Federal Suits Against California AB962 Dismissed

Today, U.S. District Court Judge Morrison England dismissed both suits brought against the State of California challenging their restrictions on handgun ammunition that go into effect on February 1, 2011. In both suits, he ruled that the claims failed on ripeness grounds. In virtually identical opinions, Judge England said:

Plaintiffs’ claims are not ripe for review. They cannot demonstrate any current harm or a sufficiently immediate concern. No one can yet anticipate how California’s bill will affect Plaintiffs and/or their business. No case or controversy exists at this time. Therefore, Plaintiffs’ case is DISMISSED without prejudice, and Defendant’s Motion to Dismiss … is DENIED as moot.

AB 962, the Anti-Gang Neighborhood Protection Act of 2009, is a California law that bans anything other than face-to-face transactions in handgun ammunition starting on February 1st.

The first suit brought against this law was State Ammunition et al v. Lindley which challenged the law on the grounds that it was impermissably vague, that it interfered with interstate commerce, and that it violated the Equal Protection Clause of the 14th Amendment. A version of this lawsuit had been brought prior to the McDonald decision. That version was voluntarily dismissed and then refiled in July to take advantage of the McDonald decision.

The second suit, Owner-Operators Independent Drivers Association et al v. Lindley, also alleged that AB 962 interfered with interstate commerce. However, they took a fairly innovative approach when they argued that the law violated the Federal Aviation Administration Authorization Act, which prohibits states and local municipalities from interfering with carriers’ rates, routes, or services.

A third suit, Sheriff Clay Parker et al v. State of California, was filed in state court and is not effected by Judge England’s orders.

In his orders, Judge England noted that ripeness claims are a question of timing. He cited Supreme Court precedent regarding ripeness:

The Supreme Court has consistently held that the ripeness doctrine aims “to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568, 580 (1985) (citing Abbott Lab. v. Gardner, 387 U.S. 136, 148 (1967)).

He goes on to add that while the Declaratory Judgment Act does grant Federal courts the power to “declare rights and other legal relationships” in cases within its jurisdiction, the case must be constitutionally ripe. That is, “that is the facts demonstrate there is a controversy ‘of sufficient immediacy and reality.’ ” He concluded that it was too early to judge the impact of AB 962 and therefore dismissed the cases.

I would anticipate that after February 1, 2011 when the law becomes effective, both of these cases will be reintroduced in Federal court challenging AB 962. Until then, it is up to the state courts to deal with this matter.

The order dismissing State Ammunition et al v. Lindley can be found here and the order dismissing OOIDA et al v. Lindley can be found here.

UPDATE: Dave Hardy of Arms and the Law blog had this to say about the ruling in an e-mail he gave me permission to share:

Rather strange ruling. Ripeness doesn’t key upon “is the law presently applicable?” It’s more along the lines of whether the rule is presently ambiguous and delay might clarify the issues by,for example, letting the agency administering do some interpretation of it, or giving the court a more concrete setting. Where the statute is clear, there’s no difference between deciding its constitutionality now and doing so in a couple of months. The very brevity of the court’s order is suggestive … while I like short rulings, the present fad is to hand down 20-30 page opinions on almost any ruling. List facts in excruciating detail, summarize everyone’s arguments, devote a few pages to the standards for a motion to dismiss which everyone knows and are probably cut and pasted from a stock ruling, and then after 10-15 pages, finally explain the decision.

Then there’s the practical end — appeal an error and spend a year and a beaucoup of money and time, or just re-file in two months

State Ammunition et al v. Lindley et al – Another California Gun Case

State Ammunition, a California-based on-line ammo retailer, is the lead plaintiff in a lawsuit brought in U.S. District Court for the Eastern District of California seeking to overturn AB 962. This law, officially the Anti-Gang Neighborhood Protection Act of 2009 bans the sale of “handgun ammunition” in other than face-to-face transaction starting February 1, 2011. CRPA/NRA Legal Action Project is fighting this law in state court. This makes sure that the two cases cannot be consolidated.

