Tuesday, November 11, 2014

California Gun Shops Suing Over First Amendment Violations

Four gun shops in California are suing California Attorney General Kamala Harris over a state law that prevents them from advertising handguns for sale. Penal Code Section 26820 which dates back to 1923 prohibits dealers from saying they have handguns for sale on their buildings. This includes even having a picture or drawing of a handgun posted where it can be seen from the street.

The suit, Tracy Rifle and Pistol et al v. Kamala Harris et al, alleges that the California law is a violation of the First Amendment rights of the gun shops and their owners. The complaint notes that handguns are lawful items and that the "First Amendment protects the dissemination of truthful, nonmisleading commercial information about lawful products".

The attorneys for the plaintiffs are Stephen Duvernay of the Benbrook Law Group and Prof. Eugene Volokh of the UCLA School of Law. Prof. Volokh also runs the well-known legal blog The Volokh Conspiracy.

The lawsuit is being supported by the California Association of FFLs, the CalGuns Foundation, and the Second Amendment Foundation.

The release about the case from the Firearm Policy Coalition is below:
November 10, 2014 (SACRAMENTO, CA) -- Four California gun dealers are filing a federal lawsuit today against California Attorney General Kamala Harris over what they say is a violation of their First Amendment civil rights. Stephen Lindley, who heads the DOJ’s Bureau of Firearms, is named as a co-defendant in the case.

Tracy Rifle and Pistol, a firearm retailer and indoor shooting range located in San Joaquin County, was recently cited by Harris’ Department of Justice for having pictures of three handguns in window signs that can be seen outside the store. California Penal Code section 26820, first enacted in 1923, bans gun stores from putting up signs advertising the sale of handguns -- but not shotguns or rifles. An adjacent window image at Tracy Rifle, which shows a photograph of an AR-15 rifle, was not cited by the DOJ.

“I run one of the most heavily regulated and inspected businesses in existence, but it’s still illegal for me to show customers that I sell handguns until after they walk in the door,” explained Michael Baryla, the owner of Tracy Rifle & Pistol. “That’s about as silly a law as you could imagine, even here in California.”

While California gun dealers cannot display even the word ‘handgun’ at their stores to passersby, adjacent businesses and anti-gun protesters are not prohibited from doing as much. The court filings argue that the law operates as unconstitutional speaker, content, and viewpoint-based discrimination, in addition to having other legal problems.

Similar statutes banning handgun displays can be found in places like Pennsylvania, Texas, and Washington, D.C., but the California Department of Justice appears to be the only state agency enforcing provisions like the challenged ban.

The lawsuit claims that this restriction violates gun stores’ First Amendment rights, by severely restricting truthful, non-misleading commercial speech. Lead counsel Bradley Benbrook said about the lawsuit, “The First Amendment prevents the government from telling businesses it disfavors that they can't engage in truthful advertising. This case follows a long line of Supreme Court cases protecting such disfavored businesses from that type of censorship.”

Though the case doesn’t claim a Second Amendment violation, plaintiffs do argue that commercial advertisement of constitutionally protected products and services -- whether abortion, contraceptives, or guns -- is especially clearly protected under the First Amendment.

The plaintiffs are also represented by Benbrook's colleague Stephen Duvernay and Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments. Before joining the UCLA faculty 20 years ago, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O'Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.

California Association of Federal Firearms Licensees, the state’s firearm industry association, joined gun rights groups The Calguns Foundation and Second Amendment Foundation in support of the case.

The lawsuit’s other plaintiffs include Sacramento Black Rifle of Rocklin, Ten Percent Firearms of Taft, and PRK Arms, a Fresno-based dealer that operates a chain of three stores in California’s Central San Joaquin Valley, as well as business owners Robert Adams, Wesley Morris, and Jeffrey Mullen, respectively.

A copy of the complaint can be viewed at http://www.calgunsfoundation.org/litigation/trap-v-harris.

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