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IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
______________________________________

Docket No. 21-55060

[DC No. 20-03745 GW (AS) (C.D.Cal., Los Angeles)]
____________________________________

SAMUEL ARMSTRONG, Individually and on behalf of all those similarly

situated,
Plaintiff/Appellant

vs.

GAVIN NEWSOM,
Defendants/Appellees.

__________________________

On Appeal From Final Order of Dismissal (FRCP § 12B) of the United States
District Court for the Central District of California
________________________________

PLAINTIFF/APPELLANT’S OPENING BRIEF

_____________________________

Rami Kayyali (201579)

Law Offices of Rami Kayyali
12400 Wilshire Blvd., Suite 400
Los Angeles, CA 90025
Tel:(310) 490-4515
ramilaw@sbcglobal.net
Attorney for Plaintiff/Appellant Samuel Armstrong
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TABLE OF CONTENTS
PREAMBLE
1. INTRODUCTION 5
2. STATEMENT OF JURISDICTION 6
3. STATEMENT OF ISSUES PRESENTED FOR REVIEW 7
4. STATEMENT OF FACTS 8
5. SUMMARY OF ARGUMENT 15
6. STANDARD OF REVIEW 17
7. ARGUMENT 18
A. PLAINTIFF HAS ALLEGED A VIABLE SECTION 1983 CAUSE OF
ACTION AGAINST DEFENDANT NEWSOM, IN HIS PERSONAL
CAPACITY, FOR NEWSOM'S VIOLATION OF PLAINTIFF'S CIVIL
RIGHTS ENSHRINED IN THE FOURTEENTH AMENDMENT TO THE
US CONSTITUTION 18
B. THE US CONSTITUTION AND ADHERENCE TO RULE OF LAW IS
THE FOUNDATION FOR THE US' STRENGTH AND EXISTENCE,
AND IT FORBIDS DEPRIVATION OF LIBERTY, WITHOUT DUE
PROCESS, EXCEPT IN STRICTLY DEFINED CASES OF
EMERGENCY, OCCURRING WHEN THE USA IS AT WAR;
CALIFORNIA CANNOT DECLARE WAR AND HAS NO SUCH
EMERGENCY POWERS 21
C. IF THE COURT ASSUMES THAT NEWSOM HAD THE
CONSTITUTIONAL AUTHORITY TO SUSPEND CITIZEN LIBERTY,
WITHOUT DUE PROCESS, UNDER THE GUISE OF EMERGENCY,
THE INQUIRY SHIFTS TO WHETHER NEWSOM'S RESIDENTIAL
CONFINEMENT ORDER WAS REASONABLE, AND, AT WHAT
POINT IN THE SPECTRUM OF CONFINEMENT DID HIS ORDER
BECOME UNREASONABLE; THIS FACTUAL INQUIRY, SUBJECT TO
STRICT SCRUTINY, PRECLUDES RELIEF PURSUANT TO A FRCP
SECTION 12B MOTION 28
D. NEWSOM’S ORDER WAS PURPOSEFULLY
UNCONSTITUTIONALLY VAGUE 29
8. CONCLUSION 33
9. STATEMENT OF RELATED CASES 36
10. CERTIFICATE OF COMPLIANCE 37

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TABLE OF AUTHORITIES
US CONSTITUTION
Section One of the Fourteenth Amendment to the United States Constitution
Article I, Section 8 of the Constitution
Article II of the Constitution
Article IV of the Constitution "Guarantee Clause"
US SUPREME COURT
Adarand Constructors v. Peña, 515 U.S. 200 (1995)
Anderson v. Creighton 483 U.S. 635, 107 S. Ct. 3034 (1987)
Bivens v. Six Unknown Fed. Narcotics Agents, 403 US 388 (1971)
Cf. Sterling v. Constantin, 287 U.S. 378(1932)
Colautti v. Franklin, 439 U.S. 379(1979)
Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S. Ct. 231 (1934)
Ex Parte Milligan, 71 US (4 Wall.) 2 (1866)
Ex parte Young, 209 U.S. 123, 28 S. Ct. 441(1908)
Jacobson v. Massachusetts, 197 U.S. 11 (1905)
Korematsu v. United States, 323 US 214 (1944)
Mitchell v. Forsyth 472 U.S. 511, 105 S. Ct. 2806 (1985)
Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 102 S. Ct. 2557(1982)
Saucier v. Katz 533 U.S. 194, 121 S. Ct. 2151(2001)
Sugarman v. Dougall, 413 U.S. 634 (1973)
United States v. Lanier 520 U.S. 259, 117 S. Ct. 1219 (1997)
Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258(1997)
9TH CIRCUIT
Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094 (9th Cir. 2004)
Armendariz v. Penman, 75 F.3d 1311 (9th Cir.1996)
Brewster v. Board of Education of Lynwood Unified School Dist., 149 F.3d 971
(9th Cir. 1998)
Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001)
Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011)
Halverson V. Skagit Cty., 42 F.3d 1257 (9th Cir. 1994)
Jackson v. City of Bremerton, 268 F.3d 646 (9th Cir. 2001)
Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007)
Kirtley v. Rainey, 326 F.3d 1088 (9th Cir. 2003)
Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005)
Knox v. Davis, 260 F.3d 1009 (9th Cir. 2001)
Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)

