Injunction Sought In California "Assault Weapon" Registration Lawsuit

As I reported about a month ago, a coalition of California gun rights groups, the SAF, and individual plaintiffs sued Attorney General Xavier Becerra (D-CA) and the California DOJ over their computer system failures which made timely registration of "assault weapons" impossible. This coalition has now added four more plaintiffs in an amended complaint and is moving for a preliminary injunction.

More details are in the release sent out this afternoon. You would think that in California of all places that you could find competent IT professionals who could get a registration system not to crash. I guess not.

BREAKING: Gun Owners, Civil Rights Groups Seek Injunction in California “Assault Weapon” Lawsuit

California Attorney General Xavier Becerra and his DOJ botched the “assault weapon” registration program, putting thousands of gun owners at risk of felony charges. Gun owners and civil rights advocates are crying foul – and taking them to court.

SACRAMENTO, CA (August 15, 2018) — Attorneys for seven California gun owners and four Second Amendment advocacy organizations announced today that they have filed an amended complaint and a new motion seeking a preliminary injunction in the civil rights lawsuit Sharp, et al. v. Attorney General Xavier Becerra, et al. over the California Department of Justice’s failures surrounding the ‘bullet button assault weapon’ registration program. A copy of the court filings can be viewed or downloaded online at https://www.firearmspolicy.org/sharp. 

The amended complaint added as plaintiffs four additional gun owners who were denied their rights by the DOJ, and also added the DOJ’s Chief of the California Justice Information Services Division, Joe Dominic, as a defendant. The motion seeks to enjoin sections of the Penal Code relating to so-called “assault weapons,” including provisions that subject the possession or transportation of such firearms to serious criminal liability, including potential felony imprisonment and property seizure, “throughout the pendency of this case, or until” the plaintiffs and gun owners like them “have had a reasonable opportunity, as determined by the Court, to register the qualifying firearms through a functional registration system.” 

The plaintiffs argue that the DOJ had a legal duty to provide a functional registration system throughout the registration period, but that they were unable to exercise their own rights and legal duties “due to the Defendants’ actions and failures, including but not limited to the inaccessibility, defects, and/or non-functionality of the DOJ’s CFARS-based registration system.” Because of that, the plaintiffs argue, the State violated their civil rights protected under the state and federal constitutions and denied them their statutory right to register their firearms to avail themselves of legal protections against harsh criminal laws. 

“[As we argue in our motion], this is about the injustice of forcing people to comply with a law, and then depriving them of the means to do so,” said attorney George Lee, lead counsel on the case. “It is simply unconscionable that the Attorney General would even think about enforcing a law where his Department’s own failures led to many people’s inability to register their firearms in the first place.” 

In a declaration filed with the court, the plaintiffs’ technical expert said that “it is very clear” the problems experienced by the plaintiffs and others across the state “were caused by either the DOJ’s CFARS servers being overloaded and/or possibly by one of the State of California datacenters itself being unavailable due to network routing or overload issues.” 

“This is fundamentally a simple lawsuit about a troubling issue. Attorney General Becerra and his DOJ had one job to do: Provide a functional system for gun owners to use in registering their eligible firearms. But instead of doing their jobs, they created a huge new mess for law enforcement and put innocent people and lawfully-owned property at serious risk,” explained Firearms Policy Coalition President Brandon Combs. 

“This unjust California government-created problem must be stopped immediately,” commented Second Amendment Foundation Founder and Executive Vice President, Alan Gottlieb. “Gun owners should not be put at risk due to state regulatory incompetence.” 

“The bottom line is that California cannot have it both ways. If the state is going to require registration of firearms, it cannot make that process illusory and set people up for confiscation of their property,” said Gene Hoffman, chairman of The Calguns Foundation. “Here, Becerra and DOJ failed to perform their duties, failed gun owners, failed the Legislature and Governor Brown, and failed the people of the State of California.” 

Elaborating on the case, Combs explained, “Because of Becerra’s and DOJ’s disastrous, incompetent, and possibly malicious handling of one simple task, now thousands of gun owners are at risk of having their guns seized or destroyed, or going to jail, simply for driving to the gun range with a firearm that they legally acquired years ago.” 

“It is beyond clear that Attorney General Becerra is so distracted by federal issues and President Trump that he’s completely forgotten to fairly and properly enforce the laws of his own state – and to protect the civil rights of innocent people first and foremost,” Combs said. 

“These plaintiffs and others like them should not have to face a district attorney or jury in a criminal trial because Attorney General Becerra and DOJ set them up from day one,” said Jonathan Jensen, vice-president of Firearms Policy Foundation. 

The civil rights lawsuit is supported by The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), and Firearms Policy Foundation (FPF). The plaintiffs are represented by attorneys George M. Lee and Douglas Applegate of San Francisco-based Seiler Epstein Ziegler & Applegate LLP, as well as Raymond M. DiGuiseppe, a former California deputy attorney general and prosecutor. 

Californians who tried to register their firearms as “assault weapons” before July 1 but were unable to, or who suffered a privacy breach at DOJ, should contact the organizations’ Legal Action Hotline immediately at https://www.firearmspolicy.org/hotline or by telephone at 855-252-4510. 

Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms, through advocacy, legal action, education, and outreach. 

Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms. 

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights. 

Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

No Preliminary Injunction In California 1st Amendment Gun Store Case

California law prohibits a gun store from having advertising on the building indicating that they have handguns for sale. Obviously, this is a clear violation of the First Amendment rights of the store owners and it was for that reason that they sued California Attorney General Kamala Harris last November.

