Californians will soon have a chance to sue the gun industry
One of the strangest laws ever passed in California went into effect Jan. 1, giving residents and visitors to the state equal power to threaten the gun industry that Texans now wield over abortion providers.
Even supporters of the law say that’s not an entirely good thing.
SB 1327 authorizes anyone other than a state or local government official to sue anyone who violates the state’s laws against the manufacture, distribution or sale of assault weapons, ghost guns and other prohibited firearms. Lawsuits could also be brought against gun dealers who violate state statutes against the sale or transfer of guns (other than hunting rifles) to anyone under the age of 21.
Proponents say this “private right of action” will make the state’s strict gun control measures more effective by recruiting an army of grassroots enforcers. And by preventing state and local governments from filing lawsuits under SB 1327, they hope to make challenging the law more difficult in court.
However, the law also exists to make a point.
Gov. Gavin Newsom called for the measure in response to Texas SB 8, which authorizes “any person” to sue those who perform or knowingly assist in having an abortion in the state after the fetus shows signs of cardiac activity. When the Supreme Court refused to overturn SB 8, Newsom (who slammed it) urged California to use it as a model for a novel approach to gun control.
Some gun rights advocates have called California’s law “performative legislation,” but Craig Peters, a partner at Altair Law in San Francisco and former president of the Consumer Attorneys of California, said SB 1327 “shows the absurdity” of the Texas approach on the bad precedent it set. With the new law, California is showing the rest of the country – and the Supreme Court – how the controversial methods in SB 8 can be applied to other rights.
SB 1327 already achieves some of the legal points desired by its supporters.
On December 19, US District Judge Roger Benitez in San Diego struck out a portion of SB 1327 on constitutional grounds: the “shift of fees” provision that would have charged gun industry litigants with all or a portion of the court costs of any lawsuit against state gun controls, even if they prevailed in court. The attorney general’s office had refused to defend her, arguing that the Texas fee-shift provision on which it was based was unconstitutional.
After Benitez announced his verdict, Newsom issued a statement saying the judge had “confirmed” that Texas law was also unconstitutional.
The remainder of SB 1327 remains in effect, including the right of private prosecution. Officials from the National Shooting Sports Foundation and the California Rifle and Pistol Assn. said they would wait and see how the law would be applied and have no plans to pre-emptively challenge it.
Here’s an overview of how SB 1327 is expected to work, at least until the courts change the legal landscape.
Who can be sued?
The answer depends on what violation of state law is involved.
Lawsuits may be brought against anyone in California who knowingly manufactures, distributes, transports, imports, offers, sells, or even rents out an assault rifle, .50 caliber Browning machine gun, or an unserialized firearm. Anyone who knowingly builds an assault weapon for a California customer, sells it to someone in the state, or ships it to a buyer here could be sued.
Californians who buy assault weapons cannot be sued under the new law. But if you buy a ghost gun kit — or, more specifically, parts from precursor firearms that aren’t federally regulated — you could be held liable.
Individuals who knowingly engage in conduct that helps someone break those restrictions could also be sued, even if they were unaware that the person they were helping was breaking the law, SB 1327 says Likewise, anyone who sells, offers or transfers unregulated precursor weapon parts could be sued.
In cases involving the sale of firearms in California to buyers under the age of 21, lawsuits could only be brought against the licensed gun dealers involved.
Larry Keane, a spokesman for the National Shooting Sports Foundation, emphasized that SB 1327 claims are limited to conduct that is illegal in California. His group would object “if anyone attempted to bring a claim against individuals outside of California for lawful conduct outside of California,” he said.
For example, imagine an AR-15 that’s legally manufactured in Connecticut, legally shipped to a distributor in Louisiana and a retailer in Nevada, and then legally sold to someone in that state, Keane said. If the gun somehow got into California and was misused, he said, SB 1327 would not allow you to sue the out-of-state manufacturer, distributor, or retailer who has complied with your state and federal laws; Instead, you could only sue the person(s) who violated California law.
What can cause a lawsuit?
This is where it gets really interesting. By law, any “act or omission” in violation of the strict provisions of SB 1327 constitutes an infringement “to all residents and visitors of this state.”
In other words, you can sue even though you have not been directly harmed. In fact, you can sue even if no one is harmed physically or financially — it’s enough just to show that someone violated the law’s gun controls, such as knowingly selling an assault weapon to someone in California or buying a ghost gun within the state borders.
You also do not have to have a personal connection to the violation; You just have to be able to prove that it happened. For example, you could learn of an apparently illegal sale of an assault weapon to a California buyer by reading a newspaper article about a shooting and then using court documents and other public records to try to make your case against the seller.
Keane said it was “still an open question” whether “anyone with no injuries would be eligible to make a claim as a private individual.” Peters agreed that the battle over this issue is still to come and will likely reach the Supreme Court.
Until then, however, SB 1327 allows almost anyone to bring an action without having to prove that they personally suffered harm.
What are the potential damages you could collect?
If the lawsuit is successful, the law provides that the defendant must pay the plaintiff at least $10,000 per weapon or firearm part that violated SB 1327, as well as pay the plaintiff’s attorneys’ fees and court costs.
Claims must be made within four years of the unlawful act. And while any number of people could sue someone for the same violation, only one plaintiff can claim damages for it.
You can bring an SB 1327 complaint in your home county, the county where a “substantial part” of the violation(s) occurred, the county where the defendant lives, or, if it’s a business where whose headquarters are located.
What protections does the law provide?
Under SB 1327, defendants accused of assisting someone to break the law can argue that “after conducting a reasonable investigation, they reasonably believed” that the person they assisted acted lawfully .
Otherwise, the law offers a long list of objections that cannot be raised, beginning with ignorance or understanding of the law. Nor can anyone escape liability by believing that the law is unconstitutional. Also off the table: the argument that the firearm in question was not, or should not be, used unlawfully.
Finally, the defendants cannot seek to escape liability by alleging that the action violates the rights of another person under the Second Amendment unless the Supreme Court allows them to do so. And even then, the law said, they would have to show that the relief sought by the lawsuit would violate a second amendment right “clearly established” by Supreme Court decisions.
What kind of suits are we likely to see?
Peters said it was not clear at this point how the law would be applied. “We still have a lot to figure out how to make this law work” to make communities safer, he said, adding, “There’s probably a lot more unknowns than known.”
If he had to guess, he said, the first targets of SB 1327 lawsuits will likely be the companies that make and sell ghost gun kits in California. A number of lawsuits have already been filed against these defendants by people shot by someone with a ghost gun, Peters said, and these plaintiffs could add claims based on SB 1327 to their cases.
But such a claim could also be made in a stand-alone lawsuit by someone who learned of an illegal sale of ghost guns in California through a news report. (Firearms in California are required to have serial numbers, which kits lack; manufacturers and sellers argue that they make and sell kits, not firearms.) According to Peters, it’s easier to bring a case when all you need to show is that a violates the law not that you have been personally harmed in any way.
Another question for the new law is whether the gun controls it aims to enforce will stand up to judicial scrutiny.
The Supreme Court’s decision in the New York State Rifle & Pistol Assn. vs. Bruen this year appeared to render many state and local efforts to limit guns unconstitutional. Not surprisingly, gun rights advocates are challenging state bans on assault weapons and firearms sales to persons under the age of 21, among other state gun controls.
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