good morning you may it please the court and the barbaric counsel for apparently right i'd like to reserve three minutes for a medal if i may the constitution prevents the government from finally deprive any person of their property without due process of law it also prevents the government from seizing property without a reasonable justification if the district court's order and summary judgment before you today authorize the l a p d to do just that fortunately the district court's mistakes are banal it simply misunderstood some  and failed to recognize that there were genuine factual disputes making summary judgment inappropriate so this case came up here once before right that's correct a three judge panel sent it back and said something apparently the judge on this i'm having a hard time putting my arms around in the record now you're not challenging the original search warrant that four hundred dollars plus weapons is that that's not your th amendment violation correct that's correct your honor the th amendment elation that is being alleged in this case has to do with the final deprivation of the property either of that was when the city no longer had a reasonable justification to continue the seizure or when it was and it's i'm not sure how they were able to seize all of those got into the st place that being said because he wasn't ever have it in person but i recognize that he'd been arrested for a sting and so what did the search warrant say they could that he's arrested but then as part of his play agreement here brace for thirty six months he will not possess weapons so then he gets convicted of a misdemeanor so he's not a prohibited person now those  firearms i know it's very easy for a t f to run all of that they can run all of them they can tell you what happened with all of those firearms how many of the firearms are you not claiming interest in i can't tell from here  forty of them came up stolen or i'm just not clear to me how many are you saying that he's entitled to have i'm not really sure there was a there is a there is a  and it was in a it's an exhibit to the m s j that shows which firearms he was seeking those damages on ok but now somehow there was a lot of work that was done on some ninety something firearms or something along those lines why wasn't work being done on the other ones why wasn't he trying to get the other ones back during that period of time he was trying to get all of the firearms back yonder the fact of the matter is that the way the california law is and has been over history is that for the most restoration of violence is not necessary mr right this site is clear agreement said he had to present certain things evidence so are you claiming that some of their requests were things that people don't have to produce under the law that's not what i'm saying your honor what i'm saying is mr wright provided a sworn declaration that covered every single one of the firearms he was seeking to get back including the ones that had the original receipts for but in the market for the history again mr reich amassed his firearm collection over decades for for many many over many many years he didn't have a original receipts for a lot of those things and so instead he provided a sworn declaration under any p d policy the dish t buckets here putting aside the few that he didn't want out there is the ones that like we're already registered under col whatever that's called on a copper and i was like you know twenty or forty or so mike up and then and then the rest of the ninety were ones that he have receipts for that was a register but he provided a declaration for those right can do a more specific with regard to with regard to failing to give used in past illegal transfers even though that is not a grounds and really be policy for her grading this and particularly probable cause and because and even though they have no really not met a burden of proof that would allow them to them hold the firearms from him if they even if they even thought that that was true they also admitted that they gave no facts to his prior ownership the fact that they had seized those firearms direct and especially the ones that were seized directly from his possession this is required under state law presumptions of ownership evidence including evidence party theory or the th amendment if you were to go back and have a trial on this what would be the triable what are the disputed facts or what's the way that face that they se weapon based on that because you can't provide proof of red just because they weren't registered to you the end even though that wasn't required under the law at that time a just to dispose of the firearms because they had a two thousand and thirteen border the question comes back to really before that all of the steps that led to it did the city act reasonably in application in its application of billy peavey's policy and incorporated state laws when these partly relied on the availability of state court coast deprivation remedies that simply were not available to mr wright a fact that was made very clear when mr wright tried to get the california supreme court to overturn the time his state that the adverse ruling in the california court of appeal throwing out his state court torques on the grounds that ante slapping litigation privilege apparently immunize the city's conduct here so taking together just that the district court's order here in the decision and  state court action provide the government you're with near total me unity for the unjustified permanent seizure of property no matter what the legal or improper accept might take but there is a nd reason this case is distinguishable from justin and the court can find differently  in that case the phone ultimate seizure the alleged theft that took that happened there took place while the initial probable cause for that seizure was still in existence there was still there was no ongoing obligation of the government to the two thousand and eleven property during so that you know i argue that he had not met the burden of proof that his affidavit was not good due to the fact that it did not include anything that i could verify it had nothing to do with who bought the guns from or see a person or i'm sorry i i would be really i'm just wondering why that why the government was slow walking this whole way because a t f could run all of this for you know what laws applies at certain times and even when you're going to court all the time they're saying oh we're working our way through these ninety three we need more time we're something like that and finally the court got disgusted and just said why don't you guys just meet and confer and get all of this done so i mean it's like ok in the government thought this guy was a pretty bad guy even though you this