CV/c-207 GUN VtOLcNCc cMERGI;NCY PROTeCTIVe ORDER LAW ENFORCEMENT CASE NUMBER: 20-224874 1. RESTRAINED PERSON (lnsertn~me):Andrew Richard Casarez Address: 8888 Myhren Way Orangevale; Ca 95662 0 F Owonblna~ Ht:!.£__ Eye color: Green Raee: White Age:E.._ Sex0M COURT USE ONLY FILED/ENDORSED WI.:~ Hair color: Brown Date ofblrth:01-09-1993 2. TO lliE RESTRAINED PERSON (Also see Important Warnings and InfOrmation on Page~): YOU MUST NOT own, possess, purchase, receive, or attempt to purchase or-receive any firearms, ·ammunllion,·orimagazines,(any ammunition ·feeding devices). If you have·any firearms, ammunition, · or:magazines, you MUSiT IMMEDIAT,EL:Y SURRENDER ntEM IN A'SAFE MANNERTO LAW ENFORCEMENT;ON :REQUESJ', lf·no request has been made, you must surrender any firearms, ammunition, or magazines In a safe r,nanner•to your local law enforcement .agency or sell.them to or store them with a llcensed.gun·dealer .within 24 hours of'belng served with this order. You must flle:a receipt proving surrender, sale, or .storage with •the •CourUiated 'below within 48 hours, or If the court Is dosed, then on the next bus_lness day after-the firearms, ammunition, or magazines are surrendered or sold. FAILURE 1'0 TIMELY F-ILE iTHJS ·RECEIPT IS A VIOlATION •OF THIS ORDER. 3. THIS ORDERWILLiEXPIRE ON: 07-31-2020 By: ! I JUL 13 2020 T. Crowlller I ~cr.m. l !! ' Superior Court of California, County of :sacramento ~ordon D. Schaber County Courthouse 720 glh Street Sacramento, CA 95814 TIME: 0830 INSERT DATE OF 21" CAI,J:NDAR DAY (DO NOT .COUNT DAY THE ORDER IS GRANTED) 4. Reasonable grounds for the-Issuance of this Order exist, and a Gun VIolence Emergency Protective Order (1) Is necessary because the Restrained Person poses an Immediate danger of causing personal injury to himself or herself or to another by having custody.or control, owning, purchash1g, Case Number: possessing, or receiving any firearms, ammunition, or magazines; and (2) less restrictive alternatives were Ineffective or have been determined to be Inadequate or Inappropriate under the circumstances. 5. To the Restrained Person: This order will •last until :the expiration ·date and time ·noted ·above. You are required to-surrender all firearms, ammunition, and magazines that.you own or possess In accordance-with section 18120 oUhe Penal Code and you may .not have In your custody or control, own, purchase, possess, or receive, or.attempt to purchase or receive, any firearm, ammunition, or magazine while this order Is In effect. However a more·permanentgun violence restraining order may be obtained from the courL You may seek the advice .of an attorney as·to any matter connected with the .order. The attorney should be consulted prompUy so that the attorney may assist you In any matter connected with the order. 3'1-7.oro-7ooo778 b 8. NOTICE OF HEARING: The court will hold a hearing at the time and place below to determine If a longer term Gun VIolence Restraining Order should be lseUed. (Hearing date must be a Friday within 21 calendar days) TIME: 8j30 HEARING DATE: 07-31-2020 a.m. COURT ADDRESS: 720 DEPT.:£ _ _ 07 13 2020 granted this Order on (date): Judidal officer (name): Judge-Roman 9TH STREET. SAC. CA 95814 at (time): 1042 APPLICATION 7. Officer has a reasonable cause to believe that the grounds set forth In Item 4, above, exist (state supporting facts and dates: specify weaponsnumber, type and location): Please see attached. 8. I D Firearms were searched for D Ammunition (Including magazines) was observed D seized. D reported searched for ·o seized. I declare under penalty of perjury under the laws of the State of California that the foregoing Ia true and correct.By: Sergeant Grgich #43 (SIGNATURE OF LAW ENFORCEMENT OFFICER) (PRINT NAME OF LAW ENFORCEMENT OFFICER) Agency: Sacramento County Sheriffs office Badge No.:_4_3_ __ Telephone No.: 916-874-5115 PROOF OF SERVICE 9. Person s~rved (name}: 9-N'b I?'E.t..U_ 1'2.1 (,I{ l9?rd> c.~A-U Z 10. I personally delivered copies of this Order to the person served as- follows: Date: 7-/ $"": Address: eftf M YHUIV v'h . 0 tt,IJ-.IC{ultL.C: ' C.~ z. e Time: 0 -r t 0 9 ~ t; 4 1.- 11. At the time of service, I was at least 18 years of age. 