Firearms Policy Coalition

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Restricting Public Data To Ideological Allies In California

September 21, 2017 by

To put things into perspective, imagine if Congress or any state legislature passed a bill stating that all the key research data on abortions would, by law, be given to researchers with the National Right-To-Life Committee and that any other requests for this same public health data would be approved only at the discretion of the White House. Do you think the media would jump on the issue with both feet? Moreover, how quickly would lawsuits be filed seeking injunctions by groups like the ACLU, Planned Parenthood, and the National Abortion Rights Action League?

That is essentially the case in California with a bill (SB 536) sitting on Gov. Jerry Brown’s desk concerning the data about gun violence restraining orders. It automatically is available to well-known anti-gun researcher Dr. Garen Wintemute and his Gun Violence Research Center. All other requests for this same research data would be at the discretion of the California Department of Justice. This is the same DOJ that was headed by virulently anti-gun rights Attorney General Kamala Harris (D-CA) and is now headed by equally anti-gun rights Attorney General Xavier Becerra (D-CA).

Does anyone think this DOJ would allow the data to go to Dr. John Lott and his Crime Prevention Research Center?

Gun rights activists in California are rightly upset and wary of this bill. They are asking Gov. Brown to veto the bill. The release from the Firearms Policy Coalition on the bill is below:

Bill Promoting Unequal Access to Public Data is on Gov. Jerry Brown’s Desk

SACRAMENTO, CA (September 20, 2017) — Firearms Policy Coalition (FPC) is asking Governor Jerry Brown to veto Senate Bill 536, a measure which provides unequal access to data for the
purpose of researching Gun Violence Restraining Orders (GVRO).

SB 536, by Senator Richard Pan (D – Sacramento), requires the Department of Justice (DOJ) to make information relating to GVROs that is maintained in the California Restraining and
Protective Order System or any similar database available to researchers affiliated with the University of California Firearm Violence Research Center. It does not, however, require DOJ to make the same data available to other organizations for the purpose
of research.

“While we do appreciate a passing thought given to others whose research may benefit from this data, to state that such access is ‘…at the discretion of the department…’ places all
other requestors at a significant disadvantage,” said Craig DeLuz, Spokesman for Firearms Policy Coalition (FPC).

“This allows the DOJ to pick favorites with sensitive data that is needed to hold the research center accountable.”

The Gun Violence Research Center at UC Davis was created in 2016 by legislation that amounted to a sole source contract with Dr. Garen Wintemute, a gun control advocate who has been
producing anti-gun research for decades. Under SB 536 that same biased researcher will have unfettered access to key research data, while others will be required to get special approval from DOJ.

“This measure ensures that only those that are ideological similar are going to have access to the data that supports this publicly funded research,” notes DeLuz. “If public data,
collected by public employees, using public tax dollars to study a public policy is to be made available to anyone, it should be public.”

SB 536 is now on the desk of Governor Jerry Brown, awaiting his signature or veto.

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Resolution Against Civil Rights In California

August 31, 2017 by 1 Comment

First, it was about guns for Native Americans. Then, it was to prevent Latinos and Chinese from obtaining firearms. Now, it is about carry for the rest of us. I won’t begin to even mention the Berkeley police standing down and letting domestic terrorists (Antifa) beat free speech advocates.

That’s a nice record you got going there California.

From the Firearms Policy Coalition on a new Assembly resolution that would oppose national carry reciprocity:

SACRAMENTO, CA (August 28, 2017) — Asm. Miguel Santiago (D-Los Angeles) is asking the California State Legislature once again express their contempt for civil rights with the introduction of Assembly Joint Resolution (AJR) 24.

AJR 24 voices the Legislature’s opposition to current efforts in congress to pass “concealed carry reciprocity” legislation (S. 446 and H.R. 38) and any other similar legislation because it would require all states to recognize the concealed carry licenses of other states, creating equity for all when it comes to exercising the constitutional right to bear arms.

“This is not the first time the California Legislature has expressed their complete and utter disregard civil rights” stated Craig DeLuz, Spokesman for the Firearms Policy Coalition (FPC). “California has a long and tortured history with using gun laws to pick winners and losers instead of supporting equality and civil rights for all.”

