The California Legislature is considering effectively restoring internet privacy regulations in America’s largest state that were adopted for the entire nation under the Obama administration but were repealed in April.

The measure by Assemblyman Ed Chau – Assembly Bill 375  – is meant to counter President Trump’s signing of a resolution passed by congressional Republicans allowing internet service providers to sell most of the information they have on customers’ browsing habits. Chau, a Monterey Park Democrat, would only allow such information to be sold after ISP customers “opt in.”

Large telecommunications firms like AT&T, Comcast, Sprint, T-Mobile and Verizon argue that it’s unfair that Google and Facebook are allowed to capitalize on the browsing histories of their users with targeted ads if the telecom firms don’t have the same rights. Chau joins privacy and consumer advocates in contending it’s wrong to equate how Google and Facebook pay the bills while offering popular free applications with internet service providers which generate tens of billions of dollars in monthly fees from their customers – companies which for years have been among the least popular businesses in the United States.

AB375 would also forbid ISPs from offering lower rates in return for being able to use browsing histories for marketing purposes and would mandate that ISP contracts be written in clear, plain language.

Chau gutted and amended the bill last month. In its original version, it was an uncontroversial measure related to video game arcades that won unanimous Assembly approval in May without a negative vote.

At the news conference unveiling the revised bill, it won the strong support of Richard Holober, executive director of the Consumer Federation of California: “It’s based on a simple demand of the people: Ask me first before you use or share my personal information,” he said, according to a Bay Area News Group report. Representatives of the ACLU and other civil liberties groups also praised the measure.

California hailed for privacy protections in 2015

But while the Bay Area News Group report cast Chau’s bill as reflecting California lawmakers hopes to be a key part of the “Resistance” movement opposing the Trump White House, it’s actually in keeping with the Golden State’s history. In 2015, Wired magazine wrote that California “now has the nation’s best digital privacy laws.”

Chau’s bill could prove popular with the public. In the wake of a series of hacking scandals, internet privacy appears to be an increasingly important priority for Americans. This was borne out by a Consumer Reports survey of 1,007 adults in April that found a steady erosion of confidence in government’s ability to protect their data privacy. Some 65 percent had no faith the government was up to the job – and 92 percent said their browsing histories should only be sold after they “opt in.”

The Los Angeles Times reported that California was the 20th state to consider adopting laws responding to the repeal of the Obama internet privacy rules. The article downplayed fears that this was an area where state law would be superseded by federal law because “communications law has traditionally allowed a division of responsibilities between the state and federal government,” according to a lawyer for the Electronic Frontier Foundation.

The same coalition of Democratic lawmakers and interest groups that worked with Gov. Jerry Brown on Propositions 47 and 57 — which lessen the amount of time convicts must spend behind bars for relatively minor crimes and make it easier for convicts to gain parole, respectively — have a new target: the state’s harsh bail laws.

Brown has yet to sign on to the campaign led by state Sen. Bob Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Oakland. But given that Hertzberg and Bonta’s main arguments have echoes of the arguments made on behalf of Propositions 47 and 57, it may be just a matter of time.

They are highly critical of California’s bail laws, which require suspects to post an average bail of $50,000 — more than five times the national median — before they can be released. In a state with the nation’s highest rate of poverty, these rules are so punitive that they routinely ruin suspects’ lives, Hertzberg and Bonta contend. Unable to afford bail, suspects languish in local jails until their trials start, losing their jobs and their ability to take care of their families, who sometimes lose their housing as a result — even if the suspects are never convicted of crimes.

Hertzberg says he’s finding GOP support for his interest in lowering bail rates. Perhaps his best tool in swaying tough-on-crime Republicans is the evidence that states with much lower, less punitive bail amounts do not have any trouble getting criminal suspects to come to their trials. If California adopted reforms and “risk-assessment” evaluations of the sorts used in Kentucky and New Jersey, Golden State taxpayers could save hundreds of millions of dollars.

A Public Policy Institute of California study backs up these theories. According to the PPIC, in 2014, 50,000 of the 80,000 people held daily in local jails in the state were there because they couldn’t make bail. A key PPIC conclusion: “California’s high rates of pretrial detention have not been associated with lower rates of failure to appear or lower levels of felony rearrests.”

Bail bond industry has fended off previous reform pushes

Given the heavy costs of incarceration, excessive and unnecessary bail would seem to have been low-hanging fruit both for criminal justice reformers and opponents of government waste during the budget wars seen during California’s revenue recession from 2008-2012. But the bail bond industry — with annual state revenue of $2 billion — has fought off reform with heavy lobbying, campaign donations and warnings of the risk to public safety if bail laws are weakened.