'I ani a California law enforcement officer. My name, and law enforcement agency address are: i £. fLG ~,..... G U I e.J/ .._..YS I declare under penalty of perjury under the laws of the State of California that the foregoing Is true and correct. D~te: 7-1S-zo L,.,., ·~~""'~ (TYPE OR PRINT NAME OF SERVER) . ,. sc=rt. Cf2.(te-Jf-¢¥S (SIGNATURE OF SERVER) Gun VIolence emergency Protective Order (CLETS-cGV) CV/E-207 (Etr. 1/1/19) ORI~INAL to court, ONE copy to restrained person, ONE copy to Issuing agency Page1 of2 \ .CV/E-207 GUN VIOL;ENCE EMERGENCY PROTECTIVE ·ORDER WAiRNI:NGS AND liNFORM~TIO:N TO THE RESTRA~NED PERSON: You are prohibited from owning, possessing, purchasing, receiving; or attempting to purchase or receive a firearm, ammunition, or a magazine. (Pen. Code, § 181.25 et seq.) A violation of this order Is a misdemeanor punishable by a $1,000 fine or imprisonment for s{x months or both. (Pen. Code, §§ 19, 18205.) Within 24 hours of receipt of·thls order, you must turn in all firearms, ammunition, and magazines to a law enforcement ~gency or sell them to or sto~ them with a licensed firearms dealer 1:.1ntil the ·expiration of this order. · (Pen. Code, § 18125 et seq.) A receipt proving surrender, s11Je, or storage must be flied with the court within 4.8 hours of receipt of this order, or on the next court business day If the 48 hour period ends on a day when the · court Is closed. You must also file the receipt with the law enforcement agency that served yo&J with this order. You.may use form GV-800, Proof of Firearms, Ammunition, and.Maga:ilnes Turned In, Sold, or Stored.. This Gun Violence Emergency Protective Order Is effective when :made. ETITION FOR GUN ) VIOLENCE RESTRAINING ORDER ))) (PENAL CODE§§ 18100, et seq.) Date: August 13, 2020 ) Time: 9:00am v. ANDREW CASAREZ. Respondent. ~ ~c:·4t) l 16 17 INTRODUCTION 18 19 On July 13, 2020, Mr. Casarez's lawfully registered handgun was seized by Sacramento 2o County Sheriff's Department ("SSD") after the issuance of a Temporary Emergency Gim 21 Violence Restraining Order ("GVRO"). Mr. Andrew Casarez now responds in opposition to the 22 GVRO. The Court must deny the GVRO for the folloWing reasons: (1) Petitioner failed to meet 23 its burden ofproofunder the "red flag" statutes (Pen. Code§ 18100 et seq.) in violation ofMr: 24 Casarez's constitutional due process rights; (2) Respondent's seizure of Mr. Casarez's lawfully 25 registered handgun abridges his First Amendment-rights because it chills his expression through 26 intimidation.; and (3) Petitioner has unclean hands in that the SSD fueled a media spectacle and 27 now wants to use that as a basis to unlawfully strip Mr. Casarez ofhis constitutional rights. 28 1 0 0 FACTUAL AND PROCEDURAL BACKGROUND 1 2 3 On July 13, 2020, SSD deputies pulled Mr. Casarez's father over in his velncle and held 4 him at gunpoint. Simultaneously Mr. Casarez's home he shared with his parents and grandmother 5 was raided and searched for firearms. Deputies seized Mr. Casarez's lawfully registered 9mm 6 handgun. Mr. Casarez had no illegal weapons, contraband, or ammunition of any kind. 7 Prior to the search and seizure of Mr. Casarez's handgun, Sergeant Grgich of the 8 Sacramento County Sheriff's Department submitted a one-page affidavit requesting a GYRO be 9 issued against Mr. Casarez.. (See Exhibit A.) The affidavit alleged that someone (unnamed) 10 identified Mr. Casarez as "Vic Mackey" and a "well known online white supremacist." It further 11 alleged that Mr. Casarez is the leader of an online group called the "Bowl Patrol," named after the ' 12 distinctive haircut of Dylan Roof who is known for killing 9 people at a prayer meeting in South 13 Carolina. The affidavit stated, "[i]mages were recovered from the open source images found ideals 14 for a violence (sic) against minorities and called for murder and rape of Law Enforcement and 15 people of Jewish descent. Also found were comments by Casarez where he stated he reloads his 16 own ammunition and was attempting to obtain an "80% AR." Although the affidavit lacked any 17 specific statements made by Mr. Casarez and any