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Liston v. County of Riverside 120 F.3d 965 (9th Cir. 1997)

Mabe v. San Bernardino County, 237 F.3d 1101 (9th Cir. 2001)
McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984)]
Munger v. City of Glasgow Police Dept., 227 F.3d 1082, (9th Cir. 2000)
Patel v. City of Montclair, 798 F.3d 895 (9th Cir. 2015)
Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006)
Zimmerman v. City of Oakland, 255 F.3d 734 (9th Cir. 2001)
DISTRICT COURT
In re Abbott, 954 F.3d at 784 (2020)
Lighthouse Fellowship Church v Northam, USDC#2:20-cv-204-AWA-RJK
US CODES
28 U.S.C. Section 1291
28 U.S.C. Section 1331
28 U.S.C. Section 1343
28 U.S.C. Section 1983
Federal Rules of Civil Procedure Section 12
ACTS
The Civil Liberties Act of 1988 Pub.L. 100–383, title I, (August 10, 1988), 102
Stat. 904, 50a U.S.C. § 1989b et seq.

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1. PREAMBLE

"We hold these truths to be self-evident, that all men are created equal, that they

are endowed by their Creator with certain unalienable Rights, that among these are

Life, Liberty and the pursuit of Happiness." This was the principle upon which the

US (and California) Constitution was founded. The Constitution dictates that the

majority cannot deny the minority certain fundamental rights, chief among them

due process before restricting liberty. “Even in a pandemic, the Constitution

cannot be put away and forgotten." Roman Catholic Diocese of Brooklyn v.

Cuomo, No. 20A87, 2020 WL 6948354 (U.S. Supreme Court, Nov. 25, 2020).

No individual may legislate or enact a law that completely destructs a

citizen's fundamental rights such as due process; Home Bldg. & Loan Ass'n v.

Blaisdell, 290 U.S. 398, 54 S. Ct. 231 (1934). And, for every wrong there must be

a remedy, rule of law and the dignity of the Courts; Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971).

2. INTRODUCTION

Plaintiff, individually, and on behalf of citizens similarly affected, seeks

civil rights damages from Gavin Newsom, for his role in the execution of an open-

ended and vague residential confinement order of March 19, 2020, without due

process of the law, and without reasonable grounds.

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3. STATEMENT OF JURISDICTION

This action arises under the Civil Rights Act of 1871, 42 U.S.C. §§1983 et

seq., and the Eighth Amendment to the United States Constitution. The District

Court has jurisdiction over Federal claims pursuant to 28 U.S.C. Sections 1331

and 1343.

28 U.S.C. Sections 1331states:

"The district courts shall have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United States."

28 U.S.C. Section 1343(a) states, in pertinent part:

"(a)The district courts shall have original jurisdiction of any civil

action authorized by law to be commenced by any person:

(3)To redress the deprivation, under color of any State law, statute,

ordinance, regulation, custom or usage, of any right, privilege or

immunity secured by the Constitution of the United States or by any

Act of Congress providing for equal rights of citizens or of all

persons within the jurisdiction of the United States;

(4)To recover damages or to secure equitable or other relief under any

Act of Congress providing for the protection of civil rights..."

In Bell v. Hood, the Supreme Court explained that “where the complaint is

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so drawn as to seek recovery directly under the Constitution or laws of the United

States, the federal court, but for two possible exceptions must entertain the suit.”

327 U.S. 678, 681-82, 66 S.Ct. 773, 90 L.Ed. 939 (1946). The two “possible

exceptions” are claims that “clearly appear to be immaterial and made solely for

the purpose of obtaining jurisdiction” and claims that are “wholly insubstantial

and frivolous.” Id. at 682-83, 66 S.Ct. 773

Under 28 U.S.C. § 1291, the court of appeals has jurisdiction over “all final

decisions of the district courts … except where a direct review may be had in the

Supreme Court.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373

(1981).

The District Court entered a final dismissal of the third amended complaint,

granting Defendants’ FRCP §12(b)(6) motion on 1/11/2021 [103-104]. Plaintiff

filed the Notice of Appeal on 1/24/2021 [119-123]

3. STATEMENT OF ISSUES PRESENTED FOR REVIEW

A. In ruling on a FRCP § 12 B motion to dismiss for failure to state a viable

cause of action, may the District Court adopt defendant’s factual assertions which

are outside of the pleadings and favor defendant’s facts over plaintiff’s facts?

B. May defendant Newsom completely dispense with due process when

confining citizens to their residences?

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4. STATEMENT OF FACTS

For purposes of analyzing dismissal pursuant to a 12(b)(6) motion, the facts

are contained in the third amended complaint. [3-16] The third amended

Complaint recites [3-12]:

“Plaintiff alleges that he, and all those similarly situated, were harmed and

sustained damages as a result of the defendants’ violation of their civil rights,

enshrined in the Fourteenth Amendment to the United States Constitution,

prohibiting denial of their right to liberty without due process of law.

On March 13, 2020,President Trump declared a corona state of emergency

and issued “Coronavirus Guidelines for America,” which, among other measures,

urged the public to “avoid social gatherings in groups of more than 10 people” and

to “use drive-thru, pickup, or delivery options” instead of “eating or drinking at

bars, restaurants, and food courts.” The Centers for Disease Control ("CDC") and

Prevention concurrently recommended that individuals “stay at home as much as

possible” and when in public keep “about 6 feet” away from others." The Federal

"Guidelines" recognized that the USA is uniquely founded upon citizen

sovereignty, with normative, civil and criminal law filling the gaps to achieve

government control over it's citizen.

