Thursday, June 30, 2022

Watch David E. Mastagni Testify Against S.B. 505 (Strict Liability & Insurance for Firearms) on Behalf of PORAC & CAHP

   On June 28, 2022, David E. Mastagni testified on behalf of PORAC and CAHP against S.B. 505 (Skinner) which if enacted would erect new barrios for the exercise of Californians' Second Amendment rights.  Watch his testimony below.
 


           The bill would make a person who owns a firearm strictly civilly liable for each incidence of property damage, bodily injury, or death resulting from the use of their firearm unless the owner of the firearm has reported their firearm to local law enforcement as lost or stolen prior to the damage, injury, or death. Additionally, S.B. 505 would require a person who owns a firearm to obtain and continuously maintain a homeowner's, renter's, auto, or gun liability insurance policy specifically covering losses or damages resulting from any negligent or accidental use of that firearm, including but not limited to, death, injury, or property damage.
 
            David testified that his law enforcement clients understand first-hand the scourge of gun violence.  Unfortunately, S.B. 505 will have little impact on individuals who commit crimes with guns, but will impose significant burdens on the Constitutional rights of law-abiding citizens. SB 505 cannot withstand the standard set forth in New York State Rifle & Pistol Ass'n, Inc. v. Bruen (June 23, 2022) 2022 WL 2251305, which held: 

To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."
 
            He explained that the bill unconstitutionally imposes strict liability on the exercise of the Second Amendment, a restriction for which no historical tradition exists.  To the contrary, California courts have consistently rejected the strict liability standard for the lawful use of firearms. Further, our Supreme Court has held the First Amendment precludes application of strict liability to defamation claims.  As the Supreme Court held the Second Amendment standard mirrors the First Amendment, strict liability is not an available policy option. 
 
Additionally, strict liability on the use of a firearm necessarily extends strict liability to the justified use of a firearm in self-defense.  This violates both the inherent right to self-defense in the US Constitution and the express right in the California Constitution. ("Self-defense 'is one of the inalienable rights guaranteed by the constitution of the state." People v. McDonnell (1917) 32 Cal.App. 694; Cal Cont. Art. 1, §1. "Central to the rights guaranteed by the Second Amendment is "the inherent right of self-defense." United States v. Torres (9th Cir. 2019) 911 F.3d 1253, 1257.) 
 
Finally, requiring insurance is plainly unconstitutional because no historical tradition exists for this first in the nation regulation.  The financial and regulatory burden will discriminate against the less affluent, who will not be able to afford or obtain insurance, and have a disparate impact on underrepresented and vulnerable populations.    
 
 David urged the Committee to reconsider firearm legislation in light of this new standard, rather than invite an immediately legal challenge. The Legislature should focus on gun legislation expressly permitted by the U.S. Supreme Court, keeping guns out of the hands of prohibited persons and imposing consequences on individuals who commit crimes with guns.
 
Undaunted, the Assembly Judiciary Committee voted 8 to 3 to move the bill forward.  This bill poses a significant liability risk when Californians use a firearm in self-defense as it imposes strict liability for any "bodily injury, or death resulting from the use of a firearm", without any exception of justified use of a firearm in self-defense.  If signed into law, an immediate Second Amendment challenge is likely to follow.  If upheld as Constitutional, this bill will greatly expand the liability faced by peace officers for simply performing their duties, as well as citizens who exercise their Constitutional rights.  Peace officer unions should also consider negotiating employer provided insurance coverage for all their members' firearms, including those personally owned.
 
 The full hearing can be viewed below.