Court Rejects Challenge to California’s Disclosure of Certain Gun Owner Records to Researchers

From Judge Larry Alan Burns’ decision today in Doe v. Bonta (S.D. Cal.):

Five California registered gun owners have filed suit to prevent Rob Bonta, Attorney General of the State of California, from enforcing a California law that permits the State to disclose their personal identifying information to bona fide research institutions for the ostensible purposes of preventing gun violence, shooting accidents, and suicide….

The gun owners, all of whom are law abiding citizens who passed background checks, raise four claims. First, they argue that AB 173 violates—or at minimum, chills—their Second Amendment right to keep and bear arms. Second, they maintain that disclosing their personal identifying information to non-government researchers violates privacy protections guaranteed to them by the Fourteenth Amendment. Next, they assert that AB 173 violates their right to due process under the Fourteenth Amendment by retroactively expanding access to their restricted personal information. Their final claim, applicable only to applicants for concealed weapon permits (“CCW”) and holders of such permits, is that federal law preempts AB 173 insofar as AB 173 authorizes disclosure of their social security numbers to third parties in derogation of the federal Privacy Act of 1974….

The court rejected the Second Amendment challenge:

Bruen didn’t undo all preexisting gun regulations. Licensing requirements, fingerprinting, background checks, and mandatory gun safety training courses exist in many states and operate as prerequisites to exercising the right to possess and carry firearms. The legitimacy of these longstanding and common regulations was recognized in District of Columbia v. Heller (2008) and in McDonald v. Chicago (2010)—a point acknowledged by Bruen….

What one gleans from these qualifications is that there is a difference between prohibiting a right and regulating the right; so long as the regulation of the right to keep and bear arms doesn’t amount to a prohibition of the right, the regulation is permissible. Read together, HellerMcDonald, and Bruen establish that “the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” Rather, the cases collectively confirm that the Second Amendment permits laws and regulations that precondition the right to keep and bear arms on the obligation to comply with such ministerial tasks as providing personal identifying information and submitting to a background check—provided that the overall regulatory regime is neither overly discretionary nor overly burdensome. Laws requiring gun owners to comply with such ministerial tasks are presumptively valid and don’t violate the plain text of the Second Amendment….

While Plaintiffs acknowledge the legitimacy of these regulatory prerequisites to gun ownership and possession, and expressly disclaim any purpose “to contest the statutory and regulatory scheme governing the collection of personal information in connection with firearms and ammunition transactions,” they maintain that disclosure of such information to third party researchers denies ordinary citizens the right to keep and bear arms. Central to Plaintiffs’ Second Amendment claims is the premise that sharing their personal information with outside gun research organizations jeopardizes their personal privacy and physical security. Plaintiffs hypothesize that if their identities are publicly revealed, they will be harassed, subjected to reprisals, and exposed to heightened risks of their homes being burglarized or becoming victims of violence. Notwithstanding that DOJ protocols and the California Penal Code forbid any approved research organization from publicly disseminating the personal information of gun owners, Plaintiffs argue that their information may still be hacked. They also surmise that renegade researchers—hostile to their Second Amendment rights—could surreptitiously release their information to the public. Either possibility, according to Plaintiffs, presents a threat of infringement to their Second Amendment rights.

The trouble with both arguments is that they are entirely speculative and predictive of harm that is completely attenuated from the plain text and core protections of the Second Amendment. Starting with the possibility of hacking, to date, there has been no claim—not to mention any evidence—that personal information supplied by the DOJ to either the UC Davis or Stanford research organizations has been hacked. And the probability of hacking, though it can never be completely foreclosed, has been greatly reduced by the requirement that all bona fide research organizations follow strict data security protection protocols set by the FBI and DOJ.

Even without such protocols in place, the Court is dubious that the threat of hacking alone is sufficient to state a Second Amendment infringement claim. The only personal information to which the research organizations have access is information previously collected by the DOJ. No doubt recognizing the State’s incontrovertible right to collect personal information from gun owners, Plaintiffs haven’t argued—nor could they—that the mere collection of such information violates their Second Amendment rights by improperly subjecting them to the threat of hacking. Nor have they presented evidence that there is any greater threat that data will be hacked from the research organizations than from the DOJ itself. Indeed, the only known unauthorized disclosure of gun owner data was the June 27 mishap for which the DOJ was entirely at fault.

