Five Gun Rights Cases to Watch in CA

[li]Silvester v. Attorney General Harris[/li]10 day waiting period. Here is a thread discussing the district court opinion

What it is: Federal Second Amendment challenge to California’s 10-day waiting period (as applied to law-abiding gun licensees/known gun owners). Even if a person already legally possesses a firearm, they are still subject to the 10 day waiting period.

**Current Stage: **Plaintiffs won the case at the trial court. Defendant California Attorney General Kamala Harris has appealed her loss to the Ninth Circuit Court of Appeals. However, before the case proceeds at the Ninth Circuit, Senior District Court Judge Ishii must first rule on two pending motions by Harris. (One to extend the time DOJ has to comply with the order from 6 months to 12 months, and another to stay the order pending the Ninth Circuit’s resolution of the appeal.)

Next step: Defendant’s motions have been briefed by both sides and both motions will be decided by Judge Ishii, we expect soon. After he rules on those, the case will continue on appeal at the Ninth Circuit.

Bottom line: At the end of this case, either the Ninth Circuit or the U.S. Supreme Court will decide what “infringe” means in the context of laws that severely burden, but do not necessarily outright ban, the exercise of core Second Amendment rights by law-abiding people.

[li]Pena v. Lindley[/li]Handgun Roster. We’ve had several threads that discussed this issue tangentially. Here is the longest one in the Pit. Here is another. CA maintains a list of handguns that are “not unsafe”. Only handguns from that list may be sold in the state new from dealers. To get on that list, the state has various tests that each handgun must pass. Things like a drop test where the handgun is dropped from a set distance to determine if it will discharge. One of the requirements that was recently added was a requirement to microstamp. This technology doesn’t current exist so in effect this has banned the sale of all new model handguns in CA. Not to mention, this law results in identical handguns being legal or illegal based on which were submitted for testing, so a model that is a particular color is permissable, but a different color is not.

What it is: Federal Second Amendment challenge to California’s handgun “roster” and microstamping requirements.

**Current Stage: **On October 2, plaintiffs filed a notice of supplemental authority with the district court, pointing out the winning decision in Silvester v. Harris. Previously, both sides filed supplemental briefing on July 7 per the court’s order. Both sides have moved for summary judgement, and all mandatory and supplemental briefing ordered by the court has been submitted.

Next step: Awaiting decision by Federal District Court Judge Kimberly J. Mueller.

Bottom line: Are gun control laws – like California’s handgun “roster” and microstamping requirements – that limit access to arms in common use for lawful purposes unconstitutional? We think so, and this case will provide us with the answer from the courts.

[li]John Doe v. Attorney General Harris[/li]1 handgun per 30 day period.

What it is: State law challenge to CA DOJ’s enforcement practice of denying a “1-in-30” handgun purchase limit exemptions to gun buyers that possess both a Certificate of Eligibility (COE) and ATF FFL03 (“Curio and Relic”) license. This is somewhat of a more esoteric argument - mostly a rules argument on how administrative process was followed. Currently a person is limited to one handgun purchase in a 30 day period. Most people don’t run into this, but collectors, or those purchasing at shows or gifts for others do.

Current Stage: Plaintiffs are conducting limited discovery. Following that, the case will move forward on motions.

Next step: Completion of discovery and filing of motion(s).

Bottom line: Can state agencies like the DOJ make up policies as they go, especially when those policies directly conflict with the express written text of the statutes? And, even if they somehow could, did DOJ’s rulemaking follow the Administrative Procedures Act?

[li]Vargas v. LA Sheriff Scott (formerly Lu v. Baca)[/li]CCW Pre-application Policies

What it is: State law challenge to Los Angeles County Sheriff’s Department policies and practices that require carry license (“CCW”) applicants to pay costs, complete additional forms, and face additional time delays beyond what is allowed under the Penal Code.

**Current Stage: **Plaintiff won at the trial court, but Los Angeles has appealed. Their opening brief is expected to be filed at the Second District Court of Appeal for the by the end of November.

Next step: Briefing by both sides at the Court of Appeal must be completed and then a hearing date will be set for oral arguments, which should take place sometime in 2015.

Bottom line: Can carry license issuing authorities require applicants to jump through unnecessary, burdensome hoops and comply with restrictive rules that go beyond the system established by the Legislature? We think the state law is quite clear here, but Los Angeles (and others) think they can get away with such behavior. Notably, published Court of Appeal decisions are binding on all trial courts throughout the state; unless the California Supreme Court (or another district of the Court of Appeal in a different case) decides to weigh in, this case should resolve some of the “pre-application” problems faced by Californians who want to exercise their right to bear arms for self-defense in public with loaded, operable handguns.

[li]Richards v. Prieto[/li]Self Defense as “good cause” for CCW. This case was decided on the same grounds as Peruta which was discussed here.