This could change in the 2017 session. “Now you have a whole host of groups on both sides of the aisle looking at the cost and fairness of the system,” Hertzberg told the Los Angeles Times.

There is also the possibility that changes in California bail laws could be demanded by state judges. The Equal Justice Under Law group is suing the cities of San Francisco and Sacramento over what the group calls unconstitutional bail policies that create two separate and unequal types of justice systems — a reasonable one for middle-income and wealthy families and a brutally harsh one for poor people.

At a state insurance commission hearing last month, state Insurance Commissioner Dave Jones praised Equal Justice Under Law for raising the issue.

“We shouldn’t have a system where your detention is based on your income. There are allegations that that’s the system we have,” Jones said, according to San Francisco TV station KPIX-5.

Unwilling to be locked out of the gun cabinet by Sacramento Democrats, California residents have pushed gun purchases up to record numbers, leaving latecomers to the trend in the lurch. But as the state Legislature added fresh restrictions, developments in the courts painted a murkier picture that could impact interpretations of federal law around the United States. 

Over the course of the year, lawmakers spearheaded a suite of measures designed to further tighten the screws on the California gun market, which has long been subject to progressive constraints. “The new gun control legislation, six bills signed by Gov. Jerry Brown in July, was a boon to 2016 gun sales already on an upward trend,” as the Press Democrat noted. Voters followed on the action by toughening things further at the ballot box: 

“Nearly one million firearms were purchased in California as of Dec. 9, the most recent state data available, compared to just over 700,000 guns sold in all of 2015. Sales have likely soared beyond one million guns since then. Semiautomatic rifle sales have more than doubled. The California Department of Justice reported 364,643 semiautomatic rifles had been sold by Dec. 9. Only 153,931 rifles were sold last year.”

More “assault weapons”

Shoppers have raced to acquire firearms that won’t be available for legal purchase after the raft of new legislation takes effect. “Rifles with bullet buttons for the quick swap of ammunition magazines and other soon-to-be banned features have also skyrocketed,” the San Jose Mercury News reported. “Statewide sales are up 40 percent by early December. The new gun controls reclassified semi-automatic rifles that have certain features as assault weapons. The features added to the prohibited list include a protruding or forward pistol grip, a thumbhole stock, a folding stock or a flash suppressor.”

Although rifles with bullet buttons will be banned from sale as a result of their reclassification as so-called assault weapons, it will remain legal to own and possess them. 

A separate front

As has been the case with issues such as immigration and minimum wages, California municipalities have in some instances gotten out ahead of the state on gun control. In San Francisco, a federal appeals court recently agreed that an 11-judge panel would “review a challenge to an Alameda County ordinance that restricts the locations of gun stores in March,” according to CBS San Francisco. “The challenge was filed in 2012 by three businessmen who wanted to open a gun and firearms training store in an unincorporated part of San Leandro that was found by county zoning administrators to be within 500 feet of a residential area.”  

More than just Alameda County law could be at stake, officials quickly argued. “Lawyers for Alameda County said 17 other cities and counties in California regulate the locations of commercial gun dealers, including San Francisco — which has a 1,000-foot buffer zone — as well as Oakland and Contra Costa County,” the San Francisco Chronicle observed. “State Attorney General Kamala Harris’ office said a ruling allowing a constitutional challenge to the local restrictions could also imperil state laws regulating commercial gun dealers’ licensing, inspection, monitoring, storage methods and delivery of firearms.” The Alameda regulation was made law in 1998, but the crux of the controversy will implicate a key part of the most recent landmark gun ruling to come down from the nation’s highest court. As the Chronicle noted, the Alameda case “is one of many pending in federal courts over the meaning of the 2008 Supreme Court decision that declared a constitutional right to possess firearms at home for self-defense.”

But in recent years, a variety of criminal-justice reforms have been pushing the pendulum back in the other direction, albeit in a relatively quiet way. In 2014, California voters approved Proposition 47, which reduced some crimes from felonies to misdemeanors. Furthermore, Gov. Jerry Brown succeeded in implementing his “realignment” plan that moved many state prisoners to county jails.

Crime has gone up in major California cities since then and it’s not clear how much those measures contributed to the problem. But it doesn’t appear the recent uptick has slowed the push for reform.