Plaintiffs’ other fear—that dissident researchers might intentionally breach DOJ protocols by publicly leaking their personal information—is equally unsubstantiated. Again, to state the obvious, the possibility of a recusant, ideologically motivated employee gaining access to Plaintiffs’ personal information isn’t a risk that is peculiar to the UC Davis and Stanford gun research organizations. No doubt there are state employees, perhaps even some within the DOJ, with ideological axes to grind. But the mere possibility of misbehavior by a rogue activist isn’t sufficient to prove that Plaintiffs will be deterred from exercising their Second Amendment rights. This tenuous possibility existed when Plaintiffs first supplied their personal information to the State so they could lawfully acquire firearms, purchase ammunition, or obtain a CCW permit. Unfortunately, rogue actors are a problem every society must grapple with in this technological age.

Additionally, the speculative possibility of hacking or insider malfeasance existed prior to the adoption of AB 173 and didn’t prevent Plaintiffs from acquiring firearms and ammunition or obtaining or renewing CCW permits. Before AB 173’s adoption, all five Plaintiffs in this case were registered California gun owners and one was granted a CCW permit. The limited disclosure of private information for research purposes permitted by AB 173 doesn’t expose Plaintiffs to any novel risks or impose new burdens on them. Nor do these disclosures amount to an “abusive” practice that prevents Plaintiffs from acquiring additional firearms or ammunition or applying for or renewing a CCW permit in the future.

Plaintiffs’ alternative argument is that even if AB 173 doesn’t directly violate the Second Amendment, disclosure of their personal information to the research organizations chills their exercise of the right. A “chilling effect” on the exercise of a constitutional right occurs when a person seeking to engage in constitutionally protected activity is deterred from doing so by government regulations not specifically prohibiting the protected activity. The test is an objective one that asks whether a person of ordinary firmness would be deterred from exercising the protected right….

But considering the categorical prohibition on publicly disseminating any personal identifying information that the DOJ has imposed on the research organizations, the enhanced risks Plaintiffs fear are no more likely than the risks posed by many other California laws that compel citizens to furnish publicly available personal information. These include property title and land ownership registries, electoral rolls, and court documents. Applications for CCW permits and records of issuance of such permits are likewise considered public documents open to inspection in California unless the public interest clearly weighs against their disclosure. The pervasiveness of such publicly available personal information weighs strongly against the objective reasonableness of Plaintiffs’ “chilling effect” claim.

For these reasons, the Plaintiffs’ Second Amendment facial challenge to AB 173 fails. Permitting gun owners’ information to be shared under strict privacy protection protocols for legitimate research purposes is merely a limited extension of the “presumptively lawful regulatory measures” that permit states to collect information from gun and ammunition purchasers and CCW permit applicants in the first place. Ancillary regulations like these don’t restrict conduct covered by the plain text of the Second Amendment and are permissible….

Click here to read the full article in Reason.com

San Jose gun owners to be fined up to $1,000 for breaking new firearm law

“A $1,000 fine for simply exercising your God-given right to keep and bear arms unless you bow down, buy insurance, and kiss their ring is simply atrocious,” said one opponent about the city’s new rules

San Jose’s new gun control law just got a bit stricter.

Gun owners in the nation’s 10th largest city who disobey a requirement to carry liability insurance and pay a yearly fee will have to fork over up to $1,000 in fines as part of San Jose’s unique and controversial push to combat gun violence — a novel legislative approach that has triggered a challenge in federal court and has 2nd Amendment supporters up in arms.

The insurance and fee requirements — first approved by council members in January — make San Jose the first city in America to impose such rules against gun owners.

Proponents of the new mandate, championed by Mayor Sam Liccardo since 2019, argue that it will motivate safer gun handling and help counter the public cost of gun violence, which health officials found in a May report amounts to $72 million a year for Santa Clara County.

But opponents, who filed a lawsuit against the requirements moments after the council passed them in January, argue that the rules are unconstitutional, burdensome and that the city hasn’t proven they will prevent gun violence. Plaintiffs in the ongoing lawsuit are the Colorado-based National Association for Gun Rights, the state’s Howard Jarvis Taxpayers Association and San Jose resident Mark Sikes.

The new fines approved Tuesday by the San Jose City Council brought a scathing response from the gun rights association.

