BENBROOK LAW GROUP, PC BRADLEY A. BENBROOK (SBN … · MEMO. OF POINTS & AUTHORITIES IN SUPPORT OF...

NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

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BENBROOK LAW GROUP, PC BRADLEY A. BENBROOK (SBN 177786) STEPHEN M. DUVERNAY (SBN 250957) 400 Capitol Mall, Suite 1610 Sacramento, CA 95814 Telephone: (916) 447-4900 Facsimile: (916) 447-4904 [email protected] [email protected] EUGENE VOLOKH (SBN 194464) UCLA School of Law 405 Hilgard Ave. Los Angeles, CA 90095 Telephone: (310) 206-3926 Facsimile: (310) 206-7010 [email protected] Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

FIREARMS POLICY COALITION SECOND AMENDMENT DEFENSE COMMITTEE; FIREARMS POLICY COLAITION; KRIS KOENIG; STEPHEN CHOLLET; MICHAEL SCHWARTZ; and TIM DONNELLY,

Plaintiffs,

v. KAMALA D. HARRIS, in her official capacity as Attorney General of California,

Defendant.

Case No.: 2:16-cv-01144-MCE-AC PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER Hearing Date: TBD Judge: Morrison C. England, Jr.

Case 2:16-cv-01144-MCE-AC Document 6 Filed 05/27/16 of 2

NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

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TO THE PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Plaintiffs will and hereby do move the Court for a

temporary restraining order.

Plaintiffs respectfully request a temporary restraining order enjoining Defendant from

enforcing California Government Code section 9026.5, which prohibits the use of the public video

feed from the California State Assembly “for any political or commercial purpose,” because it

violates the First Amendment.

This motion shall be based on this notice of motion and motion, the memorandum of points

and authorities in support, the declarations and evidence filed concurrently herewith, and upon any

further matters the Court deems appropriate.

Dated: May 27, 2016 BENBROOK LAW GROUP, PC

By /s Bradley A. Benbrook

BRADLEY A. BENBROOK Attorneys for Plaintiffs

Case 2:16-cv-01144-MCE-AC Document 6 Filed 05/27/16 of 2

MEMO. OF POINTS & AUTHORITIES IN SUPPORT OF TEMPORARY RESTRAINING ORDER

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Plaintiffs,


Defendant.

Case No.: 2:16-cv-01144-MCE-AC PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER Hearing Date: TBD Judge: Morrison C. England, Jr.

Case 2:16-cv-01144-MCE-AC Document 6-1 Filed 05/27/16 Page 1 of 11


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I. INTRODUCTION

This is a facial and as-applied First Amendment challenge to California Government Code

section 9026.5, which prohibits the use of the public video feed from the California State

Assembly “for any political or commercial purpose, including . . . any campaign for elective public

office or any campaign supporting or opposing a ballot proposition submitted to the electors.” Id.,

subd. (a). Remarkably, Section 9026.5 purports to criminalize political speech that uses material

placed in the public domain by being streamed live and stored on the Internet, broadcast live on

Cable TV, or rebroadcast on the nightly news. While news organizations can freely rebroadcast

video of Assembly proceedings under an exemption in the statute, those hoping to use the same

material for political speech are committing a crime.

Section 9026.5 criminalizes political speech in a content-based and speaker-based way. It

is therefore unconstitutional unless the State meets its burden under strict scrutiny analysis by

showing the law is narrowly tailored to serve a compelling state interest—a test it cannot possibly

satisfy. Plaintiffs seek a temporary restraining order to allow them to produce and distribute

videos and political advertisements related to the upcoming election that include footage from

Assembly committee hearings.

II. BACKGROUND

THE SPEECH BAN AND THE PLAINTIFFS RESTRICTED BY IT

Beginning in 1991, proceedings of the California State Legislature have been publicly

broadcast through public-access television networks throughout the state.1 Plaintiffs intend to

produce and distribute videos and political advertisements that include footage from hearings of

the California State Assembly that are publicly broadcast and archived on the Internet.2 They are

1 For millions of California households, the feed is prominently broadcast through the California Channel, “a public service funded entirely by California’s cable television operators as a means to provide Californians direct access to ‘gavel-to-gavel’ proceedings of the California Legislature.” The California Channel, About, online at http://www.calchannel.com/about/. Public broadcast of legislative proceedings was spurred in significant part by a research study and proposal by the University of Southern California’s Annenberg School of Communications and the Center for Responsive Government. Tracy Westen & Beth Givens, Ctr. for Responsive Gov’t, The California Channel: A New Public Affairs Television Network For the State (1989). 2 The California Channel maintains a searchable on-demand archive available online at http://www.calchannel.com/video-on-demand/.



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prohibited from doing so, however, by California Government Code section 9026.5, which

provides as follows:

(a) No television signal generated by the Assembly shall be used for any political or commercial purpose, including, but not limited to, any campaign for elective public office or any campaign supporting or opposing a ballot proposition submitted to the electors. As used in this section, “commercial purpose” does not include either of the following: (1) The use of any television signal generated by the Assembly by an accredited news organization or any nonprofit organization for educational or public affairs programming. (2) As authorized by the Assembly, the transmission by a third party to paid subscribers of an unedited video feed of the television signal generated by the Assembly. (b) Any person or organization who violates this section is guilty of a misdemeanor.