In the Nov. 8 general election, voters rejected an effort to repeal the death penalty and, by a close margin, appear to have approved a measure designed to speed up executions. Nevertheless, voters also approved Proposition 57 by a wide margin. As the Legislative Analyst’s Office explains, the measure will “increase the number of inmates eligible for parole consideration” and make “changes to state law to require that youths have a hearing in juvenile court before they can be transferred to adult court.” The marijuana-legalization measure voters also approved would enable judges to expunge some people’s marijuana convictions.

The ballot box isn’t the only place where reform is moving forward. When the Legislature reconvenes in December, some legislators will almost certainly introduce bills that would reform the state’s system of “money bail.” It’s part of a nationwide reform movement headed by groups such as the American Civil Liberties Union.

Many are unfamiliar with the system by which criminal defendants post a bond that allows them to avoid jail time as their case winds its way through the system. A judge will set a bail amount that reflects the severity of the alleged crime and the defendant’s perceived flight risk. The defendant can post the full amount, which would be forfeited if he or she doesn’t show up at the appointed court date. Those who lack the resources also can go to a bail bonds company and pay a nonrefundable percentage (commonly 10 percent) of the bail. The bail bondsman posts the full amount and assumes liability to assure the defendant shows up for trial.

The bail bonds industry argues the system works well as it is designed. “When it comes to guaranteeing appearance at court, surety bail outperforms every form of public sector pretrial release and own recognizance release as well,” according to the American Bail Coalition. The group, supported by bail-bonds companies, argues the current system also offers a cost-effective approach that costs the courts nothing for to supervise 2 million released defendants each year. Bail defenders also point to the taxes paid by the bail industry – and cite studies showing cost savings to counties.

But critics of the system, including the chief justice of the California Supreme Court, have raised some concerns. “Over time the discussion about bail (has become): Does it really serve its purpose of keeping people safe? Because if you’re wealthy and you commit a heinous crime, you can make bail,” said Chief Justice Tani Cantil-Sakauye, in a March 2016 editorial board meeting with the Sacramento Bee. The problem, as the Bee and others have raised, is that poor people often don’t have the financial wherewithal to post bail. That forces them to stay in jail while wealthier people get to go home on their own recognizance and await trial. The chief justice has created a task force to review the issue.

Critics say the bail situation also encourages poor people to accept plea bargains, given that months in jail — and our court system moves very slowly — could cause their lives to collapse. If they are in jail rather than working, they lose their apartments and their possessions. Their kids are often taken by Child Protective Services. It’s a problem not just for the poor people who are affected, but also for the state’s perpetually overcrowded jail system. More than 60 percent of people in California jails have not yet been sentenced for any crime.

As the nonpartisan Public Policy Institute of California reports: “From 2000 to 2009 (the latest comprehensive data available for felony cases), California’s large urban counties relied on pretrial detention to a much greater extent than did large urban counties elsewhere in the United States. … Part of the difference in detention rates may be attributed to California’s higher bail amounts. The median bail amount in California ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000). Research has demonstrated that pretrial release rates generally decline as bail amounts increase.”

In July, some Democratic state legislators held discussions in Oakland on the matter. San Francisco District Attorney George Gascón said that “at least 29 jurisdictions have developed ‘risk-assessment’ models, which allow court and pretrial staff to use data and other evidence to determine whether a person should be released,” according to a news report. That’s a likely model for coming proposals: shifting toward a system based more on judicial risk assessments than on the ability to post a bond. Assemblyman Rob Bonta, D-Oakland, announced his intent to introduce legislation when the Legislature is back in session.

The U.S. Justice Department also has weighed in on behalf of bail reform in a Georgia case. The department argues that “bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release” violate the 14th Amendment of the U.S. Constitution. However, a U.S. district judge rejected a similar argument in a Sacramento County case.

“The state’s interest in ensuring criminal defendants appear for trial dates is a legitimate one, and detaining individuals before their arraignment is rationally related to that legitimate interest,” U.S. District Judge Troy Nunley wrote last month in the case. As the San Francisco Chronicle reported, “Nunley refused, at least for now, to dismiss a claim that the bail system is unfairly punitive.” Nunley is an appointee of President Barack Obama.

Other similar cases are moving forward across the country, including in San Francisco. There, Public Defender Jeff Adachi commissioned a study finding that black inmates are more likely to be kept in jail awaiting trial than their white inmates facing similar charges. Clearly, this issue will be heating up in the coming years, with a new Republican administration throwing more uncertainty into the situation, given the role the Obama Justice Department has played in the matter.