The judge hearing the case, US District Court Judge Troy L. Nunley, an appointee of President Obama, agreed that the First Amendment rights of the plaintiffs were being violated. Nonetheless, he refused to issue a preliminary injunction as it "would alter the status quo" and he found that this was a greater harm than the damage to the plaintiffs' Constitutional rights.

Say what?

Please tell me what harm there is to the public by allowing a store to put a Team Glock sign or a S&W logo on their front display window.

I'll let the CalGuns Foundation continue the story.

July 16, 2015 (SACRAMENTO, CA) – The State of California’s ban on handgun-related speech by licensed gun dealers likely violates their First Amendment speech rights, held a federal judge in Sacramento earlier this morning. The order, issued by District Court Judge Troy L. Nunley, found that the ban is probably unconstitutional, likely doesn’t materially reduce crime, and likely irreparably harms plaintiffs’ First Amendment right to express themselves the way they wish to. Nonetheless, the judge allowed the restriction to temporarily stand, while the case progresses further.

The gun dealers argued that California Penal Code section 26820—first enacted in 1923—prevents them from displaying any “handgun or imitation handgun, or [a] placard advertising the sale or other transfer thereof” anywhere that can be seen outside their stores and “unconstitutionally prevents firearms dealers from advertising even the most basic commercial information—‘Handguns for Sale’—at their places of business.”

In today’s order, Judge Nunley said that the State “does not meet its burden of showing that the Central Hudson elements, in tandem with the additional First Amendment principles discussed above, are met. Therefore, Plaintiffs raise serious questions going to the merits of their First Amendment challenge to section 26820.

“On balance – based on the arguments and evidence currently before the Court – the Court also finds it is more likely than not that Plaintiffs will succeed on the merits of their First Amendment claim.”

While California Attorney General Kamala Harris had argued that the law was useful in preventing handgun-related crime, the Court held that “there is not adequate evidence produced by the Government showing how, specifically, limiting impulse buys from passersby helps to manage handgun crime and violence….the Government has not shown that the ban is narrowly tailored to achieve the desired objective of managing handgun crime and violence.”

Drawing an inference that most prospective gun store customers would believe the dealers sell handguns in addition to other types of firearms, the Court said that common-sense understanding “perhaps shows the pointlessness of section 26820.”

In spite of the fact that the firearm dealer plaintiffs showed a “likelihood of irreparable harm” to their First Amendment rights, and Judge Nunley’s finding that Harris failed to show how the law actually advanced public safety, the Court said that the public interest is best served by allowing the California Department of Justice to continue enforcing the challenged law during the course of the lawsuit.

“Granting the injunction would alter the status quo by requiring California to alter its regulatory scheme and practices as they pertain to firearms. Therefore, the Court takes the requisite caution in deciding against altering the status quo. With due consideration to the free speech considerations raised by Plaintiffs, which are also of public interest, a cautionary approach that favors denial greater serves the public interest than granting the injunction.”

The gun dealers noted that judge’s arguments for a “cautionary approach” in denying the preliminary injunction are undermined by his conclusion that the law likely isn’t really reducing crime.

In response to today’s ruling, California Association of Federal Firearm Licensees (CAL-FFL) President Brandon Combs said that the firearm dealers are reviewing the decision and considering their options.

“While we are pleased that Judge Nunley agrees with us on the law’s likely unconstitutionality, it’s disappointing that he would allow the State of California to continue enforcing it during the balance of litigation.

“If this were a speech case about abortion providers rather than gun dealers, I doubt very seriously that the Court would have allowed the law to stand while it was being litigated. For that matter, it’s hard to imagine that Attorney General Harris would have bothered defending it.

“We look forward to the plaintiffs’ next steps and will continue to support the case until the law is overturned and our dealers’ First Amendment rights are restored.”

Today’s order in Tracy Rifle and Pistol, LLC, et al. v. Attorney General Kamala Harris, et al. and other case documents can be viewed at calgunsfoundation.org/litigation/trap-v-harris.

The lawsuit is supported by CAL-FFL, California’s firearm industry association, as well as Second Amendment rights groups The Calguns Foundation and Second Amendment Foundation.                         

UPDATE: Professor Eugene Volokh discusses the case at the Washington Post. He advised on the case and thinks the judge got it wrong here.

As we noted in our reply, the “impulse buying” rationale for the law rests thus on a rather far-fetched argument. It imagines a person who is in the grip of some emotion (presumably anger, jealousy or depression). He “otherwise might not enter [a] store” (to quote the state) to buy a handgun — even though he is seized by an emotion that presumably makes him contemplate violence, and even though everyone knows that handguns are commercially available.

That the store is free to have a sign saying “Guns” and has signs depicting rifles or shotguns does not influence him at all. But when he sees the word “handguns” or a picture of a handgun, he “respond[s] on impulse,” and then waits 10 days to get a handgun that he otherwise wouldn’t buy. After those 10 days are up, he then proceeds to commit a handgun crime (or commit suicide). His rage or depression is thus strong enough to last 10 days — but so weak that they wouldn’t drive him to get a handgun, were it not for an ad that specifically depicts or mentions a handgun (as opposed to some other gun).

The court agrees that this sort of argument isn’t reason enough to justify a restriction on speech promoting handguns. I think it likewise can’t justify keeping in place a restriction that the court has recognized likely violates the First Amendment; instead, as is normal for such likely unconstitutional speech restrictions, the restriction should be preliminarily enjoined while the litigation proceeds.