Fouts v. Bonta

Decision Date22 September 2021
Docket NumberCase No.: 19-cv-1662-BEN (JLB)
Citation561 F.Supp.3d 941
Parties Russell FOUTS, et al., Plaintiffs, v. Rob BONTA, in his official capacity as Attorney General of the State of California, et al., Defendants.
CourtU.S. District Court — Southern District of California

Alan Alexander Beck, Law Office of Alan Beck, San Diego, CA, Stephen Dean Stamboulieh, Pro Hac Vice, Stamboulieh Law, PLLC, Olive Branch, MS, for Plaintiffs.

John Darrow Echeverria, Office of the California Attorney General, Los Angeles, CA, for Defendants.

Order Denying PlaintiffsMotion for Summary Judgment and Granting DefendantsCross-Motion for Summary Judgment



Since 1917, the State of California has made it a crime for the average citizen to possess a weapon known as a billy. Like S&H Green Stamps, over the years the billy's popularity has come and gone, yet the billy law remains. But for the threat of violating the criminal statute, Plaintiffs would possess a billy or baton for self-defense. Plaintiffs challenge the law as an infringement on their federal constitutional right to keep and bear arms. In this case of first impression, both sides move for summary judgment. Because the 104-year-old state law qualifies as "longstanding," it is a permissible restriction on a dangerous, but less-than-lethal, unusual weapon. Therefore, Plaintiffs’ motion is denied and Defendants’ motion is granted.


California's dangerous weapon statute was enacted in 1917, not long after the first airplane was invented by the Wright Brothers in 1903.1 The 1917 statute criminalized the possession of "any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, bludgeon, or metal knuckles."2 The billy restrictions have remained in effect through various reenactments and re-codifications up to the present day. Plaintiffs challenge the part of California Penal Code § 22210 which prohibits possessing an "instrument or weapon of the kind commonly known as a billy." Section 22210 states in full,

Except as provided in Section 22215 and Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any leaded cane, or any instrument or weapon of the kind commonly known as a billy , blackjack, sandbag, sandclub, sap, or slungshot, is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

(Emphasis added). The statute does not define "billy." Plaintiffs use the terms "billy" and "baton" interchangeably.3 Defendants use the terms "billy," "billy club," and "baton" interchangeably.4 But "billy" is an old name given to an old wooden police tool, while the collapsible metal baton is a modern police invention. What the instrument or weapon that is commonly known as a "billy" looks like is not at all clear at this point in history, as both the term and the tool have gone out of style.5

The California Court of Appeal in People v. Leffler , No. B283175, 2018 WL 3974150, at *3 (Cal. Ct. App. Aug. 20, 2018), offers some help. Leffler noted that a collapsible baton falls within the list of weapons prohibited by § 22210, but the court did not describe the weapon commonly known to be billy. Leffler explained, "[a]lthough the word ‘baton’ is not included in the statutory language, it has long been held that the statute encompasses a variety of bludgeoning instruments." Id. (citing People v. Grubb, 63 Cal.2d 614, 621, 47 Cal.Rptr. 772, 408 P.2d 100 (1965) ). In its opinion, Leffler resorted to several dictionaries for help defining a "billy."6 In addition to prohibiting whatever a literal billy might be, the California Supreme Court held that the statute's term "billy" also includes additional objects that may have both innocent uses and criminal uses, depending on the circumstances of possession. See People v. Grubb , 63 Cal.2d 614, 47 Cal.Rptr. 772, 408 P.2d 100 (1965) (in bank). Grubb held, for example, that an altered baseball bat, taped at the smaller end and heavier at the other end, when carried in a vehicle obviously not for playing baseball, falls within California's prohibition on possessing a billy. Id. at 621, 47 Cal.Rptr. 772, 408 P.2d 100 (emphasis added). Grubb explained,

Thus we hold that the statute embraces instruments other than those specially created or manufactured for criminal purposes; it specifically includes those objects "of the kind commonly known as a ... billy." The concomitant circumstances may well proclaim the danger of even the innocent-appearing utensil. The Legislature thus decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger. Accordingly the statute would encompass the possession of a table leg, in one sense an obviously useful item, when it is detached from the table and carried at night in a "tough" neighborhood to the scene of a riot. On the other hand the section would not penalize the Little Leaguer at bat in a baseball game. Applying this test to the instant case, we find the possession of the altered baseball bat, taped at the smaller end, heavier at the unbroken end, carried about in the car, obviously usable as a "billy," clearly not transported for the purpose of playing baseball, violates the statute.

Id. (emphasis added). California courts, then, have decided that § 22210 ’s prohibition of the billy includes both the historical billy, as well as other ordinarily harmless clubbing objects in circumstances where possession demonstrates an immediate atmosphere of danger. With this understanding in mind, it is time to review the regulation under Second Amendment doctrine.


The standards for evaluating a motion for summary judgment are well known and have changed little since discussed by the U.S. Supreme Court in a trilogy of cases from 1986. See Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. A court views the evidence in the light most favorable to the non-movant and draws reasonable inferences in the non-movant's favor. Aya Healthcare Servs., Inc. v. AMN Healthcare, Inc. , 9 F.4th 1102, 1107-08 (9th Cir. 2021). A scintilla of evidence in support of the plaintiff's position is insufficient. Anderson, 477 U.S. 242, at 255, 106 S.Ct. 2505, 91 L.Ed.2d 202. When parties cross-move for summary judgment, a court evaluates each motion separately. Pintos v. Pac. Creditors Ass'n , 605 F.3d 665, 674 (9th Cir. 2010).

In this case, both parties agree that a billy is an "arm" as described by the Second Amendment right to keep and bear arms.7 And both parties agree that a Second Amendment analytical approach is proper. Under this approach, the Attorney General argues that a billy is beyond Second Amendment protection for two reasons. First, the 104-year old statute qualifies as a "longstanding" prohibition. Second, a billy is a dangerous and unusual weapon. This Court agrees that Cal. Penal Code § 22210 is a longstanding regulation.

Under Ninth Circuit precedent, that ends the matter.


The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. "[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." McDonald v. City of Chicago, Ill. , 561 U.S. 742, 778, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ; District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). This right is incorporated against the states under the Fourteenth Amendment. McDonald , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894.

In Heller , the United States Supreme Court created an analytical framework for understanding and applying the Second Amendment. In this Court's view, one first asks is the arm dangerous and unusual? "We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ " Heller , 554 U.S. at 627, 128 S.Ct. 2783. If it is not unusual, then the question is asked, is the arm commonly possessed by law abiding citizens for lawful purposes? If the answer is "yes," that should end the inquiry as to whether the arm can be owned or possessed. Nowhere, in either Heller or Caetano v. Massachusetts , 577 U.S. 411, 411, 136 S.Ct. 1027, 194 L.Ed.2d 99 (2016), did the United States Supreme Court then go on to apply a level of scrutiny: strict, intermediate, or rational basis.

Second, the Court said, "the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller , 554 U.S. at 626, 128 S.Ct. 2783. So, what does that mean? A citizen may not own or possess (with regulatory exceptions) a bazooka, a flamethrower, or an automatic weapon like the M-16. It also means that a citizen may not bring an otherwise protected weapon, for example an AR-15 rifle, into a school, the Capitol, a courthouse, a church, or other sensitive places where a legislative body has prescribed reasonable regulations. Id. ("Nothing in our opinion should be...

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