Linton V. Becerra – Another Second Amendment Lawsuit Against California

Chad Linton and Paul McKinley Stewart had screwed up in their younger days, paid their debt to society, and went on to lead lives in California as good, productive citizens. More importantly to our discussion here, the relevant courts in both Washington State and Arizona had explicitly expunged their non-violent felony convictions and explicitly restored their rights to own, possess, and purchase firearms. They further underwent multiple background and fingerprint checks and Linton actually had purchased firearms in California in the past. However, that is not good enough for California now. When they each went to purchase firearms starting in 2015, they were turned down the California Department of Justice and its Bureau of Firearm based upon Cal. Pen. Code §§ 29800 and §§ 30305.

Messrs. Linton and Stewart along with institutional plaintiffs the Firearms Policy Foundation, the Firearms Policy Coalition, the Second Amendment Society, the Calguns Foundation, and the Madison Society Foundation filed suit in US District Court for the Northern District of California on Thursday, December 20th. The parties are represented by attorney George M. Lee of Seiler, Epstein, Ziegler & Applegate of San Francisco. They named California Attorney General Xavier Becerra (D-CA), Acting Chief of the Bureau of Firearms Martin Horan, and Deputy Attorney General Robert Wilson as defendants.

Mr. Linton was stationed at NAS Whidbey Island when he was stopped for a DUI and trying to elude police. He pled guilty and was sentenced to time served (7 days) and probation with the promise that his felony conviction would be downgraded to a misdemeanor if he completed his probation successfully which he did. He received a certificate of discharge stating that all of his civil rights were restored. Fast forward from 1987 to 2015. Mr. Linton attempted to buy a handgun but was denied by the State of California due to the prior felony. He hired an attorney in Washington State to reopen the proceedings, withdraw his guilty plea, and enter a not-guilty plea. The Superior Court in Washington State vacated his prior conviction, set aside his guilty plea, and restored his rights.

On April 18, 2016, the Superior Court of the State of Washington, Island County,
further issued, upon Plaintiff’s petition, an Order Restoring Right to Possess Firearms pursuant
to Revised Code of Washington (RCW) 9.41.040(4). A copy of this order is attached as Exhibit
B. As part of that petition, and order, the court found that Plaintiff Linton was qualified,
pursuant to RCW 9.41.040(4), to have the right to possess firearms restored to him, and
accordingly, ordered “that Petitioner Chad Linton’s civil rights and right to possess firearms are
FULLY RESTORED
pursuant to RCW 9.41.040(4).” (Id.) The court further ordered the
Washington State Patrol to transmit a copy of its Order to the Federal Bureau of Investigation.

When later in 2016 Linton attempted to purchase a rifle the California DOJ denied it and sent him a letter stating that he was ineligible due to being a felon. His California attorney made multiple requests to the California DOJ to clear up the matter and provided them with the Washington State court orders. Linton assumed the matter had been cleared up when he went to purchase a revolver and was again denied. Soon thereafter he was visited by agents of the California DOJ’s Armed Prohibited Persons System enforcement project who seized all of his firearms including a family heirloom. Bear again in mind that he was not a prohibited person under either Washington State or Federal law. Indeed Deputy AG Robert Wilson went so far as to say that they would not honor the Washington State court’s findings and that Mr. Linton try to get a presidential pardon as that is the only thing they would accept.

Mr. Stewart made similar successful efforts to get his record expunged by the State of Arizona. In 2016 the Yuma County Superior Court specifically sent aside his conviction and restored his firearm rights. The Arizona Department of Public Safety sent Stewart more documentation indicating the felony conviction had been set aside and his records had been corrected. Notwithstanding this, like Mr. Linton, he was denied when he sought to purchase a firearm.

Count One alleges the state has violated the plaintiffs’ rights under the Second Amendment by denying them the right to possess firearms in their home for self-defense.

Notwithstanding the non-violent nature of those
convictions, and the subsequent restoration of plaintiffs’ rights, the laws and Defendants’
policies, practices, and customs described herein, as applied to Individual Plaintiffs, amount to a
total and permanent deprivation of their fundamental, individual right to keep and bear arms and
ammunition, as guaranteed by the Second Amendment, and are therefore an infringement upon
those rights. The circumstances surrounding the Individual Plaintiffs’ convictions are therefore
and should be distinguishable from those persons that have been historically excluded from the right to keep and bear arms.

Count Two states that the defendants’ actions violate the Full Faith and Credit Clause of Article IV, Section 1 of the Constitution. Both the Constitution and subsequent Supreme Court decisions require each state to honor the valid judgments of courts in other states. The Supreme Court said in 1998 in Baker by Thomas v. General Motors Corp, that “A final judgment in one State, if rendered by a court with adjudicatory authority over the
subject matter and persons governed by the judgment, qualifies for recognition throughout the
land.”

The third and final count states that California is violating both the Privileges and Immunities Clause of Article IV, Section 2 and the 14th Amendment, Section 1. California law provides a process whereby someone convicted of a “wobbler” felony can get his or her firearms rights restored. A wobbler felony is one where the person could have been charged with either a felony or misdemeanor for the offense. If the person gets the felony downgraded to a misdemeanor under Pen. Code § 17(b), they would also be eligible to get their record expunged in its entirety under Pen. Code § 1203.4. Both would allow the person in question to have their firearms rights restored.

