AB 962

From the California Rifle and Pistol Association:

Frenso Court Issues Formal Ruling Finding Ammunition Regulations are Unconstitutionally Vague

2/2/2011

February 2, 2011 – The Fresno County Superior Court has issued its awaited formal Opinion holding that AB 962, the law that would have banned mail order ammunition sales and imposed burdensome record keeping requirements on gun dealers, is unconstitutional. In its 22 page Order, the Court held that “[a]fter careful consideration, the Court finds that the definition of ‘handgun ammunition’ as established in Penal Code §§ 12060(b) and 12318(b)(2) is unconstitutionally vague and, [that] because the definition of ‘handgun ammunition’ is vague, Penal Code §§ 12060, 12061, and 12318, which define and regulate sales and transfers of ‘handgun ammunition’ are also impermissibly vague.” The Court’s Order Denying Plaintiffs’ Motion for Summary Judgment and Granting in Part Plaintiffs’ Motion for Summary Adjudication is posted here.

The ruling was issued in the case of Parker v. California, No. 10CECG02116 (Super. Ct. Fresno, Filed June 17, 2010). The Parker lawsuit alleged, and the Court agreed, that AB 962 was unconstitutionally vague on its face because it failed to provide sufficient legal notice of what ammunition cartridges were “principally for use in a handgun,” and thus considered “handgun ammunition” regulated under AB 962. It was practically impossible, both for those subject to the law and those responsible for its enforcement, to determine whether any of the thousands of different types of ammunition cartridges that can be used in handguns were actually “principally for use in” or used more often in, a handgun. The proportional usage of any given cartridge is impossible to determine, and in any event changes with market demands. In fact, the legislature itself was well aware of the vagueness problem with AB 962’s definition of “handgun ammunition” and tried to redefine it via AB 2358 in 2010. AB 2358 failed in the face of opposition from the NRA and CRPA based on the proposal’s many other nonsensical infringements on ammunition sales to law abiding citizens.

The Court’s ruling follows the issuance on January 24th of a Permanent Injunction that prevents enforcement of the provisions of AB 962 (Penal Code sections 12060, 12061, and 12318.) The January 24th Order of Permanent Injunction followed the dramatic ruling on January 18th that AB 962 was unconstitutionally vague on its face. By enjoining enforcement of these statutes, mail order ammunition sales to California can continue unabated, and ammunition sales need not be registered under the law.

The lawsuit was prompted in part by the many objections and questions raised by confused police, ammunition purchasers, and sellers about what ammunition is covered by the new laws created by AB 962. In a highly unusual move that reflects growing law enforcement opposition to ineffective gun control laws, Tehama County Sheriff Clay Parker was the lead plaintiff in the lawsuit. Other plaintiffs included the CRPA Foundation, Herb Bauer Sporting Goods, ammunition shipper Able’s Ammo, collectible ammunition shipper RTG Sporting Collectibles, and individual Steven Stonecipher. Mendocino Sheriff Tom Allman also supported the lawsuit.

Parker v. California was funded exclusively by the NRA and the CRPA Foundation. Had it gone into effect, AB 962 would have imposed burdensome and ill conceived restrictions on the sales of ammunition. AB 962 required that “handgun ammunition” be stored out of the reach of customers, that ammunition vendors collect ammunition sales registration information and thumb-prints from purchasers, and conduct transactions face-to-face for all deliveries and transfers of “handgun ammunition.” The lawsuit successfully sought a declaration from the Court that the statute was unconstitutional, and successfully sought the injunctive relief prohibiting law enforcement from enforcing the new laws.

Constitutional vagueness challenges to state laws are extremely difficult to win, particularly in California firearms litigation so this success is particularly noteworthy. Even so, an appeal by the State is likely, but the Court’s Order enjoining enforcement of the law became effective February 1, 2011 regardless.

Despite this win for common sense over ill-conceived and counter productive gun laws, additional legislation on this and related subjects will no doubt be proposed in Sacramento this legislative session. It is absolutely critical that those who believe in the right to keep and bear arms stay informed and make their voices heard in Sacramento. When AB 962 passed there was a loud outcry from law abiding gun owners impacted by the new law. Those voices must be heard during the legislative session and before a proposed law passes, not after a law is signed. To help, sign up for legislative alerts at www.nraila.com and www.calnra.com and respond when called upon.

From Chuck Michel regarding Parker et al v. California where the Fresno Superior Court today issued an Order of Permanent Injunction against the handgun registration act.

