October 2024 Legislation/Litigation Update
October Focus
Ammunition Purchase Fee increase proposed
As authorized by Penal Code section 30370, subdivision (e), the Department’s current regulations established a $1.00 fee for a Standard Ammunition Eligibility Check (SAEC) and $1.00 fee for a COE Verification check. (Cal. Code Regs., tit. 11, §§ 4282, 4285.) This fee has not been sufficient to cover the Department’s operating costs for the ammunition authorization program.
Effective January 1, 2024, the Department is allowed to raise the fee for a SAEC and COE Verification check to cover the reasonable regulatory and enforcement costs for operating the ammunition authorization program. (Pen. Code, § 30370, subd. (e).) The proposed regulation raises the fee for a SAEC and COE Verification check from $1.00 to $5.00.
This rulemaking did undergo a 45-day public comment period. Any person or their authorized representative could submit written comments regarding the proposed regulatory action. The written comment period closed at 5:00 pm on October 8, 2024. All timely comments that specifically pertain to the proposed regulations will be reviewed and responded to by Department staff.
Official information: https://oag.ca.gov/firearms/regs/ammofee
B&L Productions v Newsom
In a combined case dealing with gun shows on state property, including fairgrounds, the Ninth Circuit Court of Appeals has lifted the injunction that allowed gun shows to continue on state property until the case is finally resolved. Even though the state did not oppose a motion to stay the ruling pending appeal, the court declined to stay the order and vacated the existing injunction. This action effectively ends gun shows on state property, including most fairgrounds. The order also says that costs are awarded to the state in both cases.
CRPA has filed an emergency application to the Supreme Court to protect the injunction in the interest of justice.
May v Bonta is a challenge to SB2 changes to CCW regulations. SB2 made much of the state into “sensitive places” where concealed carry of firearms would be illegal, even with a CCW permit. The training and application process to obtain and renew a CCW became for difficult and expensive. The trial court issued a preliminary injunction that prevented the new “sensitive places” regulations from being enforced. On December 24 (yes, Christmas Eve), 2023, a motions panel of the Ninth Circuit Court of Appeals stayed the lower court order and allowed the “sensitive places” rules from going into effect January 1. On January 6 the merits panel of the Ninth Circuit dissolved the stay; this reinstated the district court Preliminary Injunction declaring that the “sensitive places” part of SB2 unconstitutional. The “sensitive places” provisions of SB2 had not taken effect due to the district court’s preliminary injunction, although the other provisions are in effect while being challenged.
A hearing on May v Bonta, combined with two other cases regarding new CCW carry restrictions, was held April 11, 2024, in front of a three-judge panel of the Ninth Circuit. The panel issued an order affirming the District Court’s ruling in part and reversing it in part.
The ruling means that CCW holders may not concealed carry in the following places:
- Bars and Restaurants that serve alcohol
- Playgrounds, Youth Centers, Parks, Athletic Areas and Athletic Facilities
- Most real property under the control of the Department of Parks and Recreation or Department of Fish and Wildlife
- Casinos and similar gambling establishments
- Stadiums and Arenas
- Public Libraries
- Amusement Parks
- Zoos and Museums
- Parking areas and similar areas connected to those places
- Parking areas connected to other sensitive places listed in the statute.
It is interesting to note that the ruling allowed the regulations for private property in Hawaii but left the private property rule in California enjoined. In Hawaii a property owner or manager can give verbal or written permission to concealed carry, but the California language (which is enjoined and not in effect) requires a DOJ approved sign to be posted saying concealed carry is allowed on that property.
The CRPA, et al, have filed an appeal for an En Banc review of the partial reversal of the Preliminary Injunction.
Further legal action will be taking place at the US District Court for the central district of California. This ruling deals with the Preliminary Injunction, the district court has not issued a final decision.
Legislation
SB 53, as amended, Portantino. Firearms: storage.
This law, beginning on January 1, 2026, requires a person who possesses a firearm in a residence to keep the firearm securely stored when the firearm is not being carried or readily controlled by the person or another lawful authorized user. For purposes of these provisions, a firearm is securely stored if the firearm is maintained within, locked by, or disabled using a certified firearm safety device or secure gun safe that meets specified standards. This law makes a first and 2nd violation of this offense punishable as an infraction, and a 3rd or subsequent violation punishable as a misdemeanor. This law exempts unloaded antique firearms, as defined, or firearms that are permanently inoperable from these provisions. This law requires the Department of Justice to seek to inform residents about these standards for storage of firearms. By creating a new crime, this law imposes a state-mandated local program.
