February 2024 Legislation/Litigation Update
February Focus
Rhode v Bonta challenges the Prop 63 rules on ammunition purchases. Judge Roger Benitez has ruled background checks to purchase ammunition is unconstitutional. This is Judge Benitez’s final ruling and grants a permanent injunction against enforcing the ammunition background checks in Penal Code sections 30352 and 30370(a) through (e). The judge also enjoined enforcement of “anti-importation” provisions found in Penal Code sections 30312(a) and (b) and 30314(a). Judge Benitez did not issue a stay of his ruling pending appeal.
There was a period, called “Freedom Week 2.0” by some, when the ammunition background checks and the prohibition on purchasing out of state purchases, were not in effect. That period has ended.
A three-judge panel of the Ninth Circuit Court of Appeals, in a 2 to 1 decision consisting of one sentence, did stay Judge Benitez’s ruling, pending further appeal.
Proposition 63 was a ballot initiative passed in 2016. This lawsuit was originally heard by Judge Benitez and a preliminary injunction was granted, then appealed to the Ninth Circuit Court of Appeals and on to the US Supreme Court. After the NYSRPA v Bruen decision the Supreme Court remanded this case (and others) back to the Ninth Circuit, the Ninth circuit remanded it back to Judge Benitez to re-evaluate the merits of this case considering the Supreme Court guidance in the NYSRPA v Bruen decision.
Litigation
Duncan v Bonta is the challenge to the “High-Capacity Magazine” ban, which Judge Roger Benitez found unconstitutional in 2017. In 2018 a three-judge panel of the Ninth Circuit Court of Appeals upheld Judge Benitez’s ruling. The Ninth Circuit, responding to a petition from the state, then vacated the ruling of the three-judge panel and reheard the case En Banc, meaning an eleven-judge panel. The En Banc ruling reversed Judge Benitez’s ruling. The case was appealed to the Supreme Court, which agreed to hear the case, vacated the Ninth Circuit ruling, and remanded the case back to the Ninth Circuit to reconsider the case in light of the Bruen decision. NYSRPA v Bruen is a Supreme Court decision that includes clear direction to inferior courts on how to handle second amendment cases. The Ninth Circuit in turn remanded the case back to Judge Benitez. Judge Benitez has again found the “High Capacity Magazine” ban unconstitutional, and issued an injunction against the state enforcing Penal Code Section 31320. Judge Benitez stayed his order for ten days to allow the state to appeal back to the Ninth Circuit Court of Appeals, which the Attorney General did and was granted a stay. A hearing has been scheduled in March, 2024.
Renna v Bonta on the California Unsafe handgun roster was remanded back to the trial court for reconsideration in light of Bruen.
On March 31 the Honorable Dana M. Sabraw, Chief Judge of the US District Court for the Southern District of California, has issued a preliminary injunction against the state enforcing three of the six requirements for semi-automatic pistols to be added to the roster. The judge ruled that requiring a loaded chamber indicator, a magazine disconnect, or microstamping for a pistol to be included in the roster are unconstitutional. In addition, the judge ruled that the “one on/three off” provision is unconstitutional. This preliminary injunction would prevent the state from enforcing California Penal Code section 31910 (b)(4) to (b)(7). The injunction was stayed to allow the state time to appeal, and the Ninth Circuit granted a stay on appeal.
Boland v Bonta is a lawsuit challenging the California handgun roster imposed as part of the Unsafe Handgun Act.
Judge Cormac J. Carney, of the US Central District Court for California on March 20 issued a preliminary injunction against the state enforcing three of the six requirements for semi-automatic pistols to be added to the roster. The judge ruled that requiring a loaded chamber indicator, a magazine disconnect, or microstamping for a pistol to be included in the roster are unconstitutional. This preliminary injunction would prevent the state from enforcing California Penal Code section 31910 (b)(4) to (b)(6).
Judge Carney stayed his order 14 days to allow the state to appeal. The appeal was filed, but only appealed the injunction against the loaded chamber indicator and magazine disconnect. The finding in the injunction against microstamping was not appealed. The Ninth Circuit did order a stay of this preliminary injunction with regard to the loaded chamber indicator and magazine disconnect but did not stay the injunction against enforcing microstamping.
Note that these preliminary injunctions did not strike down the roster; they only said specific criteria were unconstitutional. Since these are preliminary injunctions the cases have not been completed or decided on the merits. These two preliminary injunctions do mean that two judges have ruled, among other things, that it is likely the plaintiffs (our side) will prevail when the cases are completed.
Miller v Bonta
The US District court for the Southern District of California, Judge Roger Benitez, again found elements of California’s “assault weapons” restrictions unconstitutional. On October 28, 2023, the Ninth Circuit Court of Appeals granted an administrative stay of that decision. Currently the restrictions in California Penal Code section 30515 remain in effect. The three-judge panel set to hear this case has pended it to the Duncan v Bonta case which will be heard by an en-banc panel of eleven judges of the Ninth Circuit, which deals with a different topic but may set precedent on how to decide this case.
Legislation
AB 29, as amended, Gabriel. Firearms: California Do Not Sell List.
