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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 10-03-2013, 10:54 AM
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Default Gentry v. Harris - CGSSA and NRA lawsuit Challenging DOJ Raid of DROS Fees

Copy of the complaint is here: http://michellawyers.com/wp-content/...f-Mandamus.pdf

This was posted earlier but the title was a bit vague.


Calgunlaws.com/california-department-of-justice-sued-for-misuse-of-firearm-purchaser-fee/

California Department of Justice Sued for Misuse of Firearm Purchaser Fee

Attorneys from the law firm of Michel & Associates, P.C. have filed a lawsuit on behalf of several individual gun owners and the Calguns Shooting Sports Association ("CGSSA"), challenging the California Department of Justice’s (DOJ) misuse of monies collected from a fee that DOJ can require firearm purchasers to pay at the time of sale, the Dealer Record of Sale (DROS) Fee. The lawsuit, assisted by the National Rifle Association, who has brought a federal lawsuit (Bauer v. Harris) seeking similar relief on Second Amendment grounds, seeks to stop DOJ from continuing to stick law-abiding gun owners with the bill for funding its general law enforcement projects through the DROS fee.

Should the court rule in Plaintiffs’ favor on SB 819 being void as an illegal tax, this request by Plaintiffs could very likely result in a lowering of the DROS fee.

The DROS fee was originally intended to fund DOJ’s background checks of prospective firearm purchasers. In fact, DOJ had always been statutorily required to limit the DROS Fee to an amount no more than necessary to recoup its costs incurred from regulating the transfer of firearms. Despite this statutory limitation, in recent years, the DROS Special Account had amassed a surplus of over $35 million, an extraordinary amount given that DOJ’s annual budget for the DROS program has averaged about $9 million a year during the last ten years.

Rather than lower the DROS fee or give firearm purchasers their money back, the Legislature passed Senate Bill 819 ("SB 819") in 2011, authorizing DOJ to use DROS Fee revenues for regulating the "possession" of firearms. This was an extreme expansion of DOJ’s statutory authority to use DROS Fee monies. And DOJ has been taking advantage of its new-found authority.

Since SB 819’s passage, DOJ has been shifting the main purpose of the DROS fee from funding background checks to funding DOJ’s enforcement of the Armed Prohibited Persons System ("APPS"). This shift culminated in the Legislature passing Senate Bill 140 ("SB 140") this year, which appropriated $24 million from the surplus in the DROS Special Account to exclusively fund DOJ’s enforcement of APPS enforcement activities, which primarily consist of DOJ officers and staff conducting investigations followed by SWAT-style raids on the residences of individuals DOJ believes illegally possess firearms. While there is a debate on whether APPS is beneficial or not (although, APPS does seem to be very problematic, as we have written about before, that is not the point in this lawsuit.

For purpose of this lawsuit, Plaintiffs are not challenging the legality of DOJ’s APPS programs. Nor are Plaintiffs contesting the legality of the DROS fee per se. Rather, Plaintiffs’ dispute is with DOJ’s misuse of the monies that the Plaintiffs and others are required to pay in order to lawfully purchase firearms.


First, Plaintiffs, complaint argues that SB 819 is an unconstitutional tax under the California Constitution, which requires that any new "levy, charge or exaction" be passed by a two-thirds "super-majority" vote of each house of the Legislature. By expanding the activities for which DROS fee revenues can be used and shifting the financial burden of such activities from the general fund to firearm purchasers, SB 819 is a new charge. Since it was not passed by such a super-majority, it is void and unenforceable as an illegal tax, unless DOJ can meet its burden to show that it is a "regulatory fee" and exempt from the super-majority vote. To do so, DOJ must show that SB 819 bears a fair or reasonable relationship to the DROS Fee payer’s burdens on, or benefits received from DOJ’s regulation of firearm possession. That it cannot do. Enforcement of APPS programs, for example, extends far beyond those activities reasonably related to the DROS Fee payer or the reason the DROS program was originally established – data collection and background checks. APPS involves general law enforcement activities that should be funded by the General Fund, not by lawful firearm purchasers. Thus, SB 819 is an illegal tax and should be voided.

Likewise, Plaintiffs contend that because SB 819 is void, the Legislature’s appropriation of the $24 million from the DROS Special Account to DOJ for enforcement of APPS pursuant to SB 140, which relied on SB 819 for authority, is an illegal expenditure of funds. Plaintiffs therefore seek an injunction against DOJ from spending that money, and an order from the court ordering the State Controller to retrieve all monies given to DOJ pursuant to SB 140 and to return such monies to the DROS Special Account.

