1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 Plaintiff contacted the court after the hearing and advised he intended to appear but was

delayed by the inability to locate parking near the courthouse. The court granted plaintiff’s

request to submit supplemental briefing to cover the points he had intended to make at oral

argument. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RICHARD E. WILMSHURST, 

Plaintiff, No. CIV S-04-0988 DFL KJM PS

vs.

BILL LOCKYER, Attorney General, ORDER AND

Defendant. FINDINGS AND RECOMMENDATIONS

 /

Defendant’s motion to dismiss the first amended complaint came on regularly for

hearing June 29, 2005. No appearance was made for plaintiff.1 Zackery Morazzini appeared for

defendant. Upon review of the documents in support and opposition and supplemental briefing

provided following the hearing, upon hearing the arguments of counsel, and good cause

appearing therefor, THE COURT FINDS AS FOLLOWS:

I. Background

On October 24, 2003, the Attorney General’s Office filed an Information in

Calaveras County Superior Court, charging plaintiff with nine counts of violating California

Case 2:04-cv-00988-DFL -KJM Document 80 Filed 08/02/05 Page 1 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

Penal Code section 12280(b) (possession of an assault weapon) and one count of violating

California Penal Code section 12220(a) (possession of a machine gun). Def’t’s First Request for

Judicial Notice (First Request), Ex. A (Information in People v. Wilmshurst, F2909). The

Superior Court dismissed the information on April 13, 2004. Pl.’s Exhibits Re: Chronology

(Chronology), Ex. 25 at 12 (reporter’s transcript of hearing). On April 22, 2004, defendant filed

a motion to resubmit the case to the magistrate, under the authority of California Penal Code

section 997. First Request, Ex. B (motion). 

Plaintiff filed this action on May 20, 2004.

The Superior Court heard argument on defendant’s motion to resubmit on

May 25, 2004. Chronology, Ex. 24 (reporter’s transcript of hearing). 

On June 4, 2004, plaintiff filed a motion for a temporary restraining order and

preliminary injunction in this action. 

On June 21, 2004, the Superior Court denied defendant’s motion to resubmit the

case to the magistrate and informed defendant his recourse was to refile criminal charges. 

Def’t’s Second Request For Judicial Notice (Second Request), Ex. C (order).

On July 7, 2004, this court issued an order and findings and recommendations

denying the temporary restraining order and recommending the preliminary injunction be denied. 

On the same date, defendant filed Information number F3229, charging plaintiff with the same

criminal charges. Second Request, Ex. D (Information). The July 7th findings and

recommendations were adopted in full on January 4, 2005. 

On July 12, 2004, defendant moved to dismiss this action. On October 12, 2004,

this court issued findings and recommendations recommending a grant of defendant’s motion to

dismiss based upon Younger abstention. This motion to dismiss was rendered moot by

plaintiff’s filing an amended complaint.

On March 11, 2005, a jury in the state court prosecution found plaintiff guilty of

possessing assault weapons and one MP-40 in his firearms inventory. First Am. Compl. at 5. 

Case 2:04-cv-00988-DFL -KJM Document 80 Filed 08/02/05 Page 2 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

On April 12, 2005, plaintiff filed his first amended complaint in this action. The

amended complaint is substantially similar to the original complaint but adds Calaveras County

Superior Court as a defendant, alleges preemption based on 22 U.S.C. § 2778 providing for

federal registration by exporters of firearms, and improper use of plaintiff’s importer’s inventory

under 26 U.S.C. § 5848. On April 22, 2005, defendant filed the pending motion to dismiss,

which plaintiff has opposed.

II. Standards For A Motion To Dismiss

In considering a motion to dismiss, the court must accept as true the allegations of

the complaint in question. See Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740

(1976). The court must also construe the pleading in the light most favorable to the party

opposing the motion and resolve all doubts in the pleader’s favor. See Jenkins v. McKeithen,

395 U.S. 411, 421 (1969). Moreover, pro se pleadings are held to a less stringent standard than

those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). A motion to dismiss

for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can

prove no set of facts in support of the claim that would entitle the plaintiff to relief. See Hishon

v. King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass’n, 651

F.2d 1289, 1294 (9th Cir. 1981).

Generally, a court decides motions to dismiss on the pleadings alone. A court,

however, may consider certain materials--documents attached to the complaint, documents

incorporated by reference in the complaint, or matters of judicial notice--without converting the

motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903,

908 (9th Cir. 2003). Records from the state court are subject to judicial notice. Miles v. State of

California, 320 F.3d 986, 987 n.1 (9th Cir. 2003); Fed. R. Evid. 201(d). Defendant’s July 12 and

September 22, 2004 requests for judicial notice previously have been granted. Plaintiff’s

Chronology of September 23, 2004, to the extent it can be read as a request for judicial notice,

will be granted now.

Case 2:04-cv-00988-DFL -KJM Document 80 Filed 08/02/05 Page 3 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 2

 Younger v. Harris, 401 U.S. 37 (1971).

