Friday, November 21, 2014

Sorry Kamala, No Stay For You

California Attorney General Kamala Harris had sought a stay of Judge Anthony Ishii's decision in Sylvester v. Harris. That was the case that challenged California's 10-day waiting period as it applied to certain individuals. Her argument in a nutshell was "Hey, this is gonna cost us some bucks, we need to hire some folks to comply, I don't see how we can comply within in a year, and you know we really have more important stuff to do."

Telling a judge you have more important stuff to do than to comply with his order really isn't the smartest thing in the world to do as Kamala and her minions found out. Judge Ishii, said in his best judge-speak, "dude, don't give me that sh*@".
The problem is that Defendant believes that other projects are deserving of greater priority. See id. There is no description of what these critical projects are or when the deadlines might be, nor is there an explanation of why outside contractors cannot be utilized for some of those projects, nor is there an explanation of why computer personnel from different departments or agencies cannot be utilized. A bench trial has concluded, and a law that is actively being enforced has been found to be unconstitutional. The Court does not know how Defendant or the BOF prioritizes projects, but dealing with an unconstitutional law should be towards the top of the list.
 The bottom line is that Judge Ishii is not going to stay his decision nor is he going to give the California Department of Justice and its Bureau of Firearms more time than the 6 months he already gave them.

More on the case from the CalGuns Foundation below:
ROSEVILLE, CA / November 20, 2014 – California’s laws requiring gun purchasers to wait at least ten days before taking possession of their lawfully-acquired firearms are one step closer to being history, reports The Calguns Foundation, a gun rights group headquartered in the Sacramento suburb of Roseville.

In a new order released today, Federal District Court Judge Anthony W. Ishii rejected two requests made by California Attorney General Kamala Harris in the dispute, captioned Silvester, et al. v. Harris, that was filed in Fresno nearly three years ago.

“Defendant [Harris] made various arguments to justify the waiting period, but the evidence did not actually support a 10-day waiting period,” today’s order noted. “The [state’s] arguments were more in line with rational basis scrutiny”– a weak form of judicial review that was expressly rejected in the U.S. Supreme Court’s landmark District of Columbia v. Heller decision – “than with intermediate scrutiny,” which forces governments to prove how a law impinging on a constitutional right serves an important purpose.

In the case of the waiting period laws, Attorney General Harris couldn’t.

“The Court notes that Defendant has not identified any error of law or any erroneous factual finding,” Judge Ishii explained in his denial of Harris’ requests. “The Court stands by its analysis and its findings that the waiting period laws violate the Second Amendment” as applied to the three classes of individuals that, plaintiffs successfully argued, shouldn’t be subject to the laws.

Harris had moved for a modification of the original August court order – which gave the state Department of Justice six months to take whatever steps were necessary to bring the agency’s policies in line with civil rights standards – to allow it a year to comply with the ruling, and also to delay the court’s enforcement of the order entirely until the appeals process had concluded. Both motions were denied.

“A bench trial has concluded, and a law that is actively being enforced has been found to be unconstitutional. The Court does not know how Defendant or the BOF prioritizes projects, but dealing with an unconstitutional law should be towards the top of the list.”

“We’re pleased that Judge Ishii saw right through the Attorney General’s acrimonious delay tactics and properly denied her the opportunity to infringe our fundamental Second Amendment rights even more than she already has,” said Brandon Combs, the executive director of The Calguns Foundation and a plaintiff in the case. “Today’s court order bodes well for justice and, especially, for law-abiding gun purchasers.”

Harris, who has already filed a notice with the district court that she intends to take the loss to the Ninth Circuit Court of Appeals, will presumably argue against the court’s holding that “the 10-day waiting period violate[s] the Second Amendment as applied to three classes of individuals,” like those similarly situated to individual plaintiffs Jeff Silvester and Combs.

Notably, the waiting period requirement was first passed in the same 1923 legislative act as California’s “may-issue” concealed carry laws and a ban on the public display of handguns by gun dealers. Both of those regulations are currently being challenged in federal lawsuits backed by The Calguns Foundation and the Second Amendment Foundation, who are institutional plaintiffs in the Silvester case. The Ninth Circuit is currently considering Yolo County Sheriff Ed Prieto’s request for rehearing of a decision that found his carry license policies violate the Second Amendment right to bear arms. Meanwhile, four gun dealers seeking to strike down the ban on commercial speech filed a motion for preliminary injunction in Sacramento’s federal district court on Monday, arguing the handgun display ban violates the First Amendment.


  1. Boy, Judge Ishii wrote a pretty righteous smackdown there, didn't he?

    That's encouraging. I'd love to see California become a free state. Too many nice people once you get well out of the big cities.

    1. Lots of very nice people in the big cities also. Each of them, urban, suburban, and rural, have fundamental rights. We seek only to restore constitutional equity and equilibrium; the state's residents can choose how "free" they wish to live from there.