California Legal Update | February 2017
This report provides an overview of just some of the efforts the National Rifle Association of America and the California Rifle & Pistol Association, Inc., are taking to protect the rights of California gun owners. Although litigation plays an extremely important role in the fight for the right to keep and bear arms, NRA and CRPA are heavily involved in many other tremendous and equally important endeavors throughout California and across the nation.
As has been and always will be the case, NRA and CRPA invest enormous amounts of resources to protect the Second Amendment at all levels of California’s government, including all 58 counties, all 482 municipalities, and all state and local agencies tasked with enforcing the myriad of complex and ever expanding gun laws.
Firearms Litigation Report
The litigation report provides a brief overview and update on NRA and CRPA’s recent litigation efforts in California, including amicus and consulting support in other firearm related cases.
Local Ordinance Project Report
The Local Ordinance Project (“LOP”) is a joint venture between the NRA and CRPA to research and actively monitor all of California’s local jurisdictions to oppose any proposed ordinance, law, or policy that threatens Second Amendment Rights. LOP efforts include developing and working with a network of professionals, citizens, local government officials, and law enforcement professionals to effectively oppose local threats to California gun owners.
Opposition campaigns typically include the preparation of opposition or pre-litigation demand letters, grassroots coordination, public information campaigns, and, in some cases, appearances at city council hearings. In many instances, these efforts have prompted local governments to vote down proposals or pull them from consideration. LOP efforts also serve as the foundation for NRA and CRPA litigation efforts against municipalities that enact anti-gun legislation.
Regulatory Matters Report
NRA and CRPA are also heavily invested in firearm law enforcement issues through their Regulatory Counsel efforts, which monitors the California DOJ and local law enforcement's interpretations of California firearm laws on a daily basis.
Ongoing efforts include drafting regulatory comment letters, providing legal support to NRA and CRPA lobbyists, drafting NRA and CRPA member alerts, and providing advice to NRA and CRPA members. Regulatory Counsel also collaborates with overlapping litigation, legislative, and regulatory matters to effectively oppose improper actions and incorrect interpretations of California law by state and local agencies.
Regulatory Counsel is responsible for many of the recently published webinars available on the CRPA’s website which provide gun owners with a comprehensive analysis of recently enacted legislation and the recently proposed “assault weapon” regulations from the California DOJ.
Hunting Matters Report
Closely related to Regulatory Counsel are NRA and CRPA’s efforts to monitor and respond to issues impacting hunters throughout California. These efforts include developing strategies and taking action when necessary before the Legislature, the Fish & Game Commission, local municipalities, and other various regulatory agencies.
Hunting Regulatory efforts are also dedicated to pushing back against rabidly anti-hunting forces such as the United States Humane Society, and to improve policies impacting hunters in California to effectively promote and defend the right to hunt in California.
Range Matters Report
Last but not least, NRA and CRPA continually monitor environmental, land use, and design and safety issues that heavily affect shooting ranges and areas in California and throughout the nation.
NRA and CRPA’s range assistance efforts include regular range evaluations and meeting with Club Boards to strategize and assist with coordination of defense campaigns against “not in my backyard” efforts from environmental non-governmental organizations, state and federal agencies, and municipal governments.
Click on the case name below to reveal more information about the case status and what's next.
California and 9th Circuit Litigation Matters
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Flanagan v. Harris: Challenge to California and Los Angeles' Firearm Carry Restrictions Prohibitting Both Open and Concealed Carry
The case was filed on August 17, 2016 as a direct response to Peruta. The suit seeks to force the court to decide whether or not it is willing to uphold a complete prohibition on the right of law-abiding citizens to carry a firearm for self-defense.
What's Next
A hearing on Defendants’ Motions to Dismiss portions of Plaintiffs’ claims will be heard in February 2017. The case is currently in the discovery phase and substantive motions are expected to be filed and heard in late 2017.
