Led by the Firearms Policy Coalition, gun groups say the Ninth Circuit Court of Appeals erred in its decision to uphold San Francisco’s safe-storage law.

Under the ordinance implemented in 2007, the city “requires all residents who keep handguns in their homes for self-defense to stow them away in a lock box or disable them with a trigger lock whenever they are not physically carrying them on their persons.”

The groups referenced the 2007 case before the U.S. Supreme Court, District of Columbia vs. Heller, which upheld an individual right to “keep and bear arms” in the Second Amendment.

“The court should grant certiorari to reaffirm key principles concerning the scope and substance of the Second Amendment,” the groups wrote in their amicus brief. “Many lower courts have taken great pains to avoid the consequences of these decisions — defying a fundamental constitutional limitation this court made explicit in Heller. … At the forefront of this resistance is the lower courts’ refusal to follow this court’s command, made in Heller and reiterated in McDonald, that Second Amendment claims are not to be judged by unrestrained judicial interest balancing.”

Gun groups point to Heller decision

Last March, a unanimous three-judge panel of the Ninth Circuit Court of Appeals upheld the local restrictions on gun ownership, finding that gun storage mandates save lives.

“The record contains ample evidence that storing handguns in a locked container reduces the risk of both accidental and intentional handgun-related deaths, including suicide,” Judge Sandra Ikuta wrote in the ruling for the panel. She added that gun safes “may be readily accessed in case of an emergency.”

Second Amendment groups have focused their arguments on the legal precedents, arguing that San Francisco’s regulations contradict the Heller decision, as well as McDonald vs. Chicago in 2009, which held the Second Amendment also applied to state laws.

“The Ninth Circuit’s lamentable decision in Jackson shows why it is the most overturned circuit court in the nation,” said Firearms Policy Coalition President Brandon Combs, one of the state’s leading gun rights activists. “The Supreme Court should take up this case not only to correct a clear wrong, but to stem the tide of judicial resistance in recognizing the right to keep and bear arms as fundamental Constitutional rights.”

He added, “The Second Amendment doesn’t protect second-class rights, and it’s time for courts to take the enumerated right to keep and bear arms at least as seriously as they do unenumerated rights like abortion.”

Other gun groups that have joined the Firearms Policy Coalition in filing the friend-of-the-court brief include the Second Amendment Foundation, the Calguns Foundation, Firearms Policy Foundation and California Association of Federal Firearms Licensees.

San Francisco City Attorney has “faith in the judiciary”

Six San Francisco residents, with the help of the National Rifle Association and the San Francisco Veteran Police Officers Association, first challenged the safe storage law in 2009. The case underscores the lengthy process of seeing gun-control restrictions ultimately become established law.  Long after the press conferences and publicity stunts, government attorneys struggle to defend the restrictions.

“I have complete faith in the judiciary to affirm our position that San Francisco’s gun safety laws protect the public in a manner that’s both reasonable and constitutional,” San Francisco City Attorney Dennis Herrera said in a 2013 press release on the case. “San Francisco has been a top target of the NRA for many years, and I’m proud of the efforts we’ve made to aggressively battle these legal challenges, and protect sensible gun laws that can save lives.”

As CalWatchdog.com has previously noted, the nation’s leading Second Amendment advocacy groups have begun to shift their efforts from the California Legislature to the courthouse. Since 2009, The Calguns Foundation has found great success in its legal challenges, which have targeted the implementation of concealed weapon permits and mandatory waiting periods.

A copy of the brief in the case of Espanola Jackson, et al. vs. City and County of San Francisco, et al., can be viewed at the Firearms Policy Coalition’s website.

On Monday, four California gun dealers filed a federal lawsuit challenging a nearly century-old law that bans the display of handguns in store advertisements.

Under state law, it’s perfectly legal for a gun-control supporter to use images of handguns in a protest outside of a gun store. But if a gun store were to put the same sign in its store window, it would be a violation of state law.

