Thursday, September 15, 2022

Judge Benitez Sets Time Limits for Breifs on California Assault Weapon Ban

Senior Judge Rodger T. Benitez

On August 15, 2019, the San Diego Gun Owners Political Action Committee, James Miller, and others filed a lawsuit against then California Attorney General Beccera, challenging the constitutionality of the California "assault weapon" ban.  As the case evolved, it became known as Miller v Bona.

Here is a summation from the complaint filed on August 15, 2019:

1. This is a facial and as applied constitutional challenge to California Penal Code §§ 30515(a)(2) and 30515(a)(5), California Code of Regulations § 5471, subdivs. (b), (n), and (p), and Defendants policies, practices, customs, and enforcement of said law, which define and prohibit certain firearms as “assault weapons” solely because they feature “large-capacity” magazines (capable of holding more than ten rounds of ammunition) as defined by Pen. Code § 16740 and regulated under the now-enjoined Penal Code § 32310. Duncan v. Becerra,Case No. 3:17-cv-1017-BEN-JLB (ECF No. 87). Subdivisions (a)(2) and (a)(5) of Penal Code § 30515 violate the Second Amendment to the United States Constitution by prohibiting law-abiding citizens, including these individual plaintiffs, from obtaining, acquiring, possessing, manufacturing or transferring firearms in common use for lawful purposes such as self-defense inside and outside the home,competition, sport, and hunting.

The state of California fought the lawsuit with all the tools at its disposal. Numerous motions were filed. The historical evidence and arguments presented by both sides were extensive. There were delays because of Covid 19.  In the end, Judge Benitez, citing the 1939 Miller case, Heller, and McDonald, as well as Caetano, decided in favor the plaintiffs. 

Judge Benitez ruled AR15 type rifles, and others defined as "assault weapons" were both common and well suited for militia use and use by individuals for defense of self and others, as well as for other legal purposes. Therefore, the California ban was unconstitutional.

Judgement was granted  in favor of Plaintiffs  June 4, 2021

1. Defendant Attorney General Rob Bonta, and his officers,  agents, servants, employees, and attorneys, and those persons in active concert or  participation with him, and those duly sworn state peace officers and federal law  enforcement officers who gain knowledge of this injunction order or know of the existence  of this injunction order, are enjoined from implementing or enforcing the California Penal  Code §§ 30515(a)(1) through (8) (defining an “assault weapon” by prohibited features),  30800 (deeming those “assault weapons” a public nuisance),30915 (regulating those  “assault weapons” obtained by bequest or inheritance), 30925 (restricting importation of  those “assault weapons” by new residents), 30945 (restricting use of those registered  “assault weapons”), and 30950 (prohibiting possession of those “assault weapons” by minors)  and the penalty provisions §§ 30600, 30605 and 30800as applied to “assault weapons” defined  in Code §§ 30515(a)(1) through (8).

2.Defendant Attorney General Rob Bonta shall provide forthwith, by personal service or  otherwise, actual notice of this order to all law enforcement personnel who are responsible  for implementing or enforcing the enjoined statute. Within 10 days, the government shall  file a declaration establishing proof of such notice. Alternatively, the parties may file  a stipulation.

IT IS SO ORDERED.Dated: June 4, 2021

On June 21, 2021, a three judge panel of the Ninth Circuit stayed Judge Benitez' order until the outcome of the case of Rupp v Bonta was resolved.

On June 28, 2022, following the Supreme Court decision on NYSR&PA v Bruen, the Supreme Court granted cert to Rupp v Bonta, vacated the previous Ninth Circuit decision, and remanded the case back to the Ninth;"Circuit to be reheard. On August 1, 2022, the Ninth Circuit sent the Miller v Bonta case back to Judge Benitez to be re-heard under the specific guidance issued in the Bruen decision. 

The plaintiffs filed a clear and simple brief. They claimed the evidence had already been heard, Bruen only clarified what was already decided in Heller, and judgement should be swift, and in their favor.

From Miller (Plaintiffs') brief: 

Plaintiffs James Miller, et al. (“Plaintiffs”) hereby submit this brief addressing New York State Rifle & Pistol Ass’n, Inc.v. Bruen, 597 U.S. ___, 142 S.Ct. 2111 (Jun. 23, 2022)(“Bruen”)pursuant to this Court’s Order of August 8, 2022 [ECF 125].

Bruen does not change the outcome of this case. Instead, Bruen vindicates this Court’s previous application of the “Heller test” and establishes that Plaintiffs must prevail in their challenge to the State’s Assault Weapons Control Act(“AWCA”).

In Bruen, the Court reasserted principles it clearly applied in Heller.There can now be no dispute over the proper approach to evaluating Second Amendment claims. First, the Court must determine whether “the Second Amendment’s plain text covers an individual’s conduct” that is being restricted by a challenged law or policy. Bruen, 142 S. Ct. at 2129–30. Second, if the answer is yes,the conduct is presumptively protected, and the burden then falls to the government to justify the challenged restriction by “demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”Id. at 2130. If the government cannot make this demonstration, the restriction is unconstitutional, full stop.No interest-balancing or levels-of-scrutiny analysis can or should be conducted. Id. at 2127.