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Challenges to “Gunmageddon,” Prop 63, and LA’s Ultra-Compact Firearms Ban
Case Status:
CRPA and NRA attorneys are preparing multiple challenges to the new laws that were passed in 2016 that improperly punish law-abiding gun owners.
CRPA and NRA attorneys also submitted a pre-litigation demand letter to the City of Los Angeles demanding that it repeal its ultra-compact firearms in September 21, 2016.What's Next:
Multiple lawsuits will be filed to challenge the “Gunmageddon” bills and Prop 63 in 2017.
The City of Los Angeles is considering whether it will repeal its ultra-compact firearms ordinance, otherwise it will face
further litigation in 2017. -
Peruta v. California: Challenge to “good cause” requirement for CCWs
formerly Peruta v. San Diego
In June 2016, a divided “en banc” panel of the 9th Circuit Court of Appeals ruled 7-4 in favor of the County, holding that the government’s denial of the only means of carrying a firearm under state law does not implicate the Second Amendment.
The decision reverses an earlier three judge panel decision of the 9th circuit and now stands in direct conflict with the
Supreme Court’s decision in Heller.What's Next:
On January 12, NRA and CRPA attorneys submitted a petition for review to the United States Supreme Court. Several amicus
briefs in support of the petition will be filed in February 2017. -
Bauer v. Harris: Challenge to DOJ’s excessive DROS fees that generated a massive surplus
In March 2015, the district court issued an opinion upholding California’s use of DROS fees to fund APPS and other law enforcement activities. Plaintiffs have appealed. The case has been fully briefed and is awaiting oral arguments.
What's Next:
Oral arguments are scheduled for the week of April 17-April 21, 2017.
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Gentry v. Harris: Challenges DOJ’s Use of DROS surplus to fund APPS
Plaintiffs filed an amended complaint alleging that the DROS fee is an invalid property tax. The case is currently in the discovery process.
What's Next:
The case is expected to go trial in 2017.
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Belemjian v. Harris: Challenge to CA DOJ’s underground regulations regarding the Firearm Safety Certificate Program
This case forced DOJ to finally begin the process of enacting regulations for the FSC program in February 2015. Plaintiffs appealed the lower court’s denial of Plaintiffs’ request for attorneys’ fees.
What's Next:
Briefing concerning attorneys frees is currently in progress in the California Court of Appeals
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Settergren v. Daly City: Challenge to improper denial of use permit to operate firearms retail and repair business.
Case Status:
The case is currently in discovery phase and the parties are actively engaged in settlement negotiations.
What's Next:
If the case is not resolved through settlement, discovery followed by substantive motions to resolve the case on the merits.
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Parker v. California: Vagueness challenge to (AB 962’s “handgun ammunition” sales registration requirement and mail order ban
In December 2016, as a result of Prop 63, the California Supreme Court dismissed its review of the Court of Appeals’ opinion that upheld the trial court’s order striking down AB 962. The Court of Appeals decision now stands as the final opinion in the case and Plaintiffs will seek recovery of their attorneys’ fees.
What's Next:
Plaintiffs’ motion for attorneys’ fees will be heard in 2017. Separate litigation is being prepared to challenge the ammunition restrictions in Proposition 63.
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Fyock v. Sunnyvale: 10+ Round Magazine Possession Ban
The passage of SB 1446 and Proposition 63 prohibiting the possession of 10+ round magazines statewide now preempts the local ordinance and mooted the case.
What's Next:
The case was dismissed without prejudice in December 2017.
Separate litigation is being prepared to challenge the State’s 10+ round magazine ban. If that litigation is successful, this case will be refiled against Sunnyvale. -
Bosenko v. City of Los Angeles: Preemption challenge to LA ordinance banning possession of 10+ round magazines
The City is currently in the process of repealing the ordinance because it is now preempted by state law.
What's Next:
Once the City repeals its ordinance, the case will be dismissed.
Separate litigation is being prepared to challenge the State’s 10+ round magazine ban.
