2018-00246584-CU-MC

Franklin Armory, Inc. vs. State of California

Nature of Proceeding: Hearing on Demurrer to First Amended Complaint

Filed By: Onyeagbako, Maureen C.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the causes of action that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

Defendants State of California (“State”), Xavier Becerra (“Becerra”) and Brent E. Orick Orick”), Acting Chief of the California Department of Justice’s Bureau of Firearms (“BOF”) (collectively “Defendants”) to the first amended complaint (“FAC”) is ruled on as follows.

Overview

This action was commenced by plaintiffs Franklin Armory, Inc. (“FAI”), a firearms manufacturer, and Sacramento Black Rifle, Inc. (“SBR”), a firearms dealership (collectively “Plaintiffs”). Defendants seek to sell and distribute a “Title 1” firearm, “whether or not is deemed an assault weapon”, but that Defendants “have historically refused to review firearms for classification purposes, unless the classification is in relation to a criminal investigation or prosecution.” (FAC, ¶ 71.) With respect to the general public and licensees, Plaintiffs allege that Defendants have “shirked their duties and historically permitted and deferred to California’s 58 counties and 482 municipalities to determine whether a particular firearm is classified as ‘assault weapons.’” (FAC, ¶ 72.) According to Plaintiffs, dealers and manufacturers are left to speculate as to whether “DEFENDANTS, their county, or local municipality will deem any particular firearm an ‘assault weapon’ and subject them to varied and, often ill-informed and conflicting local interpretations, criminal prosecution, civil action, seizure, forfeiture, and/or license revocation.” (FAC, ¶ 73.)

They allege that on two occasions in July 2017 FAI sent an email to the BOF “inquiring about the classification of their initial Title 1 design,” with “Title 1” being described as a firearm designed, developed, and manufactured by FAI which the latter desires to distribute and sell in California. (FAC, ¶¶76-79.)

Plaintiffs allege that “DEFENDANTS did not respond” to either email and that even with a variety of communications with the BOF over the next year, “no classification

was ever provided.” (FAC, ¶ 81.) FAI last sent a letter to Defendants on 10/23/2018 requesting whether the Title I would be classified as an “assault weapon” or whether the Title 1 would be deemed as “assault weapon.” (FAC, ¶ 82.) Plaintiffs allege that “DEFENDANTS did not respond.” (FAC, ¶ 83.) They allege that though Defendants have said a response is forthcoming, they have delayed their response by nearly two years, and that delay constitutes a “denial by delay.” (FAC, ¶ 89.)

The FAC asserts causes of action for: (1) Declaratory and Injunctive Relief, and (2) Equal Protection.

In its Declaratory Relief cause of action, Plaintiffs asks the Court to declare “that it is the duty of the DEFENDANTS, including the STATE wholly occupying the field of regulating commercially manufactured firearms through registration and licensing, and the regulatory bodies charged with administering, enforcing, defining, educating, and publicizing the AWCA to issue those regulations necessary and proper to carry out the purposes and intent of the AWCA, including classifying firearms submitted to them for determining appropriate registration and licensing processes that would apply to the product at issue.” (FAC, ¶ 99.)

In their prayer for relief, Plaintiffs request:

1. A declaration that it is necessary and/or proper for manufacturers licensed by the State of California to be able to determine whether the firearm they are manufacturing, acquiring, or selling is classified as an “assault weapon” in order to determine the necessary and proper licensing and registration process for transferring said firearm and/or limiting the
transfer of said firearms to persons entitled to possess “assault weapons.”

2. A declaration that it is necessary and/or proper for dealers licensed by the State of California to be able to determine whether the firearm they are acquiring or selling is classified as an “assault weapon” in order to determine the necessary and proper licensing and registration process for transferring said firearm and/or limiting the transfer of said firearms to persons entitled to possess “assault weapons.”

3. A declaration that it is necessary and/or proper for the public to be able to determine whether the firearm they possess or wish to sell or acquire is classified as an “assault weapon” in order to determine the necessary and proper licensing and registration process for transferring said firearm and/or limiting the transfer of said firearms to persons entitled to possess “assault weapons.”

4. A declaration that DEFENDANTS have failed to adopt those regulations that may be necessary or proper to carry out the purposes and intent of the Assault Weapons Control Act, as required by the Assault Weapons Control Act.

5. A declaration that power to classify a commercially manufactured firearm for registration or licensing is exclusively left to the State of California and its designees.

6. A declaration that the DEFENDANTS have a duty to administer the Roberti-Roos Assault Weapon Control Act with uniformity and clarity, such that those subject to laws and regulations can determine whether the restrictions within the Roberti-Roos Assault Weapon Control Act apply, which includes guidance on the classification of firearms submitted to DEFENDANTS for classification purposes.