Critics also note the current system isn’t cost free, and that some states have moved to a risk-assessment system. “Risk assessment detention not only stems some of the unjustified inequalities on the impoverished but it also has proven to save the state money and actually prevent further crime by trying to keep the accused employed and out of trouble,” argues my R Street Institute colleague, Arthur Rizer, director of criminal justice policy. The current system, he adds, ends up “bloating our already bloated jails.”

Not all reformers look to eliminate money bail. Various compromises could emerge, including measures that eliminate bail for certain cases, or efforts to create easier ways for poor defendants to afford bonds. This is an emerging reform movement, so we’ve yet to see the kind of compromises that might emerge in the California Legislature. 

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

A new government-run retirement program: On Thursday, Gov. Brown signed Senate Bill 1234, which gives legislative approval to the state’s continuing efforts to create a new government-run retirement program for private-sector employees. Once it is up and running, private employers (with five or more employees) will be required to offer this program, whereby 3 percent of each employees’ earnings will be deducted and invested by a state-selected investment group – possibly, the California Public Employees’ Retirement System (CalPERS).

Employees can opt out. The details are not yet certain, but the goal is to invest the money in a low-risk investment tied to the Treasury bond. Supporters say the law protects taxpayers from incurring more than minimal costs, but critics insist the program could grow and change in ensuing years – and that there’s no way of creating a massive new government program without imposing risks on the state budget.

The idea, which is being pitched in other states too, grew out of union activism. Several years ago, when publicity over unfunded public-pension liabilities began creating pressure for pension reform, union allies wanted to come up with a “positive” rebuttal to all those news stories about six-figure pensions and pension-spiking gimmicks. This idea is designed help private workers.

Putting limits on ‘policing for profit’: One of the most controversial policing strategies in recent years has been “civil asset forfeiture.” Born out of the nation’s drug war in the 1980s, forfeiture was designed to help police agencies crack down on drug kingpins by allowing departments to grab the cash, cars and properties gained through their illegal activities. But like many government programs, asset forfeiture morphed into something its creators never envisioned.

Two of the men who helped create the program in the U.S. Department of Justice, John Yoder and Brad Cates, wrote an op-ed in The Washington Post in 2014 pointing to the corruption engendered by this process: “Law enforcement agents and prosecutors began using seized cash and property to fund their operations, supplanting general tax revenue, and this led to the most extreme abuses: law enforcement efforts based upon what cash and property they could seize to fund themselves, rather than on an even-handed effort to enforce the law.”

Basically, police agencies came to depend on the revenue and they distorted their law-enforcement priorities based on the chance to grab more cash. There’s no due process here, given that police agencies file suit against the property itself, alleging it was involved in a drug crime. No conviction is necessary. California had previously passed reforms that mostly required a conviction, but police agencies got around that by partnering with the feds (and operating under looser federal standards) and then splitting the seized property.

Senate Bill 443 was killed last year after lobbying efforts by police chiefs and other law-enforcement agencies. But a fairly recent amendment – allowing cops to still take large amounts of cash without a conviction, but limiting smaller amounts of cash and property takings – eliminated most opposition from law enforcement. The new law is meaningful, and one of the more substantive compromises to take place in Sacramento this year.

Giving the terminally ill the right to try: One of the more significant “freedom” battles this year was over the so-called “right to try” – i.e., the ability of terminally ill patients to try experimental drug treatments that have yet to gain final approval from the Food and Drug Administration. Similar measures have been approved by 31 other states.

The Goldwater Institute, a Phoenix-based free-market think tank, has been championing these measures across the country. As Goldwater explains: “The FDA … often stands between the patients and the treatments that may alleviate their symptoms or provide a cure. To access these treatments, patients must either go through a lengthy FDA exemption process or wait for the treatments to receive FDA approval, which can take a decade or more and cost hundreds of millions of dollars.”

The California law, Assembly Bill 1668, passed overwhelmingly. According to the official bill analysis, it authorizes drug manufacturers to make investigational treatment available “to a patient with a serious or immediately life-threatening disease, when that patient has considered all other treatment options currently approved by the FDA, has been unable to participate in a relevant clinical trial, and for whom the investigational drug has been recommended by the patient’s primary physician and a consulting physician.”

Allowing felons to vote: One of the more controversial new laws, Assembly Bill 2466 by Assemblywoman Shirley Weber, D-San Diego, allows felons who are serving their sentence in county jails to vote. The measure was opposed by law-enforcement groups, but Weber argued it would stop discrimination in voting and make it less likely that prisoners would commit new offenses.