California and 9th Circuit Amicus and Consulting Support
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Teixeira v. Alameda County: FFL Zoning Restrictions
In December 2016, the 9th Circuit ordered the case to be reheard by an 11-judge “en banc” panel.
What's Next
NRA and CRPA attorneys filed an amicus brief on January 31, 2017. Oral arguments are scheduled to take place the week of March 20, 2017.
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Richards v. Prieto: Sacramento and Yolo County CCW Issuance Policies
The Richards plaintiffs joined the Peruta plaintiffs in petitioning for full court “en banc” rehearing by all sitting members of the 9th Circuit Court of Appeals.
What's Next:
On August 15, the 9th Circuit denied Plaintiffs’ petition for full court “en banc” rehearing by all sitting members of the 9th Circuit. The Richards plaintiffs did not seek Supreme Court review of the case.
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Baker v. Kealoha: Hawaii CCW Scheme
The court is currently reviewing supplemental briefing from the parties following the en banc decision in Peruta.
What's Next:
A decision from the Court regarding whether to remand the case to the district court could come at any time.
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Pena v. Lindley: California Handgun Roster
Case Status:
The federal district court upheld the Roster in 2015. Plaintiffs appealed, and the case has been fully briefed before the 9th Circuit.
What's Next:
Oral arguments are scheduled for March 16, 2017.
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Silvester v. Harris: 10-Day Wait as applied to current firearm owners
In December 2016, the 9th Circuit issued its decision upholding the 10-day wait as applied to current gun owners. Chief Judge Sydney Thomas went even further and stated that the restriction is “presumptively lawful” and therefore falls “outside the scope of the Second Amendment.”
What's Next:
Plaintiffs now have the option of either requesting review by an 11-judge “en banc” panel of the 9th Circuit, or submitting a petition for review directly to the United States Supreme Court.
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Tracy Rifle and Pistol v. Harris: 1st Amendment challenge to handgun ad prohibition
Case Status:
In July 2015, the district court denied a request to prohibit enforcement while the case proceeds. That decision was appealed, and in February 2016 the 9th Circuit upheld the lower court’s order within two weeks of oral arguments.
What's Next:
Litigation will now resume in the district court.
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NSSF v. Pleasant Hill: FFL zoning ordinance
The case has been settled.
What's Next:
The City has agreed to pay NSSF over $400,000 in legal fees
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Doe v. Harris: Challenges DOJ regulation barring sale of more than one handgun in 30 days to COE holders
The California trial court upheld DOJ’s regulation and the plaintiffs have appealed the decision to the California Court of Appeals.
What's Next:
The case is currently being brief before the Court of Appeals. Oral arguments will likely be scheduled for late 2017.
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Nesbitt v. U. S. Army Corps of Engineer: Challenge to ban on possession and carriage of firearms on recreational Army Corps’ lands.
The case has been fully briefed and is awaiting oral arguments before the 9th Circuit Court of Appeals.
What's Next:
Oral arguments are scheduled to take place on March 6, 2017.
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NSSF v. California: State Court challenge to California’s micro-stamping requirements
On December 1, the California Court of Appeals issued a ruling in favor of NSSF, allowing the lawsuit to proceed in the lower court. Since then, the California Attorney General has petitioned the California Supreme Court for review.
What's Next:
Litigation may now resume in the lower court. Litigation could be further stayed in the lower court if the California Supreme Court grants the State’s petition for review.
California and Interests in National Cases
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Kolbe v. Hogan: Challenges Maryland's ban on “assault weapons” and 10+ round magazines
On February 4, 2016, the 4th Circuit overturned the district court’s approval of the ban under intermediate scrutiny, and ordered the district court to apply “strict scrutiny.” The State appealed and the case was reheard by the full 4th Circuit sitting “en banc” on May 11, 2016.
What's Next
An audio recording of the recent “en banc” oral arguments is available at:
http://michellawyers.com/kolbe-v-omalley/.A decision from the 4th Circuit could come anytime.