The first gun control law passed in California, AB 80 was enacted in 1854. It was, “An Act to prevent the sale of firearms and ammunition to the Indians in this State.” In 1924 the Hawes Act was enacted to prevent Hispanics and Chinese from obtaining firearms. It also modified California’s concealed carry permit program to allow local law enforcement to subjectively discriminate in the issuance of permits under the guise of “discretion”, a practice that continues to this day.

Under California law, even if a law abiding resident passes thorough federal, state and local background checks, successfully completes specified training, which includes the law relating to use of force, and demonstrates competency with their firearm, they can still be turned down by the local sheriff or police chief for absolutely no objective reason at all.

Then there was the Mulford Act of 1967, which banned the right to openly carry a loaded firearm. This measure was meant to disarm civil rights activists groups like the Black Panthers.

“Gun control in California has always seemed to be about keeping unfavored groups of people from owning, possessing or bearing firearms”, said DeLuz. “ In AJR 24, the unfavored group of people are those who visit here from states that actually respect the second amendment rights of their residents.”

AJR 24 has been referred to the Assembly Public Safety Committee, where FPC plans to vigorously oppose it. “California is not an island and needs to respect the rights of all Americans.” said DeLuz, “We understand that they don’t respect the rights of their own residents. But now they want to export their discriminatory policies to all 50 states.”

No hearing date has been set for either the Congressional bills or AJR 24.

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While I Was Away – No. 2

July 24, 2017 by 1 Comment

Continuing on with the things I missed while at the beach are these two announcement from the Firearms Policy Coalition regarding bullet buttons and proposed ammo regulations in California. The FPC is a multi-state coalition of gun rights groups headquartered in California. They have been keeping a close eye on the regulations being developed for the enforcement of recently enacted firearms laws and propositions.

When you are headquartered in a state where the progressives have a monopoly on virtually everything, you have to fight back anyway you can. Showing that they have learned Alinsky’s Rules for Radicals and especially Rule No. 4, the Firearms Policy Coalition is making the California Department of Justice live up to all those progressive laws dealing with public notice and freedom of information.

On bullet buttons:

SACRAMENTO, CA (July 21, 2017) — Firearms Policy Coalition (FPC) has obtained a copy of the newest version of the California Department of Justice (DOJ) “assault weapons” regulations. FPC has published the regulations at BulletButtonBan.com, a Web site it established in 2016 for tracking the new California assault weapon laws and regulations.

“FPC’s Regulatory Watch program has once again proved its value in ensuring that the State of California does not advance its gun control agenda behind closed doors,” said FPC President Brandon Combs. “Without this program, countless gun-owning Californians would be in the dark about their future.”

Last December, the DOJ submitted its first attempt at “assault weapons” regulations under the California Office of Administrative Law’s (OAL) “File & Print” process, which means that the DOJ believed the regulations were not subject to public notice or comment. However, thousands of FPC members and Second Amendment supporters sent letters opposing the secret process through FPC’s grassroots tools and, without further comment, the DOJ withdrew the regulations near the end of OAL review period.

In May (a quarter of a year later), the DOJ re-submitted regulations under the same “File & Print” process. It took numerous legal demands to DOJ and OAL to finally get OAL to provide FPC with a copy of the proposed regulations. Following DOJ’s numerous attempts at hiding firearm regulations from the public, Craig DeLuz, FPC’s Legislative Advocate, and FPC filed a legal action against DOJ (DeLuz, et al. v California Department of Justice) in order to ensure that in the future DOJ complies with the California Constitution and Public Records Act.

In the end, these proposed regulations were summarily rejected by OAL a little more than a month later. And now DOJ has submitted almost the same exact regulations, appearing only to have changed the implementation date from January 1, 2018 to July 1, 2018. This new date was established by AB 103, a recently approved budget trailer bill.

“At first glance, the DOJ’s latest package of ‘assault weapons’ regulations are as awful as their first two attempts,” noted DeLuz. “It appears that DOJ keeps submitting the same proposed regulations, over and over again, expecting different results. Isn’t that the definition of insanity?”

The second announcement has to do with California’s proposed ammunition regulations and the hearings seeking feedback.