Existing law makes it a misdemeanor or a felony if a person keeps a firearm within any premises that are under the person’s custody or control and the person knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child’s parent or legal guardian, and the child obtains access to the firearm and causes injury, other than great bodily injury, or death or great bodily injury to the child or any other person, or carries that firearm off-premises, as defined, to a public place or a school. Existing law exempts a person from the above provisions if the person has no reasonable expectation, based on objective facts and circumstances, that a child is likely to be present on the premises. This law removes these exemptions.
Passed By the legislature. Approved by the Governor September 24.
AB 3064, as introduced, Maienschein. Firearms.
(1) Existing law requires the Department of Justice to compile, publish, and maintain a roster listing all of the firearm safety devices that have been tested by a certified testing laboratory, have been determined to meet the department’s standards for firearm safety devices, and therefore may be sold in this state.
This law, commencing on January 1, 2026, authorizes the department to charge each entity that manufactures or imports into the state for sale any firearm safety device listed on the roster, an annual fee, as specified. This law additionally requires that any device newly added to the roster have certain information engraved or otherwise permanently affixed to the device. This law also requires any entity seeking to list a device to comply with specified business standards.
This law provides a process by which a device that has been removed from the roster for nonpayment of the fee, to be relisted. This law also provides a process for a device model that is identical to a listed model except for certain cosmetic differences to be listed without testing. These processes require the submission of certain statements signed under penalty of perjury.
By expanding the offense of perjury, this law imposes a state-mandated local program.
This law also requires the manufacturer of any device listed on the roster that becomes subject to a product recall, as specified, to notify the department, as specified. This law authorizes the department to remove the device from the roster if the manufacturer fails to provide this notice.
(2) Existing law requires any person, within 60 days of bringing a firearm into the state, to mail or personally deliver to the Department of Justice a report, as prescribed by the department, describing the firearm and providing personal information.
Existing law requires any sale, loan, or transfer of a firearm to be processed through a licensed firearms dealer. Existing law exempts from this requirement the transfer of certain firearms that are curios or relics to a licensed firearm collector. Existing law requires a collector who receives a firearm pursuant to these provisions, within 30 days after taking possession, to mail or personally deliver to the Department of Justice a report, as prescribed by the department, describing the firearm and providing personal information.
This law additionally allows the person to electronically submit these reports. This law also authorizes the department to request photographs of the firearm to determine if it is a prohibited weapon, as specified.
(3) Existing law exempts certain other transactions from the requirement to be processed through a licensed firearms dealer and does not require these transactions to be reported to the Department of Justice, including, without limitation, sales, deliveries, or transfers of firearms between importers and manufacturers of firearms, transfers of firearms to a gunsmith for repairs, loans of a firearm to a hunter, loans of a firearm to a person attending a police academy, and temporary transfers of a firearm for safekeeping, as specified. Existing law allows a person transferring or receiving a firearm pursuant to one of these provisions or a person moving out of state with a firearm to report that information to the department.
This law requires a report submitted pursuant to this provision to be submitted electronically and would prescribe the information to be included in the report. This law requires the department to establish a fee for submission of this information, as specified. This law also authorizes the department to request photographs of the firearm to determine if it is a prohibited weapon, as specified. The bill would make the filing of any false information pursuant to this provision a crime punishable as a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.
This law requires the department, upon receipt of this information, to examine specified records to determine if the transferee is prohibited from possessing a firearm.
The law makes other conforming changes.
Passed By the legislature. Approved by the Governor September 24.
SB 1002, as introduced, Blakespear. Firearms: prohibited persons.
Existing law prohibits a person who has been taken into custody, assessed, and admitted to a designated facility, or who has been certified for intensive treatment after having been admitted to a designated facility, because the person is a danger to themselves or others as a result of a mental health disorder, from owning a firearm for a period of 5 years after the person is released from the facility, or for the remainder of their life if the person has previously been taken into custody, assessed, and admitted one or more times within a period of one year preceding the most recent admittance. Existing law requires the facility to submit a report to the Department of Justice containing information that includes, but is not limited to, the identity of the person and the legal grounds upon which the person was admitted to the facility. Existing law allows a person who is prohibited from owning a firearm pursuant to these provisions to request the court for a hearing to reinstate the person’s right to own a firearm and requires the facility to provide a person subject to the prohibition with the “Patient Notification of Firearm Prohibition and Right to Hearing Form” informing the person of the firearm prohibition and their right to request a hearing.
