On December 1, Judge Roger Benitez of the Southern District of California ruled in Miller v. Bonta that a challenge by gun dealers and gun-rights advocacy groups to the fee-shifting provision in California’s new firearms law is not moot, and permitted the lawsuit to proceed. California passed S.B. 1327 on July 22. The law is modeled after Texas’ controversial abortion law S.B. 8, which enacted a “fetal heartbeat” abortion ban that is enforced solely through private civil lawsuits against those who perform, induce, or abet a prohibited abortion, under a highly-plaintiff-favorable framework. California’s law applies the same legislative tactic to guns. As I’ve written previously, the California statute bans the manufacture and distribution of assault weapons and guns without serial numbers, the sale or transfer of “ghost gun” component parts, and the sale of guns to anyone under age 21 (with limited exceptions). Like its Texas counterpart, the law is enforced only through private civil suits against those who knowingly violate its substantive gun restrictions, and plaintiffs benefit from favorable standing rules and recover a minimum of $10,000 in statutory damages if they prevail.
As codified, Section 1021.11(a) of the California law provides that:
[A]ny 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 firearm, 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.
The law goes on to state that a party is considered a prevailing party if the court rules in that party’s favor on any claim, but that a party or attorney seeking an injunction striking down a gun regulation “shall not be deemed a prevailing party.” In other words, a plaintiff challenging gun laws is liable for the defendant’s fees if the defendant prevails on any claim, but the plaintiff can never recover fees if it prevails. Texas’ abortion law contains the same mechanism: plaintiffs who challenge the enforcement of abortion laws in the state (and their attorneys) are liable for costs and attorney’s fees of a prevailing defendant on any claim, but not vice versa.
The Miller plaintiffs challenged the fee-shifting portion of the California law in September, arguing that the provision is preempted by federal legislation “promoting private enforcement of civil rights,” that it violates the First Amendment by restricting access to the courts, and that it violates the equal protection clause. The state’s primary response was to “commit not to seek attorney’s fees or costs under . . . SB 1327 from any plaintiff or plaintiff’s attorney—including prospective plaintiffs who are not involved in this case—unless and until a court ultimately holds that the fee-shifting provision in [Texas’] SB 8 is constitutional and enforceable, and that decision is affirmed on appeal or no appeal is taken.” California argued that this commitment “eliminated any possibility that plaintiffs or their attorneys will be deterred from bringing civil rights litigation against defendants,” therefore rendering the claims in Miller moot because the plaintiffs have not incurred an actual injury and lack standing.
In an 8-page opinion, Judge Benitez emphasized that gun-rights groups allege they have “dismissed, delayed, or refrained from litigating constitutional claims” due to concerns about the fee-shifting provision. The judge pointed to a stipulated dismissal in a separate case challenging California’s regulation of self-manufactured firearms, where the state “waive[d] and release[d] any and all claims . . . under California law against Plaintiff, its principals, agents and attorneys, arising out of Code of Civil Procedure section 1021.11,” as evidence “that Defendant Attorney General is still leveraging the threat of recouping his attorney’s fees under § 1021.11 to persuade other plaintiffs to dismiss” gun-related lawsuits. Therefore, Judge Benitez found that plaintiffs had a “concrete and particularized” injury and that the “adverse effects [of the fee-shifting provision] are neither abstract nor hypothetical.” Judge Benitez observed that the Supreme Court did permit a challenge to Texas S.B. 8 to proceed as to state licensing officials, while upholding dismissal of claims against the state attorney general because he lacked authority to enforce the law—and he stated that “[t]he same principles authorize relief against the state officials here.” Judge Benitez found that “[a] state actor’s voluntary cessation of unconstitutional conduct does not moot a case” without more, such as a legal opinion that the statute is unconstitutional or a binding consent judgment agreeing not to enforce the law. Because the non-enforcement in California’s case is contingent, Judge Benitez found that “the actual chilling effect on these Plaintiffs’ constitutional rights remains.”
One issue to keep an eye on with the California litigation is that, in light of the Supreme Court’s recent decision in Dobbs, it seems likely that Texas’ S.B. 8 may remain on the books as a vestigial statute whose constitutionality is never formally adjudicated. After Dobbs, Texas now criminally bans all abortions from the moment of fertilization (with limited exceptions for life-threatening physical conditions). While S.B. 8 casts the net wider and captures “aiding and abetting” that is not criminalized—such as driving someone to an abortion clinic—the post-Dobbs criminal prohibition has led Texas clinics to stop providing abortions entirely. Therefore, it’s not clear that a prospective plaintiff could challenge the S.B. 8 provisions alone, without also challenging the criminal ban in some way. California’s decision to tie its own enforcement of the firearms fee-shifting provision to an adjudication of the Texas law might, then, be a more permanent disavowal than Judge Benitez suggests.
The opinion in Miller also notes that “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.” In the context of Texas’ abortion law, some commentators have noted that no other state law “purports to put attorneys and law firms on the hook simply because of the issue they are litigating or the clients they choose to represent.” Not only are potential plaintiffs likely to be deterred by fee shifting, but lawyers will also be deterred from representing plaintiffs if they face potentially steep fee liability themselves for losing on only one claim. Judge Benitez’s statement that “[o]ne might question the wisdom of a state law that dissuades gun owners from using the courts to peacefully resolve disagreements over the constitutionality of state laws” is vaguely threatening—how else, one wonders, would gun owners propose to resolve such disputes, if not “peacefully”? Nevertheless, it is important to encourage meritorious constitutional challenges to state statutes; and it would be unfortunate if such challenges were stifled by punitive fee-shifting regimes.
[12/12/2022 Addendum: On December 8, a judge in the Eastern District of California went the opposite way and denied a motion for preliminary injunction of the California fee-shifting provision in Abrera v. Newsom. In Abrera, the judge found that the state defendants’ assertion that “that they do not intend to enforce the statute against Plaintiff in the current action or any related action,” made in their opposition brief in that case, constituted judicial estoppel, “and that Plaintiff  failed to demonstrate an injury-in-fact on this ground.”]