Finally, Plaintiffs also take issue with the fact that the DROS fee has resulted in such a massive surplus in recent years, and seeks an order from the court compelling the DOJ to review and reevaluate the amount at which it currently charges the DROS Fee. Should the court rule in Plaintiffs’ favor on SB 819 being void as an illegal tax, this request by Plaintiffs could very likely result in a lowering of the DROS fee.

There should be substantive movement on this case fairly soon. Stay tuned to http://www.calgunlaws.com/ to keep informed and updated. 



CGSSA Joins w/ Michel and Associates and NRA in suit Challenging DOJ Raid of DROS Fees
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Last edited by Kestryll; 01-17-2015 at 2:56 PM..
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  #2  
Old 10-03-2013, 11:26 AM
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Keep up the work!
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Old 10-03-2013, 3:56 PM
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Great lawsuit.
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Old 10-04-2013, 1:33 PM
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HAPPY DANCE!!!!!
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Old 10-04-2013, 5:29 PM
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go get them !!!!!!!!!!!!!!!!
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Old 10-04-2013, 5:40 PM
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Smart strategy. I like how it focuses on the illegality of hijacking the DROS fund instead of being an all out attack on the APPS - that can be another fight.
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Old 10-10-2013, 1:01 AM
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A very nice placement of the chisel.
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Old 10-10-2013, 4:44 AM
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I missed this one. Very cool.
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Old 03-13-2014, 10:40 PM
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FYI, this case is called Gentry v. Harris and is filed in Superior Court of California, Sacramento.

Copy of the complaint is here: http://michellawyers.com/wp-content/...f-Mandamus.pdf

The link in the OP for calgunlaws is currently down (looks like they're doing upgrades to the site). That page was previously linking to the Bauer complaint, which is similar but separate.
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Old 03-14-2014, 8:27 AM
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Thanks for the link! Is there any update to the case itself (oral arguements, etc)?

-Ruskie
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Old 03-14-2014, 10:40 AM
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We are in discovery phase right now. An MSJ is the likely next step, which will hopefully take place by early summer.
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Old 03-14-2014, 3:00 PM
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Quote:
Originally Posted by sbrady@Michel&Associates View Post
We are in discovery phase right now. An MSJ is the likely next step, which will hopefully take place by early summer.
Thank you very much. It is nice to see your posts in the threads....
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let me guess this means the case will move as fast as a Tuttle on heroin now instead of a snail on salt.................
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Old 03-14-2014, 3:12 PM
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Dros'd about 10 firearms since 2011... when can i expect my check lol
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Old 03-14-2014, 3:28 PM
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Originally Posted by sbrady@Michel&Associates View Post
We are in discovery phase right now. An MSJ is the likely next step, which will hopefully take place by early summer.
Which would mean we should expect a decision around the end of the year. Slow and painful...
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Old 03-14-2014, 8:10 PM
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Another step in the right direction! Keep it up guys!
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Old 03-14-2014, 9:29 PM
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I wonder if the Howard Jarvis Taxpayers Assoc. would be interested in writing an amicus. It seems this is more about abuse of taxation power than guns.
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Old 03-15-2014, 1:40 AM
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Which would mean we should expect a decision around the end of the year. Slow and painful...
With the speed of the court - by the end of WHICH year?

2027?

Dan K.
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Old 03-15-2014, 6:07 PM
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With the speed of the court - by the end of WHICH year?



2027?



Dan K.

Hopefully they owe us interest! It'll be like a cheesy annuity that we never even signed up for.
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Old 03-19-2014, 9:23 PM
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Originally Posted by dantodd View Post
I wonder if the Howard Jarvis Taxpayers Assoc. would be interested in writing an amicus. It seems this is more about abuse of taxation power than guns.
I'm pretty sure that one of Chuck's former associates now works for Howard Jarvis.
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Old 06-13-2014, 10:27 AM
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Another DROS fund raid in the works... seems relevant news.

