Federal Judge Denies Injunction in Gun Dealer Speech Lawsuit in Spite of Likely First Amendment Violation
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.
California Association of Federal Firearm Licensees (CAL-FFL) (www.calffl.org) is California’s most tenacious advocacy group for Second Amendment and related economic rights. CAL-FFL members include firearm dealers, training professionals, shooting ranges, collectors, gun owners, and others who participate in the firearms ecosystem.
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.
The 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.
This is the fourth in a multi-part series on CGF’s Silvester v. Harris federal Second Amendment lawsuit, an action that challenges the 10-day waiting period laws (“WPL”) as unconstitutional (as applied).
AMICI CURIAE IN SUPPORT OF PLAINTIFFS/RESPONDENTS JEFF SILVESTER, BRANDON COMBS, THE CALGUNS FOUNDATION, AND SECOND AMENDMENT FOUNDATION
The amici curiae supporting Kamala Harris’ bid to overturn the lower court ruling have had their chance to weigh in, which we covered in Part 2 of this series.
Here, we discuss the pro-Second Amendment amici in support of Jeff Silvester and the other Plaintiffs/Respondents. Two notable and informative amici briefs were filed in support of upholding the District Court’s ruling:
- A brief on the law and history by California Rifle and Pistol Association and Gun Owners of California (brief by attorneys C.D. Michel, Clinton Monfort, and Anna Barvir of Michel & Associates, P.C.); and,
- A brief on empirical evidence and the opposing amici’s erroneous citation to various studies by Crime Prevention Research Center (brief by CRPC’s Dr. John Lott and attorney George Lee of Seiler, Epstein, Ziegler, and Applegate).
We are grateful for these amici organizations’ powerful briefs and sincerely appreciate their respective counsels’ excellent work. If you want to thank them for their efforts, please consider joining or donating to CRPA, GOC, and CPRC.
CRPA/GOC BRIEF: THERE IS NO CONSTITUTIONAL EXEMPTION FOR “LONGSTANDING” REGULATIONS, NOR ARE THE WPL “NARROWLY TAILORED” ENOUGH TO SURVIVE SCRUTINY
The California Rifle & Pistol Association and Gun Owners of California brief brought additional constitutional perspective to the table, reinforcing Plaintiffs/Respondents arguments that there is no broad constitutional exemption for “longstanding” regulations and that the WPL are not “narrowly tailored” enough to survive appropriate constitutional scrutiny. As the CRPA/GOC amici explain:
[C]ourts have regularly refused to shield laws from constitutional scrutiny absent evidence that the restrictions would have been understood to fall outside the scope of the Second Amendment at the time of the founding and ratification—even if those restrictions could arguably be shoe-horned into one of the “presumptively lawful” categories or if a handful of analogues have been enacted in some jurisdictions since that time period.Heller’s discussion of examples of certain “presumptively lawful” regulations was not exhaustive, nor did it create unchallenged “safe harbors” for those regulations:
[T]he Supreme Court explained that laws regulating the commercial sale of firearms are ‘presumptively lawful,’ but “it did not purport to exempt” all such laws from constitutional scrutiny outright.
For these WPL regulations to survive constitutional scrutiny, they must be “narrowly tailored” to meet the government’s “compelling interest.” Forcing gun owners to submit to multiple waiting periods does not meet this standard:
While narrow tailoring under intermediate scrutiny need not be the “least restrictive means” of accomplishing its stated objective, the government still bears the burden of establishing that the law is “closely drawn to avoid unnecessary abridgment” of constitutional rights.CPRC: NO DATA SUPPORTS ATTORNEY GENERAL HARRIS’ SPECULATIONS ABOUT THE WPL, BUT DATA DOES SUPPORT THE COURT’S CONCLUSIONS ABOUT CCW LICENSEES
* * *Because the waiting period law is not likely to advance its interests as applied to gun owners who have passed a background check, and because the state has not demonstrated that the law does not burden substantially more conduct than necessary to achieve its interests, the district court did not commit reversible error in declaring this requirement invalid under intermediate scrutiny.
The Crime Prevention Research Center’s brief focuses on hard statistical data and critical analysis of statistical claims made by Kamala Harris and her supporting amici. Upon extensive review, CPRC found that Harris essentially has it backwards: there is no empirical data to support her assertions regarding the alleged positive effects of the WPL on current gun owners:
Even if there were to be a “cooling off effect,” as claimed, to deter crimes of passion (a colorful proposition for which there is no empirical evidence), Appellant and its supporting amici ignore that waiting periods also clearly prevent people who are being threatened from quickly obtaining a gun for self defense. If both effects likely occur, the question is which effect is greater. This is an empirical question, and the research generally finds no significant evidence of the impact of waiting periods on crime.