States California Civil Code § 26820, which was first enacted in 1923:

“No handgun or imitation handgun, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside.”

This isn’t a case of hypothetical free speech scenarios. Earlier this year, a Central Valley gun dealer was cited by the California Department of Justice for breaking the law by displaying a handgun in its window. Tracy Rifle and Pistol, the San Joaquin County firearm retailer that was cited by the Department of Justice in September, points out the obvious content-based speech restriction.

“I run one of the most heavily regulated and inspected businesses in existence, but it’s still illegal for me to show customers that I sell handguns until after they walk in the door,” said Michael Baryla, the owner of Tracy Rifle and Pistol. “That’s about as silly a law as you could imagine, even here in California.”

Gun stores speak out

One Fresno gun dealer and plaintiff in the case, PRK Arms, told KMPH Fox 26 News’ Erika Cervantes that the lack of proper signage can be confusing for customers.

“We actually get quite a few calls throughout the week from people asking if we sell handguns,” Elijah Smedley, the store’s general manager, told KMPH. “If you look around, there’s plenty of them here. The product itself is not illegal in any way, so why should advertising be illegal?”

Smedley pointed out the obvious double standard.

“You can advertise for just about anything else that you sell,” he said. “There’s grow shops, there’s dirty magazine stores, there’s all kinds of things out there that you can advertise for the exact item you’re selling. Yet, for some reason, handguns are taboo.”

First Amendment scholars join case

Eugene Volokh, a UCLA law professor who is considered one of the country’s foremost experts on the First Amendment, has joined the case on behalf of the plaintiffs.

“The government generally may not ban advertising of lawful products — indeed, of constitutionally protected products — on the grounds that such advertising is offensive, or stimulates consumer interest in such products,” Volokh explained on his legal blog at the Washington Post.

In addition to a double standard for gun owners and gun control advocates, there’s a double standard for weapons. In California, it’s legal for gun dealers to display images of shotguns and rifles on their premises, but illegal to display an image of a handgun. The multiple content-based restriction has helped the gun dealers enlist other constitutional experts in the case, including top-notch attorneys Bradley Benbrook and Stephen Duvernay.

“The First Amendment prevents the government from telling businesses it disfavors that they can’t engage in truthful advertising,” said Bradley Benbrook, lead counsel for the plaintiffs. “This case follows a long line of Supreme Court cases protecting such disfavored businesses from that type of censorship.”

A spokesman for Attorney General Kamala Harris, the lead defendant in the case, declined to comment about it to CalWatchdog.com.

State’s clever gun rights advocates target vulnerable laws

The lawsuit is only the latest effort in a series of savvy moves by the state’s leading Second Amendment advocates. Unable to slow the endless series of new gun-control bills proposed each legislative session, the California Association of Federal Firearm Licensees, Calguns Foundation and the Second Amendment Foundation have turned to lawsuits and public-records request to overturn laws. And when the mainstream media ignore their achievements, CA-FFL shares its victories directly with its nearly 40,000 Facebook fans.

In August, a federal judge ruled that California’s 10-day waiting period on gun sales violated the Second Amendment rights of certain groups of gun owners. The plaintiffs in the case were represented by Calguns Foundation and Second Amendment Foundation.

The group has also exploited the state’s public records law to obtain information about the uneven administration of conceal-carry permits. In 2011, Calguns Foundation believed then-San Francisco Sheriff Michael Hennessey was failing to comply with California’s conceal-carry laws. Under state law, all agencies that have the authority to issue firearm permits must create and publish a written policy on the process. Thanks to a public records request, the group proved that the sheriff had selectively enforced the law and awarded permits to politically-connected applicants.

San Francisco wasn’t an isolated case, but a part of Calguns’ program to enforce compliance with the law. A similar 2010 request filed by Calguns with the Ventura County sheriff’s office was denied. Calguns was forced to file a lawsuit, which it won.