Section 9026.5 has chilled Plaintiffs’ exercise of core political speech and inhibited the free

flow of discussion about public issues. As set forth below, each Plaintiff desires to use Assembly

footage in connection with the discussion of public issues and would do so, but for Section 9026.5

and the threat of criminal sanctions.

Firearms Policy Coalition Second Amendment Defense Committee

Plaintiff Firearms Policy Coalition Second Amendment Defense Committee (the “FPC

PAC”) is a political action committee organized to oppose a proposed statewide ballot initiative

(officially titled the “Safety for All Act of 2016” (the “Initiative”)) that has been submitted for

qualification to appear on the ballot for the November 8, 2016 general election. Declaration of

Brandon Combs ISO TRO, ¶ 3.

FPC PAC has launched a political campaign against the Initiative, which it fears will

drastically undermine the civil rights of California citizens. Id., ¶ 5. In connection with its

political campaign, the PAC will distribute the videos to the public on television and online,

including, but not limited to, on Facebook, on YouTube, on Instagram, and at

http://www.fpcsadc.org (the FPC PAC website developed to oppose the Initiative). Id.

FPC PAC is in the final stages of producing a video that includes Assembly television

footage of past and current bill committee hearings, floor discussion, debates, and votes as well as



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footage from a May 3, 2016 joint Senate and Assembly Public Safety Committee hearing on the

Initiative. Id., ¶ 6. FPC PAC intended to publish the video starting in May 2016 and to continue

using the video as part of its ongoing campaign through the general election in November. Id.

While in the final stage of production, however, FPC PAC became aware of Section

9026.5’s prohibition on the use of Assembly video footage for “any political . . . purpose,”

including “any campaign . . . opposing a ballot proposition.” Id., ¶ 7. Because the advertisement

would violate Section 9026.5, the committee has halted final production of the video and delayed

its distribution plans until it gets the relief requested herein. Id. In addition to this video, FPC

PAC intends to produce and distribute additional political advertisements opposing the Initiative

that use footage from Assembly hearings. Id., ¶¶ 7, 9.

Firearms Policy Coalition

FPC is a 501(c)4 non-profit public benefit organization that serves its members and the

public through direct and grassroots advocacy, legal action, education, and other efforts. Combs

Decl., ¶ 4. The purposes of FPC include defending the United States Constitution and the People’s

rights, privileges and immunities deeply rooted in the Nation’s history and tradition, especially the

fundamental right to keep and bear arms. Id. FPC opposes the Initiative and is lobbying, directly

and through grassroots efforts, dozens of active measures in the California Legislature. Id. FPC

spends time and resources informing the public about matters of constitutional interest and civil

rights. Id.

FPC is producing an online video news program (“FPC News”) that focuses on legal and

political developments that affect the civil rights of millions of law-abiding people. Id., ¶ 8. FPC

wants to use Assembly television footage for FPC News, but has refrained from doing so since it

learned of Section 9026.5 because it fears prosecution for using such footage for “political

purposes.” Id. FPC also wants to use Assembly video footage to produce additional videos

relating to issues in the upcoming election and ongoing legislative matters in the future. Id., ¶ 4.

Kris Koenig and Stephen Chollet

Kris Koenig and Stephen Chollet are Emmy-award winning filmmakers. Declaration of

Kris Koenig ISO TRO, ¶ 2; Declaration of Stephen Chollet ISO TRO, ¶ 2. Koenig and Chollet



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have contracted with FPC PAC to develop and produce political advertisements opposing the

Initiative. Koenig Decl., ¶ 2; Chollet Decl., ¶ 2. They have also contracted with FPC to develop

and produce FPC News. Koenig Decl., ¶ 2; Chollet Decl., ¶ 2. Koenig and Chollet would include

footage from the Assembly video feed in these video productions, but both Plaintiffs fear that

doing so could subject them to liability under either the “commercial purposes” or “political

purposes” prohibition of Section 9026.5. Koenig Decl., ¶ 2; Chollet Decl., ¶ 2.

Michael Schwartz

Plaintiff Michael Schwartz is the Executive Director of San Diego County Gun Owners

PAC. Declaration of Michael Schwartz ISO TRO, ¶ 1. Schwartz would like to use Assembly

footage in the PAC’s political advertisements opposing the Initiative, but has refrained from doing

so because of Section 9026.5. Id., ¶ 2.

Tim Donnelly

Plaintiff Tim Donnelly is a candidate for Congress in California’s eighth congressional

district. Declaration of Tim Donnelly ISO TRO, ¶ 3. Donnelly served as a member of the

California State Assembly from December 2010 to December 2014, and would like to use

Assembly video footage in political advertisements in support of his congressional campaign and

in opposition to other political candidates and issues. Id., ¶¶ 2–3. However, during his 2014

campaign for Governor, when he used video footage of a hearing in which he participated, the

Assembly Rules Committee threatened an enforcement proceeding under Section 9026.5. Id., ¶ 2.

But for Section 9026.5, Donnelly would use Assembly video in his active congressional campaign.

Id., ¶ 3.

III. NOTICE TO DEFENDANTS

Pursuant to Local Rule 231 and Fed. R. Civ. P. 65, Plaintiffs have given Defendant notice

of their intention to seek a temporary restraining order and the nature of the relief they request in

this motion. Declaration of Bradley A. Benbrook ISO TRO, ¶¶ 2–3. Plaintiffs’ counsel will serve

this motion and supporting documents on Defendant’s counsel by e-mail and personal delivery.