SACRAMENTO, CA (July 20, 2017) — Adding to the growing list of its legal woes, the California Department of Justice (DOJ) was forced to issue a new regulatory notice and postpone a hearing regarding their recently-submitted regulations concerning new ammunition vendors and licenses. Many new ammunition laws were passed last year in Gavin Newsom’s so-called “Safety for All Act” (Proposition 63) and in Senate President pro Tempore Kevin de León’s Senate Bill 1235 (SB 1235).

As part of its California regulatory watch program, which holds the State accountable for the improper implementation of various gun control laws, Firearms Policy Coalition (FPC) recently discovered the new DOJ ammunition sales regulations. That new regulation was officially published in the State’s Friday, July 14 Notice Register, but wasn’t clearly accessible to the public until the morning of Monday, July 17.

“In order for citizens and interested groups to be given an opportunity to advocate for their rights and policy preferences, the DOJ must follow the law,” said Craig DeLuz, a lobbyist and spokesperson for the Firearms Policy Coalition. “We are here to make sure they do.”

On July 17, FPC delivered a letter to DOJ advising them that they had not sent any notification about this proposed rulemaking using the DOJ’s e-mail based notification system it established and solicited participation in for that express purpose. The FPC letter also noted that none of the regulation documents that were discussed in the DOJ’s notice could be found on the Attorney General’s Web page listed in the Notice Register. FPC concluded that the public did not receive proper notice and demanded that DOJ remedy the defects.

Just two days later, on July 19, DOJ e-mailed their entire regulatory notice list — which they had initially failed to do — and said that the hearing for public comment, which was originally scheduled to take place August 28, had been pushed back to September 12 — allowing more time for the public and advocacy organizations like FPC to analyze them and weigh in. Additionally, DOJ updated the public notice to reflect a different Web page that contained a working link to the proposed new regulations and forms.

“When law-abiding citizens and small businesses risk fines and jail time for not following the law, the least the DOJ can do is follow the law themselves,” commented DeLuz. “While their latest move is a step in the right direction, they still have a long way to go. We’ll be keeping an eye on them.”

At www.DOJregwatch.com and its companion page, www.bulletbuttonban.com, FPC tracks DOJ firearm-related rulemakings and provides the public with links to the documents and updates. FPC’s goal is to ensure that the regulations proposed are legal, available to the public, and follow all public notice and comment requirements in the California Administrative Procedure Act (APA) and applicable laws.

So far, FPC has so far been successful in repeatedly thwarting DOJ’s attempts to create law by executive fiat under the guise of the regulatory process. Previously, DOJ was forced to withdraw its proposed “large capacity magazine” and “Bullet Button Assault Weapon” regulations. More recently, the Office of Administrative Law rejected DOJ’s second attempt at issuing “Bullet Button Assault Weapon” regulations.

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Another One Down Thanks To The Firearms Policy Coalition

June 29, 2017 by

The City of Tacoma, Washington repealed their ban on the sale, use, and possession of “electronic arms”. This means that stun guns and, presumably, Tasers will now be legal to possess and use for self defense in that city. As legal scholar Eugene Volokh notes, this is just one of many repeals in recent months. The legal reason can be traced back to the Supreme Court’s decision in Caetano v. Massachusetts which found that stun guns were indeed covered by the Second Amendment.

Most of these cities would not have dropped their bans were it not for the Firearms Policy Coalition and their attorney Stephen Stamboulieh. They have been working their way through a list of municipalities with these sort of restrictions and have threatened lawsuits if the bans were not dropped. Mr. Stamboulieh, you may remember, was (unfortunately) an unsuccessful candidate for the NRA Board of Directors this year.

The FPC released the following on their win yesterday:

SACRAMENTO, CA (June 27, 2017) — Firearms Policy Coalition (FPC) today applauded the unanimous repeal of Tacoma Washington’s ban on the sale, use, and possession of electronic arms.

Attorneys for FPC sent a letter to the Tacoma City Council on April 10, which warned that the group was ready and willing to sue based on solid case law if the city refused to repeal the ban.

Said FPC attorney Stephen Stambouleih, “As the Supreme Court noted in Caetano v. Massachusetts it “has held that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.’”

As the latest municipality to repeal a ban, Tacoma was one of only a handful of municipalities nation-wide which still had an outright ban on possession and defensive use of electronic stun guns.

