Renna v Bonta - US Dist Ct So Cal, 11/2020 (Roster aka Peña II)

[bwiese]

Update - Progress! Intermediate scrutiny found wanting...

Article:
https://www.courthousenews.com/gun-l...4sz8-rb-cPeZK4

Decision:
https://www.courthousenews.com/wp-co...r-mtdORDER.pdf


--------------


SAN DIEGO (CN) — A federal judge found California’s new handgun law provision requiring the removal of three grandfathered handguns for every new handgun added to its list of guns that can be sold in the state “substantially infringes” Californians’ ability to purchase handguns for self-defense.


U.S. District Chief Judge Dana Sabraw found the “three-to-one” provision of California’s Unsafe Handgun Act, which went into effect Jan. 1, “imposes a greater restriction on the pool of handguns available for sale in California” and may violate the Second Amendment.


“The court is not persuaded there is a ‘reasonable fit’ between the state’s asserted objective and the three-for-one provision,” Sabraw, a George W. Bush appointee, wrote.


“Defendants offer no justification for why the statute requires the removal of three handguns for each new handgun added, instead of, for instance, a proportional one-to-one.”


Sabraw’s ruling Friday is the first to come down since Assembly Bill 2847 took effect.


Gun owner Lana Rae Renna, leading a group of individual gun owners and lobbying groups including the Second Amendment Foundation, San Diego County Gun Owners PAC and Firearms Policy Coalition, sued the state this past November alleging the new provision violates their constitutional rights.
But it is not the first time the gun lobby has challenged California’s Unsafe Handgun Act, which regulates the sale of firearms by maintaining a roster of handguns deemed “not unsafe” based on certain requirements and therefore saleable in the Golden State.


To be deemed “not unsafe” handguns sold in California must have certain features. Semiautomatic pistols, for example, must have a chamber load indicator, magazine detachment mechanism and microstamping technology that places identifying information fired shell casings to assist law enforcement.


The requirements were implemented in 2007 to limit accidental discharges.
In 2018, the Ninth Circuit found the law did not infringe gun owner’s Second Amendment rights, as the UHA regulates commercial sales and not possession of a handgun.


But since that case did not address the issue of removal of handguns from the state’s roster and the enactment of AB 2847 occurred after the Ninth Circuit’s decision, Sabraw found the current lawsuit is not barred by the previous decision.


The number of handguns on the roster which can legally be purchased in California has shrunk significantly since the UHA added the microstamping requirement in 2013.


At the end of 2013, there were 1,273 makes and models of approved handguns on California’s roster. By Nov. 8, 2020, more than 400 handguns had been removed. Three days after AB 2847 went into effect, there were 779 handguns on the state’s roster according to the first amended complaint.


The California Attorney General’s Office did not respond to an inquiry regarding the current number of handguns included on the roster.


In his 15-page order April 23, Sabraw found the gun owners and industry groups sufficiently pleaded the UHA substantially impacts their Second Amendment rights since the roster rule “limits the ability of law-abiding citizens to acquire firearms, which is critical to ensuring the Second Amendment right to keep arms.”



“Because plaintiffs have alleged the number of handguns available for purchase on the roster has steadily declined and will continue to decline, plaintiffs sufficiently demonstrate the UHA burdens protected conduct by substantially infringing plaintiffs’ ability to acquire firearms for self-defense,” Sabraw wrote.


The chief judge also found the state’s argument that AB 2847 satisfies the intermediate scrutiny requirement to find firearms laws are constitutionally consistent with the Second Amendment didn’t pass muster.


California argued the three-for-one provision furthers public safety by removing grandfathered handgun models when new models complying with applicable features are added to the state’s roster, facilitating “a transition over time toward full compliance.”


But Sabraw found there may not be a “reasonable fit” between the state’s safety goals and the three-for-one provision.


“The roster is already transitioning toward the compliance that defendants claim as their objective. As plaintiffs allege, application of the three-for-one provision will accelerate this trend further, rendering the number of handguns available for purchase unacceptably small,” Sabraw wrote.


The gun owners and organizations are represented by Raymond DiGuiseppe of Southport, North Carolina, and Michael Sousa of San Diego.
Neither the Attorney General’s Office nor the attorneys for the gun owners returned phone and email requests for comment by press time.