Id., ¶ 4.

///



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IV. ARGUMENT

“In general, the showing required for a temporary restraining order and a preliminary

injunction are the same.” Hofer v. Grail Semiconductor, Inc., No. 2:15-CV-02207-MCE-EFB,

2015 WL 6502696, at *3 (E.D. Cal. Oct. 27, 2015) (citing Stuhlbarg Int’l Sales Co., Inc. v. John

D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir.2001) (a court’s “analysis is substantially

identical for [an] injunction and [a] TRO”)). A plaintiff “must establish that he is likely to succeed

on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

the balance of equities tips in his favor, and that an injunction is in the public interest.” Am.

Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter

v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008)). Alternatively, injunctive relief “is

appropriate when a plaintiff demonstrates that serious questions going to the merits [are] raised

and the balance of hardships tips sharply in the plaintiff’s favor.” Alliance for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).

“[I]n the First Amendment context, the moving party bears the initial burden of making a

colorable claim that its First Amendment rights have been infringed, or are threatened with

infringement, at which point the burden shifts to the government to justify the restriction.” Doe v.

Harris, 772 F.3d 563, 570 (9th Cir. 2014).

A. Plaintiffs Are Likely To Establish That Section 9026.5 Violates The First Amendment.

1. Section 9026.5 Is Presumptively Unconstitutional Because It Is A Content-

Based Prohibition On Protected Speech.

“Discussion of public issues” is “integral to the operation of the system of government

established by our Constitution. The First Amendment affords the broadest protection to such

political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about

of political and social changes desired by the people.’” Buckley v. Valeo, 424 U.S. 1, 14 (1976)

(quoting Roth v. United States, 354 U.S. 476, 484 (1957)). “[I]nteractive communication

concerning political change” is “core political speech” for which the First Amendment’s protection

is “at its zenith.” Buckley v. Am. Const. Law Found., 525 U.S. 182, 186–87 (1999) (quoting Meyer

v. Grant, 486 U.S. 414, 422, 425 (1988)). Plaintiffs seek to use video footage of Assembly



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proceedings in connection with the discussion of public issues, but are prevented from engaging in

such core political speech—on pain of criminal sanctions—by California Government Code

section 9026.5.

By imposing a content-based restriction on the use of video, Section 9026.5 violates the

First Amendment. The government “has no power to restrict expression because of its message,

its ideas, its subject matter, or its content.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015)

(citation omitted). “Content-based laws—those that target speech based on its communicative

content—are presumptively unconstitutional and may be justified only if the government proves

that they are narrowly tailored to serve compelling state interests.” Id.

Section 9026.5 is a content-based restriction that criminalizes core political speech. The

statute expressly limits itself to speech based on its content: video footage of television signals

generated by the Assembly, which consists of video recordings of Assembly proceedings. Section

9026.5 does not limit or restrict the use of video footage from other sorts of television signals. It is

therefore content-based. See Reed, 135 S. Ct. at 2227 (holding that a distinction between political

signs and other signs was content-based).

Moreover, “defining regulated speech by its function or purpose,” the Supreme Court has

held, also makes a restriction “content based.” Id. Section 9026.5 does this by expressly barring

only the use of Assembly-generated signals “for any political or commercial purpose,” whereas

certain other uses of the footage—for instance, use in nonprofits’ nonpolitical “educational or

public affairs programming”—are not prohibited.

In McCullen v. Coakley, for example, the Supreme Court held that a law is “content based

if it require[s] ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to

determine whether’ a violation has occurred.” 134 S. Ct. 2518, 2531 (2014); see also Regan v.

Time, Inc., 468 U.S. 641, 649 (1984) (“A determination concerning the newsworthiness or

educational value of a photograph cannot help but be based on the content of the photograph and

the message it delivers.”). To determine whether a speaker is “us[ing]” a “television signal

generated by the Assembly . . . for any political . . . purpose,” or instead for “educational” or

“public affairs” purposes, enforcement authorities must examine the content of the speaker’s



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message: They must examine it to decide whether the message uses an Assembly-generated signal,

and they must examine it to decide whether the message uses the signal for a political, educational,

or public affairs purpose.

Section 9026.5 also contains an impermissible speaker-based classification. “Because

‘[s]peech restrictions based on the identity of the speaker are all too often simply a means to

control content,’” the Supreme Court has “insisted that ‘laws favoring some speakers over others

demand strict scrutiny when the legislature’s speaker preference reflects a content preference.’”

Reed, 135 S. Ct. at 2230. Section 9026.5 distinguishes “accredited news organization[s]” and

“nonprofit organizations” from other organizations. The only explanation for this speaker

preference consistent with the structure of Section 9026.5 is that the Legislature prefers

nonpolitical “news” content to other content, such as “campaign[s] for . . . office” or “campaign[s]

support or opposing . . . ballot proposition[s].”

Any of these reasons, even standing alone, would render Section 9026.5 content-based.

Put together, they illustrate the content discrimination even more clearly.