“The City of Tacoma did the right thing here,” said FPC President Brandon Combs. “Our staff and attorneys are already reviewing regulations in other cities and states for legal violations. By no means is our work done yet.”

“I think it’s obvious the city knew they would lose any court challenge and they wisely chose to repeal this law,” said Philip Watson, FPC’s Northwest region lobbyist and spokesperson. “We’re not done taking on bans on arms protected by the Second Amendment.”

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SAF, CalGuns, Firearms Policy Coalition, And Others Sue California Over Mag Ban

April 29, 2017 by 1 Comment

News of this was released this afternoon while I was in the Annual National Firearms Law Seminar and didn’t have my computer handy. A coalition of groups including the Second Amendment Foundation, the CalGuns Foundation, the Firearms Policy Coalition, and the Firearms Policy Foundation plus seven individuals filed suit challenging the state’s ban on standard capacity magazines. The suit was filed in the US District Court for the Eastern District of California.

From the news release sent out by the CalGuns Foundation:

FRESNO, CA (April 28, 2017) — Today, attorneys for 7 individual gun owners and 4 civil rights advocacy organizations have filed a federal lawsuit challenging the State of California’s ban on so-called “large-capacity” firearm magazines that hold more than 10 rounds “on their own behalves, and as representatives on behalf of the class of individuals who are or would be affected by the Large-Capacity Magazine Ban.”
The civil rights case, captioned as William Wiese, et al. v. California Attorney General Xavier Becerra, et al., was filed in the United States District Court for the Eastern District of California, Fresno Division, and is supported by civil rights groups The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), and Firearms Policy Foundation (FPF)
A copy of the lawsuit’s complaint and its exhibits can be viewed or downloaded here.
Last year, California Governor Jerry Brown signed into law Senate Bill 1446 (SB 1446), which changed state statutes to completely ban law-abiding people from possessing all “large-capacity” firearm magazines as of July 1, 2017. Following that, Lt. Governor Gavin Newsom’s Proposition 63 (Prop 63) “Safety For All Act” gun control initiative—which also contained language banning “large-capacity” magazines—was passed by voters in the November general election.
Prior to Proposition 63 and SB 1446, thousands of law-abiding Californians could possess legally-owned (“grandfathered”) large-capacity magazines, but now must remove them from their possession or ownership in the State by July 1 at their own expense or face criminal liability and fines.
The plaintiffs believe that the State’s ban violates their constitutional rights, including their fundamental, individual right to keep and bear arms protected under the Second Amendment, because magazines are “an intrinsic part of all semi-automatic firearms” and “are not merely individual pieces of personal property, but rather, are intrinsic and inherent constitutionally-protected parts of constitutionally-protected firearms.”
In a “Finding of Emergency” for related firearm magazine regulations it had sought to issue in December (attached to the complaint as Exhibit A), the California Department of Justice admitted that “[t]here are likely hundreds of thousands of large-capacity magazines in California at this time” and that the “Department therefore expects many gun owners to be affected by the new ban.”
In addition to its Second Amendment claims, the lawsuit “further challenges the Large-Capacity Magazine Ban statutory scheme which would…. subject thousands of law-abiding gun owners to criminal liability and sanctions, and subjecting their lawfully-possessed personal property to forfeiture, seizure and permanent confiscation, without due process or compensation.”
The case also includes vagueness challenges, one of which centers on the confusion surrounding the State’s two active—but very different—chaptered versions of Penal Code § 32406. A number of exemptions to the ban are found in the active Section 32406 that was enacted under SB 1446, but the active version of Section 32406 enacted by California voters under Prop 63 contains far fewer exemptions.
“California’s magazine ban laws violate the constitutional rights of law-abiding people in many ways,” said attorney George M. Lee, a partner of the plaintiffs’ San Francisco law firm Seiler Epstein Ziegler & Applegate LLP. “Not only does the ban infringe on Second Amendment rights, but it is clearly now a taking of private property. In fact, as we contend in the complaint, it amounts to a de facto confiscation.”
Lee also takes issue with the way the new magazine ban affects people who have lawfully possessed “grandfathered” magazines since before the original ban on importation in 2000. “As a part of the legislative compromise associated with that original ban, owners of those grandfathered magazines were specifically exempt from the law,” he said. “The Legislature is basically reneging on that deal made many years ago.”
“The State of California’s ban scheme stands for the proposition that most any personal property can simply be taken away from you or forced out of your possession without due process or just compensation by legislative fiat,” commented CGF Chairman Gene Hoffman. “Today it’s firearm magazines, but tomorrow it will most certainly be some other constitutionally-protected private property.”
“Enforcement of this ban,” explained SAF founder and Executive Vice President Alan M. Gottlieb, “would immediately place thousands of law-abiding California gun owners in jeopardy of criminal liability and subjects their personal property to forfeiture, seizure and permanent confiscation, which is government taking, without due process or compensation. We cannot allow that to go unchallenged.”
“California’s magazine laws will turn many thousands of good, law-abiding people into criminals,” said Brandon Combs, president of FPC and chairman of FPF, “but do nothing to advance public safety.
“While California’s political leadership might prefer some kind of police state without any Second Amendment or property rights, we believe that the Constitution takes their policy preferences off the table. This lawsuit is one of many that we hope will help restore fundamental freedoms in the Golden State and across the nation.”
Douglas A. Applegate, also of Seiler Epstein Ziegler & Applegate LLP, joins Lee on the case as co-counsel.