Pursuant to President Trump's and the CDC's Guidelines, plaintiff, and all

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those similarly situated, complied with said Guidelines. On March 19, 2020, after

plaintiffs complied with said Guidelines, Gavin Newsom, issued his statewide

residential-confinement order (Executive Order N-33-20). He summarily ordered

plaintiff, and all those similarly situated, to be confined to their respective

residences, under penalty of being convicted of a criminal misdemeanor, for which

the punishment is a $1000 fine and/or six months of imprisonment. Said order

applied indiscriminately to plaintiffs, without regard to whether they complied

with President Trump's and CDC Guidelines, without regard to danger from

corona, whether or not they were suspected of harboring an infectious disease,

including residents of sparsely populated counties such as Modoc, Lassen, Sierra

and Alpine Counties, which haven't had a single case of corona.

Plaintiff Armstrong is a sovereign law abiding California citizen who has

never committed a crime. He resides in Los Angeles. He works as a custodian for

commercial buildings. The company of plaintiff's family, friends and associates

brings comfort and happiness to plaintiff's life. Plaintiff enjoys working for a

living and maintaining his sovereignty. He keeps himself healthy and harbors no

infectious disease. He enjoys traveling to his house in Northern California. As a

direct and proximate result of Newsom's residential-confinement order, plaintiff

lost the comfort and society of his family, friends and associates, and lost

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substantial business and income. He could not travel to his property im Northern

Califonia. He could not visit and socialize with his family, friends and associates

and lost the comfort of their society. Pursuant to the order, substantial elements of

plaintiff's life were criminalized. Plaintiff suffered substantial insult to his

sovereignty and emotional distress. Plaintiff's emotional distress was magnified by

the vagueness of the order which was not objective as to what constitutes essential

work or activity, how the order would be enforced, whether his normal social

activities will cause him to be a criminal and whether he will lose further liberties.

Adding to his emotional distress is the fact that the order was open-ended with no

specific conditions for release or termination date.

Newsom's order is, beyond all question, a plain, palpable invasion of rights

secured by the fundamental law. Without any measure of due process, it forbade

plaintiff and others similarly situated, from exercising their basic liberties

including freedom of association, traveling, contracting and earning a living.

Plaintiff was forbidden from visiting his family members and associates,

regardless if anyone was suspected of harboring an infectious disease. He was

forbidden from traveling. He was forbidden from attending to his work and

servicing his contractual obligations. The order denied him equal protection of the

law as the Federal Government and eight states did not impose residential-

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confinement orders.

Plaintiff was deprived of liberty which involves loss of time which can

never be replaced and the order destroyed the Constitutional limitation at issue.

Plaintiff was subjected to emotional distress and anxiety as a result of enduring the

confinement and without knowing when he may be released.

Newsom's order has no real or substantial relation to the stated object of

protecting the public from corona. The order was based upon Newsom's

Proclamation of State of Emergency, of March 4, 2020, which states, "a high

percentage of individuals affected by COVID-19 will experience mild flu-like

symptoms." The 4th paragraph states, "PPE is not necessary for use by the

majority of the population." Said emergency order called for a mass quarantine

period of 14 days based upon medical authority, ostensibly so that medical

authorities could identify the sources of corona infections and thereafter enact

targeted and rational measures to control it's spread. Yet Newsom extended the

residential-confinement order about ninety days and did not formally rescind the

order.

Per the order, Governor Newsom derives his authority from Health officials.

Yet, his order violates the procedures specified in the “HEALTH OFFICER

PRACTICE GUIDE FOR COMMUNICABLE DISEASE CONTROL IN

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CALIFORNIA.”

Newsom's order violated the California Constitution and California Case

law which provides, to sustain quarantine of person allegedly having a disease, the

law required probable cause to believe that person has a communicable infectious

disease.

Furthermore, quarantining the entire California

population of about 40 million is irrational as indicated by medical studies and by

the ethical principle in medicine which states the proposed medicine cannot be

worst for the body than the underlying condition.

Targeting and controlling venues of mass corona transfer would have

achieved substantially the same results without resorting to a draconian un-

Constitutional residential-confinement order.

Mass Quarantine of all California residents via the

residential-confinement order is ineffective and

irrational when California has open borders with eight US states and other

countries that do not have residential-confinement orders and there are constant

flights and travel to California from these states and international destinations.

Concurrently, Governor Newsom ordered the relaxation of alcohol sales

whilst, alcohol compromises citizens' immunity from corona and causes social

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problems and stress which further exacerbates citizens' vulnerability to corona. He

concurrently announced the reopening of beaches wherein citizens use common

public restrooms and facilities, thereby potentially spreading corona.

The duration of the of the order was motivated by political expediency and

media exposure and not rational health considerations.

Newsom continued the residential-confinement order even though the

Federal Government stated it's position, including through it's legal intervention in

Lighthouse Fellowship Church v Northam, USDC#2:20-cv-204-AWA-RJK, that

"Constitutional Rights Are Preserved During a Public Health Crisis." He

continued the residential-confinement order even though law enforcement,

Counties and Municipalities refused to enforce the order and arrest law abiding

citizens.

