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By Mastagni Holstedt A.P.C. | August 8, 2023 | Posted in PORAC LDF News

PORAC Brief Supports Injunction Against Unsafe Handgun Act

Mastagni Holstedt, APC

On March 20, United States District Court Judge Cormac J. Carney issued a preliminary injunction in Boland v. Bonta against the requirements of the Unsafe Handgun Act (UHA) banning semiautomatic handguns without chamber load indicators, magazine detachment mechanisms and microstamping technology. The statute further requires the Department of Justice to remove three grandfathered semiautomatic handguns per every “safe” handgun admitted. Because the microstamping technology is theoretical but not commercially feasible, no new handgun has been added to the UHA roster of approved handguns since this 2013 requirement.

The District Court repeatedly cited the declaration of PORAC President Brian Marvel in issuing the injunction: “Similarly, if Off-Roster firearms were truly unsafe, California would not allow law enforcement to use them in the line of duty, when the stakes are highest. But the substantial majority of California’s law enforcement officers use Off-Roster handguns in the line of duty.”

Attorney General Bonta appealed the order granting the preliminary injunction to the Ninth Circuit Court of Appeals, which granted a stay during the pendency of the appeal. Tellingly, the attorney general did not appeal the injunction as to the microstamping requirement, and SB 452 has been introduced to repeal the microstamping requirement. However, the apparent abandonment of this most indefensible requirement does not correct constitutional or public policy defects with this statute. The UHA’s required “safety features” do not noticeably improve the overall safety of firearms. If they did, PORAC would demand that law enforcement agencies issue their members firearms with those features. PORAC has long advocated for their members to be issued the newest, safest and best equipment, including handguns.

While the UHA purports to ban unsafe handguns, it actually bars members of the public from obtaining newer, improved and safer generations of handguns already approved through California’s Roster of Certified Handguns. Ironically, officers are issued improved and safer generations of handguns, which are off-roster and lack magazine safety disconnects, chamber load indicators and microstamping. The UHA’s 2006, 2007 and 2013 amendments violate the Second and 14th amendments to the United States Constitution by prohibiting the sale of handguns without these features and requiring the eventual removal of all grandfathered handguns currently on-roster.

On June 2, PORAC, the California State Sheriffs’ Association (CSSA), the California Police Chiefs Association (CPCA), the California Association of Highway Patrolmen (CAHP) and the California Reserve Peace Officers Association (CRPOA) filed an amici curiae brief in the Ninth Circuit Court of Appeals, supporting the district court injunction. David E. Mastagni and Timothy K. Talbot of Mastagni Holstedt drafted and filed this brief.

The brief noted that private citizens have a constitutional right to be armed for self-defense. In California, “[t]he right to defend life is one of the inalienable rights guaranteed by the constitution of the state” (People v. McDonnell, 32 Cal.App. 694, 704 [1917]; Cal. Const. Art. 1, sec. 1). Similarly, “[c]entral to the rights guaranteed by the Second Amendment is ‘the inherent right of self-defense’” (United States v. Torres, 911 F.3d 1253, 1257 [9th Cir. 2019], citing District of Columbia v. Heller, 554 U.S. 570, 628 [2008]). Armed citizens do for themselves what law enforcement cannot always be there to do. There is no principled reason law-abiding citizens, including off-duty and retired peace officers, should be limited in their choice of handgun to older models designated as obsolete by the manufacturers.

In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the United States Supreme Court laid out the appropriate standard for applying Second Amendment analysis. “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command’” (Id. at 2129-30).

Bruen holds that the government has the burden of proving that a challenged regulation is consistent with the “Nation’s historical tradition of firearm regulation” by analogy to historic regulations that imposed a “comparable burden on the right of armed self-defense and that [the] burden is comparably justified” (Id. at 2133). In other words, the regulations should be compared based on “how and why” they burden a law-abiding citizen’s right to armed self-defense. Bruen rejected “interest-balancing inquiries” as inappropriate for Second Amendment analysis (Id. at 2129). If there is no historical equivalent, the regulation is presumptively unconstitutional.

“[T]he Second Amendment’s definition of ‘arms’” thus presumptively covers all “modern instruments that facilitate armed self-defense” (Bruen, 142 S.Ct. at 2132). In Heller, the Supreme Court acknowledged that “handguns are the most popular weapon chosen by Americans for self-defense in the home.” Thus, modern semiautomatic handguns are protected by the Second Amendment.

PORAC’s brief argued the inquiry here is “fairly straightforward” because the UHA purports to “address[] a general societal problem that has persisted since the 18th century” (Bruen, 142 S. Ct. at 2132). The state raised rejected analogies to fire prevention statutes regulating the storage of gunpowder and a few product safety regulations, which barrel-tested certain guns to ensure “that each firearm’s basic features were adequately manufactured for safe operation.”