Calguns discussion thread here: SB 580 - $15 Million raid of fees paid by gun owners, to fund APPS confiscation / DOJ
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Old 06-13-2014, 12:08 PM
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Go get 'em! I tired of this crap. Why even bother with the formality of passing a fake law when they just do whatever they want anyways?
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Old 01-17-2015, 2:32 PM
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Were the MSJ's ever ruled on in this case?
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Old 01-17-2015, 2:49 PM
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Quote:
Originally Posted by big jim View Post
Were the MSJ's ever ruled on in this case?
Nothing new listed here: http://michellawyers.com/gentry-v-harris/


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Originally Posted by readysetgo View Post
Another DROS fund raid in the works... seems relevant news.

Calguns discussion thread here: SB 580 - $15 Million raid of fees paid by gun owners, to fund APPS confiscation / DOJ
For posterity... ^^^this died (thankfully) in the assembly last year.
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  #24  
Old 01-17-2015, 3:01 PM
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Quote:
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Were the MSJ's ever ruled on in this case?
We are still in the discovery phase. Hopefully we will be ready for a dispositive motion in the next couple months. We will keep everyone updated.
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Old 01-17-2015, 3:41 PM
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Good..
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Old 01-17-2015, 4:20 PM
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According to this case the CADOJ is sitting on a multi-million dollar surplus in a special fund dedicated to supporting the DROS process. Yet they claimed they were resource-constrained and could not comply with the Court order to revise the process in Sylvester v Harris.

Uh, maybe I'm not connecting the dots correctly.
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Old 01-17-2015, 7:33 PM
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Quote:
Originally Posted by Bhart356 View Post
According to this case the CADOJ is sitting on a multi-million dollar surplus in a special fund dedicated to supporting the DROS process. Yet they claimed they were resource-constrained and could not comply with the Court order to revise the process in Sylvester v Harris.

Uh, maybe I'm not connecting the dots correctly.
I thing the issue is the DOJ *was* sitting on a surplus, but it was raided for general funds, which is what the suit is about.
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Old 01-17-2015, 7:51 PM
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Resources doesn't mean only money.
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Old 01-17-2015, 8:34 PM
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This is yet another slam dunk that should have been that never was.

Never mind....
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Old 02-03-2015, 9:07 PM
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Quote:
Originally Posted by sbrady@Michel&Associates View Post
We are still in the discovery phase. Hopefully we will be ready for a dispositive motion in the next couple months. We will keep everyone updated.
From another very grateful gun owner and law abiding citizen of CA.

hmmm...when you win this, can we gun owners file a class action lawsuit to get our money back, and triple damages? j/k...

but make them pay!
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Old 02-03-2015, 9:11 PM
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Default Another question on DROS hijacking and real costs...

I spoke to a guy who worked gun shows in TX and now here, and he said they can get an ok on background check via NICS in 15 minutes...

but CA holds it up, and not for the 10 day limit- there is something else, technology wise, or maybe its just foot dragging...

I may not have gotten that quite right, but if so, then not only is CA DOJ not using DROS for what they should be, but what they are spending is not getting the job done,

vs other states that have no problems doing so....

That also makes me skeptical of the CA DOJ whine about money, manpower, and conforming on Silevestre in 6 months, and Judge Ishii's reply...
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Old 02-03-2015, 9:50 PM
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Taxation without representation at its finest - those DOJ guys deserve the worst.
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Old 02-04-2015, 5:59 AM
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I had thought this case was mooted by legislation passed in the past year or two legally authorizing their use of that money for whatever they wanted, consequently no more "surplus" and no legal recourse? Did I misunderstand something somewhere?
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Old 02-04-2015, 6:27 AM
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I spoke to a guy who worked gun shows in TX and now here, and he said they can get an ok on background check via NICS in 15 minutes...

but CA holds it up, and not for the 10 day limit- there is something else, technology wise, or maybe its just foot dragging...

I may not have gotten that quite right, but if so, then not only is CA DOJ not using DROS for what they should be, but what they are spending is not getting the job done,

vs other states that have no problems doing so....