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Grace v. District of Columbia: Challenges Washington D.C.’s “good reason” requirement for the issuance of a CCW permit
On May 17, 2016, the Court granted the Plaintiffs’ request for an order blocking enforcement of the “good reason” requirement. The government appealed the decision to the D.C. Circuit Court of Appeals and the Court issued a stay of the lower court’s order that prohibited D.C. from enforcing its “good reason” requirement.
What's Next
Oral arguments in the case were held on September 20, 2016, along with Wrenn v. District of Columbia. A decision from the Court of Appeals can be expected anywhere in the next 3-9 months.
Local Ordinance Project Report
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Statewide Local Elections
LOP works hard to inform California gun owners of political candidate's voting records on Second Amendment Issues.
LOP Response:
Continually develop and maintain detailed voting histories of local politicians, including whether they proposed or supported any firearm-related legislation.
Current Status:
Ongoing.
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Palm Springs Anti-Gun Ordinance Package
In July 2016, the City Council opened discussion on a number of anti-gun proposals, including a duty to report the theft or loss of a firearm, a prohibition on the possession of magazines capable of holding more than 10 rounds, and a requirement that all ammunition sales be recorded.
LOP Response:
Alerted members to attend City Council meetings and voice opposition. Submitted two opposition letters, one in July and one in September, warning of the ordinance’s serious legal problems, including state preemption issues. Published C.D. Michel editorial discussing problems with proposal. Sought public records of communications between Council members and anti-gun groups.
Current Status:
The City agreed to remove the magazine and ammunition restrictions from the proposal. But despite the overwhelming number of residents who spoke against the proposal, the Council voted 3-2 in favor of enacting the remaining provisions.
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LA City Anti-Gun Efforts Targeting Law-Abiding Gun Dealers
In June 2016, the City Council instructed the LAPD to work with the anti-gun organization “Crime Gun Solutions” to study and identify so-called “bad apple” gun dealers located in the City of Los Angeles.
LOP Response:
In a joint-effort with FFLGuard, prepared and submitted a letter to all FFLs located within the City warning them of the Council’s action.
Current Status:
In a joint-effort with FFLGuard, prepared and submitted a letter to all FFLs located within the City warning them of the Council’s action.
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Oakland Anti-Gun Ordinance Package
In December 2015, the City Council proposed several anti-gun ordinances, including a prohibition against the possession of magazines capable of holding more than 10 rounds and a requirement that all firearms stored at home or in a vehicle be kept in a locked container.
LOP Response:
Alerted members to attend City Council meetings and voice opposition. Provided members with talking points to oppose the proposed restrictions.
Current Status:
The City passed the measures in early 2016.
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Encinitas Locked Storage and FFL Zoning Ordinance
In March 2016, several City Councilmembers asked staff to prepare an ordinance requiring the locked storage of firearms and restricting where FFLs may be located.
LOP Response:
Continuing to monitor City Council agendas for any updates.
Current Status:
City staff have not yet submitted a draft ordinance for review.
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Sonoma County CCW Fees
In October 2016, Sonoma County Sheriff Steve Freitas sought approval from the County Board of Supervisors to impose a mandatory psychological test for all CCW applicants and raise the associated fee from $150 to $550.
LOP Response:
Submitted opposition letter warning of the proposal’s serious legal problems, such as how state law capped the psychological testing fee at $150.
Current Status:
In November 2016, the County Board of Supervisors pulled the proposal from consideration and stated it has no plans for re-introduction at this time.
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Belvedere Handgun Storage Ordinance
In September 2016, the City introduced an ordinance requiring all handguns kept at home to be stored in a locked container, providing an exception only for individuals who possessed a valid CCW.
LOP Response:
Submitted opposition letter warning of the ordinance’s serious legal problems, including state preemption issues.
Current Status:
In October 2016, the City agreed to amend the ordinance to include an exception for all law-abiding citizens when carrying the firearm, regardless of whether or not they possess a valid CCW.