PORAC argued that a safety regulation relating to the storage of gunpowder is in the nature of a fire regulation, independent of its intended use or its use as a component of ammunition. Storage requirements are not connected to the gun’s operation or safety features. At the same time, the UHA purports to prevent the unintentional discharge of handguns, not regulate one of the component parts of gun ammunition.

Similarly, testing firearms to ensure they fire safely without malfunctioning significantly differs from banning handguns unless manufacturers add mechanical safety features to handguns in common use for self-defense. This analogy fails the how and why tests. The “why” is different. Those statutes required testing in response to concerns over poor manufacturing resulting in malfunction and injury when intentionally fired. In contrast, the UHA seeks to address the accidental discharge of a gun carelessly treated as unloaded, despite the maxim to “treat all guns as if they are loaded.”

The “how” is also dissimilar. The analogized product safety statutes required small manufacturers to have their rifle and pistol barrels fire-tested to ensure that the weapon could be safely discharged without malfunctioning. These statutes did not require the inclusion of particular features that had no direct effect on an individual’s right to purchase or choose a firearm — whereas the UHA is an attempt by the California Legislature to alter the handgun market in California by artificially creating a demand for handguns that are equipped with a particular set of safety features.

However, the practical effect of the UHA has been to label nearly every semiautomatic handgun in the United States unsafe and to either immediately or eventually impose a ban. By its plain terms, the statute requires the Department of Justice to remove three grandfathered semiautomatic handguns per every semiautomatic admitted that satisfies all its operative technological feature requirements. This provision is without limit and contemplates the eventual removal of all currently on-roster semiautomatic handguns — California Penal Code section 31910(b)(7). Counterintuitively, the UHA requires the removal of the grandfathered, noncompliant guns from the roster in reverse order from their inclusion, meaning the most modern and presumably safest guns are removed first, including guns with some but not all of the safety features required.

From a policy perspective, the inherently subjective definition of unsafe handguns in the UHA is illogical, given that nearly every California peace officer “bears” a purportedly “unsafe” handgun while on duty when they are most likely to use the gun for self-defense and defense of others. S.B. 377 would double down on this contradiction by prohibiting officers from personally purchasing the handguns they carry on duty. Many officers are issued fourth- or fifth-generation Glock pistols or Sig Sauers, which are off-roster and lack magazine safety disconnects, chamber load indicators and microstamping. Earlier generations of the same model pistols are on the roster because they were added before the roster was effectively frozen. These older-generation handguns are difficult to obtain because, as with any industry, the manufacturer only produces the newer, improved versions. The newest generations of Glock handguns are arbitrarily deemed unsafe and banned from civilians, while older generations temporarily remain on the roster. Thus, the UHA also endangers officers’ ability to own the handguns they carry on duty.

The California Legislature has a myriad of options to enhance public safety and reduce gun violence without insisting on symbolic handgun bans, which are simply not constitutional options under Bruen. If California sincerely desired to reduce gun violence and promote public safety, the Legislature could enact laws and fund enforcement to keep guns out of prohibited persons’ hands and to impose meaningful consequences when guns are used in violent crime. Unfortunately, the Legislature instead targets the self-defense rights of all Californians while reducing or eliminating sentencing enhancements for committing gun crimes.

PORAC highlighted the Legislature’s selective concern over gun violence, given legislation in 2017 and 2021 to expand the grounds to strike or dismiss gun enhancements at the time of sentencing. Our brief cited Marvel’s attestation that the state could improve gun safety by ensuring the Department of Justice has the necessary resources and directives to remove firearms from the approximately 24,000 individuals on the list of prohibited persons in possession of a firearm. PORAC reminded the Ninth Circuit that on June 14, 2022, two El Monte peace officers were murdered by a gang member who should have been in prison after being arrested for unlawful possession of a firearm. Due to the Los Angeles District Attorney’s failure to enforce prohibited persons laws, these two officers were murdered.

As the brief concludes, “It is critical to the safety of the public that we keep guns out of the hands of prohibited persons and disincentivize the unlawful use of firearms through both enforcement and criminal enhancements. The provisions of the UHA presented in this appeal do not further these common-sense goals.”

On August 23, the Ninth Circuit will hear oral arguments on the appeal of the district court injunction. The district court is expected to set a trial date for a final determination over the constitutionality of the UHA after the Ninth Circuit rules on this appeal.

About the Author

David Emilio Mastagni is a partner with the law firm of Mastagni Holstedt, APC, and is an experienced panel attorney for the PORAC Legal Defense Fund. David specializes in labor and employment representation of public safety employees, including trial and appellate litigation in California and federal courts.