Rhode v. Becerra

• Decision Date: 23 April 2020
• Docket Number: Case No.: 18-cv-802-BEN
• Citation: 445 F.Supp.3d 902
• Court: U.S. District Court — Southern District of California
• Parties: Kim RHODE, et al., Plaintiffs, v. Xavier BECERRA, in his official capacity as Attorney General of the State of California, Defendant.

445 F.Supp.3d 902

Kim RHODE, et al., Plaintiffs,

v.Xavier BECERRA, in his official capacity as Attorney General of the State of California, Defendant.

Case No.: 18-cv-802-BEN

United States District Court, S.D. California.

Signed April 23, 2020

Carl D. Michel, Sean Brady, Michel & Associates PC, Long Beach, CA, for Plaintiffs

Nelson Richards, California Attorney General's Office, Fresno, CA, Noreen Patricia Skelly, CA Department of Justice, Office of the Attorney General, Sacramento, CA, for Defendant

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Roger T. Benitez, United States District Judge

The experiment has been tried. The casualties have been counted. California's new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured. In this action, Plaintiffs seek a preliminary injunction enjoining California's onerous and convoluted new laws requiring ammunition purchase background checks and implementing ammunition anti-importation laws. For the reasons that follow, the motion for preliminary injunction is granted.

The purported state interest to be achieved by these new laws is keeping ammunition out of the hands of prohibited Californians. These new laws are constitutionally defective for several reasons. First , criminals, tyrants, and terrorists don't do background checks. The background check experiment defies common sense while unduly and severely burdening the Second Amendment rights of every responsible, gun-owning citizen desiring to lawfully buy ammunition. Second , the implementing regulations systematically prohibit or deter an untold number of law-abiding California citizen-residents from undergoing the required background checks. Third , in the seven months since implementation, the standard background check rejected citizen-residents who are not prohibited persons approximately 16.4 % of the time. Fourth , the ammunition anti-importation laws directly violate the federal dormant Commerce Clause.

I. BACKGROUND

For the last 170 years, California citizens were able to purchase wanted or needed ammunition without background checks. They could order ammunition over the internet and from vendors outside the state. Today, the first state in the nation to do so, California extends the idea of firearm background checks to ammunition purchasers.^{1 2} In other words, every time a person wants to buy ammunition legally, a licensed ammunition dealer must first conduct a California Department of Justice background check in a face-to-face transaction. No doubt, to prevent gun crime by preventing felons and other prohibited persons from acquiring ammunition is a laudable goal.³ But there is little evidence that pre-purchase ammunition background checking will accomplish the goal and the burden it places on the Constitutional rights of law-abiding firearm owners is profound. Furthermore, compared to the discouraging effect on criminals, the laws have a severely disproportionate effect on law-abiding citizen-residents. As one commentator put it, "in the end, the [Safety for All] Act will have a much more profound effect on law-abiding citizens than it will on criminals or the mentally ill. While an average Californian would not risk breaking the law to purchase illegal ammunition, criminals and mentally ill individuals planning mass-shootings would be much more likely to do so." Forrest Brown, The Wild West: Application of the Second Amendment's Individual Right to California Firearm Legislation , 92 S. Cal. L. Rev. 1203, 1231 (2019).

A ballot initiative known as Proposition 63 (the "Safety for All Act of 2016") (a misnomer), amended California's Penal Code to regulate the purchase of all firearm ammunition.⁴ Ammunition sales, deliveries, or transfers in California must now be conducted by a state-licensed ammunition vendor in a face-to-face transaction. Cal. Penal Code § 30312(a) - (b). A California resident who seeks to buy firearm ammunition must first pay for and pass an electronic background check each time he or she wishes to make a purchase. And a resident may not purchase from vendors outside of California, whether in person or through an internet transaction, unless the ammunition is delivered directly to a California-licensed ammunition vendor, whereupon the resident must then pay for and pass the background check in a face-to-face transaction. Id. ; § 30314. Of course, the right to keep and bear arms is not unlimited. Some laws imposing conditions and qualifications on the commercial sale of guns and ammunition do not infringe on Second Amendment rights. One example of a permissible regulation is a law requiring stores to display ammunition beyond the reach of customers. Nevertheless, the Second Amendment is not a "loophole" that needs to be closed. See Proposition 63, § 3 describing various Second Amendment freedoms as loopholes, at ¶5 ("Although California has led the nation in gun safety laws, those laws still have loopholes.... We can close these loopholes."); at ¶6 (re: no background checks for sales of ammunition: "We should close that loophole."); at ¶12 (re: possessing magazine holding more than 10 rounds: "We should close that loophole."); Def.'s Opp'n to Pls.' Mot. for Prelim. Inj., Doc. 34, at 5 ("Loopholes in the State's gun safety laws permitted violent felons and other persons prohibited from possessing firearms and ammunition to perpetuate gun violence."); id. ("Prop. 63 amended the California Penal Code to close the loophole...").

