Government Liability Update

Disclosure of Biographical Information of Gun Owners Does Not Violate the 14th Amendment or 2nd Amendment

In Doe v. Bonta, published May 8, 2024, the 9th Circuit Court of Appeals affirmed the district court's dismissal of an action under 42 U.S.C. section 1983 challenging California Assembly Bill 173, enacted as Penal Code sections 11106(d) and 30352(b).  The statutes require the California Department of Justice to provide to a research center at the University of California identifying information about purchasers of firearms and ammunition, as well as of persons who hold concealed carry permits.  The statutes also give the DOJ discretion to disseminate the information to other accredited research institutions.  The information is primarily obtained from the information firearm purchasers must supply to dealers, who then transmit the information to DOJ; and CCW records that local authorities supply to DOJ.  The information is the name, address, identification, place of birth, telephone number, occupation, sex, description, and legal aliases of the purchasers and CCW permittees.  The plaintiff gun owners did not object to the maintenance of this information in DOJ databases or to dissemination of the information for law enforcement purposes.  But the plaintiffs sought an injunction barring the DOJ from enforcing the legislation, and a declaration that the legislation is unconstitutional, as infringing their 1th Amendment right to informational privacy and 2nd Amendment right to keep and bear arms.

The 9th Circuit agreed that the plaintiffs failed to state a claim under the 14th Amendment.  The 14th Amendment right to informational privacy does not protect biographical data.  The information provided under the legislation is biographical data.  A reasonable expectation of privacy in information provided does not alone trigger 14th Amendment protection.  Nor is there a reasonable expectation of confidentiality where, as here, the information is not highly personal.  While the CCW permit applications contain Social Security Numbers, the law does not provide that the applications are among the CCW records that local authorities must provide to the DOJ.  Nor do the plaintiffs state a 2nd Amendment claim, because the statutes do not affect the right to keep or bear arms.  Because the legislation only provides for releasing the information to accredited research institutions, the plaintiffs' concern that their right will be chilled due to increased risk of public exposure and harassment is speculative and lacking in empirical foundation.

Divided En Banc Panel Upholds California's Limitation on Large-Capacity Magazines

In Duncan v. Bonta, published November 30, 2021, a divided en banc panel reversed a grant of summary judgment to plaintiffs challenging the State of California's amendment of Penal Code section 32310 to prohibit possession of large-capacity magazines, defined as those that can hold more than ten rounds of ammunition.  The ban exempts certain persons, such as law enforcement officers, security guards, and makers of props for film.  Owners of large-capacity magazines are required to remove the magazine from the state, sell it to a licensed arms dealer, or surrender the magazine to a law enforcement agency for destruction.  The plaintiffs challenged the statute as violating the Second Amendment, the Fifth Amendment's Takings Clause, and the Fourteenth Amendment's Due Process Clause.

Addressing the Second Amendment challenge, the en banc panel majority applied the two-step framework set forth in the U.S.U.S. Supreme Court's decision in District of Columbia v. Heller.  Under the framework, the court first determines whether the challenged law affects conduct that the Second Amendment protects; if so, the court determines the level of scrutiny to apply.  The court assumed (without deciding) that the Second Amendment's protection applied.  Joining other circuits, the court applied an intermediate level of scrutiny, because the ban imposed only a minimal burden on the Second Amendment right to keep and bear arms.  Under that scrutiny, the majority held that the statute was a reasonable fit for the important government interest of reducing gun violence.  The statute did not outlaw any weapons.  The majority further determined that the limitation interferes minimally with the core right of self-defense, due to lack of evidence anyone had been unable to defend home and family due to the lack of a large-capacity magazine.  The majority also determined that the limitation saved lives, since in the past half-century large-capacity magazines have been used in most shootings with 10 or more deaths and in 100 percent of shootings with 20 or more deaths.  More than twice as many people have been killed or injured in mass shootings involving large-capacity magazines compared with those involving smaller-capacity magazines.  The ban therefore reasonably supported California's efforts to reduce the damage caused by mass shootings.  The majority further ruled that the statute on its face does not effect a taking, because the government acquires nothing by limiting magazine capacity, and because owners may modify or sell their nonconforming magazines they are not deprived of all economic use of the magazines.  The due process claim essentially restated the takings claim, and failed for the same reason.

Three dissenting judges opined that the court should apply an analysis based on the text, tradition, and history of the Second Amendment, rather than the tiers-of-scrutiny approach.  Under that analysis, the dissenters opined, the long history of use of large-capacity magazines (including use at the time the nation was founded), the fact they number in the millions, and the lack of longstanding prohibitions against them establish they are entitled to Second Amendment protection.

Another dissenting judge opined that Ninth Circuit case law, including this case, showed a distrust of gun owners and did not accord proper protection to Second Amendment rights.

