California’s attempt to evade judicial review of its gun laws has drawn a fresh legal challenge.
A coalition of gun-rights groups filed a new suit in federal court on Monday to block Section 1021.11 of California’s recently passed Senate Bill 1327. The new law, set to take effect at the beginning of next year, would shift the burden of paying legal fees to gun-rights litigants challenging the state’s laws, even if they’re successful in court.
“In its effort to silence any opposition to unconstitutional gun control laws, the California Legislature adopted this new statute which details when and under what circumstances attorney’s fees may be awarded in cases challenging those gun laws,” Alan Gottlieb, Second Amendment Foundation (SAF) founder, said in a statement. “Essentially, this new law is designed to suppress any defense of the Second Amendment in court by imposing standards that violate the First Amendment. The law upends Congress’s regulation of fee awards by, among other things, purporting to change who may be considered a ‘prevailing’ party entitled to fees.”
If successful, the suit would strike a major blow against the Golden State’s restrictive gun laws. If unsuccessful, however, the law could have a significant chilling effect on the prospect of future challenges to the state with the strictest gun-control laws in the country.
The new suit marks the second time gun-rights advocates have attempted to halt California’s fee-shifting scheme. A previous attempt–which came in the form of a motion in a separate suit against the state’s ban on 18-to-20-year-olds buying semi-automatic rifles–was dismissed when that case was remanded from the appellate to the district court. Section 1021.11’s fee-shifting provision stipulates that a plaintiff challenging a state or local firearm regulation can never be considered a “prevailing party” to be awarded legal fees, regardless of a case’s outcome. That makes it likely that a gun rights plaintiff will be responsible for paying fees to the government even if they’re successful in striking down a law.
“[The Section] says government defendants in a firearms case will be treated as a ‘prevailing party’ if the court either ‘[d]ismisses any claim or cause of action’ in the case, ‘regardless of the reason for the dismissal,’ or ‘[e]nters judgment in favor of the [government] party’ ‘on any claim or cause of action,'” the complaint reads. “In simple terms, then, SB 1327 would enable government defendants to recover fees if a firearms plaintiff loses on any claim in the case, while the plaintiff can only avoid liability for fees if it prevails on every claim in the case.”
SB 1327 was signed into law by California Governor Gavin Newsom (D.) earlier this July. The bill, which the state adopted in response to Texas’s abortion bounty law, allows private citizens to sue firearms dealers for selling what the state deems are “assault weapons” and “ghost guns.” California modeled the fee-shifting provision at issue in Monday’s suit on a provision in the Texas law. The plaintiffs called the copycat lawmaking “illegitimate.”
“California adopted this fee-shifting scheme as a response to – and apparently in retaliation for – a similar fee-shifting scheme that Texas enacted in connection with abortion regulations,” the suit reads. “Punishing Second Amendment litigants in retaliation against Texas for enacting its own abortion restrictions in SB 8 is plainly illegitimate.”
“Simply put, the new law is unconstitutional, and it should not be allowed to stand,” Gottlieb said.
California Attorney General Rob Bonta (D.) told The Reload his office was “reviewing the complaint” and that they “will respond in court.”
The Firearms Policy Coalition, Calguns Foundation, and several individual and business plaintiffs joined SAF in filing the complaint. The groups argue that Section 1021.11 contradicts federal law governing civil suit fee awards in violation of the federal constitution’s Supremacy Clause. The groups also argue that the fee-shifting scheme is an attempt to restrict civil rights lawsuits and, thus, an unconstitutional violation of the First Amendment.
The groups asked the court to block the law before it takes effect next year.
did not respond to a request for comment.
UPDATE 9-28-2022 3:49 PM EASTERN: This piece has been updated to include comments from Attorney General Bonta’s office.