“San Jose is hell-bent on disarming law-abiding gun owners anyway possible, at least as far as they can get away with in the courts,” wrote NAGR’s Policy Director Hannah Hill. “And a $1,000 fine for simply exercising your God-given right to keep and bear arms unless you bow down, buy insurance, and kiss their ring is simply atrocious.”

She added, “That’s why we’re suing to overturn this unconstitutional ordinance, and we look forward to rescuing law-abiding San Jose gun owners from these greedy, anti-gun council members.”

SAN JOSE, CA - January 26: Attorney Harmeet Dhillon speaks during a press conference at City Hall in San Jose, Calif., on Jan. 26, 2022. National Association for Gun Rights and San Jose resident Mark Sikes filed a lawsuit against the City of San Jose's newly passed ordinance requiring San Jose residents to obtain firearm liability insurance and pay a fee. (Dai Sugano/Bay Area News Group)
SAN JOSE, CA – January 26: Attorney Harmeet Dhillon speaks during a press conference at City Hall in San Jose, Calif., on Jan. 26, 2022. National Association for Gun Rights and San Jose resident Mark Sikes filed a lawsuit against the City of San Jose’s newly passed ordinance requiring San Jose residents to obtain firearm liability insurance and pay a fee. (Dai Sugano/Bay Area News Group) 

The penalties passed on Tuesday escalate for each offense. A gun owner’s first and second violation will cost them $250 and $500, respectively. A $1,000 fine will be levied against a third and any future infraction. The city’s police department will be in charge of enforcing the fines.

“City staff is moving forward with regulations needed to implement this first-in the-nation law to reduce gun deaths and injuries with a careful, balanced approach,” the mayor wrote in a statement. “I look forward to seeing this up and running next year.”

The mayor has been formulating the new gun rules ever since the mass shooting at the now-defunct Gilroy Garlic Festival in 2019 — and pressure further mounted after a gunman massacred his fellow colleagues at a Valley Transportation Authority rail yard last year.

January’s Gun Harm Reduction Ordinance, which sparked national headlines amid rising concerns about gun violence across the country, requires firearm owners in the city to purchase a gun, homeowner’s or renter’s liability insurance policy which covers any damages as a result of negligent or accidental use.

The ordinance also mandates that gun owners pay a $25 fee every year to a nonprofit that will distribute funds to mental health and suicide prevention services for those who own a firearm or live with someone who does. The nonprofit is being set up by local health officials and academics will provide a bi-annual report on its work.

Researchers estimate that San Jose has between 50,000 and 55,000 gun owners, which would garner the nonprofit over $1 million a year.

Though the fines on Tuesday were approved by councilmembers unanimously on consent, January’s law was opposed by Councilmember Dev Davis. Councilmembers Pam Foley and Matt Mahan, a candidate for mayor running against County Supervisor Cindy Chavez, opposed the nonprofit fees.

Click here to read the full article at the Mercury News

Supreme Court Could Legalize Open Carry in California

The Second Amendment “right to keep and bear arms” soon could be restored to California. Time magazine described the issue at hand in hearings before the court at hearings on Nov. 3. The court “majority appeared to question the constitutionality of a century-old provision in New York state that requires people to prove they have a special need for self-protection if they want to carry a concealed handgun outside of their home.”

California imposes similar restrictions on carrying a concealed handgun. If the New York law is ruled unconstitutional, that likely also would blast away California’s similar restrictions. Although the court is unpredictable, so nothing is definite until the final wording is released.

A big problem with such state restrictions on concealed carry is their arbitrary nature toward honest, law-abiding citizens. (Not at issue is whether criminals can carry concealed weapons; bans on that would remain in place.)

In California, county sheriffs decide who can and cannot get a permit. The rules vary greatly. The liberal coastal county sheriffs generally impose tight restrictions, while rural inland sheriffs generally allow anyone who is a law-abiding citizen, and takes a gun safety course, to be granted a permit.

But the restrictions also vary with the sheriff. The late Sandra Hutchens, while sheriff of Orange County from 2008-19, was highly restrictive. But her successor, Don Barnes, ran and won in 2018 on a platform of advancing gun rights. He recently wrote on his personal website, “In my view any law-abiding citizen who seeks a permit has the right to have one issued.” He said that, since he became sheriff, the Orange County Sheriffs’ Department has issued more than 10,000 permits to residents; Orange County’s population is 3.2 million. “Not one person has misused their permit.”