foundational facts supporting the officer's claims 18 that he was the leader of a white supremacist group, Sgt. Grgich concluded that based on his 19 ''training and experience, now that Casarez has been outed as a white supremacist and he has lost 2o his anonymity there is a likelihood that he could (emphasis added) become a 'lone wolf attacker 21 to prove his status to the cause." Hence, a temporary GYRO was issued and deputies from the 22 SSD subsequently executed that 23 declaration authored and signed by Sgt. Grgich, ·Mr. Casarez has not been provided with any 24 infomiation, discovery, or evidence regarding the basis of the GVRO, or what evidence the 25 Petitioner intends to present at the hearing. (Declaration of Andrew Casarez, attached.) 26 Ill 27 Ill 28 Ill te~porary GVRO. 2 With the exception of the single-page 0 0 I. 1 PETITIONER FAILED TO MEET ITS STATUTORY BURDEN OF PROOF UNDER THE RED FLAG STATUTES IN VIOLATION OF MR. CASAREZ'S CONSTITUTIONAL DUE PROCESS RIGHTS 2 3 4 5 6 7 8 ~or 11 12 13 14 17 ' 18 first iteration of a "red flag" law was passed in 2014 in reaction by which the courts could seize guns from someone who posed a danger of gun violence to themselves or others, but who did not qualify for any then-existing restraining orders and had not yet committed a crime {either of which could have permitted seizure of guns). The "red flag" laws are codified in Penal Code§ 18100 et seq. Under the current "red flag" laws, there are three potential ways to seek a GVRO: (1) an emergency temporary GVRO: (2) an ex-parte GVRO; or (3) a petition for a GVRO. The three methods to obtain a GVRO are differentiated by who may make the request, what proof is required, and whether the respondent's guns m~y be seized prior to the GVRO hearing. But regardless of which m~thod is pursued, a hearing must be conducted pursuant to Pen. Code § 18175. Relevant to this case is the emergency GVRO, governed by Pen. Code§ 18125 et seq. 15 16 Californi~' s to a shooting on the UC Santa Barbara campus that killed 6. 1 These laws created a civil process 9 10 context, A temporary emergency GVRO may be requested only by law enforcement (Pen. Code §§ 18125, 18130),' and the officer requesting a temporary emergency GVRO prior to a hearing must provide the court with evidence establishing "reasonable cause" to believe both of the following prongs: 19 I 20 ' ( 1) The subject of the petition poses an immediate and danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, possessing, or receiving a firearm or ammunition. (2) A temporary emergency gun violence restraining order is necessary to prevent personal bodily injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or have been determined to be inad~quate or inappropriate for the circumstances of the subject of the petition.. (Penal Code§ 18125(a)(l-2).) 21 22 23 24 25 26 27 28 1 Melody Gutierrez, "California Starts Slowly Seizing Unstable People's Guns, But That Could Change." Sc_m Fransisco Chronicle. (May 11, 2018). 3 0 0' 1 "Reasonable cause has been generally defined to be such a state of facts as would lead a 2 man of ordinary care and prudence to believe and conscientiously entertain an honest and strong 3 suspicion that the person is guilty of a crime ... [reasonable] cause has also been defined as 4 having more evidence for than against; supported by evidence which inclines the mind to 5 believe, but leaves some room for doubt." (People v. Ingle (1960) 53 Cal.2d 407, 412--413, 6 citations omitted.) If the court grants the temporary emergency GVRO, it must hold a hearing on 7 the matter within 21 days. (Pen. Code§ 18148.) 8 9 At the hearing, the Petitioner has the burden of proving, by clear and convincing evidence that both of the following are true: 10 11 12 13 14 (1) The Respondent poses a significant danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, .purchastD.g, possessing, or receiving a firearm or ammunition, and · (2) A gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have ' been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances pfthe Respondent. (Pen. Code Section 18175(b).) 