2. Section 9026.5 Cannot Withstand Strict Scrutiny.

Because section 9026.5 expressly criminalizes political speech in a content- and speaker-

based way, it is “presumptively unconstitutional” and is subject to strict scrutiny. Reed, 135 S. Ct.

at 2226–27; see also Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (“Laws

that burden political speech are subject to strict scrutiny.”) (internal quotation marks and citation

omitted). This means that the statute is unconstitutional unless it “furthers a compelling interest

and is narrowly tailored to achieve that interest.” Reed, 135 S. Ct. at 2231 (internal quotation

marks and citation omitted).

There is no compelling state interest in criminalizing the dissemination of Assembly

hearings and debates for political or commercial purposes. To the contrary, California law

recognizes in various ways that the state’s interest is served by promoting dissemination of public

proceedings. The California Constitution declares that “[t]he proceedings of each house [of the

Legislature] and the committees thereof shall be open and public.” Cal. Const., art. IV, § 7(c)(1);

see also Cal. Const., art. I, § 3(b)(1) (“The people have the right of access to information



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concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and

the writings of public officials and agencies shall be open to public scrutiny.”).3 The Legislature

itself has acknowledged that “access to information concerning the conduct of the people’s

business is a fundamental and necessary right of every person in this state.” Cal. Gov. Code §

6250. To that end, the Legislature has declared on multiple occasions that the People’s right to

know what its government is doing is essential to our system of democratic self-governance:

The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

Cal. Gov. Code § 54950; id., § 11120.4

The Assembly carries on the legislative business on behalf of the citizens of California and

it creates video footage that captures those proceedings. California cannot restrict its citizens from

sharing that footage with fellow citizens in furtherance of their fundamental speech rights.

The video footage is simply a recording of the events taking place in the Legislature. For

more than a century, the primary record of those proceedings was produced in written form – a

transcript of a floor debate, for example. It is inconceivable in the American constitutional system

that a citizen could ever have been prevented from copying and disseminating those transcripts to

his or her fellow citizens in connection with a message critical – or supportive – of what was

recorded in those proceedings. Yet that is exactly what Section 9026.5 purports to do to the

modern equivalent of those transcripts.

Plaintiffs are thus left to guess what “compelling interest” the State may identify in trying

to resuscitate Section 9026.5, and in discharging its burden of justifying its speech restriction. See

Doe v. Harris, 772 F.3d at 570. If the government articulates a government interest in response to

3 The inclusion of the public’s right of access within Article I, Section 3 is significant, as it reinforces the fact that access to information is central to the people’s “right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.” Cal. Const., art. I, § 3(a). 4 These declarations were included in the Ralph M. Brown Act, passed in 1953 (which governs public access to local agencies), and the Bagley-Keene Act, passed in 1967 (which governs public access to proceedings of state agencies).



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this motion, Plaintiffs request the opportunity to respond to such argument in a reply brief.

B. Plaintiffs Will Be Irreparably Harmed In The Absence Of A Temporary Restraining Order.

Plaintiffs are irreparably harmed by the threat of enforcement of Section 9026.5. “Both

[the Ninth Circuit] and the Supreme Court have repeatedly held that ‘[t]he loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury.’” Klein v. City of San Clemente, 584 F.3d 1196, 1207–08 (9th Cir. 2009) (quoting Elrod v.

Burns, 427 U.S. 347, 373 (1976)). “The harm is particularly irreparable where, as here, a plaintiff

seeks to engage in political speech, as ‘timing is of the essence in politics’ and ‘[a] delay of even a

day or two may be intolerable . . . .’” Id. at 1208 (citations omitted).

Furthermore, the Ninth Circuit has long recognized that constitutional violations in general,

and First Amendment violations in particular, constitute irreparable harm. See, e.g., Stormans, Inc.

v. Stelecky, 586 F.3d 1109, 1138 (9th Cir. 2009) (“‘[C]onstitutional violations cannot be

adequately remedied through damages and therefore generally constitute irreparable harm.’”)

(citation omitted); Goldie’s Bookstore, Inc. v. Super. Ct., 739 F.2d 466, 472 (9th Cir. 1984)

(“[P]urposeful unconstitutional suppression of speech constitutes irreparable harm for preliminary

injunction purposes.”).

C. The Balance Of Equities Tips In Plaintiffs’ Favor.

“The fact that a case raises serious First Amendment questions compels a finding that there

exists ‘the potential for irreparable injury, or that at the very least the balance of hardships tips

sharply in [claimants’] favor.’” Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 973 (9th Cir.

2002) (citation omitted). That is particularly the case here, where Plaintiffs are faced with a choice

between modifying political speech or facing criminal sanctions. “[T]he threat of criminal

prosecution . . . can inhibit the speaker from making [protected] statements, thereby ‘chilling’ a

kind of speech that lies at the First Amendment’s heart.” Sanders Cnty. Republican Cent. Comm.

v. Bullock, 698 F.3d 741, 748 (9th Cir. 2012) (citation omitted).

California, on the other hand, is not harmed by an injunction: the State “can derive no

legally cognizable benefit from being permitted to further enforce an unconstitutional limit on



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political speech.” Id. at 749.

D. A Temporary Restraining Order Is In The Public Interest.

The Ninth Circuit has “consistently recognized the ‘significant public interest’ in upholding

free speech principles, as the ‘ongoing enforcement of the potentially unconstitutional regulations

. . . would infringe not only the free expression interests of plaintiffs, but also the interests of other

people’ subjected to the same restrictions.” Klein, 584 F.3d at 1208 (quoting Sammartano, 303

F.3d at 974). Conversely, enforcement of an unconstitutional law is against the public interest.