4

Defendant argues that the case is subject to Younger2 abstention; the AntiInjunction Act prevents the court from acting, 28 U.S.C. § 2283; plaintiff lacks standing to

challenge California assault weapons laws under the Second Amendment; defendant is entitled to

Eleventh Amendment immunity as to plaintiff’s claims about missing coins and gold; and the

court should not retain jurisdiction over pendent state claims once the federal claims are

dismissed. Def’t’s April 22, 2005 Mot. to Dismiss (Mot. to Dismiss) at 4-13. 

Plaintiff counters that Younger abstention does not apply because the state

prosecution was taken in bad faith; the court should decline to apply Younger abstention because 

there are extraordinary circumstances present; and the Anti-Injunction Act does not apply. Pl.’s

Opp’n to Mot. to Dismiss (Opp’n) at 3-5. 

 III. Younger Abstention

In Younger, 401 U.S. at 43, 54, the Supreme Court recognized the “longstanding

public policy against federal court interference with state court proceedings . . .” and reversed the

District Court’s enjoining of a prosecution against Harris for violations of California’s criminal

syndicalism statutes. 

Subsequent cases have distilled the principles of Younger into a three-part test: a

federal court should abstain from adjudicating a lawsuit if (1) there are pending state judicial

proceedings, (2) the state proceedings implicate important state interests, and (3) the state

proceedings provide an adequate opportunity to raise federal questions. Middlesex County

Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). Even if the Younger factors

counsel abstention, a court may enjoin a proceeding if the plaintiff shows the prosecution is

undertaken in bad faith or for harassment. Younger, 401 U.S. at 54. 

/////

/////

Case 2:04-cv-00988-DFL -KJM Document 80 Filed 08/02/05 Page 4 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

A. Pending State Proceeding

Whether a state action is “pending” for Younger purposes is not determined by a

simple comparison of filing dates. Polykoff v. Collins, 816 F.2d 1326, 1332 (9th Cir. 1987). If

the state action was filed before the federal case proceeded beyond an embryonic stage or the

federal court has conducted any proceedings on the substance of the merits of the case, the first

Younger requirement is met. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238 (1984);

Doran v. Salem Inn, Inc., 422 U.S. 922, 929 (1975). Neither the denial of a temporary restraining

order, nor service of the complaint, nor the determination of a motion for a preliminary

injunction without a hearing constitute proceedings of substance on the merits of the action. 

Hicks v. Miranda, 422 U.S. 332, 338-39 (1975); Polykoff, 816 F.2d at 1332. In this case, the

state action, filed the same day as this court’s July 7, 2004 findings and recommendations

regarding injunctive relief, is “pending” for purposes of Younger abstention. 

In Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975), the U.S. Supreme Court

held that even where the appellee’s trial was over by the time Pursue brought its federal

complaint, a losing party like Pursue must exhaust its state appellate remedies before seeking

relief in the federal court, unless an exception to Younger applies. In World Famous Drinking

Emporium, Inc. v. Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987), the Ninth Circuit held, for

Younger abstention purposes, exhaustion of state appellate remedies did not occur until the

losing party appealed the adverse rulings to the state Supreme Court. Failure to exhaust state

appellate remedies satisfies the requirement of ongoing state proceedings. Id.

Plaintiff, who now has lost his case in state court, has not provided any evidence

to show he has exhausted his state appellate remedies. The first requirement of Younger thus has

been met.

B. Important State Interest

Younger held that interference with a state criminal prosecution would disrupt the

exercise of a basic state function, "prohibiting the State from carrying out the important and

Case 2:04-cv-00988-DFL -KJM Document 80 Filed 08/02/05 Page 5 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

necessary task of enforcing these laws against socially harmful conduct that the State believes in

good faith to be punishable under its laws and Constitution." Younger, 401 U.S. at 51-52. A

criminal prosecution implicates important state interests. 

Plaintiff relies on Champion International Corporation v. Brown, 731 F.2d 1406

(9th Cir. 1984), to argue the state has no interest in pursuing a federally licensed firearms

importer, because federal law preempts state regulation. Champion is inapposite, for it involved

a state civil action on a topic preempted by the federal Employment Retirement Income Security

Act, 29 U.S.C. § 1144(a). The instant case, in contrast, involves a criminal prosecution of gun

related offenses. While Congress has enacted extensive legislation in the field, federal law has

been interpreted to permit, not preempt, state regulation of firearms. Oefinger v. Zimmerman,

601 F. Supp. 405, 411-12 (W.D. Pa. 1984), aff’d, 779 F.2d 43 (3d Cir. 1985) (“the federal

scheme . . . does not displace the power of the State to determine that certain offensive weapons

should not be possessed within the boundaries of the State”). 

Given the importance of the state’s interest in firearms regulation, the second

requirement of Younger abstention has been met. 

C. Opportunity To Raise Federal Questions

“Where valid state interests are involved, a federal court should abstain ‘unless

state law clearly bars the interposition of constitutional claims.’” Middlesex County Ethics

Comm., 457 U.S. at 432 (internal citation omitted). Federal plaintiffs “need be accorded only an

opportunity to fairly pursue their constitutional claims in the ongoing state proceedings. . . .” 

Juidice v. Vail, 430 U.S. 327, 337 (1977); Communications Telesystems International v. 

