View Full Version : Jeff Silvester v. Kamala Harris???

11-28-2012, 7:44 AM
While reading about other gun laws in various states in an attempt to persuade myself to move to Arizona (for many reasons one of which is firearms laws) I came across this lawsuit. Is it still in progress or what was the deposition?

Could we in California ever expect to live in a state where we don't have to wait 10 days?

Here's the article I read that prompted this question. I saw Brandon's name in the article so figured this would be a good place to ask.

The case is entitled Jeff Silvester et. al. vs. Kamala Harris, et. al and was filed in the District of California Federal District Court in Fresno.

The Calguns Foundation signed on to the lawsuit with the Second Amendment Foundation and three individual plaintiffs.

“The State has absolutely no reason to infringe the rights of California gun owners who already possess firearms when they buy another one,” said Jason Davis who is the attorney for the plaintiffs. “California currently requires the registration of handguns in California. And, beginning January 2014, it will also require the registration of all newly-purchased rifles and shotguns. Notably, California keeps a current database of all residents who are prohibited by state or federal law from owning or possessing firearms.”

The plaintiffs, Jeff Silvester, Michael Poeschl, and Brandon Combs have firearms registered with the State of California. Combs and Silvester also have firearms licenses issued by the state that constitute continuous background checks. The plaintiffs argue that their law abiding background coupled with extensive background checks should remove them from the “cooling off” period.

“In just about every other state in the U.S., I as a law-abiding gun owner, could walk in and after passing an instant national background check, walk out with a firearm to defend myself in my home,” said Poeschl. “What’s really frustrating is that California is one of the few states that force gun owners to register all handguns that they buy. If the state’s database saying that I already lawfully own a gun isn’t proof that I don’t need a ‘cooling-off’ period, then what is?”

Currently, if Californians want to legally conceal carry a firearm they have to pass more stringent background checks. In most counties, residents have to provide detailed reasons in order to carry a weapon. Acceptable reasons include carrying large amounts of cash to banks or other businesses, bodily threats, or a member of the court system.

“I have a license to carry a loaded firearm across the state,” Silvester said. “It is ridiculous that I have to wait another 10 days to pick up a new firearm when I’m standing there in the gun store lawfully carrying one the whole time.”

The “cooling off” period also affects gun collectors.

“As a collector, I submitted to a Live Scan background check and obtained a Certificate of Eligibility to Possess Firearms from the State of California at my own expense,” said Brandon Combs. “In the Internet era, where every California gun dealer has a computer connected directly to the State’s databases, there is no logical reason to force me to wait 10 days and make another trip simply because California doesn’t want to acknowledge the Certificate that it issued to me. I have registered guns, and I have the State telling me that I can possess guns, but for some reason I can’t exercise my constitutionally protected rights for another ten days? That’s insane.”

Currently California enforces some of the nation’s toughest gun laws and has banned numerous weapons that can be purchased legally in other states.

“This lawsuit seeks to prevent the infringement of gun owners’ rights and requests the 10 day ban on possessing firearms purchased not be applied to current gun owners who pass instant background checks,” Davis concluded.

11-28-2012, 7:56 AM
I agree with Davis' conclusion, but I believe this one is an uphill battle for two reasons:

1- It's too easy for an anti-court to duck this by saying this would be legislating from the bench.
2- The 9th Circuit.

11-28-2012, 8:06 AM
I found the original thread finally on Calguns (took a bit of searching) and I guess I found my answer... Waiting on a trial against waiting periods... Damn this state sometimes haha

11-28-2012, 1:00 PM
The issue will be the level of scrutiny and I expect games.

The 10 day waiting period is a "burden", but if the court comes up with the standard of "undue burden", they will uphold the 10 day wait.

You must understand that this law is designed to protect the children.

Now of course if the state passed a 3 day waiting period on abortions, that would be an undue burden on a woman's right to control her body.

Our twisted courts would probably say that since you already own guns, then your right of "self defense" is not unduly burdened since you already have a gun.

Still, the briefs and the eventual court ruling will probably be interesting exercises in creative legal writing.:mad:

This case will be one that will determine how strong Kamilla Harris's legal staff is in protecting state gun laws.

At this time in California, we have been against the individual counties, so even though the 10 day wait case may seem insignificant, it will set the stage for eventual attacks on the Roberti Roos bill and SB23.


11-28-2012, 1:20 PM
I'm a little confused (not all that uncommon).

I thought that the test for application of scrutiny that they were trying to use was "substantial burden" not "undue burden". I'm not entirely sure what all the implications of the difference might be (if my memory is correct), but I suspect that "undue burden" might be something that were talked about after the application of a level of scrutiny.

If, in fact, the substantial burden test is met, then it seems to me that either intermediate or strict scrutiny would result in a win for us.

Understand, I'm not predicting a win at the district level (or even the circuit level) given the current legal practices with regard to 2A law.

11-28-2012, 2:27 PM
The answer is that we don't know what form (historical-categorical) or level (strict, higher-than or at least intermediate, intermediate, higher than rational basis but not quite intermediate) of scrutiny that will be applied in the Ninth Circuit, or at SCOTUS for that matter, in this case.


11-28-2012, 5:10 PM
They'll say "Well even tho you own gun A, we don't necessarily know what your plan is with the potentially more dangerous gun B. Gun B might be a more destructive weapon and you might have something nefarious planned, so that secures the government's interest and you still have to wait 10 days."

11-28-2012, 6:02 PM
They'll say "Well even tho you own gun A, we don't necessarily know what your plan is with the potentially more dangerous gun B. Gun B might be a more destructive weapon and you might have something nefarious planned, so that secures the government's interest and you still have to wait 10 days."

Legislative findings, intent, and facts don't support that at all.

That isn't to say a judge wouldn't just make it up.


11-28-2012, 7:15 PM
Silvester has a bit of a gotcha in it. Either registration is a compelling government interest and thus is valid and useful to show you already own a gun and thus a waiting period is moot and doesn't even pass rational basis or registration is useless and doesn't serve a compelling government interest.

But even a 9th Circuit judge could figure out how two futile acts still create a compelling government interest I guess.


11-28-2012, 10:31 PM
I wonder if this will get to SCOTUS before I retire in 19 years?