Judge strikes down California Ammo Background Check Law; 9th Circuit reinstates it less than 48 hours later

April 25, 2020


Matthew Hoy

U.S. District Court Judge Roger T. Benitez on Thursday afternoon struck down California's Ammo Background Check Law and its ban on direct, mail-order sales to state residents. Less than 48 hours later, the 9th Circuit, including an appointee of President Donald Trump, put a hold on Benitez's order pending California Attorney General Xavier Becerra's appeal of Benitez's preliminary injunction.

The lawsuit, Rhode v. Becerra, was brought over California's new law requiring, among other things, ammunition to only be sold by licensed ammunition or firearms dealers, sold only face-to-face, and requiring an onerous background check that (depending on whether you trust the judge's numbers or the goverment's) resulted in 16 or 13 percent of law-abiding, non-disqualified, citizens from successfully purchasing ammunition in the state.

After months of legal battles and updated reports on the performance of the state's new ammo background check system, Benitez found the system created by gun control proponents in the state government an affront to the Second Amendment.

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.

How the Ammo Background check (didn't) work

The first step of the state's ammunition background check system is a California driver's license or ID card. Several years ago, California, a so-called sanctuary state, made the public policy decision to issue drivers licenses even to people in the country illegally. This has resulted in two distinct versions of the state's ID. One which is a federally compliant "Real ID" that indicates the bearer is a U.S. citizen. The other is one which says "Federal Limits Apply." The latter one or may not be carried by a citizen (depending on whether they provided the necessary proof of citizenship when getting their ID), but is also the type of ID regularly issued to illegal aliens.

This public policy choice by the California state government has resulted in what Benitez refers to as "The Main Gate." According to California law, ammunition may only be sold to citizens, so only those with a "Real ID" can take the first step to purchasing ammunition in the state. Citizens with "Federal Limits Apply" on their ID will need to also provide either a valid passport or certified copy of their birth certificate as well—a process that can take months if they do not already have one.

Why the unnecessary complication over qualifying for a background check? Espousing a state interest in preventing unlawfully-present aliens from acquiring ammunition in violation of federal law, California’s Department of Justice has made a choice. Def.’s Opp’n, Doc. 34, at 20 (“[T]he purpose and effect of the identification requirements is to prevent persons without lawful presence from purchasing ammunition (or firearms) in violation of federal law.”) (emphasis added). The Attorney General cites no state statute for this choice. The notion does not appear in the text of Proposition 63 or in SB 1235. In fact, other California statutes require only that personal information be obtained from the magnetic strip of a DL or ID without specifying any particular type of DL or ID. As California has declared itself a “sanctuary” state, it is not immediately clear what state or local officials would or could do if they did discover an alien unlawfully present attempting to acquire ammunition. [Footnotes omitted]

While this may appear to be a simple hurdle to clear, plaintiff's attorneys found at least one citizen whose Second Amendment rights the state has decided to abrogate through these regulations.

Unfortunately, some law-abiding responsible citizen residents, who have a constitutional right to purchase ammunition, might never qualify to pass through the main gate (i.e., undergo a background check). Consider the case of Vietnam War Veteran, George Dodd. See Declaration of G. Dodd, Doc. 32-16. Dodd is an honorably retired member of the U.S. Navy. Recipient of the Bronze Star and Purple Heart, Dodd is a U.S. Citizen and 40-year resident of California. He has a California standard ID with the Federal Limits Apply notation. He does not have a REAL ID-compliant ID and he cannot obtain one. Dodd was adopted at a young age and does not know his biological father’s full name, consequently he cannot easily obtain his birth certificate. Without a certified copy of his birth certificate, he is unable to obtain a U.S. Passport. Without a birth certificate or a passport, Dodd cannot obtain a California issued REAL ID card. Without the REAL ID-compliant DL or ID, Dodd must have a birth certificate or passport to qualify to undergo an ammunition background check. How does one quantify the burden on Dodd’s constitutional rights? Is it a complete ban? A lesser but still severe burden? A severe burden tempered by mechanisms which can hypothetically overcome the barriers to acquiring ammunition?