E.g., Scott v. Roberts, 612 F.3d 1279, 1297 (11th Cir. 2010) (“[T]he public, when the state is a

party asserting harm, has no interest in enforcing an unconstitutional law.”); Gordon v. Holder,

721 F.3d 638, 653 (D.C. Cir. 2013) (“[E]nforcement of an unconstitutional law is always contrary

to the public interest.”); Am. Civil Liberties Union v. Ashcroft, 322 F.3d 240, 251 n.11 (3d Cir.

2003) (same).

V. CONCLUSION

For the reasons set forth above, the Court should issue a temporary restraining order that

prevents Defendant from enforcing California Government Code section 9026.5.

Dated: May 27, 2016 BENBROOK LAW GROUP, PC

By /s Bradley A. Benbrook

BRADLEY A. BENBROOK Attorneys for Plaintiffs


BENBROOK DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER

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Plaintiffs,


Defendant.

Case No.: 2:16-cv-01144-MCE-AC DECLARATION OF BRADLEY A. BENBROOK IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER Hearing Date: TBD Judge: Morrison C. England, Jr.


BENBROOK DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER

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I, Bradley A. Benbrook, declare:

1. I am an attorney duly licensed to practice law in the State of California. I am an

attorney at Benbrook Law Group, PC, counsel of record for Plaintiffs in this matter. I have

personal knowledge of the matters set forth in this declaration, and would be able to testify

competently to these facts if called as a witness.

2. On May 26, 2016, I contacted Douglas Woods, Senior Assistant Attorney General,

to inform him that we had filed a complaint in this case and that Plaintiffs would soon be filing a

motion for relief. (Mr. Woods serves as head of the Government Section in the Attorney General’s

office and, to my understanding, typically supervises litigation challenging the constitutionality of

state statutes.) Mr. Woods confirmed that he received the message and that he would forward our

papers to the “right hands.” Later that day my office provided an electronic copy of the summons

and complaint to Mr. Woods by e-mail. A true and correct copy of the e-mail to Mr. Woods is

attached as Exhibit “A.”

3. On May 27, 2016, I e-mailed Mr. Woods to provide notice that Plaintiffs intended

to file a motion for temporary restraining order enjoining the enforcement of California

Government Code section 9026.5. A true and correct copy of my e-mail exchange with Mr.

Woods is attached as Exhibit “B.”

4. My firm will serve all papers supporting the motion for a temporary restraining

order on Defendant by hand delivery and by e-mail service to Mr. Woods on May 27, 2016.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed May 27, 2016 in California.

s/Bradley A. Benbrook

BRADLEY A. BENBROOK


EXHIBIT A


Friday,May27,2016at11:55:25AMPacificDaylightTime

Page1of1

Subject: FirearmsPol'yCoali/onSecondAm.DefenseComm.v.Harris(2:16-cv-01144)Date: Thursday,May26,2016at8:03:42PMPacificDaylightTimeFrom: SteveDuvernayTo: [email protected]: BradleyBenbrook

Doug: Here are the summons and complaint in Firearms Pol’y Coalition Second Am. Defense Comm. v. Harris (2:16-cv-01144), which we plan to serve by hand tomorrow.

Sincerely,

Steve Stephen DuvernayBenbrook Law Group, PC400 Capitol Mall, Suite 1610Sacramento, CA 95814(916) [email protected]


EXHIBIT B


Friday, May 27, 2016 11:53:42 AM Pacific Daylight Time

Page 1 of 1

Subject: Re: New complaint/TRODate: Friday, May 27, 2016 11:43:05 AM Pacific Daylight Time

From: Bradley BenbrookTo: Douglas Woods

Doug: Further to my message from yesterday, we are planning to file a motion for a TRO today, asking the Court to enjoin enforcement of California Government Code section 9026.5. According to JudgeEngland’s courtroom deputy, the Judge will review the papers and determine whether to set a hearing. In addition, the Eastern District's TRO checklist calls for us to state whether we discussed alternatives to seeking a TRO and whether the State would stipulate to a TRO. Given that Plaintiffs are challenging the constitutionality of a state statute, I suspect that this is a nonstarter. In any event, please let me know the State’s position in this regard. We will e-mail and personally serve copies of the TRO papers this afternoon. Let me know if we should copy anyone else on our service copies. Thanks very much.

Brad

Bradley BenbrookBenbrook Law Group, PC400 Capitol Mall, Suite 1610Sacramento, CA 95814(916) 447-4900

From: Douglas Woods <[email protected]>Date: Thursday, May 26, 2016 5:30 PMTo: Brad Benbrook <[email protected]>Subject: New complaint

Brad, got your message, yes, thanks for the heads-‐up. Best to email copies to me, and I’ll make sure it gets into the right hands. Thanks Doug

CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.


mailto:[email protected]

mailto:[email protected]

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BENBROOK LA W GROUP, PC BRADLEY A. BENBROOK (SBN 177786) STEPHEN M. DUVERNAY (SBN 250957) 400 Capitol Mall, Suite 1610 Sacramento, CA 95814 Telephone: (916) 447-4900 Facsimile: (916) 447-4904 [email protected] [email protected]

EUGENE VOLOKH (SBN 194464) UCLA School of Law 405 H ilgard AYe. Los Angeles, CA 90095 Telephone: (310) 206-3926 Facsimile: (310) 206-70 I 0 [email protected]

Attorneys for Plaintiffs

FIREARMS POLICY COALITION SECOND 16 AMENDMENT DEFENSE COMMITTEE;

FIREARMS POLICY COLAITION; KRIS 17 KOENIG; STEPHEN CHOLLET; MICHAEL

SCHW ARTZ; and TIM DONNELLY, 18

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Plaintiffs,

Y.