Whenever it can, California’s gun-rights advocates are looking to form broad-based political coalitions.

“Since we started our Carry License Initiative, Calguns Foundation has had the great pleasure of supporting and, where possible, collaborating with fantastic open government groups like the First Amendment Coalition and CalAware on matters relating to public records and meetings,” said Brandon Combs, one of the masterminds behind the effective political strategy.

A copy of the complaint can be viewed here.

Earlier this month, a state senator, who has expressed support for racial profiling of ammunition sales, introduced legislation to require background checks and gun registration for weapons assembled at home. Senate Bill 808, authored by Sen. Kevin de Leon, D-Los Angeles, would require anyone who makes or assembles a firearm to first apply to the Department of Justice for a unique serial number or other identifying mark.

If recent gun-control battles are any indication, the bill's strongest challenge won't come during the legislative process. Instead, it can expect to face a serious challenge from the nation's leading Second Amendment advocacy groups that are taking their cause to court.

Two legal challenges to 'micro-stamping' law

This strategic shift from the legislature to the courthouse is evident with two legal challenges to a seven-year-old California law that requires “micro-stamping” of all semi-automatic pistols sold in the state.

Back in 2007, then-Gov. Arnold Schwarzenegger signed into law the country's first micro-stamping requirement. Assembly Bill 1471, authored by Assemblyman Mike Feuer, D-Los Angeles, required all new semi-automatic pistols sold in the state to use advanced laser technology to imprint the gun’s make, model and serial number.

However, the mandate was slated to take effect once micro-stamping technology became available from more than one manufacturer unrestricted by patents. On May 17, 2013, Attorney General Kamala D. Harris provided the necessary certification.

Earlier this month, the National Shooting Sports Foundation and the Sporting Arms and Ammunition Manufacturers’ Institute, representing all the major firearm manufacturers nationwide, filed suit in Fresno Superior Court challenging the law. The gun groups say it relies on unproven and unreliable micro-stamping technology.

“There is no existing micro-stamping technology that will reliably, consistently and legibly imprint the required identifying information by a semiautomatic handgun on the ammunition it fires,” said Lawrence G. Keane, NSSF senior vice president and general counsel. “Manufacturers can not comply with a law the provisions of which are invalid, that cannot be enforced and that will not contribute to improving public safety.”

Peña v. Cid a challenge to gun roster

The challenge in state court is matched by a lawsuit in federal court that seeks to invalidate California's handgun roster.

Last June, attorneys for the Calguns Foundation and Second Amendment Foundation filed an amended complaint in the federal civil rights case Peña v. Cid to include a challenge to California’s handgun micro-stamping regulations. The original lawsuit filed in 2009 contended that the roster regulations constitute an arbitrary list of “acceptable” handgun models approved by the state.

“California's attempt to limit the availability of handguns to her citizens is so broad that it makes it impossible to purchase the revolver that the U.S. Supreme Court has specifically ruled had to be registered to Dick Heller, whose case struck down the District of Columbia’s handgun ban and affirmed that the Second Amendment protects an individual civil right,” said Gene Hoffman, chairman of The Calguns Foundation. “Now that the state requires micro-stamping, it’s unlikely any new make or model of pistol will be added — making it even clearer that this is an incremental ban on firearms.”

Hoffman is optimistic that his group's challenge will be upheld based on oral arguments at the December court hearing.

“In lingering a bit beyond the one-hour mark, it was clear that the court had a full picture of the briefing and the record as well as a clear understanding of the issues and gravity of the case,” Hoffman, a founder of the Calguns Foundation, wrote based on his observations of the hearing.

Calguns Foundation wins suit against L.A. County sheriff

Calguns Foundation, in particular, has found repeated success in court. Last week, a judge sided with Calguns against the Los Angeles County Sheriff’s Department. The lawsuit accused the Sheriff’s Department of violating state law by forcing citizens to first obtain permission from a local police chief before applying for a concealed weapon permit. In her ruling in the case of Lu v. Baca, Judge Deirdre Hill ruled that the sheriff’s policy functioned as a de facto ban on handgun carry licenses for Los Angeles County residents. Now, the department must begin accepting and processing handgun carry license applications.