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El Cerrito CCW Fees
Under the City’s “Master Fee Schedule,” residents applying for a CCW must pay a local processing fee of $961, well in excess of the $100 statutory maximum for such fees.
LOP Response:
Submitted pre-litigation demand letter seeking repeal of the City’s excessive application fee.
Current Status:
In November, attorneys for the City agreed that the current fee violates the statutory $100 cap. As a result, the City will soon introduce a resolution to amend the “Master Fee Schedule” accordingly.
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San Jose Anti-Gun Ordinance Package
In September 2016, Councilmembers Ash Kalra and Raul Peralez introduced an anti-gun package for discussion and referral to the City Council.
LOP Response:
Alerted members to attend Rules and Open Government Committee meetings during early stages of proposal.
Current Status:
As a result of LOP and other local pro-gun efforts, the City has dropped most of the proposed provisions, but will still pursue a mandatory locked-storage ordinance. A draft ordinance is expected to be introduced to the City Council in the coming weeks.
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Gun Shows at the Del Mar Fairgrounds
Description:
At the request of several anti-gun residents, the Del Mar Fairgrounds Board of Directors held an open discussion in November 2016 regarding the use of the grounds by gun shows.
LOP Response:
Alerted members to attend meeting and voice support for gun shows. Submitted letter of comment informing Board members of all of the rules and requirements gun show operators are required to adhere to in the State of California.
Current Status:
Following the public discussion, the Board did not take any action and continues to allow the use of the grounds by gun shows.
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Orange County CCW Applications
Many Orange County residents to this day are still confused as to the specific requirements for obtaining a CCW in Orange County.
LOP Response:
Prepared a comprehensive guide discussing the entire application process for obtaining a CCW in Orange County, including what is required to satisfy the Sheriff’s “good cause” policy.
Current Status:
NRA and CRPA are working hard to bring "shall-issue" to California. In the meantime, CRPA will continue to provide gun owners with helpful guides on how they can apply for a CCW in their respective county of residence.
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Kern County CCW on School Grounds
Description:
Following the enactment of Senate Bill 707, which restricted CCW holders from carrying firearms on school grounds, the Kern County High School Board sought to allow teachers and staff to carry firearms at school.
LOP Response:
CRPA provided the Board with a comprehensive guide discussing the school’s authority to allow individuals to carry firearms on school grounds.
Current Status:
In November 2016, the Kern High School District Board voted in favor of allowing teachers and staff to carry firearms on school grounds.
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Cupertino Anti-Gun Ordinance Package
On January 12, the Cupertino Public Safety Commission held an open discussion on several proposed anti-gun measures.
LOP Response:
Alerted members to attend the Public Safety Commission meeting. Submitted opposition letter informing the Commission of the proposal's serious legal problems not adequately discussed in staff reports.
Current Status:
Nearly 40 pro-gun speakers attended the meeting and voiced their opposition. Not a single person spoke in support. Following public discussion, the Commission took no action and directed staff to research the issue further.
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Statewide Public Record Requests
Description:
NRA and CRPA regularly seek and obtain public records in connection with any anti-gun efforts in California. Such efforts include proposed anti-gun ordinances, gun buyback programs, and other anti-gun regulatory enforcement issues.
LOP Response:
Responses to these requests often yield valuable results, such as which members of a local government entity are working with anti-gun groups, sources of funding, and other important information.
Current Status:
Ongoing.
Firearms Regulatory Matters Reports
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Public Record Requests
Description:
NRA and CRPA regularly seek and obtain public records from CA DOJ and local law enforcement relating to internal agency policies and interpretations of CA firearm laws.
Regulatory Counsel Response:
Recently, responses to these requests provided key financial analysis reports from CA DOJ and other state agencies regarding proposed firearm legislation. These reports were subsequently used in drafting legislative opposition letters and veto requests to the governor.
Current Status:
Ongoing.
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