* * *

[IVC]

How would you assess it overall?

Count two and parts of count 1 are dismissed, which changes the challenge moving forward. What are the next steps?

[bwiese]

Originally Posted by IVC

How would you assess it overall?

Count two and parts of count 1 are dismissed, which changes the challenge moving forward. What are the next steps?

We'll have to see, but the fact we can go forward and that intermediate scrutiny fails on 2A is the big thing.

[M60A1Rise]

https://www.firearmspolicy.org/feder...o-move-forward

[1911-CV]

See article here

[abinsinia]

I don't think they rejected it, they just didn't dismiss the case related to the law requiring 3 guns to drop.

[9Cal_OC]

They do see fault in the “three for one” rather than “one to one” replacement as the 3 for one is arbitrary.

[Librarian]

https://www.courthousenews.com/wp-co...r-mtdORDER.pdf

Here, Plaintiffs face a realistic danger of sustaining injury as a result of AB 2847’s operation
because the three-for-one provision of § 31910(b)(7), in combination with the other provisions of the UHA which are already causing the roster to shrink, impacts their Second Amendment acquisition rights, as discussed below. At this stage of litigation, the Court therefore finds Plaintiffs have sufficiently alleged facts to establish standing and ripeness.

and

Accordingly, the Court considers whether Plaintiffs have made an adequate showing to rebut the presumption. It concludes Plaintiffs have sufficiently pled the UHA substantially impacts their Second Amendment rights and thus burdens conduct protected by the Amendment.

CONCLUSION AND ORDER
For the reasons set out above, the Court ORDERS as follows:
1. To the extent Plaintiffs’ first cause of action challenges the three UHA provisions upheld in Pena v. Lindley, 898 F.3d 969 (9th Cir. 2018), Defendants’ motion to dismiss is GRANTED.
2. Defendants’ motion to dismiss is DENIED in all other respects as to Count One of the FAC.
3. Defendants’ motion to dismiss is GRANTED as to Count Two of the FAC.
4. To the extent Defendants’ motion is granted, dismissal is without leave to amend.
IT IS SO ORDERED.
Dated: April 23, 2021

[CandG]

Liberals only love a Trump policy when it can be re-purposed and re-written for gun grabbing.

[AregularGuy]

Originally Posted by mit31

Not likely unless one party controls all three houses, AND has fillibuster proof majority. So... never.

They are already well underway into getting rid of the fillibuster. It's "racist" and standing in the way of progress on too many Dem agenda items.

[nick]

In 2018, the Ninth Circuit found the law did not infringe gun owner’s Second Amendment rights, as the UHA regulates commercial sales and not possession of a handgun.

So if commercial sales can be potentially regulated out of existence, selfmade guns are supposed to be the most protected, as the non-commercial path to possession of guns. However, they're facing the major attack at the moment.

[IVC]

Originally Posted by CandG

We ALL know the odds are were stacked against us.

Changed it a bit.

We just got a cert granted in the Corlett case (carry/bear) from NY. An educated guess is that it will add quite a bit of teeth into legal protections of 2A since we know that enough justices are frustrated with treating it as a second-class right.

[CAL.BAR]

Drawing on HISTORY and EXPERIENCE means that you have to understand we LOSE most legal challenges in the courts when it comes to guns. The present ruling means we LOST several causes of action and have only one left in this particular action. (not great results by any stretch)

Opining on how any particular Supreme Court Justice may rule is just that - an opinion. Hardly beating a dead horse. Further, as I have called for on many occasions, we NEED to pay closer attention to these loses and stop with the blind rage, puerile name calling and irrational fundamentalism and start litigating and legislating smarter.

[Bhobbs]

Originally Posted by bwiese

We'll have to see, but the fact we can go forward and that intermediate scrutiny fails on 2A is the big thing.

Can you explain how this ruling said intermediate scrutiny fails on the 2A? I saw where he said the law didn’t pass muster but it seemed more to me like he meant it didn’t even pass intermediate scrutiny.

[IVC]

Originally Posted by CAL.BAR

Drawing on HISTORY and EXPERIENCE means that you have to understand we LOSE most legal challenges in the courts when it comes to guns.

And that means what? Statistics doesn't work that way, not even remotely. Your statement implies that you believe the distribution of court case outcomes is a uniform distribution and that consequences of loses and wins are a trivial symmetric matrix.

