speculation.
17 A Can you define "Authorized?" 17 THE WITNESS: Again, I think I would elevate
18 Q A person who has the legal right to loan a 18 that if this was posed to me on a phone call or a
19 firearm as an entertainment prop. 19 letter or something, I would elevate through my chain
20 A Okay, so I'm taking that as a Federal 20 of command --
21 firearms licensee that has an FFL department type and 21 THE REPORTER: "If I was --"
22 Dangerous Weapons Permit -- 22 THE WITNESS: I would elevate that question
23 THE REPORTER: "That has an -- " 23 through my chain of command to seek guidance on that
24 THE WITNESS: -- Dangerous Weapons Permit and 24 scenario and wait for an answer to come back to me
25 they're going to loan it out for a movie here in 25 before I responded to an individual.
Page 178 Page 180
1 BY MR. ROBINSON: 1 THE WITNESS: Could you clarify what
2 Q If you elevated it through the chain of 2 "Action" means?
3 command who would you elevate it to? 3 BY MR. ROBINSON:
4 A Probably simultaneously, I would ask for a 4 Q Other than speaking with Mr. Bertini -- did
5 meeting with our acting director and the deputy 5 you investigate Mr. Zeleny?
6 attorney general that's assigned. They may seek to 6 A No. I mean it's -- investigate means, to me,
7 pull in other people possibly but unless there was a 7 pulling a case number and go out doing surveillance and
8 conflict, I'd try to get something started that day and 8 things like that. I did not do that. I don't have
9 I don't know how quickly we would ultimately come to a 9 knowledge of our enforcement side doing something like
10 decision but I could initiate something with some of 10 that. Now, did our licensing side and permitting side,
11 the people in the building that day. 11 they probably checked the validity of "Is this active
12 Q Is the open carry ban an enforcement priority 12 right now," if they're, because we have a small number
13 for DOJ? 13 of these in the overall scope of the California
14 MS. SKELLY: Objection; exceeds the scope, 14 population and it's likely that the validity of his
15 calls for speculation. 15 permit was checked and that would be about it. I'm not
16 MS. RAUCH: It's also vague. 16 aware of Mr. Zeleny being a prohibitive person for
17 THE WITNESS: As I've said before, DOJ does 17 example which would cause us to revoke or prohibit him
18 not generally interact with people that are engaged 18 from renewing if something like that was to happen. If
19 in open carry activity. We would be more in a -- in 19 there's a renewal, we check, it's basically just
20 a sense, we're in a licensing role if you would 20 another background check every year and I'm not aware
21 because of the permits that are in play with the 21 of us figuring out that he's a prohibitive person,
22 entertainment firearm permits and potentially 22 something like that so I want to make you understand
23 dangerous weapons permits and maybe dealer 23 the -- if there's a criminal investigation or more of a
24 inspections. I can't think of a time where we've had 24 licensing just kind of compliance thing; that was more
25 to interview an open carry person or you know figure 25 passive.
Page 179 Page 181
1 out if there's anything illegal or not. 1 Q Okay. Do you know if a licensing compliance
2 BY MR. ROBINSON: 2 investigation was done in response to the contact from
3 Q Do you know the -- we talked earlier about 3 Chief Bertini?
4 some communications between Chief Bertini and DOJ about 4 MS. SKELLY: Objection; assumes facts not in
5 Mr. Zeleny's entertainment firearm permit. 5 evidence.
6 A I remember generally what we talked about 6 MS. RAUCH: Join.
7 earlier today. 7 THE WITNESS: The only thing I'm aware of is
8 Q Do you recall what the outcome of those 8 confirmation that there was a permit issue and then
9 conversations was between DOJ and Mr. Bertini? 9 ultimately it was not renewed.
