One Judge Tries to Negate All Gun Safety Laws

The Fresno Bee reported that ammunition sales at some Fresno gun stores increased from Jan. 30 through Feb. 6.¹ These dates coincide with federal Judge Roger Benitez halting required background checks for the purchase of ammunition.

People who were previously unable to purchase ammo, due to background checks, were able to buy unlimited quantities of ammo. Some gun dealers said ammo sales nearly doubled during this window.

On Feb. 5, the Ninth Circuit Appeals Court stayed Judge Benitez’s order. Ammo sales fell on Feb. 6, as background checks were reinstated and blocked some people from purchasing ammo.

“Why and how did this occur?” The answer is twofold: “elections have consequences” and the legal practice of “judge shopping.” One of the long-term consequences of presidential elections is lifetime federal judicial appointments. Long after the president that appointed a federal judge is gone, the judge remains.

In 2004, President George W. Bush nominated San Diego–based Benitez for a lifetime appointment to the U.S. District Court of the Southern District of California. Although a substantial majority of the American Bar Association Standing Committee on the Federal Judiciary (which evaluates appointments) rated Benitez “Not Qualified,” he was nevertheless confirmed on a 98-1 Senate vote.

Judge Benitez switched to semi-retired senior status in 2017 with a reduced caseload. Since then, he has been responsible for most of the judicial cases trying to nullify California’s long-standing gun safety regulations.²

What Are California Gun Safety Laws?

As a result of gun safety laws enacted since 1989, California is now one of the safest states in the United States in regard to gun-related injuries and death.³ Currently, California is No. 7 in the nation in terms of death rate by firearms—gun suicide, gun homicide and mass shootings.³

It was not always so. In the late 1980s and early 1990s, California had the highest firearm death rate in the United States. Over the following 30 years, California instituted a variety of sensible gun safety laws. Those laws significantly decreased all gun-related deaths.³ Moreover, fewer than 50% of gun-related crimes committed in California involve a gun purchased in California.

Some of California’s gun safety laws are as follows: 

• In 1989, Republican Gov. George Deukmejian signed the Assault Weapons Ban making California the first state in the country to prohibit the possession, distribution, sales and manufacturing of assault weapons.
• In 1991, a universal background checks law was enacted for all gun purchases and transfers, including private transfers and sales at gun shows.
• In 2016, the people passed a gun control initiative, Prop 63, titled Firearms and Ammunition Sales. The legislature also passed SB 1235 that year, which expanded on Prop 63. The bill and Prop 63 included further universal background checks on guns and ammo; a prohibition on the possession of high-capacity ammunition magazines above 10 rounds; fines for failing to report when guns are stolen or lost; and procedures for enforcing laws prohibiting firearm possession by specified persons (“red flag law”).
• In 2018, California passed an age restrictions law to limit the purchase of handguns to those 21 and older and the purchase of a long gun to those at least 18 years of age.
• AB 1968 was signed into law by Democratic Gov. Jerry Brown in September 2018. It requires mental health reporting to prevent those with serious mental illness from acquiring firearms.
• In 2023, the legislature passed and Democratic Gov. Gavin Newsom signed several other gun safety bills regarding conceal carry laws, the microstamping of semiautomatic pistols, limiting ghost gun production in the state, more training for firearms dealers to prevent illegal sales of guns, and an 11% excise tax on firearms and ammunition to fund public safety programs that decrease gun violence.

Judge Shopping

All the above laws are currently under attack by gun rights advocacy groups that have found a sympathetic ear in Judge Benitez. There is a federal and California state court rule that allows either party in a legal proceeding to request that their lawsuit be transferred to a judge overseeing a similar “related” case or to a judge who has previous experience on the topic.⁴

This allows a party (plaintiff or defendant) to shop for a judge favorable to the party’s position.^2,5 Gun rights advocacy plaintiffs try to get all their cases heard by Judge Benitez.

In 2022, Judge Benitez gained support from the U.S. Supreme Court, which now has three far-right Republican justices appointed by Trump. After 230-plus years of using legal precedent to determine cases, the current Supreme Court began interpreting the Constitution through the lens of “originalism.”

On June 23, 2022, Justice Clarence Thomas wrote the majority opinion in the Bruen decision. Bruen refers to New York’s concealed gun safety laws. Thomas wrote that for any regulation regarding firearms, “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”⁶

The Constitution is no longer to be considered a living document that can change with the moral, political and cultural climate as a result of changing knowledge, technology and values. Originalism commands adherence to history.