Benitez then goes over the actual ammunition background check options open to California residents. A couple highlights:

  • Of the approximately 40 million residents of California, 640,000 citizens who wanted to buy ammunition somehow made it through the main gate. Of those, 616,257 citizens chose Door No. 1 and underwent a “Standard” background check. It is an electronic Automated Firearms System (“AFS’) check cross-checked by the Armed Prohibited Persons System (“APPS”) list. With the Standard background check, there were 188 would-be purchasers identified as “prohibited persons” (felons, fugitives, violent misdemeanants, etc.) and denied authorization to purchase ammunition. See Third Morales Declaration, Doc. 53, at ¶22. These are the people the new laws are designed to stop. Unfortunately, the Standard background check also rejected 101,047 other law-abiding citizen residents that the laws were not designed to stop. Later analysis reveals the rejections were either because the State has no record of gun ownership or because of identifier mismatches. To put this in perspective, 16% of those who established their citizenship were rejected and prevented from lawfully exercising their Constitutional right. By comparison, .030% of those who made it through the main gate were found to be prohibited persons.
  • The Door No. 2 option is to undergo the “Basic” background check which costs $19 and may take several days. Def.’s Opp’n, Doc. 34, at 7. Of the approximately 640,000 citizens who made it through the main gate, 19,599 citizens chose Door No. 2. There, 570 would-be purchasers were identified as “prohibited persons” (felons, fugitives, violent misdemeanants, etc.) and denied ammunition. See Third Morales Declaration, Doc. 53, at ¶11. These are the people the laws are designed to stop. Unfortunately, once again, the Basic background check also rejected 342 other law-abiding citizen residents that the laws were not designed to stop. Id. at Table 1.1. For those people, post-analysis revealed that no DMV match was found for 107 and 235 were rejected due to an “incomplete history.” Id.
  • For reasons unexplained, a resident who passes the full $19 Basic check must do so again for each and every future ammunition purchase. In other words, even though that person passes the Basic background check, his name does not go on the State’s AFS list and the quick and cheap Standard background check remains a futile exercise. Recall that those without guns registered in the AFS list, never succeed using Door No. 1’s quick and cheap option.

It's numbers like these, 101,047 law-abiding citizens prevented from buying ammunition while only 188 "prohibited persons" were prevented from buying ammunition, that fueled Benitez's grant of a preliminary injunction.

Classical liberals used to tout our system of justice and protection of the rights of the accused for being willing to let 10 guilty men go free rather than condemn a single innocent man. California's gun control laws would rather 1,000 innocent citizens lose their Second Amendment rights than let a single prohibited person buy ammunition.

The ban on imported ammunition violates the dormant commerce clause

Judge Benitez also struck down the portion of the California law that prohibits out-of-state ammunition vendors from selling to California residents.

In his ruling, Benitez ruled that there was no reason not to allow out-of-state vendors access to the state's background check system, and that it was unlikely that a prohibited possessor would have ammunition delivered to his home address in the state's database.

The State of California has not offered any evidence at this stage that out-ofstate ammunition businesses have been selling ammunition to prohibited persons in California. Like the minors in Granholm who want instant gratification and for whom waiting upon interstate shipping is a discouragement, some ammunition buyers bent on immediate crime want ammunition right away and would likely be frustrated in their criminal purposes by waiting for interstate shipping of ammunition. Also, it is not hard to imagine that a prohibited person would not want to lead law enforcement to his door by internet-ordering ammunition to be delivered to his home address. Judicial speculation aside, without concrete evidence that direct shipping of ammunition is likely to supply violent criminals and prohibited persons with ammunition, the Court is left with the State’s unsupported assertions. Under Granholm, which requires the clearest showing to justify discriminatory state regulation, California’s purely legal argument without evidence is not enough.

The request for a stay and a threat

Before noon on Friday, less than 24 hours after the preliminary injunction had been issued, Becerra asked for a stay of Benitez's order and demanded that it be issued by 3 p.m., less than four hours later, or they would consider it denied and go over his head to the Ninth Circuit.