A virtually identical lawsuit was filed by the plaintiffs in early June and then was voluntarily dismissed on July 16th. Of course, on June 28th, the U.S. Supreme Court found for Otis McDonald and the Second Amendment was applied to the states through incorporation. The new complaint has added the Second Amendment as one of the grounds for the complaint.

The other plaintiffs in this case are Jim Otten who owns a Minnesota-based on-line ammo retailer named a1ammo.com and Major Jim Russell, USMC (Ret)., a California resident, who is a disabled veteran. Major Russell is active in the Paralyzed Veterans of America as their Director of Shooting Sports.

What makes this case unique when compared to the rest of the post-McDonald litigation is that it makes the Commerce Clause the centerpiece of the complaint. While it does include the Equal Protection and Due Process Clauses of the 14th Amendment and the Second Amendment as part of the basis for the lawsuit, the complaint devotes most of its arguments to the Commerce Clause and AB 962’s interference with interstate commerce.

The lawsuit first attacks the definition of “handgun ammunition” as being impermissably vague. The law defines it as:

“Handgun ammunition” means ammunition principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person, as defined in subdivision (a) of Section 12001, notwithstanding that the ammunition may also be used in some rifles.

There are many calibers of ammunition that can be used in both handguns and rifles. For example, the ubiquitous .22LR rimfire can be used in both the Ruger 10/22 carbine and the Ruger MkIII pistol. Likewise, you have many common rifle cartridges that can be used in the Thompson/Center Contender pistol. As the complaint notes,

it forces individuals and businesses to guess what is meant by “handgun ammunition.” As a result, people engaging in constitutionally protected activity (interstate commerce), selling and buying constitutionally protected products (firearms and ammunition), are placed in the precarious position of not knowing whether or not the legal product they are buying is considered by someone somewhere buried deep in the bureaucracy of the State of California to be “handgun” ammunition or “rifle” ammunition.

Other provisions of AB 962 requires vendors to make sure that their employees are allowed under the law to sell ammunition and to make sure the recipient of the ammunition is allowed by law to buy. The former requires employers to know whether certain employees are ineligible to sell the ammo while not being authorized by law to conduct criminal background checks. As to the latter, there is no Brady Law forcing a NICS check of ammo purchasers. Furthermore, since the law forbids the sale to gang members, the vendor has no way know if the buyer is or is not a member of a criminal street gang. Unless one is immersed in the gang culture or is a law enforcement officer specializing in gangs, I would venture to say it is hard to tell a wannabe gang member from an up and coming rapper. Or vice-versa.

The meat of the argument against AB 962 is that it interferes with interstate commerce. By requiring a face-to-face transaction, California vendor and manufacturers cannot ship their product out of state. Conversely, out of state sellers and manufacturers cannot ship their handgun ammunition to buyers in California. It goes on to state that,

In addition to a ban on handgun ammunition sales in all but “face to face” transactions, AB962 includes an irrational, preempted definition of “ammunition” so expansive that out-of-state vendors will be unable to determine what is or isn’t legal and what actions are or are not criminal. As a result, out-of-state vendors will simply refuse to sell or ship to California residents. Likewise, the criminalization of the sale of ammunition to an ever-expanding impossible-to-ascertain list of prohibited purchasers will cumulatively interfere with and regulate channels of interstate commerce.

With regard to violations of the Second Amendment, the suit says,

AB962 further discriminates against individuals on the basis of whether or not they are employees of the government, exempting “Authorized law enforcement representatives of cities, counties, cities and counties, or state and federal governments for exclusive use by those government agencies” and “peace officers” from its provisions. The Second Amendment to the United States Constitution expresses fundamental and individual rights that cannot be reserved only to government employees. These rights are guaranteed to every citizen. To denying these rights to all but government employees, AB962 violates the Second Amendment. This disparate treatment is a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The entire complaint can be seen here.

I am not a lawyer (nor do I play one on television!) but I do think this complaint does make a strong prima facie case that AB 962 interferes with interstate commerce.