My recent post Victory for #2A in Duringer v Morro Bay gave little detail, but i can now report judgment was entered today in favor of Plaintiff David R. Duringer (that’s me!) jointly and severally against all three defendants: the City of Morro Bay; former police chief Joseph Cox a/k/a Jody Cox (personally, in his individual capacity); and current — soon to be former?? — police chief Amy Watkins (personally, in her individual capacity).
The case is totally unique — absolutely no other case like it, anywhere — yet is both a Second Amendment victory and a First Amendment victory that can inspire a tidal wave of other such victories. Blood is in the water and the dinner bell is ringing liberty.
This was not a judgment by the Court on the merits. Instead, i accepted Defendants’ offer of judgment in my favor for a specific dollar amount pursuant to Rule 68 of the Federal Rules of Civil Procedure. [The point of Rule 68 is to create, for judicial economy, an extra risk on a Plaintiff who refuses to settle early in that the Plaintiff might have to pay some of Defendants’ attorney fees and costs if the Plaintiff fails to obtain a judgment for at least the amount offered. Good rule! (See treatise “Economic Analysis of Law” by the great Seventh Circuit Judge Richard A. Posner.)]
My case was strong on liability, for violation of multiple federally-protected constitutional rights under the First, Second, and Fourteenth Amendments, unusually egregious in that, aside from merely affecting me personally, the violations were in retaliation for my speech and conduct as a political candidate and therefore also affected my supporters.
If you want to know better the strength of my case, skim through my 92-page complaint. In short, the case centers around MBPD’s denial of my CCW application based on their determination that i lacked Good Moral Character. Their sole basis for that determination (because my record is 100% spotless) was my non-threatening display, as political speech, of a so-called “red gun” at a forum when i was running for city council. A “red gun” is neither a firearm, nor any sort of a gun. It’s a hunk of red plastic in the shape of a gun which is perfectly legal to display in public. Actually, it’s specifically designed for that purpose and both Defendant police chiefs admitted there was nothing illegal about my display of the “red gun”. Yet in their warped judgment, my non-threatening display of the “red gun” as political speech was an indication that i could not responsibly carry a concealed firearm. Problem One: SCOTUS prohibited use of any judgment, let alone warped judgment, in issuing permits to carry; and Defendants knew they were acting against this clear authority. Problem Two: My twenty year perfect record of safety as a student, practitioner, and instructor of concealed carry. Problem Three: During my campaign, both before and AFTER the forum event, i repeatedly displayed the same “red gun” publicly while teaching drills on voters’ porches all over town without complaint or response by MBPD, as i had done two years prior in a different city. See my 92-page complaint for more detail.
Civil rights cases normally involve suing public officials in their official capacities, rather than the municipality itself. My case was different, involving claims that in general are rarely successful but were well-founded upon the facts of my case. I sued the City of Morro Bay alleging a conspiracy (or as i call it, a high-tech lynching) to deprive me of my federally-protected rights in furtherance of Morro Bay city policy. I sued the two police chiefs in their individual capacities, even though such actions are rarely successful due to the affirmative defense of qualified immunity, because there is evidence that these defendants knowingly violated clear legal authority as they deprived me of my federally-protected rights. Moreover, i have hard evidence that the City of Morro Bay falsified public records in producing a false document which it claimed to be the official letter denying my CCW application, but which differed substantially in content from the actual letter received and still in my possession.
We all knew that despite strong arguments for liability, my case was somewhat weaker on damages in that much of the economic losses were admittedly speculative. I could definitely prove some economic loss, which might be necessary to serve as a basis for punitive damages (never got a clear answer on that, but regardless it would be easy to show some economic loss), and i could probably recover some amount for other compensatory damages. But punitive damages would require years of litigation and the reality is that, even though i had the law on my side, this would be a California jury and even if the case made it successfully through the Ninth Circuit or perhaps beyond, a decent amount of punitive damages was unlikely. Moreover, I’m sure opposing counsel did some verdict research and was equally aware that Second Amendment judgments are skewed toward the low end of the monetary scale.
I’m no Richard Posner, but as an Econ major i understand opportunity cost and this case was definitely a distraction from my practice. But despite the increasing opportunity cost of pursuing this judgment, the magnitude of harm i suffered precluded me from considering an insubstantial amount. Understanding the uncertainty in damages and the generally low value of Second Amendment cases, but also understanding my need for a recovery of some substance, opposing counsel correctly guessed (to the penny) my lowest acceptable amount, and i accepted his Rule 68 offer.
Defendants offered me enough to settle, but not enough to forgive. There was absolutely no indication of remorse by Defendants. Given the way negotiations went, i doubt whether Defendants learned any lesson from my case. I can only hope the taxpayers of Morro Bay, many of whom also vote, will successfully conclude the lesson.
Why do i call the resolution of my case a “Second Amendment victory”? After all, i did not seek to overturn any unconstitutional laws (the Good Moral Character requirement used to deny my CCW was repealed soon afterward). Nor did i seek to obtain a CCW (i already have one, from our sheriff). I sought declaratory relief that the administrative determination that i lacked Good Moral Character was without basis, null and void — but there was no decision on the merits. No admissions were made, no issues were decided. A money judgment was entered in my favor, but no one would say the amount is huge.
