American and California Flags outside of a government building Downtown San Diego on a sunny morning.
The California flag flies alongside the U.S. flag / Photo by Craig Marolf on Unsplash

Analysis: Why California’s AG Can’t Defend the State’s Gun Litigation Law [Member Exclusive]

The problem with using legislation to fight the culture war is that you might tie yourself in knots trying to own the other side.

On Thursday, California Attorney General Rob Bonta (D.) filed a supplemental brief in a lawsuit challenging the state’s fee-shifting provision for gun litigation. The purpose of the brief? To announce that he could no longer defend the law’s legality in good faith and that he was withdrawing from the case.

“At this time, the Attorney General is not in a position to defend the merits of a provision indistinguishable in relevant part from a provision that he has opined is unconstitutional,” the brief reads.

Before the passage of California’s copycat bill, Bonta had signed on to an amicus brief in the lawsuit challenging Texas’s bounty-style abortion ban, and he made public statements that referred to the law as “blatantly unconstitutional” for its attempt to evade federal judicial review. Now, tasked with defending the legal merits of a nearly identical gun law, the cognitive dissonance required proved too much.

As a result, the California Department of Justice will no longer defend the state’s copycat fee-shifting law. Instead, as indicated in the supplemental brief, California Governor Gavin Newsom (D.) has elected to intervene with the help of a private law firm to continue fighting for the law.

“While the Attorney General has determined that he is constrained in his defense of section 1021.11 by prior positions he expressed in litigating against Texas’s S.B. 8, the Governor is not, and the Governor’s defense of the statute would thus allow for full judicial review,” Newsom’s attorneys wrote in his motion to intervene.

While some could interpret Bonta’s bowing out as a principled stand against arguing on behalf of a law he knows is wrong, it’s more likely that he did so because he ran out of options. For months, AG Bonta’s office attempted to shield California’s copycat provision from judicial review by voluntarily declining to enforce it unless the Texas version was upheld in court. By refusing to enforce it, he argued, gun-rights plaintiffs did not have standing to challenge California’s law in court.

However, that tactic was rebuked by U.S. District Judge Roger Benitez earlier this month. Benitez, a judge known for issuing several rulings against the state’s gun laws in recent years, refused to deny standing to a coalition of gun rights groups in this latest case. A trial on the law’s merits is set to occur next week. With procedural maneuvering no longer an option, Bonta’s only remaining choice was to either step away or make contradictory legal arguments when defending against an injunction.

Furthermore, gun-rights plaintiffs used Bonta’s past criticisms of the legality of Texas’s law to discredit his legal defense of California’s copycat law. The California Rifle and Pistol Association (CRPA) took the rare step of pursuing sanctions against Bonta before he agreed to bow out.

“CRPA served a Rule 11 Sanction Motion yesterday on the state attorneys stating that the DOJ knew at the time they filed their opposition brief that the legal arguments had no merit and it looks like that may have been the catalyst for this sudden change of direction,” the group said in a news release responding to the AG’s announcement.

Rule 11 sanctions refer to the Federal Rules of Civil Procedure, which govern the conduct of attorneys in civil suits in U.S. District Courts. It requires attorneys to certify they are offering pleadings they believe are factual. If a judge determines an attorney violated Rule 11, they can issue severe sanctions against them.

Had Bonta stayed on the case to defend SB 1327’s fee-shifting statute on the merits, it’s possible that Judge Benitez would have done exactly that.

The legal mess is the inevitable result of the tit-for-tat strategy undertaken by lawmakers in California and Texas. The prioritization of culture war victories over prudent lawmaking has culminated in a legal case over a law both sides believe to be unconstitutional. The gamesmanship will likely continue until the federal courts pump the breaks on measures that attempt to chill judicial review.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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