Metropolitan News-Enterprise


Monday, February 14, 2011


Page 3


Court Declines to Revive Gun Shop Owners’ Suit Against LAPD


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday declined to revive a civil action by the owners of a West Hollywood gun shop over a “sting” operation conducted by the Los Angeles Police Department.

Since a finding in favor of Helene and Zoltan Szajer would necessarily imply the invalidity of their criminal convictions for illegal firearms possession, the panel said, their claims under 42 U.S.C. § 1983 premised on alleged Fourth Amendment violations were barred.

A confidential informant working for the LAPD initiated the sale of three illegal assault weapons— a Springfield M1A semiautomatic centerfire rifle with flash suppressor; a Whitney Wolverine semiautomatic pistol that accepted a detachable magazine and a threaded barrel; and a Reising submachine gun—to the Szajers at their “L.A. Guns” store in 2005.

The informant wore a body wire which allowed LAPD Detective Michael Mersereau to audibly monitor the transaction.

Zoltan Szajer inspected the weapons and initially offered the informant $1,800 for all three guns. Shortly thereafter he told the informant he could not purchase the submachine gun because it might be an illegal weapon, and eventually purchased the assault rifle without the flash suppressor, which Szajer had removed, and the semiautomatic pistol for $1,600.

The informant left the submachine gun with Szajer, and as soon as the informant left, Szajer called the West Hollywood Sheriff’s Department to request an officer pick up the weapon. While he was on the phone, Mersereau and several other LAPD officers entered the gun shop and, based on Szajer’s purchase of two assault rifles and possession of the Reising submachine gun, detained Szajer and his wife, pending the application for a search warrant.

Officer’s Description

In the affidavit for the magistrate judge’s review, Mersereau described the sales transaction, a report from an informant that Zoltan Szajer had said he possessed sixteen machine guns that he kept under the floor boards of his residence, and an interview with a third party which led to the discovery of an assault weapon last registered to the Szajers’ gun shop in 1995.

A warrant was issued authorizing a search of the gun shop and the Szajers’ residence and vacation home. The Szajers were later charged with 13 counts relating to illegal possession of firearms, including an H & K semiautomatic pistol found in the safe at the Szajers’ residence.

During the criminal proceedings against them, the Szajers did not contest the validity of the warrant or seek to suppress the evidence obtained during the searches. They both pled no contest to a single count—felony possession of the H & K pistol—and were convicted.

After entering their pleas, the Szajers filed suit against the LAPD, the city of Los Angeles, and a number of individual officers alleging that the searches and seizures of their personal property were illegal.

They asserted the LAPD officers were pursuing a city policy “to put all gun stores in the City of Los Angeles out of business by relying on stale information, creating fictitious informants, falsifying information included in search warrants, [and] illegally entering the premises of gun stores and planting evidence.”

Summary Judgment

U.S. District Judge Stephen V. Wilson of the Central District of California granted the defendants’ motion for summary judgment as to all of the Szajers’ claims. He found the allegation that the city and the LAPD had a policy or custom to violate the Second Amendment was based on mere speculation and that the Szajers’ causes of action were barred by Heck v. Humphrey, (1994) 512 U.S. 477.

Heck held that in order for an individual to recover damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid,” the conviction or sentence must be called into question in some way— either through direct appeal, expungement, invalidation by a state tribunal, or by a federal court’s issuance of a writ of habeas corpus, or else the complaint “must be dismissed.”

U.S. District Judge Jack Zouhary of the Northern District of Ohio, sitting by designation, wrote for the appellate panel and noted that the Heck decision left open the question of whether its holding could be applied to Fourth Amendment claims and two Seventh Circuit cases have since held Heck does not bar such claims.

These holdings, however, are in direct conflict with Ninth Circuit precedent which held that a collateral attack on the search and seizure of the evidence upon which the plaintiffs’ criminal convictions were based was barred by Heck, Zouhary said, explaining that Whitaker v. Garcetti, (2007) 486 F.3d 572, was controlling.

“Just as in Whitaker, if the Szajers prevailed on their Section 1983 claim, it would necessarily imply the invalidity of their state court convictions,” Zouhary wrote, reasoning their civil claims “necessarily challenge the validity of the undercover operation and in doing so imply that there was no probable cause to search for weapons.”

He added that this conclusion was “buttressed by the fact that the Szajers have not set forth, either on appeal or to the district court below, any other basis for the discovery of the assault weapon found in their home, which formed the basis for their plea and conviction.”

Senior Judge Alfred T. Goodwin and Judge Johnnie B. Rawlinson joined Zouhary in his decision.

Counsel for the case, Szajer v. City of Los Angeles, 08-57010, were Burton C. Jacobson of Beverly Hills and Deputy City Attorney Blithe S. Bock.


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