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Bauer v. Becerra

United States Court of Appeals, Ninth Circuit

June 1, 2017

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,
v.
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.

          Argued and Submitted April 19, 2017 San Francisco, California

         Appeal 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

          Erin 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 Defendants-Appellees.

          Sarah 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.

          Efrain 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.

         SUMMARY[*]

         Civil Rights

         The 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 System.

         The 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 the Constitution.

          OPINION

          THOMAS, Chief Judge.

         In this 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 district court.

         I

         California 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.

         The 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.[1] 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, § 4001.

         In 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).

         The 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.

         The 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.

         Since 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.[2] 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 processing ...


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