15 16 Clear ~d convincing evidence is a significantly higher burden of proof than reasonable 17 cause and requires a high degree of probability that the asserted facts are true. (See CACI 201, 18 In re Angelia P. (1981) 28 Cal.3d 908, 919). Clear and convincing evidence is required '"where 19 particularly important individual interests or rights are at stake,' such as the termination of 20 parental rights, involuntary commitment, and deportation." (Weiner v. Fleischrf!an (1991) 54 21 Cal.3d 476, 487, quoting Herman & MacLean v. Huddleston (1983) 459 U.S. 375, 389-390.) 22 23 In deciding whether to grant the GVRO the court must consider numerous factors, including but not limited to: 24 25 26 27 28 (1) (2) (3) (4) threats or instances ofviolence, violation of existing restraining orders, criminal history; and · "any other evidence of an increased risk for violence," such as substance abuse, reckless gun use or display, or recent acquisition of new firearms, felony arrests, or prior incidents of use of force. (See Pen. Code Sections 18175, 18155(b).) ! 4 0 0 1 If the court finds that Petitioner has met its burden of;proof and grants the GVRO, then 2 the Respondent must surrender all firearms or anliDunition and is prohibited from owning, 3 possessing, receiving, or purchasing any firearms or anliDunition for one year. (Pen. Code .). 4 Section 18120, 18175.) Knowing violation of a GVRO is a misdemeanor that carries a 5-year 5 ban on firearms possession (Pen. Code Section 18205.) 6 Here, this Court should deny Petitioner's request for a GVRO because Petitioner violated 7 Mr. Casarez's due process rights by failing to meet its burden of reasonable cause, and this Court 8 did not hold a hearing on the matter within the statutory deadline of 21 days. Moreover, 9 Petitioner.continues to violate Mr. Casarez's rights by not providing notice of what evidence, if 10 any, will be presented at the upcoming hearing. Currently, the evidence that is before this Court 11 is insufficient to justify issuance of the GVRO in the first instance. Having failed to meet its 12 burden of proof in requesting the GVRO, Petitioner will not be able to satisfy the higher burden 13 of clear and convincing evidence as required in the upcoming hearing. 14 15 A. Mr. Casarez's Due Process Rights Were Violated Because a Hearing on the GVRO was not Held Within 21 Days of the Issuance of the GVRO 16 17 Pursuant to Pen Code § 18148 when the court grants a GVRO, it must hold a hearing on -- 18 the matter within 21 days. As a threshold matter, a hearing was not held within the statutory 19 timeframe. Thus, Mr. Casarez was also deprived of his statutory right to a hearing in violation of 20 his due process rights. 21 22 23 B. Mr. Casarez Does Not Pose an Immediate and Present Danger The Petitioner failed in its application for a temporary GVRO to prove that Mr. Casarez 24 was an "immediate and present danger" of personal injury to himself or others. The affidavit 25 fails completely to establish a connection between Mr. Casarez's alleged online glorification of 26 past acts of violence and an "immediate and prese:p.t danger" of bodily injury to himself or 27 others. The lone allegation is the unsupported assertion that because Mr. Casarez's identity has 28 been revealed, there is "a likelihood" that he "coUld" become violent. While this assertion is 5 0 0 1 based on the affiant's "training and experience," there is absolutely no information whatsoever 2 about what exactly is the declarant's training and experience. Additionally, the declarant's 3 unsupported conclusion that Mr. Casarez "could" become violent does not provide a rational 4 basis from which one could cd~clude that he poses an immediate and present threat of personal - 5 injury. ' If Mr. Casarez did make a threat of inrininent of harm, the affidavit for the emergency 6 7 GVRO does not mention it. The affidavit does not include any specific or actual threats made by 8 Mr. Casarez. It does not provide any evidence that Mr. Casarez had expressed any plan to 9 perpetuate any future act of violence, or that "Vic Mackey" had any contingency plans about 1o what he would do if identified. In fact, unlike the Dylan Roof character that the declarant 11 invokes, Mr. Casarez does not have a manifesto that makes any decrees to act as a lone wolf. 12 In contrast to this case, the tragedy which spurred California's "red flag" law is a prime 13 example of a situation in which there was evidence of an "immediate and present danger." The 14 night before he murdered 6 people, the shooter uploaded a video to YouTube, entitled "Elliot 15 Rodger's Retribution." 