Click here to read the rest of the article at the Epoch Times

Needles declared itself a “2nd Amendment Sanctuary” city

One of San Bernardino County’s easternmost cities wants to be a sanctuary, not for undocumented immigrants, for gun owners.

Needles this month declared itself a “Second Amendment Sanctuary City” a message that city leaders say is partly about support for gun rights and partly a desire to get an exemption from state law so out-of-state gun owners can travel through town and for residents to purchase ammunition.

The former railroad town of about about 5,000 is near the Colorado River, close to the Arizona state line, and city officials say that California’s gun laws are prompting Arizona residents to stay out of Needles, hurting business in the town. …

Click here to read the full article from the Riverside Press-Enterprise

Gun Rights Showdown: Sunnyvale Restrictions Upheld By Appeals Court

As reported in the San Jose Mercury News:

Adding fresh ammo to the gun rights debate, a federal appeals court on Wednesday upheld Sunnyvale’s law restricting high-capacity gun magazines, concluding local officials did not run afoul of the Second Amendment by trying to reduce gun violence.

The 9th U.S. Circuit Court of Appeals rejected the arguments of groups such as the National Rifle Association, which contended the restrictions are unconstitutional and undermine gun owners’ right to protect their homes with ample firepower.

“Sunnyvale’s interests in promoting public safety and reducing violent crime were substantial and important government interests,” 9th Circuit Judge Michael Daly Hawkins wrote for a unanimous three-judge panel.

Click here to read the full article

SF Gun Case May Be Heading For Supreme Court


More than a dozen Second Amendment groups are asking the U.S. Supreme Court to take up a high-profile challenge to a San Francisco gun-control measure.

Led by the Firearms Policy Coalition, gun groups say the Ninth Circuit Court of Appeals erred in its decision to uphold San Francisco’s safe-storage law.

Under the ordinance implemented in 2007, the city “requires all residents who keep handguns in their homes for self-defense to stow them away in a lock box or disable them with a trigger lock whenever they are not physically carrying them on their persons.”

The groups referenced the 2007 case before the U.S. Supreme Court, District of Columbia vs. Heller, which upheld an individual right to “keep and bear arms” in the Second Amendment.

“The court should grant certiorari to reaffirm key principles concerning the scope and substance of the Second Amendment,” the groups wrote in their amicus brief. “Many lower courts have taken great pains to avoid the consequences of these decisions — defying a fundamental constitutional limitation this court made explicit in Heller. … At the forefront of this resistance is the lower courts’ refusal to follow this court’s command, made in Heller and reiterated in McDonald, that Second Amendment claims are not to be judged by unrestrained judicial interest balancing.”

Gun groups point to Heller decision

Last March, a unanimous three-judge panel of the Ninth Circuit Court of Appeals upheld the local restrictions on gun ownership, finding that gun storage mandates save lives.

“The record contains ample evidence that storing handguns in a locked container reduces the risk of both accidental and intentional handgun-related deaths, including suicide,” Judge Sandra Ikuta wrote in the ruling for the panel. She added that gun safes “may be readily accessed in case of an emergency.”

San Francisco wikimediaSecond Amendment groups have focused their arguments on the legal precedents, arguing that San Francisco’s regulations contradict the Heller decision, as well as McDonald vs. Chicago in 2009, which held the Second Amendment also applied to state laws.

“The Ninth Circuit’s lamentable decision in Jackson shows why it is the most overturned circuit court in the nation,” said Firearms Policy Coalition President Brandon Combs, one of the state’s leading gun rights activists. “The Supreme Court should take up this case not only to correct a clear wrong, but to stem the tide of judicial resistance in recognizing the right to keep and bear arms as fundamental Constitutional rights.”

He added, “The Second Amendment doesn’t protect second-class rights, and it’s time for courts to take the enumerated right to keep and bear arms at least as seriously as they do unenumerated rights like abortion.”

Other gun groups that have joined the Firearms Policy Coalition in filing the friend-of-the-court brief include the Second Amendment Foundation, the Calguns Foundation, Firearms Policy Foundation and California Association of Federal Firearms Licensees.

San Francisco City Attorney has “faith in the judiciary”

Six San Francisco residents, with the help of the National Rifle Association and the San Francisco Veteran Police Officers Association, first challenged the safe storage law in 2009. The case underscores the lengthy process of seeing gun-control restrictions ultimately become established law.  Long after the press conferences and publicity stunts, government attorneys struggle to defend the restrictions.