He continued the order even though plaintiff citizens and businesses

voluntarily abided by the CDC Guidelines, by wearing masks, social distancing,

and constant cleaning of premises, motivated by self-preservation, normative, civil

and criminal law which was effective and adequate for purpose of controlling the

spread of corona.

Newsom violated his oath to defend the Constitution, and deliberately

stoked fear in the population by fraudulently implying that deaths would not occur

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but for corona and omitting the fact that, per the CDC, yearly, about 1.7 million

US adults develop sepsis and 270,000 die as a result of sepsis (a serious condition

resulting from the presence of harmful microorganisms in the blood or other

tissues and the body’s response to their presence, potentially leading to the

malfunctioning of various organs, shock, and death.), and that 90% of corona

instigated hospitalizations involve people with severe underlying conditions and

over 99% of corona instigated deaths were due to severe underlying conditions.

Said residential confinement order is also unconstitutional in that it is

unconstitutionally vague, as to it's scope and duration. The order lacks a defined Mens

Rea. The line is not clear. It is subjective and the police cannot objectively recognize when

a crime of violating the order is committed and so it's enforcement would be substantially

subjective. The order is vague as a matter of law.

The order sentencing plaintiffs to residential confinement was open-ended and

entirely subjective, and based upon the subjective whims of defendants. Said order

violated the minimum Constitutionally-mandated sentencing rules specified at 18 U.S.

Code § 3553.

Pursuant to said order, plaintiff, and similarly situated California residents, have

been unjustly confined to their residences, under vague and murky prohibitions, and have

sustained emotional distress and damages as a result thereof.

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Section One of the Fourteenth Amendment to the United States Constitution states, in

pertinent part, as follows:

"No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any

person of...liberty...without due process of law."

By his order, Gavin Newsom summarily confined plaintiff, and class members, to

their respective residences, without due process of law or rationale justification. Gavin

Newsom and Doe defendants, have injured Plaintiff, and all those similarly situated,

causing them emotional distress and damages, in violation of their right to liberty in

violation of Section One of the Fourteenth Amendment to the United States Constitution.”

5. SUMMARY OF ARGUMENT

A. Upon ruling on a Federal Rules of Civil Procedure § 12(b)(6) motion, when there

are well-pleaded factual allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to relief. Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009)

Defendant Newsom moved to dismiss citing “facts” outside of the pleadings[55-58],

in affect, converting his FRCP § 12B motion into a motion for summary judgment,

without permitting any scrutiny of his case. Such is not permitted in a FRCP § 12 B

motion setting.

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FRCP 12(d) states:

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated as one

for summary judgment under Rule 56. All parties must be given a reasonable

opportunity to present all the material that is pertinent to the motion.

“When the legal sufficiency of a complaint's allegations is tested by a motion under

Rule 12(b)(6), “review is limited to the complaint.” Cervantes v. City of San Diego, 5 F.3d

1273, 1274 (9th Cir.1993). All factual allegations set forth in the complaint “are taken as

true and construed in the light most favorable to plaintiffs.” Epstein, 83 F.3d at 1140.

Indeed, factual challenges to a plaintiff's complaint have no bearing on the legal

sufficiency of the allegations under Rule 12(b)(6). Yet, in this case, defendants' arguments

in favor of affirming the dismissal of plaintiffs' federal claims rest almost entirely on

factual challenges. More importantly, the district court's decision to dismiss plaintiffs'

federal claims was rooted in defendants' factual assertions. In granting defendants'

motions, the court assumed the existence of facts that favor defendants based on evidence

outside plaintiffs' pleadings, took judicial notice of the truth of disputed factual matters,

and did not construe plaintiffs' allegations in the light most favorable to plaintiffs. We

therefore also reverse the district court's dismissal of plaintiffs' § 1983 claims alleging

violations of the First, Fourth, and Fourteenth Amendments on these independent grounds.

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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)

B. “Even in a pandemic, the Constitution cannot be put away and forgotten." Roman

Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020 WL 6948354 (U.S. Supreme

Court, Nov. 25, 2020).

No individual may legislate or enact a law that completely destructs a citizen's

fundamental rights such as due process; Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S.

398, 54 S. Ct. 231 (1934). And, for every wrong there must be a remedy, rule of law and

the dignity of the Courts; Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971).

6. STANDARD OF REVIEW

All of the legal issues that pertain to this litigation are subject to De Novo review by

Appeals court:

Whether specific facts constitute a violation of established law is a legal

determination reviewed de novo. Armendariz v. Penman, 75 F.3d 1311, 1317 (9th

Cir.1996), Mabe v. San Bernardino County, 237 F.3d 1101, 1106 (9th Cir. 2001);

A district court statutory interpretation of 42 U.S.C. § 1983 is reviewed de novo.

See Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094, 1096 (9th Cir. 2004);

A court’s decision to dismiss a § 1983 action pursuant to Rule 12(b)(6) is reviewed

de novo. See Patel v. City of Montclair, 798 F.3d 895, 897 (9th Cir. 2015); Watson v.