However, the State of California will only honor the reduction of these qualifying
felony convictions utilizing the statutes and the process described above. As shown throughout
this complaint, California refuses to honor the comparable process utilized by other states,
including the States of Washington and Arizona, shown above, even where the courts of those
jurisdictions expressly have set aside the felony convictions and have restored firearms rights to
such persons who have successfully completed their terms of probation. Accordingly, Defendants’ refusal to honor the set-aside or vacation of those felony convictions, and/or
restoration of firearm rights, by courts of those other states, amounts to unlawful discrimination,
favoring California’s citizens, since persons convicted of felonies in other states, in essence, have
no actual means to seek judicial restoration of their firearms rights here, or otherwise comparable
to the process of reduction under those mechanisms (including Pen. Code § 17(b)) described
above.

In essence, what you have is California saying that they will treat their restoration of rights as legitimate while that of other states as illegitimate for the purposes of firearms rights.

The plaintiffs are seeking both declaratory and injunctive relief under all counts as as applied to themselves and to others similarly situated. Of course, they are also seeking attorneys’ fees.

I’m not a judge nor a lawyer but if I had to hazzard a guess this will case will be decided on the Full Faith and Credit Clause and the Privileges and Immunities Clause. While it is obviously a denial of Second Amendment rights, the courts will go for the low-hanging fruit of Counts Two and Three.

“I want gun control and I hope to God nobody else sends me any more prayers.”

The above quote comes from Susan Orfanos. She was the mother of Telemachus Orfanos who was one of the victims in the multiple murders committed at the Borderline Bar in Thousand Oaks, California. It was reported on the CBS Evening News for Friday, November 9th.

“He didn’t come home last night,” said his mother, Susan. “I don’t want prayers. I don’t want thoughts. I want gun control and I hope to God nobody else sends me any more prayers. I want gun control. No more guns.”

The link to the story includes the video interview with her and a friend of the murderer.

I can excuse the bitter words of a distraught mother who lost a son. However, I have also gotten emails from both the Brady Campaign and the cult of personality known as Giffords calling for more gun control and asking for donations.

Excuse me but these murders happened in the gun control paradise known as California. Giffords Law Center rates the state an “A”. It is the only state in the Union rated this high. Even New York, New Jersey, and Massachusetts only get A minuses. In the last Brady Campaign rankings I can find from 2015, California was the number one state in terms of adopting the gun control measures they wanted.

Red Flag laws?

Check!

Highly restrictive may issue concealed carry?

Check!

Ban on open carry?

Check!

Waiting periods?

Check!

Assault weapon (sic) bans?

Check!

Magazine size restrictions?

Check!

Purchase of ammunition only through licensed dealers?

Check!

Background check to buy ammo?

Check!

Ban carry in establishments that serve alcohol?

Check!

The state has every thing that the gun prohibitionists have been calling for to supposedly stop “gun violence” and “mass shootings” and yet it failed. When a murderer is determined to commit evil deeds the weapon really almost becomes irrelevant. It could just as easily have been an attack using a knife as in Melbourne, Australia on Friday. Even worse might have been an arson attack where an exit was illegally locked or blocked. Some of the worst night club fires in the US and the rest of the world have been due to arson.

My point is that there is little that can be done to stop the initial attack even with the most restrictive of laws. Evil people will do what evil people will do.

That said, there are a number of things that might have lessened the toll. For example, if the six off-duty cops there had been allowed to carry in the Borderline Bar, they could have responded with deadly force to stop the murders. Or, for example, as Greg Ellifritz points out, the murderer posted to Facebook and Instagram during the attack which was an opportunity to attack the murderer when he was distracted. While it might have been illegal in California, in many states you can carry in a place that serves alcohol so long as you don’t drink. This would be the place for Designated Defenders as suggested by Massad Ayoob.

I’m not sure how to prevent all mass violence events. I do think Malcolm Gladwell is on to something with his theory of threshholds where each event begets a larger and worse event. Media publicity doesn’t help. I’m not saying that it shouldn’t be reported but restraint and discretion should be exercised. For a start, do like many bloggers and academics have pledged: don’t report the killer’s name. As the No Notoriety campaign suggests focus on the victims and not the killer.

It would be a start. In the meantime, be alert and be careful where you go.

Sharp V. Becerra – Assault Weapon Registration Lawsuit – Moved To Federal Court

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In late August, California Attorney General Xavier Becerra (D-CA)  moved to have the lawsuit against him and the California DOJ over their ineptness implementing the new registration of bullet button weapons moved to Federal court. One would have thought that he’d want to keep a suit against the California Department of Justice in state court.
The case was moved to US District Court for the Eastern District of California and assigned to Judge Morrison England, Jr. 
Today, the plaintiffs which include a number of individuals and a number of civil rights organizations filed an amended complaint. Joining the plaintiffs is the Madison Society Foundation.  The amended complaint also adds a Section 183 claim for deprivation of due process rights.

While I might have been tempted to just say “screw it”, all the individual plaintiffs spent hours trying to comply with the law requiring registration of their firearms. Some of the plaintiffs are IT professionals and tech savvy. Nonetheless, the database system was so screwed up, most of them were not able to do so. The response of Cal DOJ was “you procrastinated, so tough”. From the complaint:

The following Monday, July 2, 2018,
Plaintiff (Terry) Jahraus contacted the DOJ for assistance, but the DOJ official told him, essentially, “it
was [his] responsibility to comply with the law [and] that he had all year to do so.” In other
words, DOJ blamed him for failing to register, even though its own statutorily-mandated
registration system was inaccessible and defective throughout the entire period he had attempted
to register it well before the deadline.

The joint release of the Second Amendment Foundation, Calguns Foundation, Firearms Policy Coalition, Firearms Policy Foundation, and the Madison Society Foundation is below:

SACRAMENTO, CA (September 24, 2018) — Attorneys for seven California gun owners and five advocacy organizations announced a new court filing in a now-federal constitutional rights lawsuit over the State of California’s “assault weapon” registration debacle. The case, Sharp, et al. v. Attorney General Xavier Becerra, et al., was originally filed in the County of Shasta Superior Court. But in late August it was removed to federal district court in Sacramento at the request of Attorney General Xavier Becerra and the DOJ defendants. The new court filing is online at https://www.firearmspolicy.org/sharp.