We need just one win. That's all. Much like succeeding in business is about persisting through all the adversities until success.

Originally Posted by CAL.BAR

The present ruling means we LOST several causes of action and have only one left in this particular action. (not great results by any stretch)

This is actually true, but has nothing to do with pessimists posting doomsday predictions. And it's much more nuanced because this legal challenge involves quite a bit of politics on the pro-gun side.

Actually, the debate here is much more about politics of the FPC vs. NRA than about the courts themselves. You can see that based on both who is posting and the discussion itself.

[CandG]

Originally Posted by Bhobbs

Can you explain how this ruling said intermediate scrutiny fails on the 2A? I saw where he said the law didn’t pass muster but it seemed more to me like he meant it didn’t even pass intermediate scrutiny.

"Didn't even pass" = fails

My interpretation is that you're both correct, the suggestion is that while strict scrutiny should be used for 2A, this particular law doesn't even pass muster if intermediate scrutiny were used.

[Bhobbs]

Originally Posted by CandG

"Didn't even pass" = fails

My interpretation is that you're both correct, the suggestion is that while strict scrutiny should be used for 2A, this particular law doesn't even pass muster if intermediate scrutiny were used.

The law didn’t pass muster, not intermediate scrutiny. I didn’t see where it was determined that intermediate scrutiny didn’t meet the requirements of the 2nd amendment.

[mickey5150]

Can somebody explain if we win this lawsuit it doesn't do away with the roster, it just does away with the 3 for 1 provision correct?

[NATO762]

Originally Posted by kuug

The attitude is why I stopped coming to this forum as often as I used to.

We should all flag the posts that contain zero legal or litigation related content. The little red triangle with an exclamation point next to the post number. If we all do this, and indicate we would like the post removed as off-topic, and we do not respond in any other way, these folks would stop posting here.

I personally find the back and forth legal wrangling somewhat interesting, but the threads that relate to specific legal cases should have updates to the cases as they occur and discussion specifically related to the case at hand. Moaning about the makeup of the supreme court, or the 9th circuit should be done in a thread specifically created for such discussion in the Politics and Activism sections of this same forum.

Let's keep these litigation threads as on-point as possible, flag the posts that aren't, and don't respond to them in any other way. The Mods can easily delete a flagged post and if enough people flag it, they will.

Sorry to drag the thread further off-topic, delete this post if you feel appropriate.

[CandG]

Originally Posted by mickey5150

Can somebody explain if we win this lawsuit it doesn't do away with the roster, it just does away with the 3 for 1 provision correct?

It's hard to predict the exact outcome of a win, because the judge can order partial, full, or even alternative forms of relief to the plaintiffs.

But FWIW, this case prays for relief in the form of an injunction against the entire handgun roster scheme.

[Paladin]

So what’s the next step in this litigation and when will it happen?

[rplaw]

Originally Posted by IVC

And that means what? Statistics doesn't work that way, not even remotely. Your statement implies that you believe the distribution of court case outcomes is a uniform distribution and that consequences of loses and wins are a trivial symmetric matrix.

We need just one win. That's all. Much like succeeding in business is about persisting through all the adversities until success.

The problem with litigation is that one side loses. That's a 50/50 distribution of outcomes.

It becomes unequal when you start to look at which side wins more often. From my experience, if you're going to trial in any litigation matter, your case has a major flaw you aren't recognizing or you're hoping the jury doesn't see it. This is often the underlying cause of a "loss" at trial.

My experience also tells me that the courts put their finger on the scale of justice quite frequently. Some judges do that so often that they have developed a callus from their actions which often causes a reduced sensitivity leading to a heavier hand on the outcome.

Civil litigation plaintiff's attorneys who become judges often let matters drag on through trial that properly should have been dismissed as lacking merit because the plaintiff's lawyers are known to them and that's how they did it when they themselves were PI lawyers.

Criminal judges who are ex-District Attorneys give favoritism to DA's at the expense of fairness to defendants. This has led to "testilying" and all sorts of other methods of ensuring that the accused goes to jail no matter what.

Appellate justices are similar versions of the above since they all got their start just like the above except they're protected from the consequences of their calluses and favorable leanings.