7. For a writ of mandate, writ of prohibition, or such other alterative writ as the Court deems appropriate, directing the DEFENDANTS to issue those rules and regulations that may be necessary or proper to carry out the intent and purpose of the AWCA.

Defendants demur to both cause of action on the grounds that: (1) they are not ripe for judicial review, (2) Plaintiffs lack legal standing, (3) the State is not a proper party, (4) failure to state sufficient facts, and (5) this case is not appropriate for declaratory relief.

Standing

The demurrer for lack of standing is SUSTAINED with leave to amend.

Plaintiffs conclusorily allege that “there is a credible threat that the challenged provision will be invoked against [them].” (FAC, ¶¶ 1-2 (emphasis added).) They further allege that Defendants’ approach has “chilled some manufacturers, dealers, and individuals from even engaging in lawful sale of firearms and firearm acquisitions for fear of prosecution by the agency charge with the duty to not only enforce these laws, but to educate on these laws.” (FAC, ¶ 74.)

Plaintiffs’ allegations are an apparent attempt to satisfy the test outlined in Prigmore v. City of Redding (2012) 211 Cal.App.4th 1322, which they cite in their opposition. Prigmore does not support their position. In Prigmore, the ACLU and two individual members challenged portions of a policy which the City adopted that limited leafleting to certain areas, and prohibited leafleting in certain situations. The trial court granted plaintiffs’ request for a preliminary injunction enjoining the enforcement of the portions of the policy. The defendants appealed, in part, on the ground that the plaintiffs lacked standing to challenge the provisions because the provisions were neither enforced against them nor was there a credible threat of enforcement. The Third District Court of Appeal rejected the defendants’ arguments. The court first recognized that:

“[A] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement. (Babbitt v. Farm Workers (1979) 442 U.S. 289, 298 [60 L.Ed.2d 895, 906, 99 S. Ct. 2301] (Babbitt.) “It is sufficient for standing purposes that the plaintiff intends to engage in ‘a course of conduct arguably affected with a constitutional interest’ and that there is a credible threat that the challenged provision will be invoked against the plaintiff. [Citation.] By contrast, ‘persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.’ [Citation.]” (LSO, Ltd. v. Stroh (9th Cir. 2000) 205 F.3d 1146, 1154-1155.) Under California law, it is sufficient that the objecting party show actual or threatened injury from the enactment of a statute or regulatory measure. (B. C. Cotton, Inc. v. Voss (1995) 33 Cal.App.4th 929, 948 [39 Cal. Rptr. 2d 484].)

(Id. at 1349 (emphasis added).) Prigmore is inapposite since the plaintiffs therein were expressly challenging a policy that the defendants had enacted. Here, while Plaintiffs allege that “there is a credible threat that the challenged provision will be invoked against [them]” (FAC, ¶¶ 1-2), Plaintiffs fail to identify any provision in the Roberti-Roos Assault Weapon Control Act (“AWCA”) that they are challenging. Nor do they challenge the AWCA. Instead, Plaintiffs allege that Defendants have failed their mandatory duty to issue regulations.

The Court is not persuaded that Plaintiffs have standing to pursue this action. The demurrer is SUSTAINED with leave to amend.

Having sustained the demurrer on this ground, the Court need not address Defendants’ argument regarding ripeness.

Equal Protection

With respect to this cause of action, Plaintiffs allege that “[t]he DEFENDANTS, which occupy the entire field of licensing and registration of firearms, and which have specified duties and obligations to ensure that regulations that are necessary and proper to effectuate the provisions of the AWCA are enforced, have created a classification of persons, including PLAINTIFFS, who are treated unequally. Said actions by the DEFENDANTS include the classification of firearms for law enforcement and law enforcement agencies, but not for the general public to which the licensing and registration requirements apply. Such application creates a shell game in which the public, including PLAINTIFFS, must speculate as to which licensing and registration scheme applies to the firearms that they acquire, manufacture, possess and/or sell, subject to criminal prosecution.” (FAC, ¶ 105.)

Defendants demur on the ground that when there is no suspect classification, such as race, such as race, sex, or religion, and purely economic interests are involved, the government may impose any distinction which bears some rational relationship to a legitimate public purpose, and that Plaintiffs are not similarly situated to law enforcement. (Cal. Rifle & Pistol Assn. v. City of West Hollywood (1998) 66 Cal.App.4th 1302, 1327; see Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1273.)

Plaintiffs concede that “peace officers acting under the color of law protect the public interest and are not similarly stated to private citizens” (Opposition 5: 23-26), but insists that the “AWCA has been held to violate the Equal Protections clause as applied to police officers on two occasion due to the overbroad exemptions and benefits provided to the officers in their civilian lives. Such is the situation

here.” (Opposition, 5:25-6:1.)