On August 24, the California Attorney General moved the case to federal court on the basis that the plaintiffs’ claims present a federal constitutional question, in addition to their state-based claims. That same day, the lawsuit was assigned to District Court Judge Morrison C. England, Jr. Two years ago, Judge England issued a bench ruling to enjoin a California statute that criminalized the use of Assembly video footage in political advertisements in a case brought by Firearms Policy Coalition and its Proposition 63 ballot initiative political committee, FPC Second Amendment Defense Committee.

“While it’s interesting that Attorney General Becerra doesn’t want his own state’s courts to hear how badly he mis-administered the mandated firearm registration program, we welcome the opportunity to show Judge England how the DOJ violated the constitutional rights of the plaintiffs and others like them,” said George M. Lee, lead counsel for the plaintiffs. “General Becerra’s actions and failures affected many gun owners from San Diego to Eureka. These law-abiding gun owners tried to register their weapons as required by law but could not do so because DOJ’s registration system was wholly inadequate to do the job. We are simply asking that those injuries be reasonably remedied so that those citizens are not subject to criminal liability for possessing illegal, unregistered weapons – solely as a result of DOJ’s failures.”

In the latest complaint, submitted last Friday, the plaintiffs added a claim for deprivation of their due process rights under Title 42, Section 1983 of the United States Code. The complaint also adds as an institutional plaintiff the Madison Society Foundation, a nonprofit organization that fights to protect the right to keep and bear arms.

The plaintiffs say that Becerra and the DOJ had a legal and constitutional duty to provide a functional registration system during the registration period, but that they were unable to exercise their own rights and legal duties “due to the Defendants’ actions and failures, including but not limited to the inaccessibility, defects, and/or non-functionality of the DOJ’s CFARS-based registration system.” The plaintiffs alleged that the DOJ’s ‘botched’ “assault weapon” registration scheme – including the error-prone Internet application for registration that often crashed completely – violated both the U.S. Constitution and California Constitution’s guarantees of due process. They also allege that the failed DOJ system violated the plaintiffs’ and other similar gun owners’ statutory rights.

“Even though the lawsuit is now in a federal district court, it’s still just a straight-forward case about how Attorney General Becerra and his DOJ didn’t do the job they were mandated to do,” explained Firearms Policy Coalition President Brandon Combs. “Their actions and failures violated the rights of thousands of California gun owners. It’s just that simple.”

Under California’s voluminous gun control laws, someone merely transporting an unregistered “assault weapon” to the shooting range – even if one believes it was legal and registered under other DOJ systems, like DROS – “is guilty of a felony” and potentially subject to a prison sentence of “four, six, or eight years.” Other crimes can be added on to that, including common separate charges like possession and manufacturing.

The complaint says the plaintiffs “seek an un-extraordinary result, compelled by the basic tenets of due process: That they simply be allowed to register their eligible firearms and comply with the law, and that the Attorney General, the DOJ, and their officers and agents similarly comply with the law by allowing such registrations and ensuring they are properly and timely processed through a functioning online database as they have been required by statute to do.”

“This unjust California government-created problem must be stopped immediately,” Second Amendment Foundation Founder and Executive Vice President, Alan Gottlieb, said in a previous statement. “Gun owners should not be put at risk due to state regulatory incompetence.”

The plaintiffs said that they would soon be asking Judge England for a preliminary injunction to protect affected gun owners’ rights and property while the case goes forward to summary judgement or trial.

The plaintiffs are represented by attorneys George M. Lee and Douglas Applegate of San Francisco-based Seiler Epstein Ziegler & Applegate LLP, as well as Raymond M. DiGuiseppe, a former California deputy attorney general and prosecutor. Attorneys Bradley Benbrook and Stephen Duvernay of the Sacramento-based Benbrook Law Group, who earlier this month secured a major First Amendment victory in a case that challenged a different California gun control statute that banned truthful, non-misleading speech about handguns, have been added to the legal team.

The lawsuit is backed by The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), and Madison Society Foundation (MSF), also institutional plaintiffs in the case.

Californians who tried to register their firearms as “assault weapons” before July 1 but were unable to, or who suffered a privacy breach at DOJ, should contact the organizations’ Legal Action Hotline immediately at https://www.firearmspolicy.org/hotline or by telephone at 855-252-4510.

Even MORE Gun Control Laws In California?

Just when you thought California had more than enough gun control laws, the California legislature sends nine more to Gov. Jerry Brown (D-CA) for signature. With some sort of luck, he may – and I emphasize “may” – veto some of these laws. He has done that in the past.

Gun law attorney Adam Kraut discusses a number of these laws in this video from The Gun Collective. He also has some great alternative names to the official ones for these laws.

If you would like to know even more about these bill and would like to let Gov. Brown know your opinion on them, the Firearms Policy Coalition gives you that info in this release that went out on Friday.

FPC Seeks Veto of 9 Gun Bills from California Gov. Jerry Brown,

Asks for Approval of Public Records Act Bill

SACRAMENTO, CA (September 7, 2018) — Today, Firearms Policy Coalition asked California Governor Jerry Brown to veto nine “dangerous” gun bills that would “radically change” the state’s already-voluminous and complex laws. The advocacy organization also requested that Gov. Brown sign one bill that would help prevent state and local agencies from abusing the Public Records Act attorney fee provisions to chill the public’s right to access government files.