KAMALA D. HARRIS, in her official capacity 21 as Attorney General of California,

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Defendant.

Case No.: 2:16-cv-01144-MCE-AC

Hearing Date: TBD Judge: Morrison C. England, Jr.

KOENIG DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER

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BENBROOK LA W GROUP, PC BRADLEY A. BENBROOK (SBN 177786) STEPHEN M. DUVERNAY (SBN 250957) 400 Capitol Mall, Suite 1610 Sacramento, CA 95814 Telephone: (916) 447-4900 Facsimile: (916) 447-4904 [email protected] [email protected]

EUGENE VOLOKH (SBN 194464) UCLA School of Law 405 H ilgard AYe. Los Angeles, CA 90095 Telephone: (310) 206-3926 Facsimile: (310) 206-70 I 0 [email protected]

Attorneys for Plaintiffs

FIREARMS POLICY COALITION SECOND 16 AMENDMENT DEFENSE COMMITTEE;

FIREARMS POLICY COLAITION; KRIS 17 KOENIG; STEPHEN CHOLLET; MICHAEL

SCHW ARTZ; and TIM DONNELLY, 18

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Plaintiffs,

Y.

KAMALA D. HARRIS, in her official capacity 21 as Attorney General of California,

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Defendant.

Case No.: 2:16-cv-01144-MCE-AC

Hearing Date: TBD Judge: Morrison C. England, Jr.

KOENIG DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER


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3 to

I, Koenig, declare:

l. personal knowledge of the matters set forth in this declaration, and would be


4 I am a filmmaker, producer, and director. I have contracted with the Firearms

5 Policy Coalition Second Amendment Defense Committee and the Firearms Policy Coalition to

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and produce videos political advertisements. I would like to use Assembly video

III

is true

videos and advertisements, but I that doing so could subject me to liability

Government Code section 9026.5, because it prohibits using such footage

and "political purposes."

penalty of perjury under the laws of the of California that the

correct. Executed May

KOENIG DECI , IN SUPPORT OF TEMPORARY RESTRAINING ORDER

-1-

2

3 to

I, Koenig, declare:

l. personal knowledge of the matters set forth in this declaration, and would be


4 I am a filmmaker, producer, and director. I have contracted with the Firearms

5 Policy Coalition Second Amendment Defense Committee and the Firearms Policy Coalition to

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and produce videos political advertisements. I would like to use Assembly video

III

is true

videos and advertisements, but I that doing so could subject me to liability

Government Code section 9026.5, because it prohibits using such footage

and "political purposes."

penalty of perjury under the laws of the of California that the

correct. Executed May

KOENIG DECI , IN SUPPORT OF TEMPORARY RESTRAINING ORDER

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CHOLLET DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER

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Plaintiffs,


Defendant.

Case No.: 2:16-cv-01144-MCE-AC DECLARATION OF STEPHEN CHOLLET IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER Hearing Date: TBD Judge: Morrison C. England, Jr.


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I, Stephen Chollet, declare:

1. I have personal knowledge of the matters set forth in this declaration, and would be

able to testify competently to these facts if called as a witness.

2. I am a filmmaker, producer, and director. I have contracted with the Firearms

Policy Coalition Second Amendment Defense Committee and the Firearms Policy Coalition to

develop and produce videos and political advertisements. I would like to use Assembly video

footage in these videos and advertisements, but I fear that doing so could subject me to liability

under California Government Code section 9026.5, because it prohibits using such footage for

“commercial purposes” and “political purposes.”



________________________________STEPHEN CHOLLET

CHOLLET DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER-2-


DONNELLY DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER

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Plaintiffs,


Defendant.

Case No.: 2:16-cv-01144-MCE-AC DECLARATION OF TIM DONNELLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER Hearing Date: TBD Judge: Morrison C. England, Jr.


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matters set In

to as a

as a member of

penalty of perjury

correct

DONNELL Y DELL IN Sm'PORT OF TEMI'ORAR Y RESTRAINING ORDER

I

to


COMBS DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER

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Plaintiffs,


Defendant.

Case No.: 2:16-cv-01144-MCE-AC DECLARATION OF BRANDON COMBS IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER Hearing Date: TBD Judge: Morrison C. England, Jr.


COMBS DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER -1-

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I, Brandon Combs, declare:

1. I have personal knowledge of the matters set forth in this declaration, and would be

able to testify competently to these facts if called as a witness.

2. I am the Chairman and Principal Officer of Firearms Policy Coalition Second

Amendment Defense Committee (the “FPC PAC”) and the President of Firearms Policy Coalition

(“FPC”).

3. The FPC PAC is a political action committee organized to oppose the proposed

statewide ballot initiative sponsored by California Lieutenant Governor Gavin Newsom (officially

titled the “Safety for All Act of 2016”) (the “Initiative”) that has been submitted for qualification

to appear on the ballot for the November 8, 2016 general election.