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Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006); Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th

Cir. 2003); Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001); Zimmerman v. City of

Oakland, 255 F.3d 734, 737 (9th Cir. 2001); The court reviews de novo dismissals based

on the Failure to state a claim pursuant to Rule 12(b)(6). See Dougherty v. City of Covina,

654 F.3d 892, 897 (9th Cir. 2011); Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007);

Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

7. ARGUMENT

A. PLAINTIFF HAS ALLEGED A VIABLE SECTION 1983 CAUSE OF

ACTION AGAINST DEFENDANT NEWSOM, IN HIS PERSONAL CAPACITY,

FOR NEWSOM'S VIOLATION OF PLAINTIFF'S CIVIL RIGHTS ENSHRINED

IN THE FOURTEENTH AMENDMENT TO THE US CONSTITUTION

The Federal Government was clearly established as a guarantor of the basic

federal rights of individuals against incursions by state power. As we

recognized in Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32

L.Ed.2d 705 (1972) (quoting Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed.

676 (1880)), “the very PURPOSE OF § 1983 WAS TO INTERPOSE THE

FEDERAL COURTS BETWEEN THE STATES AND THE PEOPLE, AS

GUARDIANS OF THE PEOPLE'S FEDERAL RIGHTS—TO PROTECT

THE PEOPLE FROM UNCONSTITUTIONAL ACTION UNDER COLOR

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OF STATE LAW, ‘whether that action be executive, legislative, or judicial.’

” Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 501–503, 102 S. Ct.

2557, 2560–61, 73 L. Ed. 2d 172 (1982)

Section One of the Fourteenth Amendment to the United States Constitution states,

in pertinent part, as follows:

"No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any

person of...liberty...without due process of law."

The Due Process Clause specially protects those fundamental rights and

liberties which are, objectively, “deeply rooted in this Nation's history and

tradition,” id., at 503, 97 S.Ct., at 1938 (plurality opinion); Snyder v.

Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (“so

rooted in the traditions and conscience of our people as to be ranked as

fundamental”), and “implicit in the concept of ordered liberty,” such that

“neither liberty nor justice would exist if they were sacrificed. Washington v.

Glucksberg, 521 U.S. 702, 720–21, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772

(1997)

Newsom was not sued in his official capacity and no such words or implications

occur in the complaint. California is not a defendant. Thus, Newsom has no 11th

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Amendment immunity. Federal courts may enjoin state officials from violating federal

law. Ex parte Young, 209 U.S. 123 (1908).

“The answer to all this is the same as made in every case where an official

claims to be acting under the authority of the state. The act to be enforced is

alleged to be unconstitutional; and if it be so, the use of the name of the state

to enforce an unconstitutional act to the injury of complainants is a

proceeding without the authority of, and one which does not affect, the state

in its sovereign or governmental capacity. It is simply an illegal act upon the

part of a state official in attempting, by the use of the name of the state, to

enforce a legislative enactment which is void because unconstitutional. If the

act which [Newsom] seeks to enforce be a violation of the Federal

Constitution, [Newsom], in proceeding under such enactment, comes into

conflict with the superior authority of that Constitution, and he is in that case

stripped of his official or representative character and is subjected in his

person to the consequences of his individual conduct. The state has no power

to impart to him any immunity from responsibility to the supreme authority of

the United States. See Re Ayers, 123 U. S. 507, 31 L. ed. 230, 8 Sup. Ct. Rep.

164. Ex parte Young, 209 U.S. 123, 159–60, 28 S. Ct. 441, 454, 52 L. Ed. 714

(1908).”

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In conclusion, plaintiff's FAC states a viable section 1983 claim against defendant

Newsom (and Does 1 through 50), for his offense against plaintiff's sovereignty rights

pursuant to Fourteenth Amendment to the United States Constitution.

B. THE US CONSTITUTION AND ADHERENCE TO RULE OF LAW IS THE

FOUNDATION FOR THE US' STRENGTH AND EXISTENCE, AND IT FORBIDS

DEPRIVATION OF LIBERTY, WITHOUT DUE PROCESS, EXCEPT IN

STRICTLY DEFINED CASES OF EMERGENCY, OCCURRING WHEN THE

USA IS AT WAR; CALIFORNIA CANNOT DECLARE WAR AND HAS NO SUCH

EMERGENCY POWERS

Throughout organized human society and history, there is a perennial conflict

between citizens seeking more sovereignty and governments seeking more control. The

USA is uniquely founded upon Constitutional individual citizen sovereignty. Civil and

criminal law fill the gaps to achieve an ordered society. There are specific exceptions:

Article I, Section 8 of the Constitution vests emergency powers with the US

Congress during times of war. Article II and the Guarantee Clause of Article IV vest

emergency powers in the President, during times of war. Except,

"...the Privilege of the Writ of Habeas Corpus shall not be suspended, unless

when in Cases of Rebellion or Invasion the public Safety may require it."

Article I, Section 9, Clause 2.

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Newsom is not vested with the Constitutional power to override the US

Constitution, declare war, or suspend US citizen's civil liberties without due process.

Distinctly, plaintiff does not challenge Newsom's power to quarantine citizens suspected

of harboring a communicable disease subject to affording those quarantined due process.

By summarily confining plaintiff and class members to their respective residences,

without due process of law, Newsom (and Doe defendants), has, as a matter of law, injured

Plaintiff, in violation of his rights, to be free of confinement, without due process,

pursuant to Section One of the Fourteenth Amendment to the United States Constitution,

because Newsom does not have the constitutional authority to do so.