Plaintiffs rely on two cases to support their argument. In the first case, Silveira v. Lockyer (2002) 312 F.3d 1052, the Ninth District Court of Appeals dealt, in part, with whether the AWCA’s exception that permits retired peace officers to possess assault weapons they acquire from their department at the time of their retirement violated the Equal Protection Clause. The plaintiffs were non-active or retired California peace officers. The court reviewed the purposes of the AWCA and noted that “there is little doubt that any exception to the AWCA unrelated to effective law enforcement is directly contrary to the act’s basic purpose of eliminating the availability of high-powered, military-style weapons and thereby protecting the people of California from the scourge of gun violence.” (Id. at 1089 (emphasis added).) Applying the rational basis test, the court held that “we can discern no legitimate state interest in permitting retired peace officers to possess and use for their personal pleasure military-style weapons. Rather, the retired officers’ exception arbitrarily and unreasonably affords a privilege to one group of individuals that is denied to others, including plaintiffs.” (Id.)

The second case is a 2010 Attorney General Edmund Brown opinion, in which he opined that “a peace officer who purchases and registers an assault weapon in order to use the weapon for law enforcement purposes is not permitted to continue to possess the assault weapon after retirement.” (93 Ops. Cal. Atty. Gen. 130.)

These cases are inapposite to the issues presented here. Plaintiffs allege that Defendants “have historically refused to review firearms for classification purposes, unless the classification is in relation to a criminal investigation or prosecution.” (FAC,

¶ 71.) Penal Code §30520(a) requires the Attorney General to “prepare a description for identification purposes, including a picture or diagram, of each assault weapon…and any firearm declared to be an assault weapon…” as well as to “distribute the description to all law enforcement agencies responsible for enforcement of this chapter,” with those law enforcement agencies making the description available to all agency personnel.” Accordingly, this classification relates to effective law enforcement. Retired police officers, on the other hand, are no longer in law enforcement.

The demurrer is SUSTAINED with leave to amend.

State of California As a Defendant

Defendants demur that the State is not a proper party because “[t]here is a ‘general and long-standing rule’ . . . that in actions for declaratory and injunctive relief challenging the constitutionality of state statutes, state officers with statewide administrative functions under the challenged statute are the proper parties defendant.” (Temple
v. State (2018) 24 Cal.App.5th 730, 736, quoting Serrano v. Priest (1976) 18 Cal.3d 728, 752 [internal quotation marks omitted]; see also State v. Superior Court (1974) 12 Cal.3d 237, 255.)” (Demurrer, 14:10-17.) Defendants maintain that the FAC does not allege the state itself engaged in any conduct relevant to the dispute at issue or otherwise refused to comply with a mandatory duty. According to Defendants, “[c]iting to Penal Code section 53071, Plaintiffs assert that the state is culpable because it occupies the whole field of regulation for registration and licensing for commercially manufactured firearms through the AWCA. (FAC, ¶¶ 54, 70, 86.) But that is beside the point. Section 53071 addresses preemption, not a mandatory duty.” (Demurrer, 14:19-20.)

The demurrer is OVERRULED. As Plaintiffs correctly note, the general rule applies when the action for declaratory and injunctive relief challenged the constitutionality of state statutes. Here, Plaintiffs are not challenging the constitutionality of the AWCA, and their prayer does not seek any remedy relating to the constitutionality of the AWCA. Moreover, although Defendants claim that Plaintiffs cite to Penal Code section 53071 in certain paragraphs of the FAC, no such citations are in the FAC. Further, Penal Code section 53071 does not exist. The Court is unpersuaded that the State is not a proper party.

Horan/Orick

Martin Horan, Jr. was initially named in the complaint as the Director of BOF. Orick is now the Acting Chief and requests that he be substituted in Horan’s place. (CCP §368.5) Plaintiffs also explain that they will substitute Orick as the Acting Director. Plaintiff is granted leave to amend the complaint to substitute Orick.

The demurrer that Plaintiffs fail to plead sufficient facts about Orick/Horan beyond his duties is OVERRULED. At this stage of the proceedings, the paragraphs identified in Plaintiffs’ opposition, page 10:1-11 are sufficient.

The Court grants leave to amend since it is not yet convinced that Plaintiffs will be unable to cure the defects in the complaint.

Where leave to amend is granted, Plaintiffs may file and serve a second amended complaint (“SAC”) by no later than October 3, 2019, Response to be filed and served within 30 days thereafter, 35 days if the SAC is served by mail. (Although not required by any statute or rule of court, Plaintiffs are requested to attach a copy of the instant minute order to the SAC to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.