“This decision means that all Californians need not jump through more hoops than those required under state law in order to apply for a handgun carry license and exercise their Second Amendment rights,” said Hoffman.

Since 2009, the grassroots organization has brought multiple lawsuits against licensing authorities for failure to comply with state laws. As part of this Carry License Sunshine and Compliance Initiative, the group has routinely relied on public records requests to obtain license application records, department policies and other public documents related to concealed weapons permits. Calguns says that nearly 30,000 handgun carry licenses have been issued since it began the initiative.

In 2011, Calguns Foundation believed that then-San Francisco Sheriff Michael Hennessey was failing to comply with California’s conceal carry laws. Under state law, all agencies that have the authority to issue firearm permits must create and publish a written policy on the process. The law, authored in 1998 by then-Assemblyman Rod Wright, ensures that the controversial program is uniformly applied.

Ultimately, it was a public records request that confirmed the group’s suspicions: The sheriff had selectively enforced the law. The office had awarded a permit to the sheriff’s legal counsel, while simultaneously denying other permits. It was only with the documents obtained by a public records request that the group had the necessary evidence to force compliance.

In addition to Calguns Foundation, the Second Amendment Foundation has filed similar “right to carry” lawsuits.

By John Hrabe

Just after 11 a.m. on Tuesday morning, one of the state’s leading Second Amendment groups sent out an urgent alert to its members.

“FIRE MISSION: OPPOSE SB 71 Sec. 4 NOW!!,” the email from Calguns Foundation urged. “11th Hour Budget Bill Threatens Your Right to Public Records.”

Gun advocates weren’t the only group to mobilize their members to oppose changes to the state’s public records law that were contained in the state budget’s trailer bills.

“Legislative Alert!!! Stop CA SB 71!!” pleaded Peggy Rossi, chair of the legislative watch committee for the California State Genealogical Alliance. “Please read below and contact your representatives as soon as possible. This could have serious consequences for records access.”

If it seems odd for gun owners and genealogists to mobilize their networks to defend California’s Public Records Act, that’s because the press coverage of the public records law kerfuffle has unsurprisingly focused on the press themselves.

“My friends in the media are using words like ‘gut’ and ‘eviscerate’ with relation to the trailer bill at issue, and I think I even saw the phrase ‘war on transparency,’” wrote Scott Lay, publisher of The Nooner, a must-read, daily update on state politics. “Will the world end and all of our newspapers no longer have access to public information? Of course not.”

By late Thursday morning, the controversy appears to have subsided with a joint statement from Senate President Pro Tem Darrell Steinberg and Assembly Speaker John A. Pérez.

“We agree there needs to be both an immediate fix to ensure local entities comply with the California Public Records Act and a long-term solution so the California Public Records Act is not considered a reimbursable mandate,” the legislative leaders said.

There’s no question that reporters use the state’s public records law to obtain documents. But they are far from the most frequent users of it, or the group most susceptible to a change in the law. Advocacy groups, citizen activists and even opposition researchers, the very people routinely ignored by the mainstream media, rely on the law to redress grievances with local governments. It’s also these marginalized groups that commonly lack the resources to fight noncompliance in court.

Calguns vs. S.F. Sheriff

In 2011, Calguns Foundation believed that then-San Francisco Sheriff Michael Hennessey was failing to comply with California’s conceal carry laws. Under state law, all agencies that have the authority to issue firearm permits must create and publish a written policy on the process. The law, authored in 1998 by then-Assemblyman Rod Wright, ensures that the controversial program is uniformly applied.