California Public Utility Commission, 196 F.3d 1011, 1019-20 (9th Cir. 1999). Plaintiff has not

pointed to any procedural bar to the state court’s considering his preemption and Second

Amendment arguments in the pending criminal proceeding. See People ex rel. State Air

Resources Board v. Wilmshurst, 68 Cal. App. 4th 1332, 1333-34 (3d Dist. 1999) (considering

/////

Case 2:04-cv-00988-DFL -KJM Document 80 Filed 08/02/05 Page 6 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

preemption defense to state proceedings for emissions violations). Thus the third requirement of

Younger is met as well. 

D. Bad Faith

In Kugler v. Helfant, 421 U.S. 117, 126 n.6 (1975), the U.S. Supreme Court held

that in the Younger abstention context, bad faith “generally means that a prosecution has been

brought without a reasonable expectation of obtaining a valid conviction.” Plaintiff argues that

defendant knew he could not get a valid conviction because the prosecution was based on

information protected by 26 U.S.C. section 5848, a section of the Internal Revenue Code. Opp’n

at 3-4.

Section 5848 forbids the direct or indirect use of information, obtained from

federal firearm applications or registrations required to be retained or submitted to comply with

the Internal Revenue Code, as evidence against a person in a criminal proceeding with respect to

a violation of law occurring prior to or concurrently with the filing of the application or

registration. 26 U.S.C. § 5848.

In this case, it is not clear that section 5848 has any application to plaintiff’s

claims. The factual record does not show that the criminal proceeding was based on evidence

obtained from any of the records covered by section 5848. California firearms agents began

looking into the case after being notified of possible state law violations by a federal ATF agent,

who saw the illegal weapons during a routine ATF inspection. See, e.g., First Am. Compl., 

Ex. A. Plaintiff has not alleged facts or provided any information showing that the federal agent

disclosed information from covered records to the state or that the state used any such

information in its prosecution. Thus, plaintiff has not shown that the prosecution was brought in

bad faith, notwithstanding any theoretical protections section 5848 might provide him.

E. Extraordinary Circumstances

Plaintiff argues that he is suffering irreparable harm because the criminal action

violates the Fifth and Fourteenth Amendments. Also, he is in danger of losing his family’s

Case 2:04-cv-00988-DFL -KJM Document 80 Filed 08/02/05 Page 7 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

8

automobile business because of the conviction. Opp’n at 4.

In Younger, the U.S. Supreme Court suggested that extraordinary circumstances

might be present where a state statute being enforced violates the U.S. Constitution in every

clause, sentence and paragraph. Younger, 401 U.S. at 53-54. In Kugler, 421 U.S. at 124, the

U.S. Supreme Court held that Younger abstention should not be applied when extraordinary

circumstances make it impossible for the state court to fairly and fully adjudicate the federal

issues before it.

The extraordinary circumstances that plaintiff raises do not create an exception to

Younger. Moreover, the state penal statutes of which plaintiff complains do not constitute a

wholesale affront to the Constitution, cf. Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), cert.

denied, 540 U.S. 1036 (2003), and there is no basis for concluding the state courts cannot fairly

resolve plaintiff’s claims. Therefore, Younger abstention requires this court to defer to the state

proceedings. In light of this conclusion, the court need not reach defendant’s other arguments

regarding dismissal of the federal claims. 

F. State Claims

To the extent the complaint may be read as including state claims, it will be

recommended that the district court decline to exercise jurisdiction over plaintiff’s state claims in

light of the recommended dismissal of federal claims. See 28 U.S.C. § 1367(c).

G. Leave to Amend

“Leave to amend need not be given if a complaint, as amended, is subject to

dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). 

Younger abstention bars all claims and relief plaintiff seeks in his first amended complaint.

Younger will continue to bar all claims and relief until state appellate remedies are exhausted.

/////

/////

/////

Case 2:04-cv-00988-DFL -KJM Document 80 Filed 08/02/05 Page 8 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 Plaintiff argues that this court should stay the federal proceedings until the state

proceedings are completed. In Gilbertson v. Albright, 381 F.3d 965, 968-69 (9th Cir. 2004) (en

banc), the Ninth Circuit held that Younger abstention applies to civil actions seeking damages

rather than injunctive relief, but in such a case, the federal proceeding should be stayed until the

conclusion of the state action. In the instant case, however, plaintiff asks for the return of coins

and a gold bar and for injunctive and declaratory relief, not damages. First Am. Compl. at 8.

9

The first amended complaint should be dismissed without leave to amend because any further

amended complaint would have to be dismissed as well.3

Accordingly, IT IS HEREBY ORDERED that plaintiff’s Chronology filed on

September 23, 2004, construed as a request for judicial notice of the dates contained therein

(docket no. 37, Ex. 23), is granted. 

IT IS HEREBY RECOMMENDED that: 

1. Defendant’s motion to dismiss be granted; 

2. The court decline to exercise jurisdiction over any pendent state claims; and 

3. This action be dismissed.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within five days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: August 1, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

wilm0988.mtdismiss

Case 2:04-cv-00988-DFL -KJM Document 80 Filed 08/02/05 Page 9 of 9