10 MS. SKELLY: Objection; vague, calls for 10 BY MR. ROBINSON:
11 speculation. 11 Q Do you know why it wasn't renewed?
12 THE WITNESS: I can't recall that at some 12 A No, I don't.
13 point, Mr. Zeleny had a permit. As to the timing of 13 Q Other than looking into the validity of the
14 the contact from Commander or Chief Bertini and if he 14 permit do you know if DOJ took any additional action as
15 had it multiple years in a row or just one year, I 15 a result of the contact by Chief Bertini?
16 don't really know that. I just know that at one 16 MS. SKELLY: Objection; vague, asked and
17 point he did have one and I think now he does not. 17 answered.
18 It may be expired or something like that. 18 MS. RAUCH: And calls for speculation
19 BY MR. ROBINSON: 19 and assumes facts.
20 Q Do you know if DOJ took any action regarding 20 THE WITNESS: I mean, action could be a phone
21 Mr. Zeleny as a result of the conversation with Chief 21 call clarifying that, "Yeah, there's a permit and
22 Bertini? 22 it's -- here's the dates where it's valid," something
23 MS. SKELLY: Objection; vague, calls for 23 like that. If it wasn't a connection made on the
24 speculation. 24 first day there may have been some back-and-forth,
25 MS. RAUCH: Join; assumes facts. 25 either emails or phone calls perhaps, maybe a
Page 182 Page 184
1 voicemail left, I don't know. That would seem 1 there and go up a level to the Bureau. It's possible
2 logical activity. We typically will call back and 2 other people have had communications that I'm unaware
3 try to close the loop and move on to the next project 3 of and then the Department which is the third step up
4 if you will and that's all I have I guess on that 4 -- I don't know. Sometimes as it gets farther away,
5 note. 5 I wouldn't necessarily have a reason to know about
6 BY MR. ROBINSON: 6 something.
7 Q All right. Have you told me all of the 7 BY MR. ROBINSON:
8 things that you can remember DOJ doing in response to 8 Q Without limiting it to Counsel have you had
9 the contact from Chief Bertini? 9 any discussions with any representative of the City of
10 MS. SKELLY: Objection; vague, calls for a 10 Menlo Park about Mr. Zeleny's lawsuit?
11 narrative. 11 MS. RAUCH: Vague, overbroad.
12 MS. RAUCH: Assumes facts and speculative. 12 THE WITNESS: Not that I can recall. I would
13 THE WITNESS: Well, obviously we -- 13 say the prior contact that we discussed earlier was
14 THE REPORTER: Can you raise your hand up? 14 years ago. I don't even know if there was a lawsuit
15 THE WITNESS: Sorry, I'm tired. Let's see. 15 at that time. This, the events today, is something
16 At this time that's all I can remember. 16 that's obviously fresh. There's nothing fresh in my
17 BY MR. ROBINSON: 17 mind as far as me having communications with that
18 Q Can you remember any other instances where a 18 city or attorneys representing the city or something
19 local law enforcement agency has contacted DOJ about a 19 like that.
20 specific entertainment firearm permit? 20 BY MR. ROBINSON:
21 MS. SKELLY: Objection; exceeds the scope. 21 Q Have you had any discussions with Chief
22 THE WITNESS: To my knowledge, no, but I want 22 Bertini about Michael Zeleny's lawsuit?
23 to clarify that by saying we do -- we have had some 23 A No.
24 people become prohibitive and I don't know the 24 Q Have you had any discussions or
25 specific method by which we found that out. It could 25 communications with Counsel for the City of Menlo Park
Page 183 Page 185
1 have been someone was fingerprinted and that caused a 1 today?
2 hit somehow and then they reached out like, "Hey, 2 MS. RAUCH: Objection; it's totally
3 this guy's a stunt man or something and he just had 3 irrelevant, Counsel, and harassing to me --
4 this happen and we prohibited him," and they reached 4 THE WITNESS: Would you repeat the question?
5 out to the gun permit or something. That's possible 5 MS. RAUCH: -- and irrelevant.