On the other hand, Harris’ assertion that there is no evidence CCW licensees are particularly law-abiding as a group is contradicted by all available data:
In sum, Appellant’s suggestion that CCW permit holders are equally as likely to be “violently impulsive,” or engage in straw purchases, as other members of the general public, is simply not a supportable fact. To the contrary, CCW permit holders on the whole are extremely law-abiding, responsible gun owners. . .CONCLUSION
Amici serve an important role in lawsuits when they offer information and arguments helpful to the Court in evaluating the law and facts at issue in contentious cases, like this one. As “friends of the court,” CRPA/GOC and CPRC provided valuable insights, legal analysis, and data that make a strong case for the Ninth Circuit to uphold Judge Ishii’s ruling that found the WPL to violate Second Amendment rights.
CRPA and GOC effectively rebutted Harris and her supporting amici’s mischaracterizations of intermediate scrutiny standards and the “presumptively lawful” regulations mentioned in Heller.
CPRC’s empirical data and penetrating critique of the flawed studies (and mischaracterization of their conclusions) Harris and her supporting amici leverage to distract from the facts show that the public safety utility of the WPL does not fit with the constitutional standards for a restriction on a fundamental right.
Going forward: Attorney General Harris has requested and received an extension of time to file her Reply Brief, which is now due June 30, 2015. That brief will most likely be the last development in this case until oral arguments at the Ninth Circuit. Stay tuned for our analysis of her Reply in early July.
Part I: The State’s Opening Brief
Part II: The Amici in Support of California
Part III: The Plaintiffs/Appellees Fire Back in Defense of Your Second Amendment Gun Rights
The Silvester v. Harris Appeal - Part III: The Plaintiffs/Appellees Fire Back in Defense of Your Second Amendment Gun Rights
This is the third in a multi-part series on CGF’s Silvester v. Harris federal Second Amendment lawsuit, an action that challenges the 10-day waiting period laws (“WPL”) as unconstitutional (as applied).
We now move forward in our series on the pending appeal in Silvester v. Harris, focusing on our Plaintiffs’/Appellees’ answering brief. Defendant/Appellant California Attorney General Kamala Harris had her chance to explain why she believes the original ruling in favor of Second Amendment rights should be overturned, and now it's our turn to respond.
DEFENDANT KAMALA HARRIS LOST FOR A REASON AND CANNOT RE-TRY THE CASE ON APPEAL
[caption id="attachment_2496" align="alignleft" width="176"] Plaintiff Jeff Silvester[/caption]
When an appellate court (such as the Ninth Circuit) hears an appeal following a trial -- such as in the case of Silvester -- it is important to remember that the court generally reviews the legal, not factual, decisions of the lower court.
An appeal following a trial is not a "do-over" of the entire trial; unless the appellate court finds that the lower court made a “clear error,” it will generally accept the lower court’s findings of fact as true.
In our answering brief, we spend a significant amount time patiently pointing out the District Court’s findings of fact and conclusions of law that Harris’ opening brief [conveniently] ignores.
In this case, the Ninth Circuit should be mainly interested in deciding whether the lower court was correct in its legal reasoning as applied to the facts of the case. Absent “clear error,” it should refuse to “re-weigh the evidence and overturn the district court’s evidentiary determinations – in effect . . . substitut[ing] [its] discretion for that of the district court.”
FACT – DOJ’S BACKGROUND CHECK SYSTEM IS LARGELY AUTOMATED AND REGARDED AS RELIABLE
As you may remember, Harris attempted to argue both that the background check system was too unreliable to trust and that DOJ often ran the same check multiple times, only finding prohibiting information later in the 10 day wait. However, the district court found a number of contrary [and vital] facts:
- Upwards of 99% of all DROS applications are approved by DOJ
- [A]pproximately 20% of all applications are auto-approved
- Auto-approvals can occur as quickly as one minute, but probably in less than an hour
- Two additional safeguards work hand-in-hand with the databases discussed above to prevent prohibited persons from possessing firearms. . . . the Armed and Prohibited Persons System (‘APPS’) . . . [and] the ‘rap back’ service
- [T]he record contains no evidence whatsoever that the 10-day waiting period was established to allow time for post-approval reporting (i.e. for DOJ to run multiple checks “just in case” a purchaser becomes prohibited on Day 6)
- Law enforcement officers throughout California rely on the AFS database in performing their work
- If a gun owner with a gun in the AFS system becomes prohibited and the APPS law is followed, their name will appear in the APPS database to notify DOJ that their gun should be retrieved
In her opening brief, Harris attempted to twist the language of Heller and subsequent case law to create a new exemption to the Second Amendment. While they did attempt – unconvincingly – to tie the WPL into “conditions on the commercial sale of arms” and prohibitions against possession by felons and the mentally ill, their major thrust was to attempt to paint the WPL as “longstanding” and then create a broad Second Amendment exemption for all “longstanding” gun laws.