Historically, Brown signs most bills sent to him by the Legislature. But, FPC said, he does sometimes veto bills that don’t make sense to him and has rejected gun bills in the past. FPC’s legislative advocate and spokesperson, Craig DeLuz, thinks that Brown has plenty of reasons to reject the nine gun bills they oppose. “Some of these pieces of legislation are just headline-grabbing garbage because it’s an election year,” he said. “And Brown has vetoed some of these bills before, for good reasons. He may just put the brakes on expanding California gun laws in the last year of his last term to leave these decisions to the next governor.”

SB 1177, “just a few months ago an Education Code bill – would make it a crime to apply for the otherwise lawful purchase of a constitutionally protected firearm more than once a month. This bill is a case study of what happens when opportunistic legislators don’t have any real rules (or ethics),” FPC said in a letter. “The sky is blue, the sun sets in the west, and SB 1177 is yet another ego and animus-driven bill to put Senator Portanino’s name in bold print on yet another bill to attack the right to keep and bear arms.”

Another letter points out that San Francisco state senator Wiener’s SB 221 puts people and rights he doesn’t like in the crosshairs of the state. The bill, that would ban gun shows at the Cow Palace in Daly City if signed, was a health-related bill until it was “gutted and amended” just a few months ago. “In SB 221 the Legislature has targeted for especially unfavorable treatment those who would have the audacity to peacefully exercise their fundamental, individual rights protected under the First, Second, and Fourteenth Amendments,” FPC argued.

FPC-opposed bills that were passed by the Legislature include AB 1903, AB 1968, AB 2103, AB 2888, AB 3129, SB 221, SB 1100, SB 1177, and SB 1346. FPC supports SB 1244, a Public Records Act bill, by Bay Area Senator Bob Wieckowski.

Gun owners are encouraged to send Governor Brown a message voicing their opinion using FPC’s free Grassroots Take Action Tools at http://bit.ly/2018-ca-gov-brown .

FPC’s letters to California Governor Jerry Brown can be viewed or downloaded at http://bit.ly/fpc-2018-9-7-gov-brown-letters .

ACLU Finally Stepping Up In NY And California

The state branches of the American Civil Liberties Union in New York and California appear to be stepping up to oppose measures aimed at the gun culture.

First, in California. The ACLU is joining with groups like the Firearms Policy Coalition to oppose AB 1968 which mandates a lifetime ban on firearm ownership by anyone who has been involuntarily admitted to a mental health facility more than once in one year.

In a letter to Assemblyman Evan Low (D-Campbell) who is the author of the bill, they said:

“This bill stigmatizes people with a history of mental health issues, and perpetuates the harmful and false stereotype that such people are inherently violent and dangerous.”

As AWR Hawkins notes in an article in Breitbart, the bill’s approach is essentially the same as that was used to deny Social Security recipients that needed help managing their monies. That is, it didn’t differentiate between non-violent and violent behavior and lumped them all together.

Duke University psychiatrist and behavior health professor Jeffrey Swanson had an op-ed in the Washington Post at the time criticizing this lumping together. He said then, ““the vast majority of mentally ill individuals pose no threat to themselves nor to others. Yet the ban stigmatized a broad swath of the mentally ill by treating them as a threat.

Now on to New York where the ACLU filed an amicus brief supporting the NRA in their lawsuit against Gov. Andrew Cuomo (D-NY). To me, this is the more important of the two because the ACLU’s defense of the NRA rightly points out the danger of using the administrative state against any organization that is out of favor at the time with a politician.

Reason.com describes the efforts of the Cuomo administration to deny the NRA the ability to obtain banking and insurance coverages.

A timeline prepared by the NRA suggests the intimidation campaign began last fall. The anti-gun group Everytown for Gun Safety met with New York officials in September 2017; a month later the Department of Financial Services began an investigation that started with a company called Lockton, which administered the NRA-branded personal liability insurance program known as Carry Guard. Despite a 20-year relationship, Lockton responded by abruptly ditching the NRA as a customer in February; so did Chubb and Lloyd’s.

Emboldened by this initial success, Maria Vullo, head of the state’s Department of Financial Services, sent a pair of ominous letters to all banks, financial institutions, and insurers licensed to do business in New York. Vullo warned companies to sever ties with pro-Second Amendment groups that “promote guns and lead to senseless violence” and instead heed “the voices of the passionate, courageous, and articulate young people” calling for more restrictions on firearms. All companies receiving the letter, she advised, should “review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.”

New York Gov. Andrew Cuomo underlined the regulatory threat in a tweet the next day: “The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.'”

As a result of those not-very-veiled threats, the NRA says, multiple banks withdrew bids to provide basic depository services. The NRA is also worried about being able to continue producing its NRA TV channel, with hosts including Dana Loesch and Cam Edwards, unless it can obtain normal media liability insurance.

David Cole, the ACLU Legal Director, explained in a blog post why they filed their amicus brief even though they still cling to a collective right view of the Second Amendment.

In the ACLU’s view, targeting a nonprofit advocacy group and seeking to deny it financial services because it promotes a lawful activity (the use of guns) violates the First Amendment. Because we believe the governor’s actions, as alleged, threaten the First Amendment rights of all advocacy organizations, the ACLU on Friday filed a friend-of-the-court brief supporting the NRA’s right to have its day in court.

His blog post points out that while it may be the NRA that is targeted today, it could be a liberal group that is being targeted tomorrow for “disapproved speech” and that violates the First Amendment.

The amicus brief opposes NY’s motion to dismiss the NRA’s case. Their argument centers on two major points. First, that the court must consider all circumstances to determine whether or not Cuomo and company threatened adverse actions against the NRA’s banks and insurers. In essence, it urges the court to look beyond the “wink-wink, nudge-nudge” wording of the press releases and guidance letters and look to the substance of what was being communicated. That is, if you do business with the NRA we will consider it a reputational risk and make it hard for you to do any business in New York State.