is a former police officer that he has all these guns but then the reality of it is that they end up with a plea bargain of a misdemeanor so he's not after the thirty six months of this probation are over he can have firearms but it seems like the government's been slow walking that the whole way and doesn't want to give anything back to him to address the timeline and i think it's important again that there were three years between two thousand and six and two thousand and nine when he could not win when wright did not possess firearms under the plea agreement and also to stress that overarching all this is the idea that under perkins mr right now where and what is that what does that have to do with painting that that's fine your honor but i what i think is important is that under the plea agreement he had to submit proof of ownership to the los angeles police department and the record is undisputed that no evidence was produced until two thousand and ten the property returned motions that took place in two thousand and six that was denied it was because that there was no evidence presented whatsoever on the firearm property and then when you get to two thousand and ten officers are looking at the copies of the ninety four receipts and trying to do with a kid  then they asked to get the originals the originals couldn't be provided there was a dispute about whether they could be looked at in an office or not but in any event the originals didn't come until after the two thousand and eleven property hearing at which point the st evidence that really gets admitted to a court for resolution detectives edwards and tomkins ran all of those firearms and research on all of them and provided their declarations in response to the property return motion two thousand and six in the property returned motion in two thousand and eleven i think that's where some of the embers come about some of them being stolen or having mismatched serial numbers or board all serial numbers and all of that in those those declarations are in the record i would have to go and look at the brief provide the exact cites for those but i think both parties reference them mr mister  so we get to the destruction why didn't the l a p d give him notice that they were going to go in and ask for an order to destroy the guns i mean ultimately why we didn't give notice i don't know i think the officers believed that the process had truly run its course and i think that's why such and thirty four thousand is implicated here of the penal code because you have a situation where the last evidence of ownership was produced in two thousand and eleven the judge sent you guys back to figure it out well i will i mean where i don't exist it certainly he certainly would appear to be on notice and that i would i would grant for purposes of summary judgment that there is dispute about what happened in two thousand and eleven but i want to point out well is that the site they gave before at nine hundred and sixty one dollars where edwards himself testifies at the conclusion of the hearing quote the judge ruled in our favor and i would also point out the include the evidence did not compel the return of firearms listed and then goes on to say that right had the amongst the several remedies you could have pursued he could have saw a relief from the two thousand and eleven order so i think it's really important both for from a due process perspective and to so he knows that i would have had no reason with that declaration i would have signed it and that would have been the end of it but what i'm hearing and looking back at the record that declaration was not accurate about what that what they had been told previously now when there are the didn't when there are detective edwards misrepresented it or he misunderstood it whenever but it wasn't accurate and i'm assuming probably that that was also under someone in the city attorney's office reviewing that who could have been in court at that particular time so you know i don't know how i don't know how ally that i don't know how the sheriff for the city attorney's office can honestly say that they didn't think that he had any interest left in those guns and an x ray and to go and act party that doesn't look very good i appreciate that your hon you want to object to it you can why didn't they do that i don't understand and let me ask you this is it your position that the constitution doesn't require them to give this kind of notice i mean just cities position that the constitution because of the perkins involving the auctioning of property and that came our decision ca y l o r that we cite in the briefs that involves the transfer of property to a rd party not involved law enforcement agency and both of those cases one wi available to you and in fact if you take an exam it of it you know implicit in that is that at some point you're not going to get your property back if the property were turned pro you go get yours what you're saying is ok there was another potential avenue he could have stopped but you didn't tell him that you were going to destroy the guns there's there's two things there eleven dollars is that under perkins the initial notice would have been sufficient but even if that's not true or not the forfeiture after a period of time after six months there's no question about that but it's given him the notice and the opportunity to be heard say judge there is a dispute over whether or not you know i have ownership of these guns and i should have an opportunity to show you that that i have an interest in these guns and they shouldn't be destroyed mr callahan said when they presented that affidavit to the superior court judge you know routinely they were going to sign a no no e i don't understand how you can say i don't understand how you can take the position that he was not entitled to some notice you know i think i can make the argument that i can make under perkins and the statutes that are out there that provide the notice expand perkins beyond its reach but what i do think is important here is that there is no case that clearly establishes the right to bet additional that is here perkins if the court's going to conclude that perkins doesn't go as far as the city wants it to go given the statutory framework  like i don't think the law is clear clearly established perkins definitely does not hold that that that further some further additional notice pre destruction is required and in light of wizened kaylor it doesn't seem fair to hold the l a p d officers responsible for having you know guessed a different outcome in this case especially in light of the spirit court decision here that wayne rights attorneys procured addressing the perkins issue in this context and and saying that l a superior and entitled the officers here at least