16 retribution. The day I will have my retribution against humanity. Against all of you." After 17 whining about his sexual fnJstration and loneliness in college, the shooter threatened, "I do not 18 know why you girls aren't attracted to me, but I will punish you all for it."· (Ian Lovett and Adam 19 Nagourney, ''Video Rant, then Deadly Rampage in California Town." New York Times. May 24, 20 2014.) 21 "retribution" against specific people (women at his college), but he gave a Clear and immediate 22 timeline of "tomorrow." If similar threats of immediate violence exist in Mr. Casarez' case, such 23 evidence is inexplicably missing from Sergeant Grgich's declaration supporting the temporary 24 emergency GVRO. 25 26 In the 7-minute video, the shooter said, "Tomorrow is the day o This is a clear example of an "immediate" threat: the shooter not only promised Because Petitioner failed to prove by even reasonable cause that Mr. Casarez was an immediate and present threat, this Court should deny Petitioner's request for a GVRO: 27 28 6 0 0 1 2 C. Mr. Casarez Does Not Pose a Significant Danger At the upcoming hearing, Petitioner must prove Mr. Casarez poses a significant danger of 3 causing personal injury to himself or another by having in his custody or control, owning, 4 purchasing, possessing, or receiving a firearm or ammUnition. In deciding whether to grant the 5 GVRO, this Court must consider numerous factors: 1) whether Mr. Casarez has made any threats 6 or committed instances of violence; 2) whether Mr. Casarez is~ violation of an existing 7 restraining order; 3) whether Mr. Casarez has a violent crinlinal history; and 4) whether there is 8 "any other evidence of an increased risk for violence" such as substance abuse, reckless gun use 9 or display, or recent acquisition of new firearms, felony arrests, or prior incidents of use of force. 10 Here, Petitioner is does satisfy any of the enumerated factors. First, Petitioner has not 11 articulated any specific threats or instances of violence committed by Mr. Casarez. Second, Mr. 12 Casarez has no history of violating restraining orders because none have ever been issued against 13 him (aside from the current temporary GVRO with which he has fully complied). Third, Mr. 14 Casarez's crinlinal history consists of only a misdemeanor DUI and includes no history of 15 violence whatsoe~er. Lastly, Mr. Casarez does'not have a substance abuse problem. He has 16 never recklessly used or displayed his firearm, and the only firearm he has acquired is handgun 17 at issue in this case (for which he did not even have ammunition). Mr. Casarez has never been 18 arrested for a felony and has no prior incidents of use of force. 19 As such, simply calling Mr. Casarez a "white supremacist" fails entirely to provide clear 20 and convincing evidence that he poses a significant danger of causing personal injury to himself 21 or another by having a firearm or ammunition. Therefore, the Court should deny Petitioner's 22 request for a GVRO. · ( 23 24 ,_} ' D. Petitioner Has Failed to Prove that Less Restrictive Means Were Tried and Failed or are Otherwise Inadequate ' \ 25 26 Petitioner has also failed to prove (both by reasonable cause for the temporary GVRO 27 and by clear and conVincing evidence for the extended GVRO) that the GVRO in this case is 28 "necessary to prevent personal injury" because "less restrictive. alternatives" have failed, 7 will be 0 0 ., 1 ineffective, or are inappropriate. Petitioner has provided no evidence as to why a GVRO is the 2 only available remedy, as the single-page affidavit makes no mention whatsoever of any "less 3 restrictive alternative" to a GVRO. Petitioner has not articulated any less restrictive means that 4 have been