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/.