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.

 

U.S. Supreme Court's New Second Amendment Ruling Effectively Overturns Ninth Circuit Ruling Against Peace Officer Self-Defense Rights

This past week, the U.S. Supreme Court released several new opinions with immense impacts – one of which changes the game for California public safety officers’ right to use firearms for self-defense. In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court held that the Second and Fourteenth Amendments protect a person’s right to carry a handgun for self-defense outside the home. New York State Rifle & Pistol Association, Inc. v. Bruen (U.S., June 23, 2022, No. 20-843) 2022 WL 2251305. In analyzing self-defense rights, the Court held that circuit courts had been using an improper legal test. Through the Court’s new finding, several cases that support strict firearm regulations have now been overturned. One in particular is a Ninth Circuit case regarding police use of force policies.

Previously, several circuits applied two Supreme Court cases, Heller and McDonald, to justify a two-step test to determine whether a law infringed on Second Amendment rights. At the first step, the court asks whether the law burdens conduct protected by the Second Amendment. To answer, the court considers the history of firearm regulation. Some laws are supported by a long history of lawful regulation, like prohibitions on the possession of firearms by felons. Such laws do not burden conduct protected by the Second Amendment. However, if there is no analogous, historical firearm regulation, the new law burdens conduct protected by the Second Amendment. At the second step, the courts balanced safety with the costs and benefits of firearms restrictions. The courts also gave deference to the legislature’s governmental interests.

            The Ninth Circuit used this two-step test to justify their decision in Mahoney, in which Seattle police officers challenged a Use of Force Policy (“UOF Policy”) that applied to the use of firearms. Mahoney v. Sessions, 871 F.3d 873 (9th Cir. 2017). The UOF Policy provided a set of factors to determine whether use of a firearm was reasonable, necessary, and proportional to the threat at issue. However, the UOF Policy also required the police officers to use de-escalation tactics and to consider the firearm factors only when safe under the totality of circumstances. Although the Seattle police officers argued the UOF Policy was unconstitutional under the Second Amendment, the Ninth Circuit disagreed. Even though the Ninth Circuit reasoned that the UOF Policy burdened police officers’ self-defense conduct protected by the Second Amendment, the court found that the safety and benefits of the firearm restrictions outweighed the violation of police officers’ self-defense rights. Therefore, the Ninth Circuit upheld the UOF Policy because it passed at step two, regardless of the fact that it failed at step one.

However, in the recent New York State Rifle & Pistol Ass’n opinion, the Supreme Court found that Heller and McDonald do not support a two-step test. Heller and McDonald only support the first step: whether the law burdens conduct protected by the Second Amendment. Because Mahoney failed at step one (i.e., Seattle’s UOF Policy inhibited police officers’ Second Amendment rights to self-defense), the UOF Policy and every use of force policy that burdens conduct protected by the Second Amendment is unconstitutional. Now, the courts and legislature must only consider whether modern and historical regulations impose a comparable burden on the right of armed self-defense. A cost-benefit analysis of firearms restrictions and deference to government interests are no longer a judicial priority in analyzing violations of the Second Amendment.

The Supreme Court decision eliminates step two because the Second Amendment “‘is the very product of an interest balancing by the people,’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.” New York State Rifle & Pistol Ass'n, Inc. 2022 WL 2251305 at *2 (quoting D.C. v. Heller, 554 U.S. 570, 635 (2008)). 

The Court stated, “Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. 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. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.’” Id at *8.

David E. Mastagni will be testifying at the Assembly Judiciary Committee on June 28, 2022, against S.B. 505, which almost certainly runs afoul of this holding. S.B. 505 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.

Although intended to provide a means of recovery for victims of gun crimes, this bill is likely unconstitutional, only burdens the Constitutional rights of law-abiding citizens, and will have a discriminatory impact. First, the bill imposes strict liability on the exercise of a Constitutional right. As strict liability for the lawful use of firearms has never been permitted, it is not consistent with the historical traditional of firearm regulation. New York State Rifle & Pistol Ass'n, Inc. v. Bruen. Strict liability is not an available policy choice because it infringes on the Second Amendment. Second, strict liability on the use of a firearm necessarily extends strict liability to the lawful and justified use of a firearm in self-defense in violation of 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. Just as the state may not burden the exercise of the First Amendment with strict liability, California can't infringe the right of self-defense. "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.

S.B. 505 will have little impact on individuals who commit crimes with firearms and will unlawfully discriminate against those of modest means who will not be able to obtain or afford insurance as a precondition to the exercise of their Constitutional rights. The exercise of a Constitutional right cannot be conditioned upon a financial cost. Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 571. Furthermore, New York State Rifle & Pistol Ass'n, Inc. v. Bruen precludes the imposition of an insurance requirement on the exercise of Second Amendment rights, as such a precondition is not consistent with the historical tradition of firearm regulation.