This plus the NRA lawsuit is a good start.

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Fruit Pickin’

April 4, 2017 by

Smart gardeners know that when they see low hanging fruit, it’s time to be picking the fruit. The Firearms Policy Coalition and the Firearms Policy Foundation have found that low hanging fruit in cities like Philadelphia, Tacoma, and Wilmington (Delaware). The low hanging fruit is those cities’ ban on stun guns and other electronic self-defense weapons.

It is low hanging fruit due to the US Supreme Court’s unanimous decision in Caetano v. Massachusetts which found such weapons are protected by the Second Amendment. Justice Alito’s concurring decision in the case decimated the argument of the Massachusetts Supreme Judicial Court holding that stun guns were outside the Second Amendment. Among the many excellent points he made was this one regarding the argument that stun guns are dangerous:

If
Heller tells us anything, it is that firearms cannot be
categorically prohibited just because they are dangerous.
554 U. S., at 636. A fortiori, stun guns that the Commonwealth’s
own witness described as “non-lethal force,” Tr.
27, cannot be banned on that basis.

 So far, the Firearm Policy Coalition and Firearms Policy Foundation has filed suit against the state of New York and has successfully persuaded the City of Annapolis, MD to change their ordinance banning stun guns. In this latest round of action, they have sent demand letters to Philadelphia, Tacoma, Wilmington, and Westminster (MD) saying their bans have to go and legal action would commence.

More on their “fruit pickin'” below:

SACRAMENTO, CA (April 3, 2017) — Today, attorneys for civil rights advocacy organizations Firearms Policy Coalition (FPC) and Firearms Policy Foundation (FPF) sent legal letters to the cities of Philadelphia, Pennsylvania; Tacoma, Washington; and Wilmington, Delaware demanding that they repeal their respective bans on electronic arms or face federal Second Amendment litigation. Last week, a demand was sent to the City of Westminster, Maryland, regarding its ban.

The Philadelphia Code § 10-825 states that no “person shall own, use, possess, sell or otherwise transfer any ‘stun gun’,” making a violation of the law subject to a fine of up to $300 “and/or imprisonment for not more than ninety (90) days.”

“The Second Amendment to the United States Constitution protects the right to keep and bear arms, not only the right to keep and bear firearms,” explained attorney Stephen D. Stamboulieh in the letters.

“We hope that these cities will simply choose to comply with the Second Amendment and respect the people’s fundamental, individual right to keep and bear arms,” said Brandon Combs, president of the Coalition and chairman of the Foundation, “but if they don’t repeal their unconstitutional bans, we won’t hesitate to sue them in federal court if that’s what it takes to protect the rights of law-abiding people.”

In its March 2016 Caetano v. Massachusetts decision, the U.S. Supreme Court unanimously reversed the Massachusetts high court, which had upheld the State’s ban on electronic arms and stun guns. Supreme Court Justice Samuel Alito, joined by Justice Clarence Thomas, wrote separately to say that if “the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.” After Caetano was remanded back to the state court system, a trial judge found her not guilty and sealed her record, quickly ending the case before it could proceed.