The second argument in the amicus brief is that Cuomo and the other defendants misstated the requirements for a First Amendment claim. The ACLU says the requirements to make a First Amendment claim are rather straightforward and the NRA met the standard. However, the defendants (Cuomo and company) have tried to add some “non-existent requirements on to the test.” The brief then takes these apart one after another and finds they have no merit. They conclude that the NRA’s lawsuit should not be dismissed and that the case should go forward.

While I don’t agree with the ACLU on a lot of things and certainly not their incorrect interpretation of the Second Amendment, I do applaud their efforts in both California and New York State. It isn the latter case where I think they’ve really stepped up in their protection of constitutional rights.

Injunction Sought In California “Assault Weapon” Registration Lawsuit

As I reported about a month ago, a coalition of California gun rights groups, the SAF, and individual plaintiffs sued Attorney General Xavier Becerra (D-CA) and the California DOJ over their computer system failures which made timely registration of “assault weapons” impossible. This coalition has now added four more plaintiffs in an amended complaint and is moving for a preliminary injunction.

More details are in the release sent out this afternoon. You would think that in California of all places that you could find competent IT professionals who could get a registration system not to crash. I guess not.


BREAKING: Gun Owners, Civil Rights Groups Seek Injunction in California “Assault Weapon” Lawsuit

California Attorney General Xavier Becerra and his DOJ botched
the “assault weapon” registration program, putting thousands of gun
owners at risk of felony charges. Gun owners and civil rights advocates
are crying foul – and taking them to court.



SACRAMENTO, CA
(August 15, 2018) — Attorneys for seven California gun owners and four
Second Amendment advocacy organizations announced today that they have
filed an amended complaint and a new motion seeking a preliminary injunction in the civil rights lawsuit Sharp, et al. v. Attorney General Xavier Becerra, et al. over
the California Department of Justice’s failures surrounding the ‘bullet
button assault weapon’ registration program. A copy of the court
filings can be viewed or downloaded online at https://www.firearmspolicy.org/sharp

The amended complaint added as plaintiffs four additional gun owners
who were denied their rights by the DOJ, and also added the DOJ’s Chief
of the California Justice Information Services Division, Joe Dominic, as
a defendant. The motion seeks to enjoin sections of the Penal Code
relating to so-called “assault weapons,” including provisions that
subject the possession or transportation of such firearms to serious
criminal liability, including potential felony imprisonment and property
seizure, “throughout the pendency of this case, or until” the
plaintiffs and gun owners like them “have had a reasonable opportunity,
as determined by the Court, to register the qualifying firearms through a
functional registration system.” 

The plaintiffs argue that the DOJ had a legal duty to provide a
functional registration system throughout the registration period, but
that they were unable to exercise their own rights and legal duties “due
to the Defendants’ actions and failures, including but not limited to
the inaccessibility, defects, and/or non-functionality of the DOJ’s
CFARS-based registration system.” Because of that, the plaintiffs argue,
the State violated their civil rights protected under the state and
federal constitutions and denied them their statutory right to register
their firearms to avail themselves of legal protections against harsh
criminal laws. 

“[As we argue in our motion], this is about the injustice of forcing
people to comply with a law, and then depriving them of the means to do
so,” said attorney George Lee, lead counsel on the case. “It is simply
unconscionable that the Attorney General would even think about
enforcing a law where his Department’s own failures led to many people’s
inability to register their firearms in the first place.” 

In a declaration filed
with the court, the plaintiffs’ technical expert said that “it is very
clear” the problems experienced by the plaintiffs and others across the
state “were caused by either the DOJ’s CFARS servers being overloaded
and/or possibly by one of the State of California datacenters itself
being unavailable due to network routing or overload issues.” 

“This is fundamentally a simple lawsuit about a troubling issue.
Attorney General Becerra and his DOJ had one job to do: Provide a
functional system for gun owners to use in registering their eligible
firearms. But instead of doing their jobs, they created a huge new mess
for law enforcement and put innocent people and lawfully-owned property
at serious risk,” explained Firearms Policy Coalition President Brandon
Combs. 

“This unjust California government-created problem must be stopped
immediately,” commented Second Amendment Foundation Founder and
Executive Vice President, Alan Gottlieb. “Gun owners should not be put
at risk due to state regulatory incompetence.” 

“The bottom line is that California cannot have it both ways. If the
state is going to require registration of firearms, it cannot make that
process illusory and set people up for confiscation of their property,”
said Gene Hoffman, chairman of The Calguns Foundation. “Here, Becerra
and DOJ failed to perform their duties, failed gun owners, failed the
Legislature and Governor Brown, and failed the people of the State of
California.” 

Elaborating on the case, Combs explained, “Because of Becerra’s and
DOJ’s disastrous, incompetent, and possibly malicious handling of one
simple task, now thousands of gun owners are at risk of having their
guns seized or destroyed, or going to jail, simply for driving to the
gun range with a firearm that they legally acquired years ago.” 

“It is beyond clear that Attorney General Becerra is so distracted by
federal issues and President Trump that he’s completely forgotten to
fairly and properly enforce the laws of his own state – and to protect
the civil rights of innocent people first and foremost,” Combs said. 

“These plaintiffs and others like them should not have to face a
district attorney or jury in a criminal trial because Attorney General
Becerra and DOJ set them up from day one,” said Jonathan Jensen,
vice-president of Firearms Policy Foundation. 

The civil rights lawsuit is supported by The Calguns Foundation
(CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition
(FPC), and Firearms Policy Foundation (FPF). The plaintiffs are
represented by attorneys George M. Lee and Douglas Applegate of San
Francisco-based Seiler Epstein Ziegler & Applegate LLP, as well as
Raymond M. DiGuiseppe, a former California deputy attorney general and
prosecutor. 

