Institute for Legal, Legislative and Educational Action
U.S. District Judge Roger Benitez, affectionately known as “Saint Benitez” among Second Amendment activists for his string of decisions striking down California gun control laws (decisions that have, unfortunately, largely been stymied by Ninth Circuit Court of Appeals judges), has unleashed his latest opinion on California Attorney General Rob Bonta in two cases that deal with a weaselly attempt by Gov. Gavin Newsom and state lawmakers to make it financially risky to challenge the state’s gun laws in court.
Shortly after the state of Texas passed their anti-abortion law allowing abortion providers to be sued by private citizens and the Supreme Court declined to block it from taking effect, Newsom declared his intent to fire a responding shot in the culture war; this one aimed at the Second Amendment.
SCOTUS is letting private citizens in Texas sue to stop abortion?!
If that's the precedent then we'll let Californians sue those who put ghost guns and assault weapons on our streets.
If TX can ban abortion and endanger lives, CA can ban deadly weapons of war and save lives. https://t.co/N5Iur9PEUZ
— Gavin Newsom (@GavinNewsom) December 12, 2021
Not long after the Supreme Court issued the Bruen decision, Newsom and his legislative allies approved SB 1327, which not only allows California residents to bring their own lawsuits against companies that violate California gun control laws, but imposed a new fee shifting standard on plaintiffs who challenge any of the state’s gun control measures: unless the plaintiffs are successful on each and every complaint they allege, they’re responsible for paying 100% of the state’s attorneys fees. If, on the other hand, the plaintiffs do manage to meet that impossibly high bar, the state is not obligated to pay a dime of their costs.
Two lawsuits were immediately filed in the wake of SB 1327’s enactment; Miller v. Bonta, brought by the Second Amendment Foundation and the Firearms Policy Coalition, and South Bay Rod & Gun v. Bonta from a coalition including the Citizens Committee for the Right to Keep and Bear Arms (where, in full disclosure, I serve as an unpaid board member), Gun Owners of California, Second Amendment Law Center, and the California Rifle & Pistol Association.
On November 28th, Judge Benitez held a hearing on a request for an injunction in the cases. The arguments from the plaintiffs were quite simple; in fact, they were able to throw Bonta’s own words back in his face, since the California AG had previously filed an amicus brief in the challenge to the Texas abortion law on constitutional grounds. Bonta is now forced to defend the very practice he declared unconstitutional just a few months ago, and his chief argument was a weak one: his claim that he won’t enforce the law unless or until the Supreme Court has officially ruled on the constitutionality of the Texas abortion statute. That stance, he argued, should be enough to moot both of these cases, but in today’s ruling Judge Benitez rejected Bonta’s defense in no uncertain terms.
The American court system and its forum for peacefully resolving disputes is the envy of the world. One might question the wisdom of a state law that dissuades gun owners from using the courts to peacefully resolve disagreements over the constitutionality of state laws.
The law at issue here is novel. As four concurring Justices recently said in a Texas case with similarities, “where the mere ‘commencement of a suit,’ and in fact just the threat of it, is the ‘actionable injury to another,’ the principles underlying [Ex parte] Young authorize relief against the court officials who play an essential role in that scheme. Any novelty in this remedy is a direct result of the novelty of Texas’s scheme.” Whole Woman’s Health, 142 S. Ct., at 544-45 (citations omitted). The same principles authorize relief against the state officials here.
If Defendant Attorney General committed to not enforcing § 1021.11 and entered into a consent judgment binding himself, his office, his successors and district attorneys, county counsel, and city attorneys, it might be a closer question. Again, this does not prevent future Attorneys General or other state statutes from being enacted and enforced. But that is not this case. In this case, the commitment of non-enforcement is conditional. The Defendant Attorney General says that his cessation of enforcement in a seeming case of tit-for-tat will end if, and when, a purportedly similar one-sided fee-shifting Texas statute is adjudged to be constitutional. Certainly, that condition may or may not occur. In the meantime, the statute remains on California’s books. And the actual chilling effect on these Plaintiffs’ constitutional rights remains. Therefore, the case is not moot.
Bonta’s attempt to avoid having to defend the indefensible has failed, and both Miller and South Bay Rod & Gun will now move forward. In response to Benitez’s decision, Second Amendment Foundation founder Alan Gottlieb declared that “California cannot be permitted to use the law to suppress constitutional challenges to its increasingly radical gun control schemes”, and today’s decision is a key step towards a broader decision consigning SB 1327 to the dustbin of history.