A federal judge issued a tentative ruling Friday that blocks half of a California gun bill that state legislators, at the behest of Gov. Gavin Newsom, modeled after the controversial Texas law allowing private citizens to sue abortion providers.
The part of the bill — signed by Newsom in July and set to take effect Jan. 1 — being challenged was a fee-shifting provision that would make it extremely financially risky to bring any lawsuit fighting California's strict gun laws. Just as Texas lawmakers had used the provision to shield their abortion law from legal challenges, the California provision made it so any individual or group challenging a Second Amendment regulation would have to win each and every one of their claims, or else pay the government's legal fees.
U.S. District Judge Roger Benitez, calling such fee-shifting provisions "abhorrent," issued a tentative oral ruling siding with the gun rights groups challenging the provision in two separate lawsuits. He said he'll formalize his tentative ruling with a written order issuing an injunction that bars the enactment of California's fee-shifting provision.
During a bench trial on the matter Friday, Benitez said such provisions essentially close off access to the courts to anyone seeking to use a lawsuit to restore rights they believe the Constitution affords them.
"When people feel they can't go to the courts ... if that process is taken away from them, what's left?" Benitez asked an attorney representing Newsom, before giving his own answer. "The result is either civil disobedience or violence."
The impending injunction comes at a crucial time for California's strict gun laws, which are undergoing new or revived legal challenges thanks to the U.S. Supreme Court's ruling earlier this year in a New York concealed weapons case. If plaintiffs and their attorneys were constantly under threat of having to pay the government's legal bills, it would have severely restricted their ability to challenge California gun regulations, such as laws that ban assault weapons or homemade firearms.
With an injunction soon to be in place on the fee-shifting provision, the plaintiffs and their attorneys can move forward with those lawsuits without fear of being saddled with huge financial liability.
Benitez, a George W. Bush appointee, has often sided with gun rights groups in lawsuits challenging California's strict gun laws, earning him the moniker "St. Benitez" among firearms enthusiasts.
But he said Friday's tentative ruling was "not about firearms regulations. This is about a constitutional right."
The debate over the law's constitutionality came with a twist in this case.
That's because California Attorney General Rob Bonta, the named defendant in the lawsuits, refused to defend the constitutionality of the fee-shifting provision in a rare but not unprecedented move. Instead, Newsom intervened to defend the law.
Bonta had criticized Texas' abortion law, SB 8, as unconstitutional last year when he joined 23 other attorneys general urging the U.S. Supreme Court to block it.
That put him in an awkward position this summer after Newsom signed the new gun bill modeled on the Texas law. The difference was that it targeted illegal weapon manufacturers instead of abortion providers.
Bonta's deputies wrote in a recent court filing that, based on his previous stance that Texas' abortion law was unconstitutional, the attorney general and his deputies "are not in a position to defend SB 1327's constitutionality."
The judge called it a "very unusual situation."
Bonta's decision is an uncommon one, but not without precedent, according to some constitutional law professors. More than a decade ago, California officials declined to defend Proposition 8, the state law that banned same-sex marriages. The Obama administration similarly declined to defend the Defense of Marriage Act, which also banned same-sex unions.
In those cases, political rivals stepped in to defend the laws, which were both eventually overturned. But in Bonta's case, it was his political ally and the man who appointed him to the job who chose to intervene. Though the law professors said interventions are common in general, a spokesperson for the governor said it's the first time during Newsom's tenure he has intervened in a lawsuit.
"Governor Newsom is taking this action to ensure that Californians' interests are robustly defended," Newsom spokesperson Danella Debel wrote in an email Thursday, before Benitez had issued his tentative ruling. "Under the California Constitution and federal court rules, the Governor has a right to intervene in a federal lawsuit challenging a state statute."
In a statement issued Thursday, Newsom called it "an abomination" that the Supreme Court upheld Texas' abortion law, and his lawyers wrote in a court filing that fee-shifting provisions like the one in Texas' law, which would effectively ban most citizens from accessing the courts to try to fight for their rights, "are outrageous and objectionable."
But he argued that until a court rules Texas' fee-shifting provision is unconstitutional, California will use the same legal tool to try to combat gun violence.
"So long as this opportunity to take action against those who spread illegal weapons in our communities exists, we're going to use it to save lives," Newsom said in a statement issued before Friday's hearing. "We will not back down."
Benitez said using the "strong arm of the state with its unlimited resources" to discourage people from trying to fight for their rights in court is wrong. "I can't think of anything more tyrannical," he said.
Newsom appears to be on somewhat of an island in defending SB 1327's fee-shifting provision. Before lawmakers passed the bill, ACLU California Action — the policy analysis and legislative advocacy arm of California's American Civil Liberties Union branches — warned in a letter to lawmakers that the bill "would set a dangerous legal precedent."
Glenn Smith, a professor at San Diego's California Western School of Law, agreed.
"Especially when dealing with the supreme law of the land and core constitutional rights, it's important to not lose track of the big picture," Smith said Thursday. "It's important for people to not have a short-term view of politics so that they approve of something that if the context is flipped, they would disapprove. That ought to tell them the whole enterprise is dangerous."
Ken Vandevelde, a professor at Thomas Jefferson School of Law downtown, said there are "serious questions about the constitutionality of fee-shifting measures" like the ones in both the California gun law and Texas abortion law.
"The Supreme Court has held that litigation to protect rights is a form of expression protected by the First Amendment," Vandevelde said. He said a law that threatens a plaintiff with massive legal bills unless they win every single one of their claims appears to be an effort to chill First Amendment-protected free-speech rights.
"It's especially odious if aimed at people taking a particular viewpoint, if the only targets are people advocating one position," he said. That's known as "viewpoint discrimination," Vandevelde explained, and it could be argued that a fee-shifting provision only targeting one group, like gun rights organizations or abortion advocates, meets the criteria.
"The Supreme Court has treated that kind of discrimination very harshly," he said.
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