This law, among other things, instead requires the 5-year prohibition to commence on the date that the facility makes the above-described report to the Department of Justice, and would require the Department of Justice to, within 7 days of receipt of the report from the facility, notify a person subject to the above-described provisions of the firearm prohibition and their right to request a hearing to reinstate their right to own a firearm. A person subject to the firearms prohibition shall relinquish any firearm, ammunition, or firearm magazine they own, possess, or control within 72 hours of discharge from a facility, as specified, and would require the “Patient Notification of Firearm Prohibition and Right to Hearing Form” to include information on the relinquishment requirement.
Existing law also prohibits a person who has been found not guilty by reason of insanity of specified crimes and a person who has been placed under conservatorship by a court because the person is gravely disabled as a result of a mental disorder or impairment by chronic alcoholism from purchasing or receiving, or attempting to purchase or receive, or having possession, custody, or control of any firearm or any other deadly weapon.
This law requires the court to inform the above-described persons, and their conservator, if applicable, of how the person may relinquish any firearm, ammunition, or firearm magazine in the person’s possession, custody, or control according to local procedure, and the process for submitting a receipt to the court to show proof of relinquishment.
Passed By the legislature. Approved by the Governor September 24.
SB 902, as introduced, Roth. Firearms: public safety.
Existing law, subject to exceptions, provides that any person who has been convicted of certain misdemeanors may not, within 10 years of the conviction, own, purchase, receive, possess or have under their custody or control, any firearm and makes a violation of that prohibition a crime.
Existing law, with certain exceptions, makes it a crime to maliciously and intentionally maim, mutilate, torture, wound, or kill a living animal.
This law provides that any person convicted of a misdemeanor violation of the above-described crimes, on or after January 1, 2025, may not, within 10 years of the conviction, access a firearm as described above, and makes a violation of that prohibition a crime. Because a violation of these provisions would be a crime, and because this law expands the application of the crime to a larger class of potential offenders, this bill would impose a state-mandated local program.
Passed By the legislature. Approved by the Governor September 24.
AB 2739, as introduced, Maienschein. Firearms.
(1) Existing law requires any weapon that was carried unlawfully for specified crimes to be surrendered to specified law enforcement entities. Existing law requires weapons surrendered pursuant to these provisions to be destroyed by the law enforcement entity.
This law additionally requires a weapon carried unlawfully for those crimes to be surrendered to law enforcement if the defendant is granted diversion for the underlying crime.
(2) Existing law prohibits the carrying of a concealed firearm, as specified and except as exempted. Under existing law, a handgun carried in violation of this provision is a nuisance and is subject to forfeiture and destruction, as specified.
Existing law also prohibits carrying a loaded firearm in public, as specified and except as exempted, and openly carrying an unloaded handgun in public, as specified and except as exempted.
This law deems any firearm carried in violation of either of these provisions to be a nuisance and subject to forfeiture and destruction, as specified.
Passed By the legislature. Approved by the Governor September 24.
AB 1252, as amended, Wicks. Office of Gun Violence Prevention.
Under existing law, the Department of Justice is responsible for carrying out several functions related to the sale, delivery, and transfer of firearms, including maintaining a centralized list of all persons licensed to sell firearms and inspecting firearms.
This law establishes, within the Department of Justice, the Office of Gun Violence Prevention. This law further establishes, within the Department of Justice, a Commission to End Gun Violence. This law requires the commission, within one year of its creation, to issue a public report discussing the implementation, coordination, and effectiveness of gun violence prevention laws and programs, as specified.
Passed By the legislature. Approved by the Governor September 24.
For information on bills in the California legislature: https://leginfo.legislature.ca.gov/faces/billSearchClient.xhtml
Litigation
Snope v Brown (formerly Bianchi v Brown)
This challenge to the Maryland ban of assault weapons and high-capacity magazines has been granted certiorari by the Supreme court, to be heard during the term that began October 7.
Smith & Wesson Brands v Estado Unidos Mexicanos
The government of Mexico filed a 10 billion Dollar lawsuit seeking to hold U.S. gun manufacturers liable for violence involving firearms in Mexico. The U.S. district court judge dismissed the case based on the Protection of Lawful Commerce in Arms Act. This law prevents gun manufacturers, distributers, and dealers from being liable for the use of their products in crimes.
The First Circuit Court of Appeals reinstated the case. The Defendants appealed this ruling to the Supreme Court, and the court has granted certiorari, with the case to be heard in the term that began October 7.
Van Der Stok v Garland is a challenge to the ATF rules change regarding frames and receivers, filed by the Firearm Policy Coalition. The 5th Circuit Court of Appeals ruled against the ATF rule change in February, saying they had overstepped their statutory authority. The government petitioned the Supreme Court arguing that the 5th circuit wrongly ruled in FPC’s favor. The Supreme Court has granted certiorari and heard oral arguments in the government’s appeal October 8. Note that this is not a Second Amendment case and may have little or no effect in California.