a qualified immunity and we've also made the additional argument that that decision should collaterally a stop right who is clearly a pretty with c r p a and it was you know the entire basis of that represented by competent counsel who connected all of the all d of the issues in this lawsuit with the special proceeding and it was very clear that the court addressed the constitutional question and the right and attorneys didn't appeal  connections between writers and attorneys but again at the very least i think qualified immunity applies here and on those grounds and it definitely applies on the th amendment side given the uncertainty about just the and the fact that the of decisions that officers make that are mistakes but it's not clearly established and we can't you know if there's a lot of there's certainly you know there's a basis for that but stealing is something that if you ask kindergartners they know that that's wrong i don't want to defend jessop on its facts what i want to say is that at the very least there is no accusation of deft here in the same sense we're talking about officers going into court  painting in order after years and years a of of a process and after your so of d having heard nothing from from from wayne right what's important about jessop is that you know and it doesn't resolve the constitutional question it all doesn't say it's not unlawful there it doesn't say the th member doesn't address that what it says is that the law hasn't been fairly established even if you look at that rooster versus back in the other cases in the th circuit which hadn't been adopted by the time that you know we had the actions in question here and what's important out all of these other circuit court cases that make it seemingly as though the th amendment doesn't apply to procedure conduct and you have to know from the st circuit involving the disposal how thank you case which is which distinguishes jacobson and place which you know all of these conduct you know many months or years down the road and i think what's clear when you look at jessop is how this is just at the very least a very unclear area of the law and the th of them its applicability here is a big question mark it passed well the other claim is a due process claim correct notice notice is fundamental to due process you know any any reasonable person would understand that notice is is fundamental  i just don't i don't i do not understand given that given the the long relationship here the taken place for a number of years that is that it reached the point where the officers decided we're going to destroy these guns they didn't tell them that that's what they were going to do we're going to go in and apply for an order and the response that the city has is that given perkins the district court cases that i cited that law wasn't clearly established the existence declaration because that is something that's referred to in the policy and they basically said because we thought this guy did all kinds of bad things in the nothing he'd been convicted of but that we thought he'd been all kinds of bad things and that's what they said and so it's not like if you stole my three hundred dollars or all car so i don't have registrations but my grandpa bought him from somebody back before you needed registrations and you just destroyed them did they actually i don't think that it's actually plausible that they actually thought he didn't own them  they just didn't think he should have them so they thought they could get away with destroying i don't think there's anything about getting away with it here i think the officers firmly believe that the that wainwright had not produced the evidence required by the policy  was when they're asked about this starting on one thousand five hundred and ninety dollars asked about why didn't accept the declaration they basically say it takes pages and it's but they basically the paraphrase it is well if we think you're a particularly bad person and you may have stolen guns or possess firearms that were registered or basic background and we're not going to accept a declaration why didn't they let a court decide that why didn't they just decide and then earned dollars guns my understanding is that if you allow me to very briefly address both parts of that question i appreciate it but the last part being why they do this is they had a nearly a year over year of not getting new evidence and over six months close to a year of having no contact trying to moved at that at the end of this process to have the guns destroyed and then very briefly i just want to just get to the policy here it says that it's the department has to accept reasonable proof of ownership registration must be accepted but registration is not necessary it says unless unless there's article probable to cause to disbelieve a sworn declaration a sales receipt or other proof of ownership shell constitute proof of ownership so you need a declaration plus and the court of appeal is very clear about that inciting barbiere you have a few minutes of rebuttal thank you i'd just like to make a few points quickly st with regard to whether or not qualified immunity is proper for this th amendment claim is simply absurd it is a well well established right that someone is entitled to note is an opportunity to be heard in a meaningful time before the final deprivation not simply underpins when the property is seized with regard to whether or not the declaration itself is sufficient evidence under the l a p d policy at best that's really unclear the way our client read it the way we read it is clear that a swarm declaration would be enough as long as there is an artic extremely additionally the week the city says here is kind of think paying playing fast and loose with what the facts are with regard to that declaration suggesting all it says is here's what it is lot many many dozens and hundreds of those firearms within d that operation explain exactly who mr wright purchased those firearms from if you listen to this man in if a judge if a jury heard this man which they should get the opportunity to instead of hearing this on image day they could know that he could sit there and rather watch who people these firearms from where he got them when he got him what he was eating for lunch that day mr wright has that information and they simply threw it away because they thought he was a bad guy this cannot  hundred people kept cropping up suggesting that mr wright abandoned it was really it's very clear undisputed that that those firearms were not that those were no those firearms were never made available for his return under the under thank you counsel thank you we appreciate your arguments this morning and also your willingness to participate by video thank you that ends our session for today