The California government argued the Bruen decision changed everything. Everything had to start all over. They would need extensive time to hire historians to do extensive research which could not be rushed. They needed at least nine months.

From the California Government (defendant's) brief: 

Plaintiffs may contend here that further proceedings to apply Bruen are unnecessary because the Court can summarily rule in favor of Plaintiffs under the Heller common-use analysis set forth in the Court’s original ruling.See Miller, 542 F. Supp. 3d at 1020–23. But this Court’s application of “the Heller test” was based on a view that Heller and United States v. Miller, 307 U.S. 174 (1939), extended Second Amendment protection to “weapons that may also be useful in warfare.” Miller, 542 F. Supp. 3d at 1020 (citing Miller, 307 U.S. at 178) (emphasis added). That is not the same as the text-and-history standard required by Bruen. Bruen suggests that this view is no longer correct, as it repeatedly confirms that self-defense (and not militia service) is the “central component” of the right protected by the Second Amendment. Bruen, 142 S. Ct. at 2133 (quoting McDonald v. City of Chicago, 561 U.S. 742, 767(2010)); see also 2125 (noting that Heller and McDonald“held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense”); 2128 (same).15

The California government said they did not seek to delay the proceedings, and then  requested to delay the proceedings for a minimum of seven months, until March 3, 2023.

Judge Benitez did not grant them seven months. He allowed 45 days for new briefs to be submitted (until mid October). Then another 15 days for briefs to be submitted in response to those briefs (end of October, 2022).  From the court record

Minute Entry for proceedings held before Judge Roger T. Benitez:Appeal Mandate Hearing held on 8/29/2022. Appeal Mandate ordered filed for USCA Case Number(s): 21-55608. Injunction dissolved. Both parties have 45 days to file simultaneous additional briefs and 15 days thereafter to file responsive briefs in light of Bruen. The Court will then decide whether to schedule any hearings or decide the case on the record.(Court Reporter Tricia Rosate). (Plaintiff Attorney John W. Dillon). (Defendant Attorney John Darrow Echeverria). (no document attached) (gxr) (Entered: 08/30/2022)

As the historical arguments were already argued in the original case, something truely extraordinary will have to be uncovered to have Judge Benitez change his mind in 60 days.

It is possible Judge Benitez will issue a temporary injunction against enforcement of the ban.

If Judge Benitez issues the same judgement in favor of the plaintiffs as he did on June 4, 2021, expect the case to be immediately appealed to a three judge panel of the Ninth Circuit.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

1 comment:

Anonymous said...

In my opinion this case is exactly what is wrong with our judicial system. Destroying our judicial system is how this Republic will become the democracy the left is so desirous of. The only authority to declare laws unconstitutional is the United States Supreme court. Attorneys make a fortune dragging these cases through the lower court system. when the first motion should be filed with the U. S. supreme court. Read Black's Law, the section describing the authority and duties of lower court judicial officers. Lower courts oath of office requires them to uphold and enforce the laws as written or recuse from the case and let another judicial officer make the ruling. the rulings must comply with the laws passed by the legislature or the congress. Until the legislature or the congress change or repeal those laws. We are a constitutional Republic Not a Democracy. Democracy is not being destroyed it is being created by liberal corrupt judicial officers. Try reading the Pledge if you cant say it aloud. do you read "and to the Republic for which it stands" or to the democracy for which it stand?? We have been A constitutional Republic since the constitution was ratified September 28, 1789 we have never been a democracy and there is a very important difference. A very old Psychological trick, tell a lie often enough and people begin to believe it is the truth. We are Not a Democracy and democracy is not being destroyed it is being created by those that rebel against the Constitutional requirements that make the Republic stronger. Some tings cant be destroyed unless you destroy it bit by bit and that is what the Democraps have been doing for decades. worming their way into our judicial system with liberal judges. Many years ago I stopped hiring attorneys and started representing myself. I just got damn tired of being ripped off by their ignorance. I studied law on the internet for 18 hours a day seven days a week for over three years. A superior court judge insisted I take the California Bar exam he stated in open court you know the law better than I do and all of the attorneys that serve this court. He came to that conclusion after I recited a law verbatim and she disagreed with what I had recited. he caused 32 day delay of hearing and found out my recitation was letter perfect. I was not reading that law from the book. He issued a public letter of apology and posted it on the court's public notice board before that second hearing. I won my case. I have represented myself in five different states and won six out of seven. The only time I lost was in New Mexico. I think there are no valid courts in New Mexico. My appeal was 256 pages with every law printed out in it's entirety and a copy of the voice transcript of the hearing, 24 hours after I filed it was denied they could find no errors for 22 state and federal law violations. I did not get a hearing and they refused to listen to the voice transcript. Oh and that judge was on two years probation from a federal court. I have been working on a case against the Veteran's administration for several years, If I have to file it, it will probably be in the national news.