Warrantless Seizure of Firearms in Household of Person Detained for 72-Hour Observation Did Not Violate Fourth Amendment; Second Amendment Argument Barred by Issue Preclusion

In Rodriguez v. City of San Jose, published July 23, 2019, the 9th Circuit affirmed summary judgment for the defendant city, its police department, and a police officer in a lawsuit brought under 42 U.S.C. section 1983.  Officers responded to the plaintiff's 911 call for a welfare check on her husband.  The husband was ranting, mentioned shooting up schools, and stated he had a gun safe full of guns.  The officers detained the husband under Welfare & Institutions Code section 5150 for 72 hours observation. After the husband was removed from the house, the plaintiff confirmed that there were firearms in the house.  The officers found 12 firearms in the house--one registered to the plaintiff alone, the rest unregistered or registered to the husband.  The plaintiff objected to the removal of her personal handgun.  The officers confiscated all of the firearms.  The husband was evaluated at the hospital, admitted, and released a week later.  Later, the city filed a petition for forfeiture of the firearms.  The plaintiff intervened, asserting personal ownership of her handgun and community ownership of the others.   She asserted her Second Amendment right to keep and bear arms, since she was not prohibited from possessing or owning guns.  The court granted the city's petition.  The state court of appeal affirmed that the seizure did not violate the plaintiff's Second Amendment rights.  After the decision, the plaintiff changed the registration and ownership so that all the guns were in her name only, and obtained gun release clearances from the state department of justice.  The city declined her request to return the guns.  She then brought this lawsuit, joined by two gunowners' rights organizations.  She asserted violations of her Second Amendment and Fourth Amendment rights.

The 9th Circuit affirmed the district court's decision that the warrantless seizure of the firearms did not violate the Fourth Amendment. The public health and safety protection exception to the warrant requirement applied.  A seizure of a firearm in the possession or control of a person who has been detained because of an acute mental health episode responds to an immediate threat to community safety.  When asking whether the seizure falls within an exception to the warrant requirement, three factors must be balanced, based on all the facts available to an objectively reasonable officer:  The public safety interest; the urgency of that interest; and the individual property, liberty, and privacy interests.  Here, the seizure of the guns from the home affected a serious private interest in the personal property kept in the home.  But because the officers had probable cause to detain involuntarily an individual experiencing an acute mental health episode and send him for evaluation; the individual had threatened to use the firearms; and the officers did not know whether the hospital would detain the individual or keep him detained long enough to permit the officers to seek a warrant, the urgency of a significant public safety interest was sufficient to outweigh the significant property interest.

The 9th Circuit also concluded that the Second Amendment claim was precluded by the final decision of the state court, in which the plaintiff's Second Amendment rights were litigated.  The addition of the advocacy groups as plaintiffs did not change the issue preclusion analysis, because they lacked institutional standing.  They failed to show that the issue of whether a single gun owner's firearms should be returned either impeded their ability to carry out their mission or required them to divert substantial resources away from the organizations' preferred uses.

Gunowner Convicted of Domestic Violence Misdemeanor Who Completed Probation Properly Arrested and Prosecuted for Gun Ownership

In Fortson v. Los Angeles City Attorney's Office, published April 7, 2017, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 lawsuit based on alleged violation of the Second Amendment.  The plaintiff, a security guard, was convicted of misdemeanor domestic abuse.  Under the California Penal Code, that made it a misdemeanor for him to own, buy, or have in his custody a firearm for 10 years.  His sentence was modified to permit him to use and keep a weapon while on the job as a security guard, but to forbid him from having weapons in his possession when not at work.  He completed the affirmative obligations of his sentence, his conviction was vacated, and his case was dismissed.  Plaintiff purchased two handguns.  Under Bureau of Firearm policies, BOF agents were to come to plaintiff's home, request permission to enter and seize the weapons, and return with a warrant if he refused.  Instead, when they came to his home and he refused to turn over the weapons, they restrained him and seized the weapons. Plaintiff was charged with violating the 10-year ban on weapons.  The charges were later dropped.  Plaintiff brought an as-applied challenge against the 10-year ban, and false imprisonment and malicious prosecution claims.

The 9th Circuit upheld the constitutionality of the 10-year ban.  It had previously upheld a federal statute imposing a lifetime ban on firearm ownership for those convicted of domestic violence misdemeanors.  The 10-year ban is less restrictive, and shares the same goal of preventing domestic gun violence.  It does not violate the Second Amendment, which protects the rights of law-abiding responsible citizens to use weapons in defense of hearth and home.  The ban was not coterminus with plaintiff's probation, and he was mistaken in thinking it was.  The false imprisonment and malicious prosecution claims failed because the agents had probable cause for plaintiff's arrest, even though the search for them may have been unlawful.