A. The Main Gate and Four Doors

Proposition 63 has constructed an unnecessarily complicated maze that all ammunition purchasers must navigate. Metaphorically, all ammunition to be bought or sold must be kept in the back storeroom of a licensed ammunition vendor. In order to be admitted to the storeroom to buy ammunition, a California resident must first pass through a main gate. The main gate requires proving citizenship. Proceeding through the gateway, the California resident is then presented with a choice of four doors. Each door is a different kind of background check and each doorway leads to the back storeroom⁵ . Door No. 1 is the "Standard" background check. It is supposed to be quick and costs one dollar but it is only for people who have previously bought a firearm through a California licensed firearm dealer or who have registered a firearm. Most try this door first. Door No. 2 is a "Basic" background check. It is slow and costs $19. Anyone can try this door and many do. Door No. 3 is a Certificate of Eligibility Verification check. It is quick and cheap, but it is only for those who have already gone through a long, expensive, and arduous process of obtaining a Certificate of Eligibility or "C.O.E." Door No. 4 leads to the new firearms showroom. Here, a person purchases a firearm and submits to an expensive and slow full background check conducted through federal and state databases. If the Californian passes the Door No. 4 background check, she may also be admitted to the ammunition storeroom after the statutory ten-day cooling off period. Though based on complete database searches and live analyst reviews, background checks for Doors No. 2 and No. 4, are good for one purchase only—just like a Door No. 1 check. Each of these passageways will be described in more detail.

B. The Main Gate

Between July 1, 2019 and January 31, 2020, almost 640,000 resident citizens of California were admitted through the main gate and tried one of the four doors to buy ammunition. Ironically, while the State now requires background checks for everyone, at the same time, it has adopted a regulation which is preventing many from starting the background test.

Before a person can go through the main gate and start a background test, he or she must prove citizenship. By itself, a standard California driver's license or identification card is not good enough to prove citizenship. If a person is relying on only his driver's license to buy ammunition, he needs a new California REAL ID-compliant driver's license ("DL") or identification card ("ID"). Obtaining a REAL-ID card from the Department of Motor Vehicles requires more proof of citizenship than the standard California card. California made two important changes to its DL and ID in 2018. In January 2018, California began issuing REAL IDs to qualified residents. Def.'s Opp'n, Doc. 34, at 8. At the same time, standard California DLs and IDs started being labeled with a phrase, "Federal Limits Apply" ("FLA") in the right corner. The FLA label distinguishes standard California DLs and IDs from REAL ID-compliant cards. All of this would be beside the point if it were not for two more California choices.

One California choice complicating the picture is a 2013 state law known as AB 60. Among other things, AB 60 directed the Department of Motor Vehicles to issue California DLs to aliens who may be unlawfully present in the United States and reside in California. The California DMV began issuing AB 60 DLs in 2015. First Morales Declaration, Doc. 34-1, at ¶36. AB 60 DLs are also labeled with the phrase "Federal Limits Apply" and look exactly like the standard DLs and IDs now issued to California's U.S. Citizen-residents. Id. at ¶¶37-39 ("For those applicants with ‘FEDERAL LIMITS APPLY’ licenses issued after January 22, 2018, however, there is no practical way to determine from the face of the license whether the applicant is an AB 60 license holder."). To emphasize the point, all standard California driver's licenses now look exactly the same, whether issued to a citizen resident or to an unlawfully present alien.

Here is the rub. Without additional proof of citizenship, everyone who wants to buy ammunition with a standard California DL is rejected at the main gate because a person who presents a standard California DL at the main gate may be either a U.S. Citizen or an unlawfully-present alien. The first person has a federal constitutional right to possess a...