California Unable to Avoid Gun Fee-Shifting Lawsuit, Judge Rules

California must continue to defend the state’s bounty bill that allows it to seek attorneys’ fees from parties that challenge firearms legislation inspired by similar Texas legislation on abortion, a federal judge ruled.

Judge Roger T. Benitez of the US District Court for the Southern District of California rejected California’s arguments of mootness of the lawsuit firearms dealers, lawyers, and gun rights advocates filed in September. The law in question includes a one-way fee-shifting penalty in the government’s favor that applies solely to litigation challenging state and local firearm regulations, the lawsuit said.

California Attorney General Rob Bonta (D) said the state wouldn’t enforce the law unless the Texas law is upheld, the court noted. The Texas law known as S.B. 8 permits bounties of up to $10,000 against those who assist someone in obtaining an abortion.

“Does jurisdiction continue to exist in light of the Defendant Attorney General’s statement of non-enforcement? In other words, is the case now moot? No. A state actor’s voluntary cessation of unconstitutional conduct does not moot a case. More is required than voluntary cessation,” Benitez ruled Thursday.

It would usually be sufficient if a state legislature repealed the offensive law and might be sufficient if the attorney general issued an official opinion that the statute was unconstitutional, the judge said. “Here, the Defendant Attorney General could leave office and his successor might begin immediate enforcement,” he said.

Bonta “says that his cessation of enforcement in a seeming case of tit-for-tat will end if, and when, a purportedly similar one-sided fee-shifting Texas statute is adjudged to be constitutional,” Benitez said. “Certainly, that condition may or may not occur. In the meantime, the statute remains on California’s books. And the actual chilling effect on these Plaintiffs’ constitutional rights remains.”

Plaintiffs include Gunfighter Tactical LLC; Poway Weapons & Gear; San Diego County Gun Owners Political Action Committee; California Gun Rights Foundation; Second Amendment Foundation; Firearms Policy Coalition Inc.; attorney John W. Dillon and the Dillon Law Group PC; and attorney George M. Lee.

“Long story short,” Alan Gottlieb, Second Amendment Foundation executive vice president, said in a statement, “we’re going to move forward in our lawsuit because California cannot be permitted to use the law to suppress constitutional challenges to its increasingly radical gun control schemes.”

A representative for Bonta didn’t immediately respond to an email seeking comment.

ABA Invited

“Fee shifting provisions are not unusual in American law. But this one is,” Benitez said in an eight-page order issued three days after a hearing.

“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,” the court said. “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 lawsuit is among the many filed after California enacted a raft of firearms-related bills.

A Dec. 16 hearing is scheduled on the group’s motion seeking an injunction blocking enforcement.

Everytown for Gun Safety advocates for gun control measures. Michael Bloomberg is the majority owner of Bloomberg Law’s parent company and serves as a member of Everytown’s advisory board.

Benbrook Law Group PC and Cooper & Kirk PLLC represent plaintiffs. The California Attorney General’s office represents the state.

The case is Miller v. Bonta, S.D. Cal., No. 3:22-cv-01446, order 12/1/22.