Excepting two times in history, both times occurring when the US was in a declared

state of war, the Court's have never permitted suspension of citizens' rights to be free of

deprivation of liberty without due process.

The first time this occurred was during the US Civil War, Ex Parte Milligan, 71 US

(4 Wall.) 2 (1866), when a citizen was imprisoned after a court-martial, without a jury

trial.

The second time this occurred was during World War II, post the Japanese attack on

Pearl Harbor and the subsequent US Declaration of war on Japan, wherein the US

summarily interned all citizens of Japanese dissent residing on the West Coast, Korematsu

v. United States, 323 US 214 (1944).

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Recognizing it's monumental mistake, in 1988 the US Congress passed The Civil

Liberties Act of 1988 (Exhibit 14, Pub.L. 100–383, title I, August 10, 1988, 102 Stat. 904,

50a U.S.C. § 1989b et seq.), apologized to the victims, and granted each surviving internee

about $20,000 in compensation (or, $44,500 after inflation-adjustment in 2020 dollars)

Section 1 of The Civil Liberties Act of 1988 states:

"The purposes of this Act are to—

(1) acknowledge the fundamental injustice of the evacuation, relocation, and

interment of United States citizens and permanent resident aliens of Japanese

ancestry during World War II;

(2) apologize on behalf of the people of the United States for the evacuation,

relocation, and internment of such citizens and permanent resident aliens;

(3) provide for a public education fund to finance efforts to Public; inform the

public about the internment of such individuals so as information to prevent

the recurrence of any similar event;"

The US has never permitted an assault on citizens' rights to be free of confinement,

without due process, DURING TIMES OF PEACE. The US Government has declared a

corona emergency. However, consistent with the US Constitution, the Federal

Government did not issue a residential-confinement order. The Federal Government, based

upon CDC guidelines, only issued Safety GUIDELINES. Consistent with the US

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Constitution, Attorney General William Barr threatened to sue the Governors if they did

not rescind their unconstitutional residential-confinement orders. Consistent with the

USA's position, in Lighthouse Fellowship Church v Northam, USDC#2:20-cv-204-AWA-

RJK, at pages 8-11, under the header, I. CONSTITUTIONAL RIGHTS ARE

PRESERVED DURING A PUBLIC HEALTH CRISIS), the USA intervened and took the

following position:

"...there is no pandemic exception to the Constitution and its Bill of Rights.

Indeed, “individual rights secured by the Constitution do not disappear during

a public health crisis.” In re Abbott, 954 F.3d at 784. These individual rights,

including the protections in the Bill of Rights made applicable to the states

through the Fourteenth Amendment, are always operative and restrain

government action. Accordingly, the Supreme Court has instructed courts to

intervene “if a statute purporting to have been enacted to protect the public

health, the public morals, or the public safety, has no real or substantial

relation to those objects, or is, beyond all question, a plain, palpable invasion

of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31

(emphasis added). Thus, if the record establishes a “plain, palpable” violation

of constitutional rights, then a court must grant relief. See In re Abbott, 954

F.3d at 784.

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The US Supreme Court had occasion to analyze Constitutional infringement by

States Governors during the great depression. In Home Bldg. & Loan Ass'n v. Blaisdell,

290 U.S. 398, 54 S. Ct. 231 (1934), the US Supreme Court held:

The Constitution was adopted in a period of grave emergency. Its grants of

power to the federal government and its limitations of the power of the States

were determined in the light of emergency, and they are not altered by

emergency.@ 425

Thus, the war power of the federal government is not created by the

emergency of war, but it is a power given to meet that emergency. It is a

power to wage war successfully, and thus it permits the harnessing of the

entire energies of the people in a supreme co-operative effort to preserve the

nation. But even the war power does not remove constitutional limitations

safeguarding essential liberties...

@ 426

‘The general doctrine of this court on this subject may be thus stated: In

modes of proceeding and forms to enforce the contract the legislature has the

control, and may enlarge, limit, or alter them, provided it does not deny a

remedy or so embarrass it with conditions or restrictions as seriously to

impair the value of the right.’ @ 433

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Undoubtedly, whatever is reserved of state power must be consistent with the

fair intent of the constitutional limitation of that power. the reserved power

cannot be construed so as to destroy the limitation...@ 439

Taking away citizens' liberty involves loss of time which can never be replaced and

destroys the Constitutional limitation. In cases involving contract rights, such as

suspension of foreclosure for a period of time, the value of the contract was preserved by

permitting interest to accrue. There is no mechanism to preserve the value of loss of

liberty and time.

Newsom’s position is fundamentally inconsistent with our constitutional order. Cf.

Sterling v. Constantin, 287 U.S. 378, 397–98 (1932) (“If this extreme position could be

deemed to be well taken, it is manifest that the fiat of a state Governor, and not the

Constitution of the United States, would be the supreme law of the land; that the

restrictions of the Federal Constitution upon the exercise of state power would be but

impotent phrases[.]”).

Over 150 years ago, this Court in Ex Parte Milligan, 71 U.S. 2 (1866), held that the

Founding Fathers took into consideration the fact that emergency circumstances would

arise, where leaders would seek to deprive persons of their rights, and because of that,

created the Bill of Rights: “Those great and good men [the Founding Fathers] foresaw that

troublous times would arise, when rulers and people would become restive under restraint,

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and seek by sharp and decisive measures to accomplish ends deemed just and proper; and

that the principles of constitutional liberty would be in peril, unless established by

irrepealable law.” Id. at 120 (emphasis added).