Existing law makes possession of a firearm by certain classes of persons, including a convicted felon, a person convicted of specified misdemeanors, a person has been found mentally incompetent to stand trial, a person has been found not guilty of specified crimes by reason of insanity, or a person has been placed under conservatorship, a crime. Existing law additionally makes it a crime to sell or give possession of a firearm to these classes of persons prohibited from owning a firearm.
Existing law requires the Department of Justice, upon submission of firearm purchaser information by a licensed firearm dealer, to examine its records to determine whether a potential firearm purchaser is prohibited by state of federal law from possessing, receiving, owning, or purchasing a firearm. Existing law requires the department to participate in the National Instant Criminal Background Check System.
This bill would require the Department of Justice to develop and launch a secure Internet-based platform to allow a person who resides in California to voluntarily add their own name to the California Do Not Sell List. The bill would require the department to ensure that information on the list is uploaded and reflected in the National Instant Criminal Background Check System. The bill would make it a crime, punishable as a misdemeanor, to transfer a firearm to a person who is validly registered on the California Do Not Sell List. By creating a new crime, this bill would impose a state-mandated local program.
This bill would allow a person, after seven days, to request removal from the list. No sooner than 21 days after receiving the request for removal of a voluntary waiver of firearm rights, the department shall remove the person National Instant Criminal Background Check System (NICS).
The bill would require the State Department of Public Health to create and distribute informational materials about the California Do Not Sell List to general acute care hospitals and acute psychiatric hospitals. The bill would specify that a person presenting in a general acute care hospital or acute psychiatric hospital who is at a substantially elevated risk of suicide should be presented with these informational materials. The bill would specify that any suicide hotline maintained or operated by an entity funded in whole or in part by the state should generally inform callers on how to access the California Do Not Sell List Internet-based platform.
Held in submission by the Appropriations Committee.
AB 851, as amended, McCarty. Firearms: Urban gun free zone pilot program.
Existing law prohibits a person from carrying a concealed firearm or carrying a loaded firearm in public. Existing law exempts certain persons from this prohibition, including peace officers and persons licensed to carry a concealed firearm.
This bill would authorize the City of Sacramento to establish a pilot program that would, until January 1, 2029, declare a specified area of the city to be a gun free zone. The bill would, in addition to any other applicable offense, make possession of a firearm within this area punishable as a misdemeanor. The bill would provide specified exemptions.
By creating a new crime, this bill would impose a state-mandated local program.
The bill would, upon completion of the pilot program, require the city to prepare and submit a report to the Legislature.
AB851 Exclusions:
(a) Possession of a firearm within a private residence by, or with the consent of, the owner or resident of that property.
(b) Possession of a firearm within a private business by, or with the consent of, the owner of the property or business.
(c) Possession of a firearm by any peace officer described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.
(d) Possession of a firearm by a licensed private patrol operator, armored car operator, or alarm operator, or licensed employee thereof, that is also licensed to carry a firearm and, within the course of business, is present within the gun free zone established pursuant to this division.
(e) Possession of a firearm by a licensed common carrier or an authorized agent or employee thereof when the firearm is being transported in conformance with applicable federal law.
(f) Possession of an unloaded firearm in a secure container that is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device, or within the locked trunk of a vehicle.
(g) The otherwise lawful possession of a firearm in a vehicle being operated on public roads.
Held by Committee on Public Safety
AB 1047, as amended, Maienschein. Firearms purchase notification registry.
Existing law generally regulates the sale and transfer of firearms, including, among other requirements and subject to exceptions, that the transfer of a firearm be conducted through a firearms dealer. Existing law, subject to exceptions, imposes a 10-day waiting period for delivery of a firearm, during which time a background check is conducted by the Department of Justice to determine if the proposed recipient of the firearm is prohibited from owning or possessing a firearm.
This bill would require the Department of Justice to develop and launch a secure internet-based platform to allow a person who resides in California to voluntarily add their own name to a registry that would advise a licensed behavioral health clinician of the person’s attempt to purchase a firearm during the 10-day waiting period. The bill would, at the time of registration, require the registrant to list the email address of a licensed behavioral health clinician and would require the department, as soon as practicable but within the 10-day waiting period, to provide notice by email to the provided address that the registrant is in the process of purchasing a firearm, the registrant voluntarily added their name to the registry, and the purpose of the registry is for a third party to potentially intervene and prevent the registrant from purchasing a firearm.
From the committee on Public Safety recommending “do pass”. Referred to the Appropriation Committee and held under submission.
SB 8, as amended, Blakespear. Firearms liability insurance.
Existing law requires any person who purchases or receives a firearm, as specified, to possess a firearm safety certificate. Existing law requires the Department of Justice to develop a written test required for the issuance of a firearm safety certificate. Existing law makes the violation of specified requirements with regard to firearms a misdemeanor or a felony, as specified.
This bill would, commencing on January 1, 2025, require a person who owns a firearm to obtain and continuously maintain in full force and effect a homeowner’s, renter’s, or gun liability insurance policy specifically covering losses or damages resulting from any negligent or accidental use of that firearm, including, but not limited to, death, injury, or property damage. This bill would require a person to keep written evidence of coverage in the place where a firearm is stored.
The bill would also require the Insurance Commissioner to set the minimum coverage for a policy required by the bill and to develop a standardized form of evidence of liability coverage.
At the Senate Committee on Insurance where a hearing was set for January 10, 2024, but then postponed.
Respectfully submitted,
David Smith
