89 Cal.App.5th 386
Cal. Ct. App.2023Background
- Regina, a California resident, attempted to buy an antique shotgun shipped to a California federally licensed firearms dealer; the DOJ ran the statutorily required background check.
- The DOJ flagged an old arrest/charge and, after 30 days without ascertaining final disposition, sent the dealer a §28220(f)(4) notice stating the dealer "may" release the firearm at its discretion.
- The dealer refused to complete the transfer; Regina alleges the notice chilled his Second Amendment rights and that §28220(f)(4) is preempted by the Brady Act.
- Regina sued the State and the Attorneys General (42 U.S.C. §1983 and declaratory relief); the trial court sustained the State’s demurrer without leave to amend and entered judgment for defendants.
- On appeal, the court addressed (1) whether §28220(f)(4) violates the Second Amendment (facial and as-applied) and (2) whether it is preempted by the Brady Act, and affirmed the dismissal; Bruen was decided while the appeal was pending but did not change the result.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial Second Amendment challenge to §28220(f)(4) | The notice that DOJ "could not determine" eligibility chills gun purchases and effectively restricts the right to keep and bear arms. | The statute does not prohibit ownership or transfer; it expressly authorizes dealers to transfer at their discretion, so it does not implicate the Second Amendment. | Rejected: statute lies outside the Second Amendment’s protected core; not unconstitutional on its face. |
| As-applied Second Amendment challenge | DOJ’s §28220(f)(4) letter caused the dealer to refuse the sale, so Regina’s rights were infringed in his case. | Even accepting facts pleaded, the notice authorized the dealer to transfer and did not constitute state-imposed restriction; dealer’s refusal is not state action depriving Regina of constitutional protection. | Rejected: no state interference with Second Amendment rights; no unconstitutional delegation. |
| Claim that §28220(f)(4) is preempted by the Brady Act | Federal law gives only proceed/denied outcomes; California’s undetermined notice creates an irreconcilable third outcome that frustrates Brady’s purpose. | Brady allows a delayed/inconclusive response and does not force dealers to transfer; federal law does not preclude a state scheme that authorizes transfer after a statutory delay. | Rejected: no conflict preemption; schemes are reconcilable and share the same basic approach to delayed/inconclusive checks. |
| Need to remand for Bruen-based briefing | Bruen changed Second Amendment framework; Regina sought remand to brief the historical-tradition test applied to §28220(f)(4). | §28220(f)(4) does not regulate conduct within the historical scope of the Second Amendment, so Bruen’s test need not be applied further. | Rejected: no remand; Bruen does not alter conclusion that the statute lies beyond the Amendment’s core. |
Key Cases Cited
- New York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022) (adopts history-and-tradition test for Second Amendment challenges)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizes individual right to possess firearms for self-defense)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporates Second Amendment against the states)
- West v. Atkins, 487 U.S. 42 (1988) (elements of a §1983 claim: state action plus constitutional violation)
- Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) (limits §1983 damages claims against states and official-capacity immunity; prospective injunctive relief available)
- Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015) (framework on federal preemption principles)
- Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) (preemption analysis requires a high threshold; state law not preempted absent clear conflict)
- County of Butte v. Department of Water Resources, 13 Cal.5th 612 (2022) (California discussion of preemption standards)