Under their proposed standard, virtually any gun law in existence for more than a few decades in more than a couple of states would be presumptively lawful and outside of the scope of the Second Amendment. However, that view was not and is not consistent with the law. As our brief argues:
This is a misreading of Heller. The Court did not create a constitutional safe harbor for “presumptively lawful” regulatory measures unmoored to searching historical analysis. . . . Thus, each firearms regulation (even “presumptively lawful” ones) must be judged based on its “historical justifications” to determine whether it falls within the scope of the Second Amendment right. To this end, Heller instructs that historical analysis of the scope of the Second Amendment is judged against the “public understanding” in the period after ratification through the end of the 19th century.
FACT – THE WAITING PERIOD LAWS LACK A “REASONABLE FIT” TO THE STATE’S INTERESTS, AND VIOLATES THE SECOND AMENDMENT AS APPLIED TO THE THREE CLASSES OF GUN OWNERS IN THE DISTRICT COURT DECISION
After we address the procedural issues and proper application of the law on appeal, our brief turns to the core of the case: When applied to people whom the State knows to already own guns, or have gun licenses like a license to carry guns (“CCW”), and after the firearm buyer/transferee passes the mandatory background check, the Waiting Period Laws simply cannot meet constitutional muster.
Even under the deferential theory offered by the cited cases in Harris’ opening brief, many based on First Amendment caselaw, “intermediate scrutiny” still requires that the law in question be a “reasonable fit” to the State’s important objective. Harris largely ignores this legal principle, despite (or because of) the fact that it is the central issue in Silvester.
In order to prevail on appeal, Harris would have had to show that the District Court was clearly wrong in its application of intermediate scrutiny, and that the Waiting Period Laws -- again, as applied to the three classes of law-abiding gun owners -- are “narrowly tailored,” i.e. “the regulation must not be substantially broader than necessary to achieve the government’s interest.” In order to do so, the “government may not rely on ‘anecdote and supposition,’” nor may the Waiting Period Laws stand “if it provides only ineffective or remote support for the government’s purpose.”
As stated in our answering brief:
Indeed, the State argues as if the “reasonable fit” test is indistinguishable from a rational basis test, complaining that the District Court should have “accept[ed] that a reasonable legislature could believe” that the WPL reduced handgun violence based on the evidence at trial . . . But Heller emphatically instructed that rational basis is not the standard for reviewing Second Amendment claims. . . . Thus, while the State may have leeway in marshaling evidence in identifying a “substantial government interest” and tailoring a regulation to serve such an interest, the government is not afforded the same leeway when it relies on evidence to develop a (hypothetical) rationale after the fact to establish a “reasonable fit.”
In any event, the District Court here did consider nearly all of the studies submitted by the State and determined that they did not establish a reasonable fit. The State simply wants a retrial on appeal.
(Internal citations omitted.) (Emphasis added.)
We realize that gun owners often feel frustrated by the slow pace of the courts and, sometimes, by what we would argue are wrongly-decided outcomes. Legal procedures can be complicated and strange, and at times it might seem that some judges simply make up whatever they think should be the rule in order to ensure that gun control laws stay in place -- regardless of how flawed those laws may be.
However, it is important to remember that Silvester is a perfect example of the lower court getting it right. Our answering brief does the critical job of showing how and why we prevailed, and why we should prevail again at the Ninth Circuit. It reinforces the well-reasoned and legally-sound ruling of U.S. District Court Judge Anthony Ishii and shows Harris defense of the Waiting Period Laws for what it is – legally, factually, and constitutionally wrong.
Silvester has been a long, expensive -- and successful -- fight for your Second Amendment rights. If you support the case and our hard work to restore freedom in California, we’d ask that you please make a donation to CGF today.
Stay tuned for Part 4, where we’ll review the two pro-gun amicus briefs filed in the case!
