January 27, 2023

California Gov. Gavin Newsom listens to a reporter's question after visiting a COVID-19 vaccine clinic at the VA Greater Los Angeles Healthcare System to promote vaccinations and booster shots in Los Angeles on Wednesday, Nov. 10, 2021. Boosters have been approved for the Pfizer, Moderna and Johnson & Johnson COVID-19 vaccines. (AP Photo/Damian Dovarganes)

The sharpest thorn in the side of California’s gun-grabbers has done it again. Federal Judge Roger Benitez — who has already issued rulings, currently in the appellate and post-appellate pipeline, tossing California’s “assault weapon” and standard capacity magazine bans — ruled Friday that he would be enjoining a California law designed to discourage challenges to California’s gun control laws.

The newly-minted California law makes litigants and their attorneys liable for the state’s legal fees if they challenge a California gun law and are not 100% successful.

That inverts the usual practice under federal civil rights law, under which a plaintiff is considered the “prevailing party” (and thus eligible for an award of attorneys fees and costs of court) if it prevails on any of its claims challenging the constitutionality of a law.

A plaintiff can also be a “prevailing party” eligible for fees if the state moots the case by changing the challenged law, a la New York’s last-minute dodge in the first New York Pistol & Rifle Association case.

While there are situations (e.g., copyright infringement lawsuits) where an unsuccessful plaintiff can be held liable for the defendant’s attorneys fees, a party’s attorneys are typically personally liable for an opposing party’s fees only if they sign onto utterly frivolous filings (i.e., materials that violate Federal Rule of Civil Procedure 11), disobey a court order, unreasonably and vexaciously complicate a case, etc.

The California law at issue was passed earlier this year in a fit of pique after the Supreme Court issued the Bruen and Dobbs decisions, and refused to enjoin a Texas law that authorized private actions to enforce the state’s “fetal heartbeat” law. California’s attorney general asserted that while the state believed the Texas law was unconstitutional, California would play “tit for tat” by passing a similar law designed to make it prohibitively expensive to challenge any California gun control law.

Understand that fighting a state like California in federal court is an inherently very expensive proposition, beyond the budget of all but the most well-heeled individuals. This is why organizations like the Firearms Policy Coalition, Second Amendment Foundation, Gun Owners of America, and others are so essential to protecting our Second Amendment rights.

If you file a challenge to a California gun law, the odds are strong that you will draw a judge who will be, shall we say, not as disposed to Second Amendment rights as Judge Benitez. Litigating such a test case will thus likely be a very long and expensive process designed to eventually get the expected adverse decision from the California district court and the Ninth Circuit in front of the Supreme Court.

But under the new California law, if the district court or Ninth Circuit rules against you on even a subsidiary point of your lawsuit, you and your attorney would be immediately liable for what would probably be hundreds of thousands of dollars…or even more. That would make challenging even obviously unconstitutional California gun control laws so economically risky that few if any victims affected by the law could do so. And very few attorneys would be willing to represent them, given the economic risks.

That, of course, was the state’s reason for passing it.

Fortunately, the Firearms Policy Coalition stepped up to challenge this law. And in a master stroke of lawyering, they were able to do so in a way that made it very, very likely that the case would be assigned to Judge Benitez. The FPC moved for an immediate injunction against the law.

California reacted predictably. First, it claimed the state would not enforce the law until its constitutionality had been decided, and therefore there was no need for an injunction. Judge Benitez rejected that almost immediately, noting that California has already used the threat of liability under the new law as leverage in other cases. Judge Benitez thus not only set the matter for an evidentiary hearing on the request for a preliminary injunction, but also consolidated that with a trial on the merits. This isn’t unheard of in a case like this, where the facts are not in dispute and the only issues are legal ones.

After that ruling, the California attorney general – who was in a legally untenable position, given that he had already admitted that he believed the California law was unconstitutional – bowed out of the case, requiring the governor to hire outside attorneys to take over the defense of the law.

The hearing and trial were held yesterday. The transcript isn’t yet available, nor is there anything on the court’s docket at this time, but according to the press account of the hearing (h/t to Cody Wisniewski of the FPC for sending it to me last night) Judge Benitez ruled from the bench that he would be enjoining the law.

Judge Benitez ripped the state for playing games with people’s constitutional rights, saying, “I can’t think of anything more tyrannical.” He similarly castigated California’s claims that it was somehow justified in enacting the law response to the Texas abortion law, stating “[w]e’re not in a kindergarten sandbox. It’s not about, ‘Mommy he did this to me so I should be able to do it to him.’”

He also tartly asked the state’s attorney if he would be willing to pay the plaintiff’s attorneys’ fees. When counsel claimed not to understand the question, Judge Benitez noted he was wise not to answer, because no attorney would want to risk being personally liable for paying the other side’s attorneys fees if he loses.

As is required by federal law, Judge Benitez will have to issue a written opinion making various findings and formally explaining his reasoning. I expect it will be out within the next month, and will likely be blisteringly critical of the state of California.

For now, let’s all raise a glass to Judge Roger Benitez for once again upholding the rule of law.

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