This is a Second Amendment victory because:
- The judgment amount, though not huge, should be substantial enough to discourage future deprivation of federally-protected rights, especially when considering the substantial fees charged by several attorneys working for Defendants.
- Failed off-record settlement negotiations exposed the insane degree to which Defendants are committed to their relentless policy against gun rights, in total disregard of the Constitution, even as they attempted to shield that policy from public scrutiny. While Defendants never signed off on acknowledging their determination that i lacked Good Moral Character was “without basis, null and void” (my main goal from the beginning), i emerged free to tell the complete story and disparage the heck out of these evil bastards.
- Failure of off-record settlement negotiations put Defendants in a worse position. They now have personal judgments against them as a permanent public record. (As we tax lawyers like to say: “Pigs get fat, hogs get slaughtered.”)
Rule 68 offers and acceptances of those offers are usually not filed with the Court. The parties usually work out some other mutually beneficial arrangement, largely because…guess what: defendants don’t like having civil judgments permanently on their record. Instead, the parties agree to some other terms, including dismissal of the lawsuit; hence, no judgment.
Upon learning i had efiled the Rule 68 offer and acceptance, opposing counsel was PISSED, even daring to say i lacked professionalism!
But i had warned opposing counsel i would be proceeding on Rule 68 if we failed to complete the off-record settlement quickly, according to their estimated timeframe. (I was careful to clearly document our agreement that the off-record negotiations were not a rejection of the Rule 68 offer.) Negotiations dragged on, blowing past their estimates, excuses were made about having to deal with an overworked part-time city attorney, and the City never signed the agreement. Yet despite this supposed difficulty in getting signatures, there seemed to be no difficulty in getting quick response from the City almost in realtime as we negotiated terms telephonically and by email in order to produce the agreement i signed and waited for the City to sign.
Even after I signed the agreement, which by its own terms (provided by opposing counsel) obligated me to file dismissal within 7 days of receiving settlement check, opposing counsel weirdly kept insisting that i would have to sign a dismissal before receiving check. I would consider that a material breach of the agreement if the City had signed — which they hadn’t. Nor did i ever receive opposing counsel’s signature as Attorney for all defendants. So rather than being a material breach, it was really a rejection of the deal i signed, a rejection of my signature.
The insistence of signing dismissal before getting check was the caboose in a long train of abuses. The whole experience of negotiating the off-record settlement was insulting in its complete disregard for my long-stated objectives. The misspelling of my middle initial (not easy to do, even in the busiest office) might have been innocent, but in retrospect may have been part of a plan to delay things long enough that i would blow the deadline for accepting their Rule 68 offer. More importantly, they included broad language requiring confidentiality and non-disparagement, hoping to bar me from saying anything bad about Defendants and getting my story out about what happened to me. Can you believe that? I was offering to engage in an off-record settlement that would avoid the public record of entry of civil judgment against these Defendants and i was not even demanding any extra money for that favor, not a penny above what i was entitled to under their minimalist, non-apologetic Rule 68 offer. And yet they dared to include this brazen attempt to silence me from all public comment, to keep the lid on what they had done. I categorically rejected both clauses requiring confidentiality and non-disparagement, agreeing only to include a short covenant against actionable defamation, which is unlawful anyway. And then opposing counsel quickly informed me of the very quick response by the overworked part-time city attorney who cannot quickly sign things that the City would like to include language barring me from ever applying for CCW with the City again. My response to that was angry. Aside from being totally contrary to my objective of getting the word out that their determination that i lacked Good Moral Character was wrong, this prohibition would itself be a further violation of my inalienable rights. The City had learned nothing.
A year and a half before filing this case, i warned Defendants i would sue them but offered to settle everything without money if they would simply reverse that administrative determination of lack of Good Moral Character, which of course was utterly and completely baseless.
Now, after filing this federal case, i was not demanding any extra money beyond what i had accepted in the Rule 68 offer, yet i was willing to enter into an off-record settlement benefiting Defendants much more than me. Really the only thing i was asking for, the only thing i cared about, was for Defendants to include an admission that the administrative determination, in denying my CCW, that i lacked Good Moral Character, was “without basis, null and void”. And they would only give me three of those five words: “null and void”.
Stupidly, i accepted.
Stupidly, opposing counsel insisted on requiring me to sign dismissal before receiving check, contrary to the express terms i signed. Again, i consider that a rejection of the supposed deal.
Regardless, and stupidly, Defendants and their attorney failed to sign the agreement after i repeatedly warned them that failing to complete it quickly would result in my proceeding under Rule 68.
Stupidly, even after acknowledging by email their receipt of my acceptance of the Rule 68 offer, opposing counsel failed to make any attempt to sweeten the off-record deal so that it actually offered me something. Like including those two words they took out (“without basis”), for example. That might have worked. But probably not, as trust was lacking at this point.
So now, two police chiefs have a substantial personal judgment entered against them, a permanent public record against them as individuals.
What will i do with “all this money”? Assuming my Jeep survives the Rubicon Trail this summer, i plan to spend a good portion of the judgment proceeds upgrading the free handgun training i offer at my office in Morro Bay.
