News

SAN FRANCISCO - Earlier today, the Ninth Circuit Court of Appeals granted a motion to prioritize the Second Amendment lawsuit Silvester v. Harris, a challenge to California's 10-day waiting period laws.
The motion was filed by Donald Kilmer, an attorney for the plaintiffs-appellees that include Jeff Silvester, Brandon Combs, The Calguns Foundation, and the Second Amendment Foundation.
In the motion, Kilmer argued that "Good cause exists to expedite oral argument in this matter" because:

1. The current stay prevents enforcement of the trial court’s injunction which is prejudicial to Plaintiff-Appellees.
2. The current stay prevents enforcement of the trial court’s injunction so there is no prejudice to the Defendant-Appellants.
3. The trial court's judgment awarded injunctive relief to protect the constitutional rights of the prevailing plaintiffs. Further delay in this case results in the ongoing enforcement of an unconstitutional law against Plaintiffs-Appellees, as well as all other persons similarly situated throughout the State. This meets the statutory requirements of 28 U.S.C. § 1657 and Circuit Rule 34-3.
4. All principal briefs and amicus briefs have been filed.

The Court's decision to grant Silvester priority status means that the case "will receive hearing or submission priority" like the other priority civil cases under Circuit Rule 34-3.
CGF Chairman Gene Hoffman said, "Law-abiding Californians and members of the foundations are having their rights infringed by having to wait 10 days to buy a gun. It's never prejudicial to the State to follow the Constitution."
Responding to the development, Kilmer said, "I'm pleased and encouraged that the Ninth Circuit granted the opportunity to prioritize the hearing in this important Second Amendment constitutional case. We look forward to successfully concluding this litigation as soon as possible."
Gun owners who wish to support the case can make a tax-deductible donation to The Calguns Foundation.
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.

Attorneys for four California gun dealers filed an opening brief on Monday that asks the Ninth Circuit Court of Appeals to strike down a law that, they argue, is unconstitutional and violates their First Amendment speech rights.

The appeal follows a federal District Court judge’s ruling in July that allowed the restriction to temporarily stand while the case progresses further, even though, the Court held, California’s ban on handgun-related speech by licensed gun dealers likely infringes on their First Amendment speech rights, is probably unconstitutional, and likely doesn’t materially reduce crime.

The dealers’ lawsuit was filed last November after the State Department of Justice cited Tracy Rifle and Pistol, a firearm retailer and shooting range in San Joaquin County, for having building signs visible from the outside that include images of handguns. An adjacent window sign at Tracy Rifle, which shows a photograph of an AR-15 style rifle, was not cited by the DOJ. Under the challenged law, Tracy Rifle and other plaintiffs could lose their firearm dealer license if the signs are not removed. Through the lawsuit, they hope to keep their signs up--and their First Amendment right to display truthful information about the handguns they sell.

The gun dealers argue 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.”

While California Attorney General Kamala Harris, a defendant in the case, had argued that the law was useful in preventing handgun-related crime, the District 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.”

The firearm dealers are represented by attorneys Bradley Benbrook and Stephen Duvernay of Benbrook Law Group, and Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments. Before joining the UCLA faculty 20 years ago, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.

“I run one of the most heavily regulated and inspected businesses in existence, but it’s still illegal for me to show customers that I sell handguns until after they walk in the door,” explained Michael Baryla, the owner of Tracy Rifle and Pistol, in a November 10, 2014 statement. “That’s about as silly a law as you could imagine, even here in California.”

Attorney General Harris is expected to file her answering brief on September 21.

Case filings for Tracy Rifle v. Attorney General Kamala Harris can be viewed or downloaded 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.

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:

1. 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,


2. 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.
* * *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.

CPRC: NO DATA SUPPORTS ATTORNEY GENERAL HARRIS’ SPECULATIONS ABOUT THE WPL, BUT DATA DOES SUPPORT THE COURT’S CONCLUSIONS ABOUT CCW LICENSEES
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

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

FACT – THE WAITING PERIOD LAWS ARE NOT “LONGSTANDING”
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.)
CONCLUSION
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