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Friend,
George
Lee, Lead Counsel for our lawsuit Sharp v. Becerra, asked
that we pass on an important case update this morning.
We hope you find it illuminating.
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Sharp v. Becerra Case Update
By George Lee, lead counsel
Seiler Epstein LLP
Recently, Judge Morrison C. England, U.S. District Court
Judge for the Eastern District of California, denied the defendants’
motion to dismiss the plaintiffs’ claims in Sharp,
et al. v. Becerra, et al.(E.D. Case No.
2:18-cv-02317-MCE-AC). This case deals with people who were denied
the ability to register their firearms, putting them in legal
jeopardy, because of what we allege are systemic issues within
California DOJ, not the least of which was the DOJ’s non-functioning
website that was plagued with problems, preventing many law-abiding
gun owners from complying with the registration
requirement.
We filed this case in 2018, shortly after the California
Department of Justice closed its website that required all owners of
California-compliant so-called “assault weapons” (the California kind,
that were equipped with magazine locking devices, i.e., “bullet
buttons”).
In 2016’s “Gunpocalypse”, the California legislature, in
enacting Sen. Bill 880 and Assembly Bill 1135, defined “assault
weapon” to include many of these legally-owned firearms, and required
California gun owners to register them (Penal Code § 30900(b)(1)), and
allowing those who timely registered those guns to keep them. (Pen.
Code § 30680(c)). The Legislature also required the DOJ to create a
functional “public-facing” Internet based registration system for this
purpose.
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We now know that the DOJ had estimated that perhaps as many
as 250,000 gun owners, owning possibly as many as 1.5 million such
firearms could have been expected to register them. That shows the
popularity of this type of arm – common, constitutionally-protected
semi-automatic firearms, including the nationally-popular AR-15
platform rifle.
At the same time, however, the DOJ was woefully unprepared,
understaffed, and under-budgeted to deal with this crush of
State-mandated registrations. And the DOJ knew it.
Many California gun owners, like our clients – who were
simply trying to avoid serious criminal liability by complying with
the law – were unable to register their firearms before the deadline.
Many were simply “timed out” by the DOJ’s Web application, or found
the DOJ’s website completely inaccessible. Others who were able to
access the website found that it was unable to process the four
photographs that the DOJ had required, thus resulting in failures.
(The requirement for photograms was the DOJ’s own made-up invention,
by the way. It wasn’t required by statute.) Some others got as far as
being able to prepare everything for submission, but when they clicked
on the “submit” button, the system would crash, causing them to lose
their work and have to start over (if the system then even allowed
that).
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Seven individuals throughout the state who experienced these
types of problems joined our lawsuit and are named in the case.
However, after the DOJ’s website disaster, including after the
deadline passed, I personally spoke with many other gun owners who
experienced similar problems. So these were not simply aberrations,
nor were they “user errors” as the DOJ tried to suggest. This was a
systematic failure on the DOJ’s part.
Some of our clients attempted to call the DOJ to explain that
the website wasn’t functioning. The DOJ’s standard response was to
blame the gun owner for “waiting until the last minute” to attempt
registration. This, despite the fact that the DOJ’s website ominously
had a “countdown clock” literally ticking the last day, hour, minute
and second that gun owners had to comply with the requirement. We now
know from documents produced in discovery that this attitude of
victim-blaming went to the highest levels of the DOJ.
The ruling by Judge England supports our theory that the
DOJ’s failures to maintain a functioning website may rise to the level
of a due process violation under the Constitution. In fact, these
systemic failures, in addition to the countdown clock, supports an
inference of “deliberate indifference” on the part of the
DOJ.
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In essence, they knew that gun owners wouldn’t be able to
comply with the registration requirement under the law—and they simply
didn’t care.
For example: “Those who waited until the last day will just
have to keep trying and if they are unable to register that is on
them,” said one DOJ administrator.
Another high-ranking DOJ official said in response to a
suggestion that the failures might result in a lawsuit said, “Not
going to please everyone. 😉”.
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We are looking forward to proceeding to the next phases of
the case, where we will continue to uncover documents, and find
witnesses who will demonstrate that the DOJ’s failure to create a
functioning website violated basic principles of due process,
fundamental fairness, and only served to make technical criminals out
of people who were simply trying to comply with the law.
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