"The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant's right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense." New York State Rifle & Pistol Ass'n, Inc. v. Bruen at *34.

DMV Administrative Hearings Held Unconstitutional & Unfair for Californians

Individuals arrested for DUI in California face two separate legal processes following their arrest: A criminal case in the Superior Court and an Administrative Per Se hearing with the California DMV. When someone is arrested for DUI it is their responsibility to request an administrative hearing with the DMV within 10 days. If a hearing is not requested, after 30 days from the date of arrest their license will automatically be suspended for four months. If a hearing is requested within 10 days, no action will be taken against their license until the conclusion of that hearing.

On the criminal side of a DUI, if the case proceeded to trial the defendant would have their case decided by a jury of their peers, with the applicable “beyond a reasonable doubt" legal standard, which is the highest legal threshold in our justice system. In contrast, the DMV hearing process consists of a hearing where the presiding hearing officer is also a DMV employee and is tasked with being both the decision maker and an advocate for the DMV and its interests. Moreover, the standard of proof is the significantly lower “preponderance of the evidence” (more likely than not) standard and the hearing officer can also take great liberties with the admissibility of evidence, to include allowing in unsworn statements and relying on hearsay. Another unique feature of DMV hearings is the permissibility of ex parte communications amongst DMV employees. Most significantly, the DMV authorizes its managers to change the decision of the hearing officer or order the hearing officer to change their decision.

Attorneys defending their clients in DUI matters have long criticized and challenged the DMV process, claiming it violates the due process rights of clients by virtue of the dual role served by the hearing officer, the permissibility of ex parte communications, and the low legal standards applied at the hearing. The reality is, even if an individual is either not prosecuted or exonerated criminally, they can still have their license suspended or revoked by either failing to request an APS hearing or simply losing their hearing due to the lack of due process and substantially lower burden of proof compared to criminal proceedings.

These long-standing issues motivated DUI advocates to challenge the legality of the DMV hearing process by initiating the case of California DUI Lawyers Association et al. v. California Department of Motor Vehicles et al. The California DUI Lawyers Association (CDLA) originally filed the lawsuit in 2014 seeking injunctive and declaratory relief from the DMV and its director. CDLA alleged (1) violation of 42 United States Code section 1983 affecting due process rights under the Fourteenth Amendment to the United States Constitution; (2) violation of due process rights under article 1, section 7 of the California Constitution; and (3) “illegal expenditure of funds” under Code of Civil Procedure section 526a. In sum, CDLA claimed that the lack of a neutral hearing officer, and the ex parte communications between DMV managers and hearing officers, violate drivers’ rights to procedural due process under the California and United States Constitution.

The trial court concluded the DMV’s allowance for ex parte managerial communications and their meddling with the hearing officers’ decision-making violates due process under the California Constitution and constitutes waste under Code of Civil Procedure section 526a. The trial court judgment prohibited the DMV from maintaining or implementing a structure allowing managerial interference with hearing officers’ decision-making through “ex parte communications or command control.” It also found CDLA to be the prevailing party for purposes of an award of attorneys’ fees.

On appeal, the appellate court determined that the DMV’s hearing structure breached the minimum standards of due process under 42 U.S. Code section 1983 and under section 7 of Article I of California’s constitution, created an irreconcilable conflict, and amounted to an unacceptable risk of bias. The court of appeal noted that the DMV acknowledged it was a party to their hearings, that such hearings were adversarial, and that the hearing officer’s role involved both advocating on the DMV’s behalf and acting as a fact-finder. The trial court thus made an error when it denied the plaintiffs’ motion for summary adjudication of its section 1983 claim, given that the lack of neutral hearing officers at APS hearings breached the federal and state due process rights of drivers. The court of appeal also found that a party seeking injunctive relief against a state official in their official capacity does not need to show the official’s personal involvement in the claimed constitutional violation.

Lastly, the court of appeal’s also issued a permanent injunction regarding ex parte communications. The DMV is permanently enjoined and restrained from having its APS hearing officers function as advocates for the position of the DMV while also being fact-finders in the same adversarial proceedings.

It is difficult to ascertain what the lasting impact of this decision will be; however, the DMV is now proceeding with two separate employees for hearings. One as the DMV’s advocate and the other as the decision maker. What affect this new approach will have on the outcome of the hearings is yet to be seen, but the fact still remains that both individuals are still employees of the DMV. Thus, one can reasonably assume that the hearings will likely be more of the same.