A federal judge has struck down part of a California gun law that was inspired by the novel legal mechanisms pioneered in a Texas 2021 law that allowed private citizens to sue abortion providers.
The ruling was praised not only by the gun rights activists who challenged the law, but by its chief defender, Democratic Gov. Gavin Newsom, who said the decision vindicated his and others’ arguments that the Texas abortion law was constitutionally flawed.
US District Judge Roger Benitez said in his opinion on Monday that the California law went farther than the Texas abortion measure known as SB8.
But the judge stopped short of saying that those distinctions made the Texas abortion law legally sound.
The California law allows private citizens to bring civil action against anyone who manufactures, distributes, transports or imports assault weapons or ghost guns, which are banned in the state – but that aspect of the law was not part of the case before Benitez.
The provision in question in the California law – SB 1327 – was a so-called fee-shifting regime. It said that when a person or entity challenged in a court a state or local gun restriction, they would be on the hook for paying the legal fees of the restriction’s defenders if they lost their case, but would not be able to recover their legal fees from their opponents if they won.
The provision was modeled after fee-shifting language in the Texas abortion law, which included similar language directed at legal challenges to abortion restrictions.
Benitez said Monday that California’s law fee-shifting regime undermines citizens’ First Amendment right to access courts to protect their rights under the Second Amendment.
“Today, it applies to Second Amendment rights,” he wrote. “Tomorrow, with a slight amendment, it could be any other constitutional right including the right to speak freely, to freedom of the press, to practice one’s religion, to restrict cruel and unusual punishment, and to be free from government takings without compensation.”
The gun measure also mimics the Texas law by allowing private citizens to bring civil lawsuits to enforce California’s bans on assault weapons and other types of firearms, but that part of the law was not before the judge in Monday’s decision. The Texas law lets private citizens to sue anyone who facilitates an abortion after the detection of fetal cardiac activity – which is around six weeks into the pregnancy – with the promise of $10,000 or more in damages if the lawsuit is successful.
The Texas abortion law was designed to evade judicial review by using private civil litigation to enforce an abortion ban that would otherwise be at odds with the 1973 Roe v. Wade precedent, which protected the right to an abortion. The strategy was blessed by a 5-4 ruling by the US Supreme Court that refused to block state court officials from presiding over lawsuits brought under the law.
Benitez quoted Chief Justice John Roberts’ opinion dissenting from parts of the Supreme Court majority’s ruling, as well as the criticisms from Newsom about the abortion law.
Benitez wrote that, while there were some differences between Texas’ and California’s fee-shifting regimes, it “remains to be seen” whether those differences protected the Texas law from judicial scrutiny.
“And although it would be tempting to comment on it, the Texas law is not before this Court for determination,” the judge, who was appointed by President George W. Bush, wrote.
The California measure also ran afoul of a federal statute that allows plaintiffs to recoup legal costs if they bring a successful constitutional challenges to law, Benitez said.
Bill Sack – the director of litigation for Firearms Policy Coalition, one of the groups that challenged the California measure – celebrated the ruling in a statement.
“The enactment of SB 1327 was intended to do only one thing: chill the rights of the people and dissuade them from pursuing justice from tyranny,” he said. “The Court made it clear today that cynical political grandstanding will not be tolerated when it infringes on the rights of the people.”
Several months after the Supreme Court decision in the Texas abortion case, the same set of conservative justices reversed Roe v. Wade, giving states the ability to enforce more conventional abortion bans. But anti-abortion activists remain interested in the novel design of Texas’ SB8.
Newsom, meanwhile, said in a statement Monday that he wanted to thank Benitez for his ruling, claiming the decision confirmed that the Texas law was “unconstitutional.”
“The provision in California’s law that he struck down is a replica of what Texas did, and his explanation of why this part of SB 1327 unfairly blocks access to the courts applies equally to Texas’ SB 8.,” he said. “There is no longer any doubt that Texas’ cruel anti-abortion law should also be struck down.”