Tuesday, March 05, 2024

CA: Ninth Circuit, Benitez, Bruen, Ban on Billies - Court Corrects an Expert

Early 20th Century police batons in Edingburg Police Centre Museum by Kim Traynor CC BY-SA 3.0, cropped and scaled by Dean Weingarten

In September of 2019, four and a half years ago, Russell Fouts and Tan Miguel Tolentino filed a lawsuit challenging California's complete ban on the "manufacture, import into the state, keep for sale, or sale, loan, and possession of billies". "Billies" are not explicitly defined, but are, essentially, any short club, and are considered to be synonymous with batons.

On September 22, 2021, two years later, Judge Roger Benitez found the ban to meet the requirements of the law as determined by the Ninth Circuit precedent. This was nine months before the Bruen decision clarified the standards to be used in determining the bounds of the Second Amendment. Bruen showed the Ninth Circuit precedent, as applied to the Second Amendment, was in error.

The case was appealed to the Ninth Circuit. After the Supreme Court decision in Bruen, the Ninth Circuit vacated the September 22, 2021 judgement and remanded the case back to Judge Roger Benitez at the district court. After re-hearing the case, with the previous precedent nullified, Judge Benitez issued summary judgement for the Plaintiffs, holding billies were clearly arms protected by the Second Amendment. The judgement was issued on February 23, 2024.  This judgement nullified the California ban on billies.  A similar ban on billies was nullified in Hawaii on May 23, 2023.  AmmoLand's Editor in Chief, F Rhiehl ,has published an article about the the ruling.

In the quotes from the decision shown below, numbers which seen to be inserted randomly, refer to footnotes which are not included here.

In the decision Judge Roger Benitez, in careful, lawyerly language, reprimands the State of California and Professor Spitzer, the state expert, for misstating the findings of historical research. From the decision, page 17:

Only seven states in the 1800s had billy restrictions. So, why does the State and its expert witness say fourteen states had “anti-billy club laws” in the 1800s? 46 The sentence is inaccurate. The assertion is misleading. And it is important. By giving the impression that fourteen states had adopted anti-billy laws in the 1800s, the State implies that state laws were numerous enough to represent a historical tradition. A different story is told by the State’s own list of laws. A different story is told by the expert’s own data. The problem with the “fourteen states” claim is that there were actually half that. Where does one find these other so -called state laws? It is a bit of rhetorical legerdemain. Beyond the seven already discussed, there were no other state-wide anti-billy laws in the 1800s. However, there were municipal ordinances in mostly very small cities. Consequently, when the State’s expert says, “[f]ourteen states enacted such [billy] laws in the 1800s,”47 it is more accurate to say that there were seven state laws and seven city ordinances.

"The sentence is inaccurate. The assertion is misleading. And it is important.

Issued from a judge to California's attorneys and Professor Spitzer,  the statement is a severe slap-down. Judges do not like to be lied to. Expert witnesses have witness immunity from civil lawsuit. Perjury charges are are seldom issued in an area where the expert may claim a difference of interpretation.  It is unusual for a judge to notice and comment on such error. However, this is Judge Benitez. He has become expert on the history of Second Amendment related statutes from the time because of the numerous cases he has presided over.  He does his homework.

Another slap-down happens on page 19. Professor Spitzer makes another claim which Judge Benitez corrects. From page 19:

Here is another example of the State’s departure from precision in its briefing. The State writes: Defendant identified several state laws, in addition to the municipal regulations that banned possession of billy clubs.See Dkt. 60-1 at [74] (1866 New York law), [136] (1881 llinois law), [160] (1885 New York law); see also Dkt. 60-2 at [230] (1911 New York law), [233] (1913 New York law), [234] (1915 North Dakota law), [236, 237] (1917 California laws).53The parties may read this discussion as overly-pedantic. But for this case, it is important to know if there are historical state laws that banned possession of a billy club like California Penal Code § 22210 bans possession of a billy club. Unfortunately, the examples cited are not simple possession bans. The State cites the 1866 New York law54[74], but that statute did not prohibit simple possession. The New York law prohibited concealing or furtively possessing a billy while using, attempting to use, or intending to use a billy against another person. Next, the State cites an 1881 Illinois law55 [136], but that statute did not mention a billy. Three more iterations of New York’s law (1885 [160], 1911 [230], 1913 [233]) are listed next,56 but like the predecessor statute, these versions still regulated using and concealing as opposed to simple possession of a billy. Finishing up the list of examples given by the State, is a 1915 North Dakota law57 [234]. However, the North Dakota law applied to concealing, rather than simple possession, and expressly permitted possession “ to effect a lawful and legitimate purpose.”58 To sum up, based on the State’s own excerpts of historical statutes (provided by State expert Professor Spitzer and attached to his declaration), of the seven state laws the State claims “banned the possession of billy clubs,” only one did—California’s own 1917 statute.59

 "To sum up, based on the State’s own excerpts of historical statutes (provided by State expert Professor Spitzer and attached to his declaration), of the seven state laws the State claims “banned the possession of billy clubs,” only one did—California’s own 1917 statute."

The rebuke has to sting. It is not surprising Judge Benitez arrives at a clear conclusion, granting summary judgment to the plaintiffs. From page 24:


The Second Amendment protects a citizen’s right to defend one’s self with dangerous and lethal firearms. But not everybody wants to carry a firearm for self-defense. Some prefer less-lethal weapons. A billy is a less-lethal weapon that may be used for self-defense. It is a simple weapon that most anybody between the ages of eight and eighty can fashion from a wooden stick, or a clothes pole, or a dowel rod. One can easily imagine countless citizens carrying these weapons on daily walks and hikes to defend themselves against attacks by humans or animals. To give full life to the core right of self-defense, every law-abiding responsible individual citizen has a constitutionally protected right to keep and bear arms like the billy for lawful purposes. In early America and today, the Second Amendment right of self-preservation permits a citizen to “‘repel force by force’ when ‘the intervention of society in his behalf, may be too late to prevent that injury.’”66 The Founders of our country anticipated that as our nation matured circumstances might make the previous recognition of rights undesirable or inadequate. For that event, the Founders provided a built-in vehicle by which the Constitution could be amended, but a single state, no matter how well intended, may not do so, and neither can this court.

Here is the order from the Clerk of Court. It is a summary judgement. It is final unless overturned by an appeals court. From the Clerk of Court:

Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.


Summary judgment is entered for Plaintiffs. 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 California Penal Code § 22210 as it applies to a billy. Case is closed.

The Defendant(s) (generally the State of California) is appealing the case to the Court of Appeals for the Ninth Circuit.

©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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