**What it is: **Federal Second Amendment challenge to Yolo County Sheriff Ed Prieto’s application of a “heightened good cause” standard for carry license (“CCW”) applicants.

Current stage: Following the Ninth Circuit’s Peruta v. Gore decision this past February, the same panel of Ninth Circuit judges ruled that the Richards plaintiffs (including CGF) prevailed on the same grounds against Yolo County’s practice of requiring more than “self-defense” for the “good cause” requirement.

Next step: The Ninth Circuit rejected Harris’s motion to intervene in Peruta. This case will likely request en banc review along with a sister case out of Hawaii in Baker. The 9th circuit then must decide whether to take either one, both, or neither of these cases for review. Pending that outcome, there is still an avenue to get to SCOTUS.

Bottom line: The Ninth Circuit’s Peruta decision got it right, just as it did when it correctly decided Richards. However, even if the decisions ‘stick’ here in the Ninth Circuit, the Supreme Court will ultimately need to weigh in and resolve the right to bear arms in the context of subjective and discretionary regulatory schemes like California’s “good cause” and “good moral character” requirements that are enforced by sheriffs and municipal police chiefs. Otherwise, large segments of the United States (including residents of highly populated states like New Jersey, New York, and Maryland) will continue to go disenfranchised of their right to carry for self-defense while others, including residents of California, will have access to at least some manner by which to exercise the right.[/ol]

I’m most interested in #2, #4, and #5. With #5 being the most important. I think all should be decided in favor of plaintiffs based on the reasoning above.

And an honorable mention to Tracy Rifle & Pistol v. Attorney General Harris. This case was just filed and is a 1st amendment challenge to CA Civ Code 26820 which bans the display of handguns advertising the sale or transfer thereof which is visible from outside a store. In other words, gun stores can’t show images of handguns. Rifles are perfectly legal, but a handgun is a no no. Here is a Volokh articleon the case, for which Volokh is one of the attorneys. I think this one is a slam dunk but you never know. It seems rediculous that images of handguns are banned at all based on 1st ammendment grounds, but on top of that rifles are perfectly fine which makes no sense.

Are we supposed to debating all five cases in this thread?

Any that interest you. I group them in an effort to not clutter multiple threads, and to illustrate the many different gun laws that must be navigated in CA. There are more, and more litigation of course. These cases are all supported by the Calguns Foundation, a 501©(3) non profit to which I donate and support.

Thanks for posting this. I’ll keep an eye on this thread.

You mentioned that you live in Yolo County, but do you have a stake in any of this litigation? I ask because you say “We think the state law is quite clear here” in the notes for Vargas v. LA Sheriff Scott.

Do you actually have a problem with the 10 day waiting period, Bone? Why?

As it is applied in CA, I do have a problem with it. Currently in CA all sales must be through an FFL. In other states there is the oft discussed “gun show loophole” which is really a difference in how private party sales are treated from dealer sales. Nationwide, all dealer sales must go through an FFL. All inter state sales must go through an FFL. In most states however, private party person to person sales do not require an FFL as an intermediary.

In CA however, this is not so. Any sale (excluding certain interfamilial and C&R sales) are required to go through an FFL. This means that a buyer of a firearm from a private party needs at a minimum to make two trips to the FFL. The first is to meet the seller, exchange funds, fill out paperwork. Then the buyer needs to return, 10 days but not more than 30 days later. If you go over 30 days, then the process starts over. Consider if I want to buy a firearm from a person that is a 2 hour drive away. That’s incredibly inconvenient given the fact that I already own several firearms.

If I am already a lawful gun owner, and I satisfy the instant background check, there is no basis to impose additional waiting for my purchase of additional firearms. This is what the district court ruled but is currently being appealed.

I don’t live in Yolo county. I have a stake in all of the above litigation to the extent I am a CA resident in a non-issuing county.

The “we” part above was lifted from summaries of litigation that I’ve appropriated for sake of discussion. Primary sources are the CGF.

I think you might be missing the point. It’s a cooling off period, yes? Not a delay for background checking.

I understand the idea for new purchasers, but why would a person who has 100 guns already need a cooling off period? This is specifically for those that already lawfully possess firearms. The district court discussed the reasoning to reject the cooling off period rationale but on its face it makes no sense for those that already possess firearms. There may be some delay to satisfy the background check which is fine with me - but many folks are able to pass the background check on the spot and for those folks there should be no further delay if they already legally possess firearms.

Looking at #3, I can’t see how (in a perfect world) the A.G.'s position even survived past the pleadings stage. As I see it, the statute in question is California Penal Code §27535 and it reads as follows:

That’s it. No mention of any other requirement to be exempt from subdivision (a) besides being a C&R license holder and possessing a current certificate of eligibility. “Handgun” is defined in California Penal Code §16640 and reads:

Bone, I’m ignorant of CA laws. 27535, to me, looks like it deals with applications to purchase, and not whether the sale or transfer can take place or not. I can’t see how it could possibly apply to a C&R holder, but then IANAL. Are there applicable laws or regulations for denying purchases of more than 1 handgun a month that have nothing to do with 27535? Or is 27535 the statute the A.G. is hanging her hat on?