Californians who tried to register their firearms as “assault
weapons” before July 1 but were unable to, or who suffered a privacy
breach at DOJ, should contact the organizations’ Legal Action Hotline
immediately at https://www.firearmspolicy.org/hotline or by telephone at 855-252-4510. 

Firearms Policy Coalition (www.firearmspolicy.org)
is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to
defend the Constitution of the United States, especially the
fundamental, individual Second Amendment right to keep and bear arms,
through advocacy, legal action, education, and outreach. 

Firearms Policy Foundation (www.firearmsfoundation.org)
is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to
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. 

The Calguns Foundation (www.calgunsfoundation.org)
is a 501(c)3 non-profit organization that serves its members,
supporters, and the public through educational, cultural, and judicial
efforts to advance Second Amendment and related civil rights. 

Second Amendment Foundation (www.saf.org)
is the nation’s oldest and largest tax-exempt education, research,
publishing and legal action group focusing on the Constitutional right
and heritage to privately own and possess firearms. Founded in 1974, The
Foundation has grown to more than 650,000 members and supporters and
conducts many programs designed to better inform the public about the
consequences of gun control.

California Sued By Coalition Of Gun Rights Groups Over AWB Registration Disasters

The Second Amendment Foundation, the Calguns Foundation, the Firearms Policy Coalition, and the Firearms Policy Foundation have come together to sue the California Department of Justice, Attorney General Xavier Becerra, and the head of the California Bureau of Firearms. Their complaint, filed in Shasta County Superior Court, is a constitutional challenge to the bullet button registration system and a writ of mandamus requiring the state to allow people to register as required under state law. That last bit might sound confusing but people had until July 1st to register their bullet buttons. The only problem is that many people were not able to do so because the system crashed. It’s a damned if you do and damned if you don’t situation.

From their joint release:

The lawsuit argues that DOJ’s “bullet-button assault weapon” registration system was defective, often “crashing” completely, and the various failures prevented many gun owners from complying with the laws—potentially turning people into felons overnight.

SACRAMENTO, CA (July 11, 2018) — Today, attorneys for three gun owners and four civil rights organizations filed a new lawsuit and petition for writ of mandate that claims California Attorney General Xavier Becerra and his Department of Justice (DOJ) violated their civil rights protected under the state and federal constitutions. A copy of the complaint can be viewed or downloaded at https://www.firearmspolicy.org/sharp.

The lawsuit, captioned Harry Sharp, et al. v. California Attorney General Xavier Becerra, et al., is supported by The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), and Firearms Policy Foundation (FPF). Named as defendants are California Attorney General Xavier Becerra, Acting Chief of the DOJ Bureau of Firearms, Brent E. Orick, and the California Department of Justice itself. The plaintiffs are represented in the case by attorneys George M. Lee and Douglas Applegate, as well as Raymond M. DiGuiseppe, a former California deputy attorney general and prosecutor.

“Many people, including our clients, did everything they could to comply with the law and avoid criminal liability,” commented Lee. “They used updated web browsers, hardware, different devices, and even did internet speed tests to make sure it wasn’t a problem on their end. The DOJ’s crashed system is a reflection of their cascading failures to build a system and allow people to register their guns before July 1 if that’s what they wanted to do.”

The complaint says the plaintiffs “seek an un-extraordinary result, compelled by the basic tenets of due process: That they simply be allowed to register their eligible firearms and comply with the law, and that the Attorney General, the DOJ, and their officers and agents similarly comply with the law by allowing such registrations and ensuring they are properly and timely processed through a functioning online database as they have been required by statute to do.”

Under California’s voluminous gun control laws, someone merely transporting an unregistered “assault weapon” to the shooting range – even if one believes it was legal and registered under other DOJ systems, like DROS – “is guilty of a felony” and possibly subject to a prison sentence of “four, six, or eight years.” Other crimes can be added on to that, including common separate charges like possession and manufacturing.

“Attorney General Xavier Becerra seems to care about everything but the constitution, the rule of law, and law-abiding California gun owners,” said FPC President Brandon Combs. “If Becerra spent as much time doing his job as he does talking about his pet crusades against the federal government, hundreds of thousands of Californians would not be in legal jeopardy right now.”

“We’re suing because California DOJ’s Firearms Application Reporting System (CFARS) broke down during the deadline week for people to register their firearms in accordance with new state laws,” said SAF founder and Executive Vice President Alan M. Gottlieb. “For a whole week the system was largely inaccessible, so people who wanted to comply with the law simply couldn’t and now they face becoming criminals because they couldn’t do what the law requires.”

“Predictably the state of California wants to take guns away from the law abiding. In this instance they couldn’t even build a working system to respect gun owners’ rights,” explained CGF Chairman Gene Hoffman. “We simply want to allow those who want to comply with the law to have more time with a working registration system.”

“It’s like a bad version of ‘Catch-22’,” Gottlieb observed. “The government required registration by the deadline, but the online registration failed and people couldn’t register. They’re required to obey the law, but the system broke down, making it impossible to obey the law. Now these people face the possibility of being prosecuted. We simply cannot abide that kind of incompetence.”

“Once again, the DOJ and Attorney General Becerra unlawfully and unconstitutionally moved the goal posts on peaceful, law-abiding gun owners,” observed FPF Vice President Jonathan Jensen. “Their failures should not result in people going to prison and losing their property.”

Combs noted that the case is not an endorsement of firearm registration, which carries its own risks, as many news reports have shown.