Nguyen v Bonta is a challenge to California’s one gun per thirty days purchase rationing. Judge William Q. Hayes of the US district court for California’s southern district granted the plaintiff’s motion for summary judgment, declaring the one firearm in thirty days limit unconstitutional. The order has been stayed pending appeal by the Ninth Circuit Court of Appeals motion panel. Oral arguments were held August 14. The three-judge merits panel from the Ninth Circuit Court of Appeals indicated that they would uphold the trial court ruling that the one in thirty rationing is unconstitutional. The panel further vacated the stay on that ruling imposed by the Ninth Circuit motions panel. At the time this report is published the ruling has not been issued, but due to the stay being vacated it is currently legal to purchase as many firearms as you can afford. After the three-judge panel issues their final ruling, the state may appeal to an En Banc review by the Ninth Circuit or directly to the Supreme Court. If the Ninth Circuit Court accepts an appeal for an En Banc review the ruling of the three-judge panel would be vacated and an eleven-judge panel would re-hear the case. At that time, they could reinstate the stay of the trial court ruling and we would be back to the one firearm purchase in thirty days limit.
United States v Duarte
A three-judge panel of the Ninth Circuit Court of Appeals had ruled in May, 2023, that Mr. Duarte should not be denied second amendment rights even though he is a convicted felon. The charge was non-violent and did not demonstrate that he is a danger to others. The Ninth Circuit has voted to re-hear the case En Banc. This vacates the ruling of the three-judge panel, and the case will be completely tried over before an eleven-judge panel. Judge Lawrance Van Dyke wrote a dissenting opinion, saying that the court should have allowed the previous ruling to stand. He noted that none of the current Supreme Court Justices had served in the Ninth Circuit and noted that opposition to the Supreme Court precedents on “the left coast” was common in second amendment cases heard by the Ninth Circuit.
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. The Ninth Circuit assigned the petition for a stay to the 11-judge panel that previously heard the case, rather than the normal process of sending it to a three-judge “motions panel”, and the 11-judge panel granted the stay on Judge Benitez’ ruling. A hearing on the merits by the same 11-judge “En Banc” panel was held March 19, 2024. We are waiting for a decision.
Jr. Shooting Sports Magazine v Bonta challenges the California ban on marketing or advertising firearms and firearm related products to youth. The district court denied the petition for a Preliminary Injunction against enforcing this. The denial was appealed to the Ninth Circuit Court of Appeals, where a three-judge panel ruled the district court erred denial of an injunction. The state then petitioned for an En Banc review of the three-judge panel’s decision. On February 20, the petition for an En Banc review was denied, and the case was returned to the district court to reconsider the Preliminary Injunction.
Rhode v Bonta challenges the ammunition background check and importation rules. The district court, Judge Benitez of the Southern District of California, ruled on January 30 that these regulations are unconstitutional and issued a permanent injunction against the state enforcing them. Judge Benitez did not stay his ruling, and there was a brief period when ammunition could be ordered from out of state and shipped straight to the consumer. The Ninth Circuit Court of Appeals did stay the injunction on February 5, and the regulations immediately went back into effect. The case is now on appeal to the Ninth Circuit. The court ordered briefs be filed by September 13, 2024. We are waiting for further action.
Boland V Bonta a challenge to the California Unsafe Handguns Act (AKA Pistol Roster) has been vacated and pended to Duncan v Bonta, which is the challenge to the “large capacity magazine” ban. Miller v Bonta, a challenge to the Assault Weapons Ban, had previously been pended to Duncan v Bonta. It appears the eleven judge En Banc panel will decide all three for the Ninth Circuit Court of Appeals.
A federal district court judge, the Honorable Josephine Staton of the Central District of California, has ruled the Assault Weapon Control Act constitutional and granted the state’s motion for summary judgement in Rupp v Bonta, which is a parallel case to Miller V Bonta. The judge held that the assault weapon ban did not infringe, because the second amendment only applies to “a well regulated militia.” This case had been previously decided by the district court, and that decision was upheld by the Ninth Circuit. It was on appeal to the Supreme Court at the time of the Bruen decision and was vacated and remanded back to the Ninth Circuit who remanded back to Judge Staton for reconsideration.
Richards v Bonta is a challenge to California’s ten-day waiting period. The Plaintiffs include the Firearms Policy Coalition, Second Amendment Foundation, California Gun Rights Foundation, San Diego County Gun Owners PAC, and several named individuals. The plaintiffs filed a motion for summary judgement on July 28.
Respectfully submitted,
David Smith