Becerra did this for one reason: He didn't want an extended period of time when his unconstitutional ammunition background checks were being ignored resulting in people buying ammo.

Last year, when Benitez struck down the state's longstanding ban on magazines capable of holding more than 10 rounds, Benitez let nearly a week pass before he ruled on the Becerra's request for a stay. That delay allowed millions of standard-capacity magazines to be legally imported into the state before Benitez crafted a stay that protected people who had purchased those magazines, but had not yet received them in the mail.

Becerra didn't want a similar delay to allow even one California citizen to buy ammunition without a background check.

Benitez responded quickly, issuing an order denying the stay and again emphasizing that the state's system was preventing thousands of citizens from buying ammunition, while stopping only a handful of prohibited persons.

Here the Attorney General focuses on the possibility that a prohibited person may acquire ammunition. Buying ammunition is something that prohibited persons have managed to accomplish for 170 years and these new laws show little likelihood of success of preventing prohibited persons from unlawfully possessing future acquisitions. This Court’s focus is on the 101,047 + law-abiding, responsible citizens who have been completely blocked by the operation of these laws. Without an injunction, these law-abiding individuals have no legal way to acquire the ammunition which they enjoy the constitutional right of possession. These law-abiding individuals whose numbers are vast have no way to lawfully acquire ammunition to defend themselves, their families and their homes. The injunction restores that right.

The 9th Circuit puts a hold on the preliminary injunction

Before the courts closed for the weekend, Becerra had filed for a stay with the 9th Circuit. Just before 10 p.m. Friday night, less than 48 hours since Judge Benitez had issued his 120-page preliminary injunction, two judges on the motions panel for the month of April reinstated the ammo background checks and importation ban.

Those judges were, unsurprisingly, Judge Mary Murguia—a Barack Obama appointee—and Judge Mark Bennett—a Trump appointee. Bennett was confirmed to the 9th Circuit in 2018 with 27 votes against him, all Republicans who pointed to his hostility toward the Second Amendment.

[Texas Sen. Ted] Cruz said he was especially worried about Bennett's decision to sign on to an amicus brief in the Heller case which argued that the Second Amendment was merely intended to protect state militias from federal interference and should not apply to state laws.

"Taking the position in the Heller case that the Second Amendment protects no individual right to bear arms whatsoever," Cruz said in the meeting. "In my judgement that is an extreme position. It is grossly inconsistent with the text and original understanding of the Second Amendment and, so, I can't, in good conscience, vote to confirm him for a lifetime position as a court of appeals judge on the ninth circuit."

It looks like Cruz was right.

Some comments on Benitez's ruling

As noted earlier, Benitez's order granting the preliminary injunction against the California law was 120-pages long. Many court watchers had wondered why Benitez was taking nearly a year to make a ruling on the lawsuit—one that was almost certain to go against the state of California if his ruling on the state's magazine ban was any indication.

The answer was twofold. First, Benitez gave the state Department of Justice several months to get it's ammunition background check system up and running with enough time for any growing pains to get worked out. He wanted to see what was the absolute best the state could do. After 10 months, it became very clear that the system was an unmitigated failure. Second, his extensive decision is as close as possible to bulletproof.

The numbers don't lie. The state estimated that they would end up doing approximately 13 million standard background checks a year. Through 7 months, the state had only done just over 630,000. Clearly the problems with the background check system has caused many to simply not purchase ammo (because they stocked up before the law went into effect) or they have decided that purchasing ammunition out of state, even though illegal, is preferable.

Notwithstanding the 9th Circuit's knee-jerk kowtowing to Attorney General Becerra, any honest reading of Benitez's decision shows a depth of analysis and fact-finding that only a determined anti-Second Amendment partisan could dispute. Benitez scrutinizes the law and finds it lacking under both the Supreme Court's Heller test and the unconstitutional "strict scrutiny" (that's really an interest-balancing test) that many circuit courts have adopted.

California Rifle and Pistol Association president and lawyer Chuck Michel has vowed to fight on. A final decision may have to wait for the Supreme Court's ruling in NYSRPA v. New York.

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