Ultimately, it was a public records request that confirmed the group’s suspicions: the sheriff had selectively enforced the law. The office had awarded a permit to the sheriff’s legal counsel, while simultaneously denying other permits. It was only with the documents obtained by a public records request that the group had the necessary evidence to force compliance.

“While the Sheriff may have grown accustomed to following only those laws he chooses, we intend to hold the County’s highest law enforcement officer to the same laws he took an oath to uphold,” Gene Hoffman, chairman of The Calguns Foundation, said in a 2011 press release that was never picked up by the area media. “The rights of San Francisco residents are no less valuable than those of his employees and friends.”

San Francisco wasn’t an isolated case, but a part of Calguns’ program to enforce compliance with the law.  A similar 2010 request filed by Calguns with the Ventura County Sheriff’s office was denied. Calguns was forced to file a lawsuit, which it won.

“Since we started our Carry License Initiative, CGF has had the great pleasure of supporting and, where possible, collaborating with fantastic open government groups like the First Amendment Coalition and CalAware on matters relating to public records and meetings,” Combs said. He added that his group was looking forward to working with the Electronic Frontier Foundation and ACLU, two partners that might sound like a political odd couple.

Steinberg’s clever Catch-22

That citizens groups are routinely ignored by the media made the state Senate’s initial solution a clever Catch-22.

“If we get word from one public entity, one public entity, that they are not complying with the law, the Public Records Act, we will then pass that bill,” Steinberg promised the public on Wednesday afternoon.

The Steinberg promise was clever because it appeased the press, while ignoring the meddlesome citizen groups that frequently use the law. When I asked Calguns Foundation whether the media covered the 2011 incident with the S.F. Sheriff, he said, “As far as I can recall, the press didn’t do anything with it.”

That’s the Catch-22. How would the Senate ever “get word” of noncompliance, if the press routinely ignores the very groups that file public records requests?

Public records unequal enforcement

Assemblymember Kristin Olsen, R-Modesto, one of the Legislature’s leading advocates for open government, points out that transparency laws are only effective when equally applied. “To truly support open, transparent government, you have to be willing to hold yourselves up to the same standards,” Olsen said.

Yet, as it stands today, even if the public records law remains intact, the law isn’t uniformly applied. Public agencies can illegitimately deny public records requests from groups and individuals without the means to pursue their case in court.

Last month, I filed a public records request with the City of Fresno. The request, which was intended to shed light on the secret search for a new Fresno State University president, was denied and is currently being appealed. If that appeal is denied, I won’t have the money to pursue it in court.

Capitol reporters rarely use Public Records Law

Big media outlets with their powerful megaphones, however, can ask politely and get results. In fact, the mere threat of a public records request is enough for some reporters to enforce compliance. CalWatchdog.com contacted a dozen Capitol reporters for the number of times they’ve submitted a public records request in the past year. Only four responded.

“Sorry, that’s a matter of utmost secrecy,” joked the Sacramento Bee’s Jeremy White on Twitter.

His Bee colleague, Dan Walters, said that he hasn’t filed any public records requests in the past year, although he pointed out the number only applied to him and not the paper as a whole. “I doubt there’s any central tally since reporters commonly do them on their own,” Walters said.

The Orange County Register’s Brian Joseph, who also serves as the president of the Capitol Correspondents Association of California, didn’t have time to check his correspondence log, but estimated that he’d filed dozens of public records requests last year.

“I file dozens of record requests each year but I ask for documents easily several hundred times a year — and those asks are also record requests under the law,” said Joseph, whose 2008 investigation into the California Statewide Communities Development Authority required extensive documentation from the state agency.

News10 Sacramento’s John Myers, another of the Capitol’s best reporters, said that he’s filed three public records requests in the past year and estimated that he’d used the law another half dozen times to “politely” obtain key documents.

“The PRA should usually be the last resort, not the first demand out of the gate,” Myers said. “I more often find asking politely, and with time to respond, gets results.”

That’s a luxury not afforded to smaller outlets or citizen watchdogs.