Justice Thomas and the other Republican Supreme Court justices appear to want the constitutionality of all gun safety laws to be evaluated on whether similar laws existed when the Second Amendment was ratified in 1791. There were no background checks in 1791, no limits on purchases and no red flag laws. Judge Benitez has adopted that judicial philosophy in his interpretation of the law in the cases brought before him.

Post-Bruen Rulings on Gun Safety Laws

As a result of Justice Thomas’s opinion in Bruen, all nationwide gun safety laws are now under attack by Second Amendment gun rights advocates who believe that any public safety gun regulation infringes on their right to own guns. Since the Bruen decision, many California gun safety laws are being subjected to review before Judge Benitez.

The California Rifle & Pistol Association (CRPA) is a 501(c)(4) gun rights advocacy group and the official state association of the National Rifle Association (NRA) in California. CRPA President Chuck Michel is also a founding and senior partner at Michel & Associates, P.C.,² a law firm currently challenging California’s gun safety laws.

Via Michel & Associates, the CRPA and the NRA have been able to get all their lawsuits assigned to Judge Benitez, as cases “related” to earlier gun rulings—even though Judge Benitez has a reduced caseload due to his senior status.

In 2017, a year after California voters passed Prop 63, Judge Benitez ruled the ban on high-capacity magazines unconstitutional. An en banc panel of the Ninth U.S. District Court reversed Benitez’s opinion. Since 2017, Benitez has ruled against two additional gun safety laws: background checks on ammunition and the three-decade-old ban on assault weapons.

All the cases Judge Benitez has ruled on regarding gun safety laws have followed the same course:

• He rules a gun safety law unconstitutional and that it violates the constitutional right to bear arms.
• The Attorney General appeals to a three-judge panel of the Ninth Circuit Court of Appeals, which rules in favor of the State.
• The case returns to Judge Benitez.
• The plaintiffs appeal to the en banc panel of 11 randomly selected judges from the Ninth Circuit Court of Appeals, and the laws are ruled constitutional.
• Since Justice Thomas’s opinion on Bruen, all the cases have again been referred back to Judge Benitez, who again finds the laws unconstitutional and the process repeats itself.

Background Checks to Buy Ammo

In terms of the law requiring background checks to buy ammo, on June 24, 2022, the case was sent back to Judge Benitez to consider the impact of the Bruen decision at the Supreme Court. On Jan. 30, 2024, Judge Benitez issued an order granting a permanent injunction to stop the enforcement of the ammunition law that he deemed unconstitutional.

The State of California (defendants) asked for a stay on the permanent injunction. Judge Benitez refused to grant a stay on Jan. 31, 2024, which meant background checks were not required to buy ammo. The defendants appealed.

While waiting for the appeal decision (Jan. 31–Feb. 5, 2024), background checks to purchase ammunition were halted. During that time, ammo sales increased. On Feb. 5, a three-judge administrative panel of the Ninth Circuit Court of Appeals, on a 2-1 vote, granted a stay on Judge Benitez’s permanent injunction and starting Feb. 6, background checks were again required to purchase ammo.

So far, Judge Benitez has ruled all gun safety laws are unconstitutional and violate the constitutional rights of citizens to own guns. Even so, thanks to the Ninth Circuit Court of Appeals, as of February 2024, all the gun safety laws remain in place. That includes the ban on assault rifles, the ban on high-capacity magazines and background checks for guns and ammo. It is expected that the cases will ultimately go to the Supreme Court.

References

1. www.fresnobee.com/news/local/article284974442.html Feb. 5, 2024, article in the Fresno Bee about ammo sales after the background check was removed.
2. www.latimes.com/california/story/2021-08-08/san-diego-judge-upends-california-gun-laws-with-ar-15-views
3. www.gov.ca.gov/2023/08/29/fact-sheet-new-findings-continue-to-show-californias-gun-safety-laws-work/#:~:text= 
4. www.courts.ca.gov/documents/title_3.pdf Rule 3.300. Related cases.
5. www.thetrace.org/newsletter/roger-benitez-gun-lawsuits-san-diego/ 
6. www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf. 
7. www.sfchronicle.com/news/article/Feinstein-s-support-of-Judge-Benitez-way-back-16241830.php
8. https://everytownresearch.org/rankings/state/california/ List of gun laws in California as of 2024.
9. https://en.wikipedia.org/wiki/2016_California_Proposition_63
10. https://news.bloomberglaw.com/litigation/california-gun-magazine-law-partially-unblocked-by-ninth-circuit
11. https://michellawyers.com/duncan-v-becerra/
12. https://ballotpedia.org/California_Rifle_and_Pistol_Association#:~:text