Part I: The State’s Opening Brief
Part II: The Amici in Support of California
This is the second in a multi-part series on CGF’s Silvester v. Harris federal Second Amendment lawsuit, an action that challenges the 10-day waiting period laws (“WPL”) as unconstitutional (as applied).
Background for clarity: Amicus curiae (plural: amici) is Latin for "friend of the court." As explained by the Cornell University Law School Legal Information Institute, “Frequently, a person or group who is not a party to a lawsuit, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court's decision.” This article explores the amici in support of (ISO) Defendant/Appellant Attorney General Kamala Harris.
BRADY, EVERYTOWN, AND THE ARTIST FORMERLY KNOWN AS LCAV
Following Harris’ opening brief, three amici -- the Brady Center to Prevent Gun Violence, Everytown for Gun Safety, and the Law Center To Prevent Gun Violence -- each filed briefs in support of Harris and reversal of the District Court’s decision that found California’s 10-day waiting period laws (WPL) unconstitutional as applied to three classes of people. (If you’re needing to catch up on what happened in the case and why, visit our Silvester v. Harris case web page.)
Covering all three briefs is relatively simple, because all three briefs largely make the same arguments:
- The WPL are “longstanding” and therefore presumptively lawful;
- The WPL regulate the “commercial sale of arms” and are therefore presumptively lawful;
- Even if the WPL were not presumptively lawful, they relate to an “important government interest” – public safety – and therefore survive intermediate scrutiny.
The first argument all three briefs make comes from a much-debated footnote in the Supreme Court’s 2008 D.C. v. Heller decision:
Like most rights, the Second Amendment right is not unlimited. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.Heller, 128 S.Ct. 2783 (2008) at 2816-2817.
This single passage is the crux of most Second Amendment legal debate today. The courts are still actively wrestling with the question of how to determine what gun laws are “presumptively lawful” and what laws are unconstitutional infringements. While we would say the answer is obvious – what part of “shall not be infringed” is unclear? – the reality of Second Amendment litigation is that we have to face arguments that turn on various "dicta" in Heller.
LCPGV and Everytown argue in various ways that the WPL should be considered “longstanding” and presumptively lawful. (Interestingly, the Brady Center splits from the pack on this issue, arguing that only “prohibitions on the possession of firearms by felons and the mentally ill” are required to be “longstanding.”)
[A] dozen states enacted waiting periods in the 1920s and 30s consistent with the Uniform Law Commission’s model legislation, and Congress enacted a waiting period for the District of Columbia. . . . [E]ven the NRA advocated their adoption for the first three-quarters of the 20th century. . . .Given this “historical prevalence,” California’s law is a “longstanding” regulation under Heller.
LCPGV goes further, arguing that the Third Circuit’s analysis should be used, requiring only that a regulation “(1) have existed in some form for a significant period of time, either in a diverse number of jurisdictions or over a significant portion of the population; and (2) be consistent with the traditional regulation of firearms” to be considered “longstanding:”
Waiting period laws like those in effect in California have been enacted in ten states . . . Moreover, waiting period laws also apply to approximately one-third of the national population as of the 2010 census . . . The widespread passage of waiting period laws over the last century demonstrates that these laws have been generally accepted in a wide array of jurisdictions over a significant period of time and therefore should be considered “longstanding.”
Under this view, unusually-strict gun control laws passed by a minority of states within the past 80 or so years masquerade as “longstanding” and “presumptively lawful” instead of the uncommon and unconstitutional infringements that they are.
THE WPL REGULATE THE COMMERCIAL SALE OF ARMS
The next argument is vitally important. Under these groups’ views, any law “imposing conditions and qualifications on the commercial sale of arms” is a “presumptively lawful” regulation under the dicta of Heller. This category, generally understood to refer to rules governing licensing of FFLs or transfers of firearms, is twisted by the amici to cover any law relating to the sale of firearms. Under their argument, even a complete ban on the sale of handguns would apparently be “presumptively lawful” so long as private possession were not banned.
As the Brady Campaign so simply puts it:
[S]ince the Waiting Period is a “presumptively lawful” condition on commercial sales of firearms, it should be upheld without further scrutiny of any type.THE “2A TWO-STEP”
Finally, we come to a recurring argument of gun prohibitionists that is so prevalent in litigation, Second Amendment advocates call it the “2A Two-Step” or “post-Heller Two-Step.” In this perverse interpretation of the Second Amendment, they first argue that, since the “core” of the Second Amendment is the right to keep and bear arms for self-defense within the home, any law that does not directly destroy the ability of a person to defend themselves within their own home is reviewed under the lesser of the forms of heightened judicial review, “intermediate scrutiny.”