Moreover, what standard of judicial deference would apply here? I don’t think they’re entitled to Chevron deference, but what about Skidmore, interpreted with respect to Yamaha?

That is only true if you accept the premise that all guns are the same - which is one that gun rights advocates generally reject. To use an extreme example, if I own a dozen black powder guns, I am probably going to go and buy something semi-automatic before shooting up a school.

Okay, it’s a cooling off period. What evidence is there that having the cooling off period reduces criminal use of guns enough to be worth inconveniencing the purchasers who are not putting them to criminal use? Is there evidence that it has any effect at all?

Yes, I know that ten day waiting period always keeps me from impulsively shooting up a public facility because I wouldn’t want it do it with any old firearm; only something virginal, recoil spring fully virile, and still gleaming with the moist sheen of post-manufacturing bliss will do.

Is that what you’re looking for?

Seriously, despite purely hypothetical scenarios conjured up from imagination, waiting periods beyond what is necessary to perform a background check are purely arbitrary and there is zero evidence that they do anything to prevent mass shootings (which are typically fantasized and planned out by shooters weeks or months in advance) or any other “crimes of passion”.


This is specifically for sales of new firearms. The 1 in 30 day limit does not apply to private party sales - though those still must go through an FFL.

To summarize the Doe v. Harris (#3 above) a bit more. For some people who hold an FFL license for Curio and Relic type firearms, AND a DOJ certificate of eligibility, they are exempt from the 1 in 30 day requirement as stated in 27535. That’s the plain reading of the language. The CA DOJ has always interpreted that plainly as well, that those folks are exempt from the limit, for whatever types of firearms they are purchasing that are otherwise legal. Essentially these are gun dealers. It doesn’t make sense to restrict gun dealers from purchasing many guns at a time. They are already FFLs and have passed numerous background checks, are subject to regulation, etc.

Earlier this year, the DOJ BOF sent a letter to all FFLs stating that this exemption in 27535 only applied to firearms that were themselves C&R type. A change in DOJ interpretation and one that was different than the plain reading of the law. So the litigation is two pronged. First is that based on the reading of the law, the DOJ interpretation is in error. The second prong is even if the DOJ reading is not in error, there is an administrative procedure they need to take before they adopt this new interpretation. The California Administrative Procedure Act allows the public to participate in the adoption of state regulations in certain ways which don’t appear to have been followed in adopting this new interpretation of 27535.

So yes, the AG is hanging their hat on 27535, limiting the scope of the exception outlined in the text, in a way different than had previously been done, and contrary to the plain reading of the text.

I’m not sure what defense will be raised. There are emails contained in the plaintiff motions that describe how deputy attorney generals have recognized the BOF long standing policy to interpret the statute in favor of the plaintiffs.

That premise (that all guns are the same) is not a necessary condition to reject the cooling off period rationale. The cooling off period rationale relies on the waiting period so that a person may reconsider rash decisions with bad outcomes. It is those bad outcomes that the cooling off period seeks to avoid.

There are characteristics that all guns share that could lead to those bad outcomes. All guns will fire a projecticle with sufficient force to harm humans, and damage other property. Used improperly, this could result in those bad outcomes. This applies to all firearms. A cooling off period for those that already possess firearms would not avoid the types of outcomes that they are designed to limit.

I believe the main driver for the cooling off period is to prevent suicide, not mass homicide. This rationale fails for those that already possess firearms as all would be sufficient to commit suicide.

From the opinion addressing the cooling off rationale:

Regarding types of firearms better suited for various purpose, the court notes:

Essentially, this doesn’t happen, and no evidence was presented that it does.

For the purpose of the cooling off period, the bad outcomes trying to be prevented can occur from all firearms. For other purposes, like restrictions on types of firearms or firearm capabilities, the characteristics of each could differentiate the utility of each.

If you already own a hundred guns, it seems hard to argue that your second amendment rights have been infringed in any serious way.

Is it okay to inconvenience people who want to buy guns just for the sake of inconveniencing them? For what other legal products would you consider it okay?

It’s an example. It applies equally to a person who has 1, or 1,000 guns in their possession. Even still, any violation of the right warrants a remedy - the seriousness of the violation not withstanding. The remedy is an injunction against enforcing the law for the people who meet the criteria as defined in the district court opinion. And attorney’s fees :slight_smile:

I’m okay with it for any product I don’t intend to buy. I am, of course, passionately against it for products I do intend to buy.

Either way, it seems silly to make a federal case out of it.

Even if a different law flies in the face of the constitution? I think that is the entire point. If CA hadn’t drafted laws to basically disenfranchise the purchasing of guns (a current federal right), then there would be no need to make a federal case out of it.