“Civic participation can be a critical component of re-entry and has been linked to reduced recidivism,” Weber said, according to a Los Angeles Times report. “For me, this bill is not about second chances, but about maintaining the integrity of elections,” said Sen. Pat Bates, R-Laguna Niguel, in a statement. “Close elections, especially at the local level, could now turn on a handful of ballots cast by people in jail. This new law is bad for democracy and will further erode trust in government.”

Putting self-driving cars on the road: Autonomous vehicle technology has been advancing rapidly, and California is, not surprisingly, ground zero for the development of this important new technology. Gov. Brown signed a bill Thursday “that for the first time allows testing on public roads of self-driving vehicles with no steering wheels, brake pedals or accelerators,” according to a San Jose Mercury News article. “A human driver as backup is not required, but the vehicles will be limited to speeds of less than 35 mph.”

Assembly Bill 1592 itself is rather modest. It provides two spots for such testing – in a San Ramon business park and at the former Concord Naval Weapons Station. And Friday, the California Department of Motor Vehicles released new regulations that are far friendlier toward self-driving cars than the DMV’s previous regulations. So while the new law itself isn’t particularly significant, the state’s new legislative and regulatory approach certainly is. If that approach continues, we’ll be seeing rapid expansion of autonomous vehicles here.

Greenlighting granny flats: The governor’s signing of Senate Bill 1069 shows increasing bipartisan understanding of the state’s skyrocketing home prices. The bill would relax standards for creating ADUs (accessory dwelling units), better known as granny flats.

“Eliminating barriers to ADU construction is a common-sense, cost-effective approach that will permit homeowners to share empty rooms in their homes and property, add incomes to meet family budgets, and make good use of the property in the Bay Area and across California while easing the housing crisis,” according to the bill analysis’ summary of the author’s arguments. The bill embraces a regulatory approach that could be tried with other types of housing.

Steven Greenhut is Western region director for the R Street Institute. He is based in Sacramento. Write to him at sgreenhut@rstreet.org.

Rarely the subject of entertainment industry buzz, Gov. Jerry Brown sparked outrage and confusion among First Amendment advocates by a new law intended to protect actors’ privacy online.

“Actors who don’t want casting directors and fans knowing their age can conceal their birthday information on subscription-based entertainment sites like the Internet Movie Database [IMDb] under a new California law,” the Wall Street Journal reported. “Supporters of the bill, including the film industry’s largest labor union, said it would help curb age-based discrimination for actors and other artists toiling in Hollywood. The measure passed both chambers by wide margins in August,” the paper added. 

Union support

SAG-AFTRA President Gabrielle Carteris, whose organization had begun the push for legislation during the term of the organization’s previous president, was quick to laud the governor’s decision to sign. “Gov. Jerry Brown today stood with thousands of film and television professionals and concerned Californians who urged him to sign AB1687, a California law that will help prevent age discrimination in film and television casting and hiring,” she said, according to Yahoo TV.

AB1687 was authored by 30-year-old first-term Assemblyman Ian Calderon, D-Whittier, who told the LA Weekly his goal was to shelter newcomers to the film and television industry from having their age revealed publicly against their consent. “Even though it is against both federal and state law, age discrimination persists in the entertainment industry,” he said. “AB1687 provides the necessary tools to remove age information from online profiles on employment referral websites to help prevent this type of discrimination.” 

Legal questions

But some respected legal experts have cast doubt on the constitutionality of the law. “This raises serious First Amendment problems,” Irwin Chemerinsky, dean of UC Irvine’s School of Law, told the Weekly. “The law is clear that there is a First Amendment right to publish truthful information that is lawfully obtained. Holding someone liable for publishing accurate facts likely violates the First Amendment.” One question for free speech activists, however, has gone as yet unanswered: who would sue? Any plaintiff would have to have standing to bring suit, including celebrities or perhaps less well-known actors affected by the law. 

In response to the criticism, Calderon tried to emphasize that AB1687 had been closely written to fit a specific segment of the internet. “Limiting the bill to only subscribers makes it clear that the bill advances an important government interest,” he told The Hollywood Reporter, “that of reducing age discrimination in a manner that is substantially related to that interest and no more extensive than necessary to achieve that interest.” 

Wary media

Critics have not been convinced. Michael Beckerman, CEO of the Internet Association, warned previously in an opinion column at THR that “[r]equiring the removal of factually accurate age information across websites suppresses free speech. This is not a question of preventing salacious rumors; rather it is about the right to present basic facts that live in the public domain. Displaying such information isn’t a form of discrimination, and internet companies should not be punished for how people use public data.”