“Scrutiny” levels are a legal concept that is beyond the scope of this article, but generally speaking, in order for a law to pass intermediate scrutiny, “the challenged law must further an important government interest by means that are substantially related to that interest.” Notably, intermediate scrutiny generally requires a showing (evidence) going to the law’s tailoring and fit with the stated interest.
However, under the “post-Heller Two-Step,” the government first argues that “public safety” (or, sometimes more explicitly, “reducing gun violence”) is a “substantial interest” of the government. From there, it argues that any law they claim to further public safety is a “good enough” fit with the interest (nevermind evidence), and is therefore constitutional. (For more on the Two-Step, read this brief to the Supreme Court.)
Under this improper application of “intermediate scrutiny,” any gun control law short of a total ban on the possession of firearms in homes by law-abiding people would be constitutional...because the government says it is.
Interestingly enough, the amici in this case are more interested in the procedural discussions of how to evaluate the constitutionality of gun control laws than they are with the actual waiting period laws. Unlike Harris, who spent a large portion of her opening brief arguing about the hypothetical evils she thinks will occur if the Ninth Circuit upholds the District Court’s decision holding WPL unconstitutional, the amici in support of Harris spend the majority of their arguments discussing scrutiny standards and the definitions of terms. It’s almost like they think the Second Amendment is a second-class right…
Thanks for following our series on Silvester v. Harris. Things get exciting in Part III, where the Plaintiffs/Appellees fire back!
Part I: The Silvester v. Harris (10-Day Waiting Period Case) Appeal – Part I: The State’s Opening Brief
This is the first in a multi-part series on CGF’s Silvester v. Harris federal Second Amendment lawsuit, an action that challenges the 10-day waiting period laws (“WPL”) as unconstitutional (as applied). Each post will walk through a different aspect of the appeal, beginning with the State’s opening brief at the Ninth Circuit. For more information on the Silvester case prior to appeal, see this Aug. 25, 2014, news release on the District Court’s decision (finding the WPL unconstitutional) and this Nov. 20, 2014, news release on the District Court’s denial of the State’s post-trial motions.
THE DISTRICT COURT’S DECISION BEING APPEALED
Silvester v. Harris is a federal civil rights lawsuit that challenges the State of California’s 10-day waiting period laws (“WPL”) as unconstitutional under the Second and Fourteenth Amendments to the United States Constitution. (Because the Court found the WPL to violate Second Amendment rights, it declined to rule on the Fourteenth Amendment claims.) The plaintiffs in the case are gun rights groups The Calguns Foundation and Second Amendment Foundation, and individuals Jeffrey Silvester and Brandon Combs. The defendant is California Attorney General Kamala Harris.
On August 25 of last year, Judge Anthony Ishii of the United States District Court for the Eastern District of California released his decision after a bench trial, holding that the WPL is unconstitutional as-applied to three classes (“groups”) of law-abiding people: “individuals who successfully pass the BFEC/standard background check prior to 10 days and who are in lawful possession of an additional firearm as confirmed by the AFS system,” “individuals who successfully pass the BFEC/standard background check prior to 10 days and who possess a valid CCW license issued pursuant to California Penal Code § 26150 or § 26155,” and, “individuals who successfully pass the BFEC/standard background check prior to 10 days and who possess both a valid COE issued pursuant to California Penal Code § 26710 and a firearm as confirmed by the AFS system.”
DOJ’S POST-JUDGMENT MOTIONS
Defendant Attorney General Kamala Harris filed a request to alter or amend the judgment on September 22, 2014, an appeal to the Ninth Circuit Court of Appeals not quite a month later on September 24, and a request for stay pending appeal a few days later on September 29th. Judge Ishii rejected their motions to stay and/or alter the judgment on November 20, 2014, finding that the State had not shown sufficient irreparable harm would be caused by complying with the order, especially when weighed against the irreparable harm being done to gun owners while their rights are being infringed upon.
The State’s appeal is going forward before the U.S. Court of Appeals for the Ninth Circuit. Harris filed her Opening Brief on March 25, 2015, and it’s that brief – and the arguments contained within – that we’re going to look at today.