January 24, 2011 – Today the Fresno Superior Court issued an Order of Permanent Injunction in the NRA – CRPA Foundation funded legal challenge to AB962, Parker v. California. The order permanently prevents the state and its agents from enforcing the provisions of AB962 (Penal Code sections 12060, 12061, and 12318). A copy of the Order is here. The Order comes following a dramatic ruling giving gun owners a win in a National Rifle Association / California Rifle and Pistol (CRPA) Foundation lawsuit. On January 18th, Fresno Superior Court Judge Jeffrey Hamilton ruled that AB 962, the hotly contested statute that would have banned mail order ammunition sales and required all purchases of so called “handgun ammunition” to be registered, was unconstitutionally vague on its face. By enjoining enforcement of these statutes, mail order ammunition sales to California can continue unabated, and ammunition sales need not be registered under the law. A formal written ruling from the court will be issued soon.

The lawsuit was prompted in part by the many objections and questions raised by confused police, ammunition purchasers, and sellers about what ammunition is covered by the new laws created by AB 962. In a highly unusual move that reflects growing law enforcement opposition to ineffective gun control laws, Tehama County Sheriff Clay Parker is the lead plaintiff in the lawsuit. Other plaintiffs include the CRPA Foundation, Herb Bauer Sporting Goods, ammunition shipper Able’s Ammo, collectible ammunition shipper RTG Sporting Collectibles, and individual Steven Stonecipher.

In addition to these plaintiffs, Mendocino Sheriff Tom Allman, along with ammunition shippers Midway USA, Natchez Shooters Supplies, and Cheaper Than Dirt also submitted declarations in support of the lawsuit.

The ruling comes just days before the portion of the law that bans mail order sales of so called “handgun ammunition” was set to take effect on February 1, 2011. The lawsuit, Parker v. California is funded exclusively by the NRA and the CRPA Foundation. If it had gone into effect, AB 962 would have imposed burdensome and ill conceived restrictions on the sales of ammunition. AB 962 required that “handgun ammunition” be stored out of the reach of customers, that ammunition vendors collect ammunition sales registration information and thumb-prints from purchasers, and conduct transactions face-to-face for all deliveries and transfers of “handgun ammunition.” The lawsuit successfully sought the declaration from the Court that the statute was unconstitutional, and successfully sought the injunctive relief prohibiting law enforcement from enforcing the new laws.

The lawsuit alleged, and the Court agreed, that AB 962 is unconstitutionally vague on its face because it fails to provide sufficient legal notice of what ammunition cartridges are “principally for use in a handgun,” and thus is considered “handgun ammunition” that is regulated under AB 962. It is practically impossible, both for those subject to the law and for those who must enforce it, to determine whether any of the thousands of different types of ammunition cartridges that can be used in handguns are actually “principally for use in” or used more often in, a handgun. The proportional usage of any given cartridge is impossible to determine, and in any event changes with market demands. In fact, the legislature itself is well aware of the vagueness problem with AB 962’s definition of “handgun ammunition” and tried to redefine it via AB 2358 in 2010. AB 2358 failed in the face of opposition from the NRA and CRPA based on the proposal’s many other nonsensical infringements on ammunition sales to law abiding citizens.

Constitutional vagueness challenges to state laws are extremely difficult to win, particularly in California firearms litigation so this success is particularly noteworthy. Even so, an appeal by the State is likely, but the Court’s Order enjoining enforcement of the law is effective – February 1, 2011 – immediately regardless.

Despite this win for common sense over ill-conceived and counter productive gun laws, additional legislation on this and related subjects will no doubt be proposed in Sacramento this legislative session. It is absolutely critical that those who believe in the right to keep and bear arms stay informed and make their voices heard in Sacramento. When AB 962 passed there was loud outcry from law abiding gun owners impacted by the new law. Those voices must be heard during the legislative session and before a proposed law passes, not after a law is signed. To help, sign up for legislative alerts at www.nraila.com and www.calnra.com and respond when called upon.

While the two lawsuits in Federal court against the California ban on mailorder sales of handgun ammunition were dismissed, the case in California Superior Court still continues. That case, Parker v. California, was brought by the California Rifle and Pistol Association Foundation with help from the NRA.

FINAL PRETRIAL BRIEFS FILED IN NRA / CRPAF
LAWSUIT CHALLENGING CALIFORNIA BAN
ON MAILORDER AMMO SALES

On January 7, 2011, the California Rifle and Pistol Association Foundation (CRPAF) filed a Reply brief and supporting materials for Plaintiffs’ Motion for Summary Judgment in their case challenging AB962. A trial is set for January 18, 2011 – just days before the portion of the law that bans mail order sales of “handgun ammunition” is set to take effect on February 1, 2011. The lawsuit, Parker v. California is funded exclusively by the NRA and the CRPA Foundation. It seeks a court order declaring the statutes enacted by AB 962 to be unconstitutional, and seeks injunctive relief prohibiting police from enforcing the new laws.