“Gun owners had a right to decide how they would approach these serious legal issues,” explained Combs. “Attorney General Becerra and his DOJ denied gun owners the opportunity to exercise their rights and make an informed choice, forcing them into the sights of fascist, hyper-aggressive special agents who kick in doors and put gun owners in jail. That’s completely unacceptable and totally deplorable.”

Californians who tried to register their firearms as “assault weapons” before July 1 but were unable to should contact the Legal Action Hotline immediately at https://www.firearmspolicy.org/hotline or by telephone at 855-252-4510.

California AG Becerra And Cal DOJ Served With Petition By Firearms Policy Coalition

I’ll say right off the bat that I don’t understand policies and procedures in California. While it is a beautiful state with bad roads and even worse gun laws, their legal and administrative procedures are a bit of a mystery to me. When I received the notice below from the Firearms Policy Coalition, I wondered why a petition with signatures was being served on the attorney general. After I started to read the petition – written by a North Carolina lawyer no less! – I started to understand that citizens and groups in California use petitions to put government officials on legal notice about their action. In this case, it has to do with underground and unpublished firearms regulations that the California Court of Appeals had enjoined AG Xavier Becerra (D-CA) from enforcing.

You can read the release along with the link to the petition below:

SACRAMENTO, CA (May 23, 2018) — Today, civil rights
advocates at Firearms Policy Coalition have
issued the following statement:
 
Recently, Attorney General Becerra said, “Here in
California, we respect the Constitution and follow the law.”
But neither is true. 
 
This morning, our Legislative Advocate, Craig DeLuz, served
on California Attorney General Xavier Becerra and his
Department of Justice a petition challenging their illegal
underground regulation
. This petition was also sent to
the Office of Administrative Law, the state’s regulatory
watchdog agency.
 
In spite of an unanimously-decided Court of Appeal
published opinion issued in February, and a permanent
injunction issued weeks ago, Becerra’s DOJ continues to
promulgate and enforce that same illegal underground
regulation. Their stunning and troubling disregard for lawful
court orders is contrary to the rule of law. 
 
Becerra’s weaponized Department of Justice regularly
attacks the fundamental rights and property of law-abiding gun
owners in law enforcement actions, their lobbying of the
Legislature, and litigation. 
 
Indeed, Becerra and his army of anti-gun DOJ lawyers and
special agents ignore the text of the Constitution and
California’s statutes, forcing their anti-gun agenda on
millions of people—the law and civil rights be damned.
 
Becerra also recently said that, “in California, we believe
our communities are safest when we have trust between our law
enforcement & the communities they serve.” But such trust
is impossible, and undeserved, when the state’s top law
enforcement officer shows a total lack of regard for the
People, their rights, and the laws he has a duty to follow and
enforce fairly. 
 
If Attorney General Becerra and the Department of Justice
want to build trust and be respected, they should start by
being trust-worthy and giving respect to law-abiding gun
owners and their fundamental, individual right to keep and
bear arms.

The Supreme Court Continues To Be A Doormat

In the usual course of events, when the Supreme Court issues definitive rulings on an area of constitutional law, it fully expects lower courts to abide by their ruling. If these lower courts don’t, they get slapped down for their impertinence. However, when it comes to the Second Amendment, the Supreme Court in the post-McDonald era has allowed lower courts to treat it like a doormat. Their submissive posture in the face of decisions coming out of especially the 4th and 9th Circuits that ignore Heller and McDonald is, to be blunt, nauseating. The only justice that seems to have a spine and recognizes the danger to the powers of the court is Justice Clarence Thomas.

I write this as a prelude to the announcement today that the Supreme Court decided to deny certiorari in Silvester et al v. Becerra et al. It was on appeal from the 9th Circuit which found the 10-day waiting period for those with a California CCW, a California Certificate of Eligibility, or already had firearms registered to them had a valid government purpose. While supposedly deciding it on intermediate scrutiny, it was in fact decided on a rational basis. The problem with that is that rational basis cannot be used when it comes to an enumerated right. This case was originally a win in the District Court but reversed by 9th Circuit.

Justice Thomas noted in his 14 page dissent that:

This deferential analysis was indistinguishable from rational-
basis review. And it is symptomatic of the lower courts’
general failure to afford the Second Amendment the re-
spect due an enumerated constitutional right.

If a lower court treated another right so cavalierly, I
have little doubt that this Court would intervene. But as
evidenced by our continued inaction in this area, the
Second Amendment is a disfavored right in this Court. Because I do not believe we should be in the business of
choosing which constitutional rights are “really worth
insisting upon,”
Heller, supra, at 634, I would have granted
certiorari in this case.

He concluded his dissent by saying:

Nearly eight years ago, this Court declared that the
Second Amendment is not a “second-class right, subject to
an entirely different body of rules than the other Bill of

Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). By refusing to review decisions like the one

below, we undermine that declaration. Because I still
believe that the Second Amendment cannot be “singled out
for special—and specially unfavorable—treatment,” id., at
778–779 (majority opinion), I respectfully dissent from the
denial of certiorari.

I don’t know if any other justices voted to grant certiori but I do know that there weren’t the required four votes. Decisions like that go to illustrate just how much we miss the late Justice Scalia and his leadership.

The Calguns Foundation which supported this lawsuit along with the Second Amendment Foundation issued the following statement:

WASHINGTON, D.C. (February 20, 2017)­­­­­­ — The Calguns Foundation has issued the following statement regarding the Supreme Court’s decision to not review a Ninth Circuit Court of Appeals decision that upheld California’s 10-day waiting period for existing gun owners who pass a background check:

We are disappointed, but not entirely surprised, that the Court has once again decided against taking up a Second Amendment challenge to plainly unconstitutional laws.

In his important 14-page dissent from the Court’s denial of certiorari, Justice Clarence Thomas detailed why the Ninth Circuit applied an improper “deferential analysis” that was “indistinguishable from rational-basis review,” showing “the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.”

