Doe v. Harris Archives -

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.

Preliminary Injunction Sought In Doe V. Harris

The attorneys for the plaintiffs in Doe v. Harris have filed for a preliminary injunction to prevent the California Department of Justice from enforcing its new policy regarding multiple modern handgun purchases by Curios & Relics FFL holders. This lawsuit is being backed by the CalGuns Foundation and the California Association of Federal Firearms Licensees (CAL-FFL).

The motion for the injunction looks at both the legislative and administrative history of California Penal Code Sec. 27535. This law prevents most Californians from purchasing more than one handgun within a 30-day period of time. However, there were a number of exemptions to this restriction written into the law. Included in the exemption are those people who hold both a Curios and Relics FFL and who hold a California DOJ issued Certificate of Eligibility. The legislative and administrative history makes clear that the exemption provided for this class of people extends beyond the purchase of C&R handguns to all handguns including modern handguns.

On May 8th of this year, the longstanding policy was changed when the DOJ Bureau of Firearms sent a letter to all FFLs in California stating that the exemption for C&R FFL holders only applied to handguns deemed curios or relics under Federal law. This change is alleged to be in violation of the California Administrative Procedures Act as no notices nor hearings were held before the change was implemented.

The declarations in support of the motion are interesting reading. This is especially true of the one submitted by Dr. Ken Lunde as it includes emails back and forth in 2005 concerning the interpretation of the law with regard to the exemption. Of particular note is the attached Exhibit 3 which is an email from Deputy AG Alison Merrilees noting that it was the Bureau of Firearms long-standing policy to exempt “all firearms purchases by C&R licensees from the provisions of 12072(a)(9)(A) [the “one gun a month” limit] , even if the firearms are not curios and relics.” This exhibit proves the importance of keeping all emails so as to provide a paper trail when dealing with bureaucrats and firearms.

The hearing on the motion has been set for July 8th.

Further comments on the motion by Gene Hoffman of CalGuns and Brandon Combs of CAL-FFL can be read in the release below:

(Sacramento, CA – June 11, 2014) – Two California gun owners, Paul Gladden and “Alvin Doe”, have filed for an injunction against defendants Attorney General Kamala Harris and Department of Justice Bureau of Firearms chief Stephen Lindley seeking to prevent them from enforcing a policy that denies the sale of handguns to licensed and background-checked Californians.

On May 8, 2014, 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 a 30 day period. A COE requires a full fingerprint-based background check and state monitoring of the certificate holder’s criminal record.

According to gun rights groups The Calguns Foundation and California Association of Federal Firearms Licensees, the lawsuit’s backers, the new policy represents a 180-degree departure from the DOJ’s prior policy of allowing such purchases. Reinforcing the groups’ allegation that the gun policy has shifted under Attorney General Harris is a statement by former DOJ Firearms Division Deputy Attorney General Alison Merrilees. In a 2005 email, Ms. Merrilees said that “it is [DOJ’s] long-standing policy” to exempt “all firearms purchases” made by licensees such as plaintiffs from the “one gun per month” limit, “even if the firearms are not curios and relics.” Ms. Merrilees is now deputy chief of staff to Assemblywoman Nancy Skinner, who most recently authored AB 1014, a bill that would allow “anyone” to ask a court for a “Gun Violence Restraining Order” and “firearm seizure warrant.”

In the latest court filing, the lawsuit’s plaintiffs say that they are “likely to prevail on the merits” of the lawsuit and “seek a preliminary injunction to block the DOJ from continuing to enforce its erroneous interpretation of state law.” The brief also declares that “[i]t is this Court’s obligation to strike [the DOJ’s policy] down.”

In addition to the gun owners’ argument that the DOJ is wrongly interpreting the law, they say that the policy “is also void because the DOJ failed to comply with the Administrative Procedure Act (“APA”) before its adoption.”

The APA is “designed to provide the public with a meaningful opportunity to participate in the adoption of state regulations and to ensure that regulations are clear, necessary and legally valid,” according to the California Department of Administrative Law.

Gene Hoffman, chairman of CGF, explained that “the law is clear and unambiguous: properly-licensed and background checked Californians like Paul Gladden are entitled to purchase as many handguns as they like within any 30-day period.”

“Ms. Harris is improperly substituting her own anti-gun rights policy preferences for black-letter law,” he went on to note.

CAL-FFL President Brandon Combs mirrored Hoffman’s concerns.

“Not only is her policy way off target, Attorney General Harris is setting a tremendously poor example as the state’s highest law enforcement officer,” he said. “Government officials should never act with such blatant disregard for the law and civil rights.”

The motion for preliminary injunction is expected to be heard by Sacramento Superior Court Judge David I. Brown (Department 53) on July 8 at the 800 9th Street courthouse in Sacramento. More information about the case, including all case filings, can be viewed or downloaded at http://www.calgunsfoundation.org/litigation/doe-v-harris/.