Media companies with an offline as well as an online presence have also reacted with wariness. “Opponents of the bill note that even though the law is narrowly tailored to restrict the speech of just a few websites, it’s precisely this narrow language that makes the law useless to begin with,” Gizmodo observed. “If you censor IMDB, why not censor the Los Angeles Times?” Perhaps pondering the same question, the Times editorial board weighed in against the law: “Forcing public sites to remove information about someone at the person’s behest sets a troubling precedent for deleting all kinds of information that’s in the public record, but that someone might not want the public to know,” wrote the board. 

Gov. Jerry Brown’s decision

But attempts to block the law have never stopped. Backers of a lawsuit seeking to scrap the measure may have lost the battle last week in a Riverside County courtroom, but they appear to still have a chance to win the war.

In refusing a request for an injunction to put the law on hold, Superior Court Judge Daniel A. Ottolia cited the safeguards touted by its advocates: the requirement that the patient establish his or her mental competence; that the patient have statements from two medical doctors that he or she will die within six months; and that the patient and only the patient can administer the lethal drugs.

Nevertheless, Ottolia let the lawsuit — technically against Riverside County District Attorney Mike Hestrin as the local symbol of the state’s legal system — proceed. The judge concluded that the lawsuit raised enough serious issues that it should not be dismissed.

Is psychiatric evaluation needed, not competency check?

Plaintiffs include the American Academy of Medical Ethics, the Christian Medical and Dental Society, and six Riverside-area doctors. The argument they made that appeared to resonate the most with Ottolia is that the End of Life Option Act is at odds with the clear intent and plain meaning of another state law meant to provide emergency help to people who are a physical danger to themselves. That law specifies that people with suicidal impulses get professional treatment. A mental competence check-up does not meet this test, according to the plaintiffs’ attorney, Alexandra Snyder, who belongs to  the Life Legal Defense Foundation, which is based in Napa.

The plaintiffs’ brief in the case noted that California law holds that helping in or encouraging a suicide is a felony and questions how a doctor can legally counsel someone — even if they are dying — to consider suicide. 

The brief also contends the End of Life Option Act does an end run around laws meant to protect ailing older people from elder abuse.

Defenders of the law expressed disappointment that the lawsuit was not thrown out and said that Oregon’s history of allowing “death with dignity” since 1997 had been marked by none of the “hypothetical” abuses warned of by the plaintiffs.

California is the fifth state with such a law.

Besides Monning, the law was also co-sponsored by Sen. Lois Wolk, D-Davis, and Assemblywoman Susan Eggman, D-Stockton. Their legislation was modeled on the Oregon law.

Gun rights groups have turned up the heat on Sacramento’s newest firearms restrictions, mounting an effort to repeal seven fresh laws through the ballot this election year. 

“The group ‘Veto Gunmageddon’ needs to collect 360,000 signatures for each measure by the end of the month to get them before voters in November, KCBS San Francisco reported. An uphill battle awaits. “Lawmakers passed a dozen gun control bills in June, seven of which Brown signed into law, including legislation requiring background checks for ammunition purchases and a ban on possession of magazines that hold more than 10 rounds,” as the San Jose Mercury News observed. Those provisions, the paper added, were identical to proposals Lt. Gov. Gavin Newsom touted independently in his early-bird bid to succeed Gov. Jerry Brown in 2018.

Political powder keg

Although Democratic lawmakers irked by the redundancy have won out, analysts have speculated that Newsom could wind up benefiting most from politicking the Gunmageddon ordeal. “He will be able to say gun restrictions are under attack and that it’s more important than ever to pass my ballot measure,” Loyola Law School’s Jessica Levinson told the Mercury News.

What’s more, Newsom and his allies have already stockpiled a huge amount of cash relative to opponents of the Proposition 63 ballot measure. Prop. 63 “would ban possession of high-capacity ammunition magazines, require background checks for Californians buying bullets, create a process for getting felons to relinquish firearms and mandate reporting of lost or stolen guns,” the Los Angeles Times reported. “Newsom’s Safety for All Committee reported it has raised $3.8 million so far, compared with $467,000 raised by two committees opposing” Prop. 63.