We agree with Justice Thomas that the Ninth Circuit’s “double standard is apparent from other cases,” like one where it invalidated an Arizona law partly because it “delayed” women seeking an abortion, and another where it struck down a Washington county’s 5-day waiting period for adult dancing licenses because it “unreasonably prevent[ed] a dancer from exercising first amendment rights while an application [was] pending.”

As Justice Thomas explained, the “Ninth Circuit would not have done this for any other constitutional right, and it could not have done this unless it was applying rational-basis review.” He is, of course, correct—just as we have maintained throughout the course of this appeal and in our briefing to the Supreme Court. But in the Ninth Circuit, it appears, “rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in the text.”

From the bottom of our hearts, we wish to thank every single supporter who generously helped us litigate this long-running case through trial and up to the Supreme Court. We also want to thank amici Cato Institute, Crime Prevention Research Center, Firearms Policy Coalition, Madison Society Foundation, Gun Owners of California, and Firearms Policy Foundation for their excellent briefs in support of our case and the cause of individual liberty.

The Calguns Foundation will continue to challenge unconstitutional gun control laws until the Second Amendment takes its place as a peer among fundamental rights, like those in the First Amendment, rather than the “constitutional orphan” and “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees” that it is in the Ninth Circuit today.

A Nice Win For Gun Rights In A California Appeals Court

Prior to a letter sent out by the California Department of Justice in 2014, holders of Curios and Relics Federal Firearm Licenses who also had a certificate of eligibility were exempt from the one handgun a month rule. That changed when the DOJ’s Bureau of Firearms issued a letter to all dealers in California that said, in effect, that C&R FFLs would not exempt holders from the one handgun a month rule with regards to modern handguns. The Calguns Foundation and Cal-FFL brought suit in 2014 challenging this as a violation of the state’s Adminstrative Procedures Act, contradicted the plain language of Sec. 27535, and ignored the legislative history of the one handgun a month law. The case sought a preliminary injunction in California Superior Court.

The trial court found that the Bureau of Firearm’s interpretation of the law was “the only legally tenable interpretation of Sec. 27535” and granted the DOJ’s motion of summary judgement. The case was appealed to the California Court of Appeal, 3rd Appellate District which today overturned the trial court.

From the court’s opinion:

On appeal, plaintiffs argue the interpretation DOJ announced in 2014 is void
because (1) it is inconsistent with section 27535 and (2) it was not adopted in compliance
with the APA. We agree with plaintiffs and address their arguments in reverse order.
Regarding their second argument, we conclude DOJ’s policy is not exempt from being
promulgated under the APA because it does not embody “the only legally tenable
interpretation” of the statute. (Gov. Code, § 11340.9, subd. (f).) Having decided that
DOJ’s 2014 interpretation of section 27535 is void for failure to comply with the APA,
we resolve any ambiguity regarding the proper construction of the statute and construe it

as allowing individuals with the designated federal license, and certificate of eligibility,
to purchase more than one handgun within 30 days regardless of the type of handgun
being purchased. In doing so, we agree with plaintiffs’ first argument as well. We
reverse and remand for further proceedings consistent with this opinion.

Calguns and Cal-FFL released this statement on their win today:

SACRAMENTO, CA (February 8, 2018)­­­­­­ – In a published decision issued today, California’s 3rd District Court of Appeal has issued an important new ruling striking down an illegal California Department of Justice (DOJ) gun control enforcement policy on multiple grounds. A copy of the Court of Appeal’s decision can be viewed at www.calgunsfoundation.org/doe.

The lawsuit, filed in 2014, was brought by two individuals after the DOJ’s Bureau of Firearms sent a letter notifying firearms dealers in the state of a new enforcement policy that prevents Californians who hold both a federal firearms license and a state Certificate of Eligibility, or “COE”, from purchasing more than one handgun in any 30-day period. After nearly two years of litigation, and in spite of both the requirements of the State’s Administrative Procedure Act (APA) and legal precedents on how to interpret statutes, the Sacramento Superior Court upheld the DOJ’s policy. But the Court of Appeal ultimately found that the policy was illegal, agreeing with the plaintiffs on both counts.

“This decision stands for the proposition that Attorney General Becerra and his Department of Justice are not above the law,” explained Brandon Combs, executive director for The Calguns Foundation. “They can’t simply make up the law as they go, without following the rules or having a legal basis in the statutes. The DOJ fabricated and enforced an illegal policy and we put an end to it with this case.”

Combs added that the decision is important for other issues as well, especially because it is citable as precedent. “Today’s decision is perhaps even more important because of the state’s new ammunition and assault weapon laws. Attorney General Becerra has been doing similar things in other areas of state law, and we are eager to show that, like their illegal policy here, those also must be enjoined and struck down.”

Plaintiffs’ attorney Bradley Benbrook of the Sacramento-based Benbrook Law Group hailed the decision. “We are gratified that the court affirmed the important principle that the State can’t take shortcuts when it tries to regulate citizens,” commented Benbrook. “It has to follow the rules.”

Doe, et al. v. Attorney Genera Xavier Becerra, et al. was supported by two California-based civil rights advocacy organizations: The Calguns Foundation, which focuses on legal efforts to protect individuals’ gun rights, and the California Association of Federal Firearms Licensees, the state’s firearms industry group.

The Calguns Foundation is participating in a lawsuit challenging the DOJ’s “bullet button assault weapons” regulations on similar grounds. More information about that case can be found at http://bit.ly/cgf-holt.

While the golden age of cheap surplus weapons may be over, the Curios and Relics FFL is still valuable. The rule of the Court of Appeals today in California affirms that.