The lawsuit alleges that AB962 is unconstitutionally vague because it fails to provide sufficient notice of what ammunition is “principally for use in a handgun,” and thus is considered “handgun ammunition” that is regulated under AB 962. It is practically impossible, both for those subject to the law and for those who must enforce it, to determine whether any of the thousands of different types of ammunition cartridges that can be used in handguns are actually “principally for use in” or used more often in, a handgun. In fact, the legislature itself is well aware of the vagueness problem with AB 962 and attempted to fix it via AB 2358 in 2010. The attempt failed in the face of opposition from the NRA and CRPA.

Constitutional vagueness challenges to state laws are extremely difficult to win, particularly in California firearms litigation. While we are cautiously optimistic, ammo suppliers and sellers must also be ready to comply with the law if the court upholds it. A Compliance Guide is forthcoming, but unfortunately the law raises more questions than it answers, and the California Department of Justice Firearms Bureau is providing no assistance. Nonetheless, the Compliance Guide will include information obtained from DOJ through this litigation and much more, along with template forms which can be used by ammunition vendors. The Compliance guide will be released and distributed no later than January 18, 2010 on www.calgunlaws.comwww.michellawyers.com. Sign up at www.calgunlaws.com to be notified.

The Parker lawsuit is the only remaining court challenge to AB962. A federal judge last month dismissed two other cases (OOIDA v. Lindlley and State Ammunition v. Lindley) challenging AB 962 on other grounds. NRA was also a party to and sponsor of the OOIDA case.

Significantly, the Parker briefs argue that a heightened standard of certainty should be applied to the court’s vagueness analysis because of AB 962’s impact on the fundamental Second Amendment right to keep and bear arms. Generally, statutes are subjected to heightened scrutiny under the vagueness doctrine only where cases “impact,” “relate to,” or “implicate” constitutionally protected conduct. The Parker case presents a novel question of law that could set a precedent for future vagueness challenges because such heightened standards of legislative clarity have thus far only been applied in cases involving statutes impacting other constitutional rights such as freedom of speech, the right to choose to have an abortion, and the right to travel. Here however, it seems that blanket prohibitions on how “handgun ammunition” is purchased, and a thumb print requirement for every purchase of such ammunition, necessarily “implicates” or “relates to” the right to maintain an operable handgun to exercise the fundamental right to self defense. So in addition to the obvious benefit of AB 962 being declared unconstitutional, a ruling that statutes that impact Second Amendment rights deserve heightened Due Process court scrutiny would be helpful in the development of Second Amendment jurisprudence.

Win or lose, additional legislation on this and related subjects will no doubt be proposed in Sacramento this legislative session. It is absolutely critical that those who believe in the right to keep and bear arms stay informed and make their voices heard in Sacramento.

Seventeen years ago the NRA and CRPA joined forces to fight local gun bans being written and pushed in California by the gun ban lobby. Their coordinated efforts became the NRA/CRPA “Local Ordinance Project” (LOP) – a statewide campaign to fight ill conceived local efforts at gun control and educate politicians about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners. The NRA/CRPA LOP has had tremendous success in beating back most of these anti-self-defense proposals.

In addition to fighting local gun bans, for decades the NRA has been litigating dozens of cases in California courts to promote the right to self-defense and the 2nd Amendment. In the post Heller and McDonald www.crpafoundation.org. All donations made to the CRPA Foundation will directly support litigation efforts to advance the rights of California gun owners.

Also, please register at www.CalGunLaws.com and www.crpa.org . www.CalGunLaws.com is produced by the law firm of Michel & Associates, P.C. as a pro bono effort to keep attorneys and interested firearm owners informed on the existing laws and latest legal developments in California. It includes a link to the highly effective www.calnra.com California legislative status and grassroots action page.

C.D. Michel
Senior Counsel

From the CalGuns Foundation:

Truckers and gun owner groups file lawsuit against California to void handgun ammunition shipping ban

AB-962 Pre-empted By Federal Laws That Regulate Interstate Shipping

For Immediate Release: 7/28/2010

Redwood City, CA – The Owner-Operator Independent Drivers Association (OOIDA) has joined with the Calguns Foundation, the National Rifle Association, the Folsom Shooting Club and two individual truckers to challenge California’s soon to be implemented ban on the interstate shipment of handgun ammunition to California.

Last year, Governor Schwarzenegger signed Assembly Bill 962 into law. Starting in February 2011, the law will criminalize the delivery and transfer of handgun ammunition not done in face-to-face transactions. The law requires shipping companies to implement procedures to determine whether the recipient of a package containing handgun ammunition is covered by one of the exceptions in the law before delivering handgun ammunition in California. This places a big burden on the shippers, and will make shipping ammunition to California much more difficult and likely more expensive.

