Focus for February

Senate Bill 906: School safety: mass casualty threats: firearm disclosure

This bill would require the State Department of Education, in consultation with the Department of Justice, to develop model content for use by local education agencies related to a threat or perceived threat of an incident of mass casualties at a school. Using the model content, this bill would have the local agency require the parents or guardians of a pupil to disclose whether any firearms are located at the home of the pupil and to answer questions about the ownership, storage, and accessibility by the pupil of the firearms. The bill would also require the school to include information related to the safe storage of firearms in the annual notification provided to the parents or guardians of a pupil. If a school official is alerted to or observes any threat or perceived threat of an incident, the bill requires an immediate report to law enforcement. The education agency is required to conduct an investigation, including a review of the parent or guardian’s disclosure form, and a search of the pupil or pupil’s property if there is a reasonable suspicion that a gun or other evidence will be found. This bill was introduced and read the first time on 2 February, 2022.

Remember that last year the “red flag” laws were amended to add school officials to those who have standing to request a “Gun Violence Restraining Order” and have guns “temporarily” confiscated.

To read the bill:
https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=20212022SB906

Legislation

Senate Bill 915 Firearms: state property

Since the “no gun shows on state property” bill last session was eventually amended to only apply to Orange County, this is a new one to again try to make the ban statewide.
https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=20212022SB915

Assembly Bill 1223: Firearms and ammunition: excise tax
No action was taken by the deadline for the third reading and this bill died on February first. This would have applied 10% and 11% excise taxes on the sale of guns and ammunition.

Regulation
The Bureau of Alcohol, Firearms, Tobacco, and Explosives (ATF) has issued a rule that requires gun retailers to carry storage or safety devices for any gun they offer for sale. The notice of proposed rulemaking for this rule was published May 26, 2016. This rule was published in the Federal Register 4 January and became effective 3 February, 2022. This is implementing regulation for language in the budget bill passed in 1999. The ATF rule includes modern muzzle loading black powder firearms in the definition for “antique and replica” firearms.

The rulemaking document:
https://www.govinfo.gov/content/2022-01-04/pdf/2021-28398.pdf

Updates

The ATF rule changing the definitions of what constitutes a gun will likely be issued in June and the ATF rule on pistol braces will likely be issued in August.

Note: the Los Angeles city council has introduced a proposed ordinance patterned after the ordinance in San Jose that requires gun owners to pay fees and carry insurance.

Litigation

In January a three judge panel of the 9th Circuit Court of Appeals ruled that Los Angeles and Ventura county orders shutting down gun stores and shooting ranges were unconstitutional. Completely denying access to firearms and ammunition is a direct infringement on the Second Amendment. The court said that considering gun related businesses to be non-essential was not appropriate. The county orders were issued in March of 2020, in response to the COVID pandemic.

An amicus brief was filed this week on behalf of thirteen states and the District of Columbia supporting the lawsuit by Mexico against a number of US gun manufacturers and distributors. California Attorney General Rob Bonta is one of the signers.

Duncan v Bonta: The Ninth Circuit Court of Appeals En Banc panel has overturned the district court ruling that found the California “Large Capacity Magazine” ban unconstitutional. The lawsuit challenges the ban of possession of large capacity magazines that was approved by California voters in Prop 63. Enforcement of the ban was stayed, pending disposition of a petition filed with the Supreme Court.

Renna v Bonta on the California handgun roster is being considered for certiorari by the Supreme Court. Four justices are needed for the court to hear a case.

Bianchi v Frosh has been appealed to the Supreme Court and will also be considered. This suit challenges the Maryland ban on “assault weapons”. This case has also been distributed for review to the justices and will be considered for certiorari.

Doe v Bonta is a new lawsuit filed by the NRA to block the release of gun owner’s personal information to UC Davis and other, unspecified, “research organizations”. Information has already been given to UC Davis.

Respectfully submitted,
David Smith

Focus for January: California Assembly Bill 1594

AB-1594 is the beginning of the plan rolled out by Governor Newsom to allow third parties to sue members of the gun industry and make lawsuits against them generally easier to file. This appears to be an avenue to circumvent the “Protection of Lawful Commerce in Arms Act” (PLCAA).

More legislation is expected to be introduced to take this further. Updates to follow.