Supreme struggles

The scramble to settle the fate of the state’s gun laws in the court of popular opinion has played out against the backdrop of a very different kind of legal battle — one where the public’s voice could count for nearly nothing. Gun activists succeeded in pursuing a controversial case to the door of the U.S. Supreme Court. Although judges recently shot down their suit against the state of California, which requires a license for concealed carry outside one’s home, the groups vowed to seek a final decision from the nation’s highest court. “The Ninth U.S. Circuit Court of Appeals in San Francisco upheld the law in June, ruling 7-4 that there is no constitutional right to carry concealed weapons in public,” the San Francisco Chronicle recalled. “Opponents sought a rehearing before the entire appeals court, but the court said […] that the request had failed to win a majority among its 28 active judges. No vote total was announced.”

“The century-old state law requires handgun owners to obtain a permit from a local law enforcement agency before they can legally pack their weapons in public. The permits are virtually unavailable to anyone except police and security guards in most metropolitan areas, but are issued in most rural and inland areas to any adult who asserts a need for self-defense and does not have a disqualifying criminal record.”

A rush to bear arms

Californians have been loading up on firearms this year. At their current pace, Golden Staters will cross the million gun threshold by January. “The soaring gun sale totals — which show 554,203 firearms sales through late July — come in the wake of mass shootings in Orlando and Dallas, followed by calls for gun control legislation,” Southern California Public Radio noted, citing new data obtained from the Dealer Record of Sales, a gun tracking system run by the state’s Department of Justice. “The system shows gun sales on track to surpass 2015 nearly everywhere in the state,” the station added, although “the percentage of households in the U.S. with guns in them has been falling for decades.”

The Cato Institute, a libertarian think tank, in its “Freedom in the 50 States” report divided liberty into three categories: personal, fiscal and regulatory. And while the Golden State ranked high (16th) in personal liberty, it was near the bottom in fiscal (46th) and regulatory (48th).

Overall, New Hampshire ranked the highest. New York was the only state with a lower overall liberty score than California.

For context, Cato defines libertarianism, in part, as “the belief that each person has the right to live his life as he chooses so long as he respects the equal rights of others.” And while the data used to compile the score gives a good snapshot of life in the state, many of the metrics used are sure to be viewed differently from person to person.

For example, gun “rights” account for more than 3 percent of the total score — and while the study sees gun-control measures as a threat to liberty, many Californians view restrictions on firearm usage and access as a necessity. But the study’s guiding principal is based on how governmental policies and regulations affect an individual’s ability to make his or her own decisions.

“In the American system, even ‘benefit to others’ cannot justify trampling on certain freedoms,” wrote the study’s authors. “Books may not be banned simply because the ideas and arguments they present offend some readers. Racial segregation would be unjustified even in the unlikely event it were somehow considered efficient. Likewise, state and local governments ought to respect basic rights and liberties, such as the right to practice an honest trade or the right to make lifetime partnership contracts, whether or not respecting these rights ‘maximizes utility.'”

Personal freedom

The most heavily weighted category in personal liberty is incarceration, where California ranks 12th — a steady improvement since 2010 as incarceration and drug arrest rates have fallen. 

California was tied for first with many states for marriage equality and ranked high in cannabis and alcohol liberty, but middle of the road in tobacco restrictions. The state ranked low in terms of school choice under the belief that taxpayers paying for public schools should have some freedom to choose where their children go.

Fiscal freedom 

As for fiscal freedom, California has relatively high state taxes and average local taxes, which, when combined, account for 10.8 percent of personal income. California ranks near the bottom (40th) for government debt, which comes to 22.8 percent of personal income.

Meanwhile, government employment in the state is actually well below the national average.

Regulatory Freedom

Regulatory freedom is where California scores the worst of the three categories. Land use is the highest-weighted category in regulatory policy, and it includes eminent domain rules and renewable portfolio standards for power companies, as well as smaller factors.

Labor law was also weighted heavily in regulatory policy, like right-to-work laws, minimum wage, mandated paid family leave and worker’s compensation as it relates to federal law. California ranks 50th in this category.

Recommendations

The study makes several suggestions on how to improve the state’s freedom score, which are included here:

• Fiscal: Cut spending in the areas of general administration, housing and community development, and employee retirement, where it exceeds the national average, and use the proceeds to reduce indebtedness.
• Regulatory: Eliminate the California Coastal Commission’s authority to regulate private land use. Instead, give it the authority to overturn local zoning rules that undermine sound environmental objectives, such as housing density.
• Personal: Expand legal gambling. California’s political culture is unlikely to have many qualms about gaming, but legalizing nontribal casinos would require a constitutional amendment. If California’s gambling regime rose, consistently with that culture, to a standard deviation better than the national average, it would rise from 16th to 9th on personal freedom.