On February 28, the City Council of Annapolis, Maryland, responded to a Second Amendment civil rights lawsuit brought by FPC, FPC, and a local resident by passing an ordinance repealing its total ban on the possession and carry of electronic arms, like Tasers and ‘stun guns’, in a special meeting.

FPC and FPF filed a Second Amendment challenge to the State of New York’s ban on electronic self-defense weapons in federal district court last December. That case is currently pending the trial court’s decision on two motions that were argued on March 24. The plaintiffs are seeking a preliminary injunction in that case and the State has indicated that it would defend its total ban on electronic arms and Tasers up to the Supreme Court.

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Gov. Cuomo Sued Over NY Ban On Tasers And Stun Guns

December 7, 2016 by

Gov. Andrew Cuomo and the State of New York were sued yesterday in US District Court for the Northern District of New York over the state’s ban on tasers and stun guns. The Firearms Policy Coalition and the Firearms Policy Foundation sued the state in conjunction with Middleburgh, NY Mayor  Matthew Avitabile.

The suit is brought on Second Amendment grounds and follows the Supreme Court’s decision on a similar Massachusetts case in which they found that a stun gun is covered by the Second Amendment.

From the Firearms Policy Coalition:

FPC, FPF, and Mayor of Middleburgh Sue Governor Andrew Cuomo, New York Over Ban on Tasers and Nonlethal Weapons in New Second Amendment Legal Challenge
ALBANY, NY and SACRAMENTO, CA (December 6, 2016) — Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), and New York resident Matthew Avitabile have filed a federal Second Amendment civil rights lawsuit against New York Governor Andrew Cuomo in an effort to strike down the state’s ban on the acquisition and possession of Tasers and other nonlethal (sometimes called “less-than-lethal”) weapons.
Individual plaintiff Matthew Avitabile is the mayor of Middleburgh, New York and would like to buy and keep a Taser for self-defense. But New York Penal Law § 265.01 states that “A person is guilty of criminal possession of a weapon” if “He or she possesses any….electronic dart gun” or “electronic stun gun,” making the crime punishable as a misdemeanor.
The complaint states that, “Given the [United States Supreme Court] decision in Heller, Defendants may not completely ban the keeping and bearing of arms for self-defense” or “impose regulations on the right to keep and carry arms that are inconsistent with the Second Amendment.”
Earlier this year, the Supreme Court dealt a blow to a similar Massachusetts law, but that case was resolved before a final decision was reached.
Said lead counsel Stephen Stamboulieh about the case, “We are pleased to be working to vindicate Mr. Avitabile’s Second Amendment civil rights and hope to expand the right to keep and bear arms for all law-abiding New York residents through this lawsuit.”
“The Second Amendment absolutely protects the right of law-abiding people to buy and possess all arms in common use for self-defense, like Tasers,” stated Brandon Combs, president of the Coalition and chairman of the Foundation.
“We are more than happy to remind New York that the right to keep and bear arms prevails over paternalistic and unconstitutional statutes like theirs.”
Governor Cuomo and Superintendent of the New York State Police Lt. Col. George Beach are named as defendants in the case.
Stamboulieh is joined on the case by attorney Alan Beck of San Diego. Attorney Stephen Duvernay of Sacramento-based Benbrook Law Group and Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments, are consulting on the case. Before joining the UCLA faculty 20 years ago, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.
A copy of the lawsuit’s complaint can be viewed or downloaded at http://www.firearmspolicy.org/legal/avitabile-v-cuomo.
Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization.  FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms.
Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)3 nonprofit organization. FPF’s mission is to protect and defend the Constitution of the United States and the People’s rights, privileges and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms.

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Firearms Policy Coalition Sues California on First Amendment Grounds – Again

August 8, 2016 by

The Firearms Policy Coalition has sued the Legislative Counsel of California, Diane Boyer-Vine, for her attempts to suppress free speech. The suit centers around a blog post that posted publicly available addresses and phone numbers of Assembly members who voted for gun control. The post by FPC member “Publius” on his or her blog, The Real Write Winger, was removed by WordPress.com after the Legislative Counsel said it violated California law. The suit, as described in the press release below, seeks to have California Government
Code section 6254.21(c) declared unconstitutional and to enjoin its enforcement.