4. FPC is a 501(c)4 non-profit public benefit organization that serves its members and

the public through direct and grassroots advocacy, legal action, education, and other efforts. The

purposes of FPC include defending the United States Constitution and the People’s rights,

privileges and immunities deeply rooted in the Nation’s history and tradition, especially the

fundamental right to keep and bear arms. FPC and the FPC PAC oppose the Initiative.

Additionally, FPC is lobbying, directly and through grassroots efforts, dozens of active measures

in the California Legislature. FPC spends time and resources informing the public about matters

of constitutional interest and civil rights through its FPC News video program. FPC News

programming includes messages that urge its members and the public to take political and

grassroots lobbying actions. FPC wants to use Assembly television footage to produce FPC News

videos relating to urgent legislative issues as well as the Initiative in the upcoming election.

5. The FPC PAC and FPC believe the Initiative will drastically and negatively affect

the civil rights of law-abiding people, including millions of Californians and visitors travelling to

California. In connection with its political campaign, the FPC PAC will produce and distribute

video advertisements opposing the initiative. FPC PAC will distribute the videos to the public on

television and online, including, but not limited to, on Facebook, on YouTube, on Instagram, and

at http://www.fpcsadc.org (the FPC PAC website developed to oppose the initiative).

6. FPC PAC is in the final stages of producing a video that includes Assembly


COMBS DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER -2-

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television footage of past and current bill committee hearings, floor discussion, debates, and votes

as well as footage from a May 3, 2016 joint Senate and Assembly Public Safety Committee

hearing on the proposed initiative. The committee intended to publish the video starting in May

2016 and continue to use the video as part of its ongoing campaign through the general election in

November.

7. While in the final stage of production, however, FPC PAC became aware of

California Government Code section 9026.5’s prohibition on the use of Assembly video footage

for “any political . . . purpose,” including “any campaign . . . opposing a ballot proposition.”

Because the advertisement would violate section 9026.5, the committee has halted final production

of the video and delayed its distribution plans until it gets the relief requested herein. In addition

to this video, FPC PAC intends to produce and distribute additional political advertisements

opposing the initiative that use video footage from various Assembly hearings.

8. FPC produces a video news program (“FPC News”) that focuses on legal and

political developments that affect the civil rights of millions of law-abiding people. FPC wants to

use Assembly television footage for FPC News, but has refrained from doing so since it learned of

Section 9026.5 because it fears prosecution for using such footage for “political purposes.”

9. FPC PAC and FPC have identified video footage generated by the Assembly that

they would like to use in connection with their various political advocacy videos, including, but

not limited to: May 12, 2016 Assembly Floor Session on Assembly Bill 2510; June 10, 2014

Assembly Floor Session on Senate Bill 396; Aug. 29, 2014 Assembly Floor Session on Senate Bill

53; June 10, 2014 Assembly Committee Public Safety hearing on Senate Bill 53.



________________________________ BRANDON COMBS


SCHWARTZ DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER

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Plaintiffs,


Defendant.

Case No.: 2:16-cv-01144-MCE-AC DECLARATION OF MICHAEL SCHWARTZ IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER Hearing Date: TBD Judge: Morrison C. England, Jr.


1 I, Michael A. Schwartz, declare:

2 1. I have personal knowledge of the matters set forth in this declaration, and would be

3 able to testify competently to these facts if called as a witness.

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2.

3.

I am the Executive Director of San Diego County Gun Owners PAC.

The San Diego County Gun Owners PAC is a political action committee that

advocates in favor of constitutional rights with a particular focus on the Second Amendment to the

United States Constitution. The PAC opposes a proposed statewide ballot initiative (officially

titled the "Safety for All Act of 2016") that has been submitted for qualification to appear on the

ballot for the November 8, 2016 general election. The committee would like to use Assembly

footage in political advertisements opposing the initiative, but has refrained from doing so because

of California Government Code section 9026.5

I declare under penalty of perjury under the laws ofthe State of California that the

foregoing is true and correct. Executed May 25th, 2016 in California.

MICHAEL A. SCHWARTZ

SCHWARTZ DECL. IN SUPPORT OF TEMPORARY RESTRAINING ORDER

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[PROPOSED] ORDER RE: TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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Plaintiffs,


Defendant.

Case No.: 2:16-cv-01144-MCE-AC [PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY DEFENDANT SHOULD NOT BE PRELIMINARYLIY ENJOINED FROM ENFORCING CALIFORNIA GOVERNMENT CODE § 9026.5 Judge: Morrison C. England, Jr.


[PROPOSED] ORDER RE: TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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Plaintiffs have demonstrated that they are likely to succeed on the merits of their claim that

California Government Code section 9026.5 violates their First Amendment rights. Plaintiffs have

also established that this harm is irreparable, the balance of equities weighs in their favor, and

injunctive relief will promote the public interest. Therefore, the Court finds that Plaintiffs’ Motion

for a Temporary Restraining Order should be GRANTED.

Because Defendant will not suffer monetary hardship by the issuance of the temporary

restraining order and because the matter involves a constitutional violation, the Court will require a

nominal bond in the amount of $1.