Asset forfeiture is the practice by which police agencies grab the assets – cash, cars, boats, homes – of suspected criminals. Designed originally to fight drug kingpins, asset forfeiture has morphed into a means by which agencies bolster their budgets. The overwhelming percentage of forfeiture cases involve people who have not been convicted or even accused of a crime.

In one legal case, an agency took away a person’s car because it was used in the commission of a crime, even though the owner wasn’t involved in the crime.

Senate Bill 443 by Sen. Holly Mitchell, D-Los Angeles, was designed to stop the types of abuses mentioned above, without hindering the ability of police agencies to grab the illicit proceeds of drug dealers. It mainly requires police to gain a conviction before taking a person’s property. The bill was moving ahead with strong bipartisan support last year, but then law-enforcement lobbyists derailed it the week before a final Assembly vote. They argued primarily that the reforms would cost their agencies a significant amount of money that’s used for crime fighting and that passage of the reform would stifle their ability to target drug kingpins.

Mitchell revived the bill this year and recently hammered out a compromise. The California Police Chiefs Association and other law-enforcement groups dropped their opposition. In a statement, the chiefs’ association lauded “a compromise that enhances safeguards on Californians’ rights, while ensuring law enforcement has the tools necessary to combat the gangs and drug traffickers damaging our communities.” Officials with the American Civil Liberties Union of California seemed equally pleased with the compromise.

MORE ON THE ISSUE:

Diverse coalition of supporters

Broad overview of asset forfeiture

Legislative compromise on the issue

California actually imposes some of the toughest restrictions on asset forfeiture in the nation. Among other restrictions, the law requires a conviction, for instance, for forfeiture when the value of the property is under $25,000. But problems remain because state and local agencies circumvent the state’s law by partnering with federal agencies under a program known as “equitable sharing.” The partnership lets them operate under looser federal standards – and then the locals split the forfeiture proceeds with the federal agencies.

The bill – in its original and amended form – limits the ability of California agencies to do an end run around state law. “The bill would prohibit state or local law enforcement agencies from transferring seized property to a federal agency seeking adoption by the federal agency of the seized property,” according to SB443’s official summary. “The bill would further prohibit state or local agencies from receiving an equitable share from a federal agency of specified seized property if a conviction for the underlying offenses is not obtained … .” The local and state agencies could still participate in joint projects with the federal government and could still receive proceeds – but only if they first secured a criminal conviction in the underlying case.

Under the compromise, however, state officials would not need a conviction to seize “cash or negotiable instruments” above $40,000, whereas the original bill would have required a conviction for all cash seizures. Eighty percent of cash seizures are for less than $40,000, so the compromise protects the vast majority of people who have their cash seized. The average seizure in California is slightly above $5,000. Police agencies say the larger cash amounts usually are the result of drug deals, so the agreement makes sense to both sides. Furthermore, the bill still requires a conviction for the taking of property valued at more than $40,000, such as houses or cars.

That latter point is significant. In one highly publicized case in Anaheim, officials tried to take a commercial building valued at $1.5 million from a couple after one of its tenants was accused of selling $37 in marijuana. The authorities dropped that forfeiture case amid bad publicity, but SB443 is designed to halt those types of takings – where, say, a valuable property is seized simply because a drug crime might have been committed on the premises. The legislation also requires additional reporting from agencies that use the forfeiture process.

The goal is to stop what critics refer to as “policing for profit.” A study from the Drug Policy Alliance reported that some cities “were found to be prioritizing asset forfeiture over general public safety concerns, like response times and sufficient patrol officers.” The report referred to “multiple instances of cash grabs by law enforcement being incentivized over deterring drug sales, wherein police wait until a drug sale concludes and then seize the cash proceeds of the sale rather than the drugs, as drugs must be destroyed and are of no monetary value to law enforcement.”

As Reason’s Scott Shackford pointed out, “As California cities dealt with drops in revenue during the recession over the past decade … participation in the federal program skyrocketed.” But reformers say law enforcement priorities should be shaped by public-safety concerns rather than monetary goals.

Presumably, the final deal will still let agencies grab the dollars of real drug kingpins, while leaving the rest of our property alone – or at least requiring that residents are convicted of wrongdoing before losing it. Both sides believe the right balance has been struck. We’ll see if that’s enough to move the bill through the rest of the legislative process and secure the governor’s signature, but this was a major victory reformers.

Steven Greenhut is Western region director for the R Street Institute. He is based in Sacramento. Write to him at sgreenhut@rstreet.org.