[rplaw]

I also want to point out, via a vingnette, how judges get to be picked as judges by whichever political party is in power.

Early in my legal career I did some Pro Bono work for the Public Defender's office. At the end of that work, I applied to various agencies on both sides of the courtroom. One DA was looking for new attorneys and asked me for an interview. Part of the interview was a "performance test" where they gave us a short fact pattern and then asked us to make a closing argument in that "case."

They said that it didn't matter which side you picked to argue from (defense or prosecution). What they didn't say, was that if you chose the defense point of view, you were eliminated no matter how well your argument was presented.

Why?

Because it showed your legal leanings.

The test was really to see who wanted to punish rather than who wanted to argue the law.

Now you know why liberal administrations tend to appoint liberal judges and justices and conservative administrations do the opposite. They aren't looking for how neutrally you apply the law, they look to find who among the candidates has the outcome oriented mindset that agrees with the current agenda.

[Paladin]

Originally Posted by Paladin

So what’s the next step in this litigation and when will it happen?

Bump

[Paladin]

Originally Posted by Paladin

So what’s the next step in this litigation and when will it happen?

bump

[abinsinia]

Hearing date was selected on 8/23 , but I can't see the document to know what the date was set to.

24
Filed & Entered: 08/23/2021
Docket Text Set Hearings

Full docket text for document 24:
Minute Entry for proceedings held before Magistrate Judge Daniel E. Butcher: Due to a conflict involving the Court's calendar, the Early Neutral Evaluation Conference and Case Management Conference on 9/7/2021 at 1:30 p.m. are vacated and reset for 9/23/2021 at 9:00 a.m.The deadline to submit confidential briefs, file the Joint Discovery Plan, and provide the Court with contact information for all participants is 9/16/2021.(no document attached) (kxb)

[Paladin]

Thx abinsinia

[BAJ475]

Originally Posted by mshill

The state can always argue that it is impossible to add anything to the roster so the lawsuit is moot.

Sounds like a winning argument to me.

[Paladin]

… the Early Neutral Evaluation Conference and Case Management Conference … reset for 9/23/2021 at 9:00 a.m.The deadline to submit confidential briefs, file the Joint Discovery Plan, and provide the Court with contact information for all participants is 9/16/2021.

abinsinia, Everything get done on the 16th?

Conference still on for Thursday at 9:00 am?

[abinsinia]

Here's what's on the docket,

26
Filed & Entered: 09/21/2021
Docket Text Miscellaneous (Other 1)
25
Filed & Entered: 09/16/2021
Docket Text Joint Discovery Plan

Joint Discovery Plan was private, but I downloaded the Miscellaneous 26th document.

[abinsinia]

No scheduling changes.

[Paladin]

Thanks

[Paladin]

Originally Posted by Paladin

abinsinia, …

Conference still on for Thursday at 9:00 am?

Any news from today’s conference?

[abinsinia]

Originally Posted by Paladin

Any news from today’s conference?

Scheduling order..

[abinsinia]

The trial is scheduled to start on March 20, 2023 at 9:00 a.m..

Their really dragging this thing out..

[Paladin]

Originally Posted by abinsinia

Their really dragging this thing out..

Maybe they want to give SCOTUS time to flesh out the 2A before tackling it?

[Aldo The Apache]

Originally Posted by Paladin

Maybe they want to give SCOTUS time to flesh out the 2A before tackling it?

All hope is lost in California. No one in the free states are bitting their nails, anxiously waiting on the courts to give the poors crumbs or any at all. I’m outta this ****-hole of a state. Y’all can keep waiting for the courts to turn the other cheek, sending donations, paying 3x retail for “off rosters”, 10 day waits, ammo backgrounds, skyrocketing ammo prices and fighting uphill battles toward annihilation til there’s nothing left. As for me: I’ll save all of that for ammo, gear and training in a free state. Ghost, deuces, two fingas - I’m out

[CandG]

Originally Posted by Aldo The Apache

... skyrocketing ammo prices ...

You're going to be disappointed if you're expecting that to be any different in another state right now.

[johnireland]

There is no place/state to run to. The SCOTUS will be packed, and then guns will be ruled by Executive Orders. The Constitution is dead.

[homelessdude]

John, Why even come here with your attitude. God what negativity.