IT IS THEREFORE ORDERED that

Defendant is hereby ordered to cease and are hereby temporarily restrained from enforcing

California Government Code section 9026.5, beginning at _______ a.m./p.m. on

________________, 2016. This order shall remain in effect until _______ a.m./p.m. on

________________, 2016.

Defendant is hereby ordered to show cause at _______ a.m./p.m. on ________________,

2016, or as soon thereafter as the matter may be heard, before the Honorable Morrison C. England,

Jr., United States District Court, Eastern District of California, 501 I Street, Sacramento, CA

95814, why Defendant should not be preliminarily enjoined from enforcing California

Government Code section 9026.5.

Defendant shall file and serve its responsive papers, if any, by ________________, 2016

Plaintiffs’ counsel shall serve a copy of this order on Defendant by personal delivery and e-

mail by _______ a.m./p.m. on ________________, 2016.

Date: ____________________ ________________________________

UNITED STATES DISTRICT JUDGE


UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

TEMPORARY RESTRAINING ORDER(TRO)

CHECKLIST

NOTE: When filing a Motion for a TRO with the court, you must choose Motion for TRO. You mustcomplete this document and attach is to your motion as an attachment in CM/ECF. If you havequestions, please call the CM/ECF Help Desk at 1-866-884-5525 (Sacramento) or 1-866-884-5444 (Fresno).

(A) Check one. Filing party is represented by counsel G

Filing party is acting in pro se G

(B) Has there been actual notice, or a sufficient showing of efforts to provide notice to the affected party? See Local Rule 65-231 and FRCP 65(b).

Did applicant discuss alternatives to a TRO hearing?

Did applicant ask opponent to stipulate to a TRO?

Opposing Party:

Telephone No.:

(C) Has there been undue delay in bringing a TRO?

Could this have been brought earlier?

Yes: G No: G


TRO Checklist - Page 2

(D) What is the irreparable injury?

Why the need for an expedited hearing?

(E) Documents to be filed and (unless impossible) served on affected parties/counsel:

G (1) Complaint

G (2) Motion for TRO

G (3) Brief on all legal issued presented by the motion

G (4) Affidavit detailing notice, or efforts to effect notice, or showing why it should not be given

G (5) Affidavit in support of existence of irreparable harm

G (6) Proposed order with provision for bond

G (7) Proposed order with blanks for fixing:

G Time and date of hearing for motion for preliminary injunction

G Date for filing responsive papers

G Amount of bond, if any

G Date and hour of issuance

G (8) For TROs requested ex parte, proposed order shall notify affected parties they canapply to the court for modification/dissolution on 2 days notice or such shorter notice asthe court may allow. See Local Rule 65-231 and FRCP 65(b)


PROOF OF SERVICE

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BENBROOK LAW GROUP, PC BRADLEY A. BENBROOK (SBN 177786) STEPHEN M. DUVERNAY (SBN 250957) 400 Capitol Mall, Suite 1610 Sacramento, CA 95814 Telephone: (916) 447-4900 Facsimile: (916) 447-4904 Attorney for Plaintiffs




Plaintiffs,


Defendant.

Case No.: 2:16-cv-01144-MCE-AC PROOF OF SERVICE Hearing Date: TBD Judge: Morrison C. England, Jr.


-2- PROOF OF SERVICE

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PROOF OF SERVICE

Case No. 2:16-cv-01144-MCE-AC

The undersigned hereby certifies as follows:

I am an employee of the law firm of Benbrook Law Group, PC, 400 Capitol Mall, Suite

1610, Sacramento, California. I am over 18 years of age and am not a party to the within action.

On May 27, 2016 I served a true copy of the following documents:

1. PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY

RESTRAINING ORDER 2. PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF MOTION FOR TEMPORARY RESTRAINING ORDER

3. DECLARATION OF BRADLEY A. BENBROOK IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

4. DECLARATION OF STEPHEN CHOLLET IN SUPPORT OF MOTION FOR

TEMPORARY RESTRAINING ORDER 5. DECLARATION OF BRANDON COMBS IN SUPPORT OF MOTION FOR

TEMPORARY RESTRAINING ORDER 6. DECLARATION OF TIM DONNELLY IN SUPPORT OF MOTION FOR

TEMPORARY RESTRAINING ORDER 7. DECLARATION OF KRIS KOENIG IN SUPPORT OF MOTION FOR

TEMPORARY RESTRAINING ORDER

8. [PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY DEFENDANT SHOULD NOT BE PRELIMINARYLIY ENJOINED FROM ENFORCING CALIFORNIA GOVERNMENT CODE § 9026.5

on the party(ies) in this action by placing a true copy thereof in a sealed envelope(s), addressed as

follows:

Kamala D. Harris

Office of the Attorney General

1300 I Street

Sacramento, CA 95814

X X (PERSONAL SERVICE) by sending a true copy thereof in an envelope addressed as indicated above, and by then sealing said envelope(s) and giving the same to a messenger for personal delivery

(BY MAIL) I placed such sealed envelope, with postage fully prepaid for first-class mail, for collection and mailing at Benbrook Law Group, PC, Sacramento, California following ordinary business practices. I am readily familiar with the practice of Benbrook Law Group, PC for collection and processing of correspondence, said practice being that in the ordinary course of


-3- PROOF OF SERVICE

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business, correspondence is deposited in the United States Postal Service the same day as it is placed for collection.

I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Dated: May 27, 2016 s/Kelly McConnen

Kelly McConnen


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