Barry Bauer; Nicole Ferry; Jeffrey Hacker; National Rifle Association of America, Inc.; California Rifle and Pistol Association Foundation; Herb Bauer Sporting Goods, Inc., Plaintiffs-Appellants,
Xavier Becerra, in his official capacity as Attorney General of the State of California; Stephen Lindley, in his official capacity as Acting Chief of the California Department of Justice; Does, 1-10, Defendants-Appellees.
and Submitted April 19, 2017 San Francisco, California
from the United States District Court No.
1:11-cv-01440-LJO-MJS for the Eastern District of California
Lawrence J. O'Neill, Chief Judge, Presiding
E. Murphy (argued), Paul D. Clement, and Edmund G. LaCour
Jr., Bancroft PLLC, Washington, D.C.; C.D. Michel, Sean A.
Brady, and Anna M. Barvir, Michel & Associates P.C., Long
Beach, California; for Plaintiffs-Appellants.
Anthony R. Hakl (argued), Deputy Attorney General; Stepan A.
Haytayan, Supervising Deputy Attorney General; Douglas J.
Woods, Senior Assistant Attorney General; Office of the
Attorney General, Sacramento, California; for
E. Tremont and Elliott Schulder, Covington & Burling LLP,
Washington, D.C.; Jonathan E. Lowry and Kelly Sampson, Brady
Center to Prevent Gun Violence, Washington, D.C.; for Amicus
Curiae Brady Center to Prevent Gun Violence.
Staino, Ruth N. Borenstein, and Jordan Eth, Morrison &
Foerster LLP, San Francisco, California, for Amicus Curiae
Law Center to Prevent Gun Violence.
Before: Sidney R. Thomas, Chief Judge, and Ferdinand F.
Fernandez and Mary H. Murguia, Circuit Judges.
panel affirmed the district court's summary judgment in
favor of the State of California in an action challenging, on
Second Amendment grounds, California Penal Code § 28225,
which requires the allocation of $5 of a $19 fee on firearms
transfers to fund enforcement efforts against illegal firearm
purchasers through California's Armed Prohibited Persons
panel held that the use of the fee to fund enforcement
efforts survived intermediate scrutiny because the government
has demonstrated an important public safety interest in this
statutory scheme, and there was a reasonable fit between the
government's interest and the means it has chosen to
achieve those ends. Accordingly, the district court did not
err in concluding that the use of the fee to fund the
California's Armed Prohibited Persons System program,
through California Penal Code § 28225, did not violate
THOMAS, Chief Judge.
appeal, we consider whether California's allocation of $5
of a $19 fee on firearms transfers to fund enforcement
efforts against illegal firearm purchasers violates the
Second Amendment. We conclude that, even if collection and
use of the fee falls within the scope of the Second
Amendment, the provision survives intermediate scrutiny and
is therefore constitutional. We affirm the judgment of the
regulates firearm sales and transfers through the
Dealer's Record of Sale ("DROS") system, which
was created a century ago and has been updated throughout the
intervening years. See 1917 Cal. Stat. 221, §
7. The DROS system today requires that "any sale, loan,
or transfer of a firearm" be made through a licensed
dealer, Cal. Penal Code §§ 27545, 28050(a), and it
requires dealers to keep standardized records of all such
transactions, id. at §§ 28100, 28160
et seq. This statutory framework also requires the
California Department of Justice ("the Department")
to run background checks prior to purchase, and to notify the
dealer if a prospective firearm purchaser is prohibited from
possessing a gun under federal law or under certain
provisions of California law relating to prior convictions
and mental illness. Cal. Penal Code § 28220.
DROS system allows the Department to charge a fee, known as
the DROS fee, to cover the cost of running these background
checks and other related expenses. Cal. Penal Code §
28225. Although the use of the DROS fee was originally
limited to background checks, 1982 Cal. Stat. 1472, §
129, this provision was later expanded to allow the fee to be
used for "the costs associated with funding Department
of Justice firearms-related regulatory and enforcement
activities related to the sale, purchase, loan, or transfer
of firearms, " as well as certain costs incurred by
other agencies in compliance with the record-keeping and
notification requirements of the background check provisions.
Cal. Penal Code 12076(e) (repealed 2010, replaced by Cal.
Penal Code § 28225). In 1995 the legislature capped the
DROS fee, with inflation adjustment to be set by regulation.
Cal. Penal Code § 28225(a). With inflation, the fee was
most recently set at $19 in 2004. Cal. Code Regs. Tit. 11,
2011, the California Legislature further expanded the
permissible uses of the DROS fee by enacting the law that is
challenged in this case. This law, commonly referred to as
Senate Bill 819, changed the language of § 28225 to
allow the DROS fee to be used for "firearms-related
regulatory and enforcement activities related to the sale,
purchase, possession, loan, or transfer of
firearms." Cal. Penal Code § 28225(b)(11) (emphasis
added). In effect, this change allows the Department to use a
portion of the DROS fee "for the additional, limited
purpose" of funding enforcement efforts targeting
illegal firearm possession after the point of sale,
through California's Armed Prohibited Persons System
("APPS"). 2011 Cal. Stat. 5735, § 1(g).
APPS program, established in 2001, enforces California's
prohibitions on firearm possession by identifying
"persons who have ownership or possession of a
firearm" yet who, subsequent to their legal acquisition
of the firearm, have later come to "fall within a class
of persons who are prohibited from owning or possessing a
firearm" due to a felony or violent misdemeanor
conviction, domestic violence restraining order, or mental
health-related prohibition. Cal. Penal Code §§
30000, 30005. Essentially, these are people who passed a
background check at the time of purchase but would no longer
pass that check, yet still possess a firearm.
system identifies such people by cross-referencing the
Consolidated Firearms Information System ("CFIS")
database of people who possess a firearm, which is generated
primarily through DROS reporting, against criminal records,
domestic violence restraining order records, and mental
health records. Cal. Penal Code §§ 11106, 30005.
This process generates a list of "armed prohibited
persons, " which the Department uses for
"investigating, disarming, apprehending, and ensuring
the prosecution" of persons who have become prohibited
from firearm possession.
the enactment of Senate Bill 819 in 2011, the APPS
program-including both the identification of armed prohibited
persons and the Department's related enforcement efforts
confiscating firearms from those people-has been partially
funded by DROS fees. However, only a portion of the DROS fee is
used to fund APPS: the evidence in the record before us
suggests that the cost of running background checks and