Sunday, December 23, 2018

Linton V. Becerra - Another Second Amendment Lawsuit Against California

Chad Linton and Paul McKinley Stewart had screwed up in their younger days, paid their debt to society, and went on to lead lives in California as good, productive citizens. More importantly to our discussion here, the relevant courts in both Washington State and Arizona had explicitly expunged their non-violent felony convictions and explicitly restored their rights to own, possess, and purchase firearms. They further underwent multiple background and fingerprint checks and Linton actually had purchased firearms in California in the past. However, that is not good enough for California now. When they each went to purchase firearms starting in 2015, they were turned down the California Department of Justice and its Bureau of Firearm based upon Cal. Pen. Code §§ 29800 and §§ 30305.

Messrs. Linton and Stewart along with institutional plaintiffs the Firearms Policy Foundation, the Firearms Policy Coalition, the Second Amendment Society, the Calguns Foundation, and the Madison Society Foundation filed suit in US District Court for the Northern District of California on Thursday, December 20th. The parties are represented by attorney George M. Lee of Seiler, Epstein, Ziegler & Applegate of San Francisco. They named California Attorney General Xavier Becerra (D-CA), Acting Chief of the Bureau of Firearms Martin Horan, and Deputy Attorney General Robert Wilson as defendants.

Mr. Linton was stationed at NAS Whidbey Island when he was stopped for a DUI and trying to elude police. He pled guilty and was sentenced to time served (7 days) and probation with the promise that his felony conviction would be downgraded to a misdemeanor if he completed his probation successfully which he did. He received a certificate of discharge stating that all of his civil rights were restored. Fast forward from 1987 to 2015. Mr. Linton attempted to buy a handgun but was denied by the State of California due to the prior felony. He hired an attorney in Washington State to reopen the proceedings, withdraw his guilty plea, and enter a not-guilty plea. The Superior Court in Washington State vacated his prior conviction, set aside his guilty plea, and restored his rights.
On April 18, 2016, the Superior Court of the State of Washington, Island County, further issued, upon Plaintiff’s petition, an Order Restoring Right to Possess Firearms pursuant to Revised Code of Washington (RCW) 9.41.040(4). A copy of this order is attached as Exhibit B. As part of that petition, and order, the court found that Plaintiff Linton was qualified, pursuant to RCW 9.41.040(4), to have the right to possess firearms restored to him, and accordingly, ordered “that Petitioner Chad Linton’s civil rights and right to possess firearms are FULLY RESTORED pursuant to RCW 9.41.040(4).” (Id.) The court further ordered the Washington State Patrol to transmit a copy of its Order to the Federal Bureau of Investigation.
When later in 2016 Linton attempted to purchase a rifle the California DOJ denied it and sent him a letter stating that he was ineligible due to being a felon. His California attorney made multiple requests to the California DOJ to clear up the matter and provided them with the Washington State court orders. Linton assumed the matter had been cleared up when he went to purchase a revolver and was again denied. Soon thereafter he was visited by agents of the California DOJ's Armed Prohibited Persons System enforcement project who seized all of his firearms including a family heirloom. Bear again in mind that he was not a prohibited person under either Washington State or Federal law. Indeed Deputy AG Robert Wilson went so far as to say that they would not honor the Washington State court's findings and that Mr. Linton try to get a presidential pardon as that is the only thing they would accept.

Mr. Stewart made similar successful efforts to get his record expunged by the State of Arizona. In 2016 the Yuma County Superior Court specifically sent aside his conviction and restored his firearm rights. The Arizona Department of Public Safety sent Stewart more documentation indicating the felony conviction had been set aside and his records had been corrected. Notwithstanding this, like Mr. Linton, he was denied when he sought to purchase a firearm.

Count One alleges the state has violated the plaintiffs' rights under the Second Amendment by denying them the right to possess firearms in their home for self-defense.
Notwithstanding the non-violent nature of those convictions, and the subsequent restoration of plaintiffs’ rights, the laws and Defendants’ policies, practices, and customs described herein, as applied to Individual Plaintiffs, amount to a total and permanent deprivation of their fundamental, individual right to keep and bear arms and ammunition, as guaranteed by the Second Amendment, and are therefore an infringement upon those rights. The circumstances surrounding the Individual Plaintiffs’ convictions are therefore and should be distinguishable from those persons that have been historically excluded from the right to keep and bear arms.
Count Two states that the defendants' actions violate the Full Faith and Credit Clause of Article IV, Section 1 of the Constitution. Both the Constitution and subsequent Supreme Court decisions require each state to honor the valid judgments of courts in other states. The Supreme Court said in 1998 in Baker by Thomas v. General Motors Corp, that “A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.”

The third and final count states that California is violating both the Privileges and Immunities Clause of Article IV, Section 2 and the 14th Amendment, Section 1. California law provides a process whereby someone convicted of a "wobbler" felony can get his or her firearms rights restored. A wobbler felony is one where the person could have been charged with either a felony or misdemeanor for the offense. If the person gets the felony downgraded to a misdemeanor under Pen. Code § 17(b), they would also be eligible to get their record expunged in its entirety under Pen. Code § 1203.4. Both would allow the person in question to have their firearms rights restored.
However, the State of California will only honor the reduction of these qualifying felony convictions utilizing the statutes and the process described above. As shown throughout this complaint, California refuses to honor the comparable process utilized by other states, including the States of Washington and Arizona, shown above, even where the courts of those jurisdictions expressly have set aside the felony convictions and have restored firearms rights to such persons who have successfully completed their terms of probation. Accordingly, Defendants’ refusal to honor the set-aside or vacation of those felony convictions, and/or restoration of firearm rights, by courts of those other states, amounts to unlawful discrimination, favoring California’s citizens, since persons convicted of felonies in other states, in essence, have no actual means to seek judicial restoration of their firearms rights here, or otherwise comparable to the process of reduction under those mechanisms (including Pen. Code § 17(b)) described above.
In essence, what you have is California saying that they will treat their restoration of rights as legitimate while that of other states as illegitimate for the purposes of firearms rights.

The plaintiffs are seeking both declaratory and injunctive relief under all counts as as applied to themselves and to others similarly situated. Of course, they are also seeking attorneys' fees.

I'm not a judge nor a lawyer but if I had to hazzard a guess this will case will be decided on the Full Faith and Credit Clause and the Privileges and Immunities Clause. While it is obviously a denial of Second Amendment rights, the courts will go for the low-hanging fruit of Counts Two and Three.


  1. Interesting, as I recall, Gura tried to revive the 14A Privileges or Immunities Clause with Heller. I believe it was pretty much gutted by one of the horrible 19th century cases, Slaughterhouse maybe? 9th Circus might love that, the clause opens up the whole penumbra of rights otherwise shut off . . . anything those liberal judges could imagine could become a right, but they have to accept guns to do it. Nah, who am I kidding, it will be either twisted mental gymnastics to keep them disarmed, or a narrow ruling that won't really help anybody else.

  2. P&I was an issue in McDonald. I happen to think Gura has the right of it constitutionally but he was only able to persuade one justice (Thomas). Full faith and credit is perhaps more alive since there was an actual court decision here. But for licenses it is pretty much dead except for drivers licenses (which took some sort of compact) and marriages (which provisions comes and goes).

  3. I hope this law suit just doesn't benefit the plaintiffs I hope at least it helps one more person

    1. They are seeking a ruling that the law is unconstitutional as applied to the plaintiffs AND to others in a similar situation which means anyone who has had his or her rights restored by a state other than California.