According to this Court in Milligan “[n]o doctrine, involving more pernicious

consequences, was ever invented by the wit of man than that any provisions [of the Bill of

Rights] can be suspended during any of the great exigencies of government.” Id. “The

history of the world had taught them [the Founding Fathers] that what was done in the past

might be attempted in the future.” Id. “For this, and other equally weighty reasons, they

secured the inheritance they had fought to maintain, by incorporating in a written

constitution the safeguards which time had proved were essential to its preservation. Not

one of these safeguards can the President, or Congress, or the Judiciary disturb, except the

one concerning the writ of habeas corpus.” Id. at 125 (emphasis added). “They limited the

suspension to one great right [the right of habeas corpus], and left the rest to remain

forever inviolable.” Id. (emphasis added). But the power to suspend habeas corpus is

specifically reserved, in the constitution, only for the federal government, and only in

times of war or rebellion.

“The Constitution of the United States is a law for rulers and people, equally in war

and in peace, and covers with the shield of its protection all classes of men, at all times,

and under all circumstances.” Id. at 121 (emphasis added). This Court then aptly

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concluded that if “the safety of the country” demands a violation of constitutional rights,

“it could be well said that a country, preserved at the sacrifice of all the cardinal principles

of liberty, is not worth the cost of preservation.” Id. at 126 (emphasis added).

C. IF THE COURT ASSUMES THAT NEWSOM HAD THE

CONSTITUTIONAL AUTHORITY TO SUSPEND CITIZEN LIBERTY,

WITHOUT DUE PROCESS, UNDER THE GUISE OF EMERGENCY, THE

INQUIRY SHIFTS TO WHETHER NEWSOM'S RESIDENTIAL CONFINEMENT

ORDER WAS REASONABLE, AND, AT WHAT POINT IN THE SPECTRUM OF

CONFINEMENT DID HIS ORDER BECOME UNREASONABLE; THIS

FACTUAL INQUIRY, SUBJECT TO STRICT SCRUTINY, PRECLUDES RELIEF

PURSUANT TO A FRCP SECTION 12B MOTION.

If the governmental action infringes upon a fundamental right, the highest level of

review—strict scrutiny—is used. To pass strict scrutiny review, the law or act must be

narrowly tailored to further a compelling government interest. Adarand Constructors v.

Peña, 515 U.S. 200 (1995); Sugarman v. Dougall, 413 U.S. 634 (1973).

Indulging Newsom's argument, Jacobson says nothing about what standards would

apply to a claim that an emergency measure violates some other, enumerated constitutional

right; on the contrary, Jacobson explicitly states that other constitutional limitations may

continue to constrain government conduct. See 197 U.S. at 25 (emergency public health

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powers of the State remain subject “to the condition that no rule . . . shall contravene the

Constitution of the United States, nor infringe any right granted or secured by that

instrument”).

“Although the Constitution is not suspended during a state of emergency,” the State

tells us, “constitutional rights may be REASONABLY restricted ‘as the safety of the

general public may demand’” (quoting Jacobson v. Massachusetts, 197 U.S. 11, 29

(1905)). Nothing in Jacobson supports the view that an emergency displaces normal

constitutional standards. Rather, Jacobson provides that an emergency may justify

TEMPORARY constraints within those standards.

The reasonableness factor means that this matter cannot be settled in a FRCP

Section 12B motion setting and is subject to discovery, factual inquiry and trial.

D. NEWSOM’S ORDER WAS PURPOSEFULLY UNCONSTITUTIONALLY

VAGUE

Plaintiff has also alleged the order is also unconstitutionally vague, as to it's scope

and duration. Newsom’s order (Executive Order N-33-20) states, in pertinent part, as

follows:

“To protect public health, I as State Public Health Officer and Director

of the California Department of Public Health order all individuals living

in the State of California to stay home or at their place of residence

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except as needed to maintain continuity of operations of the federal

critical infrastructure sectors,...

Pursuant to the authority under the Health and Safety Code 120125,

120140, 131080, 120130(c), 120135, 120145, 120175 and 120150, this

order is to go into effect immediately and shall stay in effect until

further notice....

The supply chain must continue, and Californians must have access to

such necessities as food, prescriptions, and health care. When people

need to leave their homes or places of residence, whether to obtain

or perform the functions above, or to otherwise facilitate authorized

necessary activities, they should at all times practice social distancing...

This Order shall be enforceable pursuant to California law, including,

but not limited to, Government Code section 8665.”

Pursuant to the Vagueness Doctrine, Newsom's order is unconstitutionally vague.

Consider:

"As stated in McBoyle v. United States, 283 U.S. 25, 27 (1931): Although it is

not likely that a criminal will carefully consider the text of the law before he

murders or steals, it is reasonable that a fair warning should be given to the

world in language that the common world will understand, of what the law

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intends to do if a certain line is passed. To make the warning fair, so far as

possible the line should be clear."

...The touchstone is whether the statute, either standing alone or as construed,

made it reasonably clear at the relevant time that the defendant’s conduct was

criminal.

The void-for-vagueness doctrine has two prongs: 1) a definitional/notice

sufficiency requirement and, more importantly, 2) a guideline setting element

to govern law enforcement.