Scales of justice, wikimedia“I have complete faith in the judiciary to affirm our position that San Francisco’s gun safety laws protect the public in a manner that’s both reasonable and constitutional,” San Francisco City Attorney Dennis Herrera said in a 2013 press release on the case. “San Francisco has been a top target of the NRA for many years, and I’m proud of the efforts we’ve made to aggressively battle these legal challenges, and protect sensible gun laws that can save lives.”

As CalWatchdog.com has previously noted, the nation’s leading Second Amendment advocacy groups have begun to shift their efforts from the California Legislature to the courthouse. Since 2009, The Calguns Foundation has found great success in its legal challenges, which have targeted the implementation of concealed weapon permits and mandatory waiting periods.

A copy of the brief in the case of Espanola Jackson, et al. vs. City and County of San Francisco, et al., can be viewed at the Firearms Policy Coalition’s website.

Originally published at CalWatchdog.com

CA Bans Wildlife Hunting Contests


Wile E. Coyote is smirking.

Despite a robust and thriving population, coyotes have just received an unprecedented degree of legal protection from the Golden State. Bringing a longstanding rural tradition to an end, the California Fish and Game Commission cracked down on competitive hunting events, including those used to cull the animals.

Perhaps ironically, coyotes — and other “nongame species and fur-bearing animals” like bobcats and and beavers covered by the prize hunting ban — had a single, lone wolf to thank.

Animal conservation activists became aware that a particular wolf, known by the designation OR7 and nicknamed “Journey,” could have placed itself on a migratory collision course with a so-called “Coyote Drive.” The event, stretching across three days in California’s remote northeast county of Modoc, had already attracted the attention of protestors, as the San Francisco Chronicle observed.

Last year’s seventh annual drive drew fire from a score of conservation groups. In the contest, pairs of hunters aimed to win by killing the most coyotes; ties went to whichever team bagged the most coyotes in the least time.

While event organizers presented the drive as a means of population control, Project Coyote and other organizations succeeded in pushing the federal Bureau of Land Management to prohibit the drive on terrain it controls.

That effective mobilizing effort prepared the way for a second round of activism targeting California law. Claiming the Coyote Drive was simply one aspect of a larger problem, Project Coyote once again teamed with environmentalists and wildlife activists, pressing state regulators to wipe out prize hunting at a single stroke.

Again, they succeeded. By a 4-1 vote, the state Fish and Game Commission outlawed hunting competitions of any kind. In a statement, commission head Michael Sutton proclaimed the hunts “an anachronism” with “no place in modern wildlife management.” (Conservationists had argued that the Coyote Drive actually increased the animals’ breeding, as a result of the effectively random way it reduced their numbers.)

Persistent incentives

Although cash prizes in the Coyote Drive ran as high as $500, ranchers and rural Californians said plenty of incentives remained for them to kill coyotes that threaten their livelihood. The Fish and Game Commission did not ban one-off killings, and big money of a different kind awaits those willing to train a gun on the often marauding animals.

As Fox News noted, the latest numbers from the U.S. Department of Agriculture revealed cattle ranchers in-state “lost more than $4 million in 2010 to predators, and coyotes accounted for the largest number of attacks.”

Buck Parks, president of a Modoc County fishing and hunting club, told Fox News ranchers would “encourage folks to get out and help manage these predators by hunting them,” even if no prize events could be held.

Tolerant

Until further notice, California will remain as tolerant toward informal coyote kills as other states, most of which have not imposed bag limits on individual hunters. Outlawing or reducing that activity would pose a much greater challenge to activists, for whom the case for a ban would hinge more on animal-rights claims than on conservation.

Nevertheless, the defeat of the Coyote Drive has shifted policy in California far away from what state regulations permit around the country. “Frenchville, Pennsylvania, saw 4,000 hunters sign up for its 22nd annual coyote hunt earlier this year,” reported National Public Radio’s Nathan Rott. “Florida has its Python Challenge, and Texas, its Big Nasty Hog Contest.”

But Camilla Fox, one of Project Coyote’s founders, told Rott she and her fellow activists saw California’s prize hunt ban as a model with nationwide applicability. Hinting at a broader approach to come, she conjectured that “just as we have, as a nation, banned cockfighting and dog fighting, I do think that we will see an end to wildlife-killing contests.”

This article was originally published at CalWatchdog.com