The Bureau of Alcohol, Firearms, Tobacco, and Explosives (ATF) has proposed a regulation that would require gun retailers to carry storage or safety devices for any gun they offer for sale. This could be safes, trigger locks, etc. This is another ATF proposed rulemaking that is not based on any change in legislation. This could increase costs for FFLs, and open the potential for more regulatory action. The notice also includes an ATF proposal to include modern muzzle loading black powder firearms in the definition for “antique and replica” firearms.

Litigation

The Ninth Circuit Court of Appeals En Banc panel has overturned the district court ruling that found the California “Large Capacity Magazine” ban unconstitutional. The lawsuit, know currently as “Duncan v Bonta”, challenged the ban of possession of large capacity magazines that was approved by California voters in Prop 63. The ruling issued November 30, 2021, overturns the ruling of the U.S. District Court of Southern California that was issued by Judge Roger Benitez. Judge Benitez’ ruling was stayed after a period known as “Freedom Week”. Estimates run up to a million large capacity magazines being purchased during that week, which will remain illegal due to this ruling by the 9^th Circuit.

Enforcement of the ban was stayed since it is expected the case will be appealed to the U.S. Supreme Court. This is a temporary stay for 150 days but will be extended if a petition is filed with the Supreme Court.

Other cases, including Rupp v Bonta, challenging the California Assault Weapons ban was pended to Duncan v Bonta, but the three judge panel of the Ninth Circuit that heard that case has indicated it will be pended to the Supreme Court case, New York State Rifle and Pistol Association v. Bruen.

Renna v Bonta on the California handgun roster will be considered for certiorari by the Supreme Court for the first time this Friday, 1/14. Four justices are needed for the court to hear a case.

Bianchi v Frosh has been appealed to the Supreme Court and will also be considered. This suit challenges the Maryland ban on “assault weapons”.

Doe v Bonta is a new lawsuit filed by the NRA to block the release of gun owner’s personal information to UC Davis and other, unspecified, “research organizations”.

Respectfully submitted,

David Smith

December 2021 Legislation/Litigation Update

Focus for December:

The Ninth Circuit Court of Appeals En Banc panel has overturned the district court ruling that found the California “Large Capacity Magazine” ban unconstitutional. The lawsuit, know currently as “Duncan v Bonta”, challenged the ban of possession of large capacity magazines that was approved by California voters in Prop 63. The ruling issued November 30, 2021, overturns the ruling of the U.S. District Court of Southern California that was issued by Judge Roger Benitez. Judge Benitez’ ruling was stayed after a period known as “Freedom Week”. Estimates run up to a million large capacity magazines being purchased during that week, which will remain illegal due to this ruling by the 9th Circuit.

Manufacture, importation, and transfers of large capacity magazines have been banned by Penal Code section 32310 (A) since January 1, 2000. In 2016, Proposition 63 added subsection (C) which bans possession of magazines that hold more than 10 rounds. That subsection was to take effect July 1, 2017, but was stayed pending the outcome of this lawsuit.

Enforcement of the ban was stayed as part of the court actions in Duncan v Bonta, but with the Appeals Court ruling that stay may be lifted. The case will be appealed to the U.S. Supreme Court, but there is no guarantee they will agree to hear it.

Another case, Rupp v Bonta, challenging the California Assault Weapons ban was pended to Duncan v Bonta, but the three judge panel of the Ninth Circuit that heard that case has indicated it will be pended to the Supreme Court case, New York State Rifle and Pistol Association v. Bruen.

For the exact wording of the large capacity magazine ban:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawcode=PEN&sectionNum=32310

For the definition of “large capacity magazine under the California Penal Code:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawcode=PEN&sectionNum=16740

Note that manufacture, import, transfer, or possession of large capacity magazines is banned under California Penal Code section 32310, the enforcement of the ban on possession has been temporarily stayed.

Potential Legislative Action

California Governor Gavin Newsom has stated that he wants the legislature to pass a law patterned after the Texas Abortion law, but applying to “assault weapons, ghost guns, and ghost gun parts”. This would allow private citizens to sue anyone who makes or sells those items, and allows the person who sues to collect a minimum of $10,000 from the lawsuit. This is currently only a talking point, but it could be introduced when the legislature is back in session.

Respectfully submitted,
David Smith