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Burns v. Mukasey

November 5, 2009

DWAYNE B. BURNS, PLAINTIFF,
v.
MICHAEL MUKASEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

This is a civil pro se action against Michael Mukasey, Michael Sullivan, Robert S. Mueller ("Federal Defendants"), Edmund G. Brown ("State Defendant"), City of Redding, Peter Hansen, Kevin Kimple, William Forrest, Will Williams, Rebecca Zufall, and Tom Bosenko ("Local Defendants").*fn1 Currently pending before the court are separate motions to dismiss filed by the State Defendant (Doc. 13) and the Local Defendants (Docs. 23 and 26).*fn2

The State Defendant's motion was initially heard on August 6, 2009, at 10:00 a.m. in Redding, California. Following oral argument, the parties were permitted to submit supplemental briefing addressing the impact of the Ninth Circuit Court of Appeals' order accepting rehearing en banc in Nordyke v. King, 563 F.3d 439 (2009). Following submission of supplemental briefing on the State Defendant's motion, and completion of briefing on the Local Defendants' motion, the matter was reheard on October 29, 2009, at 10:00 a.m. in Redding, California. Plaintiff appeared pro se. George Waters, Esq., appeared on behalf of the State Defendant. Rodney Blaco, Esq., appeared on behalf of the Local Defendants.

I. BACKGROUND

This action proceeds on plaintiff's amended complaint (Doc. 3), filed on February 24, 2009. Plaintiff alleges the following facts:

1. On May 21, 2007, plaintiff was arrested by defendant Kimple, an officer with the Redding Police Department, on suspicion of spousal abuse;

2. Following plaintiff's arrest, officers of the Redding Police Department conducted separate illegal searches of plaintiff's two dwellings;

3. Plaintiff did not consent to the searches; 4. During the course of the searches, police officers located and seized a vintage firearm;

5. On September 11, 2007, Shasta Superior Court judge Molly Bigelow entered a restraining order against plaintiff;

6. The spousal abuse charge was dismissed in the summer of 2008;

7. In the fall of 2008, plaintiff attempted to retrieve his firearm from the Redding Police Department, but was informed that, under a state law prohibiting individuals against whom restraining orders are issued, the firearm would not be returned to him due to the September 11, 2007, restraining order; and

8. The Redding Police Department will not return the firearm unless plaintiff first obtains a "clearance" from the Department of Justice, but he cannot obtain the "clearance" due to the outstanding restraining order.

Plaintiff sets forth ten claims for relief. In the first and second claims, plaintiff alleges violation of his civil rights under 42 U.S.C. § 1983 based on infringement of his Second Amendment right to keep and bear arms and seeks injunctive and declaratory relief. In the third and fifth claims, plaintiff asserts that Redding Police Officers Kimple, Forrest, Williams, and Zufall violated his civil rights under § 1983 by illegally searching his residences and seizing property in violation of the Fourth Amendment. In the fourth claim, plaintiff alleges that defendant Kimple deprived him of the use of illegally seized property without just compensation, in violation of the Takings Cause of the Fifth Amendment. In the sixth claim, plaintiff seeks replevin based on his allegation that defendant Peter Hansen, the Chief of Police of the Redding Police Department, is improperly maintaining possession of the seized property. In his seventh and eighth claims, plaintiff asserts that the illegal search and seizure by defendants Kimple, Forrest, Williams, and Zufall violated provisions of the California constitution. In the ninth and tenth claims, plaintiff seeks statutory damages under state law based on his allegation that defendant Kimple deprived him of the use of illegally seized property without compensation.

II. DISCUSSION

In his motion to dismiss and supplemental briefs, the State Defendant primarily argues that plaintiff's Second Amendment claim is not cognizable because, under current valid case law, the Second Amendment does not apply to the states. The Local Defendants join in this argument in their motion. They also argue that plaintiff's fourth through tenth claims either fail ...


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