The new lawsuit, filed today in Sacramento’s Eastern District Federal Court, alleges that these provisions of the law violate the Federal Aviation Administration Authorization Act, which prohibits states and local municipalities from interfering with carriers’ rates, routes, or services.

“This isn’t about firearms or ammunition. Congress made an important decision to keep motor carriers free from a patchwork of burdensome regulation as we move America’s goods to market” said Jim Johnston, OOIDA President. “We cannot allow California to subject our members to criminal liability where the state has no right to meddle.”

California depends on the efficient movement of goods by carrier into California. “California legislators have become accustomed to trampling the rights of California’s gun community. However, this time they’ve taken that recklessness into a field that will hurt every Californian. AB-962 will slow down everyone who orders goods online or buys goods at a retail store,” said Gene Hoffman, Chairman of The Calguns Foundation.

In February 2008, a unanimous United States Supreme Court struck down Maine’s directly analogous law regarding the delivery of cigarettes to Maine in Rowe v. New Hampshire Motor Transport. “It does not matter what the State’s goal is or how honorable they believe their cause is,” stated lead attorney, Jason Davis of Davis & Associates. “Rowe made it clear that a state cannot interfere with a carrier’s rates, routes, or services. AB962 does just that.”

“At Sacramento Valley Shooting Center, we currently provide handgun ammunition sales to the public,” said Jim Bass, President of Folsom Shooting Club. “Should the shipping restrictions in AB-962 take effect, we have no way to prove to shippers that we are a handgun ammunition vendor under the law.”

This case follows a Second Amendment and Commerce Clause challenge entitled State Ammunition v. Lindley, and a California State Court Challenge to the vagueness and other requirements of AB-962 brought by the NRA-CRPA Foundation Legal Action Project.

The delivery prohibitions of AB-962 take effect in February 2011; Plaintiffs in this case will be moving quickly to obtain an injunction before the shipping portions of the law takes effect.

The case is filed as OOIDA et. al v. Lindley, U.S. Dist. Ct. E.D. C.A. 2:10-at-01095. A copy of the complaint is available from http://ia360709.us.archive.org/23/items/gov.uscourts.caed.211363/gov.uscourts.caed.211363.1.0.pdf .

—

The Owner-Operator Independent Drivers Association is the largest national trade association representing the interests of small-business trucking professionals and professional truck drivers. The Association currently has more than 154,000 members nationwide. OOIDA was established in 1973 and is headquartered in the greater Kansas City, Mo., area.

The Calguns Foundation (http://calgunsfoundation.org) is a non-profit legal defense fund for California gun owners. The Calguns Foundation works to educate government and the public and protect the rights of individuals to acquire, own and lawfully use firearms in California.

Established in 1871, the National Rifle Association is America’s oldest civil rights and sportsmen’s group. Four million members strong, NRA continues its mission to uphold Second Amendment rights and to advocate enforcement of existing laws against violent offenders to reduce crime. The Association remains the nation’s leader in firearm education and training for law-abiding gun owners, law enforcement and the military.

The Folsom Shooting Club Inc. was incorporated in 1951 and currently operates Sacramento Valley Shooting Center at Sloughhouse CA. Sacramento Valley Shooting center provides ranges for private, government and public use with rifles, handguns and shotguns. FSC and its 1500 members constantly work with law enforcement, the military, youth and wildlife groups and members of the public to promote safe and proper handling of firearms for sporting, recreational and personal use.

I’ll have more after I have a chance to read the complaint.

UPDATE: A report on the lawsuit from Land-Line Magazine – The Business Magazine for Professional Truckers.

About two weeks ago,  I posted a story on the NRA/CRPA Foundation Legal Action Project lawsuit againt California’s new handgun ammo law that goes into effect on February 1, 2011. The suit was filed in California Superior Court for Fresno County. We still haven’t seen the complaint in this case as the plaintiff’s attorneys are being “tactically” coy about it.

However, the Corning Observer in Corning, California has a story about Sheriff Clay Parker, the lead plaintiff in the case. The story notes that he is passionate about protecting the “citizen’s right to bear arms.”

Sheriff Parker says about the bill,

“The bill is too broad,” Parker said. “What is handgun ammunition? If you ask, no one could tell you. Some people may say a .357 shell is handgun ammunition, but I have a .357 rifle. This bill has to be defined better.”

The article also quotes an employee of a local hardware store that sells ammunition,

Tim Ross, an employee of Hatfield’s Ace Hardware, which sells firearms and ammunition, said he agrees with Parker that the language of the bill is too broad.

“There is a lot of firearms ammunition that is interchangeable between pistols and rifles,” Ross said. “Another issue we have with the bill is the record keeping. For every box of ammunition we sell we will have to keep fingerprint, driver’s license, and other information on our records for who knows how long and that will create an unimaginable paper trail headache.”

H/T Dave Hardy of Of Arms and the Law blog