California Judge Acts to Uphold First and Second Amendment Protections

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California Flag Guns Gun Control iStock 884191010

U.S.A.-( On July 22, 2022, Governor Gavin Newsom signed into law California Senate bill 1327. The bill applied fee-shifting in cases where civil rights litigants filed lawsuits challenging California firearms law.  In essence, if the plaintiffs filing the lawsuit did not win every part of a case against the state, the plaintiffs would be required to pay all the State’s costs. In the unlikely case where the plaintiffs won every part of their suit, they are not awarded any costs they have incurred.

On September 26, 2022, a number of plaintiffs filed suit against the state, claiming the bill violates the Supremacy Clause, the First Amendment, and the Equal Protection Clause of the United States Constitution.  From the complaint:

1. Plaintiffs bring this suit to challenge the constitutionality of a recently enacted California law that seeks to suppress firearms-related litigation by putting civil rights litigants and their attorneys on the hook for the government’s attorney’s fees and costs if a case results in anything short of total victory for plaintiffs on every claim alleged in a complaint.

2. On July 22, 2022, Governor Newsom signed into law Senate Bill 1327, which includes a one-way fee-shifting penalty in the government’s favor that applies solely to litigation challenging state and local firearm regulations. 2022 Cal. Stat. ch. 146, § 2 (adding Code Civ. Proc. § 1021.11(a)). In simple terms, Section 1021.11enables government defendants to recover fees if a firearms plaintiff loses on any claim in the case, while the plaintiff can only avoid liability for fees if it prevails on every claim in the case. Firearms plaintiffs, moreover,cannot be “prevailing parties” under Section 1021.11, meaning they are never entitled to fees.

Many of the ongoing challenges to California firearms law in federal court are directly implicated and endangered. As the law is worded, challenges that have been in the legal system for many years, which have already been all the way to the Supreme Court, and now remanded to the Ninth Circuit, could be rendered moot by the fear of plaintiffs of financial ruin under the new law.

In court, California Attorney General Rob Bonta claimed the lawsuit was moot because he would not enforce the law if a Texas abortion law were ruled unconstitutional. Judge Benitez did not find the argument convincing. One state may not threaten to destroy its residents’ Constitutional rights as a way to extort another state to change its law, even if the first state considers the other state to be in violation of the Constitution.

The Attorney General said he would not enforce the law after the lawsuit was filed. On December 1, 2022, Judge Benitez issued an order for the case to continue. From the order:

Plaintiffs seek injunctive relief from a newly-enacted California state law adding an attorney’s fees and costs shifting provision codified at California Code Civ. Procedure § 1021.11. Fee shifting provisions are not unusual in American law. But this one is.

Here is footnote 1, explaining how the fee-shifting provisions are unusual:

1(a) Notwithstanding any other law, any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent this state, a political subdivision, a governmental entity or public official in this state, or a person in this state from enforcing any statute, ordinance, rule, regulation, or any other type of law that regulates or restricts firearms, or that represents any litigant seeking that relief, is jointly and severally liable to pay the attorney’s fees and costs of the prevailing party.(b) For purposes of this section, a party is considered a prevailing party if a court does either of the following:

The provisions are, in sum, essentially any situation in which any action sought by the plaintiffs, defined as anyone or their attorneys or law firms who oppose any firearms law in court, are denied by a judge.

This provision applies only to suits challenging a law that regulates or restricts firearms. And while the provision entitles a prevailing party to be awarded its attorney’s fees and costs, by the statute’s definition, a plaintiff cannot be a prevailing party. It has not yet, but the American Bar Association might want to intervene on Plaintiffs’ side because the provision remarkably also makes attorneys and law firms that represent non-prevailing plaintiffs jointly and severally liable to pay defense attorney’s fees and costs.

The law already appears to have had a chilling effect on the ability to protect the exercise of rights defended by the  Second Amendment. Defense Distributed agreed to drop the case it had filed against California in exchange for immunity from the claims arising due to California Code Civ. Procedure § 1021.11.

Judge Benitez ordered the parties to the lawsuit (or their representatives) to appear in court on December 16, 2022.

A hearing on the motion for preliminary injunction will be combined with a trial on the merits on December 16, 2022. Defendants may file a supplemental brief seven days before the hearing. Plaintiffs may file a reply brief three days before the hearing.


The Attorney General’s appeal to moot the case, by claiming he will not enforce the new law, implies he knows this law directly violates United States Constitutional protections. Claiming the California law is a direct response to the Texas abortion law is a variation of the old “Jimmy made me do it” children’s defense. Two wrong laws do not make a right law. The public should learn more on December 16, or shortly thereafter.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Any freedom loving person still living in communist California needs thier head examined .


You’ve got that right!!


This is just another example of why it’s time to consider a national divorce, much like what Czechoslovakia did after the fall of the Soviet Union.


Where ever you live, there will be 51% of the people living there with you. I think a more substantive approach would be to make them conform to the Constitution.