Tulare County DA and Sheriff Ignore Federal Judge's Orders to Leave Law Abiding Citizens and Their Large Capacity Magazines Alone


On August 28, 2020, a Tulare County judge granted a petition for factual innocence we filed on behalf of our client. Our client was arrested for purchasing large-capacity magazines, and now, for the next three years, the record of that arrest must be sealed and then destroyed. We worked hard to achieve this victory, fighting against an obstinate DA and Sheriff to obtain justice.

Large-Capacity Magazines Purchased During "Freedom Week"

In January of 2020, a Tulare County Sheriff performed a "sweep search" of our client's home and found two 15-round Glock magazines. The Sheriff arrested our client and took him to jail, where he was held on $60,000 bail. He was charged with a felony and hired us to defend him.

We asserted that our client's possession of the magazines was lawful, as he purchased them during what has been referred to as "Freedom Week."

Under California's ban on high-capacity gun magazines, selling, purchasing, or possessing such magazines was illegal. But in 2019, U.S. District Court Judge Roger Benitez issued a ruling, stating that the ban was unconstitutional and violated Second Amendment rights. Judge Benitez then prohibited enforcement of the magazine ban.

A week after Judge Benitez's initial decision, the Attorney General filed an appeal. However, in the time between the ruling and the appeal, hundreds of thousands of large-capacity magazines were imported and sold in California. Many residents, including our client, had already bought such magazines.

Judge Benitez issued an injunction (a court order) against enforcing the magazine ban against anyone who bought them during "Freedom Week." And although this order was served to all Sheriff Departments and DA's Offices, that didn't stop the Deputy who arrested our client from taking him into custody.

Our client told the Sheriff that his magazines were legally purchased during "Freedom Week," but the officer demanded he provide receipts to prove this was the case. At the time our client bought the magazines, he, like many others, didn't realize the life of the large-capacity magazine ban would be less than a week; thus, he didn't keep the receipts.

According to a report by Action News, the Tulare County District Attorney's Office stated that it wouldn't have pursued the case if our client had receipts for the magazines. However, proof of purchase was not a requirement under Judge Benitez's injunction. Not having any receipts did not authorize enforcement.

Fighting Against an Unlawful Arrest and Criminal Charge

At court, our client entered a not guilty plea, and we advised the DA and the judge that our client's arrest and prosecution were illegal under Judge Benitez's order.

Despite the fact that the DA had the sworn declaration from the Department of Justice (DOJ), proving that our client was innocent, the DA did not release this document before or at the preliminary hearing. Instead, they offered our client a misdemeanor. With our advice and consent, our client refused the offer because he was factually innocent.

The DA did not budge. Neither did we.

Defending Our Client's Innocence

After the case was bound over for trial, we brought to the DA's attention the fact that their attempt to enforce the law against a "Freedom Week" buyer was illegal. The DA refused to help clear our client's record. Instead, they tried to avoid embarrassment by refusing to file an accusatory pleading. Worse, the DA refused to admit that our client was, in fact, innocent, which would have left our client with a record of a felony arrest. We were not about to let that happen.

We immediately filed and served a petition for factual innocence. The DA opposed the petition in writing and actually had the nerve to argue that no clear and convincing evidence supported our contention that our client was innocent. They simply continued to ignore the Constitution and Judge Benitez's order.

Weeks later, the judge found our client factually innocent of possessing large-capacity magazines.

We hope that the Sheriff and the DA have learned to obey the lawful orders of a federal judge on matters of Constitutional law, not to ignore their duty to release exculpatory evidence that proves innocence, and not to mess with our clients' rights to keep and bear arms.

At Schweitzer & Davidian, we stand up for those who have been wronged by law enforcement officials and are not afraid to challenge difficult opponents to seek justice.

If you have been charged with a crime in Fresno or the surrounding areas, call us at (559) 206-2322 or contact us online for the dedicated defense you need.

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