tried and failed and has not explained why less restrictive means would be inadequate 5 or inappropriate for the circumstances. Without clear and convincing evidence that "less 6 restrictive alternatives" are unavailable, Petitioner SSD has not met its burden under Penal Code 7 Section 18175(b)(2), forcing this court to deny the GVRO. 8 n. 9 RESPONDENT INFRINGED UPON MR. CASAREZ'S CONSTITUTIONAL RIGHTS TO KEEP AND BEAR ARMS AND THERBY ABRIDGED IDS RIGHTS TO FREEDOM OF SPEECH 10 The Fourteenth Amendment promises that no State may deprive any person of life, 11 12 liberty, or property without due process oflaw. Procedurally "due process" is a guarantee of 13 fundamental fairness. (See, e.g., In re: Winship (1970) 397 U.S. 398). "An elementary and 14 fundamental requirement of due process in any proceeding which is to be accorded fmality is 15 notice reasonably calculated, under all the circumstances, to apprise interested parties of the · 16 pendency of the action and afford them an opp0rtunity to present ~eir objections." (Mullane 17 Central Hanover Bank& Trust Co. (1950) 339 U.S. 306, 314.) Notice must also be sufficient to 18 enable the interested party to determine what is being proposed ahd what actions she must take 19 to prevent the deprivation of his interests. (Goldberg v. Kelly (1970) 397 U.S. 254, 267-268.) 20 The "essence" of due proces~ is "notice and an opportunity to respond." (Thornbrough v. 21 Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 183, emphasis added.) The 22 purpose of notice "is to apprise the affected individual of, and permit adequate preparation for, 23 an impending hearing." (Jd. at 183-84, internal quotes omitted.) - ' v:_. Due to Petitioner failing to meet its burden and providing no notice whatsoever of the 24 ·- 25 evidence to be presented against him, Mr. Casarez's due process rights were violated by the I -, 26 issuance of a GVRO in this case. As a result, the violation of his First and Second Amendment 27 rights flow from the initi81 constitutional taint. 28 8 0 0 1 A. Respondent Infringed Upon Mr. Casarez's Right to Keep and Bear Arms When His Handgun was Seized Without Due Process 2 3 The Second Amendment is incorporated through the Fourteenth Amendment and is 4 therefore enforceable against the states. In Heller, the Supreme Court of the United States 5 affirmed the individual rights theory to keep and bear arms. (District of Columbia v. Heller 6 (2008) 554 U.S. 570.) Indeed, the right to keep and bear arms is "fundamental to our scheme of 7 ordered li~erty" (Duncan v. Louisiana (1968) 391 U.S. 145, 149) and "deeply rooted in this 8 Nation's history and tradition" (Washington v. Glucksberg (1997) 521 U.S. 702, 721.) (Internal 9 quotation marks omitted.) As it relates to Mr. Casarez's handgun, the highest Court of the land 10 · has found that handguns are the "most popular weapqns chosen by Americans for self-defense." 11 (Heller, 554 U.S. at 647.) Thus, a ban on a handgun must pass constitutional muster. -· 12 In the case at bar, a GVRO that fails to meet the statutory burden of proof acts as a defacto ban on Mr. Casarez's right to keep and bear arms. It bears repeating, this hearing will be 14 held outside of the statutory requirement of21 days, which does not present Mr. Casarez with a 15 meaningful opportunity to be heard. In terms of the notice requirement of the Due Process 16 Clause, Mr. Casarez has not been informed of what evidence will be presented. To illustrate, 17 Petitioner has failed to specify what exactly Mr. Casarez has said or posted online. Petitioner has 18 claimed that Mr. Casarez is the leader of an online group that endorses violence against 19 minorities, yet does not say how, when, or what was said or done to endorse this violence. 