Even California AG Won’t “Defend the Validity” of California Law that Punishes Second Amendment Legal Challenges
Miller v. BontA
California Attorney General Rob Bonta said he “won’t defend the validity” of a new state law under which plaintiffs who test the constitutionality of California’s strict gun laws in court and lose must pay all attorney’s fees and costs. Such an imposition could easily be financially ruinous for plaintiffs and their lawyers alike.
“The refusal by the top law enforcement official of the nation’s largest state by population to stand by his state’s law is hardly a promising sign for that law’s survival in federal court,” said Erik Jaffe, policy director of Protect The 1st. “Heaping attorney’s fees and costs on plaintiffs concerned with a specific issue if they should lose in court – or win but fail to prevail on all their claims – is a way of denying disfavored groups access to courts. California’s approach is ultimately an attack on every Americans’ right to challenge a law – a smothering of dissent that violates the First Amendment.”
The California law requires, among other things, that plaintiffs who challenge the legality or constitutionality of gun restrictions must pay the defendant’s attorney's fees if they do not prevail on each and every claim in the lawsuit, even if they win on other claims and win their case as a whole.
California lawmakers modeled the bill after a Texas law that similarly penalizes plaintiffs challenging abortion restriction with ruinous liability for attorney’s fees, and which also allows citizens to sue anyone who helps provide an abortion. This is the provision mimicked by California with respect to guns. Shilpi Agarwal, legal director of the American Civil Liberties Union of Northern California, wrote: “We cannot stand silently by while our leaders escalate an ‘arms race’ of curtailing constitutional rights by setting up bounty-hunting schemes on politically sensitive issues.”
“In addition to the bounty clause, the California law is crafted to actively discourage and punish Second Amendment challenges to state laws,” Jaffe said. “This is grossly offensive to a free society and severely burdens the First Amendment right to petition the government in court for a redress of grievances from a potentially illegal or unconstitutional law. General Bonta was forced to recognize this fact given the principles he stated in a multi-state amicus brief against the Texas law and what he called its ‘one-sided attorney’s fee provision.’ That criticism of the attorney’s fee provision was surely correct, and it was the grossest hypocrisy for Gov. Newsom to propose and sign such an unconstitutional law and for General Bonta to even briefly seek to defend it. We applaud his current change of heart and hope Gov. Newsom reaches a similar epiphany and follows suit.”
Federal courts will have to step in to protect the Constitution if the Governor of California will not.
Federal Judge Roger Benitez, who is adjudicating Miller v. Bonta, recently took the first steps towards doing just that. In a pre-enforcement suit filed by the Firearms Policy Coalition, the Second Amendment Foundation, and other plaintiffs against the California law, the judge recognized that “while the provision entitles a prevailing party to be awarded attorney’s fees and costs, by the statute’s definition, a plaintiff cannot be a prevailing party.”
Judge Benitez disagreed with Attorney General Bonta’s argument that his unwillingness to enforce the fee-shifting provision means the case “is not ripe” and therefore not yet fit for trial.
“This Court takes a different view,” Judge Benitez wrote. “The recent commitment by the Office of the Attorney General is not unequivocal and it is not irrevocable. On the contrary, it evinces an intention to enforce the statute if a somewhat similar Texas statute is found to be constitutionally permissible.”
The judge ruled that the lawsuit will proceed.
Protect The 1st will monitor this case and report the results.