6 but I don't have any specific knowledge. 6 BY MR. ROBINSON:
7 BY MR. ROBINSON: 7 Q Yeah. Have you had any discussions other
8 Q Have you had any communications with the City 8 than saying, "Hello," that kind of thing, with Counsel
9 of Menlo Park or Counsel for the City of Menlo Park 9 for the City of Menlo Park today?
10 about this lawsuit? 10 MS. RAUCH: Harassing, Counsel,
11 MS. SKELLY: Objection; exceeds the scope. 11 argumentative.
12 MS. RAUCH: Vague, overbroad. 12 THE WITNESS: Not that I can recall that had
13 THE WITNESS: Are you asking me -- 13 anything to do with this lawsuit, no.
14 THE REPORTER: Wait, wait -- 14 MR. ROBINSON: Okay. I don't have anything
15 THE WITNESS: Sorry. Are you asking me as a 15 further. Counsel may have questions.
16 person or are you asking me as a member of the Bureau 16 MS. SKELLY: I don't.
17 or Department? 17 MS. RAUCH: No.
18 BY MR. ROBINSON: 18 MR. ROBINSON: Okay, thank you for coming in
19 Q Let's start with you personally. 19 and bearing with us.
20 MS. RAUCH: Same objection. 20 THE WITNESS: Sure, no problem.
21 MS. SKELLY: Same objections. 21 THE REPORTER: Counsel, all counsel want
22 THE WITNESS: I can't recall speaking to 22 copies or --
23 anyone, Counsel-wise, or communicating with someone 23 MS. SKELLY: Yes, please.
24 that I knew was counsel for them. I can't recall 24 MS. RAUCH: Yes.
25 what department, I'm sorry, the Bureau, I'll start 25 THE REPORTER: Thank you, Counsel.
Page 186 Page 188
1 MS. SKELLY: Oh, and would you mind sending 1 CERTIFICATE OF DEPOSITION OFFICER
2 the transcript of Mr. Graham's testimony to me and 2
3 I'll take care of getting it to him and getting it 3 I, DAVID A. DISBROW, CSR, duly
authorized to administer oaths pursuant to Section
4 back to you. 4 2093(b) of the California Code of Civil Procedure,
hereby certifying that the foregoing proceedings
5 THE REPORTER: Yes, thank you. 5 were taken at the time and place therein stated;
transcribed by means of computer-aided
6 MS. SKELLY: Okay? 6 transcription; that the foregoing is a full,
complete and true record of said proceedings;
7 THE REPORTER: You'll stipulate? 7 I further certify that I am not of
Counsel or attorney for either or any of the
8 MR. ROBINSON: Yeah, we'll stipulate to that. 8 parties in the foregoing deposition and caption
named, or in any way interested in the outcome of
9 THE REPORTER: Okay. 9 this cause named in said caption.
10 THE VIDEOGRAPHER: Okay. This marks the end 10
11 of media unit number three of three in the videotaped 11 _______________ _____________________
DATE DAVID A. DISBROW
12 deposition of Blake Graham as a 30(b)(6) witness for 12 C.S.R. NO. 7768
13 the State of California Attorney General's office and 13
14 will conclude today's testimony. The time is 4:47 14
15 P.M. and we're off the record. 15
16 (The foregoing proceedings were 16
17 concluded at 4:47 P.M.) 17
18 18
19 19
20 20
21 21
22 22
23 23
24 24
25 25
Page 187
1 DECLARATION UNDER PENALTY OF PERJURY
2
3
4 I hereby certify under penalty of perjury that I
5 have read the foregoing transcript of my deposition;
6 that I have made such corrections as appear noted
7 herein, in ink, initialed by me; that my testimony
8 as contained herein, as corrected, is true and
9 correct.
10
11 DATED this _______ day of _______________2020,
12 at _______________________ California.
13
14
15
16
17
18
19 __________________________
20 Deponent
21
22
23
24
25

Zeleny V Brown Deposition Transcript of State DOJ Agent Blake Graham

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Zeleny V Brown Deposition Transcript of State DOJ Agent Blake Graham

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1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

4 MICHAEL ZELENY, ) Case No.

Watson Court Reporters (800) 373-0888 Page: 1 (1)

Watson Court Reporters (800) 373-0888 Page: 48 (186 - 188)

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