...As generally stated, the void-for-vagueness doctrine requires that a penal

statute define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner that does

not encourage arbitrary and discriminatory enforcement . . .Although the

doctrine focuses both on actual notice to citizens and arbitrary enforcement,

we have recognized recently that the more important aspect of the vagueness

doctrine “is not actual notice, but the other principal element of the doctrine –

the requirement that a legislature establish minimal guidelines to govern law

enforcement.”Smith [v. Goguen], 415 U.S. [566,] 574 [1974]. Where the

legislature fails to provide such minimal guidelines, a criminal statute may

permit “a standardless sweep [that] allows policemen, prosecutors, and juries

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to pursue their personal predilections.” Id. at 575. ...To avoid contravening

the void-for-vagueness doctrine, the criminal statute must contain “relatively

clear guidelines as to prohibited conduct” and provide “objective criteria” to

evaluate whether a crime has been committed.

...Colautti v. Franklin, 439 U.S. 379, 395 (1979) (“This Court has long

recognized that the constitutionality of a vague statutory standard is closely

related to whether that standard incorporates a requirement of mens rea”)"

The order does not contain a defined Mens Rea. The line is not clear. It is subjective

and the police and offenders cannot objectively recognize when a crime of violating the

order is committed. The order is vague as a matter of law.

The order sentencing plaintiffs to residential confinement is open-ended and entirely

subjective, and based upon the subjective whims of defendants. Said order violates the

minimum Constitutionally-mandated sentencing rules specified at 18 U.S. Code § 3553:

(a)Factors To Be Considered in Imposing a Sentence.—The court shall

impose a SENTENCE SUFFICIENT, BUT NOT GREATER THAN

NECESSARY, to comply with the purposes set forth in paragraph (2) of this

subsection. The court, in determining the particular sentence to be imposed,

shall consider—

(1)the NATURE AND CIRCUMSTANCES OF THE OFFENSE and the

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history and characteristics of the defendant;

(2)the NEED FOR THE SENTENCE IMPOSED—

(A)to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense;

(B)to afford adequate deterrence to criminal conduct;

( C) to protect the public from further crimes of the defendant.

When Newsom's order is scrutinized using the Vagueness Doctrine and 18 U.S.

Code § 3553 as a benchmark, it fails to qualify as a viable Constitutional order.

8. CONCLUSION

The District Court order of dismissal states, “In dismissing the complaint, the Court

observed that “many of these allegations are demonstrably false.” [103] The Court recited

judicially noticed “facts” outside of the pleadings presented by Newsom [104]. In affect,

the District Court converted Newsom’s FRCP § 12B motion into a motion for summary

judgment, without permitting plaintiff any degree of discovery or scrutiny of said “facts.”

The District Court erroneously recited established law pertaining to restraining

orders, to conclude that Newsom may dispense with due process. It is clear, the policy of

the Court is to deny restraining orders which target government emergency orders asserted

during an emergency. Plaintiff’s claim is for damages and does not seek a restraining

order. Thus, the applicable law is the US Constitution and US Supreme Court interpretive

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law: “Even in a pandemic, the Constitution cannot be put away and forgotten." Roman

Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020 WL 6948354 (U.S. Supreme

Court, Nov. 25, 2020).

No individual may legislate or enact a law that completely destructs a citizen's

fundamental rights such as due process; Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S.

398, 54 S. Ct. 231 (1934). And, for every wrong there must be a remedy, rule of law and

the dignity of the Courts; Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971).

The Court misapplied the law citing Restraining Order law as a justification for

granting Newsom’s motion. Succinctly stated, the Court stated [112]:

“I don't think due process requires that people die, and that the disease is not -- there

is not an attempt to check the virus and the pandemic.

The question, really, is that in this time, when we are at the height of this destructive

effect of the pandemic, should the Court attempt to interject itself at this stage? And I

understand due process rights, but, you know, one can have -- I guess, carry your due

process rights into the grave, if you want.

But, I think at this point in time, the Court is not going to subsume the efforts of the

Governor at this stage. I just don't see any basis for my doing so at this point in time. So,

with that, I will grant the motion to dismiss, and I will dismiss this matter.”

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June 3, 2021
BY: S/ Rami M. Kayyali
Rami Kayyali
Attorneys for Plaintiffs/Appellants

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9. STATEMENT OF RELATED CASES

Plaintiff is aware of no related cases pending before this court.

10. CERTIFICATE OF COMPLIANCE

Pursuant to FRAP 32(a)(7)( c ) and Ninth Circuit Rule 32-1, I certify that this brief
is proportionately spaced, has a typeface of 14 points and contains less than 13,000 words;
The word count is 7382.

June 3, 2021
BY: S/ Rami M. Kayyali
Rami Kayyali
Attorneys for Plaintiffs/Appellants

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CERTIFICATE OF SERVICE
Title(s) of Paper(s) served:
OPENING BRIEF OF APPELLANT & EXCERPTS OF RECORD
I hereby certify that I electronically filed the foregoing with the Clerk of
the Court for the United States Court of Appeals for the Ninth Circuit by using
the appellate CM/ECF system on June 3, 2021.
I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the CM/ECF system.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on June 3, 2021 at Los Angeles, California.
BY: s/ Rami M. Kayyali
Rami Kayyali

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