This is the second lawsuit this year that the Firearms Policy Coalition has brought this year on First Amendment grounds. In the first lawsuit which they won, they challenged the California Legislature’s ban on the use of video footage from floor debates in political ads. This is an interesting tactic as it forces judges to apply, in most cases, strict scrutiny.

More on the lawsuit and the whole back story is below:

SACRAMENTO (August 5, 2016) A just-filed First Amendment lawsuit challenges the State of California’s attempt to censor a political blog using an unusual and unconstitutional “takedown” process authorized by a state statute. The lawsuit is funded by the Firearms Policy Coalition, and filed on behalf of one of the Coalition’s members.


“Publius” (a pseudonym, since the challenged law carries a criminal penalty) runs a political blog under the alias “The Real Write Wringer” and writes extensively about California politics, civil liberties, and the Second Amendment.


The case, Doe Publius v. Diane Boyer-Vine, Legislative Counsel of California, seeks a restraining order against and challenges California Government Code section 6254.21(c), which broadly restricts the publication of the home address or telephone number of any “elected or appointed official” on the Internet.


Following California Governor Jerry Brown’s July 1 signing of six new gun control laws, the FPC member (pseudonymized as “Publius” in the lawsuit due to potential criminal liability) published a post on July 5 saying, in part, “… below is the names, home addresses, and home phone numbers of all the legislators who decided to make you a criminal if you don’t abide by their dictates. So below is the current tyrant registry. These are the people who voted to send you to prison if you exercise your rights and liberties. This will be a constantly updated list depending on future votes ….”


Soon after, the political blog’s hosting site, WordPress.com, received a censorious takedown letter from the California Legislative Counsel threatening litigation if the “tyrant registry” wasn’t removed due to the “grave risk” that it supposedly posed to the safety of elected officials.


In her letter, Deputy Legislative Counsel Kathryn Londenberg told WordPress.com that “My office represents the California State Legislature” and that it had “come to [their] attention that the home addresses of 14 Senators and 26 Assembly Members have been publically [sic] posted on an Internet Web site hosted by you without the permission of these elected officials.” She went on to say that if the content was not taken down within 48 hours, “we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s fees.”


WordPress.com, which sees about 83 million unique monthly visits, and Automattic capitulated immediately, removing Publius’ “tyrant registry” content and subsequently barring them from publishing any similar content.


“Our Publius lawsuit argues that a State of California statute and the Legislative Counsel’s demand letter threatening legal action and penalties unconstitutionally forced WordPress into taking down the material,” explained Brandon Combs, president of Firearms Policy Coalition.


“Our member’s truthful, non-threatening speech was attacked mere days after the elected subjects of their speech carpet-bombed the Bill of Rights in the largest legislative attack on Second Amendment rights in decades.”


“FPC will not tolerate it or its members voices being censored by any government.”


“The First Amendment protects the publication of facts about government officials, especially facts drawn from the public record,” explained Eugene Volokh, an attorney and UCLA law professor working on the Publius case.


“Of course, the First Amendment doesn’t protect true threats of violence, but the statute and the California government’s demand letter forbid all publication of these facts, whether or not accompanied by threats.”


The publication of legislators’ addresses and phone numbers can serve a variety of lawful purposes. For example, residential picketing is allowed in many places, and concerned citizens can hardly engage in such picketing to demand action from their legislators without knowing where they live.


And even where a local government has a valid content-neutral restriction on residential picketing, marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is likely constitutionally protected conduct.


In Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244 (N.D. Fla. 2010), the ACLU of Florida challenged a similar statute and got it struck down in an order by United States District Court Judge Richard Smoak, who held that the Florida law was facially “invalid as unconstitutional under the First and Fourteenth Amendments.”


Following the victory, Randall Marshall, ACLU of Florida Legal Director, said that it “cannot be a crime to publish truthful information. With very rare exceptions, courts protect the publication of truthful information that is already available to the public.”


Publius is represented by Bradley Benbrook and Stephen Duvernay of Benbrook Law Group as well as Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments.


Before joining the UCLA faculty 20 years ago, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.


A copy of the complaint, which includes exhibits containing the censored content, can be viewed or downloaded at https://www.firearmspolicy.org/wp-content/uploads/2016/08/2016-08-05-Complaint-with-Exhibits-filed.pdf.