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.