APPELLANT’S OPENING BRIEF – LEGAL THEORY
The Attorney General begins her argument with a hypothetical look at American history. According to Harris, the Founding Fathers would have been used to a slower “pace of life” in the Founding Era and, therefore, really wouldn’t have minded a waiting period. In their view, the impossibility of an act in the 1700s justifies arbitrary restrictions in the 2000s. Because “[m]ost people lived on isolated family farms, a day’s horseback ride away from the nearest store, which may or may not have carried firearms and which store was typically closed during the entire harvest season,” therefore a second waiting period is justifiable today. Taking the legal concept of interpreting the Second Amendment as it would have been understood to the Founders, the State concludes that the Founders would not have viewed the Second Amendment as guaranteeing “instant” access to firearms, let alone “instant” access to multiple firearms.
Harris continues on into a recurring argument amongst gun prohibitionists, taking a single line from the Heller decision and interpreting it to protect virtually any gun law in existence more than a few years.
[B]y virtue of being more than 90 years old, and representative of numerous other firearm waiting-period laws, the Waiting-Period Laws must also be seen as “longstanding” under Heller—and for that reason, as well, presumptively lawful.
Further, she argues that, although “only ten states impose a waiting period,” “10 states is a significant fraction . . . of all states, and reflects fairly widespread acceptance of waiting-period laws.”
In the State’s view, if a policy has been enacted by more than a handful of states for more than a handful of years, it should be “bootstrapped” into constitutionality merely by existing in some places for some period of time.
Raging Hypotheticals – DOJ’s Nightmarish Future
Moving forward, California moves into the “meat” of the brief – its hypothetical future full of law-abiding criminals-in-training taking advantage of administrative and regulatory processes to wreak havoc on the unsuspecting masses.
[W]aiting-period laws tend to inhibit firearm violence even by people who at one time in the past were known to have firearms. A person’s firearms may be broken, loaned out, lost, stolen, or lacking in ammunition. Also, a gun owner or his or her family member could surrender his or her firearms to law enforcement authorities while the gun owner seeks mental health treatment, and BOF via its databases would not necessarily know of the situation. Additionally, a person who already owns firearms may choose to acquire new or additional firearms to commit acts of violence more effectively or heinously. Just like first-time firearm buyers, the people in these situations could not commit acts of firearm violence (or could commit only less deadly acts of firearm violence) without new firearms, making it worthwhile for Appellant to delay delivering firearms to all people subject to the Waiting Period Laws.
(Internal citations omitted)
In the Attorney General’s estimation, absent a 10 day waiting period, current gun owners might receive a mental health hold, surrender their firearms to law enforcement, rush down to their local gun store, buy a rifle (beating the DOJ BOF’s database updates), and go on to kill themselves or others. Harris expresses her grave concern over the possibility that someone will pass a background check on Day 1, only to fail it on Day 10.
THE THREAT OF CCW LICENSEES
Finally, Harris explains what “errors” of fact or law she believes the District Court made in issuing its prior decision. According to Harris, CCW licensees and holders of COEs are violent potential psychopaths just waiting for a bureaucratic loophole to unleash their inner demons.
Harris argues that, “[t]here is no evidentiary basis for finding that CCW permit holders are unlikely to be violently impulsive, or are likely to be deliberative and reflective about firearm use, or are unlikely to engage in straw purchases.” In reality, some studies have found CCW licensees notably less likely to commit a gun-related crime than even active law enforcement officers. (Many studies have shown that carry licensees are some of the safest and conscientious people around.)
Harris goes even further, imagining a scenario where CCW licensees and holders of a COE realize that they are able to instantly pass background checks and scheme to sell their privileged status to others as ‘preferred straw purchasers’:
It is reasonable to assume that, under the final judgment, there will emerge a certain group of subsequent purchasers who are routinely auto-approved for firearm purchases, and thus are able to obtain firearms very quickly. These people likely will come to recognize their “favored” status in firearm transactions. They will have natural incentives to become straw purchasers for the many other people who, even though legally permitted to obtain firearms, otherwise would have to wait at least several days for CIS Analysts to conduct their background checks manually and approve the purchases. There likely will be an increase in the number of illicit straw purchases, and California will have ever-less accurate and complete records about which people purchased which firearms.CONCLUSION
The State of California, through defendant Attorney General Kamala Harris, is desperately trying to provide a justification, any justification, for imposing an unnecessary and continuing burden on law-abiding gun owners. To do so, they have been forced to hypothesize increasingly-unlikely scenarios where law abiding gun owners – even those in possession of a CCW or a COE – fall into illegality, yet would have been stopped by a full 10-day wait.
You can read all of the appeal filings at the dedicated Silvester v. Harris case website.