20 Without knowing what $tements or images to defend against, Mr. Casarez has no notice 21 whatsoever of how to prepare for the upcoming GVRO hearing. Mr. Casarez and his counsel 22 will learn. of any evidence outside the four-corners of the affidavit at the same time as this Court, 23 which is patently unfair. Allowing Petitioner to present surprise evidence, during the hearing 24 itself, denies Mr. Casarez the opportunity for meaningful cross-exami:hation, or to present 25 relevant evidence in his defense. He has not even Been afforded the right to confront witnesses 26 against him in person, as the Court has ordered a telephonic appearance in this case. This is not 27 due process. This is fear mongering, and fear of what might happen based on what someone 28- believes is insufficient evidence to strip Mr. Casarez ofhis constitutional rights. l 9 0 0 ' 1 2 B. Respondent's Seizure of Mr. Casarez's Lawfully Registered Handgun Abridges His Rights t~ Freedom of Speech Because it Chills His Expression Through Intimidation 3 4 Petitioner's violation of Mr. Casarez's First and Second Amendments rights flow from I s~tisfy 5 the constitutional taint of Respondent's failure to the due process requirements of Pen. 6 Code §18100 et seq. "If there is a bedrock principle underlying the First Amendment, it is that 7 the government may not prohibit the expression of an idea simply because society fmds the idea 8 itself offensive or disagreeable." (Texas v. Johnson (1989) 491 U.S. 397, 414.) This is because, 9 as Justice Cardozo infamously stated, freedom of thought and speech are "the matrix, the . ' 10 indispensable condition, of nearly every other form of freedom." (Palko v. Connecticut (1937) 11 302 U.S. 319, 326-327, overruled on other grounds by Benton v..Maryland (1969) 395 U.S. 784.) 12 Current First Amendment jurisprudence holds that '"the mere abstract teaching ... of the moral 13 propriety or even moral necessity for a resort to force and violenc~, is not the same as preparing 14 a group for violent action and steeling it to such action."' (Brandenburg v. Ohio (1969) 395 U.S. 15 444,448, quoting Noto v. United States (1961) 367 U.S. 290, 297-298.) i 16 Justice Brandeis' concurring opinion in Whitney v. California (274 U.S. 357) is widely 17 considered to be the exposition of the importance of the First Amendment's free speech 18 guarantee and its utmost role in a functioning democracy. In agreeipg with the Court majority on 19 Fourteenth Amendment grounds, Justice Brandeis continued: . 20 21 22 23. 24 25 26 27 28 "Those who won our independence ... believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle ofthe American government ... Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-- the argument of force in its worst form ... Fear of serious injury cannot alone justify suppression of free speech and assembly ... To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one ... But even advocacy ofviolation [ofthe law], however, reprehensible morally, is not a justification for denying free 10 0 0 2 speech where the advocacy falls sort of incitement and there is nothing to indicate that the advocacy would be immediately acted on (emphasis added)." (Whitney v. California (1927) 274 U.S. 357, 375-376, Justice Brandeis, concurring.) 3 In Brandenburg v. Ohio, the Supreme Court overturned the conviction of a Ku Klux Klan 1 4 leader for advocating violence at a rally. (Brandenburg, 395 U.S. at 447.) The Court held that 5 advocacy that encourages violence cannot be proscribed "except where such advocacy is directed 6 to inciting imminent lawless activity and is likely to incite or produce such action." (/d.) 7 Interestingly, the Court reject the notion that violence was imminent even at a rally, affirming 8 that a perceived risk of violence or imminent lawless is insufficient to "sweep wi!ffin its 9 condemnation speech which our Consti~tion has immunized from governmental control." (ld 10 at 448.) To summarize, "Speech that demeans on the basis of race, ethnicity, gender, religion, 11 age, disability, or any other similar ground is hateful; but the proudest boast of our free speech 12 jurisprudence is that we protect the freedom to express "the thought that we hate." (Matal v. 13 Tam (2017) _U.S._ [137 S.Ct. 1744, 1764, 198 L.Ed.2d 366, 388], quoting United 14 States v. Schwimmer, (1929) 279 U.S. 644.) As articulated by Justice Elena Kagan, the freedom of speech doctrine holds it is 15 16 impermissible for the government to attempt to chill communication based on its hostility to 17 particular i