That also makes me skeptical of the CA DOJ whine about money, manpower, and conforming on Silevestre in 6 months, and Judge Ishii's reply...
(emphasis mine)

We live in the most tech-savvy state in the Union, so I find it hard to believe a DROS is held up for (10-days) due to technology, it's more likely the foot-dragging (which you have so stated) and I'd even go further to speculate that CA DOJ programmed their systems to manditorily hold a submission to that 10-day limit in order to fulfill the legislative intent of the original bill.....IMHO.
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CA CCW 2013 | Applied in person 11/4 | App approved 12/10 | Interview 12/17 | Denial (GC) Ltr. 1/14 | AZ CCW 2014 | Applied via mail 03/20 | Entered by DPS 05/02 | Approved 5/10 | Received 5/16 | OR CHL 2014 | Applied in person 04/17 | Approved 4/30 | Received 5/9 | WA CPL 2014 | Applied in person 04/18 | Approved 6/9 | Received 6/12 | NV CFP 2014 | Applied 09/25 | Received 1/15 | UT CFP 2015 | Applied 11/26 | Received 1/16
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Old 02-04-2015, 7:06 AM
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(emphasis mine)

We live in the most tech-savvy state in the Union, so I find it hard to believe a DROS is held up for (10-days) due to technology, it's more likely the foot-dragging (which you have so stated) and I'd even go further to speculate that CA DOJ programmed their systems to manditorily hold a submission to that 10-day limit in order to fulfill the legislative intent of the original bill.....IMHO.
If you read through the Silvester v. Harris case and decision, it comes to a pretty clear picture that it is mostly foot dragging and shenanigans. They do a LOT of things that make the system pop up horrible false positives, which then puts you at the bottom of a large pile of other false positive reports, which are then reviewed manually. Oh, and any of those false positives? They will likely never be flagged, or corrected, so that you get dragged through the mud again and again.

How bad of shenanigans? They mutate the information that you put on your DROS and then check to see if any of those names, or dates of birth, or anything, get close to the ID of a prohibited person, so if you are John Smith, you are screwed, you're going to be about 20 different prohibited people all at the same time.
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Old 02-04-2015, 7:18 AM
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If you read through the Silvester v. Harris case and decision, it comes to a pretty clear picture that it is mostly foot dragging and shenanigans. They do a LOT of things that make the system pop up horrible false positives, which then puts you at the bottom of a large pile of other false positive reports, which are then reviewed manually. Oh, and any of those false positives? They will likely never be flagged, or corrected, so that you get dragged through the mud again and again.

How bad of shenanigans? They mutate the information that you put on your DROS and then check to see if any of those names, or dates of birth, or anything, get close to the ID of a prohibited person, so if you are John Smith, you are screwed, you're going to be about 20 different prohibited people all at the same time.
And there we have it! Thanks RobertMW, it just proves the point that the Anti's wrote the bill exactly as they intended/foresaw it to be implemented!! A "win" for them, undoubtedly!
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CA CCW 2013 | Applied in person 11/4 | App approved 12/10 | Interview 12/17 | Denial (GC) Ltr. 1/14 | AZ CCW 2014 | Applied via mail 03/20 | Entered by DPS 05/02 | Approved 5/10 | Received 5/16 | OR CHL 2014 | Applied in person 04/17 | Approved 4/30 | Received 5/9 | WA CPL 2014 | Applied in person 04/18 | Approved 6/9 | Received 6/12 | NV CFP 2014 | Applied 09/25 | Received 1/15 | UT CFP 2015 | Applied 11/26 | Received 1/16
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Old 02-04-2015, 7:22 AM
teg33 teg33 is offline
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Originally Posted by rlc2 View Post
From another very grateful gun owner and law abiding citizen of CA.

hmmm...when you win this, can we gun owners file a class action lawsuit to get our money back, and triple damages? j/k...

but make them pay!
Why not, that's a good idea. I'm in
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Old 02-04-2015, 7:36 AM
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readysetgo readysetgo is offline
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Originally Posted by bruss01 View Post
I had thought this case was mooted by legislation passed in the past year or two legally authorizing their use of that money for whatever they wanted, consequently no more "surplus" and no legal recourse? Did I misunderstand something somewhere?
Yes you missed reading the OP. That legislation is exactly what's being challenged here. Notice all the references to SB 819? That was, what's come to be referred to as "the DROS fund raid." A tax, dressed up as something different, to avoid the proper procedures a tax must go through in the legislature.
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Old 02-04-2015, 7:53 AM
HibikiR HibikiR is offline
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This makes how many 2A cases that Harris has to juggle?
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Old 02-04-2015, 9:57 AM
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Maestro Pistolero Maestro Pistolero is offline
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This makes how many 2A cases that Harris has to juggle?
None. She's on the campaign trail AND the public tit. She uses underlings to not handle the work load in a timely fashion now.
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