On Monday, March 2, 2015, the National Rifle Association (“NRA”), along with the California Rifle and Pistol Association (“CRPA”) and FFLGuard, submitted a letter of public comment opposing the California Department of Justice’s proposed “emergency” regulations for California’s new Firearm Safety Certificate (“FSC”) Program and safe-handling demonstrations.
The FSC Program, signed into law by Governor Jerry Brown on October 11, 2013, requires every individual wishing to take possession of a firearm in California to first take and pass a written test and to perform a safe-handling demonstration with the firearm to be acquired. The launch of the FSC Program was abysmal, and it has been plagued with problems since it took effect on January 1, 2015. The Program’s many failures were the result of the Department’s refusal to meaningfully engage FFLs, certified FSC instructors, and gun owners in the creation of formal regulations for the administration of the Program. Instead, the Department unilaterally unveiled a host of generally applicable “rules,” such as requiring all certified instructors to obtain and maintain a valid Certificate of Eligibility, to submit FSC fees to the Department by major credit card only, and to access an automated, web-based system to process and issue FSCs. These rules have already cost FFLs and certified FSC instructors untold sums and will cost them thousands of dollars each year, forcing many to simply stop administering the FSC Program altogether.
With the support of the NRA, the CRPA, FFLGuard, and five individuals filed Belemjian v. Harris in the Superior Court of Fresno, challenging the Department’s actions as a violation of California’s Administrative Procedures Act (“APA”) and asking the court to direct the Department to formally adopt regulations for the administration of the Program in accordance with the law.
Nearly two months after the lawsuit was filed, the Department submitted a package of proposed “emergency” regulations to preserve the rules it had illegally adopted in violation of the APA. Under the procedure for emergency regulations, the general public was given only 5 days, as opposed to the 45-day minimum under normal rule-making procedures, to offer comment after the Office of Administrative Law received the proposal and posted it to its website. The Department claims that firearm sales will necessarily cease if their FSC regulations are not adopted under that shortened time frame, inviting costly Second Amendment litigation against the state and bringing harm to the public welfare.
But the Department was given nearly a year and half between the adoption of the FSC Program and its implementation. It had plenty of time to follow the regular rule-making procedures, providing adequate time for input from the general public and open discourse with FFLs, certified FSC instructors, and gun owners. It instead chose to promulgate informal rules in violation of the APA, and then seek to push those same rules through as “emergency” regulations, circumventing the generally stringent requirements of the APA and shutting down the ability of the public to work with the Department to create a workable program.
What’s more, the Department’s “emergency” regulations are simply not necessary to avoid serious harm to the public peace, health, safety, or general welfare. They are not even necessary for the FSC Program to continue. Indeed, the former Handgun Safety Certificate Program has thrived in California for over a decade without any of the regulations in question.
Ultimately, it seems the proposed “emergency” regulations are not really about protecting the public at all. As the Department’s own “Finding of Emergency” letter demonstrates, the regulations are truly aimed at generating over one billion dollars in additional revenue annually for the Department’s unrelated law enforcement activities, which include the highly controversial APPS Program, at the expense of law-abiding California gun owners.
The letter submitted by the NRA, CRPA, and FFLGuard requests that the Office of Administrative law not to allow the Department a free pass and, like the NRA-supported lawsuit, Belemjian v. Harris, it simply seeks to have the Department open the regulations to public comment and discussion as it should have done from the beginning.
Help NRA and CRPA Help You
You can assist in the fight to defend gun owners’ rights in California courts by donating to the NRA Legal Action Project and the California Rifle and Pistol Association Foundation today. For a summary of some of the many actions the NRA and CRPA have taken on behalf of California gun owners, including the tremendous recent victory in the Peruta v. County of San Diego case, click here. Second Amendment supporters should be careful about supporting litigation efforts promised by other individuals and groups without access to the necessary funding, relationships, firearm experts, and experienced lawyers on the NRA-CRPA’s national legal team. The NRA-CRPA’s team of highly regarded civil rights attorneys and scholars has the resources, skill, and expertise to maximize the potential for victory.